Chipotle and FDA’s Reach

By Ricardo Carvajal & JP Ellison –

According to public communications by the restaurant chain Chipotle, the company has been served with subpoenas in a federal criminal investigation apparently arising out of one or more outbreaks of foodborne illness that appear to implicate certain of the company’s retail restaurants.  This type of investigation appears to be without precedent, but perhaps should not have come as a surprise.

Historically, FDA has not sought to directly regulate the retail food sector (restaurants, grocery stores, coffee bars, etc.), and has left that activity largely in the hands of state and local regulators. However, since 1993, FDA has played a significant role in helping to ensure food safety in the retail food sector through issuance and maintenance of the Food Code,  and by encouraging the adoption of that Code into state law.  The potential public health impact of retail food sector regulation has increased as consumption of away-from-home foods has increased – a trend of which FDA has been well aware.  More recently, FDA expanded its retail sector footprint to encompass menu labeling, in accord with a Congressional directive in the Patient Protection and Affordable Care Act.  All along, FDA has regulated many of the businesses that act as suppliers to the retail food sector, and is set to expand those activities pursuant to new regulations issued under the authority of FSMA.  Viewed in the context of those activities and developments, the current investigation appears less groundbreaking than might otherwise be the case.

At present, little is known about the nature and scope of the investigation or its targets, and any speculation should be tempered accordingly. One thing is clear: those in the retail food industry who might have thought that they were beyond some of the concerns burdening their manufacturing industry counterparts have experienced an adjustment of their reality.