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Yesterday the House Energy & Commerce committee subcommittee on Oversight & Investigations held a hearing on the salmonella peanut butter outbreak. It was their 3rd in a series of three, this time focused on the companies supplied by Peanut Corporation of America and their lapse in food safety vigilance that allowed this to happen.

Opening statements, written testimony, and documents for the hearing can be found here. For continued coverage of food safety reform as it unfolds, read my blog regularly.

Your cast of characters for the hearing:

Congresscritters
Subcommittee Chairman: Bart Stupak (D-MI)
Subcommittee Vice Chair: Greg Walden (R-OR)
Committee Chairman: Henry Waxman (D-CA) (a.k.a. "the mustache of justice")
Committee Vice Chair: Diana DeGette (D-CO)
Former Chairman: John Dingell (D-MI)
Jan Schakowsky (D-IL)
Bruce Braley (D-IA)
Betty Sutton (D-OH)
Nathan Deal (R-GA)
Michael Burgess (R-TX)
Phil Gingrey (R-GA)

And those who testified:
Martin Kanan, President and Chief Executive Officer, King Nut Company
David Mackay, Chief Executive Officer, Kellogg Company
Heather Isely, Co-Owner, Vitamin Cottage Natural Food Markets, Inc.

The hearing started with opening statements from each of the members of Congress named above. They bemoaned the fact that they've had numerous food safety hearings already without any change happening. And they focused on the fact that Nestle sent its own inspectors to PCA's peanut plants, found the place filthy, and turned them down as a supplier.

In 2002, Nestle inspected the GA plant. Some of the statements in their report read: "potential for microbiological cross-contamination," "four dead beetles found," "dead insects found on interior perimeters," and "it is critical that these deficiencies are addressed." They inspected the TX plant in 2006 and had the same findings.

However, the companies testifying today relied on audits by AIB, a firm selected and paid by PCA with an obvious conflict of interest. The auditors gave PCA advance notice of the audit and then gave them a superior rating. And in fact, AIB gives 98% of those they audit superior or excellent ratings. Not to mention, PCA chose the cheapest possible audit, one that cost $1500. The "gold standard" of audits would have cost $20,000 which is a drop in the bucket compared to the millions the bankrupt PCA now owes.

Stupak said:

Placing all the blame on PCA would mean that food processors have no responsibility for ensuring the safety of their ingredients, and I can't agree with that.

Walden showed pictures of PCA's TX plant with rotting, dead rodents around the air intake going into the area where food is processed. He said "How does this go undetected?" He noted that PCA did not register or apply for a food manufacturing license for their TX plant so they were never inspected by the state or by the FDA.

Waxman said:

This is the 3rd hearing our committee has held on food safety. In our first hearing in Feb, it was clear that PCA was more concerned with its financial well-being than the health of its customers. We saw internal communications that they were most concerned at losing money.

The FDA also testified that it cannot access records from a company about the steps it takes to ensure safety or mandate a recall. In March we held a 2nd hearing in the sub-committee on health where the legislation will be considered. FDA cannot do this alone.

We can't expect FDA to prevent foodborne illness through inspections [because there are too many companies that they would have to inspect]... We rely on the companies. So today we're going to focus on the companies. Today we're going to hear from 3 companies that purchased from PCA in spite of the filthy conditions.

Waxman's statement included other themes that became a focus of the hearing - the FDA's inability to get the records of a company (it's voluntary for the company to hand them over) and the FDA's inability to mandate a recall.

In Deal's statement, he said:

I think we all understand that a lot can be done on the private side of the ledger, and perhaps more should be done on the government side.

Dingell spoke next and he sounded particularly disgusted at the situation:

We have been working on this for several yrs. We are looking at dreadful lapses by state and federal regulators. This is not a new thing. We had the grapes, the jalepenos and tomatoes, we had a problem with Chinese seafood and shellfish, we had problems with imported heparin, and now we've got the peanuts. You and I Mr Chairman have been critical of FDA. This is not a new problem.

Next up was Burgess, and I think his statement was particularly on the money:

None of us are satisfied with the lack of answers from PCA in our previous hearing. The problems are not just with the industry. Most companies want to maintain the integrity of their product. When that trust is broken by bad actors like PCA, controls must be in place to swiftly address and correct the problem. This isn't rocket science. You heat the peanuts up hot enough and long enough to kill the bugs and then if you're plant is in compliance, you're gonna be OK. It doesn't require something exotic like irradiation. FDA is missing 3 logical control - access to records for FDA (the FDA should not have to ask permission when a crisis happens), greater use of electronics for record keeping (more than 90% of FDA records are on paper), companies should use HACCP - FDA currently requires it for juice and seafood, and USDA requires it for meat and poultry, seems logical to extend that for everyone, third, FDA should have mandatory recall authority.

Diana DeGette spoke next, and I think she was putting in a plug for her own bills in Congress (H.R.814 and H.R.815). H.R.814, The TRACE Act, is particularly bad as it would mandate the National Animal ID System. She said:

Vitamin Cottage is a good example of the collateral damage that can happen when you have bad actors in the food system. This is a small family run organic grocer. It's all well and good to say it's their responsibility to inspect but in truth it's virtually impossible for a small business to do that. They actually received assurances from PCA that these peanuts were being produced in a healthful way.

If you're a natural foods grocer, the last thing you want to do is make people sick. Instead, I think what we need to look at is how we can ensure that the whole food chain is safe. Finally, the Vitamin Cottage experience shows how traceability can work well, once patients were identified, we were able to trace back where the peanuts came from.

Notice here that both Republicans AND Democrats are calling for stronger authority for government. I think that's significant. However, Gingrey's statement went a little more to what I would expect from a Republican:

No matter how high a regulatory wall we erect, there's always going to be someone brazen enough or greedy enough or stupid enough to climb over them.

He added that we should review the penalties for violating food safety laws.

The last three to speak were Braley, Sutton, and Schakowsky. They didn't add too much that was new, although Sutton echoed DeGette's call for traceability. I was also interested to learn that Schakowsky began her career as a consumer advocate way back when. No wonder she's such a fantastic Congresswoman!

Next, the three speakers were introduced and they spoke (under oath):

The CEO of King Nut explained that his business had 200 employees and they manufactured snack products but not peanut butter. When their customers asked for peanut butter, they contracted it out to PCA. PCA made the peanut butter, sealed the containers, and put the King Nut label on them. He emphasized again and again the food safety assurances he received from PCA and congratulated himself for calling for a full recall immediately once learning about the salmonella.

Kellogg said that "PCA has essentially poisoned the world in an industry in which most companies are honest. PCA has shown that if a company chooses to ignore even basic food safety principles, food safety systems can be compromised."

He called for "a renewed focus on prevention" with 9 principles he stated:

  1. A single food safety agency under HHS
  1. Establish an international food protection training institute to train inspectors
  1. Update Good Manufacturing Practices
  1. Develop food safety plans for every food facility that contain preventative controls and verification
  1. Annual inspections for high risk foods
  1. Test results and corrective actions must be disclosed to FDA at annual inspection.
  1. A universal food manufacturing facility audit standard and accreditation of third party auditors.
  1. Give the FDA mandatory recall authority
  1. Review possibilities for enhancing traceability.

Last was Vitamin Cottage. She was very nervous and repeated again and again that she's just a small family-run business, although she later said they gross $200 million per year. Her company relies on the government to ensure safety and organic standards, and then Vitamin Cottage does its own inspections where the government does not, to ensure humane treatment of animals.

In the Q&A, Stupak criticized the three who were testifying (particularly King Nut & Kellogg) for not doing what Nestle did by hiring its own inspectors to look at PCA. Those who did the questioning asked a lot of yes/no questions about what the companies would support, basically to see how far they could go with a law.

Would they support the FDA having mandatory recall authority? Yes.
Should there be uniform inspection standards? Yes.
Should inspections be unannounced? All yes, but Kellogg was VERY uneasy with this and noted that a day's advance notice would be good.
Do you think records that show positive test results should be available to the FDA? Yes.
Should they be electronically reported to the FDA? Yes.
Should there be a requirement for this kind of testing and for audits? Yes, but again Kellogg was not happy to say yes to this.

I also want to note an exchange between Waxman and Kellogg:

Waxman: "King Nut you got certificate that there's no salmonella. As I understand it that doesn't mean there's no salmonella, it just means that there was none where they tested, could have some elsewhere.

"You [Kellogg] indicate in your written statement that an audit found no concern with potential contamination. I want to direct your attention to a March 2008 AIB inspection of the GA facility, in the report it says 'This facility had evaluated the processes and procedures and determined no critical control points were present in the operation.'"

Waxman spoke about HACCP (Hazard Analysis Critical Control Points), a method in which you analyze a process and look for "critical control points" where you can reduce risk.

He said: "There has to be a plan. The obvious critical control point was the roaster because the roaster could kill the salmonella. This audit said no critical control point. This means PCA looked at it's process, procedures, and determined had no critical control points, not even for killing salmonella. Did you have a reaction or did you even notice it?"

Kellogg: "I didn't see that particular audit."

Waxman: "PCA was a bad company. They did bad things. They were clearly ignorant because they wanted to be ignorant. But this indicates to me that Kellogg was pretty sloppy..."

He noted that PCA hired cheapest inspector they could get. Then he asked, "Do you think that you were sloppy?"

Kellogg: "I think that we did everything we could do."

Dingell barked out more yes/no questions and made everyone squirm. It was not a friendly exchange, made worse by the fact that the Kellogg speaker could not hear Dingell and made him repeat nearly everything. The most notable part of his questioning was when he asked if the companies would support paying registration fees to pay for the FDA's increased inspections of their businesses (this is a unique feature within Dingell's food safety bill}. The companies were not eager to say yes to that. Instead they asked to talk about it more in the future.

Also, I found it interesting that all of the companies present said they supported Kellogg's nine principles, and that Vitamin Hut, when asked if she would inspect each of her 1300 suppliers, said that she preferred to rely on the government system. I can't say I blame her. What's the point of having an FDA if each individual company has to inspect each of their suppliers?

Originally posted to OrangeClouds115 on Fri Mar 20, 2009 at 05:28 AM PDT.

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Comment Preferences

    •  So, that's where you were yesterday.... (7+ / 0-)

      Excellent piece, Jill. I'll re-read it over coffee later.

      •  I wasn't at it, just listening live (6+ / 0-)

        on the 'net. For the 1st of the 3 hearings, a friend went and reported the entire thing on Twitter live. I turned her "tweets" into a diary that I found very amusing but nobody else seemed to read it.

        •  I'd suggest more than one annual inspection for (7+ / 0-)

          the system to work, it should be at least two, ideally six and most importantly, unannounced.

          •  our FDA doesn't have those resources (5+ / 0-)

            the options are to really beef up the FDA with a lot of extra people & money OR certify private companies to do this.

            •  Beefing up the FDA is the rational thing to do (0+ / 0-)

              And here's why:  

              Let's say a distributor has 100 customers.  That would require each of it's customer's to have one inspector on the payroll for every 40 ingredients or so they use.  If each customer inspected their plant once per year that would be an inspection every 3.5 days or twice a week.  That seems a bit excessive and disruptive to me.  

              A better system would be to have an FDA (or hopefully a Food inspector if we can get it spun off from the drugs portion) guy inspect a company six times in a year.  Four with one day notices and two with no notice at all.  Every 1-2 years this inspector's list of companies to inspect would rotate so that no one person becomes overly familiar with the people at a plant.  And for one of those unannounced inspections per year the supervisor should go with them.

              To pay for these inspectors the customer and the plant should pay a fee. Splitting the cost of the auditors across 101 plants makes much more sense than requiring each to hire their own inspectors and bypasses the possibility of corruption within a private sector company who surely would represent the same customers for decades.

              Despite what the Republican's think, this is the most economically sound methodology and relieves much of the burden from the manufacturer (although it must be clear that they remain culpable for things that happen within their plants or for knowable problems whether they knew about them or chose not to know about them)

              We're all one heartbeat away from Forever. kasandra.us

              by KS Rose on Fri Mar 20, 2009 at 08:09:39 AM PDT

              [ Parent ]

          •  LOL, I just noticed your description of (5+ / 0-)

            Waxman, "the mustache of justice"!

          •  I love how Congress... (6+ / 0-)

            ... is willing to push professional sports to have multiple random drug test yearly for athletes but can't seem to find the same will to protect our food supply.

            •  Was Congress suggesting the Feds check (3+ / 0-)
              Recommended by:
              RunawayRose, OrangeClouds115, D Wreck

              the players?  That may be part of the difference, saying they need to be tested vs actually instituting the checks themselves. Just as with the "independent" testers and auditors used, that sports drug testing would likely have outfits giving passing grades when they shouldn't.

              •  I was just pointing out the hypocrisy (1+ / 0-)
                Recommended by:
                OrangeClouds115

                Congress wasn't suggesting the Feds test the athletes, but they did expend considerable energy telling MLB what to do.  All the while Congress finds all sorts of excuses not to institute more testing in an area where they have specific authority.

          •  not practical to have the resources (3+ / 0-)

            there's a huge number of food processors and handlers, trying to do multiple inspections per year would mean an enormous increase in the size of the FDA. And that still would not be a guarantee, bigger organizations seem to have more opportunities for corruption.

            Random, unannounced inspections, yes. A small percentage of those being additional to the yearly inspect, yes to that; and by a different arm of the FDA than does the normal yearly inspection in the region, that also helps prevent internal corruption and slacking off.

            That's likely why the Republican Gingrey was for stiffer punishment, a realization that anything short of a totalitarian state with constant surveillance and checking isn't going to stop some from committing crimes, so a big stick may be needed.  There's a SF story where the punchline was "mankind always cheats on its gods"; and if people are willing to cheat on their deity, how much more likely are they to try to cheat their fellows?

    •  Thanks for writing! (4+ / 0-)

      This would have totally slipped by me had you not brought it to my attention.

      I'm beginning to feel confident that we're actually going to see corporate freedom reined in a bit, and corporate accountability expanded.

      "If a free society cannot help the many who are poor, it cannot save the few who are rich." JFK - January 20, 1961

      by rontun on Fri Mar 20, 2009 at 06:28:30 AM PDT

      [ Parent ]

    •  re FDA & companies testing suppliers (2+ / 0-)
      Recommended by:
      OrangeClouds115, Ebby

      back during the lead in toys mess, it was frequently suggested that the U.S. toy companies test everything they buy. The argument of excessive cost was rejected, although it should be equally valid in the case of toys and food. you need to be able to have some trust in your chain of supply.

      At the same time one must realize that the chain of trust is not perfect, it can break through accident, oversight, or malicious intent (these appearing to be the case with PCA). Backup testing is useful, but at the same time can not be excessively burdensome.

      Spot checks on a small number of of the suppliers by their customers can be helpful.  If Vitamin Cottage tested say 10 products drawn at random from their 1300 suppliers, and other mid to large size customers of those suppliers were doing the same, the suppliers might be a bit more careful. Not only would they be facing a FDA inspection and whatever State level inspection they get, both of which a centralized and thus subject to corrupting influences, but also a random, distributed check by their customers; testing that is unpredictable, difficult to game.

      The Federal and State inspections set the tone, the laws establish penalties for failures. However the private inspections may be effective, if not more, in that a scrupulous customer could well drop the supplier if problems were found, and report those problems both to other customers of the vendor and to governmental agencies. This could lead to significant loss of sales, much larger than fines might be, and the possibility of investigation by governmental agencies  - possibly sections of those agencies remote from the normal contacts, and thus less likely to overlook problems or be gamed.

  •  Haven't read the whole thing yet but rec'd (7+ / 0-)

    to read later.  Thanks for putting this together OrangeClouds, I always learn something from your posts.

    We've got thrills and shocks, supersonic fighting cocks. Leave your hammers at the box Come Inside! Come Inside!...Karn Evil 9 / ELP

    by momoaizo on Fri Mar 20, 2009 at 05:33:46 AM PDT

  •  Thanks, OrangeClouds! Glad you were (3+ / 0-)

    listening in for all of us.  This will be interesting to watch play out, both for this particular case, and also for what it may signal about the direction of food policy more generally.

  •  An additional option (5+ / 0-)

    would be to have the FDA certify the independent inspection companies.  If my company is a private contractor hired to test and inspect a food plant, I should have a certification from the FDA saying that my company is qualified/competent to do so, and that there are serious penalties for incompetence/lying.

    It'd act as a force multiplier, and would also help clean up the mess that resulted from companies like the one that did PCA's testing.

    I think that I have had enough of you telling me how things will be. Today I choose a new way to go ... and it goes through you!

    by Norbrook on Fri Mar 20, 2009 at 06:35:45 AM PDT

  •  thanks for the clues (3+ / 0-)
    Recommended by:
    RunawayRose, OrangeClouds115, Ebby

    too bad they didn't have a parent testifying . . .

    you rock!

    "Gloom we always have with us . . . but joy requires tending." Barbara Holland

    by jlms qkw on Fri Mar 20, 2009 at 07:04:01 AM PDT

  •  Of course they were more concerned with profits (2+ / 0-)
    Recommended by:
    OrangeClouds115, Ebby

    than with consumer health.  They're a  corporation and by law, their bottom line is their number one priority and nothing else matters.

    It's what makes all corporations sociopathic.  

    We need to strip corporations of their personhood and completely overhaul corporate law.

    "Take whatever you can, Steal whatever you can't take, Kill what you can't steal so no one else can have it." - Republican Business Philosophy

    by Pen on Fri Mar 20, 2009 at 07:14:55 AM PDT

  •  Vitamin Cottage (3+ / 0-)
    Recommended by:
    RunawayRose, OrangeClouds115, Ebby

    From their Web Site

    Vitamin Cottage was established in 1955 by Margaret and Philip Isely when they borrowed $200 from Margaret's mother. They started by going door-to-door in Golden, Colorado, selling whole-grain bread and lending nutrition education books to people they met.
    ...
    Margaret passed away in 1997, but the business is still family-owned and operated by her children and grandchildren. They strive to carry on her legacy, an important part of which is treating employees with respect and paying them a decent wage. Over the years, Vitamin Cottage has grown from a "mom and pop" business to a 31-store chain with over 1200 employees in Colorado, New Mexico, and Texas.

    Not a small business anymore, unless the stores are franchises so that the parent company has far fewer employees.  But still privately owned, so the pressures that can arise from stockholders to boost profits are absent; so long as the family holds to the origins they may avoid many of the problems with corporations.

  •  Hey, aren't there a LOT of unemployed (1+ / 0-)
    Recommended by:
    OrangeClouds115

    Americans that are probably qualified and would readily agree to be trained to be health inspectors...you know so they could become employed with a government agency and get a paycheck and benefits and all?

    I know it isn't 'shovel-ready', or as sexy as defense or even 'Homeland Security', but food security affects us ALL.

    We need to separate food safety from FDA, hire and train a shitload of new inspectors, including overseas inspectors for imported foods, and stop relying completely on the good will of sociopathic corporations!

    (-8.50, -7.54) Only the educated are free. -Epictetus

    by Tin hat mafia on Fri Mar 20, 2009 at 08:28:01 AM PDT

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