FDA issues public update regarding listeriosis outbreak linked to ice cream products.

• FDA has many tools in its arsenal to prevent and respond to food contamination issues; these include the Agency’s inspection power and various enforcement authorities (e.g., warning letters, mandatory recall orders in class I situations, administrative detention, seizure, suspension of facility registration).  In addition to its formal authorities, the Agency also has at its disposal the power of publicity.
• Over the past two months, Blue Bell Creameries conducted a series of high-profile recalls after its ice cream products were linked to listeriosis outbreaks in multiple states, resulting in hospitalizations and deaths.  As of April 20, 2015, Blue Bell voluntarily expanded its recall to include all products currently on the market due to potential contamination with Listeria monocytogenes.  On May 7, 2015, FDA published an update on its website alerting consumers to the scope and nature of the problem and releasing a series of inspectional observations from Blue Bell production facilities in three states.  The inspectional observations indicate that one processing facility was aware of positive tests for Listeria monocytogenes in the plant as far back as 2013.
• Media outlets quickly began publicizing FDA’s findings, focusing on Blue Bell’s alleged longstanding awareness of a potential problem.  It will not be surprising if a host of class action lawsuits are filed in the wake of this negative publicity.  Situations such as this should serve as a reminder to the food industry that above and beyond FDA’s traditional enforcement tools, the Agency’s power of publicity should not be underestimated.