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SPECIAL EDITION — PISTACHIO RECALL

Pistachio Industry Effectively Shuts Down Because Of FDA Recommendation Not To Consume announces the FDA has recommended that consumers not consume pistachios or pistachio-containing products. It also encouraged a recall by Setton Pistachio of over a million pounds of product, and the company elected to close its plant. It is possible that the problem was at the plant but in an episodic way that we may never find and could happen in any plant on any product in which case the FDA’s actions have helped nobody because virtually all the pistachios do not have salmonella and these freak events happen across all foods, so we have no reason to think that a consumer who switches to, say, roasted peanuts, is any safer. This is more an example of the FDA’s need to make itself relevant than anything to do with public health. 4/3/2009

Producer Contamination Of Pistachios Is Rather Odd finds the decision to close an industry a serious one. We wanted to learn as much as we could about the pistachio situation and so asked Pundit Investigator and Special Projects Editor Mira Slott to find out more. People were pretty closed-mouthed, but Mira was able to clarify some important points: Richard Matoian, Executive Director of the Western Pistachio Association. We have a product not known to harbor salmonella and that has some sort of kill step. To leap to the conclusion from an isolated finding on pistachios that have been sitting in a customer’s facility for months that this establishes even a prima facie case for producer-contamination is rather odd. 4/3/2009

Kraft At Crux Of Pistachio Recall; Hasn’t Fully Audited Supplier In Almost Four Years argues that Kraft occupies an odd position in this pistachio matter. It didn’t grow or process the pistachios; it didn’t even receive them or, initially, test them. Yet its policies on food safety and contacting government agencies have really been the catalyst for the whole matter. We asked Pundit Investigator and Special Projects Editor Mira Slott to find out more from Adrienne Dimopoulos, Senior Manager of Corporate Affairs Operations with Kraft Foods. There is always a temptation to clam up at a time like this. So we appreciate Kraft Foods providing some needed transparency in this very murky subject. 4/3/2009

Georgia Nut Company (Not The One Implicated In The Peanut Recall) Points Finger At Setton Pistachio explains that it can be overwhelming for a small family-owned business to suddenly find itself in the public eye. That is why crisis management is so important. But there is no reason a company should be reticent to discuss its food safety program. It should be so proud of its program and want to discuss every detail. We appreciate the time that Joshua Robbins and the Georgia Nut Company took to speak with us, but we are not certain that the logic of the argument being made holds. Mr. Robbins says that the company knows that the pistachios couldn’t get contaminated at its facility. How does he know this? 4/3/2009

SPECIAL EDITION II —
FDA And Setton Pistachio Work The Information Game

FDA Leaks New Info About Test Results saw that the Associated Press is reporting that federal officials confirmed they have test results confirming the existence of salmonella in “critical places” in Setton Pistachio’s California plant. If true, this report seems to represent a new approach FDA is pursuing with this food safety investigation. In the past, FDA has generally released information in frequent conference calls and then followed up with announcements on its Website. This time around they seem to be leaking information anonymously to favored reporters. This has been a food safety investigation with information dripping out hour by hour. One gets the impression that neither the FDA nor the company are telling all they know. 4/7/2009

The Failure Of The FDA And The Nature Of Information realizes that at the core of the behavior of the FDA on food safety is a misunderstanding of the kind of information that has value. Despite our present problems, we are a phenomenally rich country, and if we want to force companies that have a positive test result to recall all the product between their last negative or thorough sanitation and today, it won’t do too much harm. Adopting a clear policy would, in fact, encourage companies to maintain clear breaks on their production lines so as to minimize the extent of any recalls. But the banning of production by a company or issuing recommendations not to consume requires a different standard of proof. The problem is that the FDA treats its knowledge of something as in and of itself significant and it is not. 4/7/2009

Setton’s Kosher Certifier Sheds Light On Company’s Operations although it would not be correct to say that unethical people can’t get kosher certification, reputable certifiers will run if they get the feeling that management is looking to cut corners the instant the certifier leaves. We asked Pundit Investigator and Special Projects Editor Mira Slott to speak with Rabbi Hanoka of Organized Kashrus Laboratories, OK Kosher Certification, who have certified certain Setton Pistachio products as kosher. We thank the good rabbi for his willingness to share his experience, perspective and also a short parable that illustrates an argument we have often made pointing out the oddity which is the way the government views food safety as opposed to automotive safety. 4/7/2009

Much Ado About Two Cockroaches: Setton’s New York Affiliate Caught Up In The Inane when it was determined that the Setton International in New York, a Setton Pisticahio in California affiliate, had recently failed an inspection, some saw that as confirmation the California company was doing something wrong. We wanted to better understand this New York State inspection and asked Pundit Investigator and Special Projects Editor Mira Slott to find out more from Jessica Chittenden, spokesperson for the Division of Food Safety and Inspection at the New York State Department of Agriculture and Markets. The finding of two live cockroaches is undesirable, but not something we can get ourselves worked up about. We just don’t see anything meaningful in a copy we were given of the inspection report. 4/7/2009

What Not To Do When Handling Crisis Communications writes that we follow food safety issues closely because there are many that apply to everyone regardless of which products they sell. In food safety, one of those issues is communications. It is part of every crisis management plan yet very often exercised very poorly. In the current crisis over pistachios, both Setton Pistachio and its affiliate Setton International are making the same mistake. Each has hired a PR firm as its representative. They become, in effect, high-priced messengers. Some may think it terribly clever to control information flow in this way, but we doubt it. By restricting information and not having knowledgeable people speak to reporters, the company commits three errors discussed here. 4/7/2009

More Oddities Revealed On Setton’s Website found that the Setton Farms Website contains a complete tab on organic. Yet something is very odd. The certification on the website is from 2005, and it is issued not to the California company, but to the Long Island company. Yet the website clearly states that “Organic N & I certifies Setton’s facilities…” plural. The 2005 certificate doesn’t mean much; many industry websites are out of date, but the website clearly implies that the California facility is organic-certified. As best as we can see, that is not likely to be true. 4/7/2009

Pistachio Industry Sets Up Website To Clear Companies reports that the pistachio industry has set up a website at PistachioRecall.Org to keep the world informed of which brands are NOT implicated in the salmonella issue. The website lists 67 brands as “not implicated” in the salmonella issue, we include them here. It is a good effort, but a lot of the consumer confusion revolves around manufactured products. What brands of pistachio ice cream did not buy pistachios from Setton? Perhaps the industry could expand the website to focus on these more problematic manufacturers. 4/7/2009

SPECIAL EDITION III —
Major Retailer, California Health Official and FDA Weigh In On Pistachio Recall

FDA ‘Spokesperson’ Justifies Reasoning Behind Pistachio Recall wished to get an update and clarification from the FDA itself on the state of the Setton Pistachio recall, so we asked Pundit Investigator and Special Projects Editor Mira Slott to find out more from the FDA. The key issue is the FDA desperately wishes to avoid any consideration of is whether its efforts actually help public health in these types of recalls. In a situation such as this it is highly likely that by excluding this one shipper’s product from the market, the FDA is leaving the market to product no safer than the Setton Farms product. Indeed, because there are sub-standard operators in the world, the remaining product may, on average, be less safe. What clearly has to change is that the FDA cannot be prosecutor, judge, jury and executioner. 4/9/2009

Retail Exec Defends Setton And Lambasts FDA’s Actions at the Pundit, we experience the horror of the way the FDA behaves in a very specific manner. We learn that FDA agents have intimidated everyone who could credibly speak up against the way the FDA behaves. The importance of this subject goes well beyond food safety. If the government is free to act in an arbitrary and capricious manner, people start to fear to speak up because they do not want to be the next victims. In a real way freedom of speech is lost. The right to petition the government is lost. Democracy itself is at risk. Here is a conversation we had with one of the most powerful and well-respected retail executives in America. Yet for all the esteem he is held in, he dare not speak out, lest he put his own organization at risk. 4/9/2009

News Flash: Every Plant Handling Raw Pistachios Has Salmonella! (But Roasting Kills The Pathogen) admits that sometimes short-and-sweet can be very revealing. We asked Pundit Investigator and Special Projects Editor Mira Slott to find out what role the State of California is playing in regard to the investigation of Setton Pistachio from Ralph Montano, Spokesperson for the California Department of Public Health. This brief interview brings up three very important points to consider about pistachios, salmonella and the expectations we should have as opposed to what has been spun by the FDA. 4/9/2009

Does FDA Put Its Reputation Above Enhanced Food Safety? debates a question that should be fairly asked: Has the FDA’s aggressive action increased food safety? The answer is that this is unlikely. FDA leaders are either well intentioned but incorrect in their analysis, or they are more concerned with burnishing FDA’s reputation for enhancing food safety than with actually enhancing food safety. We have no issue with FDA’s efforts. But if we did hundreds of tests and super-thorough inspections of all other pistachio facilities, how do we know all of them would be flawless in design and execution and without a pathogen to be found? If the implicated plant is imperfect but less imperfect than its competitors, then restricting its sales, but not those of its competitors, simply makes the food supply more dangerous — not safer. 4/9/2009

Is FDA Guarding Against Ulterior Motives In Accepting Test Results From Unrelated Private Companies? highlights one issue raised by the actions of FDA in the Setton Farm pistachio recall, and that is the appropriateness of FDA’s reliance on tests done by third parties. Yet the use of private company testing for this purpose is very problematic. What steps did the FDA take to ensure this is not one company trying to harm another? We have no reason to believe there is such a problem in this case, but it is easy to see one arising. Competitors, a desire to buy another company’s facilities, love triangles, affairs, personal vendettas, industrial sabotage… any number of things could lead a company to drop a pipette with a pathogen on some product. 4/9/2009

FDA Should Look At Auto Industry When Setting Risk Policy describes how a recent New York Times piece on the safety of “minicars” should prompt many at the FDA to rethink their approach to food safety. Although a report mentioned in this piece titled “Car Size and Weight are Crucial”, is interesting, for our purposes the point is that consumers have to make trade-offs between different values. This is hardly a new insight… The question is why the FDA wants to deny consenting adults the right to make judgments of these sorts in choosing to eat foods with an infinitesimal risk for getting sick, yet we allow people to make such judgments every day in selecting vehicles. 4/17/2009

More Confusion Pours From Press Reports Of Pistachio Recall points out that one of the things that makes following the FDA pronouncements on foodborne pathogens so infuriating is that FDA’s officials tend to say things without clarifying their meaning or significance. Reporters then report what they are told, and it leaves a kind of innuendo without actually saying anything. Jane Zhang over at The Wall Street Journal wrote a short piece titled “Officials Find Salmonella at California Pistachio Plant.” It is such a short piece yet it is also a kind of puzzle. FDA simply doesn’t care about the details. 4/17/2009

Building A Better Understanding Of Salmonella In Pistachios because the recent pistachio recall has left so many open questions, we turned to Linda Harris at the University of California at Davis. We spoke to many experts and all identified her as the person to speak to when it came to tree nuts. She is understandably busy just now, but was kind enough to work with Pundit Investigator and Special Projects Editor Mira Slott to fill in some of the gaps in industry understanding of the intersection between Salmonella and pistachios. We really are in debt to Linda Harris. She has clarified issues that hundreds of articles and countless interactions with government authorities have been unable to clarify. We’ve gathered seven big points from our discussion to know concerning this debacle. 5/1/2009

Pundit’s Mailbag — Do Inspectors Help ‘Prevent’ Foodborne Illness? our piece, Tracing Of Foodborne Illnesses Falls Under A Patchwork of Poorly-run, Under-resourced State Labs, brought an objection from food safety consultant John Manoush, President of Manoush Associates, LLC who took issue with our comment “-hiring inspectors to stand around plants in the hope they will see invisible pathogens is an enormous waste of money.” We confess to have spoken a bit tongue-in-cheek. This being said, the various proposals to increase physical inspections really have little statistical basis to them. One of the things pointed out during the pistachio recall is that the Setton facility was inspected by loads of people. While John makes the point that “the purpose of inspectors is to ensure that preventive programs are in place and are followed” he is speaking of motivation, not that there is any real evidence that more inspectors produce safer food. 6/2/2009

FDA’s Pistachio ‘Warning’: The Other Side Of The Story explains how the fallout from the discovery of salmonella in pistachios has resulted in 664 recalls to date. Though for the first time in memory, we received a “warning” notice from the FDA advising that consumers not eat the product of a specific company. Basically, this appeared to be one of the rare cases in which a company was refusing to issue a recall despite FDA pressure. It is such a rare occurrence that we asked Pundit Investigator and Special Projects Editor Mira Slott to find out more from Jan Caselli, Owner of Orca Distribution West. It is actually a very fascinating story with several key points. 7/1/2009

How To Prepare For An FDA Inspection And Recall reminds that one thing that ties food safety issues together is the involvement of the Food & Drug Administration. What companies are obligated to do, when they ought to comply, what the powers of the FDA actually are, how companies can appeal or object… these are all common questions that we have addressed in various ways at various times over the years. Fortunately, as a result of our piece FDA’s Pistachio ‘Warning’: The Other Side Of The Story we received a letter written by three partners and an associate at one of the world’s largest and most geographically diverse law firms to help members of the industry better understand the FDA and the rights of individuals and companies when dealing with the FDA. 7/14/2009

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