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Importer Of Recalled Basil
Sheds More Light On
FDA Handling

Our piece, Fresh Basil Recall Brings Additional Concerns About FDA’s Safety Procedures, brought attention from around the world, including from authorities such as Marion Nestle at New York University.

We asked Pundit Investigator and Special Projects Editor Mira Slott to follow up with with Alberto Martinez of Top Line Specialty Produce to find out how things have proceeded with the FDA since the recall:

Q: What has occurred since we last spoke?

A: I thought everything was nice and calm. Turns out the next 10 consecutive basil shipments from that grower with the problem had to be tested and no one told me anything. This grower is on watch by the FDA and any shipments coming from this grower are to be tested. If it takes the FDA six months to get those 10 consecutive shipments, that’s how long the grower would be on the list.

Q: What is your responsibility as the importer?

A: There is the grower in Mexico or wherever product is coming from and the importer Top Line. The customs broker takes care of all the paper work, submits the required information to the government, and follows up with them so we don’t have to worry about it. The broker files the paperwork, product is inspected and gets released. The broker charges us a fee. I deal directly with the growers. To the government, we are the responsible party. We are the company with all the liability; FDA is not talking about punishing the grower or broker. I’m the importer of record.

FDA claims they were supposed to test those shipments. They wanted as an absolute minimum to test at least the three shipments we received after the problem. I already sold those. FDA said those shipments were not released. But the customs broker said they were released by FDA, and the broker received the electronic release with the paper documentation showing they were released.

I’m trying to go down to the broker in the next day or two to personally get a hold of those papers. If this gets any bigger, I need those papers to cover myself. Weren’t those shipments supposed to get tested at the border? Those shipments came in almost two weeks ago. Something is not right here.

The shipment December 4 came across the border for FDA testing and we only received notice by phone from FDA that it was potentially contaminated 15 days later. They never mentioned anything about testing other shipments.

Now 40 days later, we still don’t have anything in writing proving what they said. They said I’m entitled to get a copy. The excuse from the FDA compliance officer is that the holidays came up and he took time off. Now he’s trying to catch up.

Q: Did the compliance officer reveal any more information by phone? Did FDA do further testing on that Dec. 4 shipment? Did they confirm the basil was contaminated, following the verbal message it was potentially contaminated?

A: The report is supposed to show the results were positive. He said they conducted another test to confirm or deny the initial results.

I just found out [January 10] by phone, the following 10 shipments after the one on December 4 were supposed to be tested as well. I’m just learning this. FDA was supposed to take out samples for testing.

Q: To clarify the timeline based on our previous interview: On Dec. 6, you received written notification dated Dec. 5 from FDA that said the following:

“Surveillance Sample(s) collected from this shipment will be tested for the presence of pathogenic microorganisms. Preliminary analytical results may be available within 4 to 9 days following the date of the sample collection. FDA will attempt to provide the importer with preliminary analytical results as soon as they are available. Should a sample be determined to contain a pathogenic microorganism and is violative, the importer will be responsible to initiate a recall of the product.”

You heard back from the FDA by phone some 12 days later that the testing showed potential contamination, but you have yet to receive any confirmation in writing of this finding, or of any further testing or results.

At the same time, you never received any verbal or written communication of any further testing required on other basil shipments from this grower, until January 10 by phone. In addition, you never received instructions from FDA to hold and not to sell any more basil shipments from this grower until the FDA completed its testing and gave the OK?

A: FDA said the customs broker should have known. The grower wasn’t aware of that. The broker wasn’t aware. Everyone is just pointing fingers. The broker said nobody notified them; they didn’t receive any official notification in writing, no notification of any kind.

The people in Mexico are disturbed by this. When something like this happens they destroy the fields. The grower with the problem has been talking to the people on the Mexican side and they haven’t been notified.

Now we are told there will be a fine, as much as three times the value of the shipments. FDA is going to fine Top Line because we sold product and weren’t supposed to. How would I know? I didn’t receive any paper notification about not selling product, or that they were going to test the following 10 shipments and don’t sell product until then. That’s what they said on the phone to me [January 10]. I get calls from all different offices and people at FDA.

The FDA compliance office told me about these possible fines. Sometimes USDA puts red tape labeled ‘don’t use’ on pallets or boxes. I’ve seen that before. He said the FDA doesn’t do that. How does someone know not to sell?

I’ve been waiting now 40 days for FDA test results from the original shipment problem and have talked to six different people. The testing we did all came back negative.

Now that the FDA is not in a holiday mood, I get a call from the compliance officer that a truck with a shipment from this grower crossed the border, and they were not able to get samples for testing, and they need the truck back. How did they allow that truck to go across to San Diego?

Q: This truck had a basil shipment from the grower with the problem?

A: This truck would count as part of the 10 shipments, after several shipments that came across and were distributed, that according to FDA we weren’t supposed to sell. FDA wanted to test 10 consecutive shipments. We haven’t done 10 consecutive shipments since the original problem.

Q: When we spoke on December 20, you said you stopped buying basil from that grower and switched to another grower. So why was there another basil shipment from this grower after the New Year?

A: The reason why that truck had basil is because the grower conducted its own tests and all results were negative. The grower went to a lab in the capital city of Baja, California, collected samples from product still in the field related to the shipment that had the problem, and the results came back negative. The grower thought it was OK to ship. I wasn’t provided with any paperwork from FDA proving positive results, so we figured, give it another try. We stopped shipments for the holidays. We thought the problem was over. Our own testing did test negative and we thought that shipment was OK. That’s the shipment on that truck that went to San Diego.

FDA got a hold of the customs broker, let him know the truck left the border and they weren’t able to get samples for testing.

That truck with the basil in it left on Monday, January 7. The truck came across the border on its way to Los Angeles and made it to north San Diego. We got a call from FDA that they had to grab a sample and the truck took off. The truck turned around from San Diego. The truck driver went back to the border. The FDA took the samples for testing and put the product on hold for sale until they got results back.

The truck driver came to our warehouse the next day with the basil and I got the call from FDA. [Thursday January 10]. Now I have 7,000 pounds of basil in my warehouse going bad because I’m waiting for the test results of this shipment. It’s already four days old now. It will be garbage when the results come back.

The grower isn’t shipping any more basil right now. We continue to buy from that grower for different herbs, where there are no problems, but not basil.

Q: Why are you still buying any product from that grower?

A. What we did was transition over to another grower in a different area. This is the other farm we split the business with. After the incident, our other grower alerted us he was certified by Primus Labs and faxed us the certification. This is the only grower I know growing these herbs and basil with certification from Primus Labs.

He had heard about the basil recall problem. He read your article in the Pundit that pointed out all the issues. He mentioned he was certified from Primus and they do lab tests every month as well as being GAP certified. Now this is our main supplier. We are now relying on him for our basil.

Q: Why not procure your entire product from the Primus-certified grower? Are there supply or cost issues preventing you from doing so?

A: This is all new to me. Now I know this one farm has been getting all these types of certification, different national certifications from the Mexican government, international ones from Primus, and Good Agricultural Practices to at least meet the requirements to go to Canada. This will make us completely rearrange our procurement for next season. I have an entire year to work a program. I’m going to this grower to grow the other herbs we need and more of the basil, until the other growers get their act together.

The reason why the other growers aren’t getting these certifications is that no one is requesting it. There is an investment issue. It costs money to put in brand new packing facilities and upgrade operations. I’ve seen growers with the worst conditions. Getting the certifications definitely brings the costs up, but not necessarily to me.

We get the product on open price. I’ve been working with them so long and they know I’m fair with my returns. But it will impact them on their bottom line. On this side, with big retailers not requesting these tougher standards, growers are at a disadvantage with other guys selling without the certifications and becoming more profitable.

Thanks to this problem, a lot of people are thinking twice where they’re getting their product. Let’s support growers with certifications, reward the growers doing all these investments to make product safer.

Q: Aren’t there many growers that have certifications from companies such as Primus Labs?

A: It’s quite unusual with fresh herbs to find growers with these kinds of certifications. It’s very common on other items, tomatoes, bell peppers, just not herbs.

That is the direction this will take. Retailers definitely need to demand better practices from growers or suppliers. One of the reasons why this grower was inspired to do this Primus certification is that he exports a lot to Canada. Canada is ahead of us; they do require certain certification at retail. In the U.S., no one demands this. The Canadian retailers do. There are also much stricter standards in Europe, and the UK.

It is good for our customers to know we have product from a certified farm. That’s the message we want to send to the marketplace. We’re taking actions to make sure everything is safe.

Q: How would you assess the damage to your reputation and business since the recall?

A: I told the officer in the compliance office that as a result of this, our reputation has been damaged. When the press release went out for the recall, we had the Los Angeles County Health Department showing up in our warehouse like I was a criminal, demanding the list of distributors the basil went out to. I explained it went out 15 days ago and it was in the trash.

I gave him the list with customer information and phone numbers. He started calling all our customers telling them, ‘Don’t buy basil from Top Line because it’s contaminated.’ This is wrong. We are now buying our basil from a grower certified with Primus. We continue to get hassled and investigated. These LA County health people are here looking at every little thing. They were just doing an inspection while I’ve been on the phone with you now and I didn’t even realize it. I’m told there is a light out in one of the coolers and I need to fix it.

Q: Where do you go from here? Do you have a better understanding of FDA protocol or different procedures to follow in order to avoid some of this heartache in the future?

A: I need to know the rules and the protocol system so I can go back to someone when there is a problem. When USDA sees a bug, it sends samples overnight to a lab in Washington D.C. They get results electronically. USDA never lets product leave the airport till they get the results. USDA is doing what they’re supposed to do efficiently. They tell you they found a bug, they overnight it, they determine if there is a problem and keep you informed throughout the process.

FDA protocol is new to me. This is the first time something like this has happened in 14 years of my business. According to the customs broker dealing with these issues for many years, product is supposed to be tested on the border. For any grower that gets on a watch list, every shipment has to be held at the border and FDA is to notify the importer. I assume product has to be tested at the border. When FDA is calling me and asking for product to be tested after the fact, it means they’re not testing at the border.

I learned from talking to my broker that on weekends the FDA doesn’t work on the border. They don’t have staff on the weekends. The border is open but no one is working. According to my broker, there is a door with a window and they slip the importation paperwork through the opening, and someone’s behind the door but they don’t see anyone’s face. The paper comes back a few minutes later. It’s hilarious but at the same time scary because this is food coming into the states.

During the week, various FDA people are walking the docks and inspecting what’s coming in. On weekends, there is only one guy behind the door to receive paperwork and sign off on it. The following day the customs broker goes to an FDA officer, says these are the shipments that came through on the weekend and they get automatically released.

Q: Was the truck that got across the border without the FDA collecting its samples going through on the weekend?

A: The truck got away during the week when there was a full staff. In some ways, that’s even worse. At the end of the line, we’re the ones getting hurt. If the FDA said, don’t sell, I wouldn’t sell. I’m holding the basil in question here in our coolers. It’s not like we have two or three week shelf life. The FDA has to have a process that’s a little faster than this.

It’s been tough these past two weeks. We thought this was over, and here we go again with these shipments. This truck got all the way to north San Diego. What if they weren’t able to get a hold of the truck? Product the FDA thought could be contaminated would have been distributed.

We’re trying to repair some of the damage. If retailers start demanding they are only dealing with companies that have good certifications, it will be better for everyone.

When you talk to Alberto Martinez, you feel he is a victim, in fact twice a victim.

On the one hand, he is a victim of the FDA. In a joint statement, PMA and United Fresh called for mandatory regulation by the FDA. Yet, stories such as Alberto tells us make us question the readiness of the FDA to handle regulation of these perishable products.

  • Why doesn’t he have all the test results from six weeks ago?
  • Why doesn’t the FDA communicate via e-mail and thus put things in writing?
  • How widespread is the staffing problem on weekends?
  • Why is it that people have to guess at their responsibilities?
  • How is it possible that product that is supposed to be held at the border for testing is let into the country?
  • What efforts are being made to speed testing and the delivery of test results so that product loss is minimized?

It seems like our industry representatives in Washington need to have a sit down with the FDA and develop a set of procedures: one contact person, all communication in writing, acceptable time frames for receiving test results, a “Your Rights and Responsibilities” pamphlet for industry members. This is just not right.

We also see Alberto as a victim of his customers. How is it possible that over a year after the spinach outbreak of the fall of 2006, none of Alberto’s domestic customers were demanding any certifications? And on herbs — an item identified by the FDA as high risk.

Alberto basically functions as a marketing agent for the growers in Mexico. He needs to be able to go to those growers and tell them that there will be no market for their product if they don’t get certified.

Even Alberto’s references to Primus is rather vague. has many different programs — everything from Field Audit/GAP to Pesticide Certified to Microbiological Environmental testing. They audit for some buyers’ initiatives, such as Publix, Sysco and CH Robinson. They do organic and BRC. To say a grower is Primus Certified is not enough — maybe they are Primus Certified on pesticides only?

The question is to what standard an entity is certified.

At the various trade associations and seminars, people are always standing up and saying food safety is their Number One priority.

Yet the real life business experience of Alberto Martinez tells us another story — that lots and lots of industry buyers don’t insist on product meeting tough standards.

As long as that is the case, the next outbreak is just a matter of time.

We thank Alberto Martinez and Top Line Specialty Produce for so frankly sharing their experience in dealing with this difficult situation. It really will help the whole trade.

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