By Ricardo Carvajal –
FDA announced its first seizure of a food that was administratively detained pursuant to FDA’s expanded authority under the Food Safety Modernization Act ("FSMA"). FSMA amended the FDC Act to make it easier for FDA to exercise the administrative detention authority that was originally conferred on the agency by the Bioterrorism Act of 2002. Previously, FDA would have needed credible evidence that a food presented a threat of serious adverse health consequences or death to humans or animals. Now, FDA only needs a reason to believe that a food is adulterated or misbranded – a much lower threshold. Administrative detention is not intended to be a stand-alone enforcement tool; rather, it gives FDA a way to temporarily stop the further distribution of a food in commerce while the agency works with the Department of Justice to institute a seizure action.
It is not surprising that the agency chose food warehoused under allegedly insanitary conditions as the first target on which to exercise its expanded authority. The agency has a long history of enforcement actions against such foods. However, prior to FSMA, the type of evidence cited by FDA in this case might not have been sufficient to support the exercise of administrative detention. It will be interesting to see whether the agency chooses to exercise administrative detention in cases that present more novel circumstances.