FDA Announces 1st Seizure of Food Subject to FMSA Detention Order
At the request of the Food and Drug Administration, U.S. Marshals seized food products held at the food storage and processing facility of Dominguez Foods of Washington, Inc., in Zillah, Washington, on September 30, 2011. The food had been the subject of a detention order issued by FDA on September 2, 2011, following an FDA inspection of the facility that found evidence of widespread and active rodent and insect infestation.
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Gov’t Says Food Was Adulterated, Asked Marshals to Seize It & Forfeit to U.S.
In a complaint filed Sept. 29, 2011, the U.S. alleged that the detained food was adulterated under the Federal Food, Drug, and Cosmetic Act (FFDCA) due to the conditions in the warehouse documented during FDA’s inspection. The complaint asked the Court to issue a warrant of arrest for the products, which directed the U.S. Marshals to seize the products, and requested that the Court condemn and forfeit the food to the United States. The U.S. District Court for the Eastern District of Washington issued a warrant of arrest for the products the same day.
1st Seizure of Food Subject to Detention Order Under Expanded FSMA Authority
The action represents the first seizure of food subject to an FDA detention order1. Pursuant to the FFDCA, as amended by the Food Safety and Modernization Act (FSMA), FDA may order the detention of food found during an inspection when the investigator has reason to believe that such food is adulterated or misbranded.
Food subject to an FDA detention order may not be transferred from the place at which it is detained until it is released by FDA or the detention order expires. A detention order may remain in place for up to 30 days to allow FDA to take appropriate action under the FFDCA, such as seizure.
1FDA has explained that its authority to detain food administratively under section 304(h) of the Federal Food, Drug, and Cosmetic Act is separate and distinct from its authority to refuse admission of imported food under section 801(a) of that Act (aka import detention), even though refusal under section 801(a) is preceded by an action referred to as "detention and hearing."
(See ITT’s Online Archives 11082419 for summary of FDA stating that the new “teeth” of the FSMA include FDA's expanded administrative detention authority.
See ITT’s Online Archives 11070716 for summary of FDA stating that its new administrative detention authorities were in effect and detention of food was more likely as of July 3.
See ITT’s Online Archives 11050424 and 11050511 for summaries on FDA’s interim final rule on administrative detention of food.)