DIMINISHED CAPACITY: CAN THE FDA ASSURE

THE SAFETY AND SECURITY OF THE NATION’S

FOOD SUPPLY?

HEARINGS

BEFORE THE

SUBCOMMITTEE ON OVERSIGHT AND

INVESTIGATIONS

OF THE

COMMITTEE ON ENERGY AND

COMMERCE

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

APRIL 24, JULY 17, 2007

Serial No. 110–33 Part A

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DIMINISHED CAPACITY: CAN THE FDA ASSURE

THE SAFETY AND SECURITY OF THE NATION’S

FOOD SUPPLY?

HEARINGS

BEFORE THE

SUBCOMMITTEE ON OVERSIGHT AND

INVESTIGATIONS

OF THE

COMMITTEE ON ENERGY AND

COMMERCE

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

APRIL 24, JULY 17, 2007

Serial No. 110–33 Part A

(

Printed for the use of the Committee on Energy and Commerce

energycommerce.house.gov
DIMINISHED CAPACITY: CAN THE FDA ASSURE THE SAFETY AND SECURITY OF THE

NATION’S FOOD SUPPLY
COMMITTEE ON ENERGY AND COMMERCE

JOHN D. DINGELL, Michigan, Chairman

HENRY A. WAXMAN, California

EDWARD J. MARKEY, Massachusetts

RICK BOUCHER, Virginia

EDOLPHUS TOWNS, New York

FRANK PALLONE, JR., New Jersey

BART GORDON, Tennessee

BOBBY L. RUSH, Illinois

ANNA G. ESHOO, California

BART STUPAK, Michigan

ELIOT L. ENGEL, New York

ALBERT R. WYNN, Maryland

GENE GREEN, Texas

DIANA DEGETTE, Colorado

Vice Chairman

LOIS CAPPS, California

MICHAEL F. DOYLE, Pennsylvania

JANE HARMAN, California

TOM ALLEN, Maine

JAN SCHAKOWSKY, Illinois

HILDA L. SOLIS, California

CHARLES A. GONZALEZ, Texas

JAY INSLEE, Washington

TAMMY BALDWIN, Wisconsin

MIKE ROSS, Arkansas

DARLENE HOOLEY, Oregon

ANTHONY D. WEINER, New York

JIM MATHESON, Utah

G.K. BUTTERFIELD, North Carolina

CHARLIE MELANCON, Louisiana

JOHN BARROW, Georgia

BARON P. HILL, Indiana

JOE BARTON, Texas

Ranking Member

RALPH M. HALL, Texas

J. DENNIS HASTERT, Illinois

FRED UPTON, Michigan

CLIFF STEARNS, Florida

NATHAN DEAL, Georgia

ED WHITFIELD, Kentucky

BARBARA CUBIN, Wyoming

JOHN SHIMKUS, Illinois

HEATHER WILSON, New Mexico

JOHN B. SHADEGG, Arizona

CHARLES W. ‘‘CHIP’’ PICKERING,

Mississippi

VITO FOSSELLA, New York

STEVE BUYER, Indiana

GEORGE RADANOVICH, California

JOSEPH R. PITTS, Pennsylvania

MARY BONO, California

GREG WALDEN, Oregon

LEE TERRY, Nebraska

MIKE FERGUSON, New Jersey

MIKE ROGERS, Michigan

SUE WILKINS MYRICK, North Carolina

JOHN SULLIVAN, Oklahoma

TIM MURPHY, Pennsylvania

MICHAEL C. BURGESS, Texas

MARSHA BLACKBURN, Tennessee

PROFESSIONAL STAFF

DENNIS B. FITZGIBBONS, Chief of Staff

GREGG A. ROTHSCHILD, Chief Counsel

SHARON E. DAVIS, Chief Clerk

BUD ALBRIGHT, Minority Staff Director

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

BART STUPAK, Michigan, Chairman

DIANA DeGETTE, Colorado

CHARLIE MELANCON, Louisiana

HENRY A. WAXMAN, California

GENE GREEN, Texas

MIKE DOYLE, Pennsylvania

JAN SCHAKOWSKY, Illinois

JAY INSLEE, Washington

JOHN D. DINGELL, Michigan (ex officio)

ED WHITFIELD, Kentucky

Ranking Member

GREG WALDEN, Oregon

MIKE FERGUSON, New Jersey

TIM MURPHY, Pennsylvania

MICHAEL C. BURGESS, Texas

MARSHA BLACKBURN, Tennessee

JOE BARTON, Texas (ex officio)

(II)
(III)

C O N T E N T S

APRIL 24, 2007

Page

Hon. Bart Stupak, a Representative in Congress from the State of Michigan,

opening statement ................................................................................................ 1

Hon. Ed Whitfield, a Representative in Congress from the Commonwealth

of Kentucky, opening statement ......................................................................... 2

Hon. Diana DeGette, a Representative in Congress from the State of Colorado, opening statement ...................................................................................... 4

Hon. Henry Waxman, a Representative in Congress from the State of California, opening statement ........................................................................................ 6

Hon. Gene Green, a Representative in Congress from the State of Texas,

opening statement ................................................................................................ 7

Hon. Joe Barton, a Representative in Congress from the State of Texas,

opening statement ................................................................................................ 8

Hon. Jan Schakowsky, a Representative in Congress from the State of Illinois, opening statement ....................................................................................... 10

Hon. Michael C. Burgess, a Representative in Congress from the State of

Texas, opening statement .................................................................................... 11

Hon. John D. Dingell, a Representative in Congress from the State of Michigan, opening statement ....................................................................................... 12

Hon. Marsha Blackburn, a Representative in Congress from the State of

Tennessee, opening statement ............................................................................ 15

Hon. Jay Inslee, a Representative in Congress from the State of Washington,

opening statement ................................................................................................ 16

Hon. Tim Murphy, a Representative in Congress from the Commonwealth

of Pennsylvania, opening statement ................................................................... 17

WITNESSES

Michael and Elizabeth Armstrong ......................................................................... 18

Prepared statement .......................................................................................... 19

Terri Marshall .......................................................................................................... 25

Prepared statement .......................................................................................... 27

Gary Pruden ............................................................................................................. 28

Prepared statement .......................................................................................... 30

Lisa Shames, Acting Director, Natural Resources and Environment, U.S.

Government Accountability Office ...................................................................... 50

Prepared statement .......................................................................................... 52

Answers to submitted questions ...................................................................... 134

Anthony DeCarlo, D.V.M., Red Bank Veterinary Hospital, Tinton Falls, NJ .... 63

Prepared statement .......................................................................................... 64

Paul K. Henderson, chief executive officer, Menu Foods, Streetsville, Ontario,

Canada .................................................................................................................. 78

Prepared statement .......................................................................................... 80

Answers to submitted questions ...................................................................... 131

Charles Sweat, president, Natural Selection Foods, San Juan Bautista, CA .... 87

Prepared statement .......................................................................................... 89

David Colo, senior vice president, operations, ConAgra Foods, Incorporated,

Omaha, NE ........................................................................................................... 97

Prepared statement .......................................................................................... 98

Stephen Miller, chief executive officer, ChemNutra, Las Vegas, NV .................. 100

Prepared statement .......................................................................................... 102
Page

IV

SUBMITTED MATERIAL

Hon. Rosa DeLauro, a Representative in Congress from the State of Connecticut, and Hon. Richard Durbin, a Senator from the State of Illinois, submitted statement ........................................................................................................ 131

Letter to California Firms that Grow, Pack, Process, or Ship Fresh and

Fresh-Cut Lettuce, U.S. Food and Drug Administration, November 4, 2005 . 138

‘‘U.S. Food Safety Strained by Imports,’’ Justin Pritchard, Associated Press,

April 23, 2007, submitted by Ms. Schakowsky .................................................. 141

Subcommittee exhibit binder1 ................................................................................ 148

JULY 17, 2007

Hon. Bart Stupak, a Representative in Congress from the State of Michigan,

opening statement ................................................................................................ 359

Hon. Ed Whitfield, a Representative in Congress from the Commonwealth

of Kentucky, opening statement ......................................................................... 362

Hon. Jay Inslee, a Representative in Congress from the State of Washington,

opening statement ................................................................................................ 363

Hon. Joe Barton, a Representative in Congress from the State of Texas,

opening statement ................................................................................................ 364

Hon. Gene Green, a Representative in Congress from the State of Texas,

opening statement ................................................................................................ 366

Hon. Marsha Blackburn, a Representative in Congress from the State of

Tennessee, opening statement ............................................................................ 367

Hon. Jan Schakowsky, a Representative in Congress from the State of Illinois, opening statement ....................................................................................... 368

Hon. Diana DeGette, a Representative in Congress from the State of Colorado, opening statement ...................................................................................... 369

Hon. Henry Waxman, a Representative in Congress from the State of California, opening statement ........................................................................................ 371

Hon. John D. Dingell, a Representative in Congress from the State of Michigan, opening statement ....................................................................................... 373

Hon. Tim Murphy, a Representative in Congress from the Commonwealth

of Pennsylvania, opening statement ................................................................... 375

Michael C. Burgess, a Representative in Congress from the State of Texas,

prepared statement .............................................................................................. 375

WITNESSES

David Nelson, Senior Investigator, Committee on Energy and Commerce,

U.S. House of Representatives ............................................................................ 376

Prepared statement .......................................................................................... 378

Caroline Smith DeWaal, director, Food Safety Center for Science in the Public

Interest, Washington, DC .................................................................................... 413

Prepared statement .......................................................................................... 415

William K. Hubbard, Former Associate Commissioner, Food and Drug Administration, Chapel Hill, NC ................................................................................... 425

Prepared statement .......................................................................................... 426

Carol A. Heppe, Director, Cincinnati District, Food and Drug Administration,

Cincinnati, OH ..................................................................................................... 432

Prepared statement .......................................................................................... 434

B. Belinda Collins, Director, Denver District, Food and Drug Administration .. 438

Prepared statement .......................................................................................... 439

Ann M. Adams, Director, Kansas City District Laboratory, Food and Drug

Administration, Lenexa, KS ................................................................................ 440

Prepared statement .......................................................................................... 441

Richard M. Jacobs, Chemist/Toxic Element Specialist, San Francisco District

Laboratory, Food and Drug Administration, Alameda, CA .............................. 442

Prepared statement .......................................................................................... 444

Charles R. Clavet, microbiologist/IVD specialist, Winchester Engineering and

Analytical Center, Winchester, MA .................................................................... 445

Prepared statement .......................................................................................... 448

Andrew C. von Eschenbach, M.D., Commissioner, Food and Drug Administration, Department of Health and Human Services, Rockville, MD ................... 472

Prepared statement .......................................................................................... 476
Page

V

SUBMITTED MATERIAL

Hon. Richard Durbin, a Senator from the State of Illinois, statement ............... 509

Hon. Ed Perlmutter, a Representative in Congress from the State of Colorado,

statement .............................................................................................................. 511

American Society for Quality, submitted statement ............................................. 513

Michael McGinnis, senior vice president, meat and seafood, Safeway, Inc.,

letter of July 16, 2007 to Messrs. Dingell and Stupak ..................................... 519

Subcommittee exhibit binder2 ................................................................................ 530

1 Exhibits that have been omitted are on file in the committee offices. 2 Ibid.
(1)

DIMINISHED CAPACITY: CAN THE FDA ASSURE THE SAFETY AND SECURITY OF THE

NATION’S FOOD SUPPLY—PART I

TUESDAY, APRIL 24, 2007

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS,

COMMITTEE ON ENERGY AND COMMERCE,

Washington, DC.

The subcommittee met, pursuant to call, at 9:30 a.m., in room

2123, Rayburn House Office Building, Hon. Bart Stupak (chairman) presiding.

Present: Representatives DeGette, Melancon, Waxman, Green,

Doyle, Schakowsky, Inslee, Dingell, Whitfield, Walden, Ferguson,

Murphy, Burgess and Barton.

Staff present: John Sopko, David Nelson, John Arlington, Keith

Barstow, Kyle Chapman, Alan Slobodin, Peter Spencer, Krista Carpenter, and Matthew Johnson.

OPENING STATEMENT OF HON. BART STUPAK, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN

Mr. STUPAK. This hearing will come to order.

Today we have a hearing on Diminished Capacity: Can the FDA

Assure the Safety and Security of the Nation’s Food Supply. Each

Member will be recognized for 5 minutes for their opening statement.

This is the first of two hearings the subcommittee is holding on

the issue of whether the FDA can assure the safety and security

of the Nation’s food supply. In today’s hearing, we will hear from

three people with firsthand experience in dealing with the terrible

illness that food poisoning can induce. Next month, we will hear

from the FDA, which has the main responsibility for ensuring the

safety of our fruits, vegetables, produce and other food sources from

all around the globe.

I am grateful for our first three witnesses and their families for

their heart-wrenching testimony. I know it will be difficult for you

to describe your experiences. But each of you give E. coli, Salmonella and noroviruses a human face, so Americans can understand and see the health hazard to all of us when the Federal

agency in charge does fewer inspections, as more and more food is

imported into this country.

Michael and Elizabeth Armstrong are here with their children,

Isabella, age 5, and Ashley, age 2, both of whom became critically

ill from eating spinach. Worse, the nightmare is not over for them,
2

as Ashley will probably need a kidney transplant as a result of severe kidney damage.

Mr. and Mrs. Armstrong, you and your children have endured

much; and we wish you all the best for your family now and in the

future.

We also have Ms. Terri Marshall, whose mother-in-law, Mora

Lou Marshall, has been hospitalized since January 2 of this year

after eating peanut butter, a source of protein recommended by her

health care provider. Unfortunately, the Peter Pan peanut butter

she ate was contaminated with salmonella.

Our third witness is Mr. Gary Pruden, with his son, Sean. The

Pruden family was on a Thanksgiving trip when they stopped at

Taco Bell; and, unbeknownst to them, the meal included lettuce

contaminated with E. coli. Sean wound up in the hospital as a result.

The terrible food poisoning that continues to plague these families is a small part of a growing problem. The 2006 outbreak of E.

coli in spinach that sickened the Armstrong children was the twentieth outbreak of E. coli in fresh produce from the Salinas Valley

in California since 1995 and second one in the past year. In the

spinach episode, three people died and at least 102 were hospitalized. Another 70 people were hospitalized due to salmonella in peanut butter.

What has the FDA done to prevent food-borne illnesses? It appears the FDA has decided to centralize food safety decisions made

here in Washington, DC, cut back on field inspections and hope

that the food producers and manufacturers will self-police their industry based on voluntary guidelines.

Natural Selections’ president will testify how his company just

began to test all lots of leafy green produce. The result has been

startling. Natural selections has found 35 lots of spinach with E.

coli contamination. Is this the extent of E. coli in natural selection

spinach? Or is it the tip of the iceberg? What about its other

produce? What do other producers find? Do other producers even

test? If Salinas Valley seems to have repeated outbreaks, what has

the FDA done to protect our food coming from this valley?

Not all the companies appearing this morning have been as

forthcoming as Natural Selections. In the case of salmonella poisoning in Peter Pan peanut butter, the actions of ConAgra are

cause for concern. Our investigation shows that ConAgra found salmonella in their peanut butter in 2004 but did not report it to the

FDA, even when the FDA in 2005 requested ConAgra’s records.

Perhaps if the FDA had been more aggressive in learning what

happened at ConAgra or if the FDA had subpoena power, the latter

salmonella poisonings could have been detected, prevented or

maybe even limited.

Finally, we will also hear testimony from two companies involved

in the recent outbreak of pet food contamination. In this case,

wheat gluten imported from China by ChemNutra was contaminated with melamine, an industrial chemical that should not be

anywhere near food of any kind. Menu Foods used the contaminated wheat gluten in producing wet cat and dog food. When reports of sick and dying cats and dogs began to mount, Menu notified the FDA; and now approximately 100 brands of pet food, in-
3

volving more than 5,000 varieties, have been pulled from our store

shelves.

Over the past few days, there have been additional reports of

contaminated rice protein concentrate and corn gluten, used in pet

food. All of the wheat gluten, corn gluten and rice protein were imported from companies in China. There is concern that some of the

rice gluten has been fed to hogs, thereby raising the possibility of

melamine contamination in food destined for human consumption.

Food-borne illnesses and pet food contamination demonstrates

serious flaws in our food safety network. With more and more of

our food, fruits, produce and vegetables being imported, there appears to be less and less Government inspection or oversight and

no enforceable safety and health standards.

Imported fruit from China and other countries does not have to

comply with U.S. health and safety standards. Last week, China

refused to permit FDA inspectors access to the plants that supplied

the suspected contaminated wheat gluten to ChemNutra.

The safety of the food Americans put on their table every night

is more than just a trade issue. It is more than just a public health

issue. Food safety has the potential of becoming a national security

risk, a national security threat. I urge my colleagues to consider

the pet food incident as a wake-up call. The poor pets that died remind me of the canaries brought into the underground mines to

warn miners of imminent danger.

The canary is at our door. I hope these hearings will help alert

the American people, Congress and the administration to the seriousness of this issue. If it is not taken seriously, these kinds of

poisonings can and will happen again. Food poisonings will happen

to you, to me to our children and to our pets. The American people

expect and deserve better from its Government.

With that, I yield back the balance of my time and next turn to

the gentleman from Kentucky, Mr. Whitfield, the ranking member

of the Oversight and Investigations Subcommittee.

Mr. Whitfield, 5 minutes sir.

OPENING STATEMENT OF HON. ED WHITFIELD, A REPRESENTATIVE IN CONGRESS FROM THE COMMONWEALTH OF KENTUCKY

Mr. WHITFIELD. Well, Mr. Chairman, thank you very much. I am

certainly delighted that we are holding this hearing today on this

important topic.

I notice that the Centers for Disease Control has said that food

causes may have accounted for as many as 5,000 deaths and

325,000 hospitalizations each year. We know that the FDA cannot

force a disclosure, cannot force a recall or even a plant closure except in cases of extreme circumstances; and I think that this will

be the beginning of a series of hearings in which we are going to

take a closer look at food safety. I know that back in the 1970s food

safety took up one-half of the budget of FDA, and today it is my

understanding that it is one-fourth.

Now we recognize that sometimes productivity and technology

developments make it unnecessary to spend as much money, but

that is an issue that we also want to look at. I know the FDA will
4

be testifying, I suppose, maybe in May; and certainly it is an issue

that we want to look at very closely.

Today, I want to also thank the Armstrong family for being here

and conveying to this subcommittee their personal experiences in

this issue; and Ms. Terri Marshall, we appreciate her being here,

as well as the Pruden family. And we will have two other panels

of witnesses in addition to that, including representatives from

ConAgra and some of the food companies.

Today, we will also be focusing on the E. coli outbreak in the Salinas Valley which, as the chairman mentioned earlier, caused

three deaths and 102 hospitalizations. We also will be looking at

the salmonella outbreak in peanut butter primarily out of the

ConAgra plant. I can’t remember now if it is out of Georgia or Tennessee. I think that plants has now been closed, but there were 425

people affected with illness in 44 States as a result of that outbreak.

And then all of us are very much concerned about increased imports into this country into our food supply, and it was particularly

disturbing that the Chinese Government or officials would not even

allow FDA to inspect the plant where the wheat gluten was processed.

I know that in today’s paper it says that the Chinese will allow

a U.S. pet food inquiry, so we will have access to their plant. And

that is something that we must demand, that we have access. Because when they are—if they—and I don’t mean to be finger-pointing here, and we want to be sure that we have our facts correct,

but if they are adding melamine, an industrial product, to wheat

gluten and other glutens for the purpose of increasing protein content, then that is something that is quite serious and we have got

to take steps to deal with that. We know that the U.S. does not

have a lot of enforcement action related to imported food items.

So I think all of these issues are vitally important to the American people, and I want to thank the chairman for instigating this

hearing, and we look forward to the testimony from all the witnesses.

Mr. STUPAK. I thank you, Mr. Whitfield.

Next for opening statement, Ms. DeGette.

OPENING STATEMENT OF HON. DIANA DEGETTE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF COLORADO

Ms. DEGETTE. Thank you very much, Mr. Chairman. This is an

important topic, and I commend you for holding this hearing and

continuing your push on rigorous oversight.

Food safety is an issue that we don’t have to think about very

much in the wealthiest country on the planet because we take safe

food for granted. But here is something else that we take for granted in this country, that our Nation’s corporations and public officials are always acting in the best interest of our citizens. Sadly,

that is not always the case, as we have seen in this latest string

of incidents.

Spinach, peanut butter, pet food, normal, ordinary, everyday

items that make us think twice about our daily business. As I see

these two girls here with the spinach, I think about how Moms like
5

me—I also have two girls—are always trying to improve our children’s diets by feeding them things like spinach, which we think

will be good for them. But then we read the recent headlines and

we know that calls into question everything that we thought we

knew.

Today, we are going to hear these heart-wrenching stories. And

I want to take the opportunity to thank these families for having

come today, because your stories are what give perspective to what

we do here in Congress every single day. And although your testimony is difficult to give—not nearly as difficult as your daily

lives—it will help shed light on exactly what happened, how it affects real families, and the real need to make sure it doesn’t happen again. Your courage will not go unnoticed; and, hopefully, your

message won’t either.

Mr. Chairman, we need real reform for our food safety laws.

Some will argue that the recent E. coli in spinach, the salmonella

in peanut butter and the contaminated pet food are isolated incidents. But I don’t see the latest string of incidents as aberrations.

It has become a systemic problem, and it calls for systemic solutions.

I have been arguing for years that our Nation’s food safety laws

are broken. For the last three Congresses, I have introduced legislation that would tighten up our Nation’s food safety regulations;

and for that entire time I could not get a single hearing on these

issues. That is why this hearing is even more important, Mr.

Chairman.

One of my bills would give the FDA and the USDA mandatory

recall authority in event of an outbreak. It absolutely shocks people

when I explain to them that during an outbreak in food-borne illness—like the ones we will hear about today—the Federal Government’s hands are tied when it comes to recalls. We must rely on

the industry to voluntarily recall their products.

We will learn today that the companies involved eventually did

issue recalls. But I would argue—and I am sure the families here

today would—it was far too little, far too late. During the foot dragging, more people got sick. And I think what we need is real Government oversight and Federal food safety laws that have real

teeth in them. We need a mandatory recall bill.

Another bill I have been working on for years is the bill to require unitary reporting systems for meat and poultry so that contaminated lots can be traced through and we can identify where it

came from. These concepts could be examined for other food products as well.

We also need to reform the system before there is an outbreak.

The last Congress starved our food protection agencies for funding.

The FDA has become more and more reliant on industry to police

itself. Inspections are going down as imports are going up. And, unfortunately, the latest string of incidents seems to indicate the

problem is getting worse and not better.

We need to continue our oversight. We need to make progress.

And I think these hearings will have an impact. Just yesterday, for

example, the committee received a letter from ConAgra Foods detailing positive changes to company safety reporting at least as a

result of this committee’s investigation.
6

Sometimes people ask me, why do you have O&I hearings? This

letter from ConAgra is a good reason. Something almost always

changes just the day before we have these hearings.

But Congress needs to act as well. I hope this latest unprecedented series of outbreaks will give us the political will we need

to begin to reform the broken laws so that we can regain some

semblance of order though this country’s food safety.

Again, thank you to the witnesses for appearing today. My

thoughts and prayers are with you as you move forward in this difficult process.

And I yield back, Mr. Chairman.

Mr. STUPAK. I thank the gentlelady for yielding back.

Just note you mention the legislative history, and you go back to

the act of 1997 introduced by Frank Pallone of this committee. Mr.

Brown is now a Senator. The following year, 1998, Mr. Dingell, Mr.

Brown, myself, Mr. Pallone, yourself, Ms. DeGette, Mr. Waxman,

who is here, others on this side of the panel here, have been pushing for food safety food inspections. We even proposed a user fee.

We could never even get a hearing on it. New Congress. There will

be changes.

Next, I go to Mr. Walden from Oregon. Mr. Walden, please, for

5 minutes.

Mr. WALDEN. Mr. Chairman, I am looking forward to hearing

from our witnesses today. I am going to yield on my opening statement and reserve the balance of my time for further questions.

Mr. STUPAK. Next, Mr. Waxman from California for an opening

statement, please.

OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA

Mr. WAXMAN. Thank you, Mr. Chairman Stupak, for holding this

hearing.

As you mentioned, many have tried to change the way the food

safety issues have been handled. We couldn’t even get a hearing.

I found over the years that interest in food safety questions waxes

and wanes. After a crisis, everybody wants to know about it and

do something about it. But, too often, a few minor changes are

made, the system is tweaked one way or the other, and the commitment to meaningful change disappears.

I am hopeful that this Congress will end this cycle. We are at

a critical moment for food safety. The FDA system for overseeing

the safety of our food is all but broken. Outbreaks in fresh produce

have doubled since 1998, we inspect only a tiny fraction of the food

we import, and our food supply is deeply vulnerable to attack. As

a result, over 300,000 people are hospitalized each year; and 5,000

die due to food-borne illnesses.

Well, in addition to the human costs, there are economic costs.

Recent outbreak of E. coli traced back to spinach caused tens of

millions of dollars in financial harm; and these costs, of course, are

magnified by the fact that we can’t then export our food to the rest

of the world without ensuring its safety.

We need to do more than tweak the system in a piecemeal fashion. We need to examine the system as a whole to determine the
7

proper solutions. There are looming questions about overlapping

authorities and wasted resources that we need to explore.

There are some things we ought to do about FDA. There are

three fundamental problems in FDA’s oversight of food safety: inadequate resources, inadequate standards and inadequate enforcement. FDA’s own budget analysis estimated a decline of $135 million for food safety activities from just 2003 to 2006 due to inflation

and increased responsibilities, about a 24 percent budget cut. This,

of course, has led to a decline in staffing levels; and we now find

that these inspections are not adequately addressing even the most

critical problems. FDA records show that the agency inspected the

ConAgra peanut butter plant during the period of apparent contamination, meaning that contaminated product was sold before,

during and after an FDA inspection.

Second, FDA must set clear, enforceable standards for food production, especially for fresh produce. These standards would address the primary sources of danger, such as soil contamination,

unclean water, inadequate worker sanitation. Although FDA has

issued a number of voluntary standards, it is clear that what we

have seen in this year’s, past year’s, outbreaks, this voluntary approach does not work.

It is not often that industry groups stand side by side with the

Government and call for the same thing, stand side by side with

consumers calling for the same thing: FDA issuing enforceable

standards. FDA has the authority to do this now, and I hope they

will act.

And, third, FDA must enforce its own standards. In spite of repeated outbreaks, warning letters from FDA’s food division have

dropped by 45 percent under the Bush administration. FDA can

and must do better. Each outbreak and each food recall has

chipped away at the confidence that the American public has so

long held in the safety of our food supply. We owe it to the consumers, food manufacturers to ensure that this confidence is restored.

It will take getting FDA the increased resources and authority

it needs to do its job, and I am hopeful it will do what it takes to

address this very grave situation. I look forward, Mr. Chairman, to

working with you and our colleagues to get the job done.

I yield back the balance of my time.

Mr. STUPAK. Mr. Green for opening statement, please.

Mr. GREEN. Thank you, Mr. Chairman.

I would like to ask my full opening statement be placed into the

record.

Mr. STUPAK. Without objection, so ordered.

OPENING STATEMENT OF HON. GENE GREEN, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS

Mr. GREEN. The FDA’s effectiveness on this issue is seriously

questioned by recent high-profile contaminations of the food supply

both for humans and pets, and I appreciate our subcommittee’s interest.

According to the Centers for Disease Control, approximately 76

million Americans are affected by food-borne illnesses each year.

More than any segment of our food supply, the contamination of

produce is responsible for these food-borne illnesses. The appear-
8

ance of E. coli in bagged spinach the most recent high-profile, with

three deaths and 206 illnesses, 102 hospitalizations, resulting from

this outbreak. The outbreak of E. coli and spinach offers a textbook

case from which to examine the regulatory framework ensuring the

safety of our food supply.

Unfortunately, this case has only underscored the gaps. The system is fragmented, at best, and needs new tools at its disposal. The

Government Accountability Office agrees and dubbed the country’s

food supply program is high risk. I will repeat that. The GAO, who

all of us depend on their research, agrees and dubbed our country’s

food supply is high risk. I don’t think the average American would

believe that. But when you have the Government Accountability

Office saying it, then something needs to be done.

The bulk of our food safety falls under the jurisdiction of the

FDA, which continues to be responsible for regulating approximately 80 percent of our Nation’s food supply. And after reading

yesterday’s Washington Post, which reported FDA had known for

years about contamination problems in both spinach and peanut

butter, I would like to have the FDA before us today to explain

themselves; and our chairman assures us they will. FDA will appear at later hearings. So I look forward to hearing the FDA’s perspective.

There is no question the food supply gets short shrift at FDA.

They have an enormous job and too little funding and too little authority. Its ability to recall food products is extremely limited, especially dependent on food manufacturers to voluntarily remove food

from supermarket shelves. Too often, FDA actions occur so late

that shelf life of the food product has already expired.

This is inexcusable; and, Mr. Chairman, as a member of the

Health Subcommittee, I hope we will take a serious look at expanding FDA authority in this area. And since you mentioned the Chair

of our Heath Subcommittee is Frank Pallone, who introduced those

earlier bills on the FDA, hopefully our subcommittee will go forward.

The common denominator among the cases of spinach, peanut

butter and pet food contamination is lack of appropriate testing.

What we can and should do is have the appropriate testing mechanism in place to ensure that contaminated food is pulled and does

not make it to our supermarket shelves and into the homes of our

public.

Like my colleagues, I want to thank all of our panel for being

here today but particularly our first panel of witnesses, who are

here to relate how the food safety issue affected them in their daily

lives.

I yield back my time.

Mr. STUPAK. I thank the gentleman for yielding back.

Next, we will turn to ranking member of the full committee, Mr.

Barton of Texas.

OPENING STATEMENT OF HON. JOE BARTON, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS

Mr. BARTON. Thank you, Mr. Chairman. I am pleased to join you

and Mr. Whitfield and Mr. Dingell in this investigation in the safety and security of our food supply.
9

We began the investigation last October into FDA’s food security

projects and whether these efforts were leveraged to prevent or detect outbreaks such as E. coli and spinach. We did gain some

records and information from that inquiry that should be helpful

in this investigation.

This is really a preliminary hearing, since we are still gathering

information and interviewing experts and fact witnesses. The FDA

and other witnesses will be appearing in a hearing on this subject

in a few weeks. I appreciate your interest in moving quickly in this

investigation.

Since we only have partial information at this time, I don’t think

we are in quite as good a position as I would like to be to question

some of today’s witnesses or to assess fully the accuracy and completeness of the answers to some of the questions that we are prepared to ask. Given such limitations—and also since this subcommittee has always tried to be fair—I hope we don’t rush to conclusions on some of the matters based on this hearing by itself.

There is one ongoing matter in which I am prepared to comment,

and that is the reluctance of the Chinese Government to cooperate

in assisting the FDA in investigation of tainted pet food which is

manufactured in China.

Over the past few weeks, pet food manufacturers have recalled

millions of cans pouches and bags of food after finding their products have been contaminated and have caused serious illnesses and

in some cases even deaths in animals that had eaten these pet

foods. The FDA has traced the problem to an industrial ingredient

called melamine in samples of wheat gluten that was imported

from a Chinese firm. In high-enough doses, this substance is believed to be toxic.

A few days ago, it was detected in rice protein concentrate used

in some pet food. FDA is also investigating whether tainted pet

food containing this poisoning has been fed to hogs, possibly bound

for the human food market.

Melamine is used to make plastics and is not edible. In light of

that fact, the FDA is investigating whether it was intentionally

added to the wheat gluten or other ingredients to produce the protein content in order to make the bulk products more valuable.

For the last 2 weeks, the FDA has been attempting to get visas

from China so that its inspectors could join Chinese inspectors at

the company listed as the manufacturer of the suspect wheat gluten. China rejected FDA’s first request and only yesterday approved the second one.

China’s foot dragging in the public health incident is totally unacceptable. Building a great wall of bureaucracy between our experts and their problem isn’t going to make the problem disappear.

American consumers who buy these products have the right to

know that they are safe, and that is why other nations routinely

cooperate with the United States in food safety investigations, including giving USDA, FDA inspectors access to their manufacturing facilities.

The suspicion of intentional contamination is eerily similar to

past incidences in China.

A dozen years ago, 89 children in Haiti died after taking cough

medicine made with—believe it or not—antifreeze that was traced
10

back to China. The world never got an answer from the Chinese

on how this crime occurred.

In an investigation started in 1998, when I was chairman of this

same subcommittee, we found that 155 U.S. citizens were sickened

by impure gentamicin sulfate made by a Chinese firm. We never

got a definitive answer on how this unapproved, impure drug ingredient got into that particular product. Significantly counterfeit animal drug ingredients have been linked to the same Chinese firm

before it moved to the human drug side.

As in the counterfeit drug cases in this pet food investigation, we

are confronted with numerous discrepancies. The Chinese firm listed as the manufacturer of the wheat gluten for food in the U.S. import record told Chinese Government it was exporting its product

not for food purposes but industrial purposes. There is also a question whether the Chinese firm is in fact the actual manufacturer.

Those questions can only be answered with confidence if the FDA

is allowed into China to do the inspection themselves.

My message and I think the message of this subcommittee on a

bipartisan basis to the Chinese Government is pretty straightforward: Cooperate, stop these shenanigans.

I want to thank you, Mr. Chairman, for your cooperation and

your leadership on this issue. I want to welcome all of our witnesses today, and I want to thank the families who have suffered

and come here to share their unfortunate experiences.

With that, I yield back.

Mr. STUPAK. I thank the gentleman.

Next, we will hear from Ms. Schakowsky from Illinois. Fiveminute opening statement, please.

OPENING STATEMENT OF HON. JAN SCHAKOWSKY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS

Ms. SCHAKOWSKY. Thank you, Mr. Chairman, for holding today’s

hearing on food safety. Not only is this a serious public health

issue but it is also a matter of national security to which we should

give our utmost attention.

I want to especially thank the families that are here, the Armstrongs and Marshalls and Prudens for coming and a special welcome to Isabella and Ashley and Sean for being here today.

I am going to cut straight to the chase. I think that in order to

get a handle on the problem we have to follow the recommendation

of the Government accountability office and consolidate Federal

food safety programs.

In February of this year, the GAO deemed Federal oversight of

food safety as high risk to the economy and public health safety.

So I support such legislation as the Safety Food Act sponsored by

Representative DeLauro, which would consolidate all the food safety agencies—we spread it around to too many places—and establish the food safety administration that would bring it all together.

The FSA would be responsible for the creation, administration

and enforcement of our food safety laws which is currently lacking.

When the news of the E. coli contamination of spinach broke out

last year, Representatives DeLauro, DeGette and I called on Chairman Barton to hold a hearing on this bill which has been referred
11

to in our committee. I am very glad that under your leadership,

Chairman Stupak, we are discussing the issue today.

I also want to add my support to Mr. Waxman’s call for increased

oversight right now by the FDA.

We also have to start holding food, including pet food, conglomerates accountable now. For instance, ConAgra’s corporate policy

tries to keep the lid on what they are up to. Employees are told

to never volunteer information and never give more information

than necessary and are even told to hide product codes from the

on-the-ground inspectors.

This vital information that could alert the FDA and consumers

to whether a questionable facility is being used to process food or

whether a questionable supplier is providing ingredient is—it is

vital, and a failure to share this information keeps us in the dark

about what they are doing to the food that makes it to our kitchen

tables.

I wish I could say I was amazed at the incidence of corporate

shenanigans that has been noted in the press and will be revealed

at this hearing today, though I have seen it all before. When I was

a very young mother—it is about 37 years ago—I fought another

effort of food producers to keep us in the dark about the age of our

food. Some of you are old enough to remember that everything was

coded at that at that time—in 1969, 1970—and a group of young

mothers got together and said we want to know how old your food

was. And believe you me it was a battle to get manufacturers and

retailers to begin to freshness date their food. Now, of course, those

dates are ubiquitous.

I also think we need to look further into the lack of inspection

of ingredients to food products that are being imported into the

United States from countries like China.

Because I am short of time, I would like to submit for the record

the AP article, ‘‘U.S. Food Safety Strained by Imports.’’

This article details how food products are not a priority for the

FDA inspections, even as the import of ingredients has increased

by 73 percent over the last 5 years. If someone wanted to attack

the United States through its food supply, we have a frighteningly

easy way for them to do it. It is time that we act to ensure that

our food supply is safe.

Thank you, Mr. Chairman; and I yield back.

Mr. STUPAK. I thank the gentlewoman.

Next, we will hear from gentleman from Texas, Mr. Burgess.

OPENING STATEMENT OF HON. MICHAEL C. BURGESS, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS

Mr. BURGESS. Thank you, Mr. Chairman. Thank you for holding

this hearing today.

America has the safest, least expensive and most abundant food

supply of any country in the world. In the past, whenever I went

to the market to buy food for my family, I never stopped and wondered is it going to be safe to eat? Is it going to make anyone at

home sick? The security of our food supply in my mind has really

never been in question.
12

I still believe that our food supply is generally safe and secure,

but the recent outbreaks of both E. coli and salmonella have caught

the country’s and this committee’s attention.

Today, we will hear troubling stories from the Armstrong family,

the Pruden family and the Marshall family. I thank you all for

being here today and putting a human face on what has been an

astonishing tragedy in this country. I am deeply sorry for the pain

that you have all been through, and I sincerely appreciate your

willingness to come to Congress to tell your story.

Thank you.

In addition to the food safety issue, I am pleased that this committee is also investigating the recent pet food recalls. Like many

of my constituents back home in Texas, I have been struck by the

contamination of pet food and the fact that thousands of beloved

animals have died. The fact that companies mixed a form of plastic

with wheat gluten to manipulate the protein levels in the food is

not only wrong, it is criminal.

As we have all learned during the aftermath of Hurricane

Katrina, Americans view their pets as members of the family; and

to put a pet’s life in danger just to increase the profit line is completely unacceptable.

While I realize that we have only begun our investigation into

this matter this practice must be stopped. Earlier this month, I

sent a letter to both Chairman Stupak and Ranking Member

Whitfield requesting that we allocate an adequate amount of time

on this issue; and I thank the leadership of this committee for

doing so.

I think it is important to remember that there are still many

questions that need to be answered, and today is merely the beginning of the investigation into these troubling circumstances. I do

welcome the companies here to tell their side of the story and what

they have done and are doing and will do to remedy the situation

and see that it never happens again. But we all know that nothing

in the world is ever 100 percent safe. However, I look forward to

hearing what the companies view as their role and responsibility

in this situation.

Many of us in Congress may have a different opinion, but I think

we can all agree that innocent people, innocent animals, should not

have to die because of a mistake, negligence or especially criminally intent on another’s behalf. I look forward to this investigation

and learning what needs to be done so that this does not happen

again.

Thank you, Mr. Chairman, for your indulgence; and I will yield

back my time.

Mr. STUPAK. I thank the gentleman.

Next, turn to the chairman of the full committee, Mr. Dingell, for

an opening statement, please, sir.

OPENING STATEMENT OF HON. JOHN D. DINGELL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN

Mr. DINGELL. Mr. Chairman, thank you; and I thank you for conducting this hearing. I also commend you for the vigor with which

you are proceeding. This is an important hearing on the threats to
13

public health from contaminated food products and, very frankly,

from the inadequacies of the Food and Drug Administration, their

budget, the number of personnel that they have and their competence to carry out their responsibilities.

Every American has reason to worry about pathogens in our food

supply. They sicken 73 million Americans, and they kill 5,000 of us

each year. It is important that we learn of this. Death and illness

could have been prevented by diligence and properly funded regulatory agencies, primarily the Food and Drug Administration. And

this is not limited to foods, nor to cosmetics but also to pharmaceuticals.

I want to begin by thanking our first panel of witnesses, the courageous and patriotic Americans who have come here at their own

expense to recount the personal tragedies that have befallen them

and their families.

I also want to commend my colleagues, Mr. Pallone and Mr. Inslee, for their assistance in these matters.

Now these are not easy matters for our witnesses to discuss. Two

of our witnesses, Elizabeth Armstrong and Gary Pruden, will speak

of the E. coli poisoning that caused grave harm and in one case is

still causing grievous harm to their children because all of these

kids ate their vegetables.

The children who are victims of food contaminations, Isabella,

Ashley and Sean, are also with us today. Terri Marshall will speak

of the terrible infection that her aging mother-in-law has suffered

from salmonella-contaminated peanut butter. These tragedies represent serious problems in our food supply that should and must

be addressed.

We will also hear today from two of the companies that sold

tainted products. And we will hear from two witnesses that give us

even more concern, because the source and breadth of the contaminated wheat, rice and possibly corn products that found its way

into pet foods suggests an even more dangerous breakdown in the

regulatory system that is supposed to protect Americans. These

protein products are pervasive. They are used in all manner of

human food.

The principal seller of the tainted pet food, Menu Foods, tells us

that only the highest grade of wheat gluten was ordered for their

pet products. So these important proteins that are imported by the

ton could easily wind up in our pantries, our restaurants, or snack

food vending machines.

Regardless of whether they are wheat, rice or corn based proteins, they share two important characteristics: First, they were

contaminated deliberately. I will repeat that. They were contaminated deliberately. Second, they came from our trading partners in

China. So far, the evidence suggests that the deliberate contamination was for greed and not as a trial run for terrorist purposes.

But we certainly could look forward to some serious consequences

where it to be the other way around.

The chemical melamine, the component that poisoned the pet

food, fraudulently elevates the measurement of protein in the gluten, thus increasing its market value. While it matters not to the

victims whether they are poisoned for profit or for politics, we must

be particularly concerned that these profiteers have drawn a road
14

map to holes in our regulatory scheme, with serious consequences

to our people.

I recall an episode involving tainted canned mushrooms from

China a few years ago. At that time, the FDA shut down all imports of mushrooms from China until FDA inspectors went there

and approved each and every plant.

We will expect that similar efforts and similar consequences will

obtain as a result of the hearings of this committee today.

Up to yesterday, China would not let our inspectors into the contaminated wheat gluten factories. In fact, they wouldn’t even tell

us where the plants were located, much less to whom they ship.

The response of this administration was simply to shut off imports only from the trading company that shipped the poisoned

product. Chinese wheat gluten continues to pour into this country.

Relying on imperfect testing at the ports, the agency gambles

with the health of Americans so as not to disturb the trading profits of the Chinese.

I will note that the failure of this Government to properly fund

the Food and Drug Administration and see to it that they have the

adequate resources to address their important responsibilities is a

national scandal and has been a concern to this committee for a

number of years.

In a couple weeks, we will note that we will hold a second day

of hearings. At that time, we will have the FDA here to account

for their imperfect stewardship of their public health, and we will

expect them to tell us not only about that but what resources they

have to address these problems and what resources they need to

see to it that they can carry out their proper and very important

mission.

I have watched the Food and Drug Administration chase too

many imports with too few resources for too many years. Whether

the life-threatening product is a counterfeit drug or tainted food,

the FDA lacks enough properly trained, properly motivated personnel to do an increasingly difficult job, particularly at the ports of

entry of imported foods.

Good people in the field continually report how disillusioned they

have become with the management of FDA. Some are resigning.

Some are being driven out. A curious pattern of closure of facilities

of FDA at our ports now goes on and still threatens our food supply

and our other health-related products in a very serious way.

The FDA field management will be before us, as I mentioned, in

a couple of weeks. They have some serious accounting to do regarding the game of roulette they are playing with the lives of Americans, and perhaps they will tell us about how they are being denied

the adequate resources to carry out their proper responsibilities in

protecting the American people.

Thank you, Mr. Chairman.

Mr. STUPAK. I thank the chairman.

Mrs. Blackburn for opening statement please.
15

OPENING STATEMENT OF HON. MARSHA BLACKBURN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TENNESSEE

Mrs. BLACKBURN. Thank you, Mr. Chairman; and I want to

thank you for holding the hearing. I want to thank our witnesses

for their willingness to come before us.

The food safety issue, as you have heard, is a high-priority issue

from a public health standpoint as well as from a national security

issue. And you don’t have to be a scientist. You simply have to be

a concerned citizen or a parent to know that a very real threat exists when a terrorist could easily put some type of toxic chemical

into some product that is moving through the food chain and that

could go about causing a lot of damage before it is detected.

Since September 11, our national sense of vulnerability has

steadily risen; and we have been warned time and again of the vulnerability of our food and water supplies. We are now also facing

up to a less publicized but potentially devastating threat, terrorism

directed at the Nation’s food and agricultural infrastructure; and I

think it is something that we have to face up to and recognize that

it is there. It is a threat that is very real. Derelict poisoning and

deliberate poisoning to any of our food items will undermine confidence in the supplies. It would wreak havoc on the agricultural

sector of this Nation’s economy, which accounts for about a sixth

of our GDP.

Americans are consuming increasing amounts of imported food

and drink, and the demand among U.S. makers for overseas ingredients is constantly increasing. However, according to the FDA, it

only has enough inspectors to check about 1 percent of the 8.9 million imported food shipments that come into the country each year.

One percent is all that gets checked. So we do have to realize this

means we have an increased vulnerability, and it leads to some

questions that we will be asking through this hearing and through

some others.

Is the FDA too large and too bureaucratic to respond? Has it not

made it a priority to respond? And in a post 9/11 world have they

chosen not to shift their priorities?

Not everything is a matter of money. Many things are a matter

of priority and taking the time to restructure to meet the challenges that are before you. Is the FDA capable of restructuring so

that they have the ability to address these concerns? Or do they

choose to turn a blind eye and a deaf ear to the concerns that we

have?

Do we need to apply the standards that we seek for imported

foods and drugs? Does this need to be applied to reimportation of

drugs if we allow reimported drugs into this country?

What is the expected level of corporate, bureaucratic and personal responsibility? How do we make certain we don’t see a new

group of class action lawsuits?

We must seek greater accountability in these questions and in

our Nation’s food and drug supply, and we must expect that all imports that are coming into this country are going to meet our U.S.

safety standards. They are rigorous, but we intend for them to be

met.
16

According to the GAO, our food supply is generally considered to

be safe. We realize that there are vulnerabilities. We look forward

to working with the FDA to address these questions.

And I yield back the balance of my time.

Mr. STUPAK. I thank the gentlelady for yielding.

Mr. Inslee from Washington. Opening statement please.

OPENING STATEMENT OF HON. JAY INSLEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WASHINGTON

Mr. INSLEE. Thank you to my colleagues. I want to thank the

witnesses, who are involved in an act of courage today. We very

much appreciate their stepping forward in a difficult situation.

I want to note our previous experience with meat. We had in the

State of Washington an E. coli outbreak. A local establishment became the subject of national news and national debate on how to

clean up the meat industry, and we were engaged in that in an effort to clean up that industry.

We have had substantial progress. It was not without controversy, it was not without debate, it was not without effort, but

we will note today the cases we are involved in today do not involve the meat industry because there has been substantial

progress made. And that involved mandatory requirements, hazard

point reductions, a whole slew of efforts; and we need to have this

same thing now in another part of the industry.

I want to note as well a constituent of mine, Bill Marner, who

has worked very hard on eradicating food-borne illnesses; and he

was part of the success in the meat industry. I am going to make

his statement a part of my opening statement.

It is clear to me and I think many of my colleagues that we need

to have some much more rigorous food safety standards, and I

want to note four things that I will be introducing legislation I believe with some of my colleagues on in the near future.

First, we have got to have standards that are binding. Voluntary

guidance is clearly a recipe for failure and injury and even death

in our food safety standards.

Quoting the 2007 March guidance from FDA, it says, ‘‘the use of

the word ‘should’ in agency guidance means that something is suggested or recommended but not required.’’

We are not requiring food safety. We need to require food safety,

not make nice, gentle suggestions in this context. It is not an accident that this is the twentieth time in a single decade that we have

had leafy green vegetables involved in damages coming out of one

single county in this country. That is inexcusable. We have got to

have requirements for Americans, not simply suggestions.

Second, we have got to establish hazard point identification programs, as we have done in the meat industry to great success.

When we have adopted protocols like that we have found great improvement in food safety. We have to have the hazard point identification protocols used in this other industry.

Third, we need to treat E. coli and salmonella as adulterants,

with accompanying criminal and civil penalties. It is a step forward

recognizing the severity of damages that we will hear about today.

It is only common sense to do that.
17

And, fourth, and this is perhaps the most obvious, we have to

have mandatory recall authority. To not have mandatory recall authority in the context of these types of severe damages simply beggars belief that we don’t have a mechanism in that regard.

Now, as in the meat industry, there may be opposition to some

of these suggestions. But I think that we should keep in mind we

are going to hear some of the personal tragedies today involved in

this.

But the industry itself has a stake in the ability to stop loss of

confidence in these tremendous products. The spinach outbreak has

cost the industry somewhere between $37 million and $74 million

already.

There is an economic motivation as well as a personal one for us

to have a food safety system that gives Americans confidence in the

industry. They do not have that today. There is some meaningful

things we can do that we know are going to be economically productive. We should take them.

I look forward to our testimony. Thank you.

Mr. STUPAK. I thank the gentleman.

Next, Mr. Murphy from Pennsylvania, opening statement.

OPENING STATEMENT OF HON. TIM MURPHY, A REPRESENTATIVE IN CONGRESS FROM THE COMMONWEALTH OF PENNSYLVANIA

Mr. MURPHY. Thank you very much.

I just wanted to thank you for holding this hearing. It is so important in light of how much illness and how many deaths have occurred with a number of problems with food safety.

But I am reminded of, as part of the time when I was on the

Government Reform Committee, of some of the problems that also

occurred with some of the waste, just redundancy and lack of coordination between the FDA and USDA. And I recall this. There

was 12 different agencies that administered as many as 35 laws in

regard with the Federal food safety program. But it was always

odd to me that no single agency had oversight over everything. Because of this fragmented system, the USDA inspects open-faced

meat sandwiches and frozen pepperoni pizzas, while the FDA inspects closed-faced sandwiches and cheese pizzas.

Somehow in this we have to find ways of more efficient use of

Government money as we go through this. I know there is not

enough inspectors. I know that is part of what we should be hearing about today to find out what we need to do to improve this system. But in context of all as we go through witnesses today I hope

a part of what we hear in improving the system is to make the system far more efficient in ways that we can eliminate the redundancy that is unnecessary, improve the efficiency, where we can let

us know what we need in terms of increasing funding for more employees to do these inspections. And, above all, we will stand up for

the safety of the American public.

Mr. Chairman, I commend you for continuing to push this issue.

Thank you, and I yield back.

Mr. STUPAK. Thank the gentleman for yielding back.

That concludes the opening statements of the members of the

subcommittee. I would like to note that all members of the sub-
18

committee on both sides of the aisle have been here. Not all have

chosen to give an opening statement, but they have all been here.

That is the importance of this issue.

There has been questions about the FDA. We will have FDA in

the next few weeks. We thought it would be wise to use this first

hearing just to lay out the scope of the problem but also to try to

help the FDA in its effort to try to get into China, and I think our

efforts by holding these hearings put pressure on. Now the FDA

will be able to get into China. So when they come to testify in the

next couple of weeks we will give a broader hearing and more in

depth of what the problems are that we face, not only in access to

foreign markets when you have to inspect something like food safety.

So the purpose behind oversight and investigation is not only to

investigate but also to use our oversight role to get Government

agencies and others and corporations to change their behavior.

And, once again, through bipartisan work on this committee, I

think that has happened here.

So let’s call up our first panel to come forward.

Our first panel we have Michael and Elizabeth Armstrong with

their children, Isabella and Ashley; Mr. Gary Pruden and his son,

Sean; and Ms. Terri Marshall.

Would you please come forward, please.

It is the policy of this subcommittee to take all testimony under

oath. Please be advised that the witnesses have the right under the

rules of the House to be advised by counsel during their testimony.

Do any of you wish to be represented by counsel? Ms. Armstrong?

Mr. Armstrong? Ms. Marshall? Mr. Pruden?

[Witnesses sworn.]

Thank you. You may be seated.

Let the record reflect that the witnesses replied in the affirmative. They are now under oath.

We will hear an opening statement on behalf of the Armstrongs;

and Ms. Armstrong or Mr. Armstrong, who would like to give the

opening statement?

STATEMENT OF MICHAEL ARMSTRONG

Mr. ARMSTRONG. So our experience is actually with both girls.

Isabella got sick after eating a salad of spinach. She was sick for

5 days with vomiting and diarrhea. And that was pretty bad. That

was pretty rough. About the same time that she started clearing

up, Ashley had a fever; and she started with the same symptoms.

So we thought it was the same, and we thought she would get over

it.

Two days later, it wasn’t getting better. It was getting worse. We

called her pediatrician, and we went into the hospital. They said

an IV will do the trick, and she will be feeling better.

About 24 hours later, she was again even worse than before. In

fact, she was in the hospital bed banging against the walls almost

like a caged animal. She was inconsolable, trying to pull the IV out

of her arm.

At that point, we realized that there was something much more

wrong with her.
19

At that point, her pediatrician got a consult from an expert and

really at the—because Elizabeth brought it up. She said, have you

tested for E. coli or any other bacteria along those lines? And that

is when she got the consult. And the expert said, oh, that is HUS,

hemolytic uremic syndrome.

Let me tell you why that came to her mind. Two years ago, my

cousin, who had a 2-year-old son, was a missionary in Rumania;

and his son actually had HUS from E. coli. They weren’t able to

get him back into the States for medical care anytime, and he died.

To me, that really gives you a different backdrop here in that the

United States and Rumania, really, when it comes to food safety,

it is not much different.

So, anyway, at that point we went into a special children’s hospital; and she was diagnosed there officially with HUS.

The next week, when we were in intensive care, it was pretty

rough. We really didn’t know if she was going to make it. The doctors couldn’t really tell, of course. They were as optimistic as they

could be at the time. She was on dialysis. She required blood transfusions. Her kidneys had shut down. She had pancreatitis. She had

brain swelling. It is a really nasty syndrome.

She was in intensive care for 3 weeks on dialysis; and at that

point she was well enough to move to the regular ward where she

was attached to, of course, an IV and what we call an octopus,

which was several bags of a fluid for dialysis. She was there for

about another 4 weeks, roughly. At that point, we were able to go

home—on dialysis still.

She is now off the dialysis but requires five medications a day,

and we have to give her a shot once a week, and it is quite likely

she will need a kidney transplant in the next several years.

But she does pretty well. She does real well.

Anything you want to tell them?

Mrs. ARMSTRONG. [Shakes head.]

[The prepared statement of Mr. and Mrs. Armstrong follows:]

TESTIMONY OF MICHAEL AND ELIZABETH ARMSTRONG

ASHLEY’S STORY

Sunday, August 27, 2006 I went to Marsh, as usual, and purchased a bag of Dole

spinach, like I always did. We had it for dinner that night as a raw salad with our

spaghetti and meatballs. Both Isabella, my 5 year old, and Ashley, who was 2, and

I had the spinach. We always worked very hard to make sure our girls ate healthy.

This generally meant lots of fruits and vegetables and very little sugar.

By Saturday, September 2, 2006, Isabella had come down with Colitis from the

spinach. Of course at this point, we just thought she had a viral diarrhea. She had

the diarrhea for almost a week when I finally took her to the doctor. It was on Friday, Sept 8, 2006, and the doctor just said that it was a viral diarrhea and there

was nothing that she could do about it. She just said to keep her hydrated, and to

let the doctor know if she had blood in her stool.

Isabella started feeling better the next day, and we thought we were in the clear.

Then, about mid-day on Saturday, September, 9 Ashley started having diarrhea. We

just thought she caught the same bug that Isa did, and just kept giving her fluids

and keeping an eye on her. She was pretty lethargic that day. She would drink

fluids, but was not really interested in food (which is a shocker for anyone who

knew her!). The next day, Sunday, she seemed to feel a little bit more like herself.

She ate a little more, and she was more interested in playing. We even went to my

sister’s wedding shower, where she played with all of her cousins and seemed to us

like she had got the bug out of her system. By Monday, however, she was feeling

much worse. She was very lethargic, slept a lot and did not want anything to eat

and very little to drink. She still had diarrhea. We went out and got haircuts for
20

the girls that afternoon, but she definitely was not feeling like herself. At this point

she was more lethargic again and wasn’t interesting in playing.

By Tuesday, September 12, 2006, she was getting worse and I knew something

was really wrong. During one of the nearly a dozen diaper changes in a day we were

doing at this point, I noticed she had some blood in her stool. I remembered what

Isa’s doctor had told me and I called and scheduled a sick appointment for Ashley

that day. We met with the doctor and she still felt that it was viral diarrhea and

nothing to worry about, but because I had brought the diaper with me, they tested

it to see if it was in fact blood. The doctor felt that Ashley looked dehydrated and

wanted me to go to their other office in Castleton to get a blood draw to find out

for sure. I took Ashley to the other office, where the nurse there drew her blood

samples and sent them to the lab for analysis. I then took Ashley back home to wait

for the results.

About an hour later I got a call from my doctor telling me that Ashley was in

fact dehydrated and wanted me to take her to Community North hospital. They told

me not to worry, that they would just admit her to get an IV in her and they would

monitor her hydration levels and we would probably be out of there that same night.

So, on Tuesday, September 12, 2006, we checked into Community North and they

hooked her up to an IV to re-hydrate her.

Right after checking in and getting her into her room, the nurses had to come

in and hook up the IV and all of the wires to monitor her with. Also, because of

the diarrhea in her diapers, the nurses could not tell if she was producing any urine

so they inserted a catheter into Ashley to monitor this, as well. So, always having

been a healthy baby, this was Ashley’s first introduction to the world of pain and

needles. She was such a trooper, but how sad to be grateful that God had blessed

you with a cooperative child. How sad that at the tender age of 2, Ashley was about

to learn that she just had to become resigned to being poked, prodded and generally

tortured to get her better. She always had been a good, healthy eater and was

plump with health. Seeing her lying in that hospital bed, she was so unnaturally

skinny and sickly, it was so sad.

It is now late afternoon on Tuesday and Ashley is still having countless diapers

with diarrhea, not producing any urine, and now she has started vomiting. At first

the vomiting was bile, yellow in color. But as the night progressed and it got into

Wednesday, the vomiting started to get darker and darker green. Our Dr did stop

by later that afternoon to see how she was responding. I asked her what else we

should be doing because this did not seem to be helping. I also asked her if she had

tested for E coli. I remember she looked at me strangely for asking, and I don’t remember now exactly what she said, but I think the answer was yes.

By Wednesday, September 13, 2006, the vomit was almost black, she could barely

even sit up by herself, she still was having diarrhea, and that was when I had finally had enough. The IV was not making her better, her vomiting was getting

worse, she was not producing any urine, and to me she looked like she was getting

puffy. I had not seen my doctor since yesterday and I grabbed a nurse and told her

to call her immediately. I told the nurse all of these things and told her she needed

to get my doctor in to see me, now. About 15 minutes later the nurse came back

into the room and told me that my doctor had ordered that Ashley have some labs

run on her. So, the nurses came in drew a few tubes of blood and sent them to the

lab. I don’t remember how long we waited, watching poor little Ashley cry and lie

in her bed, but I remember how small and helpless I felt. We did not know why

at the time, but Ashley was inconsolable. She did not want to be held or even looked

at! This just broke our hearts, because as a parent, you always want to comfort and

take away the pain of your baby, and also because this was so out of character for

little Ash. She always wanted to be held, especially when she was sick. To see her

screaming and banging around in the crib like a caged animal was more than we

could stand. When she was happy and healthy, people often asked us, ‘‘is she always

like that?’’ referring to how smiley and friendly she seemed.

When the nurse came back to tell us about the lab results, I knew something was

wrong. She came in and told us that our Doctor was conferring with someone at

Riley and would call us as soon as she was done. The nurse did not offer any other

explanation, but did say that our Dr would call shortly. When our Dr did call, I

spoke with her first. I don’t remember all that she said, but I remember her asking

if I was still there. I could not speak because I was choking back tears. She told

me that Ashley’s blood tests showed that her kidneys were shutting down. This was

why she was not producing urine and why she was getting puffy. Her pancreas was

also not working properly, which was causing the vomiting. I remember her telling

me that as she was talking with this specialist at Riley, she remembered me asking

her about E coli, and she brought that up with him. Apparently it was that question

that made our situation crystal clear to what was happening to our baby. She men-
21

tioned something about HUS, but she said the specialist at Riley could explain it

better once we got down there. I still do not know how our Dr got in touch with

the person at Riley that she did, but I thank God for His hand in that today. The

specialist she spoke with knew exactly what was causing Ashley’s kidneys to shut

down. As our Dr tried to explain to us what was going on, my brain shut down.

All I could think about was that she said ‘‘dialysis’’ and not knowing exactly what

that meant at the time and how scary it sounded. It was also scary when she said

that the Lifeline ambulance from Riley was en route to take Ashley down there and

that our Dr was transferring our care over to this specialist.

I thank God that she knew enough to call Riley. I thank God that she got a hold

of the specialist at Riley who knew about this rare disease. I thank God that He

made me ask about E coli. And I thank God that He made me take Ashley into

our pediatrician’s office that day to ask about the blood in her stool.

It was Wednesday, September 13, 2006, at about 4:30 pm when the ambulance

arrived at Community North to take Ashley down to Riley. Three paramedics came

into the room with this special gurney just for children and began unhooking her

from her hospital bed and transferring her to the gurney. She looked so small lying

there. We were told that we could not ride in the ambulance with her, so we just

had to stand there while they wheeled our baby away. She was very brave and went

quietly with the strangers as they wheeled her into the ambulance and took the trip

down to Riley.

We followed the ambulance in our car. It was a very quiet ride for my husband

and I, each of us lost in our own thoughts. Each of us was trying to be brave and

tried not breakdown as we worried about what was wrong with our baby. We did

a lot of praying, that was for sure.

When we got to Riley, we went straight to the ER where Ashley was. They were

transferring her from the gurney to her new bed. They had to hook up all of the

monitors all over again in her new bed, and then they had to insert a new catheter.

I had to hold my baby down while they shoved the plastic tubing into her bladder

again. I could do nothing to help relieve the pain and discomfort that they were

causing. She just looked up at me and was probably wondering why her mommy

was letting them hurt her like this.

At this time, Michael had to leave to go home because Isabella was at home with

my mother. He could not wait any longer for the specialist, but I assured him that

I would put Michael on speaker phone when the Dr did arrive.

The renal doctor on call, the one who spoke with our pediatrician, came in to talk

to us (me in person, and Michael on the phone) about what was going on with Ashley. This was the beginning of our education about HUS and all of its ramifications.

He described how in a small percentage of children, E coli can cause Hemolytic

Uremic Syndrome (HUS). He described all of the various implications it can cause

in the body, from the brain, pancreas, kidneys, liver, etc. He explained that HUS

can cause swelling in the brain resulting in mood changes, which was what was

causing Ashley to be so inconsolable and angry. HUS was also affecting Ashley’s

pancreas, which was causing the vomiting, and obviously her kidneys, which were

shutting down. He explained everything that could happen, even death. The main

problem with HUS, he said, was that there was nothing that doctors could do to

prevent it or to treat it once a child had it. The only thing that we could do was

watch what it affected and then treat the symptoms. So, for now, all we could do

was wait and see if her kidneys continued to shut down, and if so, we would need

to put her on dialysis.

After he left and gave us time to digest, my husband and I were just speechless.

We were terrified and did not know if our daughter was going to make it through

the night. We prayed, called relatives, and then I settled in for a sleepless night

in ER, and Michael to spend a scary night at home with Isabella and all of her questions. (Unbeknownst to us, this was to be our first of many of such long nights.)

One thing I remember vividly is Michael telling me that as he was putting Isabella

to bed that night she asked him, ‘‘Daddy, is Ashley going to die?’’ He answered her

with tears in his eyes that, ‘‘No, God is going to keep Ashley safe.’’

The next day, Thursday, September 14, it was decided that Ashley’s kidneys were

not improving and that we were going to need to put her on dialysis to keep her

alive. The type of dialysis that they preferred for HUS kids was peritoneal dialysis,

in which a catheter is inserted into the peritoneal cavity. She was taken in for surgery, where they implanted the catheter, as well as a central line for her IV and

her blood draws. Surgery took an hour, and all we could do was pace the floor and

hope that she would come out of anesthesia ok. We had never before had to deal

with anything like this in our life.

They called us to recovery after her surgery and a parent should never have to

see their child lying semiconscious in a hospital cage, I mean crib. We were told that
22

Ashley would be transferred up to the PICU as soon as a bed opened up. We waited

for 5 hours in recovery. Luckily, I guess, Ashley was so sick that she just slept

through this whole ordeal. Michael and I were not so lucky. We had to stand by

her bedside waiting.

They finally came in and announced that a room had opened up, so Ashley was

wheeled into her new home-away-from-home; a tiny hospital room that could barely

hold her hospital crib, a reclining chair for us to sleep in and all of her dialysis and

medical machinery. It is hard to write all of the emotions and fears that we were

feeling through all of this. It was just surreal.

When we first got to the PICU, because Ashley’s problems stemmed from E coli,

she was in isolation. That meant that anyone coming in and out of her room had

to put on a gown, mask, and gloves. For an entire week, we had to make sure that

she and the rest of the hospital was safe from any possible E coli contamination.

Luckily, since we were living in the room with her, we did not have to wear the

gloves, but all of our relatives did not get to have any skin on skin contact with

Ash the first week. This was very tough on Grandparents who wanted to hold their

little granddaughter’s hand.

Another thing I remember vividly was that Ash was hooked up to so many wires,

plus the IV, plus her dialysis line. I could not hold my child. I went for more than

2 weeks without being able to hold or comfort or rock my baby girl. This was the

first time in the two years since we had her that I did not rock her to sleep. And

then when I was able to pick her up, it was with all of those things attached to

her and I could barely move away from her bed. But it was worth it just to be able

to hold her and feel her little head rest on my shoulder.

The next 6 weeks were somewhat of a blur. It is hard to explain to someone who

has never lived through something like this how time just seems to stop. In the first

few days and weeks we watched Ashley go from being swollen with excess fluid, to

too much fluid being removed and she looked like a skeleton. I remember how Michael would not even let me mention how skinny she looked and how sunken her

eyes were because we were just so terrified of what that might mean. Our lives were

consumed by nurses coming in every 2 hours to check vitals and draw tubes of

blood. Every time Ashley would move in her crib, she would set off her monitor

alarms, so we never got any sleep.

Ashley was on 24 hour dialysis while in the PICU. There was no doubt from any

of our doctors that Ashley had HUS, but because there was nothing else to do but

wait and see if her body got better, one of her specialists decided to run all of the

blood tests he could think of to see if maybe he could find some other cause for her

kidney failure. We think he wanted it to be something else that was treatable instead of just waiting and seeing. All of the tests came back negative. This was definitely HUS, and we would just have to see what would happen. They told us that

most kids with HUS have their kidneys come back in a few weeks. They told us

that they could not estimate when Ashley’s would come back, but they did tell us

that the longer she remained on dialysis, the more worried they became about permanent kidney failure. Again, nothing to do but watch and pray that her kidney

function would return.

Our lives revolved around blood test results, and seeing how much, if any, urine

she produced. We prayed for pee. Any tenth of an ounce was celebrated. It was

maybe a month in before we even saw that much. But, finally, Ashley’s kidneys did

start to pick back up again. They slowly weaned her off of 24 hour dialysis by going

from 6 exchanges with 4 hour dwells, to 4 times a day, the fluid dwelling for 6

hours.

At some point Ashley’s kidneys started picking up a little more to the point where

she could be off of the dialysis machine, and she was put on to a manual form of

dialysis. This was with a contraption called the ‘‘octopus’’ because this is exactly

what it looked like. All of Ashley’s dialysis bags for the day, or a few days, were

placed on this huge IV pole, and she would then be manually filled and drained

every 4 hours. This was another challenge we had to learn to deal with. The good

part was that she was now ‘‘mobile’’. The bad part meant that if we wanted to take

her for a wagon ride, we had to drag her IV pole and this dialysis pole along, too.

This was not a one-man job. That meant that the only time Ash could go for a

‘‘walk’’ was when both of us were there to help. But this was still a blessing. For

the first time in over a month, Ashley was able to get out of her hospital room. This

was the highlight of her day and ours.

Finally we got to the point where her exchanges were stretching out longer and

longer, we could take walks for longer periods of time. I remember the first day that

we actually got to take her outside for the first time in over a month. When it just

got too cold and we had to come back in, I remember how I thought her little heart
23

would break having to go back into her hospital crib. A 2 year old should never have

to be confined to a cage.

And have I mentioned all of the medications this poor little child had to endure?

Because kidneys touch every function of the body, and because hers were not working, they were not doing a lot of their jobs correctly, like being able to clear potassium, or other critical jobs. So, Ash had to take terrible tasting medicines, and still

does. We would have to hold her down while we squeezed this black ooze into her

little mouth. I don’t remember what that medicine was for, but it was awful. There

will be more about current medications later.

When we got to the point where she could be on the 4 exchanges a day, they

transferred us to the regular pediatric unit. At first we were excited about getting

out of the PICU, and avoiding the every 2 hour check-ups by the nurses. We quickly

learned how wonderful we had, in fact, had it. Going to the regular floor meant

sharing a room. We had the horrifying experience of living in a Jerry Springer episode. Our roommate was an eight year old girl, who was actually very sweet. Unfortunately, she had a mother and a sister who were not so considerate.

Our girls have always gone to bed early, and then awoke very early. Ashley would

go to bed about 6:30 or 7 p.m., and then she would wake up about 6 a.m.. Surprisingly we were even able to keep to a close proximity to this schedule in the hospital

up until now. But now, we were living with extremely rude people who were not

only awake until after 11:00 p.m. every night, but they also had countless visitors

and were very loud. Poor little Ashley would finally just pass out at night because

she was so exhausted. And of course, we never got any sleep because of them.

We lived through weeks of that hell. Finally another room opened up and we were

able to move, but again, it was still a shared room, and their schedules were always

different than ours.

Again, if you have never had a seriously ill child, it is hard to understand the

strain that living in a hospital puts on you. You are, of course, worried sick about

whether or not your child will make it through it all, let alone be normal again.

But, there is also the strain of not getting any sleep. They do provide one chair that

extends to be a ‘‘bed’’, but it is hard to sleep on it, especially when nurses come in

every 2 hours, and her monitor alarms go off every hour or so. Then there is the

minor detail of showers. I will say that Riley has the Ronald McDonald house,

which was definitely a blessing. They had shower facilities that parents could use,

so we did enjoy that.

And through all of this we had to balance the fact that we were also the parents

of a 4-year old, who was not old enough to understand where her Mommy and

Daddy were and why they had essentially abandoned her with her Grandparents.

For the 2 months that we lived in the hospital, our 4-year old lived without us. We

missed her so much, but the hospital was no place for her, plus she could not understand what was going on with her sister. We only got to see Isabella for a couple

of hours each week. It was heartbreaking to have to say good bye to her each time

she left again. I have it burned into my memory the sight of her staring out of the

backseat window driving off with tears in her eyes. There is no way of knowing

what affect all of this had on her. I do know that we are still dealing with the after

effects of all of this. She still needs constant reassurance when we are leaving her

that we will in fact be coming back. She is much clingier, and does not want us

to leave her side.

Another aspect that we had to deal with was the fact that both Michael and I

had full time jobs. There was no question that one of us would always be in the

room with Ashley, so it was extremely difficult to balance it all. We had our computers with us, and we were able to work a little bit while Ashley was sleeping, but

in the end both of our boss’s had had enough. The biggest issue this has all had

with respect to our careers, is that we are both relatively young and had plans to

advance our careers. Now, this is not so easy.

When Ashley’s dialysis got the point of 4 exchanges a day, her Doctor’s felt comfortable with us going home. Michael and I went through several weeks of dialysis

training at the hospital. We had to learn about care for the catheter exit site and

how to give her shots several times a week (she requires shots of epogen because

her kidneys do not properly control the production of new red blood cells). We also

learned how to monitor her blood pressure.

But we were finally able to go home and get our family back together. Once at

home, we were able to figure out our new schedule. Dialysis exchanges were done

3 times a day, blood pressure was checked twice a day, her daily medications were

spaced out throughout the day and shots were on Monday, Wednesday and Friday.

We also had to drive down to Riley every week for Renal Clinic. There we would

have to have Ashley’s blood drawn and see the dialysis nurses and the renal specialist.
24

Home dialysis came with several new worries. There was the constant fear of

cleanliness and making sure our home was as germ free as possible, especially during exchanges. Then there was the new one of her blood pressure. Peritoneal dialysis uses fluid in the peritoneal cavity to filter out things that the kidneys normally

would handle. A side effect of this is that the fluid can also be absorbed into the

body. When there is too much fluid in the body, then blood pressure increases. We

had one week where here bp spiked to 170 and we were right back at Riley for a

weekend. That weekend we learned a lot about blood pressure and blood pressure

medication. After that episode we spent a lot of time considering if Ashley seemed

puffy and what dialysis solution we should use.

We were constantly struggling with maintaining her blood pressure with being on

dialysis. We were also struggling with seeing a different renal specialist every week

at clinic, depending on who was on call. We finally called Dr Andreoli, one of her

specialists, and requested we meet with her specifically since she was the expert in

this area. We told her of our frustrations with clinic and the lack of consistent care

we were receiving because each doctor had a different idea of what we should do

with Ashley’s treatment. We discussed the problems we were having keeping Ashley’s blood pressure in check with the dialysis. Dr Andreoli felt that maybe it was

time to consider coming off of dialysis, since it seemed to be doing more harm than

good with respect to her blood pressure. She said that we would just need to do

more labs on Ashley every week as we started to wean her off to make sure her

Creatinine could remain stable.

So, we began taking Ashley for blood draws twice a week to monitor her levels

while we reduced the number of exchanges and then stopped them all together. (Let

me tell you, trying to hold your child down while they stick a needle into her arm

to draw out blood is an extremely painful task to ask of any parent and child.) So,

even though her Creatinine levels are 3 times the normal limit for a child her age,

Dr Andreoli said that did not need to remain on dialysis. She told us that the percentage of her kidneys that were working would learn to take over for the damaged

parts. She told us that this would eventually wear her kidneys out and she will

need a transplant, but she hopes that it won’t be for many more years.

Ashley was on dialysis until the end of December. Even though she is off of dialysis, she will still be on medication the rest of her life. We also have to take her for

blood draws every week to monitor her potassium and other levels. We have found

that another side effect of kidney failure is a very strict dietary restriction of potassium, as well as other minerals. Her potassium levels are too high, so we have to

monitor everything that she eats and drinks and she has to take a very disgusting,

thick medication twice a day to remove the excess in her body since her kidneys

cannot do it for her. So, our once healthy eater is now on an extremely strict diet

that she, and for fairness to her, all of us are now on. Because her kidneys are not

functioning properly, we have to maintain an extremely strict, potassium-limited

diet. And potassium is in everything, literally. We just have to find foods that have

less potassium than others. So, bananas are out, period. Avocados and chocolate are

out. (Remember, this is a 2 year old we are restricting this from). What else? All

leafy greens, melons, potatoes of any kind, dairy, yogurt, nuts, peanut butter, tomatoes and tomato sauce, and pizza to name a few. (Notice that most of these foods

are a small child’s favorites).

So every day, at the time this was written, Ashley takes four different medications orally everyday, and then we have to give her a shot every week. I am sorry,

but parents should never have to hold down a 2-year old and force them to drink

nasty, thick medications that make them gag and want to throw up. Nor should a

parent ever have to hold a child down to stick a needle in their back side to deliver

the necessary medications to make up for something their little body should just

produce naturally. And as I mentioned before, we take her for blood draws every

week, as well.

Ashley’s condition seems stable now. The problem, and the constant cloud that is

always over our heads, is that we don’t know for how long. A kidney transplant

WILL be required. That is a question of when, and not if. Michael and I spend a

lot of time wondering how normal of a life Ashley will be able to lead.

IT is hard to put down in words all of the fears that go through our heads on

a daily basis now. We worry about Ashley and her future. We worry about when

her kidneys are going to stop working for good, and if she will ever be able to get

married and have children of her own one day. Our doctor has told us that the

stress of puberty and pregnancy are serious concerns for Ashley.

We worry about if she will grow normally. Because her kidneys do not function

properly, her growth will always be an issue. We worry about numerous other complications and conditions that are brought about by renal failure. For instance, her

PTH levels have been off lately, which is a measure that her Parathyroid gland not
25

working correctly. Her carbon dioxide levels have also been off, which means that

something with the lungs ‘‘talking’’ to the kidneys aren’t working right either. The

kidneys touch every part of the body, so we now have constant fear and worry in

our lives that we never expected to have.

We worry about what life is going to be like as she grows up and goes to school.

We will always have to pack her a lunch now because she cannot eat most normal

school foods. How is she going to feel while all of her other friends are eating pizza,

and she just has to sit back and watch. We worry about how she will ever be able

to play such sports as basketball, or even softball, because can we really afford for

her to get hit and possibly damage one of her kidneys?

We were a family that enjoyed cooking and eating new foods. We like to try new

flavors and dishes. That part of our lives is over. Ashley just cannot have most

foods. We also like to travel and had planned to take the girls to many places. We

wanted them to experience other cultures. At this point, I don’t see that kind of

travel happening.

Like we mentioned earlier, our careers have no been put on hold. Michael had

begun a serious search that should have resulted in a big career move. This effort

has had to be put on hold indefinitely. Michael and I will always have to weigh the

pros and cons of moving jobs due to Ashley’s now pre-existing medical conditions

and that effect it will have on our insurance policies. We will always have to weigh

job location and whether or not we will be able to have a renal specialist in the area.

All career advancement plans have been put on hold.

We also talk about how we can try and get our lives back on track. A baby sitter

for a night is not a luxury we are really able to enjoy. We are hopeful that this will

be possible in the future, but her medications and general condition make this difficult. We cannot just use a neighborhood babysitter, because of Ashley’s specialized

care she now requires. Vacations are now are harder because we cannot be too far

away from home in case something should happen while we are gone.

The only thing that we can do is focus on living day to day. Unfortunately, giving

multiple medications and shots, and worrying about results of Ashley’s blood tests

are just a part of life now. We are hopeful that medical research will make things

better in her future. We just pray that Ashley’s kidneys can hold out for a few more

years.

Mr. STUPAK. Your full statement is part of the record. It was a

lengthy one, and I know everybody on the committee enjoyed the

opportunity to read it. If you would like to have more time, you

still have more time left, sir.

I am sure members will have questions, but thank you and

thank you for being here.

Ms. Terri Marshall, if you would, please, for an opening statement.

STATEMENT OF TERRI MARSHALL

Ms. MARSHALL. The purpose of my testimony here today is to tell

the story of what happened to my mother-in-law, Mora Lou Marshall, after she ate Peter Pan peanut butter contaminated with the

Tennessee strain of salmonella. Our story is simple, and yet it is

also very complex. It seems as though our lives are segmented into

two time periods. There was life before Peter Pan peanut butter,

and now we have life after Peter Pan peanut butter.

First I will briefly describe our lives before the peanut butter. My

85-year old mother-in-law moved in with our family in November

2006. At that time, Mora Lou was able to do very basic things like

make her bed, shower, dress on her own, prepare her own breakfast. She read the newspaper. She loved flipping through magazines. She went to the beauty shop once a week, looked forward to

that and was also able to ride in a car to go to the doctor or dentist

for her appointments. She also enjoyed walking through the yard,

coming to the table for dinner or even going out for meals or treats.
26

It was not unusual for Mora Lou to help with light household duties for which I was very thankful. She lived in my home; light

dusting, folding clothes and loading the dishwasher. She kept in

touch with her Little Rock friends and family by visiting with them

on the phone or reading cards and letters.

Mora Lou kept a jar of Peter Pan Plus peanut butter by her bedside all the time. On her night stand in the room, she had it there

as a supplemental way to increase her nutrition, with a spoon right

there handy so she could have it. She would eat a spoonful or two

several times a day or night just to supplement her nutrition. The

reality is the very food she thought would improve her health

began to ravage her body.

And on January 2, we entered our life after Peter Pan peanut

butter. Mora Lou had severe vomiting, diarrhea and pain. We actually had to call an ambulance to transport her to the hospital because she was so weak we could not get her into the car. She

couldn’t stand. And that was the last time she was at home.

We first heard the news of the Peter Pan recall in February. I

believe it was February 14. And my husband went to the nursing

home where Mora Lou, his mother, had been living to check her

Peter Pan. You see, she was back in the hospital at that time, so

he had to go to the nursing home where we had to put her to check

her peanut butter. And, yes, our worse fears were realized because

the numbers did match the recall.

And then another fear struck us because we knew she had been

eating this contaminated peanut butter while in the hospital and

at the nursing home. And I’m sure a lot of the medical staff that

were there attending to her could attest to her many requests

throughout the day, ‘‘please get me another spoon so I can eat some

more of my peanut butter.’’

The next week, a representative from the local office of the Department of Health in our parish called with the news that Mora

Lou’s lab report from January 3 testified positive for salmonella

Tennessee. It was then the pieces to the puzzle began to fall into

place. Mora Lou was on a vicious cycle of salmonella poisoning up

until the recall, which was the middle of February.

We are now in a more advanced stage of life after Peter Pan. It

seems Mora Lou has literally lost her life without even physically

dying. She has been either in the hospital or the nursing home

since January 2 with that hospital ambulance ride. She cannot

walk, get out of bed, use the bathroom, shower, read the newspaper, look through her magazines, talk on the telephone, ride in

a car. All those aspects of her former life are gone. Her nutrition

is now supplied from a feeding tube. She can’t swallow even those

pureed foods that they give you or even drink water without aspirating most of the time. And I talked to my husband yesterday.

She’s back at the nursing home from the hospital. She tried to eat

food yesterday, and she cannot keep it down. So more than likely

they’re going to increase her stomach nutrition.

The testimony I’ve given today is a very brief overview of what

our family has experienced this year. We will forever be changed

on how we purchase, prepare and trust whether the food we are

buying is safe for us to eat. I will never eat peanut butter again.

I hate to say that because I love it. And I won’t feed it to any of
27

my family. It would take more time than I’m allowed in this forum

to fully explain our challenges so I will close with this final comment.

The topic for this hearing is Diminished Capacity: Can the FDA

Assure the Safety and Security of the Nation’s Food Supply? And

I would change it to relate personally to our own experience to

read: Mora Lou’s Complete Incapacity: Can Anyone Prevent it from

Happening to Someone Else? Thank you.

[The prepared statement of Ms. Marshall follows:]

TESTIMONY OF TERRI MARSHALL

The purpose of my testimony here today is to tell the story of what happened to

my mother-in-law, Mora Lou Marshall, after she ate Peter Pan peanut butter contaminated with the Tennessee strain of Salmonella.

Our story is a simple one, yet it is also very complex. It seems as though our lives

are now segmented into two time periods: life before the peanut butter and life after

the peanut butter.

First, I will briefly describe our lives before the peanut butter. My 85 year old

mother-in-law moved in with our family in November 2006. At that time, Mora Lou

was able to do very basic things like make her bed, shower and dress on her own,

prepare her breakfast, read the newspaper, or flip through magazines. She went to

the beauty shop once a week, and was able to ride in the car to go to the doctor

or dentist for her appointments.

She also enjoyed walking through the yard, coming to the table for dinner, or even

going out for a meal as a treat. It was not unusual for Mora Lou to help with light

household duties like dusting, folding clothes, and loading the dishwasher. She kept

in touch with her Little Rock friends and family by visiting with them on the phone,

or reading their many cards and letters.

Mora Lou kept a jar of Peter Pan Plus peanut butter on the nightstand in her

room. She would eat a spoonful or two several times during the day or night to supplement her nutrition. The reality is the very food she thought would improve her

health began to ravage her body.

On January 2, 2007, we entered our life after the peanut butter. Mora Lou had

severe vomiting, diarrhea and pain. We called an ambulance to transport her to the

hospital because she was so weak we could not get her in the car. That was the

last time she was at home.

We first heard the news of the Peter Pan recall in mid-February. My husband

went to the nursing home where Mora Lou had been living to check her peanut butter. And yes, our worst fears were realized because the numbers matched the recall.

And then another fear struck us. We knew she had been eating the contaminated

peanut butter while in the hospital and at the nursing home.

The next week a representative from the local office of the Department of Health

called with the news that Mora Lou’s lab report from January 3, 2007, tested positive for Salmonella Tennessee. It was then the pieces to the puzzle began to fall into

place. Mora Lou was on a vicious cycle of salmonella poisoning up until the recall.

We are now in a more advanced stage of life after Peter Pan. It seems Mora Lou

has literally lost her life without physically dying. She has been either hospitalized

or in the nursing home since January 2, 2007. She cannot walk, get out of bed, use

the bathroom, shower, read the newspaper, or talk on the telephone. All aspects of

her former life are gone. Her nutrition is now supplied from a feeding tube. She cannot swallow even pureed foods or water without aspirating most of the time.

The testimony I have given today is a very brief overview of what our entire family has experienced this year. We will forever be changed in how we purchase, prepare and trust whether the food we are buying is safe for us to eat.

It would take more time than I am allowed in this forum to fully explain our challenges, so I will close with one final comment.

The topic for this hearing is ‘‘Diminished Capacity: Can the FDA Assure the Safety and Security of the Nation’s Food Supply?’’ If I could change it to relate to our

personal experience, it would read: ‘‘Mora Lou’s Complete Incapacity: Can anyone

prevent it from happening to someone else?’’

Thank you.

Mr. STUPAK. Thank you, Ms. Marshall. And your full statement

is part of the record. We appreciate your summary of it.
28

Mr. Gary Pruden and Sean.

Mr. Pruden, you’re going to give the testimony.

Mr. GARY PRUDEN. Yes, I am.

Mr. STUPAK. OK. You’re recognized, sir, for 5 minutes.

STATEMENT OF GARY PRUDEN

Mr. GARY PRUDEN. Thank you, Mr. Chairman.

I have the written statement that has been submitted. I will not

go through that in detail, but I would like to highlight four points

from this testimony to the committee this morning.

First of all, my son Sean is 11, and he contracted E. coli from

eating at a Taco Bell in Brenigsville, PA, before the Thanksgiving

break.

The first point I want to make is that it is very difficult to diagnose this in its early stage. The E. coli takes about 4 days to incubate in the human body before it takes effect. In exactly the 4 days

after he ate, the symptoms began.

But the problem is, as a parent, you don’t know what is going

on. The child is vomiting. The child has diarrhea. And we are not

doctors, we are parents, and we just don’t know. And meanwhile,

during this time, the sickness is developing even further.

I want to just make a quick point. Representative DeGette, you

made a good point when you mentioned that we often want our

kids to eat their vegetables. Well, at this particular Taco Bell, I

have 2 younger kids who are very picky eaters, and my wife had

to brush off all the lettuce and all that for them. I must say, it is

one time I am glad that we capitulated to their needs. But Sean

didn’t; he ate lettuce, and he was infected.

For about a week or 2 weeks, Sean was very sick with diarrhea

and vomiting, and occasionally it would get better, but it always resurfaced. And our family doctor, who we visited twice, simply saw

this as a virus of some sort and gave him some shots of Fenegrin

and such and really didn’t know what the diagnosis was.

It got to the point where we had to take him to the emergency

room. And that was prompted when the news reports of E. coli

broke out at Taco Bell. We simply connected the dots and assumed

that this was what he had. And those particular symptoms of

course were the diarrhea and the vomiting. It also includes, your

urine is very brown. I know that because my mother-in-law is a

nurse and called us and asked about that when she heard of these

news breaks. So we assumed at that point he had contracted it.

He was rushed to the Penn State Hershey Medical Center in

Hershey, PA, by an ambulance, admitted and stayed there for

roughly I believe 5 days. There is no treatment for E. coli. I have

learned this. It is simply a matter of waiting it out. And you either

can have dialysis and of course blood transfusions. Fortunately, in

our case, Sean missed dialysis by about 4 hours. The blood work

simply got better. But he was certainly in a very, very bad state

in a hospital bed for 4 or 5 days, and we simply didn’t know what

the outcome would be. Fortunately, he did recover, although we are

not certain what the long-term effects are at this point.

I would like to also point out in my testimony the effect this has

on the family. This whole experience was very exhausting to myself

and my wife. As a businessman, and it was very busy, I had to
29

take time away from my business. And certainly my wife was physically and emotionally exhausted as well. There was one point in

the emergency room when Sean looked at my mother, and she was

in tears because she simply had the guilt of not knowing and what

should she have done. He looked at her and said: Are you OK,

mom? And I thought that was a very striking moment for both of

them.

Finally, I just want to make a few quick comments which is, in

my testimony, regarding public oversight, and I will read directly

from my testimony this morning.

A key element of successful commerce and trade is trust. We

trust that the accountant hired to do our taxes is following the

laws in preparing the tax return. And we trust that pilots are adequately trained to fly a commercial jet. And we trust that our auto

mechanic is going to return our cars in safe conditions. That is also

extended to the trust and food that we order or buy from a grocery

store; that it is edible, and it is safe. Without this trust, commerce

can’t work. And where failure occurs oversight is required.

We are fortunate that Sean has recovered and is back to a normal life of school activities, baseball, friends and constant activities. It is my hope that this testimony this morning will help compel action to provide better controls and oversight of our Government officials and agencies responsible for public food safety. As

consumers and citizens, we should expect and demand this. Thank

you for allowing me to testify before you this morning.

[The prepared statement of Mr. Pruden follows:]
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Mr. STUPAK. Thank you, Mr. Pruden.

Sean, did you want to add anything.

Mr. SEAN PRUDEN. Nope.

Mr. STUPAK. OK. Playing baseball, Jose Reyes, 14 homers and

hit another one last night; is that pretty good?

Mr. SEAN PRUDEN. Yes, very good.

Mr. STUPAK. We begin with questions.

Mrs. Armstrong or Mr. Armstrong, whoever purchased the spinach. I have one here. It is not spinach, but it is the spring mix. And

it says right on here that it is field fresh and ready to eat. Did you

ever think that someone would test it to make sure that it was

good before it went from the field to your dinner table?

Mrs. ARMSTRONG. Well, I felt that if they said that it is ready

to eat, then I assumed that it was safe and that they have done

everything in their power to make it so. I trusted that it was safe.

Mr. STUPAK. Mr. Armstrong.

Mr. ARMSTRONG. In fact, the bag we purchased said it was triple

washed and ready to eat.

Mr. STUPAK. OK. Did you know what triple washed meant? And

you’re right, it does say on here—this one here says completely

washed.

Mr. ARMSTRONG. I think it means nothing actually.

Mrs. ARMSTRONG. Now we know it means nothing.

Mr. STUPAK. Now you know. Hindsight.

Mr. ARMSTRONG. Right.

Mr. STUPAK. Let me ask this question. In your full written testimony you talked quite a bit about how your life has significantly

changed and how Ashley’s life will significantly be changed. There

are many foods now she cannot eat. And the whole family’s diet

has changed, such as chocolate, pizza, other foods kids normally eat

at home and at school. Could you talk a little bit about how this

has changed your eating habits? Not just for fear of being sick, but

how has this illness caused the whole family diet to be off and

what’s your future like as a young growing person?

Mrs. ARMSTRONG. We always enjoyed eating very healthy. We

loved fresh fruits and vegetables. Now we can’t eat them, one, because of Ashley’s illness. We have to watch the high potassium content. But also we just don’t trust that they are safe any more.

There have been no changes made to the way things are processed

or packaged. So there are no guarantees that the food we’re eating

is safe. So we just have no faith that it is safe, so we just choose

not to eat it.

Mr. STUPAK. Let me start with Mr. Pruden, Ms. Marshall and

then we’ll go back to the Armstrongs.

We have Members of Congress here. We are investigating this

thing. We will have FDA here in a couple of weeks. What would

you like us as policymakers, what’s the one thing you would like

to leave with us as policymakers that we should be doing here on

food safety, pet safety, because the next panel has some pet foods,

an incident we have had? This is just from this one valley alone

the 20th outbreak in the last 10 years.

Mr. GARY PRUDEN. I would say in many of the opening remarks,

you hit on what is really key. And that is the needed consistent

oversight and kind of manage that with the funding that is also
41

available. But it seems that these outbreaks occur, and there are

a lot of press releases on them, and people get all up in arms, and

it drops. And then 6 months later, a year later, it is going to happen again. I am here to tell you it will happen again. You will see

it in news reports in a couple weeks maybe, who knows. I think

that I would personally like to see more consistent oversight and

more coordination between departments.

I would also add that is required at the State and county level

as well. I did not see a lot of coordination with the health departments in the State of Pennsylvania on this. There was some big operation in Montgomery County and in Lehigh County where our

outbreak was. I didn’t see coordination. So I think that is the key,

is coordination and consistency.

Mr. STUPAK. Ms. Marshall.

Ms. MARSHALL. I think one of the things that concerned our family is that the January 3 lab report from the hospital said salmonella. I don’t think at that point it said Tennessee, that it was

attached to that. We never heard the words salmonella at all until

February 23 when the Department of Health called my house and

inquired as to whether my mother-in-law was better. And I said,

well, in fact, she’s still in the hospital. And they wanted to know

if anybody in the family was sick. And I still was a bit confused.

And I said, why are you asking these questions? And she said, your

mother-in-law has been diagnosed or the lab report says salmonella

Tennessee. And that was our first time to know. That was some 9,

10 days after the recall that we heard that word. Had we heard

salmonella, not even with the attached Tennessee word with it, the

first week in January, we would have started a method of isolation

to see what food had she eaten that the rest of the family had not

eaten. It would have been so easy because she is the only one in

our house that ate Peter Pan Plus peanut butter. I would have immediately pulled it. She would not have continued to eat it in the

hospital for those periods of the weeks following up until the recall

in the middle of February.

So I guess to answer your question, if there was a way that anyone who tested for salmonella, that it had to be reported somewhere on either a local, State or national level so that then, obviously, we didn’t get the information from our hospital, but it would

be a requirement that just that word itself triggered something

that would then say, this is a problem, we need to figure out what

is contaminated in that Marshall family home that needs to be

pulled. And we could have taken appropriate action. We didn’t pull

it until ConAgra and Peter Pan came out and said, pull it. We

would have pulled it a lot sooner. So I don’t know what could be

done to actually make that happen.

Mr. STUPAK. Notice, then, is what you’re concerned with?

Ms. MARSHALL. Exactly. More immediate notice when that salmonella test comes up on a report.

Mr. STUPAK. Mr. Armstrong.

Mr. ARMSTRONG. You can see, these are my little girls. And I am

their dad, obviously. And it is my job to protect them and my job

to make sure they get a good education; they learn right from

wrong and that I teach them everything I can. But the one thing

I found out is that I can’t protect them from spinach. Only you
42

guys can. You can protect them. I can’t. And I don’t know what the

right answer is, but I know what the wrong answer is. And that

is to keep doing what we are doing when it is not working.

Mr. STUPAK. Thanks. You mentioned your cousin, the unfortunate loss of your cousin from the same thing, HUS. If that would

never have happened, do you think you would have triggered this

thought of E. coli in Ashley’s illness?

Mr. ARMSTRONG. I don’t think so. Who knows what would have

happened there. I don’t think it would have been as positive an

outcome if we hadn’t thought of it.

Mr. STUPAK. Thank you. And thank you for sharing your story

with us.

Mr. Whitfield for questions please.

Mr. WHITFIELD. Thank you, Mr. Chairman. We appreciate the

testimony of all three families very much today. One of the questions that I would like to ask, in this process, and I would just ask

all of you, did you ever have any discussion with or contact with

the Centers for Disease Control or the Food and Drug Administration or local health authorities? Now, I think, Ms. Marshall, you

said you had local health authorities contact you?

Ms. MARSHALL. Yes. Late. It was February 23. The reason I remember that, it is my son’s birthday. And that was the afternoon

that the call came. Again, I said I was confused because I really

didn’t know what the purpose of the call was. And she was mainly

calling to inquire was anyone else in the house sick. And of course,

the sickness from my mother-in-law had been going on since January 2.

Mr. WHITFIELD. And they called because they had received the

medical reports?

Ms. MARSHALL. That’s correct. They had a lab report. I guess

something from the Centers for Disease Control. But I have not

heard from anyone on a national level, no.

Mr. WHITFIELD. Mr. Pruden, what about your family?

Mr. GARY PRUDEN. I reached out to the county health department where this outbreak occurred and was compelled to do that

only from basically the news reports of this outbreak with Taco

Bell in the northeast, particularly in New Jersey and eastern Pennsylvania. So I did reach out to them and explained to them, it

seems to make sense that this is a connection. And I don’t know

that I saw the proper follow-up.

Mr. WHITFIELD. But your mother-in-law is a nurse; is that correct?

Mr. GARY PRUDEN. That’s correct.

Mr. WHITFIELD. And she told you that Taco Bell——

Mr. GARY PRUDEN. That’s correct. She heard it on the news, and

she said, I think at that time, she said, check his urine, and if it

is brown and you got all the symptoms, you better get him to the

hospital.

Mr. WHITFIELD. Mr. And Mrs. Armstrong, it is my understanding

that it took quite a while for them to really diagnose the problem

with your girls; is that correct?

Mrs. ARMSTRONG. It took a while for them to figure out where

the kidney failure was coming from. The blood tests——

Can you talk?
43

Mr. ARMSTRONG. It took quite a while. Like I said, it took several

days to actually diagnose HUS. And after that, it took several days

to figure out what the source might have been. We didn’t know it

was spinach. Kind of went through the list of the past fast foods

and et cetera. But it took probably another week before we started

zeroing in on the spinach.

Mr. WHITFIELD. But this occurred in August of 2006. And I am

assuming this Isabella seems to be doing relatively well. And Ashley is the one that is still having some significant issues; is that

correct?

Mr. ARMSTRONG. That is correct.

Mr. WHITFIELD. And so she is—how often do you take her to the

doctor now?

Mrs. ARMSTRONG. Right now it is every 6 weeks. We have extensive blood work that has to be done.

Mr. WHITFIELD. Well, thank you all very much for taking time

to be with us today, and we genuinely appreciate your testimony.

Mr. STUPAK. Ms. DeGette for questions.

Ms. DEGETTE. Thank you very much, Mr. Chairman.

I think that Ashley and Isabella are both candidates for future

congressional careers, they are so personable.

And Sean, I think that you are going to be doing all the high tech

for some company. So listening to this today, it seems like we have

issues with the reporting on both ends. Listening to all of your personal stories, here you have an 85-year old mother-in-law who

seems to be declining physically, which happens with 85 years old.

Here you have three young children who have what appear to be

viruses which kids get all the time. And it is really hard for parents to detect. And it is also hard for parents to figure out, or children, any families, to figure out, is your family contaminated? I

was thinking about the spinach. And in fact, I don’t buy the

prewashed lettuce. I only buy the prewashed spinach because it

says ‘‘triple washed’’ because I hate to wash spinach. And so you

just don’t know as a parent. And you can’t be expected to be a diagnostician to find some kind of advanced condition. So this is the

thing. Right now, staff tells me, for an outbreak of E. coli, for example, to be detected, what has to happen is the doctor has to

order a stool sample to go to the lab, which then goes to the county

health department, which then goes to the Centers for Disease

Control in Atlanta. And about one out of every 20 or 30 of those

are actually reported. And so the first thing is we have no mandatory reporting by the food processors to the FDA that there’s some

problem. So if ConAgra, for example, with this peanut butter had

found salmonella in that peanut butter, there’s no requirement

that they have to report that to someone.

Ms. Marshall, I would assume you would agree with me that it

would be a good idea if that would happen.

Ms. MARSHALL. If I had known prior to her illness that that salmonella was a problem in that brand of peanut butter, it would

have been a huge red flag that that was what was making her sick.

And possibly we could have prevented her from being totally disabled now.

Ms. DEGETTE. Right. And then the second thing that happened,

when the FDA investigators actually showed up at ConAgra,
44

ConAgra refused to give them their records, which that sounds

really outrageous, too, to me. You are nodding, Ms. Marshall.

Ms. MARSHALL. Well, one thing that is interesting to us, my husband requested medical records for the hospital stay in January.

And he picked them up. And it was just a short stack, which I

thought was a little interesting because she had been there so long.

And I said, flip through there and find the report that says salmonella. It wasn’t there. And he called the hospital, medical

records, and they said, oh, well, here it is right here. So I don’t

know if that has anything to do with anything, but it just was odd

that out of that whole stack of papers the very piece of paper we

wanted to see that we had been told by the local health department

was there was not there. We did eventually get a copy of it.

Ms. DEGETTE. Well, and this is the last question I want to ask

all of you. And I want to start with you, Mr. Pruden. We seem to

be relying—you said and actually everybody said, you put two and

two together when you saw the news accounts of the Taco Bell recall. We seem to be sort of relying on parents or kids, relatives’ deductive reasoning, looking at news accounts and figuring out, oh,

that is what is wrong with my kid. If you hadn’t known about those

news accounts, do you think that Sean’s problem would have been

clearly diagnosed the way it was?

Mr. GARY PRUDEN. I don’t think it would have. I think eventually

we would have continued to go back to our family doctor. But

again, his diagnosis was, it is a virus. I think it is simply common

sense. At some point, you have to connect the dots. And I am afraid

that sometimes you get caught up with some of the bureaucratic

activity with either the State or Federal level, and it doesn’t seem

to go anywhere.

Ms. DEGETTE. A better reporting system, as you said in your testimony, would clearly help families to put two and two together

without just having to rely vaguely on media accounts.

Mr. GARY PRUDEN. Correct. A coordinating reporting strategy.

Ms. DEGETTE. Ms. Marshall, do you agree with that?

Ms. MARSHALL. I do agree. In our case, it would have made the

difference of whether she is going to live or die.

Ms. DEGETTE. What about you, Mr. And Mrs. Armstrong?

Mr. ARMSTRONG. I would agree with that. In fact, we ended up

tracing the SKU number ourselves from our receipt all the way

back through the distribution chain. And we did that all ourselves.

Ms. DEGETTE. Maybe we will give you some high level job at the

FDA. Thank you very much for your testimony.

Mr. STUPAK. Thank you, Ms. DeGette.

Mr. Burgess for questions.

Mr. BURGESS. Thank you, Mr. Chairman. I don’t know that I

have a lot to add over what has already been asked, except my children are now in their 30s, and I would just like to know how you

get girls age 5 and 2 to eat spinach. I never had much success.

Just because of my interest in clinical matters, what did they say

to you was the reason for the delay in onset in your younger

daughter, in Ashley’s case, with the symptoms that she eventually

came down with? There was a 5-day delay between Isabella’s symptoms and Ashley’s symptoms?
45

Mrs. ARMSTRONG. We were told that E. coli can take up to 2

weeks to start showing effects on the body.

Mr. BURGESS. But their time of exposure would have been identical, both eating at the same meal?

Mrs. ARMSTRONG. Yes. It could have been maybe that her immune system was stronger at first. I have no idea.

Mr. BURGESS. Of course the witnesses in front of us today show

us the particular vulnerability. It is not the same bug necessarily

in every case, but individuals who are very young and individuals

who are very old are the most susceptible to these problems.

Ms. Marshall, following your testimony, which State was your

mother in? Of the 50 States, what State?

Ms. MARSHALL. She was in Louisiana. She had moved in with us.

Mr. BURGESS. I confess to you, I don’t know. I know from years

of practicing in Texas, there are a number of illnesses that are reportable conditions. And there is contact information and verification it goes through. Generally those are illnesses that are transmitted sexually. I don’t know whether in your case it would have

made a difference had the State had a reporting mechanism in

place. Your story is the fact that she was continually fed the product that was causing the problem; I’ll just tell you from a practitioner’s standpoint, I can’t imagine anything worse. It is tough

enough when everybody else in the community has viral

gastroenteritis, and the child with toxigenic E. coli comes in. Here

in Washington, before I got here, the anthrax outbreak where the

information was not disseminated quickly enough and the emergency room doctor missed the diagnosis on a gentleman from the

Post Office who eventually died of that disease. And those are tragic terrible occurrences. But as bad as those are, they don’t even

compare with setting the jar of peanut butter by the hospital bed

and continuing to spoon the poison into the mouth of the patient

you are trying to get better.

Ms. MARSHALL. It was horrible. When my husband went to the

nursing home to pull her jars, one was almost completely eaten,

and one was not opened. And the reason that she was not there

to see him pick up her peanut butter from the nursing home, she

had to be taken back to the hospital. They had found her unresponsive in her room.

Mr. BURGESS. And were those products themselves tested in the

confirmation that the salmonella was present in those?

Ms. MARSHALL. They were not. That was prior to the call from

the Department of Health. So we did what they said to do in the

media, take your peanut butter back to the grocery store where you

bought it. And we did have them—we had to sign a receipt that

we returned it. But because the Centers for Disease Control had

a report that said salmonella Tennessee, she is one of the 400 that

has been identified as having that. But, no, we did not have the

product. We did what the media told us to do. We trusted what we

were hearing in the news; take it back, throw it away. If you want

to throw it away, here’s how to do it. Because we never connected

that that is why she was sick, didn’t think it was an issue.

Mr. BURGESS. Well, this is of course a process that continues to

improve. Mr. Inslee mentioned the difficulties that occurred with E.

coli and ground beef back in 1992 and 1993, and those were tragic
46

occurrences. Different handling of the product now has resulted.

We don’t hear of those cases any longer. And I suspect there will

be some further improvements. There of course was the story with

the strawberries out of Mexico, and I don’t remember the year,

1995 or 1996, with cryptosporidium on them. The microbes that

perplex us as humans, there is no end to their creativity in the

ways that they find their way into our environment. I think the ongoing work of this committee, to ensure that when problems are developed, and perhaps even preventing some problems that might

occur in the future, has to be our goal.

But as I said in my opening statement, we are never going to live

in a world that is 100 percent safe. And it is incumbent upon all

of us to be vigilant. That is why I really appreciate you guys sharing your stories with us today, because by doing so, you are going

to alert families across the country of things that might not have

come up in the course of their normal conversations at home.

Thank you, Mr. Chairman. I yield back.

Mr. STUPAK. Next. Ms. Schakowsky for 5 minutes for questions.

Ms. SCHAKOWSKY. Thank you. I agree with Dr. Burgess that we

are never going to make the world completely safe. But a friend of

mine, Nancy Donley’s son, died in 1993 from that ground beef E.

coli presence and created an organization at that time, Safe Tables

Our Priority, STOP, and the idea was that there are actually

things that we can do. And you have pointed up some things today

I think that beg for addressing. Ms. DeGette talked about mandatory recalls. At the time, Nancy Donley was talking about not voluntary recalls, but voluntary recalls. And she was working with

our Senator, Dick Durbin from Illinois, on creating a central food

safety agency that would consolidate all of the different parts. So

we don’t have to worry, well, meat, is it under USDA or is it under

the FDA or Interior Department, all these different agencies? And

the timeliness of the reporting is definitely an issue.

But I also want to tell you that ConAgra, who made the Peter

Pan peanut butter, has actually—and we have the documents, our

staff has done a good job—has instructed in their manual, instructed employees, quote, to answer only to direct questions—this

is for FDA inspectors—only to direct questions. Never volunteer information or elaborate on answers beyond basic questions. And it

says, quote, as a rule of thumb, it can be stated that the inspector

will generally request to see more than is authorized by law.

And then a really troubling procedure, which I intend to ask

them about later, it states, I am quoting from their own reporting,

FDA inspectors are generally not, capitalized and underlined, entitled to the following: If the inspector insists on any of the following

and he is not claiming to be acting under the authority of the Bioterrorism Act, ask that he direct a written request to the corporate

office in Irvine.

And what are those things? Codes, which I know you had to

work a long time to try to discover. It says: However, we do supply

copies of all our codes to FDA regional officers, and inspectors

should be referred to their regional office to obtain a copy. Records:

This includes quality control records, examination records, warehouse records, production records, consumer complaint records,

plant locations, distribution center locations, product formulae,
47

product specifications, photographs, except State inspections in

California, Wisconsin, names of suppliers. I am going to ask them

if that is a correct reading of their instructions, but it sure sounds

to me like there is an effort to hide information from those who

would get it. I just wondered if you had any comments or any other

suggestions of obvious holes that made your loved ones, made you,

Sean, ill?

Mr. GARY PRUDEN. It is easy in hindsight to look back and try

to find those holes. I don’t know what could have been done to prevent this. Again, I go back to the fact that you have a situation

that to the average American citizen looks pretty suspicious. I have

an outbreak in a county here. I have one here, and he happened

to be at a Taco Bell in a county right next to it, but none of those

Taco Bells were shut down. And it was confirmed that he had it.

I don’t know that——

Ms. SCHAKOWSKY. Because it was in the neighboring county?

Mr. GARY PRUDEN. Yes, I believe that to be the case. I don’t

know that for sure. But, again, when I explained the circumstances

to the county health department I said, you realize you got these

in Montgomery County, which is just south of Lehigh County and

over in New Jersey?

Ms. SCHAKOWSKY. And you didn’t have to report it, right?

Mr. GARY PRUDEN. No. That is the point, I did not have to but

felt compelled to do that.

Ms. SCHAKOWSKY. Well, I just think this has been such valuable

testimony, and I really want to thank you and wish all of you the

best. I know that there are ongoing issues that you are going to

have to deal with. And I am so sorry about your mother-in-law,

which sounds like this is not necessarily reversible. So I thank you

very much, all of you.

Mr. STUPAK. I thank the gentlelady.

Mr. Burgess and also Ms. Schakowsky brought up the meat situation. Last year we had a situation on the Floor that actually went

to a vote where the FDA has allowed manufacturers to put carbon

monoxide into meat to extend the shelf life and to make it look

fresher and redder so consumers would buy it, because that is what

we base our appearance upon. It looks like a nice fresh looking

piece of meat. But you extend the shelf life which then runs the

threat of greater exposure to E. coli if not properly taken care of.

So the FDA seems to be going backwards allowing more things that

are questionable on a market shelf longer with things like carbon

monoxide. Unfortunately, we ran an amendment to try to stop that

from happening, and we lost on sort of a party line vote.

So there has been a lot going on in food safety and that is why

your testimony is so important to bring this home to us.

Mrs. Blackburn for questions please.

Mrs. BLACKBURN. Thank you, Mr. Chairman. I am going to be

very brief because our witnesses have been so incredibly patient,

and we do appreciate so much of what they have had to say. I

know last October I think it was, we sent a letter to the FDA to

begin a conversation looking at the safety and with concerns about

the safety of our Nation’s food supply. I think that this points out

when we need to do it. It also points out a couple of other things
48

that, Mr. Chairman, I hope that we will continue to consider as we

move forward in our work.

Number 1 is the lack of a reporting process for consumers and

also for the industry. We don’t have a standardized process that we

follow or expected steps that we would follow.

The other is for consumer education and awareness. And this is

something last fall that we talked about some as we looked at food

safety and the expectations of that.

So to our witnesses, I thank you for your patience and your willingness to be with us this morning. We hope that everyone will see

a recovery and that there will be no long-term or ill effects. And

again, we thank you for your testimony. And with that, I am going

to yield back so that we can continue with our hearing.

Mr. STUPAK. Thank you.

Mr. Inslee for questions please, 5 minutes.

Mr. INSLEE. Mr. Armstrong, I just want to tell you, as one father

to another, we discovered a new thing today, that the one thing

about E. coli, it could lead to irresistible cuteness, too, I can tell

you that. That is the one bright side of this whole thing.

The way I look at this, and I think, Mr. Armstrong, you said with

great eloquence, essentially Congress is in loco parentis. We have

got to be the parents in a sense for our kids in our food steps. And

I appreciate you saying it that way.

I will be working on a bill that its thrust is to prevent the contamination from starting in the first place. We’ve talked a lot about

notification after the contamination gets out there which are important things. But I want to be focusing on preventing the contamination from getting into the food chain in the first instance. I think

you may have heard me talking about it; there are four things we

need. We need to make sure these things are enforceable standards, not just wish lists to make sure this contamination does not

occur. We’ve got to make sure the industry adopts what the meat

industry did, which is to identify the hazard points and then reduce and eliminate them. We have got to prevent this adulteration

and make sure we have civil and criminal penalties for it. Fourth,

we have to have mandatory recall authority.

Now, this won’t surprise you that sometimes when you propose

things like this the industry doesn’t like to kind of, quote, be told

what to do. But I think these are some reasonable proposals. And

I just would invite your comment about what you think we ought

to, if the industry resists this, what should we tell them. What

would be your response to their assertion that if this costs them

some money, that these are things they shouldn’t be required to

do?

Mr. GARY PRUDEN. I certainly understand that that would be a

natural reaction from industry. Though I think that in the longterm, any business is better served by partnering in situations like

this to prevent situations up front before they happen. Public companies or private companies have much more responsibility today

than just broad profits and growth. It is a more broad range. There

are a lot of tentacles. And I think there has to be some education

and awareness to many companies that you are better served in

the public by working with agencies to prevent up front these

things from happening. There can be a lot of good out of that. And
49

yes it is costly, but certainly the public image of your company will

be enhanced for the long term.

Mr. INSLEE. Mr. Armstrong, did you want to add something?

Mr. ARMSTRONG. Yes. Actually, prevention I think has got to be

the No. 1 priority. I think we heard here today a lot about information, however, after the fact. After the fact, I think, is important

because the measurement of what is going on, the information getting out, in my opinion is a very strong argument for prevention.

Because if the truth is in fact told, if information is available, I

don’t know how these industries can be profitable if nobody is going

to buy their product. If the information was available, I don’t think

anybody would buy their product.

Mr. INSLEE. I want to give you confidence. I think something will

come of your efforts today. I have seen that in the meat industry,

where people stood up and were counted and really helped clean

up that industry. And I know you have been working with Mr.

Marler, who has worked with the meat industry to adopt some of

these measures that reduce the incidence of people being poisoned

like this. I just want to you give you some confidence that your

coming here today, I hope, will result in some good things. We have

seen it in meat. Now we need to extend it further. So thanks for

your work. Take care.

Mr. STUPAK. Mr. Armstrong, if I may, you said you tracked your

package all the way back; right, your spinach?

Mr. ARMSTRONG. Right.

Mr. STUPAK. And it was Dole brand; right?

Mr. ARMSTRONG. Yes.

Mr. STUPAK. I’m taking a look at this one here that we purchased in this area last night. And again, this is spring mix. But

it says on the back, distributed Salinas, CA, product of USA and

Mexico, processed in USA. Now, did you track yours back to Salinas Valley, your spinach?

Mr. ARMSTRONG. What we did is we tracked our spinach back to

the same SKU number. And that batch had been tested positive for

E. coli. So I think it was from Salinas Valley, but that is how we

were able to trace it back.

Mr. STUPAK. Salinas Valley is California, and you live where?

Mr. ARMSTRONG. Indianapolis, Indiana.

Mr. STUPAK. Mr. Pruden, did anyone ever tell you where the lettuce came from, which part of the country or world?

Mr. GARY PRUDEN. No. It was only from news reports, it probably came from southern California through a distributor.

Mr. STUPAK. And that was purchased in Pennsylvania?

Mr. GARY PRUDEN. Correct.

Mr. STUPAK. And the best you know from news reports, it came

from California?

Mr. GARY PRUDEN. That’s correct.

Mr. STUPAK. Of course, Ms. Marshall, we know yours came from

Georgia?

Ms. MARSHALL. That’s correct.

Mr. STUPAK. Any other members have any further questions before we let this panel go?

On behalf of the full committee, and members have been in and

out because we meet with constituents, we have other hearings. Ac-
50

tually there is a Telecommunications Internet Subcommittee hearing I am supposed to be at, but this hearing is a little bit more important, so Members are back and forth. But we appreciate your

testimony. Your full statements are part of our record. Thank you

again for putting a human face on this illness that Americans face

each and every day. Thank you for being here. We will dismiss this

panel.

Mr. STUPAK. Our second panel, if they would come forward,

please, is Dr. Anthony DeCarlo of Red Bank Veterinary Hospital,

and also Ms. Lisa Shames, acting director of the Natural Resources

Environment at the Government Accountability Office, GAO.

It is a policy of this subcommittee to take all testimony under

oath. Please be advised that witnesses have the right under rules

of the House to be advised by counsel during their testimony.

Dr. DeCarlo and Ms. Shames, do you have counsel with you

today for today’s testimony? You both indicate not. I would ask you

to please rise, raise your right hand and take the oath.

[Witnesses sworn.]

Let the record reflect witnesses replied in the affirmative. You

are now under oath. We will now have a 5-minute opening statements.

Ms. Shames, please

STATEMENT OF LISA SHAMES, ACTING DIRECTOR, NATURAL

RESOURCES AND ENVIRONMENT, U.S. GOVERNMENT ACCOUNTABILITY OFFICE

Ms. SHAMES. Members of the subcommittee, I am pleased to be

here today as part of your oversight of the safety and security of

the Nation’s food supply. Let me state at the outset that while the

food supply is generally considered to be safe, the recent outbreaks

of E. coli in spinach, salmonella in peanut butter, along with the

contamination in pet food underscores the risks posed by accidental

food contamination.

Each year, as we’ve already heard, the Centers for Disease Control and Prevention reports that about 76 million people contract

a foodborne illness; 325,000 people require hospitalization; and

5,000 people die. As the experiences we heard shared this morning,

it gives us a personal face to these Government statistics.

This morning I would like to focus on two key points. First, GAO

designated food safety on its high-risk list because of the Federal

Government’s inconsistent oversight, ineffective coordination and

inefficient use of resources. The Federal Government’s oversight is

fragmented; 15 agencies collectively administer over 30 laws related to food safety. Further, the Federal Government’s resources

spent on food inspections do not align with the risks of food contamination. For example, FDA is responsible for regulating about

80 percent of the food supply, but accounts for about 20 percent of

food inspection resources; whereas USDA, the Department of Agriculture, is responsible for regulating about 20 percent of the food

supply but receives the majority of food inspection resources.

To address this fragmentation, we are calling for a fundamental

reexamination of the Federal oversight of food safety. To this end,

we have recommended comprehensive uniform and risk-based legislation, a blue-ribbon panel to study alternative organizational
51

structures and a reconvened Council on Food Safety to facilitate a

Government wide approach.

Second, limitations in Federal agency’s recall programs heighten

the risk that unsafe food will reach consumers. Food recalls are

voluntary. And both FDA and USDA do not have authority to issue

a mandatory recall order. The exception is FDA’s authority to require a recall for infant formula. In contrast other Federal agencies, such as the Consumer Product Safety Commission and the

National Highway Traffic Safety Administration, have authority to

require a company to notify the agency when it has distributed a

potentially unsafe product, to order a recall, to establish recall requirements and to impose monetary penalties if a company does

not cooperate.

Even within the context of their limited recall authority, we reported in October 2004 that FDA and USDA could have done a better job in carrying out their food recall programs. Specifically, at

that time, USDA and FDA did not know how promptly and completely companies were carrying out the recalls. It did not promptly

verify that recalls had reached all segments of the distribution

chain and used procedures such as press releases and Web postings

that may not have been effective. According to agency officials,

USDA and FDA are taking actions to address some of our recommendations. We have not yet reviewed these actions to determine if they are adequate.

In addition, we have proposed that Congress enact legislation

that would require companies to alert USDA or FDA when they

discover they have distributed potentially unsafe food and give both

agencies mandatory food recall authority.

In summary, the recent food contamination outbreaks underscore

the need to transform the Federal oversight of food safety. Today’s

hearing appropriately focuses on FDA’s capacity. In the long run,

the Federal oversight of food safety needs to be approached on a

Government-wide basis. GAO’s high risk designation in concert

with congressional hearings such as today’s can bring needed attention to address the weaknesses caused by the current fragmented system and restore public confidence in the Government’s

ability to ensure the integrity of the food supply. Mr. Chairman,

this concludes my prepared statement. I would be pleased to answer any questions that you or members of the subcommittee may

have.

[The prepared statement of Ms. Shames follows:]
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Mr. STUPAK. Thank you. And thank you for your testimony.

Dr. DeCarlo.

STATEMENT OF ANTHONY DECARLO, D.V.M., RED BANK

VETERINARY HOSPITAL, TINTON FALLS, NJ

Dr. DECARLO. Thank you, Mr. Chairman, and members of the

subcommittee. And also thank you to Congressman Pallone, whose

statement I have read, for an informed and heartfelt plea for better

controls in reporting mechanisms when it comes to the health and

safety of our pets. I consider it an honor to be here and appear and

give testimony before this esteemed subcommittee.

On April 5, Congressman Pallone visited Red Bank Veterinary

Hospital to gather facts about how our hospital was dealing with

suspected cases of contamination. Now he’s working on his own legislation in the Health Subcommittee he chairs on ways to improve

Federal regulatory oversight, including the establishment of a central registry to expedite the Government’s response on any future

situations.

I don’t feel that I can speak with authority on proving regulatory

oversight because I’m not clear that there is a lack of oversight and

is indeed the reason for the problem based on when the problem

was first known to us.

What we need as veterinarians is a better mechanism in place

to track unusual occurrences, be able to get information to an appropriate centralized reporting agency and then back out to the

veterinary community in a timely manner.

Congressman Pallone has done an excellent job of distilling a

large body of information into an accurate and concise statement.

As a result of this consolidation of information, I’ll be speaking this

morning about an improved means of gathering and disseminating

information from the veterinary perspective.

There are many sites where veterinarians gather information regarding this recall, from the American Veterinary Medical Association to State veterinary medical associations and to the pet food

manufacturers themselves and the media. While each of these organizations did a fine job of relating their real time information to

their Web sites, the veterinary community does not have readily

available resources to add to and retrieve this information in a focused timely manner.

Many veterinary practices have only enough staff to meet the existing needs of that practice and its normal volume of cases. What

happened in a situation such as this one is that many veterinarians were alerted by the breaking story on television long before

they were alerted via e-mail or phone call from their clients, colleagues or other vendors. Having a central reporting agency and a

way for that agency to quickly disseminate the information would

be a key factor in heading off similar problems in the future.

A possible solution to this problem would be a program utilizing

a network of sentinel veterinary hospitals and institutions across

the country as a way to quickly get information to a central agency

and get feedback in a likewise timely manner. It would be the

agency’s responsibility to educate the sentinel hospitals on how to

interact with the give-and-take information. It would be the responsibility of the sentinel hospitals to educate their staff as to how
64

to work internally on organizing and reporting to the agency. The

sentinel hospitals would be reporting on a regular basis in the ideal

situation, thereby establishing a surveillance baseline to predict

and forecast potential crises. This would allow the agency to report

back to the sentinel hospitals the proper diagnostics to engage in

how to deal with these results. This is not really the agency’s responsibility reporting to all veterinarians when a crisis occurs. If

you continue to build on the existing infrastructure and prove the

ebb and flow of information to a central reporting agency, we as

veterinarians will have better ability to work with the Government

at all levels, to aid in the surveillance and reporting of potential

animal health related situations. Thank you.

[The prepared statement of Dr. DeCarlo follows:]

STATEMENT OF ANTHONY DECARLO, D.V.M.

Thank you Mr. Chairman and members of the subcommittee, and thank you to

Congressman Pallone (whose statement I’ve read) for an informative and heartfelt

plea for better controls and reporting mechanisms when it comes to the health and

safety of our pets. I consider it an honor to appear and give testimony before this

esteemed Subcommittee.

On April 5, Congressman Pallone visited Red Bank Veterinary Hospital to gather

facts about how our hospital was dealing with suspected cases of contamination.

Now he is working on his own legislation in the health care subcommittee he chairs

on ways to improve Federal regulatory oversight, including the establishment of a

central registry to expedite the Government’s response to any future such situations.

I don’t feel that I can speak with authority on improving regulatory oversight because I’m not clear that a lack of oversight is indeed the reason for this problem

to have existed and grown. What we need as veterinarians is to have a better mechanism in place to track unusual occurrences, be able to get information to an appropriate centralized reporting agency and then back out to the veterinary community

in a timely manner.

Congressman Pallone has done an excellent job of distilling a large body of information into an accurate and concise statement; as a result of this consolidation of

information, I will be speaking this morning about an improved means of gathering

and disseminating information from the veterinary perspective.

There are many sites where veterinarians gathered information regarding this recall, from the American Veterinary Medical Association, to the State Veterinary

Medical Associations, to the Pet Food Manufacturers, to the media and more. While

each of these organizations did a fine job of relating their real-time information to

their Web sites, the veterinary community does not have readily available resources

to add to and retrieve this information in a focused and timely manner.

Many veterinary practices have only enough staff to meet the existing needs of

that practice and its normal volume of cases. What happened in a situation such

as this one is that many veterinarians were alerted by the breaking story on television long before they were alerted via email or phone call from their clients, colleagues or vendors.

Having a central reporting agency and a way for that agency to quickly disseminate the information would be a key factor in heading off a similar problem in the

future. A possible solution to this problem would be a program utilizing a network

of sentinel veterinary hospitals across the country as a way to quickly get information to a central agency and to get feedback in a likewise timely manner.

It would be the agency’s responsibility to educate the sentinel hospitals on how

to interact with the give and take of information. It would be the responsibility of

the sentinel hospital to educate their staff as to how to work internally on organizing and reporting to the agency.

The sentinel hospitals would be reporting on a regular basis to the appropriate

agency, thereby establishing a surveillance baseline to predict and forecast potential

crisis.

This will allow the agency to report back to the sentinel hospital the proper

diagnostics to engage and how to deal with the results.

This does not relieve the agency of the responsibility of reporting to all veterinarians when a crisis occurs.
65

If we can continue to build on the existing infrastructure and improve the ebb and

flow of information to a central reporting agency, we as veterinarians will have a

better ability to work with the government, at all levels, to aid in the surveillance

and reporting of potential animal health related issues.

Mr. STUPAK. Thank you. And thank you both for your testimony.

Doctor, if I may. There have been reports in news media of thousands of cats and dogs falling ill and dying due to the contaminated

pet food. Is there any good way to get an estimate on that number?

Dr. DECARLO. We’ve tried. There has been so much reporting to

multiple places it’s hard to get a real number. There’s some generalizations that can be made. It appears, of those animals that we

feel comfortable were a result of this problem, probably less than

two-tenths. It ranges from 1 percent to less than three-tenths of a

percent of those animals.

Mr. STUPAK. Let me ask you this. The Michigan Veterinary Medical Association reports that, as of April 16, there were 155 suspected cases of pet illnesses caused by contaminated foods, with 52

deaths. In Oregon, as of April 24, the State veterinarian reports

106 suspected cases of illness and 38 deaths. Now, applying those

numbers across the entire United States, that would imply probably about 6,500 ill dogs and cats, and 2,250 deaths. Would that

seem consistent with what you’ve been able to gather?

Dr. DECARLO. No, the percentages have been all over the place,

and that is the problem. Because we are a small profession, and

that is an important part of the statistics, and who reports where

is a very selective group of people.

We have seen situations where the mortality rate was less than

1 percent and as high as 10 percent and even higher. We have also

seen numbers of the percent of animals who we think were affected

range from three-tenths of a percent to 10 percent of the entire volume of a specific institution or hospital.

That is why, after having done this investigation myself, there

really needs to be an organized and focused place for veterinarians

to report any kind of situation to you so you would have these facts

and very accurate facts.

Mr. STUPAK. So even based your investigation you really can’t

today give us any kind of an estimate as to how many dogs and

cats died, how many became ill, even a best guesstimate?

Dr. DECARLO. I think the range of—well, there is two different

questions there, those who have had died and those are affected.

I think the affected numbers vary more, because, again——

Mr. STUPAK. Greater than 6,500.

Dr. DECARLO. Right, I think that is probably going to be more

than that that have been affected. I think the problem with that

situation is it was only recently that there are ways to confirm

whether or not it was affected, and that is where I am going with

this.

Second, the fatality rates from some universities as well has been

extremely low. In some cases, like I said, less than 1 percent of

those cases that are affected and as high as 10 or 15 percent.

The statistics that you just mentioned are extremely on the high

side from the data we have gathered. Our own particular situation—which is a very large hospital—it has been about 1 percent
66

of the affected cases, mostly cats. That has been consistent, the majority had been cats, and the minority had been dogs.

Mr. STUPAK. Have you seen melamine poisoning in dogs or cats

in the past? Have you seen this type of poisoning?

Dr. DECARLO. Nobody has looked, so you can’t answer that question. I don’t know.

Mr. STUPAK. OK, thanks.

Ms. Shames, you indicate that the food supply is relatively safe.

Yet we have had 20 different outbreaks in Salinas Valley in the

last 10 years. How do you determine safe? Volume? Outbreaks?

Deaths? Illness? How do you determine it? Because we lose about

5,000 people a year to food poisoning. So where does it become safe

and nonsafe? What is the tipping point?

Ms. SHAMES. We say it is generally regarded as safe or considered safe based on the numbers that CDC report.

Now, granted, any single death or hospitalization or sickness is

one too many. But, nevertheless, compared to other countries’ food

safety systems, we have to say that, for the most part, we have a

safe system.

Nevertheless, if you—as you pointed out, the number of

incidences have been identified, and I think the problem becomes

more and more complex as our food supply becomes more and more

globalized. We have heard about some of the complicated networks

here among retailers and distributors and producers, and I think

it is a problem that we have to recognize as something that will

be increasing in light of the demographics of this population.

Mr. STUPAK. We saw today we had three young children here

who were sick. Now nobody ever would have put it together that

they had food poisoning but for either press reports or their parents. I would imagine with young children and even I am sure with

older adults it is, oh, a viral infection, and it will pass, and they

had food poisoning. Maybe not to the point where they may need

a kidney transplant, but a lot of it is underreported.

Ms. SHAMES. Yes, you are absolutely right. That is the case. For

many people, you may go out for dinner, feel a little queasy a little

later and in a day or two you are feeling OK. Others may not recover quite as quickly. Go to see their physician, their physician

may or may not go on to report or diagnose it. So you are correct.

So the tendency is to underreport these incidences.

Mr. STUPAK. In preparation for this hearing, many of us were

surprised to learn about, other than baby formula, the FDA has no

right to recall any product. But it seems like we recall toys and

tires and everything else in this country. Is this a safety concern

that they do not have recall authority on food, the FDA? Did the

GAO find that?

Ms. SHAMES. We believe it does heighten risk that there will be

increased sickness and increased death.

What the other Federal agencies have told us, such as the Consumer Product Safety Commission, the National Highway Traffic

and Safety Administration, that, for the most part, companies do

cooperate. In other words, they do have a business incentive to try

to ameliorate or fix the problem. Nevertheless, they have told us

that they have had to exercise their recall authorities in certain

cases.
67

Mr. STUPAK. Also, with that business interest, as we saw with

the first panel, they had talked about lack of notice; no one telling

them; if we would have known, we would have done it quicker.

Somebody has to take the bull by the horns and either recall or put

out a warning or something that has the authority to back it up.

Ms. SHAMES. Right. For example, the Consumer Product Safety

Commission requires that within 24 hours, if a company suspects

that one of the products is unsafe, it needs to report it to that agency.

Mr. STUPAK. Within 24 hours of notice.

Ms. SHAMES. Yes.

Mr. STUPAK. For questioning, Mr. Whitfield.

Mr. WHITFIELD. Thank you, Chairman Stupak; and thank you all

for being with us this morning.

Ms. Shames, you were with the GAO, and recently you all came

out with your high-risk report on Federal oversight of food supply.

Now was that a report that was requested by a Member of Congress or Senate or what is the difference in a high-risk report and

a non-high-risk report?

Ms. SHAMES. GAO has been preparing its high-risk series since

the early 1990s, and we prepare it for each new Congress as a way

of providing them information of what we think are the most pressing issues that Congress should address.

The high-risk series has evolved over the years. At its outset, it

was looking primarily at issues of fraud, waste and abuse. And

that is why you would see, for example, the Department of Defense

contracting as an issue there.

But over the years we have recognized and the list has evolved

so that we are looking at Government systems, and that is why we

thought that food safety—based on identified criteria that we have

issued to Federal agencies, we felt that food safety was an area

that merited the high-risk designation.

Mr. WHITFIELD. OK, and how many high-risk designations did

you all prepare for this Congress?

Ms. SHAMES. There are close to 30 high-risk issues.

Mr. WHITFIELD. So this food safety is high up on your list of

problem areas?

Ms. SHAMES. It is a Federal issue. We consider it to be of topmost

importantance.

Mr. WHITFIELD. I was a little bit shocked that you had indicated

that FDA is responsible for 80 percent of the food supply and

USDA is responsible for 20 percent, but USDA receives 80 percent

of the funding and FDA receives 20 percent of the funding.

Ms. SHAMES. Yes.

Mr. WHITFIELD. Now would there be any rational explanation for

that kind of disparity?

Ms. SHAMES. The Federal food safety system has evolved over

the years. It has been piecemeal, as has been observed by many

people already. It tends to react to a crisis and then attention subsides. So it really is a patchwork, and that is why we say that it

is the fragmentation that really is the source of many of the problems.

Mr. WHITFIELD. Because you have 15 organizations and 30 separate laws, correct?
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Ms. SHAMES. Yes. Yes.

Mr. WHITFIELD. But the FDA is responsible for the entire food

supply, with the exception of meat, poultry and processed eggs, is

that correct?

Ms. SHAMES. That’s correct.

Mr. WHITFIELD. And yet they only receive 20 percent of the funding.

Ms. SHAMES. Twenty percent of the funding, that’s right, for inspection activities, that’s right; and that is the bulk of the Federal

expenditures.

Mr. WHITFIELD. Now Chairman Stupak had mentioned, and we

saw that earlier, that there are mandatory recalls available to the

Federal Government for tires, for toys, for whatever, but there is

no mandatory recall available for food. What are the arguments

against mandatory recall for food?

Ms. SHAMES. USDA and FDA could, if they needed to, seize products if they deemed them to be contaminated; and they could detain those products for up to 20 days. After that time period, there

would need to be some sort of court injunction to say that the food

needs to be condemned.

Mr. WHITFIELD. But in the salmonella Peter Pan peanut butter

case, if ConAgra had not recalled that peanut butter voluntarily,

the Federal Government could not have recalled it?

Ms. SHAMES. No. Could not have the mandatory. The recall authority is strictly voluntary. It would have been up to the companies to disclose that this was happening.

Mr. WHITFIELD. Dr. DeCarlo, I know that FDA, for example, has

a regulation that says if any animal has one of like 12 different

chemicals or medicines in its carcass it cannot be used for human

consumption, and you may not be aware of that, but I am aware

of that.

Dr. DECARLO. Yes.

Mr. WHITFIELD. But yet USDA is the agency that is required to

enforce that regulation. So FDA makes the regulation, USDA enforces the regulation, and it is my understanding, from analysis,

that USDA really does not have a very good mechanism in place

to detect those particular chemicals in those animals used for

human consumption.

But if a pig, for example, is down on a farm and digests melamine and then ends up being slaughtered for human consumption,

is that anything that would really concern you? Or is that so remote that it is really not something we need to be concerned about?

Dr. DECARLO. It certainly would concern me.

Again, I think the problem is how do we deal with that? I think,

again, our biggest—our biggest problem is really getting information. And I think the multiple agencies out there makes it confusing for us on what to do and how to do it. It has only been recently

that we have been notified that there are two places in the country

that will test for this in the urine to help make a diagnosis. That

took a long time coming. It was available.

So, not to disregard your statement, I still think all these things

are of concern. We just need a system that gets you the information

quickly as well as you getting the information. The less agencies
69

involved—I am not a politician, so I don’t know how it all works,

but simplicity works most efficiently. So that really is a concern.

Mr. WHITFIELD. Thank you very much.

Mr. STUPAK. Ms. DeGette for questions, please.

Ms. DEGETTE. Thank you, Mr. Chairman.

Mr. DeCarlo, I think you hit on something. Simplicity is always

good. And one of the things that we are concerned about is, with

food safety, is that we have—and this isn’t really a pet food issue,

but with food for humans we have 15 agencies administering 30

laws, as Ms. Shames said in her paper, and so that is what we are

trying to figure out.

Ms. Shames, one idea that I have had for some time—and I have

been working with Congresswoman Rosa DeLauro about this—is

the idea of having one agency sort of in charge of meat and other

types of food. Because you have this weird situation which we have

talked about in this committee before, like pizzas, and you raised

this in your paper, where if you have a cheese pizza, then the FDA

has jurisdiction over that. But if you have a pepperoni pizza, then

that is the USDA, right?

Ms. SHAMES. That is correct.

Ms. DEGETTE. And those agencies have very different regulatory

schemes, correct?

Ms. SHAMES. Correct.

Ms. DEGETTE. Can you describe for a minute about how those

two pizzas would be regulated in a different way?

Ms. SHAMES. Yes, I can. USDA, for example, is required by statute to have continuous presence in a processing facility. So, in

other words, every carcass needs to be looked at every day.

In FDA, that is not the case. There is no statutory requirement

in terms of its oversight or inspection to the food; and, for that reason, FDA inspects the food as frequently as it can.

Ms. DEGETTE. I guess maybe there was, in the long-past history,

some sense maybe because meat could be more potential to be contaminated than cheese or something like that.

Ms. SHAMES. That is possible. In truth, our diets have changed;

and we are consuming less meat. We are eating more seafood. We

are eating more fresh produce. So we need to make sure that the

regulatory structure meets consumers’ needs.

Ms. DEGETTE. Right. And this is one thing when you were talking about the mandatory recalls of some of the other agencies, and

I have been talking about that this morning, mandatory. If you had

mandatory recalls, then it would seem to me that as with these—

I am wondering what the Consumer Product Safety Commission

and others have said to you. If you had mandatory food recalls, it

would seem that would give more incentives for the industry to get

ahead of the curve. What would your view be on that?

Ms. SHAMES. That is what these other agencies told us, is that

generally with that authority they know that businesses are likely

to cooperate. But, nonetheless, there have been instances where

they have had to rely on this mandatory recall authority.

Ms. DEGETTE. So if you had the mandatory recall authority, they

would probably be more forthcoming with their—from a PR standpoint—to get ahead of the curve to announce a recall.

Ms. SHAMES. That is certainly how these other agencies feel.
70

Ms. DEGETTE. I am wondering—the staff told me for the last

panel that, right now, the food safety reporting is if a health care

provider finds something in the stool, say, with these young girls

who were on our last panel, then they report it to the County

Health Department, who then reports it to the CDC, and then

somehow some eager reporter gets ahold of it, it becomes publicized. Is there some more efficient way to, A, report and, B, to

publicize recalls or outbreaks of diseases?

Ms. SHAMES. It is certainly worth asking FDA how it breaks

down or identifies if there is some sort of food contamination.

What we did find out in our October, 2004, report is that what

FDA had posted in terms of once it started to suspect that there

was outbreak, that consumer groups told us that the information

could have been more effective, and you have heard some of the

concerns from the last panel.

One thing that we were hearing is that they wanted more specificity, and I think FDA heard and certainly is following through on

that one recommendation. For example, when we were preparing

for this hearing, we found that FDA has a pilot in terms of the way

it disseminates information for an outbreak, and they are now including a photograph of the product that is suspected or has been

confirmed to be contaminated.

Ms. DEGETTE. And are they doing anything with targeting where

the outbreak is to be sure that they give the notifications to those

geographic areas?

Ms. SHAMES. They post it in a blanket e-mail or a Web site, so

they have not targeted that way. Agency officials told us that they

don’t have the authority even to identify the place of retail where

a certain product may have come from.

Ms. DEGETTE. That would be problematic.

Thank you very much.

Mr. STUPAK. Mr. Walden from Oregon, questions, please.

Mr. WALDEN. Thank you very much, Mr. Chairman; and since I

didn’t get an opening statement do I get my extra 3 minutes?

Mr. STUPAK. We will let you go a little bit.

Mr. WALDEN. I thought that is the rule.

Mr. STUPAK. We usually announce that at the beginning of the

hearings. Go ahead.

Mr. WALDEN. First of all, I want to go to Ms. Shames.

I hear a lot from my constituents regarding the lack of inspection

of imported foods, and I think this latest incident with the wheat

coming from—wheat gluten coming in from China wholly elevates

that issue. One of the things we are told is there are chemicals and

things allowed to be used in foreign countries that are prohibited

for use here. First of all, that is the case?

Ms. SHAMES. We haven’t looked at that specifically.

What FDA does have the authority to do, though, is to have certain equivalency agreements with countries that import food to this

country. We were looking specifically at seafood a couple of years

ago and reported that FDA had not had any of those agreements

for imported seafood.

Mr. WALDEN. Was there not an outbreak a year or two ago involving—I think it was salmonella, it may have been E. coli, on

melons? It was the outside of melons, and it turned out there was
71

human waste perhaps being used as fertilizer in a foreign country

and that the people—the melons then were imported here and people got sick.

Ms. SHAMES. I am not familiar with that particular instance, but

that was certainly one of the hypotheses for the outbreak of the E.

coli contamination for the spinach.

Mr. WALDEN. And did that turn out to be the case?

Ms. SHAMES. CDC and California State Health Department is

saying that it is from the runoff of wild animals and contaminating

the water; and the water runoff was what then caused the pathogens in the spinach.

Mr. WALDEN. From wild animals?

Ms. SHAMES. Yes.

Mr. WALDEN. Interesting.

The bag of lettuce here that the chairman raised up, and it talks

about how this is multiple washed, or at least one of them was

three times washed, and this is completely washed. Can you wash

lettuce or spinach and get rid of the E. coli pathogen?

Ms. SHAMES. That is a good question, and certainly the more

rinsing it helps. I couldn’t tell you exactly how many times the food

would have to be rinsed. Generally, those foods with the thinner

skins such as grapes, strawberries tend to infiltrate the pulp of the

food. Melons, for example, it is a little safer.

Mr. WALDEN. If you would at some point take a look at this issue

of inspections of imported foods especially relative to chemicals

being used in foreign countries on producing foodstuffs that our

providers, our agencies have said those aren’t safe to use, I would

sure like to know the answer to that at some point. If you could

get a written answer for the record, that would be helpful, to the

extent you can.

Mr. WHITFIELD. Dr. DeCarlo, I appreciate your testimony today.

Last fall, I toured a facility out in Oregon called the Banfield Pet

Hospital that you may be familiar with.

Dr. DECARLO. Yes.

Mr. WALDEN. Veterinarians of most of the pet companies, I

think. We went through their new facility that included a computer

room where I believe the storage capacity was something like three

tetrabytes of computer storage, and they track everything related

to the animals that come in. They look at what the symptoms are,

then what the diagnosis is, and they follow it through, and they

have review panels.

In fact, when the gentleman was done showing me the facility,

I said, gee, that would be great for human health care. I wonder

if we could get there. But it strikes me that there are some databases such as that that might be available. Would accessing some

partnership with organizations like that that have that those pool

of data, would that help us in identifying these problems quicker?

Dr. DECARLO. Yes. However, what I would say to you about that

in what I am proposing the selection of databases need to come

from several areas. Because what we have in our profession, our

general practice is, which is what Banfield is, we have specialty

practices which consist of specialists. Then we have universities,

and I would not eliminate shelters. Because I am approaching this
72

from all possibilities, both infectious disease, toxins, all those

things I think we need to do that.

So the tendency for these different places to make their diagnosis

are based on different criteria. So, for example, there may be one

faction of the profession that may to some degree—I don’t mean

this in an inaccurate way—may tend to over-diagnose, others may

under-diagnose because of training preferences and that kind of

thing. And you also have to deal with volume of each one of these

places versus—and you—unfortunately, you also have to look at locations as well.

But to your point, I think what is important to note if we go this

route and choose hospitals and information, they do have to have

sophisticated IT; and not all hospitals will have not only the computer equipment but also staffing. Veterinary hospitals, for the

most part, 70 percent of our profession are small hospitals. They

are working to the max already.

So that is why I think the selection process with who you would

choose should be a group effort and really span the different types

of veterinary practice out there.

Mr. WALDEN. Isn’t it also true that some diseases that pop up in

animals could be a link to a future human problem? For example,

the bird flu, I understand, affects cats. And to the extent you would

see a spike in cat illness related to the bird flu might be a precursor or at least an indicator that we might have a potential human

outbreak.

Dr. DECARLO. Yes. This model is not new. There is a county in

New Jersey that is testing this out. They are educating us. They

are looking at more from a terrorist point of view and how it would

present in animals. That is where the Sentinel Group idea came

up.

The mistakes—I shouldn’t say mistakes, but the things that became obvious to us was that we had to choose the right place that

could get the information back to these agencies and also some degree of funding as well. But there is no question for our profession

we need a single place to send all this information to. Because it

can predict problems ahead of time. But, more importantly, I think

rules and laws are great and no matter how you make it things are

still going to fall through the cracks. So when this happens that

information highway has to be simple.

Mr. WALDEN. I would conclude, and I thank the chairman for his

generous allocation of time here, but as we look at how to coordinate agencies, we did that with Homeland Security, and that didn’t

necessarily solve the every problem related to the Nation’s security.

We need to continue a vigilant effort in terms of what is working

and what is not.

So I appreciate your testimony and that of the other witnesses.

So thank you, Mr. Chairman.

Mr. STUPAK. Homeland Security, they are part of this whole food

inspection aspect now, too. So it seemed like we added another

agency involved in and made it more splintered, our inspection

process.

Ms. SHAMES. Yes, the Department of Homeland Security is the

designated Federal agency to address any agra terrorism.
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Mr. WHITFIELD. Mr. Chairman, I appreciate your giving Mr. Walden the opportunity to go a minute and 54 seconds over, but I just

want to just clarify. I know when he gave his opening statement—

he did not give his opening statement and he said that, because of

that, that he would get an additional 3 minutes. And I was just curious, is that still the rules of our committee or what is our situation?

Mr. STUPAK. Rules of our committee does not address it. As you

also know, many times we will go 10 minutes for a round. I think

before each hearing we should probably sit down, you and I, and

discuss it and get it down. And that is why I was more than happy

to let Mr. Walden do it, because I did appreciate his waiving his

opening statement. As a general rule, we try and move it along.

Any more questions, Mr. Walden?

I think we are next with Mr. Inslee.

Mr. INSLEE. I yield a couple minutes to Mr. Walden, if he needs

any more.

Mr. WALDEN. No.

Mr. INSLEE. Thank you.

I was reading some reports about some potential melamine contamination of wheat gluten, and there was some suggestion that

this actually was in wheat gluten originally that was actually food

grade that would have been eligible for use in human consumption

that, by luck—and I don’t want to be disparaging our animals—

but, by luck, was not in human consumption but was eligible for

it.

Is there any light any of you can shed on that situation at the

moment?

Ms. SHAMES. I can’t speak specifically to that, to the melamine,

except that it just underscores how the Federal oversight of food

safety needs to be considered from a Government-wide perspective.

Because we do have these interconnections with ingredients that

may get into either pet food or possibly animal feed which then is

ingested by hogs that may get into the food chain. It is something

that needs to be addressed on a system-wide basis.

Mr. INSLEE. So coming back to this recall issue, to me it has always been stunning to me that the Government doesn’t have recall

authority for food. We have it for cars and various other consumer

products but not the stuff we actually put into our bodies. That has

never made a lot of sense to me, and it has worked I think fairly

well in some of our industry.

Could you talk about, as far as in a recall scenario, what mandatory reporting—what would trigger mandatory reporting to an

agency of a problem that the industry has recognized or experienced? And could you describe at all how you consider recall authority has worked in other industrial applications?

Ms. SHAMES. Well, we are looking at other countries and their

food safety systems, and certainly one of the issues would be to see

how they address recall. I can tell that you the Canadian food system does have mandatory recall, and it is something that they feel

that at times they need to exercise.

I think in terms of the specifics for either USDA or FDA, it is

worth looking at what other agencies have and certainly to see if

it is appropriate in the food instance. For example, 24 hours may
74

be the right number, it may be too long, it may be too soon for certain outbreaks, and what we need to do is just study and to see

what makes sense, given these circumstances.

Mr. INSLEE. Thank you.

Mr. STUPAK. Does the gentleman yield back?

Mr. INSLEE. Yes, I would yield.

Mr. STUPAK. OK, Mr. Burgess for questions, please, 5 minutes.

Mr. BURGESS. Thank you.

Dr. DeCarlo, help me with something, if you would. When we

first heard about the pet food problem, the original compound that

was pinpointed was eminoptrin folic acid antagonist; and now we

hear it is melamine, which is, I guess, a plastic polymer. What is

the reason that eminoptrin first came to the news media’s attention

as the culprit in this?

Dr. DECARLO. I am probably not the right person to ask that

question. I think you probably have your information from the

same sources that I do.

Mr. BURGESS. CNN.

Dr. DECARLO. CNN. And, actually, there were many, many sites

to get information from and some conflicting, so I don’t have any

factual information that would be helpful to that question. So I

apologize.

Mr. BURGESS. We are now pretty certain in our assumption that

it is melamine that is causing this?

Dr. DECARLO. Yes, I think from what I can read on the medical

side that it certainly has affected cats more than dogs; and there

is many reasons for that. One may be because of the foods they are

eating but also because cats don’t process toxins as well. They have

a different system for that. There are—people feel that sometimes

it doesn’t explain the symptoms as well, but I think the majority

of the literature is pretty comfortable with that association at this

point.

Mr. BURGESS. Do we know the concentrations of this compound

that they are detecting in the wheat gluten?

Dr. DECARLO. No, but that would be a great thing for us to know

about.

Mr. BURGESS. Do we have an idea from previous laboratory analysis what is the LD 50 of melamine for cats and dogs?

Dr. DECARLO. I think that probably exists, but I don’t know the

answer to that.

Mr. BURGESS. Do you guys routinely suspect a food-borne illness

when checking into outbreaks of disease in domesticated pets?

Dr. DECARLO. I think we do. It is probably a little bit easier with

animals because they tend to eat a lot of things so that is high on

our list of differentials, especially in this situation. Even though

cats have high incidences of renal disease, usually it is chronic

renal disease in older cats. So to cure renal disease one of the first

things we look for is a toxin, because it is so unusual to see acute

renal disease in young cats. But in our profession, since it is a common thing, food ingestion of toxins is the first thing we ask because

it is in the nature of the cases we see.

Mr. BURGESS. When this outbreak first started, was there—there

was no difference between animals that were completely indoor
75

animals versus outdoor animals. You mentioned that dogs and cats

do eat a lot of things out in the environment.

Dr. DECARLO. I can’t answer that. No one has looked at that indoor versus outside.

Mr. BURGESS. If I could, Ms. Shames, let me ask you, you referenced in some of your remarks that you have looked at the

United States food supply in comparison with other countries, similar demographics, similar population, and said the United States’

food supply on the whole is safe. Did I understand that correctly?

Ms. SHAMES. Yes.

Mr. BURGESS. In that course of doing that part of your analysis,

I guess one of the things that troubles me in reading your report,

and it has already been referenced, you have different agencies

looking at a pizza, depending on what the topping is, and you have

a different agency looking at a sandwich, if it is an open-face sandwich versus a complete sandwich. Is there any country this has a

more streamlined approach to the problem at hand? You reference

that we have kind of grown up with a patchwork of regulations. Is

there a model out there that suggests a better way to do this?

Ms. SHAMES. We actually have an ongoing engagement to look at

the other countries. Similar to ours, they started out as being fragmented. It was—they would describe it, too, as something that

evolved piecemeal. They did go for a more consolidated approach.

Now we are looking further at what they mean by consolidated.

Some of them actually did go as far as merging all of their agencies

into one single food agency. Others merely reduced the number of

agencies. But we are now, at the request of Congresswoman

DeLauro and Senator Durbin, looking at what actually are the

positive consequences of these countries’ reorganizations of their

countries’ food safety systems.

Mr. BURGESS. And certainly I think the committee would appreciate that follow-on information as well.

You referenced in food safety you depend upon industries involved for a voluntary recall. Has there ever been a situation where

a company or manufacturer has refused to issue a recall when

asked to do so by the appropriate agency?

Ms. SHAMES. Neither FDA nor USDA ever told us that there was

a company that refused.

Mr. BURGESS. Has there been a pattern of foot dragging and not

complying as quickly as the USDA or FDA normally would like?

Ms. SHAMES. What we know from the other agencies that do

have this mandatory recall authority is that it is something that—

it is a tool that they have in their belt. It is something they don’t

use on a routine basis. Nevertheless, they have felt that they have

had to use it in given instances. And similarly, for FDA and USDA,

we feel it is a case where—to give them the same sort of authority

and tools that the other Federal agencies have.

Mr. BURGESS. But has anyone in either other agency ever said

to you, boy, if we only had the ability to do a recall, to mandate

a recall, this would never have happened? Have we ever gotten a

situation like that?

Ms. SHAMES. No.

Mr. BURGESS. Thank you, Mr. Chairman. I yield back my time.
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Mr. STUPAK. I thank the gentleman. Mrs. Blackburn for questioning, please.

Mrs. BLACKBURN. Mr. Chairman, just three quick questions.

Do you think the Federal Government needs the authority to

mandate recalls?

Ms. SHAMES. We have recommended that for both USDA and

FDA.

Mrs. BLACKBURN. So you would support that and you would see

that as a positive thing to mandate?

Ms. SHAMES. Yes.

Mrs. BLACKBURN. OK, one of the things that seems to—and you

have talked a good bit about the piecemeal approach and the fragmentation, but it also seems when you look at the FDA and USDA,

we also have the medical community over here that is not accessing this information, even the CDC I think one of our earlier witnesses mentioned, there seemed to be a lack of communication

there. So I feel like not only do we have a two-tiered problem with

the FDA and the USDA but being certain that we move this over

for the medical community and the public at large.

So as you go looking at the other countries, I think what we

would like to have is not only the thoughts on this but looking at

what would be the best recommendations, the best practices, that

you would have for the agencies in streamlining their approach and

making certain that the food supply systems are safer but also

what the recommendations would be for the medical community to

access this, our hospitals, our trauma care centers, et cetera, and

then the public notification system on situations like this.

What we heard from our first panel was they did the legwork

themselves and that they got into this and realized there was no

orderly process for reporting or for discovery. I think we would appreciate having your top recommendations for that, and you may

have something right now that you would like to add for the

record.

Ms. SHAMES. Nothing that I can add for the record for specific

recommendations, but surely, as we start to design this engagement, we will be looking at the pressing issues that this country

is facing.

One thing that the high-risk list does is that we report then on

the progress that agencies have made in terms of addressing these

high-risk issues. Certainly we can learn from other countries’ experiences, and we will try to integrate as much information as possible from what we have learned overseas.

Mrs. BLACKBURN. OK, when you are looking at other countries

with our food supply, are we safer than or as safe as other countries and have our incidences of death and illness increased or decreased over the past decade?

Ms. SHAMES. We haven’t looked at the data longitudinally in

terms of what their safety is. In fact, even CDC is trying to get behind the numbers that they have been publishing for the number

of deaths, hospitalizations and illnesses. So it is something that the

data reliability is very important and we would be looking for to

see how complete and accurate and consistent the reporting system

is.
77

Mrs. BLACKBURN. I think we would like that qualified data once

you have it and can say this is how we stack up in relation to other

countries.

One quick other question, mandatory recall, would it have made

a difference in either the peanut butter or the spinach situation we

have heard about this morning?

Ms. SHAMES. Applying it to these specific instances, we haven’t

looked specifically for the peanut butter or the spinach. Just generally speaking, we feel that this authority is something that has

the potential of expediting the recall. We found that when FDA and

USDA did carry out their voluntary recall programs, oftentimes by

the time the food was removed from the shelf it had expired from

the shelf life. And this is especially important for fresh produce.

Mrs. BLACKBURN. Thank you. I yield back.

Mr. STUPAK. Any further members have any further questions of

this panel?

Hearing none, I will excuse this panel and thank you again for

your testimony.

Mr. BURGESS. Mr. Chairman, if I can follow up on that last point,

I would agree that in the case of the E. coli contamination of the

spinach I don’t know of the mandatory recall because of the time

involved would have made a difference. But on the peanut butter

situation, where they continued to feed the patient the product in

the hospital, in the nursing home, that one does bother me. If there

had been a recall issued in January, that process might have been

stopped.

I am not smart enough to say it would have made a difference

in the clinical outcome, but as somebody who has a background in

health care I would have liked to have known that and stopped

feeding the patient the product many months before it was actually

discontinued.

Ms. SHAMES. We did look at some of the recalls of FDA, and,

clearly, for canned foods—in fact, we looked at a recall for canned

soup and because the shelf life of that canned soup is a couple of

years the recall was more thorough and more complete. It was less

complete when you looked at ground meat, for example, that has

a shelf life of a couple of weeks and surely the same thing for fresh

produce. So it does get problematic the more fresh the produce or

food happens to be.

Mr. STUPAK. Also, wouldn’t there be a benefit if you used recall

to help physicians and help diagnose situations such as we had

with young children where they think it might be a viral infection

where in fact you can focus in more clearly on another possibility?

That is where I would see a recall would also help.

Mr. BURGESS. There is. Syndromic surveillance would play a

greater role, and that ties into the whole heath IT argument debate

we have back and forth on the ability to get information to emergency rooms and practitioners in a timely basis. That is what we

saw here with anthrax.

Mr. STUPAK. It was amazing. In each one of the cases—the first

panel, they learned it from the news media or it was Mr. Pruden’s

sister or sister-in-law who was a nurse that said check for the

brown urine in order to check the problem, to diagnose the problem. Otherwise, we would still be treating a viral infection.
78

Thank you. Anything further from any members? Thank you

again to this panel.

We will call up the third and final panel.

Our third panel consists of Mr. Charles Sweat, president of Natural Selections Foods; Mr. David Colo, senior vice president of

manufacturing at ConAgra Foods; Mr. Paul Henderson, CEO at

Menu Foods Income Fund; and Mr. Stephen Miller, CEO at

ChemNutra.

It is the policy of this subcommittee to take all testimony under

oath. Please be advised witnesses have the right under the rules

of the House to be advised by counsel during testimony. Do any of

you gentlemen wish to be represented by counsel? Mr. Henderson?

Mr. Sweat.

Mr. SWEAT. Yes.

Mr. STUPAK. Would you identify your counsel for the record

please?

Mr. SWEAT. Marty Schenker.

Mr. STUPAK. Mr. Colo?

Mr. COLO. No.

Mr. STUPAK. And Mr. Miller, sir, do you have counsel present

with you?

Mr. MILLER. Yes.

Mr. STUPAK. Would you identify your counsel for the record?

Mr. MILLER. Mr. Marc Ullman.

Mr. STUPAK. Next, as you know, we do take testimony under

oath, so I am going to have you ask you all to please rise and raise

your right hand.

[Witnesses sworn.]

Mr. STUPAK. Let the record reflect all four witnesses answered

in the affirmative. They are under oath.

We will begin with the opening statements, 5-minute opening

statement. Mr. Henderson, please, if you begin with your 5 minutes, please, opening statement, sir.

STATEMENT OF PAUL K. HENDERSON, PRESIDENT AND CHIEF

EXECUTIVE OFFICER, MENU FOODS

Mr. HENDERSON. My name is Paul Henderson, and I am the

president and chief executive officer of Menu Foods. The subcommittee invited me today to discuss issues of food security and,

in particular, the recent terrible situation involving pet food manufactured with contaminated Chinese wheat gluten supplied by

ChemNutra to several pet food manufacturers, including Menu

Foods.

Let me begin by noting that I am a pet owner and many of our

employees are pet owners. My dog eats food manufactured by Menu

Foods. I understand and my employees understand the loss felt by

pet owners as a result of the pet food made with contaminated ingredients. All of us at Menu Foods deeply sympathize with pet

owners.

Who is Menu Foods? Menu Foods has three manufacturing

plants in the United States, employing more than 800 workers

here; and the majority of our assets and sales are in this country.

Menu is recognized in the pet food industry as a quality manufacturer. This might seem a little odd in light of the recent recall
79

product, but, as I sit here today, I can’t think of a more accurate

description of my company.

How can I say that? Well, for starters, just look at our customers,

particularly the national brands for which we manufacture. They

are the market leaders, and quality pet food is what they are all

about. Each had a choice in who would manufacture for them and

each turned to Menu.

In reality, it wasn’t that easy. For many, we first had to demonstrate an ability to manufacture at a level of quality at least as

good as their own. These branded pet food companies sent their inspectors to our plants and satisfied themselves as to our abilities

and our quality.

Sometimes they identified a procedure that was standard within

their plants and required us to adopt the same procedure in order

to secure their business. By doing so, they contributed to our own

improvement efforts, with the result that, today, we are one of the

highest-quality operations in the United States.

But we don’t stop there. All of our facilities are routinely audited

by outside experts. Many of our branded customers conduct annual

audits of the menu plans manufactured for them.

In addition, we are inspected by the USDA’s Animal and Plant

Health Inspection Service, the Canadian Food Inspection Agency,

the European Food Safety Inspection Service, the American Institute of Baking, and Menu’s Pennsauken plant was inspected by the

FDA in 2006. In over 35 years of business, Menu has never had

a food safety related product recall until the tragic events involving

the contaminated wheat gluten.

A lot of speculation has taken place concerning Menu’s activities

leading up to that recall. Much of that speculation has been inaccurate, and we are pleased to correct that record. A detailed

timeline was provided with my written remarks, so I will not repeat that here. Instead, let me summarize the situation by describing what it is and what it is not. First, what it is not.

This is not a situation caused by unclean facilities, poor manufacturing problems or similar problems. Our facilities are first rate.

Our sanitation and manufacturing processes are state of the art.

This is not a situation where lax inspection of Menu allowed a

problem to occur. We have rigorous internal and external inspections. Inspections of our plants would not have prevented the melamine contamination of the wheat gluten.

This is also not a case of reacting improperly to the situation facing us. We took appropriate actions based on the information available at the time.

Let me put this situation into context. In 2006, Menu sold approximately 3.2 million containers of pet food per day. In contrast

to this number, at the time we decided to initiate the recall, we had

a handful of reports from consumers, three consumer reports

passed along by a customer and reports from a taste test facility.

None of these problems conclusively pointed to our food as the

cause of the problems. At the same time, Menu had conducted tests

of all industry recognized causes of renal failure, and these tests

had revealed no problems at all with our pet food. In fact, it took

the FDA, prestigious research organizations and commercial lab-
80

oratories several weeks of hard work to identify melamine in

ChemNutra wheat gluten as the source of the problem.

However, in the face of the circumstantial information, we put

the interests of pets and pet owners first and notified the FDA and

began a voluntary precautionary recall.

We have cooperated in every way with the FDA’s investigations

and the efforts to identify the source of the problem.

Now let’s consider what this is, or at least what it appears to be.

What this appears to be is a deliberate case of contamination of

wheat gluten in order to pass off substandard product. Melamine

was previously unreported as a contaminant in wheat gluten. Melamine is high in nitrogen, which is significant, because the industry’s standard test for protein content for wheat gluten is based on

a quantity of nitrogen. Melamine would make wheat gluten appear

to have a higher protein content than was actually the case.

For a seller who knows how the industry testing methods work,

this would allow them to cheat buyers; and if it were not for the

previously unknown toxicity of melamine in cats and dogs, the

scam would have worked.

It appears likely that the public, Menu and other pet food manufacturers were the victims of a fraud.

Menu has taken several steps to address the situation, including

testing wheat gluten and other vegetable proteins for melamine, increasing our screening process of new suppliers, and discontinuing

all business relationships with ChemNutra.

We are also working with Congress, the FDA and the Pet Food

Institute and other interested parties in their investigations and in

formulating additional measures for preventing similar occurrences

in the future.

Thank you.

Mr. STUPAK. Thank you.

[The prepared statement of Mr. Henderson follows:]

TESTIMONY OF PAUL K. HENDERSON

I am Paul Henderson, CEO of Menu Foods Income Fund. The subcommittee invited me today to discuss issues of food security and in particular the recent terrible

situation involving pet food manufactured with contaminated Chinese wheat gluten

supplied by ChemNutra Inc. to several pet food manufacturers, including Menu

Foods.

Let me begin by noting that I am a pet owner, and many of our employees are

pet owners. My dog eats food manufactured by Menu Foods. I understand, and our

employees understand, the loss felt by pet owners as a result of pet food made with

contaminated ingredients. We deeply sympathize with these pet owners. However,

we cannot turn back the clock, so now we must analyze what happened and how

it happened and consider the steps that the pet food industry and Government

agencies should take to try to prevent things like this from happening in the future.

Much has been said and written about these recent events, and a lot of it has

been inaccurate. I appreciate the invitation to appear before the Subcommittee

today to explain what actually occurred and to share my thoughts on the future of

food safety in the pet food industry.

BACKGROUND OF MENU FOODS

Menu Foods is the leading North American private-label/contract manufacturer of

wet pet food products sold by supermarket retailers, mass merchandisers, pet specialty retailers and other retail and wholesale outlets. Menu Foods was formed in

1971 and went public in 2002, trading on the Toronto Stock Exchange.

Menu Foods was founded in Canada, but our U.S. operations are much larger

than our Canadian operations. We have three manufacturing plants in the United
81

States, which are located in Emporia, Kansas; Pennsauken, New Jersey and North

Sioux City, South Dakota. Menu Foods employs more 700 workers in the United

States, and the majority of our sales are in this country.

Menu is recognized in our industry as a quality leader. We are known as the manufacturer of choice in the private-label pet food industry by retailers that value quality in their products. In over 35 years of business, Menu had never had a food safety-related product recall until the recent tragic events involving the contaminated

wheat gluten. Menu produced over 1.1 billion containers of pet food last year, so this

is quite a record, and we were very proud of it. We hope we can restore our reputation, and we are working hard to do so.

MENU FOODS—PRODUCTS

Menu Foods manufactures two basic types of wet pet food: ‘‘loaf’’ products, which

have a pate-like consistency, and ‘‘formed’’ products where formed, precooked pieces

are put into the product. The formed products include ‘‘cuts & gravy,’’ which resembles stew, and products that include flakes or slices. Menu Foods does not manufacture dry pet food.

The contaminated wheat gluten supplied by ChemNutra caused us to recall some

of our products (primarily cuts & gravy products) manufactured at three plants from

November 8, 2006 through March 6, 2007.

Wheat gluten is a natural vegetable protein extracted from wheat grains or flour

and is a by-product of wheat starch. Only about 20 percent of the wheat gluten used

by human food and pet food manufacturers in the US is produced in the US. Most

of the wheat gluten is imported from Europe or Asia. Our United States plants buy

wheat gluten from several suppliers around the globe. Wheat gluten is used by some

pet food manufacturers, including Menu, as an ingredient in formed meat products.

It is a source of protein and also has unique properties that help to hold together

the chunks of meat. Wheat gluten is also used by manufacturers of human food

products, mostly for baking.

THE PROBLEM: CHEMNUTRA’S SALE OF CONTAMINATED WHEAT GLUTEN

Wheat gluten has been in short supply, and in 2006 we decided we needed to add

an additional source for this important ingredient. In November 2006, Menu Foods

bought wheat gluten from ChemNutra for the first time. ChemNutra is a U.S. company, based in Las Vegas, that is an established supplier of ingredients to food, feed

and pharma companies throughout the country. Although this was our first purchase of wheat gluten from ChemNutra, we had purchased other ingredients from

ChemNutra in the past.

As part of our program to ensure high-quality ingredients, Menu Foods provided

ChemNutra with a Material Specification stating Menu Food’s requirements for

wheat gluten. The Material Specification provided detailed instructions and requirements, including but not limited to: material source, material description, physical

requirements, chemical requirements, rejection criteria, packaging/shipping/storage

requirements, microbiological standards, grind/particle size standards, water storage

standards, ingredient manufacturing requirements, labeling requirements, and key

performance/functionality requirements. The Material Specification expressly prohibited foreign material contamination. Each shipment of wheat gluten Menu Foods

received from ChemNutra was accompanied by a Certificate of Analysis representing that the wheat gluten complied with Menu Foods’ Material Specification.

Our Material Specifications adhere to the standards of the Codex Alimentarius,

which is a collection of internationally recognized standards for food developed

under the aegis of the United Nations Food and Agriculture Organization and World

Health Organization. There is no FDA standard for human grade wheat gluten, but

Menu intends that all wheat gluten we use should be suitable for use in human

foods.

ChemNutra promised Menu Foods that it could deliver high-quality wheat gluten

that satisfied the requirements set forth in the Material Specification. Menu Foods

relied on ChemNutra’s promises. Unfortunately, we now know that ChemNutra provided Menu Foods and other pet food manufacturers with a product that was contaminated with melamine. Needless to say, following this incident, we no longer do

business with ChemNutra.

MENU ACTED AGGRESSIVELY TO IDENTIFY AND ADDRESS THE PROBLEM

A lot of speculation has taken place concerning Menu Foods’ activities leading up

to the recall. Statements have been made in the media and in public forums and

even by some of the participants in the supply chain of the contaminated wheat glu-
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1 Many pets die every day, and some die from antifreeze poisoning. Euromonitor International

reports that there are approximately 82.2 million cats in the United States. Using an estimated

life expectancy of 18 years, this would mean that approximately 12,500 cats die every day in

the United States. Dr. Ron Hines, a veterinarian, estimates that 10,000 dogs and cats die of

antifreeze poisoning each year in the United States.

2 Pet food manufacturers, including Menu, regularly perform taste tests where food manufactured by one company is compared to food from another company. Since cats and dogs cannot

tell us which food they like better, the only way to tell whether we are making a product the

animals like is to feed it to them. These tests are not intended in any way to injure or endanger

the participating animals, and Menu’s tests are conducted in facilities that meet accepted standards for humane treatment of the animals.

ten. Much of the speculation and some of these statements have been inaccurate.

A summary of the major events leading up to the recall appears below:

February 22, February 28, and March 5, 2007

The first complaints Menu received that we now believe were related to the contaminated wheat gluten were on February 22 and 28. On those dates, Menu received calls from customers on our consumer response line (a toll-free number on

the label or pouch of many of the private-label products we produce). Each call reported the illness of a cat. As part of Menu’s follow-up, we contacted the veterinarians who treated the cats. The treating veterinarians indicated that both cats had

access to various contaminants and could have gotten into something they should

not have, such as antifreeze.1

These cats were also noted as having been strays at some point in their lives. A

third call (about March 5) was received from a consumer reporting a cat death.

Menu Foods did not receive information from a veterinarian with this report.

Tuesday, March 6, 2007 . 1On March 6 and 7, Menu learned of two additional

cases of cat illness. Neither of these reports have resulted in cat deaths to Menu’s

knowledge.

A company Menu Foods retained to perform routine, quarterly palatability studies/taste tests reported that cats involved in one of the studies became sick and

died.2

The panel consisted of 20 cats. Three had died (two of the three were euthanized),

and six were sick. All of the cats were 10 years old or older. The animals were being

simultaneously fed a product manufactured by Menu Foods and products manufactured by other companies. The cats had been involved in taste tests for another pet

food company the previous week. The company performing the palatability studies

told Menu Foods that it also notified the ‘‘other company’’ of the health issues. Because the cats were exposed to several kinds of food, the source of the problem was

unknown. There were at least six possibilities:

• Menu’s food used in this taste test.

• The competitor’s food against which Menu was conducting the taste test.

• The food of the company that used this same panel of cats for a taste test before

Menu’s taste test. • The competitor’s food against which the previous company was feeding.

• A hazard within the testing facility.

• An animal illness of an infectious nature.

The company performing the palatability studies reported no problems with a second panel of twenty cats who were eating the same variety of food as the first panel.

Both foods had been produced by Menu at the same time, leading Menu to believe

that its food was not the source of the problem.

Although Menu Foods did not then believe that its food was the source of the

problem, out of an abundance of caution we stepped up our investigation. Our

records showed that wheat gluten from ChemNutra was one of several ingredients

common to the foods consumed in the cat illnesses and deaths referenced above and

the product used in the palatability studies. As a precautionary measure, Menu

Foods stopped using wheat gluten from ChemNutra.

Friday, March 9, 2007. The company that performed the palatability studies reported that four additional cats (also of an advanced age) from the first palatability

study were euthanized and nine were sick. The company also reported that two cats

in the second study of twenty cats were euthanized, one of which was over 16 years

old. Like the first study, the cats in the second study had eaten several products.

By this time, Menu Foods’ investigative team had traced the raw materials common to the reported incidents and identified wheat gluten, plasma, glycine, taurine,

digest, caramel color and salt. Laboratories commissioned by Menu Foods to perform

tests began testing the products consumed by the animals in the palatability studies

and consumer complaints to try to identify any problems. At Menu’s direction, they

began tests for minerals, heavy metals, antifreeze, vitamin—D, fluorine and mold
83

toxins, and for commercial sterility. These tests take several days to complete, but

when we received the results, they showed nothing wrong.

Meijer, a grocery store chain in the Midwest, relayed that a customer reported

pet health problems. Menu Foods began trying to get in touch with the customer

to determine what product was involved so it could be tested.

Monday, March 12, 2007. The company that performed the palatability studies reported that independent tests conducted on the pet foods used in these studies (for

heavy metals, antifreeze, pesticides and insecticides) were negative. Menu Foods requested its own pesticide/insecticide tests.

Menu continued to try to reach the consumer involved in the report from Meijer.

Tuesday, March 13, 2007. Menu Foods received results from the tests conducted

at Cornell University on the product used in the palatability studies. Cornell University did not find any pesticides, insecticides or toxins. Menu requested that Cornell test for heavy metal and mycotoxin in samples of wheat gluten.

The Iams Company contacted Menu to report renal issues in cats that consumed

Iams flaked salmon. Iams explained that it had received telephone calls from three

consumers: one involved death of a cat for renal failure, one involved vomiting within fifteen minutes of consumption, and one cat refused to eat the food.

Wednesday, March 14, 2007. Menu reached the consumer involved in the report

from Meijer’s and learned that the animal consumed product manufactured in October 2006—before Menu Foods began receiving wheat gluten from ChemNutra. The

consumer agreed to send Menu the remaining food for testing. The consumer did

not know the cause of death. After the recall was announced, Menu received the

food from this customer. Testing showed that it did not contain melamine.

Menu and Iams shared with each other the information that each had obtained

to that point.

Menu received the results of tests performed on the ChemNutra wheat gluten for

antifreeze, which were negative. Menu decided to begin testing for intentionally

added toxins.

Cornell University tested the product involved in the palatability studies for intentionally added toxins, but the tests came out negative. Menu continued to perform a broader series of tests on the wheat gluten from ChemNutra.

The company that performed the palatability studies forwarded tissue samples

from a deceased animal to Cornell University to perform tests in an attempt to discover whether a toxin killed the animal.

At 8:30 p.m., Iams told Menu Foods that it intended to recall cat food manufactured by Menu Foods in Emporia, Kansas from December 17, 2006 through March

14, 2007.

Thursday, March 15, 2007. On the morning of March 15, 2007, Menu Foods received a call from the owner of five indoor dogs. She reported feeding her dogs

Menu-produced product. Thereafter, one of her dogs had died of renal failure, and

the other four were ill. Shortly thereafter, Menu was notified by a testing facility

that several dogs involved in a taste test had experienced a drop in food consumption similar to the cats in the taste tests described above and were ill and vomiting.

These were the first reports of which Menu was aware of dogs being adversely affected by pet food manufactured by Menu.

On the afternoon of March 15, 2007, Menu Foods notified the FDA of its decision

to recall products manufactured with wheat gluten obtained from ChemNutra from

December 3, 2006 through March 6, 2007. The recall included both dog and cat food.

Menu Foods announced the recall the following morning. We chose December 3,

2006 as the start of the recall because the food in the first consumer complaint was

produced during that week. Although we did not know whether the recalled product

contained a contaminant or what the contaminant was, we recalled products produced with the ChemNutra wheat gluten while we and others continued to investigate the source of the problem.

MENU FOODS RESPONDS BY VOLUNTARILY RECALLING POTENTIALLY AFFECTED

PRODUCT

Some people have suggested that Menu acted too slowly and should have contacted the FDA sooner. On the contrary, we acted quickly and took appropriate

steps under the circumstances.

Let me put this situation in context. Menu produces over 1.1 billion containers

of pet food each year—nearly 100 million containers each month. As of March 15,

2007, Menu had directly received six reports from consumers of possible problems

with its pet food—many of which appeared to be something other than pet food, in

several cases confirmed by opinions of the animals’ veterinarians. One of Menu’s

customers, Iams, had received, and eventually passed on to Menu, three complaints
84

involving animal health issues. Both Menu and Iams had received complaints of a

refusal to eat the food, which often happens when an owner changes to a different

food or for other reasons completely unrelated to food quality. And the taste testing

facility reported several deaths and illnesses, but nothing that indicated it was

caused by Menu’s food. Menu had conducted tests for all industry-recognized causes

of problems with pet food, and these tests revealed no problems. In fact, it took the

FDA, prestigious research organizations and several commercial laboratories many

more days to identify melamine in ChemNutra wheat gluten as the source of the

problem.

Based on this information, any pet food manufacturer could well have decided to

continue to try to find the problem, but not to contact the FDA or begin a product

recall. Indeed, based on what was known at the time, there might well have turned

out to be no problem with the food, and announcing a recall could have only resulted

in an unnecessary panic among pet owners. And, the only indication we had of any

issues with dog food was only hours old and as yet completely uninvestigated. However, Menu placed the interests of pets and pet owners first, so, like our good customer Iams, we decided that, notwithstanding the lack of scientific evidence, we

should notify the FDA and begin a voluntary, precautionary recall.

On March 16, 2007, Menu Foods voluntarily recalled pet food manufactured with

wheat gluten obtained from ChemNutra, Inc. from December 3, 2006 through March

6, 2007. The FDA initiated an investigation of Menu Foods’ formed meat products

that same day. Menu Foods gave the FDA its full cooperation and continues to cooperate fully with the FDA.

On March 24, 2007, in order to expedite the recall and satisfy concerns by the

FDA, Menu Foods initiated a market withdrawal that included all production dates

of the impacted products during the recall period. This change made it easier for

retailers to get the identified products off their shelves and reduced the risk that

a store clerk would mistakenly leave a recalled product on the shelf because he or

she misread the date code on the product.

On Friday, March 30, the FDA announced that researchers at Cornell University

located melamine in the finished product that was the subject of the recall. Researchers also located melamine in samples of wheat gluten Menu Foods purchased

from ChemNutra, Inc., which has stated that it imported the wheat gluten from

Xuzhou Anying Biologic Technology Development Co. Ltd. (Xuzhou Anying) in

China. Melamine was not found in wheat gluten Menu Foods obtained from other

suppliers. Melamine is a chemical contaminant, not a microbial contaminant. According to the FDA, it is ‘‘very unusual’’ to find melamine in wheat gluten.

On April 3, 2007, ChemNutra issued a press release announcing a recall of all

wheat gluten it imported from Xuzhou Anying. ChemNutra admitted that melamine

‘‘should absolutely not have been in wheat gluten.’’ Four other pet food manufacturers obtained contaminated wheat gluten from ChemNutra and initiated recalls:

Hill’s Pet Nutrition, Del Monte Pet Products, Nestle Purina PetCare Company, and

Sunshine Mills Company.

On April 5 and April 10, Menu Foods expanded its recall to additional products

manufactured with ChemNutra wheat gluten. On April 5, Menu Foods expanded the

recall to include products manufactured with ChemNutra wheat gluten from the

first date of manufacture (November 8, 2006) through December 2, 2006. (The previous recall included the period spanning from December 3, 2006 through March 6,

2007.) At the time of the initial recall on March 16, 2007, Menu Foods was not

aware of any complaints or reports of health problems relating to food manufactured

from November 8th to December 2.

On April 10, 2007, Menu Foods expanded the recall to include certain products

manufactured at its plant in Canada after discovering through the ongoing investigation that the Canadian plant received a quarter of a load of the contaminated

wheat gluten from the Menu Foods plant in Emporia, Kansas. The wheat gluten

that was transferred between plants was subsequently used in production at the

Streetsville plant during December 2006 and January 2007.

Menu Foods is no longer purchasing any ingredients from ChemNutra and has

taken steps to assure that none of the products that contain wheat gluten from

ChemNutra are sold. The FDA is blocking all imports of wheat gluten from Xuzhou

Anying.

Menu’s investigation has revealed a possible motive for the presence of melamine

in ChemNutra’s wheat gluten. Menu Foods’ Material Specification for wheat gluten

contains a chemical requirement that the wheat gluten contain no less than 75 percent protein. This is a typical specification for wheat gluten for both human and ani-
85

3 In testing, crude protein is used as a key indicator of usable amino acids available in the

pet food as a source of nutrition. The amount of usable amino acids in the pet food is estimated

by determining the quantity of nitrogen in the product and multiplying that figure by an accepted constant.

mal food. In the human food and pet food industry, protein levels are customarily

estimated by determining the quantity of nitrogen in a product.3

Melamine has a high concentration of nitrogen and, as a result, the inclusion of

melamine into the wheat gluten would make substandard wheat gluten appear to

meet industry standards for protein content.

MENU IS DEDICATED TO PROVIDING SAFE, HIGH-QUALITY PRODUCTS TO ITS

CUSTOMERS

The foundation of Menu’s business is providing quality, nutritious food for pets.

We have been doing so for over 35 years. The safety of our products and the confidence of pet owners and our customers are our highest priorities.

Menu Foods monitors for spoilage and has thorough quality control procedures.

As is common industry practice, Menu Foods tests the wheat gluten it uses for

vomitoxin caused by mold growth. This mold toxin is the only contaminant in recent

history that has been associated with a pet food recall involving wheat used in dry

pet food. Menu tests every load of wheat gluten it receives for vomitoxin using an

approved test performed by trained personnel. Menu Foods did not detect melamine

during its quality assurance testing because accepted screening procedures do not

detect melamine. Melamine is not something that had ever been heard of before in

connection with wheat gluten. To our knowledge, no pet food or human food manufacturer tested wheat gluten for melamine prior to this incident.

Some people have noted that Menu’s Emporia plant had not been inspected by

the FDA. That is true, but not surprising given Menu’s excellent performance record

and reputation and the FDA’s limited resources. However, additional plant inspections would not have prevented the problem in this instance—contaminated wheat

gluten purchased from ChemNutra.

Moreover, Menu’s plants are subject to significant internal and external inspection and review. Menu has its own quality control systems, which have been reviewed and approved by our customers, including global companies with substantial

experience in quality control. In addition to Menu’s internal systems, all of our facilities are routinely audited by outside experts. Menu engages the American Institute of Baking to audit food safety and sanitation. These inspections are conducted

at least annually, and Menu has consistently scored in the ‘‘excellent’’ and ‘‘superior’’ range. Menu Foods’ United States plants are inspected annually by the United

States Department of Agriculture Animal and Plant Health Inspection Service

(APHIS). Menu Foods’ plant in Canada is inspected annually by the Canadian

equivalent to APHIS, the Canadian Food Inspection Agency (CFIA). Menu Foods is

also inspected by the European Food Safety Inspection Service, which is widely respected for HACCP (Hazard Analysis and Critical Control Point) and food safety

concerns. Menu’s Pennsauken plant has been inspected by the FDA. Finally, Menu

is inspected by multiple global pet food producers with known high quality standards as a condition of manufacturing pet food for them.

To ensure that we are producing the highest quality products, we have taken the

following additional steps in response to the situation:

• First, like other pet food manufacturers, we have stopped purchasing wheat gluten from ChemNutra. In fact, we have stopped buying any ingredient from

ChemNutra.

• We now test wheat gluten for melamine. Consistent with our desire for continuous quality improvement, we have extended melamine testing to rice protein and

corn gluten meal.

• We will conduct additional tests of wheat gluten and other ingredients in the

future to make it more difficult for a supplier to sell us substandard product.

• We will implement more rigorous testing and supervision for new suppliers.

• We continue to monitor developments in the industry and will update these

measures as necessary to ensure the continued safety of our products.

• We are an active member of the Pet Food Institute and an active participant

in its review of pet food safety issues. We will implement recommendations of the

PFI review as appropriate for our business.

• We will work with the FDA and other regulatory authorities and Congress to

develop additional measures to protect against future occurrences of this type.
86

Finally, we have filed suit against ChemNutra. ChemNutra sold us contaminated

wheat gluten that did not meet our specifications and did not conform to the promises of quality that ChemNutra made to us. ChemNutra’s actions have caused tremendous injury to the public and to Menu.

SUGGESTIONS FOR IMPROVING FOOD SAFETY PROTECTIONS

Before concluding, let me share some thoughts on improvements that governments might make in the food safety protection system, based on Menu’s experience

and my observations of the system as a whole.

First, we should recognize the extent to which opening global markets for U.S.

products has also opened the U.S. market to foreign products, which, as in Menu’s

case, are not always in compliance with accepted standards. It is difficult for manufacturers to inspect each supplier. The Government, on the other hand, is in a better

position to inspect and certify foreign suppliers of food products or ingredients in

order for them to be permitted to sell their products into the U.S. Menu’s plants

and processes are inspected and approved for compliance with European standards

and regulations as a condition of being able to export our products to Europe. These

inspections are performed by APHIS in the U.S. and CFIA in Canada under an arrangement with the EU, no doubt because of the confidence the EU has in APHIS

and CFIA. Perhaps, in order to sell their products in the U.S., foreign suppliers

should be required to submit to inspection and certification by a U.S. agency or

some other party accredited by the U.S. Government.

Second, Government agencies could increase their inspections of imported products at the border. These inspections might not have identified the contamination

in the wheat gluten from ChemNutra, because melamine was not recognized as a

potential contaminant at the time, but we think in many cases problems could be

detected at the border. Of course, now that we know about melamine, Government

agencies can also test for it at the border, and perhaps prevent future incidents involving that substance.

Third, Government agencies might increase plant inspections in the U.S. We do

not believe this would have prevented the melamine problem, but there may be

other more conventional hazards that might be detected through on-site inspection.

We believe that the focus of inspections outside the U.S. might be based on the

principle of reciprocity. Trading partners that have equivalent regulation to the U.S.

might be allowed to import products based on inspection and certification by local

authorities in which the U.S. Government has confidence. Suppliers in other countries might be inspected directly by U.S. agencies. Plant inspections in the U.S.

might be conducted on the basis of the risks of the business being conducted at the

plant. For example, good manufacturing processes, sanitation practices and inspections are important controls in meat processing plants, because of the risks associated with uncooked meat. By contrast, in human and pet food operations where

products are heat treated to sterilize them, the risks are different and may warrant

a different approach.

Fourth, because understanding relevant risks is so important, Government could

invest in development of better risk assessment processes. For example, central to

the current pet food recall is the procedure that uses nitrogen testing to estimate

protein content. It is possible that someone may have used melamine, which is rich

in nitrogen, to pass off inferior product. The nitrogen test was not designed to deter

cheaters but rather to estimate protein. What other rapid tests are used throughout

the food chain to estimate quality? Is there a risk that these tests can be abused,

as appears to have been the case with wheat gluten? If so, could mechanisms or

processes be developed to identify and address that risk?

Finally, Government might research or fund research of new technologies for fast,

accurate and affordable detection of contaminants in food ingredients. One of the

difficulties in the investigation of the wheat gluten situation was that there was no

established protocol for testing for melamine. So, the researchers first had to develop a testing method before they could even check for its presence. Even more valuable might be a method for rapid, accurate and cost-effective determination of the

presence of any contaminant in an ingredient or in finished product.

Sometimes even well respected manufacturers, like Menu, suffer problems caused

by others. We are working with the FDA and with our customers to resume our

business of providing nutritious, high-quality pet food for animals throughout North

America. We take pride in our products, and we also take responsibility for them.

We intend to do everything in our power to make things right for our customers

and to prevent this type of situation from ever occurring again.

Mr. STUPAK. And Mr. Sweat for 5 minutes, please, sir.
87

STATEMENT OF CHARLES SWEAT, PRESIDENT, NATURAL

SELECTION FOODS

Mr. SWEAT. Mr. Chairman and members of the committee, thank

you for allowing Natural Selection Foods the opportunity to be a

part of the important discussion about food safety in this country.

We are pleased to cooperate with the subcommittee’s investigation

in this hearing.

My name is Charlie Sweat, and I am the president of the company.

Before proceeding, I want to say that everyone in our company

remains deeply saddened by the human toll that this outbreak has

wrought. We are a company founded on the commitment to providing the healthiest food possible, and to learn that food processed by

us could have brought anything other than good health was devastating.

On September 14, we received a call from the FDA and the California Department of Health Services that there was an outbreak

of E. coli 0157:H7 linked to our fresh spinach. We were shocked to

learn that some of our products might be involved. Within 24

hours, at the suggestion of the investigators, we voluntarily recalled all products containing spinach under all brands that were

packaged in our facility.

Recently, the FDA and CDHS released a joint report on this incident. The report clearly states that no specific transmission vehicle

has been identified, but the report’s findings point to what we believed from the beginning: The contamination appears to have been

somehow linked to the natural environment in which the spinach

was grown. Samples matching the outbreak strain were found on

a cattle ranch just under a mile from where the spinach was grown

but never on the spinach field it self.

Prior to the outbreak, Natural Selection Foods’ protocols met or

exceeded industry best practices, including the FDA’s suggested

Good Agricultural Practices and even the FDA’s very recently

issued Guide to Minimize Microbial Food Safety Hazards of FreshCut Fruits and Vegetables. We also followed Good Manufacturing

Practices as outlined in the Code of Federal Regulations which are

verified by daily audits.

Further, we participate in the USDA’s Qualified Through Verification program, a voluntary program of unannounced inspections

for fresh-cut processors. Participation in QTV requires that our facilities are inspection ready every day, a demand far more rigorous

than what is called for by programs whose inspection schedules are

known in advance.

Our experience strengthens our resolve to challenge the thinking

about food safety in produce and develop new protocols that significantly heighten the safety of our products. Our efforts in this regard started almost immediately. While simultaneously working

with the FDA and CDHS investigators and coordinating our recall,

we worked tirelessly with some leading scientists in the country to

completely reinvent what state-of-the-art food safety means in

fresh produce.

Dr. Samadpour of IEH Laboratories, one of the country’s top food

safety scientists, has worked extensively in the beef industry in im-
88

proving safety protocols and reducing outbreaks associated with

beef. He has become a valuable consultant to our operations.

In addition, we have established a food safety advisory panel consisting of some of the premier food safety scientists in the country

from different academies, including University of Georgia, Rutgers

and U.C. Davis.

Within 2 weeks of the recall, we had launched an unprecedented

program of pathogen-specific testing in all of our raw, leafy greens.

We lab-test—independent third-party lab—all salad greens arriving

at our facility for potentially illness-causing E. coli and salmonella.

All greens are held until the test are completed, and only those

greens that show no presence of these pathogens are released for

processing.

In February 2007, we launched a finished product testing program as a final hurdle of food safety, following the same protocols

as our raw product test and hold program. We believe this kind of

testing is a key safety measure for produce that will be consumed

raw, since cooking is the only proven kill step for E. coli. We have also signed on to California’s new Leafy Green Handler

Marketing Agreement. Companies that have signed on have agreed

to purchase only from those growers who have accepted the Good

Agricultural Practices. This is a good first step for our industry.

But the GAP metrics, in their current form, are not enough.

Much more needs to be done, and we will continue to encourage development of standards to provide the strongest food safety program. We welcome regulation in this arena but also believe strongly that, with or without regulation, it is incumbent upon the individual companies and our industry as a whole to act to improve

food safety. Private industry can and should move faster than the

regulatory process. We have demonstrated that at Natural Selection Foods.

Everyone at Natural Selection Foods cares deeply about this outbreak and its victims and is committed to solving this vexing problem. We have faced many challenges in our 23 years, but none as

great or as important as this.

Again, we appreciate the opportunity you have given us to be

part of this important discussion. Thank you.

Mr. STUPAK. I thank you for your testimony.

[The prepared statement of Mr. Sweat follows:]
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Mr. Colo, please, for 5 minutes for your opening statement.

STATEMENT OF DAVID COLO, SENIOR VICE PRESIDENT,

OPERATIONS, CONAGRA FOODS, INCORPORATED

Mr. COLO. Good morning, Mr. Chairman and members of the

committee. My name is Dave Colo. I am the senior vice president

of operations for ConAgra Foods, Incorporated. Thank you for your

invitation to testify today about this important topic, the safety of

the Nation’s food supply. I want to assure the committee that we

are fully aligned with its objective of ensuring that our food supply

is among the safest in the world.

I appreciate the opportunity to share with you ConAgra Foods’

recent experience related to the finding of salmonella in our peanut

butter products.

First and foremost, we are truly sorry for any harm that our peanut butter products may have caused. As head of operations for

this company, I can assure you that not only do we take these

issues very seriously but we take them personally, as consumer

safety and health is our top priority.

There are four main messages that I want to discuss with you

today.

First, ConAgra Foods became aware of a potential issue the

evening of February 13, 2007. The Food And Drug Administration

contacted the company to schedule a call the following day to discuss a statistical study conducted by the Centers for Disease Control that suggested ConAgra’s peanut butter products may have

been linked to illnesses. The next day, February 14, after we spoke

directly with the CDC and learned the basis for their conclusions,

the company voluntarily recalled all peanut butter products and

closed the Sylvester, GA, facility.

Second, in addition to the recall, the company initiated a full investigation to determine the cause or causes of any potential salmonella in the product. ConAgra Foods worked with the FDA to

identify any potential source of contamination.

Based on its investigation, ConAgra Foods believes that moisture

inadvertently entered the production process and enabled the

growth of low levels of dormant salmonella already likely present

in the plant environment from raw peanuts or peanut dust. We believe the moisture was likely the catalyst that temporarily allowed

the salmonella to grow inside the facility. We believe the rate of

subsequent contamination was low and, as such, was not detected

by our finished product testing program, which employed standard

industry testing methods.

Third, the Sylvester Georgia facility is the only ConAgra Foods

location where peanut butter is manufactured, and this facility has

been idle since the recall was initiated on February 14.

The company is committed to addressing the suspected causes of

the contamination, and it will implement significant changes in the

facility, including installing new, state-of-the-art equipment, technology and design standards throughout the facility. The estimated

minimum cost of these facility modifications are 15 to $20 million.

ConAgra Foods is committed to taking the time necessary for

each of these steps, and we estimate that the facility is not likely

to reopen until August of this year.
98

Finally, in addition to our thorough investigation at the Sylvester

facility, ConAgra Foods is conducting additional comprehensive inspections of our other manufacturing facilities throughout the company. We have assembled a team composed of internal experts,

along with an external specialist in food safety risk, Dr. Mike

Doyle, that is in the process of visiting ConAgra’s Foods’ facilities,

contract manufacturers and suppliers.

Taken together, these measures reaffirm our commitment to food

safety and quality. The company will continue to work closely with

the FDA going forward and appreciates the excellent work of the

FDA and CDC throughout this process.

To clarify our interest in effective dialog with the FDA, we have

separately provided the committee with a summary of the procedures we will follow to assure rapid FDA access to company information.

Again, we are truly sorry for any harm that our peanut butter

products caused. We plan to make all changes necessary to the

manufacturing environment to ensure the situation does not occur

again. We are committed to the highest possible standards of food

safety throughout our operations, and we believe that measures we

have outlined today will clearly meet that commitment.

Thank you, Mr. Chairman.

Mr. STUPAK. Thank you.

[The prepared statement of Mr. Colo follows:]

TESTIMONY OF DAVID COLO

Mr. Colo will convey the following four main messages in his testimony:

• First, upon learning of a potential of salmonella Tennessee in our peanut butter

products, ConAgra Foods took prompt action to protect the public health by ceasing

all production and distribution, and voluntarily initiating a recall of all peanut butter in the marketplace manufactured at its Sylvester, GA facility, the only ConAgra

facility manufacturing peanut butter. • Second, the company conducted an in-depth investigation into the potential root

cause or causes of the salmonella Tennessee contamination. • Third, ConAgra will ensure that, before it resumes operations at its Sylvester,

GA facility, it will have addressed all the potential sources of salmonella contamination, such that the facility will serve as a model in the industry for the production

of safe and quality product. • And, fourth, ConAgra is taking steps to improve food safety standards for all

its food products.

Good morning Mr. Chairman and members of the committee. My name is David

Colo, and I am senior vice president of operations for ConAgra Foods, Inc., where

I have worked in various positions for the last 5 years. Thank you for your invitation to testify today about this important topic—the safety of the Nation’s food supply. I want to assure the Committee that we are fully aligned with its objective of

ensuring that our food supply is among the safest in the world.

ConAgra Foods is one of North America’s leading packaged food companies, serving grocery retailers, as well as restaurants and other foodservice establishments.

Popular ConAgra Foods consumer brands include: Banquet, Chef Boyardee, Egg

Beaters, Healthy Choice, Hebrew National, Hunt’s, Marie Callender’s, Orville

Redenbacher’s, PAM and many others, including Peter Pan. We operate over 100

manufacturing facilities in 30 States, as well as facilities in several international

locations.

I appreciate the opportunity to share with you ConAgra’s recent experience related to the finding of salmonella Tennessee in our peanut butter products, including

our Peter Pan brand peanut butter. First and foremost, we are truly sorry for any

harm that our peanut butter products may have caused, and we intend to resolve

any claims arising from the consumption of our peanut butter products as fairly and

expeditiously as possible. As the head of operations for this company, I can assure
99

you that, not only do we take these issues very seriously, but we take them personally because consumer safety has always been our top priority.

There are four main messages that I want to convey to you today. First, within

hours of its initial telephone conference with both the Food and Drug Administration (FDA) and the Centers for Disease Control (CDC) regarding this potential

issue, ConAgra Foods took prompt action to protect the public health by ceasing all

production and distribution, and voluntarily initiating a recall of all peanut butter

in the marketplace manufactured at its Sylvester, GA facility, the only ConAgra facility manufacturing peanut butter. Second, the company conducted an in-depth investigation into the potential root cause or causes of the salmonella Tennessee contamination. Third, ConAgra will ensure that, before it resumes operations at its Sylvester, GA facility, it will have addressed all the potential sources of salmonella contamination, such that the facility will serve as a model in the industry for the production of safe and quality product. And, finally, ConAgra is taking steps to improve

food safety standards for all its food products. I would add that, since this issue first

surfaced in mid-February, we have worked cooperatively with FDA, CDC and the

State of Georgia food safety officials. We have also been pleased to cooperate with

this committee’s investigation. Let me now describe these points in greater detail.

1. ConAgra Foods took prompt action to protect the public health by

ceasing all production and distribution, and voluntarily initiating a recall

of all peanut butter in the marketplace manufactured at its Sylvester, GA

facility, within hours of its first telephone conference with FDA and CDC.

ConAgra first became aware of a potential issue the evening of February 13, 2007,

when the FDA contacted the company to schedule a call the following day to discuss

an epidemiological study conducted by the CDC that suggested ConAgra’s peanut

butter products may have been linked to a salmonella illness outbreak. The next

day, February 14, after a series of telephone conversations with both the FDA and

CDC, the company initiated a voluntary recall from the market of 100 percent of

the peanut butter manufactured at our Sylvester, GA facility. The company simultaneously ceased all production and distribution of peanut butter products from that

facility. Throughout the process, ConAgra worked closely and cooperated fully with

FDA in all aspects of the recall, including in the collective efforts of the company

and FDA to inform the public about the scope of the recall.

2. ConAgra Foods conducted an in-depth investigation into the potential

root cause(s) of the salmonella Tennessee contamination.

In addition to initiating this prompt and comprehensive recall, the company initiated a full investigation to determine the root cause or causes of any potential salmonella in the product. ConAgra worked with the FDA to identify any potential

source of contamination.

On February 22, 8 days after ConAgra first initiated the voluntary recall, it was

notified by FDA of State laboratory findings confirming the presence of salmonella

in the company’s peanut butter products. ConAgra made a public announcement to

this effect that same day, and FDA made a similar announcement the following day.

Based on its investigation, ConAgra believes that raw peanuts and peanut dust

introduced some low levels of salmonella Tennessee into the plant. The presence of

salmonella is not unusual on raw agricultural products like peanuts. It appears that

moisture then inadvertently entered the production facility and enabled the growth

of low levels of dormant salmonella Tennessee. We believe the moisture was likely

the catalyst that temporarily allowed the salmonella Tennessee to grow inside the

facility. We further believe the salmonella Tennessee subsequently came into contact with peanut butter prior to packaging. Finally, we believe the rate of subsequent contamination was low and, as such, was not detected by our finished product

testing program which employed standard industry testing methods.

3. ConAgra will ensure that, before it resumes operations at its Sylvester,

GA facility, it will have addressed all the potential sources of salmonella

contamination, such that the facility will serve as a model in the industry

for the production of safe and quality product.

The Sylvester, GA plant is the only ConAgra location where peanut butter is manufactured, and this facility has been idle since the recall was initiated on February

14. No Peter Pan peanut butter has been sold by ConAgra to its customers since

that date.

ConAgra is continuing to work closely with the FDA to ensure that when operations resume in the Sylvester plant there will be no reoccurrence of this issue. The

company is committed to addressing the suspected causes of the contamination, and

it will implement significant changes in the plant, including installing new, stateof-the-art machinery, technology and designs throughout the facility. The estimated
100

minimum cost of these facility modifications is $15–$20 million. These costs are in

addition to the $50–$60 million cost associated with the recall and the significant

costs associated with the ongoing loss of sales.

Before resuming operations, the company will obtain an independent review by

an expert third-party and seek the concurrence of the FDA as to the adequacy of

the measures implemented. ConAgra is committed to taking the time necessary for

each of these steps, and we estimate that the facility is not likely to reopen until

August. While we are making these upgrades, we will partner with a reputable

third-party manufacturer to produce Peter Pan peanut butter to the highest quality

standards and to begin shipping product to retailers this summer.

4. ConAgra Foods is taking steps to improve food safety standards for all

its food products.

In addition to its thorough investigation at the Sylvester facility, ConAgra is conducting additional comprehensive inspections of its manufacturing facilities

throughout the company. We have assembled a team composed of internal experts,

along with an external specialist in food safety, that is in the process of visiting

ConAgra’s plants, contract manufacturers, and suppliers.

To bring additional focus and leadership to developing and implementing programs that continuously improve product safety and design, the company has appointed a recognized and well-respected food safety expert to a company-wide leadership position, vice president for Global Food Safety. This action will bolster our

existing, substantial food safety and quality expertise, and will consolidate responsibility for existing and future company-wide oversight of food safety initiatives and

systems. The company has hired Paul A. Hall, a leading expert with more than 30

years of experience in microbiology, food safety and food quality, to fill this position.

Hall joins ConAgra Foods from Matrix MicroScience, Inc., a leading producer of

technology for the rapid concentration, capture and detection of foodborne pathogens, including salmonella. Previously, he held product safety and quality-related

positions of increasing responsibility at another major food company.

We are also forming a Food Safety Advisory Committee, composed of leading independent, third-party experts in food safety, which will provide guidance to the company as part of our ongoing work with Government agencies, research institutions,

and scientists in the areas of food production and testing. This advisory committee

will provide guidance to the company in the areas of food production and testing,

and will advise the company in its plan to fund research involving the detection,

control and elimination of foodborne pathogens. The committee will be chaired by

Dr. Michael Doyle, director of the Center for Food Safety at the University of Georgia and one of the foremost authorities on foodborne pathogens in the world. The

company is currently working with Dr. Doyle to identify other members of the committee.

There is nothing more important to ConAgra Foods than the safety, quality, and

wholesomeness of our products. Through our work with the Food Safety Advisory

Committee, we will be able to leverage their expertise to ensure that we take all

reasonable steps to minimize the risk of foodborne illness.

Taken together, these measures reaffirm our commitment to food safety and quality. The company will continue to work closely with the FDA going forward and appreciates the excellent work of the FDA and CDC throughout this process. We also

thank our consumers and customers for their understanding, as well as for the role

they have played in ensuring public safety by returning and disposing of the recalled product.

Again, we are truly sorry for any harm that our peanut butter products caused

and intend to resolve claims arising from consumption of our peanut butter fairly

and expeditiously. We plan to make all changes necessary to the manufacturing environment to ensure this situation does not occur again. We are committed to the

highest possible standards of food safety throughout our operations and believe the

measures we have outlined today will clearly meet that commitment.

Mr. STUPAK. Mr. Miller, please, for your opening statement.

STATEMENT OF STEPHEN MILLER, CHIEF EXECUTIVE

OFFICER, CHEMNUTRA, LAS VEGAS, NV

Mr. MILLER. Thank you, Mr. Chairman and members of the committee, for inviting me to testify today on the subject that is clearly

important to many in this Nation—to everyone in this Nation, the

safety of pet food and the food supply in general.
101

My name is Steve Miller, and I am chief executive officer for

ChemNutra. ChemNutra is a small business, headquartered in Las

Vegas, Nevada. I am here today with ChemNutra’s FDA attorney,

Marc Ullman of Ullman, Shapiro and Ullman.

Before I proceed on behalf of ChemNutra, I want to express our

support and condolences for pet owners whose pets have fallen ill

or died as the probable result of contaminated pet food as well as

pet owners throughout North America who have become fearful

about their pets’ food following the news of contamination. We also

offer our sympathy for the difficulties imposed on the pet food businesses that were negatively impacted by this situation.

ChemNutra imports high-quality nutritional and pharmaceutical

ingredients from China to the United States. Those products come

from manufacturers either known to us personally or recommended

to us by a number of reputable and well-qualified training agents

with whom we have had long-standing relationships. Our U.S. customers are manufacturers of pet food and nutritional ingredients

who want high quality, the best service and competitive prices.

Until March 8 of this year, ChemNutra had never had an issue

or incident with its Chinese manufacturers, all of whom provide

certificates of analysis with their products, which is standard operating procedure for U.S. importers. It was on March 8 that

ChemNutra first learned that wheat gluten was one of many ingredients Menu Foods was investigating as suspect in cat illnesses.

That was nearly 3 weeks, according to Senate testimony, after

Menu Foods first learned of possible contamination of pet foods.

On that date, March 8, notwithstanding what we believed to be

a remote risk at the time, ChemNutra quarantined and ceased all

shipping, sales and marketing of wheat gluten in our possession,

from all sources. On March 16, Menu Foods issued its first recall;

and in doing so made no mention of wheat gluten. In fact, Menu

Foods said at that time it was testing some 20 ingredients, but to

date we have not heard a word about those testing results.

Shortly thereafter, on March 19 we received a request from the

Food and Drug Administration for all documents relating to wheat

gluten, to which we immediately and fully complied. However, it

wasn’t until March 29 that ChemNutra heard for the first time

that the FDA had found melamine in ChemNutra’s wheat gluten,

without quantification as to how much.

Between March 29 and April 1, I was in China and in communication with the FDA. Upon hearing of the traces of melamine, I

spoke with the president of our supplier, XuZhou Anying Biologic

Technology Development Company Limited, who said he didn’t

know there was melamine in their wheat gluten or how that could

have happened. He promised to look into it and to this day has not

provided us with additional information, despite many follow-up efforts on our part.

On April 2, after receiving further information from the FDA, we

issued a formal recall of contaminated wheat gluten. It is important to note that on March 8, when ChemNutra ceased shipments

of its wheat gluten, we had only four customers for that product,

one of which was Menu Foods. Prior to any scheduled shipment

customers—after that date, prior to any scheduled shipment, customers were made aware that our shipments were stopping.
102

It has been more than a month since this dreadful issue became

manifest. Over this period there have been a raft of surmises and

suppositions, but few facts. At this point, the only piece of information of which we can be certain is that melamine was contained in

shipments of wheat gluten we imported through XuZhou Anying

Biologic Technology Development Company Limited.

However, we at ChemNutra strongly suspect, at this point, that

XuZhou Anying Biologic Technology Development Company Limited may have added melamine to the wheat gluten as an economic

adulteration designed to make inferior wheat gluten appear to have

a higher protein content. They can sell it to us at the price we

would pay for higher quality product because the melamine, our experts tell us, falsely elevates the results of a nitrogen contents test

used to assess protein content. Melamine is not something that we

or anyone else, including the FDA, was ever testing for in the past,

though of course we are now.

We have recently been told there was a prior history of this same

kind of economic adulteration related to a similar agricultural commodity about three decades ago where this commodity was adulterated with urea, another nitrogen intensive additive, which had at

the time become inexpensive enough to use economically to fool the

protein testing. Subsequently, that commodity has been tested for

urea.

I want to thank the committee for this opportunity to tell the

ChemNutra story in an unvarnished and factual manner; and I

hope that my testimony will help you develop protocols, regulations

or laws that will preclude this sort of event from occurring in the

future.

Mr. STUPAK. Thank you.

[The prepared statement of Mr. Miller follows:]

STATEMENT OF STEVE MILLER

Thank you, Mr. Chairman and members of the Committee, for inviting me to testify today on a subject that is so clearly important to many in this nation, the safety

of pet food and the food supply in general.

My name is Steve Miller and I’m chief executive officer of ChemNutra.

ChemNutra is a small business, headquartered in Las Vegas, Nevada. I am here

today with ChemNutra’s FDA attorney, Marc Ullman of Ullman, Shapiro and Ullman.

Before I proceed, on behalf of ChemNutra I want to express our support and condolences for pet owners whose pets have fallen ill or died as the probable result of

contaminated pet food, as well as pet owners throughout North America who have

become fearful about their pets’ food following news of the contamination. We also

offer our empathy for the difficulties imposed on pet food businesses that were negatively impacted by this situation.

We import high-quality nutritional and pharmaceutical chemicals from China to

the United States. Those products come from manufacturers either known to us personally or recommended to us by a number of reputable and well-qualified trading

agents with whom we have had long-standing relationships. Our US customers are

manufacturers of pet food, and nutritional ingredients who want high quality, the

best service, and the most competitive prices.

Until March 8 of this year, ChemNutra had never had an issue or incident with

its Chinese manufacturers, all of whom provide certificates of analysis of their products, which is standard operating procedure for U.S. importers. It was on March 8

that ChemNutra first learned that wheat gluten was one of many ingredients Menu

foods was investigating as suspect in cat illnesses. That was nearly three weeks, according to Senate testimony, after Menu Foods first learned of possible contamination of pet foods.
103

On that date, March 8, notwithstanding what we believed to be a remote risk at

that time, ChemNutra quarantined and ceased all shipping, sales, and marketing

of wheat gluten in our possession, from all sources. On March 16, Menu Foods

issued its first recall and in doing so, made no mention of wheat gluten. In fact,

Menu Foods said at that time that it is testing some 20 ingredients, but to date,

we have not heard a word about those testing results.

Shortly thereafter, on March 19, we received a request from the Food and Drug

Administration for all documents relating to wheat gluten, to which we immediately

and fully complied. However, it wasn’t until March 29 that ChemNutra heard for

the first time that the FDA had found melamine in its wheat gluten, without quantification as to how much.

Between March 29 and April 1, I was in China and in communication with the

FDA. Upon hearing of the traces of melamine, I spoke with the president of our supplier, XuZhou Anying Biologic Technology Development Co. Ltd, who said he didn’t

know there was melamine in their wheat gluten or how that could have happened.

He promised to look into it and, to this date, has not provided us with additional

information despite many follow-up contacts on our part.

On April 2, after receiving further information from the FDA, we issued a formal

recall of the contaminated wheat gluten. It’s important to note that on March 8,

when ChemNutra ceased shipments of its wheat gluten, we had only four customers

for that product, one of which was Menu Foods. Prior to any scheduled shipment,

customers were made aware that our shipments were stopping.

It has been more than a month since this dreadful issue became manifest. Over

this period there have been a raft of surmises and suppositions, but few facts. At

this point, the only piece of information of which we can be certain is that melamine

was contained in a shipment of wheat gluten we imported through XuZhou Anying

Biologic Technology Development Co. Ltd.

However, we at ChemNutra strongly suspect, at this point, that XuZhou Anying

Biologic Technology Development Co. Ltd may have added melamine to the wheat

gluten as an ‘‘economic adulteration’’— designed to make inferior wheat gluten appear to have a higher protein content. They can sell it to us at the price we would

pay for a higher-quality product because the melamine, our experts tell us, falsely

elevates the results of a nitrogen-content test used to assess protein content. Melamine is not something that we or, anyone else, including the FDA was ever testing

for in the past, though of course we are now.

We have recently been told that there was a prior history of this same kind of

economic adulteration related to a similar agricultural commodity about three decades ago, where this commodity was adulterated with urea, another nitrogen intensive additive, which had at the time become inexpensive enough to economically use

to fool the protein testing. Subsequently, that commodity has been—tested for urea.

I want to thank the committee for this opportunity to tell the ChemNutra story

in an unvarnished and factual manner and I hope that my testimony today will help

you develop protocols, regulations or laws that will preclude this sort of event from

occurring in the future.

CHEMNUTRA FREQUENTLY ASKED QUESTIONS

What Is Chemnutra’s Responsibility In The Pet Deaths?

• What we know at this point (April 15, 2007) is that the FDA suspects there

may be a direct or indirect connection between pet deaths and illnesses and the melamine found in the wheat gluten supplied to ChemNutra by a single Chinese manufacturer, XuZhou Anying Biologic Technology Development Co. Ltd.

• ChemNutra had no idea that melamine was an issue until being notified by

the FDA on March 29. In fact, ChemNutra had never heard of melamine before. It’s

simply not a chemical even on the radar screen for food ingredient suppliers.

• Consistent with industry practices, we require that our suppliers test for protein content, moisture, ash, water absorption rate, particle size and appearance. We

examine the Certificate of Analysis provided by our supplier to ensure it has complied. We now know that what we received was not food grade wheat gluten, as we

had ordered and what appeared in the shipping documents, but wheat gluten adulterated to appear as food grade when it was in fact not. Food grade wheat gluten

is always 75 percent protein content, but that’s not what we received. The melamine

content made it appear as if it had a higher protein content.

• Ingredient testings is not what one sees on CSI, where one sample is examined

and it tells you every chemical in it. We require tests for pre-identified risk and

quality-related factors. Melamine was not one of those pre-identified risks before.

Now, of course, it is and we have begun independently testing our wheat gluten

from other suppliers.
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When Did Chemnutra First Learn There Was A Potential Problem With Its Product

A specific timeline regarding the events accompanies this document and is available on our Web site at http://www.chemnutra.com/media.htm and accompanies

this document.

According to Senate testimony, Menu Foods knew there was a potential problem

long before we did. • On or about March 6, Menu Foods informed ChemNutra that it didn’t want

any more wheat gluten. Menu Foods told ChemNutra that this was because of a

need for a different water absorption factor in their wheat gluten; that type of requirement changes all the time. • On March 8 Menu Foods told ChemNutra that our wheat gluten was one of

many products it was investigating, so clearly Menu Foods already had an investigation well in progress. In response to what seemed to be an extremely remote risk

at the time, ChemNutra quarantined and ceased shipments of all wheat gluten in

its possession, from any manufacturer. • Menu Foods asked ChemNutra questions for several days thereafter and each

time we responded rapidly. Menu Foods wanted ChemNutra to ask XuZhou whether

its wheat gluten had any of four substances that Menu Foods suspected might cause

renal failure: propylene glycol, heavy metals, Ochratoxin or Easter Lily Flower.

Menu Foods never asked about melamine.

• On March 16, Menu Foods issued its first product recall, but immediately after

the recall, the company told ChemNutra that it was still investigating approximately 20 ingredients. As of the date of this document, ChemNutra has heard nothing further about the ingredients other than wheat gluten Menu Foods claims to be

investigating.

• On March 19, an investigator from the FDA’s Las Vegas office told ChemNutra

the FDA wanted to visit ChemNutra to obtain ChemNutra’s records regarding

wheat gluten supplied to Menu Foods. ChemNutra maintains thorough, accurate

and comprehensive records and complied fully and promptly with the FDA’s request.

• The aminopterin found in three cans of Menu Foods, reported by the State of

New York on March 23, was inaccurately associated with wheat gluten from China

and, in fact, aminopterin wasn’t found in the wheat gluten we supplied. Aminopterin is illegal for use in China.

• The word ‘‘melamine’’ wasn’t mentioned by any entity until late in the day on

March 29, when the local FDA investigator returned to tell ChemNutra the FDA

found melamine in ChemNutra’s wheat gluten. However, the FDA investigator

couldn’t confirm the quantities until the next day, March 30. On March 30

ChemNutra Chief Executive Officer, Steve Miller met personally with the president

of XuZhou Anying to demand more information. At that time, XuZhou’s president

claimed no knowledge of how melamine contamination could have occurred and

promised to investigate. Since then he has been unresponsive to requests for information.

How Does ChemNutra Identify And Screen Suppliers?

• XuZhou Anying was recommended to ChemNutra by one of China’s leading

trading companies, one with which we have had a long-term relationship. This is

a standard way that American importers identify Chinese suppliers who are supposed to be reliable.

• Once suppliers are identified, ChemNutra examines samples from the recommended suppliers; checks their business certifications and conduct other research

about them. XuZhou’s paperwork indicated that it is ISO 9000 and HACCP certified;

and ensures that they also hold Chinese certifications from five other organizations

that attested to its credit quality, reliability and product quality.

• We are very distressed that to date XuZhou has not responded to our requests

for more information nor, apparently, to U.S. Government requests.

What Did Chemnutra Do To Prevent This From Happening/What Will It Do Differently Now

• ChemNutra has an excellent compliance record with all applicable regulatory

authorities.

• If the Pet Food Institute, the FDA or ChemNutra’s customers make further

recommendations as a result of this situation, we will fully comply with them. Obviously, that will now include testing for melamine in wheat gluten.

• ChemNutra knows that procedures for evaluating suppliers and products for

importation will change as a result of this pet food recall. We plan to be actively

involved in developing and implementing these procdures. ChemNutra, as always,

will fully assist all regulatory and standards authorities, including the FDA, in de-
105

signing these procedures. This is a problem that needs to be resolved, and

ChemNutra intends to take an active role in designing the solutions.

How Many ChemNutra Products Are Affected?

• Only one, wheat gluten from only one supplier, XuZhou Anying Biologic Technology Development Co. Ltd., was affected. Most of our other ingredients are pharmaceutical grade, from suppliers already reviewed and approved by our customers.

How Will This Affect ChemNutra’s Business

• All of our customers except Menu Foods understand that ChemNutra was a

victim in this situation. A number of them have been asking questions, but Menu

Foods is only customer that has cancelled its contract with ChemNutra. • ChemNutra has continued to receive new orders for wheat gluten that we obtain from other suppliers, which we will release only after we have tested it for melamine. We have also received orders for other products. • We believe our customers understand that—just as with some of the recent e.

coli cases that were tracked back to growers in California—that even when you have

vendors with good reputations, product contamination does occur on rare occasion. • ChemNutra is financially strong, and we’re in this business for the long haul. • We have excellent relationships with our suppliers in China, who also understand what happened in this situation. We represent several of them exclusively in

the United States

How Do You Know Your Other Products Are Safe?

• Wheat gluten was the only product ChemNutra purchased from XuZhou

Anying. • ChemNutra currently sells only nine ingredients. Each of them have their own

testing requirements as dictated by regulation, our customers and/or ChemNutra’s

own high standards. While this situation will certainly make ChemNutra even more

vigilant with all suppliers, we have had no health-related issues with other products. Most of these products are pharmaceutical grade • We will only add new ingredients when we can confirm quality control with

Chinese manufacturers.

What Are ChemNutra’s And/Or Its Principals’ Qualifications To Be In The Ingredients Business?

• Steve Miller has more than 20 years of experience in business management,

finance, marketing and the law. Sally Miller, president, is Chinese, with wide-ranging experience doing business in China. • Since ChemNutra’s inception, it has been bonded with U.S. Customs, and registered with the FDA under the Bioterrorism Act. ChemNutra has all appropriate

business licenses and registrations and fully complies with any inspection requests

from regulatory authorities on any ingredients it imports. • ChemNutra has always offered its customers an unconditional money-back

guarantee on our products—they can return them if dissatisfied at any time, for a

full refund • Our policy is to provide the best customer service available and the most reliable delivery and timing for shipments from China of anyone in the industry, and

thChemNutra far many of our customers have attested that we accomplish this.

Why Does Wheat Gluten Need To Be Imported From China?

• Less than 25 percent of the United States’ wheat gluten needs can be supplied

domestically. As much as 30 percent of this country’s wheat gluten imports come

from China and the rest from Europe, Russia and Australia.

Does ChemNutra Import Rice Protein Concentrate From China?

• ChemNutra uses a large, reputable—trading company in China to import rice

protein concentrate, Suzhou Textiles, which purchases ChemNutra’s rice protein

concentrate from Shangdong ShunFengFan. ChemNutra never bought—any rice

protein concentrate from Xuzhou Anying, the manufacturer of the tainted wheat

gluten. We are testing all imported rice protein concentrate through independent,

third-party U.S. laboratories.

CHEMNUTRA TIMELINE OF EVENTS RELATED TO PET FOOD RECALLS

February 20, 2007: Menu Foods learns of contamination in pet food (Source: Senate Hearing)

March 6, 2007: Menu Foods informs ChemNutra to stop shipments of wheat gluten, ostensibly because of a specification change relating to the water absorption factor.
106

March 8, 2007: Menu Foods informs ChemNutra that wheat gluten was one of

many ingredients it was investigating as suspect in cat illnesses. Menu Foods wanted information as to whether XuZhou Anying’s wheat gluten had any of four substances that Menu Foods suspected might cause renal failure: propylene glycol,

heavy metals, Ochratoxin or Easter Lily Flower. Menu Foods never asks about melamine. ChemNutra, notwithstanding what it believed to be a remote risk at that

time, quarantines all wheat gluten—from all sources—in its possession.

March 16, 2007: Menu Foods issues first product recall and related press release,

which does not ID wheat gluten as the primary suspect source. (Cite: Menu Foods)

March 19, 2007: Food and Drug Administration notifies ChemNutra that it wants

records relating to wheat gluten shipments. ChemNutra immediately complies.

March 23, 2007: State of New York reports aminopterin found in three cans of

Menu Foods. This was inaccurately associated by some media with wheat gluten

from China, as aminopterin wasn’t found in the wheat gluten ChemNutra supplied.

Aminopterin is illegal for use in China.

March 24, 2007: Menu Foods recalls all varieties of ‘‘wet’’ pet food. (Cite: Menu

Foods)

March 29, 2007: Melamine is mentioned to ChemNutra for the first time by the

Food and Drug Administration, which says it has found evidence of the chemical

in the wheat gluten, but does not quantify how much until the next day.

March 31, 2007: ChemNutra Chief Executive Officer Steve Miller meets in-person

with the president of XuZhou Anying Biologic Technology Development Co. Ltd, who

says he didn’t know there was melamine or how it could have become mixed with

XuZhou Anying’s wheat gluten and promised to look into it.

April 2, 2007: ChemNutra recalls all XuZhou Anying wheat gluten sold to

ChemNutra’s customers.

April 5, 2007: All Menu Foods pet food in Canada and the United States using

ChemNutra wheat gluten voluntarily recalled; expands recall to cover product distributed back to November 8, 2006. (Cite: Menu Foods)

April 10, 2007: Menu Foods voluntarily recalls additional pet food made with

ChemNutra wheat gluten manufactured at a Canadian facility. (Cite: Menu Foods)

April 12, 2007: Government scrutiny, as reported by the media and at Senate

hearings, focuses on possibility of deliberate contamination by XuZhou Anying Biologic Technology Development Co. Ltd and actions of Menu Foods during time period leading up to first recall.

Mr. STUPAK. Thank you all for your testimony and for being

here.

Mr. Miller, you indicated that your company had four customers.

One of them was Menu Foods, the other three customers that you

had shipped this wheat gluten to, too, is that correct?

Mr. MILLER. Yes.

Mr. STUPAK. What do they make?

Mr. MILLER. Two of them make pet food, and the third one distributed wheat gluten to pet food companies.

Mr. STUPAK. So it is basically pet food is where it goes?

Mr. MILLER. All pet food.

Mr. STUPAK. Once you realized that melamine may have something to do with these problems with the pets and their deaths and

their illnesses, what did you do with your wheat gluten that you

had left?

Mr. MILLER. All of the wheat gluten has ever since March 8 been

in our warehouse and basically quarantined.

Mr. STUPAK. Do you have any plans to dispose of it?

Mr. MILLER. We are working with the FDA right now to dispose

of it in ways that are acceptable to the FDA.

Mr. STUPAK. OK.

Mr. Colo, on behalf of ConAgra, in October 2004, you found salmonella poisoning or, I should, say salmonella in your peanut butter, right?

Mr. COLO. That is correct.
107

Mr. STUPAK. And in I believe it was March 2005 the FDA came

and asked about that salmonella, if you had any troubles, is that

correct?

Mr. COLO. That is correct.

Mr. STUPAK. And disagreement here. FDA tells us they asked for

information. I understand ConAgra says, put it in writing. Either

way, the FDA never obtained the information they were looking for

based on that 2004 salmonella, right?

Mr. COLO. The situation, just to be clear, was we had a positive

salmonella on finished product that we held at our facility. The

product was never shipped from our Sylvester, GA, facility. It was

contained and destroyed in the process.

Mr. STUPAK. The FDA asked for those records in 2005.

Mr. COLO. FDA asked for the records in February 2005, that’s

correct.

Mr. STUPAK. And they have never been provided to the FDA.

Mr. COLO. We simply asked the FDA to request the information

in writing and that we would be happy to forward them——

Mr. STUPAK. Have they ever put it in writing?

Mr. COLO. The FDA never put it into a written request to us.

Mr. STUPAK. Did they follow up after—I believe this is after

March 2005. Did they follow up with ConAgra and ask for the information again without putting it in writing?

Mr. COLO. No, they did not; and it was February 2005.

Mr. STUPAK. Has there been any other time in which the FDA

or USDA asked ConAgra, either on E. coli, salmonella, botulism,

about possible contamination and ask for your records where

ConAgra did not provide it to the FDA?

Mr. COLO. Again, what we would typically do in those situations

is simply ask for the FDA to request that information in writing

Mr. STUPAK. I am asking if there has been other incidences.

There have been rumors circulating around here that ConAgra just

sort of says, put it in writing, sort of stonewalls requests, never

happens. We know of October 2004 in which they followed up in

March 2005. The point I am trying to—is there any other time in

which information was requested and not provided whether it is in

writing or not.

Mr. COLO. I am not aware of all the requests that would come

from the FDA. So I am not sure that I can answer that question

appropriately at this time.

Mr. STUPAK. Could you check and follow back with the committee? We keep this record open for 30 days, so you can follow and

check up for that for us.

Mr. COLO. Absolutely.

Mr. STUPAK. Mr. Henderson, you indicated that I think you used

the word fraud in your testimony that this melamine put in there

was a fraud. It was intentional.

Mr. HENDERSON. Yes.

Mr. STUPAK. Wheat gluten is used in things other than pet food;

correct?

Mr. HENDERSON. That would be my understanding, yes. Pizza is

an example.

Mr. STUPAK. I mean, food like tofu and other things like this; correct?
108

Mr. HENDERSON. Correct.

Mr. STUPAK. Then what happened to you, is there any way we

know then if other wheat gluten or other products or other things

have been intentionally altered? You don’t know until after the

fact; right?

Mr. HENDERSON. You don’t know until after the fact. Certainly,

the presence of melamine was a particular problem during this

process simply because there was not—it was such a foreign additive or contaminant. There wasn’t a testing protocol for identifying

it. So we could have—what we are aware of is what has happened

to us. Whether it happened before or is happening now, we couldn’t

comment.

Mr. STUPAK. You don’t know. And you place your order then with

Mr. Miller’s company; right?

Mr. HENDERSON. That’s correct.

Mr. STUPAK. And then he ships it to you?

Mr. HENDERSON. Yes, he does.

Mr. STUPAK. And Mr. Miller, you receive it from China; right?

Mr. MILLER. Yes.

Mr. STUPAK. And before this instance, did you ever do any testing of any of the products that came from China.

Mr. MILLER. No. There was no known issue to test for.

Mr. STUPAK. You indicated that your supplier in China basically

was recommended by other people in the industry?

Mr. MILLER. By a trading company that we have that we worked

with over a long number of years that we had a lot of confidence

in.

Mr. STUPAK. Had you ever used this company before?

Mr. WHITFIELD. Mr. Chairman, I would ask unanimous consent

that we each be given 10 minutes and that you——

Mr. STUPAK. No objection, go ahead.

Have you ever used these companies before that you got the

wheat gluten from?

Mr. MILLER. Yes, we had.

Mr. STUPAK. And never any trouble?

Mr. MILLER. No trouble whatsoever.

Mr. STUPAK. Had there been any complaints about their products

before, about the low protein content or anything?

Mr. MILLER. This was a new product for us.

Mr. STUPAK. From this company? You have used the company before in China but just not this product?

Mr. MILLER. This was the first company we imported—we just

started last fall in this business. This is new product for us.

Mr. STUPAK. OK. Mr. Sweat, we heard testimony here earlier,

and I have been showing this. On the back here, it says, Salinas,

CA. Would this come out of your plant? Probably, this, I think it

is fresh discoveries now.

Mr. SWEAT. I would have to look at the production code. Does it

start with a J or a Y?

Mr. STUPAK. Y097B21.

Mr. SWEAT. That would have come out of our Yuma, AZ, facility.

Mr. STUPAK. You have a plant in——

Mr. SWEAT. We have a plant in San Juan Bautista, CA, and we

have a plant in Yuma, Arizona.
109

Mr. STUPAK. Is San Juan Bautista, is that considered Salinas

Valley?

Mr. SWEAT. It is about 25 miles north of Salinas.

Mr. STUPAK. There has been some discussion about completely

washed. What does that mean?

Mr. SWEAT. What we do with the salad greens, after they are

harvested and brought into our facility, we mix them into a mixing

belt for the different ingredients, and then we put them through

a chilled chlorinated wash, and that chlorine is used as a sanitizer

for the wash system.

Mr. STUPAK. That does not a take out E. coli, though; does it?

Mr. SWEAT. No, it is not a kill step. It is a deterrent for microbial

load, but it is not a kill step.

Mr. STUPAK. Prior to this incident, did you do any testing for E.

coli?

Mr. SWEAT. In the 22 years we have been in business, we have

never had a foodborne illness, so our GAP programs that we have

in our fields, our GMPs in our plant and our HACCP program on

inventory control——

Mr. STUPAK. But you were in the Salinas Valley where, in the

last 10 years, you have had basically 20 different recalls or things

like E. coli, and then the company never felt necessary to do testing?

Mr. SWEAT. We weren’t involved in any of those. I don’t know

what the issues were in those. But what we did do as a result of

this outbreak is we got outside the box a little of produce, and we

went to the beef industry to learn a little bit about what they were

doing. And that is where the testing programs that we implemented a couple weeks after the outbreak were derived from.

Mr. STUPAK. It says, Product of U.S. and Mexico. But you said

this is from Yuma. Would part of this salad have come from Mexico, too?

Mr. SWEAT. Potentially, it could. We do have farms that grow in

Mexico, that we bring product into the U.S. on.

Mr. STUPAK. I understand that it comes in to your plant. Once

it comes in, out of the field, it is packaged right in and shipped

right out in these plastic containers. Even though it may say Dole,

it is your plant; right?

Mr. SWEAT. It is our processing facility, but then Dole picks that

product up at our facility, and they distribute it out.

Mr. STUPAK. Has the FDA ever inspected your facilities?

Mr. SWEAT. Yes. We have worked with the FDA on a collaborative basis on our programs over the years. They come in frequently.

Mr. STUPAK. How frequently?

Mr. SWEAT. Last time they were there was in August, reviewing

our facilities.

Mr. STUPAK. August 2006?

Mr. SWEAT. August 2006 the actual week of the spinach that was

linked.

Mr. STUPAK. Did they do any testing or did they come in and

look around?

Mr. SWEAT. What they do is they come in and look at our documents. We provide them with all our documents on our program,
110

and they review all of our compliance with all our programs and

controls.

Mr. STUPAK. But you’re not required to do any testing.

Mr. SWEAT. Voluntary regulations and guidelines from the FDA

do not require any testing.

Mr. STUPAK. So they are just looking at how you are handling

a product?

Mr. SWEAT. They are looking at our processes; that is correct.

Mr. STUPAK. So other than making sure that the area is sort of

sanitary, there is no testing for E. coli then that is done by the

FDA?

Mr. SWEAT. There is none at this point in time.

Mr. STUPAK. Mr. Henderson if I may ask you on testing, now

Menu Foods, you are in U.S. and Canada right?

Mr. HENDERSON. Yes, we are.

Mr. STUPAK. Are you inspected by the FDA?

Mr. HENDERSON. We have been inspected in the Pennsauken facility in 2006 by the FDA.

Mr. STUPAK. In 2006?

Mr. HENDERSON. Yes.

Mr. STUPAK. Do you recall any time before 2006 by the FDA?

Mr. HENDERSON. We have been inspected prior to that. I don’t

have the dates.

Mr. STUPAK. Every year do you think or——

Mr. HENDERSON. Our head of technical services estimated it was

about once a year.

Mr. STUPAK. Do other agencies inspect your plant?

Mr. HENDERSON. USDA APHIS, inspects us once a year. The Canadian plant is inspected by the equivalent the CFIA. We are inspected by both the USDA and CFIA to allow us to export to Europe so they are looking at it not only from the Canadian and U.S.

protocols but also from the European protocols.

Mr. STUPAK. We have had some outbreaks here with wheat gluten in San Francisco, France, Canada, Connecticut and in your

place. Do you get together and share information when you hear

of outbreaks in other areas, let’s say, like France or up in Canada,

or is it only if it involves your company?

Mr. HENDERSON. Excuse me, get together with whom?

Mr. STUPAK. Other authorities from Canada, what is going on if

you detected something, something in France? It is all wheat gluten; apparently wheat gluten is a big part of your product here.

Mr. HENDERSON. Relative to this experience, which is the only

one I can relate to, we have essentially coordinated through the

FDA. FDA was in touch with European authorities and in touch

with the Canadian authorities, and we relied on them to ensure the

communication——

Mr. STUPAK. From a company-to-company point of view, there is

no contact back and forth; just work through your regulatory agency?

Mr. HENDERSON. In that particular case, the company is also a

member of the pet food institute. At the time that there was something to talk about, which was the presence of melamine, that was

the topic for discussion. When the recall was initiated, the recall
111

was initiated on the basis of, we did not know what the problem

was. We just have to recall.

Mr. STUPAK. All right.

Mr. Whitfield, questions, 10 minutes.

Mr. WHITFIELD. Thank you, Mr. Chairman.

And Mr. Henderson, Menu Foods, is that a publicly traded company, or is it a private company?

Mr. HENDERSON. It is a publicly traded income trust. It is essentially a publicly traded company in Canada. It is on the Toronto

stock exchange.

Mr. WHITFIELD. And I think you said you have been in business

35 years?

Mr. HENDERSON. We were incorporated in 1971, so it is just over

36.

Mr. WHITFIELD. And what would be the volume of wheat gluten

that your company would use per year or per month, or do you

have any idea?

Mr. HENDERSON. I am afraid I don’t. I can’t give you a number

that would be reliable.

Mr. WHITFIELD. But you obviously purchase it from more than

just Mr. Miller’s firm.

Mr. HENDERSON. We have been purchasing it from multiple

sources in the United States, from Europe and from Mr. Miller’s

company.

Mr. WHITFIELD. And of the total amount of wheat gluten that

you purchase, what percent would you say comes from the United

States?

Mr. HENDERSON. Again, I don’t have those numbers at my finger

tips, so I can’t give you——

Mr. WHITFIELD. Mr. Miller you had mentioned in your testimony

that, of the wheat gluten that is used in the United States, that

only about 25 percent of it is produced domestically. Is that correct?

Mr. MILLER. I believe that to be true.

Mr. WHITFIELD. So 75 percent of the wheat gluten used in the

U.S. is imported from some other country, is that correct?

Mr. MILLER. Yes that is an approximate number that is, I believe

to be, true.

Mr. WHITFIELD. Now the president of your company is your wife;

is that correct?

Mr. MILLER. Correct.

Mr. WHITFIELD. And she is Chinese. She is from China.

Mr. MILLER. That’s correct.

Mr. WHITFIELD. One of the things I was a little bit puzzled

about, I can understand why China, the company that you purchased this wheat gluten from would not be particularly responsive

maybe from a company in the U.S., even though I am sure they

want to cater to their customers, but since your wife is a citizen

of China, she would—you would have some recourse against this

company, I am assuming. Is that true or not?

Mr. MILLER. We haven’t looked into it that. It may be true.

Mr. WHITFIELD. But that is obviously something that you will be

looking into.

Mr. MILLER. Yes.
112

Mr. WHITFIELD. OK. One area that I wanted to look at briefly relates to finished product testing programs. And Mr. Henderson, in

your finished product testing program, what is actually entailed in

that? And I am assuming that that testing program would not detect melamine in the final product. Would I be accurate in that or

not?

Mr. HENDERSON. That would be accurate. The programs for testing it that are undertaken at Menu Foods as is the case with most

pet food companies that we would certainly be aware of is the testing of the raw materials that go into the pet food, essentially the

objective would be to detect it before it gets into the finished product rather than test it after the finished product is made.

Essentially there is a commercial sterilization process by which

the pet food is cooked which will essentially deal with any contaminant such as bacterial or E. coli or anything along those lines. But

it is from a perspective of control we are looking at testing the raw

materials. Relative to melamine, it was simply a substance that

was not known. There was no testing protocol relative to wheat

gluten; we would essentially test for the toxins we would generally

associate with wheat. In this case, we would test every load of

wheat gluten for a vomatoxin in accordance with protocols established by the appropriate authorities.

Mr. WHITFIELD. Is that the only wheat gluten that your company

used that had melamine in it, came from Mr. Miller’s firm; is that

correct?

Mr. HENDERSON. That’s correct.

Mr. WHITFIELD. Now you sell a lot of pet food in the U.S., so this

final product, this finished product testing program, are there regulations relating to that that comes from the FDA? Or are these just

internal programs that you have in effect?

Mr. HENDERSON. The programs that we have in effect are those

that are established by Menu Foods based on essentially the experience of the organization and common practices within the industry.

Mr. WHITFIELD. So FDA does not have any regulations relating

to finished product testing?

Mr. HENDERSON. Relative to finished product testing? Not that I

am aware of, no.

Mr. WHITFIELD. Do you agree with that, Mr. Colo? Does FDA

have any regulations relating to finished product testing?

Mr. COLO. Not that I am aware of, no, sir.

Mr. WHITFIELD. You, of course, do finished product testing, but

you have indicated that you did not detect the salmonella in the

Peter Pan peanut butter; correct?

Mr. COLO. In the current recall situation, that is correct.

Mr. WHITFIELD. So wouldn’t you want your finished product testing to detect salmonella or——

Mr. COLO. Yes, absolutely. Our procedure is that we sample one

jar of peanut butter per packing line per hour every day that the

facility operates. We test for salmonella. We hold all finished product at our facility until we get the test results back to confirm that

there is not the presence of salmonella prior to releasing the product for shipment.
113

Mr. WHITFIELD. And for you and Mr. Sweat, is there some method that you could expose your product to that would definitively remove E. coli bacteria as well as salmonella?

Mr. SWEAT. At this point, we don’t have a kill step as that would

be defined for fresh produce. That is one of the reasons we have

moved forward with our testing protocols is to help to detect it to

prevent it from entering the chain of commerce.

Mr. WHITFIELD. Now irradiation I guess can be used in meat

products, but can irradiation be used in vegetables?

Mr. SWEAT. Radiation has not been approved for use by the FDA

on fruits and vegetables.

Mr. WHITFIELD. And certainly not on peanut butter, I wouldn’t

think.

Mr. COLO. That is correct.

Mr. WHITFIELD. Mr. Colo, you had stated in your testimony that

you first became aware of possible salmonella in your peanut butter on February 13 when the FDA contacted you. But prior to that

date, did ConAgra have any consumer complaints or reports of illnesses made by consumers directly to ConAgra or through your

consumer hotline?

Mr. COLO. No complaints were received relative to consumer illness for salmonella, no, sir.

Mr. WHITFIELD. OK. I have no further questions.

Mr. STUPAK. Thank you. I go to the gentlelady from Colorado,

Ms. DeGette, for questioning for 10 minutes.

Ms. DEGETTE. Thank you, Mr. Chairman.

Mr. Sweat, they never did find out what caused the contamination in that spinach, did they, definitively?

Mr. SWEAT. That’s correct.

Ms. DEGETTE. Are they still making efforts to find that out?

Mr. SWEAT. I think what I understand now that they have published their report that they have closed their investigation on that

particular incident, but I know we are working collaboratively as

an industry with the agencies going forward.

Ms. DEGETTE. I’m sure you would like to know, for example.

Mr. SWEAT. Yes.

Ms. DEGETTE. You said that after your company found out about

the contamination, you instituted a 24-hour voluntary recall; is

that correct?

Mr. SWEAT. That’s correct.

Ms. DEGETTE. I am wondering if you have any view on when, if

we gave the FDA ability to do mandatory recalls, if they were

aware of a situation?

Mr. SWEAT. I think, as a company, when you are concerned about

public health and safety, you will recall product if there is any risk

at all.

Ms. DEGETTE. For one thing there is a liability risk, but what

about giving the FDA——

Mr. SWEAT. We wouldn’t have any problem if there was a risk

to have mandatory recall authority with the FDA.

Ms. DEGETTE. Great, thank you.

I want to follow up with Mr. Colo on the questions that Mr. Stupak was asking you about the 2005 inspection of the ConAgra

plants in Georgia. Yesterday, in the Washington Post, they made
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the allegation that the connection between the 2005 connection—

investigation—was that this was an ongoing problem with this

plant. I don’t know if that is true, but I was looking at some of the

reports, and I was a little bit disturbed about what this inspection

shows as a systemic issue in the foods, in the food industry. So if

you can take a look at No. 16 in your notebook that you have there,

the exhibit 16. What that is, is that is the FDA notes from the inspection into the Sylvester, GA, plants in October 2004; is that correct?

Mr. COLO. In 2005, yes.

Ms. DEGETTE. Yes. But in that report, though, they said that

they were investigating complaints that had been received anonymously about various conditions; correct?

Mr. COLO. Correct.

Ms. DEGETTE. And one of the allegations was that I guess management acknowledged that there was peanut butter that was

placed on a, quote, micro hold in October 2004 and was destroyed.

Is that correct?

Mr. COLO. That’s correct.

Ms. DEGETTE. And a micro hold is a holding of the product due

to finding of micro organisms like salmonella or E. coli forms in the

product; correct?

Mr. COLO. Correct.

Ms. DEGETTE. And then the report goes on to say, local management refused to provide details to include the exact cause of the

hold and the type, amount of product involved; correct?

Mr. COLO. Correct.

Ms. DEGETTE. Now does that mean that ConAgra did not acknowledge much less supply the testing results regarding the positive finding of salmonella to the FDA?

Mr. COLO. Our policy—which I believe you have a copy of—states

that if proprietary or confidential information is requested, we simply ask that the FDA provide the request in a written form, and

then we will provide them with the information. That did not occur

in this situation.

Ms. DEGETTE. That was your previous policy that, even if there

was an allegation of food safety problems, the FDA had to ask you

in writing in case there might be proprietary concerns; right?

Mr. COLO. Correct. That is correct.

Ms. DEGETTE. So despite the fact that the FDA showed up there

and related these concerns, you guys, ConAgra, never got a written

request, so they just never presented any information to the FDA;

right?

Mr. COLO. That’s correct.

Ms. DEGETTE. Now, take a look at exhibit 17 in your notebook

there. On the bottom of page 1, the FDA investigator notes that

you stated you do test peanut butter for salmonella and coli forms

prior to releasing the product for sale right?

Mr. COLO. Correct.

Ms. DEGETTE. And the inspector also notes that firm also acknowledged some of the peanut butter was put on a micro hold in

2004, and management would not provide the reason for the hold

and the amount of product involved; 0correct?

Mr. COLO. Correct.
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Ms. DEGETTE. Now I would assume ConAgra is one of the biggest food procedures in our country and I would assume that back

in 2004 and 2005 ConAgra also had concerns about making sure

that our food supply was as safe as possible.

Mr. COLO. Absolutely correct.

Ms. DEGETTE. But yet they refused to provide this information,

how much product was held and what the reason was, because they

didn’t have a written request from the FDA; correct?

Mr. COLO. Correct.

Ms. DEGETTE. Now, on page 4 of that same document, exhibit 17,

the inspector notes that Mr. Maddis, the quality assurance manager at the plant explained the testing program and showed the inspector test summaries on finished product after receiving permission from the firm’s legal counsel to do that.

Do you know if your attorney told Mr. Maddis or Mr. Genoa, the

plant manager or anybody else that they were not to provide test

summaries that showed the salmonella findings that the FDA was

asking about?

Mr. COLO. I believe what this report refers to is, they showed finished product salmonella test results related to a question the inspector had relative to some new equipment installation, and that

is what they verbally communicated to the inspector.

Ms. DEGETTE. So how is that different from previous test results

on product that had in fact been determined to have salmonella?

Why do they get the information in that case but not in the other

one?

Mr. COLO. Again, it is simply a situation where they consulted

our policy, asked that they consult with our corporate, or guidance;

they did in that case. And the guidance they received was to share

the information with them verbally relative to the equipment questions at the inspection.

Ms. DEGETTE. So do you know, did they consult with legal counsel about the other question, about the micro hold in October 2004?

Mr. COLO. I am not aware if they did or did not.

Ms. DEGETTE. It seems a little odd that with respect to the

equipment purchase, there is a call to legal counsel. Legal counsel

says you can give this information but not with respect to contaminated peanut butter the year before.

Mr. COLO. I don’t want to speak for the FDA, but when the question was asked of our——

Ms. DEGETTE. I am not asking you to speak for the FDA. I am

asking you to speak for your company.

Mr. COLO. Which I am. When we told the inspector that we test

for salmonella and coli forms and that we had product that we put

on hold due to micro concerns, and it was subsequently destroyed,

there is only one of two things—one of two reasons why that product would have destroyed.

Ms. DEGETTE. What are those?

Mr. COLO. salmonella contamination or coli form, and again, our

policy——

Ms. DEGETTE. That doesn’t really explain why they would refuse

to provide the information in that instance, but why would they

call legal counsel and be given the green light to provide the information with respect to the equipment?
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Mr. COLO. Again, our policy is written to reflect the laws that are

we are afforded today. Our plant manager was simply acting under

that authority. And as we published to the committee yesterday,

we have made the decision to change our disclosure of information,

guidelines, relative to routine FDA inspections, as well as under a

recall situation to make sure that this situation does not occur

again going forward.

Ms. DEGETTE. Thank you for mentioning that. That is exhibit 33

in your notebook, and I was just getting to that. And that is what

I was talking about in my opening statement because some people

say to me, why do you have these hearings? And I say, all you need

to look at is ConAgra’s April 23, 2007, letter which says they are

now reversing their policy, and now you guys are apparently going

to give information without a written request. That is kind of it in

a nutshell; right?

Mr. COLO. That is correct with the exception—I do want to point

out that in the current recall situation, we provided all information

without any written request to the FDA. So we are simply adopting

the same procedure we followed during the recall——

Ms. DEGETTE. This is your procedure now and going to be going

forward in all instances? That is not just in reaction to the peanut

butter situation; that is going to be ConAgra’s general policy?

Mr. COLO. That is correct.

Ms. DEGETTE. Thank you very much, and I appreciate your honesty. Mr. Chairman, this only shows to me two things: No. 1 giving

the FDA mandatory recall authority would really help in terms of

pushing industry to voluntarily report this so that there is not a

mandatory recall; and second, that the FDA simply does not have

enough authority to investigate these situations where it can be the

company policy itself, that says, sorry, we are not going to give you

information that could affect Americans’ health from food. So we

really have to look at beefing up the FDA’s ability to oversee food.

And with that, just the commercial part of the program, Congresswoman DeLauro and I have been working on mandatory reporting

for meat safety. And we are going to start looking at other types

of FDA oversight, and I will welcome input from all of the members

of the committee on that.

Mr. STUPAK. Thank you.

Mr. Walden for questions, 10 minutes.

Mr. WALDEN. Thank you, Mr. Chairman, I have been shuttling

back and forth to another hearing upstairs on telecom, and their

meeting, too, as you all know that happens in this business.

Mr. Colo, after the 2004 situation, did the company change in of

its product testing procedures at the plant?

Mr. COLO. Yes, after the 2004 incident, we increased the number

of finished product samples that we take in the facility to one sample per hour per packing line in which the peanut butter is being

produced.

Mr. WALDEN. One sample per hour per packing line?

Mr. COLO. Correct, prior to sampling protocol was three samples

basically per shift per line.

Mr. WALDEN. Do you feel that, well, if you were doing that, then

how did this peanut butter get contaminated and you not catch it?
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Mr. COLO. Are you referencing the current situation? Well, again,

when we conducted the investigation into this, what we believed is

the most probable cause is that we had water contamination come

into contact with dormant salmonella that was most likely in the

peanuts or the peanut dust, and it was at low enough levels in the

finished product that we were not able to detect it.

Mr. WALDEN. As you determine the cause of the 2004 contamination, does that have anything to do with the situation in 2007?

Mr. COLO. No. The 2004 incident was a very isolated incident

that we were able to, again, through our investigation, determine

that we had received some peanuts that been rained on and led to

the contamination. At that point in time, there was severe weather

going on in the area related to hurricane activity. It damaged one

of our suppliers’ storage shed. The peanuts got wet, and that was

part of it as well as we had some damage to one of our exterior

bulk sugar bins that we believe may have contributed it to as well.

In that situation, again, we contained all the finished product,

our tests did show that it was positive under our control. Our procedures are that we do not release any product for shipment until

we have the salmonella test results confirmed. In that case, they

showed positive. We retained the finished product. We even went

to the extreme of holding product and destroying it on both sides

of the withhold period to make sure we did not release any product

that was contaminated.

Mr. WALDEN. Again how does that differ from 07 where contaminated product did get out into the market.

Mr. COLO. Again, I think our belief is that the levels of contamination were so low that we were not able to detect it either in our

environmental sampling programs within our facility or within our

finished product testing methods.

Mr. WALDEN. And when the FDA, they came in in the 2007 recall, correct?

Mr. COLO. Correct.

Mr. WALDEN. And did you provide them with all the records they

requested?

Mr. WALDEN. Yes. As I had mentioned earlier, in the 2007 recall,

we provided all records to the FDA per the request.

Mr. WALDEN. Now do you require a written request from FDA?

Mr. COLO. We covered that previously here, but basically, prior

to some changes that we had recently announced and discussed in

this committee, our policy was to ask that any confidential or proprietary information that the FDA was requesting, that they simply provide us a written request, and we would provide them the

information.

Mr. WALDEN. This question may have been asked of all of you

as well, and again, I apologize that I have had to come and go, but

we have had a lot of discussion in this committee as we analyze

America’s food safety. None of us wants to get sick, including all

of you. There has been this discussion that the FDA lacks the authority for mandatory recall and maybe you all touched on this, but

for my benefit, if you could, what are the pros and cons of giving

that agency mandatory recall that would make you operate differently?
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As you have heard, we do it for toys and tires and whatever else

you want to talk about. Why not food? And maybe we can just go

down the row.

Mr. Henderson.

Mr. HENDERSON. Relative to the FDA having mandatory recall

authority, I can’t think of a thing that we would have been doing

differently had they had that, so if they were granted mandatory

recall authority or not, we like to believe that the outcome would

have been exactly the same.

Mr. WALDEN. You wouldn’t have done anything differently?

Mr. HENDERSON. No.

Mr. WALDEN. Mr. Sweat?

Mr. SWEAT. Once we were notified of a potential problem from

the FDA, we went to a voluntary recall within 24 hours even before

any of our product was specifically tied in with lab tests. So I think

we would have done the exact same thing out of concern for public

health and safety regardless. So having the mandatory would be

fine, but it would not have changed what we did.

Mr. WALDEN. Mr. Colo.

Mr. COLO. ConAgra foods in the recent recall, I just want to

point out as well, we voluntarily recalled, all the product, even

without any indication that there was positive salmonella in any

finished product samples either from CDC, the FDA or consumers.

Having said that, I would say that it is incumbent upon ConAgra

to take the responsibility for food safety and recall products when

that is appropriate. The FDA having recall authority would be fine

with us. It would not change anything that we have done today.

Mr. WALDEN. Mr. Miller.

Mr. MILLER. Yes.

Mr. WALDEN. Same question for you in terms of FDA’s having

the authority to do—the pros and cons of giving FDA authority to

have mandatory recall capability. Would it affect——

Mr. MILLER. No, it wouldn’t affect us in any way.

Mr. WALDEN. You would still take the same actions?

Mr. MILLER. Yes.

Mr. WALDEN. Then for the sake of consumers, what can be done

differently to improve food safety from your perspectives? Because,

obviously, there has been a lot in the news we see. I find it affects

my shopping habits. Believe it or not, I am the one that generally

goes to the grocery store when I go home, and I am making different choices now, which bothers me a little bit.

What do we tell consumers about what we are doing to improve—what else can you recommend to us to improve food safety?

I mean, your companies’ bottom lines are the ones in the cross

hairs here.

Mr. HENDERSON. In my written statement, we gave a number of

recommendations. Probably the most telling one is in regard to the

ability of inspections to be undertaken by appropriate U.S. authorities in those jurisdictions in which exports are being made on the

United States.

For Menu Foods, at the present time, our plant in Toronto requires import permits in order to export products to the United

States. That is as a result of BSE. Relative to our shipments into

Europe, at the present time, in order for our plants to ship into Eu-
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rope, our plants have to be qualified by the European authorities

to ship product from the United States or from Canada into Europe.

They delegate that responsibility to the USDA or the CFAA because of the trust that exists between those organizations. But essentially those activities, as is the case in the United States, of allowing product to ship from Canada to the United States already

exists. And the notion that essentially the companies are obliged in

order to transact business with the United States that they be accredited and certified and inspected before the product gets into the

United States is a direct impact on the events that impacted on

Menu foods, where you are getting into imports from China, et

cetera, it would have been critical, and it would have been a very

good positive step that somebody will have seen that, inspected

that plant before it gets into the United States.

Mr. WALDEN. Doesn’t that really lend itself, too, for the call for

food labeling, mandatory country of origin labeling so we know

where this food is coming from as a consumer? You all keep

records; don’t you? Tell me you don’t know back to the box. I have

had fruit processing folks tell me they know back to the box from

which orchard that the pears or apples or whatever fruit they are

using originated.

Don’t you keep track of that anywhere?

Mr. HENDERSON. My understanding of looking at the Bioterrorism Act, you essentially go forward one, back one, so you complete

that chain, and you can get back to where you need to be. It is my

understanding, relative to which hog was slaughtered to get products into our pet food, no. We don’t know that; we don’t have that

information.

Mr. WALDEN. Would you like to have that information in a situation like we see in the press these days?

Mr. HENDERSON. From a commercial perspective, there has to be

some element of accountability through the chain. The individuals

with whom we deal with are essentially they are known commodities as far as people that we have dealt with before or have dealt

with. In this particular issue, we had been dealing with

ChemNutra before this, buying other ingredients.

We buy from known suppliers. The idea that we have to go all

the way back and that everybody in the supply chain has to go all

the way back I don’t believe is commercially practical.

Mr. WALDEN. Mr. Sweat.

Mr. SWEAT. Well, I think on the confidence with consumers on

food safety and fresh fruits and vegetables what we have learned

from the scientists is this bacteria lives in the environment in

which fresh fruits and vegetables are grown so there is a hazard

and risk. And with that hazard and risk, what we have done is we

have gone out to the International Commission on Microbiological

Specification For Foods and classified fresh foods and vegetables as

a class 15, which is the highest risk for pathogens because that

means that it can actually grow beyond its process and can continue to grow.

So with that, we have implemented raw product testing as a hurdle to prevent any sporadic contaminations from the environment

on the crops from entering the process. And then we have imple-
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mented a finished goods testing program following that same class

15 sampling program that actually samples our production process

every 2 hours. It is about 480 samples every 2 hours off the production lines because of the high risk of bacteria with fresh fruits and

vegetables. So we have to communicate that to consumers to re-instill confidence in what we are doing for food safety.

Mr. WALDEN. I know my time has expired. Thank you all for

your testimony. Thank you, Mr. Chairman.

Mr. STUPAK. Thank you, Mr. Walden, before you leave, I want to

ask Mr. Henderson, do you wish to clarify an answer to your question about whether immediate recall is something we should have

because the record is clear what we had this morning. That is why

I am surprised at your answer, Mr. Henderson. If you take a look

at the record and the timeline, on March 15 was your first recall

for all wheat gluten manufactured between December 3, 2006, to

March 6. March 24 was your second recall; you expanded to include

additional dates.

On April 5, you had your third recall. On April 10, you had your

fourth recall. So an immediate recall authority by the FDA would

not have taken a month for you to recall your products; correct?

Mr. HENDERSON. I would have to say that is incorrect. The information that you are looking on—the recall that took place relative

to the date of March 16, Menu Foods at that point in time did not

know what the problem was.

Mr. STUPAK. I am not asking about the problem. The question

was a recall. Should we give the FDA the right to immediate authority, and it wouldn’t have made any difference in this case, you

said; you don’t think it would have made any difference in this

case—but yet the recall went on for about a month—I don’t think

giving immediate recall authority for the FDA would have made

any difference here.

Mr. HENDERSON. The recall that was initiated by Menu Foods

was essentially as a result or following conversations with the

FDA. We identified, this was the scope that we are proposing to do.

Whether or not they might have come up with a different scope,

that is a valid point. They might have come up and said, recall

more, recall less.

Mr. STUPAK. But even before you—I don’t mean to be argumentative here—even before you at Menu Foods and FDA decided to

recall, Iams had already told you they would no longer accept your

product, and they were going to recall all food manufactured by

Menu Foods at the Kansas plant; right? So, really, Iams was the

first to really start the ball rolling here. Something is wrong, and

I guess maybe what we are getting at here, there is also corporate

responsibility instead of waiting for the FDA if Iams, the pet food

manufacturer, sees a problem, and they are recalling it, I would

have hoped that the corporations would have done it without FDA

authority. But even with FDA authority, if we could grant that to

them, I think we could have maybe limited the scope of the harm

caused throughout our country.

Mr. HENDERSON. Again, relative to the facts as they actually

transpired, the conversation that took place with Iams, they essentially shared some information with us. We got together the next

day, and essentially, in a rather lengthy meeting, both parties ex-
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changed what they knew; that being that, individually, there

wasn’t enough information to draw conclusions, but together, it

looked as though, from a circumstantial evidence perspective, as if

we had the basis for recall. They opted to recall. We went along.

We announced first.

Mr. STUPAK. Iams sees the need for recall, but almost 2 weeks

before that, your own taste-testing lab, out of 20 animals, 3 died

and 6 were dead. That is almost 60 percent. I would think that

would cause Menu Foods to be concerned and talk about a recall

and what is going on here quicker than waiting for Iams to force

the issue and then the FDA and on and on.

Mr. Inslee for 10 minutes please, questions.

Mr. INSLEE. Thank you, Mr. Sweat.

Before the outbreak happened, were you given any warnings

about a possible outbreak that may occur in suggestions that you

should improve your practices?

Mr. SWEAT. We did receive a letter from the FDA some time, I

want to say in November 2005. And with that letter, there were

some steps that they asked us in our industry to go look at. And

that was to look at our compliance with the recommended guidelines from the FDA on good agricultural practices, our good manufacturing practices and our HACCP programs. And we did that as

an organization. And at that time, we were meeting or exceeding

all of those guidelines published by those particular agencies.

And about 2006, in the spring, as an industry, we met with the

FDA and the CDHS to collaboratively share best practices within

the industry and begin to work on technical committees across

many companies within our industry in collaboration with the FDA

and CHS to look for best practices that we could employ across the

whole industry.

Mr. INSLEE. What practices are you now implementing that were

not adopted then?

Mr. SWEAT. Subsequent to the outbreak, what we did was we

reached out to the beef industry who had shown some success with

reducing E. coli outbreaks and learned of a testing program that

they had implemented from the international commission on microbiological specifications for food. And the scientists that had

worked extensively in the beef industry helped, and we brought on

board to consult with us and we had implemented a very similar

testing program that the beef industry did using a class 15 highrisk statistical program.

Mr. INSLEE. And did you consider adoption of that earlier and reject it, or simply just not consider it?

Mr. SWEAT. At the time, we had not had any outbreaks in our

organization for 22 years using our good agricultural practices,

GNPs and HACCP programs, so we had not considered it prior to

the outbreak.

Mr. INSLEE. And how many presumptive positives for E. coli

015787 have you found since you instituted the program?

Mr. SWEAT. We implemented a raw product testing protocol within a couple of weeks of the outbreak. To date, and this is as of yesterday, we had a total of 39 positives, of which 23 are E. coli related; 16 are salmonella related. They had been found in California,

Arizona and Mexico, from various growers.
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In our finished goods testing program that we implemented, we

have found none on our finished goods testing programs.

Mr. INSLEE. And is there anything to suggest that your circumstances now are different than they were before this? In other

words, would you expect that is how many that was the situation

before the outbreak as well?

Mr. SWEAT. I would hate to speculate since we weren’t testing on

what was prior to the outbreak. What we have learned from the

scientists are these bacterias are prevalent in our environment, but

since we weren’t testing, I would hate to speculate on what was

there.

Mr. INSLEE. The microbiological testing program that you have

adopted, is there any reason that that should not be standard

throughout the industry?

Mr. SWEAT. We would like to see that, plus more science, that

become standard for the industry, but also we need more science

to see what else we can do as an industry. This testing protocol is

not a kill step. It is an intervention and a hurdle to help prevent

these types of contaminations from occurring, but as an industry,

we still need to continue to invest more in science and research on

how we can combat this bacteria.

Mr. INSLEE. And why would you like to see the standard in the

industry?

Mr. SWEAT. I think it adds additional hurdles and interventions

for food safety. I think the good agricultural practices, as adopted

today, are going to create, under the Leafy Green Marketing Agreement in California, a baseline for growers to comply with. But we

think there needs to be more, and I think if we can test for these

pathogens, then we may be able to detect and learn from them and

also help prevent them from entering the chain of commerce.

Mr. INSLEE. Have you considered treatment from, like, Ozone?

You talk about a kill technology. Is that being considered?

Mr. SWEAT. Yes, we have looked at ozone. The challenge with

Ozone in water flume systems we use to wash lettuce, it is hard

to control the ozones with the lettuce water combination. But we

are looking at a lot of different sanitizers with the scientific panel

board that we have brought on staff. We have actually set up a biohazard lab level 3, and we are testing different kinds of sanitizers

to see if we can get larger microbial load reductions in our wash

systems.

Mr. INSLEE. There is a new Ozone technology for sterilization. It

happens to be in my district. Are you familiar with that, where you

use one stream of high pressure water and one of a low pressure

Ozone application? Are you familiar with that at all?

Mr. SWEAT. I am not familiar with the details on that particular——

Mr. INSLEE. I may actually shoot that to you and ask you to take

a look at that. They have had good success on that.

Mr. SWEAT. I would welcome that.

Mr. INSLEE. How do you handle when you have your positive

from a lot, from a field?

Mr. SWEAT. That particular lot gets destroyed, and then we open

up a field audit from that lot, from that field, immediately, and we

go out to look at the inputs on that field to see if we can have any
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trace back to the source. Unfortunately we have not been able to

find anything link back to the field to those lots that we have tested positive.

Mr. INSLEE. You said that you thought it would make sense for

the industry to have a standardized microbiological testing protocol

like that. Would you have any difficulty, or the FDA, if we gave

them the ability and they implemented the ability to adopt that as

a requirement?

Mr. SWEAT. I would not.

Mr. INSLEE. I think given your experience, I can understand why

that is.

If you just give me one more moment, I had one more question

I want to ask you. I’m told there have been 20 E. coli outbreaks

from contaminated leafy greens from Monterey County before this

one. Is that accurate?

Mr. SWEAT. I think that number sounds about right.

Mr. INSLEE. That strikes me as a lot from a fairly confined area.

I have heard people suggest that there are problems with the water

source from animals in general in that area. Is there anything different about that area relative to other growing areas that we

should be concerned about?

Mr. SWEAT. We started testing all of the water sources on our

growers’ fields for pathogenic E. coli, and we have not found any

positives in any water test to date during this 7, 8 months since

we have implemented these testing protocols. So I haven’t seen

anything in the test data yet that would indicate anything on the

water systems, but I do think we have to look at the environment

and all of those resources out there with science to better understand it.

Mr. INSLEE. Thank you.

Mr. Miller, you may have covered this, but on the gluten that

came in involved in this episode, was that food-grade gluten when

it entered the United States? In other words, could it legally be

used in human food?

Mr. MILLER. Yes, it was food grade.

Mr. INSLEE. So in a sense we just dodged the bullet, at least from

the humans’ perspective, that it went not into food for human consumption, but for animal consumption?

Mr. MILLER. Yes. We believe it was because of a fraud in China

that this happened. Apparently they weren’t expecting it to be discovered, and maybe there was less of a chance if it was pet food,

or they knew it was going to pet food, but it was food grade.

Mr. INSLEE. So they knew this was going into the pet food

stream, but legally you could have taken it, sold it to somebody,

and they could have put it into human consumption?

Mr. MILLER. I believe so.

Mr. INSLEE. So what should that lead us to conclude about our

current standards? You said that they thought since they knew it

was going to go to pet food, they could maybe sneak it through or

sneak it by. In what sense?

Mr. MILLER. I don’t know. That is just a surmise. We believe that

this was an intentional defraud or an intentional fraud to make

money, and a fraud which we’re a victim of and our customers are
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victims of. But I believe they were aware that our customers were

pet food customers.

Mr. INSLEE. If the buyer here or the seller in China knew it was

probably going into the human stream, would there have been any

additional standards other than what exists right now in protocols

and inspection or standards to make sure they were—I assume

there were not, because if this was human, fit for human consumption, there would have been no additional standards from what

they had for pet food gluten; is that a fair statement?

Mr. MILLER. I believe that is true. I mean, this was an adulteration that was just off the radar screen. No one was aware of it, no

one had thought of it. I don’t believe it had ever been tested for

in wheat gluten.

Mr. INSLEE. So is it fair to say that as far as our concern for this

episode, it ought to be just as high, we ought to consider it like a

human adulterant?

Mr. MILLER. I would think that is a risk.

Mr. INSLEE. Which is bothersome. Thank you.

Mr. STUPAK. I thank the gentlemen.

Mr. Burgess for questions, please.

Mr. BURGESS. Thank you, Mr. Chairman.

Mr. Henderson, is it safe to assume that we just heard the discussion back and forth that perhaps it was someone with larceny

in their heart that decided that the melamine would be a good way

to make money, but we don’t really know, do we?

Mr. HENDERSON. No, we do not.

Mr. BURGESS. And, Mr. Sweat, you have as carefully as you can

investigated the source of the outbreak in your industry. And although there are some cows across the way that might have been

a source, you haven’t really drawn a direct link from one to the

other yet, have you?

Mr. SWEAT. No, we haven’t been able to identify the transmission

vehicle yet.

Mr. BURGESS. And I don’t know about the peanut industry, but

I guess if I were a conspiracy theorist, Mr. Chairman, I would start

connecting dots that may be unrelated and ask if someone is trying

to undermine the confidence of the United States food industry, because these are spectacularly unrelated and almost inconceivable

events that have now coalesced around this hearing. I just can’t

help but wonder if there is perhaps something we are missing in

this great debate.

The other thing that comes up, and, of course, we heard the testimony from our friends with GAO, and looking into best practices

in other countries, but here we sit talking about Chinese gluten

and Canadian cat food, Mexican spinach, and maybe the best practices we ought to concentrate on are the ones here in this country.

And maybe, in fact, we ought to look at—well, maybe you all can

help me. Why do we even import gluten from China? Is it a cost

factor, or is it an inability to produce gluten in our own country?

Either end of the table, please feel free to answer. Mr. Henderson,

we’ll go with you first.

Mr. HENDERSON. Essentially, from a wheat perspective, you are

looking at the lion’s share. My understanding of the numbers is

that about 50 percent of the wheat gluten that is used in the
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United States, both in pet food and in human food, comes from Europe. Essentially it is a matter of capacity. There simply isn’t

enough capacity in the United States to meet the demands.

Mr. BURGESS. Mr. Miller, would that be your——

Mr. MILLER. Yes, except that I believe some of what comes from

Europe originates in other countries.

Mr. WHITFIELD. While you were out, Dr. Burgess, they said that

the U.S. domestically can produce only 25 percent of the demand

for wheat gluten in the United States.

Mr. BURGESS. But many of the wheat fields in north Texas are

underutilized right now. I know that for a fact because I drive by

them every day. But nevertheless, what steps are being taken—and

this may be unrelated to this hearing—but steps are being taken

to prosecute the people if there has been larceny involved in our

foreign supplier? Where are we in that process? Are we trying to

identify who did what to whom and whom to prosecute?

Mr. Henderson.

Mr. HENDERSON. At this stage my understanding is the FDA is

trying to get into China to undertake and continue their inspections, essentially independent of their efforts. We are doing what

we can, but there is very limited we can do beyond essentially understanding exactly what steps they are taking to get to the bottom

of the question at hand.

Mr. BURGESS. Mr. Chairman, I hope this committee will continue

to monitor that and stay closely involved in that, because it is disturbing to me that a foreign source of larceny could be inflicting

such harm on our citizens.

Let me ask you, Mr. Colo, on the issue of salmonella, just for my

own edification, is salmonella a frequent hitchhiker on the back of

a peanut? Is that something that comes up from time to time?

Mr. COLO. Because peanuts are a raw agricultural commodity,

obviously they are grown in the soil, soil and water is well known

to contain salmonella, so it is a likely conclusion that in some cases

peanuts will be a carrier for salmonella, yes.

Mr. BURGESS. Going back to my earlier conspiracy theory,

though, you really have not yet been able to draw a bright line between—and say you know definitely where this came from in the

process; is that correct? It is an assumption that there was some

dust and some water and spontaneous generation, and the salmonella got into your product?

Mr. COLO. Based on the investigation that we have done, that is

what we consider to be the most probable cause of the source of

contamination.

Mr. BURGESS. Again, just for my background information, how do

you test for salmonella?

Mr. COLO. Our sampling protocol is that for every packaging line

that we are filling peanut butter jars on every day, we take one

sample per line per hour within our facility. We then run the——

Mr. BURGESS. Right. I got that. But when the raw product comes

into your facility, before you even start the manufacturing process

for peanut butter, do you test the batch for the presence of salmonella in the raw peanuts?

Mr. COLO. We do not test raw peanuts for salmonella. We test

it for apitoxin, but do not test for salmonella.
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Mr. BURGESS. In testing for salmonella, in the hourly test that

you do on every line, what are the levels of detection, how many

parts per million, or what is the level of detection for salmonella?

Mr. COLO. It is considered negative if it is less than 1.0, and that

is an absorbent value that is used in the test methods.

Mr. BURGESS. So you don’t actually culture the peanut butter

and grow colonies and count them off the Petri dish like we used

to in high school biology?

Mr. COLO. We do actually do that.

Mr. BURGESS. You do do that. Well, what do you think? Why

wasn’t the salmonella detected in the hourly checks on the line

runs that you all were doing?

Mr. COLO. We think that the levels were so low in the product

that the tests were just not able to detect the positive salmonella.

Mr. BURGESS. So the numbers were too low?

Mr. COLO. The level of contamination was so low in the peanut

butter that we were not able to detect it.

Mr. BURGESS. And then over time the colonies grew and multiplied such that they became clinically significant by the time they

were ingested by the end user?

Mr. COLO. Maybe. I am not a doctor. I am not sure what manifested from our plant to the end consumer.

Mr. BURGESS. If it was so low, then why did people get sick? How

did the clinical manifestation of disease occur if the count was so

low to be undetectable by your routine testing methods?

Mr. COLO. That is a very good question. If you look at the water

activity of peanut butter, it is extremely low. And what that is a

measure of is the available water in the peanut butter itself. And

what may likely have occurred is that somehow there was this contamination of water in the facility that was not detectable at the

time of packaging, but later over time that maybe the salmonella

was allowed to grow due to the water availability.

Mr. BURGESS. What do you think going forward? Are you going

to be able to be confident that the same mysterious set of circumstances is not going to happen again?

Mr. COLO. Yes, we are very confident. And the reason for that

is the approaches that we are taking prior to restarting our facility

will include making sure that we have very robust food safety

standards in place. We are in the process of looking at all of our

both environmental and finished product testing methods and protocols.

Mr. BURGESS. So you are going to heighten the sensitivity of your

testing?

Mr. COLO. Absolutely.

Mr. BURGESS. Good.

Mr. Sweat, on the spinach issue that came up, you said that

some of the spinach you get is harvested in Mexico; is that correct?

Mr. SWEAT. That is correct.

Mr. BURGESS. And have you assessed these Mexican farms with

as much scrutiny as you had with the California farms about wild

pigs and cows across the hill and that sort of thing?

Mr. SWEAT. Yes. Most of the growers that grow product for us

in Arizona and Mexico are the same growers that grow product in
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California. They migrate throughout the year based on seasonal climatic changes to grow the lettuces.

Mr. BURGESS. But my understanding, I think, from your testimony or from someone else’s was that one of the possibilities was

the E. coli existed in the stream water which may have flooded into

wells which were used for irrigation. Is the same possibility present

in Mexico, or is it more likely to be possible in Mexico, less likely

to be possible? Is there any way to quantify the risk from the various farms from which you accumulate product?

Mr. SWEAT. What we have done is apply the same standards

across all farms. So we test all the waters, the seed, the soil. Everything on our GPA program now tests for that across all farms

that supply product, not just in California.

Mr. BURGESS. In November 2005, a series of outbreaks associated

with the Salinas area farms, the FDA sent a letter to California

farms that grow packaged spinach. Are you familiar with the letter

that they sent?

Mr. SWEAT. That is correct.

Mr. BURGESS. It requested that you begin or intensify immediately various efforts. How did that intensification of efforts, how

did that proceed?

Mr. SWEAT. We went back through the agricultural practices, the

good manufacturing practices, in our HACCP program that we use,

the FDA’s guidelines and their updated guidelines as it related to

leafy greens and fresh cut fruits and vegetables to make sure that

we were meeting or exceeding all those standards.

Mr. BURGESS. So have you, in fact, implemented all of the guidelines that were listed by the NDA at that time?

Mr. SWEAT. They were actually already implemented when received a letter in 2005.

Mr. BURGESS. So accelerating that implementation, would that

have made any difference in the September 2006 outbreak?

Mr. SWEAT. No. The GAPs and GMPs and HACCP programs that

were implemented had been implemented and working for many,

many years.

Mr. BURGESS. How can you be sure that area water doesn’t contaminate the crops?

Mr. SWEAT. As part of our enhancements to the GAP programs

that we have done is we have increased the frequencies of testing

all the water for irrigation. And instead of testing for just generic

E. coli, which is an indicator of a potential pathogen, we actually

test for the pathogenic E. coli now.

Mr. BURGESS. Do you test for toxigenic E. coli?

Mr. SWEAT. We do.

Mr. BURGESS. To whom do you report that information?

Mr. SWEAT. That information actually from our growers gets reported in to us, and then we keep all that data there.

Mr. BURGESS. Do you follow on with the California Department

of Health or the CDC? Do you tell someone about it?

Mr. SWEAT. If we were to have any positives on water, if it’s a

municipal water supply, we would notify that municipality that

would be supplying it, and then we would also notify CDHS about

the issues of finding anything that would test positive.
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Mr. BURGESS. Just in regard to the spinach itself, how many

positives for toxigenic E. coli, how many of those positives do you

generally record in a year’s time?

Mr. SWEAT. Well, we started the testing on raw product 2 weeks

after the outbreak, so that was about the first week in October

when we implemented the raw product. To date there have been

23 raw product samples that have tested positive for E. coli, and

those products have been destroyed. And about 16 have tested positive for salmonella, and those have been destroyed. But none of the

finished goods that we have tested have tested positive for either

E. coli or salmonella.

Mr. BURGESS. But prior to September 2006, that data would not

be available?

Mr. SWEAT. No. We were not testing prior to the outbreak.

Mr. BURGESS. And what do you do with the affected crop? How

do you destroy it?

Mr. SWEAT. We actually put it into an incinerator and document

the photos of it that it’s being destroyed.

Mr. BURGESS. And you conform with the Clean Air Act when you

do that, correct?

Mr. SWEAT. Yes, we do.

Mr. BURGESS. Thank you, Mr. Chairman.

Mr. STUPAK. I thank the gentleman.

Just a few questions from me for a wrap-up.

Mr. Sweat, of those, I guess, 39 positives you’ve received now, all

these washing, the good manufacturing and all these other operating procedures, none of that’s going to detect E. coli or salmonella

unless you test for it?

Mr. SWEAT. That’s our understanding is that it will not detect it.

Mr. STUPAK. So all these voluntary standards, in-house testing,

which I appreciate you doing, if you don’t do it, there’s no penalty

to you, there’s no stick, if you will, there’s no enforcement?

Mr. SWEAT. To my knowledge we are the only company that has

implemented this testing program to date.

Mr. STUPAK. I was going to ask you, we talked about Salinas Valley being the lettuce bowl of America. Do the other producers in

that area do these testing that you are doing?

Mr. SWEAT. To my knowledge they don’t.

Mr. STUPAK. And there’s no requirement for them to do it?

Mr. SWEAT. There’s no requirement. But early on we said food

safety would not be a competitive advantage. Whatever we learned

we would share with our industry. And we are doing that. We are

sharing these testing programs that we have done with everybody

in our industry and all the associations.

Mr. STUPAK. I appreciate you are doing the testing now, but if

we did not have this spinach outbreak, you probably wouldn’t be

doing testing, would you?

Mr. SWEAT. That’s a hard one to go back on now, because once

you’ve crossed over and started it, it’s hard to envision something

you would do different.

Mr. STUPAK. I am not trying to discourage it.

Mr. SWEAT. But prior to that we had not had any reason not to

think our GAPs and GMPs and HACCPs weren’t doing their job of
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deterring that microbial contamination because we had not had

any of those outbreaks for later tests over the years.

Mr. STUPAK. Well, it seems like our food safety in this country

is reactive as opposed to proactive. I am disturbed when you tell

me that FDA comes to your place, they look at things, and they

never do any testing; they just look to see if you are washing this

or making sure that conditions are very sanitary. They don’t even

do testing when they are there. It seems like we are waiting for

something to happen, then we try to react. And our chance of recall

can take some time, as we have shown. That’s my only concern.

Mr. SWEAT. I think the testing is a way to validate the efficacy

of all of the controls from field to finished product.

Mr. STUPAK. Let me ask you this. I realize you are not into marketing, but, Mr. Henderson, Mr. Sweat, Mr. Colo, has your company ever done marketing to test the attitudes of Americans?

Would they pay an extra 5 cents for a package of lettuce to assure

testing to be done? Is it a cost issue why it’s not being done or just

never been done? Mr. Henderson.

Mr. HENDERSON. No. Our company has never undertaken such a

study or formal inquiry with our customer base. Recognize that the

majority of the customers that we market to are essentially selling

their brands, and they are essentially the brand marketers in the

countries in which they transact business.

Mr. STUPAK. Mr. Sweat.

Mr. SWEAT. We haven’t done any research or focus groups from

a marketing standpoint on the thought process of what they would

pay. We haven’t really looked at the cost of all these programs we

have done. It’s just doing the right thing for our consumers to improve our food safety program.

Mr. STUPAK. Mr. Colo.

Mr. COLO. I am not aware of any particular marketing studies

around that particular issue. Our approach is simply that you have

to do everything possible to ensure that the food that you are producing is safe. So our policies are all geared towards that.

Mr. STUPAK. That’s been passed by the last few Congresses. It

says country of origin, but somehow that never seems to get implemented. Do you think that would help at all in this situation?

Again, without testing, it doesn’t make any difference where the

product comes from, right? Mr. Sweat.

Mr. SWEAT. That’s correct. I think the countries of origin labeling

laws would help identify for the consumer where it’s coming from,

but you are still going to need to put in your testing protocols. And

as you look at that bag of salad, Mr. Chairman, you’ll notice there’s

lots of ingredients on there. So one of the challenges for us is that

when you bring in 10 or 12 ingredients from 10 or 12 different

farms, you don’t have a one-to-one correlation from a field-grown

product to a finished product.

Mr. STUPAK. Mr. Burgess.

Mr. BURGESS. Mr. Sweat, if I could ask one last take-home question for the bag that has been famously passed around up here

today. It says triple washed or final washing. Do you advise consumers to wash your product before they consume it?
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Mr. SWEAT. What we do with our consumer Web site and when

consumers call and ask should they wash their lettuce, we tell

them if they want to wash it, then they should wash it.

Mr. BURGESS. But that’s not a recommendation on the package.

And just like we heard testimony from the folks who were here earlier today, they look at the package that says triple washed, ready

to eat, so they pop the bag and put it into the bowl. Would it make

any measurable difference if consumers, just like we tell them now

to cook their hamburger until it’s done, that we wash our spinach

even though the product may say it’s been triple washed?

Mr. SWEAT. I don’t think washing would have any further impact

on it, because typically just running water over it, there’s not the

chlorine that we use in our agitated work system as a deterrent for

a microbial load. So I don’t think washing would enhance that at

home. But we encourage our consumers if they want to wash it,

please do so.

Mr. BURGESS. So the bug is too sticky to just wash off the leaf

of spinach?

Mr. SWEAT. It can be.

Mr. BURGESS. Thank you.

Mr. STUPAK. One more question, Mr. Henderson, if I may. I have

a number of constituents and my dog. When are we going to get

our pet food supply back to normal? Will it take a while? I mean,

there’s a lot of it off the shelves, and you seem to be the main manufacturer. When will we see the wet cat and dog food back up to

where they are? We are still having trouble in some parts trying

to find our favorite food, if you will.

Mr. HENDERSON. Actually from a size perspective, Menu is actually quite small in the marketplace. But relative to our steps, we

are still in the midst of the recall. That’s going on as I sit here

today. And the practice that we are going through is essentially to

make sure that with working in cooperation with the retailers, that

all of that product is back off the shelf so there’s no possible way

that it can get back. And once we have got certification that that

product has been cleared from the retailers’ shelves, cleared from

the reclamation centers and from the warehouses, we will begin

shipping them product manufactured with proven wheat gluten

going forward. I expect that it will start in the next week or two.

Mr. STUPAK. For all of you, if you may, Mr. Henderson, Mr.

Sweat, Mr. Colo, Mr. Miller, the committee would like you to give

us the—present to the committee the inspections of the USDA and

FDA at your plants, plural, if you have more than one. And if you

could do that within the next week, we would appreciate it. We do

have the FDA coming in in a couple of weeks. We are a little concerned about inspections; how often they occur, what do they do.

There’s some question whether they do any testing or not. So if you

could provide those to us. So Mr. Henderson would you do that for

us please, try to get that to us in a week? If you have trouble, get

ahold of the committee.

Mr. HENDERSON. Certainly. Can you tell me how far back?

Mr. STUPAK. From 2000 to April 2007.

Mr. HENDERSON. Yes.

Mr. STUPAK. Mr. Sweat do you think you could do that?

Mr. SWEAT. Yes, we’ll provide that.
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Mr. STUPAK. Mr. Colo?

Mr. COLO. Yes.

Mr. STUPAK. Mr. Miller?

Mr. MILLER. Yes. We have already done it. If you would like us

to go back further, we have already done it.

Mr. STUPAK. From 2000 through April 2007, if you would.

Mr. MILLER. Yes.

Mr. STUPAK. I appreciate that.

Mr. Burgess, I think, was questioned about the November 4,

2005, USFDA letter to California firms on the grow, pack process

for fresh-cut lettuce. That will be made part of the record.

Also the statements of Representative DeLauro, Representative

Pallone and Senator Durbin will also be made part of the record.

We have to have the exhibit binder that’s before us here without

objection be made part of the record.

That concludes all questioning. I want to thank our witnesses for

coming today and thank you for your testimony. I ask unanimous

consent that the record will remain open for 30 days for additional

questions for the record.

That concludes our hearing. Without objection, this subcommittee is adjourned.

[Whereupon, at 1:45 p.m., the subcommittee was adjourned.]

[Material submitted for inclusion in the record follows:]

PAUL HENDERSON ANSWERS TO SUBMITTED QUESTIONS FROM HON. JAY INSLEE

Dear Congressman Inslee:

This letter is written in response to the additional questions from you set forth

in the letter dated June 21, 2007 from Chairman Dingell with regard to the hearing

‘‘Diminished Capacity: Can the FDA assure the Safety and Security of the Nation’s

Food Supply?’’ on April 24, 2007.

The following are the answers to your questions:

Does Menu Foods sell ‘‘salvaged’’ and/or ‘‘distressed’’ pet food for use in

livestock feed?

No.

Did Menu Foods sell ‘‘salvaged’’ and/or ‘‘distressed’’ pet food from the November 8, 2006 through March 6, 2007 production runs that have been recalled?

No.

If Menu Foods did sell ‘‘salvaged’’ and/or ‘‘distressed’’ pet food from recalled batches, has any effort been made to track down buyers and determine whether this food has crossed into the human food supply?

No.

We appreciate this opportunity to assist the subcommittee in its efforts.

STATEMENT OF HON. ROSA L. DELAURO AND HON. RICHARD J.

DURBIN

Mr. Chairman, we want to commend you for calling this hearing and thank you

very much for the opportunity to present written testimony.

We all saw the disturbing article in yesterday’s Washington Post that the FDA

has known for years about contamination problems at a peanut butter plant in

Georgia and on spinach farms in California, but took only limited steps to address

the problems and relied on voluntary actions by the industry. Based on the evidence

being compiled so far in the pet food recall situation, the FDA appears to be failing

its responsibilities to protect pets from unsafe food as much as it is failing to protect

American consumers.
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Mr. Chairman, the FDA’s response to this situation has been tragically slow, and

pet owners deserve answers. The uncertainty about which foods have been recalled

and what is safe to feed their pets has gone on far too long. We also learned last

week that the human food supply may be at risk because of contaminated pet food

that was provided to a hog feeding operation in California. After the disturbing revelations that were outlined in the Post article yesterday, we fear that a full investigation will determine that FDA rarely, if ever, inspects pet food manufacturing

plants, and that the agency desperately needs to modernize its regulations to protect

our pets.

As we all know, the problems that have resulted in the pet food recall are being

traced to shipments of wheat gluten and rice protein and corn gluten from China

that was discovered to be contaminated with melamine. As FDA’s investigation continued, pet owners kept receiving assurances from the agency that only the foods

on the recall list presented a danger to their pets. However, pets remained vulnerable despite these assurances because the recalls kept expanding dramatically. One

of the central reasons the recall keeps expanding is that FDA has refused to identify

the companies that have purchased rice protein concentrate batches from the same

contaminated shipment. Of the five companies that purchased from the contaminated shipment, only two have been identified.

The FDA knows the identity of the other companies that purchased ingredients

from the contaminated shipments, but is unable to disclose the information and

compel any action. Thus, consumers have not been able to avoid buying and feeding

potentially contaminated products to their pets, and contaminated pet food still may

be on store shelves. This is unconscionable.

And of course, we do not have to remind you Mr. Chairman that the FDA has

no authority to mandate recalls and instead relies on information submitted by companies. As the Post article yesterday noted, we saw how that situation played out

in 2005 with the peanut butter plant in Georgia when company officials refused to

provide information to the FDA when the agency was investigating complaints

about a salmonella contamination—2 years later a salmonella outbreak in peanut

butter sickens over 400 people in 40 States.

Another very troubling aspect to this issue is the Chinese Government’s delay in

allowing FDA personnel to enter China to inspect the facilities suspected of producing the contaminated products. After FDA Commissioner Dr. von Eschenbach informed us of this situation in our meeting with him last week, we wrote a letter

to the Chinese Ambassador to the United States asking that they allow our inspectors into the country. We also asked that the ambassador meet with us to discuss

the larger issue of contaminated food being imported into the United States.

Just today, we learned that China has agreed to allow U.S. regulators to enter

China. Unfortunately, FDA’s request has been pending since April 4, 2007, an unacceptable delay of 3 weeks during which time the health of our pets has been at risk.

Unlike the Food Safety Inspection Service (FSIS) of the U.S. Department of Agriculture (USDA) which has the authority to set up cooperative relationships with

trading partners and inspect their facilities, the FDA has no such similar authority

and must rely on ad hoc procedures when problems arise.

We are all aware of the disturbing statistics related to imported foods. The U.S.

now imports far more foods than it exports, but there are fewer inspectors for imported foods. Currently, FDA inspects less than 1 percent of the food imported into

this country that it is responsible for regulating. Also, the FDA does not require exporting countries to have food safety regulatory structures that are equivalent to the

U.S. standards. Given that the contaminated pet food appears to be connected to

products imported from China only heightens our concern about the agency’s ability

to inspect imported products. It is this aspect of the pet food recall crisis that is

particularly troubling and will be examined further in a follow-up hearing before the

House Agriculture Appropriations Subcommittee.

In addition, for the first several weeks of the pet food recall, the FDA did not

clearly communicate which brands and products were on the recall list. Rather than

bring together all of the relevant recall information in an easy to read, searchable

document, the FDA relied on links to corporate press releases on the voluntary recalls, each of which had a different format. This format was confusing and time consuming for concerned pet owners. We are both glad that FDA has taken our advice

and modified the format of their website.

It very well may be that FDA lacks the resources to adequately inspect pet food

facilities and imported products. And this is an area where we could work together

to make a direct impact. However, we also should examine whether this is a management issue. In response to a letter that we sent to FDA, the agency said it has

not determined whether changes in current law or resources are necessary based

on the pet food recall. We find it difficult to understand that this agency always re-
133

fuses to even consider requesting additional authorities or resources to help it do

its job. This dismissive approach toward additional authorities is very frightening

and could continue to have serious repercussions to the safety of both pet and

human food.

The FDA likes to demonstrate its commitment to food safety by pointing out that

‘‘food’’ is the first word in its name. However, its actions suggest otherwise, highlighting the need for legislation that would create a single food safety agency—a bill

that we have worked on for quite a long time now—the Safe Food Act of 2007.

This legislation would consolidate the various cross-cutting authorities in the area

of food safety and move them within a single regulatory structure. The goal is to

improve coordination, realize efficiencies, and streamline the number of oversight

committees responsible for food safety. This new independent agency would better

compete for resources and be in a position to strategically plot a national food safety

strategy. Today’s regulatory arrangement is fractured among multiple departments

and sub agencies and is in major need of reform.

In addition, we are working on legislation that will specifically address shortfalls

in FDA’s authority to prevent or react to situations similar to the pet food recall.

We hope to be ready to introduce a bill this week or next. As Dr. Robert Brackett,

FDA’s Director of Food Safety (CFSAN), was quoted as saying, ‘‘The outbreaks point

to a need to completely overhaul the way the agency does business...We have to get

out of the 1950s paradigm.’’ Our legislation will focus on the following five proposals

that, if in place, might have prevented or mitigated this recent contamination:

1. Mandatory Recall Authority;

2. Adverse Event Reporting Standards and Penalties;

3. Standing FDA Authority to Inspect Overseas;

4. Surveillance and Early Detection; and

5. Standardization of Voluntary Standards.

We look forward to FDA’s analysis of their oversight of pet food manufacturing

facilities and the final report on the actions that the agency took once the crisis finally ends. We also look forward to the results of your investigation, Mr. Chairman.

We feel that it will play a key role in determining the best steps to take in moving

forward.

Thank you again, Mr. Chairman for allowing us to present testimony at this hearing and we look forward to continuing to work with you on this issue.
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DIMINISHED CAPACITY: CAN THE FDA SURE

THE SAFETY AND SECURITY OF OUR NATION’S FOOD SUPPLY?—PART II

TUESDAY, JULY 17, 2007

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS,

COMMITTEE ON ENERGY AND COMMERCE,

Washington, DC.

The subcommittee met, pursuant to call, at 9:30 a.m., in room

2123 of the Rayburn House Office Building, Hon. Bart Stupak

(chairman) presiding.

Members present: Representatives DeGette, Melancon, Waxman,

Green, Schakowsky, Inslee, Markey, Dingell, Whitfield, Walden,

Murphy, Burgess, Blackburn, and Barton.

Staff present: David Nelson, Kevin Barstow, Richard Wilfong, Joanne Royce, Paul Jung, Scott Schloegel, Kyle Chapman, John

Sopko, Alan Slobodin, Kristen Carpenter, and John Stone.

OPENING STATEMENT OF HON. BART STUPAK, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN

Mr. STUPAK. Today we have a hearing on Diminished Capacity:

Can the FDA Assure the Safety and Security of the Nation’s Food

Supply? Before I begin the hearing, I would like to make a special

announcement. As frequently happens with our Oversight and Investigation hearings, there is a change in policy that occurs on the

eve of the hearing. This hearing is no exception.

For more than a year, Chairman Dingell and I have been calling

on the FDA to end the practice of allowing meat which is treated

with carbon monoxide and being sold in American groceries stores.

Treating meat with carbon monoxide allows the meat to keep its

freshly ground red color even though the meat may have spoiled.

I have a picture on the screen, or I should have a picture on the

screen here. There are two packages of ground meat that were left

out at room temperature for 27 hours. You can see the one which

was treated with carbon monoxide looks fresh and red, while the

other meat has turned brown and quite nasty looking. Late yesterday afternoon, following inquiries and discussions with the committee staff, Safeway Foods sent us this letter announcing that they

will discontinue the sale of fresh meat products packaged using

carbon monoxide. I wish to thank Safeway Inc. for their decision

to stop selling fresh meat treated with carbon monoxide.

And with that, we will begin our hearing. With each member, we

will have 5 minutes for an opening statement. I will begin.
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Today we hold the second hearing by the subcommittee on

whether FDA can assure the safety and security of the Nation’s

food supply. Since the subcommittee began investigating this issue

early this year, the news on the food safety front has grown progressively worse.

A steady stream of food safety disaster followed the tragic deaths

and illnesses caused by the spinach outbreak last fall. Fresh spinach packaged in California was contaminated with a deadly strain

of E. coli bacteria. The spinach tragedies were quickly followed by

an outbreak of life-threatening illnesses caused by salmonella in

Peter Pan peanut butter. Both of these outbreaks were preventable.

Then there were the mysterious deaths of hundreds of cherished

pets. We later learned that the American pet food had been contaminated by a wheat gluten from China. Wheat gluten is a vegetable protein found in everything from dietary supplements to baked

goods to children’s candy. Unfortunately, the Chinese exporters

added a little something extra to its products: a poisonous chemical

called melamine.

Shortly thereafter, it was discovered that the same deadly additive, melamine, was fed to hogs, chickens, and fish destined for

human consumption. Commissioner von Eschenbach claimed that

the tainted pet food case ‘‘demonstrated FDA’s effectiveness at detecting and containing a problem.’’

His sunny prognosis has certainly been put to the test. The pet

foods were soon followed by recalls of tainted cantaloupes, toothpaste, and the snack food Veggie Booty. And recent revelations

about the scope of contaminated seafood imported from China are

staggering. Our first hearing on April 24, 2007 exposed a fragmented food safety system beset with inconsistent oversight, ineffective coordination, and ineffective use of minimal resources.

How did the FDA respond? It announced, with great fanfare, the

appointment of a food safety czar. In fact, Dr. David Atchinson,

who received a glorified new title, has been central of FDA’s food

safety program for years. Promoting Dr. Atchinson does not begin

to address the depth and chronic shortcomings in FDA’s food safety

program.

Nearly 10 years ago, the National Academy of Sciences concluded

that the Federal food safety system was not equipped the meet the

emerging challenges. Since then, these challenges have expanded

exponentially, while FDA’s ability to protect the American people

has declined even further. Dr. David Kessler, FDA commissioner

under both former Presidents Bill Clinton and George Bush recently called the food safety system as broken.

Sadly the primarily findings of our investigations support this assessment. Investigators with the subcommittee traveled to interview FDA field personnel in San Francisco; Los Angeles; Denver;

Kansas City; Winchester, MA; Atlanta; New York; and San Jose,

Puerto Rico. FDA field personnel were more forthcoming about gaping holes in FDA’s food safety net than were headquarter officials.

We learned, for example, that while the FDA inspects less than

1 percent of all imported foods, only a small fraction of that 1 percent is actually tested for contaminants. FDA requires only that a

private laboratory test the suspect food for possible contamination.
361

These private labs that are testing are not subject to Federal oversight. FDA field personnel were highly critical of private laboratory

testing, which they described as shoddy or even scary.

Another significant finding by staff investigators confirmed a

concern that Chairman Dingell and I share with regarding the use

of carbon monoxide to make meat and seafood appear fresh. I have

repeatedly requested, to no avail, that FDA or HHS rescind the ruling that carbon monoxide can be used to treat meat, poultry, and

seafood to make them look fresh regardless of their age or condition. In San Francisco, subcommittee investigators discovered large

numbers of seafood imports from Asia and elsewhere arriving in

airtight packages containing carbon monoxide. When tested, fully

20 percent of the seafood had to be refused because of contamination of decomposition. In other words, this was rotten seafood make

to look fresh with the use of carbon monoxide.

Our investigation also confirmed that FDA’s food safety program

is woefully understaffed. Entry reviewers, investigators, and compliance officers simply cannot keep up with the flood of imported

food. We confirmed that the FDA’s ill-conceived decision to close 7

of its 13 laboratories would likely expose Americans to even more

dangers from unsafe food, particularly imports.

We also learn from FDA staff that importers have found ways to

circumvent even this minimal FDA authority all together by importing through ports with no FDA testing facilities. FDA field personnel, who answered our questions in a forthright and cooperative

manner, were invaluable to our investigation. However, several

FDA employees were fearful of retaliation and requested not to testify today, despite Commissioner von Eschenbach’s promises of zero

tolerance for retaliation against whistle blowers.

This subcommittee has heard far too many reports of FDA retaliation against employees who criticized the agency. We do not wish

to risk the careers of FDA field staff who talk to our investigators.

So our first panel will be committee staff testifying about their investigation. Our second panel will consist of two expert witnesses

and four FDA officials from labs that the administration plans to

shut down. They have shown tremendous courage by agreeing to

testify today. The last panel will be comprised of four officials from

FDA headquarters, including Dr. Andrew von Eschenbach who will

provide the administration’s testimony regarding the efforts of FDA

to protect Americans from unsafe food.

The globalization of the American economy has resulted in dramatic increase in the volume of imported foods. Last year, China

alone exported to the United States $2.3 billion worth of agricultural products, not including seafood, compared with $133 million

in 1980. However, while food imports grew exponentially, FDA inspections dropped from 50,000 in 1972 to 5,000 in 2006, a 90 percent reduction. Is it any wonder that one out of every four Americans suffer a food borne illness every year?

There is a lot of question that our Federal food safety system is

in need of a broad-based reform to reduce the risk to public health,

national security and the economy. Today’s hearing is to explore

these risks and effort to pave the way for a reform.
362

That is the end of my opening statement. I next turn to my

friend, Mr. Whitfield from Kentucky, for his opening statement.

Mr. Whitfield, sir.

OPENING STATEMENT OF HON. ED WHITFIELD, A REPRESENTATIVE IN CONGRESS FROM THE COMMONWEALTH OF KENTUCKY

Mr. WHITFIELD. Chairman Stupak, thank you very much for

holding this important hearing on the ability of the FDA to protect

the safety and security of America’s food supply.

Recent problems with imports in our food supply have been making national headlines, and I must say that a lot of those headlines

comes from China. Tainted wheat gluten originating in China was

found to be killing animals in America. Since then, Chinese shipments of toxic toothpaste, toys, and seafoods have caused safety

scares in America.

In 2004, bogus baby formulas killed dozens of infants in China.

More recently, the Chinese media have reported half a dozen dead

and many ill from a flawed antibiotic, 11 dead from tainted injections, 56 people ill from contaminated meat, toxic snacks pulled off

shelves, and fake blood protein discovered in hospitals. Now, that

is all domestic in China.

And in May the head of the agency that regulates Chinese food

and drugs was sentenced to death and was executed for accepting

bribes in exchange for licenses, produce fake drugs and medical devices. He was executed, but we don’t know what happened to those

people who did the bribing.

The general administrator of inspections and quarantines in

China, China’s standard watchdog, said that 20 percent of their domestic products have failed to meet safety standards. That kind of

information should cause us pause to what is coming into America

from China. Now, the FDA has the responsibility of regulating the

safety of all domestic and imported articles used for food and drink,

except for meat and poultry, and these include both animal and

human foods. This means that FDA oversees 80 percent of the Nation’s food supply. But the information I have, they only have 20

percent of the U.S. food safety budget. The U.S. Department of Agriculture has the biggest part of that budget.

And over the past 35 years as biotechnology became a focus of

FDA regulation, the food safety share of FDA’s budget declined

from about half of FDA’s budget to about a quarter. As FDA’s resources for food safety has declined, America has become more of

an importer of food products. Food imports have risen 15 percent

annually over the last 10 years, and it is suggested that today literally 50 percent of our food supply imported.

So FDA has received more than 10 million imported food entries

in fiscal year 2006 and just over 1 percent of those shipments were

physically examined. FDA’s main mission in food imports is, if possible, to prevent or lessen the chance of public health risks from

FDA-regulated imports. FDA has relied upon border operations as

a primary line of defense. The surge and volume, variety and complexity of imports as well as threats of terrorism are good reasons

to overhaul FDA’s system for the 21st century. Dr. Mark McClellan, when he was FDA commissioner, was right, I believe, when he
363

said that FDA needed to adopt a risk-based import system to replace the current import program.

Unfortunately, in 2007, the FDA lacks the health and safety information to make systematic risk-based decision. FDA makes initial screening decisions based only on the imports invoiced data,

which is limited to seller, a description of the goods, and identification of the buyer. Recall information, laboratory results, facility inspection histories, and publicly available information related to

possibly adulterated products from specific regions are not used to

make decisions on which shipments to inspect.

FDA needs also to profile food control agencies in foreign countries, understand what they do, and where they are developing new

programs. Such a systems approach was recommended by the GAO

in 1983 for the Department of Agriculture’s Food Safety and Inspection Service.

Second, FDA should establish an online training course for foreign regulators and food processors on good manufacturing practices. FDA may not be effectively using the authority even that it

has today. While the Bioterrorism Act of 2002 gave FDA dramatically more authority over imported food, it took FDA 5 years before

it invoked the Acts Authority for the first and only time in the pet

food investigation.

There may also be gaps in FDA’s law. Congress should pass legislation to make clear that FDA has authority to prosecute foreign

food producers who tamper with food bound for the U.S., even

when these acts occur outside U.S. territory.

I would like to thank, at the outset, all of our witnesses today

including FDA Commissioner von Eschenbach who have come this

morning to talk about the steps that FDA has taken and will take

in the future to further increase the safety of our food supply. We

appreciate the witnesses’ testimony. We look forward to it, and, Mr.

Chairman, I have gone over my time.

Mr. STUPAK. I thank the gentleman for his opening. Next we will

turn to Mr. Inslee from Washington for opening statement, please,

sir.

OPENING STATEMENT OF HON. JAY INSLEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WASHINGTON

Mr. INSLEE. Thank you. I think that what Americans may be

asking now is who needs Al Qaeda when you have E. coli? Who

needs Al Qaeda when you have melamine? And the reason I say

that is if Osama bin Laden was responsible for the E. coli

poisonings of the Americans that is taking place and the melamine

and the other contaminants that have come from foreign manufacturers, this country would act. We would actually do something.

We wouldn’t close half of our FDA offices in response to that

threat. We wouldn’t continue to allow the Federal agencies to have

no meaningful requirements for policies and practices for leafy and

green vegetables that lead to repeated E. coli poisonings. We would

actually act.

And I just think in light of the information that is now apparent

the sieve that we have for food protection of Americans, that we

have got to take some action. If we spent, invested one-tenth of the

amount of time, money, and effort that we do on the war on terror-
364

ism on these food safety poisonings, we would reduce probably by

a factor of 10 the poisonings of Americans, which are in the tens

of thousands every year. So I would suggest during this hearing

that if we think of this threat in these terms, and we will respond

accordingly.

I will be asking questions about why it makes sense to divide the

compliance function in FDA to chop up the compliance responsibility between offices, which makes no sense to me. Why it makes

sense in the first place to do this consolidation, I haven’t seen evidence to support that. And why it makes sense to continue this

path of having no practices to require certain clean policies when

you handle vegetable material in the United States.

We have adopted and we have seen where a risk-based management program can be effective in reducing poisoning in our meatborne toxins. We have not done that for our green foods. We have

got to do that. I know that this committee will be acting shortly

to do that, and I will look forward to success. But I hope in this,

we are invested with the theory during this hearing that we are

going to act with the same degree of diligence we will as we do in

the war on terrorism. Having a war on E. coli is not such a bad

idea when you talk to the tens of thousands of Americans who have

been affected by food poisoning in the last several years.

Thank you, Mr. Chairman.

Mr. STUPAK. Thank you, Mr. Inslee. Next turn to the ranking

member of the full committee, Mr. Barton of Texas, for an opening

statement please.

OPENING STATEMENT OF HON. JOE BARTON, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS

Mr. BARTON. Thank you, Mr. Chairman. Before I give my opening statement, I want to take a point of personal privilege to introduce a special guest that is with me today. I have Lieutenant Colonel Miguel Howell with me. He is a White House Fellow. He is a

West Point graduate. He is a special services officer. He has been

posted in Latin America and in the Middle East. He is one of a

dozen or so White House Fellows this year. He is working at the

Millennium Corporation.

The White House Fellows Program was established by President

Johnson in the mid-1960s, and it gives bright, young American

men and women an opportunity to work with the President and the

executive branch for a year, and then go back and pursue their ambitions in the private sector; although, some do go on into the public sector. Colin Powell is a former White House fellow. Senator

Tim Wirth, who was a member of this committee, is also a former

Fellow. So we want to welcome Lieutenant Colonel Miguel Howell

to the Energy and Commerce Committee. I appreciate you being

here.

Mr. Chairman, I want to thank you and Mr. Whitfield for this

important hearing as we look into the FDA’s efforts to assure the

safety and security of our drug supply and our food supply. And we

also look into some of the management practices at the FDA. I am

glad that we have Commissioner von Eschenbach here personally

so he can listen to the testimony and participate in the hearing

later on.
365

Much of the focus of our hearing is going to be on the imported

food primarily from China because of the recent news about tainted

pet foods, antifreeze, fake toothpaste, and antibiotics and seafood.

Fortunately, in this country when we have a problem, we try to

solve it with civil means. One of the top Chinese officials was executed last week because of his alleged deficiencies in doing some

of these things over in China. So we hopefully are not going to

come to that here, certainly not in this hearing.

We have to get this right, and we have to get it right sooner

rather than later. This is easier said that done. It is a big challenge. The volume of our imports is surging. The variety and the

complexity of the products that are arriving on our shores from

overseas is increasing every day. We have to take a new look at

this, and we have to do it hopefully in this Congress.

I don’t have all the answers, but in shopping for new ideas, some

of the things that we have come up with on our side of the aisle

starts with some of these type of ideas.

First, we think that the FDA needs to make information about

good manufacturing practices more available to our foreign food

control agencies and foreign food processors. So that we can start

to begin to build competency in those systems. FDA should consider training courses, both on-site and through the Internet, about

the basics of safe manufacturing. We should translate some of

these courses into more than just the English language, just as the

FDA did when it published the rules for its Bioterrorism Act.

Second, we think that the FDA needs to get more information

about food safety risks by profiling food control agencies in all foreign countries, understanding what each agency can do. This type

of information would help the FDA better manage its limited resources by targeting those countries that have particular problems

with particular food product categories.

Third, and this, I think, is a very important idea. It is time for

the FDA to separate its foreign inspection activities from domestic

activities. Currently, the FDA does not have a core of inspectors

who specialize in foreign inspections. Instead, they treat foreign inspections as a stepchild of their domestic inspection program by

borrowing inspectors from various districts here in the United

States. I don’t think this works in today’s world. I think they

should create a separate division of foreign inspectors who develop

expertise about foreign regions and the products that come in from

overseas and spend a fair amount of their time overseas working

with foreign governments on sharing information and conducting

these inspections.

FDA would also need performance standards and objectives and

a way to measure progress. For reasons that remain unclear, the

FDA has not published a performance plan for the last three fiscal

years on which it evaluates its own performance, especially in imports. I think this is a mistake, and I am puzzled that they haven’t

done so. It is one of the things that I am going to ask Commissioner von Eschenbach if I am here when he takes questions. I

would like the FDA to be accountable and in compliance with the

Government Performance and Results Acts.

Finally, FDA should ensure that its import system is on solid

legal ground by either publishing a rule on when the FDA can de-
366

tain shipments without physical examinations or by working with

the Congress on appropriate legislation. I read in the trade press

that Chairman Dingell is considering legislation in this area. I can

assure the chairman that we on the Republican side will work with

him and other members of the majority if, in fact, that is their intention to move legislation in this area. I think that Congress

should legislate in this area.

So, Mr. Chairman, again this is an important hearing. Both political parties have been holding hearings on this for the last 15 to

20 years. Chairman Dingell held hearings when he was chairman

back in the 1980s. You are not that old. I held hearings in my

chairmanship, and now in Mr. Dingell’s new chairmanship once

again and rightfully so, he and Mr. Stupak are holding hearings.

So we think it is important, and we also think it is time to legislate.

With that, Mr. Chairman, I yield back.

Mr. STUPAK. I thank the ranking member for his opening statement. Next, Mr. Green from Texas, opening statement, sir.

OPENING STATEMENT OF HON. GENE GREEN, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS

Mr. GREEN. Thank you, Mr. Chairman, for holding this hearing

on food safety, which builds on our previous hearing on this topic

earlier this year. That hearing was focused primarily on the contamination of produce and peanut butter in this country, and I join

a number of my colleagues requesting that the FDA officials appear

before us to give us some answers. And I am glad that the FDA

is represented at the hearing; however, it seems that events of the

past 3 months have raised more questions than answers.

The cases of food safety lapses have only increased, and these

cases are shining a bright light on imported food, with most of the

high-profile problems stemming from Chinese imports. Unfortunately, the FDA simply isn’t meeting its mission to protect the

safety of the Nation’s food supply regardless of the food’s origins.

Chinese imports of goods regulated by FDA was increased by 400

percent in the last 10 years, yet the FDA has just over 1,300 field

investigators that monitor food and other FDA-regulated items arriving in 320 ports of entry.

This lack of resources results in the inspection of less than 1 percent of all imports falling within in the FDA’s jurisdiction. Despite

the obvious need for more resources to ensure the safety of our Nation’s food supply, the FDA has put forward a reorganization plan

that would close regional labs at the very time we need to boost

our monitoring and testing of potentially contaminated food.

It is no surprise that the idea of reorganization that would not

only close labs but would also cut the jobs of 200 microbiologists,

chemists, and engineers would have provoked the committee to express concerns and request more information. However, the FDA’s

release of information in dribs and drabs suggests the agency is

withholding critical information from the committee. If I know our

subcommittee and our full committee chairmen, I bet they would

be the first to warn that the committee is not interested in a catand-mouse game with the FDA, that we expect full compliance

with our request for information.
367

The problem we are facing is too real. It requires immediate action, especially given the enormous amount of food imported from

China where many of these problems have been uncovered. I am

particularly troubled by the reports of contaminated Chinese seafood. China is the No. 1 exporter of seafood to our country with $2

billion worth of Chinese seafood entering our borders, restaurants,

and grocery stores each year.

Time magazine recently profiled a restaurant along the Gulf

Coast in Mississippi that serves only U.S. farm-raised catfish because of the growing concerns over fish imported from China. This

restaurant did not have the confidence in our Federal Government’s ability to ensure the safety of the imported catfish. Apparently neither did State officials, which conducted a test of their

own in most grocery store samples of catfish, and Mississippi State

officials found residues of two antibiotics banned in the U.S. but

widely used in China. This failed attempt at regulation leaves all

our families, friends, and neighbors at a risk of consuming contaminated products and contracting potentially fatal illnesses.

We need to do better by the American people, and if the FDA

isn’t going to do it on its own, we in Congress have to use our legislative power to steer the agency in the right direction. I want to

thank our witnesses for being here today. Mr. Chairman, I yield

back my time.

Mr. STUPAK. Thank the gentleman. Next, Mrs. Blackburn from

Tennessee for an opening statement. Five minutes, please.

OPENING STATEMENT OF HON. MARSHA BLACKBURN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TENNESSEE

Mrs. BLACKBURN. Thank you, Mr. Chairman. Thanks for holding

the hearing, and I want to thank our witnesses for taking the time

to come before us today. As you are hearing, food safety is an extremely high priority issue from a public health standpoint, as well

as a national security issue. And as we talk about a security agenda, we hear more rather than less about this from our constituents.

And as you are hearing also, the recent episodes of food contamination have highlighted weaknesses in the FDA’s food safety review system. And we all are fearful, and we are all aware that terrorists could easily inflict harm upon our Nation’s food supply because of the gaps that are becoming evident in this system. We

know that we are vulnerable to harm from abroad where rules and

regulations governing food production are often more lax than they

are here at home.

As you know, the FDA only has enough inspectors to check about

1 percent of the 8.9 million imported food shipments each year, and

that was last year’s number. According to USDA, the U.S. is expected to import a record 70 billion in agricultural products this

year, which is nearly double the 36 billion purchased overseas in

1997. In addition, total food imports in the U.S. have risen by

about 50 percent over the last 5 years. We are all aware that last

year, our Nation was a net importer of food rather than having a

domestically grown food supply.

And while our food supply has generally been safe in the past,

as you are hearing from other members, the Chinese-made food
368

products have become the subject of an ongoing investigation and,

of course, of the international news attention in recent months. The

dangerous chemicals such as melamine and glycol have been found

in food products intended for both human and animal consumption.

This has lead to an unprecedented recall of pet foods, toothpaste,

pizza, protein bars, baby formula, and most recently, seafood.

We must seek greater accountability in the food supply through

FDA reform of its antiquated food safety review system. The FDA

must enter the 21st century where globalization has changed the

needs of the food review process and presents very different challenges. Gone are the days when we can say our food supply is

homegrown. We now live in a global economy, and free trade has

opened the doors to increased interdependence among nations.

The FDA is going to have to transition from defense to offense,

like it or not. And they are going to have to implement a risk-based

import control system to stop dangerous food imports from reaching

our shores. It is vital that we work with other countries to prevent

future bioterrorism opportunities in the country of origin and not

when it has entered our food supply.

A reformed import system will improve knowledge and assessment of public health risk. The FDA must focus on maximizing its

resources toward this effort. They are behind in this. This is something that they are going to have to put their energy into, have

more communication among their different branches and get in

front of this problem. Make the changes that are necessary for policing this food supply. They should work with foreign governments

to establish acceptable international food safety standards that encourage good manufacturing practices.

The FDA should improve data collection from farm producers to

ensure they have all the information necessary to conduct risk assessment abroad. It is imperative that the FDA improve dialog

with these foreign governments to raise the bar on adequate standards and review of our food supply. Americans believe they can

trust their food supply and place quality control in the hands of

American buyers and their suppliers.

We must keep all Americans safe by ensuring we have a strong

risk-based food import review system. Thank you, Mr. Chairman.

I yield back.

Mr. STUPAK. Thank you. Next we will turn to Ms. Schakowsky

for an opening statement. Please, Ms. Schakowsky of Illinois.

OPENING STATEMENT OF HON. JAN SCHAKOWSKY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS

Ms. SCHAKOWSKY. Thank you, Mr. Chairman, for holding this

hearing on FDA’s ability to secure the Nation’s food supply. This

serious public health issue brings into sharp relief our reliance on

other nations to keep our food safe. Recent high profile cases of

tainted food have brought this issue that has been lurking in cupboards and cabinets to the public’s attention. Poison toothpaste, antibiotic-laden seafood, and toxic pet food have brought FDA testing

practices and the vulnerabilities of our system into American

homes and lives.

Although I was happy to see that the FDA stopped imports of

certain seafood from China, unfortunately, it appears that action
369

occurred only after this committee and members of Congress

sounded the alarm on the issue of tainted fish. All too often, the

FDA is only reactive and does not catch dangerous products before

they cause illness or even death.

Every year, 76 Americans suffer from food-borne illness. Of those

individuals, approximately 325,000 will be hospitalized, and more

than 5,000 will die. If lax inspections and disjointed oversight continue, if we continue to allow imported ingredients to enter our

markets without inspection, we could see those numbers skyrocket.

Tainted imports enter our borders from countries around the

world, but recent cases of food and product poisoning point to

China in particular as a repeated source of poison food and ingredients. And we can’t rely on China to come up with a solution. As

Newsweek documents in their July 23 special report, China lacks

‘‘the will to overhaul a political structure that gives party officials

down to even the smallest villages huge influence over many facets

of economic life’’ which has lead to the problems we are facing

today. A few high profile executions of agency heads in China will

not reform a system plagued by corruption or where enforcement

of food regulations is left to local governments who are susceptible

to buyoffs from local businesses.

In order to get a handle on this problem and protect Americans

from dangerous products, we must change the way we inspect imported food and ingredients. In February of this year, the Government Accountability Office deemed Federal oversight of food safety

as ‘‘high risk’’ to the economy and public health and safety. We

need to change our regulatory system so that it can effectively

screen for dangerous substances and products. We must ensure

that the FDA has the resources and authority it needs to increase

inspections of imported foods and drugs.

Finally, we must make sure that the FDA has access to sophisticated testing techniques to help inspectors identify adulterated imports. As the investigations by the subcommittee have shown, the

FDA is a bureaucracy that is not responsive to investigators in the

field. The FDA uses outdated computer programs to determine

which foods are high risk. There are gaping holes in the FDA policy

that allows importers to get around regulations. The agency is

planning to close seven of its labs. Instead of working actively to

reduce the risk of food-borne illness, the FDA has become almost

totally reactive.

I look forward to hearing the testimony of FDA officials, investigators, and food safety advocates to get answers to questions

about the factors that have allowed unsafe foods to make it to our

kitchen tables. It is time that we act to ensure that our food supply

is safe.

Thank you, Mr. Chairman. I yield back.

Mr. STUPAK. I thank the gentlewoman. Next Ms. DeGette from

Colorado for opening statement please.

OPENING STATEMENT OF HON. DIANA DEGETTE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF COLORADO

Ms. DEGETTE. Thank you so much, Mr. Chairman, and I appreciate your continued diligence in these important investigative
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hearings on food safety. It is a topic that is of utmost concern to

the American people.

At our first hearing on this topic in April, we heard why we are

doing this. Gut-wrenching stories from people whose children have

been permanently disabled because of unsafe food.

Today the focus is on the FDA itself where serious concerns have

surfaced with regard to the recent spate of food-borne illnesses. It

has become clear that the FDA’s efforts to anticipate, prevent, and

respond to these outbreaks is frankly far from adequate. The agency has also been far from forthcoming with this subcommittee in

our attempt to investigate its actions leading up to and following

the incidents.

I expect to find out today why there has not been more cooperation with our investigation and maybe more importantly why the

FDA has not been more proactive in its efforts to safeguard the Nation’s food and drug supplies.

I want to discuss one aspect mentioned by Ms. Schakowsky that

is particularly disturbing in the investigation. In light of the problems with the FDA’s oversight of food, which have been discussed

by every other member on both sides of the aisle of this committee,

it is just incredible to me that the FDA is proposing to close over

half the food and drug safety field laboratories.

One of those seven laboratories is located right outside my congressional district. It is the Denver laboratory, and its offices are

at the Federal center in Lakewood, Co. Closing this lab would affect approximately 50 chemists, microbiologists, and analysts and

the important work that they do for our community. These dedicated employees perform highly specialized analysis of BSE, or

mad cow disease, food pathogens like E. coli and salmonella, food

additives, and human and veterinary drugs. Seems like some work

we need to be doing given the recent revelations.

Today I would like to find out how the FDA can justify closing

one of the Nation’s preeminent food and drug research laboratories

at a time when we have almost daily revelations about contaminated food. Today Ms. Belinda Collins, the director of the Denver

district of the FDA, will testify about the important work currently

being done at the Denver lab, as well as the risk to public health

of shutting the facility. Welcome, Belinda, and thank you so much

for being here.

I am sensitive to the budgetary pressures facing Federal agencies, and frankly I am a reinventing government type. I am always

willing to consider meaningful agency changes if there is demonstrated evidence that the changes will eliminate waste and duplication or trim costs or increase efficiency while improving public

health, but in this case, I have not seen this evidence.

In fact, just the opposite seems to be true. The FDA itself rated

the Denver lab as in good condition, while the Atlanta lab, which

will remain open under the current plan, was rated fair to poor.

The GAO has determined that midsized regional labs like the Denver lab are more appropriate than the mega labs that the FDA

wants to create. And in addition, Ms. Collins will tell us this morning that food safety and indeed homeland security in the Rocky

Mountain region, where I might add, Mr. Chairman, the Demo-
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cratic National Convention will be held next year, and in the Nation, will be compromised if the plan is carried out.

So despite the overwhelming evidence of the Denver lab’s effectiveness, the FDA is holding its position in moving forward with

the closure, citing simply nebulous future cost concerns without

providing this committee or the American people with evidence to

back it up. I think we should look very, very closely at that, given

the risks of the next food-borne outbreak and the hope of detecting

it quickly, and also the whole issue of losing employees who have

years of scientific expertise who can help us in this endeavor.

I also want to say, Mr. Chairman, that it is disconcerting that

the U.S. at Food and Drug Administration does not feel compelled

to answer questions put to it by the legislative branch. I have had

questions for the last two hearings, not about food safety but on

medical devices and other issues, that you might recall. I specifically asked the FDA to respond in writing to these questions, and

I haven’t had any response at all. This goes back to April, and I

know Mr. von Eschenbach is testifying later. I want to know why

we can’t get questions by this committee answered .

And finally, Mr. Chairman, people often say why do you have

these oversight hearings? Is it just a grandstand? Well, every time

we have a hearing, there is some new revelation, and something is

fixed. Just by chance today, for example, Safeway announced that

it is no longer going to package food with carbon monoxide, one of

our committee’s greatest concerns. And so you can see these hearings at least have some effect, and I hope they will have a lot more

effect.

Finally, Mr. Chairman, I would like to ask unanimous consent to

insert into the record a statement by my colleague, Ed Perlmutter,

whose Seventh Congressional District includes the FDA lab.

And with that, I yield back the balance of my time.

Mr. STUPAK. The gentlelady yields back. Mr. Waxman for an

opening statement please, sir.

OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA

Mr. WAXMAN. Thank you very much, Mr. Chairman. When the

American people hear about dangers in their food, a lack of food

safety, whether it is from domestic-sourced food or imported food,

they want to know where the Government is. They know the Government has to act. The Government is supposed to act. They want

to the Government to protect the American people from unsafe

foods.

While we have for most foods in this country the Food and Drug

Administration, with that responsibility, and it is easy to see that

the Food and Drug Administration is not doing enough to protect

our citizens from exposure to unsafe foods. But I think there is a

responsibility that is a shared one because Congress hasn’t done its

part to make sure that FDA has both the authorities and the resources to do a job well.

For example, FDA lacks the authority to demand access to a

firm’s records and data during routine inspections. It lacks the ability to detain a shipment of imported foods without evidence that
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the specific shipment of food is contaminated or may pose some

other threat to the public health. The lack of these authorities limits FDA’s ability to be proactive rather than reactive in protecting

the food supply. Congress has also failed to give the FDA the needed resources. Of all the centers at FDA, the center for foods has

been the most starved for resources. FDA oversees 80 percent of

the food consumed in the United States. The U.S. Department of

Agriculture overlooks 20 percent, and yet USDA gets approximately 80 percent of the Federal dollars allocated to food safety,

while FDA gets the remaining 20 percent.

When it comes to the safety of the foods we eat every day, this

funding structure makes no sense, and this has got to be a concern.

To be sure, the administration and the FDA bears significant responsibility for the recent food safety crises. The administration

has not asked for additional resources. They have not come forward

with suggestions for how Congress should strengthen the FDA’s

authorities so that it can be more effective in dealing with these

crises.

And FDA itself bears significant responsibility here. One of

FDA’s major failures is in the area of inspections and enforcement.

My own oversight committee conducted an investigation in FDA’s

mission, effectiveness, and challenges for the future. And as part

of that investigation, we are going to release a report later this

week that identifies major weaknesses in FDA’s inspection and enforcement practices with respect to fresh produce firms. The report

will demonstrate that FDA has failed to carry out its responsibilities for enforcement in this particular clinical area.

Further, as this committee will hear today, the FDA has not always been forthcoming in getting us the information on its activities. Despite repeated requests, FDA has failed to get this committee information on important topics such as the closure of FDA

labs, the safety of imported seafood, and efforts to safeguard fresh,

leafy greens and other domestic foods. It is absolutely critical that

this committee receive complete information in these areas, and I

hope we get it in short order.

We here in Congress stand ready to work with the FDA to ensure that the agency has everything it needs to fulfill its congressional mandate to protect American citizens from unsafe foods. But

in order for us to do our job, we need FDA to be forthcoming in

getting us the information. We need FDA to tell us about what actions it has and has not taken to prevent unsafe foods from entering the market. We need FDA to tell us what the agency needs,

both in terms of authorities and in terms of funding to do this job,

and to do it well. FDA needs to help us so we can help the FDA.

So hearings like this, we will have an opportunity to get the

facts. Once we get the facts, we can figure out what actions are

needed. But it is important that Congress do this job, and I want

to commend you for holding this hearing, for doing this investigation because the American people expect and demand that when

they buy their food, whether it is from the United States or from

China or from anywhere else, that somebody in this U.S. Government is making sure that this food is safe. Thank you, Mr. Chairman.
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Mr. STUPAK. Next we turn to the chairman of the full committee

of the Energy and Commerce Committee, Mr. Dingell from Michigan, for an opening statement please.

OPENING STATEMENT OF HON. JOHN D. DINGELL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN

Mr. DINGELL. Mr. Chairman, I commend you for this hearing. It

is extraordinary importance, and it could not be any timelier. Almost every day brings news of another threat to the public health

posed by contaminated food products and parenthetically by prescription pharmaceuticals and other matters relative to the inadequacies of food and drug and the inadequacies of their budget. The

recent series of tainted food recalls has focused America’s attention

on the sorry state of Federal oversight of the domestic food supply.

Even more disturbing, however, is the virtual abdication by the

Food and Drug Administration of oversight or inspection of the

ever-increasing flood of imported food.

We could look back at the sorry mess which we saw when Food

and Drug devoted almost its entire resources to finding just a few

cyanide-contaminated grapes supposedly from Chile. And we are

finding that a lot of this is not an inadequacy in terms of the dedication of the personnel at the agency, not much of it due to weakness of law, but a very large part of it due to inadequacies of funding and the inadequacies of the ability of Food and Drug to carry

out its important responsibility.

From time to time, this committee has had to go into the question of the inadequacies of the Food and Drug Administration. It

appears that that is something which is becoming very timely at

this time. The reality is at this time that the amount of food imported into the United States is double that which was imported

10 years ago. More than a quarter of all food purchased by Americans is imported. More than 80 percent of all seafood consumed in

the U.S. is imported.

Between 2002 and 2006, FDA-regulated food imports from China

rose approximately from 100,000 shipments to nearly 235,000 shipments. Experts expect and predict that these shipments will reach

300,000 this year. The number of personnel, the budget, and the

ability to address these questions and the safety of these shipments, is, I think, fictional at best.

The FDA examines less than 1 percent of these imports, and

those imports examined bear test for only a small fraction. This is

unacceptable, especially in the light of the horror stories coming

out of China, such as poisonous melamine in food products, the

anti-freeze chemical diathyline glycol in toothpaste, and illegal

antibiotics and suspected carcinogens in farm-raised shrimp and

fish.

Even worse, China released a study recently showing that nearly

one-fifth of all food and consumer products sold to its own people

are tainted and substandard. Their cure appears to be to shoot the

head of the Food and Drug Administration or whatever it might be

called. Another Chinese Government reports rivers in China so

contaminated with sewage, heavy metals from industrial byproducts, and pesticides, that fish farmers no longer have any choice
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but to use chemicals and antibiotics to keep fish alive. One must

ask what are those doing to the United States and to our citizens.

I would note that while all this is going on, the FDA is proposing

to close labs because of budgetary constraints, and one must ask

how is that going to better consumer safety in the United States.

I would note that this country is supposed to have the best and the

strongest laws to protect our consumers with regard to food products, with regard to drugs, and with regard to other matters under

the jurisdiction of FDA. Clearly that situation is being worsened by

budget inadequacies and probably statutory failures in terms of the

ability of this country to address the situation as we now find it.

Since is more than 20 percent of U.S. seafood imports come from

China, I shudder to think how much of this tainted Chinese seafood has already reached American tables, and what the consequences of that are to American consumers. How has FDA responded to this increasing threat to American consumers? Well,

they propose to name a food czar. Now, I note that they give him

no real authority. They will propose a sweeping reorganization of

their food inspection operations, close some of their most crucial

laboratories including one at the third largest port in the United

States that could be used to address the question of dangerous imports and threats to the well-being of our consuming public.

As we will hear from the committee staff who have interviewed

numerous FDA field employees as well as from a number of witnesses with actual hands-on experience in our Nation’s ports, the

FDA reorganizations programs and proposals will shift resources

away from ports of entry, actions that will in all likelihood worsen

our food safety crisis.

Further, their proposal will eliminate much of the scarce laboratory expertise currently found at FDA. The Federal food safety system is in dire need of reform. It is fragmented, understaffed, inefficient, and lacking in state of our tracking programs in large part

due to the inadequacies of its budget and the fact that the administration thinks that a leaner and meaner system is going to protect

American consumers, but in fact, it puts them at still greater risk.

Furthermore, FDA has largely abdicated its regulator role to the

food industry itself. In other words, the fox is going to be addressing the safety of the chicken coop. This must change. I will soon

introduce legislation to address this situation. I have sent a Dear

Colleague letter out to my colleagues asking them to join in this

because this is something that desperately needs to be done.

Amongst other things, it will provide additional resources and

authorities for FDA to ensure that it can effectively monitor and

control food and drug imports entering the United States. It will

also provide for additional research on effective testing techniques

at the border to aid inspectors in identifying adulterated imports.

I think we must hope together that senior FDA officials who

comprise our third panel today will acknowledge the glaring structural deficiencies in existing food safety regime, stop the dangerous

and wasteful reorganizations in their field inspection service, and

work with us to craft a system truly capable of meeting the challenges of the global food market. I expect the assistance of the

agencies. I look forward to cooperating with my colleagues, and I
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expect to have a vigorous effort to correct the abuses, which you

are about to show today.

Mr. Chairman, I thank you for your kindness and for your vigorous leadership in this matter.

Mr. STUPAK. I thank the gentleman from Michigan. Next Mr.

Murphy, do you want to give an opening statement?

OPENING STATEMENT OF HON. TIM MURPHY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA

Mr. MURPHY. Thank you, Mr. Chairman. Just briefly, I wanted

to point out that certainly the importance of this hearing can’t be

underestimated or understated not only because we have seen recent outbreaks of contaminated food from E. coli in spinach and

salmonella in peanut butter and contaminated foods in pet foods,

but understand the complexity of the importance of this all the way

down the line, beginning with farms or ranches where we look at

everything from farming practices and pesticides, hormones, herbicides, and washing of food there, to factories and processing centers

to shipping things across the sea, what is done at our ports, what

is done at our truck and train terminals and transporting those

foods across and handling foods at warehouses and food distributors and grocery stores and restaurants, and then all the way down

to food handlers and the households themselves.

Every step of the way, the safety and cleanliness of foods must

be protected, and it is important that we have an FDA and other

Government agencies that review the whole food chain all the way

through to make sure we are providing safe and secure food supply

for our Nation.

I wish that we had some jurisdiction over what other nations do

when we are importing foods from other countries, and I am hoping

along the way of this hearing and others that we can obtain more

ideas of how to make sure we are securing the safety of that food

supply as well.

So with that being said, I am looking forward to this hearing and

ideas that may come out of this panel of what we may do to move

that forward. I thank the chairman.

Mr. STUPAK. I thank the gentleman.

Any other statements for the record will be accepted at this time.

[The prepared statement of Mr. Burgess follows:]

PREPARED STATEMENT OF HON. MICHAEL C.BURGESS, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF TEXAS

Thank you Chairman Stupak and Ranking Member Whitfield.

With the ever increasing number of recalls, I continue to be extremely concerned

with the safety and security of normal household products. While I remain confident

that America has the safest food supply in the world, what I am more concerned

about is the safety of imported goods, especially those from the Republic of China.

My friend and colleague, Mr. Greg Walden, and I sent a letter to the committee calling for an investigation regarding the many food and consumer product safety recalls from China. I continue to urge the leadership of this committee to fully examine this matter.

Today, however, we are focusing on the FDA’s duty to safeguard our food supply.

While I am pleased that we have Dr. von Eschenbach and others with us today I

still believe that they should have had the opportunity to appear before us at the

last hearing. This committee has many questions for the FDA regarding a host of

issues, including the reorganization efforts. I took look forward to discussing the

need to reorganize; however, I also hope that an adequate amount of time is spent
376

on discussing the FDA’s role and responsibility for ensuring that our imported foods

are safe for the citizens of this country.

Mr. Chairman, unfortunately I will have to leave this hearing in a little while to

go up the road to Walter Reed; however, I have made arrangements to be back here

in time for the third panel. I sincerely apologize to the witnesses on the first and

second panel for my absence.

Thank you, Mr. Chairman, and I yield back the remainder of my time.

Mr. STUPAK.Before we have our first panel, the gentlewoman

from Colorado mentioned the fact that Representative Perlmutter

would like a statement in the record without objection. We will do

that. Also I mentioned the Safeway letter addressed to myself and

Chairman Dingell as to they are going to discontinue use of the

carbon monoxide in the sale of their fresh meat products. I would

ask unanimous consent to place that letter in the file. And Mr.

Whitfield, you had a unanimous request?

Mr. WHITFIELD. I do, Mr. Chairman. This is a letter from Congress Luis Fortuno who represents Puerto Rico, and I would ask

unanimous consent that we include in the record his letter expressing concern about the lab in San Juan, Puerto Rico.

Mr. STUPAK. Without objection, Mr. Perlmutter’s statement, the

letter from Safeway, and the letter from Congressman Fortuno

about Puerto Rico be entered in the record. With that, we will call

our first panel.

And as all opening statements have been concluded by members,

our first panel, would the witnesses please come forward? On our

first panel, we have Mr. David Nelson, senior investigator for the

Committee on Energy and Commerce; Mr. Kevin Barstow, investigative counsel for the Energy and Commerce Committee; Mr.

Richard Wilfong, investigator with the Energy and Commerce Committee.

Now, gentleman, it is the policy of this subcommittee to take all

testimony under oath. Please be advised that witnesses have the

right under the rules of the House to be advised by counsel during

their testimony. Do any of you wish to be represented by counsel?

Witnesses indicated they do not. I will ask you to rise, raise your

right hand, and take the oath.

[Witnesses sworn]

Mr. STUPAK. Let the record reflect that witnesses replied in the

affirmative. You are now under oath. We will begin with an opening statement for 5 minutes. You may submit a longer statement

for inclusion in the hearing record. I understand that, Mr. Nelson,

you will be giving the statement on behalf of the three committee

members there. And you may begin any time, sir.

TESTIMONY OF DAVID NELSON, SENIOR INVESTIGATOR, COMMITTEE ON ENERGY AND COMMERCE, ACCOMPANIED BY

KEVIN BARSTOW, INVESTIGATIVE COUNSEL, COMMITTEE ON

ENERGY AND COMMERCE; AND RICHARD WILFONG, INVESTIGATOR, COMMITTEE ON ENERGY AND COMMERCE

Mr. NELSON. Thank you, Mr. Chairman. As many of you may be

aware, I am David Nelson. I am an investigator on the Energy and

Commerce Committee staff. With me on my right are Kevin Barstow and on my left Richard Wilfong. They and several other members of the majority staff and Krista Carpenter of the minority staff
377

have been investigating questions of food safety for the committee

for the last 4 months.

As part of the inquiry, we have reviewed tens of thousands of

pages, some of which were delivered only last week of documents.

We have conducted numbers interviews of industry experts, current

and former FDA employees, per your instructions. We visited numerous ports, FDA laboratories, and field offices around the country. Minority staff participated in most of these interviews and site

visits.

Chairman Stupak, you asked us to focus on three critical areas

of food safety that were raised by the testimony during the April

24 hearing of this committee. First was the extent to which FDA

is protecting Americans from contaminated food imports. Second

the extent to which FDA’s proposed reorganization of its field operations, including FDA’s decision to shut down or proposal to shut

down 7 of its 13 laboratories is consistent with the agency’s charge

to ensure the safety of the Nation’s food supply.

Finally, you asked us to explore the extent to which FDA’s continued use of voluntary guidelines are adequate to ensure the safety of the Nation’s food supply. And in the course of that inquiry,

we examined a number of products in FDA’s regulation thereof, domestic and imported leafy greens, peanut butter, imported vegetable proteins like wheat gluten, imported seafood and imported

toothpaste containing a deadly chemical diathyline glycol.

The preliminary findings confirm the results of the subcommittee’s April hearing, that FDA has failed to adequately respond to

increased imports of foreign food products. Recent accounts of

tainted imports from China provide additional evidence. Simply

stated, the FDA lacks sufficient resources and authority to ensure

food safety, and legislation will be needed to correct these deficiencies.

The current proposal to change FDA’s structure and management would appear to exacerbate the current food safety situation.

Lastly, FDA’s current regulatory approach which relies upon voluntary guidelines, promotes domestic and imported foods, appears

inadequate in responding to the changing food industry.

I only have time to make a very few points that are made in the

written testimony, Mr. Chairman. So let me just concentrate on a

few. Our review of the operations in San Francisco reveal that it

is physically impossible for that office to perform more than a cursory review of most imports. The San Francisco office has four

entry reviewers to oversee 4,000 entry lines per day. A typical reviewer’s day involves examining 600 food entries, 300 medical device entries, 25 reagent entries, and 25 drug entries on a computer

screen. That is about one entry every 30 seconds. That is the time

they have to decide whether or not they even recommend sending

an inspector out to inspect, physically look at the goods, or to take

a sample.

One of the problems that we found in every lab we traveled to

was the unverified reliance by FDA on the use of private laboratory

tests to release suspect imports. FDA permits importers to take

possession of even highly suspect goods that arrange for their testing by private laboratories. Import alerts that contain the instruction, detention without physical examination, does not mean detain
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1 Federal responsibility for food safety is shared by FDA and the U.S. Department of Agriculture (USDA). FDA’s authority extends to approximately 80 percent of the food supply.

the ordinary use of that word. It means allow delivery to the importer. The importer then has to contract with a private lab, which

FDA does not oversee, does not license, does not audit, and has no

legal authority to direct importers to specific labs or away from

specific labs, regardless of what the record of those labs are.

If those laboratories provide a negative finding of pathogens or

toxins in five consecutive shipments, then that exporter is removed

from the import alert, and the Oasis system assures that all future

shipments from that exporter are going to come into the United

States without any further testing.

Mr. Chairman, the rest of the report goes on and deals with the

problems with the Oasis system, deficiencies we found in at least

the enforcement of country-of-origin regulations, the seafood problems that are especially problematic, the carbon monoxide being

used as atmosphere around imported fish was particularly troubling. Some 20 percent of the imports into the United States in San

Francisco coming in in these atmospheres were found to be disguising decomposed fish. Now, despite the fact that that was the record

in San Francisco and we confirmed it to a certain extent in New

York, FDA nonetheless in 2001 determined that consumers would

be able to purchase fish that was made to look fresher than it probably is in those atmospheres. And in 2004, said it was OK for meat.

The written testimony contains a lot about the proposed reorganization, the field staff, which I will be glad to answer any questions about, as will my colleagues. We don’t have time to highlight

those here.

[The prepared statement of Mr. Nelson follows:]

STATEMENT OF DAVID NELSON

Mr. Chairman and members of the subcommittee, today the subcommittee begins

the second in a series of expected hearings concerning the adequacy of Food and

Drug Administration’s (FDA) efforts to ensure the safety of the Nation’s food supply.

As part of this inquiry, committee staff have reviewed thousands of pages of documents and conducted numerous interviews of industry experts and current and

former FDA employees. Per your instructions, we also visited numerous ports of

entry and FDA laboratories and field offices. The FDA offices visited included the

Detroit, San Francisco, Los Angeles, Denver, Kansas City, Winchester, MA, Atlanta,

New York, and San Juan, Puerto Rico district offices and/or laboratories. Minority

Staff participated in most of these interviews and site visits.

Chairman Stupak asked the staff to focus on three critical areas of food safety

that were raised by the testimony of the April 24, 2007, hearing:

• The extent to which FDA is protecting Americans from contaminated food imports;

• The extent to which FDA’s proposed reorganization of its field operations, including FDA’s decision to shut down seven of its 13 laboratories, is consistent with

the Agency’s charge to ensure the safety of the Nation’s food supply;1

• The extent to which FDA’s continued use of voluntary guidelines of certain products that have been implicated in recent food poisoning outbreaks are adequate to

ensure the safety of the Nation’s food supply. These products include both domestic

and imported leafy greens, peanut butter, imported vegetable protein, imported seafood, and imported toothpaste containing the deadly chemical diethylene glycol.

Preliminary findings confirm the results of the subcommittee’s April 2007 hearing

that FDA has failed to adequately respond to increased imports of foreign food products. Recent accounts of tainted imports from China provide additional evidence,
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2 See appendix to staff statement that summarizes a sample of recent news articles concerning unsafe food products from China.

3 See FDA Import Alert No. 99–29 (April 27, 2007). do not literally mean ‘‘detain,’’ but allow

delivery to the importer.

simply stated, that FDA lacks sufficient resources and authority to ensure food safety and legislation will be needed to correct these deficiencies. 2

The current proposal to change FDA’s structure and management would appear

to exacerbate the current food safety situation. Lastly, FDA’s current regulatory approach, which relies upon voluntary guidelines for most domestic and imported

foods, appears inadequate in responding to the changing food industry.

FDA Regulation of Food Imports is Minimal

Committee staff learned that FDA inspects less than 1 percent of all imported

foods and samples only a fraction of those it inspects. While the number of FDA

inspectors has been falling since 2003, the importation of food products into the

United States has nearly doubled.

Our review of operations in San Francisco typifies the problem with the current

FDA inspection system. It was apparent from interviews and observations that it

is physically impossible for FDA’s San Francisco staff to perform more than a cursory review of most imports. The San Francisco office has four entry reviewers to

oversee thousands of entry lines per day. A typical reviewer’s day involves examining 600 food entries, 300 medical device entries, 25 reagent entries, and 25 drug

entries on a computer screen. This is about 1 entry line every 30 seconds. However,

due to the volume of entries and the time required to take action, less than 30 seconds is spent on most of them. A single entry of Chinese herbs can take more than

an hour to review. Even the simplest action involves several minutes, e.g., e-mailing

a broker for additional information. If an entry review results in a recommendation

for a site visit, the Compliance office must make a determination of whether to send

an investigator. Compliance must also decide on whether to sample the shipment.

Determining what requires further examination is also complicated by differences

and discrepancies in the way imported food is identified. For food, FDA categorizes

entries by product codes, but Customs and Border Protection (CBP) categorizes entries by tariff codes, an entirely different system. Brokers often miscode entries and

product descriptions are poor, particularly for products imported from China.

FDA’s Uncritical Reliance on Private Laboratories Causes Problems

One particularly important problem that staff field investigation uncovered dealt

with the unverified reliance by FDA on the use of private laboratory tests to release

suspect imports. Committee staff was told by FDA inspectors that FDA permits importers to take possession of even highly suspect goods and arrange for their testing

by private laboratories. Import alerts that contain the instruction ‘‘detention without

physical examination,’’ such as the import alert issued on April 27, 2007, with regard to vegetable protein (wheat gluten, et cetera),3

Once there have been five consecutive analyses by private laboratories that find

no violations, the importer is no longer required to conduct testing on products of

that exporter and the goods may proceed into the consumer market without further

action, even if the food is covered by an alert. FDA does not require a separate bond

be posted by the importer taking delivery. Further, FDA neither accredits nor

debars private laboratories that analyze imported food samples, despite the fact that

these laboratories often use incorrect methods or report incorrect results.

Officials at all FDA labs visited by committee staff were critical of private laboratory testing. An FDA Deputy Lab Director, who performs private laboratory reviews,

said that some private laboratory work is ‘‘decent,’’ while some is ‘‘scary’’. He believes that none of the private laboratory analyses are completely accurate. In general, he described private laboratory work as ‘‘not good’’ and ‘‘spooky’’. An FDA

Science Branch Director concurred with this assessment. He commented that private laboratory work is ‘‘shoddy’’ because results are driven by financial rather than

scientific concerns.

FDA has the option of sending an inspector to gather samples to be examined in

a FDA lab, but rarely does so—only a minute fraction of the 25,000 daily food shipments are ever tested by a Government laboratory. When analyzing samples of imported food, FDA labs often find problems that private labs did not uncover.

Another problem related to imports identified by FDA field staff was that only 20

percent of food imports appear in FDA’s food import computer system (OASIS) for

review by the field inspection force. Review criteria are established by FDA’s Division of Import Operations and Policy (DIOP) in Washington and FDA field input is
380

minimal. FDA field inspectors complained to committee staff that 75 to 80 percent

of all individual import entries are not flagged, and therefore, have never been subject to cursory computer inspection of their paperwork by field inspectors who are

experts at identifying suspect shipments.

FDA Can Learn from Other Federal Agencies to Better Screen Imports

FDA’s approach to this complex, large, and growing problem is strikingly different

from the approach taken by other Federal agencies charged with equally important

border inspection responsibilities. Although FDA’s entry reviewers, investigators,

and compliance officers are clearly unable to keep up with the flood of imports, FDA

has no plans to increase its import staff, but does plan to shut its San Francisco

laboratory. In contrast, CBP will be adding 35 new ‘‘agricultural specialists’’ in San

Francisco, funded by the user fees that CBP is authorized to charge. FDA has no

user fees to pay the cost of monitoring food imports and its proposed fiscal year 2008

budget and proposed reorganization indicate that it is not seeking additional resources for this purpose.

Compared to USDA, FDA’s resources and activities appear to be woefully short

of its food import responsibilities. FDA is responsible for assuring the safety of 80

percent of the food supply, but lacking a user fee system, is able to inspect only

about 1 percent of all food imports, and does not ensure that foreign food processors

and suppliers meet U.S. food safety standards. In contrast, USDA is responsible for

only 20 percent of the food supply, but has a user fee system that allows it to inspect 16 percent of meat imports. In addition, USDA will not permit meat to be

shipped to the U.S. unless the exporting country meets USDA regulatory standards.

USDA also restricts the ports of entry of meat products to 10 ports. In contrast,

FDA does not require comparable regulatory standards and permits imports to enter

into the Customs territory of the United States at any of the 326 ports of entry,

despite the lack of FDA presence at most of these ports.

Pet Food, Wheat Gluten, and other Vegetable Proteins May Highlight FDA

Over-Reliance on OASIS

The recent recall of contaminated wheat gluten and other vegetable proteins highlights the dangers from an over-reliance on the OASIS system that removes 80 percent of the so-called ‘‘low risk’’ imports from any field inspection.

On March 15, 2007, FDA was informed that pets had been dying from kidney failure from eating what was eventually determined to be 95 varieties of pet food manufactured by Menu Foods. Moreover, the common ingredient was wheat gluten, a

widely used vegetable protein obtained from ChemNutra, a Las Vegas importer of

Chinese ingredients for the pet food and dietary supplement industries. FDA labs

in Cincinnati and Kansas City discovered that an industrial chemical, melamine,

had been mixed with the wheat gluten in order to artificially elevate its protein content.

An April 27, 2007, Import Alert issued by FDA provided that 8 vegetable proteins

(wheat, rice, corn, soy, and mung glutens and proteins) covering 10 tariff codes be

‘‘detained without physical examination,’’ as described above. Despite the regularly

accepted meaning of the word ‘‘detain,’’ this designation did not result in these vegetable proteins being embargoed. These products were delivered to the premises of

the importer, and the importer was required to submit samples to private laboratories for testing. As noted above, FDA laboratory officials believe this is not a reliable means for determining the safety of food products.

In contrast to FDA’s handling of these imports, CBP, on its own initiative, decided

to detain all such imports from China in the 10 tariff codes, pending testing by Government laboratories. All such imports were to be detained at a Customs Examination Station (a warehouse under CBP control), and samples from each lot would be

taken and supplied to both Customs and FDA laboratories. FDA officials in San

Francisco and Los Angeles were initially unaware of the CBP initiative and did not

appear pleased with the deviation from established the FDA procedure. Ultimately

the Agencies coordinated their efforts.

CBP informed committee staff that those 10 tariff codes produced about 21,000

entry lines on 17,000 entries (many CBP entries contain more than 1 line because

they contain more than 1 product) from approximately 1,000 different exporters to

the United States annually. This does not include human food, pet food, or animal

feeds at risk of containing the suspect vegetable proteins.

Until the high number of pet deaths became evident in March 2007, these vegetable proteins and the animal feeds that contained them had been among the imports

FDA never inspected under their OASIS review system. Testimony from the April

24, 2007, hearing reflects that there is no difference in the wheat gluten sold for
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human food, pet food, or animal feed. Vegetable proteins containing melamine have

now been found in chicken, hog, and fish feed.

On April 30, 2007, FDA made assignments to all Districts to inspect and gather

samples from food processors that use the suspect vegetable proteins as ingredients

in their food products. The number of firms to be inspected, however, is small. For

the entire West Coast and for States as far away as Hawaii and Utah, only 34 food

processors have been selected for inspection. Fortunately, no vegetable protein was

found to contain melamine in any human food processor. A bakery in Seattle was

found, however, to have a single unopened bag of ChemNutra wheat gluten.

Country of Origin Regulations Appear Inadequate

The true country of origin of imported wheat gluten and of vegetable proteins is

also a matter of some controversy. Committee staff was told that Europe generally,

and the Netherlands specifically, is the principal source of wheat gluten imports.

Staff witnessed, however, the unloading of wheat gluten declared as coming from

China in 50 pound bags marked with the ‘‘Wind Mill’’ brand of a Dutch firm,

Meelunie (see attached photos). The bags gave no indication that the product was

from China, but indicated the supplier was in ‘‘Amsterdam-Holland.’’

Customs officials informed committee staff that the Country of Origin regulations

now merely require that the purchaser be aware of the correct source of the goods.

When the staff inquired as to how any downstream purchasers were to know the

true origin of this apparently- Dutch wheat gluten, CBP informed them that if the

importer were not the end user of the product, they would have an obligation to inform all their customers of the true country of origin and so on throughout the supply chain. Once the Wind Mill bags enter commerce, however, CBP loses control.

Apparently there is no requirement that the consumers of the bread, candy, dietary

supplements, or other final products be told of the actual original source of the ingredients. Furthermore, the purchasers of pet food, meat, or fish that have been fed

Chinese vegetable proteins are never informed of the country of origin of the final

product components. CBP did indicate the importer might be required to mark the

bags, since CBP had no assurance that the true origin would be known downstream.

Since food processors are not required to inform consumers of the origin of its ingredients, Americans have no avenue with which to seek damages from companies

that sell products whose ingredients are suspect. Further, the minimal inspection

of imported food also means that false country-of-origin labeling is rarely detected.

Seafood Imports Remain Especially Problematic

On July 10, 2007, FDA issued Import Alert No. 16–131 requiring that all catfish,

shrimp, and other specified farm-raised fish from China be ‘‘detained without physical examination.’’ China had been importing fish that were contaminated with

fluoroquinolones and other antibiotics as well as malachite, an anti-fungal treatment that is a suspected carcinogen. Malachite is found in ponds and tanks containing fish not intended for human consumption. Other chemicals that are not approved for use in food have also been found in these imports. Antibiotics in food are

a public health problem because they promote resistance to drugs that kill infections.

The July 10, 2007, alert notes that 80 percent of the seafood consumed here is

imported and 40 percent of that is farm-raised. China produces 70 percent of the

farm-raised fish worldwide and exports about 80 percent of its production. The timing of the import alert, however, is curious. From the staff field investigation, it was

learned that FDA has known for years about the widespread use of antibiotics and

fungicides to treat farm-raised fish from China. It appears, however, that only after

the subcommittee and other congressional committees began to investigate FDA’s

less-than-aggressive approach to the regulation of fish imports, did FDA issue its

alert.

FDA field staff expressed their hope that this will mark a renewed concern by

their Agency of other known problems with the safety of fish imports. For example,

melamine has recently been discovered in the feed for farm-raised fish in Canada,

Washington, Alaska, and Oregon. The Canadian producer of the feed has recalled

the product, but FDA has yet to announce plans to deal with the fish that were fed

the contaminated feed. Committee staff learned that China and Vietnam are also

the major source of fish with dangerous levels of histamines due to improper storage.

Another safety concern uncovered by the staff’s fieldwork relates to seafood products and the manipulation of laboratory testing. As noted earlier, one of the questionable activities that FDA policy permits is for importers to become exempt from

import alerts by having their product test negative in a private lab five consecutive
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4 FDA has furnished the committee with documents reflecting their refusing entry to nine

shipments of fish packed with carbon monoxide because of decomposition so far this year in the

port of New York, but not the records in San Francisco or elsewhere. Given the paucity of testing done by FDA in general, even these records from one port demonstrate a troubling number

of harmful entries disguised by this FDA-approved method.

times. Import alerts have long applied to Mercury and other heavy metal contamination in large fish. Tuna and other large fish, such as Mahi-Mahi and swordfish,

with time accumulate mercury from contaminated water. Smaller fish have less

time to accumulate such toxins.

FDA laboratory staff warned committee staff that one of the schemes employed

by importers to evade the import alert is to import five separate entries of smaller

fish from a certain country or importer covered by an import alert to more easily

pass the private laboratory testing. Once their import alert status is removed, they

can return to importing larger varieties of fish. One FDA San Francisco laboratory

seafood expert told committee staff that over half of the swordfish on American tables would likely fail mercury testing because of this scheme.

Carbon Monoxide Processing Masks Decomposition

Committee staff learned from its field interviews that large numbers of seafood

imports from Asia are arriving in airtight packages containing significant concentrations of carbon monoxide. Carbon monoxide treatment makes seafood appear fresh,

regardless of its condition. In San Francisco, the staff learned that fully 20 percent

of the fish tested that were imported in a carbon monoxide environment were rejected because of decomposition or histamine contamination. Based upon its investigation, the staff believes that this problem is not unique to San Francisco, but is

widespread throughout the Nation.

The issue of using carbon monoxide to manipulate the appearance of food products

is not new. For example, Chairmen Dingell and Stupak, along with a number of food

safety experts, questioned the safety of meat and fish packaged in an environment

containing carbon monoxide with the FDA Commissioner and the HHS Secretary

last year. In response, FDA assured them that there was no health concerns associated with artificially disguising the color of meat with carbon monoxide.

Since then, the committee has sought from FDA any records regarding problems

with seafood imports, generally, and those packed in atmospheres containing carbon

monoxide, specifically. Although both Majority and Minority staff were shown such

records in the field by concerned FDA inspectors, none of the documents examined

or discussed during two staff visits to San Francisco have been delivered to the committee to date.4

The problems involving packaging fish in an environment of carbon monoxide

raise additional questions about FDA’s approval of this process as GRAS (Generally

Recognized As Safe) for food products. In San Francisco, the staff was told that the

entry of decomposed fish packed in an atmosphere of carbon monoxide dates back

to the 1990s. The problem reached such a level of concern in 1999 that FDA issued

an import bulletin, advising inspectors to watch out for tuna packed in carbon monoxide.

Despite the import bulletin issued in 1999, in 2001, the Center for Food and Applied Nutrition (CFSAN) approved the retail sale of tuna treated with carbon monoxide as GRAS. Technically, the CFSAN approval was for tuna packaged in ‘‘tasteless smoke,’’ a packaging atmosphere containing carbon monoxide that, in fact, does

not cure the fish, but merely preserves the color indefinitely like any other carbon

monoxide-containing airtight packaging. The GRAS determination was made by

FDA, despite the fact that the European Union bans this dangerous and deceptive

practice. Although FDA has subsequently cancelled the import bulletin, the staff

was told by FDA field officials in San Francisco and New York that the spoilage

problem with carbon monoxide-treated fish has not abated.

Despite these events, in 2004, FDA accepted petitions regarding meat packaged

in carbon monoxide as GRAS. This decision permits meat that is well past the time

when it is safe to consume to appear as red and fresh as when it was first packaged.

The committee is in the process of trying to determine exactly what CFSAN analysts knew about the problem with decomposed fish, when they permitted both fish

and meat packaged in an atmosphere of carbon monoxide to be sold to unsuspecting

consumers.

Poisoned Toothpaste Highlights Additional Problems

While not a food per se, FDA handling of the toothpaste from China laced with

diethylene glycol (DEG) is demonstrative of several shortcomings of FDA’s handling
383

of imports. In 1997, FDA witnessed 88 deaths in Haiti from cough syrup laced with

diethylene glycol, the chemical most often found in antifreeze. The children’s medicine was imported from China. The diethylene glycol was apparently substituted for

the more expensive ingredient, glycerin. Last year, 100 people in Panama and 5 people in China died from ingesting medications contaminated with this same chemical.

This year, toothpaste imported from China into the United States and seven other

countries has been found to contain this poison.

It was not until June 7, 2007, however, that FDA issued an import alert to detain,

on the importers’’ premises, toothpaste containing DEG and named several Chinese

exporters of the product to the U.S. The import alert was amended to include toothpaste packaged with toothbrushes after the San Juan FDA District decided, on its

own authority, to inspect retail stores and discovered the presence of diethylene glycol in products that combined toothbrushes with the deadly toothpaste. Their investigation revealed that this combination product was still entering the U.S. market

because brokers were declaring the shipments as brushes, not toothpaste.

Counterfeit Colgate-brand toothpaste, labeled as originating from South Africa,

that may contain DEG was also discovered during this investigation. Its true country of origin is in doubt. Pictures of some of the toothpaste entries from San Juan

are attached.

Committee staff has learned that the San Juan FDA laboratory is no longer permitted to analyze food samples—even though Puerto Rico, as an island, imports

most of its food. Thus, FDA now requires that samples of fresh produce that regularly contains illegal concentrations of pesticides from the Dominican Republic must

be shipped to Atlanta for analysis.

2. FDA’s Proposed Reorganization of its Field Staff would Likely Expose

Americans to Even More Danger from Unsafe Food, particularly Imported Food

No Justification Given for Major Reorganization

FDA has announced its intentions to conduct a sweeping reorganization of its field

operations in the midst of probably one of the most serious assaults upon food safety

since the Agency’s creation. FDA proposes eliminating 5 current regional offices and

reduce the districts from 20 to 16. The district offices to be eliminated in the consolidation are San Juan, Northern New Jersey, Cincinnati, and either Denver or Kansas City. As part of its reorganization plan, FDA is also proposing to close 7 of its

13 laboratories. These include Detroit, San Francisco, Denver, Kansas City, San

Juan, Philadelphia, and Winchester, Massachusetts.

Despite repeated requests from the committee, FDA has failed to provide any

analysis justifying this radical reorganization. FDA has failed to provide us with

any independent cost-benefit analysis for their proposal. The rationale for choosing

which districts to close is not discernable from the documents supplied to the committee. Decisions regarding district closures appear to be related, in part, to prospective retirement or current vacancies among District Directors.

On the surface, the proposed closings appear to be counterproductive and may

needlessly increase taxpayers’’ costs. For example, even though a very high percentage of drug manufacturing occurs in San Juan and New Jersey, FDA is proposing

the closure of these offices and laboratories in Philadelphia and San Juan. The

Puerto Rico closures will transfer oversight of drug inspections to the Orlando, Florida, District Office and testing to the Atlanta laboratory. Gathering relevant personnel will either result in tremendous additional expenses or, more likely, less enforcement.

Committee staff was told that among the more indefensible parts of the reorganization proposal is the consolidation of the compliance function into 10 locations.

This means, for example, that compliance recommendations regarding Agency action

from a San Francisco inspection will be applied in Seattle. Compliance officers make

decisions regarding which shipments to inspect, which to sample, and what actions

should be taken in response to the inspection findings. No compliance officer that

staff questioned thought having the Compliance Director located in a separate office

made sense. It would appear that this proposal would make the decision to take regulatory action—an already cumbersome task—even more difficult.

FDA is also proposing to consolidate the entry review function into six locations.

Under the current program, a very high percentage of import review is already conducted at headquarters. As previously mentioned, the OASIS system currently removes 80 percent of so-called ‘‘low risk’’ imports from any field inspection. Thus, a

very high percentage of food entries are not examined by inspectors at the port who

are best positioned to judge the bad actors, the importers that cheat, the brokers
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that misclassify, and imported products that arrive in unusual locations. Under the

new consolidation, those port inspectors will be totally removed from the identification process. All decisions concerning such inspections will be decided at the six designated locations, not in the field. Committee staff was told that this consolidation

is equivalent to having bureaucrats in Washington and a few regional locations determine the assignments for the local police forces.

Likewise, the committee staff was told that it would appear that the retirement

of the District Director in Denver has prompted a decision to split the Kansas City

District and move Denver into the District with Kansas and Nebraska, and placing

Iowa and Missouri in the Chicago District. Given the character of the primary regulated industries in those States, it is difficult to understand how splitting up a District that requires experts in veterinary medicine and animal feed industries (and

now apparently pet food as well) would be productive.

The rationale for closing more than half of FDA’s laboratories, at a time when

food safety is considered a public health crisis, is not discernible from the records

provided to the committee. The ostensible rationale is that there are a limited number of laboratories that FDA can maintain at a world-class level. Since FDA has not

provided an analysis demonstrating any cost-savings associated with the lab closures, their rationale implies that synergies exist in mega-labs; however, no documents have been produced by FDA to support that suggestion. When the Government Accountability Office examined this question, they found that midsize labs

were more efficient.

Committee staff was informed by FDA field staff that there will be a tremendous

loss in experience as laboratory analysts retire or resign, rather than be relocated.

In addition, recent history suggests that it will be extremely difficult to replace the

scientists necessary to conduct high-level laboratory activities. When FDA closed

labs in 1994, only 17 percent of the affected laboratory analysts elected to transfer.

Under the current lab closure proposal, only two analysts in San Francisco, one in

Denver, two in Massachusetts, and six in Kansas City have indicated that they may

accept a transfer to another lab. Hence, a significant level of expertise is expected

to be lost.

Also, taxpayers will not benefit from the substantial sums of money FDA has recently spent accrediting these labs, signing new leases, and rebuilding or refurbishing offices that they now propose to close. For example, the staff noted that the food

laboratory equipment, and all but one of the lab structures visited, appear to be

modern with long-term leases or outright ownership at each location.

FDA was given 4 months to produce the documents relating to the lab closures.

Prior to last week, FDA has produced only four boxes of paper. Each production included an assurance that the production was essentially complete. The early document productions were noteworthy for the absence of internal documents critical of

the reorganization and documents from the field.

More importantly, FDA has not furnished the committee with documents that

suggest the Agency has any plans to hire personnel with equivalent skills at its new

locations. In fact, the experience it claims will be replaced cannot be duplicated by

new hires over a reasonable period of years. Many of the laboratory employees are

renowned in their fields.

The staff was repeatedly told that the only credible explanation for this seemingly

incredible decision is that the Office of Regulatory Affairs management intends to

contract out the work. The staff was told, however, that State labs will not purchase

the millions of dollars in equipment and hire the necessary analysts unless there

is an expectation that the transferred work will be permanent. Private laboratories

have the drawbacks noted previously.

The critical question of how the work of half of FDA’s current labs is to be performed after they are closed remains unanswered by FDA reorganizers. It is difficult

to avoid the conclusion that, in fact, FDA management has decided to drastically

reduce the sample analyses performed in its own labs and to contract out the remainder.

Labs Due to Be Closed Possess Unique Capabilities

The committee staff was able to visit all of these labs, except for Philadelphia,

in the course of the subcommittee’s investigation and questions the justification for

such drastic actions, especially in light of the recent recalls and import alerts. Two

of the labs visited by staff, Detroit and San Juan, are almost exclusively devoted

to analyzing drugs. Detroit has been an important food lab given the volume of food

imported over the Ambassador Bridge from Canada. In this regard, it is important

to note that while Canada has a comparable regulatory system, not all imports

crossing the border into Detroit originate in Canada.
385

FDA has limited most of the Detroit laboratory’s work to ‘‘drug stability analysis,’’

which involves testing related to Government stocks of drugs. The staff has been

advised by the Department of Defense that such activity saved the Government

$600 million last year, or about one-third of the total FDA budget—a very profitable

endeavor for the United States Government. The drug stability work was performed

by eight full-time equivalents (FTEs) in Detroit and three FTEs each in Philadelphia and San Juan.

It should be noted that 60 percent of U.S. pharmaceuticals are manufactured in

Puerto Rico. Many of the inspections cannot be done without a laboratory analyst.

Most of the private sector laboratory employees are far more comfortable explaining

their work in Spanish. If the seasoned laboratory staff currently in Puerto Rico is

lost, FDA will be forced to find comparably skilled bilingual chemists and, once

trained, and pay their travel expenses to Puerto Rico. It should be noted that many

inspections of drug manufacturing take longer than the FDA estimate of 5 days.

Committee staff was initially sent to these laboratory locations to examine the

work that FDA had done in the melamine investigation. Only Kansas City, a laboratory in the heart of the pet food and animal feed industries, was allowed to analyze

food and feeds for melamine.

Although the Kansas City lab has done yeoman’s work, analyzing more than 400

samples in a little over 6 weeks time, it was not the only FDA lab capable of performing this work. Notwithstanding their capability, however, it appears that, for

unexplained reasons, other FDA labs due to be closed under the proposed reorganization were denied the $20 standard test needed to detect melamine and were forbidden to analyze samples of pet food, vegetable proteins, or other materials that

may have been contaminated by Chinese imports. Instead, the Agency spent some

fraction of the $2.6 million in Food Emergency Response Network grants to pay

some or all of the eight university laboratories that have cooperative agreements

with FDA to complete testing. To what extent the results of these laboratories could

be used in court is problematic, given the chain of custody issues raised by a number of FDA officials during the course of the committee’s investigation.

At best, this was a decision to waste Federal tax dollars, since the work was contracted out to State and university laboratories when in-house was available to perform at least some of the work. Moreover, there are indications that this type of

out-sourcing is ineffective. It was an outside laboratory that first pronounced the

contaminant in pet food as rat poison. The Cincinnati and Kansas City FDA laboratories discovered the melamine and developed the methods for detection. The Denver lab developed the method for analyzing melamine in fish.

Kansas City, like other FDA labs, was the beneficiary of modern equipment and

an expanded work force 5 years ago as part of the ramp-up decreed by Congress

in the Bioterrorism Act. It is a centerpiece for rapid analysis of threats to our food

security. Nevertheless, and again for no apparent reason, Kansas City has been

identified for closure.

The staff investigation also highlighted the importance of the San Francisco lab

in dealing with unsafe imports, especially from the Far East, and with domestic

issues related to the Salinas Valley. That laboratory has been a significant force in

the interdiction of problematic seafood. The staff was told that FDA lab analysts are

regularly recruited by FDA investigators to conduct pre-dawn inspections of seafood

importers and processors because of their experience and training in identifying

problem seafood. Committee staff learned that the lab’s reputation for effectiveness

is so well known that many unscrupulous importers of farm-raised shrimp and other

fish are now sending their questionable products via air or ‘‘in bond’’ to be ‘‘entered’’

in Las Vegas, in part to avoid the scrutiny that the seafood would face in San Francisco and the other West Coast seaports.

Both the State of California and FDA inspectors involved in the produce investigation told committee staff that the closure of the San Francisco lab would be a

great loss to the California Food Emergency Response Team. Committee staff were

told that laboratory analysts are often needed to go into the field with investigators.

These officials feared that this would be unlikely if the lab were closed. They

warned of a significant loss of expertise.

Officials also advised the staff that it is crucial to have a local lab to analyze the

samples. It takes less than 2 hours to get to the San Francisco lab from the Salinas

Valley. The time it takes to get samples from the field to the lab is crucial because

enrichment of the samples must be complete within 24 hours. If samples had to be

shipped, it is likely that enrichment would not be timely. Further, samples cannot

be shipped on the weekend. The FDA officials told committee staff that when samples are collected on the weekend, San Francisco provides an analyst in the lab. Another concern regarding samples that must be shipped is that they are temperature

sensitive. The San Francisco lab puts a priority on analyzing produce and fish sam-
386

ples collected and warned that other labs may assign priority to the collections of

investigators in their own District.

The San Francisco lab employs a seafood sensory expert inspector with such

unique skills that he appears to be the only FDA employee qualified to identify

where to take samples in seafood shipments. In addition, State officials indicated

their concerns that outbreaks in California involving produce will overwhelm the

five microbiologists in the State lab, if San Francisco is shut down, and other labs

are too distant to effectively analyze lettuce or spinach produce.

Committee staff also learned that the Winchester Engineering and Analytical

Center (WEAC) in Massachusetts is the only FDA lab that performs radionuclide

analysis on food. This means that the WEAC lab is the only facility that has full

analytical capability and expertise in detecting radiological contaminants in food

products. Over 350 samples per year are analyzed for radionuclides in food. Analysis

is done on both imported and domestic food, with domestic foods being analyzed the

majority of the time. During and after the Chernobyl disaster and the Three Mile

Island Accident, WEAC performed radionuclide analyses on food and ensured that

the Nation’s food supply was free from radiological contamination. WEAC’s analytical capabilities and expertise are relied upon by Federal, State, and local governments for the investigations of food safety violations linked to radiological incidents.

WEAC is part of the Food Emergency Response Network (FERN). FERN is a network of Federal and State labs that is responsible for analyzing food samples in the

case of a biological, chemical, or radiological attack. WEAC’s radionuclide section is

the Lead Project Coordinator for the radiological component of FERN. In the event

of an emergency, WEAC has emergency response responsibilities. WEAC is the sole

FDA laboratory for radionuclide analysis in the event of a nuclear disaster and/or

counterterrorist event. WEAC has a memorandum of understanding with USDA/

Food Safety and Inspection Service, whereby WEAC would analyze USDA regulated

products for radiological contamination as part of an emergency related to an actual

or threatened act of deliberate contamination of the food supply. WEAC also will

assist New England in the radionuclide analysis of food samples collected as part

of an emergency. WEAC performs other FERN activities as well. WEAC is conducting counterterrorism food research at the University of New Hampshire due to a

concern that the Plague bacterium might be used to deliberately contaminate the

Nation’s food supply. WEAC is evaluating a capture system in the hope that more

laboratories might be capable of isolating and identifying the bacterium.

The Denver lab is also a member of FERN. The Denver lab is the only full-service

FERN laboratory slated to close under ORA’s current plan. Six analysts at the lab

currently are assigned to FERN work. The Denver FERN lab specializes in the analysis of cold sterilants used to decontaminate pathogens such as anthrax. The only

other FERN lab that performs this type of work, WEAC, is also listed for closure.

The Denver lab is also home to the Animal Drug Research Center (ADRC). While

one or two other individuals within FDA do the same type of work as ADRC, no

other lab has a center dedicated to the work. ADRC is staffed by three research

chemists with doctoral degrees in analytical chemistry. None of these three doctors

would transfer were the Denver lab to close. ADRC develops methods to detect animal drug residues in animal and seafood tissues and in products such as milk and

honey. In the past 15 years, ADRC has developed methods for over 30 drug residues

in fish and shellfish. The methods that are developed and validated by ADRC are

then transferred to regulatory programs within FDA and to State, Federal, and

international laboratories. ADRC is responsible for developing more than 60 percent

of all seafood testing methods used by FDA. As noted earlier, ADRC recently developed a method for detecting melamine in fish tissue—a procedure the Center developed in only 4 days.

The Denver Lab also has a Veterinary Drug Section. This section is responsible

for analyzing products for illegal residues of various drugs, fungicides, and growth

promoters. Animal feeds, farmed fish, seafood products, dairy products, honey, and

a variety of other products are all analyzed at the lab. The Denver lab is the only

FDA lab to have a section devoted to testing animal feeds and is the only lab to

test milk for antibiotics. Analysts in the section average 22 years of experience and

the section has two GS–13 Specialists.

Other areas of expertise in the Denver lab include the following: a BSE (Mad Cow

Disease) team; a Salmonella Serology Team that identifies organisms found in foods

and animal feeds; and an Antibiotic Resistance Team that analyzes the susceptibility of organisms to antibiotics to track trends of antibiotic resistance. The Denver

lab has a National Salmonella Expert and is the only FDA lab performing antibiotic

resistance testing. Other food work that the Denver lab performs includes a variety

of procedures to detect pathogens in domestic and imported food and filth detection.
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The Spinach and Peanut Butter Food Poisoning Outbreaks May Highlight

FDA Flaws in Voluntary Compliance Approach to Regulation

The recent outbreaks of E. coli 1057H7 in spinach, the Tennessee strain of salmonella in peanut butter, and melamine contaminated pet food were highlighted at

the committee hearing on April 24, 2007. The hearing featured the testimony of victims of the food poisoning and the companies responsible for processing the contaminated food.

Committee staff was asked to analyze the two domestic incidents to understand

their regulatory implications. In doing so, the staff visited both San Francisco and

Atlanta and interviewed FDA personnel involved with inspection of the Natural Selections plant that shipped the contaminated spinach and the ConAgra plant that

shipped the contaminated Peter Pan peanut butter.

The staff investigation raises questions about the adequacy of FDA’s regulatory

approach to both domestic and imported food. Except for four food groups—fish, citrus juice, low-acid canned foods, and infant formula—FDA relies almost entirely on

the voluntary efforts of domestic food processors to self-police their activities. Many

industry experts and FDA staff insist that recent events require a different approach from FDA in the future.

Committee staff learned that produce from the Salinas Valley of California has

been the source of 10 food poisoning outbreaks over the past 11 years. FDA officials

attributed the increase in outbreaks of contaminated spinach, and other leafy greens

to a variety of reasons: changes in the diet of consumers, widespread distribution

of produce around the country and world, larger lots of produce, and increased reporting and better tracking of outbreak statistics.

The staff was told that FDA has refused to issue binding rules for the production

and processing of fresh produce. Ironically, because of the serious serial outbreaks,

some in the California produce industry have sought compulsory rules, but FDA still

insists on only issuing voluntary guidelines. The most recent guidelines do not provide guidance for testing protocols.

The California Department of Food and Agriculture does have a Marketing Agreement for the industry (http://www.cdfa.ca.gov/mkt/mkt/pdf/lgph—agreement.pdf).

Apparently, 90 to 95 percent of the total volume of leafy greens produced in California is covered by the agreement. Buyers may only purchase produce from certified

growers/producers. Being too close to a ranch or a stream and various other factors

are reasons a grower would not be certified. Audits are performed and a certification

stamp appears on the packaging of qualifying products.

Investigators and compliance personnel in San Francisco advised committee staff

that until compliance with good agricultural practices is mandatory, nothing will

change. Likewise, they told the staff that FDA must be more forceful in demanding

access to sites and records in the course of their inspections.

Committee staff learned that during inspections, prior to the spinach outbreak

last fall, Natural Selections had refused to supply test results. The staff was informed in late May 2007 that the firm had not followed its own Standard Operating

Procedures (SOPs) in that it used recirculated water that was not sanitized prior

to its reintroduction into the production process Apparently, Natural Selections

added chlorine, by hand, whenever the operator thought it necessary, rather than

employing an automated injector. Further, the individuals employed as quality assurance analysts were not professionally trained and did not have scientific credentials. While the staff was informed of the aforementioned regulatory breach, we

were told that the Establishment Inspection Report (EIR) of Natural Selections

spinach investigation was not complete, despite that fact that CalFERT issued its

report on March 21, 2007.

The inspectors were also hampered by the firm’s refusal to permit photographs.

Inspectors apparently found mold and other evidence of improper sanitizing in tubing and nooks and crannies of processing equipment. Produce investigations are

hampered by the lack of mandatory good manufacturing practices and the right to

examine test data and other records. Fortunately, the State of California has authority that FDA lacks, so they are a regular source of information and cooperation.

PEANUT BUTTER

A similar lack of aggressiveness on the part of FDA may have contributed to the

peanut butter contamination deaths and illnesses. At the April 24, 2007, hearing,

the committee learned that FDA received a tip from a former ConAgra employee

that salmonella was found in the company’s finished product testing on 2 days in

October 2004. When FDA sent an inspector into the plant in February 2005,

ConAgra refused to supply him with the October 2004 microbiological testing

records except for 2 days that showed no contamination. The company claims that
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5 When CDC traced the food poisoning outbreak to Peter Pan Peanut Butter last winter,

ConAgra shut down the plant and FDA went in for another inspection. FDA withheld the inspection report from the committee, claiming that the inspection was still on going. During the

Atlanta visit, committee staff was provided with a copy of the EIR for the plant inspection from

February 14, 2007, through March 2, 2007. In fact, this EIR was approved on April 10, 2007,

2 weeks before the April 24, 2007, hearing. ORA headquarters was upset that the committee

obtained the report even well after the hearing. Atlanta also furnished the staff with the lab

results of the peanut butter jars obtained from the ConAgra inventory during and after the inspection. The FDA lab analysis found 14 out of 130 jars tested were contaminated with the Tennessee strain of salmonella.

its plant management merely followed company protocol and asked that the request

be submitted in writing.

When interviewed, the FDA inspector did not recall that ConAgra agreed to supply the records upon written request, and the request is not noted in the Establishment Inspection Report. The inspector concedes, however, that such a request would

have been a common occurrence for CongAgra and other food processors.

Subsequently, committee staff learned that it is FDA policy not to request such

records in writing. Section 703 of the Federal Food, Drug, and Cosmetic Act provides that if a firm supplies records in response to a written request, they cannot

be criminally prosecuted for the information contained in such records. Large food

processors understand this provision and have policies, such as ConAgra had in

place in 2005, that dictate test results and other critical records such as the Standard Operating Procedures (SOPs) for plants only be furnished to FDA in response

to a written request. ConAgra announced a change in policy shortly before they testified on April 24, 2007.

In an attempt to understand why FDA does not routinely request such critical

records in writing, particularly when a threat to the public health has been alleged

and/or when the failure to obtain such records results in a NAI (No Action Indicated) for an investigation, the committee staff directed the question to officials in

Atlanta, Kansas City, San Francisco, and ORA headquarters. The field inspection

manual only provides that an investigator obtain his or her supervisor’s permission

to request records in writing. In practice, any such request would go to the District

Director. Inspectors told committee staff that most often they had never heard of

such a request being approved or, if they had heard of such an approval, it was a

‘‘once in a career event.’’

Committee staff was told in San Francisco that if an allegation were received regarding such a serious health threat as salmonella being found in testing and the

lot destroyed, as was the case in the 2004 Peter Pan peanut butter case, they would

notify the State of California, who would acquire the records under separate authority. This was not described as the usual practice elsewhere.5

ConAgra maintained that their micro testing had not turned up any salmonella

since the October 2004 results. When confronted with the outbreak phenomena, the

company blamed a roof leak in late July or early August as the source of the contamination. The positive FDA test results, however, involved lots of peanut butter

with production dates as late as January 2007. This EIR and test results indicate

that the problem was not related to a finite period of time. More importantly, the

fact that ConAgra did not detect the salmonella in their in-house testing suggests

that the testing protocol was not sufficiently sensitive.

With the exceptions of the four food categories noted above, FDA has no rules governing testing protocols, record retention, SOP adequacy, manufacturing, quality assurance and control, or the right to examine any records that a food-processing firm

chooses to keep voluntarily. While the impact of the absence of effective regulation

is more obvious in fresh produce, the staff learned that even fully-processed foods

such as peanut butter can be a threat to the public health when voluntary controls

fail.

CONCLUSION

It is important to stress the preliminary nature of these findings. As of the writing of this testimony, the committee has not yet received all of the documents requested from FDA. Some of these requests are nearly 6 months old. In addition,

committee staff has not had the opportunity to fully explore new technologies or industry proposals potentially available for better food safety, or to fully explore FDA’s

international program and the unique challenges and opportunities that it may face

both logistically and politically.
389

Mr. STUPAK. I thank the gentleman for his statement. In order

to proceed in a more orderly and efficient manner, each member

will be recognized for 5 minutes. We will more than likely go more

than one round with this panel. Mr. Wilfong, if I may, have you

had an opportunity to review the report, provide input, and review

the final product as submitted here as a staff report?

Mr. WILFONG. Yes, I have.

Mr. STUPAK. Same with you, Mr. Barstow?

Mr. BARSTOW. Yes, I have.

Mr. STUPAK. OK. Mr. Nelson, if I may, you had a chance to visit

Puerto Rico district lab in San Juan?

Mr. NELSON. Yes, we did.

Mr. STUPAK. OK, did you see any counterfeit toothpaste there?

Mr. NELSON. We did and in——

Mr. STUPAK. Exhibit 62, 63, 64, 65. Is that correct?

Mr. NELSON. That is correct.

Mr. STUPAK. We have those up on the chart?

Mr. NELSON. That is correct, and the members should have them

in their folders as well.

Mr. STUPAK. And this toothpaste contained diathyline glycol?

Mr. NELSON. That is correct.

Mr. STUPAK. OK, and I am going to ask that exhibit No. 63 be

put up, and I want the toothpaste—did you see the combination

toothpaste and toothbrush kits?

Mr. NELSON. Yes, and initially after the FDA put out its initial

import alert only dealt with toothpaste, and what the San Francisco office found, because they went on a sweep with the commonwealth of Puerto Rico’s health officials——

Mr. STUPAK. OK, I am going to interrupt you there. They put out

an alert for toothpaste containing the diathyline glycol, right?

Mr. NELSON. Right.

Mr. STUPAK. OK, then what happened to get around this alert?

Mr. NELSON. The importers were entering the combination toothpaste and toothbrush as toothbrushes, and therefore they weren’t

being detained.

Mr. STUPAK. So if they had the toothpaste with the toothbrush

attached, they would call it toothbrush. Therefore they avoided the

FDA’s import alert?

Mr. NELSON. Initially that is true until the Puerto Rican FDA,

the office in San Juan discovered the fraud.

Mr. STUPAK. All right, now, have the combinations been recalled

or an import alert issued on——

Mr. NELSON. Yes, they are not covered.

Mr. STUPAK. OK, because there has also appeared in my district

in Penn County, MI, these combinations like this has also been.

Where would these products be found?

Mr. NELSON. In small stores. In the U.S., they are called dollar

stores, and actually I think that is a trade name. In Puerto Rico,

you don’t have big Wal-Marts, K-marts, Safeways. Food and drugs

are purchased in relatively small stores, and so there is a lot of

them. And the Puerto Rican authorities did a good job in trying to

get this stuff out of those stores.

Mr. STUPAK. But they are not just confined to Puerto Rico. They

are found throughout the country.
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Mr. NELSON. Throughout the country. Yes, sir.

Mr. STUPAK. OK, Mr. Barstow, if I may, explain a little bit more

about the FDA import alerts, specifically where you first learn of

import alerts with the detention of the wheat gluten. And that import alert was issued on April 27 regarding the vegetable proteins

wheat gluten, and then an import alert was issued on July 10 regarding certain farm-raised fish from China. Both of these are import alert. Is correct?

Mr. BARSTOW. Yes, they are.

Mr. STUPAK. The word detention, because in import alert, it says

‘‘detention without physical examination’’ correct?

Mr. BARSTOW. Correct.

Mr. STUPAK. The word detention, does it actually mean that the

FDA detains the product?

Mr. BARSTOW. No, it does not.

Mr. STUPAK. What does it mean?

Mr. BARSTOW. It means that the FDA allows the product to be

shipped to the importer. The importer then hires a private laboratory to test the product.

Mr. STUPAK. OK, so the private lab then tests the product, correct?

Mr. BARSTOW. That is correct.

Mr. STUPAK. Is there any way for a firm to free itself from requirement of having its products tested?

Mr. BARSTOW. Yes, there is.

Mr. STUPAK. How does it go?

Mr. BARSTOW. If a firm has five consecutive clean test results

that are released by the FDA, then they are not subject to the requirement any longer.

Mr. STUPAK. OK, then after five tests, is it automatically lifted,

or does the FDA lift the import alert?

Mr. BARSTOW. The import alert stays, but that firm who was exporting the goods into the United States is no longer subject to

having their products tested.

Mr. STUPAK. OK, you had the opportunity to visit some of the

FDA field labs. Is that correct?

Mr. BARSTOW. Yes, I did.

Mr. STUPAK. Which labs did you visit?

Mr. BARSTOW. I visited the San Francisco district laboratory, the

Denver district laboratory, the Winchester Engineering and Analytical Center, and the Northeast Regional Lab in New York.

Mr. STUPAK. At these labs, were you able to speak with FDA lab

analysts regarding the private lab work?

Mr. BARSTOW. Yes, I was.

Mr. STUPAK. What did you find out from speaking with these analysts?

Mr. BARSTOW. Well, every analyst I spoke to about this issue on

private laboratories was very critical. I can think of one deputy lab

director who performs private lab reviews said that none of the

testing results are completely accurate that he has seen. I think he

used the words ‘‘not good’’ and ‘‘spooky’’.

Mr. STUPAK. OK, and these very private labs are responsible for

analyzing dangerous and potentially deadly food that enters into

the country?
391

Mr. BARSTOW. That is correct.

Mr. STUPAK. Does the FDA accredit these labs?

Mr. BARSTOW. No, they do not.

Mr. STUPAK. Did this deputy laboratory director, does he go

through and inspect these private labs?

Mr. BARSTOW. No, he doesn’t.

Mr. STUPAK. Does the FDA debar, so to speak, or prevent certain

labs from performing tests on food coming into the United States?

Mr. BARSTOW. No.

Mr. STUPAK. So these private labs are free without any kind of

accreditation, review of procedures, process, or anything from the

FDA?

Mr. BARSTOW. Yes.

Mr. STUPAK. OK. Well, my time is up. I still have many more

questions. We may come back for a second round. I next turn to

Mr. Whitfield for questioning please.

Mr. WHITFIELD. Thank you, Mr. Chairman. And, Mr. Nelson, in

our hearing binder, you have already referred to a number of pages

regarding toothpaste, and these toothpastes were discovered in

Puerto Rico. But all of them came from China. Is that correct?

Mr. NELSON. Well, you have pictures there of the Crest knockoff

that is called ‘‘Crust’’. The Colgate knockoff is called ‘‘Colgate’’, and

the country of origin on the tubes—remember these were pulled

from shelves. They were pulled from store shelves. They weren’t

pulled out of an import shipment coming in. The country of origin

is listed as South Africa. Colgate/Palmolive tells us that they do

not produce in South Africa that size of tube, and it is suspected

that they have come from China.

Mr. WHITFIELD. So it is suspected, but we don’t have proof that

it came from China?

Mr. NELSON. No.

Mr. WHITFIELD. But we do have some verification that some

toothpaste recently came from China.

Mr. NELSON. Yes, all the rest of the pictures shows toothpaste

that was imported from China.

Mr. WHITFIELD. And in this toothpaste, there was actually

diathyline glycol in the toothpaste?

Mr. NELSON. There was diathyline glycol largely replacing the

glycerin that is a more expensive component in things like cough

syrup and toothpaste.

Mr. WHITFIELD. So it could simply be manufactured more cheaply?

Mr. NELSON. That is right.

Mr. WHITFIELD. And yet the diathyline glycol obviously is harmful to people?

Mr. NELSON. It is antifreeze.

Mr. WHITFIELD. Yes, it is antifreeze. Now, how did you first discover this? It was brought to your attention by merchants in Puerto

Rico?

Mr. NELSON. Well, the initial attention was spurred by pressure

ports and then FDA’s import alerts.

Mr. WHITFIELD. OK. Now, in your testimony, you also stated that

the Center for Food and Applied Center for Nutrition, that they

had known for some time about the carbon monoxide processing of
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meat and fish and the problems that arise from there, that they

had known about that for years. Is that accurate?

Mr. NELSON. FDA has known about that. We know for sure that

the San Francisco lab has been finding about 20 percent of such

fish imported that they have tested to be decomposed, and the carbon monoxide atmosphere to hide that decomposition. We have not

received any of the documents that we have requested relating to

carbon monoxide in fish, except for nine entries that have come in

just this year and were rejected by the New York lab for decomposition.

In 2001, the FDA went ahead and approved as GRAS, generally

recognized as safe, the use of carbon monoxide atmospheres for retail sales of tuna.

Mr. WHITFIELD. And why would they do that?

Mr. NELSON. I have no idea. It is an ongoing inquiry. We don’t

have the documents from the FDA yet.

Mr. WHITFIELD. And they designated the treatment as generally

regarded as safe since when?

Mr. NELSON. For fish, since 2001. For meat, since 2004.

Mr. WHITFIELD. But we don’t have any documentation on the

reasons for that?

Mr. NELSON. We have some documentation they supplied us last

year when Mr. Stupak and Mr. Dingell, as the ranking members

of this committee and subcommittee, wrote them. So they have delivered a few of the meat documents but none of the fish documents.

Mr. WHITFIELD. Well, from your analysis and your investigation

with minority staff and your staff, you only have about a minute

left, but what would you say would be the three or four most important recommendations that you would make to this committee

based on your investigation?

Mr. NELSON. The investigation is very preliminary. One of the

more immediate recommendations would be to stop the reorganization of the FDA that has been proposed. We have found in the documents they have supplied us no justification, no hard cost, no

hard savings estimates that would show that the Government save

money. A lot of indication that it would cost far more than it would

save.

More importantly, the structural changes that take place are not

easily reversible. So if in the end the FDA decides that the experiment didn’t work, the cost of returning to the status quo would be

extraordinary.

Mr. WHITFIELD. Mr. Chairman, my time is expired.

Mr. STUPAK. Thank the gentleman. Next Mr. Inslee for questions

please.

Mr. INSLEE. Thank you. I would like to ask you first about the

issue of leafy and green vegetables and these horrific injuries we

have heard testimony about for some children and others coming

out of places. There have been 10 outbreaks in Salinas Valley and

others. And I am reading your staff report where you say that the

staff was told that FDA has refused to issue binding rules for the

production and processing of fresh produce. You go on to say that

‘‘investigators and compliance personnel in San Francisco advised
393

committee staff that until compliance with good agricultural practices is mandatory, nothing will change.’’

Now, do I take it from that that the word from the inspection

people is that they believe we have got to have mandatory protocols

for the inspection and processing of this material, or we are going

to continue to have episodes of this E. coli damage to Americans.

Is that correct?

Mr. NELSON. To a person, yes.

Mr. INSLEE. You seem sort of unequivocal about that. You say it

is to a person. We are hearing from the inspectors, the cops on the

beat, and they are telling us that if we don’t get mandatory requirements, people are going to continue to get sick. And you are

telling me that was a unanimous opinion from the people on the

beat?

Mr. NELSON. Yes, during my discussions of produce with the San

Francisco district, we probably had 20 people in the room that had

some relationship to either the labs, the inspectors, the compliance

personnel, and the management of the district. And they were all

very concerned that issuing one more round of voluntary guidelines, which the FDA did in March, would have no real impact. In

fact, we were told that the industry itself would prefer mandatory

guidelines and that the agency has refused to issue such.

When Mr. Barstow spoke with them, he actually spoke with the

State inspectors as well.

Mr. BARSTOW. Yes, I did, and they also agree with the FDA inspectors that there should be some sort of mandatory guidelines.

Mr. INSLEE. Well, I agree with them, and I think that the cops

on the beat needs to be listened to in this regard. And Congress

has got to mandate these, and it is just unforgivable to me that the

administration refuses to move forward when there is such unanimity in their own enforcement staff and now it is increasingly in

the industry as well to have mandatory protocols. So Congress is

going to have to act if the administration is not, and we are prepared to do so, I think. Mr. Nelson?

Mr. NELSON. One question that we have not examined that was

just raised in a newspaper article—you may want to ask the third

panel about this—was that FDA had gone to the Department of

Health and Human Services with a proposal for mandatory rules.

And it was rejected by higher levels in the Department of HHS.

Mr. INSLEE. Tell me again now which level was proposing it, and

which level was rejecting it?

Mr. NELSON. FDA was proposing it. The powers that be in the

Department of Health and Human Services rejected it.

Mr. INSLEE. Well, that is disturbing given the depth of this injury to Americans and the obvious risk and the fact that we are

on a path of failure. This is a known path of failure, and continuing

on this path of failure makes no sense to me whatsoever. And it

is regrettable that the administration will not act. If they will not

act, we will. I will be proposing, with some of my colleagues, a proposal in that regard shortly.

I want to ask you about the splitting of the compliance function.

I was very impressed with the FDA inspectors themselves individually. I used to be regional director of HHS for the northwest region and got to know some of the FDA inspectors in the Bothell
394

labs in Bothell, WA. And they showed me how sensitive their noses

were, and really finding out if fish was unfit or not is pretty incredible sensitive instrument, the human nose.

But tell me how it is going to work now that you are going to

separate the decision for compliance between the inspection, the

people right there who really know the traders, know the brokers,

know this histories of these people, know the history of the product, and then send that decision somewhere else geographically

across the country. It seems to me a very awkward and unmanageable proposal.

Mr. NELSON. Well, it seems to us that way too. They are proposing to set up 10 regional offices that will handle the compliance

function. In the case of the west coast, San Francisco’s investigators will report to a compliance officer in Seattle. They are proposing even more drastic changes in their entry review process. Right

now, the inspectors acting as an entry reviewer, reviewing the computer screens deciding which entries should be inspected, they

don’t determine that. They send that recommendation to a compliance officer who is looking at a national work plan that comes to

them from Washington, and if that inspection of that kind of establishment or that kind of food entry fits within the work plan, then

it is probably going to be inspected. If it doesn’t we are told it takes

an extraordinary justification to go out and inspect something outside of the work plan. That compliance officer is probably going to

be Seattle and even further removed from the information that

local officials have about local trade.

Mr. INSLEE. I don’t think it is a good idea if cops on the beat are

told if it is not in the work plan, they can’t pay attention to a miscreant who is causing suspicion. And I trust these people. These

people are pros. If we give them the resources and the authority,

maybe they can do their jobs. Thank you.

Mr. STUPAK. Thank the gentleman. Next ranking member of the

committee, Mr. Barton of Texas, please.

Mr. BARTON. Mr. Chairman, I am not going to have any questions for this panel. I would hope that in the future, apparently for

mechanical reasons we only have one of the big data notebooks,

and I hope that we could get several more so that members could

have them. I understand it was tough to get ready for this hearing,

but I don’t have any questions for this panel.

Mr. STUPAK. Point well taken. Next we will go to Mrs.

Blackburn. Questions?

Mrs. BLACKBURN. Thank you, Mr. Chairman. I do have just a

couple of quick questions that I wanted to ask you all. Listening

to your responses and the way the staffs deal with some of the

technicalities in looking at the product and the items that are moving into the consumption check here at the U.S., I was curious

about the district labs and the attentiveness of the staff to the

issue and wanted to see have they begun to develop their own best

practices?

Are they developing mechanisms where they taking the initiative

in this and coming up with their own criteria, or are they waiting

for that to be handed to them from Washington? So are they taking

the lead, and what is their attitude? Are they adjusting their work-
395

load so that they are responding to the increase of imports? Or are

they frustrated with it?

Mr. NELSON. There is a lot of frustration. We visited two labs

that are not proposed to be closed, Atlanta and New York. So it is

not just the labs that are going down. One of the things that we

learned is that an awful lot of methods for analysis for important

things like melamine and fish are developed by the FDA labs, by

the experts in the labs. They determine how you find what is food,

and I suppose that other methods are developed in Washington by

the Center for Food Safety and Applied Nutrition, but we weren’t

told that. It is an assumption on my part.

The work plans for the labs though, what the labs are supposed

to look at and which labs look at what things are dictated in Washington. They don’t have an ability to independently determine what

they look at, what kind of samples are there to analyze. It has to

fit into a work plan that is sent to them on an annual basis, and

their performance is rated entirely upon how close to that work

plan they come.

Mrs. BLACKBURN. OK, so they are functioning under a top down?

Mr. NELSON. Yes.

Mrs. BLACKBURN. Or a deductive approach to this, if you will. So

their criteria is coming from Washington. The methods they are to

use to evaluate the product is coming from Washington, and so are

their work plans. And as they have things making their way into

the offices, they don’t have the flexibility. The bureaucracy doesn’t

allow them the flexibility to turn on a dime and say let us try this

or this or this?

Mr. NELSON. Well, the bureaucracy from time to time tells them

to turn on a dime, and they have done a pretty good job of it. The

Kansas City lab, for example, in a matter of 6 weeks, was able to

process 400 samples of wheat gluten and pet food. The direction is

entirely from Washington.

Mrs. BLACKBURN. OK, thank you. One other thing. You mentioned in your testimony that primarily the products are coming

from China and that they are for a group of stores. And you gave

the name of the stores, but I couldn’t find where you had that in

writing. Is it the Dollar Store? Is that what you said?

Mr. NELSON. Yes, I am taking that from press accounts.

Mrs. BLACKBURN. OK, so these are products that are being produced specifically for a chain of stores?

Mr. NELSON. I don’t know the answer to that question.

Mrs. BLACKBURN. OK, all right. And so are our district staffs developing the ability to look at products coming from certain provinces in China and developing an awareness there? Or are they

using that to red flag any of these products that are coming in?

Mr. NELSON. I don’t think there is a single answer to that.

Mrs. BLACKBURN. OK.

Mr. NELSON. It depends on the product and depends on the district, but the national prerogatives, the national priorities established——

Mrs. BLACKBURN. OK. So basically what we need is more flexibility given to those in district offices so that they can begin to make

some determinations about what is coming from where and what

they think may be the potential dangers within that consumption
396

item. And I think my time is about out, so I will reserve those

questions. But thank you very much.

Mr. NELSON. Surely.

Mr. STUPAK. The gentlewoman from Illinois, Ms. Schakowsky.

Ms. SCHAKOWSKY. Thank you, Mr. Chairman. Mr. Nelson, first I

want to thank you and the staff for the good work that you did on

these investigations. I wanted to get a sense—Ms. DeGette was

talking about the lack of response from the FDA when she has

written letters, and Members of Congress. What was the response

from the FDA in terms of responding to your questions and your

inquiries? It sounded like you still don’t have all the information

that you had asked for?

Mr. NELSON. Well, the committee’s document request, it is like

pulling teeth to get FDA to respond. Actually, they have responded

very, very well in the last 5 days as the hearing approached. But

generally the delays are substantial. The document production is

usually incomplete and often not identified as incomplete, or what

is missing is not identified. That is the way to put it.

In terms of the interviews in the field with the staff, they have

been incredibly cooperative. Just about everywhere we went, the

local district offices assembled the people that were doing the work

in the areas that we have asked for, seafood or wheat gluten or

whatever, and the field people were entirely candid.

Ms. SCHAKOWSKY. But it sounds like there is a real disconnect

that what they see as important to do, what they would like to do,

they are either prohibited because of some bureaucratic rule that

they don’t have the authority to do it.

Let me ask a couple of specific questions about the laboratories.

You have in your testimony only a minute fraction of the 25,000

daily food shipments are ever tested by a Government laboratory.

What percentage is that?

Mr. NELSON. Far under 1 percent.

Ms. SCHAKOWSKY. Under 1 percent. So what are those laboratories doing? And is that the excuse then for shutting them down?

Mr. NELSON. The laboratory system is divided by caste. So for example, Puerto Rico, San Juan, Philadelphia, and Detroit aren’t

really food labs at all. They are entirely drug labs, and drugs from

all over the country are sent to those labs for analysis. Likewise,

the heavy food labs, Denver, Kansas City, that are being shut down

get food from all of—Kansas City does an awful lot of the food analysis stuff coming across the southern border from Mexico. They

have larger labs in Los Angeles and New York that, in fact, do

both, I think. But for the labs that we looked at, there is a lot of

specialization. Atlanta is almost all food, for example, not drugs.

Ms. SCHAKOWSKY. But not among their functions is to do these

inspections of food shipments that are coming from many other

places?

Mr. NELSON. Yes, the work plan, the national work plan, designates the number of samples that will be tested in FDA labs for

the year, and it specifies them by labs and by kind of food. And

except for emergency situations, like the wheat gluten situation,

those work plans are expected to be followed pretty precisely. So

it is Washington that decides what will be sampled. The labs do
397

the analysis of that minute fraction of 1 percent of the food coming

in that is determined to need sampling.

Ms. SCHAKOWSKY. I want to ask you about the Oasis system. Is

that what you are really referring to? Because you say that only

20 percent of food imports appear in the FDA’s computer system,

which is called Oasis, right?

Mr. NELSON. Right.

Ms. SCHAKOWSKY. For a review by the field inspection force. So

there is just this huge category of foods that aren’t even included

for inspection?

Mr. NELSON. That is right. FDA-regulated products, not just

foods. And it is a risk-based system. And when you have got limited resources and a big problem out there, you have to do some

sort of risk-based analysis.

Ms. SCHAKOWSKY. But obviously that risk has not been properly

calculated because we are at risk.

Mr. NELSON. Well, the wheat gluten sort of drew a road map for

anybody that wanted to attack our food supply maliciously. You

don’t go to milk and water and the things that are fairly obvious

targets. You find stuff that is not being reviewed at all. There was

no wheat gluten ever——

Ms. SCHAKOWSKY. And that is in the 80 percent?

Mr. NELSON. Yes, that is in the 80 percent. Also in that 80 percent are exporters that are sending food into the United States subject to an import alert that have those five consecutive positive

tests. So while the product and the country of origin may still be

on import alert, as the exporters get out from underneath, they

drop into that 80 percent.

Ms. SCHAKOWSKY. Thank you very much.

Mr. STUPAK. Next Mr. Burgess for questioning.

Mr. BURGESS. Thank you, Mr. Chairman. And I appreciate that

I am relatively new here, but I just have to say this is kind of an

unusual situation for me to be asking questions of a panel that is

composed entirely of staff from the other side. Structurally, was

our side involved in this at some level?

Mr. NELSON. Yes, sir, and they were invited to testify.

Mr. BURGESS. OK, and our staff was present at these inspections?

Mr. NELSON. Most of them, yes.

Mr. BURGESS. OK, and again this is just, Mr. Chairman, strictly

housekeeping and structural. Perhaps my general knowledge

should be better than it is, but are Members ever involved in this

type of field hearing or field questioning?

Mr. NELSON. They have been in the past. There was an intense

investigation by this committee while you guys were in the Majority that involved the import of drugs, personal importation, and

Members went out with the staff to look at the international mail

facilities, to look what the postal authorities were doing.

Mr. BURGESS. I don’t want to use all my time on this, but I just

would say for the future that this Member would be interested in

this type of activity if time and scheduling would permit if future

activity is planned.

Mr. STUPAK. We plan on sending these guys to China and probably to India over the August break.
398

Mr. BURGESS. Well, that would actually be the other part of my

question, Mr. Chairman. As I look at this, and clearly we have a

system that was designed for the world as it existed 50 or 60 years

ago. And now we have the world as it exists today, and it doesn’t

seem like the system has kept pace.

First off, is there ambiguity between who is in charge here between the FDA, Department of Commerce, the USDA? Do all of

those three agencies mesh seamlessly in this process?

Mr. NELSON. Most of the time I would think so. Their responsibilities are distinct. Their statutes are distinct. They all ultimately rely on Customs and Border Patrol to enforce the enforcement actions, the detentions, the denial of entry, the destruction of

goods, that sort of thing.

Mr. BURGESS. Well, because I remember Tommy Thompson’s

comments as he was leaving as the Secretary of HHS, and he alluded to the food supply in the country. And I don’t know that I

really appreciated at that point how significant the problem was.

I will just tell you in my district, I had a veterinarian in who was

up for a social visit last week, and I asked him about the pet food

problem. And I did not appreciate that even in my little district in

north central Texas how severe the problem was. And, of course,

now looking back on animal records of animals that came in with

kidney disease during that time span, he suspects that that problem was significantly more widespread than was appreciated at the

time and probably involved pet food brands that weren’t those that

were the subject of the recall because there was a spike in otherwise unassociated kidney disease in the pets that he was seeing or

that were brought into his office during that time.

Do we have to get wheat gluten from China? Can’t we get it anywhere else? We grow some in Texas, I know, and I think they do

in other States.

Mr. NELSON. Actually, yes, Canada supplies wheat gluten to us.

Russia supplies wheat gluten to us.

Mr. BURGESS. Is there still wheat gluten coming in from China

at this point?

Mr. NELSON. I presume so.

Mr. BURGESS. Why don’t we just stop any importation of wheat

gluten from the People’s Republic of China until we ascertain that

it is safe?

Mr. NELSON. Well, that is a question for the FDA. I will say

that——

Mr. BURGESS. I thought this was an FDA hearing, Mr. Chairman.

Mr. STUPAK. They are our employees, not FDA’s——

Mr. BURGESS. All right, I will ask the commissioner. I will reserve the question.

Mr. NELSON. I will say that FDA did a lot of testing, and except

for the melamine in the Chem Nutra imports that went into the

pet food, they found very little other batches of wheat gluten or any

of the vegetable proteins as containing melamine. As I understand

it, even the animal feed where it was found came indirectly from

the discards of the pet food company that had imported the melamine-laced——
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Mr. BURGESS. So it was just one rogue operator that was injecting this poison into the pet food supply or the wheat gluten supply?

Mr. NELSON. That is what their testing, I think, showed. The reports that we have heard from China though suggests that it is a

much more widespread problem over there. And sooner or later,

there will be another one.

Mr. BURGESS. Well, again this was a scientific study, but talking

to this one veterinarian who happened to be up showing his kids

the Washington Monument. And I just asked him about this, and

he didn’t have any data for me. But his impression was it was a

much more widespread problem than was initially reported because

of the number of cases of kidney disease and otherwise previously

healthy animals that he was seeing during the winter and spring

of last year.

But thank you, Mr. Chairman. Are we going to have a second

round, or can I press on for a while?

Mr. STUPAK. Yes, we will.

Mr. BURGESS. OK, I yield back.

Mr. STUPAK. Thanks. Ms. DeGette from Colorado please.

Ms. DEGETTE. Thank you very much, Mr. Chairman. Mr. Nelson,

you had testified in response to Mr. Inslee’s question that the FDA

employees that you and your staff talked to in general supported

mandatory guidelines. I’m wondering if you can describe for the

committee what kinds of guidelines you mean when you say mandatory guidelines?

Mr. NELSON. Well, the agricultural practices are voluntary. They

are voluntary guidelines that the industry is supposed to abide by,

but there is no standard to test against. One of the things they

were most concerned about was that even in the voluntary guidelines, there were no testing protocols, there were four possible

sources of contamination in the spinach that were identified in the

CalFerd’s. CalFerd being FDA and the State of California together,

their report back in March.

But the FDA investigations that we talked to, and we talked to

them all. They were all there. All seemed to think that the real

problem was water. It could have been some of the other sources,

but it was most likely water. And what they say would actually

solve the problem or come close to—what they thought was the

best solution to the problem was mandating that field that supply

vegetables that are not cooked.

Ms. DEGETTE. So it is really mandating certain testing protocols

and also certain agricultural practices?

Mr. NELSON. That is right, yes.

Ms. DEGETTE. OK, I am wondering if the FDA presented you or

your committee with evidence that showed cost savings for closing

these field labs particularly the Denver lab?

Mr. NELSON. We were shown no numbers, no solid cost numbers

in all of the documents that they produced to us. There was one

early analysis that was sort of back of the envelope. It was exhibit

40 in your exhibit books. That was the sum total of the cost analysis, and it is, as you can see, filled with assumptions that are assumptions and undocumented assertions as to cost.

Ms. DEGETTE. And you didn’t receive the supporting documentation to this?
400

Mr. NELSON. There is no supporting documentation.

Ms. DEGETTE. Were you given any information by the FDA in

your investigation about the impact of shutting the Denver lab and

other field labs on food safety?

Mr. NELSON. They did no such analysis. But they supplied us—

mind you, they are still supplying—they supplied documents as

late as 4:30 yesterday afternoon that we haven’t been able to go

through entirely.

Ms. DEGETTE. Did they give some reason for their delay in supplying these documents to the committee?

Mr. NELSON. Every time we asked about the documents—the

first letter was written in February requesting these documents.

And every time that we would say look, this can’t be a full production. There is nothing from the field here. There is nothing critical

of your plans here. There is no substantive cost analysis here.

There is no saving analysis here. We would get another batch of

documents that were also non-responsive until——

Ms. DEGETTE. But did they give reasons why they have not produced these? I understand you haven’t been given them. Did they

tell you why they haven’t been giving them?

Mr. NELSON. Not formally.

Ms. DEGETTE. OK, now the Denver lab in particular, according

to your report, does a number of things like it has a lot of responsibility for food research and animal research, correct?

Mr. BARSTOW. That is correct.

Ms. DEGETTE. Mr. Barstow, you are the one that visited the Denver lab?

Mr. BARSTOW. Yes.

Ms. DEGETTE. Now, the Denver lab is the only FDA lab to have

a section for testing animal feeds and the only lab to test milk for

antibiotics. Correct?

Mr. BARSTOW. That is correct.

Ms. DEGETTE. And the Denver lab is the lab that developed the

test for melamine in fish, and they did it pretty quickly, didn’t

they?

Mr. BARSTOW. They did. I believe they did it in 3 or 4 days. And

it is an animal drug research center, and it is three analytical

chemists. They all have Ph.Ds, and they are in charge of developing methods that are used agency-wide and by States and by even

other countries to test food.

Ms. DEGETTE. Now, when you visited the Denver lab, Mr. Barstow, did you get a sense that it was antiquated and run down?

Mr. BARSTOW. No, not at all.

Ms. DEGETTE. Were there problems with staff morale there?

Mr. BARSTOW. Morale at every laboratory we visited was very

low.

Ms. DEGETTE. I imagine it was particularly low at the labs slated

to be closed.

Mr. BARSTOW. Exactly.

Ms. DEGETTE. Did those scientists tell you that they were going

to transfer to the other labs?

Mr. BARSTOW. No, very few did. I believe the numbers were two

in San Francisco, two in Denver, six in Kansas City, and two at

the Winchester lab.
401

Ms. DEGETTE. Two that planned to transfer, and all the rest

were not going to?

Mr. BARSTOW. That is correct.

Ms. DEGETTE. That is experience we would just lose if we closed

those labs?

Mr. BARSTOW. Probably thousands of years.

Ms. DEGETTE. Thank you. Thank you, Mr. Chairman.

Mr. STUPAK. Mr. Murphy for questions please.

Mr. MURPHY. Thank you, Mr. Chairman. A couple things I want

to know about. In your statement, you talked about how the FDA

relies heavily on some labs, these private labs. But I think you are

saying we don’t have a list of unapproved labs or things like that.

What kinds of problems are there with some of these labs in terms

of equipment or procedures? Are they substandard, or are there

some actions that you are finding exist at those places which is of

concern?

Mr. NELSON. FDA doesn’t inspect the labs.

Mr. MURPHY. They do not?

Mr. NELSON. And we certainly didn’t. The complaints from FDA

laboratory employees were improper methods of analysis and shoddy work in terms of recording the information that was then sent

to FDA. And then there was a general complaint that we had at

a couple of labs that essentially they believed there were labs—not

all private labs mind you, but there were labs in each of the districts were importers knew the results were not going to be positive

on their shipments. And FDA had no power to not accept those laboratory results. All they could do was send an inspector out to take

a sample from the same shipment and have it analyzed in FDA

labs. And when that happened, often is what we were told, the results were different.

Mr. MURPHY. So you are saying the importers know how to maneuver around FDA? What are some examples of how do they do

that?

Mr. NELSON. Yes. Well, one of the examples is fish, large fish,

tuna, swordfish, the like. Fish that grow to that size accumulate

chemical toxins, mercury, arsenic, cadmium, heavy metals from the

pollution in the ocean waters where they swim. And the older the

fish, the larger the fish, the higher the toxin level. So because the

FDA policy permits an exporter into the United States to come off

of an import alert for, say, mercury and tuna if they have shown

five consecutive private laboratory analyses of five different shipments, consecutive analyses, that they can be removed from the

alert all together. So the game that is played is that they ship in

the first five samples of small fish, fish that haven’t grown, haven’t

been around long enough to accumulate the toxins. And then once

they are off the import alert, then they don’t have to worry about

the size of the fish that they are importing.

Mr. MURPHY. Are there any kind of other things they use besides

avoiding the big fish? I am just curious. This is important to know

these kind of things. I just wonder what other kind of techniques

they use to get around the system.

Mr. BARSTOW. Well, they know what ports to go into. They know

where the FDA does not have an inspector or where they don’t

have a lab. Often those foods will not be tested either by the FDA.
402

They also, as we said earlier, they know what private labs to go

to. One FDA employee told me that with the private labs, the bottom line is money so——

Mr. MURPHY. Do we have statements or responses from these

private labs to these accusations?

Mr. BARSTOW. I spoke with one owner of a private lab, and he

says that his lab is good but that he can point to numerous private

labs that will guarantee you good test results.

Mr. MURPHY. Well, who pays the private labs? Is it the importer

that pays them?

Mr. NELSON. The importer pays. The theory is that once a product is detained at the importer’s premises, it is the importer’s responsibility to prove to the FDA that the import is safe. And so the

importer pays for the private lab test.

Mr. MURPHY. So just to make sure I understand, these are not

labs that contract under the FDA. They are ones that contract with

the importers who present some sort of a documentation that say

our products are clean. The FDA accepts those documents then,

and that is all that is needed?

Mr. NELSON. They have to accept those documents unless they

are going to try and take a duplicate sample. And they have a limited capacity to do that.

Mr. MURPHY. And then you are saying the FDA does not inspect

these private labs?

Mr. NELSON. They don’t inspect the labs themselves.

Mr. MURPHY. But they accept the documents from the labs?

Mr. NELSON. They have to.

Mr. MURPHY. Why?

Mr. NELSON. I don’t know. I don’t know whether it is a function

of the regulations or a function of guidelines, but it is FDA policy.

Mr. MURPHY. Thank you very much. Thank you, Mr. Chairman.

Mr. STUPAK. Thank the gentleman. Next will be Mr. Melancon

for questions please.

Mr. MELANCON. Thank you, Mr. Chairman. First let me apologize for being late. Seems like we are still doing hurricane stuff in

my office.

Mr. STUPAK. That hearing will be August 1.

Mr. MELANCON. Thank you. I appreciate that. And let me maybe

not change so much as to try and expand. We were talking about

the lead in the fish and the small fish being brought in. How many

ports of entry are there where USDA checks products coming into

the country as opposed to FDA checking the products coming into

the country?

Mr. NELSON. USDA restricts the imported meat to 10 ports.

There is no such restriction for FDA. So all 326 ports of entry—

these are ports where there are Customs personnel, but in very,

very few are there FDA personnel.

Mr. MELANCON. So if I were an importer, I could send it almost

any place I wanted to and specifically if I was gaming the system,

send it in a place where I knew there weren’t any. FDA has seafood, and, of course, that is one of the things I am concerned about

because of the shrimp contamination and the basa and such. How

many FDA facilities do we have, and at what ports do we have

them, or what is the number that are available?
403

Mr. NELSON. I don’t know. You should ask the FDA that question.

Mr. MELANCON. OK.

Mr. NELSON. I don’t have an answer to that.

Mr. MELANCON. At any of these ports where they have the physical facility as well as the scientist that could do the testing, do

they do any of that?

Mr. NELSON. Well, there are only 13 labs right now throughout

the whole United States that are FDA labs. Customs has labs.

USDA has labs. So there is more than 13 Government labs. There

are only 13 FDA labs, and they are proposing to reduce it to six.

In terms of where there are FDA inspectors, at relatively few of

those 326 ports. I don’t know whether the number is 50 or 70 or

80, but it is certainly not 300 of the 326.

They do have arrangements with Customs. When an airplane

comes in to one of these smaller airports, or right now, for example,

there is no FDA presence in the Virgin Islands. There hasn’t been

since last October. They are trying to fill the position, but they

haven’t filled it yet. So Customs in the Virgin Islands is tasked to

alert the FDA officials in San Juan, Puerto Rico of any shipments

that Customs thinks might be problematic. And then a phone conversation occurs, and FDA asks them to let the goods go through

or to hold them up for FDA to get a sample.

Mr. MELANCON. Or then the importer gets a private company

that he pays to come test it and sends the result to the FDA, and

they have to accept it?

Mr. NELSON. That is when there is an import alert, yes.

Mr. MELANCON. OK.

Mr. NELSON. Like there is now on farm-raised fish from China,

certain fish and shrimp.

Mr. MELANCON. Is there some reason why crawfish didn’t get included in this list of fish?

Mr. NELSON. That is a good question for FDA. I don’t know.

Maybe no crawfish comes in from China, but I don’t know.

Mr. MELANCON. I think China and Vietnam, I think, send crawfish if I remember correctly.

Mr. NELSON. Yes, they have had problems. San Francisco told us

a lot about seafood problems from Vietnam, not just China.

Mr. MELANCON. Yes, and as I understand it, that as soon as they

crack down on them either for the dumping or because they have

product that is contaminated, whoever it is over in the foreign

country just started putting them in a different manufactured

name bags and sending them through somebody else or sending

them through another port.

Mr. NELSON. That is certainly a common method of avoiding, of

shopping for ports. But we didn’t have any specific evidence of that.

We didn’t ask those question.

Mr. MELANCON. OK, let me just ask because I came in late. I

apologize for that. You all talked about detention and what exactly

detention was?

Mr. NELSON. Yes, sir.

Mr. MELANCON. And it is not really detention in the sense of

being the dunce in the corner if you get caught. The question was
404

asked of me yesterday, and it was about how is beer and booze and

wine handled coming into this country?

Mr. NELSON. There is a different agency than FDA deals with.

Mr. MELANCON. And is there some testing or validation, or is it

restricted to certain importers who are regulated? How do we do

that?

Mr. NELSON. I have idea. That wasn’t part of our inquiry.

Mr. MELANCON. And the reason I asked that is, I mean, booze,

which of course all the generations and still some people believe is

the evil spirit. In Louisiana, we don’t look at it that way. We look

at it as the fun spirit. Yet at the same time, we get this product

in, or alcohol products, and we don’t seem to have any problem

with it. But food that is part of everyday nourishment that is part

of what we need to survive, we are not checking.

Mr. NELSON. Very, very little.

Mr. MELANCON. Most people run around worrying about booze.

I think that is all I have for right now. Thank you, Mr. Chairman.

Mr. STUPAK. Thank you. We have gone through one round, and

we will go through a second round. I know Mr. Burgess has other

questions. So we will be recognized for 5 minutes, those Members

who would like to ask other questions. Mr. Barstow, you indicated

you were in the San Francisco area. I understand that you had the

opportunity to visit Customs and Border Patrol and a centralized

examination station. Is that correct?

Mr. BARSTOW. Yes, at the port of Oakland.

Mr. STUPAK. OK, what was the focus? Why did you go there?

Mr. BARSTOW. They had pulled shipments of wheat gluten, and

we were going to go there and watch them pull samples from the

base.

Mr. STUPAK. OK, and what did you observe when you were there

at Oakland?

Mr. BARSTOW. That is where we observed the wheat gluten.

Mr. STUPAK. Well, go to exhibit No. 16 in the main binder there.

If we can have that photograph up.

Mr. BARSTOW. That is what we observed.

Mr. STUPAK. OK, these bags don’t appear to have any markings

on which would indicate the country of origin. When you were

doing wheat gluten, were you looking for Chinese wheat gluten?

Mr. BARSTOW. Yes, we were.

Mr. STUPAK. OK. Well, if they don’t have any writing on and you

have a windmill. You have wheat gluten. You have melamine,

whatever it is there. You have Amsterdam pollen it says on there.

Why would you believe that this came from China?

Mr. BARSTOW. We had the opportunity to view the entry documents.

Mr. STUPAK. So is this just another way of getting around the

import alerts that you spoke about earlier?

Mr. BARSTOW. I don’t know if it is a way to get around the import alerts, but——

Mr. STUPAK. These bags have no markings whatsoever to indicate they are from China, right?

Mr. BARSTOW. None whatsoever.

Mr. STUPAK. But there is no doubt in your mind or to Customs

Border Patrol that this was from China wheat gluten?
405

Mr. BARSTOW. That is correct.

Mr. STUPAK. OK, San Francisco has quite a reputation of being

very good at detecting problems with seafood, the FDA inspection

team there, correct?

Mr. BARSTOW. That is correct.

Mr. STUPAK. Did I read somewhere in report that to avoid San

Francisco they now go to Las Vegas?

Mr. BARSTOW. Yes.

Mr. STUPAK. You mean imported seafood instead of going to San

Francisco, which is our best lab, they go to a different point of

entry?

Mr. BARSTOW. Right, they know the expertise in San Francisco

is so good, and there are inspectors there that are looking for these

kind of problems. Instead, they import into Las Vegas.

Mr. STUPAK. We mentioned the quality of the work done in San

Francisco. In the report, it indicated that—Mr. Nelson, your answer is that—what is all the stuff that comes through San Francisco? A lot of food, medical, drugs?

Mr. NELSON. A lot of food. Basically San Francisco, Seattle, and

Los Angeles get the imports from the Far East.

Mr. STUPAK. OK, but I read somewhere in your report that they

only have like 30 seconds to take a look at a shipment or documents of a shipment?

Mr. NELSON. They only have an average of 30 seconds. For most

entry reviews, it is a lot less than 30 seconds because if they take

any action on one, it cuts down on their time. They have got about

30 seconds to look at a computer screen and decide whether or not

to recommend the inspection of that entry or not.

Mr. STUPAK. Now, the FDA put out—we have been talking about

these voluntary guidelines, and these guidelines relate to the use

of pesticides, chemicals, sanitation, handling of food, food products,

packaging, irrigation. And that is strictly a voluntary guidelines.

Mr. NELSON. As I understand it, yes.

Mr. STUPAK. And that applies to U.S. producers and manufacturers?

Mr. NELSON. Yes, also Mexican producers.

Mr. STUPAK. And also Chinese producers?

Mr. NELSON. And Chinese products.

Mr. STUPAK. Chile, I think, was another country mentioned

today, those voluntary guidelines, Chilean producers?

Mr. NELSON. Yes, they are voluntary. They don’t bind anyone.

Mr. STUPAK. OK, in this country it might be a little easier, but

are there any FDA inspectors in China or Chile or any other countries that ship food?

Mr. NELSON. Very food foreign food processors are inspected, and

they are almost all low-acid canned food plants.

Mr. STUPAK. At canned food plants?

Mr. NELSON. Low-acid canned food plants.

Mr. STUPAK. OK, you mentioned wheat gluten at the Kansas City

lab, but I thought I read in the report that while the Kansas City

lab did a good job on wheat gluten, a lot of this work to detect the

wheat gluten is also turned over to private labs?

Mr. NELSON. They were turned over to university labs that are

part of the FERN Network. What was remarkable about——
406

Mr. STUPAK. FERN is Federal Emergency Response——

Mr. NELSON. Response Network. I am sorry, yes. And what was

remarkable is that none of the labs except Kansas City, which is

right there where the Menu Foods plant was, none of the rest of

the labs that were being closed were allowed to do the analysis on

this emergency basis. Instead, they contracted out work to university labs, and we were told that there are often, maybe always—

I am not sure—chain of evidence issues with university labs. State

labs and FDA labs know how to handle samples from a legal standpoint, but not university labs.

Mr. STUPAK. OK, there are 326 ports of entry for food in the

United States. Is that correct?

Mr. NELSON. Yes, there is 326.

Mr. STUPAK. Do you know how many of them have an FDA inspector at?

Mr. NELSON. No, but I would be surprised if it was more than

a quarter of them.

Mr. STUPAK. So you would anticipate maybe one-fourth of them

have a FDA inspector?

Mr. NELSON. Right.

Mr. STUPAK. OK.

Mr. NELSON. The rest are very small.

Mr. STUPAK. The USDA now—and they deal mostly with meat,

correct?

Mr. NELSON. Yes.

Mr. STUPAK. The Agriculture Department, they only allow food

to come in to 10 sites in the country, right, not 326?

Mr. NELSON. That is my understanding. Yes, sir.

Mr. STUPAK. OK, my time has expired. Mr. Burgess for questions.

Mr. BURGESS. Now, Mr. Nelson, did you and your group go to the

place where they inspect fish in Los Angeles?

Mr. NELSON. No, we went to Los Angeles, to the port of Los Angeles, and we spent some time in the Customs area, discussing

wheat gluten imports with Customs. We then went to the port of

Los Angeles, but we were only in their offices and only met with

officials of the district there. We did not talk to any inspectors or

compliance people or laboratory people in Los Angeles.

Mr. BURGESS. My understanding is that at Los Angeles for fish

inspection, they have a prototype or a demonstration project of the

new way forward that truly does have an automated system, a

risk-based analysis of the imports as opposed to just inputting economic data, a system that can take into account perhaps the local

conditions where the product was obtained, a very dry year or a

very wet year or something that might affect the overall quality of

the product coming into the country.

Is this type of concept—you talked about an inspector having to

pass on a specimen on a 30-second time interval. Someone said

they have got great noses, but my wife does too. But even she need

more than a 30-second break in between assessing things at the

meat market.

Are we getting to a point where again we have the 21st century

of food stuffs coming into this country from around the world, and

we are dealing with a system that was set up after the Second
407

World War, as far as dealing with imports. We have to do one of

two things, either close the borders, which some of us might favor,

no more imports from the People’s Republic of China. I am told

that is not feasible so we are going to have to be much smarter

about the way forward from this. From your observations in all of

these labs, did you get any sense of the way forward, the way out

of this conundrum in which we find ourselves?

Mr. NELSON. One of the principle caveats to the testimony today

is that we have not done extensive examination of the possible

technological solutions to some of these problems. It is one of the

deficiencies of the investigation to date that will correct as we go

along.

Mr. BURGESS. And yet, if I may interrupt, that is one of the most

critical things ahead of us. I see in the testimony here a comment

about user fees, and we just went through a big that the FDA

doesn’t collect user fees from the food importers, and perhaps that

is something we should consider. But remember we just went

through an agonizing several weeks with reauthorization of the

prescription drug user fee and the medical device user fee. And on

the floor of the House, Members from the other side were coming

to the floor saying user fees are wrong because the people that

want to get the stuff in the country are the ones that are going to

be paying them.

In this case, the drug companies are paying the fees. So inherently there is a conflict of interest that cannot be overcome. Well,

do we want to develop that same system with our food importation?

I am not saying whether it is right or wrong. It seems to work, in

my opinion, fairly well for prescription drugs and medical devices.

And maybe this is something we need to explore if funding is an

issue and the speed, the rapidity with which we are able to get inspection sites and labs up until the 21st century, maybe that is

something that needs to be evaluated.

But I think a part of it may be inspectors and analysts and numbers of square feet that we have in labs. But part of it also is going

to have to be capturing the innovation of the technology that we

all know is out there and likely could cut some of the problems off

the list for us if we would embrace that and explore that. I hope

that you all will continue, as you continue to make these inspections and make these analyses of the labs—and I am grateful that

you do it. And I do hope we have more budget space from the minority side in the future. But I hope you will keep in mind about

some of the changes that are taking place.

In my opinion, we have to get to some sort of risk-based management of this problem. We cannot just simply input economic data

and trade data from the countries that expect to be able to overcome it. We could hire inspectors from now until doomsday and

still not be able to—just the shear volume of stuff that is coming

in now. Again if we don’t have the institutional courage to close the

border, which some people would say would solve the problem for

us as well, then we are going to have to be much smarter about

the way we do this process.

Thank you, Mr. Chairman. I will yield back my time.

Mr. STUPAK. Second round of questions, Mr. Inslee. If I may before you start. Mr. Burgess, you mentioned a couple times about
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minority, and every time we have a hearing, every time we have

an interview, every time we have done anything on this committee,

especially in this panel, the minority staff was always welcome to

attend. Sometimes they chose to. Sometimes they chose not. This

has been a bipartisan investigation. It will continue to be bipartisan with that great cooperation. Please don’t make any kind of reference that somehow the minority was excluded from all this. They

were with these gentlemen on some of the trips. Some of them,

they chose not to. Sure, go ahead if you want to respond.

Mr. BURGESS. I think the comment I made was that I hope the

minority would participate in the future. And if there is a question,

I will be glad to participate in the future because this issue is that

important, then we should assume it can’t be left to just business

as usual here in Congress. We have to be able to get on top of this

issue.

Mr. STUPAK. Great. Talk to the minority staff. Urge them to participate fully with us. And with that, I will turn to Mr. Inslee

please.

Mr. INSLEE. Thank you. The staff report suggests that a lack of

aggressiveness may have had some role in the peanut butter salmonella issue, and it makes reference to a disclosure on April 24—

excuse me. I have the wrong date. Anyway, there was a disclosure

of some potential salmonella toxicity in some peanut butter associated with ConAgra. And then there was in the report a description

of the FDA not obtaining the microbiological testing by the producer because they had not issued a written request. Apparently

the producer said we won’t give it to you unless you give us a written request, and the FDA would not give them a written request.

Could you illuminate what is going on there? Is this a policy of the

FDA? Is it confusion between FDA and producers? What is going

on?

Mr. NELSON. Well, it is apparently a policy. Let me be clear.

First of all, the inspector that did the February 2005 investigation

based on the informant’s information that there were microbiological tests showing salmonella in October of 2004 did not recall being told that they could have the records upon a written request. But he said it was not extraordinary that they would do

that. That is sort of standard operating procedure for large food

companies because they know that in almost all cases FDA will

never ask for the documents in writing.

And the rationale dates back to section 703 of the Act. It provides, with legal interpretations that courts have made, that manufacturers provide records in response to written requests, they can’t

be held criminally liable. And so no written request is made. But

in the case of this peanut butter and a whole lot of other things,

we talked to people in Atlanta and San Francisco as well as—

talked to people in Kansas City and San Francisco as well as Atlanta. And we are told that written requests simply aren’t made.

And it is amazing to me that where you have an allegation from

a credible informant, somebody that worked for the company, that

the company found a toxin pathogen in their product and refused

to voluntarily give you the records, that you wouldn’t write for

them just as a matter of the agency’s responsibility to protect the

public health whether you could prosecute them or not.
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Mr. INSLEE. Even after going through Katrina and everything, I

still have a hard time understanding why the Government would

not do that. Is there some rational, like if they would not issue

written requests? Unless it was they don’t want to shield the producer from the community? But that seems shortsighted to me.

What is the reason?

Mr. NELSON. We were not provided a reason except that it is not

policy. One inspector told us that it had happened once in his 33

years on the job. Another thought that they had heard of it happening two other times, but they weren’t directly involved in their

20 years on the job. The field instruction manual only says that if

a company insists on written records, that the inspector has to go

to a supervisor.

But apparently at minimum, this raises to the level of the district director because nobody below a district director writes for

records. And district directors, it just doesn’t go up there. The

agency just doesn’t do it, and it is one of the simple things that the

agency could commit to correct today that would make things a little bit safer.

Mr. INSLEE. Is it a lack of aggressiveness or is it concern about

liability, or what is the rationale that was offered?

Mr. NELSON. Well, the inspectors don’t have any liability. I mean

the Act, as interpreted, says they can’t get a criminal conviction

based on those records. But it doesn’t say anything about not being

able to get a seizure or an injunction or a voluntary compliance

from the company on a better testing program. To me, it was nonsensical that the records weren’t asked for in writing in the case

of ConAgra——

Mr. INSLEE. Was it your sense, at least in that case, had there

been a written request, the records would have been provided?

Mr. NELSON. The manual that was entered into the record in the

last hearing, I believe, said that they would make an evaluation at

their headquarters about responding to it. There is nothing in the

law that requires them to provide those records.

Mr. INSLEE. Of course, we haven’t had a lot of luck getting written answers to our written questions either, but that is another

matter. Thank you.

Mr. STUPAK. Mr. Murphy, questions? Ms. Schakowsky, please

questions?

Ms. SCHAKOWSKY. I wanted to ask about the country-of-origin

regulations. In terms of processed foods in particular, how can we

protect ourselves if ingredients within those products that may

come from the Netherlands or wherever, like wheat gluten, whether it would come from China? Are country-of-origin regulations potentially misleading and provide false comfort if we don’t know

where the component parts come from?

Mr. NELSON. It is my understanding that no one has to label ingredients as to country of origin.

Ms. SCHAKOWSKY. Right.

Mr. NELSON. We label them with regard to grams of this, that,

or the other. But we don’t label them with regard to country of origin, and——
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Ms. SCHAKOWSKY. So was it just chance that we are able to find

out that the windmill product came from China or at least parts

of it came from China?

Mr. NELSON. Well, what Customs told us is that under the country-of-origin rules that exist, the importer of that wheat gluten, as

the distributor, importer, would have to tell the next guy he sells

it to that it was Chinese. He couldn’t sell it to them without telling

them it is Chinese. And presumably, they have an obligation up

until it reaches the final processor who puts it into the food.

Ms. SCHAKOWSKY. Right.

Mr. NELSON. Then there is no obligation any further, but Customs also told us that this is the kind of situation where they could

require—I don’t know whether they did or not, but they could require the bag to be marked as a product of China because almost

certainly in that procession of trade, the identity of the true source

of the wheat gluten would be masked by this packaging which suggests that it comes from Holland.

Ms. SCHAKOWSKY. So they could, on their own initiative, require

that it be identified?

Mr. NELSON. Customs has that discretion to require that bag to

be marked. Once it is out of that bag, even then there is no requirement that consumers be notified of where the ingredients in

the food comes from.

Ms. SCHAKOWSKY. In looking at your testimony, it sounds as if

that the CBP, Customs and Border Protection actually did act on

its own initiative and detained all imports in 10 specific tariff

codes. But was there not coordination with the FDA? I wonder if

you could talk to us a little bit more about that and how those

agencies do or don’t work together to protect our food supply.

Mr. NELSON. In almost every case, Customs defers to FDA to

make the decisions on what is entered into the commerce of the

United States because FDA has the responsibility to determine

whether it is safe or not, not Customs. But I think because of the

publicity—I don’t know—Customs exercised the authority it always

has to shop a shipment and test it in their own labs. And that is

what they did at Oakland when we were there.

Ms. SCHAKOWSKY. Do you know had they requested the FDA to

act, or did they just act on their own initiative?

Mr. NELSON. In the case of San Francisco when we were there,

clearly FDA had not been notified of what Customs was doing. And

I mean within 2 or 3 days, they coordinated it.

Ms. SCHAKOWSKY. So is there any problem that we have in assuring that kind of coordination?

Mr. NELSON. It is just a very rare event that Customs would act

without FDA’s request to detain something. When Customs detains

something, they detain it in their control. When FDA detains it,

they ship it on to—they let the supplier hold it.

Ms. SCHAKOWSKY. Yes.

Mr. NELSON. The importer hold it.

Ms. SCHAKOWSKY. I am just about out of time. I thank you very

much.

Mr. NELSON. Sure.

Mr. STUPAK. I thank the gentlelady. Mr. Melancon, any further

questions?
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Mr. MELANCON. Thank you, Mr. Chairman. Do we have any idea

of the total budget and the total employees of FDA and the total

budget and the total number of employees that are within FDA just

for testing and purposes of checking imports?

Mr. NELSON. We have that data. I don’t have it at the top of my

head.

Mr. MELANCON. If we could get that information, I would be interested in seeing. We talked about the ability to check all the

products. What has happened in America, and a lot of people don’t

realize it, but about 2 years ago for the first time in the history

of this country, we became a net importer of agricultural products,

of foodstuffs. For the history before that, 200 plus years, we were

producing more food than we consumed and a net exporter.

And when I look at what has gotten us to where we are not

checking the food, I guess the question is when you analyze the

reasons for FDA looking at closures, is it just dollars? It is budget

cuts that have caused this?

Mr. NELSON. I actually don’t think it is dollars because I don’t

think they are going to save anything with these closures. It is

really more consolidation of power, centralization of power away

from the districts and the inspectors and into Washington and into

regional centers. Part of the reorganization plan that receives the

most derision in the field is their plan to take those entry reviewers we talked about that are in each district, that they are sort of

the last line of local control over inspections, and put them into six

regional offices. So the inspectors in the field at that point will be

entirely reactive to the instructions of people miles and miles away.

Mr. MELANCON. So they don’t have any authority to speak of

whatsoever?

Mr. NELSON. Under the proposal, the inspectors in the field will

just be sort of soldiers going out in response to whatever Washington or the regional centers that are doing the entry review determine they should do. As far as I can see, there are no lines of import of the information back in. Sort of like it is consolidation—

when I say consolidation of power, I am really talking about consolidation of policy so that the policy that is established, good, bad,

or indifferent, the policy established in Washington is the sole

source of activity in the field.

And most people in law enforcement will tell you that the key to

effective detection in information. And so essentially what this plan

does is remove from the agency its principle source of information

about what is going on in the marketplace.

Mr. MELANCON. In other words, taking eyes and ears on the

ground out of the circulation.

Mr. NELSON. Right.

Mr. MELANCON. One of the statements about closing the borders,

we do that, then we close off food, oil, gas and everything else. So

I have a problem with that, but as I have noted, when I look at

the trade agreements that we have done, which ought to be a place

that we could put some teeth into enforcement of food stuffs particularly coming to this country.

Is there any logic why none of the trade negotiators, USTR, ever

wants to discuss or put in country of origin or sanitary regulations

or any of these things? Is there something out there that I don’t
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understand? Is it the major corporations, or is it just the small

guys? I don’t understand why we wouldn’t ask for that.

We make our domestic producers abide by very strict standards

for sanitary purposes, for what they put in their products and labeling. And yet you saw the bag. I have no clue where it came from

other than I thought maybe Holland.

Mr. NELSON. The question you are asking is way beyond our investigation.

Mr. MELANCON. OK.

Mr. NELSON. It is an interesting question, but it is beyond what

this specific investigation is about.

Mr. MELANCON. I guess that my curiosity got peaked because I

used to be in the sugar business in Mexico, which has a NAFTA

agreement. Most years can’t produce all the sugar it needs for its

own domestic use yet. When they run their final numbers in the

year, they have hundreds of thousands of tons of sugar extra. Guatemala just happens to be a border, and the bags come across

maybe and change labels. But anyway that is a whole other issue

that we have.

And I would like if we could just for the staff to check and see

number of people employed by the agency, the budget, and the

budget specifically on those agencies that are affected by the labs

and on the ground at the ports.

And I guess the last thing real quick is do you have any specific

recommendations of things that we ought to be looking at consolidating, like USDA, the number of ports that certain imports can

come through, putting the labs maybe at those particular ports of

entry? As attention rules being changed or tightened up, is anything that you all might suggest?

Mr. NELSON. The investigation really isn’t at that stage yet. It

is still preliminary, but I am sure that Mr. Dingell and everyone

on the panel will be asking us questions as they begin to draft the

food safety legislation.

Mr. MELANCON. Thank you. I appreciate it.

Mr. STUPAK. OK, all time has expired for questioning of this

panel. We will excuse this panel. Thank you, gentlemen, for the

work you have done and also the minority staff for helping you

with this investigation, and we look forward to your continued

work. And you are excused for now. Thank you.

We will call up our second panel of witnesses to come forward.

On out second panel, we have Ms. Caroline Smith DeWaal, director

of food safety at the Center for Science in the Public Interest; Mr.

William Hubbard, former associate commissioner of the FDA; Mr.

Charles Clavet, microbiologist at the Winchester, MA FDA Engineering and Analytical Center; Ms. Belinda Collins, director of the

FDA’s Denver District; Mr. Richard Jacobs, chemist and toxic element specialist at the FDA San Francisco District Lab; Dr. Ann

Adams, director of the FDA’s Kansas City District Lab; and Ms.

Carol Heppe, director of the FDA’s Cincinnati District.

It is the policy of this subcommittee to take all testimony under

oath. Please be advised that witnesses have the right, under the

rules of the House, be advised by counsel during their testimony.

Do any of you wish to be represented by counsel? Everybody indi-
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cated no. I will ask you to rise. You all have. Please raise your

right hand to take the oath.

[Witnesses sworn]

Mr. STUPAK. Let the record reflect all witnesses answered in the

affirmative. They are now under oath.

We will begin with opening statements. We will start with Ms.

DeWaal if you could limit to 5 minutes. If your testimony is longer

than that, it will be submitted for the record. Thank you. Ms.

DeWaal, if you would please.

TESTIMONY OF CAROLINE SMITH DEWAAL, DIRECTOR, FOOD

SAFETY, THE CENTER FOR SCIENCE IN THE PUBLIC INTEREST

Ms. DEWAAL. Thank you very much, Mr. Chairman. I am director of food safety for the Center for Science in the Public Interest.

CSPI is a non-profit organization representing over 900,000 consumers.

The CDC estimates that 76 million Americans get sick and 5,000

die from food-borne hazards each year in the United States. And

today, over 10 percent of the average American diet is imported

food products. For certain commodities like seafood, imported products form the bulk of the American diet. But recent events have

really increased consumer concern about imported food coming

from China. In fact, over 80 percent of consumers believe that

‘‘made in China’’ equates to ‘‘may be contaminated.’’

The Food and Drug Administration and the U.S. Department of

Agriculture each manage food import programs. USDA’s Food Safety and Inspection Service is responsible for ensuring the safety of

imported meat and poultry products, but they use very different

tools than FDA.

Foreign countries wishing to export to the U.S. must undergo two

levels of in-country review before they can ship products: an evaluation of the food safety program followed by an on-site review of

all aspects of the food system, including plant facilities, laboratories, training programs, and in-plant inspection operations.

Upon arrival at the U.S. port of entry, this same meat that is

subject to inspection in the country has to be approved by FSIS before it can be allowed into the U.S. Every lot is visually inspected,

and then FSIS conducts random statistical sampling of lots. These

more stringent inspections could include sampling of the product

for microbial analysis, physical examination for visible defects,

sampling for drug and chemical residues, and food chemistry analysis. An average of 15 percent of products presented for importation

are physically examined or sampled by USDA.

Compare this to the program at the FDA, which is responsible

for all other foods, including produce and seafood. It is import inspection program is anything but comprehensive. FDA does not

evaluate national programs to determine equivalents or visit foreign countries to verify compliance with food safety procedures. Instead, FDA relies on border inspections but inspects less than 1

percent of the food crossing the border. While these products can

enter any of many hundreds of U.S. ports, the vast majority of

these ports have no FDA inspectors on site. And products come in

with only nominal record checks.
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The failure of FDA’s import program has been demonstrated

with the recent outbreaks related to imported food items. First the

deaths and illnesses among American pets caused the largest ever

pet food recall. Next, lethal pufferfish imported under the label of

monkfish from China caused several illnesses from a severe marine

toxin, one of the most severe toxins known in the human food supply. And most recently, FDA took action to ban five species of fish

from China for illegal antibiotic residues, a problem the agency

said it had been watching since 2001.

Throughout the years there have been many other outbreaks

linked to imported food, proving the FDA cannot rely on other

countries to ensure the safety of imports to the U.S. The gaps in

protection from this system are indeed alarming, particularly as

imports in some commodities and from some regions grow.

In recent years, China, for example, has become the third leading

foreign supplier of agriculture and seafood products to the U.S.

CSPI is supporting a number of bills which have been recently introduced, but the bottom line here is the U.S. food safety laws are

more than 100 years old. And they were not designed to deal with

these modern problems such as escalating imports, bioterrorism,

and tainted produce.

It is critical that Congress take action this year to develop a comprehensive modern law, one that can encompass all the problems,

produce, imports, peanut butter. Consumers would like you to take

action this year. Thank you.

[The prepared statement of Ms. DeWaal follows:]
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Mr. STUPAK. Thank you for your testimony. Mr. Hubbard please,

5 minutes.

TESTIMONY OF WILLIAM HUBBARD, FORMER ASSOCIATE

COMMISSIONER, FOOD AND DRUG ADMINISTRATION

Mr. HUBBARD. Thank you, Mr. Chairman. I have extensive written comments, but I will just make a few remarks if I may. I am

William Hubbard. I served at the FDA for 27 years before my retirement in 2005, and there are many, many food safety issues to

talk about. But I would like to focus just on a couple today, particularly on imports.

I believe we are at a critical point in FDA’s history in terms of

their ability to protect the food supply, and I think that we are at

a point where we need to make some serious decisions. Please forgive for using a well-worn cliche, but I think we are approaching

a perfect storm risk for American citizens in which you have a flood

of imports from other countries, more and more threats to food, and

an ever-weakening FDA. And I believe that.

In fact, what I am seeing is a hollowing out of the FDA’s food

program. That really underlies all of the issues we are talking

about today. And the horror stories we are hearing from China and

other developing countries are of no surprise to me and I am sure

not to my former colleagues at the FDA. Gross violations of sanitation, widespread use of industrial chemicals and pesticides in food.

There are fish and other animals fed drugs not allowed in the

United States. Many more examples of practices that were common

in this country in the 1880s or early 1900s but not today.

But trade from these countries is a reality, and we have no hope

that these developing countries, in my view, will adopt and enforce

the kinds of safety standards that we expect any time soon. So our

citizens must depend on one mechanism to protect them, and that

is the FDA. But when we provide that agency with only 450 inspectors to screen almost 20 million imports of foods and drugs, the situation approaches hopelessness in my view.

There are many ideas that you will hear mentioned today for improving the FDA. Better management, new legislation, more regulations, better training all may be good ideas. But in my view, unless you deal with the basic fact that the FDA needs people to do

these things, we are not going to fix this problem.

Please understand that FDA’s food program has undergone a

decade of budget cuts. The current budget does it again. Let me

give you a couple of examples. The administration’s fiscal year

2008 request for the Department of Agriculture request $163 million of new money to protect farms against bioterrorism, zero for

the FDA. That same budget request seeks $131 million in new

money for food safety research at the Department of Agriculture

and cuts food safety at the FDA. In total, the agency has lost an

appropriated staff, 1,000 people in the last decade. Most of those

have come out of the food safety program. This just has to stop in

my view.

The empty desks among the FDA’s food scientists are a stark testimony that things aren’t getting done, the imports are not being

inspected, and the risky food is not being excluded from our country. So I urge you to make strengthening the FDA a priority. This
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committee has come to the FDA’s rescue many times in the past

with dangerous drugs and foods and medical devices. And I certainly hope that you will do that again in this case because that

agency needs help, and you may be the only ones that can provide

it. Thank you.

[The prepared statement of Mr. Hubbard follows:]

STATEMENT OF WILLIAM K. HUBBARD

Mr. Chairman and members of the committee, I am William K. Hubbard. Before

my retirement after 33 years of Federal service, I served for many years with the

U.S. Food and Drug Administration, and for my last 14 years was an FDA Associate

Commissioner responsible for, among other things, FDA’s regulations and policy development. Although I have remained retired since my departure from FDA in 2005,

I have agreed to provide advice to a remarkable group of patient, public interest,

and industry groups that have recently formed themselves into a Coalition for a

Stronger FDA (whose mission is to urge that FDA’s appropriations be increased).

Throughout my career at FDA, I was deeply involved in seeking improvements in

one of FDA’s most important functions: the safety of our food supply, with particular

concern for the massive increase in foods being imported into the United States

from around the world. Accordingly, I wish to thank the committee for inviting me

to testify on that subject today.

BACKGROUND

As you know, Congress established the Food and Drug Administration in 1906 as

a result of concerns about the safety of our food supply. In those days, it was common for foods to be subjected to all manner of problematic practices: filthy, unsanitary conditions were common in food processing facilities; talcum powder, sawdust

and many other contaminants were added to deceptively increase the weight or

value of foods; and chemical preservatives were used in food that were untested and

often highly toxic. As the 20th Century progressed, FDA’s scientists and those in

the emerging food processing industry slowly built a food safety infrastructure for

the United States that enabled us to claim that we had the safest food supply in

the world. And the standards established by the FDA for the production of safe

foods became the model for protection around the globe. But I believe those accomplishments are at great risk today, and I would like to use my testimony at this

hearing to describe why I think FDA is no longer able to provide the assurances

of safe food that were once taken for granted in this country. While food safety domestically is a major concern, I will focus my comments today on the problems

posed by foods imported from other countries.

FDA’S STATUTORY CONSTRUCT FOR IMPORTS

FDA’s authority over imported foods actually pre-dates the agency, as the original

statutory construct was created in 1896, and allowed Federal inspectors to examine

foods as they passed through U.S. ports. That authority was included in the Pure

Food and Drug Act of 1906, which established the FDA, and again authorized port

inspectors to open food cargo containers and examine their contents. In those early

days, it was a fairly simple process. Most imported foods were staple goods, such

as flour and molasses, and a visual inspection was often the appropriate means to

assure that the food did not contain mold, insect parts, or other visible contaminants. When Congress radically revised FDA’s authorizing statute in 1938 to create

the modern FDA, it discarded all of the provisions of the 1906 Act, which it concluded were inadequate, except for the import provision, which appeared to have

worked well up to that date. Thus, FDA’s statutory authority over imported foods

remains essentially the same as it was in that much earlier, simpler day. The authority, embodied in Section 801 of the Food, Drug and Cosmetic Act, permits FDA

to examine foods, drugs, and other FDA-regulated products when they are arrive for

entry into the United States. If the product appears to be in violation of U.S. standards, it can be refused admission. Unlike the Department of Agriculture’s meat inspection program, FDA cannot require the exporting country to make assurances

that it applies an equivalent safety standard to exported foods, cannot pre-certify

foreign food processors, cannot designate the U.S. ports at which the food can be

entered, and cannot remove the exporting country from a list of authorized exporters if it fails to maintain U.S. standards. So, the burden is primarily on the FDA

to find a problem in an imported food and deny its admission into this country. .
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And, as I will discuss later, the agency has few resources with which to effectuate

that authority.

GLOBILIZATION AND THE FDA

As I have noted, FDA’s import screening process was designed for an earlier era,

and there is ample evidence that it is not adequate in today’s world. The changes

wrought by a globalized economy are stark, and even alarming, in the context of

FDA’s responsibility to assure the safety of our food:

• First and foremost, there is the matter of volume. Whereas imports of FDA-regulated products from other countries were about 10,000 in 1920, by 1993 they were

up to 2 million, to 9 million only a decade later, and are approaching 20 million

today. In any given year, about 65 percent of such imports are food; but, of course,

FDA is responsible as well for screening the millions of shipments from abroad of

pharmaceuticals, medical devices, dietary supplements, cosmetics, animal feeds,

microwave ovens, and other consumer goods under its regulatory purview.

• Second, the nature of imports has changed. The staple goods of a century ago

have expanded to every conceivable commodity—fresh fruits and vegetables, canned

and other processed foods, food preservatives, emulsifiers and stabilizers, seafood,

apple juice, cheeses and many more.

• Third, the threats to food have increased greatly since the turn of the century.

Pesticides, industrial chemicals and heavy metals often contaminate imported foods,

either as result of intentional acts, such as appears to be the case with the recent

melamine contamination, or via environmental pollution that is commonplace in

some exporting countries. Also, disease-causing pathogens, such as E Coli 0157:H7,

which were unknown in nature a century or even a few years ago, can infect food

and present life-threatening risks, especially to children and the elderly.

• And finally, so much of our food is coming today from developing countries,

which have weak regulatory systems and that simply cannot assure the safety of

food exported from producers within their borders.

FOODS FROM CHINA AND THE DEVELOPING WORLD

The exporting country most in the public eye today in relation to contaminated

food is, of course, China. FDA has long identified problems with food imported from

China, but in the past it was often with ‘‘ethnic’’ foods and other low-volume commodities, many of which would seem strange to the average American’s palate. A

favorite example of mine was a product known as Gecko-On-A-Stick, a dried lizard

impaled on a wooden skewer that one would dip into hot water to make a presumably flavorful tea. It was heavily infested with mold and bacteria and, of course, denied admission to the United States.

But today, products from China fill our supermarkets. Whole foods such as apple

juice, garlic, honey, mushrooms and several types of seafood frequently are of Chinese derivation. And it appears that many, in some cases a majority, of the ingredients American food manufacturers use to make our processed foods are purchased

from China—constituents such as wheat and corn gluten, rice protein concentrate,

soy lecithin, ascorbic and citric acid, and xanthan gum. In fact, U.S. food processors

report difficulties in even identifying sources of some ingredients outside of China.

Chinese food imports are increasing at a rate exceeding the rapid increase in imports generally. In 2002, 82,000 food shipments were presented to FDA inspectors,

yet last year the number was 199,000, and it will likely be at 300,000 in another

year or two. The foods appear to be coming from an enormous network of food producers across China, a large percent of which are farmers deep in the Chinese provinces. Indeed, estimates of the number of Chinese food producers are as high as 1.5

million, and the Chinese Government has acknowledged its difficulties in reaching

into their country’s hinterlands to regulate such a vast cottage industry.

With such a huge, fragmented food production system, in a nation rapidly developing, it is no surprise that we see examples of food processing mistakes that border

on horror stories—poultry cages suspended over fish farm tanks, so that the fish

will consume the bird droppings; substitutions of safe and approved pesticides and

food additives with chemicals known in the West to be hazardous; polluted water

used in food production; and reports of filthy processing conditions that would be

alien to most American food manufacturers. I recall an FDA inspector’s story of his

visit to a Chinese herbal tea manufacturer, where the normal process for drying the

leaves was laying them out in the sun. But the firm’s desire to speed production

caused them to spread the leaves out on the concrete floor of a huge warehouse, over

which large trucks would be driven, using the exhaust to hasten drying. The trucks
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used leaded gasoline and did not have catalytic converters, so lead and other heavy

metals were being spewed directly onto the leaves.

These concerns are not just our view of the problems. Chinese food safety officials

have publicly acknowledged that the reports of substandard foods and improper

processing methods are ‘‘not isolated cases,’’ to quote a Chinese food safety official,

and that 75 percent of that nation’s food processors are small, privately-owned entities over which the central government has exerted little regulatory control. Chinese

regulators announced in late June that a recent investigation of processing facilities

had found 23,000 food safety violations, including the use of industrial chemicals,

banned dyes, and other illegal ingredients in food.

Despite the widespread publicity associated with Chinese imports, it should be

recognized that FDA commonly finds problems with foods from many other countries as well, especially less developed nations. Raspberries from Guatemala, catfish

from Vietnam, melons from Mexico, and other products from countries such as

India, Malaysia, Thailand, Pakistan, the Dominican Republic and the Philippines

have often been found in violation of FDA’s food safety standards. Indeed, Mr.

Chairman, one of our most common confectionary and soft drink ingredients, gum

Arabic, comes often from Sudan and Somalia, countries with arguably no functioning government, and thus no discernible food safety system.

In a world in which global trade is an acknowledged fact, I believe we must accept

the reality that foods will be imported into the United States from countries that

simply do not have the regulatory infrastructure, industry resources or scientific expertise to be a model of safe food production. One recent study, for example, concluded that China alone must invest $100 billion in its food safety system in order

to bring it up to Western standards. That analysis, by the global management consulting firm A.T. Kearney, noted, for instance, that China must insure against food

spoilage by better refrigerating products during shipment, but found that the entire

country possessed only 30,000 refrigerated trucks and 250 million cubic feet of cold

storage (yet that it would need 365,000 such trucks and 5 billion cubic feet of cold

storage). For its part, the Chinese Government has said it intends to improve its

food safety procedures and has suggested that it may be able to have better functioning rules in place by 2012.

FDA’S CAPACITY TO OVERSEE IMPORTED FOOD

Although it has become somewhat of a cliche, let me describe the emerging problems with food imports as a ‘‘perfect storm’’—a scenario in which the United States

is flooded with an enormous volume of food from abroad, where the risks to food

are greater than ever before, and at a time in which FDA’s ability to protect our

food supply is growing ever weaker. I have described the first two parts of that scenario; now, let me elaborate on the third.

When I began service in the Federal Government, in 1971, FDA’s food program

comprised almost half of the agency’s total budget. Today, it is about a quarter. During the intervening years, there has been a dramatic drop in FDA’s oversight of the

food supply. One stark example domestically is the drop in FDA inspections of food

processing facilities, from 35,000 in the early 1970s, to fewer than 8,000 today.

More recently, FDA’s budgets have been particularly alarming for their effects on

food safety. On first blush, it appears that FDA’s budget has been rising, but that

is due to increased user fees paid principally by drug firms for the review of new

drugs. Those funds cannot be used for programs such as food safety. The appropriations for FDA have been inadequate to fund even the staffing level that the agency

had in the early 1990s. Thus, the agency has lost 1,000 people over the last decade

in non-user fee programs such as the food program. [The attached graph illustrates

the drop in non-user fee staffing.] Why has this severe drop in staff occurred?

In most FDA budgets since the mid–1990s, the administration’s annual budget request for appropriations for FDA has not included the inflation ‘‘catch up’’ that Federal agencies routinely expect. Thus, the agency must absorb each year’s inflationdriven costs, and if any new funds are requested, they must go to offset the additional costs of employee pay, building rent, and other expenses—which for FDA

have averaged about 6 percent in recent years. This means that the food program,

in particular, has undergone steady budget cuts: the staff of FDA’s headquarters

food program has been reduced from almost a 1000 scientists to fewer than 800 in

just five years; and FDA’s field force, which includes its inspectors and import staff,

has dropped during that period from over 4000 to about 3300 today. Of course, this

is at a time in which the problems are growing and food imports are skyrocketing.

The current budget request for Fiscal Year 2008 is a good example of the recent

trends. Although the official budget request states that it includes an ‘‘additional’’

$10 million for food safety, the food program’s inflation needs are not covered by
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the request, so the practical effect of that budget is a 3 percent (or $14 million) decrease (even with the $10 million ‘‘increase’’).

How does this effect FDA’s import coverage? This year, FDA has 450 inspectors

to cover more than 400 ports at which imported foods can enter the United States.

With those 450 inspectors, they are asked to screen almost 20 million imports of

food, drugs, and other products, which average a staggering 44,000 shipments per

inspector. I suggest to you, Mr. Chairman, that no ‘‘efficiencies,’’ ‘‘better management’’ or ‘‘working smarter’’—all solutions suggested for FDA—will significantly improve this picture. The agency needs to open and examine a significant portion of

these food containers, send samples to laboratories for analysis, and refuse entry to

those foods deemed unsafe—and only people can do that.

Perhaps another China example will be helpful in understanding the workload dilemma. Last year, 199,000 food imports from China arrived at U.S. ports. Also last

year, FDA was able to take 19,000 samples of imported food for laboratory analysis.

So, if the agency had sampled only Chinese food imports—and none from more than

130 other countries—it would have been able to sample and test only 10 percent

of those imports. And, of course, one could easily argue that, given the large number

of Chinese imports turned away for violations, far more than 10 percent should be

analyzed.

A HISTORY OF FAILURE

It has been suggested, Mr. Chairman, that FDA’s inability to protect our citizens

from contaminated imports is a failure on FDA’s part. That may be true, but I suggest that there is ample evidence that the cause of that failure lies beyond that

agency. Let me support that contention that by describing a recent pattern of

events: • In the mid–1990s, FDA, USDA, and EPA began a major initiative to identify

threats to our food supply, improve our scientific knowledge of foodborne threats,

and act against them in a coordinated, aggressive fashion. It was called a ‘‘Farm

to Table’’ approach intended to ‘‘fix’’ food safety both domestically and in terms of

imported foods. Despite a promising beginning, it eventually withered away due to

lack of funding. • In 1999, with no prospect for additional funds for food imports and a rising tide

of incoming products, the agency drafted a legislative proposal that would have

given FDA authority to require foreign countries to take more responsibility for the

foods they send to us. It would have allowed FDA to embargo a given food from a

given country if there were repeated instances of that food being found contaminated when it arrived here. Countries that sent safe food would have no reason to

be concerned, as they would be unaffected. But countries that demonstrated a pattern of disregard of U.S. safety standards would have to step up their oversight of

food exported from their country. Congress did not accept the recommendation; indeed, no hearings were ever scheduled. • In 2002, with statutory change and funding denied, the agency formulated a

thorough reinvention of its import program to rely more on modern risk assessment

procedures, to develop better intelligence about foreign food processing practices,

and to design a sophisticated computer data base to make the few inspections that

could be done more targeted and thus more effective. Result: denied due to even the

fairly minimal funding it would have required. • Just this year, FDA’s food safety scientists proposed to the administration new

rules for fresh fruit and vegetable production that promised perhaps a 50 percent

reduction in foodborne disease from domestic and imported produce. Despite the

support of such rules from the produce and food manufacturing industries, the proposal was denied. • And during this entire period, FDA officials repeatedly pointed out to officials

in the Clinton and Bush Administrations that food safety should be a priority, that

imports were reaching alarming dimensions, and that the agency’s food safety program was severely under funded.FDA has seen the problem, proposed several different solutions, tried to raise an alarm, and been met with relative indifference at

higher levels. Therefore, Mr. Chairman, I believe that it is fair to conclude that FDA

has not failed us so much as we have failed the FDA.

OPTIONS FOR THE FUTURE

We have all heard the story of the English livery stable owner, Mr. Hobson, who

gave everyone who hired a horse his option of whichever horse he wished, so long

as it was the one nearest the door. Unfortunately I believe that we are faced with

a series of Hobson’s choices in the case of food safety—in other words, no real choice

at all. Banning food importation is obviously not a serious option, nor is authorizing
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FDA to implement a USDA-like program that would require the agency to certify

hundreds of countries and hundreds of thousands of food processors. Demanding

that FDA ‘‘do better’’ and solve the problem without new resources sets vastly unrealistic expectations. And country of origin labeling is, in my opinion, neither practical nor a substitute for safe food. I suggest to the committee that the only effective

option is to give FDA the resources to design and implement an effective food safety

program. The Coalition for a Stronger FDA is recommending an initial increase of

at least $450 million, but it is likely that more would be needed to be truly successful.

The default, of course, is to do nothing, which means that imports will continue

to soar, foreign exporters will believe they can send food of any quality to our nation’s dinner tables with impunity, we will continue to blame FDA for problems they

cannot fix, U.S. food processors will bear an ever larger burden of concern and liability for food ingredients they purchase on the world market, and Americans’ confidence in our food supply—and in their government’s willingness to protect them—

will deteriorate further.

I urge the committee to find ways to help the agency solve this dilemma. When

similar problems have occurred in the past—drug deaths in 1937 and 1962, pesticide fears in 1955, medical device failures in 1975, counterfeit drugs in 1985, and

many other times—this committee has come to FDA’s rescue. I hope that this will

be another of those times when you bring to bear your determination to correct a

problem that threatens us all.

Thank you for inviting me to give my views on this subject.
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Mr. STUPAK. Thank you, Mr. Hubbard. Ms. Heppe. We are going

to have votes here, but let us get your testimony and Ms. Collins

before we have to break. In 1 second. It is going to ring here for

1 second.

Ms. HEPPE. I am glad you understand those signals.

Mr. STUPAK. I guessed. Ms. Heppe, go ahead. Five minutes

please.

TESTIMONY OF CAROL HEPPE, DIRECTOR, CINCINNATI

DISTRICT, FOOD AND DRUG ADMINISTRATION

Ms. HEPPE. Thank you, Mr. Chairman, for inviting me to testify

at this hearing, and I request that my formal statement be made

part of the hearing record. I am Carol A. Heppe, District Director

in FDA’s Cincinnati District Office. I have almost 35 years of service with FDA in both the field and headquarters offices.

On February 6, 2007, some information about the Office of Regulatory Affairs Field or Reorganization was provided at an Office of

Regulatory Affairs senior staff meeting, which includes all the senior managers of the field operations. Along with lab closures, it was

announced that a number of the district offices in the field would

be reduced from 20 to 16. Also, some district boundaries would be

realigned.

The plan given us was this: Cincinnati would merge with Detroit,

New Jersey with Philadelphia, Denver with Kansas City, San

Juan, Puerto with Florida. And there would be a realignment of

the district of Kansas City to put the States of Missouri and Iowa

with the Chicago district.

We were not given any information on how they reached this

new structure, and quite honestly, I still don’t know how they came

up with it. However, I did learn through the grapevine that there

was a goal to have no districts with fewer than 50 investigators.

I don’t know why 50 was selected.

At this meeting, we were asked to do evaluations at the end of

each day. A common complaint reported from the evaluations was

that communication on the reorganization has not been done well

in the last year. We had been told the previous year in February

2006 there would be a reorganization, but in the field and probably

headquarters too, we did not know what was going to happen.

It is true that we have received several e-mails from associate

commissioner for regulatory affairs, Ms. Glavin, and have a transformation leadership team Web site that we can go to for information. These have provided broad goals ORA attempts to achieve

with the reorganization and other information; however, there is

nothing to tie these broad goals and intentions with the newly

planned reorganization.

In other words, field employees have not been given a justification or criteria that has been used by those developing this reorganization to indicate this reorganization will result in achieving

these goals. We were also told that the reorganization included reducing the number of compliance branches from 20 to 10, which

meant that several of the districts would not have a compliance

branch, 6 of them out of the 16.

For a better understanding of the compliance branches, I would

like to explain them a little, what they have to do. There are two
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branches in the district offices. One is compliance, and one is investigations. Investigations develops evidence if they find a violation

at a firm through inspections, investigations, and sample collections. They write a report tying all this evidence together, and then

they submit it to the compliance branch.

The compliance branch takes all this information along with the

lab results from the FDA laboratories and decides whether they

want to do a recommendation for an enforcement submission to

headquarters.

As you can see, this could be quite problematic under the new

compliance branch merger because the district director is the one

that normally makes the decision on whether we will go forward

or not if there is a disagreement between investigations and compliance.

And at this point, if we do not have a compliance branch at some

of these districts, the district without the compliance branch will

have to go to the compliance branch at another district and try to

get them to go along with their decision whether to take the case

or not.

Unfortunately, the group devising this plan has not consulted the

people who have the most knowledge of their districts, the district

directors who manage the districts and their staff before proposing

this reorganization. Now that we have been told of the plan, we see

inefficiencies related to it and many concerns if it is implemented.

I have included some of those inefficiencies in my formal statement.

Some of these concerns are it appears to be threatening our relationships with the States with which we often leverage resources.

It is disrupting important cultural and long-term working relationships with the States that the States have with the district they

have been in. There has been no clarification of duties for managers in these structures. And given the restructure, it is likely

that many of the positions are not supportable under OPM rules.

Headquarters’ staffs appear to be building at the expense of the

field forces, which do the core functions of inspections, investigation, sampling, and analysis. Lines of authorities will be muddled

due to the cross servicing of compliance units and also related to

the imports where they want to have the import entry reviewers

report to headquarters.

Districts and compliance branches still vary greatly in size under

this plan. Some directors of compliance branches will have as many

as 17 to 18 employees reporting to them, while others will have as

few as 10. Currently they now have on an average of eight. However, like most of the decisions on this reorganization, there has

been no discussion of their basis and ultimate direction. And we

are concerned that their final plan may be that we will go down

to 10 districts because there are 10 compliance branches.

The current proposal could reduce our effectiveness at regulating

an ever-expanding and growing industry. ORA needs solid and effective leadership at all levels in the organization. We need managers and leaders who are well informed and conversant on the

issues and compliance profile of forms around the country. Each

State has its own way of doing business. Each industry has its

characteristics.
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It is not the number of 50 investigators that should dictate the

size of a district. Factors to use are industry concentration, number

of States, population centers, border coverage and type, cultural

similarities of the States within the district, size of the various industries, travel distances, and industry startup plans, and States

prone to national emergencies, such as hurricanes.

I believe it would be impossible to understand the implications

of these factors from headquarters since they do not work with

these factors on a daily basis. And it is not just about making decisions for a one-time reorganization. It is about the daily decisions

that need to be made in the field every day. There is nothing to

indicate that this proposal will result in our better serving our constituents——

Mr. STUPAK. Would you please summarize? We are way over.

Ms. HEPPE. I have a concern that when we increase the number

of these districts to as big as they are, we will have a more difficult

time managing emergencies locally. And we will have more cases

to review, more personnel issues and union issues to resolve. The

managers in the field would be spread very thin with these much

bigger districts, and I just want to point out that a lot of employees

are so unhappy that we are hearing we could have a mass loss of

institutional knowledge in the field with this reorganization, which

would hurt us at a time when we are trying to be proactive in

emergencies and do something about them before they happen. And

we are now going through a big hire, and we need those people to

mentor them.

Thank you, and I will be happy to answer any questions.

[The prepared statement of Ms. Heppe follows:]

TESTIMONY OF CAROL A. HEPPE

Mr. Chairman, I want to thank you for inviting me to testify at this hearing on

the reorganization of the Food and Drug Administration’s (FDA) field offices.

I am Carol A. Heppe, District Director of FDA’s Cincinnati District Office (CINDO). I have almost 35 years of service in FDA. My first 12 years were as an investigator in four field offices: Minneapolis; Portland, Oregon; Boise, Idaho; and Los

Angeles. The next 14 years were in headquarters’Center for Food Safety and Applied Nutrition, Office of Legislative Affairs, and Office of Executive Secretariat. In

1999, I went back to the field as CIN-DO Director of Investigations Branch and

later went into my current position.

In the afternoon of February 2, 2007, I received a call telling me that my job as

District Director in CIN-DO was being eliminated due to the field reorganization.

On February 6, 2007, some information about the Office of Regulatory Affairs

(ORA) field reorganization was provided at an ORA Senior Staff meeting in Maryland. Along with the lab closures, it was announced that the number of district offices in the field would be reduced from 20 to 16. Also, some district boundaries

would be realigned. The plan given us was this: Cincinnati District (CIN-DO) would

merge with Detroit District (DET-DO) with Detroit being the district office. New

Jersey District (NWJ-DO) would merge with Philadelphia District (PHI-DO) with

Philadelphia being the district office. Denver District (DEN-DO) would merge with

Kansas City District (KAN-DO) with Kansas City being the district office. San Juan,

Puerto Rico (SJN-DO) would merge with Florida District (FLA-DO) with Florida

being the district office. The realignment of district boundaries was: the states of

Missouri and Iowa would be moved from KAN-DO to Chicago District (CHI-DO). Although I don’t remember this being announced at the Senior Staff meeting, I later

learned that the state of New Mexico was being moved from DEN-DO to Dallas District (DAL-DO).

We were not given information on how they reached this new structure. The one

criterion I saw in a draft document and heard mentioned by a couple of managers

wasa goal of no district under 50 investigators. I did not hear any reason why 50
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or more is the correct number for a district. It should be noted that with the hiring

of investigators we are being authorized to do now, few to no districts will be under

50 investigators in the next year.

At this meeting, we were asked to do evaluations at the end of each day. A common complaint reported from the evaluations was that the communication on the

reorganization has not been done well in the past year.

It is true that we have received several emails from the Associate Commissioner

for Regulatory Affairs (ACRA) and have a Transformation Leadership Team (TLT)

web site that we can go to for information. These have provided the broad goals

ORA intends to achieve with the reorganization. However, there is nothing to tie

these broad goals and intentions with the planned reorganization. In other words,

field employees have not been given a justification or criteria, which have been used

by those developing this reorganization, to indicate that this reorganization will result in achieving those goals.

We were also told that the reorganization included reducing the number of compliance branches from 20 to ten. We were not told where these compliance branches

(CBs) would reside but were told which ones were merging. PHI-DO CB (containing

NWJ-DO CB) and Baltimore District’s (BLT-DO) would merge. DET-DO CB (containing CIN-DO CB) and CHI-DO’s would merge. KAN-DO CB (containing DEN-DO

CB) and Minneapolis District’s (MIN-DO) would merge. DAL-DO CB and SW Import

District’s (SWID) would merge. Seattle District (SEA-DO) CB and San Francisco’s

(SAN-DO) would merge. Atlanta District (ATL-DO) CB and New Orleans District’s

(NOL) would merge. FLA-DO CB having merged with SJN-DO would have the CB.

New York District (NYK-DO), New England District (NWE-DO), and Los Angeles

District (LOS-DO) CBs would remain the same. We were told it had not been decided where the CBs would reside when merged.

For a better understanding of CBs, the compliance branch is one of two branches

that have (at least during my time in FDA) been in an FDA district office. The other

is investigations branch (IB). IB develops evidence for the enforcement cases

through inspections, investigations, and sample collections. IB then writes a report

tying the evidence together. The report is given to CB along with any sample results

from an FDA lab to decide whether there is a viable case for writing an enforcement

recommendation. Sometimes IB and CB disagree on whether there is a viable case.

The District Director (DD) is ultimately responsible for deciding whether the recommendation for submission to HQ should move forward. As you can see, this could

be quite problematic under the CB merger when there is a disagreement about a

case between a district office that no longer has a compliance branch and the CB

within another district.

In April 2007, ORA TLT Inspection Compliance Directorate implementation three

member team (ICD) asked, in writing and during a teleconference, the district directors of the merging districts to develop and write a report to identify issues to be

addressed in the merger/realignment, propose strategies and time lines to address

those issues to make implementation successful, and ensure uniformity and minimize negative impacts on meeting core mission objectives during planning and implementation.

This implementation group, in writing and during a teleconference, also asked all

Directors of the Compliance Branches (DCBs) and DDs to discuss obstacles and opportunities that need to be addressed for the new CB structure, propose strategies

and solutions and timelines for implementation, effect a uniform transformation

with minimum disruption of core functions, and keep the ICD in the loop. We were

told that this new organization would save 80 FTE although it was not clear whether this was just from the CB reorganization or the whole field reorganization. We

were not given any charts to demonstrate how these FTE would be saved.

The ICD gave an approximate June 1, 2007 due date for a finished report from

both projects.

I actively worked in both groups. I was specifically on the compliance merger committee personnel and resource management workgroup, which reviewed the impact

of the merger on personnel and ways to operate the new structure. This was one

of seven groups in the compliance merger committee. It was around that time that

we learned where the ten CBs would be located: PHI-DO, DET-DO, SEA-DO, KANDO, DAL-DO, ATL-DO, FLA-DO, NYK-DO, NWE-DO, and LOS-DO. We were not

told the reason for locating the CBs in these district offices.

Our work on the district merging document indicated problems with the proposed

new structure. We understood we were to work with the structure proposed because

it had already been agreed to by ACRA Glavin. However, in reviewing the plan,

there were some glaring issues with the boundaries and locations of the main offices. For example, it was clear to our group of DDs that KAN-DO should not be

the district office site because it was on the extreme eastern edge of the new merged
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over 1000 mile across district that stretched through Utah; with Missouri going to

CHI-DO, the split of the Kansas City inventory left little to be covered in the new

DEN/KAN merged district, and inventory and case work shifted west making Denver the logical site for a district office.

Other questions came to mind:

• How would CHI-DO cover western Missouri firms with the current major office

located and staffed in Lenexa? • Should CHI-DO and KAN-DO have a partnership for KAN-DO to do the work

for CHI-DO because it would save resources? • Should CHI-DO have a small group of employees housed in the same office with

the KAN-DO employees to do the work?

The complications and loss of efficiency in trying to make a border between Missouri and Kansas begged the question, why was Missouri put in CHI-DO and not

kept with KAN-DO?

This led to a concern that there may be other unknown efficiencies related to the

reorganization because we had not had time to look at all the issues. The problem

we found may have been avoided and possibly a better reorganization proposed if

the group devising this plan had consulted the people who have the most knowledge

of their districts—the DDs who manage them and their staff—before proposing the

reorganization.

In the compliance merger committee meeting, which consisted of DCBs and DDs,

we found it was difficult to proceed because our project was related to the results

of other groups’ projects such as the import group project. Our concern was we could

be making decisions in a vacuum that may not coincide with another groups’ decisions. The leader of our committee mentioned this concern to the ICD team. He reported back to us that we were just to continue our work.

Because of these concerns, the compliance merger committee’s personnel and resource management work group, of which I was a member, submitted a document

recommending that the reorganization be implemented by sequencing. We recommended that HQ be reorganized first, the districts next, with the compliance

branches last. We questioned whether this proposal was the best fit and suggested

a CB in each district to avoid conflicts with duel district management structures.

We were concerned that having a CB reporting to one DD but doing work for up

to three districts could create conflicts in case management. Who ultimately decides

which cases have priority and which cases will go forward? We noted that the reorganization did not resolve the issue of the disparity of district and CB size, which

we had been told at the February Senior Staff meeting, was the driving factor. Districts and CBs still varied greatly in size. Under the reorganization plan, some

DCBs have as many as 17-18 employees reporting to them while others have as few

as 10. Currently, on an average, eight employees report to a DCB. I am not aware

that our document was addressed by the ICD team although I was told at least two

of the three ICD members saw it.

Furthermore, geographic dispersion of such a large supervisory group would only

complicate matters. Managing this many employees would be difficult because they

would be located in up to three offices, separated by hundreds of miles with the increased geographical area resulting from the mergers. This was noted as a grave

concern in compliance merger committee discussions. Their report noted that employee morale is already being affected by the proposed reorganization because employees do not know where or what their next job is or will be.

In addition, ORA headquarters has expressed concern about the decrease in

ORA’s enforcement actions. Most of the field managers believe the CB merger will

result in a further decrease. The DCB will have more employees’ work to review and

they may be located in up to three offices separated by wide geographical distances.

It will also make interacting with firms much more difficult because they will be

located further from the DCB (and DD where the districts have merged).

My discussions with other DDs and DCBs confirm widespread belief that these

are major concerns for the workability of the CB merger. Furthermore, the role of

the DCB has not been defined relative to ORA headquarters Office of Enforcement.

Regarding the field reorganization plan as a whole, I have the following concerns:

• It appears to be threatening our relationships with the states with which we

often leverage resources.

• I understand that one of the states moving into CHI-DO has threatened to discontinue their inspection contracts with FDA unless they can continue to work with

the KAN-DO employee. Loss of these vital inspections from any state places even

more pressure on our districts.

• After the Association of American Feed Control Officials Board of Directors was

briefed on the reorganization in the spring, concern was expressed about the dis-
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tance they would be from FDA employees they need to work with on a continuous

basis.

• Both Kentucky and Ohio State officials have told me that they prefer to have

the district office remain in the much closer Cincinnati, OH.

• This is resulting in a disruption of important cultural and long term working

ties the states have with the district they have been in.

• There has been no clarification of duties for the managers of these structures,

and given the restructure, it is likely that many of the positions are not supportable

under Office of Personnel Management (OPM) rules.

• Headquarters staffs appear to be building at the expense of the field forces

which do the core functions of inspections, investigations, sampling and analysis.

• Lines of authority will be muddled due to cross servicing of the compliance units

and integration of directions from headquarters in the import programs. Daily activities at the field level cannot wait for decisions and directions out of distant units,

be they a consolidated compliance function or an import entry review unit directed

by HQ.

• There is speculation that the development of only ten CBs is a prelude to reducing district offices further to ten. However, like most of the decisions on this reorganization, there is no open discussion on their basis and ultimate direction. We were

told the plan would go until 2011 so other changes must be under consideration.

• The current proposal could reduce our effectiveness at regulating an ever expanding and growing industry. ORA needs solid and effective leadership at all levels

in the organization. We need managers and leaders who are well informed and conversant on the issues and compliance profile of firms around the country. Each state

has its way of doing business; each industry has its characteristics. It is not the

number of 50 investigators that should dictate the size of a district. Factors to use

are industry concentrations; number of states; population centers; border coverage

and type; cultural similarities of the states within the district; size of the various

industries; travel distances; industry start up plans; and states prone to natural

emergencies such as hurricanes. I believe it would be impossible to understand the

implications of these factors from headquarters. And, it is not just about making decisions for a one-time reorganization. It is about the daily decisions that need to be

made to manage our regulatory operations.

• The proposed reorganization will create confusion of direction, delay in implementation of programs, and sever many of our current working relationships with

critical state and local governments and industry groups. Oversight of daily work

will be difficult if not unachievable due to the overly wide span of control of the remaining managers. Concerns for quality of work do not appear to be addressed with

this reorganization. We should not be making district offices larger and then correcting any problems with quality of work by adding more FTE in headquarters to review and correct it. We should address work quality issues where they originate.

• There is nothing to indicate that this proposal will result in our better serving

our constituencies--the states, the industry, the broker and importer community

and, ultimately, the consumer.

Furthermore, I am concerned that there is no indication that this reorganization

will strengthen the way we regulate industry. As our emergencies have shown, we

need to do a better job of regulating industry. I have not seen that any revisions

made in the plan to strengthen our regulation of industry to prevent emergencies.

Instead the reorganization continues as told to us in February--several districts will

be increased in size and the number of CBs will be reduced. Those, who will be

managing the emergencies locally, will have more industry to cover and thus greater

potential for multiple emergencies and recalls, more cases to review and more personnel issues and union issues to resolve. They will be spread very thin, resulting

in their having less time to concentrate on the work of consumer protection.

I am also concerned that many employees (managers and non managers) will retire or leave ORA because they disagree with the reorganization This will result in

a mass loss of institutional knowledge and expertise at a time when the agency is

trying to be proactive in our operations to prevent more emergencies. Then, couple

that with a current increase in hiring and not having these experts to mentor and

train the new hires while we carry on the daily business of consumer health protection.

These issues must be considered if FDA’s public health mission is to be sustained.

This concludes my formal statement.

Mr. STUPAK. Thank you. For Members, we are going to try to get

Ms. Collins’ testimony in before we break for a vote. We have three
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votes on the floor. Ms. Collins, if you would for 5 minutes please,

and your full statement will be entered in the record.

TESTIMONY OF B. BELINDA COLLINS, DIRECTOR, DENVER

DISTRICT, FOOD AND DRUG ADMINISTRATION

Ms. COLLINS. Mr. Chairman, distinguished members of the committee, I am the director of the Denver district office of the Food

and Drug Administration, which includes the Denver district laboratory. I have been responsible for the operations of this office for

a little over 5 years.

I would like this committee to know that the Denver district employees are dedicated to the public health mission of the agency for

the good of all American consumers. The work we do for the agency

begins when our investigators conduct investigations regulated industry to determine their compliance with the regulations we enforce.

The Denver district investigations branch has been operating

with approximately 50 percent of the investigators needed to get

the work done, and that is mandated by the agency. Despite that

diminished staffing, Denver district has consistently met and even

exceeded those goals based on their employees’ determination and

dedication.

They have worked tirelessly to get the job done. They put their

personal lives in abeyance to respond to national emergencies, such

as the recent findings of melamine in pet food. During the melamine emergency, Denver district’s animal drug research center developed a scientific method for detecting the presence of melamine

and its analogs in animal tissue. Within 72 hours from the start

of that process, the method was validated and shared with other

FDA and private laboratories and was distributed internationally.

This technology was not available prior to its development in the

Denver district.

Mr. Chairman, I am very proud to be working with this very

dedicated and talented staff of investigators, scientists, and managers. As part of the proposed FDA reorganization, the Denver district office is scheduled to merge with Kansas City district on October 1 of this year. This reorganization will affect employees who

work in the investigations branch, the laboratory branch, and those

in my immediate office, and will include the reassignment of job

functions.

The next milestone in the reorganization will be the closure of

the Denver district laboratory. The approximately 50 employees of

the laboratory have told me they will not leave the Denver area.

The loss of the laboratory staff will result in a significant shortage

of expertise and skill. The same can be said for the other district

employees who will be reassigned to other positions.

The result of such a reorganization will result in a brain drain

within the FDA field organization. The work that the Denver district laboratory does cannot be successfully accomplished with novice employees that will be hired to replace our scientists, as has

been proposed. It is important to note that it takes a minimum of

3 years for an analyst or an investigator to become trained to conduct the complex work that we do. At a time when our baby

boomers are retiring from Federal service in record numbers, it
439

would be a travesty to lose the institutional knowledge of the seasoned and experienced field staff members that we do have.

The Denver laboratory is a go-to laboratory in this agency. We

are efficient, cost-effective, and scientifically solid. We were the

leader in laboratory accreditation for FDA laboratories. And once

accredited, the Denver district laboratory served as the gold standard of accreditation for all other laboratories in the agency.

I am confident that without the Denver laboratory, the food we

eat as well as the human and animal drugs we use would be much

less safe. Thank you, Mr. Chairman.

[The prepared statement of Ms. Collins follows:]

TESTIMONY OF B. BELINDA COLLINS

I am the Director of the Denver District Office of the Food and Drug Administration, which includes the Denver District Laboratory. I have been responsible for the

operations of this office for over five years.

I would like this Committee to know that the Denver District employees are dedicated to the public health mission of this agency, for the good of all American consumers.

The work we do for the agency begins when our investigators conduct inspections

of regulated industry to determine their compliance with the regulations we enforce.

The Denver District Investigations Branch has been operating with approximately

50 percent of the investigators needed to meet the performance goals mandated by

the Agency.

Despite that diminished staffing, Denver District has consistently met and even

exceeded those goals, based on their employees’ determination and dedication. They

have worked tirelessly to get the job done. They put their personal lives in abeyance

to respond to national emergencies such as the recent findings of melamine in pet

food.

During the melamine emergency, Denver District’s Animal Drug Research Center

(ADRC) developed a scientific method for detecting the presence of melamine and

its analogs in animal tissue. Within 72 hours from the start of that process, the

method was validated and shared with other FDA and private laboratories, and was

distributed internationally. This technology was not available prior to its development in the Denver District.

Mr. Chairman, I am very proud to be working with this very dedicated and talented staff of investigators, scientists and managers. As part of the proposed FDA

reorganization, the Denver District Office is scheduled to merge with the Kansas

City District on October 1 of this year. This reorganization will affect employees who

work in the Investigations Branch, Laboratory Branch, and those in my immediate

office, and will include the reassignment of job functions.

The next milestone in the reorganization will be the closure of the Denver District

Laboratory. The approximately 50 employees of the laboratory have told me that

they will not leave the Denver area. The loss of the laboratory staff will result in

a significant shortage of expertise and skill. The same can be said for the other district employees who will be reassigned to other positions. The result of such a reorganization will result in a brain drain within the FDA field organization.

The work that the Denver District Laboratory does cannot be successfully accomplished with novice employees who will be hired to replace our scientists, as has

been proposed. It is important to note that it takes a minimum of three years to

for an analyst or investigator to become trained to conduct the complex work that

we do. At a time when our baby boomers are retiring from Federal service in record

numbers, it would be a travesty to lose the institutional knowledge of the seasoned

and experienced field staff members.

The Denver Laboratory is a ‘‘Go To’’ lab in this agency. We are efficient, cost effective and scientifically solid. We were the leader in laboratory accreditation for FDA

laboratories. Once accredited, the Denver District Laboratory served as the ‘‘gold

standard’’of accreditation for all other laboratories in the Agency.

I am confident that without the Denver laboratory, the food we eat as well as the

human and animal drugs we use would be much less safe.

Thank you, Mr. Chairman and Distinguished Committee Members.
440

Mr. STUPAK. Well, thank you, and thank you for your brief statement. We are going to recess probably about 20 minutes. We have

three votes on the floor. We will be back in about 20 minutes.

Thank you.

[Recess.]

Mr. STUPAK. Sorry about the interruption. We will get back to it.

We are not supposed to have votes for a couple hours, so hopefully

we can move right along. Let us see, Ms. Collins. Dr. Adams, you

will be next for your opening statement. I remind the witnesses you

are still under oath. Dr. Adams, if you would please your opening

statement.

TESTIMONY OF ANN M. ADAMS, DIRECTOR, KANSAS CITY

DISTRICT LAB, FOOD AND DRUG ADMINISTRATION

Ms. ADAMS. Mr. Chairman and distinguished members of the

committee, I am Dr. Ann Adams, director of the Kansas City district laboratory located in Lenexa, KS. The lab and district office

in centrally located in our country. In addition to many drug firms

and agricultural industries, the Kansas City area is home to an

international railroad center and two more smart ports under development, both within an hour’s drive from the lab.

These centers are intended to unload and distribute imports

which will be directly shipped to the KC area from San Diego and

the west coast Mexico prior to their introduction to the domestic

commerce. The largest FedEx trucking center is about 10 miles

from the lab. We are about 35 miles from the Kansas City International Airport, which is also developing a large distribution center.

My lab relocated to its present location in 1992 and was remodeled in 2001. We are well equipped with numerous scientific instruments, including approximately $2 million worth of equipment purchased in 2002. A large portion of that equipment expanded and

enhanced our ability to respond to emergencies and to terrorist

events. We are the sixth largest lab in ORA with about 56 employees in the lab branch with three chemists and a total diet research

center.

We are a full service chemistry lab, analyzing both human and

animal drugs and foods. We are ISO–17025 accredited for numerous programs, including drugs, dioxins, micotoxins, elemental analysis, pesticide residues, industrial chemicals such as acrilymide,

perchlorates and now melamine, and the total diet study.

My lab also provides chemists for participation in both foreign

and domestic drug inspections and for the deployment of FDA’s

chemistry mobile lab. We are the national center for the total diet

study, coordinating, processing, and analyzing four collections a

year, each containing about 280 separate food items from around

the country for volatile organic compounds, over 350 pesticide, herbicide, and fungicide residues, toxic elements, such as lead, cadmium, arsenic, and mercury and nutritional elements including iodine, calcium, sodium, and magnesium.

We have also analyzed samples for acrilymide and perchlorates.

We provide total diet samples to three other ORA labs for analysis

of folic acid, dioxins, and radiological elements. The total diet study

began in 1961 and has become a complex and unique program by
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which the actual consumption of residues and elements from common foods in the American diet can be monitored. Foods are purchased from grocery stores and prepared as if they are to be consumed by the public.

Each year, we analyze over 1,100 samples and report over 45,000

data points in this program alone. These data are used by toxicologists, nutritionists, and other scientists in FDA, USDA, academia, and other organizations for their studies. Our program is

recognized by the WHO as the standard for other countries to

model their programs. We have regularly participated in the International Total Diet meetings sponsored by WHO, providing guidance and instruction to numerous countries in various stages of developing their own programs. Many countries have sent their analysts to our lab for training, including Australia, Canada, Kuwait,

New Zealand, Pakistan, Sweden, the Philippines, and Saudi Arabia.

We also have a research center with a primary mission to develop or improve methods for the total diet study. Many of these

methods have been published, validated, and incorporated into

other FDA State and national programs in addition to the total

diet.

Our lab is one of two ORA labs which analyzes for dioxins. We

have four chemists working our dioxin program analyzing for

dioxins, furiens and PCBs in fish and shellfish. Our analysis group

tests regulatory samples of human and animal foods and

ceramicware for toxic elements.

Our micotoxin group analyzes 800 to 1,000 samples a year of various grains, nuts, apples, and finished products for toxins produced

by molds. And lastly, our drug lab analyzes a wide variety of

human and veterinary pharmaceutical products and participates in

FDA’s drug survey program. We participate in both foreign and domestic drug inspections providing expertise for the evaluation of

labs in drug firms. Thank you very much.

[The prepared statement of Ms. Adams follows:]

STATEMENT OF ANN M. ADAMS

Good Morning. I’m Dr. Ann Adams, Director of the Kansas City District Laboratory located in Lenexa, Kansas. The lab and district office is centrally located in our

country. The Kansas City area is home to an international railroad center and 2

more Smart Ports under development—both within an hour’s drive from the lab.

These centers are intended to unload and distribute imports which will be directly

shipped to the KC area from San Diego and the west coast of Mexico. The largest

FedEx trucking center is about 10 miles from the lab. We’re also about 35 miles

from the Kansas City international airport which is also developing a large distribution center.

My lab relocated to its present location in 1992 and was remodeled in 2001. We

are well equipped with numerous scientific instruments including approximately $2

million worth of new equipment in 2002. A large portion of that equipment expanded and enhanced our ability to respond to emergencies or terrorist events.

We are the sixth largest lab in ORA with about 56 employees in the lab branch

and three chemists in the Total Diet Research Center. We are a full service chemistry lab, analyzing both human and animal foods and drugs. We are ISO 17025 accredited for numerous programs including drugs, dioxins, mycotoxins, elemental

analysis, pesticide residues, industrial chemicals (such as acrylamide, perchlorates

and melamine), and the Total Diet Study. My lab also provides chemists for participation in both foreign and domestic drug inspections, and for the deployment of

FDA’s mobile chemistry lab.
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We are the national center for the Total Diet Study—coordinating, processing, and

analyzing four collections a year, each containing about 280 separate food items

from around the country for volatile organic compounds; over 350 pesticide, herbicide, and fungicide residues; toxic elements such as lead, cadmium, arsenic, and

mercury; and nutritional elements including iodine, calcium, sodium, and magnesium. We have also analyzed samples for acrylamide and perchlorates. We provide

Total Diet samples to three other ORA labs for analysis of folic acid, dioxins, and

radiological elements.

The Total Diet Study began in 1961 and has become a complex and unique program by which the actual consumption of residues and elements from common foods

in the American diet can be monitored. Foods are purchased from grocery stores and

prepared as if they are to be consumed by the public. Each year we analyze over

1100 samples and report over 45,000 data points in this program. These data are

used by toxicologists and nutritionists in FDA, USDA, in academia, and other organizations in their exposure studies.

Our program is recognized by the WHO as the standard for other countries to

model their programs. We have regularly participated in the international Total

Diet meetings sponsored by WHO, providing guidance and instruction to numerous

countries in various stages of developing their own programs. Many countries have

sent their analysts to our lab for training, including Australia, Canada, Kuwait,

New Zealand, Pakistan, Sweden, the Philippines, and Saudi Arabia.

We also have a research center with a primary mission to develop or improve

methods for the Total Diet Study. Many of these methods have been published, validated and incorporated into other FDA, state and national programs in addition to

the Total Diet.

Our lab is one of two in ORA which analyzes for dioxins. We have 4 chemists

working in our dioxin program analyzing for dioxins, furans, and PCBs in fish and

shellfish. They also analyze dietary supplements and vitamins that contain fish oil

for these contaminants. With these data, FDA can perform risk assessments comparing the benefits versus the exposure levels. This program is important to FDA

and the American public because even at low levels, these chemicals can increase

rates for cancer and birth defects.

In addition to Total Diet samples, our elemental analysis group tests regulatory

samples of human and animal foods and ceramic ware for toxic elements. We are

one of the primary servicing labs for metals for FDA’s import district. We analyze

many samples of imported products including seafood, candies, snacks, seasonings,

and juices for toxic elements, particularly lead and mercury.

Our mycotoxin group analyzes 800 to 1,000 samples a year of various grains, nuts,

apples and finished products for toxins produced by molds. Mycotoxins can cause

cancer, liver damage, reproductive failure, and even death. Our lab is currently the

only lab in ORA analyzing for fumonisins in cereal products. These mycotoxins can

cause neurotoxic effects in animals, particularly in horses.

Lastly, our drug lab analyzes a wide variety of human and veterinary pharmaceutical products and participates in FDA’s drug survey program. We participate in

both foreign and domestic drug inspections, providing expertise for the evaluation

of labs within drug firms.

Mr. STUPAK. Thank you. Dr. Jacobs, do you have an opening

statement, sir?

Mr. JACOBS. Yes.

TESTIMONY OF RICHARD JACOBS, CHEMIST AND TOXIC ELEMENT SPECIALIST, SAN FRANCISCO DISTRICT LAB, FOOD

AND DRUG ADMINISTRATION

Mr. JACOBS. Good afternoon. My name is Richard Jacobs. I am

a chemist with the laboratory branch of the San Francisco district.

I have 44 years of Government service, 40 of which were spent

with the FDA. I was located at Su San for 19 years and in the field

activities since that time. Thank you for this opportunity to bring

to your attention those critical capabilities and functions that the

San Francisco district laboratory provides, not only the agency but

our partners in public health to the public in general and to our

commercial industry.
443

Our lab is 17025 accredited. Our scientific staff include 10 chemists, 14 microbiologists, and 3 biologists, and 1 technician. Many of

our scientists have advanced degrees. Some have doctoral degrees.

While our laboratory management staff includes a science director

supervising analysts and a district quality assurance manager, the

laboratory lacks a sample custodian and safety officer, glassware,

dishwasher, and two media prep technicians. And those duties are

presently being performed by scientific staff.

Additionally, we have lost several journeymen scientists in the

last year that haven’t been replaced. With the exception of filth

analysis, drug analysis, and micotoxin and pesticide analysis, our

lab covers the rest of the program in field program areas.

Our lab houses two specialty functions for the Pacific region:

toxic elements and food and color additives. I believe that the closure of our laboratory facility will lead to a critical loss of expertise,

functionality, and capacity in certain programs, some of which will

never be regained. Critical relationships with the State of California that will be lost without having FDA analytical experts nearby

are also critical. Our laboratory has been a pioneer in introducing

many technologies to the field. Examples include elemental analysis techniques such as ICP mass spec, XRF, which is x-ray fluorescence spectrometry, and methods to actually measure mercury and

methyl mercury in seafood.

Our laboratory is piloting the use of x-ray fluorescence devised

by investigators in field examination of hazardous levels of toxic

elements in food, Asian, herbal, and patent medicines. This device

can detect certain elements in a matter of seconds with little or no

preparation of the sample.

Together with State of California, our group was instrumental in

developing information to support new policy with regard to lead

in candy. The laboratory performs seafood sensory analysis, widely

used for detection of spoilage in imported seafood as well as analyzing for histamine and indull, two compounds that are indicative of

microbiological spoilage.

Our local analytical presence and the participation of analysts

and inspections are essential for having impact on the local and import seafood industry. San Francisco district also has a unique expertise in interric viral analyses, especially norwal virus and hepatitis A. Analytical methods for these two viruses are in preparation

for in-laboratory validation.

Over recent years, numerous outbreaks of norwal virus indicate

a need for sensitive method for detection of this virus on foods and

in food handling environments. The San Francisco district laboratory contribute very importantly to the detection of E. coli 015787

in last year’s investigation of spinach and later on an outbreak

found to be in lettuce.

This laboratory performed approximately half of the 900 samples

analyzed by Bay area laboratories and found several strains that

were linked to clinical cases using PULSENET. Outbreak investigations would be severely hampered by not having analysts and

analytical activity available locally. Moreover, many microorganisms, for example E. coli 015787 can be negatively affected by

shipping practices. So having a nearby lab where samples can be

delivered in a few hours is critical.
444

Our microbiology section is capable of handling all food-related

pathogen detections and is the only laboratory in the Pacific region

able to analyze drugs and medical devices for sterility and

mematoxin. The laboratory is well-equipped for many analytical

programs and state of the art for microbiology and toxic elements.

Aside from the typical equipment, we have clean facilities for sterility testing of drugs and medical devices and toxic element testing.

We also have special sample preparation rooms, equipment,

rooms specifically designed for viral analytical methods and a BSL2

suite illustrates its CDC standards for working with several select

agents. We possess a number of other analytical equipment that

gives us flexibility such as responding to the recent melamine related compound outbreak in pet foods.

As a member of FERN and the CDC’s laboratory response network, our laboratory heavily contributes to the national trading

programs, and most of our analysts are very well trained. The laboratory collaborates and maintains contacts with the California Department of Health Services and their subservient agencies, the

USDA and the Lawrence Liverbore National Laboratory and the

University of California at Davis. Thank you.

[The prepared statement of Mr. Jacobs follows:]

TESTIMONY OF RICHARD M. JACOBS

Good morning. My name is Richard Jacobs, and I am a chemist with the Laboratory Branch of the San Francisco District. I have 44 years of Government service,

40 of those have been with the FDA. Most of my career has involved the work with

the essential and non-essential elements.

Thank you this opportunity to bring to your attention those critical capabilities

and functions that the San Francisco District Laboratory Branch provides not only

the agency, but to our partners in public health, to the public in general, and to

our local commercial industry.

The San Francisco lab is: Q03

• ISO 17025 accredited.

• Lab scientific staff includes 10 chemists, 14 microbiologists, 3 biologists, and 1

technician. Many of our scientists have advanced degrees. Some have doctorates.

• While laboratory management staff includes a Science Branch Director, 3 supervisory analysts, and a district quality assurance manager, the laboratory is currently lacking a sample custodian, a safety officer, glassware washer, and 2 media

preparation technicians. Those duties are presently being performed by scientific

staff. Additionally, we have lost several journeyman scientists in the last year that

haven’t been replaced.

• With the exception of filth analysis, drug analysis, mycotoxin analysis, and pesticide analysis our lab covers the rest of the field program areas.

• Our lab houses two specialty functions for the Pacific Region: Toxic Elements

(in foods and ceramicware) and Food and Color Additives.

I believe that the closure of our laboratory facility will lead to a loss of critical

expertise, functionality, and capacity in certain critical programs, some of which

may never be regained. Critical relationships with the State of California will be

lost without having certain FDA analytical experts nearby:

• Our lab has been a pioneer in introducing many new technologies to the field.

Examples include elemental analysis techniques such as ICP-MS, XRF techniques,

and methods to accurately measure mercury and methylmercury in seafood.

• Our group is piloting the use of X-Ray Fluorescence by investigators in the field

to detect potentially hazardous levels of toxic elements in foods and Asian herbal

and patent medicines. This device can detect certain elements in a matter of seconds

with little or no preparation of the product.

• Together with the State of California our group was instrumental in developing

information to support new policy regarding lead in candy.

• The laboratory performs seafood sensory analysis, widely used for detection of

spoilage in imported seafood, as well as analyzing for histamine and indole, two

compounds indicative of microbial spoilage. A local analytical presence and the par-
445

ticipation of analysts in inspections are essential for having impact on the local domestic and the import seafood industry. • San Francisco district laboratory also has unique expertise in enteric viral analyses, especially Norwalk Virus and Hepatitis A. Analytical methods for these two

viruses are in preparation for inter-laboratory validation. Over recent years, numerous outbreaks of Norwalk Virus indicate a need for a sensitive analytical method

for detection of this virus on foods and in food handling environments. • The San Francisco district laboratory contributed very importantly to the detection of Escherichia coli O157:H7 in last year’s investigation of the incidence of clinical infections due to this organism traced to spinach, and later, in a different outbreak, to lettuce. This laboratory performed about half of the approximately 900

samples analyzed in the San Francisco Bay Area and found several strains which

were linked to clinical cases using PULSENET. Indeed, one isolate matched about

63 clinical cases that had not previously been identified by the CDC as an outbreak

and which occurred during the previous summer. Outbreak investigations would be

severely hampered by not having analysts and an analytical activity available, locally. Moreover, many microorganisms, e.g. E. coli O157:H7, can be negatively affected by commercial shipping practices. So having a nearby lab where the samples

can be delivered in a few hours is critical. • The Microbiology section is capable of handling all food related pathogen detections and it is the only laboratory in the Pacific Region able to analyze drugs and

medical devices for sterility and endotoxins.

The laboratory is well equipped for many analytical programs. It is ‘‘state of the

art’’ equipped for Microbiology and Toxic Elements:

Aside from the typical equipment the lab is equipped with:

• Clean room facilities for sterility testing for drugs and medical devices and toxic

element testing. • Specialized sample preparation rooms and equipment.

• Room for specifically studying viral analytical methods

• A BSL2+ suite and ten analysts trained to CDC standards for work with several

select agents. • Possession of analytical chemistry equipment allowing flexibility in adapting to

novel analytes, such as, currently, melamine and related compounds (cyanuric acid,

ammelide and ammeline).

The lab is a member of FERN (microbiology, toxic elements) and CDC’s Laboratory Response Network. San Francisco analysts have participated in training elemental analysis, E. coli O157:H7, FERN (Food Emergency Response Network) methods, Select Agent analytical methods, basic microbiology FDA analytical methods

and Mobile Laboratory Training.

The laboratory actively collaborates or maintains contacts with the California Department of Health Services, USDA, the Lawrence Livermore National Laboratory

and the University of California at Davis.

Thank you again Mr. Chairman for this opportunity, I will be glad to answer any

questions that you or the other committee member might have.

Mr. STUPAK. Thank you, Dr. Jacobs. Mr. Clavet, opening statement please.

TESTIMONY OF CHARLES CLAVET, MICROBIOLOGIST, WINCHESTER ENGINEERING AND ANALYTICAL CENTER, FOOD

AND DRUG ADMINISTRATION, WINCHESTER, MA

Mr. CLAVET. Good afternoon, Chairman Stupak, Ranking Member Whitfield, and members of the subcommittee. I thank you for

your interest in allowing me this valuable opportunity to speak on

behalf of my friends and colleagues at the Winchester Engineering

and Analytical Center and the citizens of the Nation at this critical

juncture, at a time when the Office of Regulatory Affairs is redefining its commitment to its mandated public health mission.

My name is Charles Clavet, and I have worked for the past 16

years as a microbiologist at the Winchester Engineering and Analytical Center, which is located in Winchester, MA. I would like to

take this time to briefly describe many of the unique public health
446

functions and capabilities WEAC possesses and to discuss openly

our concerns and questions regarding the impending laboratory closures.

The closing of WEAC and subsequent loss of virtually all analysts will have an impact on ORA’s ability to continue to fulfill its

public health mission. In order to comprehend the full impact of

losing this facility and personnel, it is imperative that the wide

range of WEAC’s capabilities be made known. In fact, the list of

capabilities and interactions is so extensive and impossible to cover

in the time allotted that I would like to submit for the record several documents that elaborate upon WEAC’s immense contribution

to ORA’s mission.

WEAC is a truly unique laboratory asset with many experienced,

motivated scientists, radio chemists, chemists, biologists, microbiologists and engineers working in harmony to provide specialized

analytical capabilities utilizing their respective disciplines. We are

an American Association of Laboratory Accreditation, 82L8, certified ORA field laboratory that specializes in regulatory testing of

foods for radionuclides and the analysis of medical devices for safety and efficacy. This accreditation would not easily be transferable

to another location without the associated movement of the personnel currently performing this work.

WEAC Laboratory provides services to the Center for Food Safety and Applied Nutrition, the Office of Criminal Investigation, the

Center for Devices and Radiological Health, States and local governments with a legacy of proven performance in fulfilling ORA’s

public health mission while continuously enduring budget constraints.

WEAC is the only facility that has full analytical capability and

expertise for the analysis of foods for the detection of gamma, beta,

and alpha contamination. WEAC holds the only Nuclear Regulatory Commission license and handles radiation equipment, calibration, and radiation safety training for all ORA field personnel.

WEAC is the sole laboratory providing food expertise to the CDC,

the EPA, the Department of Defense, the USDA, and the Department of Homeland Security under the Interagency of Consortium

of Laboratory Networks.

WEAC has a memorandum of understanding with USDA Food

Safety Inspection Service for the radionuclide analysis of USDAregulated products in case of an emergency. WEAC also has an

MOU with the United States Department of State and Department

of Energy. If WEAC closes, the NRC license will have to be reestablished, and all current radiological arrangements and agreements

will be cancelled.

In addition to our radionuclide specialty, WEAC is the servicing

lab for the Center for Devices and Radiological Health, providing

a wide range of engineering and analytical capabilities—microbiological, biological, and chemical—for medical device evaluation.

Historically, CDRH has relied heavily on the scientific and regulatory expertise of WEAC and anticipates both continuing and

growing needs into the foreseeable future. For this reason, CDRH

has requested that ORA commit a single physical laboratory site to

the CRH work plan and method development goals.
447

We are confused. The continuous flow of rhetoric does not agree

with the actions. On one hand, we have been praised for our commitment, our dedication, and knowledge and skills that we possess.

There is talk about the need for retention and recruitment, yet

when 100 new positions were recently made available, personnel at

the affected laboratories were excluded from applying for these

jobs. One high level ORA manager from the TLT committee States

that we are committed to going outside the agency. An FDA

spokesperson says ultimately we want new people and new equipment.

Why was this done? I can tell you, Mr. Chairman, the puzzlement I have expressed is not solely mine but is shared by my colleagues and peers at WEAC. I have discussed this with the elected

leaders of NTEU, our union at WEAC, and with many of the dedicated professionals I work with. None of us see any merit in the

lab closure proposal. NTEU officers have been in communication

with employees at other labs proposed for closure, and their views

are the same.

In conclusion, as I prepared this testimony, I began to realize

that it was going to be very difficult to articulate and convey the

complete picture of WEAC and its personnel in 5 minutes. I came

to the realization that I could only highlight some of its responsibilities, contributions, and interactions that occur on a daily basis as

this group of dedicated scientists carry out ORA’s public health

mission. The more time I spent on trying to condense the information, the more puzzled I became. Why would anyone want to close

this facility? At this point in time, Mr. Chairman and members of

this subcommittee, WEAC’s fate is in your hands. I hope you can

find a way to allow WEAC to continue its vital public health service to the citizens of this Nation, and I would be happy to answer

any questions members of the committee may have. Thank you.

[The prepared statement of Mr. Clavet follows:]
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Mr. STUPAK. Thank you, and thank you all for your testimony.

We will begin questioning. Ms. DeWaal, you indicated that China

is one of the leading suppliers of U.S. agricultural and seafood imports. In fact, Canada is No. 1, Mexico is No. 2, and China is No.

3. But then you are talking about the rejections and food problems.

I find that Mexico, which is No. 1 in rejections, but India is No.

2. Why India?

Ms. DEWAAL. India probably for the same reason that China is

having so many problems. They don’t have regulatory structures

nationally that would help to ensure that the food products they

are shipping to us are of a quality that meets the standards for

U.S. consumers.

Mr. STUPAK. But if the quality is voluntary, the standards are

voluntary, what basis do you reject it then? There has to be something more than just voluntary standards.

Ms. DEWAAL. They can find problems, for example, with filth. If

products are coming in with visible filth, clearly they can reject for

that matter.

Mr. STUPAK. Is it salmonella in Indian spices?

Ms. DEWAAL. Yes, sometimes they find problems with salmonella, which again for ready-to-eat product shouldn’t be there.

So even without those mandatory standards, but really the best

thing, the best system would be one where we had mandatory

standards and on-site, in-country review.

Mr. STUPAK. Correct. To the lab directors, Ms. Heppe, Ms. Collins, Dr. Adams, Dr. Jacobs, Ms. Clavet, any reasons given why

your lab was chosen to close? Can anyone particulate a reason? I

didn’t hear any in the testimony.

You are all silent, so I take it no one has an answer. Dr. Adams,

it has been mentioned to me that Kansas City lab played a prominent role in the wheat gluten case. Correct?

Ms. ADAMS. That is correct.

Mr. STUPAK. How did your role, the samples analyzed by Kansas

City lab, compare to those wheat gluten sent to other labs?

Ms. ADAMS. Our laboratory is an hour and a half away from Emporia, KS where the firm was located, so when this first occurred,

it was investigators from our district that went down there. And

it was very easy for them to bring samples up to our laboratory.

As a result, we received a lot of samples, which pertained to the

actual components of the foods being produced in addition to the

finished product. So we have got the wheat gluten, the rice proteins, the amino acids, all the different components for us to test.

Mr. STUPAK. Was the test going to other labs, like university

labs, also did testing on wheat gluten, did they follow your lead.

Did they develop their own standards or testing? How did that

occur?

Ms. ADAMS. I wasn’t involved in that assignment.

Mr. STUPAK. OK.

Ms. ADAMS. I am assuming that was through a FERN program,

and if that is the case, then they should be following the same

methodology that we used.

Mr. STUPAK. How many of your employees at the Kansas City lab

would be willing to transfer to another lab if you were to close?
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Ms. ADAMS. Right now, I have about six employees who said that

they would consider moving. However, that was contingent on their

being able to move to the laboratory of their choice.

Mr. STUPAK. I see.

Ms. ADAMS. And also you have to remember that most of these

people who are willing to move are fairly new employees. They

don’t have the same kind of ties to the community that other employees have, and they just don’t have the level of experience.

Mr. STUPAK. You mentioned the total diet study. That program

would be relocated then if your lab is closed, right?

Ms. ADAMS. Correct.

Mr. STUPAK. And how many of those employees are willing to

leave?

Ms. ADAMS. Right now, I know about three of the people who

would be willing to move.

Mr. STUPAK. OK, thanks. Dr. Jacobs, we have held hearings on

the spinach. It was our first hearing on April 24, and you are located probably the closest proximity to Salinas Valley, correct?

Mr. JACOBS. Yes.

Mr. STUPAK. The Salad Bowl of America they call it?

Mr. JACOBS. Yes, that is true.

Mr. STUPAK. Dr. Adams mentioned it, but why is the close proximity? Is there an advantage to having the lab close to, let us say,

like fresh produce or wheat gluten, whatever it might be?

Mr. JACOBS. First thing is getting the samples into the lab as

fast as possible so you can get results. In the follow-up investigation we had water samples, we had fecal material, we had spinach

samples and other samples that needed to get to the lab very

quickly. We relied on, say, FedEx to send them out the next day.

Many of those would not have been worth analyzing so—

Mr. STUPAK. Why? Because it——

Mr. JACOBS. The organisms are fairly——

Mr. STUPAK. Fragile?

Mr. JACOBS. Yes. And you may cause an enhancement in other

organism, or it may not reflect what actually occurred in that particular sample. So having a lab nearby is very critical.

Mr. STUPAK. The last panel mentioned the California food emergency response team. Now, sort of like the primary investigative

lead. But they work very closely with you, and I think CalFerd said

that they would not want to see your lab close down.

Mr. JACOBS. Yes, I am sure that CalFerd doesn’t want to see us

close down. We make up half the investigators and people who participate in that.

Mr. STUPAK. Do you work well with CalFerd?

Mr. JACOBS. I am not personally involved, but as I understand,

they work quite well with CalFerd and the food and drug branches

in the State of California.

Mr. STUPAK. Well, besides proximity to Salinas Valley, why

would the closing of the San Francisco lab be of great loss to this

country?

Mr. JACOBS. Well, we do approximately half of the samples. The

California food and drug branch has five employees. They did half

of the samples also or approximately half. I am not exactly sure of

the numbers, but we give them no surge control. We have a lot of
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people who are analysts who work as partial investigators and go

out in the field and try to develop a sharpening of what samples

are collected and how they are tested. So having somebody nearby

that has analytical expertise is really critical.

Mr. STUPAK. I have more questions, but my time is up. Before

I turn to the gentleman from Kentucky for questioning, Mr. Laurel

from Connecticut is very interested in food safety and has a number of pieces of legislation. But more importantly, she is also chair

of the appropriations committee, which deals with the FDA. And I

think you—I know she is trying very hard to put forth language

or the money to make sure these labs don’t close but no results yet.

We are working on it. Don’t lose heart in it yet.

Mr. Whitfield.

Mr. WHITFIELD. Thank you, Mr. Stupak. I want to thank all of

you for being with us today as we look at this very serious issue.

And, of course, we welcome your testimony because all of you have

valuable experience at FDA and have insights that certainly we do

not have. And, Mr. Hubbard, you had mentioned, I believe in your

testimony, that USDA had been plussed up for food safety and

plussed up for some other programs. I think you mentioned $163

million and $130 million, and yet FDA had been reduced.

Now, in fact, any of you can answer this question, but if it true

that FDA is responsible for 80 percent of food safety in America

and only has 20 percent of the budget, and USDA is responsible

for 20 percent and has 80 percent of the dollars, what is the rationale for that? And is it defensible?

Mr. HUBBARD. It boils down to the way Congress set up the meat

inspection program back in 1906, which requires meat to be continuously inspected. In other words, if a meat packing plant operates, it must have USDA inspectors in the plant, inspecting the

meat at all times. So that essentially requires Congress to provide

full funding for that program every year plus inflation because if

the meat inspectors aren’t there, the plant can’t legally operate. So

even though they only have 20 percent of the food supply, the paradigm forces Congress to be given 80 percent of the money.

And so I don’t think anyone is suggesting that money be taken

away necessarily from USDA but that the FDA part, which is so

underfunded, be strengthened.

Mr. WHITFIELD. OK, and, of course, when this program was first

set up, the situation was certainly a lot different because today we

have all these imports coming in of fish and seafood and so forth.

So do all of you agree that FDA does not have sufficient money to

inspect these food items the way they should be inspected? Do all

of you agree with that or—OK, and when I listen to this testimony

today, it really is sort of scary because of the amount of contaminated food that we see coming in from China and other countries.

And all of you have been quite straightforward and even critical in

your opening statements. But if we put this on a scale of 1 to 10

and 10 being a perfect job of inspecting food for the American people, where would you on a range of 1 to 10 put the FDA today in

protecting the American people in guaranteeing food safety. Would

you assign a number for that, Ms. DeWaal?

Ms. DEWAAL. I assume 1 is low and 10 is high?

Mr. WHITFIELD. One is low, and 10 is high.
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Ms. DEWAAL. I feel bad having to do this, but we are in the

range of 1 because FDA isn’t preventing problems.

Mr. WHITFIELD. OK.

Ms. DEWAAL. They are acting as a fire department running

around putting out fires.

Mr. WHITFIELD. OK, so on 1 to 10, you would put FDA at 1 right

now? OK.

Mr. HUBBARD. Well, I would divide it, Mr. Whitfield, I would say

that if you look at the scientific expertise, the credibility, the global

reputation, and the dedication of the employees, I would put it at

9 or 10. But if you are looking at capacity, the capability, I would

be down here with Ms. DeWaal.

Mr. WHITFIELD. And I don’t think anyone is questioning the dedication, the expertise, the commitment of the people that work

there. But looking at the totality, what is the job that is being done

for the American people in providing safe food? So both of you said

1 maybe. What about you, Ms. Heppe?

Ms. HEPPE. I would probably give it a 5 because we do not have

enough resources, but we try to do the best we can with what we

have.

Mr. WHITFIELD. OK.

Ms. HEPPE. We try to concentrate on the areas we need to.

Mr. WHITFIELD. Ms. Collins?

Ms. COLLINS. I would probably give it a 3 or a 4.

Mr. WHITFIELD. OK.

Ms. COLLINS. However, if we lose the expertise that we have in

the field right now, I would give it probably a minus 2.

Mr. WHITFIELD. OK. Dr. Adams?

Ms. ADAMS. I would probably divide it up. I would give a 7 to

the drugs and devices, parts that have much more personnel and

much more income. And I would probably lower food to a 4 or a

5.

Mr. WHITFIELD. OK, Dr. Jacobs, do you have any thoughts?

Mr. JACOBS. I would give a low number, but I can’t give you a

quantitative——

Mr. WHITFIELD. Mr. Clavet?

Mr. CLAVET. Two or 3.

Mr. WHITFIELD. OK. Well, that is pretty astounding because we

are the leading nation in the world. We talk about our food safety.

We talk about our institutions, and yet for you experts who work

in this area who have the responsibility of doing this, to give that

kind of rating certainly does not speak well for where we are. And

we have a lot of work to do. So thank you very much.

Mr. STUPAK. Thank you, Mr. Whitfield. Mr. Burgess for questions.

Mr. BURGESS. Thank you, Mr. Chairman. Dr. Jacobs, I apologize.

I hadn’t made it back from the vote when you gave your testimony,

and I don’t see written testimony in the stuff in front of me. But

I would like to ask you a question, if I could, just for my general

knowledge. I get the part about using the carbon monoxide on beef

because cosmetically it improves its color. What is the rationale for

treating fish with carbon monoxide?

Mr. JACOBS. It turns the hemoglobin bright red, or the

myoglobin, in the sample.
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Mr. BURGESS. Most of the fish I buy is white though, so I don’t

get——

Mr. JACOBS. It wouldn’t help in those fish.

Mr. BURGESS. So it is the salmon in particular?

Mr. JACOBS. Yes.

Mr. BURGESS. OK. Mr. Hubbard, I really appreciate you being

here, having your perspective over—you were at the FDA, I guess,

starting right after the earth cooled and have been there——

Mr. HUBBARD. Not quite that far.

Mr. BURGESS. But it is an amazing length of time that your career spans at the FDA. So you have seen it all through various administrations, through various iterations of Congress. And I am

really struck by your comments in your written testimony about

how perhaps it is not the FDA that has failed, but the body responsible for funding the FDA has been the failure. And I suspect that

point is one that you would want to make fairly strongly. Is that

correct?

Mr. HUBBARD. Well, I do feel that way, Mr. Burgess. I think that

the agency scientists have identified these problems for years. They

have brought forth suggestions for regulation, for legislation, and

for funding. And they have been denied, and now for them to be

criticized and be told that you are the problem I don’t think is entirely fair.

I won’t say the FDA is perfect by any means, but I do believe

that they have been denied the opportunities to fix some of these

problems when they have identified them, brought them forward

for solution, and then told no, you can’t do that. You can’t have

that regulation. You can’t have that legislation. You can’t have that

funding. And so they are to some extent as much victims of this

as, I think, we all are. And that is why I hope this committee will

be looking at a broad range of issues and understanding there may

be management issues and deal with that, but also understand

there are some of these other issues about authority and resources

that need a look.

Mr. BURGESS. And these are not entirely new problems.

Mr. HUBBARD. No, I think the FDA folks have been raising the

alarm about this for years, and import flares up about every 2 or

3 years, and it dies down. And I hope that doesn’t happen this

time. I hope this time Congress acts.

Mr. BURGESS. I hope so too. Now, you think it is an inability of

the FDA to articulate the problem and the funding requirements,

or is it indifference on the part of the particular Congress or particular administration?

Mr. HUBBARD. No, this is not a partisan issue. The problems

cross political parties and political administrations. I think that

priorities have been shifted in the 1980s and 1990s toward some

of the drug issues. Money needed to be found for biotechnology, for

blood safety, for AIDS. And commissioners and secretaries essentially shifted money out of food. I think if they had been able to

see to the future that one day food would be biting us back, that

these imports would skyrocket, maybe decisions would have been

made differently. But they weren’t. Now, we are at a point where

the food program has essentially been taken down, and I think unless we build it back up, all of these other ideas we have are not
459

going to be very meaningful. You can’t implement a regulation

without people. You can’t implement legislation without people.

You can’t manage better without people.

Mr. BURGESS. Now, I seem to recall—I was just a regular guy

back in the 1990s, but I seem to recall—well maybe 1993 or 1994—

a bad outbreak of E. coli at some fair or something. A big push was

made to fix this problem. And in fact, I remember the administration signing a bill and making a big deal out of the fact that finally

at long last our food safety is now in the right hands and going forward. We won’t have this problem to deal with any longer. What

happened there?

Mr. HUBBARD. Well, you are absolutely right. FDA took the lead

first with seafood and doing preventative controls and largely addressed that. Then they did it with juice after, I guess, there. The

meat program at the USDA essentially followed FDA’s lead and did

it for meat, and meat outbreaks have dropped precipitously. And

so meat is a much safer product now. But FDA recently tried to

do that with fresh fruits and vegetables, and reports are they were

denied the ability to do that. And so I think those are the kinds

of things you need to look at. Where do the scientists think the

fixes are? And can you help them get them?

Mr. BURGESS. And let me just ask you one other thing before my

time expires. We heard some comments about country-of-origin labeling and how that would be an improvement, but in your testimony, you cast some doubt on the fact that the country-of-origin labeling will actually get us where we want to be. I got to tell you

I got people in my district who are very suspicious. They are suspicious of the Government anyway, but they have the feeling that

this is a way to get the small farmer to pay for the sins of the big

agricultural conglomerate.

Mr. HUBBARD. I do not think country-of-origin labeling works. I

think it should not be, first of all, a substitute for safe food. No

matter where the food comes from, it should be safe. And Canada

has country-of-origin labeling, and I saw a bottle of olive oil the

other day. It said ‘‘product of Canada’’. I don’t think you are going

to find many olive trees in Canada or in a hothouse, because in

Canada, they allow the final value to go into what country is labeled. And so 51 percent of the value of that bottle of olive oil is

Canadian, so it says product of Canada. And there are lots of other

examples around the world.

And the other issue is that if you had country-of-origin labeling,

I think that would be an administrative nightmare for Customs or

FDA or whomever to enforce it. Because you would be wasting resources chasing all these labels around. As you saw from the wheat

gluten, very easy to change a label or fake a label.

In fact, one of the big problems with these Chinese product is the

difficulty tracing back because they find counterfeit labeling, counterfeit shipping invoices. And that is true in the drug world as well.

So I don’t see labeling being an answer. We need safe food, not better labels, in my view.

Mr. BURGESS. Well, I appreciate your testimony, and I know I

am over my time. If they are growing olive trees in Canada, that

global warming thing may be worse than we thought. I will yield

back my time.
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Mr. STUPAK. Mr. Walden for questions please.

Mr. WALDEN. Thank you, Dr. Burgess. I want to thank all of you

for being here today. Mr. Hubbard, you mentioned in your testimony the FDA-regulated food imports are approaching 13 million

entries a year, I believe. What percent of our American food supply

does that represent?

Mr. HUBBARD. I think about 15 percent of our total food supply

is imported from other countries.

Mr. WALDEN. One-five?

Mr. HUBBARD. One-five.

Mr. WALDEN. Fifteen percent?

Mr. HUBBARD. Yes, 15.

Mr. WALDEN. OK, how many of the food illness outbreaks are related to imported food?

Mr. HUBBARD. There is no decent data on that. CDC generally

can only identify about 5 percent of food-borne outbreaks to their

source. I think certainly FDA has found examples of raspberries

and mushrooms from China, or raspberries from Guatemala, mushrooms from China, seafood from Asia where there have been specific illnesses. But I don’t think anyone has a decent database that

says food from this source or this source are more or less dangerous.

Mr. WALDEN. Do you think that the meat products we are exporting to China represent a food threat?

Mr. HUBBARD. I certainly wouldn’t think. The American beef industry would say so, and I think that the meat industry in this

country meets these regulations. USDA requires Cohassa which are

state-of-the-art controls for ensuring safe meat. So, no, I think that

our exports are very safe.

Mr. WALDEN. This is probably out of your realm, but I read a

story today that China has now stopped allowing the importation

of certain meat products. So do you think that is maybe more in

retaliation of our concerns over the poisoning of the dog and cat

food and——

Mr. HUBBARD. Well, there certainly has been speculation to that

effect. It is very clear the Chinese have been stung by this, and

they did mix messages. Some officials in their health industry have

acknowledged there are lots of problems with their food. Others

have said wait a minute, our food is not so bad either. And that

implies that they are going to be looking at more American food.

These trade issues do get thorny as you know.

Mr. WALDEN. I am aware of that. I actually have supported country-of-origin labeling, and I appreciate what you had to say in opposition to that. But I will tell you as a consumer, it does affect my

purchases where it is labeled. I do a second look. Maybe I

shouldn’t, but I do because I think about well, what are the food

safety requirements of that country? What do their ag producers do

versus what we do? And who is inspecting this stuff coming in?

And you all have sat here today and basically said our food supply

safety is in peril if you are relying on imported foods.

So I am at a loss how you can sit here and tell us that we are

not going a good job, that we are 1 or minus depending on where

you are at, and then say but don’t worry to the consumer. You

don’t need to know where it is coming from, and I am not trying
461

to throw a big rock at any particular country. But it just strikes

me that, as consumers put a lot of pressure on a country too. And

I understand China has some pretty tough laws, regulations, but

they don’t have enforcement mechanisms. Is that an accurate assumption?

Mr. HUBBARD. I have talked to trade officials who tell me that

the central government is woefully incapable of regulating out in

the hinterlands.

Mr. WALDEN. Right.

Mr. HUBBARD. You know an estimated one-half million small producers of food in China, some of which export to other countries,

and then the central government simply cannot reach to these

small farmers. Said in some cases, it might be someone who might

produce four or five bags of wheat gluten a week. We are talking

about essentially a farmer making something in a shed behind his

house that gets rallied into a larger distribution point. And so to

try to regulate an entity like that efficiently for sanitation and

other means is just an enormous task.

Mr. WALDEN. And so to whom should that task fall, the United

States taxpayers through FDA to inspect these coming in or not,

Ms. DeWaal?

Ms. DEWAAL. Thank you. First of all, I did participate in an export consultation with the Chinese Government. Their food law is

in the process of being modernized, but what Mr. Hubbard said is

all accurate about the failure to regulate.

What U.S. consumers though are looking for is a system whereby

they can trust the food that is coming here. So that has got to start

at the country of origin, and we can’t rely on the Chinese Government or the Indian Government. So it has really got to be through

a certification program where either governments, like for example

Australia or New Zealand have very up-to-date food systems. They

could certify for the whole country potentially. Or individual plants

might get certified to ship product in. And there is legislation currently that has been introduced that Congress is currently considering to do that.

Mr. WALDEN. Because I know I have talked to some food processors in my State who say we have to track everything clear

back—if it is peaches or pears or something, back to the box it

came from in the orchard. And they make the thing that goes into

various food items that are manufactured, and they have told me

look, we already have to have these data available to us. And other

countries require us to label everything as the country of origin

and document everything. And it always sort of confused me that

if our producers have to do that to get into many industrialized

countries, why wouldn’t we protect our consumers coming this way.

How big does FDA need to be to guarantee safety and move up

that chart? You have all told us that you are at a 1 or minus 1

or 2 or 3 or 4 in terms of safety. So how big do you have to be,

and how many more labs do you need?

Mr. HUBBARD. Well, I will begin the answer, which is a few years

ago we did do an analysis and well, what would the ideal food safety system look like? How many inspectors would you do? How

many scanners would you have? How many imports would you look

at? And that suggests that about a doubling of the agency. That is
462

out of date now, but clearly it is a big number. If you really want

to fix it I am afraid, there is going to have to be a substantial increase in staff and other scientists to fix the problem. And that includes lots of inspectors.

Ms. DEWAAL. And it is not just the number that is important;

although, the number is important.

Mr. WALDEN. Sure.

Ms. DEWAAL. It is also modern mandates, and the work of this

committee is very important to ensure the FDA is actually working

off of a law, off of legal structures that are more modern. And so

it is going to require both authorizing and appropriation.

Mr. WALDEN. It just seems to me we are working off a 1906

strategy to protect American-raised meats. That worked great,

cleaned up the problem, gave us safety and security. And now we

are importing this enormous amount of food from countries that

may not have anything close to what we had back in 1906 even

today. And now all of a sudden we are at peril when we go into

local groceries store potentially or buy dog food for our animals.

And I think most Americans are going what happened? How did

this get to this point? I have way overshot my time, Mr. Chairman.

Thanks for your indulgence. Thank you.

Mr. STUPAK. The gentleman from Oregon, Mr. Melancon, for

questions.

Mr. MELANCON. Thank you, Mr. Chairman. And I guess I might

go back and visit what I had asked Mr. Hubbard if you can maybe

help me with this. I heard your explanation about the country of

labeling concern that you have. Would that be for all products or

could you at least find the ability to police bulk products or for instance the gluten was brought in large sacks. If you had to go look

at every bottle of olive oil, I think it would be tough.

Mr. HUBBARD. First of all, there is absolute validity to the concept of the bulk product that the shipping invoice says as they

come through Customs into the FDA should show country of origin.

I fully agree with that. I think the question really is should the

consumer see it on the label. There is some country-of-origin labeling for seafood. But with all of these ingredients in foods, it is very

difficult to do that.

Plus the manufacturers bring all these products from different

sources. I saw a country-of-origin labeling on a jar of apple juice

the other day, and it said apple juice from Turkey, Greece, Germany, United States, China, and a couple of other countries. So

what that meant was they were buying from all those sources, mixing it all together.

And I think to tell the food industry that they would have to separate all that and label each bottle differently would just be a

logistical nightmare for manufacturers. Plus you have got to understand the ingredients. Soft drinks contain something called gum

araby which comes from places like the Sudan and Somalia. Are

you going to put product of Sudan on there? I don’t think you are

going to see the soft drink guys wanting to do that, but there are

these products in soft drinks.

Mr. MELANCON. Well, the soft drinks guys didn’t want to put

fructose and/or sugar. They wanted to leave you believe it was

sugar, but they were selling you fructose for a bunch of years. But
463

all that took was a change in the computer program. It is easy

enough. And I agree. Maybe that is where people like yourself can

help us find some remedies to some of this to where there is documentation by the importers and exporters, the product manufacturers where there is a trail. When we get a tag on a cow that came

from Canada, we know where to go look for the disease and to

track it where it came from. So it has got to be—if it can be done

on a cow, it can be done on products.

But the other thing that has always bothered me in international

trade is vital sanitary. Why does our country walk away from that

issue and doesn’t want to put it in any agreement? Or so it appears

to me.

Mr. HUBBARD. Well, there are trade agreements that set vital

sanitary standards and——

Mr. MELANCON. But the Europeans are not using those with the

same standards that we have in America.

Mr. HUBBARD. I think the problem is, as Ms. DeWaal said, the

current law doesn’t give FDA authority to impose its standards on

the exporter. The paradigm is that FDA can open the container, examine the food, and refuse it if it is unsafe or contaminated or appears to be unsafe. It doesn’t allow FDA to go to those other countries and say here are the standards you must meet. We can do

that for meat, but we cannot do that for the FDA-regulated products.

Mr. MELANCON. And I think that is why we are here today to

talk about what we need to do to bring these standards up to modern times if you would and try and make sure that our food supply

is safe. And from a standpoint of dealing with other countries, and

you obviously have had some of that experience, is there some way

to put the mandates on there, to have laboratories that are either

accredited or some way or another controlled by FDA to make sure

that there is not collusion, that we are not getting fish that has actually been shipped around the world three times before it finally

lands somewhere because they are trying to avoid inspection? Anybody want to address that? Mr. Hubbard, if you have some

thoughts.

Mr. HUBBARD. Well, obviously certifying labs would a good thing.

If the facts are accurate that these laboratories are not up to snuff,

that certainly needs to be fixed.

Ms. DEWAAL. Can I just add I mean we have a different model

for import inspection at USDA. And while that model may not completely fit all FDA-regulated products, it is certainly that, I think,

this committee should look at as they move forward. There are different models than the one FDA is using, and I think it is just a

matter of putting those pieces together.

Mr. MELANCON. Is there someone in the—probably not in the

agency because they have got their own model that they are designing. Can we look to someone that can give us an objective viewpoint, past experience, seeing what was good, seeing what was bad,

maybe giving us some insight views on why we need to do things?

My personal feeling is we need to constrain the number of ports

that we have of entry for different products or confine entry of certain products to certain ports so that we can have expertise on the

ground there.
464

This thing of backing off, if we are going to back off, just bring

everybody back to Washington, let them sit in an ivory tower surrounded by the Beltway. And we will never know what is going on

out there at the ports. Of course, that speaks something for what

DHS does sometimes, but that is a whole other issue. Now, I see

my time is running out, but thank you for your input. I hope that

maybe we could look to some of you to help us with devising the

mechanisms legislatively that will protect America’s food in the future. Thank you, Mr. Chairman.

Mr. STUPAK. I thank the gentleman. We will go for a second

round of questioning if anyone has further questions. Mr. Hubbard,

if I may, you are the associate commissioner of policy, planning,

and legislation. In the mid 1990s, Mr. Dingell, myself, we all had

legislation on trying to strengthen these laws to give the FDA the

authority that the USDA has to impose inspection fees, to make

sure the countries have same standards we have in this country.

But yet you always opposed that legislation. Why was that? Now

you are saying we should have this stuff. When you were in the

position to do something as associate commissioner, you opposed

us.

Mr. HUBBARD. Well, certainly there were provisions that the administration opposed, and as the administration official, I needed

to support those. But I think we agree with you on a number of——

Mr. STUPAK. Well, are you testifying now as concerned citizen or

if you were still associate commissioner, you would not be here

today?

Mr. HUBBARD. I think I worked with your staff on a number of

items of legislation in this area that we absolutely agree with you

on. The most important one, you may recall, was one that was

often dubbed USDA Light, which say that FDA could, if it found

repeated instances of contaminated food from a given country, it

could then say to that country you have now earned your right into

further regulation. You can’t send any more of that food that we

found to be contaminated until you have shown that you would fix

the problem at your end.

Mr. STUPAK. Sure, why should we accept food from countries that

don’t have the same standards as us?

Mr. HUBBARD. And I thought that was a very reasonable concept.

Mr. STUPAK. But you didn’t support it.

Mr. HUBBARD. Well, no we absolutely supported it, but Congress

didn’t——

Mr. STUPAK. Let me ask you this. Do you support inspection fees

where the USDA gets their money to do this inspection system? Do

you support inspection fees?

Mr. HUBBARD. Speaking for the Coalition for a Stronger FDA, I

don’t have a position. But personally, yes, I think anything that

can get the FDA the resources it needs to do more inspectors is a

good idea.

Mr. STUPAK. No, on your testimony—you don’t have it numbered,

but fifth to last page, you talk about the current budget request for

fiscal year 2008 as a good example of recent trends. Although the

official budget request states it includes an additional $10 million

for food safety, the food program’s inflations needs are not covered

by this request. But if we did $10 million, what good is that if the
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FDA is going to give away $9.5 million in bonuses to drug approval

process? So the money that should be going into food safety is

going for bonuses in another part of the FDA without some control

over that money. So what is an extra $10 million going to do if they

are going to give it away anyways like has happened in 2006?

Mr. HUBBARD. So the $10 million in inadequate to fix food safety.

In fact, it doesn’t even offset their inflation at cost.

Mr. STUPAK. Well, during your tenure as associate commissioner,

you approved retention bonuses for some FDA employees, didn’t

you?

Mr. HUBBARD. I don’t recall approving any. I received one my

last year or so, but I——

Mr. STUPAK. Well, don’t you remember approving the retention

bonuses for Margaret Glavin, director of FDA’s Office of Regulatory

Affairs?

Mr. HUBBARD. I may well have.

Mr. STUPAK. In 2003, you signed off on a retention bonus of Ms.

Glavin. That amounted to more than 12 percent of all the top bonuses of ORA. Is that correct?

Mr. HUBBARD. I don’t recall. I didn’t have any control over ORA,

but the retention bonuses were intended to try to induce people to

stay that might have retired or otherwise left the agency.

Mr. STUPAK. OK. Well, look at tab 59 there in that big book right

there. We have it all there where you approved those bonuses, and

your logic for that for Ms. Glavin was that you were signed off on

her bonus, and the justification was it indicated that she would

seek employment in a private sector if the FDA could not provide

a salary comparable to a top Government affairs executive. In other

words, Ms. Glavin, the way to retain her was to give her this

bonus, and it was calculated not based upon top Government affairs executive, but based upon the average income of a lobbyist in

Washington, DC. It is in tab No. 59. You want to look at that and

answer that one for me?

Mr. HUBBARD. Would you like me to take a moment to look at

it now?

Mr. STUPAK. Sure.

Mr. HUBBARD. Hand me the book.

Mr. STUPAK. Third page in, under tab 59, page 3 you will see

your signature on there about Ms. Glavin’s bonus.

Mr. HUBBARD. Before I read this, we had recruited Ms. Glavin

from the Department of Agriculture where she had been a senior

official, and we felt she could be a tremendous benefit in the bioterrorism area. But one of the inducements was to—obviously when

she was freemarketable outside the agency, the law allows an

agency to give people a thing called a retention bonus which says

if you will stay and then you agree to a certain amount of time to

stay, you will receive this $10,000 or $20,000 bonus.

Mr. STUPAK. Correct, but Congress did not intend $10 million for

a food safety program that would turn around and be used for $9.5

million in bonuses for drug approval. That is completely separate

divisions. That is what happened in the last year.

Mr. HUBBARD. I can’t link the food safety request to Ms. Glavin’s

retention bonus but——
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Mr. STUPAK. Well, if you go on to read that there, you said you

based it upon what a lobbyist would make, so therefore are we now

basing retention bonuses not on value but on where a lobbyist is

because we don’t have an exact description of a top executive——

Mr. HUBBARD. The principle was to try to get people a slight

bump up in pay to induce them to stay yet another year or another

year and not retire at that point.

Mr. STUPAK. Let us go on to country of labeling. You said you

are not in favor of that, but the 2002 farm bill actually had country-of-origin labeling and a schedule to be implemented in 2004.

For 5 years, that COOL, as they call it, country-of-origin labeling

for meat, produce, and peanuts have been blocked. In fact, in fiscal

year 2004, House agriculture appropriations included the language

to prohibit implementation.

And then we brought a bipartisan amendment to strike the provision failed 193 to 208. And then again in June 2004, House Agriculture Committee Chairman Goodlatte introduced legislation H.R.

4576 to repeal the mandatory COOL and make it voluntary. Yet 92

percent of the people in the country want country-of-origin labeling.

They want to know where their food comes from. Don’t you think

the American people have a right to know where their food comes

from?

Mr. HUBBARD. You are absolutely correct if people say they do

want that, and the seafood provision in COOL went into effect.

Mr. STUPAK. Yes, it did.

Mr. HUBBARD. The others have not, and I——

Mr. STUPAK. There hasn’t been these problems that you complained about with COOL under seafood, has it? It worked pretty

well.

Mr. HUBBARD. That is a whole food, and I think it probably

worked reasonably well for a whole food.

Mr. STUPAK. My time is up. Mr. Whitfield, any questions?

Mr. WHITFIELD. No, sir.

Mr. STUPAK. Mr. Burgess, any questions?

Mr. BURGESS. Yes. First, Mr. Chairman, may I ask unanimous

consent that my opening statement be made part of the record? I

wasn’t here when you——

Mr. STUPAK. Absolutely. And also Senator Durbin who also wanted to testify today has submitted his statement. So I will put that

in the record also at the same time. Thank you.

Mr. BURGESS. OK, and there is no particular relevance, but since

it is in the evidence binder, if everyone can turn to tab 70 and see

the insightful letter that I wrote to you, Mr. Chairman, I think that

would be instructive about Tommy the Train. That is not a food

item, but we are concerned about imports from China.

Mr. Hubbard, I have one last thing to follow up on your testimony. In 1999 with no prospect for additional funds for food imports and a rising tide of incoming products, the agency drafted a

legislative proposal. It would have given the FDA authority to require foreign countries to take more responsibility. I really think

that is a key point here. If there were some way to hold accountable those countries who are guilty of the most egregious behavior,

perhaps they would have an incentive to not behave in that way.

As you say in your testimony, countries have demonstrated a pat-
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tern of disregard of U.S. safety standards would have to step up

their oversight of food exported from their country. Congress did

not accept the recommendation, and indeed no hearings were ever

scheduled.

Would you include this as a hearing on that matter?

Mr. HUBBARD. I sure hope so. I sure hope you take a look at it.

The concept was that a country that had no problems would have

no problem, would do nothing additional. But a country that kept

sending bad food here would be told you are going on essentially

an embargo list until you fix the problems at your end. So don’t put

the food on the boat to send to us until you have shown us that

you have corrected the problem over at your end.

And they would essentially earn their way into a stricter regulatory regime, which I thought made a lot of sense at a time.

Mr. BURGESS. But if you couple that with a risk-based assessment here in our country, as opposed to simply trying to cover—

assuming everything is bad and trying to cover every eventuality.

One last thing I just wanted to ask about since you and Mr. Stupak

were talking about numbers. You had mentioned the number of

$131 million for food safety research centers, which I believe is in

this year USDA appropriation.

Mr. HUBBARD. It is in the President’s budget request to Congress. $131 million for food safety research that would go to the

Department of Agriculture.

Mr. BURGESS. OK, and in the Department of Agricultural appropriation bill, my understanding is that number is pretty close to

the President’s request.

Mr. HUBBARD. I understand that to be the case too, yes.

Mr. BURGESS. And the actual number reported out of committee

for food inspection is a little bit lower than that. Is that not correct?

Mr. HUBBARD. It is $28 million, and then if you subtract the inflation cost the program will have, which is $14 million, under the

subcommittee action, the food safety program will get an increase,

as I understand it, of $14 million, which is not a lot, but it sure

helps.

Mr. BURGESS. But does that reflect an imbalance then of putting

this money toward the food safety centers? Why would there be

more of an effort to fund that activity as opposed to the inspectors?

We heard the other side talking about needing cops on the beat,

and it would seem to me you don’t need the precinct house if you

don’t have enough cops on the beat to further that analogy. Well,

we are going to be voting on that bill, and again I think these are

numbers that are reported on committee. So it is important to

bring it up, and it is important for Members to understand exactly

what they are voting on. Do you think is there any opportunity to

try to—on the appropriations bill, is it open rule? We can amend

these things as they come through? Would you like to see some of

the money perhaps moved from the food safety research centers to

the food inspectors?

Mr. HUBBARD. Speaking personally, absolutely. I think that food

safety research is important. But when the crisis is facing us, that

FDA doesn’t have a strong food safety program. Anywhere you can
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find funds to beef that up, in my view, is a good idea. But I think

you will get push back from the USDA folks.

Mr. BURGESS. From the USDA? Are these food safety research

centers in any way, are they part of the earmark process? Do Members ask for those in their district?

Mr. HUBBARD. I don’t know. I am not familiar with their process.

Mr. BURGESS. Well, again I really appreciate you being here. I

appreciate your valuable insight. You have been at this problem a

long time, and I think you brought a lot to this hearing. I thank

you for being here. I will yield back, Mr. Chairman.

Mr. STUPAK. Thank you, Mr. Burgess. Mr. Markey, a member of

the full committee, wishes to ask questions, I think, of Mr. Clavet.

You can state your objection. Wait a minute. I want to hear from

Commissioner von Eschenbach as much as anybody because I have

a lot of questions for him, but it is a courtesy given to anyone who

is a member of the full committee, they are not allowed to give

opening statements, but they are allowed to ask questions. I certainly would wish that Members would come from the opening bell

to the last bell so we could do it in an orderly process. Unfortunately, that is the way it goes. OK, objection overruled. Go ahead,

Mr. Markey.

Mr. MARKEY. I thank the gentleman very much, and I hope everyone appreciates that I am not allowed to speak until the very

last moment so it makes no difference if I arrive in the beginning.

I can only speak at this moment after everyone else is done. So

that is the courtesy I, as the subcommittee chairman, give to every

Member as well.

What is unique, Mr. Clavet, about the Winchester Engineering

and Analytical Center? Can you move the microphone over please?

Mr. CLAVET. It is unique because it is the only FDA regulatory

lab that does analysis for foods and for radionuclides. It is the only

laboratory that does it, and besides that, we are also the only laboratory—there is no other—that does medical devices from an engineering, chemical, biological, microbiological perspective.

Mr. MARKEY. Now, when I was a boy and I had no scientific ability at all and I wanted to do a science fair project as an overachieving sophomore, I went over to the Hood Milk Company

where my father drove a truck. And they explained to me that because the United States and Soviet Union were exploding these nuclear bombs that Linus Pauling and others said that the

stronskium 90 was being carried by clouds, going down into the

grass, cows were eating the grass, and children were now drinking

the milk with stronskium 90. So in addition to homogenization and

pasteurization, we needed also a stronskium 90 remover.

And I did the science fair project with my father’s help, of course,

because I had no mechanical abilities either, but I got honorary

mention. I was only a sophomore, and this was actually a chemistry thing for the juniors. So I was quite proud of myself, and I

am not saying it is exactly because of me, but 1 year later, the

United States and Soviet Union signed the Atmospheric Nuclear

Test Ban. I am not taking full credit for it, but I think it is related.

And so here now we have a new threat from Al Qaeda, new

threats of dirty bombs, new threats of potential nuclear meltdowns,

and what is the FDA doing? The FDA is actually shutting down,
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by the way 2 miles from my house, the very facility, the only facility in the country that has the capacity for doing the testing for

radiological impacts on children across the country.

It seems so, Mark Twain used to say that history doesn’t repeat

itself, but it does tend to rhyme. And so this rhymes a lot with the

people who really did not understand how important that danger

was back in the late 1950s and early 1960s. Can you give the committee some examples of when the Winchester lab has tested food

for radiological contamination?

Mr. CLAVET. Well, during the Chernobyl incident, the WEAC laboratory insured that the food in this country coming from that area

was safe. During the Three Mile Island incident, the Mass Bay foul

area survey, we participated in that. And the recent outbreak—not

the recent, UK poisoning of the Soviet KGB agent, the CDC asked

us to participate and stand ready to assist them and to help them

develop a method for food analysis for polonium 210.

Mr. MARKEY. Great. So the same kind of partnership that Kennedy constructed with Khrushchev you have with the former Soviet

Union as well; although, we are not sure who actually gave that

polonium over but—who used it on who, but who utilizes the capabilities of Winchester?

Mr. CLAVET. Well, State and local governments, ORA, all the

field laboratories, the inspectors using TLD badges utilizes WEAC’s

capabilities, the CDC, the Department of Defense, USDA FSIS,

Food Safety Inspection Service. We have an agreement with them

to analyze food in case of an emergency. One of the important

things is we have a lead lab in the FERN, which is the Food Emergency Response Network for radiological and terrorist acts. We are

the lead laboratory.

Mr. MARKEY. What do we lose, Mr. Clavet, if this laboratory

shuts down?

Mr. CLAVET. You will lose the ability to oversee the FERN for

one thing. You will lose our radiological component of the FDA.

Mr. MARKEY. Have they given you a reasonable explanation yet

from the FDA why they are going to shut it down?

Mr. CLAVET. I can’t say. No one has really told us why we are

closing.

Mr. MARKEY. Mr. Clavet, I sincerely appreciate your willingness

to come forward and to testify today at a time when the FDA has

been struggling and in many occasions, failing to keep the Nation’s

food supply safe from contamination. It is totally unacceptable to

further weaken the FDA’s field operation and inspection system by

closing this critical field lab. I am very concerned about the FDA’s

proposed plans and look forward to getting answers from the commissioner as to why he thinks it is a good idea to shut down the

Winchester laboratory when it serves such an important and

unique public health function. Mr. Chairman, I thank you for your

graciousness, and I yield back the balance of my time.

Mr. STUPAK. Thank you for your questions. Ms. DeGette, your

questions.

Ms. DEGETTE. Thank you, Mr. Chairman. I apologize for my absence. I was downtown speaking about an issue that everyone here

would care about, which is conflicts of interests. And I was speaking to high-level researchers who I suggested they might perfect
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the cloning technique so that we could all be both in the hearing

and making speeches and on the floor.

I want to extend another welcome to Ms. Collins for being here

today, and I want to follow up on Mr. Markey’s question about the

Massachusetts firm lab because the Denver lab is also a member

of the FERN network. Correct, Ms. Collins?

Ms. COLLINS. That is correct.

Ms. DEGETTE. And tell me about the kind of work that the Denver lab does with the FERN network.

Ms. COLLINS. We do both microbiological as well as chemistry.

We test foods. We test feeds. We have an extensive amount of work

that we do to help with the FERN capabilities.

Ms. DEGETTE. And so that is a different type of FERN work than

the Massachusetts lab does, correct?

Ms. COLLINS. A little, yes.

Ms. DEGETTE. And, as I understand it, Denver will be the only

full-service FERN lab that would be closed under the current plan?

Ms. COLLINS. I believe that San Francisco is also FERN laboratory.

Ms. DEGETTE. But that lab is not scheduled to be closed.

Ms. COLLINS. Yes.

Ms. DEGETTE. It is? OK. Now, after the recent food safety outbreaks, did the Denver lab have any involvement with those outbreaks?

Ms. COLLINS. Yes, absolutely we did.

Ms. DEGETTE. Could you describe that for me, Ms. Collins?

Ms. COLLINS. Well, of course, we had a lot of work to do with

melamine. We had facilities within our district that had contaminated products with melamine that we had to go out and inspect

and collect samples. Additionally, one of the most important things

that we did was in the Animal Drug Research Center or ADRC. We

developed the methodology to test for melamine in animal tissue,

and the remarkable thing about that was when we were able to do

that within 72 hours after we started on the project so that we

could test immediately what was in animal tissue, fish tissue, in

order so that there would be a method out there for our laboratories, for international laboratories, State laboratories, and even

private labs.

Ms. DEGETTE. And why do you think that you were able to develop that method within 72 hours?

Ms. COLLINS. Several reasons. One is the dedication of the staff

to get the job done. Second was the amount of expertise that we

had from the three Ph.Ds that work in ADRC, and the fact that

one of those Ph.Ds has been with us for a long number of years

and is very experienced in developing these kind of processes.

Ms. DEGETTE. Now, how many employees are located at the

FDA’s Denver lab?

Ms. COLLINS. We have anywhere from I think it is about 47 or

48 right now.

Ms. DEGETTE. And how many of them are experienced Ph.Ds like

the one you have been talking about?

Ms. COLLINS. We only have three Ph.Ds. We do have several specialists that are at the GS–13 level pay grade. We have quite a bit
471

of experience just in our chemistry section alone. Most people have

an average of 22 years experience.

Ms. DEGETTE. Of all those experienced folks, how many of those

are going to be willing to relocate to other parts of the country

after the closure of the FDA’s Denver lab?

Ms. COLLINS. Personally, I have only heard one person within

that group that said that they would be willing to move.

Ms. DEGETTE. And so in your opinion if the Denver lab is closed

and that one person moves and everybody else leaves or finds

something else to do, what impact is that going to have on our ability to research these different issues?

Ms. COLLINS. It will be tremendous.

Ms. DEGETTE. Can you give me a couple of examples of things

that people do who have said that they won’t relocate?

Ms. COLLINS. Well, we have the drug residue testing. We have

antibiotic resistance testing. Antibiotic resistance testing is only

done in Denver district. We have seriology testing. There is only

one other lab that does that.

We have several things like that that will be lost, and so when

you move those processes to other laboratories, you are going to

have to train the people that are either there, or you are going to

have to bring in new people. And if you bring in novice employees,

chemists, microbiologists like we have, then you have got to train

them. And that is going to take approximately 3 years to get them

at what we consider the journeyman level to be able to do this

work.

It is very complex. It requires experience, and you can’t pull

someone off the street to start doing this in any less than 3 years

with confidence.

Ms. DEGETTE. Thank you. That is about all I need to know. I appreciate you coming today.

Mr. STUPAK. That is all the questions for this panel. Thank you

all very much, and thank you for your expertise in the field you

testified on today. Thank you. I will now call our third panel of witnesses to come forward.

On our third panel, we have the Honorable Andrew von

Eschenbach, Commissioner of the Food and Drug Administration,

Mr. Stephen Mason, Acting Assistant Commissioner for Legislation

at the FDA; Margaret Glavin, Associate Commissioner for Regulatory Affairs at the FDA; and Dr. Robert Brackett, Director of the

FDA’s Center for Food Safety and Applied Nutrition.

It is the policy of this subcommittee to take all testimony under

oath. Please be advised all witnesses have the right under rules of

House to be advised by counsel during their testimony. Do any of

you wish to be represented by counsel? Everyone is saying no.

Please take the oath.

[Witnesses sworn]

Mr. STUPAK. Let the record reflect all witnesses answered affirmatively. They are now under oath.

Commissioner von Eschenbach, I understand you are going to

take the opening statement for all. Is that right?

Dr. VON ESCHENBACH. Yes, sir.

Mr. STUPAK. Did you want to give an opening? But first before

you do, thanks for being here today. I know you stayed through the
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whole thing. Hopefully you learned a few things. Hopefully we all

learned a few things, and I am sure with your testimony we will

learn a few more things. And I know you had to be at the Senate

at 2 o’clock, and you moved it back for an hour. We appreciate that.

Hopefully we can get this in. There are a series votes to be coming

up here fairly soon. So if you would want to begin with your opening statement, sir. Thank you again.

TESTIMONY OF ANDREW C. VON ESCHENBACH, M.D., COMMISSIONER, FOOD AND DRUG ADMINISTRATION, ACCOMPANIED

BY STEPHEN MASON, ACTING ASSISTANT COMMISSIONER,

LEGISLATION; MARGARET O’K GLAVIN, ASSOCIATE COMMISSIONER,REGULATORY AFFAIRS; AND ROBERT E. BRACKETT,

DIRECTOR, CENTER FOR FOOD SAFETY AND APPLIED NUTRITION

Dr. VON ESCHENBACH. Thank you very much, Mr. Chairman, and

I do appreciate the fact that this has been a very long day for everyone, and it is testimony to the importance of this hearing. I

want to thank you and all the members of the committee for your

attention. And I do also want to express my gratitude for your consideration of my prior commitment to testify at the Senate, and the

fact that I will be able to leave at 3 o’clock

With regard to my statement on behalf of the Food and Drug Administration, I am very pleased to be joined at the table by Margaret Glavin, our FDA’s associate commissioner for regulatory affairs, and Dr. Bob Brackett, the director of FDA’s Center for Food

Safety and Applied Nutrition because I think they are very critical

and key to many of the questions and issues that have been raised

today. And they will actively participate on behalf of FDA to provide the committee with insight into these very important issues.

And Mr. Mason has also joined us.

The Food and Drug Administration came into existence in this

country 100 years ago, in fact, because of critical problems in the

safety of our Nation’s food supply. And over that past 100 years,

the agency has had to constantly adapt and respond to emerging

challenges, but I am here today very proud to lead an agency that

is, in fact, recognized around the world as the gold standard for ensuring the health of our food and our medical products.

But I am not here today, Mr. Chairman, to defend the FDA of

the past but to continue the discussion with you as to how to create

an FDA of the future. Because once again, FDA is facing challenges

that have been brought on by recent changes in the production, distribution, and consumption of food.

Today, we no longer bring home spinach to be washed multiple

times and cooked before we eat it. But rather we purchase a bag

off the shelf, take it home, open it, turn it over, and dump out the

fresh cut spinach or lettuce along with the salad dressing and immediately eat it raw. We have become accustomed to being able to

walk into a supermarket 365 days a year and purchase fresh fruit

and watermelon, even though they are not grown in this country

during the winter months.

The American people will not go back to previous practices. And,

in fact, given the importance of fresh fruits and vegetables in our

nutrition and diet, nor should they. Recent events have riveted our
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Nation’s attention on the fact that the modern production, distribution and consumption techniques and patterns have created not

only unique health benefits but also unique risks. And once again,

FDA is challenged to rapidly and effectively respond to this changing reality around us.

How does an agency like FDA respond to these recent events

while continuing to maintain an exceptional record of promoting

and protecting the public health? Well, in short, Mr. Chairman, we

also, the FDA, must radically and rapidly change. But change is

difficult and requires meticulous planning, and it is also painful to

implement. Let me just mention some of the changes that we have

engaged in to attempt to respond to these challenges.

You reflected on the fact that I created within the Office of the

Commissioner the new role for coordinating food safety work across

the entire agency by appointing Dr. David Acheson to the newly

created position of assistant commissioner for food protection. This

is not simply window dressing, but Dr. Acheson’s role is to provide

leadership to create an agency-wide strategic planning protection

plan that builds on the excellence that already exists in our centers, like CFSAN, like the Center for Veterinary Medicine, ORAand

all of the rest.

This plan will enable FDA to be engaged in quality assurance

through the total life cycle of food from its very production all the

way through to consumption. If you will, FDA’s commitment is to

be engaged from farm to fork. And to do that in the context of a

comprehensive, well-developed plan that includes prevention so

that we can eliminate food safety problems by building quality into

our very production of food, intervention strategies that will preempt problems by virtue of enhanced inspections and detection,

and certainly enhancing our response to any outbreak. This plan

will also address domestic as well as imported foods.

And we clearly must build on the quality not only of production

but also in strengthening our surveillance and detection, particularly by paying very close attention to our ability to have a modern,

well-equipped field force of the 21st century.

Much is being discussed today about FDA’s proposal to modernize our laboratory capabilities. These are intended for the sole purpose of strengthening our capability to increase and enhance our

frontline inspections, giving our inspectors modern tools of science

and detection along with better systems of communication, while

streamlining and enhancing and modernizing our backup laboratory facilities so that we can serve this entire Nation with an infrastructure that is now modern and adequate.

We recognize in this planning process not only the need to come

forward with an importantly well-developed strategy, but we recognize that these will require additional resources. We have been persistent in requesting additional resources and have received such

in 2007. We are grateful for Congress’s consideration of our 2008

increases, and we are working with the department and the administration to prepare our 2009 implementation plan and additional

resources.

Let me be clear that we are also examining our legal authorities.

We recognize that we must explore ways to use our current exist-
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ing authorities more efficiently, more effectively, and with greater

clarity.

Second, we must work collaboratively and cooperatively with

other agencies and their opportunities and their resources, and it

is not our intention to work and function in a vacuum. This is particularly true with our ability to address food imports.

Last May when we held the strategic economic dialog with China

here in Washington, DC, Secretary of Health and Human Services

Michael Leavitt, Secretary of Agriculture Michael Johanns and myself met simultaneously with all the Chinese leaders and counterparts to begin to address the important problems that have been

referred to today with regard to our increasing awareness of imports of food and other products from China.

FDA is working with the Department of Health and Human

Services towards creating a memorandum of understanding with

China to enhance ability to build quality into these products before

they are shipped to this country. Secretary Leavitt will be going to

China in December. I am going to be there in October. We recently

last week had a meeting here of our bilateral counterparts in

China.

And third, we are in fact examining whether we need new authorities that will enhance our ability to oversee our food supply.

Current authorities that make it possible for us to be more effective

with regard to being adapted to our food defense activities for imported food, being able to look at issues as to whether voluntary

recall structure provides sufficient incentives in a global marketplace, and what we need to do to help to continue to enhance the

prevention aspects of our effort by building quality at the outset.

We are working very hard at a comprehensive food protection

plan, and it is a process that is innerative and underway as we

speak. And I look forward to continuing to work with you and other

Members of Congress and other stakeholders, and especially the

staff of the Food and Drug Administration to further refine, develop, and implement these comprehensive plans.

I look forward to continuing to even more effectively dialog with

this committee by providing documentation immediately upon

being requested. I have changed the policy within the agency so

that we respond immediately to requests for documents even if we

are not able to provide the full complements of the documents requested.

I have appointed Matthew Lyons in our Office of Legislation to

specifically oversee and take responsibility for an accelerated effort

in our oversight activities. I have created an agency taskforce that

will bring components of the agency together to specifically focus

on the preparation and rapid dissemination of these documents.

And most recently, I was able to procure additional resources on

a temporary basis from the Department of Health and Human

Services that quite frankly enabled us to be able to meet more recent demands without further deploying people from their daily

commitments to the overwhelming mission of responsibilities that

you have heard about today.

We at the FDA must and will radically change and will do that

in an ongoing dialog in consideration to do the right thing and to

do it in the right way. Thank you, Mr. Chairman.
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[The prepared statement of Dr. von Eschenbach follows:]
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Mr. STUPAK. Thank you. Anyone else care to give an opening

statement at this time? OK, we will go right to questions.

Mr. Commissioner, you indicated you are going to China in the

fall. I would suggest maybe you want to go August 17 with our investigators. They are going to China to work just on food safety

and also drug safety. Could some of your people accompany them

on this trip or yourself?

Dr. VON ESCHENBACH. Yes, sir. I would be happy to entertain it.

I mentioned my own participation, but there is other participation

that is underway as well. And we would be happy to work with you

and the committee staff to accommodate that.

Mr. STUPAK. OK, the other thing that you heard today Members

are—I have a whole series of questions on documents we have not

received. Ms. DeGette has mentioned documents she has not received. I think most of us have mentioned documents we have not

received. So this individual you have selected to provide documents

is not providing documents.

Dr. VON ESCHENBACH. I was concerned when I heard Ms.

DeGette’s comments, and I must confess it was my understanding

that the particular documents I thought she referred to had been

provided to you. But I will double check on that to be certain.

Mr. STUPAK. Well, we are still looking for documents from the

peanut butter case, ConAgra. We are looking for documents from

Ketek. There are numerous documents I am looking for with

Accutane. There are a number of things we are looking for, not just

all food safety, but there is a number of them

Ms. DEGETTE. And if the chairman will yield. It is not even just

documents. I sent the FDA a letter on the 24th of January with

Senator Salazar and Congressmen Udall and Perlmutter about the

Denver lab closure that I never received a response to. On June 12,

2007, there was a hearing on medical devices, and I asked if I

could submit questions. And the FDA representative said that they

would respond to them, and I have never since then received that

information. And at that same hearing then, I was talking about

a May 16, 2007 hearing, and that was post-market surveillance for

medical devices relating to children and other kinds of things relating to children. And frankly, sir, I haven’t received any responses

to any of those requests.

Dr. VON ESCHENBACH. Well, Congresswoman, please accept at

this point that it is my intent and absolute commitment that we

be completely responsive to the appropriate requests of this committee and every other appropriate request by committees in Congress. And we have, as I indicated in my opening remarks, recognized that the very intensive effort that is currently underway has

placed great strain on us, and I am attempting to respond to that

as rapidly and as quickly as possible.

One letter that is unresponded to is one letter too many, and I

want this agency to be responsive to your appropriate requests, and

I am working towards that. And I will certainly look into those specific issues personally, but I am anticipating that we will get this

down to zero defects.

Ms. DEGETTE. I appreciate my chairman yielding, and I yield you

some of my time. Thanks.
494

Mr. STUPAK. Mr. Commissioner, there are 12 agencies that we

know of that deal with food safety. Have you been coordinating

your efforts with these 12 agencies?

Dr. VON ESCHENBACH. We have been working very extensively,

for example, with USDA to continue that relationship, and I think

that was very apparent——

Mr. STUPAK. USDA. Who else have you been——

Dr. VON ESCHENBACH. One of the other important elements has

been CDC as it relates to outbreaks and illnesses. That is another

important part. So we have continued to look at various opportunities. A lot of discussion has——

Mr. STUPAK. Have you asked these 12 agencies about your reorganization plan, about whether these labs should be closed? You

started off talking about spinach, but yet the lab that is responsible

for the spinach by Salinas Valley is one you want to close.

Dr. VON ESCHENBACH. One other point was raised earlier today,

and I want to emphasize. We are working very closely with the Department of Homeland Security because of the issues that were discussed earlier about Customs and border protection.

Mr. STUPAK. Right, so why do you want to close the West Chester lab?

Dr. VON ESCHENBACH. With regard to reorganization, I know a

great deal has been raised today about that reorganization proposal, and I want to make it very clear that this is intended for

one purpose and one purpose only. And that is to bring FDA’s laboratory infrastructure into the 21st century. I personally went to

a laboratory in New York when I first took over this position and

asked them how did they inspect seafood for its freshness. And I

was told that we use taxpayer dollars. Somebody goes out to the

docks and goes around and buys seafood, shrimp, brings it back to

the laboratory, and then we have an expert there who smells it and

determines whether it is fresh or not.

That, Mr. Chairman, is not my view of the FDA of the 21st century.

Mr. STUPAK. That is why Mr. Dingell and all of us had legislation after legislation in the 1990s trying to bring the FDA into the

100th year of it, not 1906 standards. And FDA has always fought

us on those. You wouldn’t even comment on our legislation. It was

a non-starter.

Dr. VON ESCHENBACH. May I give you one example as to some

of the misconceptions that I think have occurred in today’s testimony about what we are trying to do?

Mr. STUPAK. I don’t think——

Dr. VON ESCHENBACH. This is not to eliminate laboratories or

eliminate the ability to test products. It is to be able to consolidate

science in a way that our laboratories are much more effective, but

at the same time to increase our inspection force out there on the

cutting edge and to do it by giving them the modern tools of science

and technology with which they can actually do these analyses——

Mr. STUPAK. By closing these labs, how are you going to increase

your inspection field?

Dr. VON ESCHENBACH. Let me give you a specific example.

Mr. STUPAK. Sure.
495

Dr. VON ESCHENBACH. Today, this bottle of water—and we have

recently had a problem with a concern of arsenic contamination of

water being imported from another country. The way it happens

today is an inspector seizes or takes a bottle of water. It has to be

sent to a laboratory and undergoes laboratory analysis that takes

hours, and then finally there is a report. We have a modern tool

of science and technology that we can deploy to inspectors in the

field and by simply pointing this instrument at this bottle, it can

register whether there are any heavy metals like arsenic, possibly

strontium, and do that rapidly and efficiently in the field. That

doesn’t require a laboratory.

Mr. STUPAK. That is great, but my question is how many employees or inspection people will have those little handguns so you can

go do his thing by closing these labs?

Dr. VON ESCHENBACH. My expectation and intent with regard to

the strategy that we are employing, which is to create state-of-theart, multidisciplinary, well-staffed laboratories with modern robotic

technologies. And then deploy many, many more investigators and

inspectors than we currently have at all of the ports where we

never could have that opportunity.

Mr. STUPAK. What number? That is what I am looking for.

Dr. VON ESCHENBACH. Well, we have talked——

Mr. STUPAK. I won’t have to ask you all these questions because

if the FDA would have provided the information we asked on our

reorganization plan, we wouldn’t have had to have all these questions. They provided us zero information because it is predecisional. So we have no information on your reorganization plan

even though we have been promised time and time and time again

we will have the information before this hearing. It will be timely.

It will be worthwhile. It was pathetic, to say the least, what we received.

Dr. VON ESCHENBACH. Well, Mr. Chairman, as I indicated in my

opening statement, our reorganization and our strategic plan is a

proposal. It is in process. It is being developed. There are parts and

pieces of it that have become public, for which we have been looking at response and reaction, and quite frankly, this hearing has

been a very important part of that giving us impact and insight

from the inspections that occurred that your staff carried out.

These plans will need to be further refined and developed, but

the expectation is although the changes may be painful, we cannot

depend on the current laboratory system that exists today to carry

out the responsibilities of tomorrow. And this will require change,

consolidation, reorganization, but not loss of function.

Mr. STUPAK. My time is up, but when you have these plans, give

them to the committee. And most of all, give it to your lab people

so they know what is happening. There is probably nothing worse

than FDA employees not knowing what their future is and no one

knows why they are being let go. In fact, in your testimony, you

said these were backup labs that could be duplicated elsewhere,

done elsewhere. Watch that word. I don’t think West Chester or

some of these others would consider themselves a backup lab. With

that, I will turn to Mr. Barton.

Mr. BARTON. Thank you, Chairman Stupak. Welcome, Commissioner.
496

Dr. VON ESCHENBACH. Thank you, sir.

Mr. BARTON. I have a series of questions on the issue at hand,

but I want to first pile on a little bit with Ms. DeGette and Mr.

Stupak on non-response to letters. Back on April 18, Mr. Whitfield

and myself wrote you about the issue of FDA warning letters and

what the appeal process is, how many companies have appealed an

FDA warning letter. We asked you a series of, I think, three or four

questions. I have to get in line with Congresswoman DeGette and

Congressman Stupak. We have not received a response either.

Could you check into that? This is an April 18 letter from Mr.

Whitfield and myself, and I assure you that we are asking for factual information in this letter. But there is no hidden agenda. We

are not trying to ‘‘got you’’ the agency.

Dr. VON ESCHENBACH. Thank you, sir. May I apologize to you

and the committee. It is not our intention to withhold information.

It is not our intention to be delinquent in immediate response to

you, to every member of this committee, and to the entire Congress.

In defense of what has occurred at FDA, we happen to be in an

extremely intensive period of time with regard to the request for

documents and information from the agency. And at the same time

we have been engaged in many significant legislative changes like

for our FDARA et cetera, our appropriations.

Mr. BARTON. We may complain once we get your answer, but we

are darn sure going to complain if we get no answer.

Dr. VON ESCHENBACH. Well, and I am attempting within that

context, without diverting people from missioncritical activities day

in and day out, to shift resources, find resources, find systems and

processes so that we are not delinquent in response.

Mr. BARTON. We are the committee of jurisdiction, and this is the

subcommittee of oversight. And any reasonable response effort in

your office would prioritize responses to members of this subcommittee and which Congresswoman DeGette is a senior member,

Mr. Stupak is the chairman, Mr. Whitfield is the ranking Republican, and I am the ranking Republican on the full committee. So

we ought to be somewhere up in the hierarchy of you get an answer to us even if it is an answer that is going to upset us.

Dr. VON ESCHENBACH. Mr. Barton, I fully respect and appreciate

the authority that this committee exercises, and it is not my intention to, in any way, shape, or form——

Mr. BARTON. I don’t want to belabor it, but we will get you a

copy of the letter before you leave. And we hope you will reply. My

policy questions are dealing with how to modernize the FDA process for inspecting and overseeing the food imports. In my opening

statement, I listed four points that I wanted the FDA and the committee to consider if we decided to move in a legislative approach.

In a nutshell, I suggested that we do something to make our good

manufacturing processes information more available internationally. We do something to help profile the foreign food control agencies and their processes for food safety inspections before it leaves

their country. And third—this is one that I think is very important—that you consider separating the foreign inspection activities

and setting up a separate office just for foreign inspections. And

then fourth, that you consider issuing a rule on the import alert
497

program and specifically make a determination if you need congressional legislation, can the FDA detain shipments from overseas

without physical examination. Do you care to comment on any of

those ideas?

Dr. VON ESCHENBACH. Yes, sir. I took notes during your opening

statement, and we will be happy to address those in great detail.

Let me just say at the outset I recognize the importance of really

strengthening our ability to build quality into the products that are

being produced outside of our borders but that ultimately come to

us.

I was in Belgium and met with the European Union and the European Commission, signed a memorandum of understanding with

our counterparts there with regard to food safety and food protection so that we will be mutually sharing and interacting with regard to information.

I indicated earlier about the important role we will be playing in

developing relationships with our counterparts in China to contribute to their ability to put a system in place that will assure the

quality of what comes to our borders, as we also strengthen the

protection at our borders. So I am committed to increasing foreign

inspections, to increasing our foreign presence, and our interaction

with our foreign counterparts to build quality in at the outset.

Mr. BARTON. My time has expired. I just want to ask one final

question on the closure program or the reorganization program

that there have been some questions about. Three or 4 months ago,

you and your staff came by and briefed me on that, and I think

you also briefed Mr. Whitfield. I suggested that you brief Mr. Dingell and Mr. Stupak. I know you attempted to set those meetings

up. Were those meetings ever successfully set up, and have the majority also received a briefing that you gave to myself and, I think,

Mr. Whitfield?

Dr. VON ESCHENBACH. I have not had the opportunity personally

to be able to brief Chairman Dingell or Chairman Stupak, but I

have continuously encouraged our staff to find opportunities to do

that at a staff-to-staff level. But, no, I have not had an opportunity.

Mr. BARTON. All right, is there a reorganization formal proposal

that is in written form, or is this still an internal concept within

the agency?

Dr. VON ESCHENBACH. The reorganization is still very much an

internal document in terms of its development, and I call it a proposal. We have crystallized it to the point where we have specific

initiatives that we are now presenting as options and opportunities,

and there clearly have been discussion about each of those in terms

of its own unique features.

I think what is important to point out is this is not a workforce

reduction plan. This is not being done simply to save money. Just

the opposite. It is being done to sort of enhance our ability to respond to the challenges that we now are facing.

Mr. BARTON. Well, I think Mr. Stupak’s comment is well taken.

If you are really going to try to implement it, the sooner you formalize it and let the people know what it is, the greater the potential for having it accepted and having less kickback from the political system. When it is a great unknown, everybody is going to oppose because there is no certainty. It is just normal for Congress-
498

men to try to protect projects and facilities in their district, but it

is also quite possible that if there is a coherent, well-organized plan

that makes sense, you can get a majority of the committee to support it.

Dr. VON ESCHENBACH. Well, I very much appreciate that advice

and wisdom, and we will continue to follow that principle. I would

also add, of course, that one of the other things I want to be clear

about is that we are not closing laboratories with the idea of eliminating functionality. This is not the case, and I think that just occurred with the discussion of our ability to address radionuclear

materials and health.

It is to be able to consolidate our assets in a way, enhance our

assets in a way that gets the maximum impact, but that will require change. And it may require movement and shifts of those resources so that we have a national network, not a regional or local

network. And when Ms. DeGette related to the issues, for example,

in Denver, clearly it is not a factor that that laboratory is inadequate or the people have not been exceptional. In fact, they have

been.

But as you pointed out, there are three Ph.Ds in that laboratory,

and quite candidly, that is not necessarily critical mass for the

kinds of things that we need to be able to analyze and do at these

reference laboratories as we move forward into the future. So how

do we create that kind of modern, multi-disciplinary infrastructure

is very difficult and very painful, and I welcome critical input as

well as reinforcement when it is appropriate.

We are also looking at asking independent organizational management experts to look at this and view this and give us the benefit of their perspective as well before we carry this forward as a

concrete proposal to Congress to be implemented.

Mr. STUPAK. Ms. DeGette for questions.

Ms. DEGETTE. Thank you very much, Mr. Stupak. I think that

we have beat the lack of response issue to death, and I am really

serious, Dr. von Eschenbach. We just need to get this resolved. I

think you have that message.

I want to ask you some questions about the topic of the hearing.

The first thing I want to ask you, one thing you said that I agreed

a lot with what you said is that the FDA is reviewing its current

levels of authority, particularly with respect to food safety to decide

whether it needs more authority. As you may know, I have been

working on a bill for several years to give the FDA mandatory recall authority with respect to meat. But now I am actually getting

ready to reintroduce the bill, giving broader authority for mandatory recall of all food.

Do you think that kind of authority would help maybe prevent

some bad actors from trying to sell contaminated food?

Dr. VON ESCHENBACH. This is precisely one of the areas that I

was referring to, and I do agree with you that this is an area of

the impact of a mandatory recall authority for FDA and its ability

to take care of the bad actors, if you will, is one of those explicit

things that I am hoping to pursue.

Ms. DEGETTE. When I talk to people about how the FDA doesn’t

currently have mandatory recall authority, they are shocked because they are thinking about the Consumer Products Safety Com-
499

missioner. And it seems like if we can recall child safety seats, we

should be able to recall food. Would you agree with that?

Dr. VON ESCHENBACH. I do, and we have been fortunate in that

the voluntary system has worked exceedingly well, and voluntary

recalls by the manufacturers and producers of food have worked

well. We just recently had one with baby food where Gerber, without any intervention on our part, voluntarily took the initiative to

remove a product they were concerned about.

The issue I would like to pursue is exactly the one that you

raised, which is if there are ‘‘bad actors.’’ Those are the ones we

want to focus on.

Ms. DEGETTE. But even with legitimate actors, at the peanut

butter hearing we had, while it is true that the company voluntarily eventually recalled the peanut butter, if the FDA had mandatory recall authority, I bet you there would have been much faster cooperation.

Dr. VON ESCHENBACH. Possibly so.

Ms. DEGETTE. I want to talk to you for a minute about—I know

you will be shocked—the Denver lab closure, and you talked to several members about this is a modern era, we need to look and see

whether we are working the most effectively.

The thing is though, as I understand it, these regional labs don’t

all do the same thing. Is that correct? The Denver lab does some

different things than San Francisco or Massachusetts or the other

labs, correct?

Dr. VON ESCHENBACH. That is correct.

Ms. DEGETTE. And at least in looking at, you know, I live in a

State where everybody wants to live there in Colorado, which is

part of the reason you are having a hard time getting your senior

scientists to be willing to relocate. But the way that private business is operating is with the advent of electronic communications

and computers, people are more and more working from remote locations. It seems to be, if you want to look at a modern era of working, oftentimes you can effectively and efficiently use smaller locations that network together. And I am wondering if the FDA has

looked at that kind of alternative for some of these labs where you

have scientists who have years and years of experience?

Dr. VON ESCHENBACH. Yes, if I may with your permission, I

would like to turn the microphone over to Ms. Glavin who has, for

the past 2 years, really been working through this in a layer-bylayer fashion. And the answer to your question is yes, we have

looked at it, and I would like her to give you the detail.

Ms. GLAVIN. Certainly some of the proposals to have some districts remain in place but report into another district are exactly

what you are talking about so that we don’t need as many managers, and we can have more cops on the beat I think was the term

you used earlier.

With respect to labs, of course, working at home isn’t really an

issue.

Ms. DEGETTE. Well, I am not talking working at home.

Ms. GLAVIN. Right.

Ms. DEGETTE. The Denver lab is at the Denver Federal Center,

which is a secured facility with a number of Federal agencies there.

Ms. GLAVIN. Right.
500

Ms. DEGETTE. And my question is if you have the expertise

there, if you have senior scientists who have been there for 20, 25

years and put down their roots, why wouldn’t you want to try to

find a way to help them do that job and reporting in and working

with other agencies, which they are apparently doing very effectively now?

Ms. GLAVIN. Well, and I agree that that can be done from a variety of locations, but as the commissioner has said, we have labs in

13 locations at this point. And that makes it very hard to have a

coordinated approach, and we would like to see if we can bring people together, provide them with the tools and the technology that

they need and deserve to do 21st century science.

Ms. DEGETTE. And just one last question. Has the FDA considered the balance of the hope of bringing people together doing 21st

century science with the deep loss of expertise that the FDA is

going to suffer when it closes these offices?

Dr. VON ESCHENBACH. Yes, we have, and can I just add specifically, I think your point about there being three Ph.Ds in that laboratory in Denver, and the question we have to ask is would they

benefit by being nested with a lot of other Ph.Ds with other kinds

of disciplines that would enhance their impact, and at what loss?

What would we give up in that regard? And I think that the other

side of that is can we give them an infrastructure that is adequate?

Can we give them modern facilities that have robotics so that they

could high throughput analyses and things of that sort?

It is the people, and they are the most important. But then it is

also the infrastructure that we provide for them.

Ms. DEGETTE. But there——

Dr. VON ESCHENBACH. It is a little bit of all of that.

Ms. DEGETTE. There is nobody else that does what——

Mr. STUPAK. OK, got to go now. Other Members have to ask

questions.

Ms. DEGETTE. I would ask unanimous consent for just 15 additional——

Mr. STUPAK. Seconds. I am counting.

Ms. DEGETTE. There are only three people that do that job, and

those are those three Ph.Ds in Denver. Has anybody talked to them

about whether they are going to leave and become nested in the

robotic area?

Dr. VON ESCHENBACH. I can’t speak specifically to a conversation

with those three people. We would want those three people to move

if that was what was necessary because we don’t want to lose those

people. This is not about losing expertise or eliminating function.

On the other hand, if they don’t, we have to believe that there

are at least in this country three other Ph.Ds that we could attract

and recruit to the modern, sophisticated, 21st century environment.

That is the strategy that we are applying.

The chairman asked me about our reorganization plan and other

agencies. Well, we talked a lot about the USDA with all of its array

of inspectors, and yet it only has three laboratories. And we are

talking about going from 13 to 6.

Ms. DEGETTE. Thank you.

Dr. VON ESCHENBACH. USDA has three.

Mr. STUPAK. Mr. Burgess for questions.
501

Mr. BURGESS. Thank you, Mr. Chairman. Dr. von Eschenbach,

too let me commend you for being here through this entire day, and

I know we have kept you a very long period of time. I cannot recall

having ever seen the head of a Federal agency who has been made

to sit through three panels, and it is a testament to your abilities

and willingness to get this problem solved. And I appreciate so

much you being here and listening to the testimony today. If I

could, it is on my mind because I heard—it was either CNN or

NPR this weekend—the two little girls who ate the contaminated

spinach from out in Salinas, CA year. And it kind of brought home

to me again that there was actually a problem that was sort of

identified earlier before that outbreak had occurred. And somewhere along the line, we sort of lacked the follow-through to make

certain that that was taken care of. Do I remember that correctly?

Dr. VON ESCHENBACH. I quite honestly can’t recall to testify that

that is a correct recollection.

Mr. BURGESS. But we had in testimony that we had when we did

the first series of hearings on this last spring. Said in November

2005, the FDA sent letters to growers, packers, and processors and

shippers, warning them to improve safety in view of continuing

outbreaks. The agency wrote we encourage firms to consider modifying your operations accordingly to ensure that they are taking

the appropriate measures to provide a safe product to the consumer

something we would all be in favor of. What can we learn from that

experience? How can we make sure that those products are indeed

safe? Are there other tools that you need that you need us to give

you so that going forward, we can be certain that that doesn’t happen?

Dr. VON ESCHENBACH. Well, as I indicated in my opening statement, in addressing this radical change that has occurred in production and consumption and distribution of food, the fact that

there is no such thing anymore as made in America, made in

China. It is more assembled, and even the products we are talking

about have ingredients that come from all over the place. We have

to look at this in a comprehensive way, and that is why I talk

about production to consumption or farm to fork.

So that we have a multipronged strategy to address this across

that entire continuum. One of the things FDA has not in the past

is really emphasize the front end of that, emphasize prevention.

And so prevention is going to be an extremely important part of the

plan that Dr. Acheson will be bringing forward.

And part of that prevention is to work with the producers in

terms of these good agricultural practices based on science that Dr.

Brackett is formulating so that we can assure that we are enhancing the quality before it actually even comes into our system.

And I would like to turn the microphone to him to talk a little

bit about how we could really enhance the front end using modern

science.

Mr. BURGESS. Very quickly.

Mr. BRACKETT. Thank you, Dr. von Eschenbach.

Mr. BURGESS. The chairman has a sharp gavel when it comes to

me.

Mr. BRACKETT. Yes, Mr. Burgess. I think one of the things that

we have learned a lot from that is the impact that one small tiny
502

mistake that can happen on the front end, as Dr. von Eschenbach,

can have radical change and disastrous consequences that you

mentioned before with the young children that became ill.

I think some of this has been addressed from the research needs

that have come from this. We have learned a lot in that particular

instance about how produce can become contaminated, what the results are, and getting some ideas of where to best test.

From that, what we are looking for are devices, as Dr. von

Eschenbach mentioned earlier, with the x-ray fluorescence detector,

to do the same sort of things with microbial contamination, to have

indicators to try to find out where are the hot spots because we

know that the vast majority of the fields are fine. But whenever

you have contamination in a concentrated area, that is where the

trouble starts.

And we need to have the scientific basis on which to develop

techniques and methods but also for our regulatory strategies as

well. It doesn’t do any good to have guidance and regulatory strategies aimed at things that are not actually going to improve public

health.

Mr. BURGESS. Would part of that regulatory strategy be to beef

up the recall process so that FDA has the ability to issue mandatory recalls?

Mr. BRACKETT. Well, I think that fits right in it, and also encouraging such things as perhaps a more modernized traceback system

so that we can trace these things back much faster, minimize the

damage to the patients and to the consumers as well as to the industry as a whole.

Mr. BURGESS. Now, part of the bioterrorism or mitigating the

threat of bioterrorism is syndromic surveillance where products

that are bought over the counter at drugstores, for example cold

medications, cough medications, medications to treat an upset

stomach, if there is a sudden spike in the purchase of those products, the emergency rooms and public health sectors are notified

that there may be something going on and to watch out for it. Are

you keyed into that syndromic surveillance so that the FDA knows

to look at perhaps a foodborn source as well and perhaps get a day

or two’s lead time on that?

Dr. VON ESCHENBACH. Dr. Burgess, very recently, Dr. Gerberdin,

head of the CDC, and I have put together an interagency effort to

specifically link our ability to be more effective at data sharing, information sharing because CDC is that first line of defense that

you just talked about in recognition of a foodborn illness. And then

when it becomes obvious, as it did with the spinach, that it is an

outbreak by virtue of the fact it is the same organism causing these

problems in multiple places, then it becomes FDA.

We need to be much more seamless in that recognition, detection,

identification continuum, and we are working on that as we speak

with CDC to enhance our data information sharing systems.

Mr. BURGESS. Do you have the——

Mr. STUPAK. Gentleman’s time. We want to get to, Mr. Burgess,

we are going to have votes here in a few minutes.

Mr. BURGESS. Thank you.

Mr. STUPAK. Trying to get everybody in. If we have time, we will

come back again. Ms. Schakowsky.
503

Ms. SCHAKOWSKY. Thank you. Commissioner, I really do appreciate the fact that you have been here the whole time. Had you

checked with the San Francisco district office, as our investigators

did, they would tell you that in the last 10 years, there have been

10 outbreaks in leafy green vegetables in the Salinas Valley. So Dr.

Burgess is right, and that is an important fact. And to a person,

our investigators said that your staff there believe that voluntary

guidelines have not worked and that concrete rules for both the

farm and processing operation are necessary. Do you agree?

Dr. VON ESCHENBACH. Let me be clear because this is an important issue of the distinction between a mandatory regulation and

a guidance, which is voluntary.

I have discussed this at great length with the experts, and I consider Dr. Brackett to be my most important expert, in which there

are areas, quite frankly, where the science is not mature enough

for us to be able to define a regulation that is mandatory for everyone all the time. And so what we have pursued is use of guidances

in good agricultural practices.

Ms. SCHAKOWSKY. There are no instances where you think you

have enough information to introduce mandatory rules as opposed

to voluntary guidelines? The science just isn’t there anywhere?

Dr. VON ESCHENBACH. I am not going to say the science isn’t

there anywhere. I think in large part we heard earlier today in one

of the testimonies that someone thought it might have been the

water. I have heard other people think it might have been wild

pigs running through those spinach fields. And the science is going

to have to decide what is the source of that contamination with E.

coli, and then we can put in place a regulation that would address

that.

In the meantime, what we are using are guidances that will enable us to be flexible as the science continues to evolve before we

lock into something.

Ms. SCHAKOWSKY. OK, but there is certainly a lack of confidence

right now that the FDA is doing all that it can and the Government is doing all it can. I wanted to ask you about water. Does the

FDA need congressional authority to regulate water quality and

other controls for the farm that supplies spinach and lettuce for our

grocery stores?

Mr. BRACKETT. Well, certainly the water, that surface water and

others, there is EPA authority to look at the quality of that water.

And I guess what you are asking is should agricultural water be

regulated as such. At this point, water quality is one of the things

that is addressed in good agricultural practices. That was introduced in 1998 to make sure that the water is not looked to be contaminated, such as, perhaps outwash from rivers. And so that is

one of the things that the producers are actually supposed to be

looking at is the water quality—are you sure of the water quality.

Ms. SCHAKOWSKY. The producers are supposed to be looking at

that.

Mr. BRACKETT. The producer.

Ms. SCHAKOWSKY. But what is the role of Government? Does

FDA need congressional authority to regulate water quality when

it comes to it being involved in our food production?
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Mr. BRACKETT. Well, again EPA has that for total water quality.

Whether we would need it on the food production side of it, that

is one of the things we are considering in looking at that. It

wouldn’t do any good to go requesting authority if we found out

that it wasn’t, in fact, going to be the problem or was duplicative

of what is already out there.

Ms. SCHAKOWSKY. So you are examining whether or not you need

that authority?

Mr. BRACKETT. Yes, we are.

Ms. SCHAKOWSKY. And are you also looking at voluntary versus

mandatory?

Mr. BRACKETT. Well, yes. Already water quality is part of good

agricultural practices, which is the voluntary part of it. And that

states that one must use water of acceptable sanitary quality. So

that is already there, and that is something that we do.

Ms. SCHAKOWSKY. That is a guideline?

Mr. BRACKETT. It is a guidance, yes.

Ms. SCHAKOWSKY. OK, and so none of this is mandatory?

Mr. BRACKETT. Not at this point.

Ms. SCHAKOWSKY. Are you examining that in your reorganization

and looking at your authorities?

Dr. VON ESCHENBACH. We are reexamining that in the food protection plan that I alluded to earlier, which the reorganization is

a part and separate.

Ms. SCHAKOWSKY. Right.

Dr. VON ESCHENBACH. There is a larger, more strategic agenda

that is agency-wide, and our reassessment of authorities is a part

of that.

Ms. SCHAKOWSKY. I think it is really important that you communicate with the committee about that because we may act anyway,

and so it would be a really good thing.

Dr. VON ESCHENBACH. Agreed.

Ms. SCHAKOWSKY. The other thing I want to say is that you

looked annoyed when another example was given of not answering

a letter, but it looks to me from what we heard from our investigators that there is a systematic withholding of information. When

our investigators say it is like pulling teeth to get information, we

have a responsibility too. Our responsibility is oversight. We don’t

want to have to fight with you. We don’t want to have to wait. We

want to be able to get the information that is needed for us to do

our job which is equally mandated as your job is.

Dr. VON ESCHENBACH. I apologize if my nonverbals appeared that

I was annoyed.

Ms. SCHAKOWSKY. No, you should be annoyed.

Dr. VON ESCHENBACH. I am frustrated.

Ms. SCHAKOWSKY. You should be annoyed and frustrated that

Members of Congress didn’t get an answer.

Dr. VON ESCHENBACH. I agree.

Ms. SCHAKOWSKY. But it is not some sort of unique oversight.

What we are finding is that it is systematically, when we ask questions and our investigators, who we give authority to ask questions,

aren’t given the answers that we need. So this is a more pervasive

problem. That is all I am saying. It is not like we messed up again,
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again and again and again and again. And I thank you, Mr. Chairman.

Dr. VON ESCHENBACH. Thank you. And I am committed to addressing that.

Mr. STUPAK. We have a series of votes, but I think it is only fair

to ask you about the bonuses. I want to ask you a couple questions

about that. I mentioned it publicly. We are perplexed as to why we

put in fiscal year 2006 $10 million for bonuses, and what we can

determine from data collector for HHS, just on employees who receive $5,000 more, you gave out $9.5 million in bonuses. Seems like

the extra money for food safety and food inspection went to bonuses

and then not to personnel.

Dr. VON ESCHENBACH. May I take a few moments to put that into

perspective? First of all, when I arrived at the FDA, I quickly came

to the realization that our most precious asset at FDA is our people.

Mr. STUPAK. Then why don’t you ask for the bonus money and

retention things in salaries and not in food safety money?

Dr. VON ESCHENBACH. Well, we haven’t quite done that the way

I think it has been perceived.

Mr. STUPAK. Well, members are——

Dr. VON ESCHENBACH. But the bonus dollars that are being allocated are coming from each individual allocation. We have not

transferred dollars from drugs to some place else to pay bonuses.

The bonuses that are applied, are applied out of each center’s individual allocation.

Mr. STUPAK. So then you have to cut back food safety money in

order to get the bonuses to your people?

Dr. VON ESCHENBACH. No, sir.

Mr. STUPAK. Where are you getting the money then for the

bonus?

Dr. VON ESCHENBACH. The bonuses that have been paid for people who are in, for example, the Center for Food Safety and Applied Nutrition come out of Dr. Brackett’s budget. The dollars that

are paid for bonuses for people who are——

Mr. STUPAK. Then how come we can’t find that extra $10 million

that Congress put in for food safety and inspection? We can’t find

where that money went. We just have this bonus money that shows

up——

Dr. VON ESCHENBACH. It wouldn’t go to bonuses in somebody

else’s center, I can assure you that.

Mr. STUPAK. Well, the part that bothered us was if you take a

look at employees in your office, OK, Office of the Commissioner,

collected more than 30 percent of all the top FDA cash awards in

2004, 2005, 2006. And the Office of Regulatory Affairs only received

19 percent of all the FDA’s top cash awards, yet they have 35 percent of all the FDA employees. So if you take a look at it, cash bonuses in your office these last few years went up 80 percent, where

in the same Office of Regulatory Affairs only went up 30 percent.

So as imports have increased, the FDA’s workload to do more

and more with fewer resources, the field employees’ cash awards

have actually gone done, where your office, Office of Commissioner,

the executive level, has gone way up. How do you explain that?
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Dr. VON ESCHENBACH. Well, I need to look at that specific data

to give you detail as to where those dollars are going, but I will

tell you in principle we have put in place across the agency now

a committee to look at bonuses so that we are certain that the criteria that are being used are uniform and applicable across the

agency. But it is individual centers that use their own individual

budget as a percentage of that to use for bonuses within that center. We don’t take money from one center and give it to another

to be used for bonuses.

Mr. STUPAK. Well, we have asked for that criteria, and we can’t

seem to find the purpose of it because it bothers some of us that

the FDA’s inspector of the year received a $1,000 bonus. And I

don’t think that is fair to your best investigator to get only $1,000

bonus while your management team gets like 20 times more in bonuses each year. How is that fair to that inspector who is doing the

legwork on food safety?

Dr. VON ESCHENBACH. You have performance bonuses. There are

retention bonuses, and there are different mechanisms for giving

bonuses.

Mr. STUPAK. But back to the same point. Get us the information

so we can ask the questions because from this perspective, you get

$10 million for extra in food safety in 2006, and you got $9.5 million in bonuses. It looks like all the money that went to food safety

went there. We wouldn’t be asking the questions if we have the information.

Dr. VON ESCHENBACH. I will provide you the——

Mr. STUPAK. Damned if you do and damned if you don’t. That is

basically what it comes down to.

Dr. VON ESCHENBACH. I will be happy to provide that to you.

Mr. STUPAK. All right, let me ask you—I have 55 seconds. Does

USDA get bonuses?

Dr. VON ESCHENBACH. I am assuming that other Government

agencies give bonuses.

Mr. STUPAK. Don’t assume.

Dr. VON ESCHENBACH. Certainly it is true at NIH.

Mr. STUPAK. USDA requires certification from a foreign country

that their safety regulations are at least as strong as ours in order

for them to export to the United States. Do you support a similar

certification for imports under FDA’s jurisdiction?

Dr. VON ESCHENBACH. I support working with foreign sources to

be able to continuously enhance their ability to assure the quality

of product of foods that are coming to our borders.

Mr. STUPAK. So the answer is no?

Dr. VON ESCHENBACH. At this point, I don’t have enough information to answer whether that should be mandatory across the

board. I think it is something that, as we have looked at imports,

we need to address.

Mr. STUPAK. Let me ask you this. USDA restricts imports of

products under their jurisdiction to 10 ports of entry. You have

somewhere between 326 to 361. We are still trying to get the exact

number of your ports of entry. Would you be in favor of bringing

it down to the 91 ports where you have FDA inspectors?
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Dr. VON ESCHENBACH. At this point, Mr. Chairman, I could not

be in favor of that because I don’t have a careful analysis of what

that might imply. To decide to take all of our——

Mr. STUPAK. Don’t you think that should be in your reorganization plan?

Dr. VON ESCHENBACH. Not from a perspective of forcing producers in foreign countries to only send their food to certain ports.

Mr. STUPAK. How else are you going to get it inspected?

Dr. VON ESCHENBACH. That is not part of our reorganization

plan.

Mr. STUPAK. How else are you going to get them inspected?

Dr. VON ESCHENBACH. By having inspectors with modern tools of

science deployed at the ports of entry——

Mr. STUPAK. But if you only have 91 ports of entry covered. You

only have 91 covered out of 326.

Dr. VON ESCHENBACH. Today.

Mr. STUPAK. Today.

Dr. VON ESCHENBACH. And we will look forward to continuing to

expand that as we make this transition into the FDA of the 21st

century.

Mr. STUPAK. All right, if Congress puts in reports language that

you do not close these labs until we have approved a reorganization

level, will you follow that in the report language?

Dr. VON ESCHENBACH. Well, obviously, I will always follow the

dictates of Congress, but I will——

Mr. STUPAK. But will you do it? You always say you are going

to provide information, and you don’t. But will you do it?

Dr. VON ESCHENBACH. I would hope that we would have the opportunity to further dialog on the rationale behind the proposal

and allow us to go forward with the reorganization, modernization

of FDA. We may have differences about unique features of it, but

I don’t think we should have a difference that if we continue the

way we are today we will be inadequate to address the problems

we have been talking about throughout this entire day.

Mr. STUPAK. I will bet you you will have your reorganization

done before we get the information we requested. Mr. Burgess had

a question.

Mr. BURGESS. Thank you, Mr. Chairman. And I would just like

to offer the observation—I haven’t been here that long, but it is

hard to keep and train and retain good people. So I have no problem at all with you offering retention bonuses. Just don’t tell my

staff that I said that, and we will all be in good shape.

On the FDA’s reorganization, you said that you think you can do

that without disrupting the functionality of the FDA, and yet one

of the reasons for the reorganization or one of the consequences

will be reduction in staff by perhaps several hundred full-time employees. How is that going to keep from disrupting the

functionality?

Dr. VON ESCHENBACH. May I first correct that particular issue?

This is not intended to reduce FTEs. There may be a shift in the

nature of that FTE. For example, a shift from someone who happens to be a technician in a laboratory perhaps to shift to someone

who is a field-deployed inspector using the modern technical devices I alluded to. There may be a shift but not a reduction. So I
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hope that this is not viewed as a workforce reduction plan because

it is not that.

Mr. BURGESS. So it is redeployment of existing forces?

Dr. VON ESCHENBACH. It is very much redeployment, in certain

cases, consolidation, modernization. It is more than just simply we

need to do something to save money. That is not the point.

Mr. BURGESS. So going forward in this process during the reorganization, can I ask that you keep the committee updated as to how

this is going and demonstrating that functionality is not being impaired or lost as employees are being reassigned within the organization?

Dr. VON ESCHENBACH. We are not going to allow a loss of

functionality, and we will phase this in over years. This is not

something that will happen precipitously. It is expected it may take

3 years to do whatever ultimately comes out of this plan.

The other thing I want to make absolutely clear is the people

who have testified earlier today from these laboratories are FDA’s

finest. The people in these laboratories are working extraordinarily

hard, and they are superb people. I had the privilege of giving

someone in Denver an award very recently, and I have seen the

pain that they have of facing the possibility of a relocation.

This is not about our people not having done a good job or being

inadequate or these laboratories having been failures. Just the opposite is true. These laboratories and this work force is something

I am extraordinarily proud of, but the world has radically changed

around us. And we must radically change in order to adapt and adjust to that. And we would like to do that in a deliberative thoughtful fashion so that we serve the American people to protect and

promote their health. And that is the whole purpose of this.

Mr. BURGESS. Very well. Just one last thought, Mr.——

Mr. STUPAK. Quickly. We have 2 minutes left to vote.

Mr. BURGESS. You are fast. Mr. Hubbard, when he testified put

forward the concept that we need to have some way of holding

countries that export to the United States accountable for the stuff

that they send to this country. Would you be in favor of that type

of process?

Dr. VON ESCHENBACH. That is also one of the authorities that we

are exploring so that we have much better security in protecting

what is coming into our borders, if we are unable to get the kind

of quality built in on the front end that we want. And we will be

coming back to Congress through the appropriate channels as we

further mature this protection plan.

Mr. BURGESS. I want you to have that. I hope you do come back

and ask us if you need—when I address additional tools, that

would be one I would be very happy to put in your hands.

Dr. VON ESCHENBACH. And we are also working, as the chairman

indicated, in close coordination with the Department of Health and

Human Services and all of its agencies as well as counterparts outside of the agency as we address this protection of our borders and

homeland security.

Mr. BURGESS. Thank you, Mr. Chairman. I will yield back.

Dr. VON ESCHENBACH. Mr. Chairman, I will leave my colleagues

with your permission.
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Mr. STUPAK. We have seven votes. I don’t think it would be fair

for your colleagues to sit for another hour unless Mr. Burgess has

questions of other. So we will excuse this panel and thank you very

much for coming.

Dr. VON ESCHENBACH. Thank you, Mr. Chairman, and thank you,

all the members of the committee, for your commitment to the

FDA.

Mr. STUPAK. That concludes our questioning. I want to thank all

of our witnesses for coming today and for your testimony. I ask

unanimous consent that the hearing will remain open for 30 days

for additional questions for the record. No objection. The record will

remain open. I ask unanimous consent the contents of our document binder be entered in the record. I will also note that the documents provided by the FDA to justify the bonuses in exhibits 47

through 56 are included in the binder, but the volume of supporting documents, several boxes, will be retained in the subcommittee

files for access and review. No objection. Documents will be entered

into the record. That concludes our hearing. Without objection, this

meeting of the subcommittee is adjourned.

[Whereupon, at 3:10 p.m., the subcommittee was adjourned.]

[Material submitted for inclusion in the record follows:]

STATEMENT HON. RICHARD J. DURBIN, A SENATOR FROM THE STATE

OF ILLINOIS

Mr. Chairman, I want to begin by commending you for calling this hearing and

to thank you very much for the opportunity to present written testimony.

The issue of food safety has been one of my top legislative priorities for more than

10 years. I am disappointed to report that the recent string of food recalls does not

surprise me. Unfortunately, Mr. Chairman, we have an antiquated food safety system that is in desperate need of additional resources and updated statutory authority. While the United States continues to have the safest food supply in the world,

our food safety standards and practices have been eclipsed by some of our major

competitors.

Our food safety system is particularly deficient in the area of food imports. The

recent recalls of contaminated pet food, seafood, toothpaste, and other imported food

products have demonstrated that we need to make changes in this area.

The volume of food that the United States imports has increased significantly in

recent years, from $45.6 billion in 2003 to $64 billion in 2006. According to the

USDA, imported food accounts for 13 percent of the average American’s diet, including 31 percent of fruits, juices, and nuts; 9.5 percent of red meat; and 78.6 percent

of fish and shellfish.

This upward trend in imported food has been accompanied by an increasing number of health and safety incidents related to imported food products. In the past 6

months, we have seen what appears to be the intentional contamination of wheat

gluten and rice protein concentrate with melamine, which is an industrial product

that should never find its way into food products. In addition, we recently learned

that a significant volume of imported seafood products from China have been contaminated with chemicals and residues, including Malachine green and Nitrofuren.

We have found imported Chinese toothpaste in the U.S. that was contaminated with

diethylene glycol, which is a toxic component used in antifreeze.

Unfortunately, the FDA currently lacks the resources and authority to adequately

determine the quality and safety of food imports, inspect an adequate volume of imported food, and rapidly detect and respond to incidents of contaminated imports.

What has been made clear by the pet food recall and other outbreaks of food borne

illnesses is that the FDA is a severely under funded and understaffed agency. Much

of the responsibility for overseeing and inspecting the safety of imported food rests

with the FDA. However, due to flat budgets and increasing responsibilities, the

number of inspectors looking at these shipments has actually decreased from more

than 3,000 inspectors in 2003 to the present level of around 2,700 inspectors.

The Centers for Disease Control, CDC, estimates that 76 million Americans become sick from food borne illnesses each year. More than 300,000 are hospitalized
510

and 5,000 die each year. Less than 1.5 percent of imported food is inspected by the

FDA and the FDA lacks the resources and authorities to certify the standards of

our trading partners. This situation presents an economic, public health, and bioterrorism risk to the U.S.

The FDA office that is responsible for regulating more than $60 billion of imported food, the Center for Food Safety and Nutrition, CFSAN, is also responsible

for regulating $417 billion worth of domestic food and $59 billion in cosmetics. All

of this activity is regulated by an office for which the President requested $467 million in fiscal year 2008. Only $312 million of that amount would be for inspectors.

We clearly need to review FDA’s funding to make sure that it has the resources necessary to safeguard the 80 percent of our food supply that it is responsible for regulating. For this reason, a group of my colleagues and I sent a letter earlier this year

to the Agriculture Appropriations Subcommittee, which funds the FDA, asking for

a significant increase in the level of funding for the FDA foods program.

In addition to working for increased appropriations for the FDA foods program,

I recently introduced legislation in the U.S. Senate, the Imported Food Security Act

of 2007 (S. 1776), that is designed to close the gaps in FDA’s imports program and

improve the standards for imported food.

The legislation does three things. First, the bill would impose a fee for the FDA’s

oversight of imported food products. These fees would generate revenues to be used

for increased inspections of imported food and critical food safety research. The legislation would also establish a food importer certification program that would require foreign firms and governments to demonstrate that their food safety systems

are equivalent to ours.

Imports present a special challenge to the FDA. It may cost more to ensure the

safety of food produced in other countries, and the logistical challenges are greater.

It is important that we supplement the FDA’s budget with additional funding

streams to make sure that it has the resources necessary to safeguard our food supply from contaminated imports.

This legislation would direct the FDA to collect a user fee on imported food products, for the administrative review, processing, and inspection costs borne by the

FDA. The legislation directs the FDA to use some of this funding to perform cuttingedge research to develop testing technologies and methods that would quickly and

accurately detect the presence of pervasive contaminants such as E. coli and listeria.

In addition, the legislation would use this funding stream to bolster FDA’s import

inspection program, which currently inspects less than 1.5 percent of all imports.

My hope is that this legislation would give the FDA the resources it needs to double

or triple the percentage of shipments that are inspected each year and focus its limited resources on the shipments that present the greatest risk to human health.

Lastly, this bill would establish an imported food certification program. Today,

any country and any company can export food products to the United States as long

as they inform regulators of the shipment. No checks are performed to ensure that

the producer has adequate sanitary standards. The FDA does not ensure that trading partners have equivalent regulatory systems or inspect overseas plants when

problems arise.

When the FDA does want to investigate an outbreak, it can be delayed by uncooperative foreign governments. For example, during the pet food recall, U.S. regulators were delayed three weeks in their request for visas to inspect facilities.

This new program would mark a watershed change in the food import safety posture of the U.S. This bill says that if you want a slice of the lucrative U.S. market,

you have to comply with the same common-sense standards that apply to U.S. food

producers. You have to have equivalent food safety systems and processes in place

to those of the Unied States. You need to give U.S. regulators access to your facilities and records so they can check your safety record without unnecessary delay.

In addition, U.S. regulators would have the power to revoke the certification of a

company or country that fails to comply, and to detain products that fail to meet

U.S. standards.

For too long, we have gone without a solid safety standard for imported foods. Instead, our regulators jump from alert to alert and recall to recall. This legislation

would close these loopholes that allow dangerous imports into our country and put

a solid, proactive system in place to protect our food supply.

In addition, Mr. Chairman, I would like to mention one other issue that I believe

would significantly improve the food safety system we have in place today. Because

the FDA lacks the authority to order recalls, we depend on a system of voluntary

or cooperative recalls, in which the FDA works with companies to pull products from

shelves and notify consumers and retailers of defective products.

In most instances, this system functions well because food companies have a concerted interest in protecting their brands and taking aggressive action to ensure the
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health and safety of their customers. However, in some instances, food companies

do not fully cooperate with the FDA—they delay in sharing information or implement recalls slowly and unevenly. Part of the reason why these situations occur is

because there is no requirement in statute, regulation, or even guidance that informs companies of when they are required to report serious adulterations of food

and what notifications they are required to make.

The net effect of this is that human health is put at risk, consumer confidence

in food decreases, and companies find themselves in uncertain situations about

when and how to conduct recalls. It is inevitable that at least once a year, we see

slow, uneven, and ineffective recalls that don’t remove product from shelves and

that need to be expanded.

The Senate-passed Prescription Drug User Fee Act of 2007 (PDUFA) contains language that I co-authored with Chairman Kennedy that would fix this shortfall in

our regulatory environment. The language creates a reporting system for significant

adulterations of food that clarifies when food companies are required to report adulterations of food to the FDA and what they are then required to do to notify retailers, suppliers, and consumers of these health risks. It is a non-controversial approach that clarifies the legal requirements of food companies and improves the

FDA’s ability to protect consumers from adulterated food.

In the next couple of weeks, the House and Senate will go to conference on

PDUFA. I believe that including the language from the Senate bill would make a

significant step toward improving our food safety system.

Thank you again, Mr. Chairman for allowing me to present testimony at this

hearing and I look forward to continuing to work with you on this issue.

STATEMENT OF HON. ED PERLMUTTER, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF COLORADO

I would like to go on record to voice my strong opposition to the proposed closure

of seven of the 13 FDA field laboratories, including the Denver District Laboratory,

located in the Seventh Congressional District, in Lakewood, Colorado. The Denver

District Laboratory, located at the Denver Federal Center, a GSA owned and operated facility, is an award winning lab. Many of the employees at this facility have

vast experience and an invaluable research knowledge base. Furthermore it is

doubtful these same employees would move to any of the consolidated laboratories,

which under the proposed consolidation would be in Arkansas.

The FDA has yet to provide any evidence supporting that the proposed closures

and consolidation would lead to better safety standards for our Nation’s food supply,

pharmaceutical products, medical equipment, cosmetics and other health-related

products for safety and effectiveness and ensuring that the products are labeled

properly.

The fact of the matter is these FDA lab closures are purely economic in nature

and do not take into account the safety of our citizens. I understand the need to

be good stewards of our tax dollars, but we must not risk or compromise the health

and safety of our Nation. As a proud member of the House Homeland Security Committee, I understand the importance and responsibility entrusted to Members of

Congress to ensure the safety of our Nation and the FDA’s closure of these laboratories is contrary to that duty.

Time and again the Denver District Laboratory has performed critical research

for our Nation. Recently, the FDA asked the Denver laboratory to assist in evaluating the levels of the contaminant melamine in animal feed used to raise food for

human consumption. The FDA asked the Denver laboratory to quickly develop a

methodology to quantify melamine residues in fish tissues. Because melamine has

not been approved as a food additive, no published types of analysis were available

for its determination in fish. In less than 2 weeks, the lab developed, validated and

submitted the method for publication, and made it available for national distribution to all state and Federal laboratories. As of June, the Denver District Laboratory

continues to be the only FDA laboratory capable of testing seafood samples for the

presence of melamine.

The FDA failed to address several key components for their rationale for justifying the closure of seven field laboratories including how they are going to fund the

laboratory closures. The agency has yet to reveal a plan to recover the loss of experience, knowledge and scientific expertise resulting due to potential FDA laboratory

consolidation. Additionally, the FDA has yet to explain why they are displacing

their more senior employees while hiring new employees.
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The closing and consolidation of the Denver District Laboratory would leave a

large geographic gap in the Nation’s ability to monitor and maintain food and drug

safety and research. Under the FDA’s closure plan, the closest lab to the two on the

west coast (Seattle and Los Angeles) would be in Arkansas. This would leave the

entire Rocky Mountain region and large parts of the Midwest without a close field

lab. Denver is a major transportation and commerce hub with major links to a vast

portion of our country. I believe these lab closures will compromise the safety and

security of our nation.

In light of the increased contaminants found in both domestic and imported food

sources, and in particular recent contaminations of both pet and human food from

China, I fail to see how the closures of seven FDA field laboratories will assist in

making our Nation safer. The FDA has failed to provide adequate reasons for justifying these closures.

In conclusion, I would like to reiterate my opposition to closing these field labs

and in particular the Denver District Laboratory in the Denver Federal Center in

Lakewood, CO, in Colorado’s Seventh Congressional District.
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