Natural Products Insider

MAR-APR 2019

INSIDER is the leading information source for marketers, manufacturers and formulators of dietary supplements, healthy foods and cosmeceuticals. Since 1997, INSIDER has been serving the needs of the global nutrition industry.

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46 INSIDER March/April 2019 The hypothetical sauce company Tasty Peanut Sauce is a young food company focused on building a name in a highly competitive marketplace. As the head of a startup, Tasty's hypothetical CEO has a hundred concerns keeping him up at night. High on his list? He's been reading about pathogen outbreaks and is well aware recalls can cost companies millions of dollars and even have resulted in executives going to jail. It's gotten so bad that he's now having nightmares about a product recall, so he calls his outside legal counsel for advice. Here's a transcript of a call where the company's hypothetical lawyer tries to help him come to terms with his fears. The Session Begins CEO: I've been having terrible nightmares about a potential recall. Am I crazy? Or is Tasty Peanut Sauce a sitting duck? Lawyer: You're not crazy. Food companies have been issuing quite a few recalls, and they're under the microscope of government agencies and plaintiffs' lawyers. I wish I could point you to a single cause to look out for, but a host of triggers are tough to avoid. You could face a recall due to mislabeling, undeclared ingredients, contamination during production, or even issues with adulterated ingredients from suppliers further down the food chain. No matter how carefully you try to avoid a recall, you may have to conduct one. The best thing you can do is to try to avoid a problem, and preemptively plan for one, so you're not taken by surprise. Preemptive Plan CEO: Where would I start if I had to deal with a recall? Lawyer: You fi rst want to discover the source, root cause and extent of the problem. That means Tasty should develop and implement a traceability program for your suppliers and ingredients. After that, you'll need to locate where your affected products have been shipped. In addition, Tasty must be able to rapidly communicate with distributors and customers. All of this is important, but ideally you want to do everything possible to not go down this path. Prevention should be your top priority, and that starts by cultivating a food-safety culture at Tasty that institutes manufacturing best practices, including monitoring facilities with spot checks to ensure safe operating procedures. CEO: Sounds like we need a plan in case we must recall our sauce. Correct? Lawyer: Absolutely. A formal recall plan is not only an essential manufacturing best practice, but it is mandated in several laws. You must have a team prepared in advance to implement the recall, and they must be well-trained on the necessary steps to execute the plan. It can't be a plan that sits in a fi le drawer. CEO: I already have so much on my plate. Do I need to drop everything to get on this? Lawyer: The coordination of the recall itself doesn't have to fall on your shoulders, although you should take the lead in planning. You can assign the overall coordination of any recall situation to a trusted senior executive. This recall manager should then identify a "recall team" made up of managers and other key personnel throughout the company who can contribute to the management or implementation of a potential recall. That said, you can't stick your head in the sand. When it comes to product safety, the buck stops with you. Test the Plan CEO: I guess we should write a plan, appoint a point person and wait. Lawyer: You can't sit back and wait for the hammer to fall. The best food companies test their response plans by conducting simulations. A table-top exercise can reveal defi ciencies in your response protocols and help familiarize the team with their roles and the procedures to be implemented in a recall. CEO: If we simulate a recall, who should be involved? Lawyer: The recall manager should decide who to keep informed as the recall unfolds. In most situations, that includes consumers, distributors and retailers, Tasty's fi nancial lenders, media outlets and regulatory bodies. Statements and key messages should be tailored to each audience, so Tasty is addressing the specifi c aspects of the recall that affect them. I suggest you turn to public relations (PR) experts with knowledge and experience in working on food recalls for help in creating and disseminating these messages, especially if it involves the use of social media, where misinformation and poorly worded responses can spread quickly and tarnish all the good work you're doing. The Mouthpiece CEO: If we have a recall, should I be prepared to be the "face" of the company? Lawyer: Not necessarily. In some cases, you can appoint a spokesperson with excellent communication skills. Depending on the scope of the recall, you might fi nd it useful to pair them Product Recall Therapy by Ronald J. Levine Legal Insights

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