Pandemic’s Effects on Food Manufacturing, for Better or Worse, Could Linger

By Eric F. Greenberg, Attorney-at-law

July 2021

It’s the A, B, Cs of food manufacturing and packaging. Building-in controls that assure food safety and quality are the very essence of any good food operation. The law requires it, the regulations require it, private standards certifications require it, and just good common sense requires it. That’s why food making and packaging operations incorporate preventive controls, Good Manufacturing Practices, and QA and QC steps, and regularly reevaluate what they’re doing and make adjustments. And it’s all a lot of work.

And yet, the COVID pandemic presented a different kind of challenge, because it implicated worker safety as much as, or more than, food safety. Recall the early headlines about workers in the meat and poultry realm being pounded by the pandemic. But really, every food packager has been confronted with the new and different pandemic-related challenges, including policies for personal protective equipment, distancing, and other practices for their workers.

The U.S. Food and Drug Administration, which regulates most foods sold in the U.S., also responded to the new challenges to food making and distribution. Early in 2020, FDA made clear that it doesn’t appear that COVID-19 transmission from packaging surfaces was a high-risk worry, and also said, “Foodborne exposure to this virus is not known to be a route of transmission.” Still, it moved quickly, not waiting for prior public input, and instead immediately issued some new guidance documents. For example, it told food makers it wouldn’t object to some packaged food that was labeled for use in restaurants (and that lacks Nutrition Facts information) being distributed generally, issued temporary new guidance for the packaging and labeling of shell eggs, and backed off on some requirements relating to the Foreign Supplier Verification Program.

In all, FDA issued 11 different guidance documents relating to different aspects of food and beverage manufacturing operations. But those changes in policy will apply only during the pandemic emergency timeframe. (It also issued many more announcements relating to drug and medical device regulation.)

What about COVID’s effects on operations within the food manufacturing facility itself? Well, it seems that the pandemic inspired a renewed focus on food safety because of the kinds of enhanced practices it caused food packagers to implement. Beth Anne Baker of consulting firm Compliance Insight, Inc. observes that “COVID brought new light to food manufacturing facilities in 2020. It forced establishments to scrutinize programs such as visitor/contractor policies, employee infection control plans, attendance policies (those that penalize employees for staying home when sick), and sanitation programs.”

Gary Ritchie, also from Compliance Insight Inc., notes “The COVID-19 pandemic is a reminder to all employers and employees that the number one threat to the processing of foods and related packaging is insanitary conditions. The pandemic provides an opportunity for quality management to review the key factors contributing to a dirty workplace and unhealthy workers where poor cleaning of equipment and facility housekeeping practices are not performed regularly.”

Another consultant, Dr. Kathy Knutson of Kathy Knutson Food Safety Consulting, LLC, sees a silver lining in the pandemic’s effects on food production. She says that more workers may finally be getting the message about pathogen control and the importance of seemingly simple steps like hand washing. It’s always been so, she says, that “Managers emphasize not taking short cuts” in all aspects of a manufacturing operation, notably regarding hand washing, and many companies, she says, have changed or re-emphasized a range of safety practices, including hand washing and policies about monitoring worker illnesses. She says, “I hope that stays.”

Knutson also thinks the pandemic inspired new attitudes toward supply chain issues, forcing companies to think ahead and consider stockpiling personal protective equipment or food ingredients, in contrast to the more modern just-in-time concepts.

FDA is thinking ahead, too, trying to assure its COVID response is effective but also to be ready for the next crisis. In January 2021, FDA issued a report on its COVID-19 Pandemic Recovery and Preparedness Plan (PREPP) initiative, which the agency and a private sponsor created in 2020. “The purpose of PREPP has been to identify opportunities that strengthen our on-going COVID-19 response and build the Agency’s resilience to respond to future public health emergencies” that require swift action involving medical products and put pressure on the food supply chain. The report lists 12 “actions to consider” that would, for example, help FDA act more quickly and effectively regarding clearance of new medical products, strengthen supply chain surveillance for regulated products, and better use available communications technologies.

Of course, packagers shouldn’t leave all the planning to the regulators. Knutson thinks packagers ought to continue to be focused on tight procedures, including those imposed during the pandemic. One big reason is that the common expectation among consultants and other observers is that FDA facility inspections, slowed during the pandemic, will come back soon, “with a vengeance.”  PW

Eric Greenberg can be reached at [email protected]. Or visit his firm’s Web site at www.ericfgreenbergpc.com.

INFORMATIONAL ONLY, NOT LEGAL ADVICE.
This article is informational only and is not intended as, and should not be considered to be, legal advice..

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WHAT ONE COURT CASE CAN TEACH

What One Court Case Can Teach

By Eric F. Greenberg, Attorney-at-law

To help understand the recent scourge of private lawsuits brought against food packagers over the information on their product labels, let’s dive deeply into the recent decision in Mazella v. The Coca-Cola Company, in which consumers in New York State sued Coke claiming its bottled Gold Peak iced tea was misleadingly labeled as being “slightly sweet.” Spoiler alert: The case was dismissed—that is, thrown out—by the judge. I’ll discuss the judge’s lengthy Opinion and Order from July 21. (I can send you a copy if you ask for it at my email address below.)

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