Publisher’s Platform: Is it illegal to sell recalled food? Hell yes it is

A week ago one of my food safety followers on Twitter sent me this photo that was apparently circulating offering for sale on eBay a product that was recalled over a decade ago.  They asked if it was legal for someone to sell a recalled food product.

First, after a quick search on eBay I did not see the product still for sale, but it did pique my interest in the question.

Setting aside that it is stupid to try and sell (at an outrageous mark-up) a recalled product that was known to be contaminated with Salmonella, the answer is that it is illegal as viewed from the FDA and  is  against eBay’s own policies.

For a bit of history, this Salmonella outbreak sickened a total of 715 cases that were identified in 48 states. Patients had a median age of 53 years (range, 2 months to 95 years); 519 of 708 (73%) were female. Among 707 Salmonella isolates where specimen site was available, 421 (60%) were from stool specimens, 264 (37%) were from urine specimens, and 22 (3%) were from other or multiple specimen sources. The median age of patients with urine isolates was 62 years (range, 2 to 94 years), compared with 48 years (range, 2 months to 95 years) for patients with stool isolates. Ninety-four percent (247/263) of patients with urine isolates were female, compared with 62% (257/416) of patients with stool isolates .

Although the outbreak slowed after the  product was recalled in February, cases continued to be confirmed after this time period. The cases were ultimately linked to the consumption of Peter Pan and Great Value brand peanut butter manufactured in ConAgra’s Georgia peanut butter plant. Any Peter Pan or Great Value brand peanut butter beginning with product code 2111 was recalled in response to the outbreak investigation.

So, here is the illegal part.

The Federal Food Drug and Cosmetic Act under 21 US §331 – Prohibited acts:

21 US §321 defines “person” to include “individual, partnership, corporation, and association.”

21 US §331 prohibits (a) the introduction or delivery for introduction into interstate commerce of any food….that is adulterated.

21 US §333 then states: (1) any person who violates a provision of section 331 of this title shall be imprisoned for not more than one year or fined not more than $1,000 or both.

Clearly, any person selling a recalled product – for whatever purpose – is doing an illegal act under the Federal Food Drug and Cosmetic Act .

Also, eBay’s Product Safety Policy make clear that it is against its own policy to sell the product.  The rule is that selling products that pose a health or safety hazard aren’t allowed.  To ensure the safety and well-being of our members, eBay does not allow listings for items that are banned, recalled, or dangerous to a buyer. The following types of items are not allowed:

• Products recalled by a manufacturer or government agency
• Products where the sale of the product is prohibited by law or regulation
• Products that pose a health or safety hazard as specified by any government agency

Well, that all seems pretty clear.

Someone also reminded me that we had a similar problem in 2017, both with online and retail sales of a recalled product.

The CDC reported that thirty-two people infected with the outbreak strains of STEC O157:H7 were reported from 12 states.

Illnesses started on dates ranging from January 4, 2017 to April 18, 2017. Ill people ranged in age from 1 to 70 years, with a median age of 9. Twenty-six (81%) of the 32 ill people were younger than 18 years. Among ill people, 59% were male. Twelve ill people were hospitalized, and 9 people developed hemolytic uremic syndrome, a type of kidney failure.

The recall happened on March 3, 2017, but recalled product continued to surface for months until the FDA posted this notice: