Loophole keeps FDA in the dark on tainted food imports

SAN FRANCISCO -- About 150 imported food shipments a month are tested at a laboratory here for contaminants consumers shouldn't eat, like mercury in swordfish, salmonella in shrimp and filth in mushrooms.

At least 10% of the time, the lab finds the shipments contaminated, says David Eisenberg, chairman of Anresco Labs.

Most of the time, the lab tells no one but the importer who's paying for the test, Eisenberg says. The Food and Drug Administration is none the wiser.

The practice has been going on for years, at Anresco and other labs that test imported food. The FDA gets the favorable test results, but failing ones aren't sent to the FDA if importers tell labs not to send them, five lab operators told USA TODAY.

This is not news to the FDA, which regulates most of the imported foods consumers eat. There is no regulation requiring labs to send all tests to the agency. The FDA proposed that in 2004 but never followed through.

Even now, with imported food safety high on Congress' priority list, nobody has proposed closing that loophole. Some lab operators say it should be because it puts the public at risk and forces labs to sacrifice full disclosure in order to retain importer clients. "We don't lie. We have to do what we have to do to … keep our customers. We're working for the importer," Eisenberg says.

He says the FDA's failure to require labs to submit all test results forces labs to protect importers more than the public. He also says the situation undercuts confidence in the private lab industry, which he wants the FDA to entrust with more testing on imported foods.

"The system is my big complaint," Eisenberg says. "I figure Anresco and the public will benefit from an honest system."

Keeping failing results from the FDA doesn't necessarily mean that bad food gets past the FDA to consumers. Without a passing test result, the food the labs test automatically gets rejected by the FDA as unfit.

The concern is that unscrupulous importers who get bad test results from one lab will hire another lab to test the food, get a passing result and give only that to the FDA. The agency would then likely give the food a green light for sale in the USA.

"The idea is the importer will go to a different lab and hope to get a different result," says Lars Reimann, chief scientific officer for lab Eurofins Scientific.

Like Eisenberg, Reimann says he's had importers threaten to take business elsewhere if labs insist on reporting results showing tested products violated FDA standards.

Rolando Perez, technical director of Florida's Adpen Laboratories, says his lab has been recently threatened with lawsuits by Chinese seafood producers who didn't want bad results submitted to the FDA. He also says he's had importers take product that his lab found in violation to another lab for retesting.

The situation "puts us in a bind," Perez says. "We're supposed to be an independent lab."