FDA wants to regulate Amazon’s fulfillment centers as food facilities. Amazon begs to differ.

That’s despite the fact that FDA turned up food safety issues at the facility during both of its inspections. When I looked at FDA’s records for those visits, I found that the agency noted “foodborne biological hazards” in both 2010 and 2013, and an additional violation in 2013 of the Radiation Control and Health Safety Act. (The public reports don’t get more specific, and FDA did not respond to my request for more information by press time.)

For its part, Amazon has insisted it’s doing nothing wrong. According to a report reviewed by MarketWatch, the company has claimed to investigators that it is a retail company, and therefore doesn’t need to register with FDA. The government has disputed that designation in its dealings with the company, according to the article.

Which means, for now, that the company is likely sticking with self-policing—at least in Lexington. “Food and product safety are top priorities for Amazon,” an Amazon spokesperson told The New Food Economy, in an emailed statement. “Our fulfillment centers are not only permitted as required by state and local health departments, but we have a robust food safety program to ensure our products are safe for our customers.” The company did not answer my more specific questions about whether other facilities remained unregistered, or whether it disputes its designation as a “food facility” more generally.

Legally, FDA has the right to penalize an unregistered facility, including by revoking its right to sell goods. But it hasn’t done so in Amazon’s case, which brings up another issue. The agency rarely takes enforcement action against food facilities, even when it finds serious violations.

According to a 2017 report from the Department of Health and Human Services’ Office of the Inspector General (OIG), 22 percent of significant food facility inspection violations met with no action from FDA. How serious is “significant”? The three examples provided by the report aren’t for the faint of heart: Salmonella contamination at a pepper processing plant in New Mexico; live birds and crickets rampant in a Washington tofu facility; live and dead pests throughout a cheese factory in Kentucky, as well as an employee found stirring curds with his bare hands.

In most instances like these, FDA took only “advisory” action—essentially, issuing a verbal warning and allowing the facility to clean up its act voluntarily. This widespread practice has led to accountability issues, according to OIG.

“If FDA takes no action in such cases, facilities may not correct the violations; this undermines FDA’s efforts to ensure that the food supply is safe,” the 2017 report said. “When FDA did take action, it most commonly relied on facilities to voluntarily correct significant inspection violations; these actions were not always timely nor did they always result in the correction of these violations.”