Secret Sugar Can Claim "Confidentiality" in Food Recall

August 3, 2016

Consumers learned in late July of a "voluntary" recall of some processed food products due to possible metal fragments in sugar used to make them. The manufacturers weren't required to recall the products or notify consumers — but they did so anyway.

But the source of the contaminated sugar remained secret, because the Food and Drug Administration is not legally required to disclose it. The incident illustrated the lopsided deference that much federal law gives to claims of "trade secrets" — putting protection of companies above protection of the public.

In practice, claims of trade secrecy — whether in consumer protection laws or environmental protection laws — often go unjustified and unchallenged. In the case of the secret sugar, the problem is not only the weakness of the Food, Drug, and Cosmetic Act, but the Trade Secrets Act and the trade secrets exemption to the Freedom of Information Act.

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