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U.S. Department of Health and Human Services

Inspections, Compliance, Enforcement, and Criminal Investigations

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Shawn Bender 5/22/14

  

Department of Health and Human Services logoDepartment of Health and Human Services

Public Health Service
Food and Drug Administration
 
New York District
158-15 Liberty Avenue
Jamaica, NY 11433 

 

May 22, 2014
 
WARNING LETTER NYK-2014-36
 
VIA UNITED POSTAL SERVICE
DELIVERY SIGNATURE REQUESTED
 
Mr. Shawn M. Bender, Co-Owner
Shawn & Yvonne Bender dairy farm
5930 Lee Road
Glenfield, New York 13343-4022
 
Dear Mr. Bender:
 
On March 11, 17, and 28, 2014, the U.S. Food and Drug Administration (FDA) conducted an investigation of your dairy operation located at 5930 Lee Road, Glenfield, New York 13343-4022. This letter notifies you of the violations of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) that we found during our investigation of your operation. You can find the FD&C Act and its associated regulations on the Internet through links on FDA’s web page at www.fda.gov
 
We found that you offered for sale an animal for slaughter as food that was adulterated. Under section 402(a)(2)(C)(ii) of the FD&C Act, 21 U.S.C. 342(a)(2)(C)(ii), a food is deemed to be adulterated if it bears or contains a new animal drug that is unsafe under section 512 of the FD&C Act, 21 U.S.C. 360b. Further, under section 402(a)(4) of the FD&C Act, 21 U.S.C. 342(a)(4), a food is deemed to be adulterated if it has been held under insanitary conditions whereby it may have been rendered injurious to health.
 
Specifically, our investigation revealed that on or about August 12, 2013, you sold a dairy cow, identified with ear tag (b)(4) and back tag (b)(4), for slaughter as food. On or about August 13, 2013, (b)(4), slaughtered this animal. United States Department of Agriculture, Food Safety and Inspection Service (USDA/FSIS) analysis of tissue samples collected from this animal identified the presence of cefazolin in the kidney. FDA has not established a tolerance for residues of cefazolin in dairy cows to be processed for human food. The presence of this drug in edible tissue from this animal causes the food to be adulterated within the meaning of section 402(a)(2)(C)(ii) of the FD&C Act, 21 U.S.C. 342(a)(2)(C)(ii).
 
Our investigation also found that you hold animals under conditions that are so inadequate that medicated animals bearing potentially harmful drug residues are likely to enter the food supply. For example, you failed to have a system in place to control administration of drug treatments to your animals and you failed to maintain complete treatment records. Food from animals held under such conditions is adulterated within the meaning of section 402(a)(4) of the FD&C Act, 21 U.S.C. § 342(a)(4).
 
We also found that you adulterated the human drug Cefazolin for Injection, USP, NDC #0781-3451-70. Specifically, our investigation revealed that you did not use Cefazolin for Injection, USP as directed by its approved labeling or by the servicing veterinarian’s prescription. Use of this drug in this manner is an extralabel use. See Title 21, Code of Federal Regulations (C.F.R.), Section 530.3(a) (21 C.F.R. 530.3(a).
 
The extralabel use of approved animal or human drugs in animals is allowed under the FD&C Act only if the extralabel use complies with sections 512(a)(4) and (5) of the FD&C Act, 21 U.S.C. 360b(a)(4) and (5), and 21 C.F.R. Part 530, including that the use must be by or on the lawful order of a licensed veterinarian within the context of a valid veterinarian/client/patient relationship.  
 
Our investigation found that you administered Cefazolin for Injection, USP, NDC #0781-3451-70, to a dairy cow identified with ear tag (b)(4) and back tag (b)(4) without following the conditions for use and species class (i.e. not for milking cows) as stated in your servicing veterinarian’s prescription. Your extralabel use of Cefazolin for Injection, USP was not under the supervision of a licensed veterinarian, in violation of 21 C.F.R. 530.11(a) and your extralabel use of Cefazolin for Injection, USP, NDC #0781-3451-70, resulted in illegal residues, in violation of 21 C.F.R. 530.11(c). In addition, Cefazolin for Injection, USP is prohibited for extralabel use in cattle by 21 C.F.R. 530.41(a)(13)(iii). Because your use of this drug was not in conformance with its approved labeling and did not comply with 21 C.F.R. Part 530, you caused the drug to be unsafe under section 512(a) of the FD&C Act, 21 U.S.C. 360b(a), and adulterated within the meaning of section 501(a)(5) of the FD&C Act, 21 U.S.C. 351(a)(5).
 
The above is not intended to be an all-inclusive list of violations. As a producer of animals offered for use as food, you are responsible for ensuring that your overall operation and the food you distribute is in compliance with the law.
 
You should take prompt action to correct the violations described in this letter and to establish procedures to ensure that these violations do not recur. Failure to do so may result in regulatory action without further notice such as seizure and/or injunction. 
 
You should notify this office in writing of the steps you have taken to bring your firm into compliance with the law within fifteen (15) working days of receiving this letter. Your response should include each step that has been taken or will be taken to correct the violations and prevent their recurrence. If corrective action cannot be completed within fifteen (15) working days of receiving this letter, state the reason for the delay and the time frame within which the corrections will be completed. Please include copies of any available documentation demonstrating that corrections have been made.
 
Your written response should be sent to LCDR Frank Verni, Compliance Officer, U.S. Food and Drug Administration, 158-15 Liberty Avenue, Jamaica, New York 11433. If you have any questions about this letter, please contact Compliance Officer LCDR Frank Verni at (718) 662-5702 or Email at Frank.Verni@fda.hhs.gov.
 
Sincerely yours,                                   
/s/ 
Ronald Pace                                       
District Director                                 
New York District