Food Poisoning Lawyer & Attorney : Marler Clark : Marler Blog

This is the first part of a multi-part series on the Pros and Cons of Commercial Irradiation of Fresh Iceberg Lettuce and Fresh Spinach.  Given the recent outbreaks, hopefully this is timely.

On August 22, 2008, FDA published a final rule for the safe use of ionizing radiation (also termed irradiation, irradiation pasteurization, cold pasteurization) of fresh iceberg lettuce and fresh spinach for control of foodborne pathogens, and extension of shelf-life. A few weeks later, the US Government Accountability Office (GAO) released a report entitled, “Improvements Needed in FDA Oversight of Fresh Produce.” This report states that FDA’s intervention efforts for reducing the risk of contamination during the processing of fresh-cut produce have been limited. Interestingly, the GAO reviewers only briefly mention irradiation, and brought little context to the implications of introducing irradiation as a potential control (“kill”) step during produce processing.

Currently, a serious outbreak of E. coli O157:H7, possibly linked to iceberg lettuce, is unfolding in Michigan and other parts of the United States. Since 1995, the FDA has documented at least 22 other E. coli O157:H7 outbreaks traced to leafy greens likely contaminated before retail distribution, including a number of outbreaks involving fresh iceberg lettuce and spinach. Clearly, there is a need for improved methods to prevent contamination of produce before it reaches the consumer.

Most food safety experts would agree that there is no silver bullet (defined by Webster’s dictionary as “a magical weapon ; especially : one that instantly solves a long-standing problem”) to guarantee protection of any food from contamination. The use of comprehensive “farm-to-table” approaches is well accepted as the best way to combat the complex problems in food safety.

Where does irradiation of food fit into this evolving continuum including the new rule in the United States for lettuce and spinach?

Irradiation is probably the most studied, and the most controversial, food processing method in history. Several years ago, two renowned food safety leaders, Drs. Robert Tauxe (2001) and Michael Osterholm (2004), published elegant summaries describing the role of irradiation in food safety and protecting the public health. They did not promote irradiation as a silver bullet, but their commentaries suggested the process is one tool in the toolbox, and may be a silver lining (defined as “a hopeful side of an otherwise desperate or unhappy situation”) in the burgeoning problem of foodborne disease.

To better understand the implications of FDA’s new rule, I hit the books with the goal to examine the “pros and cons,” (perhaps more appropriately described as “advantages and limitations”) of using irradiation as a control step during fresh lettuce and spinach processing. The following is the first in a series summarizing the findings.

Part I. Historical Perspective and Definitions

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I am catching up on both sleep and US News reports. This morning I read the New York Times summary of the events so far in the Sanlu Fonterra Melamine Baby Formula Disaster – “Despite Warnings, China’s Regulators Failed to Stop Milk,” and the Washington Posts summary – “China's Tainted-Milk Crisis Grows Despite Official Claims.”

Since I left China, the recalls have mounted.  Now, not only is powdered milk being recalled, but various other products, including White Rabbit candy, are being pulled from store shelves throughout the world.  More than 50,000 children, most aged under three, have fallen ill after drinking China's top-selling infant formula, made by the Sanlu Group, a joint venture with New Zealand dairy giant Fonterra.  At least four children have died and almost 13,000 are still in the hospital, at least 100 of them in critical condition from kidney failure.  After spending a week in China, my guess is that those numbers are grossly under reported.   Here are some more startling facts:

December 2007 - Sanlu Fonterra had first received complaints about its powdered baby formula.

March 2008 - Sanlu Fonterra had hired private companies to test its milk powder for contaminants.  Sanlu Fonterra never issued any public warnings and never stopped promoting its products.

May 18 - After the devastating earthquake in Sichuan Province, the Sanlu Fonterra made a much-publicized donation of $1.25 million worth of baby formula for infants orphaned or displaced by the catastrophe.

June 30 - A mother in Hunan Province had written a detailed letter pleading for help from the food quality agency, the General Administration of Quality Supervision, Inspection and Quarantine (organization that sponsored the Food Safety Conference I attended).  The letter, posted on the agency’s Web site, described rising numbers of infants at a local children’s hospital who were suffering from kidney stones after drinking powdered formula made by Sanlu Fonterra.  The watchdog agency's director, Li Changjiang, and several Communist Party officials in Hebei province, where Sanlu Fonterra is based, lost their jobs.

August 2 - Sanlu Fonterra officials informed the board about the melamine problem.

September - The New Zealand government, after discussions with Fonterra executives, contacted authorities in Beijing.  Beijing officials say they knew nothing about the scandal until September, though a Fonterra company spokesman said the company believed the central government knew in August.

September 9 – Recall announced.

Chinese Premier Wen Jerboa (did not meet him while I was there, but I did tour the “Hall of the People.”) yesterday reassured the world that China was serious about bettering its food safety record:

"We plan not only to revitalize the food industry and the milk powder industry, we will try to ensure that all China-made products are safe for consumers and consumers can buy with assurance."

Empty words? Likely. Here are the real problem and until there are changes, “Made in China,” still will mean, “Buyer Beware."

• The Chinese Central Propaganda Department had been issuing broad reporting guidelines that were distributed in Internal Digest, a classified bimonthly Communist Party bulletin.  The emphasis was on promoting good news about the Olympics.  Propaganda officials responded by issuing rules that required domestic publications to obtain permission before publishing any articles about food safety and other politically delicate subjects.
• On Friday, 20 lawyers in 15 provinces received threatening visits or calls from their local legal affairs bureaus warning them not to join a group to help the victims of tainted milk. They were told they could lose their licenses if they did not withdraw from the effort. As one lawyer said:  "Our goal is not to help the victims sue the dairy companies. We just want to help them with advice," the lawyer said, speaking on the condition of anonymity for fear of reprisals. "We believe the government will eventually have a solution, so it's important to preserve the evidence. We don't understand why we are being stopped."

A free press and the right to legal advice is a must to keep corporations like Sanlu Fonterra and the Chinese Government honest.  Frankly, that is true whatever country you are in.  The world's media and legal associations, especially in the US, need to speak out in support of our chinese collegues.  Until there is a free press and a functioning legal system in China, expect to see more outbreaks, illnesses and cover-ups.

For a bit more information on the Chinese legal system (or lack thereof) see "What China's Tainted Milk May Not Bring - Lawsuits" and a very good early analysis in "China Says 432 Infants Have Kidney Stones From Sanlu Formula" of why the outbreak happened in the first place.

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Well, there are several Chinese delegates missing at today’s opening session. However, all of the speakers thus far have all mentioned the ongoing and growing crisis in China infant formula. The numbers still are shocking – 55,000 sickened, 13,000 hospitalized, hundreds with acute kidney failure and four deaths (assuming these numbers are close to accurate).  Perhaps we really should have the parents of the victims here speaking to the esteemed panelists? I found this quote in the last few moments on AP wire:

"I'm just disappointed because the government should have done more to protect its citizens," said Liao Yanfang, a migrant worker whose 1-year-old son was found to have kidney stones Tuesday at Beijing Children's Hospital. Since birth, her only child had been drinking infant formula made by the company at the center of the scandal, Sanlu Group Co., she said.

"I fed my baby powdered milk because ads said it was more nutritious than breast milk. We trusted that the government would provide adequate tests to ensure food quality," she said.

Like the cause of food safety problems in the US, my strong suspicion is that milk suppliers find themselves squeezed between the farmers asking for more money and the processors who demand that prices be held down. That squeeze gives suppliers incentives to tamper with the raw milk - adding ingredients like melamine - a relatively cheap binding agent used in plastics and as a flame retardant, is rich in nitrogen, fooling widely used tests that check for protein. When mixed with formaldehyde, it dissolves in water. When mixed with milk and fed to babies, well, you see the result.

While I blogged, I also had some time to talk to the media.

I talked to the Seattle Health Examiner:

Seattle food contamination expert in China as tainted milk sickens thousands of kids

ABC hot reporter Stephanie Sy:

Chinese Tainted Milk Company Accused of Cover-up

And, it is good to see the Haphazard Gourmet Girls spin on:

China Food Safety

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I got this email today from the Chinese Government:

Dear Bill,

Thank you for accepting to speak at the upcoming China International Food Safety & Quality Conference, September 24 - 25, 2008, Landmark Hotel & Tower, Beijing. We are honored to have you as a speaker on the program and look forward to your speech.

As a reminder, all speakers are expected to exercise diplomacy during your presentation. The CIFSQ Conference is intended to encourage healthy constructive dialogue and information exchange amongst industry players, government regulators and the scientific community to enhance food safety for all consumers.

Once again, welcome and I hope you have a productive and meaningful week ahead.

Sincerely,

Benny Sun
Program Manager
CIFSQ 2008

I wonder if they do not want me to talk about the tainted baby formula that has been blamed for killing four infants and sickening 6,200 in China since the scandal broke last week.  About 1,300 babies, mostly newborns, are in hospitals and 158 of them are suffering from acute kidney failure.  Thousands of parents across China are bringing their children to hospitals for health checks.  Assuming that all these numbers are even close to being accurate.

Hard not to notice – impossible not to talk about.

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Thought I would get a bit more prepared for my trip to China.  I might find something to do there other than climb the Great Wall.

China Manufacturers' Duties (1)

China's Product Quality Control Law (2), which went into effect in September 1993, holds manufacturers—or producers—responsible for product quality. Article 14 of the Quality Control Law requires producers to manufacture products that:

• comply with national and industry standards;
• do not pose an "unreasonable danger" to people or property;
• have the "properties that should be possessed by such products," except where explanations about defects have been provided; and
• conform with standards carried on the product or its packaging, or with the quality indicated by a sample.

Producers are liable for physical injury or damage to another's property caused by a defective product. Article 31 stipulates that a victim may claim compensation directly from a liable producer, as well as from the seller of a defective product. While the law defines "defect" (3) as an "unreasonable danger" that "threatens personal safety or another's property," the phrase "unreasonable danger" is not further defined. Additionally, while the requirement that products have the properties they should possess is not clearly explained, the law expressly prohibits adding improper ingredients or elements, or selling imitation or low-grade products as genuine or high quality.

Producers are also subject to several labeling and packaging requirements. All product packages must contain:

• product quality inspection certificates;
• product name, producer name and address, in Chinese;
• the primary ingredients;
• expiration date; and
• warnings in Chinese if the product is potentially dangerous.

Distributors' Duties

Sellers or distributors under the Chinese law have the same responsibilities as producers plus additional obligations relating to marketing. For example, distributors must inspect products to make sure they are properly labeled, and make sure that their expiration dates have not passed. Moreover, while distributors are not responsible for compliance with industry standards, a distributor who knows that a product does not comply with the necessary standards may be subject to liability for personal injury or property damage caused by that product.

Defenses

Compared with its counterpart in Taiwan, the Chinese law is more favorable to manufacturers and distributors because it provides defenses. A manufacturer will not be held liable if it can establish that (1) it did not put the product on the commercial market; (2) the defect did not exist at the time the product was put on the market; or (3) the defect could not have been detected at the time it was put on the market, because of limited scientific or technical knowledge.

The one defense available to a distributor is to demonstrate that another party, such as the manufacturer, was responsible for the defect. If the seller or distributor cannot locate the manufacturer, the seller must bear full responsibility for compensating an injured consumer. If the manufacturer can be identified, the product distributor has a recovery right against that manufacturer.

The Chinese law also has a statute of limitations and statute of repose for both manufacturers and distributors. Under the law, a claim must be brought within two years of the date that the defect was or should have been discovered. Moreover, a consumer may not bring a claim more than ten years after the product was delivered to the first consumer, unless, as Article 33 provides, "the clearly indicated period of safe use has not yet expired."

Damages

Injured consumers under the Chinese law can recover:

• medical expenses;
• lost income;
• and cost of living if unable to resume working.

In case of death, the liable party must pay funeral expenses as well as pensions and living expenses of the deceased's dependents. The law also contains a potentially broad provision that requires that the liable party compensate the injured consumer for all other "major losses." See Article 32.

In addition to damage payments, failure to comply with national or industry standards can produce stiff penalties. Authorities will order manufacturers not in compliance to cease production and will seize illegal products and income derived from their sale. Moreover, a non-complying manufacturer (4) will be fined at least two times and as much as five times the illegal income amount. Manufacturers are strictly liable for non-compliance with national or industry standards, while sellers are liable only if they actually knew they were selling non-complying products.  Chinese law does not provide for punitive damages (damages intended to punish the manufacturer). The closest analog in China would be what translates roughly as spiritual or hardship damages. The cap on these damages is RMB 50,000 (5), regardless of severity.

Alternative Dispute Resolution

Article 35 provides that, where a civil dispute concerning product quality arises, the parties concerned may seek a settlement through negotiation or mediation. Additionally, if negotiation or mediation is not feasible, the parties may apply to an arbitration organization for arbitration.

1.  This article is based, in large part, on a portion of Bowman and Brooke LLP’s article entitled “International Product Liability Laws.”  The article can be found at: http://library.findlaw.com/1999/Aug/1/129312.html.

2.  See http://gr.china-embassy.org/eng/kxjs/kjfg/t146182.htm.

3.  “Defect” is specifically defined by Article 34 as “the unreasonable danger existing in [a] product which endangers the safety of human life or another person’s property; where there are national or trade standards safeguarding the health or safety of human life and property, defect means inconformity to such standards.”

4.  This provision includes producers who mix “impurities or imitations into a product.”  See Article 38.

5.  This is $7,314.22 in United States dollars, as of 9/19/08.  See http://www.lehmanlaw.com/resource-centre/faqs/product-liability/damages-caused-by-inferior-and-low-quality-products-are-a-chief-concern-of-consumers-in-china-how-does-chinese-law-protect-them-and-what-is-the-potential-liability-to-manufacturers-and-vendors.html.

 

Here is a great article on how the Chinese Legal System actually works:

Anger in milk scandal forces China’s hand

By Ariana Eunjung Cha, The Washington Post

Monday, September 22, 2008

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The milk crisis in China is exploding.  Now there are over 6,200 people ill and at least 4 deaths.  I’ll be landing in Beijing in a few hours (long distance ambulance chasing) and was struck by a quote from Chinese Starbucks customer Cathy Wang who called for the government to take the toughest action possible against those responsible.

"The criminals deserve to be sentenced to death and there should be a public trial.  They are more evil than murderers.  And the supervisory authorities, they should be punished harshly as well for neglecting their duty."

Another milk customer at a Beijing supermarket had a different point of view.  Cui Hongchun, expressed concern and fury over previously buying milk for his eight-year-old son from one of the suspect brands.

"I'm very worried about the milk we bought because it claimed to contain high levels of protein," he said. "I will sue them if the milk causes any problems for my boy.”

Interesting, perhaps we can import, not only food products from China, but also its criminal code?  Perhaps I can help with our balance of trade deficit with China by exporting a lawsuit or two?
 

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Although I leave for China soon, I spent the day working on a keynote speech for the San Francisco Food HACCP Conference in October.  Here is my PowerPoint:

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A new friend sent me this - I wonder what she is trying to say?

Another friend sent me this one:

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I spent the day is a well-run, informative, conference sponsored by Fresh Express (never sued them). The science was interesting and well presented. The bottom line however is there is far more research needed and the risks to consumers are still quite real in the consumption of “ready-to-eat” products. Here are some of the highlights from the scientists:

1. Contamination can spread during washing, cutting in the fields and the tumble drying of greens

2. Chlorinated water alone isn't enough to kill the pathogens.

3. Some varieties of spinach with textured leaves have greater potential for harboring pathogens than smooth-leaf varieties.

4. E. coli can paralyze pore closures (somata) on spinach leaves and allow bacteria into the plant.

5. Compost used inorganic operations can retain traces of live E. coli cells that can reconstitute under the right conditions.

6. Spinach and lettuce harvested on hotter days are more likely to create an environment for pathogen growth.

7. Lower product temperature, especially during transportation, lowers risk of bacterial growth.

8. Flies or other insects can excrete bacteria in their fecal droplets.

9.  It seems apparent that the E. coli bacteria is not absorbed by the roots into the plant structure.

OK, not much good news here. The only two areas that seemed hopeful was that some research on E. coli transmission found ozone gas is faster and more effective than chlorinated water at sanitizing leafy greens. And, although not mentioned until the last hour, irradiation of leafy greens can make food safer.

Bottom line – more work to do.
 

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In Kreifall v. Excell, Excell’s “Preemption argument” was tried and soundly rejected by the Wisconsin State Supreme Court and then was denied review by the US Supreme Court in Kreifall v. Excell (Cargill subsidiary).  See online version.

Guest Blogger - Andy Weisbecker

In the Deborah Fellner v. Tri-Union Seafoods d/b/a Chicken of the Sea opinion, issued by the US Court of Appeals, Third Circuit, on August 19, 2008, the court protected the right of the consumer plaintiff to pursue her claim against the manufacturer of contaminated tuna products. The defendant tuna producer had argued that the federal regulatory approach by the US Food and Drug Administration (FDA) related to the risk of mercury in tuna products had preempted the consumer’s right to proceed with her claim for damages against the producer based on New Jersey’s product liability laws. The Court of Appeals however, found that the FDA’s related activity was not sufficient to warrant the preemption of the state personal injury claims, and allowed the consumer to proceed with her action against the producer.

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I am off to China to the International Food Safety & Quality Conference and Expo in a few weeks.  I am proud to be the lead sponsor of the event and am glad that I was able to convince our former Governor, Gary Locke, to attend as well.  China will become over the coming decades an even greater trading partner in food.  Coming up with strategies to help create an environment and culture where safe food is important is important to me.

Food safety is a worldwide issue that can benefit greatly from collaboration, standardized approaches, and common solutions. In many countries, food safety awareness is at an all-time high. New and emerging threats to the food supply are constantly being discovered, and our food supply is becoming increasingly global. Achieving food safety success in this changing environment requires novel prevention strategies, greater harmonization and more collaboration at the international level than ever before. As a responsible partner in the international food safety community, the General Administration for Quality Supervision Inspection & Quarantine (AQSIQ) is once again hosting the China International Food Safety & Quality Conference + Expo in 2008.

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Several people have commented that switching from grain to grass feeding could be one of the solutions to the problem with foodborne pathogens in cattle and other livestock. Quotes like these are becoming more common on the Internet and in recent media reports:

“Products from grass-fed animals are safer than food from conventionally-raised animals.”  Eatwild, 2008

“Research has shown that the strains of E. coli most devastating to humans are the product of feedlots, not cows. This is due to the animals being forced to eat an unnatural diet, and not their natural choice, grass.”  Grass-Fed Beef: Safer and Healthier, Animal Welfare Approved, June 15, 2008

If true, changing the cow’s diet would be such a simple and cheap management practice to implement. Have we found the Holy Grail for food safety? Below is some research I did on the topic.

OVERVIEW

• Identification of on-farm management practices that would reduce or eliminate foodborne pathogens in cattle and other livestock (including diet changes) is an active area of research, but many study results are inconclusive. E. coli O157:H7, Campylobacter, Salmonella, and other dangerous pathogens have been repeatedly isolated from both grass and grain fed livestock, and the studies show conflicting results regarding whether the levels of pathogens are higher, lower, or the same when animals are fed grass- or grain-based diets.

• There is no clear and consistent definition in the literature of “grass-fed,” but the majority of papers describe animals that are on pasture or confined, but receiving only hay-based diets. Last year, the USDA Agricultural Marketing Service issued a standard for grass (forage) fed marketing claims. More research on this topic is needed that compares rates of foodborne pathogens among grain and grass fed animals using a specific definition such as the USDA standard or other accepted definition.

• The original study by Diez-Gonzalez published in Science in 1998, and since cited numerous times in the literature and media, suggested that cattle could be fed hay for a brief period before slaughter to significantly reduce the risk of foodborne E. coli infection. They based this conclusion on a hypothesis that grain feeding increases acid resistance of E. coli in cattle. Although they showed increased acid resistance in E. coli from grain-fed cattle, but the sample size was small, and they used “generic” E. coli stains, not E. coli O157:H7.

• Studies by other researchers worldwide have since found little difference in acid resistant E. coli O157:H7 among grain- verses grass-fed cattle, and some even found more E. coli O157:H7 shed by grass-fed animals.

• It has been discovered that E. coli O157:H7 and Salmonella can rapidly switch from being “acid sensitive” to “acid resistant” within minutes after entering an acidic environment (such as the human stomach). Thus, even if the grass-fed/E. coli acid-resistance hypothesis were true, manipulating the diet may not have any effect since pathogens can adapt quickly to new environments like the human stomach.

• Outbreaks have traced back to grass-fed and pastured animals, as well as animals in feedlots. Notably, the E. coli O157:H7 spinach outbreak strain in 2006 was isolated from grass-fed cattle. Another outbreak of E. coli O157:H7 was linked recently to raw milk and colostrum from cattle raised organically on grass.

• In summary, the scientific evidence at this time does not support a broad conclusion that grass feeding significantly and consistently reduces the risk of E. coli O157:H7 or other dangerous foodborne pathogens entering the food chain. However, more research is needed into the influence of food animal diets. For example, preliminary experimental data shows a possible association between feeding dried distiller’s grains and shedding of E. coli O157:H7 in cattle feces.

INTRODUCTION

A systematic approach is necessary to combat the emerging challenges in food safety such as the unexplained “uptick” of E. coli O157:H7 outbreaks and recalls linked to beef products. Interventions to protect the food supply should ideally occur across the continuum from “farm to fork.” The “Holy Grail” of pre-harvest (farm-level) food safety would be to find an effective, affordable, and practical means to prevent or reduce food animals from shedding foodborne pathogens in the first place so the dangerous bacteria never enter the human food chain. Since cattle or other livestock may be located near drinking water sources or vegetable crops, a farm-level intervention could also help to protect nearby water and crops from contamination by manure via runoff, transport by wildlife/insects, or other mechanisms.

Oliver et al (2008) published a comprehensive review of developments and future outlooks for pre-harvest food safety this month. Examples of potential farm-level management practices that have been studied for E. coli O157:H7 and other foodborne pathogens in livestock include:

• Antibiotics
• Bacteriophages (viruses of bacteria)
• Dietary changes
• Immunization
• Probiotics or prebiotics in animal rations
• Sanitation/hygiene (feed, water, environment)
• Wildlife and insect control

Unfortunately, the best approaches for on-farm control of foodborne pathogens in livestock remain elusive. No single management practice, or even a combination of methods, has proven to be very effective or reliable in preventing foodborne pathogen colonization in livestock. Clearly, sanitation including clean feed/water sources and insect control are important, but difficult to maintain in a farm environment. Livestock immunizations are not available for most foodborne pathogens with the exception of an E. coli O157:H7 vaccine under development (and some ask “who would pay for such a program?” since cattle do not become ill from E. coli O157). Use of antibiotics is problematic because it can lead to resistance.

GRASS VERSUS GRAIN FEEDING

Definition of “Grass-Fed”

The majority of cattle are fed grass or other forage at some time during their lives. For the purpose of marketing, the USDA Agricultural Marketing Service issued a voluntary standard for grass (forage) fed marketing claims last year that states: “grass fed standard states that grass and/or forage shall be the feed source consumed for the lifetime of the ruminant animal, with the exception of milk consumed prior to weaning. The diet shall be derived solely from forage and animals cannot be fed grain or grain by-products and must have continuous access to pasture during the growing season.”

Note that most papers in the literature do not specifically define grass-fed using this new standard or any other specific definition, but differentiate, in general, between animals on forage (grass) only verses diets containing grain.

The Study that Started the Controversy

The original study that launched the controversy over grain feeding was published in Science in 1998 by researchers from Cornell (Diez-Gonzalez et al). They described potential dietary effects on the acid resistance of E. coli in cattle fed grain- versus hay-based diets. This study has since been cited numerous times in the literature and media, but later studies have not been able to reproduce the findings. This may be due, in part, to several limitations in the original study design including: 1) small sample size and 2) “Generic” E. coli levels were measured, not E. coli O157:H7.

In 2006, Hancock and Besser wrote a summary of the evidence surrounding the hypothesis that feeding hay instead of grain would reduce the problem with E. coli O157:H7, purportedly because the stomachs of grain-fed cattle are more acidic. They concluded: “while one cannot rule out a role of cattle diet on affecting exposure and infectivity of E. coli O157:H7 to humans, the data available at present demonstrate that cattle on a wide variety of diets (including 100% forage diets) are regularly and similarly colonized with this pathogen.”

Another interesting study from a research group in The Netherlands discovered that E. coli O157:H7 and Salmonella can rapidly switch from being “acid sensitive” to “acid resistant” within minutes after entering an environment with reduced pH (such as the human stomach). Thus, even if the grass-fed hypothesis were true, manipulating the diet may not have any effect since E. coli O157:H7 can adapt quickly to new environments like the human stomach.

Recent Findings in the Literature

In searching through the literature since Hancock and Besser’s review, several new papers relevant to the discussion were found.

1. Nutritional aspects of grass-fed beef.

Leheska, J. M., L. D. Thompson, J. C. Howe, E. Hentges, J. Boyce, J. C. Brooks, B. Shriver, L. Hoover, and M. F. Miller. 2008. Effects of conventional and grass feeding systems on the nutrient composition of beef. J Anim Sci.

• This paper explores the question about whether there are differences in nutrient composition of grass-fed beef compared with conventional (grain)-fed beef. Researchers have previously found higher omega-3 fatty acids and CLA (conjugated linoleic acid) in forage-fed beef, and lower fat content overall. Some consumers prefer eating grass-fed meat because they believe it is “healthier,” and/or tastes better than conventional beef.

• The authors of this study enrolled only producers that were marketing grass-fed beef and confirmed that “100% of the diets were made up of native grasses, forages, or cut grasses or forages.”

• Fatty acid composition of grass-fed and conventional-fed beef was found to be different, but the authors conclude “the effects of the lipid differences between grass-fed and conventional raised beef, on human health, remains to be investigated.”

2. Papers continue to be published about possible effects of diet on E. coli O157:H7 prevalence and concentration.

For example, a research team from Kansas State University reported that feeding distillers grains, a co-product of ethanol production, to feedlot cattle may have a positive association with fecal shedding of E. coli O157. The mechanism is unknown, but they hypothesize that the grains change the ecology of the hindgut where E. coli O157 is most likely to colonize cattle. The authors report that larger studies are underway to investigate this possible link.

CONCLUSIONS

In summary, the scientific evidence at this time does not support a broad conclusion that grass feeding significantly reduces the risk of E. coli O157:H7 or other dangerous foodborne pathogens from entering the food chain. However, more research is needed to better understand the influence of diet, especially the use of different types of grains in animal feed.

REFERENCES BELOW

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The food borne illness outbreak in northeastern Oklahoma that has sickened more than 115, hospitalized 50 and taken one life is the latest emergence of the virulent and highly toxic E. coli bacterium. Most E. coli outbreaks in North America are subtypes of E. coli O157:H7, but the CDC has just revealed that this outbreak is a rare serotype: E. coli O111.

“This is highly unusual,” said food borne illness attorney William Marler. “We have been involved in every major US outbreak in the last 15 years, and we have only seen this serotype twice before—once traced to apple cider in New York, and once connected to water or salad in Texas.”

Although many strains of E. coli can be present in the body with no ill effects, strains like E. coli O111 and E. coli O157:H7 produce a deadly shiga toxin (stx) which ravages the digestive system and kidneys. By the time symptoms emerge—abdominal cramping, vomiting, and bloody diarrhea—the bacteria is already entrenched. Although there is no cure or antidote, immediate health care is critical to support the systems under attack, keep the patient hydrated, and try to alleviate the intense pain that accompanies the illness as the body works to rid itself of the toxic bacteria.

In those with compromised or immature immune systems, E. coli can progress to Hemolytic Uremic Syndrome, or HUS. Children, whose immune systems are not as developed as adults’, are especially vulnerable. HUS is a cascading complication resulting in kidney failure; at the moment several children in Oklahoma are on dialysis. Even when they are able to recover from the potent E. coli toxin (considered by the CDC to be one of the most toxic substances known to man), victims often have permanent kidney damage. It is not unusual for E coli victims infected as children to need multiple kidney transplants over their lifetime.

“Regardless of the strain of toxic E. coli, it produces a devastating illness.” continued Marler. “Under the best circumstances, it can take months to recover. Some victims are affected for the rest of their lives. We need to support the families going through this nightmare, and do everything we can to help them.”

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It is good to see an Agency do something that makes sense.

The U.S. Department of Agriculture announced a proposed rule to amend the Federal meat inspection regulations to initiate a complete ban on the slaughter of cattle that become non-ambulatory after initial inspection by Food Safety and Inspection Service (FSIS) inspection program personnel. This proposed rule follows the May 20 announcement by Secretary of Agriculture Ed Schafer to remove the provision that states that FSIS inspection program will determine the disposition of cattle that become non-ambulatory disabled after they have passed ante-mortem, before slaughter, inspection on a case-by-case basis. Under the proposed rule, all cattle that are non-ambulatory disabled at any time prior to slaughter, including those that become non-ambulatory disabled after passing ante-mortem inspection, will be condemned and properly disposed of. 

Good job.

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Dear Senator,

I am writing to you because I have grave concerns with a bill currently before you – SB201. I urge that you vote against the bill as written.

Raw milk is at the center of a nationwide controversy over its potential value as a nutritional food versus the severe illnesses that can result from contaminated product. Pasteurization was developed to rid dairy products of pathogens like toxic E. coli as well as to assure a longer, safer shelf life (see attached History of Raw Milk). Raw milk tainted with E. coli O157:H7 has already sickened children in this state. Today a woman lies in a hospital in Northern California on a ventilator after consuming raw milk contaminated with Campylobacter. If a product as potentially dangerous as raw milk is to be legally sold to the consumer, regulation must be air-tight, and penalties for violations must be enforceable by regulators charged with protecting the public health.

SB 201 as currently written has the following fatal flaws:

1) HACCP - The bill proposes that raw milk be regulated by a HACCP protocol. HACCP—Hazard Analysis Critical Control Point—is a food safety and self-inspection system that describes procedures for producing potentially dangerous foods. There are national HACCP protocols in place for juice, meat, poultry, and seafood processing, but none for raw milk. Developing a HACCP protocol can take years, even when the industry being regulated agrees with the government assessments of risk. Companies will be free to produce raw milk under minimal regulation until the HACCP plan is ready. Further, the bill specifically precludes CDFA from taking action on high coliform counts even if coliform testing was determined to be part of the approved raw milk HACCP plan.

2) SSOP – HACCP plans do not necessarily include sanitation procedures and environmental monitoring. This is the purview of the SSOP (Sanitation Standard Operating Procedure), which is absent from SB201. Mandating HACCP without mandating SSOP is a half measure, at best.

3) Enforcement is not spelled out in the current version of the bill. Not what would happen to a producer who broke the HACCP protocols (when in place) nor to repeat violators.

4) Colostrum (Also called first milk, this is the milk produced in pregnancy and right after birth. It is high in carbohydrates, protein, and antibodies and low in fat.) The current bill does not even address this ‘growth area’ of raw products. Under the bill, unregulated colostrum could be sold and marketed as a stand-alone product, in a raw colostrum/milk mixture, or as an ingredient in other foods.  There is no scientific reason to treat colostrum differently from raw milk. Omitting colostrum from SB 201 would allow a producer to add a small amount of colostrum to raw milk, label the product as colostrum, and sidestep the intent of the new law. (At least one California raw milk company has already used this work-around to circumvent federal law prohibiting interstate shipment of raw milk to consumers. http://www.organicpastures.com/faq.html - item #14.)

5) Pathogen Regulation – the bill prevents CDFA from taking regulatory action on the detection of pathogens unless the amount is “sufficient to cause illness in humans.” This leaves the door wide open for argument about what level of verotoxigenic E. coli, Salmonella, Campylobacter or Listeria is necessary to cause disease.  Legislators must not tie the hands of CDPH and CDFA by limiting their enforcement powers to an undefined amount “sufficient to cause illness in humans.”

• The minimum infectious dose for many pathogens depends on several factors including (a) the infectivity and virulence of the specific strain, (b) the size, age, and immune-competent status of the victim, (c) foods ingested along with the pathogen, and (d) compounding factors such as the use of antacids.

• It is often technically difficult to detect the presence of a pathogen in a random sample of ‘finished product.’ Even in a fluid like raw milk, the pathogens are not likely to be uniformly distributed throughout a production lot. The probability that a certain level of pathogen will be found by product testing is very low—unless the contamination is very high. Rather than a vague standard of sufficient to cause illness in humans,” SB 201 should mandate a zero tolerance rule for any level of infectious bacterial pathogen.

6) Ban the sale of raw milk from cows with symptoms of clinical mastitis – Milk and colostrum are virtually bacteria free when they leave the udder, except in the case of an animal suffering from clinical or sub-clinical mastitis. Cows with mastitis shed bacteria—E. coli and Staphylococcus aureus, among others—into their colostrum and milk, and no raw milk should be sold from them. This is not addressed in SB201.

7) Standard plate count – SB 201 should not eliminate the mandated 15,000 per milliliter standard plate (or bacteria) count limit for grade A raw milk. The existing law, AB1735, mandates both coliform limit and a bacterial count limit for raw milk. SB201 not only offers a way for raw milk dairies to opt out of the total coliform limit, but in doing so, it emasculates the standard plate count provision of AB1735 by prohibiting the use of standard plate counts for enforcement purposes.

• Most pathogens –E. coli O157:H7 being a notable exception—are not coliforms, and most coliforms are not pathogens. At best, the coliform group of bacteria can be viewed as an indicator of possible environmental contamination or temperature mishandling of raw milk.

• Coliforms began their role as “indicator” bacteria as a stand-in for direct detection of pathogens in potable water. This test was chosen for convenience. When drinking water monitoring began, direct enumeration of E. coli – a surrogate for potential Salmonella contamination – was a long and costly process.

• Dairy microbiologists adopted coliforms – a group of microbes that are both prevalent in the environment and are heat-sensitive – as a convenient indicator of inadequate pasteurization and of post-process contamination. The ease, convenience, and low cost of coliform enumeration also added to the popularity of this test. Nevertheless, the presence of coliforms in pasteurized milk was not viewed as direct indicator of the presence of a pathogen; rather, an elevated coliform count was looked upon as an indicator of something having gone wrong in the manufacturing process.

• While a coliform standard makes sense in pasteurized milk, the decision to apply a coliform test to raw milk is questionable, at best. Many of the bacterial contaminants and most of the pathogens that have been reported in raw milk are non-coliforms. An elevated “total” bacterial count would be at least equally effective as an indicator of unsanitary practices or poor temperature control.

8) SB201 does not reiterate requirements carried forward from existing laws.

• SB201 does not provide guidance on what requirements must be met for retail raw milk and raw colostrum under the follow circumstances: (a) while a dairy’s HACCP plan is under development or under revision as the result of a suspension or revocation of approval, (b) while a dairy’s HACCP plan is under initial review by CDFA and/or CDPH, (c) in the event that CDFA and/or CDPH suspends or revokes its approval of a dairy’s HACCP plan, or (d) while a suspension or revocation of a dairy’s HACCP plan is under appeal. Under these circumstances, a dairy that has opted for the HACCP alternative might be considered to be exempt from the coliform rule even when an approved HACCP plan is not actively in place.

• SB201 should be amended to incorporate explicitly all of the provisions Sections 33527, 35783, 35783.1, 35861 and 35891 of the Food and Agricultural Code, and should state unequivocally that the standard plate count, somatic cell count and coliform count limits are enforceable unless an approved HACCP plan is in place and has been implemented by a dairy farm that produces and processes raw milk.

9) Unanswered questions – critically important issues which are either not addressed or not clearly spelled out:

a) What tests would be used? Screening, confirmatory, or both?

b) How sensitive and specific are the tests to be used?

c) Do the tests need to be approved by the AOAC or other equivalent certifying body?

d) Why only test bi-weekly for E. coli O157:H7? The last raw milk recalls were due to Campylobacter and Listeria contamination.

e) What happens if no quick test is approved to detect E. coli O157:H7 in raw milk?

f) Is the tested product held until the results are in? If not, why not?

g) What happens if a test is positive? Total product recall? What protocol?

Senator, I urge you to vote against this bill. It is vitally important to have regulation in California on raw milk, but approving this bill will set flawed and unfinished processes into law. We urge you to press for clarity, detail, and precision in a final version that will regulate the raw milk industry from the moment it is signed into law, rather than the current version, which only passes the difficult decisions into other, unknown hands.

Attachments:

•    Peer-reviewed literature - Pro
•    Peer-reviewed literature – Con
•    CDC list of outbreaks associated with unpasteurized milk or cheese, 1973-2007
•    History of Raw Milk
•    Escherichia coli O157:H7 Infections in Children Associated with Raw Milk and Raw Colostrum from Cows – California, 2006  (CDC-MMWR)

References:

1.    Barbano, D.M., Y. Ma, M.V. Santos. 2006. Influence of Raw Milk Quality on Fluid Milk Shelf Life. J. Dairy Sci. 89(E. Suppl.):E15-E19.

2.    Berriatua, E., I. Ziluaga, C. Miguel-Virto, P. Uribarren, R. Juste, S. Laevens, P. Vandamme, J.R.W. Govan. 2001. Outbreak of Subclinical Mastitis in a Flock of Dairy Sheep Associated with Burkholderia cepacia Complex Infection. J. Clin. Microbiol. 39:990-994.

3.    Christen, G.L., P.M. Davidson, J.S. McAllister, L.A. Roth. 1992. Chapter 7. Coliform and Other Indicator Bacteria. In: Standard Methods for the Examination of Dairy Products, 16th edition (R.T. Marshall, ed.). American Public Health Association, Washington, DC.

4.    Corlett, D.A., Jr. 1998. HACCP User’s Manual. Aspen Publishers, Inc., Gaithersburg, MD.

5.    Entis, P. 2007. Appendix A. A Microbial Who’s Who. In: Food Safety: Old Habits, New Perspectives. ASM Press, Washington, DC.

6.    Holm, C., L. Jepsen, M. Larsen, L. Jespersen. 2004. Predominant Microflora of Downgraded Danish Bulk Tank Milk. J. Dairy Sci. 87:1151-1157.

7.    Hutchison, M.L., D.J.I. Thomas, A. Moore, D.R. Jackson, I. Ohnstad. 2005. An Evaluation of Raw Milk Microorganisms as Markers of On-Farm Hygiene Practices Related to Milking. J. Food Prot. 68:764-772.

8.    International Commission on Microbiological Specifications for Foods. 1986. Microorganisms in Foods. 2. Sampling for Microbiological Analysis:Principles and Specific Applications, 2nd ed. University of Toronto Press, Toronto, Canada.

9.    Jay, J.M. 2000. Chapter 20. Indicators of Food Microbial Quality and Safety. In: Modern Food Microbiology, 6th ed. Aspen Publishers, Inc. Gaithersburg, MD.

10.    Jay, J.M. 2000. Chapter 25. Foodborne Listeriosis. In: Modern Food Microbiology, 6th ed. Aspen Publishers, Inc. Gaithersburg, MD.

11.    Jay, J.M. 2000. Chapter 28. Foodborne Gastroenteritis Caused by Vibrio, Yersinia, and Campylobacter Species. In: Modern Food Microbiology, 6th ed. Aspen Publishers, Inc. Gaithersburg, MD.

12.    Jayarao, B.M., and L. Wang. 1999. A Study on the Prevalence of Gram-Negative Bacteria in Bulk Tank Milk. J. Dairy Sci. 82:2620-2624.

13.    Kornacki, J.L., and J.L. Johnson. 2001. Chapter 8. Enterobacteriaceae, Coliforms, and Escherichia coli as Quality and Safety Indicators. In: Compendium of Methods for the Microbiological Examination of Foods, 4th edition (F.P. Downes & K. Ito, eds.). American Public Health Association, Washington, DC.

14.    Murphy, R.Y., and R.A. Seward. 2004. Process Control and Sampling for Escherichia coli O157:H7 in Beef Trimmings. J. Food Prot. 67:1755-1759.

15.    Stewart, S., S. Godden, R. Bey, P. Rapnicki, J. Fetrow, R. Farnsworth, M. Scanlon, Y. Arnold, L. Clow, K. Mueller, C. Ferrouillet. 2005. Preventing Bacterial Contamination and Proliferation During the Harvest, Storage, and Feeding of Fresh Bovine Colostrum. J. Dairy Sci. 88:2571-2578.

16.    Tamplin, M.L. 2005. Inactivation of Escherichia coli O157:H7 in Simulated Human Gastric Fluid. Appl. Env. Microbiol. 71:320-325.

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What if the great 2008 Tomato, right Pepper, Salmonella Outbreak actually happened this way?

At 10:00 PM last May 30th, on the same day New Mexico asked for help from the Centers for Disease Control and Prevention (CDC) and the U.S. Food & Drug Administration (FDA) with a growing outbreak of Salmonella Saintpaul, a foreign Network begin airing a video taken inside a fresh produce distribution center showing workers treating peppers with an unknown liquid. There is a claim that this is a terrorist act.

In the next 15 minutes, every network news operation is playing the video. The broadcast networks break into regular programming to air it, and the cable news stations go nonstop with the video while talking heads dissect it.

Coming on a Friday afternoon on the East Coast, the food terrorism story catches the mainstream Media completely off guard. Other than to say the video is being analyzed by CIA experts, and is presumed to be authentic, there isn’t much coming out of the government.

Far-fetched? Don’t count on it. I have been saying for years that a foodborne illness outbreak will look just like the terrorist act described above, but without the video on FOX News. Far-fetched?

Tell that to the 751 people in Wasco County, Oregon—including 45 who required hospital stays---who in 1984 ate at any one of ten salad bars in town and were poisoned with Salmonella by followers of Bhagwan Shree Rajneesh. The goal was to make people who were not followers of the cult too sick to vote in county elections.

Tell that to Chile, where in 1989, a shipment of grapes bound for the United States was found laced with cyanide, bringing trade suspension that cost the South American country $200 million. It was very much like a 1970s plot by Palestinian terrorists to inject Israel’s Jaffa oranges with mercury.

Tell that to the 111 people, including 40 children, sickened in May 2003 when a Michigan supermarket employee intentionally tainted 200 pounds of ground beef with an insecticide containing nicotine.

Tell that to Mr. Litvenenko, the Russian spy poisoned in the UK with polonium-laced food.

Tell that to Stanford University researchers who modeled a nightmare scenario where a mere 4 grams of botulinum toxin dropped into a milk production facility could cause serious illness and even death to 400,000 people in the United States.

The reason I bring this up is not only because we are about to mark the seventh anniversary of 9/11, but because I wonder if food terrorism really had been the cause of this year’s Salmonella Saintpaul outbreak, would it have made any difference in our government’s ability to figure out there was an outbreak, to figure out the cause, and to stop it before it sickened so many.

Would the fact of terrorists operating from inside a fresh produce distribution center somewhere inside the United States or Mexico brought more or effective resources to the search for the source of the Salmonella Saintpaul? If credit-taking terrorists were putting poison on our peppers, could we be certain Uncle Sam’s response would have been more robust or effective then if it was just a “regular” food illness outbreak?

After 9/11, Health & Human Services Secretary Tommy G. Thompson said: “Public health is a national security issue. It must be treated as such. Therefore, we must not only make sure we can respond to a crisis, but we must make sure that we are secure in defending our stockpiles, our institutions and our products.”

Before Thompson’s early exit from the Bush Administration, he did get published the “Risk Assessment for Food Terrorism and Other Food Safety Concerns.” That document, now 5-years old, let the American public know that there is a “high likelihood” of food terrorism. It said the “possible agents for food terrorism” are:

• Biological and chemical agents
• Naturally occurring, antibiotic-resistant, and genetically engineered substances
• Deadly agents and those tending to cause gastrointestinal discomfort
• Highly infectious agents and those that are not communicable
• Substances readily available to any individual and those more difficult to acquire, and
• Agents that must be weaponized and those accessible in a use able form.

After 9/11, Secretary Thompson said more inspectors and more traceability are keys to our food defense and safety. To date, we’ve made no movement to ensure this.

So would the fact of a terrorist group operating from a produce distribution center inside the United States or Mexico have brought more or effective resources to the search for the source of Salmonella Saintpaul? If credit-taking terrorists were putting poison on our peppers, could we be certain that Uncle Sam’s response would be more robust, more effective than if it was just a “regular” food illness outbreak?

Absolutely not! The CDC publicly admits that it manages to count and track only one of every forty foodborne illness victims, and that its inspectors miss key evidence as outbreaks begin. The FDA is on record as referring to themselves as overburdened, underfunded, understaffed, and in possession of no real power to make a difference during recalls, because even Class 1 recalls are “voluntary.” If you are a food manufacturer, packer, or distributor, you are more likely to be hit by lightening than be inspected by the FDA. You are perfectly free to continue to sell and distribute your poisoned product, whether it has been poisoned accidentally or intentionally.

The reality is that the Salmonella Saintpaul outbreak is a brutal object lesson in the significant gaps in our ability to track and protect our food supply. We are ill prepared for a crisis, regardless of who poisons us.

Somewhere between the farm and your table, our Uncle Sam got lost.

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Guest Blog by Denis W. Stearns:

On October 3, 2002 I submitted a petition to the USDA in which I asked the agency to explicitly clarify whether a USDA policy that appeared to allow the deadly pathogen E. coli O157:H7 on so-called “intact meat” applied to meat sold to retail outlets like grocery stores and restaurants. Even now it is a near-universal practice for retail outlets to use this meat—commonly called “boxed beef” because the cuts of meat are individually shrink-wrapped and then boxed—to make ground beef. Sometimes the meat is directly used to make ground beef, and sometimes only trimmings are used—that is, the pieces left over after roasts and steak are cut and trimmed. Either way, there has never been any doubt that tens of thousands of grocery stores and restaurants use tons of intact meat every day to make ground beef. To my mind it makes absolutely no sense that the USDA would allow meat companies to sell intact meat contaminated with E. coli O157:H7. Why allow a loophole so large that it essentially moots USDA policy on this deadly pathogen?

Interestingly, the USDA responded to my petition with a letter from Philip Derfler, Deputy Administrator of the Food Safety and Inspection Service. In the letter, Mr. Derfler acknowledged that USDA policy was unclear, and stated that my petition would be treated as a public comment and referred to the Regulations and Directives Development Staff. That was six years ago, and USDA policy is less clear today than it was back then, and just as indefensible.

We are now in the midst of yet another outbreak of heartbreaking illnesses and likely deaths caused by contaminated meat that the beef industry claims the USDA authorizes it to sell. This claim is hardly new either. In 2004, the American Meat Institute and other meat industry trade groups fought all the way to the United States Supreme Court trying to overturn a Wisconsin Court of Appeals decision. The decision held that USDA policy on intact meat did not immunize meat companies from lawsuits based on allegations that E. coli-contaminated meat was unreasonably dangerous as a matter of state law. In other words, the meat industry was fighting for the right to sell E. coli-contaminated meat, claiming that USDA policy said that it could. It lost, but that did not prompt the USDA to change or clarify its policy.

Putting legal arguments aside, common sense alone clearly demonstrates why an exception for intact meat makes no sense. While the meat industry can cleverly argue that its intact meat is not intended for ground beef, and that cooking always makes it safe, neither statement is true. As the recent Nebraska Beef outbreaks make tragically clear, most intact meat does not reach consumers still intact. Furthermore, if each shrink-wrapped cut of meat had “DO NOT USE FOR GROUND BEEF; E. COLI O157:H7 PRESENT” printed in bold letters on it, there is not a grocery store in the country that would buy it. Indeed, commenting on the current outbreak, a representative of Whole Foods explained that it was using intact meat to make its own ground beef “in an attempt to assure quality and safety.” I guess the joke was on them then.

The current USDA policy on E. coli and intact meat is indefensible because it protects the interests of the meat industry instead of the public health. A policy that is based on the demonstrably false assumption that intact meat is not being used to make ground beef at a retail level is a policy that has no basis in fact or reason. It also entirely ignores the incredible risk of cross-contamination, which is what caused the 2000 outbreak at a Milwaukee-area Sizzler restaurant that killed one child and sickened scores of others. The Sizzler outbreak also recently resulted in a $7.1 million verdict against the same meat company that fought to the Supreme Court (with industry trade groups) for the right to sell the deadly stuff. Meanwhile, all these years later, the USDA says it is continuing to consider its options. Well, I have a suggestion: How about putting the interests of the public first for a change and sticking to a real zero-tolerance policy for this deadly pathogen?

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A bit of art from my young friend Fredrick the Artist:

I think this drawing/painting has something to do with the "End Time" - not to be confused with Bankruptcy.  So, from Frederick's Mom's blog:

... Frederick was incensed that not only would pathogens find its way into beef and deprive me of burgers, but that the company providing the beef would actually blame others for resulting illnesses. Back in June, Nebraska Beef sued members of the Salem Lutheran Church for not preparing their meatballs properly for a church dinner. Had those ladies used better food safety measures, the pathogen that was illegally present in the food in the first place would have made no one sick.

The dinnertime discussion was made more interesting by Frederick's recent fascination with Old Testament stories. Could God be punishing Nebraska Beef for its behavior earlier this summer with even more recalls? Would locusts swarm Omaha? Would the Missouri River turn to blood? Probably not, but perhaps some figurative lightning was striking the Omaha area nonetheless...

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A friend of mine, who is a bit too much on the religious side, noted that with the recent recall of 160,000 pounds of meat, Nebraska Beef has now recalled 6.66 million pounds on meat – the sign of the Beast - in the past month.  Well, Nebraska Beef did sue a church once - payback is a bitch. 

I’ll leave the numbers up to my friend and others to interpret.  One good thing is that Kroger finally says it has placed signs in its meat departments in the Cincinnati and Dayton areas with information on the latest Nebraska Beef recall - like, "do not eat our meat?"  What about other retailers?

By the way, does anyone know who is still buying Nebraska Beef?

It really is time for retailers, like Kroger and Whole Foods, to step up and be responsible for what they purchase (and from whom) to grind and sell to the public.  Retailers need to have strong specifications - like "no cow shit on our meat" - a tough one?  Those specifications then need to be audited - hmm, so how many times did Kroger or Whole Foods visit Nebraska Beef?  Retailers also need to pay more for the meat - with no cow shit on it  - and stop squeezing suppliers like Nebraska Beef to the point where they throw food safety out the window.  Customers will pay more for meat with no cow shit on or in it - no parent should have to worry that the meat they are buying has E. coli, Salmonella, Campylobacter, Listeria, or other fecal bacteria or viruses contaminating it.

Kroger and Whole Foods, and other retailers who grind intact cuts of meat in stores, are clearly in my legal sights.  Not only because Nebraska Beef has limited insurance and assets, but also because these retailers are also manufacturers under the law and are therefore strictly liable for poisoning their customers and others as well.

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I was encouraged to see this mornings Statement of CSPI Food Safety Director Caroline Smith DeWaal  regarding:

The bipartisan FDA Food Safety Modernization Act would help refocus the Food and Drug Administration (FDA) on preventing, rather than just reacting to, food-borne disease outbreaks. Senators Richard Durbin, Judd Gregg, Christopher Dodd, Richard Burr, Tom Harkin, and Lamar Alexander have developed constructive legislation in a bipartisan manner, proving that the safety of the food we serve our families is not a partisan political issue.

The bill would require domestic and foreign food companies to assess potential hazards, develop food safety plans, and take steps to prevent contaminated foods from being marketed. It also would require FDA to issue regulations for ensuring safer fresh produce. Those are positive reforms that CSPI identified in its "White Paper on Building a Modern Food Safety System for FDA Regulated Foods" as being essential to reforming the nation’s food safety system.

The bill could be strengthened by modernizing FDA’s outdated 1938 enforcement tools with stronger civil penalties, better traceability and oversight, and broader recall authority. The bill also needs to provide for new resources to implement these programs and hire more inspectors at the FDA. Hopefully, these issues will be addressed in legislation currently being drafted in the House of Representatives.

Passage of comprehensive legislation to modernize FDA’s food safety authorities this year would be an important step to modernizing our nation’s food safety system. It is only the first step however. In the next Administration, Congress should enact legislation that will bring our entire food regulatory system into the 21st century by creating a unified food agency with a single leader and a firm budgetary foundation. The FDA Food Safety Modernization Act is an important step towards this goal. 


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I'm having trouble keeping up with all the companies, mostly retailers, recalling E. coli-contaminated beef, mostly from Nebraska Beef.  Say, who is still buying from them?  The most recent list is:

Whole Foods

City Markets

King Soopers

Fred Meyer

Renna's Meat

Cub Foods

Bigg's Markets

Stater Brothers

So, to recap, since Spring of 2007, over 44,000,000 pounds of E. coli-tainted meat has been recalled.  And, I did not think the Beef Industry liked me.  Click on the Picture above for a spreadsheet on 2007 and 2008 recalls - right off the FSIS website.

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"Blog Release"

Bill Marler, food safety advocate and E. coli attorney, whose Seattle law firm, Marler Clark, has been contacted by victims of the E. coli outbreak traced to the S&S’s hamburger recall and outbreak that has sickened at least 80 Boy Scouts, called today on S&S to pay the medical bills and lost wages of all individuals who became ill with E. coli infections as part of the outbreak.

“We know that at least eight became ill with E. coli infections after eating S&S hamburger,” Marler said. “The cost of treating victims of E. coli infections can run in the tens of thousands of dollars, or in a severe case, even in the hundreds of thousands of dollars,” Marler continued. “These families need S&S to do more than promise to cooperate in the investigation into this outbreak. They need to know that S&S intends to fulfill its corporate responsibility by looking out for its customers.”

Marler noted that in other outbreak-situations companies such as Chi-Chi’s, Dole, Jack in the Box, Con Agra, Odwalla and Sheetz advanced medical costs for outbreak victims whose illnesses were traced to their food products.

Since the Jack in the Box E. coli outbreak in 1993, Bill Marler has represented thousands of E. coli victims against corporations such as AFG, Bauer Meats, BJ’s Wholesale Club, Byerly’s, ConAgra, Cub Foods, Dole, Emmpak, Excel, Finley School District, Fresno Meat market, Gold Coast Produce, Habaneros, Interstate Meats, Jack in the Box, Karl Ehmer, Kentucky Fried Chicken, King Garden, Kroger,  Lunds, McDonalds, Odwalla, Natural Selections, Nebraska Beef, Olive Garden, Peninsula Village, Pat & Oscar’s, PM Beef Holdings, Sam’s Club, Sizzler, Spokane Produce, Sodexho, Supervalu, Taco Bell, Taco John’s, Topps, United Food Group (UFG), Walmart, Wendy’s and Whole Foos. Total recoveries on behalf of victims are in excess of $300,000,000.

Several times a month Bill, through the non-profit OutBreak, Inc., speaks to industry and government throughout the United States, Canada, China and Australia on why it is important to prevent foodborne illnesses. He is also a frequent commentator on food litigation and safety.

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Since the spring of 2007, the following E. coli O157:H7, Class I Recalls have been announced - amounting to over 39,000,000 pounds – 19,500 tons - of E. coli-tainted meat being recalled. Hundreds have been sickened, many seriously.  The latest recall by S&S Meats of 153,630 pounds has been linked to as many as 70 Boy Scouts’ illnesses. The list of recalls:

Tyson Fresh Meats 3/2/07 16,743 FSIS Recall - E coli
Richwood Meat Company 4/20/07 107,943 FSIS Recall - E coli
HFX, Inc 4/20/07 259,230 FSIS Recall - E coli
PM Beef Holdings 5/10/07 117,500 FSIS Recall - E coli
Davis Creek Meats 5/11/07 129,000 FSIS Recall - E coli
Tyson Fresh Meats 6/8/07 40,440 FSIS Recall - E coli
United Food Group 6/3-6/9/07 5,700,000 FSIS Recall - E coli
Abbott's Meat Inc 7/21/07 26,669 FSIS Recall - E coli
Custom Pack 7/25/07 5,920 FSIS Recall - E coli
Interstate Meat 8/30/07 41,305 FSIS Public Health Alert - E. Coli
Fairbank Farms 9/5/07 884 FSIS Recall - E coli
Impero Foods 9/29/07 65 FSIS Recall - E coli
Topps Meat Company 10/6/07 21,700,000 FSIS Recall - E coli
Cargill 10/6/07 845,000 FSIS Recall - E coli
J&B Meats 10/13/07 173,554 FSIS Recall - E coli
Arko Veal Co 10/13/07 1,900 FSIS Recall - E coli
Blue Ribbon Meats 10/24/07 8,200 FSIS Recall - E coli
Del Mar Provision Company 10/27/07 50 FSIS Recall - E coli
Totinos/General Mills 11/1/07 3,300,000 FSIS Recall - E coli
Cargill 11/3/07 1,084,384 FSIS Recall - E coli
American Foods Group 11/24/07 95,927 FSIS Recall - E coli
Snapps Ferry 12/17/07 102 FSIS Recall - E coli
Fresh Brands 12/27/07 14,800 FSIS Public Health Alert - E. Coli
Mark's Quality Meats 1/5/08 13,150 FSIS Recall - E coli
Rochester Meats 1/12/08 188,000 FSIS Recall - E coli
Palama Holdings 5/8/08 68,670 FSIS Recall - E coli
Fairbank Reconstruction Co 5/12/08 22,481 FSIS Recall - E coli
JSM Meat Holdings 5/16/08 undetermined FSIS Recall - E coli
Dutch's Meats 6/8/08 13,275 FSIS Recall - E coli
Kroger 6/25,7/3 2008 undetermined FSIS Recall - E coli - current
Nebraska Beef 6/30, 7/3 2008 5,300,000 FSIS Recall - E coli - current
S&S Meats 8/6/08 153,630 FSIS Recall - E coli – current

What will it take to get someone to do something to fix a food safety system in the beef industry that is clearly broken?  More illnesses and deaths?  Grandma's in ICU's in Georgia and sick Boy Scouts not enough?  What will it take?  One thing for certain, the only person to benefit from this is me!  We have never had more E. coli cases linked to contaminated beef in our office since the Jack in the Box outbreak of 1993.  And, I thought the meat industry did not like me.

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In just a year and a half, the American meat industry has experienced a whiplash of beef recalls. 40 million pounds of meat tainted with highly toxic E. coli O157:H7 has been publicly recalled, up by a staggering factor of two hundred from the 2006 amount of only 181,900 pounds.

“This is beyond the ‘wheels coming off’ of the meat supply system,” said food borne illness attorney William Marler. “It’s the entire train in a tangled heap. And the people caught in the train wreck are you and me and all of our neighbors. When reports say that there is a one in 400 chance that the package of ground beef you pick up at the supermarket will be tainted with a lethal bacterium, the food safety system is no longer functioning, and immediate, radical steps must be taken.”

In more than thirty recalls ranging from a few hundred to millions of pounds, the Food Safety Inspection Service (FSIS) has deemed E. coli contaminated meat a class I (one) health hazard to consumers. (A class I recall involves a health hazard situation in which there is a reasonable probability that eating the food will cause health problems or death.)

“There are many theories as to why there has been such an unprecedented jump in E. coli,” said Marler. “It could be regulatory complacency, better reporting, or immigration sweeps that have left slaughterhouses empty of skilled workers. Global warming may be spreading fecal dust. High oil prices may have led to an E. coli-producing diet for cattle. The microbe itself may even be evolving to elude capture. Another possibility is that the higher costs of slaughterhouse inputs (beef cattle) have collided with retailer’s low price pressures on outputs (hamburger) from those same slaughterhouses. These ideas need investigation and research, so that real change can begin.”

To advance that change, Marler reached out to the food safety community and asked for ideas from experts, scientists, regulators, and food agency brass. He distilled the volumes of submitted suggestions into ten action items:

1.   Improve surveillance and reporting of bacterial and viral diseases.
2.   Require real training and certification of food handlers at restaurants and grocery stores.
3.   Stiffen license requirements for large farm, retail, and wholesale food outlets.
4.   Increase food inspections.
5.   Reorganize federal, state, and local food safety agencies to increase cooperation and reduce wasteful overlap and conflicts.
6.   Establish tax credits for companies with good food safety records, and greater legal consequences for sickening or killing customers with tainted food.
7.   Use our technology to make food more traceable
8.   Promote university research
9.   Improve consumer understanding of the risks of food-borne illness
10. Provide Presidential leadership on a topic that impacts every single one of us.

“There are a lot of very smart, very dedicated professionals in the food safety community,” Marler concluded. “They have spent their careers working toward a better food supply, and that collective knowledge is available to design and implement change. We need our leaders to get on board, and get the food safety train back on track.”

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My phone rings – I pick it up. I had a nice chat with the folks at Levick about the PR nightmare that companies get themselves into during a foodborne illness outbreak:

Attorney Bill Marler, of the Seattle-based firm Marler Clark, LLP, PS, is an accomplished personal injury lawyer and a major force affecting food safety policy in the United States and abroad. He and his partners have represented thousands of individuals in claims against food companies whose products have allegedly caused serious injury and death. During a career spanning three decades, Bill Marler has secured more than $300 million for his clients. He’s written for numerous legal publications and speaks on food safety issues around the world.

Here’s what he had to say about what class actions do to brands and how companies can best can move forward once they’re resolved. Key lessons from the other side… Continue Reading...

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Under the category, “when it rains it pours,” the meat packing industry took a hard hit – or, was it a stun gun to the head? The Milwaukee Journal Sentinel reports this morning on the “stunning” victory of my friends, Fred Gordon and Ron Pezze, over “big beef” and the lawyers and insurance corporations that protect them.

Meatpacker Excel must pay Sizzler $7.1 million for E. coli outbreak

The Jury of Milwaukee citizens set a strong message to the industry to clean up their sh*&:

A jury Wednesday found that meatpacker Excel Corp. will have to pay Sizzler USA, a national restaurant chain, more than $7.1 million for lost revenue resulting from publicity surrounding the outbreak of a food-borne illness that killed a child and sickened scores of others at restaurants here eight years ago. The jury award brings the cost to Excel to $18.5 million plus lawyer fees.

Here is the kicker:

The jury was told that Excel had not admitted that its meat from its Colorado plant was the source of the deadly bacteria until just weeks before the settlement with the Kriefall family and that E&B had settled to the maximum of its insurance policy years ago.

“What took Excel so long was the fear of facing you,” Fred Gordon, a lawyer for the chain, told the jury.

Gordon and Pezze painted a bleak picture of the operation of the plant where the tainted meat was produced. They pointed to a high annual turnover in employees — 1,200 of the 2,000 — most of them immigrants; that the plant had been cited 17 times in three months for violations; and that some employees “harassed” federal inspectors by following them around.

Gordon noted that every 12 seconds an animal was killed at the plant, and that a retired federal inspector had testified that the plant could be made safe by slowing down the operation.

The jury system works.  "Big Beef," see ya in court.

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So, Senator Obama's Food Safety Bill landed in my inbox about a minute ago.  I have not read it, but thought I would get it out to my avid blog readers.  I'll comment on it between dealing with more meat and produce recalls.  The Bill is S. 3358 - “A bill to provide for enhanced food-borne illness surveillance and food safety capacity.”

Click on the above.  If that does not work, email me at bmarler@marlerclark.com.  After a quick read, my thoughts are that Obama is right on the mark - a very great start.  However, at a funding level of only $25,000,000 per year, perhaps a bit light on funding.  Highlights of the Bill are:

• Enhance Food-borne Illness Surveillance

A.  Inform and evaluate efforts to prevent food-borne illness
B.  Enhance the identification and investigation of, and response to, food-borne illness outbreaks
       1.  Coordinate and improve food-borne illness surveillance systems between local, state and federal governments to more rapidly support outbreak investigations.
       2.  Share data, stool and food isolates between local, state and federal governments AND the public.
       3.  Improve epidemiological tools, expand genetic fingerprinting capacity, annual reports on food-borne illness surveillance and outbreaks.
       4.  Establish long-term follow-up of late complications of food-borne illnesses.
       5.  Support scientific research.

• Establish Food Safety Working Group

A.  Consisting of local, state and federal government food safety AND industry AND consumers to make recommendations for:
       1.  Prioritizing needs to prevent food-borne illnesses.
       2.  Improving access to food-borne illness surveillance data.
       3.  Reducing barriers for improvements for reducing food-borne illness.

• Improve Food Safety Capacity

A.  Strengthen oversight of food safety at retail level.
B.  Strengthen capacity of state and local agencies to carry out inspections of food processing establishments.
C.  Survey state and local capacities and needs for enhancement with respect to:
       1.  Staffing levels and expertise.
       2.  Laboratory capacity.
       3.  Information systems.
       4.  Legal authority for roles in national food safety system.

• Implement Food Safety Plan

A.  Assess adequacy of capacity to perform food safety functions of government.
B.  Action plan to meet highest priority capacity needs.
C.  Improve coordination and information between local, state and federal food safety agencies.
D.  Grants to local and state government to enhance food safety capacity and programs.


OK, he had me at hello.  My thoughts on the topic can be found at "Tainted Food: How To Combat Food Poisoning in the United States? Mr. McCain, Mr. Obama, are You Paying Attention?"

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According to Jane Zhang of the Wall Street Journal, "the issue of food safety is also gaining attention on the campaign trail. Tuesday, Sen. Barack Obama, the presumptive Democratic nominee for president, introduced legislation that, among other things, aims to identify the needs of state health departments and increase the sharing of information among public-health and regulatory agencies."  I have been unable to find a link to the legislation.  I assume he did do it.

Perhaps he has been reading my posts between waffles:

It is time for politicians to notice that consumers are less and less confident in our food supply

Tainted Food: How To Combat Food Poisoning in the United States? Mr. McCain, Mr. Obama, are You Paying Attention?

Obama - Where is the Beef?

As I have said before, with 76,000,000 million Americans being sickened, 325,000 hospitalized and at least 5,000 deaths every year due to food poisoning, I am sure that politicians can not avoid this issue.

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I had a nice chat last week with one of the three “Haphazard Gourmet Girls.”

The Haphazard Gourmet Girls are big fans of Bill Marler, the foremost food poisoning attorney in the United States. Mr. Marler, of Seattle's Marler Clark law firm, has made a career of very successfully suing high-profile Food Industrial Complex corporations, and also writes the excellent, erudite, highly informative Marlerblog, which covers all kinds of foodborne illness issues.

I usually am a bit shy when interviewed.  However, Eddie/Chef Couture – “Editor in Beef,” got the better of me.  Some of my best quotes from her post:

• Many people--including me--think Bill Marler is a modern-day superhero for his tireless work fighting Foodie crimes of poisonings, but his closest friends won't have him over for dinner, and his wife worries, only half-jokingly, that one day he'll wind up "crushed into meat patties somewhere in Omaha."

• What else happens when you’re brutally aware that one of the most fundamental human behaviors can also, accidentally and haphazardly, have profound mortal consequences?  "I drink a lot," Mr. Marler says, dryly, and chuckles.
  

• "I'm probably the only guy in America who walks down the meat aisle in a supermarket and thinks cowsh*t, cowsh*t, cowsh*t," Mr. Marler says, almost gleeful.

• “It really does drive me insane when I see the food-channel types extolling the virtues of raw milk without making it clear there’s a risk," Mr. Marler says. “If you’re a little kid or an elderly person or pregnant, raw milk can be deadly. There's got to be that balance between the food pornographer side of us and the safety side, and the raw milk people just ignore that.”

• "Beijing is not a bland place," Mr. Marler says. "You can get bull penis in a restaurant made five different ways. I went to a lot of banquets where they were serving just nasty stuff--I still have no idea what it was."

• So, given the huge amount of time Mr. Marler spends traveling by air, does he eat on planes?  "I have a couple of Scotches every time I'm on a plane, and I've never gotten sick," Mr. Marler says.

• Did Mr. Marler eat tomatoes during the most recent two-month recall extravaganza?  "Yes. I just got lucky,” he says. “And I only ate tomatoes with wine....dip a jalapeno in Scotch, and you can probably eat one with no problem."

There seems to be a common thread in my quotes.

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This was taken by my oldest daughter, of my middle daughter, last summer when we were on the Great Barrier reef searching for our relatives.  The scientific classification of sharks:
Kingdom: Animalia - Phylum: Chordata - Sub phylum: Vertebrata - Class: Condrichthyes - Subclass: Elasmobranchii - Super order: Selachimorpha

This summer, with Tomatoes or Peppers with Salmonella and E. coli once again in Nebraska Beef, there is little time for family reunions.

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Here is a letter that I sent to all members of the US Senate and House Agriculture Committees

RE: Food Safety in the United States

Dear U.S. Congress Member:

I am writing to you because the American people are losing confidence in the U.S. government’s ability to keep our food supply safe.

As you know, there is presently an outbreak of a Salmonella strain known as Saintpaul that has made more than 1,250 people sick in forty-three states, put 228 in hospitals, and contributed to the deaths of two elderly men. It is the largest fresh produce outbreak in two decades. The source of the outbreak remains, in part, a mystery. A two-month-long federal investigation has been able to tell us only that jalapeño peppers (and possibly tomatoes and cilantro) are causing part of the outbreak.

However, the present multi-state E. coli O157:H7 outbreak is even more dangerous and demands the Agriculture Committee’s full attention. Omaha’s Nebraska Beef Ltd. has spread E. coli contaminated beef across the country to its various suppliers, all under the guise that existing USDA policy supposedly states that it is all right to sell tainted meat as long as it was ‘intact’ when it left the plant. So far, there are nearly sixty ill in Michigan, Utah, Georgia, New York, Indiana and Ohio. Some women in Georgia and Michigan have been in the hospital for over a month. 5.3 million pounds of meat has been recalled.

From 2003 until 2007, E. coli illnesses from fresh produce - spinach, lettuce, and sprouts - dominated my practice. After ConAgra recalled 19.3 million pounds of hamburger in 2002, I thought that E. coli in beef had been brought under control. In 2006, federal recalls involved just 181,000 pounds of meat, down from 23 million pounds in 2002. However, since the spring of 2007, we’ve seen an explosion of nearly 40 million pounds of beef recalled because it was contaminated with E. coli O157:H7. That’s nearly twenty thousand tons. Hundreds have been sickened and I am back in the beef business.

I fear we are at a tipping point. If this situation is allowed to further deteriorate, the public harm is going to be immeasurable – both in terms of lives damaged and businesses lost.

After the 1993 Jack-in-the-Box outbreak that killed four children and sickened nearly 700 in several states, the Food Safety & Inspection Service responded by creating and aggressively enforcing the Mandatory Risk Management System. Based on the research and practices of the U. S. space program, the new risk management system established check points at every phase of meat processing. And more importantly, the presence of E. coli was defined as an adulterant under the Federal Meat Inspection Act. It took years for those changes to be adopted and accepted, but progress - significant progress - was made. Until the spring of 2007, E. coli-related illnesses were falling and recalls became a rarity.

We need immediate and aggressive Congressional oversight and support of the Food Safety & Inspection Service of USDA, the U.S. Food and Drug Administration, and the Centers for Disease Control. Here are my suggestions for where Congress should focus its efforts:

Improve disease-surveillance so that we can better identify and trace what foods are making people sick. The frontlines of the medical community need to be encouraged to routinely test for foodborne pathogens and promptly report findings to local and state health departments and the CDC.

Government agencies, at all levels, need to learn to “play well together.” Turf battles like those we see between state health departments and the USDA need to stop so we can track illness to its source. Without effective traceback, companies are not held responsible, and thus have no incentive to stop selling tainted food.

Increase inspections. While domestic production remains a problem, imports pose an increasing risk, especially if terrorists get into the act. Food must be inspected before it enters our country, and we need more inspectors, better technology, and better training to do this effectively.

Reform federal, state and local agencies to be more proactive, and less reactive. This will require agencies to be properly funded, and also held accountable.

Modernize food safety statutes by replacing the present conflicting laws and regulations with one uniform food safety law that puts public safety first.

Increase legal consequences for causing foodborne illness and death. We don’t need to impose the death penalty, as China did recently. But we should impose serious consequences for companies who don’t do enough to keep their products safe, especially if they are repeat-offenders.

Use advanced technology to make food traceable from farm-to-table. Then, when an outbreak occurs, authorities can quickly identify the source, limit the numbers of people injured or killed, and stop the disruption to our economy.

Promote university research to develop better technologies to make food safe, and for testing foods for contamination.

Provide economic incentives, like tax breaks, to companies that push food safety, and invest in research and training.

Improve consumer understanding of the risks of food-borne illness.

I hope that you will act upon these recommendations. The 76 million Americans who suffer from food-borne illnesses annually—including 325,000 who require hospitalization, and the families of the 5,000 who die—would all be grateful.

Sincerely,

William D. Marler

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Food safety advocate and attorney William Marler is calling on the Meat Industry and the USDA Food Safety Inspection Service (FSIS) to make the inspection reports from meat processing facilities visible and easily available to the public so that consumers—in including grocery stores and restaurants—can make informed choices on which products they want to purchase.

“During the last decade, the number of city and state health departments that post restaurant inspection results online has increased significantly, said Marler from his office in Seattle. “Moreover, in places like Los Angeles County, all restaurants regularly receive either a letter-grade or inspection-score, and these must be prominently posted near the entrance to the restaurant. The primary goal of these efforts is to motivate restaurants to improve sanitation and food-handling practices so that fewer people get sick. The more customers know about the relative safety of a restaurant’s operation, the better informed their choice to dine at a given place can be. When faced with a choice between dining at a restaurant that received a C-grade versus an A-grade, it is pretty much a no-brainer that people are going to be more inclined to spend money at a restaurant with a higher grade!

“But if making this kind of information easily available online is such a no-brainer, why then does the FSIS make it so difficult for the public to find out the results of thousands of inspections it performs everyday in meat plants across the country? In 2005, FSIS employed over 7,600 inspection program personnel in about 6,000 federally inspected establishments nationwide with an annual cost of $815.1 million. That is a lot of money to spend on inspections given that the public does not currently have any way by which to gain easy and timely access.

“Right now, for all meat products made in a USDA-inspected plant, the plant’s establishment number must appear on the label with the mark of inspection. But if a consumer trying to decide what brand of frozen hamburgers to buy wants to compare one plant’s inspection records with another, the only way copies of the inspection reports (called Noncompliance Records, or NR’s) can be obtained is by making a request under the Freedom of Information Act (FOIA) (Here are some examples).  These FOIA requests can, however, take years to be processed. And so usually it is only after there has been a big outbreak and recall—like the recent ones involving Topps or Nebraska Beef—that the public learns about how many times a plant has failed an inspection, or been found to be in violation of safety regulations.

“Consumers should know the record of the company responsible for any meat they purchase,” sums up Marler. “We’ve paid for the inspections—we’re owed that much, at least.”

Over the last few days I have had several interviews with the media - here are a few:

Food Litigation Lawyer Bill Marler Is Careful about What He Eats News

“It is only companies that don’t stay focused on food safety, that I get repeat business from.”

More suits to come

“It’s frustrating to me to be getting all of this business,” Marler said. “We thought we were out of the E. coli business in 2002. Congress needs to get into the middle of this.”

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It is time politicians take notice – a recent poll found:

• Nearly half (46 percent) of consumers have changed their eating and buying habits in the past six months because they're afraid they could get sick by eating contaminated food.

• An overwhelming number (80 percent) support setting up a better system to trace produce in an outbreak back to the source, the poll found.

• Three in four people remain confident about the overall safety of food.

• The survey found gender, racial and economic gaps on attitudes about food safety. Women, who do most of the shopping, were more concerned than men. For example, 39 percent of men said they were "very confident" that the food they buy is safe, but only 23 percent of women said they felt that way. However, men and women agreed on the need for better federal oversight.

• 80 percent of Americans would support new federal standards for fresh produce.

• 86 percent said produce should be labeled so it can be tracked through layers of processors, packers and shippers, all the way back to the farm.

Well at least “The Haphazard Gourmet Girls” are paying attention:  "Bill Marler: The Avenging Angel Of The Chowpocalypse:"

Once again, Bill Marler, the leading genius watchdog of the Food Industrial Complex and an incredibly even-handed analyst, parses the where, how & why of contamination outbreaks with an excellent summation of E. coli issues.

And, the “Food Law Guy:”  Improving Food Safety: Insights from Intensive Care

Paraphrasing Tom Sawyer, a person who takes a bull by the tail once, learns sixty or seventy times more than a person who hasn’t.  Perhaps no one has seen the inside of as many intensive care units for foodborne illness as Bill Marler.  Gain some of Marler’s insight on improving food safety by reading his latest commentary, “E. coli O157:H7 is a powerful and deadly bacterium.”

“You cannot see it, taste it, or smell it. 250,000 E. coli O157:H7 (E. coli) bacteria will fit on the head of a pin. Ten to 50 will kill your child or your grandmother."

And, the “Food Snark:”  Bill Marler, Food Czar, Cries Out (Again)

Some lawyers want better BMWs, food poisoning lawyer Bill Marler wants to see fewer kids die from E. coli O157:H7.  He does everything he can to raise awareness of the powerful deadly bacteria in hope to see fewer kids lose their kidneys, even when that means driving around in an ugly VW bug with ECOLI on his license plates and taking shit from Tort Deformists who have dubbed him an ambulance chaser.

I’ve called Bill Marler “Batman” for a while now, partially because he could use a bat-plane for all the traveling he does, but also because he truly is a superhero to the children whose lives would be lost without him.  However, I think it’s about time to upgrade him to Food Czar, because he’s already king of the industry, and he’d look good in a crown.

Honestly, Bill Marler is the only lawyer I know who works so hard every day to try to put himself out of business.

And, Jane Genova of “Law and More:”

... I don't hear a peep from presidential candidates Barack Obama and John McCain about making sure what children wind up putting in their mouths is safe - whether that's food, milk, or a toy imported from China. Is it true, as the article in FORTUNE by Marc Gunther claims, that government is increasingly less in the loop on consumer safety issues? Replacing it, documents Gunther, are the new watchdogs: Industry, plaintiff lawyers, and citizen activists....

I envision a cabinet-level position. We can call its head The Food Safety Czar. Right now the best-qualified pro in that field seems to be Bill Marler of Marler Clark. Google his name and you'll see what I mean. Or you can read some of the testimony he delivered on Capitol Hill - Download Testimony here.

And, the Food Law Prof Blog, “Food Czar Bill Marler on E. coli and Food Safety”

And, the Fanatic Cook, "For His Work In Food Safety, Bill Marler Deserves A Spot In The Next Administration"

There are times when a man would do well to win a certain job. And there are times when a job would do well to win a certain man.

The job of Food Safety Czar in this country would do well to win Bill Marler.

This country does not currently have a Food Safety Czar. It needs one. Someone to cut through the muck that swaddles numerous, discrete food-related government agencies. Someone with a history of going to bat for consumers, a successful history. Someone with a tireless passion for this work.

To the next President: If you intend to make food safety a priority, you'll want Bill Marler in your cabinet.

Efoodalert weighs in:  I propose that the next President form an independent Food Safety Commission. The Commission should be non-political (as opposed to by-partisan), and should receive testimony, briefs and proposals from industry, academia, consumers and regulators. The mandate should include:

1. Determine a current estimate of food-borne disease in the United States;
2. Recommend improvements to the current methods for reporting illnesses and detecting incipient outbreaks;
3. Review the present US food safety regulatory structure and compare its effectiveness with food safety regulatory structures adopted by other countries; and
4. Propose a new US food safety regulatory structure designed to respond more effectively to the current state of the US domestic and imported food supply.

It is vital that such a Commission be headed by an individual who does not owe loyalty to industry, regulators, or lobbying organizations. An individual who has no political axe to grind. An individual whose primary goal is to do whatever it takes to improve the safety of the country's food supply.

Bill Marler, are you listening?

Loud and clear.

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You cannot see it, taste it, or smell it. 250,000 E. coli O157:H7 (E. coli) bacteria will fit on the head of a pin.  Ten to 50 will kill your child or your grandmother.

More likely due the expertise of Children’s Hospitals, and other top medical centers around the country, deaths at times are avoided, however, often not before Hemolytic Uremic Syndrome (HUS) nearly kills.  HUS, a complication from an E. coli infection, can cause severe damage to kidneys, intestines, and pancreas.  Falling into a coma and suffering further from cognitive impairment are all too common.

I’ve seen the inside of too many of those Intensive Care Units with families who are scared senseless as they watch their children or mother shutdown.  For 15 years, this has been my world.   When I was an undergraduate, I read Upton Sinclair’s, The Jungle.  That book took the American public on a tour of the contaminated underbelly of the meat industry and they were sickened.  It led to the Pure Food & Drug Act and the Federal Meat Inspection Act, versions of which are still in place today.

Until 1993, I thought—because of those laws—that the United States had a safe and secure food supply. But, then came the Jack-in-the-Box E. coli outbreak.  It killed four, and sickened hundreds, including many who were gravely ill with HUS and related complications.  Many of those victims became my clients.

Once again, there was a public outcry for safe meat.  The Food Safety & Inspection Service responded by creating and aggressively enforcing the Mandatory Risk Management System.  Based on research and practices of the U.S. Space Program, the risk management system established checkpoints at every phase of meat processing.

The presence of E. coli was defined as an adulterant under the Federal Meat Inspection Act.  I continued to sue “Big Meat” as most of my clients up to 2002 were children who were made sick by eating E. coli contaminated meat.  I recovered over $350 million during this period from the meat industry and the restaurants they supplied in verdicts and settlements on behalf of those clients.  In 2003 recalls of meat laced with E. coli began to decline.  After 24 million pounds of contaminated beef were recalled in 34 separate incidents in 2002, recalls dropped off to just over a million pounds a year for the next three years, and then to just 181,900 pounds in 2006.  The Centers of Disease Control and Prevention saw E. coli – related illnesses drop 48%.

But then came Spring 2007. E. coli, which begins its life in the hindgut of a cow, mounted a surge on its home court.  And, it came back with a vengeance.  Thirty-three million pounds of beef would be recalled in 22 incidents.  All over the country, slaughterhouses, packing and distribution centers, retail outlets, and restaurants were once again testing positive for E. coli and people-mostly children-were getting seriously sick.

The American meat supply, which had again been touted as safest in the world, tumbled back into disarray.  But, why?

As with any unexplained mystery, theories abound.  Could it really just be meat industry complacency?  Did everyone respond to the good numbers in 2006 by taking a long nap?  Did meat processors slack off—consciously or unconsciously—and relax their testing procedures?

Or could it be better reporting?  Doctors are more aware of E. coli now, and perhaps when patients present symptoms of food poisoning; tests are more likely to be ordered.  When the presence of E coli is found and reported, a recall is triggered.

There’s always global warming.  Seriously though – very smart people have posited that droughts in the southeast and southwest have launched more fecal dust into the air, which then finds its way into beef slaughtering plants.  It has also been suggested that the deluging rainfall in other areas created muddy pens—an ideal environment for E. coli.

While we’re at it, why not blame high oil prices?  High gas prices have fueled (sorry) the growth of ethanol plants.  These plants are often built next to feedlots, and a byproduct of the ethanol production process—distiller’s grains—is considered an excellent (and cheap) alternative to corn for cattle feed.  Unfortunately, research at Kansas State University associates the use of distiller’s grains as feed with an increase in the incidence of E. coli in the hindguts of cattle.

Another controversial issue may affect the meat supply.  The New York Times reported that immigration officials began a crackdown at slaughterhouses across the country in the fall of 2006.  Experienced—albeit undocumented—workers have been cleared out and replaced with unskilled, inexperienced labor.

And then there’s Darwin.  Another theory holds that interventions have caused the wily E. coli microbes to adapt, selecting pathogens that are more resistant to detection or intervention.  E. coli back in our meat cannot be tolerated.  We’ve got a lot of summer of 2008 left. Summer has always been kind to the E. coli bug.  More than 5.6 million pounds of E. coli contaminated beef has been recalled so far in 2008, most supplied by Nebraska Beef Ltd., via the Kroger Grocery chain.  All of which is responsible for a multi-state outbreak of E. coli that again is filling up the ICU’s in Hospitals in the seven states.

What is being done?  Not much.

Congress has held some hearings, but the only new reform is that the names of retail stores that received meat and poultry involved in recalls with high health risk will be made public.  Good as far as it goes.

However, despite 76,000,000 American’s being sickened, 325,000 hospitalized and 5,000 deaths each year, food safety has not made it as a Presidential campaign issue.  Congress, Democrats and Republicans, have about run out its clock.  But E. coli is back in our meat and we better care.

Solutions?
Continue Reading...

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On a day that another politician, this time the Florida Governor, said: "we continue to have the safest food supply in the world;" on a day that I finally get one of my Op-eds published, thanks goes to Undersecretary for Food Safety (FSIS) Richard Raymond, and Agriculture (USDA) Secretary Ed Schafer for announcing plans to tell the public which grocery stores and other retailers have received tainted meat during “Class I” recalls.  Consumers now can finally be told if their local grocery store got tainted meat during a recall.  Under the new rule, which is expected to be published next week and take effect 30 days later, retailers' names will be posted on the Agriculture Department Web site during so-called "Class I" meat and poultry recalls - those deemed to pose a definite public health risk.

So, Secretaries, I have one more idea - why not make "Non-compliance Reports" ("NRs") public and online.  Let the public see how well, or badly, some of your inspected facilities are operating.  I think if you had on line Establishment 19336's (a.k.a Nebraska Beef, Ltd) NRs from 2002, perhaps the illnesses and deaths from 2006 and 2008 would not have happened.

OK, one more "beef."  A few days ago USDA spokesman Amanda Eamich said that Nebraska Beef's plan "satisfies concerns raised after the meat was linked to an E. coli outbreak."  However, "she would not discuss the details of the changes Nebraska Beef had proposed."  Boy, given that a few days before that she said that "Nebraska Beef responded slowly to indications that its products might be tainted with E. coli," and that "Nebraska Beef was notified in the first half of June that two samples of its trim to be used in ground beef had tested positive for E. coli," and that "the establishment didn't take appropriate actions when positives were found," you would think that this whole process would be a little more transparent?

Perhaps we need another press conference? Or, two?

Perhaps the presidential candidates need to read:  "Tainted Food: How To Combat Food Poisoning in the United States? Mr. McCain, Mr. Obama, are You Paying Attention?"

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I have the honor of speaking to ConAgra's Food Safety Council on Wednesday.  I always find it a bit odd that I get asked to speak to corporations that I have sued, or are suing, on behalf of victims of food poisoning.  But, if they are willing to listen, I am willing to talk.

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Once again, hundreds of Americans have been sickened by outbreaks of foodborne illness.  This time it is nearly 1,000 (and counting) in 40 States put down by salmonella in fresh tomatoes (or is it the salsa?), and nearly 50 in Ohio and Michigan (possibly Georgia) stricken by the deadly E. coli O157:H7 bacteria, again in hamburger.  Tomatoes have been recalled nearly every year for the last 10, with hundreds ill.  Hamburger, well, since the spring of 2007, we have recalled over 30 million pounds after it was linked to ill people, mostly children in nearly every state.  Consumers (hint candidates - voters) have lost confidence in the businesses that feed them and a government that is supposed to protect them.

After a brief lull a few years ago, we’re seeing a sweeping increase in outbreaks of salmonella, E. coli and other foodborne contaminates.  There are many reasons for this ugly trend – businesses more focused on sales than safety, fragmented government agencies with conflicting missions, inadequate inspection of foods, poorly educated food handlers and lack of consumer awareness, to name a few.  The reality is that we now live in a global food supply, like it or not, and we need to come up with global solutions that leverage our scientific and technological capabilities to prevent human illness and death.

These outbreaks should be good news to a lawyer like me, since I specialize in representing people sickened by tainted food.  But it isn’t, because it means I’ll be seeing more four and five-year-old kids hooked up to kidney dialysis machines, their lives hanging by a thread because they ate a tainted burger topped by contaminated tomatoes.

In the last few months, I’ve asked some of the leading experts in the field – doctors, researchers, food safety consultants and governmental officials - to suggest what the next President - be it McCain or Obama - could do to combat this recurring epidemic. Here are the “top eleven” of what they (with a few edits and additions by me) suggest:

• Improve surveillance of bacterial and viral diseases.  First responders - ER physicians and local doctors - need to be encouraged to test for pathogens and report findings directly to local and state health departments and the CDC promptly.  Right now, for every person counted in an outbreak there are some 20 to 40 times those that are sick but never tested.  The more we test, the quicker we know we have an outbreak and the quicker it can be stopped.

• These same governmental departments, whether local, state or federal, need to learn to “play well together.”  Turf battles need to take a back seat to stopping an outbreak and tracking it to its source.  That means resources need to be provided and coordination encouraged so illnesses can be promptly stopped and the offending producer - not an entire industry - are brought to heal.

• Require real training and certification of food handlers at restaurants and grocery stores.  There also should be incentives for ill employees not to come to work when ill.  We should impose fines and penalties on employers who do not cooperate.

• Stiffen license requirements for large farm, retail and wholesale food outlets, so that nobody gets a license until they and their employees have shown they understand the hazards and how to avoid them.

• Increase food inspections.  While domestic production has continued to be a problem, imports pose an increasing risk, especially if terrorists were to get into the act.  Points of export and entry are a logical place to step up monitoring.  We need more inspectors - domestically and abroad - and we need to require that they receive the training in how to identify and control hazards.

• Reorganize federal, state and local food safety agencies to increase cooperation and reduce wasteful overlap and conflicts.  Reform federal, state and local agencies to make them more proactive, and less reactive.  This too requires financial resources and accountability.  We also need to modernize food safety statutes by replacing the existing collection of often conflicting laws and regulation with one uniform food safety law of the highest standard.

• There are too few legal consequences for sickening or killing customers by selling contaminated food.  We should impose stiff fines, and even prison sentences for violators, and even stiffer penalties for repeat violators.

• We need to use our technology to make food more traceable so that when an outbreak occurs authorities can quickly identify the source and limit the spread of the contamination and stop the disruption to the economy.  When I buy a book on line I can track it all the way to my mailbox.  However, we have yet to find the source of a tomato (or salsa) outbreak after months of sickening hundreds.

• Promote university research to develop better technologies to make food safe and for testing foods for contamination.  Provide tax breaks for companies that push food safety research and employee training.  Greatly expand irradiation of raw hamburger and other high-risk products.

• Improve consumer understanding of the risks of food-borne illness. Foster a popular campaign similar to Mothers Against Drunk Driving, which uses consumer power to promote a no-tolerance policy toward growers and companies that produce tainted food.
  

• Provide Presidential leadership on a topic that impacts every single one of us.

Perhaps this is a bit too much to ask the presidential candidates to chew on?  However, they should think about it at least politically, if not morally.  In America in 2008 it is criminal, that according to the CDC, ever year nearly a quarter of our population is sickened, 350,000 hospitalized and 5,000 die, because they ate food.  People who eat food and get sick also vote.  Mr. McCain, Mr. Obama, do the math.

Well, at least one person read what I wrote:  See, Seattle PI - "secret ingredients."

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If you weren't able to join us in Seattle for the conference Marler Clark sponsored in April, here's the next best thing.  We've posted the power point presentations from "Who's Minding the Store: The Current State of Food Safety and How it Can Be Improved" on Marler Clark.

As you'll recall, we had a tremendous array of speakers from the local, national, and international food safety communities - the power points are clickable from the speaker names, so you can browse through by panel and topic.

Thanks again to all of the speakers who shared their time and expertise.  We are considering making this an annual event.  I will keep you posted.

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A summary of the peer-reviewed literature relating to the “pros” of raw milk consumption was posted earlier this month. What about the “cons?” The overwhelming “con” of drinking raw milk according to the literature relates to food safety hazards. The following is an overview of the literature describing pathogens found in raw milk and outbreaks associated with consumption of raw milk and products made from raw milk.

Another possible “con” not well-documented in the literature is cost. First, commercial raw milk demands a premium price in the US with a gallon costing the consumer ~$12 compared with ~$7 for a gallon of organic pasteurized milk and ~$3-5 for a gallon of traditional pasteurized milk depending on the region and other factors. Second, the outbreaks, illnesses, and recalls resulting from raw milk consumption also incur costs for individuals and society:

• Medical expenses for acute care and long-term health problems
• Lost productivity and other indirect costs
• Costs to public health for investigation and control of outbreaks
• Losses to the dairy industry as a whole due to reduced consumer confidence following publicized outbreaks and recalls Continue Reading...

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Well, just made it back from London and Louisiana for dinner in Seattle.  Should be fun if I can remember what time zone I am in.  Congratulations to all the award winners (including me):

Outstanding Lawyer: William D. Marler, Marler Clark LLP
Outstanding Judge: Hon. Charles J. Delaurenti, II, King County District Court
William L. Dwyer Outstanding Jurist: Hon. H. Joseph Coleman, Washington Court of Appeals
Friend of the Legal Profession: Dean Kellye Y. Testy, Seattle University School of Law
Helen Geisness Award: Charles S. Burdell, Jr., Judicial Dispute Resolution
Outstanding Young Lawyer: Karolyn A. Hicks, Stokes Lawrence, P.S.
Pro Bono Award - Individual: Carl Palmer, McCune, Godfrey & Emerick
Pro Bono Award – Firm: Curran Law Firm
President’s Award: Alene Moris, Social justice advocate

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With the Michigan State Health Department linking Kroger ground beef to many of the illnesses in Michigan (which have also been linked to illnesses in Ohio), Kroger must recall all possibly contaminated ground beef said Seattle food safety attorney William D. Marler.

In 2007 companies voluntarily recalled ground beef products 21 times. The amount of recalled meat was more than 33 million pounds. The goal of a recall is to get the contaminated meat out of people’s homes, especially freezers. According to Marler, with nearly 50 people sickened in Ohio and Michigan E. coli outbreaks, it is irresponsible for a company like Kroger to not recall all potentially contaminated ground beef sold through their stores.

"Frankly, Kroger should recall the ground beef first and foremost for the safety of its customers, but also for self-preservation. If people become ill after Kroger could have recalled its ground beef products, it is exposing itself to a claim for punitive damages for having consciously ignored a known health risk to its customers," said Marler.

Interestingly, within a few hours of the above, this article appeared in the Toledo Blade:

Kroger recalls ground beef over E. coli fears; 32 stricken in Ohio, Michigan

Bill Marler, a Seattle attorney who specializes in E. coli litigation, said it took the USDA and Kroger too long to announce the recall. He said it’s rare for this many people to get sick before the announcement of a recall.

“They have certainly known for days, if not a week, that the epidemiological evidence was very strong that it was hamburger,” he said. “They should have done everything they could to get these products off the market.”

For full recall information visit FSIS.

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We both have made too much money off of hamburgers.  In his case a "Double Hamburger" hanging at the Tate Modern Museum in London (I know, no cameras allowed).

With E. coli O157:H7 sickening over 50 people in Ohio and Michigan in the last months tied to meat recalled in New Jersey, we are seeing in 2008 the "uptick" in E. coli cases that started in 2007.  Frankly, after taking $500,000,000 for the food industry (most of that from the beef industry and restaurants serving beef since 1993, you would think that they would stop allowing me to afford original works of art.

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Although a few thousands of miles away, I could not help thinking about the salmonella Saintpaul outbreak that has sickened over 500 in the US linked to tomatoes grown in Florida and perhaps Mexico (although with one genetic pattern (PFGE) to this outbreak, I am not sure two places sourced the contaminated tomatoes) and an E. coli O157:H7 outbreak that has sickened over 50 in Ohio and Michigan linked to hamburger produced in New Jersey.  I wonder how safe the tomatoes and hamburger are here in London on the Nottingham Street Markets?

Between speeches at the Royal Institute of Public Health here in London and the University of Cardiff in Wales, I have been in contact with the office.  We have had dozens of calls from people both sickened by salmonella and by E. coli - more work to come back to.

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Speech at the University of Cardiff went well.  Weather is like being home in Seattle.  I had time to visit a few castles today that date back well over 1,000 years.  I am thinking this one might well be a good base of operations for Marler Clark - especially if under siege from Corporations, Insurance Companies and their minions.

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I finished my lecture at the Royal Institute of Public Health in London where I received a John Snow tie, coffee mug and label pin (also inducted into the John Snow Society).  On the drive to Cardiff, Wales we stopped to see some rather interesting rocks:

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I am in London today (Sunday 5:00 AM - a bit jet-lagged) and am off to see if I can find the Broad Street Pump - famous because John Snow (a.k.a., father of Epidemiology) figured out that is was the water from the pump that was the vector in the 1854 Cholera outbreak.  Inside the cover of Steven Johnson’s “The Ghost Map” reads:

It is the summer of 1854. Cholera has seized London with unprecedented intensity. A metropolis of more than 2 million people, London is just emerging as a one of the first modern cities in the world. But lacking the infrastructure necessary to support its dense population - garbage removal, clean water, sewers - the city has become the perfect breeding ground for a terrifying disease no one knows how to cure.

But for John Show, my job tracking foodborne illness outbreaks would be a bit harder.  In the map above, I am staying about two blocks North of the intersection of Regent and Oxford - right across the Street from "All Souls Church" (and a Starbucks) on Langham.  I also saw press reports of the final settlement in the Sizzler case from 2000.  A great result on a very sad case.

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Click on the below and you should be able to download my presentation:

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At least pages 182-83, 188 and 196.

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As our Local, State and National Health authorities stumble to find the source of the Salmonella tainted tomatoes, I got an email from some nice person who found the following article about research our government has been doing on Salmonella and Tomatoes - Interesting read:

Animal and Environmental Impact on the Presence and Distribution of Salmonella spp. in Hydroponic Tomato Greenhouses

Submitted to: Journal of Food Protection
Publication Type: Peer Reviewed Journal
Publication Acceptance Date: December 19, 2007
Publication Date: April 30, 2008
Citation: Orozco, L., Iturriaga, M., Tamplin, M., Fratamico, P.M., Call, J.E., Luchansky, J.B., Escartin, E. 2008. Animal and Environmental Impact on the Presence and Distribution of Salmonella spp. in Hydroponic Tomato Greenhouses. Journal of Food Protection. Vol.71(4) pg. 676-683.

Interpretive Summary: Tomatoes contaminated with Salmonella, a pathogenic food-borne bacterium, have been identified as vehicles of human diarrheal illness known as salmonellosis. Contamination of tomatoes can occur at several points from farm to table. Therefore, an investigation examining the sources of Salmonella contamination of tomatoes grown in hydroponic greenhouses in Queretaro Mexico was conducted. The presence of Salmonella was determined on samples of tomatoes, water, soil, sponges, gloves, animal feces, and from the hands and shoes of farm workers. Salmonella was detected in all types of samples, except workers¿ gloves and hands. Methods were used to determine the characteristics of the Salmonella bacteria isolated from the various sources, and a method known as pulsed field gel electrophoresis was used to track the spread of Salmonella contamination from the different sources to the tomatoes. Several types of Salmonella bacteria that have been associated with human illness were identified. Animals, including opposums, mice, and goats and workers' shoes were identified as important sources of contamination of the tomatoes. Furthermore, there was a higher incidence of Salmonella in the greenhouses and on tomatoes during and after a flood, which resulted in water runoff entering the greenhouses. The study demonstrated that contamination of tomatoes grown in hydroponic greenhouses can occur from various sources, and critical control points from farm to table need to be identified to develop strategies to prevent contamination.

As I said before:

"Salmonella and tomatoes have an ongoing relationship," Marler said. "Sadly, it's a long list of outbreaks. We've gotten better at tracing the serotypes and finding the source of the tainted food, but we have to do more: we have to prevent contaminated food from entering the food supply in the first place."

In 1990, a reported 174 salmonella javiana illnesses were linked to raw tomatoes as part of a four-state outbreak. In 1993, 84 reported cases of salmonella montevideo were part of a three-state outbreak. In January 1999, salmonella baildon was recovered from 86 infected persons in eight states. In July 2002, an outbreak of salmonella javiana occurred associated with attendance at the 2002 U.S. Transplant Games held in Orlando, Florida during late June of that year. Ultimately, the outbreak investigation identified 141 ill persons in 32 states who attended the games. All were linked to consumption of raw tomatoes.

During August and September 2002, a salmonella newport outbreak affected the East Coast. Ultimately, over 404 confirmed cases were identified in over 22 states. Epidemiological analysis indicated that tomatoes were the most likely vehicle, and were traced back to the same tomato packing facility in the mid-Atlantic region.

In early July 2004, as many as 564 confirmed cases of salmonellosis associated with consumption of contaminated tomatoes purchased at Sheetz Convenience Store were reported in five states: Pennsylvania, Maryland, Ohio, West Virginia, and Virginia. Seventy percent were associated with tomatoes in food prepared at Sheetz convenience stores. In 2006 two outbreaks of salmonella-tainted tomatoes where reported by the FDA. One was blamed for nearly 100 illnesses in 19 states. FDA also traced tomatoes involved in another outbreak involving 183 people in 21 states.

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Off to England and Wales later this week after a stop in lovely Sacramento, California to continue the ongoing battle over the 2006 Dole Spinach E. coli cases.  Here are some of the details of the trip to the "mother land."

Dear Colleagues:

We are delighted to invite you to attend: ‘Caused Food Poisoning? : See you in Court?

What every business should know about the costs of food poisoning’ - the Inaugural British Food Journal Annual Lecture, to be held at the Royal Institute of Public Health, London, on the 17th June 2008 from 11.00 am.

The Keynote Address will be given by Bill Marler.

Bill Marler is the world’s foremost lawyer in the recovery of compensation following outbreaks of food poisoning, and to date has recovered over $0.5 billion for his clients. Bill Marler is the managing partner in the law firm of Marler Clark and has represented thousands of victims of food poisoning. He frequently speaks on food safety around the world and has helped to form Outbreak, a non profit making business dedicated to training companies on how to avoid food borne illness.

An introduction will be provided by Professor Chris Griffith, Editor of the British Food Journal and Head of the Food Research and Consultancy Unit at the University of Wales Institute, Cardiff, followed by the lecture. Refreshments will be provided during which time delegates will have the chance to network and talk to the world‘s foremost authority on the financial consequences of food poisoning. This is a unique UK opportunity for delegates to both learn and potentially save lives, money and businesses. The lecture will be of interest to anyone involved in food safety including businesses, trainers, environmental health practitioners and many others.

I will also be doing a similar lecture in Cardiff, Wales the following day - 'Hot Topics in the Agri-Food Industry."

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I thought it might be helpful to bring a bit of rationality to the "raw milk debate."  Here is a summary of the findings of a review of peer-reviewed literature on the topic of the consumption of raw milk at least the pros:

•    There is substantial epidemiological evidence from studies in Europe that consumption of raw milk products in childhood has a “protective” effect for some allergic conditions (e.g., asthma, hay fever, eczema); other factors associated with living on a farm such as contact with animals and barns showed a similar effect in these studies.  Plausible explanations for these observations exist including the “hygiene hypothesis” and modulation of the immune system early in life.  At the same time, no author recommends raw milk as a preventive measure for allergies at this time because of the potential hazards due to foodborne pathogens such as EHEC and Salmonella  known to occur in raw milk.  The body of literature suggests that further studies are needed to identify the specific factors in raw milk (and other farm exposures) that lead to a protective effect for allergic conditions.

•    No articles could be found substantiating an increased risk of autism due to pasteurized milk or a protective effect from raw milk consumption, respectively.

•    Probiotics are increasingly recognized in the literature as an effective approach for managing some gastrointestinal and allergic conditions.  Specific criteria that define “probiotics” have been published and raw milk does not fit this definition.  No articles suggested that raw milk should be used as a probiotic.

•    Raw milk and cheeses may contain microflora (“beneficial bacteria”) that produce metabolites and other antibacterial compounds that may be toxic to foodborne pathogens.   The presence and quantity of these specific compounds, the bacterial species involved, and the log reduction for different foodborne pathogens from these bacteria/compounds has not been defined in raw milk; therefore, these properties cannot be considered a substitution for a “kill step.”

•    Although studies have shown modest reductions in some vitamins and other nutrients after pasteurization of milk, these changes are insignificant according to a review by Potter et al (1984), human nutrition studies have shown no advantage of raw over pasteurized milk.  A review of more recent literature did not reveal any changes in this position.

•    No references could be found to support some benefits reported by raw milk advocates such as promotion of tooth development/reduction of dental caries; enhanced fertility; or existence of an undefined substance to protect against arthritis (“anti-stiffness” factor)

Detailed Literature Review of the “Pros” of Raw Milk Consumption: Continue Reading...

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King County Bar Association
By: Karen Sutherland

Bill Marler, a founding partner of Marler Clark, LLP, is being recognized by the KCBA as this year’s Outstanding Lawyer for his efforts to educate health officials, the community and the food service industry on how to avoid outbreaks of food-borne illnesses and the lawsuits that result from them. Marler’s efforts are unusual in that his practice focuses on representing individuals who have suffered the effects of food-borne illnesses such as E.coli, shigella, listeria and Salmonella, which means that if he is effective in his mission, he will put himself out of business.

Marler first became well known for his legal work involving food-borne illnesses with his representation of Brianne Kiner and other plaintiffs in the Jack in the Box E. coli litigation, which started in 1993. In 1998, he represented three children who became ill after drinking Odwalla juice. Since then, he and his firm have represented many more individuals, who have suffered from a variety of food-borne illnesses, caused by an equal variety of sources, since then.

Marler’s outreach efforts are far beyond what one would expect from an attorney. He is widely quoted in the media, from publications such as The Wall Street Journal and the Puget Sound Business Journal to broadcast media such as CNN’s American Morning. In 1998, Marler and his partners formed Outbreak, which is a non-for-profit consulting company. Outbreak shares its expertise in food-borne illnesses and related legal topics with public health departments, physicians and the food service industry.

Marler speaks at conferences and seminars around the world, including such varied venues as the North Dakota Environmental Health Conference, the Australian HAACCP Conference, the American Association for Justice Annual Convention in Chicago, and Ag Forum luncheon in the Salinas Valley’s national Steinbeck Center and the Minnesota Environmental Health Association in St. Paul – and that list of speaking engagements only covers part of 2007. It’s a wonder he finds time to practice law.

The internet has also been well used by Marler in his educational efforts. He and his partners have developed several Web sites devoted to providing information about food-borne illnesses, including symptoms, detection and prevention, and information about recent outbreaks. The Marler Clark firm also sponsors numerous blogs on issues ranging from Norovirus (previously called Norwalk Virus), which is the bane of the cruise industry, to Mad Cow Disease (BSE). Marler writes on topics such as “What to do about the ‘Mad Cow’” and opinion pieces calling upon the FDA to require sprout labeling and a ban on unpasteurized juices following outbreaks of Salmonella involving both products.

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I (www.billmarler.com) am off to Eastern Washington a bit later this morning to give a talk at the “Farm-to-Table” Conference. My talk is on “Hot Topics in Food Illness Litigation.” It is also a bit of a homecoming – I spent six years at WSU getting three bachelor degrees, four years on the Pullman City Council and eight years as a WSU Regent. The Conference topics are:

The Food Safety: Farm-to-Table Conference is back! The conference was initiated in 1991 and is offered through a collaborative effort between Washington State University and the University of Idaho. National and regional speakers present information on a variety of food safety issues, offering a professional development opportunity for state and local health authorities, Extension employees and food industry professionals. The conference offers networking opportunities to strengthen food safety partnerships in the Pacific Northwest. Topics reviewed at previous conferences include the following:

* Foodborne pathogens, such as Salmonella, E. coli O157:H7 and Campylobacter

* Food safety management programs, such as HACCP and Good Agricultural Practices (GAPs)

* Food-specific food safety concerns, including produce and seafood

* Regulatory aspects of food production

* Foodborne outbreaks

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Someone sent me this photo and asked me to guess where it is?  Other than heaven?  Where?

Another friend/attorney's kid just got elected President of his High School class - great to see he took after his mom.

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Next week I (www.billmarler.com) will be speaking at the University of Minnesota College of Agriculture, Food, and Environmental Sciences on Tuesday, May 6 at 3:00 PM.  (PowerPoint).  I am a guest lecturer in the Food: Safety, Risk, and Technology class taught by distinguished professor Dr. Ted Labuza.

As those who frequent my blog, I travel widely to address industry, government, and consumer groups in an effort to improve food safety nationwide thought Outbreak Inc.  Next week I will be speaking to the class on the litigation aspects of food safety, including when a person can sue for dangerous or defective goods, federal vs. state litigation, how I choose cases to take on, and what guidance I give to industry on avoiding food borne illness outbreaks.  This is the second time I have traveled to the Twin Cities to address the students of Dr. Labuza’s class.

Marler Clark, is involved in food borne illness cases around the country and represent a number of Minnesotans who have become ill from eating contaminated food.  Several Salmonella outbreaks have infected Minnesota residents, including ConAgra’s Banquet Pot Pies, Veggie Booty snacks, and food consumed at a Rochester Quiznos.  In addition, the firm represents Minnesotans who have been infected with E. coli O157:H7 in cases against Dole, Nebraska Beef, PM Beef Holdings, AFG/Supervalu, Cargill Meat Solutions, as well as Taco John’s and China Buffet restaurants.

Go Golden Gophers.

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Thank you Governor Locke and thank you WSTLA for this honor.  For those who know me well, know that this honor is not mine alone. It is an honor shared with my law partners, Bruce Clark, Denis Stearns and Andy Weisbecker and associates and staff who have all long suffered in my presence.  Thanks to my wife of 20 years, Julie, who kept food on the table and the mortgage nearly always paid before the Jack-in-the Box case settled in 1995.  Thanks to my beautiful, talented and strong daughters, Morgan, Olivia and Sydney. Thank you for not making me feel too guilty for missing more than my fair share of your events.  A very special thanks and honor to my Mom and Dad. Dad, I am glad that you have tolerated me for nearly 51 years.  In closing, I want to share with you a letter I recently received from the daughter of a Nebraska woman who died of an E. coli infection after eating something as simple as a spinach salad in 2006:

“Dear Bill:

As we approach the conclusion of Ruby’s case, I wanted to thank everyone there for your work on behalf of my family. Though this letter is addressed to you, it is meant for everyone at the firm. It takes a dedicated and very hardworking team to collect, sort, file, retrieve, assemble, analyze and present all the material involved in an action such as this. Though I know this case came at an extremely busy time for Marler Clark, each of you accomplished your work with seeming ease, all the while making us feel as though we were your only client.

However, the real joy in our association with Marler Clark was the tremendous effort each of you exerted in trying to effect positive change within the food industry. Your work to assure food purity along the entire food chain, from production, packaging, shipping and preparation, really sets the Marler Clark team apart from the crowd.

Though nothing will bring my mother back and no amount of money could ease the heartache of losing her, your efforts have been very fruitful. Having her illness and death held up to the light, for all to see, has done a great deal to create awareness and remedy the problem of leafy green E. coli illness and death. Television programs from both Dateline and CNN were viewed by millions, California continues to move toward adoption of three critical pieces of food purity legislation, the Federal Government is aware of the problem, Natural Selection Foods conducts pre-packaging purity testing and hopefully, we are a few steps closer to the acceptance of irradiation. I am confident that these changes were initiated or greatly accelerated because of Marler Clark’s proactive crusade for safer food supply.

At the end of the game each of you can be glad of the legal victories you achieve on behalf of your clients. But your real pride should come from the knowledge that you have helped make the world a better place and saved many from the ravages of poisoned food. My family hopes that no one should go through what my mother did; each of you has helped bring that dream closer to reality. We give our thanks to each and every one of the Marler Clark team!”

As you can well imagine, I am proud to be associated with the people in my firm. I am proud to be a trial lawyer. I am proud that as trial lawyers we all give voice to people like Ruby. Thank you.

The bust is of Justice Louis Brandeis and the inscription reads:  "In recognition of your trail blazing efforts to keep our nation's food supply safe for consumers."

Also, just revamped www.billmarler.com.

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William Marler, managing partner of Seattle-based Marler Clark, has been selected for a prestigious law award recognizing his work on behalf of a safer food supply. The Washington State Trial Lawyers Association (WSTLA) has selected him for the 2008 Public Justice Award, which is bestowed upon "an individual or organization whose efforts, courage, litigation, or innovative work results in the creation of a more just society." The award will be presented to Mr. Marler at the May 1, 2008 Law Day Dinner.

An accomplished personal injury lawyer and national expert in foodborne illness litigation, William Marler has been a major force in food safety policy in the United States and abroad. His advocacy for better food regulation has led to invitations to address local, national, and international gatherings on food safety, including recent testimony to US Congress Committee on Energy and Commerce.

Mr. Marler and his firm, Marler Clark, recently sponsored a two-day conference on food safety titled "Who's Minding the Store: The Current State of Food Safety and How it Can be Improved." The Seattle conference brought together national and local representatives of government, industry, consumer organizations, scientists, and the media. In addition, the conference featured a panel of international experts from China, New Zealand, the UK, and the European Union in a discussion of food safety in the global marketplace.

Mr. Marler was also recognized this year by the King County Bar Association (KCBA), which has selected him for the 2008 Outstanding Lawyer Award. The KCBA will present Mr. Marler with the award on June 26, 2008 at their annual awards dinner.

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Goodness, I have been selected for two prestigious law awards. The Washington State Trial Lawyers Association (WSTLA) has selected me for the Public Justice Award, and the King County Bar Association will give me the 2008 Outstanding Lawyer Award.

WSTLA bestows the Public Justice Award to “an individual or organization whose efforts, courage, litigation, or innovative work results in the creation of a more just society”. The award will be presented at the May 1st Law Day Dinner. The Washington State Trial Lawyers Association represents attorneys and professionals in the legal field committed to champion the cause of those who deserve redress for injury to person, property or civil rights. Established in 1953, the association conducts legal education, compiles research, facilitates the sharing of resources, and implements the public affairs as well as government relations programs.

The King County Bar Association will present  me with the 2008 Outstanding Lawyer Award on June 28th at their annual awards dinner. The King County Bar Association provides support to its diverse membership; promotes a just, collegial, and accessible legal system and profession; works with the judiciary to achieve excellence in the administration of justice; strives to benefit the community through its own efforts and those of its Foundation; and offers opportunities for public service and input into matters of public policy. Founded in 1886 and incorporated in 1906, the King County Bar Association is the largest voluntary bar association in the state of Washington, with approximately 6,000 members.

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OutBreak is a unique not-for-profit consulting company based on a radical notion: that the same lawyers who sue on behalf of victims of foodborne illness are best suited to help responsible companies with their food safety challenges.

In 1998, the Marler Clark attorneys formed OutBreak, a not-for-profit consulting firm dedicated to training companies how to prevent foodborne illness outbreaks among their customers. Since that time, the lawyers have given speeches at meetings and annual education conferences for a long list of industry groups, including the National Restaurant Association and the American Meat Association.

In recent years, OutBreak presenters have expanded the scope of their talks to include topics appropriate for meetings of organizations such as environmental health associations and FDA-sponsored Regional Retail Food Seminars. Members of these groups have learned about such topics as potential liability for negligent inspections and the intersection between the law and public health.

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Since 1993, Marler Clark has represented thousands of clients in litigation against restaurants and food companies whose food was identified as the source of illness. We strive to obtain full and fair compensation for our clients’ injuries by ensuring that our clients are compensated for their physical and emotional injuries, as well as for medical expenses and missed time from work. We often represent children who will require medical monitoring and surgical procedures throughout their lives, and we work to secure settlements or verdicts that will provide for their long-term medical needs.

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Reuters reports that China is considering a food safety law that provides for penalties of up to life imprisonment for people responsible for the production of substandard food.  Lesser violations of the law could incur fines, confiscation of income from sales of substandard products, or revocation of licenses.  See full article - China food safety law to allow for life in jail.

You have to admit that if US food corporate executives faced prison time for sickening customers, perhaps food safety would be a bigger part of the corporate agenda.

I look forward to attending (and co-sponsoring) the following Conference in China:



The description of the conference is:

Food safety is a worldwide issue that can benefit greatly from collaboration, standardized approaches, and common solutions. In many countries, food safety awareness is at an all-time high. New and emerging threats to the food supply are constantly being discovered, and our food supply is becoming increasingly global. Achieving food safety success in this changing environment requires novel prevention strategies, greater harmonization and more collaboration at the international level than ever before.

Picture from last year's Conference (I'm in the middle, back row):

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Andrew Schneider, crack investigating reporter and ubber-blogger, posted today on his coverage of the Seattle University Law School Food Safety Conference – “Who’s Minding the Store?  See his coverage at:

Secret Ingredients - Experts in food safety describe a problem that's hard to control, misunderstood by the public and too dangerous to ignore.

Me, I liked this point the best:

Seattle lawyer and national expert in food borne illness litigation, William Marler, hosted and organized the conference. When I asked three of the high-ranking national and international officials why they agreed to speak at a continuing education program for lawyers, they all said that Marler has been a major force in changing food safety policies in the United States and abroad.

Hopefully for the better.

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Seattle University School of Law hosts an in-depth conference titled “Who’s Minding the Store: The Current State of Food Safety and How It Can Be Improved” on April 11th and 12th, 2008. Participants include international, national and local representatives of government, the food industry, consumer organizations, scientists, and the media.

Recent years have seen a plethora of food warnings and recalls, raising new questions about the quality and integrity of our existing system for assuring food safety. Seattle was the epicenter of the Jack in the Box E. coli outbreak that sickened 600 and killed four 15 years ago. In addition to explaining how the present system works, this program is intended to discuss how changing consumer preferences are affecting the development and distribution of food, examine whether federal, state and industry oversight roles are changing, and discuss how the regulatory and judicial processes can be most efficiently balanced.

Washington Governor Christine Gregoire will present the keynote address. Featured speakers include Dr. Richard Raymond, Under Secretary for Food Safety, United States Department of Agriculture, and Dr. Patricia Griffin, Chief; Enteric Diseases Epidemiology Branch, Centers for Disease Control & Prevention.

In addition, the conference brings together international experts, including Jorgen Schlundt of the World Health Organization, Qiu Yueming of the China National Institute of Standardization, Deon Mahoney of Food Standards Australia New Zealand, Chris Griffith of University of Cardiff Wales, and Dr. Canice Nolan, of the EU.

For a detailed agenda and registration, visit:
http://www.law.seattleu.edu/cle/archive/2008/foodsafety.

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While I have been gone the State Health Department has found high levels of E. coli bacteria along Bainbridge Island beaches.  Dozens of sites on the south end and in Eagle Harbor also showed elevated levels of E. coli, a type of fecal coliform bacteria.  And, it looks so clean.

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Another day on the road.  I have taken to emailing pictures of myself to my family and have learned how to text with my 16 year old. 

This trip was a nearly a two and a half hour drive south of Salt Lake City to attend a hearing to request that the Court approve a settlement in the case of a fourteen year old girl (halfway between my 12 and 16 year old daughters) who contracted an E. coli O157:H7 infection as a result of eating Dole’s contaminated spinach product in the Fall of 2006.  This beautiful young woman subsequently developed hemolytic uremic syndrome (HUS) and endured a lengthy hospitalization marked by multiple, prolonged seizures, hemodialysis, and blood transfusions.  It was great to see my client and her wonderful family.  The settlement was approved by the Court with all of the money being placed into a Trust for my client's educational and medical needs for the rest of her life.

After several handshakes and hugs, I turned to leave when my client presented me with a gift.

This is why I go to work.

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An amendment to the Senate's 2009 budget resolution, which passed Friday, has implications for food safety. Sen. Chuck Grassley (R., Iowa) and teamed up with Sens. Bob Casey (D., Pa.), Dick Durbin (D., Ill.) and Sherrod Brown (D., Ohio) to create a "reserve fund" to allow for legislation that enhances the protection and safety of the nation's food supply. Durbin said, "We have to do better. Our food safety system needs more resources, and the creation of this fund will make those resources available."

Their statement noted the reserve fund would allow for congressional legislation that, among other purposes, would:

• Expand both the Food & Drug Administration and U.S. Department of Agriculture food inspection field forces;

• Develop risk-based approaches to the inspection of the food supply;

• Develop the necessary infrastructure, including information technology systems, to ensure a coordinated approach to enhancing the protection and safety of the food supply;

• Improve scientific capacity by establishing science-based training programs and investing in improved surveillance and testing technologies;

• Enhance FDA's recall authority, and

• Expand foodborne illness awareness and education programs.

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In the last four weeks I have been home in Seattle a total of about four days.  I have crossed the country several times testifying before the US House and the CA Senate about food safety, as well as talking to industry groups.  I have also been spending too much time with lawyers.  I did make some progress on the 2006 Wendy’s E. coli outbreak in Utah and was able to resolve three more HUS cases from the 2006 Dole Spinach E. coli outbreak.  A bit ragged, I was heartened by a letter I received from the King County Bar Association today announcing that they had selected me for their “2008 Outstanding Lawyer Award.”  Will wonders never cease?

According to their website, the King County Bar Association provides support to its diverse membership; promotes a just, collegial and accessible legal system and profession; works with the judiciary to achieve excellence in the administration of justice; strives to benefit the community through its own efforts and those of its Foundation; and offers opportunities for public service and input into matters of public policy.  Founded in 1886 and incorporated in 1906, the King County Bar Association is the largest voluntary bar association in the state of Washington, with approximately 6,000 members.

Hmmm, there certainly must be many more outstanding lawyers here in Seattle.  Perhaps they felt sorry for my travel schedule?  Who would want to leave?

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Once again, Stephen J. Hedges of the CHICAGO TRIBUNE is on top of the issues surrounding the slaughter of “downer” cows, and the risks (or not) to our food supply.  His article, “The Last Roundup” appeared in the BUFFALO NEWS yesterday morning. It is a must read for those thinking about the safety and financial implications of using “downers” to feed school kids.  I have written on the topic a few times – see, “Should all downers be banned from the food supply” and “The raw economics driving the use of downers.”

I can not tell you how many phone calls I have received since the story of the abused cows caught on video broke.  Parents and School Administrators are concerned about the meat they received as 37 million of the 143 million pounds of meat recalled were bought by the USDA for nutrition and school lunch programs.  E. coli, Salmonella and Mad Cow are the primary worries.  Although there have been no reported illnesses, and the risk of contracting Mad Cow Disease is remote, parents are rightly concerned.

Here is a thought.  Although most, if not all, of the meat has either been consumed or destroyed at this point, would in not be interesting to test what can be found?  Frankly, I do not know what the test results would show, but if tests were negative, it would certainly ease parents concerns.  On the other hand, if positive, it would certainly reinforce concerns already raised on the use of “downers.” So, USDA, “WHERE IS THE BEEF?”

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This is the land of capitalism.  So, we all know that when it comes to using Downers, or non-ambulatory cows, there has to be that raw underbelly of profit or, perhaps more accurately, the illusion of profits.  Let’s examine if the use of downers makes good economic sense.

First some background: In the U.S., we both import and export slaughtered beef and dairy cattle. According to USA Today, some 35 million U.S. cattle are slaughtered each year in the U.S.  According to a recent report by JAVMA, the exact number of nonambulatory cattle on US farms or feedlots or sent to slaughter facilities is difficult to ascertain. However, estimates may approach 500,000 animals per year according to a recent JAVMA report.

According to that same report, the incidence of nonambulatory cattle is greater among dairy than among beef breeds.  There are limited data on the food safety of beef produced from nonambulatory cattle sent to slaughter facilities.  However, the prevalence of E. coli O157:H7 and Salmonella was greater in nonambulatory than in ambulatory dairy cattle.  The causes for nonambulatory cattle range from loss of calcium due to milk production, calving injuries, broken legs or neurological conditions.

Certainly, some of these downer animals could be safe additions to the food supply.  Would it make sense to have more rigorous inspection as animals arrive to slaughter by qualified inspectors to exclude animals that pose a risk?  Or, is it simply better to exclude them all?

Continue Reading...

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I leave for Monterey in the morning to attend Tuesday's General Session – Food Safety.  The instructor is Roberta Cook who wrote a brilliant paper for the session.  I will be on the Panel Discussion with:

• Dr. Robert Brackett, Senior Vice President and Chief Science and Regulatory Officer, Grocery Manufacturers Association
  

• William Marler, Managing Partner at Marler Clark

• Joe Pezzini, Vice President of Operations, Ocean Mist Farms, and Chairman of the Board of Directors, California Leafy Greens Marketing Agreement

• Dr. Trevor Suslow, Affiliate Scientist, Western Institute for Food Safety and Security, and Cooperative Extension Specialist, Department of Plant Sciences, UC Davis

The Full Brochure and Schedule are linked here.

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I am thinking about the reasons, ethically, medically and financially why we allow "downer" cattle into our food supply - at any level.  Over the next few days I will give you my thoughts.  Please feel free to weigh in. 

To put things in context, The USDA suggested, and Westland/Hallmark issued, the largest beef recall in history (143 million pounds of meat and now recalls have been issued for retail food items containing traces of the banned beef) just a few weeks ago. This all after the Humane Society released undercover video showing workers at Westland/Hallmark shoving sick or crippled cows (a.k.a. “downers”) with forklifts to get them to stand. So, what is a “downer?”

9 CFR 309.2(b) permanently replaces the term “downer” with non-ambulatory disabled livestock. 9 CFR 309.2(b) continues to define “non-ambulatory disabled livestock” as livestock that cannot rise from a recumbent position or that cannot walk, including, but not limited to, those with broken appendages, severed tendons or ligaments, nerve paralysis, fractured vertebral column, or metabolic conditions.

So, what’s the beef?  In 2004, the USDA tightened regulations to prohibit the slaughter of all "downer" cows — animals that cannot stand (non-ambulatory) — after a case of bovine spongiform encephalopathy (BSE), or mad cow disease was discovered in Washington State.  After that the U.S. Department of Agriculture's Food Safety and Inspection Service (FSIS) prohibited the slaughter of cattle that were unable to stand or walk when presented for pre-slaughter inspection.  The inability to stand or walk could be a clinical sign of Bovine Spongiform Encephalopathy (BSE).  The New York Times has recently reported that the disease is extremely rare in the United States, but of the 15 cases documented in North America, most in Canada, the majority has been traced to downer cattle.  Seems another reasonable rationale for keeping downers out of the food chain?

Another positive effect of the 2004 incomplete downer ban was that it might reduce other illnesses as well.  A USDA study published in August 2004 found that downer cows had three times more of the deadly bacterium E. coli O157:H7 than other cows.  Salmonella also seemed to be more prevalent.  According to a recent report by the Chicago News Tribune, downer cows typically have often have been milked for several years, leaving their bodies without the muscle, fat and calcium of grazing, well-fed beef cattle.  In addition, dairy cows also can carry some common maladies, including mastitis, a bacterial infection of the udder; foot rot, which they can develop standing for long periods in manure, mud and damp straw; and Johne’s (pronounced yo-neez) disease.  Scientists think these diseases are not carried into the human food chain, with one exception.  Health and animal scientists are currently debating whether the traits of Johne’s are responsible for Crohn’s disease in humans.  Crohn’s disease is an intestinal disorder that can cause inflammation of the colon, severe abdominal pain, diarrhea and weight loss.  Hmm, seems like another good rationale for keeping downers out of you hamburger?

But have downers been excluded from our meat supply?  In addition to the recent “caught on video moment,” the GAO has found instances where slaughter facilities have in fact put downers through the system.  A 2006 audit (PDF) by the USDA's inspector general found downer cows were still being processed for food and that USDA's policy was inconsistent.  At two of 12 plants visited from June 2004 to April 2005, downer cattle were slaughtered for food.  One facility processed 27 of them, the other slaughtered two.  There are those instances where both the animals and the rules have been abused.  A U.S. Department of Agriculture rule change made in July 2007 specifically allows some sick or crippled cows into the food supply.  Under the rule, cattle that are injured after they pass pre-slaughter inspection will be reevaluated to determine their eligibility for slaughter.  Also, veal calves that cannot stand because they are tired or cold may be set apart and held for treatment and re-inspection.  The basis for the rule change/clarification is that cows that fell down after an initial veterinarian inspection but appeared otherwise healthy could still be slaughtered. The Humane society alleges in lawsuit filed in U.S. District Court in Washington, D.C. to block the usage of all downer cattle.

So, ethically (from the cows' perspective at least) appropriately dealing with sick, injured and dying cows need to be considered.  Protecting the food chain from BSE, E. coli, Salmonella and Crohn's also seems to make sense.  So, what's the problem?  The economics of this all to follow.

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Taking a "break" from the testimony, food safety conferences and upcoming legal work in California and Utah, I took a great hike today to a "falls" outside of Phoenix in the desert.  Well, you should all be thankful that I am a far better lawyer that walker.  Thankfully, there was a great Urgent Care Center to take care of this clumsy lawyer.  Thanks to PA Dan - a.k.a. "Doogie Houser" - the fellow looked 16 years old but did a great job of setting the below:

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NEWS RELEASE
Committee on Energy and Commerce
Rep. John D. Dingell, Chairman

For immediate release: February 19, 2008
Contact: Jodi Seth or Alex Haurek, 202-225-5735

MEDIA ADVISORY:
Oversight and Investigations Subcommittee
Hearing on Food Safety

Washington, DC – On the heels of the latest major meat recall, the Committee on Energy and Commerce’s Subcommittee on Oversight and Investigations announced today that it will hold a hearing next week on food safety with the Chief Executive Officers (CEOs) of major food producing companies testifying.

The hearing, entitled “Contaminated Food: Private Sector Accountability,” will be held on Tuesday, February 26th at 10:00 a.m. in room 2322 of the Rayburn House Office Building.

“As the Committee moves forward with legislation to address the food safety crisis in the United States, it is important that we understand the effect of lax regulation,” said Rep. John D. Dingell, the Chairman of the Committee on Energy and Commerce. “I’m pleased that we will have before us the presidents and CEOs of some of the companies that have produced contaminated food in the past year, and I look forward to not only asking them why the incidents involving their products occurred, but also what our regulators were doing during these incidents.”

The Subcommittee has issued invitations to the witnesses listed below. Should witnesses refuse to testify voluntarily, the Committee may be compelled to subpoena them. Invited witnesses include:

        Panel I
Mr. William D. Marler, Managing Partner of Marler Clark, LLP, PS - CONFIRMED
Mr. Jerome Campbell, Assistant Director California Department of Pesticide Regulation - CONFIRMED
Mr. John Williams, Executive Director of the Southern Shrimp Alliance - CONFIRMED
A Representative from the Humane Society is also expected to testify on the first panel.
        Panel II
Mr. Gary M. Rodkin, CEO of ConAgra Foods, Inc.
Mr. Keith Shoemaker, President and CEO of Butterball, LLC.
Mr. Christopher D. Lischewski, President and CEO of Bumble Bee Foods, Inc.- CONFIRMED
Mr. Rick Ray, President and CEO of New Era Canning Company.- CONFIRMED
Mr. David DeLorenzo, President and CEO of Dole Food Company
Mr. Steve Mendell of Westland/Hallmark Meat Company
        Panel lll
Mr. David Eisenberg, ANRESCO Laboratories - CONFIRMED
Dr. Robert E. Brackett, PhD, Senior Vice President and Chief Science and Regulatory Affairs Officer for the Grocery Manufacturers Association - CONFIRMED

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The largest recall of beef in U.S. history – over 143 million pounds - and the solid evidence that USDA has failed to enforce its own ban against downer cattle being used in the nation’s school lunch program, demand immediate action by Congress says food safety attorney William D. Marler.  As I said to USA Today:

The huge recall will put the safety of the U.S. beef supply "front and center" in Congress, said William Marler, a prominent food-safety lawyer.

Marler says Congress should call hearings on the safety of the beef supply in the United States and provide funds to the Centers on Disease Control to study children for bovine spongiform encephalopathy (BSE or mad cow disease) who consumed the meat supplied to the National School Lunch Program.

“The link between cattle that are too sick or injured to stand or walk, and bovine spongiform encephalopathy (BSE or mad cow disease) has been clearly established.” Marler said. “We were promised that the procurement specifications eliminated “downer” cattle from the National School Lunch Program and the USDA fully banned “downer “cattle from the human food chain in 2003.”

“In light of the Hallmark/Westland Meat Packing Company, which was caught on film processing “downer” cattle, in violation of U.S. law, we now know that USDA ban was a lie,” added Marler. “Since BSE typically will not show symptoms for years, we need the CDC to track school children who might have been exposed.”

“And let’s not forget the risk of E. coli O157:H7. Since April of 2007 until this morning, another 30,000,000 pounds of red meat, mostly hamburger, had been recalled. E. coli illnesses once on a downturn have spiked. Kids are getting sick; seriously sick again,” said Marler. According to a USDA study published in August 2004 “downer” cows had three times more E. coli O157:H7 than other cows.

“One would think that with hundreds of Americans poisoned that Congress would ask one simple question – “What is going on?” Congress needs to act now. It is time for Congress to accept a leadership role and call hearings, not only to explore the reasons for the past months’ E. coli outbreaks, but also to help prevent the next one. Congress needs to fulfill its role of providing oversight to the other branches of government, especially investigative oversight,” added Marler.

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Meet Michael A. Ramos, San Bernardino County District Attorney. He has just filed criminal charges in the Westland/Hallmark Meat Company's mistreatment of downer cows.

We are not, at least at this point, going to see Westland/Hallmark President Steve Mendell being taken away in handcuffs. No, neither Mendell nor any other Westland/Hallmark corporate officials being "frog-marched" passed the media.

No, but according to the Los Angeles Times "Daniel Ugarte Navarro of Pomona faces up to eight years and eight months in prison if convicted of five felony counts of animal cruelty and three misdemeanor counts of illegal movement of a non-ambulatory animal. Navarro, who was a head pen manager at Hallmark Meat Packing, was fired last month after the release of the video by the Humane Society of the United States.

A pen manager? The LA Times also reports "authorities today also filed three misdemeanor counts against 32-year-old Luis Sanchez of Chino, who worked directly under Navarro and was also fired last month. Sanchez faces up to three years in prison if convicted.  Here is a great quote from the LA Times:

Neither Navarro nor Sanchez appeared at their arraignments Friday afternoon at a Chino courthouse. Warrants were issued for their arrest.

Reached at his home Friday, Sanchez, a father of two, said he regretted his actions and that he was only following orders.  "I did it because they ordered me to. I obeyed them; if not, I lost my job," Sanchez said in Spanish. "I knew it was illegal but they obliged me to do it." Sanchez said he is an undocumented immigrant from Mexico and that he worked at Hallmark for six years before he was fired last month. He is not represented by an attorney.

Perhaps we should hire one for them.  We guess Sanchez was trying to work his way up to "pen manager." He was probably the other guy fired immediately by Westland/Hallmark after the Humane Society went public with its videotape.

"Downer" cows, which are many more times more likely to spread Mad Cow disease, were being routinely mistreated at the Westland/Hallmark Chino slaughterhouse. Are we to believe that responsibility for these practices stop with a "pen manager" and his trusty companion?

Schools nationwide have been forced to pull beef from their menus and leave it stacked in their freezers until this mess is cleaned up. On one hand, we have to give D.A. Ramos credit for filing at least some criminal charges in this matter. However, one has to wonder where is the U.S. Justice Department?

Or how about Homeland Security? What's more important than protecting the security of the food supply going into every school lunch program in the country.  There really are better ways to humanely deal with sick and injured cows.

Maybe if the feds would put their considerable resources to work they could find away to charge someone higher up than a "pen manager." D.A. Ramos says "We want to send the message that this kind of behavior will not be tolerated."

That message Mr. Ramos would be better sent by charging those in charge.

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I must admit this Seminar is coming together nicely.  Registrations are pouring in.   Click below and download the Brochure and Registration Form.

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USDA officials extended a ban on use of meat from a Chino slaughterhouse shut down last week for mistreating cattle. It also said the Westland plant had been cited in 2005 for using electric prods on animals. This was the same year that Westland Meat Company was awarded “The Supplier of the Year for 2004-2005 for the National School Lunch Program.”

Shocking?

According to AP reports, USDA officials insisted Friday that investigations have found no evidence that meat from disabled animals has entered the food supply despite video to the contrary. Humane Society President and Chief Executive Wayne Pacelle disputed that claim by USDA.

"There's no ambiguity in our mind that this plant was accepting downers, abusing downers and slaughtering downers."

Why is this all important?  Federal regulations call for keeping downer cows out of the food supply because they pose a higher risk of E. coli, salmonella contamination, or mad cow disease since they typically wallow in feces and their immune systems are often weak.  Yummy!

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According to Bioniche and press reports, the USDA has agreed to grant a conditional license to Bioniche for its E. coli O157:H7 Cattle Vaccine.

Is this the “silver bullet” to solve the recent uptick in E. coli recalls and human illnesses? I have had the opportunity to meet with Bioniche scientists and executives over the years and am pleased to see a potential weapon against these deadly bacteria. The Bioniche vaccine prevents the E. coli O157:H7 bacteria from attaching to the intestines of vaccinated cattle, thereby reducing their reproduction within the animal, and reducing the amount of bacteria that can be released through cattle manure in the environment.

I am looking forward to the continued study of this promising vaccine.  Clearly we need it.  I found this great chart on the Ethicurian about the increases in recalls:

In the last 15 years here are a few of the defendants we have sued on behalf of E. coli victims:

AFG, AgVenture Farms, Bauer Meats, BJ's Wholesale Club, Byerly's, Cargill, Carneco, China Buffet, ConAgra, Crossroads Farm Petting Zoo, Cub Foods, Dole, Emmpak, Excel, Finley School District, Fresno Meat Market, Gold Coast Produce, Golden Corral, Habaneros, Interstate Meats, Jack in the Box, Karl Ehmer, Kentucky Fried Chicken, Kids Korner Day Care, King Garden, Lane County Fair, Lunds, Odwalla, Natural Selections, Olive Garden, Organic Pastures, Peninsula Village, Pat & Oscar's, PM Beef Holdings, Robeson School District, Sam's Club, Sizzler, Spokane Produce, Sodexho, Supervalu, Taco Bell, Taco John's, Topps, United Food Group (UFG) and Wendy's

I guess they all could have used a bullet or two?

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"Seminar in Seattle" - Registration Below.  Few subjects draw more immediate attention or concern than the safety of the food we eat. Recent years have included a plethora of food warnings and recalls, raising new questions about the quality and integrity of our existing system for assuring food safety. Seattle was the epicenter of the Jack in the Box E. coli outbreak that sickened 600 and killed four 15 years ago. In addition to explaining how our present system works, this program is intended to discuss how changing consumer preferences are affecting the development and distribution of food, examine whether Federal, state and industry oversight roles are changing, and discuss how the regulatory and judicial processes can be most efficiently balanced. Participants include international, national and local representatives of government, the food industry, consumer organizations and scientists.

FRIDAY, April 11th
 
8:30-9:15 AM                 Opening  Remarks:  Dean Kellye Testy

9:15-10:45 AM               Defining the Problem:  How the concerns about food safety are viewed by physicians, disease experts, state regulators, and consumers.

Barb Kowalcyk
Carlota Medus
Richard Seigler
Tom Billy
Sandra McCurdy

11:00-12:30 PM             How the Regulation of Food Safety Works:  The roles and responsibilities as seen by Federal and State regulators, industry and consumers.

Bob Brackett  
Mansour Samadapour
Christine Bruhn  
David Goldman  
Bala Swaminathan
 
12:30-1:45 PM               Lunch Speaker:  Governor Christine Gregoire

1:45-3:15 PM                 Zones of Responsibility: Grower/Producer; Seller; Government; Consumer.

John Munsell
Craig Wilson
Scott Rickman
Caroline Smith DeWaal
Andy Benson
Devon Zagory  
 
3:30-5:00 PM                 Roles of the Civil/Criminal Justice Systems: Perspectives of plaintiffs, respondents, and prosecutors.

Sarah Brew
Neal Fortin
Al Maxwell
Denis Stearns
Brad Sullivan
 
6:30-8:30 PM                 Dinner Speaker:  Richard Raymond
                    
SATURDAY, April 12th

8:30 -9:00 AM                Opening Speaker:  Patricia Griffin

9:00-10:30 AM               How is Food Protected Overseas?  International Perspectives on Food Safety.

Chris Griffith
Deon Mahoney
Canice Nolan
Jørgen Schlundt
Ge Zhirong

10:45-12:15 PM             Role of the Media in Public Health and Food Safety:  The contributions of media and science writers to Food Safety.

Phil Brasher
Steve Hedges
Doug Powell
James E. Prevor
Andy Martin

12:15-1:30 PM               Closing Remarks:  John Kobayashi

Do not miss this.  For more information and to register or PDF (Titles for all speakers, who frankly do not need them, to be added).

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SAN FRANCISCO (AP) — A girl fell into a 40-day coma after eating a bad Jack in the Box hamburger. Fifteen years later, she is still suffering ill effects. That doesn't bode well for a toddler who spent six weeks in the hospital in 2006 after eating E. coli-tainted spinach from California.

But both have lawyer William Marler in their corner — and that's no small consolation.

The Seattle-based Marler is the undisputed king of food poisoning litigation. He has made good money from bad food, ringing up more than $300 million in settlements for his clients in the rapidly growing legal field of food safety.

"There is a sense of complacency in the meat industry that believes, `Hey, we solved that problem and we don't have to watch it so much,'" says Marler, whose career has proved otherwise.

The Centers for Disease Control and Prevention estimates that food poisoning each year afflicts some 76 million Americans; 300,000 require hospitalization and 5,000 die.

Many victims end up hiring Marler, who took his first food poisoning case in 1993, during the Jack in the Box E. coli outbreak in the Pacific Northwest that sickened hundreds and killed four children.

"Bill was certainly at the right place at the right time entering the field of food safety litigation," says Caroline Smith DeWaal, who is in charge of food safety at the nonprofit Center for Science in the Public Interest in Washington. "I see him in kind of a private attorney general role."

Marler, 50, operates three dozen Web sites dedicated to food-borne illnesses. He is a tireless blogger on all things food safety and appears in front of federal and state lawmakers and regulatory boards. The license plate on his wife's Volkswagen reads ECOLI.

In all these cases, Marler has gone to trial just once, winning a $4.6 million verdict against a Washington state school district where 11 children got E. coli poisoning in the cafeteria.

Instead, he adroitly uses his sympathetic clients — and the media — to shame food producers into settling.

"I don't apologize for that," he says. "The publicity helps generate change."

The past year has been a busy one for Marler's six-lawyer firm, which has about 1,000 active cases in all 50 states. The clients typically pay their lawyers 25 to 35 percent of their settlements.

The targets of Marler's lawsuits include the Topps Meat Co., which recalled 21.7 million pounds of its hamburger patties in September — the second-biggest U.S. beef recall ever — then went out of business. When Cargill Inc. recalled 840,000 pounds of beef patties the following month, it brought more lawsuits by Marler.

He is also suing ConaAgra Foods Inc., which recalled its Banquet chicken pot pies and Peter Pan peanut butter last year after they were found to be contaminated with salmonella.

"He's a good lawyer and he does a fine job for his clients," says Leo Knowles, ConAgra's top lawyer. "He's passionate about food safety. At times he's a little bit overly dramatic, but I think he's genuine."

Marler continually implores the food industry to "put me out of business" by adopting more stringent safety procedures. He sent the lettuce industry a letter in 2006 in which he called on growers to stop using irrigation water contaminated with cattle and human feces, to wash fruits and vegetables more thoroughly, and to provide field hands with bathrooms.

"These steps will help make our food supply safer and will enable us to keep our most vulnerable citizens — kids and seniors — out of harm's way," he wrote. "And, with a little luck, it will force one damn trial lawyer to find another line of work."

Marler holds degrees from Washington State University and the Seattle University School of Law. He has no formal scientific training but has immersed himself in microbiology and DNA tracing, and his firm has a scientist on staff on whom he relies.

Marler handled about 150 cases from the deadly 2006 E. coli outbreak involving California spinach, settling roughly half those cases so far with companies such as Dole Foods. Among the clients whose cases are still unresolved is 3-year-old Ashley Armstrong of Indianapolis, whose kidneys were so damaged she will have to take medication for the rest of her life and will probably need a transplant, according to her mother.

He also has been settling dozens of cases against Taco Bell stemming from a 2006 E. coli outbreak that sickened 71 people in five states.

Marler fell into food safety litigation almost by accident.

Brianne Kiner, 9, of Seattle was the first among hundreds who fell ill in the Jack in the Box outbreak. Six lawyers trekked to her bedside during the six months she spent in the hospital, hoping to represent the family. The Kiners hired Marler, a young associate at a mid-size law firm who had never worked on a food case.

"I wanted a young, hungry lion," recalls Suzanne Kiner, Brianne's mother. "He was also the only one who looked at her and teared up."

Against all odds, Brianne survived and lives in a house bought with some of the $15.6 million Marler extracted from the restaurant chain for the Kiners. But Brianne, now 25, still suffers from high blood pressure and immune system damage that makes her prone to colds and flu.

"I call him Uncle Bill," the young woman says. "I think it's incredible what he did, and I'm very thankful that he helped me."

Marler says: "When I started doing the Jack in the Box case in 1993, I never dreamed that I would be doing this in 2008. Unfortunately, it never seems to slow down."

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In 1998 when I started Marler Clark, Al Gore had only recently invented the internet (only kidding).  Search Engines were new and Google was probably being run out of someone's basement.   Because I was in the middle of many of the earliest food poisoning battles, like Jack in the Box and Odwalla, I had a lot of research collected on most of the nasty bugs that plague our food supply and the illnesses caused by contracting them.  I decided to put the research up on the internet as a way of sharing the information.  Over the years we have kept them up to date with the latest research and have now completely redesigned the look, and hopefully their usefulness.  I would love any comments.  Feel free to ad them as a link on your site.

* Campylobacter

* E. coli

* Hepatitis A

* Listeria

* Norovirus

* Salmonella

* Shigella

* Foodborne Illness

* Guillain-Barre Syndrome

* Hemolytic Uremic Syndrome

* Reiter's Syndrome


Other "bugs" of interest:

Cryptosporidium, Cyclospora, Mad Cow, Botulism and Enterobacter Sakazkii

From our Press Release:

“We have heard time and again how valuable the information provided on these sites is to parents whose children are in the hospital. When your kid is sick, you arm yourself with as much information as you can, and these sites provide a comprehensive look at these ‘bugs’ and the illnesses they cause,” commented William Marler, managing partner of Marler Clark.

The sites also provide information related to high-profile food poisoning outbreaks that have occurred in the last 15 years. “Since Marler Clark has represented victims of nearly every major foodborne illness outbreak in the last fifteen years, we felt it was important to share the details of these outbreaks with anyone doing research on a particular pathogen,” Marler continued.

Marler Clark has represented thousands of victims of foodborne illness outbreaks since the 1993 Jack in the Box E. coli outbreak. The firm has resolved $300 million worth of cases on behalf of food poisoning victims, bringing claims against such food-companies as AFG, BJ’s Wholesale Club, Blimpie’s, the Brook-Lea Country Club, Byerly’s, Cargill, Carl’s Jr., Carneco, Carrabba’s Italian Grill, Chi-Chi’s, Chili’s, China Buffet, ConAgra, Cub Foods, Dole, Emmpak, Excel, Filiberto’s, Finley School District, Friendly’s, Gate Gourmet, Gold Coast Produce, Golden Corral, Habanero’s, Harmony Farms, KFC, King Garden Restaurant, Lund’s, Malt-O-Meal, McDonalds, Natalie’s Orchid Island Juice Co., Natural Selections Foods, Odwalla, Olive Garden, Paramount Farms, Pat & Oscar’s, PM Beef Holdings, Quality Inn, Quizno’s, Regent Beverly Wilshire Hotel, Robert’s American Gourmet (Veggie Booty), Sam’s Club, San Antonio Taco, Senor Felix, Sheetz, Silver Grill Location Catering, Sizzler, Sodexho, Spokane Produce, Subway, Sun Orchard Juice Co., Supervalu, Sushi King, Susie Cantaloupe, Taco Bell, Taco John’s, Topps, United Food Group (UFG), Viva Cantaloupe, Wal-Mart, and Wendy’s.

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From the pages of "Barfblog:"

Fifteen years ago this week, Seattle lawyer Bill Marler and Kansas State University professor Douglas Powell were drawn into the food safety arena when the Washington Department of Health announced that Jack in the Box restaurants were the source of a multi-state outbreak of E. coli O157:H7 infections. Now, the two are teaming up to further promote awareness of food safety.

Marler, who has represented thousands of victims of E. coli and other foodborne illness outbreaks since representing more than 100 victims of the Jack in the Box outbreak, has pledged to donate $25,000 to Powell's group, the International Food Safety Network -- iFSN -- at Kansas State University. The group, which was formed in 1993 when Powell began researching the impact and influence of food safety information on farmers, processors, retailers, consumers and regulators, produces several electronic mailing lists to disseminate food safety information across the globe. In addition, Marler has pledged to match all other donations made to iFSN in 2008, up to $25,000.

In thanking Marler for the donation, Powell said, "All money donated to iFSN will be used to fund students in developing and carrying out a variety of projects. These will focus on the use of new media and new messages to compel individuals from farm-to-fork to take steps to reduce the incidence of foodborne illness.

"Bill Marler is an outstanding advocate for food safety and understands that microbiologically safe food just doesn't happen," said Powell. "Any lawyer can talk the talk. Bill walks the talk."

The U.S. Centers for Disease Control and Prevention estimates that 76 million Americans get sick and 5,000 die each and every year after consuming contaminated food and water. The Jack in the Box outbreak in the Pacific Northwest, which killed four and sickened over 600, was the tipping point for American public awareness of the risks posed by dangerous microorganisms in food.

I actually did it for the t-shirts.

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Advanced Strategies for Managing and Defending Food Contamination Claims

Thursday, February 28, 2008 to Friday, February 29, 2008
Millennium Resort, Scottsdale McCormick Ranch, Scottsdale, AZ, United States

Overview

2007 was the year of the recall, with E. coli contamination increasing sharply in 2007 over the previous two years. And it's not just beef recalls and E. coli contamination that are making the news... Peanut butter, spinach, pot pies and pizza; salmonella, listeria and other toxins... All kinds of food-borne illnesses and the ensuing litigation are on the rise, as experts point fingers at increased use of offshore food sources, a largely self-regulated industry, and other factors in an attempt to explain the sudden surge. It's clearly a critical time for food companies, and the lawyers who advise them, to get valuable, practical information to enable you to minimize the likelihood of these situations and the ensuing litigation from occurring - and to manage the litigation appropriately when it arises.

To address these growing concerns, American Conference Institute has developed this critical conference on Preventing and Managing Food-Borne Illness Litigation. For this unique event, we've assembled a multi disciplinary faculty of epidemiologists, microbiologists, key regulators and top litigators in the area, and an agenda that covers all the issues that arise in litigating and settling these complex cases. Get strategic and practical insights into:

*Understanding the science behind tracing and identifying a pathogen - so you can make or refute the causal link in your case

*Getting back on track with consumers after a crisis:getting out the right message

*Using Freedom of Information Act (FOIA) requests:why they are such an effective discovery tool in food borne illness cases

*Deposing food-borne illness experts: tips and techniques

*Effect of insurance coverage issues on how you proceed in a third party action

*Analysis of where plaintiffs been most successful in food-borne illness class actions and MDL proceedings

Don't miss this unique opportunity to hear what others are doing in response to this growing, highly-specialized litigation. Get your questions answered and get valuable tips and practice points you can use in your own cases. Spaces will go quickly, so register now for this important event. We look forward to seeing you in Scottsdale in February.

To register, visit www.americanconference.com/foodlit, or call 1-888-224-2480. Hope to see you there!

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2007 was a record year for hamburger-related food safety recalls - over 20 individual recalls involving over 33 million pounds of meat. Because of the failure of the beef industry and government to protect the public, the law firm of Marler and Clark has approved a project to commission a baseline study to determine the prevalence of non-O157:H7 pathogenic shiga toxin producing E. coli (STEC) in retail ground beef.

Non-O157 STEC are capable of causing the same debilitating triad of diseases as E. coli O157:H7, including hemorrhagic colitis, hemolytic uremic syndrome, and thrombotic thrombocytopenic purpura. Infection with the non-O157 STEC can result in death in children, the elderly and the immunocompromised. According to the U.S. Centers for Disease Control and Prevention, the number of reported cases of illnesses caused by this group of pathogenic E. coli has been steadily increasing over the past several years. Despite this, Non-O157:H7 STEC is not considered an adulterant under current law in the U.S.

Non-O157:H7 STEC are also known to occur in imported beef from several trading partners, yet the U.S. Department of Agriculture Food Safety and Inspection Service (FSIS) has not required that imported beef be free of these pathogens. The Agency has also failed to devise steps to measure and control the presence of these pathogens in domestic beef production and the ground beef supply, at the slaughterhouse or the grocery store.

The law firm of Marler and Clark will take the unprecedented step of commissioning a baseline study to determine the prevalence of these organisms in the United States ground beef supply. During the one-year course of the study a total of 5,000 samples will be analyzed for the presence of these organisms. Positive samples will be archived and the genetic fingerprints of the isolates will be provided to the Centers for Disease Control and Prevention, along with the relevant sample information including the type of ground beef, place of purchase and date of purchase.

Since the 1993 E. coli O157:H7 outbreak tied to the Jack-in-the-Box restaurant chain, the Attorneys at Marler Clark have been at the forefront of foodborne illness litigation in the Untied States. In addition to representing victims of foodborne illness, several times a month the attorneys at Marler Clark, through the not for profit www.outbreakinc.com, speak to industry and government throughout the United States, Canada, China, England and Australia on why it is important to prevent foodborne illnesses. They are also frequent commentators on food litigation and food safety on www.marlerblog.com and they also sponsors several websites related to E. coli, including www.about-ecoli.com, www.about-hus.com, www.ecoliblog.com and www.ecolilitigation.com.  For further contact: Bill Marler, bmarler@marlerclark.com, 1-206-346-1890.

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I was reading The China Daily (my source of “real news”) and stumbled across this article by Zhu Zhe – “Beijing food, drug safety drive 'complete success.’”  Unlike Food Safety Authorities in every other part of the world, Chinese “[a]uthorities in Beijing Wednesday declared the city's four-month campaign against unsafe food and drugs a "complete success". The campaign, which was part of a nationwide drive launched in August, resulted in 120 tons of substandard food products being either destroyed or removed from shelves, Vice-Mayor Lu Hao told a work conference that was broadcast live on the central government website www.gov.cn.

Other achievements included:

- The confiscation of 7,335 kg of illegally produced salt products and 2,115 kg of meat products that had not gone through proper quarantine checks.

- The destruction of 5,860 tons of fake or highly poisonous pesticides.

- The investigation of 18,000 cases involving the illegal sale of food products.

- The revocation of 15 food exporters' licenses and destruction of 4,000 kg of unsafe imported aquatic products.

- The removal from shelves of 309 kinds of drugs, and orders issued to 165 producers of drugs and medical devices to make corrections, 60 of which had their licenses revoked.

Lu said the safety of food and drugs in the city has been greatly improved following the four-month effort.  Wow, we need to start importing, not only more Chinese food, but Chinese Food Safety Authorities.

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I don't talk about norovirus much on the pages of my blog despite the fact that norovirus is estimated to cause 23 million cases of acute gastroenteritis (commonly called the "stomach flu") in the U.S. each year, and are the leading cause of gastroenteritis. Of viruses, only the common cold is reported more often than viral gastroenteritis (norovirus).  Norovirus may cause more outbreaks of foodborne illness than all bacteria and parasites. They can cause extended outbreaks because of their high infectivity, persistence in the environment, resistance to common disinfectants, and difficulty in controlling their transmission through routine sanitary measures.  I was therefore glad to see the Orlando Sentinel's report on "83 guests suffer norovirus outbreak at Palm Beach resort."


Florida Health officials identified the highly contagious norovirus as the cause of an outbreak that sickened at least 83 people at the Hilton Singer Island Resort. Health officials were called in after three people were hospitalized. Test results confirm that the outbreak was norovirus, a highly contagious virus that causes diarrhea, vomiting, nausea, cramps and other symptoms, officials said.

"It spreads easily and quickly," said Tim O'Connor, spokesman for the Palm Beach County Health Department. "We've asked (the hotel) to completely disinfect everything." The hotel shut down its kitchen Saturday, threw out food and cleaned, so health officials are unable to determine whether the virus outbreak began in the restaurant. "We didn't know what we were looking at," said hotel manager Stan Turner. "If it is food-borne, you know that it's this plate, this salad. But if it's norovirus, it comes from everywhere, so that's unnerving. "The hotel restaurant reopened after staff cleaned the entire property, Turner said. "It has been a floor-by-floor, room-by-room, surface-by-surface process," he said. "We are not resting. We are still cleaning." The hotel restaurant was cited for more than a dozen violations during a December state inspection, but the report noted there was no "immediate threat to the public."

We have taken on several hundred cases of norovirus-caused illnesses over the years.  However, showing how the virus is transmitted is hard.  Was it foodborne?  Was it an ill worker?  Ill patron?

The Missoulian newspaper also reported on the spread of norovirus in the Montana local schools:

It hits fast and hard, and can spread like the latest Britney Spears story. Its symptoms aren't something you want to read about over breakfast.

Health officials Friday stressed the following ways to prevent norovirus infection:

1. Stay at home and away from others if you are ill, and for at least two days after you start feeling better. Food workers should stay home 72 hours.

2. Wash hands thoroughly with soap and water. “Sing happy birthday,” one expert said. “That's about how long you should scrub.” Alcohol-based sanitizers are not effective against norovirus.

3. Clean all possibly contaminated surfaces with a chlorine bleach solution. Use 1/3 cup of bleach in 1 gallon of water for non-porous surfaces (toilets, sinks, countertops). Use 1 2/3 cups of bleach in 1 gallon of water for wooden floors and other surfaces that could absorb vomit splatters.

And, it even ruins weddings - Iowa Couple Sues Restaurant After Rehearsal Dinner Sickens Wedding Party - A central Iowa couple is suing the restaurant where they held their rehearsal dinner the night before their November 2006 wedding. A Polk County Health Department investigation concluded the man who prepared the salad served at dinner that night had stomach flu. The official cause was determined to be norovirus. A total of 71 people became sick. Restaurant owner Paul Trostel said his insurance company has settled with many of the customers who fell ill.

"I feel very terrible about this situation that happened once in 20 years," he said. "It could have happened to any restaurant, but unfortunately it happened at the Greenbriar."

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According to press reports, Johnny Depp donated two million dollars to the London hospital that saved his daughter's life from E. coli O157:H7. The star wanted to make sure others were helped with his donation and he directed the money to the center for treating eight-year-old Lily-Rose last year. Lily-Rose was admitted to the medical center last March after contracting the life-threatening bacteria which caused her kidneys to fail.


Good for you Captain Jack.

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China has a population of 1,321,851,888, the United States has 301,139,947. In the United States the Centers for Disease Control and Prevention (CDC) estimates that 76 million foodborne illness cases occur in the United States every year. That is one in four Americans becoming ill after eating foods contaminated with such pathogens as E. coli O157:H7, Salmonella, Hepatitis A, Campylobacter, Shigella, Norovirus, and Listeria. On an annual basis in the United States, approximately 325,000 people are hospitalized with a diagnosis of food poisoning, and 5,000 die.

I know, I know, your thinking Bill is going to talk about his trip last year to China, again. OK, just the facts. Despite have a population over four times ours, China appears to have done what the United States fails to do – make the food supply the “safest in the world.”

According to reports in the Xinhua News service:

The number of reported food poisoning cases in China fell to 177 from the end of August to the end of December, 15.3 percent down from the same period a year earlier, the Ministry of Health said Monday. The number of people affected by food poisoning dropped 40 percent to 4,047 over the past four months, the ministry said in a teleconference on catering safety. It attributed the decline to a nationwide campaign initiated in August on catering sector food safety.

Reuters also weighed in:

China declared on Monday that its four-month campaign to ensure food and product safety had been a total success, with all goals being met months before Beijing hosts the Olympics…. Deputy quality watchdog chief Pu Changcheng was quoted as saying:

"The tasks of the rectification campaign have been fulfilled completely and its objectives have all been reached," Pu told a news conference.

"The illegal practice of using non-food materials and or recycled food to produce and process food has been basically eliminated. The illegal practice of abusing food additives such as preservatives and coloring has been effectively held back."

They really must have been paying attention when I spoke at last year’s Beijing Food Safety Conference. I’m surprised they invited me back.

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Event will feature Chef Joseba Jiménez de Jiménez of The Harvest Vine and Txori

Too many cooks in the kitchen will be a good thing on Sunday, Jan. 13, 2008, as more than a dozen of Seattle's best and brightest chefs unite for the 16th annual Chefs' Dinner to benefit Seattle's Bailey-Boushay House, a skilled nursing facility for people living with HIV/AIDS and other complex, life-threatening diseases. Guests will enjoy the best Seattle chefs have to offer at the hors d'oeuvres reception and silent wine auction. An exclusive multi-course dinner featuring entrées by leading culinarians will follow the reception.

Bell Harbor International Conference Center hosts the event. Organizers hope to raise $200,000 to directly support the nutrition program at Bailey-Boushay House.  Last year we raised over $230,000.

"AIDS is not over," said Brian Knowles, Executive Director of Bailey-Boushay House. "The complex nature of the disease requires that our residents and clients receive special care. The need for a facility like Bailey-Boushay House is greater than it ever has been. We owe many thanks to these culinary masters for putting on such a wonderful celebration of our work."

This year's honorary chef, Joseba Jiménez de Jiménez, began his career in Madrid, Spain in 1979. He studied in San Sebastian and Paris and worked for the U.S. Embassy in Spain catering special events. He worked as a consulting chef for 10 years opening more than 20 restaurants in New York and throughout the country before moving to Seattle in 1997. Here he opened a catering company with his wife called The Harvest Vine and later opened a restaurant by the same name. The Harvest Vine was selected by Seattle Magazine as one of Seattle's 10 Very Best Restaurants of 2007.

Featured Area Chefs:

Eric Banh, Baguette Box & Monsoon
Daniel Molina, Bailey-Boushay House
Jay Bartleson, Bell Harbor International Conference Center
Janine Doran, Cafe Flora
Thomas Hurley, Coupage
Peter Kuang, Green Leaf
Byron Schultz, Ivar's
Jim Drohman, Le Pichet & Café Presse
Brock Johnson, Lola
Bo Maisano, Madison Park Café
Michael Barnhouse, Rosebud Restaurant & Bar
Peter Birk, Ray's Boathouse
Walter Pisano, Tulio

About Bailey-Boushay House:

Bailey-Boushay House, opened in 1992, is America's first skilled nursing facility that was planned, funded, built and staffed to meet the needs of people living with AIDS. The nationally-recognized facility provides care for people living with HIV/AIDS and other complex, life-threatening diseases promoting their health, well-being and functional independence. Bailey-Boushay is operated by Virginia Mason Medical Center.

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I love a late night food quiz when I'm on the road and can not sleep.  Thanks to the folks at the Cleaner Plate Club Blog.  It was sad that I was able to answer most of the questions correctly.  Click on the photo below from the Cleaner Plate Blog to try it yourself:

I especially liked the questions about Topps and Nebraska Beef.  More on those in 2008.

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I am in Reno (no, I’m not gambling) attending a food safety conference sponsored by the Institute of Food Technologists and the Food Safety Research and Response Network. My talk in the morning is “Minimizing Your Liability Risk and Foodborne Illness Lawsuits.” The PowerPoint is below. Also, for some additional information about how we approach the investigation of an outbreak, please see an earlier paper I wrote “Separating the Chaff from the Wheat : How to determine the strength of a foodborne illness claim.”  You can find it at www.billmarler.com.

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Winston Churchill once said, “There is no finer investment for any community than putting milk into babies.” Perhaps he was right, but at the turn of the 20th century, the process of pasteurizing milk was still in its infancy, and the safety of milk was a preeminent public health challenge. As people in the United States moved from the countryside into cities, their milk supply became increasingly unhealthy. Milk from cows in the country was transported further and stored at higher temperatures than in the past. Milk produced closer to cities came from cows kept under crowded and unsanitary conditions, and as a result, many city residents, especially children, were increasingly getting sick and dying after consuming contaminated milk. (1)
Continue Reading...

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The Law Blog 2007 Year-End Quiz!

14. What does the wife of foodborne-illness lawyer Bill Marler have on her vanity license plate?

a. RAWMEAT?
b. SALMNLLA?
c. ECOLI?
d. HEPATITIS

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Not much really to say other than thanks to my daughter Morgan for taking the pictures.

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Well, the stocking are hung and the presents are all wrapped, and I am surfing the net to see what there is to blog about (my version of the “Night Before Christmas”) when I found this quote:

“Nine billion food animals are produced and slaughtered in the United States annually, and all of those animals are defecating and shedding bacteria, including drug-resistant bacteria…. We are running out of antibiotics to treat human infections.” Lance Price

Antibiotic-resistant bugs have been in the news recently. Some, like Salmonella Newport, have caused illness in consumers of Safeway ground beef.  Newsday recently reported - "Poultry Workers may spread E. coli" – No, not E. coli O157:H7, but gentamicin-resistant E. coli.

Public health investigators at Johns Hopkins University estimate that workers in poultry factories in the United States are 32 times more likely to be colonized with E. coli that repels the antibiotic gentamicin than other people. The drug is used to treat both poultry and humans.

Recently, in a new study, “MRSA prevalent in Canadian pig farms and pig farmers,” published in Veterinary Microbiology found methicillin-resistant Staphylococcus aureus (MRSA) prevalent in Canadian pig farms and pig farmers, pointing to animal agriculture as a source of the deadly bacteria.

The US Government seems concerned enough to at least study the problem of antibiotic resistant bugs in our food supply.  It created the National Antimicrobial Resistance Monitoring System (NARMS) in 1996 as a collaborative effort between the United States Department of Agriculture,  Food and Drug Administration's Center for Veterinary Medicine and the Centers for Disease Control and Prevention.

The NARMS program monitors changes in antimicrobial drug susceptibilities of selected enteric bacterial organisms in humans, animals, and retail meats to a panel of antimicrobial drugs important in human and animal medicine.  Animal and human isolates currently monitored in NARMS include Salmonella, Campylobacter, E. coli, Listeria and Shigella.  Some selected articles on antibiotic resistance:

Antibiotic Resistance in Listeria, Antibiotic Resistance in Shigella, Antibiotic Resistance in Escherichia coli, Antibiotic Resistance in Campylobacter, Antibiotic resistance in Salmonella

Well, looks like it will be a far too busy and profitable New Year.

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Annys Shin, Washington Post Staff Writer, weighed in an article she authored a few days ago - Beef's Wake-Up Recall - A Year of Problems Has USDA Rethinking Safety Rules.  And, here, in part is why the concern:

USDA officials did not learn that Topps had begun testing its ground beef less frequently until the recall. Recurring sanitation problems at a United Food Group plant in Vernon, Calif., that later recalled 75,000 pounds of ground beef did not trigger further enforcement actions because the agency had not told inspectors what to do about repeat violations…. The department has postponed plans to target inspections at plants that had a record of problems because officials do not know which plants pose the greatest risks.

On June 9th of this year I wrote:   From 2002 until a few weeks ago … E. coli illnesses, especially those tied to red meat consumption were down - way down. A report in 2005 released by the CDC, in collaboration with the FDA and USDA, showed important declines in foodborne infections due to common bacterial pathogens in 2004. From 1996-2004, the incidence of E. coli O157:H7 infections decreased 42 percent.  Now that was, and still seems, significant. We saw the same results in our law firm. From 1993 (Jack in the Box) to 2002 (ConAgra), 95% of the cases in our office were E. coli cases tied to red meat consumption. After 2002, we saw enormous drop in clients, and more importantly, ill people nationwide. Recalls fell to nothing. That is until six weeks ago. The last six weeks look like the late springs and summers from 1993 to 2002, when hamburger recalls and E. coli illnesses were a large part of every summer – much like vacations and baseball season. 

That was written before - now bankrupt - Topps recalled 21,000,000 pounds of meat and food giant, Cargill, recalled another 1,000,000.  I then posted, "Why the Uptick in E. coli cases” and “Uptick in hamburger E. coli contamination and recalls.  My last post on the "Uptick" was "E. coli O157:H7 back with a vengeance."  Hopefully, now that the Washington Post has jumped in, maybe our politicians will read their local newspaper - assuming they know how to read.

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This is a view from the back of the ferry commuting to Seattle this morning.  The snow-covered mountains you see are the Olympics - height - 7,500 feet.

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I recently did an interview with Don Riggs, the host of Introspect Northwest, which airs on KMPS-FM 94.1 at 6:00 a.m. on Sunday, and on KPTK-AM 1090 at 9:00 a.m. on Sunday.  Don and I talked about food poisoning lawsuits during our interview.  You can listen in on Sunday at 9 a.m. here:  radiotime.com

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I read this morning that China and the United States have signed an agreement that aims to ensure Chinese food, drugs and other exports meet US standards – now I’m worried. What concerns me is not that Chinese producers of the affected products must register with local authorities and submit to annual inspections, but the purpose is to ensure US standards are met. Given that US Corporations do such a terrific job of poisoning our own citizens, I am worried that China is only trying to meet US standards.  That is not a lofty goal.

Getting China down to our standards - that’s the goal I guess.  Also, the New York Times reported – “China and U.S. in Food Safety Accord” – according to the article:

Michael Leavitt, secretary of health and human services, said he expected that officials of the United States Food and Drug Administration would eventually be embedded in China’s food safety bureaucracy to help train Chinese officials and keep records on their inspections.

So, let me get this right – last week we heard that the FDA did not have enough inspectors to deal with manufacturers in this country, or at the border, but we can loan inspectors to China to lower their standards to ours – that’s brilliant.

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Olivia worked on her Science Project yesterday.  No, it was not a food project, it is a representation of a plant cell and a few of the key parts. 

Chloroplasts (green stringy thing) are found in plant cells. They capture energy from the sunlight and use it to produce food for the cell (photosynthesis).

Mitochondria (red stringy thing) provide the energy a cell needs to move, divide - in short, they are the power centers of the cell.

Cell Membrane (inner part of the Tupperware) protects the cell and regulates the substances that enter and leave the cell wall (Tupperware).

Golgi Bodies (white wormy things) primary function as the cell’s mailroom. They receive proteins and send them to other parts of the cell.

Ribosomes (red balls) function is to transfer proteins from the endoplasmic reticulum to the golgi bodies.

Vacuole (big rubber ball) is found in the cytoplasm (Jell-O) of most plant cells and some animal cells. In general, vacuoles functions include:

1. Removing unwanted structural debris
2. Isolating materials that might be harmful or a threat to the cell
3. Containing waste products
4. Maintaining internal hydrostatic pressure within the cell
5. Maintaining an acidic internal pH
6. Containing small molecules
7. Exporting unwanted substances from the cell
8. Enabling the cell to change shape

Endoplasmic Reticulum (stringy things that sunk) are passageways that carry material from one part of the cell to the other.

Nucleus (small rubber ball that also sunk) directs all of the cell’s activities, including reproduction.

Cytoplasm (green Jell-O -- edible, sort of) is a gelatinous, semi-transparent fluid that fills most cells.

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David Barboza of the New York Times wrote in "China Cracks Down on Food Safety Violators" that “Beijing has been moving aggressively in recent months to complete a six-month long campaign to root out fake and substandard food, drugs, toys and other consumer goods….” He also noted that last year, Zheng Xiaoyu, the former head of the State Food & Drug Administration, was executed for accepting bribes and failing to properly supervise the food and drug market…. Now, Beijing is drafting legislation that could mete out the ultimate punishment for drug companies or others whose products harm or kill large numbers of people — the death penalty.”

One wonders if the US Food Supply would be safer if “the ultimate punishment” was levied against the heads of USDA and FDA who fail to protect the public, and the heads of corporations who sicken and kill their customers? I guess it would give a different meaning to “heads will roll?”

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So let’s review: So far this year, in some 20 recalls, ground beef companies have recalled more than 30 million pounds of E. coli O157:H7-contaminated meat.  Hundreds have been sickened, including dozens of children who have undergone kidney dialysis as a result.  This compares with just eight recalls and a total of 156,235 pounds in 2006.  And chances are, this year’s recalls are the tip of the iceberg.  Realistically, it is possible that hundreds more were sickened as a result of these recalls but simply misdiagnosed.  It’s the microbial equivalent of Genghis Khan marching across Asia, except the violence is silent and insidious.  All this after some 5 previous years of marked decline in outbreaks of E. coli.  What’s going on?  What’s changed out there?

There are as many theories as there are authorities, researchers, and meat packers.  Over the past couple of weeks, we’ve talked to a number them, and theories abound.  Here are a few:

Complacency:  After five years of progress with the E. coli problem, one wonders if meat processors have consciously or unconsciously slacked off, relaxing their testing procedures so that they are less likely to detect tainted meat.  That or, possibly, the processors designate their meat that tests positive for E. coli for further processing, rather than discarding or destroying it.  Diverting poisoned meat to another processing line inevitably creates new possibilities for microbes to reach consumers.  If that’s the case, then the recent outbreaks, which led to the bankruptcy of two major meat-processing companies, should serve as a harsh reminder to the food industry that complacency does not pay.

Better Reporting:  When you deal with statistics, there is always some risk that a change in data collection will create false impressions.  For example, police might emphasize thefts from cars, therefore encouraging people to file police reports, which in turn will affect the next statistical report.  One of my associates believes that more doctors are more likely to recognize the symptoms of E. coli poisoning, thereby increasing the chances that an outbreak will be detected, leading to a recall. This may be a factor, but the effects of improved reporting would be gradual. This year’s increase in outbreaks and recalls is far too dramatic and sudden to be explained by a statistical quirk.

Global Warming:  Too dry?  One theory has it that drought through much of the southeast and southwest has led to more fecal dust wafting in the breezes through beef-slaughtering plants, creating new avenues for beef to become tainted.  How’s that make you feel about that ground sirloin?  Too wet?  This theory focuses on excessive rainfall in other regions, which leads to muddy pens that serve as an ideal vehicle for E. coli at meat-processing plants.  Too dry or too wet?  The problem with both of these theories is that the government does such a poor job of tracing the origin of any given lot of beef that it’s next to impossible to determine whether tainted beef came from a plant that was too wet, too dry, or just right.

High oil prices:  They get blamed for everything else, so why not food-poisoning?  The theory is that $3 gas has fueled the growth of ethanol plants.  Those plants tend to be built next to feedlots, because the plants produce a byproduct called distiller’s grains, which serves as an excellent feed for livestock.  Problem is, according to research at Kansas State University, the distillers grain also increases the incidence of E. coli in the hindguts of cattle.  Researchers aren’t sure how that happens, but there is clear evidence of a relationship.  So, to review, high gas prices lead to more ethanol plants which lead to more distiller’s grains, which help breed E. coli in cattle.

Illegal Immigration:  Wait, perhaps not.  The New York Times reported that immigration officials began a crackdown at slaughterhouses across the country last fall.  Some now are hiring men from homeless missions and providing free transportation to many of them.  Hmmm, a influx of unskilled, but US workers, with no experience and high turnover.

The Darwinian explanation:  Another theory has it that previous interventions – from Jack in the Box to Odwalla and ConAgra – have forced the E. coli microbes to adapt, selecting pathogens that are more resistant to detection or intervention.  As one of our sources puts it, Darwin would be proud.  But this seems unlikely because beef comes from a huge and diverse geographic range – literally coast-to-coast and border-to-border.  While the climate and geography varies, the feedlot practices and the manner of slaughtering and processing do not vary much, if at all.

In short, cows have not changed.  Feedlots have not changed.  Slaughterhouses have not changed.  Inspections and government regulations have not changed.  Supermarkets have not changed.  All that has changed is that kids are getting sick again.  And that has to change.

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A few weeks ago I continued my posts on the question of the “Uptick” in E. coli O157:H7 cases by asking this question:

Is this an explanation? What is the change? I understand that perhaps with the increase in the price of oil there has been an increase in ethanol production and waste products – eaten by cows?

I found this interesting article put out by Kansas State University - Feeding cattle byproduct of ethanol production causes E. coli O157:H7 to spike.

According to the K-State Press Release - Ethanol plants and livestock producers have created a symbiotic relationship. Cattle producers feed their livestock distiller's grains, a byproduct of the ethanol distilling process, giving ethanol producers have an added source of income. But recent research at Kansas State University has found that cattle fed distiller's grain have an increased prevalence of E. coli O157:H7 in their hindgut. The growth in ethanol plants means more cattle are likely to be fed distiller's grain, therefore harboring E. coli O157:H7 and potentially a source of health risks to humans. Research by K-State in the next few years will focus on finding out why E. coli O157:H7 is more prevalent in cattle fed a distiller's grain diet. It could be something that changes in the animals' hindgut as a result of feeding distiller's grains, or maybe the byproduct provides a nutrient for the bacteria.

Perhaps the increase in the price of oil, leading to more ethanol production, leading to more E. coli O157:H7 in cow’s guts, in combination with a less experienced slaughterhouse workforce, has increased the prevalence of E. coli O157:H7 in hamburger, leading to the increased recalls and illnesses?  See - Crackdown Upends Slaughterhouse’s Work Force.  Go, K-State!

As good colleges do, there seems to be a bit of a rivalry between K-State and Big Red.  BILL HORD? of the WORLD-HERALD BUREAU reported that, ?” Kansas E. coli research is puzzling to UNL.”

A Nebraska research team studying E. coli contamination reported Thursday that its studies do not support Kansas findings that byproducts from ethanol contribute to the prevalence of a toxic strain of the pathogen in cattle.  The team of scientists at the University of Nebraska-Lincoln has seen no increase in the prevalence of E. coli O157:H7 in cattle fed distillers grain, the byproduct, said Terry Klopfenstein, an animal science professor at UNL.

In football this year the score was 73 to 31 - Nebraska won

A KSU press release on the research was met with nationwide media attention, said KSU pathobiologist T.G. Nagaraja, whose voice mail box was full Thursday.  "I knew it would generate some attention, but I did not realize the extent to which it has," Nagaraja said in an interview Thursday.

Jerry W. Kram of Ethanol Producer’s Magazine wrote: "Study finds DDG-E. coli link.”  Although the post was on December 7, the interview appears to have been done before the controversy over the findings surfaced.  In the conclusion:

The paper discussed two hypotheses to explain the increased prevalence of the pathogenic bacteria. One is that using distillers grains lowers the amount of starch and increases the amount of fiber in the cattle rations. That changes the environment of the cattle’s digestive tract which allows the pathogen to gain a competitive advantage over other intestinal flora. Another hypothesis is that there is some component of distillers grains that promotes the growth of E. coli O157. There is some evidence supporting this idea from in vitro experiments.

The conclusions of the paper stated that the implications of these observations were very serious because of the increasing role of distillers grains in the cattle industry due to the rapid expansion of ethanol production.

I can hear the grass-fed organic group crowing about this too, but PLEASE, not too fast.  As was posted on www.barfblog.com a few weeks ago:

Chef and restaurateur Lenny Russo joins other food pornographers such as Mark Bittman and Nina Planck in promoting fashion over facts by recycling the claim that grass-fed cattle have significantly lower levels of dangerous E. coli than grain-fed cattle.

Mike Osterholm, director of the Center for Infectious Disease Research and Policy and professor in the School of Public Health at the University of Minnesota and Russo's target, does a nice job of, um, crushing Russo's assertions in today's Minneapolis-St. Paul Star Tribune:

"Russo cited conclusions from a 1998 study from Cornell University that cattle fed a diet of grass, not grain, had very few E. coli, and that those bacteria that survived in the cattle feces would not survive in the human when eaten in undercooked meat, particularly hamburger. This statement is based on a study of only three cows rotated on different diets and for which the researchers did not even test for E. coli O157:H7. Unfortunately, the authors extrapolated these incredibly sparse results to the entire cattle industry. The Cornell study is uncorroborated in numerous published scientific papers from renowned research groups around the world. Finally, work conducted by the Minnesota Department of Health as part of a national study on foodborne disease recently showed that eating red meat from local farms was a significant risk factor for E. coli infection. ...

"Russo would understand this issue in an entirely different light if he had been with me when I had to explain to distraught parents that their young daughter's death was due to eating an undercooked hamburger, prepared by them, and the E. coli that caused her illness came from meat from a cow raised only on pasture grass and processed by the local meat packer. The cow also came from Grandpa's farm down the road."

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Not too long ago, I wondered if the beef industry had actually wised up, and was about to put me out of the business of representing the people they make sick.  After a decade of nearly continuous outbreaks of deadly E. coli O157:H7, from Jack in the Box to ConAgra, the beef industry seemed to suddenly clean up its act.  Earlier this year, the American Meat Institute claimed the incidence of E. coli in meat had dropped by 80 percent.  That would have been good news for millions of Americans, especially young children, who are most vulnerable to food-borne illness.  It would have been good news for the beef industry.  And, believe it or not, it would have been good news to a lawyer who would prefer to never see another three-year-old child hooked up to a kidney dialysis machine.  But, of course, it was too good to be true. In the last few months, E. coli O157:H7 has returned – perhaps literally with a vengeance. 

I spent the last few days looking at as many resources that track red meat – primarily hamburger - recalls and the Illnesses stemming from them.  Here is what I have found – somewhat in chronological order.  2007 has had a substantial increase in the volume of recalls and illnesses in any year since 2002. By way of comparison, the amount of ground beef recalled in all of 2006 was 156,235 pounds in only 8 recalls. To date in 2007, over 29,248,167 pounds of meat have been recalled in 20 recalls. Well over 100 people have been sickened, some developing acute kidney failure – many have contacted me. There are several E. coli-related deaths that may be linked to consumption of hamburger. Here is the 2007 list of recalls (some do not list pounds recalled):

1. Tyson Fresh Meats of Wallula, Washington shipped 16,743 pounds of E. coli suspect meat to distributors in Oregon, Washington, Idaho and Utah.

2. More than 100,000 pounds of frozen ground beef patties processed by a Merced company were recalled after three Little League teammates fell ill with E. coli.  Richwood Meat Co. issued a recall of the year-old frozen beef, which was produced in late April and early May 2006. The Merced plant distributed meat in California, Arizona, Idaho, Oregon and Washington.

3. HFX Inc., recalled 259,230 lbs of beef products due to contamination with E. coli. USDA's Food Safety and Inspection Service and the Pennsylvania Department of Health found several illnesses tied to steak products produced by HFX Inc. for Hoss's Family Steak and Sea Restaurants, a chain based in Pennsylvania.

4. The Fresno County Health Department said that there were confirmed cases of E. coli in Fresno County. The Health Department has inspected the “Meat Market” in Northwest Fresno. Meat from the company may have been served at several private parties where 20 guests later became sick.  We represent several victims.

5. Davis Creek Meats of Michigan issued a beef recall because of E. coli contamination. The recall was for 129,000 pounds of beef products produced between March 1st and April 30th, and included the states of Illinois, Indiana, Iowa, Missouri, Wisconsin, Arkansas, Florida, Kansas, Kentucky, Michigan, Ohio, Pennsylvania, Tennessee, Virginia and West Virginia.

6. Lund’s and Byerly’s of Minnesota issued a ground beef recall prompted by the sickness of at least seven people who ate E. coli-contaminated ground beef produced by PM Beef Holdings and sold at Lund’s and Byerly’s stores in several states including Illinois, Iowa, Wisconsin, Arizona, Michigan, Minnesota, Ohio and Virginia. PM Beef, the meat company responsible for supplying tainted trim, withdrew nearly 117,500 pounds of beef it had shipped to eight states.  We represent several victims.

7. United Food Group, LLC, expanded its June 3 and 6 recalls to include a total of approximately 5.7 million pounds of both fresh and frozen ground beef products produced between April 6 and April 20 (the largest recall since 2002) because it was contaminated with E. coli. An investigation carried out by the California Department of Health Services and the Colorado Department of Health, in coordination with the Centers for Disease Control and Prevention, preceded the recall of June 3. Illnesses occurred in Arizona (6), California (3), Colorado (2), Idaho (1), Utah (1) and Wyoming (1). Illness onset dates ranged between April 25 and May 18.  We represent several victims.

8. Tyson Fresh Meats, Inc., recalled 40,440 pounds of ground beef products due to possible contamination with E. coli.

9. Custom Pack, Inc., recalled 5,920 pounds of ground beef and buffalo products because it may be contaminated with E. coli.

10. Abbott's Meat Inc., recalled 26,669 pounds of ground beef products because it may be contaminated with E. coli.

11. Nine people have gotten sick in Washington, Oregon and Idaho from E. coli contaminated Interstate Meat beef. Federal and state health officials issued a consumer alert after contaminated beef produced by Interstate Beef of Oregon sickened nine people. Interstate recalled 41,205 pounds (approximately 20 tons) of beef.  We represent several victims.

12. Topps Meat Company expanded a recall of frozen hamburgers to 21.7 million pounds of patties because it was contaminated with a deadly type of E. coli, making it the second-largest ground beef recall in U.S. history. The largest ground beef recall in U.S. history was the 1997 Hudson Foods Company recall of 25 million pounds of ground beef. The third largest was the ConAgra Foods recall of 2002, which covered 19.7 million pounds of ground beef. The Centers for Disease Control and Prevention had identified 40 cases of E. coli in eight states. While this is the first recall in Topps' 65-year history, it is not the first time the company has had problems with E. coli. In 2005, a 9-year-old girl in Glenmont, N.Y., went into kidney failure after being infected with bacteria linked to a Topps beef patty. Ill persons reside in 8 states - Connecticut (2), Florida (1), Indiana (1), Maine (1), New Jersey (9), New York (13), Ohio (1), and Pennsylvania (12).  We represent several victims.

13. Impero Food and Meats, Inc., recalled 65 pounds of ground beef products because it may be contaminated with E. coli bacteria. The company's president said the meat was distributed to five pizza restaurants in the Maryland area.

14. Fresh Brands Distributing Inc., recalled ground beef products sold by some of its Piggly Wiggly stores in Illinois after E. coli infections in two people may have been associated with beef bought in Wisconsin, the company said. Sheboygan-based Fresh Brands operates Piggly Wiggly stores throughout Wisconsin and in Antioch, Galena, Grayslake and Zion, Illinois.

15. Fairbank Reconstruction Corp., doing business as Fairbank Farms recalled 884 pounds of ground beef products because it may be contaminated with E. coli.

16. Del-Mar Provision Co., Inc., recalled 50 pounds of ground beef products because it may be contaminated with E. coli.

17. Arko Veal Co., recalled 1,900 pounds of ground beef products because it may be contaminated with E. coli.

18. J & B Meats Corporation Inc., recalled 173,554 pounds of frozen ground beef products because it may be contaminated with E. coli.

19. Cargill Meat Solutions Corporation recalled 845,000 pounds of frozen ground beef patties produced at its Butler, Wisconsin location because it was contaminated with E. coli. A search through Health Department websites and news has shown at least 13 people ill, and probably 14, 3 still hospitalized - 2 still in critical condition.  We represent several victims.

20. American Foods Group, LLC (AFG), recalled 95,927 pounds of various coarse and fine ground beef products because it was contaminated with E. coli. The problem was discovered through an investigation into two illnesses that was initiated by the Illinois Department of Public Health. A death may be linked to the product in Kentucky.

I expect to hear that the above is just better reporting  - tell that to the families and the kids.  I have posted twice on the "uptick" in E. coli related outbreaks - See 1 and 2 - more to follow.  Also read today's article from USA Today, "Most recalled meat is never recovered, likely is eaten."
As I have said before, "Safe Food in the US is a Train Wreck."

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I checked, I paid my dues to the ABA - American Blawg Association, but I did not make it into the ABA top 100 Blawgs - thats legal speak for Blogs.  I'm bummed, and I know my 32,437 readers from November are too.  No worries, I just need to work a bit harder.

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According to press reports, an FDA requested panel says food safety in particular is in crisis. (Full Report) Questions about the FDA's effectiveness have been underscored by alarming headlines in recent years -- including E. coli in spinach, deadly chemicals in pet foods, toxic toothpaste and the heart-damaging side effects of drugs.  The report says Congress has given the FDA more responsibilities over the past two decades, but no funds to cover the extra work. Meanwhile, the agency hasn't been able to recruit the sophisticated scientific expertise needed to oversee complex medicines and food.  The report says the FDA needs at least an extra 350 million dollars to address drug safety, and 450 million more dollars to improve food safety.  Actually, the same holds true for the USDA.  Just in the last two months we have seen the USDA move slowly on the Topps recall, putting people at risk, and then we see them announce one day that the USDA is getting tough on Canadian E. coli imports, only to turn around quietly and stop testing a week later.

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Well, I can’t say we made much progress with ConAgra in trying to find a path towards resolving customer illnesses from ingesting Salmonella-tainted Peanut Butter. What both sides are still trying to figure out is less what the value of a Salmonella cases is (just ask me, after settling over 2,500 in the last few years, I know what juries and insurance companies will pay), but what is in fact a case. We know that in this outbreak the CDC “officially” counts 714 people as ill, but it also statistically projects nearly 27,561 people total as likely ill from consuming Peter Pan or Great Value peanut butter. Of course, we also know that there are Salmonella cases from 2005 and early 2006 linked to ConAgra Peanut Butter that have not yet been “officially” counted by the FDA or CDC. The question is how do you figure out who was actually ill from eating poisoned peanut butter from the people who consumed nearly 180,000,000 jars of the stuff during the recall period (October 2004 to February 2007)? Well, that is why we have the jury system to resolve disputes like that - more on that in the years to come.

I decided to stay a bit in New Orleans and walked through the French Quarter - an amazing place, and a place unlike any city in the United States. Sitting in a sidewalk café in 80 degree weather while sipping a beer, eating gumbo and listening to Jazz is not so bad. I did drive out to the 9th Ward – one of the areas hit the hardest during Katrina – to see for myself, what if any, progress has been made in the rebuilding of that once vibrant neighborhood. Honestly, other than some hardworking pioneers rebuilding their own homes and various church groups and Habitat for Humanity helping, nothing, nothing exists. Most blocks are vacant – filled with overgrown plants, or houses like this one that beg, "DO NOT DEMO."  It is sad. It is Embarrassing. Where is the help we promised?

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In October Topps Meat Company, founded in 1940, went out of business. That was after Topps had recalled nearly 22 million pounds of frozen hamburger contaminated with E. coli and 40 people across the U.S. had become ill.

Tort deformers decried the “tragedy” that is this Topps’ collapse - that a business went under and employees had lost their jobs. Yes, a company bankrupt and unemployment are tragic. What makes it more so is that the catastrophic breakdown in the food-safety chain at Topps could have and should have been prevented by Topps management.

It’s been a century since Utpon Sinclair published the “Jungle," which exposed the contaminated underbelly of the American meat industry. Reform quickly followed. America got the Pure Food and Drug and Meat Inspection Acts. In the early 1990s, when these safeguards failed – e.g. Jack in the Box E. coli outbreak – again there was a public push for improving food safety.

The U.S.D.A. Food and Inspection Service responded with creating and aggressively enforcing the mandatory Risk Management System. Derived from research and operations in the American space program, this approach [HACCP] prevented new outbreaks by establishing check-points at every phase of meat processing. In addition, the agency classified the presence of E. coli O157:H7 as an adulterant under the Meat Inspection Act. Until recently, the meat contamination problem seemed fixed.

Had Topps complied with the letter and spirit of HACCP, it would not have processed contaminated meat in 2005 and again in 2007. So, why hadn’t Topps done what was the right thing to do for it and its now unemployed? We will be researching that question for years.

My theory is that Topps’ leadership might have chosen to take short-cuts on systemic food-safety procedures. Therefore, contamination which should have been detected early in meat processing wasn’t. The result wasn’t pretty: Food-poisoned consumers went through the agony that E. coli inflicts. They had incorrectly trusted that label “Inspected by the U.S.D.A.” as guaranteeing safety.

Over a century, two waves of reform in ensuring the safety of the American food supply chain have given business a total systems approach. That approach works if management follows the rules. Unfortunately, employees at Topps who lost their means of making a living were among those punished - severely.

Will other businesses be able to learn that century-old lesson: Inattention to proper food processing will be the kiss of death for their brandname, profitability and, yes, very existence.

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Last week Lenny Russo, a St. Paul chef and restaurateur (my guess is that food porn would apply here - "Lenny Russo is passionately dedicated to Midwestern cuisine") posted the following Op-ed: Tainted food calls for changes in farm practices for contamination - To fight E. coli contamination, start by looking at the environment of animals.

Chef Lenny’s solution to the nearly 30,000,000 pounds of E. coli-contaminated meat recalled in 2007, and the hundreds sickened, is to feed cows grass and have them live in more healthful environments.  His feelings on irradiation of meat - “It is somewhat akin to the cigarette smoker who would rather wait to develop cancer and then undergo treatment for it rather than just quit smoking.” Come on Chef Lenny - Really?

Michael Osterholm’s clubbed (Food Fight!) Chef Lenny in his Op-ed in today’s paper - E. coli is simply the enemy; we should treat it as nothing less - Irradiation is the only way we can confidently say the meat we eat is safe.

Dr. Osterholm makes the solid points – “While maintaining good agricultural practices is important for animal health and environmental reasons, no credible research has identified a magic wand that a farmer can use to significantly lower the E. coli in our meat supply. And there is never a justification for failing to meet the highest sanitation standards possible in our meat processing plants. But we must realize that there is simply no way to ensure that microscopic contamination of feces on the carcass doesn't happen when the animal is disemboweled.”

So, what are the facts?

Irradiating food can make it safer by killing disease-causing bacteria, but most shoppers still shy away from these products. However, experts in 2004 made the case for irradiated foods in The New England Journal of Medicine. Linda Greene, testing director for Food & Sensory Sciences at the Yonkers, N.Y.-based Consumers Union, the publisher of Consumer Reports, summarizes what you need to know about this process.

What does irradiating meat do? - Bombarding meat with high-frequency energy inactivates the DNA of any illness-causing microorganisms that may be present. As a result, they can't reproduce and make you sick. So, exactly what is Irradiation?

Does the meat become radioactive? - No, it does not.

To be safe, do I need to buy irradiated meat? - Choosing irradiated meat reduces but does not eliminate the risk of food-borne illness.

Does irradiated meat taste different? - When presented with pairs of food, our trained tasters were able to detect the irradiated beef or chicken 66 of 72 times because it had a very slight "off" taste. But the average consumer may not notice the difference.

So, here in my view is what is really important.  In a CIDRAP article - Food Irradiation - An Underused Boon to Food Safety

An estimated 76 million cases of foodborne illnesses are recorded each year, resulting in more than 325,000 hospitalizations, and 5,000 deaths. About 73,000 people, many children, get E. coli infection every year and 61 die from it. About 5 to 10 percent of school-age children infected with E. coli develop hemolytic uremic syndrome (HUS), the principal cause of kidney failure in children. E. coli infection is often linked to undercooked ground beef. Here is the kicker:

• When ground beef is irradiated, at least 99.99 percent of E. coli and other harmful foodborne bacteria are killed.

• Nearly every major science and health agency supports the consumption of irradiated food. These include the World Health Organization, the Centers for Disease Control and Prevention (CDC), the American Medical Association, and the American Dietetic Association. More than 40 years of research on food irradiation has repeatedly shown it to be safe.

• The CDC estimates that if just 50 percent of the meat and poultry consumed in the United States were irradiated, the number of foodborne illnesses would be reduced annually by 900,000 and deaths by 352.

More support for irradiation of meat can be found at the Journal of Infectious Diseases - Irradiation Pasteurization of Solid Foods: Taking Food Safety to the Next Level. And at the CIDRAP website on Irradiation.

  Those facts aside, my friend Wenonah Hauter, Director, Public Citizen’s Critical Mass Energy and Environment Program weighed in - New England Journal of Medicine Article on Food Irradiation Ignores Scientific Uncertainty

She calls irradiation “this controversial food technology uses ionizing radiation to kill bacteria and extend shelf life.” Her concerns seem to stem from “the lack of conclusive evidence that irradiated food can be consumed without long-term detrimental health effects….” And, that “Osterholm’s glowing endorsement of irradiation should not be considered without a note about his sources of funding. Two of the three major irradiation companies, SureBeam and Ion Beam Applications, have financially supported his research center. And Donald Thayer, author of an accompanying pro-irradiation column, has financial ties to CFC Logistics, which runs an irradiation facility in Pennsylvania, and Zero Mountain, which once planned to build an irradiation facility.”

You know when a consumer group (that lives on controversy to feed donations) complains that a public servant is somehow tainted by research dollars, all complaints need to be questioned.

So where are we? Against irradiation – 1) some people do not like the taste, 2) might have harmful effects that we do not know about, and there is no research to suspect there is any.  For irradiation – 1) lives can be saved now.  I choose saving lives now.  For more information on irradiation, see CIDRAP’s response to Public Citizen.

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Cranberry Sauce May Be Healthy Treat

Compounds in cranberries may be able to protect against E. coli bacteria, -- which cause a number of human health problems, including gastroenteritis, kidney infections and tooth decay -- say researchers at Worcester Polytechnic Institute in Massachusetts.  Among their findings:

• Chemical changes caused by cranberry juice create an energy barrier that prevents bacteria from getting close to the urinary tract lining.

• Cranberry juice causes compression of tiny tendrils on the surface of the type of E. coli that causes the most serious types of UTIs. Compression of these tendrils reduces the bacteria's ability to attach to the urinary tract lining.

• E. coli grown in cranberry juice or in PACs can't form biofilms, which contain high concentrations of bacteria and are required for infections to develop.

So, today, have an extra helping of cranberries with your well-cooked turkey.

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Fellow Bloggers and Readers:  I’m thinking about helping organize/sponsor a seminar at Seattle University School of Law here in Seattle in the Spring (less rain then) - April is most likely. Thoughts as to content and speakers would be most appreciated. Please feel free to pass this around to folks who are not avid readers of my blog (can't imagine that). Happy Thanksgiving – and, cook that turkey well.

Who’s Minding the Store: The Current State of Food Safety and How It Can Be Improved

Few subjects draw more immediate attention or concern than the safety of the food we eat. Recent years have included a plethora of food warnings and recalls, raising new questions about the quality and integrity of our existing system for assuring food safety. Seattle was the epicenter of the Jack in the Box E. coli outbreak that sickened 600 and killed four 15 years ago. In addition to explaining how our present system works, this program is intended to discuss how changing consumer preferences are affecting the development and distribution of food, examine whether Federal, state and industry oversight roles are changing, and discuss how the regulatory and judicial processes can be most efficiently balanced. Participants include national and local representatives of government, the food industry, consumer organizations and scientists.

Time Event/Topic - (Two or more days might be better?)

8:00 – 8:45  AM Sign-in and Continental Breakfast

8:45 – 9:00  AM Welcome and Overview

9:00 – 10:15  AM Session 1: Defining the Problem – How the concerns about food safety are viewed by physicians, disease experts, state regulators and consumers.

10:15 – 10:30  AM Refreshment Break

10:30 – Noon  Session 2: How the Regulation of Food Safety Works / Imports and Home Grown – The roles and responsibilities as seen by Federal and state regulators, industry and consumers

Noon – 1:00  PM Luncheon and Speaker

1:15 – 2:15  PM Session 3: Zones of Responsibility – Grower/Producer; Seller; Government; Consumer

2:15 – 3:15  PM Session 4: Roles of the Civil/Criminal Justice Systems – Perspectives of plaintiffs, respondents, prosecutors?

3:15 – 3:30  PM Refreshment Break

3:30 – 4:30  PM Session 5: What Is the Best Way to Assure Food Safety? The contributions of media, science and public health monitoring

4:30 – 5:00  PM Closing Remarks

Speakers to be announced

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Robert Roos, CIDRAP News Editor caught the USDA ones again saying that it is interested in public safety, but when no one is looking changes the rules.  Mr. Roos' article entitled, “USDA modifies E. coli testing rules for Canadian beef,” is frankly shocking. According to the story, the “USDA has modified its program of increased testing and inspection of Canadian meat, after finding no problems in the first week or so, a USDA official said today.” Wow, after nearly killing 40 people in the US in the Topps E. coli outbreak (and, no one is counting the 44 sick and 1 dead Canadian), and after one whole week of testing, our government decreases testing AND allows meat to be shipped to consumers BEFORE test results even come back.

Mr. Roos also reported that, despite hundreds of people sickened in the US in 2007 and over 30 million pounds of meat recalled, the “USDA is not considering requiring American meat companies to hold meat until pathogen testing is completed, contrary to a recent news report…. the USDA has long had guidelines recommending that companies hold meat until test results come back, "but it's not something we require."

Does anyone wonder why people think government is useless?

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I had a great chat with Texas attorney and writer, John G. Browning, while on a layover in the Dallas airport several weeks ago. We have talked several times since.  I pulled some excerpts.  Mr. Browning just published the interview today:

Legally Speaking: The food poisoning lawyer


For Bill Marler, it's about more than money or even reform - it's about the client.

Who is Bill Marler? He's simply the preeminent lawyer in the country in a rather specialized practice area - representing victims of food poisoning. Judging by the headlines the past few months, Mr. Marler will be very busy for quite some time to come....

But Marler is no Johnny-come-lately to the world of foodborne illness litigation. After starting out in a defense firm, Marler went to a small plaintiff's firm, where he landed one of the first cases in the 1993 Jack in the Box E. coli outbreak. Marler recovered a $15.6 million settlement on behalf of Brianne Kiner, the most seriously injured of the Jack in the Box victims; after that success, he says, "I went from one client to 300 clients within a few weeks."

Since 1993, Marler has been involved in virtually every major food poisoning lawsuit in the U.S. He secured a reported $12 million settlement on behalf of five children severely injured after drinking E. coli contaminated Odwalla apple juice in 1996. In 1998, he won a $4.6 million jury verdict on behalf of 11 children who fell ill with E. coli-induced food poisoning from school lunches in Washington State. In 2003, Marler obtained a $6.25 million settlement for a man forced to undergo a liver transplant after contracting hepatitis A due to food poisoning traced to tainted green onions at a Chi-Chi's restaurant in Pittsburgh.

Between 1993 and 2006, Marler estimates that 90 percent of his law firm's revenue was derived from E. coli/tainted hamburger meat cases. Marler estimates that insurance giant AIG "has paid me $100 million over the past 10 years."

Marler attributes his success to a number of factors, not the least of which is the level of preparation he brings to every case.

"Just because you have a high dollar damages case doesn't mean ConAgra's going to cut you a check, because of the problem of proving causation," Marler cautions.

Since starting Marler Clark in 1998, the attorney has made a point of spending a lot of time up front on proving causation. "Having the right expert is crucial," according to Marler, who keeps an epidemiologist and nurse on staff and who regularly consults with microbiologists and specialists in emerging areas like pediatric nephrology (the study of kidneys and kidney failure in children).

He points out that "you won't find a more prepared case at the time we file suit." Marler also attracts topnotch legal talent as well: his firm includes partners Bruce Clark and Denis Stearns, the lead defense attorneys for Jack in the Box who went from opposing Marler in the courtroom to joining his food poisoning crusade.

Crusade is an apt term for the approach Marler has adopted, whose dedication to the issue of food safety goes beyond representing his clients and earning a handsome living. Marler, whose commitment to public service manifested itself early when he was elected to the Pullman, Wash., City Council at the age of 19, has started a nonprofit food safety consulting firm called Outbreak, Inc. The group provides recommendations to food industry companies on how to prevent foodborne illness outbreaks among their customers.

At least once a week, Marler estimates, someone from his firm is speaking at a food safety conference or a health department seminar.

"It's become a way to give back; I think especially as lawyers, we have an obligation to give back," he says....

Marler has also taken his campaign for better food safety to the legislature. He's testified before state and federal legislators, and written such op-ed pieces as the provocatively titled "Put Me Out of Business-Please."
Continue Reading...

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Thanksgiving is a few days away.  It might be good to review my safety tips from last year's blog.
Cheers!    As I said last year:  "So, wash you vegetables well before you cook them and/or before you serve them raw.  Me, I go right to red wine (no scientific basis for it).  Foods I avoid - unpasteurized juices and milk, sprouts, bagged, pre-washed produce of any kind, raw shellfish and other raw meats or cheeses.  Everything else I wash, wash and wash, if it is produce, and I cook all meat products a bit more that the directions above.  Also, be careful about cross-contamination between raw uncooked or unwashed foods and counter-tops, utensils and other ready to eat foods.  And, WASH YOUR HANDS.  Happy Holidays." 

I have been asked a lot what I do eat given my job.  I used to say (tongue in cheek), "pizza and scotch" - now pizza isn't even safe.

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Methicillin-resistant Staphylococcus aureus (MRSA) (usually pronounced in short as "Mursa" or spelled out as MRSA), is a bacterium responsible for some difficult-to-treat infection in humans.  Heather Moore Heather Moore, senior writer for People for the Ethical Treatment of Animals, wrote a concerning Op-ed “Your supper & superbugs” on MRSA and its relationship with antibiotics fed to animals. A couple of the more concerning point:

• Approximately 70 percent of the antibiotics used in the United States aren't given to human patients -- they are fed to farmed animals. The filthy, crowded conditions on factory farms are breeding grounds for disease.

• One USDA study showed that 66 percent of beef samples were contaminated with antibiotic-resistant bacteria, and scientists at the Johns Hopkins Bloomberg School of Public Health have reported that 96 percent of the chicken flesh they tested was contaminated with antibiotic-resistant campylobacter bacteria.

• Another study conducted by the CDC indicated that chicken sold in supermarkets is often tainted with potentially fatal bacteria called Enterococcus faecium. This bacterium was not even affected by Synercid, a drug commonly used to treat antibiotic-resistant bacteria.

• A recent Belgian survey showed that MRSA has been found in 68 percent of the pig farms in that country. In 37 percent of the cases, the farmer and the farmer's family carried pig MRSA -- a variant of human MRSA.

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According to a press statement by Bioniche Life Sciences Inc., the two articles in the Journal of Food Protection relate to field challenge studies conducted at the University of Nebraska-Lincoln involving close to 900 animals in 2002 and 2003.

The first article, “Efficacy of dose regimen and observation of herd immunity from a vaccine against Escherichia coli O157:H7 for feedlot cattle” (R.E. Peterson, T.J. Klopfenstein, R.A. Moxley, G.E. Erickson, S. Hinkley, D. Rogan, and D.R. Smith), supports the hypothesis that use of the Bioniche vaccine effectively reduces the likelihood of cattle shedding E. coli O157:H7. After a three-dose treatment, vaccinated cattle were significantly less likely (73%) to shed the organism than unvaccinated cattle (P<0.0001). The same study noted that there was no indication of affect on (feed conversion) performance or carcass quality, and that vaccinating a majority of cattle within a pen resulted in a significant protective effect to unvaccinated cattle in the same pen. This effect is called “herd immunity”.

The second article, “Effect of a vaccine product containing type III secreted proteins on the probability of Escherichia coli O157:H7 fecal shedding and mucosal colonization in feedlot cattle” (R.E. Peterson, T.J. Klopfenstein, R.A. Moxley, G.E. Erickson, S. Hinkley, G. Bretschneider, E.M. Berberov, D. Rogan, and D. R. Smith), highlights the results of a study that looked at the effect of vaccination on the shedding of E. coli O157:H7 by cattle and their colonization by the organism. Vaccinated cattle were 98.3% less likely to be colonized by E. coli O157:H7 at the terminal rectum (where the bacteria are known to collect and reproduce in large quantities). Specifically, the authors were able to isolate E. coli O157:H7 from only one of 140 vaccinated cattle, versus 38 of 141 non-vaccinates (P<0.0001).

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We were proud to be the “Purple Heart Presenting Sponsor” at the Color of Hope Benefit Breakfast on October 25, 2007. Contributions went towards helping children and youth struggling to overcome profound challenges such as serious illness, homelessness, poverty and trauma.

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More on the Super Bug

According to a report I read on All Headline News, A new study published in Veterinary Microbiology found methicillin-resistant Staphylococcus aureus (MRSA) is widely common in Canadian pig farms and pig farmers, signaling to some that animal agriculture as a source of the deadly bacteria. The Veterinary Microbiology study (Khanna et al. Veterinary Medicine 2007) is the 1st to show that North American pig farms and farmers commonly carry MRSA.

Researchers looked for MRSA in 285 pigs in 20 Ontario farms and found MRSA at 45 percent of farms (9/20) and in nearly one in 4 pigs (71/285). One in 5 pig farmers studied (5/25) also were found to carry MRSA, a much higher rate than in the general North American population. The strains of MRSA bacteria found in Ontario pigs and pig farmers included a strain common to human MRSA infections in Canada.

A study published last month [October 2007] in the Journal of the American Medical Association (JAMA) (Klevens et al: Invasive methicillin-resistant Staphylococcus aureus infections in the United States JAMA 2007; 298: 1753-1771) estimated almost 100,000 MRSA infections in 2005, and nearly 19,000 deaths in the United States. In comparison, HIV/AIDS killed 17.000 people that year.

With the recent outbreak of the deadly disease researchers generally believed MRSA as an opportunistic infection occurring mainly in hospitals. However more information is coming to light that finds even healthy people are developing MRSA infections and pig farms may be a possible culprit. Now some experts in the in the medical, agriculture, and environmental industries are calling for Congress to compel the US Food and Drug Administration (FDA) to study whether the use of human antibiotics in animal agriculture is contributing to the reported surge in MRSA infections and deaths in the United States.

"Identifying and controlling community sources of MRSA is a public health priority of the 1st order," said Richard Wood, Executive Director of Food Animal Concerns Trust and Steering Committee Chair of Keep Antibiotics Working. "Are livestock farmers and farms in the United States also sources? We don't know for sure, because the US government is not systematically testing US livestock for MRSA."

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Marler Clark was proud to sponsor the recent Clear Path International Evening of Hope, which was held at the College Club in Seattle.  The event benefits landmine accident survivors - mostly from Vietnam. 

Imbert Matthee commented on the Evening of Hope on the Clear Path International blog:

Our third annual Seattle fundraiser, generously underwritten by the law firm Marler Clark, brought in more than $50,000 for our direct assistance work. That amount is a 43 percent increase over last year’s $35,000.

For central Vietnam, the $50,000 will be doubled through a matching grant from the U.S. State Department and then doubled again by the International Trust Fund for Demining & Victims Assistance.

In short, the evening raised a total of $200,000!

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I have been pressing everyone I know in food safety and the meat industry about the “uptick" in E. coli cases in 2007.  Here are some ideas from recent press reports:

USDA says has enough legal authority to do recalls

“Raymond said there are several factors USDA is investigating that could be responsible for the uptick in E. coli discoveries.  Among them include the pathogen becoming resistant to drugs and changes in weather or diet that can lead to stress in the animal. He assured lawmakers it was not because companies are being careless or inspectors sloppy in their work.  "I think it's starting with the animal's environment," said Raymond. "There is a change in what we feed cattle and I don't know if that has created a problem."

Is this an explanation?  What is the change?  I understand that perhaps with the increase in the price of oil there has been an increase in ethanol production and waste products – eaten by cows?  Anyone have any other ideas?  How about this:

Crackdown Upends Slaughterhouse’s Work Force

“Last November, immigration officials began a crackdown at Smithfield Foods’s giant slaughterhouse here, eventually arresting 21 illegal immigrants at the plant and rousting others from their trailers in the middle of the night.  Since then, more than 1,100 Hispanic workers have left the 5,200-employee hog-butchering plant, the world’s largest, leaving it struggling to find, train and keep replacements.  Across the country, the federal effort to flush out illegal immigrants is having major effects on workers and employers alike. Some companies have reluctantly raised wages to attract new workers following raids at their plants.  After several hundred immigrant employees at its plant in Stillmore, Ga., were arrested, Crider Poultry began recruiting Hmong workers from Minnesota, hiring men from a nearby homeless mission and providing free van transportation to many workers.”

Hmmm, a influx of unskilled US workers with high turnover – sound interesting.  What other ideas?

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WOW – what a headline. I almost dropped my laptop as I read CNN MONEY last evening. According to the CNN report, President Bush said he backed tougher product safety measures that would give mandatory recall authority to the Food and Drug Administration and increase penalties on companies that import unsafe products into the United States. However, let’s be honest, although the media hype has warned us against the risk of evil “imported food,” guess how many food poisoning cases I have done out of thousands in 15 years that involved imported food – a handful. The reality is the nearly every major foodborne illness outbreak has been “home grown.” USA food companies do a great job of poisoning fellow countrymen – 76,000,000 a year according to the CDC.

As for recall authority, is it really real?  Will it apply to US companies and domestic products?  As the President said:

"The FDA will be empowered to order a recall when a company refuses to recall their product voluntarily, or moves too slowly in removing an unsafe product from the market," he said. "With this authority, the FDA will be in a position to act quickly when the problem occurs."

Hmmm, how exactly does this differ from the system we have now? What about recalls of domestically produced poisoned products?  Well, let’s see what happens with this all gets in front of Congress and the hordes of lobbyists.

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I was proud to be asked to be a guest commentator in this month's Prairie Farmer.  Click on the below to download the PDF of my Op-ed.

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Weeks ago, I asked Cargill to pay the medical bills of the children sickened by its first E. coli outbreak of 2007 - it has now had two - in a month. The entry on Caring Bridge today on Stephanie makes it hard to understand a corporation's indifference:

Steph had dialysis again today. As of now she will continue to have dialysis every other day. The idea of discontinuing the coma-inducing drug has changed. The neurologists have decided to switch her from pentobarb (coma inducing drug) to phenobarb (a different coma inducing drug). Phenobarb is administered differently and hopefully will not need as much adjusting each time dialysis is done.

Friends and family have started two funds to help Stephanie Smith with medical expenses. Donate to the State Bank of Cold Spring, P.O. Box 415, Cold Spring, 56320, 685-8655, or at any Wells Fargo Bank location, 259-3182.  And, as Marti Davis of the Knoxville News reported about my clients last week:

4-year-old John McDonald, [who contracted HUS], is in serious condition in UT’s pediatric intensive care unit. Surgeons removed part of the boy’s colon and lower bowel Tuesday night. John’s sister, 18-month-old Michaela, and an unrelated and unidentified teenager, all of Knox County, also became ill. Michaela was still hospitalized Wednesday, though doctors believe she may be able to go home as soon as today.

As I said:

“Without assistance in the form of monetary compensation for medical expenses and lost wages, many of the families with members in the hospital will face financial hardship in the coming months when the bills start coming in.  Cargill should do the right thing and begin compensating victims of this outbreak for those most basic needs now. Of course, Cargill will still be responsible for the costs of long-term medical care for victims, but it is better to step up now. The question is, since they know their product was the cause of these kids’ illnesses, why wait?”

Perhaps Cargill simply does not get it and the only thing it understands is another lawsuit.  So be it.

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I missed a call from Josh Funk of Omaha AP and he figures out why our food safety net has so many holes in it without me - go figure.  This quote may say it all:

"I think the food industry has a very long history of not doing anything on food safety unless it has to," said Marion Nestle, a New York University professor who wrote a book on the subject.

Josh’s full article is here and some quotes below show the problems with Food Safety in the US.

Critics decry U.S. food safety system

Peanut butter is regulated by the Food and Drug Administration. But chicken pot pies are the U.S. Department of Agriculture's responsibility. Frozen cheese pizzas - FDA. But if there's pepperoni on them, USDA has jurisdiction, too. Peanut butter is regulated by the FDA, while pot pies are regulated by the USDA, because USDA has long had authority over meat and poultry.

When Peter Pan peanut butter was linked to a salmonella outbreak in February, ConAgra Foods Inc. recalled it as soon as federal health officials raised questions. But when ConAgra's Banquet-brand chicken and turkey pot pies were tied to a similar salmonella outbreak in October, the Omaha company waited two days to recall them, first issuing only a consumer health warning.

Neither the FDA nor the USDA had the authority to order ConAgra to recall the products. In fact, all food recalls, except for those involving infant formula, are voluntary. Often, the government gets a product recalled by warning the company it could face bad publicity if it does not withdraw the food.

Frankly, I am not sure a single agency, or the government for that matter (remember how well it did in Hurricane Katrina), will solve the problem of companies selling poisoned products to customers.  Perhaps when farmers, ranchers, shippers, middlemen of all sorts, manufacturers, wholesalers, retailers and restaurants all recall that customers could be their kid, they would put safety before profits.  Perhaps when politicians, governmental officials, regulators, health departments, et al, realize that they work for the people and not business, and their duty is to protect the people, Josh will have less to write about and I will be out of a job.  As I recently wrote in FOOD SAFETY MAGAZINE:

Food Safety & the CEO - Keys to Bottom Line Success

Ultimately, dedication to food safety must go beyond the company's HACCP programs in terms of compliance, implementation, testing and auditing. This commitment starts at the top of the organization with the CEO, president and senior management team. Managing the business in a way that pays more than lip service to food safety will produce high-quality, profitable products that don't make people sick, and is essential to the continued health of your bottom line and the health of your consumers.

One interesting thing - of the top ten recent visitors to my blog today, four of them, ConAgra, General Mills, Cargill and Tysons are food companies - three who I have sued, some repeatedly.

The bloggers at "barfblog" quoted some of my above ramblings this afternoon in a post entitled:

Will more inspectors make food safer?

Doug Powell expressed a similar notion this morning, "You can't inspect your way to a safe food supply," said Douglas Powell, scientific director at Kansas State University's International Food Safety Network. "You can't have an inspector on every site 24/7 to inspect every piece of food that goes to market. You have to create a culture where everyone from the farm to the processing facility, people at restaurants, consumers at home are more in tune with the culture of food safety. People need to get really religious about this. Food safety is everyone's responsibility."

To drive the point home that our food is at risk, see Dave Savini, Investigative Reporter of CBS 2 Chicago WBBM TV report called - "What's for Dinner?"

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Like the USA, China struggles with food and environmental safety too.  While we here seem to face recalls, and illnesses stemming from them, on a daily basis - hamburger, pot pies and pizzas over just the last few weeks, China has its own set of challenges - And, four times the number of people.



China approves food safety law

The Chinese government approved in principle on Wednesday a new food safety law aimed at raising standards at every level of production, a senior official said. "This law totally covers how to standardize our food products' production, processing, sale and supervision," Li told reporters. "I believe that the promulgation of this law will certainly effectively raise China's food safety situation and guarantee food safety and people's health," he said, but gave no timetable. The law mandates better release of information about food safety issues, higher fines for wayward firms and punishment of officials who act irresponsibly, and guarantees the public's right to compensation and to sue, the central government said on its Web site (www.gov.cn). Food imports and exports will also be more closely examined, it added.

Polluted harbor hits Batman stunt

Batman may have a body of steel, but the caped crusader is no match for the pollution in Hong Kong's iconic harbor. A scene in which Batman was to drop from a plane into the harbor has been axed after the movie's producers found the water quality could pose a potential health risk, the South China Morning post reported. "But when they checked a water sample, they found all sorts of things, salmonella and tuberculosis, so it was cancelled. Now the action will cut to inside a building."

And, it gave me another excuse to show some more photos of my last trip to China.  There is also next years Food Safety Conference in Beijing - September 2008.

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General Mills is the “sixth largest food company in the world” with revenues for 2007 estimated to be nearly $12,500,000,000. General Mills announced today that since July 1 of this year, it had distributed more than 120 million Totino's and Jeno's pizzas nationwide. Surprisingly, in light of 21-reported E. coli illnesses tied to these products, General Mills has only recalled 5 million of the 120 million pizzas produced. “General Mills should immediately expand the recall to all 120 million pizzas produced during the time-frame that people were sickened,” said Bill Marler, the Seattle attorney who has dedicated his law practice to representing victims of E. coli outbreaks. According to the CDC, the earliest case was reported on July 20, and the latest was reported on October 10. The ten states reporting illness are, Illinois (1), Kentucky (3), Missouri (2), New York (2), Ohio (1), Pennsylvania (1), South Dakota (1), Tennessee (8), Virginia (1), and Wisconsin (1).

Marler also called on General Mills to immediately pay medical costs for the victims of the E. coli outbreak. “Without assistance in the form of monetary compensation for medical expenses, many of the families with members who were hospitalized will face financial hardship in the coming months when the bills start coming in,” said Marler. “General Mills should do the right thing and begin compensating victims of this outbreak for those most basic needs now,” Marler added.

Marler noted that other companies like Dole, Odwalla, ConAgra and Jack in the Box willingly paid medical bills when their products were identified as the source of E. coli outbreaks. “General Mills knows it’s going to pay those medical expenses in the end in the form of a settlement or jury verdict,” Marler continued. “The question is, since they know their product was the cause of these illnesses, why wait?”

Several times a month Bill speaks to industry and government throughout the United States on why it is important to prevent foodborne illnesses. He is also a frequent commentator on food litigation and safety on www.marlerblog.com. Bill also sponsors several websites related to E. coli, including www.about-ecoli.com, www.about-hus.com and www.ecoliblog.com.  Bill can be reached at bmarler@marlerclark.com or 1-206-346-1890

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From the October/November 2007 of Food Safety Magazine:

Food Safety & the CEO - Keys to Bottom Line Success

By William Marler (that's me)

Foodborne illness has, of course, been around as long as there has been food. But the identification and diagnosis of these diseases is an emerging science that is changing all sectors of the food business, and those chief executive officers (CEOs) and senior level directors and managers who do not keep up are bound to be at a significant disadvantage when making critical decisions about their businesses.

It is one thing to read or view media reports on the latest foodborne illness outbreaks and brand-damaging product recalls; it is quite another to really understand the widespread, adverse impact these incidents have on your consumer base, on your employees, on the efficiencies of your operations, and ultimately, on your bottom line. In other words, today's food company CEO needs to know a lot more than producers in the fresh-cut produce industry initiated massive recalls last week, or that a regional restaurant chain closed down, or that a recent spate of pet fatalities due to the inclusion of a banned substance on an international scale means his or her company should look more closely at imported ingredients for awhile.

What you, the CEO, should know about food safety comes down to a few key concepts. First, all companies along the food supply chain need to go beyond managing the business: To be successful, food companies are now in the business of managing risk. This means garnering a good understanding of why food safety is important to your business, what risks there are to the business, how you can mitigate or eliminate those risks, and how in doing so the food safety program will provide a return on your investment. Continue Reading...

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A fellow blogger, the Fanatic Cook, both mentioned my Blog (thanks to Law Professor Blog) and the Safe Food Act of 2007.  She has set up a Blog to track Congressional sponsors and a way to email those who have not yet to encourage sponsorship.  We also just updated our Foodborne Illness site.

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No, sorry, this is not a lecture on how to poison lawyers.  On Wednesday I get the opportunity to discuss how to determine the strengths and weaknesses of a foodborne illness claim by phone.  The below PowerPoint and Paper may be helpful.

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Speechwriter/Ghostwriter Jane Genova recently posted on her blog that she thinks Hillary Clinton will win the Whitehouse and when she does, I should be appointed Food Safety Czar: 

I have someone in mind for the job of food-safety czar.  It's Bill Marler of Marler Clark Law firm. Actually Hillary might already know Marler, a plaintiff attorney specializing in food-borne diseases.  Marler was among the coalition of experts who helped create a new system after the E-Coli outbreak early in Bill Clinton's first administration.  The new president was delivering a televised town meeting when a couple whose child ate some of that contaminated meat spoke up. That child later died.

I worked with former President Bill Clinton to arrange congressional hearings and victim testimony after the Jack in the Box E. coli outbreak in 1993. What we needed – and still need – was change in our food safety system. Significant change. 

What we got then was a classification of E. coli O157:H7 as an adulterant in meat products. A good step in the right direction. What we need now is a single agency responsible for food safety – one that has the power to shut down processing plants and recall contaminated food products, among other things.

“Bill Marler: Food Safety Czar” does have a nice ring to it, but since I don’t think my wife and kids would let me move them to Washington, D.C. here’s my offer: When the Democrats win the Whitehouse and create a single food safety agency, and when companies stop poisoning people, I’ll stop calling for Congressional hearings on food safety and asking the food industry to “put me out of business.” 

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From a Press Release this morning:

SEATTLE--(BUSINESS WIRE)--Oct. 10, 2007--William Marler called on ConAgra this morning "to do the right thing for its customers and to immediately recall all of its Banquet Pot Pies without question and without hesitation." According to a press release this morning, the CDC announced, "The outbreak appears to be ongoing." Marler added, "As of last night these products were still on store shelves and in fact were on sale -- 2 for $1.00. ConAgra, the USDA and all health authorities, should put people's safety above sales."

The Center for Disease Control (CDC) reported 139 people in 30 states have been linked to the consumption of ConAgra's Banquet Pot Pies. The states with ill persons are: Arizona (1 person), California (5), Connecticut (3), Delaware (5), Georgia (2), Idaho (2), Illinois (3), Indiana (3), Kansas (2), Kentucky (7), Massachusetts (5), Maryland (5), Maine (1), Minnesota (5), Missouri (11), Montana (4), Nevada (6), New York (6), Ohio (6), Oklahoma (1), Oregon (2), Pennsylvania (13), Tennessee (5), Texas (4), Utah (2), Virginia (6), Vermont (2), Washington (1), Wisconsin (19), Wyoming (2). At least 20 people have been hospitalized. No deaths have been reported.

BACKGROUND: Marler’s Seattle-based law firm, Marler Clark (www.marlerclark.com) has represented thousands of victims of E. coli, Salmonella, Hepatitis A, Listeria, Shigella, Campylobacter and Norovirus illnesses in over thirty states. In 1998, Marler and his current law partners formed www.outbreakinc.com, a non-profit food safety organization. Marler dedicates a significant amount of his time to travel to food-industry and public health conferences, giving speeches about how to prevent food poisoning and the consequences of foodborne illness outbreaks. Marler comments on foodborne illness outbreaks and litigation at www.marlerblog.com. For more information about Salmonella, see www.about-salmonella.com. Mr. Marler can be reached on his mobile phone at 206-719-4705 or by email at bmarler@marlerclark.com.

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It was a bit cold and rainy on Bainbridge Island today as I watched my eight-year-old daughter, Sydney’s, soccer game. You see at 50 I don’t feel old - my wife is younger and my three daughters are very young. So, I was a bit disturbed that the AARP (American Association of Retired Persons) would send me a membership card in the mail today. As I cut the card into several dozen pieces and burned it in the fireplace, I smiled to myself and thought – well, at least I am not Cargill. I might be getting older, but at least I did not sicken four little kids in Minnesota over the last month and have to recall nearly 1 million pounds of meat even after it proclaimed in 1995 that the “End to E coli is found.”

Really, Cargill did. In an article in the New York Times, Cargill and Frigoscandia announced that they “had developed a method to eliminate virtually all disease-causing bacteria in beef, pork and poultry. The process was to use a blanket of steam to pasteurize the surface of carcasses and could be easily inserted into meat-processing lines, the two companies said. The main target of the new technology was E. coli O157: H7.” What the hell happened?

August 2000 – Cargill Implicated In 1993 and 2000 Sizzler E. coli Outbreaks - Lawsuit filed

In the summer of 2000 Cargill meat was found to be the source of the Milwaukee Sizzler E. coli outbreak that sickened 62 people and killed one child. We represented many of the victims. In 1993 Cargill was also implicated in an E. coli outbreak in Oregon that sickened nearly 100. In both instances the contaminated beef originated at Cargill’s meat plant located in Fort Morgan, Colorado.

July 2001 - E. coli lawsuit filed against Cargill on behalf of injured child

We filed suit against Cargill on behalf of a young child who became seriously ill after eating a hamburger patty contaminated with E. coli.  A month earlier, Cargill issued a voluntary recall of 190,811 pounds of ground beef and ground pork it manufactured at a Newnan-based meat packaging plant and then supplied to Kroger supermarkets in southeast Georgia. According to a Washington Post-Dateline NBC Report, an Excel plant located in Fort Morgan, Colorado, was cited 26 times from September 1999 to July 2000 for fecal contamination of meat. Also, according to a June 26, 2001 story in the Atlanta Journal-Constitution, “Excel’s parent company, Cargill, recalled 16.7 million pounds of cooked, ready-to-eat turkey and chicken products in December to safeguard against potentially fatal Listeria contamination.”

2002 - Lawsuit filed against Cargill

We filed another E. coli suit against Cargill. This time on behalf of several women who were sickened along with 57 others traced to Cargill’s Peck Meats Packing division in Milwaukee, Wisconsin. These illnesses led to a 400,000-pound ground beef recall on October 1. That recall was expanded to 2.8 million pounds on October 3. Cargill closed its Peck Meats plant on October 3, but issued a new recall of 568,000 pounds of fresh beef on October 10.

So, you see I might be getting older, but at least I am not Cargill.

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William D. Marler
Op-ed

Dr. Richard Raymond, Under Secretary for Food Safety at the USDA/FSIS told us last week: “our meat supply is the safest in the world.” This when in the past days Topps, a company in operation for nearly 70 years closes its doors and recalls 21 million pounds of ground meat after sickening 30, and Cargil, one of the largest food producers in the US, recalls hamburger after sickening 4 children in Minnesota. ”The US beef supply is safe?” Well, I suppose the thought is that if the lie is big enough we will not notice?

Earlier this year J. Patrick Boyle, President and Chief Executive of the American Meat Institute, wrote in part in the New York Times: “Since 1999, the incidence of E. coli in ground beef samples tested by the Agriculture Department has declined by 80 percent to a fraction of a percent, a level once thought impossible.” In January 2007 I agreed with Mr. Boyle. In fact, according to the Centers for Disease Control and Prevention, E. coli outbreaks linked to tainted meat declined by some 42 percent over the last five years. Perhaps our beef was safer in January but something has changed, and it has not changed for the better.

A decade ago most of my clients were sickened by E. coli-tainted meat. In fact, between 1993 and 2002 I represented hundreds of children with acute kidney failure caused by consuming E. coli-tainted ground beef. And, then it nearly stopped. For the last five years there were few recalls or illnesses tied to ground beef. I touted the meat industry as a model of what an industry could do that was right to protect consumers.

But then it changed this spring. Since April of this year, 30 million pounds of red meat, mostly ground beef products, has been recalled. To put that in perspective, that is enough red meat to make 120 million hamburgers. E. coli illnesses once on a downturn have spiked. Kids are getting sick, seriously sick, again – nearly 100 since April. Topps Meat Company expanded its 300,00-pound recall to include 21 million pounds of ground beef. This recall tops the Con Agra recall of 19 million pounds in 2002 that sickened over forty and killed one and is just under the 25 million pounds recalled by now-bankrupt Hudson Foods in 1997.

We also learned in the past few days that Dr. Raymond’s food safety bureaucracy knew weeks in advance that our meat supply might be tainted by Topps meat and did not alert the public until dozens of children had already become ill. And he tells us: ”the US beef supply is safe?”

One would think that with hundreds of Americans poisoned that Dr. Raymond would not be acting as the “cheerleader in chief” for the beef industry, but would be asking one simple question – “What is going on?” Clearly, the USDA/FSIS seems incapable of asking simple questions.

Congress needs to act now. It is time for Congress to accept a leadership role and call hearings on “How safe is our meat supply, really?” Hearings need to not only explore the reasons for the past months’ outbreaks, but also to help prevent the next one. Congress must reach out to all facets of the meat industry, from “farm to fork,” to consumers who bear the burden of illnesses, and to academics and regulators to find reasonable, workable solutions to prevent the next meat-related illnesses. More regulation may not help. Testing all products may not be feasible. More funding for the CDC and USDA may not be enough. And, more research at universities may not find all of the answers. But, getting everyone concerned to the same table is a start.

Several times a month Bill Marler, a Seattle lawyer, through his non-profit, Outbreak Inc., speaks to industry and government on why it is important to prevent foodborne illnesses. He is also a frequent commentator on food litigation and food safety on www.marlerblog.com.

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Earlier this year J. Patrick Boyle, President and Chief Executive of the American Meat Institute, wrote in part in the New York Times: “Since 1999, the incidence of E. coli in ground beef samples tested by the Agriculture Department has declined by 80 percent to a fraction of a percent, a level once thought impossible.” At the time I agreed with Mr. Boyle. In fact, according to the Centers for Disease Control and Prevention, E. coli outbreaks linked to tainted meat declined by 42 percent. But something has changed, and it has not changed for the better.

Here are the facts. A decade ago most of my clients were sickened by E. coli-tainted meat. In fact, between 1993 and 2002 I recovered over $250 Million from the meat industry and restaurants in verdicts and settlements on behalf of those clients, mostly children with kidney failure caused from consuming E. coli-tainted hamburger. And, then it stopped. From 2003, 2004, 2005, and 2006 and through the spring of 2007 there were few recalls or illnesses tied to hamburger. I did not sue the meat industry often and I touted it, as a model of what an industry could do that was right to protect consumers.

But then it changed this spring. Since April of this year, nearly 30,000,000 pounds of red meat, mostly hamburger, has been recalled. E. coli illnesses once on a downturn have spiked. Kids are getting sick; seriously sick again. For example, at 2:00 this morning, Topps Meat Company expanded its 300,000-pound recall to include 21,700,000 pounds of ground beef; as of this morning 25 people are sickened in eight states. This recall tops the Con Agra recall of 19,000,000 pounds in 2002 that sickened over forty and killed one and is just under the 25,000,000 pounds recalled by now-bankrupt Hudson Foods in 1997. And, this is not the first time Topps was caught selling E. coli contaminated meat.

Other outbreaks and recalls in the last few months include: (1) six people in Washington, two people in Oregon and one in Idaho who became sick from E. coli-tainted organic beef ground by Interstate Meat. 42,000 pounds of meat was recalled. (2) Thirteen people have been confirmed ill with E. coli infections after eating ground beef produced by United Food Group sold in Arizona, California, Colorado, Idaho, Nevada, New Mexico, Oregon, Utah, Washington, Wyoming and Montana. Over 5,700,000 pound of meat have been recalled. (3) Tyson Fresh Meats recalled 40,440 pounds of ground beef products due to possible contamination with E. coli. (4) Seven Minnesotans were confirmed as part of the E. coli outbreak that prompted PM Beef Holdings to recall 117,500 pounds of beef trim products that was ground and sold at Lunds and Byerly’s stores. (5) Twenty-seven people have been confirmed ill with E. coli infections in Fresno County. The Fresno County Department of Community Health inspected the “Meat Market” in Northwest Fresno, the source of the outbreak. (6) At least two people were confirmed ill with E. coli infections in Michigan after eating ground beef produced by Davis Creek Meats and Seafood of Kalamazoo, Michigan. The E. coli outbreak prompted Davis Creek Meats and Seafood to recall approximately 129,000 pounds of beef products that were distributed in Arkansas, Florida, Illinois, Indiana, Iowa, Kansas, Kentucky, Michigan, Missouri, Ohio, Pennsylvania, Tennessee, Virginia, West Virginia, and Wisconsin. (7) Three Napa Valley children became sick from hamburger patties sold at a St. Helena Little League snack shack. 100,000 pounds of hamburger (that was a year old) was recalled. And, (8) Several people were confirmed ill with E. coli infections in Pennsylvania after eating E. coli-contaminated meat products at Hoss’s Family Steak and Sea Restaurants, a Pennsylvania-based restaurant chain that purchased its meat from HFX, Inc., of South Claysburg, Pennsylvania. As a result of the outbreak, HFX recalled approximately 4,900 pounds of meat products.

One would think that with hundreds of Americans poisoned that Congress would ask one simple question – “What is going on?” Congress needs to act now. It is time for Congress to accept a leadership role and call hearings, not only to explore the reasons for the past months’ outbreaks, but also to help prevent the next one. Congress must reach out to all facets of the meat industry, from “farm to fork,” to consumers who bear the burden of illnesses, and to academics and regulators to find reasonable, workable solutions to prevent meat-related illnesses. More regulation may not help. Testing all products may not be feasible. More funding for enforcement for the CDC and USDA may not work. And, more funding for university research may also not be the answer. However, getting all to the same table is a start. Congress needs to do the inviting.

Hey, this post made it on to BARFBLOG and Jane Genova's Law and More.

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Marler Clark attorney William Marler commented on the USDA’s Food Safety and Inspection Service announcement that Topps Meat Company of Elizabeth, New Jersey, was recalling 331,582 pounds of frozen ground beef products that may be contaminated with E. coli O157:H7. The recall was prompted by a combined New York Department of Health and Centers for Disease Control and Prevention investigation into an E. coli O157:H7 outbreak that was determined to have been caused by consumption of Topps ground beef products.

New York is not the only state impacted by the beef recall and E. coli outbreak. The Associated Press reported today that residents of Connecticut, Indiana, New Jersey, Ohio, and Pennsylvania were part of the outbreak.

“We have a lawsuit pending in Albany County Superior Court that is the result of a 2005 E. coli case traced back to ground beef produced by Topps and sold at Price Chopper,” said Marler, the nation’s foremost attorney representing victims of foodborne illness. “What we’re seeing here is that lightning does strike the same spot twice.”

Marler noted that for the first time since 2002, the number of meat recalls and E. coli outbreaks connected to ground beef has been increasing. “The CDC and USDA’s numbers have shown significant declines in E. coli outbreaks traced back to contaminated ground beef since 2002, and our client-base was backing those numbers up,” Marler continued. “Most of our E. coli cases in the last five years have been the result of contaminated produce, but not this year – we’ve filed lawsuits against California, Minnesota, and Oregon beef producers in the last six months.

“To quote Buffalo Springfield, ‘Something’s happening here.’”

BACKGROUND: Marler’s Seattle-based law firm, Marler Clark (www.marlerclark.com) has represented thousands of victims of E. coli, Salmonella, Hepatitis A, Listeria, Shigella, Campylobacter and Norovirus illnesses in every states. In 1998, Marler and his current law partners formed OutBreak, a non-profit food safety organization. Marler dedicates a significant amount of his time to travel to food-industry and public health conferences, giving speeches about how to prevent food poisoning and the consequences of foodborne illness outbreaks. Marler comments on foodborne illness outbreaks and litigation at www.marlerblog.com.

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WILLIAM D. MARLER
GUEST COLUMNIST

Tainted pet food. Toothpaste laced with antifreeze. Toys coated with lead paint. Judging by the news reports, one might conclude the Chinese economic boom is about to collapse of its own weight.

Or, as Chi-Dooh Li concluded in Sunday's Focus ("In trade, China's moral compass is off course"), to veer off into some sort of amoral oblivion, where the safety of food and other products is blithely sacrificed at the altar of the Free Market and the Almighty Dollar.

But maybe not. Perhaps all China needs is a few good lawyers, and a body of civil law.

I thought of this earlier this month, as my cab inched through downtown Beijing, taking me to China's first International Food Safety and Quality Conference.

Nothing could have prepared me for what I saw. My car was virtually frozen in traffic, leaving ample time to gawk at the rising skyscrapers, stretching as far as the smoke-filled air allowed me to see. My hotel was a gaudy parody of a Las Vegas casino. Yet, just a block away was a hootong, one of the bleak, yet clean and serviceable residential communities carefully fenced off from prying tourist eyes.

Nothing, it seems, is left of the Maoist society I studied in college 30 years ago, a point driven home when I strolled past a Porsche dealership a few blocks away from Mao's tomb facing the Forbidden City.

As a lawyer who represents people sickened by food-borne illness, I had bought my way into being asked to speak to the conference hastily organized in the wake of the epidemic of unsafe products traced to Chinese factories. The Chinese are clearly baffled and nervous about what has become an international health scare and public relations nightmare.

The Chinese government responded by executing its top food-safety official, a solution that, to a lawyer who has dealt with scores of such bureaucrats, sounds a bit tempting. But I was there, along with officials from the U.S. Food and Drug Administration and the World Health Organization, to suggest some less drastic solutions.

Clearly, China has a big problem. But how big? Pets died after eating melamine-contaminated dog and cat food. But China is merely joining the club. Corporate America has been killing Americans -- and their pets -- for generations. Where was the conscience of Jack in the Box over a decade ago when it chose to undercook its hamburgers and sickened hundreds with E. coli? Where was Con Agra's moral compass in 2002 when it sickened dozens more by distributing tainted ground beef? Did Odwalla lose sleep over the death of a 2-year-old in 1996? Last year, hundreds were sickened, five died and dozens were left with lifelong kidney problems after eating contaminated spinach. And, guess what? The Chinese had nothing to do with any of this.

Killing regulators will not make food any safer, I told the mostly Chinese audience. Tougher laws and inspections may help, but not by themselves. If consumers are injured by a product, the consequences must fall on those who made it. And, for that, Americans rely on a body of civil law.

The Chinese were clearly puzzled by this. They understand the power of government, and the concept of criminal law. But they do not understand how one person can stand up to a rich corporation and say: "You made my child sick, and you are going to have to make it right."

I explained how our civil laws work. A Chinese company manufactures a product, or a component part of anything from dog food to automobiles or toy parts, and sends if off to Wal-Mart. The product proves to be tainted or faulty. A consumer is injured, and files suit against Wal-Mart, demanding compensation. A court awards damages, and Wal-Mart looks to the Chinese manufacturer, and demands accountability. Their message: China can make things cheaper, but they have to be safe. Lawsuits may make products more expensive, and both American and Chinese firms risk losing business.

Faced with the risk of another product failure, and another lawsuit, the U.S. importer will look for a more reliable manufacturer.

So, I told the Chinese, the issue is not social justice or morality. The issue is something they can understand much more easily -- the bottom line. I could see heads nodding across the room. Ohhhhh, so it is ultimately about making the sale or not making the sale! This they understood.

Whether they operate in China, America or Mars, corporations may talk publicly about their corporate conscience. But back in the boardrooms, the discussion will revert inevitably to the bottom line. They are far more motivated by the ugly prospect of being whacked by somebody like me. A few sick kids may be a minor cost of doing business, but a few civil lawsuits cut into profits.

Too cynical? Maybe. But motives matter less than results. If corporations make the right decisions to make safe products, does it really matter why?

At this point, it is difficult to imagine China developing a body of civil law. It does not seem to mix well with an authoritarian society. Their impulse remains: "Kill the regulator."

But, when it comes to exports, China is learning that its manufacturers are indirectly accountable to our system of civil justice. Once they understand that, they will have to play by the rules. Not because they are moral or immoral. But because they are motivated by the same raw, rational impulse as our corporations. They want to make money. And they will make more if they are not harassed by a bunch of lawyers representing sick kids.

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The China International Food Safety and Quality Conference started off today in Beijing with a panel discussion from members of the Party, IAFP, WHO and the US Embassy.  It was followed by opening remarks by Robert Brackett of the FDA, Frank Yiannas of Disney and yours truly:



I also was able to have lunch with several delegates from the China Food Safety Authority.



All in all, I am glad that we sponsored the event.

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Or, the Meat Industry believes that it is the consumer's responsibility to get cow shit out of its product.  Seriously, can you think of one consumer product that the manufacturer expects you to fix it, AFTER they make it, and BEFORE you use it.

I just read an article in "Cattle Networks" about industry irresponsibility and consumer responsibility.  Please read the whole article by clicking on the below photo:

Consumers may take for granted the safety of their beef supply and, therefore, may think it will remain safe until preparation.

- Think how often you see advertising for eating meat and how often you see advertising explaining the dangers of bacterial or viral contamination – right, never

- First, let make this very clear, what the meat industry is trying to say is that it is OK to have cow shit in your meat and you should buy a lot, but just handle it like it is radioactive and may kill you or your children.

Not everyone lives right next to a grocery store, so it is anticipated that beef products will undergo a period of time when storage temperature will be inadequate. Beef can become contaminated with pathogens if it reaches temperatures that support pathogenic growth.

- Does the beef industry really expect consumers to all own refrigerated trunks or carry coolers to the store to handle the toxic substance?

- Again, get the cow shit out of our hamburger and perfect storing temperature, important yes, but less life threatening.

A common place for cross contamination to occur is in the grocery bag. Juices from raw meat products can drip onto other food items.

- I’m sorry; this is the consumer’s responsibility?

Raw meat products stored in the refrigerator can drip onto other food items if not wrapped and stored in the meat compartment of the refrigerator.

- Come on - get the poop out. As the folks at www.donteatpoop.com say – “Don’t Eat Poop."

Although cross contamination of raw meat products can be a problem, most instances can readily be solved with adequate cooking temperatures. Different beef retail cuts have different methods and ways in which they can be prepared. Regardless of retail cut, cooking ground hamburger patties, steaks, or roasts to an internal temperature of 160° F is a sufficient temperature. The majority of consumers who prepare meat at home rely on visual cues to evaluate doneness. This can be deceiving when using a cooking method such as grilling. Grilling can cause beef to turn brown very fast on the outside, which may lead a consumer to think that the proper cooking temperature has been reached. Because color cannot accurately determine temperature, it is not safe to use the color of beef as an indicator of safety. The only way to ensure that an internal temperature of 160° F has been reached is to use a thermometer.

- OK, honestly, who has a thermometer and who uses it?

Since 2002, the number of meat recalls and E. coli outbreaks connected to ground beef had been steadily declining, and our focus shifted from contamination in meat processing facilities to spinach and lettuce fields—until now. Since January, over 6.5 million pounds of meat have been recalled this year for potential E. coli contamination.  Some interesting real facts:

-  In April, Richwood Meat Co. of Merced, California, recalled 107,900 pounds of frozen ground beef products, and HFX of South Claysburg, Pennsylvania, recalled 4,900 pounds of meat products. Both companies’ products had been linked to E. coli outbreaks.

-  In May, PM Beef Holdings of Windom, Minnesota, recalled 117,500 pounds of beef trim products, and Davis Creek Meats and Seafood of Kalamazoo, Michigan, recalled 129,000 pounds of beef products after their products were linked to E. coli outbreaks.

-  In June, the Meat Market of Fresno, California, recalled tri-tip and United Food Group of Vernon, California, recalled 5.7 million pounds of ground beef when the products were identified as the source of E. coli outbreaks, and Tyson Fresh Meats of Sherman, Texas, recalled 440,000 pounds of ground beef for possible E. coli contamination.

-  In July, Custom Pack of Hastings, Neb. recalled 5,920 pounds of ground beef and buffalo products due to potential E. coli contamination after illness was linked to consumption of the company’s products.

-  In August, Interstate Meats issued its ground beef recall after nine became ill with E. coli infections.

-  So far in September, Fairbank Farms of Ashville, N.Y., voluntarily recalled 884 pounds of ground beef products because they may be contaminated with E. coli O157:H7, the U.S.

So, meat industry - get the poop out.  And, consumers, do not eat the industry's shit.

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Well, finally made it back from Australia to Seattle and still a bit jet-lagged.  By the way, my middle daughter, Olivia, kept a blog about most of the trip.  The link to it is HERE.  Or, click on the picture of Olivia and Sydney (the youngest) below.  Most photos were taken by Morgan, the oldest.

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Boy, when you get mentioned (well, OK, it only said “that Seattle law firm”) in a defense firm’s PR brochure, you know you have made it.

Paul M. Pohl (Mickey), of the Jones Day (2,200 lawyers in 30 offices around the world – must be crowded, we only have six lawyers, but one lawyer per office at Marler Clark) Pittsburgh office, recently wrote an interesting article entitled: “A Smorgasbord of Attacks on the Food Industry.”

One would think in reading the article that the poor, $100s of billions Food Industry is being unfairly attacked for sickening 76,000,000, hospitalizing 325,000 and killing 5,000 Americans annually (CDC).  I shot Mickey and email this morning offering to help write his next piece - we shall see.  I took a "slightly" different approach in an article I produced for the Defense Research Institute  entitled:  "Separating the Chaff from the Wheat : How to determine the strength of a foodborne illness claim."
Also, come to think about it, I do know that Jones Day, or at least their clients, know Marler Clark - they have sent us several large multi-million dollar checks on behalf of customers they poisoned over the years.  But, hey, who can get mad at a grown man named Mickey.

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I just finished giving my second of three talks here in Melbourne and just received an email with a link to an article in the WSU Magazine, by Hannelore Sudermann and photography by Bruce Andre and Robert Hubner.  Sitting in an internet cafe several thousands of miles away, and a day ahead, is an interesting way to read about your life.  It is an interesting read - see below:

The nation's leading food-borne illness attorney tells all

Continue Reading...

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Well, perhaps I already scarred them out of the water.

I am still in Australia with my family enjoying the Winter weather of Northern Australia (80 degrees).  It is amazing how you can stay connected via email, phone and blackberry - I'm sure my opponents love it.  Right now I am sitting in an Internet cafe on the beach in flip flops answering emails (183 this morning).  Last week I finished up two speeches on food safety to Australian industry and government.  I am working now on talks to be given in Melbourne to the dairy industry and the Keynote address to be given in at a food safety conference in China in mid-September.

People here seem very interested in our recent Botulism outbreak as well as the Con Agra Peanut Butter problem.  They find both outbreaks hard to fathom given the knowledge we should have had of the risks of botulism in canning and salmonella in peanut butter.

The legal and regulatory framework here is quite similar to both England and Canada (no surprise).  It appears that they feel that industry regulation, and criminal sanctions for violations, is a more efficient way of handling food safety issues that using civil lawsuits to both correct behavior and to compensate victims of food poisonings.  The problem, however, is that they seem to have a weak surveillance system, so few outbreaks are ever identified.  Also, although the industry feels that regulation and enforcement are tough, the government investigators I spoke with feel the opposite.

Well, off to a crocodile tour.

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Marler Clark is pleased to be a chief sponsor of this event on Spetember 12 -13 2007.  As China is fast becoming one of the largest US trading partners in food, the safety of our imports are becoming of even greater concern.

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My first talk is next week at the 14th Annual Australian HACCP Conference - I will be giving them a United States perspective on Foodborne Illnesses and Class Actions.

Interestingly, today the press picked up a tentative Class Settlement in a Hepatitis A case we filed.

Tentative agreement reached in Houlihan's hepatitis A case

A tentative settlement has been reached for diners exposed to hepatitis A at Houlihan's restaurant in Geneva Commons. The agreement, reached July 12, turns the lawsuit filed by the Johnson family of Geneva into a class-action lawsuit. The lawsuit is open to anyone who ate or drank in the restaurant between Jan. 8 and 19 and subsequently received immunoglobulin shots from the Kane County Health Department or a private physician. The class-action status is only binding if the settlement wins final approval by the court Nov. 27.

An estimated 3,000 dined at the restaurant during the January time period when an employee infected with hepatitis was working and was potentially contagious. The health department gave shots to more than 2,000 people to minimize the effects of the exposure. Most at risk are patrons who had drinks with contaminated ice.

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This coming Saturday, I am off to Australia to give a series of speeches to government and industry on food safety and the legal implications. My first talk is in Queensland, where I will be speaking on “Class Actions Relating to Foodborne Illness in the USA.” My next series will be in Melbourne – “The Science and Law of Tracking Foodborne Illness” and “Pure and Wholesome: Is Food A Risky Business?”

Being gone for a bit “Down Under” made me think about the obvious and growing crisis in the safety of the US food supply, both domestic and imported. Over the years I have asked repeatedly that I be “put out of business.” Yet, business for my law firm has never been better. For example:

-  In the Fall of 2006, E. coli in lettuce in Utah nearly killed two young women, E. coli in spinach sickened hundreds nationwide and killed at least four, and Salmonella in tomatoes caused two outbreaks of hundreds each that went nearly unnoticed.

-  Valentines Day 2007 brought the recall of 180,000,000 jars of peanut butter and a landslide of lawsuits, including 30 class action lawsuits.

-  Spring 2007 arrived and showed us that recent meat industry efforts at improving meat safety have begun to erode, with 7,000,000 pounds of meat recalled and over 50 ill in several (seemingly) unrelated outbreaks across the country.

-  Then it was Salmonella in Veggie Booty, 700 sickened in Chicago from eating contaminated hummus, and now botulism in canned chili.

It all does make you wonder, as one Congressman quipped: "Who needs Al-Qaeda when you have got E. coli?"

I will not be gone long, and I will—to some folks’ dismay—still be connected. But while I am gone, why doesn’t the entire food chain—from “farm-to-fork”—think about ways to enhance the safety of the food supply, such as:

Growers:

1. Develop and implement Hazard Analysis Critical Control Point-based systems (and if you can't have HACCP on the farm, say HACCP-based);
2. Conduct microbial testing on soils, water and product on a routine basis;
3. Develop a product coding system down to the unit package level (bag, clamshell) allowing rapid trace back;
4. Support mandatory regulation of the produce industry at Federal, State and local levels; and
5. Support research to determine the critical values for the safety of food, water, air and soils in farming operations.

Manufacturers:

1. Improve Hazard Analysis Critical Control Point systems;
2. Create a culture of food safety and sanitation within the firm;
3. Institute a profit sharing model to engage employees fully in the health and well-being of the organization;
4. Require all suppliers of raw materials to have HACCP systems in place; and
5. Audit yourself and your suppliers.

Restaurants:

1. Train and certify managers and train employees in food safety;
2. Create a culture of food safety within the firm;
3. Provide frontline management with the authority, not just the responsibility, for food safety;
4. Provide a line item budget for food safety; and
5. Provide accessible health insurance for employees.

Regulators:

1. Build win-win industry partnerships while maintaining autonomy to independently protect public health;
2. Provide an outsourced system to maintain inspection schedules, shift cost to industry;
3. Require all operators of all food-related businesses to have a valid, verifiable food safety management system;
4. Develop and implement science-based auditing techniques moving away from the poke-and-sniff inspection models; and
5. Apply risk assessment to identify high risk operations for more intensive interventions and strengthen surveillance.

Consumers:

1. Support consumer activist organizations that base their platforms on science and public health protection;
2. Become more knowledgeable about food safety;
3. Use a thermometer when cooking and do not undercook or consume raw high-risk foods such as ground beef, seafood, and chicken;
4. Demand that restaurants be graded for food safety and that the grades be posted; and
5. Support your Federal, State and local government's efforts in food safety regulation and vote for candidates that value public health protection.

I wish you the best on your assignments. And, remember, I will be 14 hours and 1 day ahead of you.

And, no, it is not a family reunion.

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I got profiled in the Seattle University Alumni Magazine – “The Lawyer.”

Click here to download the full article.

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From Boston Public Radio:

Bad Meat

China may not be the only country encountering problems with food quality. Attorney William Marler says that although the meat industry has made recent improvements in quality control, he is still seeing more food poisoning cases.

Listen

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It what must rank up there with one of the more stupid moves by Congress (I know there are many), on May 2, 2007, according to Senator Mary Landrieu, “in A 93-1 vote, the United States Senate today passed S. 1082, the Food and Drug Administration (FDA) Revitalization Act, which includes a key amendment offered by Senator Landrieu, that would lift the current ban on the sale of baby turtles in the United States.”  She goes on to say:

"My amendment frees Louisiana's turtle farmers from outdated FDA regulations that have crippled them for more than 30 years," Senator Landrieu said. "This is a great success for our agriculture industry, and I am proud that I could work with the Senate leadership to get this key provision passed. I urge the House to follow the Senate and pass this legislation so that the President can sign it and our farmers can have the freedom they need to provide safe and healthy turtles to America's children and families."

Now here is the real issue:

“There are approximately 78 turtle farmers in Louisiana, comprising a $9.4 million industry.”

Check the campaign donations.

Yesterday the CDC published in MMWR reports of illness traced to turtles came from Texas, Alabama, Arizona, California, Florida, Massachusetts, Nevada, New Mexico, New York, Pennsylvania and South Carolina, according to the Centers for Disease Control and Prevention in Atlanta. A strain of salmonella called S. Pomona was found in 19 patients in 11 states who had contact with the reptiles, the CDC said in a report released Thursday. The illnesses occurred from Sept. 30 through April 23.

Tragically, Emily Brown of Bloomberg News reported on the death of a 3 –week-old Florida girl linked to the turtles. The family of the 3-week-old girl was given a small turtle that a friend bought at a flea market in north central Florida, the CDC said. The baby developed poor appetite and lethargy and died March 1 after being admitted to a hospital. Tests showed that the turtle and the child had the same strain of salmonella. Quoting from the CDC report:

Six percent of salmonella infections can be attributed to reptiles, the CDC said, citing a study in 1996 and 1997. Symptoms in humans include stomach cramps, vomiting and bloody diarrhea. Children under 5 and people with weak immune systems are most at risk of serious effects.

Sale of turtles for educational purposes is allowed. The CDC estimated in 1980 that the ban had prevented 100,000 turtle-related salmonella infections and 40 deaths.

What is Congress thinking?  Might I suggest an email campaign to the good Senator?  Here is her press agents email:  scott_schneider@landrieu.senate.gov

See also what my friends at BARFBLOG have to say on the topic.

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Let me first say that the meat industry had been doing something right. E. coli illnesses and outbreaks were down, and down substantially, from 2003 to a few weeks ago.  From Jack in the Box outbreak of 1993 through the Summer of the ConAgra outbreak of in 2002, most of the work we did at Marler Clark consisted of E. coli cases tied to the consumption of contaminated hamburger.  In 2002, nineteen million pounds of meat was recalled and 40 people were sickened - one died. In the last two months, nearly 40 people have been sickened in a dozen or more states, some severely, and nearly six million pounds of meat has been recalled. I do not yet know the answer to this new and ominous trend, but I expect a few lawsuits will shake out an answer or two. Those concerning issues aside, I expect to get the following email (I always do when outbreaks happen) from someone upset that I had the audacity to sue a poor supplier of meat contaminated with E. coli O157:H7 (a.k.a “cattle feces”):

"It is not the failure of the Meat Industry in not keeping cattle feces out of hamburger that sickened the child, it is the fault of the parent who handled and cooked the hamburger that was fed to the child."

At first I will calmly try to respond that the Meat Industry that makes a profit off of selling "USDA Inspected Meat" can not blame the consumer if the product actually contains a pathogen that can severely sicken or kill a child. What other product in the United States would a manufacturer expect consumers to fix themselves before they used it for “gawds” sake? The reply to my calm response will be:

"The consumer should know that meat may contain bacteria and they are told to cook it."

My calmness will now fade. Think about the little labels on meat that you buy in the store - the ones that tell you to cook the meat to “thoroughly” - of course they also say USDA inspected too. However, the labels do not say "THE USDA INSPECTION MEANS NOTHING. THIS PRODUCT MAY CONTAIN A PATHOGENIC BACTERIA THAT CAN SEVERELY SICKEN OR KILL YOU AND/OR YOUR CHILD. HANDLE THIS PRODUCT WITH EXTREME CARE." I wonder why the Meat Industry does not want a label like that on your pound of hamburger. It knows that the label would be truthful. Do you think it might be concerned that Moms and Dads would stop buying it?

The day the industry puts a similar label on hamburger is the day that I will go work for them.

The reality is that the Meat Industry seems to be back at the point where it cannot assure the public that the meat we buy is not contaminated. So, instead of finding a way to get cattle feces out of our meat, they blame parents (and presumably all the teenagers that work at all the burger joints in America) when children get sick.

Consumers can always do better. However, study after study shows that, despite the CDC estimated 76 million people getting sick every year from food borne illnesses, the American public still has misconceptions and overconfidence in our Nation's food supply. According to a study by the Partnership for Food Safety Education, fewer than half of the respondents knew that fresh vegetables and fruits could contain harmful bacteria, and only 25% thought that eggs and dairy products could be contaminated. Most consumers believe that food safety hazards can be seen or smelled. Only 25% of consumers surveyed knew that cooking temperatures were critical to food safety, and even fewer knew that foods should be refrigerated promptly after cooking. Consumers do not expect that things that you cannot see in your food can kill you.

Consumers are being blamed, but most lack the knowledge or tools to properly protect themselves and their children. The FDA has stated, "Unlike other pathogens, E. coli O157:H7 has no margin for error. It takes only a microscopic amount to cause serious illness or even death." Over the last few years our Government and the Meat Industry have repeatedly told the consumer to cook hamburger until there is no pink. Yet, recent university and USDA studies show meat can turn brown before it is actually "done." Now the consumer is urged to use a thermometer to test the internal temperature of the meat. However, how do you use one, and who really has one?

Many consumers wrongly believe the Government is protecting the food supply. How many times have we heard our Government officials spout, "The US food supply is the safest in the world.” Remember, however, that just in the last year we have had E. coli outbreaks in spinach and lettuce, Salmonella outbreaks in tomatoes and peanut butter, poisoned animal feed, and now E. coli in meat is back on the front page.

Where is the multi-million dollar ad campaign to convince us of the dangers of hamburger, like we do for tobacco? The USDA's FightBAC and Thermy education programs are limited, and there are no studies to suggest that they are effective. Most consumers learn about food safety from TV and family members - If your TV viewing habits and family are like mine, these are highly suspect sources of good information - I've never heard Simon on American Idol talk about this topic with Paula.

The bottom line is that you cannot leave the last bacteria "Kill Step" to a parent or to a kid in a fast food joint. The industry that makes billions off of selling meat must step up and figure out why outbreaks and illnesses are happening again, and clean up their mess. They can, and someday will, if I have anything to say about it - again. That day will come much faster if they start working on it now, and stop blaming the victims.

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William Marler is the managing partner of Marler Clark. He began representing victims of foodborne illness outbreaks in 1993, when he represented Brianne Kiner in her $15.6 million E. coli settlement with Jack in the Box. In 1998, Mr. Marler joined his current law partners in a practice dedicated to representing victims of foodborne illness. Since that time, Marler Clark has represented thousands of victims of E. coli, Salmonella, hepatitis A, and other foodborne illnesses in litigation against such companies as ConAgra, Dole, McDonald's, Odwalla, Wal-Mart, and Wendy's. Mr. Marler lives on Bainbridge Island with his wife and three daughters.

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In August 2002, I wrote an Op-ed for the Denver Post entitled “Put me out of business - please.” That summer, the now infamous ConAgra case, started with a few sick kids in Colorado and quickly spread coast-to-coast, eventually triggering the recall of over 19,000,000 pounds of ground beef tainted with E. coli O157:H7. I asked, no pleaded, that the government and industry adopt measures to prevent illnesses. I asked:

* Actually, inspect and sample meat. At present, the USDA employs thousands of inspectors across the nation to inspect hundreds of plants that produce millions of pounds of beef at processing plants and retail outlets. The GAO has warned that the USDA's food samplings are so scattered and infrequent that there is little chance of detecting microscopic E. coli or any other pathogen.

* Consider mandatory recall authority. This authority is required in Sen. Tom Harkin's Safer Meat, Poultry and Foods Act of 2002 (named Kevin’s law for a young boy who died of E. coli that year).

* Require the meat industry to document where specific lots of food are sold. That way, it can be recalled quickly if a pathogen is detected. In most E. coli outbreaks, there is no recall because retailers do not know where the meat came from and processors rarely step forward.

* Merge the two federal agencies responsible for food safety. Right now, USDA's Food Safety Inspection Service and the inspection arm of the Food and Drug Administration share this mission. The system is bifurcated, which leads to turf wars and split responsibilities. We need one independent agency that deals with food-borne pathogens.

* Finally, large purchasers of meat – fast food industry, grocery store chains, and yes, the USDA – must require the meat industry to produce high quality, pathogen lessened, meat.

From 2002 until a few weeks ago I believed that even though most of the measures above never fully occurred, E. coli illnesses, especially those tied to red meat consumption were down - way down. A report in 2005 released by the CDC, in collaboration with the FDA and USDA, showed important declines in foodborne infections due to common bacterial pathogens in 2004. From 1996-2004, the incidence of E. coli O157:H7 infections decreased 42 percent.

Now that was, and still seems, significant. We saw the same results in our law firm. From 1993 (Jack in the Box) to 2002 (ConAgra), 95% of the cases in our office were E. coli cases tied to red meat consumption. After 2002, we saw enormous drop in clients, and more importantly, ill people nationwide. Recalls fell to nothing. That is until six weeks ago. The last six weeks look like the late springs and summers from 1993 to 2002, when hamburger recalls and E. coli illnesses were a large part of every summer – much like vacations and baseball season. Now here is the concerning reality of 2007:

* At least thirteen people have been confirmed ill with E. coli O157:H7 infections after eating ground beef produced by United Food Group sold in Arizona, California, Colorado, Idaho, Nevada, New Mexico, Oregon, Utah, Washington, Wyoming and Montana. Over 5,700,000 pound of meat have been recalled.

* Tyson Fresh Meats, Inc. recalled 40,440 pounds of ground beef products due to possible contamination with E. coli O157:H7. No illnesses yet reported.

* Seven Minnesotans were confirmed as part of the E. coli O157:H7 outbreak that prompted PM Beef Holdings to recall 117,500 pounds of beef trim products that was ground and sold at Lunds and Byerly’s stores.

* Twenty-seven people have been confirmed ill with E. coli O157:H7 infections in Fresno County. The Fresno County Department of Community Health inspected the “Meat Market” in Northwest Fresno, the source of the outbreak.

* At least two people were confirmed ill with E. coli O157:H7 infections in Michigan after eating ground beef produced by Davis Creek Meats and Seafood of Kalamazoo, Michigan. The E. coli outbreak prompted Davis Creek Meats and Seafood to recall approximately 129,000 pounds of beef products that were distributed in Arkansas, Florida, Illinois, Indiana, Iowa, Kansas, Kentucky, Michigan, Missouri, Ohio, Pennsylvania, Tennessee, Virginia, West Virginia, and Wisconsin.

* Following reports of three Napa Valley children who became sick from hamburger patties sold at a St. Helena Little League snack shack, 100,000 pounds of hamburger (that was a year old) was recalled.

* Several people were confirmed ill with E. coli O157:H7 infections in Pennsylvania after eating E. coli-contaminated meat products at Hoss’s Family Steak and Sea Restaurants, a Pennsylvania-based restaurant chain that purchased its meat from HFX, Inc., of South Claysburg, Pennsylvania. As a result of the outbreak, HFX recalled approximately 4,900 pounds of meat products.

I am not sure I know the reason for the new and ominous trend (these are the largest meat recalls in five years), but by anyone’s count these numbers are concerning. What I do know is that these recent outbreaks have all the ugly signs of another national emergency. As a nation - and that includes all federal and local government agencies as well as the private sector – we cannot let the positive tend of the past become another acceptable body count. We need to figure out why this has happened. My suggestion – if Congress was willing to drop everything in order to investigate the deaths of a dozen cats due to contaminated pet food from China – perhaps bringing all the executives of the companies responsible for this recent rash of outbreaks, recalls and illnesses to Washington for a few days of questioning (under oath) might help us get to the bottom of this.

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Recalls of Red Meat and Illness have been linked to United Food Group in Los Angeles, California, Creek Meats in Kalamazoo, Michigan, PM Beef Holdings of Windom, Minnesota, Richwood Meat Co. in Merced, California, HFX Inc. of South Claysburg, Pennsylvania and the Meat Market in Fresno, California.  I spoke with the Denver Post and the Portland Oregonian yesteerday about the rash of recent recalls and illnesses.

E. coli beef recall expanded
United Food Group says 370,000 more pounds may be tainted

For Bill Marler, a Seattle- based product-liability attorney who represents plaintiffs in E. coli contamination cases, the recall is "cause for concern."

Marler said that up until a few years ago, surges of early- summer E. coli cases from meat were almost an annual occurrence. But from 2003 to 2006, Marler said he had few, if any, meat-related cases. Spinach and lettuce had taken meat's place, he said.

This year, contamination seems to be on the rise, he said.

"If it was just one case, I'd be less concerned that history was repeating itself," Marler said. "But I'm very worried that at least five companies are recalling meat, none of them related to each other, and they're spread out over 60 days."

E. coli again rears its sickening head
Beef handling improved in recent years and outbreaks

Between 1990 and 2004, 171 E. coli outbreaks in ground beef sickened roughly 3,400 people. Seattle attorney Bill Marler built the most prominent foodborne-illness practice in the country primarily on the strength of such cases.

But during the past several years, as the meat industry has adopted handling practices to minimize contamination, Marler said meat-related E. coli legal cases have all but disappeared.

Between 2000 and 2005, microbiological testing of ground beef showed that positive samples of E. coli had fallen 80 percent, according to the federal Centers for Disease Control and Prevention.

"Obviously, we're seeing this issue come up again, and I'm hoping it's an aberration and not a trend," Marler said Thursday. "I'm getting more worried as the numbers keep going up."

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In April of 2005, the Centers for Disease Control and Prevention (CDC) announced that the incidence of E. coli O157:H7 infection traced to ground beef products had significantly declined. CDC attributed the decline to the implementation of a new set of recommendations from the United States Department of Agriculture’s Food Safety and Inspection Service (FSIS) in 2002 and the beef industry’s subsequent enhancement of food safety systems, including testing and control measures. In a press release issued on April 14, 2005, USDA Secretary Mike Johanns stated:

“The continued reduction in illnesses from E. coli O157 is a tremendous success story and we are committed to continuing this positive trend in the future. These results demonstrate that through innovative policies and strong and consistent enforcement of inspection laws, we are protecting the public's health through a safer food supply.”

It is true that since 2002, there has been a general decline in the number of E. coli cases traced to red meat, and an increase in the number of E. coli cases traced to fresh produce, namely bagged lettuce and spinach. But in the last weeks E. coli outbreaks traced to beef products have underscored the importance of continued efforts to protect the public from E. coli in meat.

1.    On June 4, FSIS warned consumers to discard ground beef products produced by United Food Group, LLC, of Vernon, California, after its products were traced as the source of an E. coli O157:H7 outbreak. United Food Group issued a recall of approximately 75,000 pounds of potentially contaminated ground beef, which was confirmed as the source of at least twelve E. coli O157:H7 illnesses among residents of several Western states and British Columbia. Most of the products were sold under the Moran's label at Albertsons stores in California, Idaho, Montana, Nevada, North Dakota, Oregon, Utah, Washington and Wyoming and Save-A-Lot stores in Arizona, California, and Nevada.

2.    On May 29, the Fresno County Department of Community Health issued a press release stating that it was investigating an E. coli outbreak among Fresno County residents. As of May 31, eleven people had been confirmed ill with E. coli O157:H7 infections as part of the outbreak, and the Health Department had inspected the “Meat Market” in Northwest Fresno, a potential source of the outbreak. The outbreak investigation is ongoing.

3.    On May 11, FSIS announced that Davis Creek Meats and Seafood of Kalamazoo, Michigan, was recalling approximately 129,000 pounds of beef products due to possible contamination with E. coli O157:H7. The recall was issued in response to a Michigan Department of Community Health investigation into the E. coli illnesses of two Michigan residents. The potentially contaminated beef products were distributed in Arkansas, Florida, Illinois, Indiana, Iowa, Kansas, Kentucky, Michigan, Missouri, Ohio, Pennsylvania, Tennessee, Virginia, West Virginia, and Wisconsin.

4.    On May 10, FSIS issued a recall notice to consumers who may have purchased ground beef products made with beef trim products produced by PM Beef Holdings, LLC, of Windom, Minnesota. PM Beef Holdings recalled approximately 117,500 pounds of beef trim products, which were sold to distributors and retail outlets in Arizona, Illinois, Iowa, Michigan, Minnesota, Ohio, Virginia, and Wisconsin. The beef trim products were subsequently ground and sold under different retail names. Minnesota and Wisconsin health officials traced at least seven E. coli illnesses to consumption of the ground beef products, which were purchased at Lunds or Byerly’s stores in the two states.

5.    On April 20, FSIS announced the recall of 107,900 pounds of frozen ground beef products produced by Richwood Meat Co., of Merced, California, stating that the California Department of Health Services had discovered E. coli contamination during an investigation. The ground beef products were distributed to stores in Arizona, California, Idaho, Oregon, and Washington.

6.    Also on April 20, FSIS and the Pennsylvania Department of Health warned consumers that steak products produced by HFX, Inc. of South Claysburg, Pennsylvania, and sold at Hoss’s Family Steak and Sea Restaurants, a Pennsylvania-based restaurant chain, were potentially contaminated with E. coli O157:H7. The announcement came after an investigation linked several E. coli illnesses to consumption of the steaks at Hoss’s. HFX recalled approximately 4,900 pounds of meat products.

Marler Clark has been retained by victims of many pf the above-listed E. coli outbreaks, and has been contacted by several more who are seeking legal representation. Bill Marler, managing partner of Marler Clark, commented on the recent outbreaks: “This recent up-tick in E. coli cases traced to meat products is certainly cause for concern. I hope we’re not seeing a reversal in all the progress that has been made in recent years to curb E. coli contamination in meat processing plants.”

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It will be interesting whether the "Leafy Green" industry makes it through this years growing season without another outbreak of E. coli contamination - last year there were at least four that hit the attention of the media.  I'm giving a talk Wednesday night to a public health class in Minnesota.  My PowerPoint can be accessed by clicking on the leafy green:

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Hi, this is Remy Morritt. I have to keep saying to myself, “Don’t look down!” I am here at MarlerClark law office. Today is career day at my school, Assumption St. Bridget, and I decided I would like to see what a lawyers life would be like. Luckily, Bill Marler is a friend of my dad, and he kindly let me come to his office and bug him. Right now I am sitting 66 floors up, (even higher than the Space Needle!) typing up a passage for Bill’s blog.

I want to be a drummer in a band when I grow up, but I decided to talk to Bill because I want to become a lawyer more. I was thinking of doing damage or crime cases if I become a lawyer, but I like the idea of food poisoning like e.coli and salmonella. I am fascinated on what they are doing now, cases of poisoning from peanut butter. Apparently the peanut butter was in a packet (nasty).

I’m glad I’m doing Bill because my dad knows him, so I feel more comfortable. I also heard that he was the first to come to our house when I was born.  I also love the office, especially the view and the really nice people who work there. The pictures of all the newspaper articles interest me, seeing that there are thousands of cases of e.coli, salmonella, and other poisons. I think if I ever become a lawyer, I will be interested in food poisoning, and it will be all thanks to MarlerClark.

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Looking to the Future

Following Taylor’s example, notice must be served to producers and other food processors that E. coli, Salmonella, and other foodborne pathogens will be classified and treated as adulterants. In addition, the same kind of comprehensive Risk Management System should be established and implemented, along with criminal and civil penalties for violations.

If these best practices were adopted, firms would have to certify that they are in compliance in every aspect of their supply chain. Branding can and should reflect this certification of both the firms and their suppliers. The result would be a “seal of approval,” which should also apply to such issues as the location of produce fields near livestock, what kinds of procedures are employed and the method of irrigation, as well as the type of water used to irrigate.

Second, government needs a food-safety champion like Michael Taylor, an articulate and highly visible spokesperson for food safety. At the same time, we should consolidate responsibility for food safety into one federal-level agency, which would become the authority on best practices, and the point of contact for state and local regulators and health departments.

Third, the food industry itself needs to take more responsibility for quickly and efficiently warning consumers as soon as it is discovered that contaminated food has entered the marketplace. The recent peanut butter scandal in the U.S. is a classic example of the costs of failing to do this. Federal and state governments should assert their authority in this area – especially at the state or regional level, since most outbreaks are regional, not national.

Fourth, we need to develop an E. coli vaccine for cows. The majority of outbreaks linked to fresh vegetables are caused by contamination by cow manure from adjacent or nearby fields.

Fifth, we need to educate the public about the benefits of irradiation of all mass-produced food, including fresh produce. Resistance to this practice seems to be rooted in perception, not science.

Sixth, attention must be paid to the vulnerability of food-supply systems to acts of terrorism. Denial and lack of common sense seem to dominate thinking at all levels – business and federal and state governments.

Seventh, government must use its economic and political leverage to monitor food imports and enforce the same standards enforced on domestic producers. This is a central trade issue that has been neglected.

And finally, there is an urgent need to improve the resources available to victims of foodborne illness. In the US, where the system relies on private medical insurance, out-of-pocket medical costs are rarely reimbursed by insurance – even if victims have coverage. By the time compensation arrives, victims can be mired in debt. And food processors and retailers whose products sicken their customers should minimally provide, as a gesture of goodwill, reimbursement for lost wages. This is not just the ethical response. It’s also good business practice.

Taken together, all of these recommendations will go a long way toward improving the safety and security of our food supply. In the U.S., one of the major food-safety success stories came as a result of the 1993 Jack in the Box outbreak. According to the CDC, E. coli outbreaks linked to tainted meat have declined by 42 percent. The American Meat Institute puts that figure at 80 percent.

Now consumer confidence in fresh produce has been shaken. Because three-quarters of America’s lettuce and spinach comes from California, the problem has hurt an industry, undermining consumer confidence not just in one supplier, but also in an entire sector, most of which continues to produce a healthy and safe product. More companies, ranging from food processors to retailers, are asking for help to regain their “reputational capital” after foodborne disease problems. It remains to be seen whether the brand names of the fast-food chains involved in the recent E. coli or Salmonella outbreaks will fully recover.

Obviously, the goal of the food-service industry should be to produce high quality products that sell well without injuring customers. With this goal in mind, everyone’s interests are better served by the fair and efficient assessments of claims, by health and food-industry officials alike, rather than by the extreme reaction so often seen.

To that end, any business that produces food should be prepared to respond quickly and wisely to any claim of illness caused by its product. There is a natural tendency to react out of anger, but combative responses almost invariably backfire on the industry. Certainly, if a claim of harm is truly bogus, the industry can and should fight it. But when a claim has merit, it is better to treat a customer fairly and learn from mistakes. A calm and reasoned perspective will help the food industry keep its eye on the bottom line.

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Learning From the Past

So how can we ensure that the gains in food safety already made are preserved and the new problems addressed? Based on my many years of experience with the issues, here are some recommendations:

It took a nationwide crisis, and the horrible deaths of several young children, for the US to begin addressing the issue of E. coli contamination in meat. That crisis occurred in the early 1990s, when undercooked hamburgers containing the deadly strain of bacteria E. coli O157:H7 sold by a U.S. fast-food restaurant chain, Jack in the Box, sickened 650 people and four children died.

After the Jack in the Box tragedy, the head of the USDA’s Food and Safety Inspection Service, Michael Taylor, took a regulatory and systems approach to food safety. Taylor declared that E. coli-contaminated raw ground beef would be classified and treated as “adulterated” within the meaning of the Federal Meat Inspection Act. Taylor also introduced a mandatory Risk Management System that required meat processors to adopt comprehensive precautions that included carcass washes, citric acid sprays, steam pasteurization, and air-exchange systems.

This appears to have worked. Incidents of E. coli poisoning involving ground beef have declined. And there is a lesson here for the broader food industry.

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