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Marler Blog

Providing Commentary on Food Poisoning Outbreaks & Litigation

Public Health Doing Its Job is Legal

10_notomatoes_lgToday the 4th Circuit Court of Appeals affirmed the December 15, 2015, District Court dismissal of a lawsuit brought by tomato grower, Seaside Farm, Inc.  Seaside alleged that the Food and Drug Administration negligently issued a contamination warning in response to an outbreak of Salmonella Saintpaul that devalued Seaside’s tomato crop by $15,036,293.95.

According to the 4th Circuit, “the district court reasoned that FDA had broad discretion to warn the public about a contaminated food supply, and that Seaside failed to allege any statute, regulation, or policy that required FDA to proceed in a particular manner. The district court also acknowledged that contamination warnings implicate competing policy considerations of protecting the public from serious health risks and minimizing any adverse economic impact on associated industries.

On May 22, 2008, the New Mexico Department of Health notified the Centers for Disease Control and Prevention that a number of local residents had been infected with Salmonella Saintpaul. Similar reports soon arrived at CDC from Texas. After interviewing patients, CDC discovered a “strong statistical association” between the infections and eating raw tomatoes. This observation was supported by a “historical association” between Salmonella and tomatoes generally. CDC subsequently notified FDA that tomatoes were the “leading hypothosis” for the source of the outbreak. On June 7, 2008, FDA issued an updated contamination warning titled, “FDA Warns Consumers Nationwide Not to Eat Certain Types of Raw Red Tomatoes.” The contamination warning explained the nature of Salmonella Saintpaul and specified certain types of tomato as the likely vehicles for the bacteria. It also provided a list of countries and seven states, including South Carolina, whose tomatoes remained unassociated with the outbreak. The media, however, reported the contamination warning without mentioning that some tomatoes were not implicated. FDA officials also stressed the magnitude and national scope of the outbreak but likewise failed to mention any “safe” tomatoes. Eventually, the CDC accumulated enough data to trace Salmonella Saintpaul to jalapeño and serrano peppers imported from Mexico. FDA withdrew the contamination warning as a result and announced that fresh tomatoes were no longer associated with the outbreak.

According to the CDC as of April 2008, 1442 persons infected with Salmonella Saintpaul with the same genetic fingerprint have been identified in 43 states, the District of Columbia, and Canada. The number of ill persons identified in each state is as follows: Alabama (8 persons), Arkansas (21), Arizona (59), California (16), Colorado (17), Connecticut (5), Florida (4), Georgia (42), Idaho (6), Illinois (120), Indiana (21), Iowa (2), Kansas (21), Kentucky (2), Louisiana (3), Maine (1), Maryland (39), Massachusetts (31), Michigan (28), Minnesota (31), Mississippi (2), Missouri (20), Montana (1), New Hampshire (6), Nevada (14), New Jersey (16), New Mexico (115), New York (41), North Carolina (28), Ohio (10), Oklahoma (38), Oregon (11), Pennsylvania (15), Rhode Island (3), South Carolina (2), Tennessee (10), Texas (559), Utah (3), Virginia (31), Vermont (2), Washington (18), West Virginia (1), Wisconsin (13), and the District of Columbia (1). Five ill persons are reported from Canada. Four appear to have been infected while traveling in the United States; the travel status of the fifth ill person is unknown. Among the 1414 persons with information available, illnesses began between April 16 and August 11, 2008 with most becoming ill during May or June. At least 286 persons were hospitalized, and the infection might have contributed to two deaths.

So, bottom line, doing your job protecting public health is the right thing to do.