November 2007

Standing in the New Orleans Airport yesterday afternoon, I had a nice chat with Mark Morey of the Yakima Herald about the status of the ConAgra Salmonella Peanut Butter litigation (CDC confirms 714 Illnesses) as well as the filing of yet another suit against ConAgra for manufacturing Salmonella Pot Pies (CDC confirms 272 Illnesses – 27 in Washington State).  His article appeared this morning in the Yakima Herald – Woman sues over tainted pies:

Bill Marler, a Seattle attorney who focuses on food safety cases, said Barnes’ case is among 40 that he is handling related to the ConAgra outbreak, which federal health investigators say sickened about 270 people in the United States…. ConAgra said it has improved safety measures, but Marler said Barnes and other victims deserve compensation for their medical treatment…. Marler said the company has not  offered a settlement yet, although he is discussing that possibility as part of other litigation involving tainted ConAgra peanut butter.

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?

On the same day it was announce that I settled the last of the Salmonella suits against Sheetz, the Post-Bulletin of Rochester reported that “Quizno’s outbreak came from outside source.” The common denominator was Tomatoes.

A foodborne illness outbreak at Quizno’s Subs, 3499 22nd Ave. N.W. in Rochester, wasn’t the restaurant’s fault. Larry Edmonson, an epidemiologist with Olmsted County Public Health, said studies showed that tomatoes delivered to the store were contaminated before they even got to the restaurant. Salmonella made more than 20 Quizno’s customers and employees sick in October. The store closed for one day, hired a cleaning company to sterilze equipment and reopened.

In 1990, a reported 174 Salmonella javiana illnesses, as part of a four state outbreak, were linked to raw tomatoes. In 1993, 84 reported cases of Salmonella Montevideo were part of a three state outbreak that was linked to raw tomatoes. 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.

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. According to Ms. Murphy, the Food & Drug Administration is now investigating two tomato-related outbreaks, with the latest blamed for nearly 100 illnesses in 19 states. FDA was already tracing tomatoes involved in another outbreak involving 183 people in 21 states. Federal authorities said that fresh tomatoes contaminated with Salmonella typhimurium served in restaurants were the likely cause of that outbreak.

I am still in New Orleans. I must admit, I expected a bit more devastation here in the downtown area from Katrina, but things looked great  – especially in the French Quarter.  We made some slow progress in talking to ConAgra, its lawyers and insurers about the status of the Peanut Butter cases.  Hopefully, at some point ConAgra can put the interests of its customers at the front of any discussions. During one of the breaks today, I took a call from Dinesh Ramde, AP Business Writer of Milwaukee:

More than a year after their two children were severely sickened by E. coli, a southeastern Wisconsin couple has settled their federal lawsuit with four spinach companies. Details of the settlement were secret, but in court documents filed in 2006, lawyers for the family asked for more than $75,000 plus court costs.

A family lawyer said Tuesday that parents Neil and Anne Grintjes of the Milwaukee suburb of Brookfield are just glad the matter is resolved. "They’re happy to put it behind them, and the companies are happy to put it behind them as well," said William Marler, an attorney at Marler Clark in Seattle. "The Grintjes are pleased at the result."

Of the 204 people sickened by the tainted greens, Marler said about 100 have brought a lawsuit. His firm is handling 83 cases and has resolved 51 within the past few months.

We have more work to do on Spinach, and other leafy greens, but then again, think about all the other food items that are causing all of us and our families so much grief – Peanut Butter, Pot Pies, Hamburger, etc.  Makes you wonder what you can or can not eat.  We have much to do to make food corporations be responsible.


As reported by the Altonna Mirror today, a key lawsuit in the Sheetz Inc. bad tomato case has been settled out-of-court, according to an order issued by Blair County President Judge Jolene G. Kopriva. Altoona resident Max Christian Anslinger filed a lawsuit against the convenience store chain after he became sick on what he claimed were tainted tomatoes in food he purchased at the Beale Avenue store in July 2004. As it turned out, hundreds of customers in several states complained about the Roma tomatoes Altoona-based Sheetz received primarily from Coronet Foods of Wheeling, West Virgina.
  AP reported – Key Sheetz salmonella case settled for undisclosed sum

As I told the reporter, Joe Mandak, "the settlement terms are confidential, according to Sheetz attorney Gary Zimmerman and Marler, who represented more than 130 of the sickened customers."  I do believe that Sheetz, its lawyers and insurers stepped up an took care of its customers:

"In 15 years of doing these food cases, I thought the way Sheetz handled taking care of the clients was better, frankly, than any other company I’ve ever dealt with," Marler said. "Not that they paid more money, but they stepped up quickly and took care of their customers."

I am sitting at home not wanting to head to the airport for a trip to New Orleans (it is Thanksgiving weekend anyway) to meet with lawyers and insurers from ConAgra (sounds fun?).  I must admit that I am skeptical of the meeting given that to date ConAgra has resolved no claims of any significance   However, there seems to be some recent interest in resolving the thousands of legitimate customer claims.  Given that ConAgra is facing legal defense bills of seven figures each month, has incurred some $50-60 million in recall cost – and who knows how much in lost sales – and now faces more of the same in Pot Pies, perhaps it will get serious and take care of its customers.

As you know, on June 1, 2007, the CDC reported that a total of 628 persons had been infected with Salmonella Tennessee in 47 states since August 1, 2006. That number has now risen in excess of 714.  However, remember that according to AC Voetsch, “FoodNet estimate of the burden of illness caused by nontyphoidal Salmonella infections in the United States,” Clinical Infectious Diseases 2004;38 (Suppl 3):S127-34, 714 ill people is an undercount by 38.6 times – That is an actual total of 27,560 people sickened by ConAgra’s Peanut Butter.

In addition, the outbreak strain of Salmonella Tennessee has been isolated from several opened and unopened jars of ConAgra produced Peter Pan and Great Value peanut butter and from two environmental samples obtained from the Sylvester, Georgia ConAgra plant. Rumor also has it that State and Federal labs have tested in excess of 100 jars of peanut butter from Salmonella Tennessee infected persons (stool culture positive) and that dozens of jars have tested positive for Salmonella Tennessee. We have tested nearly 1000 jars of peanut butter from clients (Salmonella Tennessee stool culture positive and not), and to date six have tested positive.  Several of our positive peanut butter tests, and culture positive clients, have the lid codes with 21116251 on the top (means it was produced by the Sylvester ConAgra plant on September 22, 2006).  We believe that the CDC has similar information, but it has not fully responded to our FOIA to date.  States’ responses have also been slow, but are coming in.

So, wish me luck (or a bit of magic) on the flight.  More importantly, however, wish ConAgra the wisdom to understand that its future success is tied to taking care of its poisoned customers and in making a serious commitment to food safety.  ConAgra needs to remember that it is no "Big" deal, in fact it is "Easy," to do the right thing.  If taking care of customers is too hard, ConAgra also needs to remember the FDA inspection of 2005:

"….  alleging poor sanitation, poor facilities maintenance, and poor quality program management.  Specifics in that complaint include an alleged episode of positive findings of Salmonella in peanut butter in October of 2004 that was related to new equipment and that the firm didn’t react to, insects in some equipment, water leaking onto product, & inability to track some product….  reporting several issues at the firm that in summary allege poor sanitation practices, poor quality program management and poor facilities maintenance."

"We believe in caring for our customers and caring for our employees. That will not change."
                Tom Rosen, Co-Chairman of American Foods Group, LLC

Oh, Really?  I guess lightning can strike more than once in the same spot!



American Foods Group, LLC (AFG), a Green Bay, Wisconsin firm, is recalling approximately 95,927 pounds of various coarse and fine ground beef products because they are contaminated with E. coli O157:H7, the U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) announced today. The ground beef products subject to recall were produced on Oct. 10, 2007, and were distributed to retail establishments and distributors in Indiana, Kentucky, Maryland, Ohio, Tennessee, Wisconsin and Virginia. The problem was discovered through an investigation into two illnesses that was initiated by the Illinois Department of Public Health.   That is how the USDA figures out outbreaks – send the contaminated meat into the market place and see if people get sick – the American pubic, canaries in the coal mine.  I wonder if AFG did any "test and hold?"

The FSIS web site also reflects that American Foods Group (AFG) is a processing establishment, and does not slaughter. The web site also shows that the establishment is part of a conglomerate which also owns Green Bay Dressed Beef, which has more than one establishment, one of which is Est # 410 in Green Bay, which does slaughter.  Green Bay Dressed Beef had a Mad Cow scare in August 2005.

Unfortunately for AFG’s customers this was not an isolated occurrence.  We have seen this all before.  In December 2000, the Minnesota Department of Health (MDH) issued a press release stating that 17 Minnesota citizens had been infected with the same strain of the E. coli O157:H7 bacteria during November 2000.  On December 4, FSIS, stated in a Class I alert that Green Bay Dressed Beef, the meat supplier doing business as AFG, was, at the suggestion of the FSIS, recalling 1.1 million pounds of contaminated ground beef.  One of the young children we represented developed Hemolytic Uremic Syndrome (HUS).

Also, In December 1998, another recall was issued for 1,000 pounds of beef manufactured by AFG and distributed to Cub Foods stores in the Chicago, Illinois area after random testing showed that meat in one of the stores was contaminated with E. coli O157:H7.  Again, in December 1999, a recall of ground beef was made after government inspectors found contamination at the AFG plant.  Yet another recall,  this time for over 500,000 pounds of ground beef manufactured by AFG, occurred in August 2001In that outbreak we represented five people.

Jennifer Smith Richards of the Columbus Dispatch weighed in on the recent AFG recall in an article “More beef might be tainted, states told.”  AFG’s shocking indifference is concerning:

"It’s something that, unfortunately, happens with a raw product like ground beef," said Jim Mulhern, a spokesman for American Foods Group. "It’s not 100 percent preventable….  One of the problems with these recalls is American Foods Group doesn’t know where it was eventually sold," Mulhern said.

One more "beef" of mine – It is an agreement between USDA and industry — USDA will not disclose the names of slaughter houses without a positive test “above the grinder” – which is why there is no mention of where the meat came from that was ground by AFG in this latest recall.  Also, on the "downside" of the grinder – on the retail side – there is also an agreement between USDA and industry to not disclose “proprietary information” – which includes where the contaminated meat was sold.  Health Departments have to sign a Memorandum of Understanding (MOU) to not disclose that information to the public in order to get the information from USDA.  Welcome to my world — ever read Kafka?  I put some of my thought on this recall out in a press release.

The following products are subject to this most recent recall:

Continue Reading American Foods Group Recalls Ground Beef Products due to E. Coli O157:H7 Contamination and Illnesses in Illinois

The FDA Today Reminds Consumers to Practice Egg Safety This Holiday Season

The U.S. Food and Drug Administration (FDA) reminds consumers to pay special attention to the handling of eggs and preparation of foods that contain eggs during this holiday season. Some holiday favorites, such as cookie dough, homemade eggnog, and some types of stuffing, may contain eggs that are raw or undercooked. Eggs sometimes contain a bacteria called Salmonella enteriditis (SE), which can cause illness if eggs are not handled and cooked properly. An FDA national survey of consumer food safety practices, the 2006 FDA/FSIS Food Safety Survey, found that cookie dough is one of the major sources of raw egg in the American diet, and that only three percent of respondents always use a food thermometer when they cook baked egg dishes such as stuffing.

However, just a few weeks ago it was announced that National Pasteurized Eggs’ Sales are Up 46 Percent Over Last Year & Numbers Expected to Soar as Holiday Season Approaches.

National Pasteurized Eggs, Inc. (NPE), producers of Davidson’s Safest Choice Pasteurized Shell Eggs, announced today that sales in the quarter ending Sept. 30, 2007, increased 46 percent over 2006, led by sales from hotels and resorts across the country.  By using pasteurized shell eggs, hoteliers eliminate the risk of Salmonella Enteritidis (SE) poisoning, either by serving individual eggs directly to guests or via cross contamination in the kitchen.  The Federal Drug Administration (FDA) estimates 2.3 million eggs contaminated with SE are sold each year, exposing a large number of people to risk of illness. According to the Centers for Disease Control and Prevention (CDC), each year more than 118,000 egg-related salmonella cases are confirmed, and many more go underreported or misdiagnosed. The FDA’s Food Code recommends using pasteurized eggs in all dishes calling for raw or softly cooked eggs.

So, why are more eggs not pasteurized?

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.

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.