Marler Blog - Providing commentary on food poisoning outbreaks & litigation

On August 21, 2008 I urged Governor Schwarzenegger to Veto SB 201. I learned a few moments ago that the Governor did just that.  Makes a life long Democrat think about switching to the other team.  Hopefully, the Senators will reconsider the bill and review some of the ideas I had outlined in a letter to them that I posted here on August 27, 2008.

Sometimes politicians do the right thing.  Here is the "Governator's" veto letter:

To the Members of the California State Senate:

I am returning Senate Bill 201 without my signature.

This bill weakens food safety standards in California, something I cannot support.

Last year I signed AB 1735, which passed the Legislature unanimously and put into law food safety standards for raw milk. Those standards are now in question by the proponents of this bill. Looking past the lobbying techniques, public relations campaign, and legal maneuvering in the courts, one conclusion is inescapably clear: the standard in place has kept harmful products off the shelves and California’s raw milk dairies have been operating successfully under it for the entirety of 2008.

Based on fears with no basis in fact, the proponents of SB 201 seek to replace California’s unambiguous food safety standards for raw milk. Instead they have created a convoluted and undefined regulatory process with no enforcement authority or clear standards to protect public health.

For these reasons, I cannot support this measure.

Sincerely,

Arnold Schwarzenegger

See Senator Florez's response:

The number of confirmed E. coli sickness cases continues to climb in Michigan. The Michigan State Department of Community Health says 30 cases with the same DNA fingerprinting have been identified. Some of the cases are from Michigan State University, the University of Michigan and the Lenawee County Jail. Other cases are in St. Clair County, Wayne County, Macomb County, Oakland County and Kent County.

The Centers for Disease Control and Prevention on Thursday informed the state health department that other states have E. coli cases with the same genetic link as the 30 in Michigan, six Illinois, two in Ohio and one each in Oregon and New York.  Health officials say some of the recent cases might be associated with industrial-sized packages of iceberg lettuce sold to restaurants and institutions from Detroit-based Aunt Mid's Produce Company.

Dominic Riggio told The Packer that “Aunt Mid’s traceback program is capable of tracking products back to the grower, but he declined to say where the company sourced its iceberg lettuce. Until contamination is verified we don’t want to damage our growers the way we’ve been damaged, without proof, by the Michigan Department of Community Health,” he said.  Also, to date non of the Aunt Mid's products that is still availalbe to test has tested postive for E. coli according to Aunt Mid.

The number of confirmed E. coli cases continues to climb in Michigan and Illinois.  Numbers from New York, Ohio and Oregon have yet to be counted.  At least 39 cases with the same DNA fingerprinting have been identified in five states.   In Michigan, some of the cases are at Michigan State University, the University of Michigan and the Lenawee County Jail.   Other cases are in St. Clair County, Wayne County, Macomb County, Oakland County and Kent County.  The Illinois Department of Public Health says at least five Illinois residents have been hospitalized after contracting E. coli between late August and mid-September.  Aunt Mid’s Produce Company supplied the lettuce.  Where the lettuce was grown is still a mystery.  Seems a bit odd that at this point Aunt Mid's has not announced who they bought the lettuce from and where it was grown.  Where is the FDA?  However, look at the number of outbreaks and the locations of where lettuce is grown.  My bet is the Salinas Valley.  However, as I said to the Salinas Californian:

Bill Marler, a Seattle-based attorney specializing in product litigation, said his office has been retained by some of the people sickened during the outbreak.

Marler said he doesn't know the source of the lettuce and likely won't until health officials complete their trace-back.

"At this point it's all speculation about where it's coming from," Marler said.

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.

Although the source of bagged, chopped iceberg lettuce delivered to Aunt Mid's had yet to be identified. A good guess would be California this time of the year, specifically the Salinas Valley (See growing season data).  Aunt Mid's is ready to point the finger - from its website:

The health alert has identified Aunt Mid's as one of the wholesale processors who sold institutional-sized iceberg lettuce product to the establishments which served the affected persons. It is expected that other wholesale suppliers will also be identified as and when product traceback measures are finalized.

As I have said before, E. coli O157:H7 outbreaks associated with lettuce or spinach, specifically the "pre-washed" and "ready-to-eat" varieties sold under various brand and trade names, are by no means a new phenomenon. By way of illustration:

-- in October 2003, thirteen residents of a California retirement home were sickened, and two people died, after eating E. coli-contaminated, pre-washed spinach;

-- in September 2003, nearly forty patrons of a California restaurant chain fell ill after eating salads prepared with bagged, pre-washed lettuce; and

-- in July 2002, over fifty young women fell ill with E. coli O157:H7 at a dance camp after eating "pre-washed" lettuce, leaving several hospitalized and one with life-long kidney damage.

And this is just a small sampling of the twenty or more E. coli O157:H7 outbreaks since 1995 in which spinach or lettuce was the source.  Several more outbreaks linked to contaminated leafy-produce, including most recently the September 2005 Dole packaged lettuce outbreak, are identified in the chart below:

Aug. 1993 Salad Bar E. coli O157:H7 53 WA

July 1995 Lettuce (leafy green; red; romaine) E. coli O157:H7 70 MT

Sept. 1995 Lettuce (romaine) E. coli O157:H7 20 ID

Sept. 1995 Lettuce (iceberg) E. coli O157:H7 30 ME

Oct. 1995 Lettuce (iceberg; unconfirmed) E. coli O157:H7 11 OH

May-June 1996 Lettuce (mesclun; red leaf) E. coli O157:H7 61 CT, IL, NY

May 1998 Salad E. coli O157:H7 2 CA

Feb.-Mar. 1999 Lettuce (iceberg) E. coli O157:H7 72 NE

July-Aug. 2002 Lettuce (romaine) E. coli O157:H7 29 WA, ID

Oct. 2003-May 2004 Lettuce (mixed salad) E. coli O157:H7 57 CA

Apr. 2004 Spinach E. coli O157:H7 16 CA

Sep. 2005 Lettuce (romaine) E. coli O157:H7 32 MN, WI, OR

The most recent major E. coli outbreak tied to leafy greens was the Dole Spinach outbreak of 2006. This nationwide outbreak included 205 illnesses due to E. coli O157:H7 reported the CDC. This  included 31 cases of HUS, 102 hospitalizations, and 3 deaths. The FDA concluded that all the implicated spinach was traced back to Salinas Valley in California.  Another outbreak that sickened 10 occurred in May 2008 in the State of Washington. The illnesses were linked to bagged, Romaine lettuce (See complete list of leafy green outbreaks).

World-wide, Food safety chiefs have ordered White Rabbit Creamy Candies to be taken off shelves amid fears they may be contaminated with poisonous plastic.   Dangerous levels of the melamine substance have been found in the White Rabbit Creamy Candies, sold in Asian and Chinese food stores, and now banned around the world.  The toxic plastic used in industry has been blamed for a health scare in China after powdered milk was contaminated causing the deaths of four infants and poisoning 50,000 more.

White Rabbit Creamy Candy is perhaps the best known brand of Chinese-made candy in China, and the only one to be marketed significantly outside of that country.  The product is manufactured in Shanghai by Shanghai Guan Sheng Yuan Food, Ltd. (‰∏äʵ∑Â܆ÁîüÂõ≠È£üÂìÅÊúâÈôêÂÖ¨Âè∏; Shàngh«éi GuƒÅnshƒìngyuán Shíp«ên Y«íuxiàn G≈çngsƒ´).

Lest we forget that food safety is not just a China problem, in the USA we are having two E. coli outbreaks going in in California and Michigan.  Also, Tracie Cone wrote in “Report: FDA lax in oversight of produce industry”

The Food and Drug Administration's efforts to combat food-borne illness are hampered by infrequent inspections, not enough staff and the failure to implement a program devoted to the safety of fresh produce, according to congressional investigators. The Government Accountability Office draft report obtained Thursday by The Associated Press also said that only 1 percent of produce imported into the U.S. is inspected, and that the practice of mixing produce from several sources makes it hard to trace contamination.

A few weeks ago I spoke to the Monterey Herald on my view of the “leafy green” industry in “Ensuring food safety carries high price tag”

When it comes to food safety, there is no silver bullet, says Bill Marler, whose Seattle-based firm Marler Clark LLP specializes in representing victims of food safety illness against restaurants and food companies.

"Ultimately, it's not going to be one particular thing that allows the mass-produced produce to be sold and marketed," Marler said. "It'll be a combination: Where are the cows in relation to the field? Where are the flies? Ozone versus chlorine? Are we keeping things cold?"

For more quotes, see below:

The number has gone up again - now it's 26 cases of salmonella that the Amarillo City Health Department is investigating linked (again) to the IHOP on Western in Amarillo.  The IHOP will be closed (again) until the Health Department does its inspection.

The city says the investigation is already underway.  The health department is also taking lab samples of the restaurant, but those results won't be back until next week.  This is the third time in three months that this same restaurant has (again) closed its doors because of salmonella.

IHOP's slogan cleary needs to change from "Come Hungry, Leave Happy" to something else.  Suggestions?
 

As if Sanlu does not have enough to worry about - A pathogenic bacterium has been found in milk powder that was also contaminated with melamine, according to a report in the Lanzhou Daily.  The report said that the Administration of Quality and Technology Supervision in Gansu Province issued an emergency notice on September 21, saying that Sanlu’s older and younger infant formulas contained enterobacter sakazakii as well as the toxic melamine.  Enterobacter sakazakii (E. sakazakii) is a gram-negative, non-spore-forming bacterium belonging to the Enterobacteriaceae family. It has previously been found in powdered infant formula around the world.  A 2007 World Health Organisation report, Microbiological Risk Assessment Series, No. 6, concluded "Intrinsic contamination of powdered formula with E. sakazakii can cause infection and illness in infants, including severe disease ... and death."

Enterobacter sakazakii is an uncommon, but often fatal, invasive pathogen that causes bloodstream and central nervous system infections.  The gram-negative, non-spore-forming, rod-shaped bacterium is from the family Enterobacteriaceae – the same family that E. coli O157:H7 belongs to.

While E. sakazakii has caused disease in all age groups, it is likely that immunocompromised or medically debilitated infants are more susceptible to infections with E. sakazakii.  One contributing factor in infant cases could be that the stomach of newborns, especially of premature babies, is less acidic than that of adults.  Several outbreaks traced to contaminated infant formula have occurred in neonatal intensive care units worldwide.

The same genetic strain of E. coli bacteria that sickened students at Michigan State University this month has been linked to at least eight other cases throughout Michigan, including one at the University of Michigan and five at the Lenawee County Jail.  The findings have led investigators to believe that the patients all got ill from ingesting the same contaminated food source.  So, what do two universities and a county jail have in common?

DNA fingerprinting for three MSU students matched those of patients who became sick from E. coli in Washtenaw, St. Clair, Wayne and Lenawee counties since September 8.  The Washtenaw County case was a UM student and the five in Lenawee County were inmates in the jail.
 

Being in China watching the implosion of its Food Safety system, makes one think that China is the only problem in the food world - far from it.  As I have said before, although we need to be concerned about imports, US Corporations still do a great job of poisoning our own citizens.

As an example, Tri-tip beef served at a September 6 fundraiser for the local volunteer fire department has been cited as the probable cause of an outbreak of toxic E. coli O157:H7.  At least 18 have fallen ill, four of whom required hospitalization.  Many meat-related E. coli outbreaks are traced back to ground beef, but the fundraiser served tri-tip, which has its own, lesser known, history of problems.

Meat can become contaminated with E. coli O157:H7 in many ways.  There are some regulations in place to detect that contamination and prevent tainted meat from reaching the marketplace, but tri-tip beef can fall through a dangerous regulatory loophole.  Larger cuts of meat like tri-tips are sold as ‘intact meat’ even though they are intended to be cut into smaller pieces (like steaks or stew meat).  The meat industry claims that the USDA allows it to sell contaminated intact cuts of meat, but the Sizzler case illustrates E. coli O157:H7 regulations on intact meat are ill-defined, and that’s a recipe for contamination.   It makes no sense.

Needle-tenderizing meat is not in itself an unsafe practice, but it sure can be if you’re starting off with intact cuts contaminated with a deadly pathogen like E. coli O157:H7.  Basically, tenderizer is injected into the meat muscle. If there is E. coli on the surface, the needle can carry it inside, where only heat pasteurization can kill it.  Even if the surface of the meat is cleansed, that meat is still like a Trojan horse—an apparently harmless vehicle carrying deadly bacteria into personal and commercial kitchens.  And according to the meat industry, it’s legal.   We don’t yet know how the beef in this outbreak was contaminated—we may never know.  But we do know that the both the meat industry and the USDA need reform because only clearer, stricter regulations and better oversight can prevent these tragic illnesses.

And, don't forget the three-year-old who died of E. coli in Colorado.

From a Chinese public official:

"Public confidence can only be rebuilt on merciless punishment," he said. "None of those companies lacking professional ethics or social morals will be let off."

Today, while I walked through the Temple of Heaven, Tienanmen Square, the Forbidden City and several miles of Hutongs, 13,000 Chinese children remained in the hospital with at least 100 suffering acute kidney failure. To date only four children have been reported to have died.

The government has reported that most victims are less than two years old.  In a country with a one child policy, sickening tens of thousands of babies certainly is not part of the plan.  Illnesses seem to have started in early May, but reports did not surface until after the Olympic games ended.

In Singapore, the Chinese-made White Rabbit milk sweet has been found to carry traces of melamine and is being recalled, officials there said. Recalls of Chinese-made dairy products are now under way in Japan, Malaysia, Taiwan, Africa and Brunei as well.

Butte County health officials are reporting tonight that a total of 18 people have fallen ill due to an E. coli outbreak at a fireman’s fundraiser earlier this month.  Health officials believe the outbreak can be traced to tri-tip beef served at the fundraiser in Forest Ranch.  They are still trying to determine how the meat came to be contaminated (good guess – cow shit).   Four people have been hospitalized because of the sickness, including a young girl, who was airlifted to UC Davis Medical Center in Sacramento, he said.  Two victims were released from the hospital.

My favorite quote:

“Lundberg said the annual fundraiser is a great event put on with the best of intentions. Unfortunately, something went wrong this year, he said.”
 

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

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?
 

The last few days have been filled with cries "Chinese food is unsafe - look they are poisoning babies."  Well, that certainly is true, but the same thing is happening nearby, and it is not the fault of the Chinese.  Hopefully, when I get there on Sunday afternoon in Beijing, I can get someone to pay a bit of attention. 

The Chinese aside, up a bit North from Seattle, a Manitoba infant has died from listeriosis, Manitoba's chief medical officer confirmed Thursday.  It's not known whether the case is connected to the current national outbreak linked to meat products from a Maple Leaf Foods plant Toronto, which has resulted in 17 confirmed deaths.

Food safety is a world wide concern.  According to the World Health Organization, food and waterborne diarrheal diseases are leading causes of illness and death in less developed countries, killing approximately 1.8 million people annually, most of whom are children.

The FDA said it will start considering proposals to sell genetically engineered animals as food, a move that could lead to faster growing fish, cattle that can resist mad cow disease, or perhaps heart-healthier eggs.

One wonders if they could make food safer – E. coli free beef, Salmonella free peppers, Campylobacter free milk, Listeria free chicken hot dogs – you get the picture.

Genetically engineered animals are not clones, which the FDA has already said are safe to eat. While clones are exact copies of an animal, genetically engineered animals are manipulated by scientists to bring about a change in their characteristics. In years past, this was done by breeding animals with desirable traits. But now the changes can be made directly in the lab.

Genetically engineered animals are created when scientists insert a gene from one species of animal into the DNA of another animal to reprogam some of its characteristics. For example, fish could be made to grow faster, or pigs might be re-engineered to produce less waste. Animals can also be engineered to produce substances in their milk and blood that can later be used for human drugs.

A third baby has died in connection with China's spreading scandal over tainted milk formula and more than 6,200 infants have become sick, Health Minister Chen Zhu said Wednesday.  China's quality watchdog says that its inspectors have found melamine in milk powder made by more than 20 Chinese companies.  The widening scandal is an embarrassing failure for China's product safety system, which was overhauled to restore consumer confidence and preserve export markets after a string of recalls and warnings abroad over tainted toothpaste, faulty tires and other goods.  Chen told a news conference that of the 6,244 babies that have fallen ill, 158 were suffering from acute kidney failure.
 

Sanlu, China’s biggest milk powder manufacturer, sold contaminated milk after farmers laced their produce with industrial chemicals to increase its protein content.  Chinese hospitals are fighting to save the lives of some of the 1,253 babies who have fallen sick after they were fed milk powder contaminated with an industrial chemical used to make plastic cups and saucers.  Two babies have already died from drinking the formula laced with melamine in a ploy by farmers to boost the apparent protein content of the milk that they sold to one of the best-known milk powder manufacturers in the country. Police have arrested nineteen people, including two brothers who ran a milk collection station.  And, I still have not finished packing.

According to press reports:

The children are victims of two of China’s greatest evils: greed and secrecy. Greed has contributed to poor safety: only a few years ago 13 babies died after they were fed a sub-stand-ard fake formula marketed under the Sanlu brand. The determination to stage a perfect Olympic Games may also have delayed revelation of the adulterated milk powder. Twenty-one topics were banned from Chinese media during the Olympics – eighth on the list was food safety scandals.

I do not give my talk in China until next week, but I thought I would put it up here now so my friends in China can get a early preview:

The Ladies Tea, an annual tradition at Bethany Free Will Baptist Church, was catered by the Country Cottage in Locust Grove, which is at the center of the state and local health department investigation.  One attendee has been sickened, more than 20 others "probable" says health department, after church tea attendees ate food served by Locust Grove's Country Cottage catering service.

Country Cottage catered the event Saturday, August 16.  Approximately 160 of the 200 to 250 people attending the event have been contacted. Because there was no sign-in sheet, the number of attendees is an estimation.  Because the catered event had a limited menu, it may help narrow down what food is the source of the E. coli.

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.
 

According to recent press reports, Michael McCain, president of Maple Leaf, said an investigation into a deadly bacteria outbreak linked to at least 13 deaths revealed that listeria bacterium may have accumulated in slicing equipment at the company's Toronto plant.  The bacteria may have built up "deep inside" the mechanical components of two slicing machines, even though they were cleaned frequently.  Six more deaths are being investigated.  In all, 38 cases of listeriosis have been confirmed and 20 more are suspected.

This is not the first time slicers have been implicated in a foodborne illness outbreak.  Following an investigation in Georgia, 72 cases of Salmonella Montevideo infections were reported with the onset of gastrointestinal illness between August 21 and November 15, 2006.  Investigators found that the restaurant had been closed for remodeling and reopened on August 18, 2006, and was utilizing a brand new meat slicer following the reopening.  Nineteen days after the restaurant was identified as the possible source of the outbreak, on October 25, GPHL reported that one of the swab samples collected from the new meat slicer was positive for the Salmonella outbreak strain and the slicer was immediately removed from service.

In 2007 Arby's customers were sick again with salmonella poisoning.   In the second outbreak health officials also found that roast beef was sliced on a contaminated slicing machine.  The latest salmonella outbreak happened in Moses Lake, Washington.

Sarah Palin, was she in Georgia?  According to NPR, “She's also a moose-burger-eating, snow-mobile-riding maverick who's not afraid to take on fellow Republicans she disagrees with.”  Jesse, you did not eat the moose burgers did you?

The Atlanta Journal Constitution reported that this week, while conducting voter registration drives in Ohio and Georgia, the 66-year-old civil rights leader was stricken with food poisoning.  He’s now at Northwestern Memorial Hospital in Chicago, where he was diagnosed with viral gastroenteritis and severe dehydration.  Jesse, my email is bmarler@marlerclark.com.

Hell, it could have been E. coli.

Intestinal fecal contents of recently killed birds (three ring-billed gulls, two cas-pian terns, two starlings, one cowbird, one common grackle, one crow, one mourning dove, and one mallard duck) and mammals (12 beavers, 3 white-tailed deer, 2 mule deer, 2 moose, 1 squirrel, 1 ground hog, 1 red fox, and 1 raccoon) were tested for the presence of VTEC. Only one sample was found to be positive for VTEC. An O157:H7 strain was isolated from fecal contents extracted from the intestine of a moose killed in a collision with a car.

Isaiah Peters is usually an active little boy. The 3 1/2-year-old red-headed youngster loves to kick his soccer ball around the backyard and play “Guitar Hero.” But instead, Isaiah is lying in a hospital bed in Minneapolis, where he is fighting through a painful illness, H.U.S., a complication of E. coli that can cause kidney failure. Since that time, Isaiah’s little body has withstood dialysis, transfusions, excruciating abdominal pain, IVs, catheters, pneumonia and more at the Children’s Hospitals and Clinics of Minnesota.

“All fingers are pointing to the exotic petting zoo that was in Brandon,” Jon Peters said. “Isaiah rode a camel and fed the goats there. Never would we have imagined we would be here after a silly petting zoo.” It is simply too bad this is happening again, we have seen too many E. coli cases linked to petting zoos and fairs over the years – see www.fair-safety.com.

An account to help the family has been set up at The First National Bank in Brandon. The account is titled “Welcome Home, Isaiah.”

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.

There really is very little humor in what I do.  I did, however, smile when I received a thank you note from the mother of two daughters I represented in 2006 Dole Spinach E. coli Outbreak - and this great bobblehead.

Captain Colon and His League of Fecal Fighters.