February 2009

May 3-6, 2009 I will be in Kananaskis, Alberta giving a speech at the Canadian Institute of Public Health Inspectors (L’Institut canadien des inspecteurs en sante publique).  And, well, I just found out that I had a paper accepted at the May 10-13, 2009 7th International Symposium on Shiga Toxin (Verocytotoxin) producing Escherichia coli infections (VTEC Conference) in Buenos Aires, Argentina.  

But, I still need to be in London, England on May 12, 2009 for dinner at the House of Lords and then a speech the following day at the Royal Institute of Public Health/Royal Society of Public Health.

Busy “B.”  Getting from Canada to Argentina seems easy.  I hope there is a "red-eye" from Buenos Aires to London.

Kansas Governor Kathleen Sebelius accepted President Obama’s request to become his secretary of Health and Human Services (HHS). Governor Sebelius will inherit a department of 65,000 employees responsible for public health, food safety, scientific research, and the administration of the Medicare and Medicaid programs, which serve 90 million Americans.

The Food Safety side of HHS is the Center for Food Safety and Applied Nutrition (CFSAN). It “is responsible for promoting and protecting the public’s health by ensuring that the nation’s food supply is safe, sanitary, wholesome, and honestly labeled, and that cosmetic products are safe and properly labeled.” Here is the present Organizational Chart (click below for PDF):

If someone has her email or know who she is thinking about tapping for the head of CSFAN, pass this along:

As I have said many, many times, once again, hundreds of Americans have been sickened by poisoned food. This time it is 666 ill in 45 States put down by Salmonella in peanut butter – again. Nine people have died and it is now the largest food recall in US history. Consumers 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, 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 and we need to come up with global solutions that leverage our scientific and technological capabilities to prevent human illness and death.

Here are my “top ten” ideas to combat this recurring epidemic:

1.  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.

2.  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.

3.  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.

4.  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.

5.  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.

6.  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.

7.  There are too few legal consequences for sickening or killing customers by selling contaminated food in the US. We don’t need to impose the death penalty, as China did recently. But, we should impose stiff fines, and even prison sentences, for violators, and even stiffer penalties for repeat violators.

8.  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.

9.  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.

10. Improve consumer understanding of the risks of foodborne illness.

In America in 2009 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. It is time to change that.

My mom will be proud – my blog on food safety, foodborne illness, and food policy was honored by PR News as best law blog in the Legal PR awards for 2009 – well OK, so I have the only legitimate one for a lawyer.  Anyway, for those that have not spent much time here, the blog contains breaking news, background, statistics, insights, guest voices, and peer-reviewed literature.  Sprinkled throughout are updates on former clients, current litigation, and my busy speaking and litigation schedule.

Recent Marlerblog mentions:

“Marler is the treasured source of reporters around the globe.” Andrew Schneider, Seattle Post-Intelligencer “Guru of the nation’s food safety investigators.”

“[Marler’s] very lively blog is a must-read for food safety wonks.” Kim O’Donnel, Washington Post

“Marler’s always educational, entertaining blog.” Patricia Guthrie, Seattle Health Examiner, Examiner.com

“A tireless blogger on all things food safety.” Associated Press

“Some of the best insight I’ve come across on the implications of the melamine crisis for Chinese justice is from the blog commentary of Bill Marler.” Law and More

“Marlerblog is the best internet source for food safety information.” Eddie Gehman Kohan, ObamaFoodorama.com

The FDA’s Website is useful if you have the time to search for everything that might contain Peanut Corporation of America Salmonella-Tainted Peanuts.  My strong suspicion is that the FDA’s "simplified" PCA distribution chart will leave you scratching your head (click below to download PDF).

It is a bit hard to grasp how one company with three plants, producing only about 1% of the peanut products in the United States, could be responsible for 666 illnesses and 9 deaths in 45 states, as well as the recall of 2,750 products from over 200 manufacturers.  The cost in illnesses and deaths are shocking and will be high – perhaps 50,000,00 at least.  However, the recall costs, the cost of destroying product, lost sales, stock prices, profits, etc., of the companies recalling product and others who grow or use peanuts will be at least $500,000,000 or more if any past foodborne illness outbreaks are a guide.

When will the costs be enough to make consumers, industry and government invest to prevent the next outbreak?  Sometimes it makes one wonder how humans could evolve so far, but still seem incapable of planning for the future.

Lynne Terry of The Oregonian keeps following the Peanut Butter Trail. Here are excerpts from an article she just posted online:

Earlier this month, a Wilsonville boy put a face on the salmonella outbreak that has sickened scores nationwide. Three-year-old Jacob Hurley sat, wearing a big-knotted tie in an angry congressional subcommittee meeting, as his father, Peter Hurley, testified about his son’s illness. Jacob was sick for 11 days with severe symptoms of salmonella infection after munching on his favorite comfort food — peanut butter crackers.


"There’s no question that eating that product is what caused him to become ill," said Bill Marler, a Seattle attorney who is representing the Hurleys. Lab tests confirmed that Jacob had the same salmonella strain as in the nationwide outbreak, prompting Oregon health authorities to visit the family and test some of their leftover packages of Austin Toasty Crackers with Peanut Butter. The crackers tested positive for salmonella typhimurium, said William Keene, senior epidemiologist with the state Public Health Division.

Marler said Kellogg bears responsibility, too. "Big-name brands like Kellogg have an enormous responsibility to monitor where they’re getting their product and how that product is being manufactured," he said. "The public doesn’t know whether it’s made in China or a rat-infested or bird-infested plant in Blakely, Georgia. They’re buying a Kellogg product."

Marler, an expert in food poisoning litigation, expects the Hurley case to go to a jury trial. Although Jacob has recovered, his parents are trying to make a point, he said. "For the Hurleys, like a lot of people who wind up litigating cases, it’s less about what went on with their kid," Marler said. "It’s more that they’re upset with the system that would allow something like this to happen."

Op-ed – Atlanta Journal Constitution
By WILLIAM D. MARLER
Sunday, March 01, 2009

After a brief lull a few years ago, we’re seeing a sweeping increase in outbreaks of salmonella, E. coli and other food-borne contaminants. There are many reasons for this ugly trend: businesses more focused on sales than safety, fragmented government agencies, 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 and we need to come up with global solutions that leverage our scientific and technological capabilities to prevent human illness and death.

I’m a food-borne illness lawyer, but I would be happy to be put out of business; happier still to never have to set foot in a pediatric ICU again. Here are some ideas how:

1. 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.

2. Federal, state and local governmental departments need to learn to “play well together.” That means resources need to be provided and coordination encouraged.

3. Require real training and certification of food handlers at restaurants and grocery stores. There also should be incentives for sick employees to stay home when ill.

4. 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.

5. Reform federal, state and local agencies to make them more proactive, and less reactive. We need to modernize food safety statutes by replacing the existing collection of often conflicting laws and regulation with one uniform food safety law.

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

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

This may seem like a lot for a busy administration to chew on, but according to the CDC, every year nearly a quarter of our population is sickened, 350,000 hospitalized and 5,000 die, because of what they ate. Many are children. Eaters are also voters — and parents. Our politicians should do the math.

William D. Marler is a trial lawyer with Marler Clark in Seattle.

According to the Southtown Star Daily, twenty-one children and one adult have contracted E. coli at a Lemont day care in an outbreak that began earlier this month. The Cook County Health Department has mandated all children and adults at the KinderCare Learning Center, 12404 Archer Ave., be tested for the bacteria. Three children associated with the outbreak – linked to a lack of handwashing – were hospitalized but have since been treated and released. KinderCare has stepped up its efforts to sanitize the center, including adding enhanced cleaning, additional staff to monitor handwashing, and hiring a certified nurse.

Day care E. coli outbreaks are sadly not new.  We represented a young child sickened at a California KinderCare, a child in Texas and several children in Missouri.

Finally got wireless access at the GMA Food Claims and Litigation Conference.

Peanut Update – Texas health officials confirmed this morning that Salmonella Typhimurium has been found in peanut meal at a Texas plant owned by Peanut Corporation of America (PCA).  This plant’s product had been linked to several illnesses in Colorado.  PCA’s Georgia plant appears to be linked to the remaining ill.

Also this morning the CDC increased the numbers ill to 666 in now 45 States (5 more to go) with nine deaths.

The recall of product world-wide continues with over 2,500 products now on the FDA’s list.