Marler Blog - Providing commentary on food poisoning outbreaks & litigation

Laws

The U.S. Congress and Legislatures in most of the 50 states will all be back in session as 2010 begins. In Washington D.C., work should resume on food safety reform. To get through to the President's desk, the Senate must adopt S. 510, conference with the House, and then see the compromise bill passed by both houses.

If all that takes until spring, look for the President to sign the bill in the First Lady's new White House Kitchen Garden.

State laws are always all over the map, and 2010 will be no different. Look for some agricultural states to follow Georgia in making it a felony to knowingly ship contaminated food.

Look for several states to close loopholes that are used to peddle overpriced raw milk to an unsuspecting public while advocates push for more liberal laws so raw milk can be sold with fewer restrictions.

Regulations & Enforcement

The major regulatory decision that could come down in 2010 is the one that would make all enterohemorrhagic shiga toxin-producing serotypes of Escherichia coli (E. coli), including non-O157 serotypes, adulterants within the meaning of the Federal Meat Inspection Act (21 U.S.C. § 601[m][1]).

Seattle food safety attorney Bill Marler and some of the victims of non-O157 E. coli infections, who he represents, petitioned the U.S. Department of Agriculture's (USDA's) Food Safety and Inspection Service (FSIS) for the regulatory change. Not since President Bill Clinton's FSIS declared E. coli O157:H7 an adulterant after the 1993 Jack-in-the-Box outbreak has there been such a dramatic action out of the agency that regulates big beef.

About 2,700 state and local health agencies are the foundation of the food safety regulations and enforcement system. The Center for Science in the Public Interest has been tracking those agencies, and recently reported the number of outbreak investigations is falling and the number of investigations where the source is identified is dropping.

The investigative capacity of these important agencies is unlikely to increase during 2010, a year that will see state budgets more hard-pressed than at any time since the Great Depression. Most state and regional agencies count on their Legislatures for their budget support.

Meat Industry

As 2009 ended, Brazil-based JBS rescued Pilgrim's Pride from bankruptcy court, making its creditors whole. In doing so, it joined Tyson and Cargill in the top three of the U.S. meat industry. (See "JBS Takeover of Pilgrim's Pride Approved," Oct. 17, 2009).

Together the three behemoths control more than 80 percent of the U.S. meat market, and unlike times in the past, it is a nameless, faceless industry sector. Whether anyone in the Cargill, Tyson, and JBS line-up steps up in 2010 will be interesting to watch.

Since 2007, there's been an explosion in the number of pounds of beef recalled for E. coli O157:H7 contamination. The industry's only answer has been its petition for whole carcass irradiation without labeling. Antibiotic-resistant Salmonella showing up in ground beef brings more silence and kicking the dirt by big meat. And how about your odds of getting out of any grocery store in America with a chicken that is NOT contaminated by either Salmonella or Campylobacter or both?

With such a line-up of major issues negatively impacting the industry, some think 2010 will be the year big meat re-tools and steps forward with some new leadership.

Superbugs

Superbugs, bacteria that are resistant to normally prescribed antibiotics, are increasingly in the news. For example, late in 2009, came the report that a new E. coli strain has "emerged with rapid global speed."

Superbugs are the flip side of the coin to the low dose use of antibiotics in animal feed to promote the growth of pigs, sheep, chickens, and cattle. As long ago as 1963, British researchers linked drug resistant strains of Salmonella to antibiotics fed to cattle.

Out West last summer, people who ate ground beef produced by Denver-based King Soopers and Fresno-based Beef Packers Inc. were infected with strains of Salmonella that did not respond to normally prescribed antibiotics.

This means treatment, if possible, starts to get very costly. Longer hospital stays were required for those Colorado victims last summer, and it will cost $150 per day, per person to treat victims of ST131 if it ends up running wild throughout the third world.

Also in 2009, the late Sen. Edward Kennedy, D-MA, and Sen. Olympia Snow, R-ME, introduced the "Preservation of Antibiotics for Medical Treatment Act," which in two years would end animal use of antibiotics deemed "important to human health."

FDA, which 50 years ago approved the use of antibiotics in low doses to help animals grow faster, could conceivably impose a ban on its own. That could be on the table in 2010.

Local Food

In 2009 the local food movement in the United States picked up a major benefactor, First Lady Michelle Obama. It was not long after her interest was known, that the entire U.S. Department of Agriculture joined in with its "Know Your Farmer, Know Your Food" program.

In fact, USDA did do much more than some re-branding and re-organizing itself for a new constituency--all those small, local, and organic farmers who want to sell their goods to nearby folks.

By measures available, growth in farmers markets and in so-called Community Supported Agriculture (CSAs), the local food movement is real.‚Ä® In cities and suburbs, people love going to the nation's nearly 5,000 farmers markets, many held on Saturday mornings during the growing seasons.

And buying some "shares" from a CSA farmer in the winter can get you deliveries of a basket of fruits and vegetables all summer. Keeping your dollars flowing in your local community is almost always a good idea.

Under the Farm Bill, USDA is even going to allow some state-inspected slaughter houses to sell across state lines in 2010.

For sure, 2010 will be another year of growth for local food. Will it embrace its responsibility for food safety and come to understand that standards and regulations are in its best interest? This is a time of change and reform, and local food needs to be at the table, not sneaking out the back door.

Large unemployment throughout the country is also giving the local food movement an opportunity to be responsible in another way--getting leftovers to food banks. Just do it safely!

Vaccines

Since some states--like Texas--have made Hepatitis A vaccines mandatory for school children, there has been a dramatic disease reduction. Similar reductions might be in the offing if vaccine trials conducted in 2010 are successful.

First on the non-human front, vaccines for E. coli in cattle are going to be tested in a big way by the two companies that are out front in the research. They are Willmar, MN-based Epitopix and Canada's Bioniche Life Sciences.

The two companies should know by year-end if they have an economically viable vaccine, one that might reduce E. coli O157:H7 in cattle by 65 to 75 percent.

In human drug trials should be a vaccine against the pathogen Campylobacter jejuni, at the U.S. Naval Medical Research Center in Silver Spring and Canadian scientist Mario Monteiro. It has successfully protected against infection in monkeys and is now slated for human clinical trials.

Then there's Dr. Mahdi Saeed's vaccine for Enterotoxigenic E. coli, the bug responsible for traveler's diarrhea that has killed millions of children in the third world. The Michigan State University researcher's vaccine has such promise it was picked by Discovery Magazine as one of the top 100 stories of 2009.

Food Imports

In late 2009, the "Import Safety Commercial Targeting and Analysis Center" (CTAC) was opened by the Department of Homeland Security (DHS) to make sure food imported to the U.S. is safe.

Imported food and its safety are going to get a lot of attention in 2010. The Import Safety CTAC came out of the President's Food Safety Working Group, which is charged with advising on how to "modernize the beleaguered U.S. food safety system."

Food imports, especially fresh produce from outside U.S. borders, are coming in for attention after the past few years of spectacular growth.

In 2008, Chinese imports reached $5.2 billion, making China the third-largest source of U.S. food imports. About 41 percent of this import value was from fish and seafood, most of it farm-raised. Juices and pickled, dried, and canned vegetables, and fruit accounted for the other 25 percent.

According to the USDA, about 60 percent of all American apple juice, 50 percent of garlic, 10 percent of shrimp and 2 percent of catfish are imported from China.

A July 2009 report by the Economic Research Service of the USDA said it is often difficult to ensure that suppliers in far-flung locations operate according to the high U.S. safety standards and tight quality controls.

Traceability

The Produce Traceability Initiative is the grower-vendor answer to events like the outbreaks involving spinach and (FDA thought) tomatoes. With bar codes and radio frequency tags and ways to link all the information in the supply chain, those behind traceability want to be able to drive to the specific field, walk down the right row, and reach over and pick up whatever the problem is.

They want a system with no fuss, no muss that will prevent financially devastating recall costs and outbreaks that make more people sick. They've been at it for a couple of years now and the next important deadline is approaching in Oct. 2010 when it is supposed to be possible to read the labeling involved.

The industry wants FDA to enforce the so-called "one up and one down" requirements of the PTI, but not impose anything that's not already in the plan. FDA opted to end 2009 without putting out its own traceability regulations on the table.

On occasion, FDA Commissioner Margaret Hamburg has been critical of volunteer food safety efforts. So the tension of birthing fresh produce traceability is sure to carry into the 2010.

It will be the subject on a Jan. 21-22 summit conference in Denver being organized by the Colorado Springs-based Traceability Institute LLC.

"The reason we set up this summit is we see a huge need by vendors of the traceability system for some kind of communication within the whole supply chain," Cristian Barcan, managing partner and founder of the Traceability Institute told the industry publication, The Packer.

American Diet

There was a lot of talk during all the health care debating about "bending the cost curve." With too many Americans unable to even bend over, it's doubtful we are going to bend that cost curve at anytime soon and what they call the "Standard American Diet (SAD)" is a major contributor to this sad reality.

In 2010, we are predicting more attention to the American diet than ever before. It will come from the food industry, consumer groups, and government. The problem is clear.

The SAD is high in animal fats, high in unhealthy fast food, high in saturated and hydrogenated fats, low in fiber, high in processed foods, low in complex carbohydrates, and low in plant-based foods.

The medical community often points out that people in countries that eat the reverse of the SAD--high in plants, high in complex carbohydrates, and high in fiber--are experiencing lower cancer and heart disease rates by far.

I just received this email:

I'd like to subscribe to your email list so that I can get
the latest updates on all food illness recalls & outbreaks. This is so
that I can check my cuboards/fridge/freezer & know what not to buy or
eat in order to keep myself & my family safer. Thanks for keeping up
on this & emailing this info. as it comes available.

Although, I appreciate the email and have signed her up for updates (see to the right), it is a bit nuts that people look here for information that in not existing at the CDC or FSIS. 

Elizabeth Weiss and Peter Eisler of the USA Today continue on this month’s hard look at the school lunch program in this morning’s “Schools could learn lessons on food safety.” It is a good read. It is concerning, however, that the fast food industry is held up as a model of food safety for our kid’s lunches. But as I said to Ms. Weiss:

The standards have worked, by all accounts. Seattle-based food safety lawyer Bill Marler, who has been involved in almost all the major food safety lawsuits of the past 15 years, says he hasn't sued McDonald's since 1994 for a company-based E. coli illness and can't think of anyone else who has.

Although, I found all the experts smart and attractive, I found only one smart, attractive and right on the money:

Personally, I do believe that, given the amount of food that is purchased by the federal and state governments for and by schools, smart governmental policy might well make a positive impact on food safety, food quality and food that is in fact healthful and sustainable. Just look at the negative ones (e.g. corn policy) for a bad example of government policy - even bad policies work - in bad ways.

The USA Today’s Op-ed, “Our view on food safety: Who is USDA’s 1st client, the public or the industry?” proves my point of what governments can do when they are a dominate player in the food and regulatory market. Here is just part of the Op-ed:

-- The USDA buys meat for the school lunch program from the lowest bidder among those certified to meet USDA standards. But at least one certified bidder — Beef Packers Inc. of Fresno — has recalled tainted meat twice this year and earlier was suspended from the school lunch program three times.

-- The USDA oversaw the two Beef Packers ground beef recalls this year but allowed some meat produced within the recall window to go to the federal school lunch program anyway.

-- The USDA helps egg producers by buying "spent hen" meat from hens past their egg-laying prime and passing it on to the school lunch program. The chicken is so unappealing that Campbell Soup stopped using it more than a decade ago.

-- The USDA does not enforce a law that requires that school cafeterias be inspected twice a year to prevent unsafe practices, even though state and local health authorities fail to do this in more than a quarter of all schools. The law provides no penalties, but it does require schools to give inspection reports to anyone who asks. Couldn't the USDA ask, and post the results online? Alerting parents might be more effective than penalties.

No doubt part of the reason for USDA's laxity is its dual mandate to regulate the agriculture industry while also promoting it. A similar conflict of interest in air safety regulation was eliminated years ago after it was identified as a contributor to plane crashes.  The same should be done with food safety. The USDA's record suggests that it doesn't quite grasp the idea that its most important client is the public it's supposed to protect, not the industries it oversees.

Makes a bit too much sense.

Today the FSIS published the RETAIL CONSIGNEES FOR FSIS RECALL 068-2009. This was the recall of 312 pounds of Canadian Ham by Associated Grocers of Maine. The recall consisted of 16-ounce packages of "SUPER TRIM, Shurfine, IMPORTED, COOKED HAM, WATER ADDED, 98% FAT FREE." Each package bears the establishment number "141" inside the Canadian seal of inspection and a Sell by date of "10JA24."

The ham products were produced on November 25, 2009, and distributed to retail establishments in Maine, New Hampshire and Massachusetts.

Thankfully Kim Archer of the Tulsa World Herald is adding to the slow roll of information on this outbreak and recall – “Owasso beef linked to E. coli.” Here is some clarified and newer information:

Nineteen sickened, so says the CDC

The E. coli outbreak — considered a Class 1 recall because the health risk is high — has sickened at least 19 people, said Arleen Porcell-Pharr, a spokeswoman for the federal Centers for Disease Control and Prevention in Atlanta. She could not provide further information about the severity of the illnesses.

Only three restaurant chains received the steak

The recall did not include products shipped to retailers but is limited to products sold to Moe's, Carino's Italian Grill and KRM restaurants in Colorado, Iowa, Kansas, Michigan, South Dakota and Washington State, National Steak and Poultry said. KRM Restaurant Group is the parent company of 54th Street Grill & Bar, which operates 15 locations in Missouri, Kansas and Illinois.

Bombshell - National Steak and Poultry product tested positive for E. coli O157:H7

The USDA verified those dates, adding that source material for the company's chopped steak product produced Oct. 12 that had tested positive for E. coli O157:H7 had mingled with products produced on the other dates.

Federal officials began investigation December 11

Federal officials began investigating the E. coli outbreak Dec. 11, according to the USDA's Food Safety and Inspection Service. The Owasso plant's beef recall was issued Christmas Eve.

And, as I said:

Bill Marler, a Seattle-based food safety advocate and attorney, said that "when it involves E. coli O157:H7, just issuing a recall isn't remotely enough action to protect consumers." "The recall was issued on a holiday, with illnesses across the country and only a vague reference to meat being shipped to restaurants nationwide," he said. Federal agencies and the company "must know which restaurants it went to, and the public deserves to know, too."

According to recent press reports, a statement from National Steak and Poultry and discussions with various state health officials, Colorado has confirmed that at least one person in that state was sickened there in November but wasn't hospitalized. Iowa and Kansas each confirmed one illness. A Washington State resident, a woman in her 60s, was infected while visiting Nebraska. She was hospitalized, but since released and is at home now. There were two cases of illnesses at, as yet unnamed, restaurants in South Dakota. One in Minnehaha County, the other in Brookings County. The State Epidemiologist says two people in South Dakota ordered steaks from restaurants and got sick with E. coli. It happened in November and both have both recovered. We are now waiting only on Michigan and the CDC.

According to National Steak and Poultry and the FSIS, the products now being recalled include various sizes of the company's "Boneless Beef Sirloin Steak," "Boneless Beef Tips," "Savory Sirloin Tips," "Bacon Wrapped Beef Fillet," "Beef Shoulder Marinated Tender Medallions," "75 percent Boneless Beef Trimmings," "Beef Trimmings,” "Beef Sirloin Philly Steak," "EGN Boneless Beef Sirloin Steak," "EGN Boneless Beef Sirloin Tri Tip Steak," "KRM Boneless Beef Sirloin Steak," "Carino's Boneless Beef Outside Skirt Steak," "Carino's Boneless Beef Outside Skirt Steak Pieces" and "Moe's Beef Steak."

National Steak and Poultry has confirmed that the recall is limited to beef products sold primarily to the Moe's, Carino's Italian Grill, and KRM restaurants (KRM Restaurant Group operates Jeremiah Johnson's and nine locations of the 54th Street Grill) in the six states.

After the events of the last few days, I am thinking twice about traveling to Europe and the Middle East in a month to speak at a food safety conference. Not that I am particularly concerned about being a target of foreign terrorism myself, although I do find the process that you have had to endure since 9/11 to board a plane bothersome. The lines, having to take your shoes and jacket off, the one baggie/three liquid ounce rule, do dive me a bit nuts. However, it is watching the pat down of the white haired grandma or the three year old taken out of line that makes me wish I could personally meet Osama in a dark cave – just for a few minutes.

Now today there has been a second scare of a possible bomb on the same Northwest Airlines flight that a passenger tried to set on fire on Christmas day. Today’s scare, however, was the result of a passenger who refused to come out of the bathroom because he was sick with food poisoning (airline or airport food anyone?).

Apparently, the pilot reported a "belligerent and uncooperative" passenger who had spent more than an hour in the bathroom as the flight neared Detroit. Authorities said the passenger was Nigerian petroleum engineer who became unhappy when he was ordered to his seat one hour before landing, as required under new in-flight rules following the attempted Christmas day bombing of the same flight by another Nigerian citizen. Upon landing, officials gave an "all clear" message after interviewing the Nigerian passenger and determining he was, indeed, ill.

This whole event made me start thinking both about terrorism and food poisoning (no, not the bio-terrorism issue again). The horror of 9/11 that started the hassle that has become travel left 2,793 innocent people dead. Since 9/11, if you believe the CDC food poisoning data of 5,000 deaths per year in the United States, over 40,000 people have died because they ate food. Although you cannot directly compare the loss of 2,793 innocents to terrorism on one dark day, the loss of 40,000 since then from eating food should be sobering to us all.

I hope the Nigerian petroleum engineer is feeling better today.  See AP story below:

In September 2004, Quantum Foods, a beef processor based in Illinois, voluntarily recalled 406,000 pounds of hamburger patties and steak after public health officials linked the meat to four E. coil illnesses among customers of Applebee's Neighborhood Grill & Bar locations in Colorado. The recalled products were produced June 23 and 24 and distributed nationwide to restaurants, military institutions and retail stores (where it went will sound similar soon)

According to the U.S. Department of Agriculture's Food Safety and Inspection Service, Applebee's purchased about 80,000 pounds of the suspect meat from Quantum Foods. Overland Park, Kansas-based Applebee's International Inc. said investigations by the company and federal officials and the Colorado Department of Public Health had found no more E. coli cases linked to the 1,629-unit chain.

Also in 2004 we sued Applebee's on behalf of Sloan Ross, a 19-year-old Lakewood, Colorado resident who contracted an E. coli infection after eating a tri-tip steak at an Applebee's restaurant in Lakewood. The lawsuit was filed in Jefferson County District Court.

On Christmas Eve (two days ago) the Food Safety and Inspection Service (FSIS) issued a recall of 248,000 pounds of “beef products” from Oklahoma-base National Steak and Poultry. The recall also came with this warning:

FSIS became aware of the problem during the course of an investigation of a cluster of E. coli O157:H7 illnesses. Working with the Centers for Disease Control and Prevention (CDC) and state health and agriculture departments, FSIS determined that there is an association between non-intact steaks (blade tenderized prior to further processing) and illnesses in Colorado, Iowa, Kansas, Michigan, South Dakota and Washington.... Each package bears a label with the establishment number “EST. 6010T” inside the USDA mark of inspection, respective case codes cited above, and packaging dates of “10/12/2009,” “10/13/2009,” “10/14/2009,” or “10/21/2009.” These products were shipped to restaurants nationwide.

Thus far, FSIS, CDC, State Health and Agriculture Departments and the locations where the steaks were sold have been silent as to where the recalled product was sold – grocery stores or restaurants, and if so, which ones? Interestingly, in a 2004 Tulsa World News article, the following were listed as customers of National Steak and Poultry:

Applebee's International Inc., Tulsa-based Camille's Sidewalk Cafe, Don Pablo's Mexican Kitchen, Taco Bueno Restaurants, Ihop Corp. and Wal-Mart Stores Inc. NSP's steady growth during the past few years came partially from diversification into new industries, [David] Albright said, particularly retail grocery stores such as Wal-Mart and contracts with branches of the military.

Since no one is officially talking, the 2004 customer list might look a bit different today, but we simply do not know - But, we should.  As I said earlier:

… consumers have no information as to what states the tainted steaks were shipped or what retail outlets or restaurants received it. National Steak and Poultry has this information at its fingertips, FSIS should have access to it as well, and it is unconscionable that they have not made it available to the public, …

This recall is the tenth so far in 2009. The FSIS policy of identifying retailers that received recalled products continues to appear to be getting a hit-or-miss application. At times, retailers and restaurants are identified on the same day as a recall, and on others, not at all.

We know where we shop or where we had a steak. If we or restaurants are told where the contaminated steaks that has been recalled were sold, someone could go right to the freezer to see if there is any of the product, …

Someone should step up. Perhaps lightening does not strike twice, but it would be nice to let your customers know if it did or did not.  Last time, Applebee's was a bit pissed about being sued:

Applebee's said it had not contacted the four customers who fell ill. "Not surprisingly in today's litigious society an out-of-state trial lawyer has already filed a lawsuit. We don't believe a complicated legal process is the best way to resolve any guest concern," the company said.

One way to "resolve any guest concerns" would be to offer to pay for the medical bills of the customer BEFORE you get sued (Applebee's did not do it last time).  Let's see what the restaurants do this time.

The Christmas Eve Recall of E. coli-tainted steaks by National Steak and Poultry, that have sickened people in several states in yet as unnamed restaurants, made me think a bit more about the problems the meat industry and the FSIS has had over the last sixteen years (post JITB) in dealing with E. coli O157:H7 on and in whole muscle meat - specifically, needle-tenderized steaks.  It does have a bit of history as these slides from Minnesota show:

Since then there have been several additional E. coli outbreaks linked to needle-tenderized steaks.  Here was a recall of over 400,000 pounds.  It is likely to have sickened dozens at restaurants in at least one state.  Here was a recall in 2007.  And, another recall, with illnesses, from 2008.  Please, do not forget the outbreak and recall linked to Sizzler in 2000.

So, what is FSIS's official position?  You will like this from 2006 from the FSIS website:

Q. Does FSIS test the mechanically tenderized products for E. coli O157:H7?

A. FSIS does not test the mechanically tenderized beef for E. coli O157:H7 at this time. Such raw products are non-intact beef products, however, and thus would be adulterated if contaminated with E. coli O157:H7. In Q&A #1 in attachment 1 to Directive 10,101.1, states that FSIS intends to sample non-intact beef products other than ground beef in the future.

In FSIS Notice 51.09, issued in July 31, 2009, the USDA announced its intent to start testing bench trim, i.e., the trim generated post-slaughter in cutting the carcasses into primals and subprimals. Before then, testing of trimmings was focused on trimmings generated from cutting the carcass prior to the final rail. This change was prompted by the Nebraska Beef and other recalls involving intact cuts from which trimmings had been generated and that ended up in ground beef, thus adulterating. FSIS Notice is here: http://www.fsis.usda.gov/OPPDE/rdad/FSISNotices/51-09.pdf

Here is the specific mention in the Notice at p. 2:

NOTE: If an establishment produces bench trim from steaks or roasts that are non-intact or are to be made non-intact (e.g., they have been or will be needle tenderized), a finding that the bench trim is positive for E. coli O157:H7 would evidence that the steaks or roasts are also positive and thus adulterated. However, the establishment may have a supportable basis for distinguishing the steak or roast from the bench trim. For example, if the establishment applies an antimicrobial treatment to the steaks or roasts before tenderization, but not to the bench trim, the establishment may be able to support that the positive applies only to the bench trim.

To its credit, this was the first time that the agency ever started to connect (duh!) that if trimmings tested positive, the “intact” cuts from which the trimmings came might be positive too.

As for the policy statement that first distinguished between intact and non-intact, and identified needle-tenderized meat as NON-intact (and thus subject to zero-tolerance), that can be found here: http://haccpalliance.org/alliance/ecolibeef.pdf

Our friends in the meat industry lobbied to have needle-tenderized steaks excluded from the E. coli O157:H7 policy, based on this research.  Here is interesting and ongoing research on the issue of heat-inactivation of O157 in needle-tenderized steaks, and the risk that such steaks are perceived as being intact and thus won’t be cooked to 165 degrees.

A blog post my law partner, Denis Stearns did about the JBS recall discusses the intact vs. non-intact issue pretty thoroughly, with citation and quote from the Model Food Code that first made the distinction.

So, the solution?  Here is a portion of a speech I gave in Washington DC a few years ago:

This leads me to the final, and likely most controversial issue facing this room today: Should primal cuts and boxed beef contaminated with E. coli O157:H7 (or for that matter any pathogen) be considered adulterated?

This is both a complicated and simple issue. One that we all have had first-hand experience from the now infamous Kreifall v. Sizzler and Excel case. In part that case was fought over the desire of the meat industry to hide from liability on behalf of the victims of their contaminated product. But more to the point, an appellate court decided that an intact cut of meat is in fact adulterated, if it is contaminated with E. coli O157:H7 and the seller knew it was to be further processed, in that instance "needle tenderized" in the restaurant.

A little more history. The intact/non-intact distinction was first announced in a July 19, 1999 FSIS policy statement that the meat industry had long pushed as a way of deeming O157 an "adulterant" only in ground beef and other non-intact meat not "further processed" in a federally-inspected facility. This was only a "policy statement" but has since been treated as if it was a rule. This was further elaborated on by FSIS in an October 7, 2002 policy statement issued in response to the ConAgra outbreak and recall. Notably, what was never clarified was whether this "rule" was really meant to apply to meat that was intact when it left a meat plant, or instead, meat that only reached a consumer as intact. As such, the meaning of "further processing" was never explicitly said to apply to processing that happened at retail. Meanwhile, the meat industry has consistently operated under the assumption that O157 can be on anything that is intact when it leaves a meat plant. Indeed, in the last several years, meat processors have started using disclaimer statements to introduce meat that is known to be possibly contaminated with O157 into commerce.

There should either be a zero tolerance policy or not. But as it currently exists, the non-intact meat rule is the exception that swallowed the rule; it is a loophole you could drive a caravan of trucks through. This issue needs to be resolved. Producers, retailers and consumers need to know the score.

So, zero tolerance or not?  Merry Christmas.

According to an FSIS Press Release, National Steak and Poultry, an Owasso, Okla., establishment, is recalling approximately 248,000 pounds of beef products that may be contaminated with E. coli O157:H7, the U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) announced today.

FSIS became aware of the problem during the course of an investigation of a cluster of E. coli O157:H7 illnesses. Working with the Centers for Disease Control and Prevention (CDC) and state health and agriculture departments, FSIS determined that there is an association between non-intact steaks (blade tenderized prior to further processing) and illnesses in Colorado, Iowa, Kansas, Michigan, South Dakota and Washington. FSIS is continuing to work with the CDC and affected state public health partners on the investigation. Anyone with signs or symptoms of foodborne illness should consult a physician.

The products subject to recall include:

* 4-ounce “NATIONAL STEAK AND POULTRY BONELESS BEEF SIRLOIN STEAK,” with an identifying case code of “SC68408.”
* 6-ounce “NATIONAL STEAK AND POULTRY BONELESS BEEF SIRLOIN STEAK,” with an identifying case code of “SP680608.”
* 8-ounce “NATIONAL STEAK AND POULTRY BONELESS BEEF SIRLOIN STEAK,” with an identifying case code of “SC68808”
* 9-ounce “NATIONAL STEAK AND POULTRY BONELESS BEEF SIRLOIN STEAK,” with an identifying case code of “SC68908.”
* “NATIONAL STEAK AND POULTRY BONELESS BEEF TIPS,” with an identifying case code of “69108.”
* “NATIONAL STEAK AND POULTRY BONELESS BEEF SIRLOIN STEAK” with an identifying case code of “XXSP68008.”
* “NATIONAL STEAK AND POULTRY SAVORY SIRLOIN TIPS” with an identifying case code of “XX69008.”
* 5-ounce “NATIONAL STEAK AND POULTRY BACON WRAPPED BEEF FILLET,” with an identifying case code of “23508.”
* “NATIONAL STEAK AND POULTRY USDA SELECT BEEF SHOULDER MARINATED TENDER MEDALLIONS” with an identifying case code of “23289.”
* “NATIONAL STEAK AND POULTRY 75% BONELESS BEEF TRIMMINGS,” with an identifying case code of “33575.”
* “NATIONAL STEAK AND POULTRY BEEF TRIMMINGS,” with an identifying case code of “36545.”
* “NATIONAL STEAK AND POULTRY BEEF SIRLOIN PHILLY STEAK,” with an identifying case code of “88008.”
* 4-ounce “EGN BONELESS BEEF SIRLOIN STEAK,” with an identifying case code of “680425.”
* 7-ounce “EGN BONELESS BEEF SIRLOIN TRI TIP STEAK,” with an identifying case code of “69725.”
* 9-ounce “EGN BONELESS BEEF SIRLOIN TRI TIP STEAK,” with an identifying case code of “680925.”
* 7-ounce “KRM BONELESS BEEF SIRLOIN STEAK,” with an identifying case code of “680715.”
* 9-ounce “KRM BONELESS BEEF SIRLOIN STEAK,” with an identifying case code of “680915.”
* 12-ounce “KRM BONELESS BEEF SIRLOIN STEAK,” with an identifying case code of “680215.”
* 8-ounce “CARINO’S BONELESS BEEF OUTSIDE SKIRT STEAK,” with an identifying case code of “130874.”
* “CARINO’S BONELESS BEEF OUTSIDE SKIRT STEAK PIECES,” with an identifying case code of “13074.”
* “MOE’S BEEF STEAK,” with an identifying case code of “78027.”

Each package bears a label with the establishment number “EST. 6010T” inside the USDA mark of inspection, respective case codes cited above, and packaging dates of “10/12/2009,” “10/13/2009,” “10/14/2009,” or “10/21/2009.” These products were shipped to restaurants nationwide.

OK, I have to ask the obvious question - which restaurants?

Food Safety News, the web-based newspaper that covers all things food safety, today released the second part of its 2009 Food Safety Naughty and Nice list. The web-based newspaper’s “Naughty” list was published yesterday and included food safety missteps, missed opportunities, and downright dirty deeds. But it won’t be all coal in Food Safety stockings this year – the “Nice” list is full of good ideas and hard work, which will certainly mean lots of (very safe) treats for the following:

• Rep. Rosa DeLauro and Sen. Kirsten Gillibrand for being consumer champions and persistent advocates of food safety reform.
• Food & Drug Administration Commissioner Margaret Hamburg for improving public access to information, including “Warning Letters” and 483 Reports.
• Secretary of Agriculture Tom Vilsack for USDA’s new outreach programs, like “Know your farmer, know your food.”
• New York Times writer Michael Moss for his Pulitzer-worthy article on the dark origins of ground beef and the terrible impact of E. coli O157:H7.
• The quick work of the U.S. House Energy and Commerce Committee, whose members worked quickly and got their hands on incriminating email traffic between the PCA executives, who took the Fifth Amendment when called to testify.
• President Obama for setting up the Food Safety Working Group.
• The public, for an outpouring of support for WSU’s Common Reading Program (hat tip, Food Democracy Now).
• Sen. Dick Durbin for being the driving force behind food safety legislation in the Senate and the HELP Committee for passing S. 510 out of committee with bipartisan support.
• The makers of Food, Inc, who introduced the country to the underside of food production, and made a very watchable – if frightening – film about it.
• Michele Obama, for planting a kitchen garden at the white house, and getting kids involved in (very) local food and for getting a local DC farmer’s market through the red tape.
• FDA for getting a guilty plea by Mark McAfee of OPDC to criminal charges of misbranding raw milk and selling across state lines as "pet food."
• Marion Nestle for, among other things, her persistent and common sense critique of how junk food and soda is marketed to children.
• Mike Taylor and Don Kraemer at FDA for boldly putting public health ahead of Gulf Coast oyster industry profits.
• That consumer and public health groups have joined with produce growers and food processors and retailers to support FDA reform legislation, making its passage possible.
• Dedicated writers whose excellent articles gave insight and context to food safety issues: Lyndsey Layton of the Washington Post for her piece on Linda Rivera’s struggle with E. coli O157:H7 from cookie dough, Peter Eisler, Elizabeth Weise, and others of USA Today for their reporting on school lunches, and Nick Grube of the Daily Triplicate for his three-part series on Mari Tardiff’s struggle to recover from the Campylobacter infection and ensuing Guillain-Barre Syndrome she got from drinking raw milk.
• Food Bloggers – Simple, Good and Tasty, Cold Truth, Ag and Food Law, Civil Eats, Grist, Weaversway, Food Politics, Ethicurean, La Vida Locavore, Obamafoodorama, Food Shield, efoodalert, Fanatic Cook, Fresh Talk, Center for a Liveable Future, Chuck Jolley, Food Law, Buy Safe Eat Well and Barf Blog.

Make your comments over at www.foodsafetynews.com.

After much thought and consideration, here is the Food Safety News Naughty list for 2009:



• Stewart Parnell, President of Peanut Corporation of America, for asking for nearly $1 million from his bankrupt business for his own criminal defense fund after shipping peanuts his own tests showed were contaminated with Salmonella that sickened over 700 and killed at least nine. (See "PCA Executives To Divide $875,000," Dec 11, 2009)
• President Obama for NOT appointing a new permanent U.S. Department of Agriculture Under Secretary for Food Safety. ALSO NAUGHTY: USDA Secretary Tom Vilsack for making excuses about it. (See "FSIS Remains Leaderless," Oct. 16, 2009)
• Some raw milk, small and sustainable agriculture advocates who confused the entire food safety debate by making and circulating false claims about the bills. It really is about food safety, and is not a gigantic conspiracy by Monsanto to wipe out organic and backyard farms! (See "Small Ag Organizes to Amend Senate Bill," Nov. 17, 2009)
• FDA's Office of Criminal Investigations and the U.S. District Attorney in Georgia for moving so slowly with the criminal investigations of the Peanut Corporation of America and its executives, including Stewart Parnell. (See "One Year Later, Still no Charges for PCA," Nov 07, 2009)
• President Obama and Vice-President Biden for ordering undercooked hamburgers for the Press Corps at a DC restaurant with less than stellar inspection reports.
• Washington State University for removing Michael Pollan's "Omnivore's Dilemma" from the Common Reading Program.
• The FDA for caving to political pressure and backing down on oyster regulations. (See "Under Pressure, FDA Puts Oyster Policy On Hold," Nov 14, 2009)
• The Senate for being too slow on health care reform to pass meaningful--and decades overdue--food safety legislation before the Holidays.
• Weston A. Price Foundation for more denial of outbreaks and giving consumers false information about raw milk safety.
• FDA for its failure to control ridiculous health claims like Kellogg's claiming that Cocoa Krispies are a "Smart Choice" because it "helps support your child's immunity." (See "Do Krispies Boost Kids' Immune Systems?" Nov 01, 2009)
• J. Patrick Boyle of the American Meat Institute for trying to dynamite the Senate food safety bill even though it doesn't have anything to do with the meat industry.
• State public health department officials attending the Interstate Shellfish Sanitation Conference in October who put industry profits ahead of public health.
• Rep. Charlie Melancon for declaring the death of 15 people a year is not too high a price to pay for a U.S. Senate seat in an oyster growing State. (See "Under Pressure, FDA Puts Oyster Policy On Hold," Nov 14, 2009)
• Secretary Vilsack and White House for trying, in the name of free trade, to roll over Rep. Rosa DeLauro's efforts to assure that the US does not permit poultry processors from shipping raw poultry meat from the US to China for processing and shipping back to the US for sale until USDA has determined that China's inspection program is equivalent to ours. (See "Deal Reached on Poultry Imports," Sep 27, 2009)
• FDA Commissioner Margaret Hamburg for urging Congress to give the Agency authority to reduce the intensity of inspections if they don't get all the money they ask for.
• The FDA staff that keeps appealing to consumer advocates, "don't set us up to fail," when consumer advocates push for more inspection. They never say, "help us get the law and resources we need to protect people."‚Ä®

This list is a compilation of submissions from the Food Safety News publisher, staff, readers, and food safety experts.   The Nice List will be up Thursday.

Well, it is that time of the year again, but this year I turned over the responsibility of putting together Santa's list to my friends over at Food Safety News.  Apparently, the list became so long that it is being divided into two lists - one naughty and one nice.  The naughty one will run Wednesday and the nice one will run Thursday.  Tune in at www.foodsafetynews.com.  By the way, here was my list from 2008:

Naughty

- Nebraska Beef – For suing a church and once again allowing meat tainted with E. coli O157:H7 into the marketplace, causing an outbreak and recalls in over 7 states.

- Organic Pastures – For selling raw milk across state lines, against the law.

- Chinese Government – For their handling of the melamine crisis. Reports of illnesses only began to surface after the Olympics, when many were ill before.

- Aunt Mid’s Produce, for refusing to reveal the supplier of E. coli-tainted lettuce, which Aunt Mid’s distributed.

- USDA/FSIS – For not closing the intact meat loophole in E. coli regulation and for not posting open meat inspection records.

- Westland/Hallmark - For slaughtering and selling downer cows.

- FDA – For the stealth reversals on animal antibiotics and mercury in fish.

- Senator Dean Florez - For sponsoring SB201, the “dirty” raw milk bill, that would have left a large and dangerous loophole in raw milk regulation.

Nice

- Governor Arnold Schwarzenegger – For vetoing SB 201

- Minnesota Health Department – Team Diarrhea helped solve the salmonella/tomato/pepper mystery as well as the raw frozen chicken entrees making people sick.

- Fresh Express - For a clean outbreak record, donating a healthy sum to research, and sponsoring a technical conference on E. coli in leafy greens.

- Bioniche - For the Development of an E. coli vaccine. We hope it works!

- Food Safety agencies for using social media to get the word out – we’re glad to see you on twitter.

- ConAgra - For inviting me to Omaha to talk to its Food Safety Committee.

- The members of the press who write about food safety – here are a few: Stephen Hedges of the Chicago Tribune, Annys Shin of the Washington Post, Andrew Martin of the New York Times, Elizabeth Weise and Julie Schmit of USA Today, Kent Garber of US News and World report, Phil Brasher of the Des Moines Register. And, the food bloggers: The Ethicurian, Haphazard Gourmet Girls, Efoodalert, foodconsumer.org, barfblog, and foodsnark.

Given my past Salmonella lawsuits against ConAgra in 2007 and Peanut Corporation of America (PCA) in 2009 for poisoning about 700 each - with PCA killing at least nine, it might come as somewhat of a surprise that I would receive today two cans of peanuts from Virginia.  Interestingly, the cans came in an unmarked box with no note on who the sender was.  Now, thoughts on consumption?

Next, I suppose someone will send me a gallon of raw milk?  Or, perhaps some sprouts and raw oysters?

I had a great time chatting with Shari for her post today - "Simple Good and Tasty - Bill Marler: Taking on E. coli, Big Ag, Raw Milk, Conspiracy Theorists, and the USDA - Continued."  I wish we all had more opportunity to talk about the issues of food safety and sustainability.  I encourage you to read it.  Certainly, some, perhaps many, will not agree with all, or most, of my comments, but I come to them honestly.

I had a great time chatting with Shari Danielson of the blog, Simple Good and Tasty, for what is going to be a two-part expose into the inner workings of the mind of trial lawyer/wannabe politician/food safety advocate/blogger – “A Conversation with Bill Marler: Taking on E. coli, Big Ag, Raw Milk, Conspiracy Theorists, and the USDA.”

As part one shows, and as my wife and friends remind me too often, I am candid, at times, to a fault. Here are a few lines:

… He writes a daily blog about his work, and his entries are refreshingly un-lawyer-like. He is an entertainingly straightforward writer with a witty and wicked sense of humor….

… He can also be acerbic, confrontational, and sarcastic….

… I was not surprised to read that Marler is generally reviled by industrial food giants….

… At the same time, Marler is also hated by some sustainable, organic, local foodies for his lawsuits against family farms, most of which sold contaminated raw milk, and his support for federal food-safety legislation. To them, he is Goliath, towering menacingly over mom–and-pop farmers struggling to survive….

… Attorney Marler and I engaged in two extensively detailed phone conversations plus an e-mail exchange. The extent of his accessibility and openness surprised me; no one screened my calls; no one asked for my credentials. He was very direct, even blunt, as well as extremely articulate, wry, patient, and very, very likable. His favorite phrase seems to be “the reality is,” and after talking to him, I understand why he uses it so often. He struck me as being acutely motivated to find out what is real, or as close to real as the cold, hard, scientific data will allow. He’s a stickler for information and research. And when there are gaps in the data, he fills them with images of sickly children, mothers on kidney dialysis, and paraplegic ex-dance instructors….

Shari caught me at an unusual moment over the last few weeks/months/years – I was in my office – as opposed to being in some city somewhere either suing some corporation or talking food safety. Regarding food safety, specifically the balance between Big Ag and small farmers, as I have said too often: “In 17 years handling foodborne illness cases, I have never sued a farmers market, and, for the most part the “mom and pops” that I have sued have been raw milk dairies, that have poisoned and sickened their customers."  That is the reality.

What we need is a sustainable AND safe way of feeding an ever-expanding (numbers not waist line) population. I struggle with that idea a lot and write about it perhaps too often on my blog. However, it is more complex than Monsanto is evil and raw milk is good. We really need to figure out how to safely feed the world in a way that sustains our planet that also works in the reality of a global, capitalist economy.  The great thing is that there is a passionate discussion going on (only by bloggers?) about how our food is produced – what are the risks and benefits? I see my role (perhaps self-appointed) as challenging beliefs and making sure that the victims of the cost/benefit analysis are not forgotten.

I love the fact that she also caught me on my verbal tick “the reality is.” All in all, she hit my nail right on my head. Tune in tomorrow.

Well, it is that time of the year.  Here is one perspective:

I suppose I need to do a recap of 2009 and a look forward into 2010.  I will focus on the food safety side of the equation.  Any ideas?

I just got the below email tonight.  I deleted identifying information to protect the dairyman's identification.

I've been following your blog ever since our unfortunate involvement in the raw milk business in 2006. I've found it to be an excellent information source. We've talked in the past, as you might recall. We no longer are involved in producing raw milk products, nor will we ever be.

What people need to realize with E-coli is that it doesn't take very many cells, to make a person deathly ill. And it's in manure, that's a fact, it's not a matter of if someone will get sick from raw milk it's just a matter as to when. And it appears that the person has 3 possible outcomes, 1) their immune system gets them through it, very painful. 2) They survive but have lifetime health issues, HUS etc. or 3) Death. This is why I will never produce raw milk products for commercial sale ever again.

We now produce a very nice pasteurized _____ Guernsey yogurt that you might like to try, it's available at the _____ Market on _____, also _____ Market.

As an ending comment, have you noticed how lax the media has been on the latest E-coli outbreak? According to press release, 3 people have been sickened from e-coli in raw milk from the Dungeness farm in Sequim, WA and not a peep, from the health department or mainstream media television etc. We had one confirmed incident, with another possible that didn't require hospitalization and we had helicopters over our house for 3 days. With the seriousness of what E-coli is, I would think the health professionals and media would want to educate and warn the public as much as possible when an incident occurs.

Thank you, _____

Several weeks ago I served on the USDA/FSIS Petition Number 09-03: Petition for an Interpretive Rule Declaring all enterohemorrhagic Shiga Toxin-producing Serotypes of Escherichia coli (E. coli), including Non-O157 Serotypes, to be Adulterants Within the Meaning of 21 U.S.C. § 601(m)(1).  To date, there has only been a response that the Petition was received.  USDA/FSIS, it is time to act.

Just a few weeks ago, the New York Times reported “2 Executed in China for Selling Tainted Milk:”

China executed two milk producers on Tuesday for selling more than three million pounds of contaminated milk products in connection with a food-safety scandal that killed six infants, shocking the country last year. More than 300,000 children were also sickened after consuming milk products contaminated with the industrial chemical melamine. The scandal caused panic among Chinese parents, weakened the nation’s dairy industry and provoked a global recall of Chinese-made dairy products. The authorities described the two men who were executed, Zhang Yujun and Geng Jinping, as among the biggest culprits of the scandal. Mr. Zhang was found guilty of selling more than 1.3 million pounds of tainted milk powder from July 2007 to August 2008, and Mr. Geng was convicted of selling more than 1.9 million pounds of contaminated product.

Now, yesterday, the Times reports that “China Arrests 3 for Selling Tainted Milk Powder:”

The Chinese police arrested three people on Tuesday, accusing them of selling milk powder contaminated with melamine, the same toxic chemical that was blamed last year for killing 6 children and sickening over 300,000 others in one of the country’s worst food safety scandals. The three men, all of whom worked for Jinqiao Dairy Company in north China’s Shaanxi Province, were accused of producing and selling toxic food, according to China’s official Xinhua News agency. Investigators said the milk powder was confiscated in November, before it could reach stores. Although the contaminated milk powder did not reach stores this time, the case is likely to raise new concerns about the country’s food safety system. This is the third consecutive year that regulators have caught food producers selling goods that were apparently intentionally doctored with melamine.

I admit, I am not a fan of the death penalty - for a lot of reasons.  The one reason, however, that really drives my opinion - as it relates to food poisoning cases - is how oddly punishment is meted out.  To think about how two low-level milk brokers get bullets to the backs of their heads in China, but executives in the United States sit comfortably at home tonight after being responsible for sickening, paralyzing or killing hundreds, without any criminal responsibility, is beyond me.

We have had the E. coli guide for awhile and are in the process of finalizing the Salmonella guide.  Any suggestions?  Click on picture to download:

On September 18, 2006, the California Department of Health Services (CDHS) opened an investigation of a possible outbreak of E. coli O157:H7 infections after receiving reports of two patients who had been hospitalized with HUS.  One was culture confirmed as infected with E. coli O157:H7. Interviews revealed that both patients had consumed unpasteurized cow milk sold by Organic Pastures in the week prior to the onset of illness.

In the following days, four additional cases of E. coli O157:H7 were identified. All of the additional cases had consumed raw milk or raw cow product sold by Organic Pastures. Isolates of the E. coli O157:H7 cultured from the five culture-positive patients had indistinguishable “genetic fingerprints” as determined by pulsed-field gel electrophoresis (PFGE) testing. These PFGE patterns were new to the national PulseNet database. In other words, the pattern associated with all of these children was unique, and had not been seen before in conjunction with any other outbreaks of E. coli O157:H7. In addition, the PFGE pattern differed markedly from the patterns associated with the outbreak of E. coli O157:H7 associated with Dole fresh-bagged baby spinach that had peaked a few weeks prior to these illnesses.

CDHS conducted an epidemiological and environmental investigation of the cluster of illnesses. A review of 50 consecutive E. coli O157:H7 cases reported to CDHS from October 2004 to June 2006 revealed that 46 of 47 cases asked about raw milk consumption reported consuming no raw milk. In contrast, five of the six patients in the cluster being investigated reported definite consumption of Organic Pastures raw dairy products. The sixth denied consuming the raw milk, but his family routinely consumed Organic Pastures raw milk during the suspected time frame.  Two of the children developed Hemolytic Uremic Syndrome.  This is the video of one of the children in the hospital:

The California Department of Food and Agriculture conducted an environmental investigation. As part of the investigation, fecal samples were collected from dairy cows at Organic Pastures. E. coli O157:H7 was isolated from five of the samples, although the PFGE patterns differed from the pattern associated with the outbreak. Testing of Organic Pastures product revealed abnormally high aerobic plate counts and fecal coliform counts. CDHS ultimately concluded: “the source of infection for these children was likely raw milk products produced by the dairy.”

Only in a law firm that represents victims of food poisoning would there be a Christmas Tree with stuffed Salmonella and E. coli as ornaments.

Wishing everyone a happy and healthy holiday season.

Unilever United States, Inc., in cooperation with the U.S. Food and Drug Administration (FDA), is conducting a nationwide voluntary recall of all Slim-Fast® ready-to-drink (RTD) products in cans, due to the possibility of contamination with Bacillus cereus, a micro-organism, which may cause diarrhea and possibly nausea and/or vomiting. The probability of serious adverse health consequences is remote.  The products were sold in stores nationwide.

Product Description:

The products are packaged in paperboard cartons and contain four, six or 12 steel cans that are 11 FL OZ (325 mL) each. Individual cans are also sold in certain retail outlets. The recall involves all Slim-Fast® RTD products in cans, regardless of flavor, Best-By date, lot code or UPC number. A listing of all RTD recalled products is attached to this press release.

No other Slim-Fast® products are affected by this recall. No Slim-Fast® powdered shakes, meal bars, or snack bars are affected by this recall.

The recall was initiated after the company conducted quality testing on Slim-Fast® RTD products in cans. Out of an abundance of caution, the company is recalling all RTD products in cans that are currently in distribution centers, on-shelf or in back rooms in retail outlets or in consumers’ homes. The company is in the process of identifying and correcting the production issue, and will resume production and shipment of the product when the issue has been addressed and corrected.

List of Recalled Slim-Fast® Ready-to-Drink Products in Cans

This morning’s papers across the United States are covered with paralyzed, former dancer, Stephanie Smith’s battle against food giant, Cargill. Cargill’s hamburger, sold at Wal-Mart, nearly killed Stephanie with Hemolytic Uremic Syndrome, and has left her, with brain damage, with failing kidneys, with no bowel or bladder control, and facing a life confined to a bed or a wheel chair. Despite her hard work, Stephanie will not dance again. As I type this in my kitchen, my three daughters are helping my wife decorate the Christmas tree. Like you, I cannot imagine seeing one of them in Stephanie’s condition – from eating a hamburger.

What makes E. coli O157:H7 truly and decidedly deadly is its very low infectious dose and how relatively difficult it is to kill these bacteria. Unlike Salmonella, for example, which usually requires something approximating an “egregious food handling error, E. coli O157:H7 in ground beef that is only slightly undercooked can result in infection.” In fact, in recent studies, cooking per the directions on the boxes of the type of hamburger that Stephanie ate, simply do not guarantee that the cook has cooked the E. coli O157:H7 (a.k.a., cow shit) out of the burger.

As few as twenty organisms have been said to be sufficient to infect a person and, as a result, possibly kill them. And unlike generic E. coli, the O157:H7 serotype multiplies at temperatures up to 44° Fahrenheit, survives freezing and thawing, is heat resistant, grows at temperatures up to 111° Fahrenheit, resists drying, and can survive exposure to acidic environments.

And, finally, to make it even more of a dangerous threat, E. coli O157:H7 bacteria are easily transmitted by person-to-person contact. There is also the serious risk of cross- contamination between raw meat and other food items intended to be eaten without cooking.

Indeed, a principle and consistent criticism of the USDA E. coli O157:H7 policy is the fact that it has failed to focus on the risks of cross-contamination versus that posed by so-called improper cooking. With this pathogen, there is ultimately no real margin of error, and the cost of error can be death. It is for this precise reason that the USDA has repeatedly rejected calls from the meat industry to hold consumers primarily responsible for E. coli O157:H7 infections caused, in part, by mistakes in food-handling or cooking. See Federal Register and FSIS Directive.

In an outbreak involving Cargill subsidiary, Excel Meats, The Wisconsin Supreme Court in Kriefall v Excel called it as it saw it:

“The E. coli strain that killed Brianna and made the others sick is a “deleterious substance which may render [meat] injurious to health.” There is no dispute about this. Thus, under the first part of 21 U.S.C. § 601(m)(1), meat that either “bears or contains” E. coli O157:H7 (the “deleterious substance”) is “adulterated.” That E. coli O157:H7 contamination can be rendered non-“injurious to health” by cooking thoroughly, as discussed below, does not negate this; Congress used the phrase “may render,” not “in every circumstance renders.” Moreover, if the E. coli bacteria is not considered to be “an added substance,” because it comes from some of the animals themselves and is not either applied or supplied during the slaughtering process (although we do not decide this), it cannot be said that the E. coli strain “does not ordinarily render [the meat on or in which it appears] injurious to health.” Accordingly, meat contaminated by E. coli O157:H7 is also “adulterated” under the second part of § 601(m)(1).

It is time for Cargill, the Meat Industry and the USDA/FSIS to step it up. It is time to prevent the next Stephanie. It is also time for me to help with Christmas.

The Story of Stephanie Smith Captivated a Nation

Stephanie Smith, the twenty-two year old Minnesota dance instructor left paralyzed by a burger tainted with E. coli filed suit today against Cargill, who produced the contaminated meat. Ms. Smith, whose “The Burger that Shattered Her Life” profile in the New York Times was emailed all over the country, covered by hundreds of media outlets and galvanized legislators to change food laws, attempted mediation with the company, but was unable to come to a fair agreement with them. The lawsuit was filed on behalf of Stephanie’s guardian, William R. Sieben, in the United States District Court for the District of Minnesota by Bill Marler of the Seattle foodborne illness law firm Marler Clark, and by Jardine, Logan and O’Brien of St. Paul.

“I have handled foodborne illness cases since the Jack in the Box outbreak nearly seventeen years ago, and I have never seen someone sickened this severely and survive,” said Ms. Smith’s attorney, Bill Marler. “This young woman has been on a horrifying and unimaginable journey just to regain basic motor and communication skills. She has lost the ability to walk, to dance, to have a family, to work or care for herself. She is tied to a wheelchair and a pharmacy of medications to address all the medical issues she struggles with. She will likely need multiple kidney transplants. I don’t think it’s possible to adequately convey in a sentence or two the massive challenges Stephanie has faced and continues to face.”

After eating a hamburger produced by Cargill in September 2007, Stephanie became ill and was diagnosed with an E. coli infection. She rapidly deteriorated and was determined to have hemolytic uremic syndrome (HUS), a complication of E. coli that causes kidney failure. In Stephanie’s case, she also began having seizures, which lead to a coma, where she remained for three months, on a ventilator and dialysis. When doctors were able to bring her out of the coma, the full extent of the injury to her brain, organs, and abilities began to be apparent.

Stephanie has spent 2 years in rehabilitation, both inpatient and at home. She is still in a wheelchair, where she will likely remain. She will require constant care and medical attention for the rest of her life. Her medical bills—already more than two million dollars—will continue to add up to tens of millions of dollars.

We are filing suit on behalf of Stephanie Smith, the young dancer profiled in the New York Times, against food giant Cargill in Federal Court.  Here is a video of her story:

In early October the New York Times profiled Stephanie Smith, the 22-year-old former dance who ate a hamburger in 2007, suffered severe Hemolytic Uremic Syndrome and subsequent brain and kidney damage. She was hospitalized for nine months. She is in ongoing rehabilitation. She now is wheelchair bound, unable to care for herself, unable to have children and is facing kidney transplants. Her medical bills to date are nearly $2M. Her future needs are nearly incalculable. Her losses break your heart. Dancing was Stephanie’s life. Because of a Cargill hamburger, her life is forever changed

The New York Times also identified Cargill’s failings in attempting to produce a product that was even close to being reasonably safe. The Cargill hamburger was sold at Wal-Mart’s throughout the country, sickening dozens along with Stephanie in 2007.

I spent the last two days in Minneapolis with Stephanie, her family and guardian meeting with Cargill, its lawyers and insurance company to try and resolve Stephanie’s claim against Cargill. We were unable to do so. A lawsuit is now her only option.

One moment at the mediation will be forever seared in my mind. Stephanie wanted to meet with Cargill’s representatives. She wanted to tell them what their hamburger did to her life. However, when the time came to meet, Stephanie was not feeling well – many of the medications she needs to take on a daily basis make her nauseous. Even being pale and lightheaded, she was determined to meet.

As she and I waited for the meeting, Stephanie suddenly vomited – multiple times. I begged off the meeting and helped clean-up Stephanie and the law office. Stephanie, however, was even more determined to meet. What both she and I did not know was that while she was vomiting she had also voided her bowels and bladder. I am not sure why I did not notice it, but Stephanie’s excuse – she feels nothing – very little – from the waist down.

Stephanie still had her meeting.  I wonder if Cargill noticed.

Washington State Department of Agriculture News Release: Dec. 2, 2009

Three recent E. coli infections in Washington have been linked to drinking raw, unpasteurized milk. As a result, the Washington state departments of Health and Agriculture are reminding consumers of the potential health hazards of these products.

The patients all report drinking raw milk produced by the Dungeness Valley Creamery in Sequim. No E. coli has been found in samples from the dairy's current batch of milk, but during an investigation at the dairy, WSDA found the same bacteria that caused one of the illnesses.

While most strains of the bacteria Escherichia coli (abbreviated as E. coli) are harmless, others, including E. coli O157, produce a toxin. Toxin-producing E. coli infections may cause severe diarrhea, stomach cramps and bloody stool. Symptoms generally appear three to four days after exposure, but can take as long as nine days to appear. Anyone experiencing these symptoms should contact a health care provider.

Each year, the E. coli strain found in this investigation causes about 100,000 illnesses, 3,000 hospitalizations and 90 deaths in the United States. The infection sometimes causes hemolytic uremic syndrome, a serious disease in which red blood cells are destroyed and the kidneys fail. Infants, children, pregnant women, the elderly and those with compromised immune systems are especially at risk.

Raw milk is riskier than pasteurized milk because it hasn't been heated to kill harmful bacteria. Pasteurization kills the bacteria in raw milk that can cause illness. Besides E. coli, raw milk can also contain other potentially serious or life-threatening bacteria that have caused illness outbreaks in the past. These include Salmonella, Campylobacter and Listeria.

Retail raw milk is legal to sell and buy in Washington, but there are serious potential health risks. Consumers should read the warning label on the retail raw milk container carefully and ask their retailer to verify the milk was produced and processed by a WSDA-licensed operation.

My hero, Barb Kowalcyk.  Please listen to her story and her fight for Kevin’s Law: