January 2015

I made the Daily Meal’s: America’s 50 Most Powerful People in Food for 2015

#43 Bill Marler, Foodborne Illness Lawyer and Attorney

An accomplished personal injury and products liability attorney, Marler has been litigating foodborne illness cases since 1993, when he represented Brianne Kiner, the most seriously sickened survivor of the Jack in the Box E. coli outbreak, creating a Washington State record for an individual personal injury action ($15.6 million). More than a lawyer, Marler has become an advocate for a safer food supply, petitioning the USDA to better regulate pathogenic E. coli, working with nonprofit food safety and foodborne illness victims’ organizations, and helping spur the passage of the 2010-2011 FDA Food Safety Modernization Act. He also helps keep us in the loop with his blog, which he updates on a near-daily basis.

I’m up from 47th in 2014, And, wedged between some interesting people this year:

#50 Adam Rapoport, Editor in Chief, Bon Appétit

#49 Ingrid Newkirk, President and Co-Founder, People for the Ethical Treatment of Animals

#48 José Andrés, Chef-Restaurateur

#47 Julie Packard, Executive Director and Vice-Chairman, Monterey Bay Aquarium

#46 Steve Spinner, CEO, President, and Director, United Natural Foods, Inc.

#45 Alice Waters, Chef-Restaurateur and Founder and Director, The Edible Schoolyard Project

#44 David Murdock, CEO, Dole Food Company

#43 Bill Marler, Foodborne Illness Lawyer and Attorney

#42 Bill Shore, Founder and CEO, Share Our Strength#41 Jimmy Fallon, Host, The Tonight Show

#40 Paul Grimwood, CEO and Chairman, Nestlé USA

#39 Pete Wells, Restaurant Critic, The New York Times

#38 Michel Landel, CEO, Sodexo

#37 Craig Jelinek, CEO, Costco

#36 Mario Batali and Joe Bastianich, Chef/Restaurateurs

#35 Dan Bane, Chairman and CEO, Trader Joe’s

#34 Danny Meyer, Restaurateur

#33 Steve Ells, Founder/ Co-CEO, Chairman, Chipotle Mexican Grill

#32 Mehmet Oz, Doctor, Author, and TV Host

#31 Eric J. Foss, CEO, Aramark

#30 Fred DeLuca, Co-Founder and President, Subway

#29 Ben Silbermann, Founder and CEO, Pinterest

#28 Dawn Sweeney, President and CEO, National Restaurant Association

#27 Jim McGovern, Co-Chair, House Hunger Caucus

#26 David C. Novak, Executive Chairman, Yum! Brands

#25 Yancey Strickler, Founder & CEO, Kickstarter

#24 Paul Polman, CEO, Univeler

#23 Bob Tuschman, General Manager and Senior Vice President, Food Network

#22 Rodney McMullen, Chairman and CEO, The Kroger Co.

#21 Irene Rosenfeld, CEO, Mondelez International

#20 Patricia Woertz, Chairman, President, and CEO, Archer Daniels Midland

#19 Donnie Smith, President and CEO, Tyson Foods

#18 Steve Easterbrook, CEO, McDonalds

#17 Pamela Bailey, President and CEO, Grocery Manufacturers Association

#16 John T. Cahill, CEO, Kraft Foods

#15 David MacLennan, President and CEO, Cargill

#14 John Mackey, Founder and Co-CEO, Whole Foods Market

#13 Barack and Michelle Obama, President and First Lady

#12 Rachael Ray, Television personality

#11 William J. Delaney III, CEO, Sysco

#10 Jeremy Stoppelman, Co-Founder and CEO, Yelp

#9 Jack Menzel and Dan Entin, Google

#8 James P. Hoffa, General President, International Brotherhood of Teamsters

#7 Indra Nooyi, Chairman and CEO, PepsiCo

#6 Howard Schultz, CEO, Starbucks

#5 Michael R. Taylor, Deputy Commissioner for Food, Federal Drug Administration

#4 Susan Neely, President & CEO, American Beverage Association

#3 Hugh Grant, Chairman, President, and CEO, The Monsanto Company

#2 Jack Sinclair, Executive Vice President, Grocery Division, Walmart

#1 Thomas Vilsack, Secretary, USDA

I listened in on the press conference today held by U.S. Senator Richard Durbin (D-IL) and U.S. Congresswoman Rosa DeLauro (D-CT) who today introduced the Safe Food Act of 2015, which would create a single, independent food safety agency.

Currently food safety oversight is split up among 15 different agencies, resulting in a patchwork where no single voice guides industry, retailers and consumers. Durbin and DeLauro introduced similar legislation in 1999, 2004, 2005 and 2007.

“The fragmented nature of our food safety system has left us more vulnerable to the risk of foodborne illness. It has too often forced citizens to go it alone in the case of outbreak,” said Durbin. “The Safe Food Act that Congresswoman DeLauro and I are introducing today would transfer and consolidate food safety authorities for inspections, enforcement, labeling, and research into a single food safety agency. That would allow us to prioritize system-wide food safety goals and targets. It would also help families navigate the differing federal, state, and local food safety agencies to get the answers they deserve.”

“Government has a moral responsibility to keep our families safe from foodborne illness,” said DeLauro. “One reason we have not been able to do so is that our food safety system is hopelessly fragmented and outdated. Consequently, lives are unnecessarily put at risk and the need for reform becomes more urgent. I am proud to join Senator Durbin in introducing this bill to ensure that we have a single person being held accountable for food safety, research, prevention, inspections, investigations and labeling. We need a commonsense, 21st century way of ensuring food safety and a single food safety agency is it.”

The Safe Food Act would:

· Transfer and consolidate food safety authorities for inspections, enforcement and labeling into a single food safety agency

· Provide authority to require the recall of unsafe food

· Require risk assessments and preventive control plans to reduce adulteration

· Authorize enforcement actions to strengthen contaminant performance standards

· Improve foreign food import inspections

· Require full food traceability to better identify sources of outbreaks

Perhaps I should apply for the first head of this new agency?

Washington Beef, LLC, a Toppenish, Wash., establishment, is recalling 1,620 pounds of boneless  beef trim product that may be contaminated with  E. coli O157:H7, the U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) announced today.

The following boneless beef product produced on Nov. 28, 2012, is subject to recall:  60 lb. bulk packs of “TRIM 65/35 (FZN)”

The product subject to recall bears the establishment number “EST. 235” inside the USDA mark of inspection.

The problem was discovered during an internal records audit by the company, which notified FSIS. Product was shipped for further processing to a single grinding facility, then on for use in hotels, restaurants and institutions in Oregon and Washington.

E. coli O157:H7 is a potentially deadly bacterium that can cause dehydration, bloody diarrhea and abdominal cramps 2–8 days (3–4 days, on average) after exposure the organism. While most people recover within a week, some develop a type of kidney failure called hemolytic uremic syndrome (HUS). This condition can occur among persons of any age but is most common in children under 5-years old and older adults. It is marked by easy bruising, pallor, and decreased urine output. Persons who experience these symptoms should seek emergency medical care immediately.

I have received quite a few comments (mostly positive) on Wil S. Hylton’s article in The New Yorker – A Bug in the System – Why last night’s chicken made you sick.

Although, I just figured out I might well be the bug!

Although the opening tagline makes my mom happy, my kids embarrassed and me blush – “A lawyer is leading the fight to keep contaminated food off the supermarket shelf” – there are a lot of people in industry, academia, government (regulatory and public health), and public advocacy that really do the heavy lifting to make our food supply as safe as it presently is.  However, we all can do much better – and we all know it.  Here are a few quotes about the use of a well placed lawsuit:

… During the past twenty years, Marler has become the most prominent and powerful food-safety attorney in the country….

… Given the struggles of his clients—victims of organ failure, sepsis, and paralysis—Marler says it can be tempting to dismiss him as a “bloodsucking ambulance chaser who exploits other people’s personal tragedies.” But many people who work in food safety believe that Marler is one of the few functioning pieces in a broken system….

… When regulation fails, private litigation can be the most powerful force for change. As Marler puts it, “If you want them to respond, you have to make them.” Robert Brackett, who directed food safety at the F.D.A. during the George W. Bush Administration, told me that Marler has almost single-handedly transformed the role that lawsuits play in food policy: “Where people typically thought of food safety as this three-legged stool—the consumer groups, the government, and the industry—Bill sort of came in as a fourth leg and actually was able to effect changes in a way that none of the others really had.” Hagen said the cost that Marler extracts from food makers “can be a stronger incentive or disincentive than the passing of any particular regulation.” Mike Taylor called litigation such as Marler’s “a central element of accountability.” …

… At least twice a month, he flies across the country to speak with advocacy groups and at food-industry events. He will not accept payment from any food company, and has turned down thousands of dollars to deliver a short lecture, only to pay his own way to the venue and present the speech for free. Sometimes, when Marler takes the stage, members of the audience walk out. At a meeting of the Produce Manufacturers Association, in the summer of 2013, he approached the lectern as loudspeakers blared the Rolling Stones song “Sympathy for the Devil.” …

… Sometimes, when Marler encounters critics who charge him with having predatory motives, he challenges them to “put me out of business.” David Acheson, a former Associate Commissioner for Foods at the F.D.A., told me, “That’s just become a bit of a trademark. He doesn’t want that.” Still, Acheson told me that he has seen an evolution in Marler. “In the early days, Bill was just on a mission to sue large food companies—he was on a mission to make money,” Acheson said. “But I think during the course of that he realized that there are problems with the food-safety system, and I think progressively, philosophically, he changed from just being a plaintiff attorney to being somebody who believes that changing food safety for the betterment of public health is a laudable goal.” Acheson added, with no small measure of distaste, “He still sues food companies.” …

I think Dr. David needs a hug.

Molly Rosbach of the Yakima Herald stepped into the tragedy that often is Listeria this morning with two stories: Listeria monocytogenes is one nasty bug and Listeria recall: How a web of oversight still couldn’t prevent an outbreak.  I had a couple of things to say:

Based on his experience with companies of all sizes, Bill Marler, a prominent Seattle attorney who has handled foodborne illness cases for more than two decades, said he wouldn’t call Queseria Bendita a bad actor, as listeria is so difficult to control.

But, “Companies that produce food have a moral and legal responsibility to produce food that doesn’t sicken and kill its customers,” he said. “So they’re responsible for what they sell.”

While food manufacturers try to keep E. coli or salmonella bacteria at bay by maintaining cool temperatures, those conditions don’t discourage listeria.

“Once it gets into a facility, it’s really hard to get rid of,” said Bill Marler, a Seattle attorney who has specialized in food safety cases for 20 years. “The problem with listeria is it grows really well in refrigerator temperatures.”

That means the bacteria could have been lurking around Queseria Bendita of Yakima since the 2010 outbreak, Marler said. He remembers the Michigan-based Bil Mar hot dog listeria outbreak, linked to several deaths in 1999, and “to get rid of the listeria, they had to dismantle the entire inside of the plant,” he said.

Listeria bacteria are present in the soil, so people can get listeriosis from almost anywhere. What counts as an outbreak is when multiple patients are sickened by strains that can be matched genetically to strains found in a particular food or manufacturer.

CDC collaborated with public health officials in several states and the U.S. Food and Drug Administration (FDA) to investigate a multistate outbreak of Salmonella Enteritidis infections. Results from this investigation indicated that bean sprouts produced by Wonton Foods, Inc. were the likely source of this outbreak.

A total of 115 persons infected with the outbreak strains were reported from 12 states. The number of ill people identified in each state was as follows: Connecticut (8), Maine (4), Maryland (6), Massachusetts (36), Montana (1), New Hampshire (6), New York (22), Ohio (3), Pennsylvania (18), Rhode Island (7), Vermont (3), and Virginia (1). The one ill person from Montana traveled to the Eastern United States during the period when likely exposure occurred.

Illness onset dates ranged from September 30, 2014, to December 15, 2014. Ill persons ranged in age from younger than 1 year to 83 years, with a median age of 32 years. Sixty-four percent of ill persons were female. Among 75 persons with available information, 19 (25%) were hospitalized, and no deaths were reported.

My take from the LA TIMES:

“Although I applaud that FSIS is setting standards for chicken parts, and doing product testing for salmonella and campylobacter, 15% is too high,” Seattle-based food-safety attorney Bill Marler told The Times.

“Like E. coli O157:H7, salmonella and campylobacter should be zero tolerance. If you want to save people and avoid lawsuits, do what FSIS and the beef industry did with E. coli O157:H7 — ban it.  Fifteen years ago, 90% of my firm’s work was E. coli cases linked to hamburger — that is now nearly zero.”

On the FSIS Press Release:

The U.S. Department of Agriculture’s (USDA) Food Safety and Inspection Service (FSIS) today proposed new federal standards to reduce Salmonella and Campylobacter in ground chicken and turkey products as well as raw chicken breasts, legs and wings. Development of these new standards is a major step in FSIS’ Salmonella Action Plan, launched in December 2013 to reduce Salmonella illnesses from meat and poultry products.

“Today, we are taking specific aim at making the poultry items that Americans most often purchase safer to eat,” said Agriculture Secretary Vilsack. “This is a meaningful, targeted step that could prevent tens of thousands of illnesses each year.”

“These new standards, as well as improved testing patterns, will have a major impact on public health,” said USDA Deputy Under Secretary for Food Safety Al Almanza. “The proposed changes are another way we’re working to meet the ever-changing food safety landscape and better protect Americans from foodborne illness.”

“Getting more germs out of the chicken and turkey we eat is an important step in protecting people from foodborne illness,” said Robert V. Tauxe, MD, deputy director of the Division of Foodborne, Waterborne and Environmental Diseases at the Centers for Disease Control and Prevention. “I look forward to seeing fewer Americans get sick as a result of these proposed changes.”

A pathogen reduction performance standard is the measure that FSIS uses to assess the food safety performance of facilities that prepare meat and poultry products. By making the standards for ground poultry tougher to meet, ground poultry products nationwide will have less contamination and therefore result in fewer foodborne illnesses. FSIS implemented performance standards for whole chickens in 1996 but has since learned that Salmonella levels increase as chicken is further processed into parts. Poultry parts like breasts, wings and others represent 80 percent of the chicken available for Americans to purchase. By creating a standard for chicken parts, and by performing regulatory testing at a point closer to the final product, FSIS can greatly reduce consumer exposure to Salmonella and Campylobacter.

FSIS’ science-based risk assessment estimates that implementation of these standards would lead to an average of 50,000 prevented illnesses annually. FSIS intends to evaluate comments for 60 days and announce final standards and an implementation date this spring. The federal register notice is available on FSIS’ website at http://www.fsis.usda.gov/wps/portal/fsis/topics/regulations/federal-register/federal-register-notices.

For chicken parts, ground chicken, and ground turkey, FSIS is proposing a pathogen reduction performance standard designed to achieve at least a 30 percent reduction in illnesses from Salmonella. For chicken parts, ground chicken, and ground turkey, FSIS is proposing a pathogen reduction performance standard designed to reduce illness from Campylobacter by at least 19 and as much as 37 percent.

FSIS plans to use routine sampling throughout the year rather than infrequently sampling on consecutive days to assess whether establishments’ processes are effectively addressing Salmonella and, where applicable, Campylobacter on poultry carcasses and other products derived from these carcasses.