After 25 years doing food litigation, I am seldom surprised by the announcement of a foodborne illness outbreak.  It was no different last Friday when the Indiana Department of Health announced a multi-state Salmonella outbreak linked to cut fruit – mainly melons sold at large retailers in several states.  People in government or in various parts of the food industry know that an outbreak is brewing weeks before the evidence becomes too overwhelming to ignore, so on more than a few occasions, when the delay between government and industry knowledge and a public announcement becomes too slow for concerned people and I get a call, text of email.

But, it is not how the information gets out that concerns me – there will always be a difficult balance in foodborne epidemiology about when to go public.  If a contaminated food product is missed by proper production and testing, we will not know of the problem until people become ill.  And, the time between consumption, illness, investigation and recall can stretch for weeks or months depending on the numbers of people sick and the numbers of jurisdictions that encompass the outbreak.  Foodborne illness surveillance will always have challenges and continuing to make the process faster and more accurate must always be the goal.

However, what continues to both concern and perplex me is the FDA’s failure to be more transparent with the public once we know the cause of the outbreak.  In the early 2000’s the USDA/FSIS had a policy that would publicly announce who manufactured E. coli O157:H7 meat but refused to announce the location of where the product was sold – retailers or restaurants.  In 2002 the ConAgra beef E. coli O157:H7 outbreak and recall sickened dozens and killed one.  Most of the illnesses happened on or around the 4thof July.  However, a couple of illnesses happened later that Fall. When asked if those sickened had heard of the ConAgra outbreak and recall they said they had, but “we bought our meat at Safeway, not at ConAgra.”

It was not until 2008 that USDA/FSIS began to routinely disclose the retail distribution lists, so retailers and consumers would know where tainted product was shipped and potentially served.  According to a recent article in the Washington Post:

In the early 2000s, the Food Safety and Inspection Service — the branch of the U.S. Department of Agriculture that regulates meat, poultry and egg products — decided to revisit its own interpretation of the trade secrets rule. During a lengthy comments period, industry groups concerned with protecting their distribution lists from competitors faced off against consumer advocates. In 2008, after several years of debate, FSIS’s final rule concluded that it would “not cause substantial harm to the competitive position of any business” to disclose retailer names.

Not surprisingly retailers of USDA/FSIA regulated products have survived disclosure – transparency has been a benefit to consumer confidence.

Conversely, 80% of the food supply – that regulated by the FDA – has remained silent and opaque leaving retailers and consumers confused and at times angry at the lack of transparency.  According to the same Washington Post article:

In a statement to The Washington Post, the FDA affirmed that it believes its disclosure measures are sufficient and blamed the lack of downstream recall information on federal disclosure rules. Federal regulations do limit the sort of information that can be released to the public. Under the Freedom of Information Act and Title 21 of the Code of Regulations, government agencies — and specifically, the FDA — are told to exempt trade secrets and commercial information from any of their releases.

“Examples of [confidential consumer information] include raw material supplier lists, finished product customer lists, trace back information, etc.,” said Peter Cassell, a spokesman for the FDA. “CCI is exempt from Freedom of Information Act requests but can be shared through certain information sharing agreements (including with other Federal agencies).”

“The FDA publicizes recall notices, including pictures of affected products, and uses social media accounts to reach consumers as swiftly as possible,” he later added. “In some cases, the FDA can release certain information that is otherwise exempt from disclosure if it is necessary to effectuate a recall. In many cases, it is most efficient for the company to directly notify its distributors, so they can take appropriate action.”

Cassell declined to make an agency lawyer available for comment or explain how the FDA had arrived at its definitions….

Let me weigh in where the FDA would not.  Let me also be blunt – there is no reason (especially when faced with an outbreak of foodborne illness) – for the FDA to claim that the retail distribution list is a trade secret.  Transparency of the food chain for products overseen by USDA/FSIS has not lead to a collapse of trade secrets.  The FDA might well learn from a ten-year history of its sister food safety agency. Chicken Little, the sky did not fall.

An egregious example of FDA’s failure to not name retailers was 2017 E. coli outbreak linked to I.M. Healthy (great name for a product with a pathogen) soy nut butter that sickened dozens, some children seriously so. The outbreak began in December 2016 and reached critical mass in April 2017.  A recall was publicly announced, but no retailers were named.  I.M. Healthy went bankrupt and was likely uninterested or unavailable to assist in the recall.  Not surprisingly, product remained available to purchase in retail settings and online several months after the outbreak and recall were announced.

Seriously, someone at the FDA needs to explain why an arguable “trade secret” trumps public health?  The chain of distribution needed a good dose of transparency – both retailers and consumers were confused – not by too much information, but from too little.

Now back to last Friday when Indiana announced a multi-state Salmonella outbreak linked to cut fruit – mainly melons sold at large retailers in several states.  Here, the Indiana State Department of Health – not FDA, nor the manufacturer – announced the outbreak.  There was no recall yet, but Indiana did name several retailers, but not the manufacturer. The first news articles targeted retailers, not the manufacturer.  Several hours later the CDC and FDA announced a 60 – person Salmonella outbreak and named the manufacturer, but not the retail chain.  Then the manufacturer posted a press release naming the retailer chain.

Confused?  Me too.

So, my advice to the mystery FDA lawyer is simple – focus on public health and what should be disclosed and what is a trade secret will become clear.  Formulations, ingredients and how a product are made are trade secrets.  Who supplied the tainted raw material, who made the tainted product and where the tainted product was sold is not a trade secret – especially during and outbreak.  Simplicity, transparency and consistency allows for a visible supply chain and one that consumers can have confidence in.  Hiding behind “trade secrets” creates confusion and mistrust – not something that is helpful in the sale of food.

The non-profit group Stop Foodborne Illness has extended the application deadline for the Dave Theno Food Safety Fellowship until June 15.

The fellowship program is a partnership with the Michigan State University Online Food Safety Program. The fellow will live in Chicago and work with Stop Foodborne Illness while completing a 12-credit online Food Safety Certificate with Michigan State University. The fellowship includes housing, benefits, salary and tuition.

Eligible applicants include recent graduates (2016-2018) with a food science or animal science undergraduate degree from a U.S. Land Grant University. The non-profit organization said preference will be given to those seeking a career in the food industry or food regulation.

About Dave Theno
At age 66, food safety pioneer Dave Theno was hit and killed by a large wave while swimming with his grandson in Hawaii on June 19, 2017.

At the time of his death, Theno was CEO of Gray Dog Partners Inc., based in Del Mar, CA. He been CEO for the food safety consulting business since 2009.

Theno made history in food safety circles after he was hired as senior vice president and chief food safety officer for Jack-in-the-Box in 1993. The San Diego fast food chain was reeling from a massive and deadly outbreak of E. coli O157:H7. Four deaths and hundreds of illnesses were blamed on the burger chain.

At Jack in the Box, Theno implemented a comprehensive Hazard Analysis and Critical Control Point (HACCP) plan. He was instrumental in requiring finished product test-and-hold protocols for hamburger. The safety measure initially irked those in the meat industry, but was later almost universally adopted.

Theno was also actively involved in numerous food industry and scientific organizations. In May 2017 he posthumously received the lifetime achievement award at the Food Safety Summit as part of the annual NSF Food Safety Innovation awards.

The Dave Theno fellow will:

  • Work in the Stop Foodborne Illness office 35 hours a week;
  • Complete two projects defined by the Stop and MSU Online Food Safety Directors;
  • Participate in weekly Safe Food Coalition calls; with possible travel to Washington, D.C.;
  • Assist the community coordinator in identified initiatives;
  • Help staff Stop’s booth at conferences, including the 2019 International; Association for Food Protection conference in Louisville, KY;
  • Attend “Creating a Food Safety Culture Executive Education” at MSU, May 21-24, 2019; and
  • Finish the MSU Food Safety Certificate coursework (12 credits).

A studio apartment, which is provided for the duration of the fellowship, is located in Chicago’s Ravenswood neighborhood. According to the organization it is wholly furnished, including full kitchen, basic cable and utilities. The Stop Foodborne Illness office is in the same building as the fellowship apartment.

In order to be considered for the fellowship, the application and supplemental materials must now be received by the organization no later than the extended deadline of June 15, 2018.

Applicants will need official transcripts from their degree granting university and three letters of recommendation (2 academic, 1 personal). Additionally, applicants will need a Statement of Intent outlining their background, professional interests, their reason for wanting this fellowship, and how they believe it will help their future career.

To review and begin the application process click here.

About STOP Foodborne Illness 
STOP Foodborne Illness is a national nonprofit public health organization dedicated to preventing illness and death from foodborne pathogens by advocating for sound public policies, building public awareness and assisting those impacted by foodborne illness.

Former FDA Deputy Commissioner of Foods and current board member for STOP, Mike Taylor, said the organization helped create a culture of food safety that has been the driver of “everything that’s happened since [1993] … It’s absolutely clear that [STOP is the] catalyst, and that change of mindset has had a transformative effect on the food system in this country.”

By Food Safety Magazine Staff

Bill Marler is the most prominent foodborne illness lawyer in America, and a major force in food policy in the U.S. and around the world. Bill’s firm—Marler Clark: The Food Safety Law Firm—has represented thousands of individuals in claims against food companies whose contaminated products have caused life-altering injuries and even death.

Bill began litigating foodborne illness cases in 1993, when he represented Brianne Kiner, the most seriously injured survivor of the historic Jack in the Box Escherichia coli O157:H7 outbreak, in her landmark $15.6 million settlement with the fast food company. For the last 25 years, Bill has represented victims of nearly every large foodborne illness outbreak in the U.S. He has filed lawsuits and class actions against Cargill, Chili’s, Chi-Chi’s, Chipotle, ConAgra, Dole, Excel, Golden Corral, KFC, McDonald’s, Odwalla, Peanut Corporation of America, Sheetz, Sizzler, Supervalu, Taco Bell, and Wendy’s. Through his work, he has secured over $650 million for victims of E. coli, Salmonella, Listeria, and other foodborne illnesses.

Bill Marler’s advocacy for a safer food supply includes petitioning the U.S. Department of Agriculture to better regulate pathogenic E. coli, working with nonprofit food safety and foodborne illness victims’ organizations, and helping spur the passage of the Food Safety Modernization Act. His work has led to invitations to address local, national, and international gatherings on food safety, including testimony before the U.S. House of Representatives Committee on Energy and Commerce, and the British House of Lords.

Bill travels widely and frequently to speak to law schools, food industry groups, fair associations, and public health groups about the litigation of claims resulting from outbreaks of pathogenic bacteria and viruses, and the issues surrounding it. He gives frequent donations to industry groups for the promotion of improved food safety and has established numerous collegiate science scholarships across the nation.

He is a frequent writer on topics related to foodborne illness. Among other accolades, Bill was awarded the NSF Food Safety Leadership Award for Education in 2010.

Link for Podcast:  https://www.foodsafetymagazine.com/podcast/ep-25-bill-marler-25-years-food-safety/ 

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In this episode of Food Safety Matters, we speak to Bill Marler about: 

  • The circumstances under which he met the late Dave Theno
  • The Jack in the Box case and how it propelled his career
  • The current listeriosis outbreak in South Africa, and how it compares to the Jack in the Box case 25 years ago
  • Why foodborne illness cases involving hamburger and Escherichia coli are no longer a huge problem
  • How the Odwalla apple juice outbreak could have been avoided
  • Whether or not Salmonella should be officially declared an adulterant
  • The responsibility of food safety: consumer vs. food industry
  • His thoughts on the ongoing Peanut Corporation of America case and whether or not Stewart Parnell’s attempts at a new trial are valid
  • FSMA, and how the new regulations can be improved
  • Blockchain, whole-genome sequencing, and other technologies that are changing the food safety for the better
  • His newfound interest in public health as it relates to food safety

Related Content
Poisoned: The True Story of the Deadly E. coli Outbreak That Changed the Way Americans Eat
20 Years of Marler Clark’s Top Foodborne Illness Cases

News Mentioned in This Episode
Deadly Listeria Strain Confirmed at South Africa Meat Plant
UPDATE: One Death Caused by Romaine Lettuce as E. coli Outbreak Spreads
New USDA Report Breaks Down Food Recalls 2004-2013; Trends in Food Recalls 2004-2013
UPDATE: Study: Fresh Produce Bacteria Can Thrive Despite Routine Chlorine Sanitizing; Official Study

Seattle U Lawyer: By Claudine Benmar, April 18, 2018

Bill Marler ’87 takes calls about foodborne illness from clients around the country. 

This year marks the 25th anniversary of a massive E. coli outbreak, which hit 73 Jack in the Box restaurants in Washington, Idaho, Oregon and California; sickened 700 people; sent 171 to the hospital; and killed four. The anniversary is a somber but noteworthy milestone for accomplished food safety attorney Bill Marler ’87.

“It’s the 25th anniversary of the outbreak, but it’s also the 20th anniversary of our law firm,” he said. Seattle-based Marler Clark, which he co-founded with fellow Seattle University School of Law alumnus Bruce Clark ‘84, was the nation’s first law firm to focus solely on helping victims of foodborne illnesses and grew directly from both attorneys’ experience with the 1993 outbreak.

As milestones like this come and go, Marler, who recently turned 60, wonders whether it’s time to retire. A few of his colleagues from the law firm’s early days have already done so.

“But I really love my job,” he said. “I get to make a huge difference in people’s lives, people who have lost their kidneys, lost their large intestines, are brain-injured, families that are facing millions and millions and millions of dollars in medical expenses, or a husband who’s never going to work again. And I get to help them. That’s a reason to get up and go to work every day.”

In the last two decades, Marler Clark has been involved in the aftermath of every major and minor outbreak of foodborne illness in the United States, working not only with victims but also with scientists and public health officials to make the food supply safer. Author Jeff Benedict, who chronicled the Jack in the Box story in his 2011 book, “Poisoned,” wrote that “no individual has had more influence on the shape and direction of food safety policy in the U.S.” than Marler.

Back in 1993, just a few years out of law school, he became the lead lawyer for the plaintiffs through an effective combination of hustle, hard work, personal connections, and media savvy.

His first E. coli client was a Tacoma family referred to him by a woman he had helped with a worker’s compensation claim. He rushed from his office in downtown Seattle to his old law school hangout in Tacoma (the law school was formerly affiliated with University of Puget Sound), the Poodle Dog Restaurant, met with the family, and convinced them to hire him.

“I went from obscurity to being sort of the legal face of the outbreak. I went from having one client to five clients to 10 clients to hundreds,” he said. Two years into the class-action lawsuit, when the end was finally in sight, Marler settled $25 million worth of cases in two days of mediation.

Most notably, he secured a $15.6 million settlement – the largest of its kind at the time – on behalf of Brianne Kiner, the Seattle girl who was the most severely injured victim of the outbreak, which was traced to undercooked hamburgers at 73 Jack in the Box restaurant locations. Just 9 years old, she spent several weeks in a coma, followed by a long and painful recovery. She still struggles with lifelong health effects such as infertility, asthma, and diabetes.

When the case concluded, Marler figured he would return to a general personal injury practice, possibly specializing in medical malpractice. But then another E. coli outbreak hit, again centered in Washington state. In 1996, a tainted batch of apple juice, from a juice company called Odwalla, killed one toddler and sickened 66 people. The families called Marler for help, thanks to his high profile in the Jack in the Box litigation.

“It really was at that point that I thought, ‘Hmm, clearly people think I know what I’m doing,’” Marler joked. “But candidly, I had worked really hard. I knew the law and I knew the medicine really well. I started wondering if you could create an entire practice around this.”

You could. Or rather, he could. Marler and Clark partnered with lawyers Denis Stearns and Andy Weisbecker to create the firm in 1998. (Both Clark and Stearns essentially switched sides, having represented Jack in the Box during the earlier litigation.) Two of the firm’s most recent hires are also Seattle U Law graduates – Anthony Marangon ’15 and Josh Fensterbush ’17. Stearns and Drew Falkenstein ’02 are of counsel at the firm.

Over the years, Marler has secured more than $600 million for victims of E. coli, salmonella, and other foodborne illnesses. While lawsuits often spur companies to make important changes – Jack in the Box developed the industry’s toughest safety standards after its outbreak – Marler knows there’s more to it than litigation. So he also devotes his energy and expertise to advocate for stronger food safety laws and regulations.

He petitioned the U.S. Department of Agriculture to better regulate pathogenic E. coli and successfully advocated for the passage of the 2010-2011 FDA Food Safety Modernization Act. He has spoken to countless industry groups and journalists, established science scholarships, and written extensively on all manner of foodborne pathogens.

What motivated Bill Marler back in 1993 is what continues to motivate him today. Many people who suffer the most from foodborne illness are children, and the money he earns for them is intended to take care of them for the rest of their lives.

Marler has three daughters of his own – one is a graduate of Seattle University and two are current students. The oldest was just an infant when he took on Jack in the Box.

“When you’re representing little children and you see how injured they are,” he said, “it doesn’t take much to look at your own kids and realize just how important your job is.”

Here is the link to the “200 Million Eggs Recalled Over Salmonella Concerns”

https://www.wnycstudios.org/story/food-recalls-and-federal-oversight

In one of the largest-ever recalls of eggs, Rose Acre Farms ordered 206 million eggs off of consumer shelves after health officials traced a salmonella outbreak to one of its farms in North Carolina. The product is the second major recall this year, with a separate warning out to consumers of romaine lettuce because of E. coli that has spread across seven states.

This year is the 25th anniversary of the “Jack in the Box” E. coli outbreak that spread across 73 stores, sickening over 700 people and contributing to four deaths. That outbreak changed how the U.S.D.A. and F.D.A. monitor food safety today and is part of the reason why the recent recalls of eggs and packaged lettuce can be seen as signs of regulatory success.

Ben Chapman, associate professor at North Carolina State University and co-host of the Food Safety Talk podcast, and Bill Marler, attorney specializing in food-borne illness, discuss the latest recall in the context of broader regulatory trends within the federal government.

 

Over the last 20 plus years I have given countless talks to food industry groups on the moral and business reasons to “not poison your customers.”  However, it has only been a handful of companies who have allowed me behind the curtain (at no charge) to talk directly, candidly and forcefully about the role of litigation as a agent of change in our food system.  Today, I had the honor to talk with the leaders at Walmart whose jobs it is to protect their customers around the world from the ravages of E. coli, Salmonella, Listeria and Hepatitis A.

A commitment to a culture dedicated to safe food lessens the chances of a food poisoning event, litigation and brand damage – all under the watchful gaze of Mr. Walton.

My friends at CIDRAP did a great job of pouring over the recent FoodNet report (Mar 23 MMWR report) on the incidence of a variety of pathogens.  I will steal a bit from their work.

Good news: Salmonella Typhimurium and Heidelberg illnesses down which mirrors decrease in positives in chicken and a decreased incidence of hemolytic uremic syndrome from 2006 to 2016 which mirrors an STEC O157 decline in ground beef over the same timeframe.

A team from the US Centers for Disease Control and Prevention (CDC) and partners in 10 states that are part of the FoodNet surveillance network reported its findings today in the latest issue of Morbidity and Mortality Weekly Report (MMWR).

The group publishes an annual FoodNet report in early spring, and this year’s report sums up lab-confirmed infections from nine pathogens for 2017, detailing changes since 2006. The pathogens are Campylobacter, Cryptosporidium, Cyclospora, Listeria, Salmonella, Shiga toxin-producing E coli (STEC), Shigella, Vibrio, and Yersinia.

For 2017, the FoodNet system identified 24,484 foodborne illnesses, 5,677 hospitalizations, and 122 deaths. Highest incidences per 100,000 population were for CampylobacterSalmonella, and Shigella.

Growing use of culture-independent diagnostic tests (CIDTs) at public health labs is a useful tool for quickly identifying illnesses that might be missed by other lab tests, leading to more accurate incidence estimates, the authors write. They note, however, that their use can complicate the interpretation of estimates and that culturing isolates is still needed to reveal subtype information and test for antimicrobial susceptibility.

Regarding the infections only found on CIDT testing, percentages were highest for Yersinia (51%), Campylobacter (36%), Shigella (31%), Vibrio (29%), STEC (27%), Salmonella (9%), and Listeria (1%). Compared with findings from 2014 to 2016, incidence for 2017 was significantly higher for CyclosporaYersiniaVibrio, STEC, Listeria, and Campylobacter.

Given that the use of CIDT panels are rising, tests more often routinely detect CyclosporaYersiniaVibrio, and non-O157 STEC, the group said. “The increased incidence of these infections in 2017 was most likely driven by the increased use of CIDTs,” they wrote.

Of subtyped Salmonella isolates in 2017, the five most common were Enteritidis, Typhimurium, Newport, Javiana, and I 4,[5],12:i:-, a variant of Typhimurium. For 2017, the incidence of Heidelberg was 65% lower than from 2006 to 2008, with a similar decrease for Typhimurium over the same period.

When the scientists looked at STEC isolates, they found that the incidence of non-O157 STEC increased significantly in 2017 compared with 2014 to 2016. Though O157 STEC held steady, the incidence decreased 35% compared with 2006 to 2008.

Watching the growing “rock melon” cantaloupe Listeria outbreak in Australia (at least 10 sick with 2 dead), brings back bad memories of the 2011 Jensen Farm Cantaloupe Listeria outbreak that sickened nearly 150 with over 30 killed.

Although food poisoning is a prevalent issue in Australia and New Zealand, both countries have taken major legislative efforts over the past decade to better regulate and enforce food and hygiene standards. Although both have similar food regulations, they have different legal regimes that treat food poisoning cases differently. In Australia, food law is dealt with mostly through tortious negligence and statutory claims. These claims were substantially altered through major tort reform in 2002, completed on a state/territory level. In New Zealand, tort law was largely abandoned in the 1970s, and food poisoning cases are mostly dealt with as a regulatory matter; with local health units investigating claims and rewarding small amounts of compensation to victims. Despite these differences in how victims pursue claims, Australia and New Zealand created a joint bilateral Food Standards Authority to develop and administer a common code of regulations, which have been incorporated into local law.

Australia’s Law and Regulatory Regime

Australia’s legal regime is similar to the United States in that there is a federal government and separate state/territory governments with their own autonomy. Historically, Australia’s tort system was made up of common law precedent and doctrines, like the US. However, following a major tort reform in 2002, Australia’s common law has mostly been overridden by statutes, especially in the areas of negligence and personal injury law.

In 2002, the various state and territory governments within Australia appointed a panel of experts to review the law of negligence, primarily to address the public’s growing concern over unaffordable and unsustainable public liability insurance premiums and damages awards. The panel sought to make key recommendations for legislative reform to tort law with the objective of limiting liability and quantum of damages arising from personal injury and death. A uniform tort scheme was suggested by the panel but was ultimately rejected by state and local governments. Instead, individualized legislation was thereafter enacted by each state/territory, which consequentially created locally nuanced law. These local nuances included slightly differing definitions for laws such as negligence, standards of care, and different food acts.

Although the uniform tort scheme was rejected, a ‘quasi-consistency’ scheme has developed, as states have generally all agreed to narrow the scope of potential liability and reduce damages to confine insurer’s exposure. The major resulting changes to the tort scheme included: (i) circumstances in which damages can be recovered negligence; (ii) the types and quantum of damage that can be recovered; and (iii) further increases in public liability insurance premiums.

Since the tort reform, there has been a major decline in personal injury claims, including a 70-80% reduction of Australian personal injury claims payments on business and household insurance policies. Advocates of the tort reform claim that it has reduced insurance premiums. Skeptics on the other hand claim that the new reform transfers the financial burden of reckless conduct from the at-fault party and its insurer onto the victim, and that there are no economic penalties for businesses that refuse to invest in injury avoidance, while those who invest are penalized by the increased costs.

The reform also covered state public liability laws that govern public liability compensation claims from insurers. As in the general tort reform, these laws differ between states, with slightly different processes required to establish public liability compensation. Compensation also differs from state to state, and damages usually include: lump sum compensation payment (up to $427,000), medical expenses, loss wages, future care requirements, and miscellaneous expenses. Further, victims can no longer receive compensation for mental anguish unless the injury was ‘serious’, which is determined by the courts.

With respect to food regulations specifically, the federal Agency in charge of food handling is administered by the Australia Department of Health and Aging, and is Australia’s version of the F.D.A. Furthermore, each state has its own authority and food act that is based mainly on federal standards. However, similar to the local nuances that have occurred in the general tort reform, certain unique legislation requirements are developing in different state/territory jurisdictions.

Currently, new legislation is springing up across Australia to make food regulation even more stringent than it already is. In Queensland and New South Whales for example, new regulations have come into force this year that include the controversial name and shame process and a mandatory accredited food safety adviser in every food-related business. First, name and shame regulation allows the local authorities to list the names of violators on its website for those premises that receive penalty notices from the local food authorities for serious food offenses within a year. Local authorities are made up of council regulatory officers who enforce the local food authorities’ mandate.

A second regulatory scheme can be seen in new amendments to Queensland’s Food Act, which include a mandatory employment of an accredited food safety adviser in every food-related business. These employed advisors will be fully trained and will have the responsibility of monitoring and training staff to ensure they meet acceptable standards. This strict legislation is still being investigated in New South Whales and is still voluntary at this point, given some concerns over whether local standards comport with federal standards. It is too early to tell how successful this legislation is as a deterrent to food violations, but it has been successful in Victoria, where businesses have been required to have such trained employees for years now.

To summarize, the 2002 tort reforms in Australia have had a major impact on food law and food poisoning cases in Australia, and although once a common law issue, food law is now codified into individualized legislations within each state/territory. Citizens can sue companies and businesses for food poisoning claims under civil liability laws, public liability insurance claims, and stator redress. Additionally, new legislation is being enacted to ensure greater compliance by local businesses to help reduce the likelihood that a business violates food codes.

Some Major Cases In Australia

Every year, Australian Government’s Department of Health and Ageing estimate that there are 5.4 million cases of food poisoning; mainly because people are eating out more, and new strains of food-borne illnesses have emerged. While most cases are relatively mild, there are near 40,000 cases with serious complications, with around 120 causing death annually. That being said, Australia was fourth in the world according to 2008 food safety rankings.

Garibaldi Case (1995): Fifteen years ago about 190 people experienced illnesses linked to eating mettwurst (a type of sausage) contaminated with E. coli O111. Twenty-three children were hospitalized, five children suffered long-term health consequences including transplants, and one child died. The victims sued Garibaldi in the Adelaide District Court for damages and for compensation from the company’s $10 million insurance package. Although most claims have settled, six remain unresolved. Two of the cases involve a disagreement about how much the settlement should be. The remaining four claims relate to children who got sick a month or two after the original cases and the insurance company is contesting damages claims because the strain they had differed slightly from the original victims. The case is adjourned until September.

The Oyster Case: Graham Barclay Oysters Pty Ltd v. Ryan (1996-7; decision 2003): A class action lawsuit was brought by consumers who had contracted Hepatitis A after eating oysters that were harvested in a New South Wales lake that was polluted by human fecal contamination. The applicants alleged that the grower of the oysters, the distributer, the local government authority, and the state government were all liable in negligence for the harm they suffered. The claimants also alleged that the distributers and growers were liable for breaching the Trade Practices Act 1974. The case made it all the way up to the High Court of Australia, which affirmed the appellate court’s finding that neither state nor local authorities owed a duty of care to the consumers. Also, the High Court found in accordance with the appellate court that the harvesting and distribution companies took reasonable care to ensure their oysters were safe, given the unreasonableness of the alternatives.

Cryptosporidium and Giardia parasites (1998): A three-month water supply contamination crisis affected Sydney and region following cases of illness caused by Cryptosporidium and Giardia parasites in some Sydney reservoirs. The final total estimated cost reported by Sydney Water Corporation was $75 million. A legal class action was taken by businesses for loss of business and one law firm reported that they took intake from a hundred individuals who believed they became sick as a result of the water contamination. All the claims have settled.

Dowdell v Knispel Fruit Juices Pty Ltd (2003): Between January and June, 1999 in South Australia, 507 cases of Salmonella Typhimurium phage type 135a (“ST 135a:”) infection seemed to be linked to the consumption of unpasteurized fruit juice sold by Nippy’s Fruit juices. The case became a class action lawsuit in the Federal Court of Australia against the juicer, the grower and the packer. Negligence and breaches in statutory duty were the main issues argued. The main statutory breaches involved provisions in the Trade Practices Act 1975. A settlement scheme was also agreed to providing a structured regime for settling various claims, supported by the juice company, without admitting fault. Over 425 claims were settled with this scheme, and the remaining claims were settled by the judge. The court found that the Defendants were negligent and were strict liable under the statutory charges. The Judge divided up the liability between the various at-fault parties including the interpretation of the insurer’s responsibilities.

Contaminated Pork Rolls in Melbourne (2003): Victims suffered food poisoning from eating pork rolls from Melbourne’ s Thanh Phu restaurant, and was one of Victoria’s biggest food poisoning outbreaks. The Victorian Supreme Court approved the agreed settlement for more than 200 people, who received compensation payouts totaling around $1 million.

The KFC Villawood Twister Case (2005): Kentucky Fried Chicken is in a court battle with two parents who are seeking $10 million, claiming that their healthy seven-year-old daughter became crippled and brain damaged from salmonella after eating a “Chicken Twister” from a KFC in New South Wales. The latest argument made by the Plaintiffs is that a certain staff at the KFC would drop chicken pieces on the floor, help themselves to food and throw chicken strips at each other as pranks. KFC is denying any links between the “Twister” and the condition of the injured girl, and also argue that there is no proof of purchase (receipt) of the twister being purchased by the plaintiffs. Furthermore, KFC contends that the father of the plaintiff told a local health official that he blamed the poisoning on another source. On a side note, this case came only weeks after other Australian KFC branches (in Miranda and West Hurstville) were given a large fine of $73,125 and convicted of 11 charges of breaches of food hygiene laws. This case is still in court being argued.

My friend, Darin Detwiler, let me post this tonight for tomorrow.

Today marks the 25th anniversary of the day the last of four young children died during the landmark 1993 “Jack in the Box” E. coli outbreak

That child was 17-month-old Riley Edward Detwiler.

I learned about the reality of this foodborne pathogen on Riley’s death bed.  When he was only a few months old, I justified being out to sea on a Navy submarine by telling myself that I was making the world a safer place for him, and I thought that I would spend the rest of my life making up lost time with him when he was older.

Riley would now be older than I was during that outbreak.  I never got to see him grow older than he appeared in the few photos and videos from so long ago.  Over the years since his death, however, I have seen news of recalls and outbreaks and deaths on a far too regular basis.  I have also seen much improvement in food safety.

We have gained new federal food safety regulations and policies at the USDA and, most recently at the FDA.  We have witnessed advancements in science and data collection, and even a whole new “culture of food safety.” We have trainings, certifications, university programs, conferences, magazines, books, and even movies that serve to inform and motivate new generations of food safety experts.

Many of the changes in food safety policies came about through the hard work of victims, families, advocacy groups, and industry leaders. Statistics and charts alone achieve little without victim’s voices.  Facts rarely motivate policymakers as much as seeing the faces and stories. I am very proud of their efforts.  I am also proud to have stood with them and before them trying to prevent other parents from looking at their family table with one chair forever empty due to preventable illnesses and deaths from foodborne pathogens.

One thing that hits me hard lately is how the faces and stories of victims from mass shootings are seemingly not enough to bring about change in terms of gun control.  While no new policies will bring back the dead, they would bring hope and an increased safety for others.  I am saddened by the thought that so many parents will live with the belief that their child’s death did not result in some element of change.

Perhaps the reasons matter not as to why parents worry about making the world a safer place for their children.  Too many homes in this country include a chair forever empty at a family table due to reasons that could and should have been prevented.

Dr. Darin Detwiler is the Assistant Dean, the Lead Faculty of the MS in Regulatory Affairs of Food and Food Industry, and Professor of Food Policy at Northeastern University in Boston.  In addition to serving as the executive vice president for public health at the International Food Authenticity Assurance Organization, he is the founder and president of Detwiler Consulting Group, LLC. Detwiler and serves on numerous committees and advisory panels related to food science, nutrition, fraud, and policy. He is a sought-after speaker on key issues in food policy at corporate and regulatory training events, as well as national and international events. Detwiler holds a doctorate of Law and Policy.

As I said in a previous post, I have been advocating this fo a very, very long time.  For Goodness Sake, Vaccinate – Against Hepatitis A.

The Detroit Health Department recommends all food establishments get their employees vaccinated.

To support this effort, the Detroit Health Department is launching a mobile vaccination clinic program to provide easy and convenient access for Detroit food establishments to vaccinate their employees.

The Department will set up clinics throughout the City of Detroit, where clusters of restaurants are located.

Restaurants can call the Detroit Health Department at 313-876-0135 to arrange for vaccination.

Southeast Michigan has seen 692 hepatitis A cases, with 564 hospitalizations resulting in 22 deaths in the last year.

Hepatitis A is a contagious liver disease that results from infection with the Hepatitis A virus. It can range in severity from a mild illness lasting a few weeks to a severe illness lasting several months. Hepatitis A is usually spread when a person ingests fecal matter — even in microscopic amounts — from contact with objects, food, or drinks contaminated by the feces, or stool, of an infected person.