getImage.gifPresident Trump seems to be spending most weekends at his “Southern White House” golfing.  I wonder if he eats the food there or heads to the closest McDonald’s or KFC?  Or, perhaps he will start using Steve Bannon as a food tester?

Jose Lambiet, the Miami Herald’s gossip columnist reported that the food at Mar-a-Lago appears to have the risk to “make America [barf] again.”

According to Jose:

Just days before the state visit of Japanese Prime Minister Shinzo Abe to Mar-a-Lago, President Donald Trump’s Palm Beach private club, Florida restaurant inspectors found potentially dangerous raw fish and cited the club for storing food in two broken down coolers.

Inspectors found 13 violations at the fancy club’s kitchen, according to recently published reports — a record for an institution that charges $200,000 in initiation fees.

Three of the violations were deemed “high priority,” meaning that they could allow the presence of illness-causing bacteria on plates served in the dining room.

According to their latest visit to the club Jan. 26, state inspectors decided Mar-a-Lago’s kitchen did meet the minimum standards.

But they had a field day with elements that could give members of the high-class club and foreign dignitaries some pause:

▪ Fish designed to be served raw or undercooked, the inspection report reads, had not undergone proper parasite destruction. Kitchen staffers were ordered to cook the fish immediately or throw it out.

▪ In two of the club’s coolers, inspectors found that raw meats that should be stored at 41 degrees were much too warm and potentially dangerous: chicken was 49 degrees, duck clocked in a 50 degrees and raw beef was 50 degrees. The winner? Ham at 57 degrees.

▪ The club was cited for not maintaining the coolers in proper working order and was ordered to have them emptied immediately and repaired.

People ask me all the time what I think the President will do with food safety in his administration.  Frankly, given how often he changes positions on nearly every conceivable topic, I have no idea where he will ultimately land on food safety.  Perhaps making the food safer at Mar-a-Lago is a start?  Or he can head back to McDonald’s or KFC?

co0e-ydwgaeebcftrump-mcdonalds-in-plane-instagram-1-640x640

 

Screen Shot 2017-03-14 at 5.18.07 PMI am finally getting through my food safety inbox and came across a letter dated a month ago from Senators, Gillibrand, Feinstein, Durbin and Blumenthal to President Trump asking for “action of food safety oversight” – namely wether the January 2017 GAO report on Food Safety – “A National Strategy Is Needed to Address Fragmentation in Federal Oversight.”

The letter highlights the lowlights of food safety – the human toll (48M sick, 128K hospitalized and 3K death) with an economic burden of some $36B.  It also highlights a discussion that has been ongoing for as long as I have been involved in food safety – namely, that the there are too many agencies working at cross purposes with very different agendas, monitoring our food supply for safety.

The letter ends with a request to work “with your Administration to create policies that promote the safety of our food supply and protect public health.”

So, Senators, did the President write you back?

Trump-McDonalds-in-Plane-Instagram-1Since taking office, President Trump has instituted a freeze on federal employees and the same on new or pending regulations.  He signed an Executive Order setting up a task force within agencies to repeal old rules.  The President has also asked for a $54B increase in military spending that will likely be offset by across-the-board cuts in agencies like the FDA and FSIS that focus on maintaining a safe food supply and inspecting food being imported.

Some would say that President Trump is not interested in food safety, or he is simply not focused on it.  I think it is the latter.  The President has described himself as a germaphobe who enjoys eating McDonald’s hamburgers and chicken from KFC.  As he told CNN: “The one thing about the big franchises; one bad hamburger, you can destroy McDonald’s.”  The President orders his hamburgers and steaks well-done even from his favorite restaurants.  He was recently recorded discussing food safety regulations as a method of reigning in trade with Japan.  The President clearly understands the economics of foodborne illness and customers, as well as food safety and trade.

According to the CDC, foodborne illnesses in the U.S. sicken 48M, put 128,000 in the hospital and kill 3,000 people yearly.  The USDA estimates the yearly loss in medical expenses, lost wages, and death at nearly $16B.  The losses to industry are staggering.  The Pew Charitable Trusts has estimated the “economic losses to industry, including farmers, are enormous, estimated at over $75B per year.”  Industry notices; the GMA reported “in 2007, the estimated cost of the peanut butter recall to one company due to Salmonella contamination was $78M.  The estimated cost to American peanut-containing product producers from the 2009 contamination of peanut butter by Salmonella was $1B.”  Consider that there are dozens of recognized outbreaks prompting hundreds of recalls and you can quickly see the enormous burden on the producers and importers of food. Much of those losses to business are not insurable, which can lead to bankruptcy and loss of employment. The public health burden and costs to consumers and the food industry when outbreaks happen need to be avoided.  This is a place where government can be a valuable partner.

Food safety regulations work when government, industry and consumers work together.  In 1993, the infamous Jack-in-the-Box E. coli outbreak linked to hamburgers sickened 600, put hundreds in the hospital – dozens with kidney failure – and four children dead.  Jack-in-the-Box barely survived after paying my clients over $100M in damages.  The beef and restaurant industry knew the time had come to embrace government assistance through increased regulation, testing and inspection.  Over the next decade, E. coli cases linked to hamburgers became a distant memory and my law firm’s bank account shrank.  Meat, regulated by FSIS, still has room for improvement – Salmonella and Campylobacter are still a persistent risk in poultry.  However, in order to continue to make progress, investments need to be made in research and technology to allow us to effectively battle a bacterial foe that you cannot see, smell or taste.  Government has a role in this.

After the 2006 E. coli outbreak linked to spinach killed five, sickened 200, and nearly decimated the leafy green industry in California, once again consumers, government and industry came together in a bipartisan manner to pass sweeping food safety legislation entitled the FDA’s “Food Safety Modernization Act.”  In essence this legislation allows the FDA to set standards – with input from consumers and industry – to be more proactive, instead of reactive to food safety risks both homegrown and imported.

While outbreaks linked to U.S. – grown fresh fruits and vegetables have declined in the intervening years, according to a recent CDC study, there has been an uptick of foodborne illness outbreaks linked to imported produce and fish.  Without more regulatory oversight, we leave our imports vulnerable to contamination – intentional or otherwise.  Required inspection and testing that makes scientific and economic sense, need to be tools in the FDA’s food safety toolbox.  They also help level the food safety playing field with trading partners.  The same is true for investing in surveillance of foodborne disease through the CDC and State Departments of Health – catching outbreaks early and finding the source helps prevent the next outbreak.

As a businessman, the President wants to know the bottom line.  With consumer illnesses costing $16B a year, and with economic losses to industry of $75B a year linked to food, investing in surveillance, technology, education, and improving governmental regulations to combat foodborne illness is wise and good for business.  Food safety is clearly an area where government works – especially in partnership with industry and consumers.  The bottom line is that spending money now has and will save money and protect the public’s health in the future.

Bill Marler has been a food safety lawyer and advocate since 1993 based in Seattle, Washington.

UnknownwallBrendan O’Connor of Gizmodo reports today that President Donald Trump intends to intensify enforcement of food safety regulations as a cudgel in international trade negotiations, according to leaked recordings of a what appears to be a phone conversation between Trump and Wilbur Ross, his nominee for Commerce Secretary.  At one point in the conversation, Trump and Ross discuss the possibility of using safety regulations on food imports as a mechanism to pressure foreign companies or governments.

TRUMP: If you look at Japan, what they do with food—they say it’s not clean enough, and you have to send it back, and by the time it comes back it’s all gone.

ROSS: Exactly. And we oughta let them know we’re gonna start playing the same game.

TRUMP: Well I think you let them know that we’re going to do that. Without saying that, you say, “We’re gonna inspect you so closely,” bomp bomp.

ROSS: Yeah. That’s the thing—not to say that it’s punitive, but in the interest of American safety.

Setting aside for a moment how wise it is to use food safety as a trade weapon, it does raise the interesting concept that the President might well be interested in safe food?

 

The Daily Meal put this out today – I have been honored to make the list over the last several years.

Bill-Marler-B-W-headshot

An accomplished personal injury and products liability attorney specializing in foodborne illness, Bill 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. It would only make sense that Marler was front and center in the recent Chipotle foodborne illness fray, representing several victims of the outbreak.

Bill Marler is the most prominent food-safety lawyer in the US. He has represented victims in nearly every food-borne illness outbreak in the US in the last 20 years, including the recent ones at Costco and Chipotle. He knows just how scary these illnesses are. Shockingly, every year, foodborne bugs sicken 48 million Americans—sending 128,000 to the hospital and 3,000 to an early grave.

So we asked him if there are any foods that he never eats. He named six.

Then we asked him if there’s a food that people avoid that is safe to eat. He named one that really surprised us.

RawMilk1. Unpasteurized (“raw”) milk and packaged juices. Unpasteurized milk, sometimes called “raw” milk, can be contaminated with bacteria, viruses and parasites. Between 1998 and 2011, there were 148 food poisoning outbreaks linked to raw milk and raw milk products in the US—and keep in mind that comparatively few people in the country ever consume these products, so 148 outbreaks is nothing to ignore. As for unpasteurized packaged juices, one of Marler’s earliest cases was the 1996 E. coli outbreak from unpasteurized Odwalla apple juice. As a result, he won’t go near raw milk or juice. There’s no benefit big enough to take away the risk of drinking products that can be made safe by pasteurization,” he says.

RawSprouts2. Raw sprouts. Uncooked and lightly cooked sprouts have been linked to more than 30 bacterial outbreaks (mostly of salmonellaand E. coli) in the US since mid-1990s. As recently as 2014, salmonella from bean sprouts sent 19 people to the hospital. All types of sprouts—including alfalfa, mung bean, clover and radish sprouts—can spread infection, which is caused by bacterial contamination of their seeds. “There have been too many outbreaks to not pay attention to the risk of sprout contamination,” Marler says. “Those are products that I just don’t eat at all.” He did add that he does eat them if they’re cooked.

RareMeat3. Meat that isn’t well-done. Marler orders his burgers well-done. “The reason ground products are more problematic and need to be cooked more thoroughly is that any bacteria that’s on the surface of the meat can be ground inside of it,” Marler says. “If it’s not cooked thoroughly to 160°F throughout, it can cause poisoning by E. coli and salmonella and other bacterial illnesses.” As for steaks, needle tenderizing—a common restaurant practice in which the steak is pierced with needles or sliced with knives to break down the muscle fibers and make it more tender—can also transfer bugs from the surface to the interior of the meat. If a restaurant does this (Marler asks), he orders his steak well-done. If the restaurant doesn’t, he’ll opt for medium-well.

BaggedLettuce_34. Prewashed or precut fruits and vegetables. “I avoid these like the plague,” Marler says. Why? The more a food is handled and processed, the more likely it is to become tainted. “We’ve gotten so used to the convenience of mass-produced food—bagged salad and boxed salads and precut this and precut that,” Marler says. “Convenience is great but sometimes I think it isn’t worth the risk.” He buys unwashed, uncut produce in small amounts and eats it within three to four days to reduce the risk for listeria, a deadly bug that grows at refrigerator temps.

UndercookedEgg5. Raw or undercooked eggs. You may remember the salmonella epidemic of the 1980s and early ’90s that was linked mainly to eggs. If you swore off raw eggs back then, you might as well stick with it. The most recent salmonella outbreak from eggs, in 2010, caused roughly 2,000 reported cases of illness. “I think the risk of egg contamination is much lower today than it was 20 years ago for salmonella, but I still eat my eggs well-cooked,” Marler says.

RawOysters6. Raw oysters and other raw shellfish. Marler says that raw shellfish—especially oysters—have been causing more foodborne illness lately. He links this to warming waters, which produce more microbial growth. “Oysters are filter feeders, so they pick up everything that’s in the water,” he explains. “If there’s bacteria in the water it’ll get
into their system, and if you eat it you could have trouble. I’ve seen a lot more of that over the last five years than I saw in the last 20 years. It’s simply not worth the risk.”

10_notomatoes_lgToday the 4th Circuit Court of Appeals affirmed the December 15, 2015, District Court dismissal of a lawsuit brought by tomato grower, Seaside Farm, Inc.  Seaside alleged that the Food and Drug Administration negligently issued a contamination warning in response to an outbreak of Salmonella Saintpaul that devalued Seaside’s tomato crop by $15,036,293.95.

According to the 4th Circuit, “the district court reasoned that FDA had broad discretion to warn the public about a contaminated food supply, and that Seaside failed to allege any statute, regulation, or policy that required FDA to proceed in a particular manner. The district court also acknowledged that contamination warnings implicate competing policy considerations of protecting the public from serious health risks and minimizing any adverse economic impact on associated industries.

On May 22, 2008, the New Mexico Department of Health notified the Centers for Disease Control and Prevention that a number of local residents had been infected with Salmonella Saintpaul. Similar reports soon arrived at CDC from Texas. After interviewing patients, CDC discovered a “strong statistical association” between the infections and eating raw tomatoes. This observation was supported by a “historical association” between Salmonella and tomatoes generally. CDC subsequently notified FDA that tomatoes were the “leading hypothosis” for the source of the outbreak. On June 7, 2008, FDA issued an updated contamination warning titled, “FDA Warns Consumers Nationwide Not to Eat Certain Types of Raw Red Tomatoes.” The contamination warning explained the nature of Salmonella Saintpaul and specified certain types of tomato as the likely vehicles for the bacteria. It also provided a list of countries and seven states, including South Carolina, whose tomatoes remained unassociated with the outbreak. The media, however, reported the contamination warning without mentioning that some tomatoes were not implicated. FDA officials also stressed the magnitude and national scope of the outbreak but likewise failed to mention any “safe” tomatoes. Eventually, the CDC accumulated enough data to trace Salmonella Saintpaul to jalapeño and serrano peppers imported from Mexico. FDA withdrew the contamination warning as a result and announced that fresh tomatoes were no longer associated with the outbreak.

According to the CDC as of April 2008, 1442 persons infected with Salmonella Saintpaul with the same genetic fingerprint have been identified in 43 states, the District of Columbia, and Canada. The number of ill persons identified in each state is as follows: Alabama (8 persons), Arkansas (21), Arizona (59), California (16), Colorado (17), Connecticut (5), Florida (4), Georgia (42), Idaho (6), Illinois (120), Indiana (21), Iowa (2), Kansas (21), Kentucky (2), Louisiana (3), Maine (1), Maryland (39), Massachusetts (31), Michigan (28), Minnesota (31), Mississippi (2), Missouri (20), Montana (1), New Hampshire (6), Nevada (14), New Jersey (16), New Mexico (115), New York (41), North Carolina (28), Ohio (10), Oklahoma (38), Oregon (11), Pennsylvania (15), Rhode Island (3), South Carolina (2), Tennessee (10), Texas (559), Utah (3), Virginia (31), Vermont (2), Washington (18), West Virginia (1), Wisconsin (13), and the District of Columbia (1). Five ill persons are reported from Canada. Four appear to have been infected while traveling in the United States; the travel status of the fifth ill person is unknown. Among the 1414 persons with information available, illnesses began between April 16 and August 11, 2008 with most becoming ill during May or June. At least 286 persons were hospitalized, and the infection might have contributed to two deaths.

So, bottom line, doing your job protecting public health is the right thing to do.

HonoreeBadgeEditors of the ABA Journal announced today they have selected MARLER BLOG as one of the top 100 best blogs for a legal audience.

HALL OF FAME: Bill Marler has consistently earned a place on our Blawg 100 list, and it’s not just because the tales of food poisoning outbreaks recounted on his blog keep us up at night. We feel he has truly proven how blogs can help lawyers with niche practices become sought-after experts.

In addition, the magazine has added 10 more bloggers to its Blawg 100 Hall of Fame, featuring the very best law blogs, known for their untiring ability to craft high-quality, engaging posts sometimes on a daily basis.  In 2012, we established the Blawg 100 Hall of Fame for those blogs which had consistently been outstanding throughout multiple Blawg 100 lists.

“For 10 years, the Blawg 100 has helped shine a light on the stunning breadth of legal topics and voices to found in the legal blogosphere,” Acting Editor-Publisher Molly McDonough said. “Journal editors have selected yet another stellar list of blogs. We hope you’ll find legal information sources in this list that are completely new to you and bookmark them for regular reading.”

HallofFame200pxV3About the ABA Journal:

The ABA Journal is the flagship magazine of the American Bar Association, and it is read by half of the nation’s 1.1 million lawyers every month. It covers the trends, people and finances of the legal profession from Wall Street to Main Street to Pennsylvania Avenue. ABAJournal.com features breaking legal news updated as it happens by staff reporters throughout every business day, a directory of more than 4,000 lawyer blogs, and the full contents of the magazine.

About the ABA:

With nearly 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

fresh-whole-turkey-2000x1125-1940x1091To avoid making everyone at the table sick, the U.S. Department of Agriculture’s (USDA) Food Safety and Inspection Service (FSIS) offers five tips for a food safe Thanksgiving:

Tip 1: Don’t Wash That Turkey.

According to the most recent Food Safety Survey, conducted by the Food and Drug Administration, 68 percent of the public washes whole turkey before cooking it. USDA does not recommend washing raw meat and poultry before cooking. Washing raw meat and poultry can cause bacteria to spread up to three feet away. Cooking (baking, broiling, boiling, frying or grilling) meat and poultry to the right temperature kills any bacteria that may be present, so washing meat and poultry is not necessary.

Tip 2: Use the refrigerator, the cold-water method or the microwave to defrost a frozen turkey.

There are three safe ways to defrost a turkey: in the refrigerator, in cold water and in the microwave oven. Thawing food in the refrigerator is the safest method because the turkey will defrost at a consistent, safe temperature. It will take 24 hours for every 5 pounds of weight for a turkey to thaw in the refrigerator. To thaw in cold water, submerge the bird in its original wrapper in cold tap water, changing the water every 30 minutes. For instructions on microwave defrosting, refer to your microwave’s owner’s manual. Cold water and microwave thawing can also be used if your bird did not entirely defrost in the refrigerator.

Tip 3: Use a meat thermometer.

The only way to determine if a turkey (or any meat, poultry or seafood) is cooked is to check its internal temperature with a food thermometer. A whole turkey should be checked in three locations: the innermost part of the thigh, the innermost part of the wing and the thickest part of the breast. Your thermometer should register 165°F in all three of these places. The juices rarely run clear at this temperature, and when they do the bird is often overcooked. Using the food thermometer is the best way to ensure your turkey is cooked, but not overdone.

Tip 4: Don’t store food outside, even if it’s cold.

Storing food outside is not food safe for two reasons. The first is that animals, both wild and domesticated, can get into food stored outside, consuming it or contaminating it. The second is temperature variation. Just like your car gets warm in the summer, a plastic food storage container in the sun can heat up and climb into the danger zone (above 40°F). The best way to keep that extra Thanksgiving food at a safe temperature (below 40°F) is in a cooler with ice.

Tip 5: Leftovers are good in the refrigerator for up to four days.

Cut the turkey off the bone and refrigerate it as soon as you can, within 2 hours of the turkey coming out of the oven. Leftovers will last for four days in the refrigerator, so if you know you won’t use them right away, pack them into freezer bags or airtight containers and freeze. For best quality, use your leftover turkey within four months. After that, the leftovers will still be safe, but can dry out or lose flavor.

If not, pay attention to the incubation periods:

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