I got up early this AM and was checking emails when one landed in my inbox alerting me of the passing of a real hero and friend.  I was just with him a few weeks ago when he got the NSF Lifetime Achievement Award at the Food Safety Summit.

I do not have it in me yet to process it, so I’m borrowing an article from another source and going for a walk.

Reprinted from 2014 Meat and Poultry News article:

Food safety expert David Theno became “the man who saved Jack in the Box” after he revolutionized food safety at the fast-food company and across the meat-supply chain.

When exceptional people retire, it’s often less an ending and more often a new beginning. Derek Jeter retired a few months ago from the New York Yankees and his on-field baseball career, but already he’s involved in several new baseball projects. When Jimmy Carter was voted out of office in 1980, he invented an entirely new job: active post-president. And though David Theno, Ph.D., retired from his food-safety position at Jack in the Box in the fall of 2008, he hasn’t stopped following his passion to make meat, and food, in general, safer.

But he had every intention of truly retiring, he says. He bought a small American bison calf, named it Cheyenne and planned to spend a lot of afternoons watching Cheyenne graze peacefully on acreage Theno owns in southern California.

His had been a singular, remarkable career, one of the most distinguished and consequential in meat-industry history. In the mid-1980s, while working for California-based poultry processor Foster Farms, Theno installed the first Hazard Analysis and Critical Control Point (HACCP) program in an animal protein production plant, an accomplishment so revolutionary that then-director of the Food Safety and Inspection Service, the legendary Dr. Donald Houston, took the highly unusual step of flying to California to see HACCP up close and in operation for the first time. He was among the first in the industry to recognize that line workers are key to product integrity, and at Foster he took the unprecedented step of giving every employee, regardless of job title or job description, authority to remove any product or package from the production line if they thought it didn’t look or otherwise seem right.

Later, Theno became “the man who saved Jack in the Box,” as the media dubbed him, after he revolutionized food safety, not just at the fast-food company but across Jack in the Box’s entire meat-supply chain following the tragic deaths of four children who ate E. coli O157:H7-adulterated hamburgers at Jack in the Box outlets. Just one of the fundamental changes he instituted at Jack in the Box is finished-product testing, a protocol that was wildly controversial at first – Theno remembers it being called “heresy” by some well-known industry leaders – until its proven results made finished-product testing the industry standard.

Theno and Jack in the Box were crucial first supporters of the test-and-hold protocol for ground beef that Dr. Dell Allen had developed at Excel, which was also resisted by much of the ground-beef industry until the evidence of its effectiveness was too overwhelming to ignore. And the advice and counsel he gave as a member of the US Dept. of Agriculture’s National Advisory Committee on Microbiology Criteria for Foods changed the way the department, as well as the industry, looked at food safety.

An illustrious career

A graduate of the Univ. of Illinois, where he trained under Dr. Glenn Schmidt, Theno’s career began when “food safety” at some meat plants meant sweeping out the sawdust on the floor at the end of the day. When he retired as an industry executive 30 years later, producing microbiologically safe products had become the first priority of virtually every leading meat company in the world. So, after he packed up his belongings and left his Jack in the Box office for the last time six years ago, Theno breathed a sigh of relief and prepared to take his wife, Jill, on a long-overdue six-week vacation to Europe. “It wasn’t a head fake. I really meant to retire,” he says.

Before he left for the Continent, he got a few requests from food companies to assess their food-safety plans, nothing unusual. “So, I looked over their operations, wrote reports and left it at that. I wasn’t feeling sucked in or anything,” he comments.

Theno has become a proponent of creating a law that makes food safety a fiduciary responsibility.

He came home from vacation to three Federal Express envelopes on his desk, all from people he knew who wanted his help. “I talked to Jill, we discussed what it would mean if I got back into it and she said, ‘Go for it,’” he says. “And, you know, there was also this long vacation to pay for.”

Five years later, Theno’s Gray Dog Partners, based in Theno’s home in Del Mar, Calif., is one of the leading food-safety consultancies in the business. It manages Subway’s food-safety program all over the world. It partners with Costco to develop new methodologies for protecting produce. Gray Dog, which has 20 consultants out in the field, is developing an in-restaurant HACCP program for Outback Steakhouse, and more partnerships like this are in the works.

“These are the kind of people I enjoy partnering with. They are committed to what I’m committed to – producing safer food,” he says. He notes change doesn’t have to occur overnight and adds, “You can make fundamental, effective change in increments, and you can save yourselves a whole lot of money and trouble in the process.”

Future of food safety

He has become a proponent of creating a law that makes food safety a fiduciary responsibility in the way the Sarbanes-Oxley Act set standards for corporate financial responsibility. “You should treat food safety just like you do your fiscal responsibility,” he says.

At Subway and other chains, Theno and Gray Dog have been focusing on improving the safety of fresh produce. He is also working with Costco and Taco Bell, helping develop supplier initiatives to improve fresh produce safety. “The produce business is where the beef industry was 25 years ago in terms of food safety,” Theno comments. “You’ve got a lot of variables you have to get under control and a lot of points where things can go wrong. But it’s doable.”

If he has a disappointment in his second career as a freelance food-safety guru, it’s that USDA is less of a partner in food safety than it used to be. “It’s a resource problem for them. They just don’t have the manpower like they used to have,” he says. “I hope that changes because the department has a very important role in all this. In the past, they helped lead the pack in developing food-safety methodology and technologies. Without Dr. Houston’s support in the early days, I’m not sure HACCP would have ever become what it is now.”

Theno has lost none of his enthusiasm for finding the best way to produce the safest food. His passion and expertise have changed the course of food safety. “It’s been fun,” he says.

Meanwhile, Cheyenne, who still grazes peacefully on Theno’s property, now weighs 2,800 lbs.

Thanks to Rich Jochum of BPI for the email.  

From about 2011 though the Summer of 2015 business was slower for The Food Safety Law Firm, which meant on average less people were sickened by the food they ate.  For some time I thought the food industry was actually “Putting me out of Business.”  However, the CDC’s FoodNet published in MMWR today the foodborne illness numbers from 10 states and 9 pathogens for 2016 and the incidences compared to 2013-2015[1] and the new numbers are not great and confirm why we seem busier lately.

In 2016, FoodNet identified 24,029 infections, 5,512 hospitalizations, and 98 deaths caused by these pathogens.

Screen Shot 2017-04-20 at 11.39.47 AMCompared with 2013–2015, the 2016 incidence of Campylobacter infection was significantly lower (11% decrease) when including only culture-confirmed infections. Incidence of STEC infection was significantly higher for confirmed infections (21% increase). Similarly, the incidence of Yersinia infection was significantly higher for confirmed (29% increase) infections. Incidence of confirmed Cryptosporidium infection was also significantly higher in 2016 compared with 2013–2015 (45% increase).

Among 7,554 confirmed Salmonella cases in 2016, serotype information was available for 6,583 (87%). The most common serotypes were Enteritidis (1,320; 17%), Newport (797; 11%), and Typhimurium (704; 9%). The incidence in 2016 compared with 2013–2015 was significantly lower for Typhimurium (18% decrease; CI = 7%–21%) and unchanged for Enteritidis and Newport.

Among 208 (95%) speciated Vibrio isolates, 103 (50%) were V. parahaemolyticus, 35 (17%) were V. alginolyticus, and 26 (13%) were V. vulnificus.

Among 1,394 confirmed and serogrouped STEC cases, 503 (36%) were STEC O157 and 891 (64%) were STEC non-O157. Among 586 (70%) STEC non-O157 isolates, the most common serogroups were O26 (190; 21%), O103 (178; 20%), and O111 (106; 12%). Compared with 2013–2015, the incidence of STEC non-O157 infections in 2016 was significantly higher (26% increase; CI = 9%–46%) and the incidence of STEC O157 was unchanged.

We are still seeing a significant downturn in E. coli cases linked to red meat, but are seeing cases in products like flour and soy nut butter, that leave all a bit perplexed.  We are also seeing less cases linked to leafy greens generally.  Our growth areas seem to be imported food products and restaurant-related outbreaks.

The entire food chain, both foreign and domestic, as well as government, academia and consumers, clearly have more to do to drive me into retirement.


[1] FoodNet conducts active, population-based surveillance for laboratory-diagnosed infections caused by Campylobacter, Cryptosporidium, Cyclospora, Listeria, Salmonella, Shiga toxin-producing Escherichia coli (STEC), Shigella, Vibrio, and Yersinia for 10 sites covering approximately 15% of the U.S. population.

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?



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.


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.”