Marler Blog : Food Poisoning Lawyer & Attorney : Bill Marler : Marler Clark

Raw milk, for its proponents, brings images of grandpa’s idyllic farm – Bessie being milked as the cats meow around her legs. For the FDA and state and local health officials, raw milk brings up a different image: people sickened – mainly children – sickened by E. coli O157:H7, Campylobacter, Listeria or Salmonella.

For me personally, raw milk generates mixed images. Growing up on a farm, milking cows and consuming raw milk in the 1970s is one image. Thirty plus years later, however, my mind is drawn to images of children sickened by drinking raw milk. These children were sickened by bugs that we did not know existed in the 1970s. Each and every one of the parents who bought or served the raw milk thought that they were doing something good for their child. They believed that the “organic,” “natural,” “fresh,” and “raw,” nature of raw milk meant that it had properties that would be good for their child, not bring them to death’s door.

Presently, raw milk cannot be sold across state lines for human consumption. However, there have been multiple instances where raw milk producers have violated the law directly or have sold the milk as animal food knowing that humans were likely consuming it.

In-state raw milk sales are limited to about a dozen states, with most states limiting raw milk sales to direct farmer to consumer transactions. Many of the states that allow these direct sales are quick to point out the exceedingly low price of pasteurized milk, touting the high price a farmer can get for raw milk as a method of “helping the small, family farmer” – a laudable goal I might add. This goal, however, is not without risks to the consumer.

Over the past several years, I have represented several families of children whose parents purchased raw milk directly from the farmer. The children came away with E. coli O157:H7 bacteria-mediated Hemolytic Uremic Syndrome, months of hospitalization, hundreds of thousands of dollars in medical expenses, and millions of dollars in risk of future complications – including end stage renal disease and the need for multiple kidney transplants.

Some states allow “cow-shares” or, as I call them, “cow condos.” This is where non-farmers “buy” a portion of the cow (and its milk) and attempt to get around any law banning the sale of raw milk. Again, states rationalize allowing this ownership fiction as another way of supporting the cost of maintaining the “small, family farmer” – also, a laudable goal.

I currently represent a woman in California who “purchased” raw milk as part of a “cow-share” – albeit, an illegal one. The milk she consumed was contaminated with Campylobacter and she subsequently developed Guillain-Barre Syndrome. She was hospitalized for months, much of the while dependent on a ventilator. She is now, in essence, a quadriplegic. Her past medical bills are nearly one million dollars. Her cost of future care is in the tens of millions of dollars.

There are also a handful of states that allow retail (grocery store) sales of raw milk and raw milk products. This is capitalism at its finest. Raw milk in retail sells for about eighteen dollars per gallon. Organic pasteurized milk sells for less than half of that. Farmers want to sell their raw milk to a larger market as efficiently as possible and there is demand from consumers who would rather shop at their favorite market than drive to the farm or own a “condo cow.” In short, selling raw milk in a retail setting is the raw milk farmer’s Holy Grail. Even retailers love it, seeing as how it creates a consumer draw and has a nice mark-up.

I have represented (and still represent) victims of E. coli O157:H7 cases linked to raw milk purchased (some illegally) in retail settings. In Missouri, one consumer purchased raw goat milk that was being sold illegally – the consumer did not know that the sale was illegal. This sale led to the consumer’s child suffering severe Hemolytic Uremic Syndrome, being hospitalized for a month, and spending weeks on dialysis to save his life. He now faces a lifetime of risks that may likely cost millions of dollars.

In California, E. coli O157:H7-tainted raw milk sold in small “health food” retail outlets sickened several children. Two children developed severe Hemolytic Uremic Syndrome. Both spent over a month in the hospital, both on dialysis and one on a ventilator. Medical bills were nearly one million dollars. One child may require a kidney transplant – the other surely ill. The future costs to these children may well be several million dollars. 

I also presently represent two people (one child and one adult) from Connecticut who consumed raw milk purchased at a Whole Foods. The milk was tainted by E. coli O157:H7. Both developed Hemolytic Uremic Syndrome. Once again, hundreds of thousands of dollars in medical expenses have been incurred. One victim, a twenty-eight year old mother, will likely require a kidney transplant – again, at a multiple million-dollar cost.

Now for the risky part. Most, if not all, raw milk farmers have limited insurance and very few assets that are not owned solely by the bank. If they face litigation for poisoning a customer, bankruptcy is always an option and what insurance is available is paid.

But, what about the risk to the retailer? True, in selling raw milk they are “only” selling a product that has a history of sickening consumers – they did not manufacture it. So, is a retailer, like Whole Foods, liable for paying millions of dollars to its customers if they are sickened by raw milk? The short answer is – Hell yes!

The reality in most states is that the entire “chain of distribution,” whether you are a manufacturer (a farm is) or retailer, is responsible if a product (raw milk is a product) causes harm. That means the farmer, the shipper, and the retailer will be responsible (morally and legally) to the consumer for all damages caused by the product. It is true that, depending on the state, a court may apportion damages between various members of the “chain.” However, and this is key, if the original manufacturer (the farmer in this instance) is bankrupt or has limited assets (including insurance), the retailer may be left “holding the bag” – partially empty – that the retailer will need to fill.

By way of example – assume that raw milk sold at a Whole Foods sickens five people. Two develop Hemolytic Uremic Syndrome. Assume further that the farm has only one million dollars in insurance and limited assets. Also assume that the total value of all cases (settlement or verdict) is ten million dollars. Guess who pays the nine?

So, why would a retailer, like Whole Foods, sell raw milk? Perhaps eighteen dollars a gallon?

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It is long past time for meaningful changes in the safety of the food our children eat.  Whether the food is raw, local, organic, small farm, big farm, mass-produced or slow, if it contains E. coli O157:H7, or another pathogen, it can kill.  It can kill your child, grandchild or the child of a friend.  It can kill just like it killed Abby.  Here is her story:

 It is time to step up and make Abby and her family the last to suffer this horror.  Mr. President, Senators, Congress Members, do your jobs!

Abby’s illness, and her Grandfather's, were linked to a Class I Recall by FSIS in May 2009 - Illinois Firm Recalls Ground Beef Products Due To Possible E. coli O157:H7 Contamination

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President Obama once said:

"There are certain things only a government can do. And one of those things is ensuring that the foods we eat are safe and do not cause us harm.”

A few days ago I penned this Op-ed (declined by the Washington post) - it seems a bit more on point tonight after our President's speech:

Linda Rivera’s excruciating case of food poisoning (Severe Case Gives Context to Issue of Food Safety Washington Post 9/1/09) should shine some light on a crucial reality that is missing from most health care reform plans: you can’t fix America’s health care unless you provide Americans with a safe food supply.

The mother of six lies comatose in her Las Vegas hospital room as a consequence of eating cookie dough contaminated with E. coli O157:H7 - a vicious microbe previously associated with hamburger, spinach, lettuce, and raw milk as well as other products. But she is not an isolated case. According to federal health authorities, she is just one of the 76 million Americans sickened each year by tainted food, adding billions in costs to individuals, to food-producers and to our beleaguered medical system.

Yet food safety is rarely mentioned in the scream fest that has been national health care debate in and around Congress. In fact, our national squabble threatens to scuttle any hope for the much-needed food safety legislation that overwhelmingly passed the House this summer. The Food Safety Enhancement Act would give the Food and Drug Administration (FDA) the authority it needs to inspect food-processing plants and stop the distribution of food tainted with E. coli, Salmonella, Listeria or any of the other usual suspects. It would increase the agency’s ability to use emerging technologies to trace contaminated foods and additives back to their source, while imposing new safety standards on both domestic and imported food products.

The potential benefits - to our children, our parents, and our neighbors and to the U.S. economy - are enormous. While the food industry insists that we have the world’s safest food supply, the authoritative Centers for Disease Control suggest otherwise: 76 million sick people per year, 208,000 per day, 8,675 per hour. Most of those cases are relatively mild, but the CDC says 325,000 people will be hospitalized, and at least 5,000 of them will die of food poisoning.

Consider the costs to the health care system, such as it is. The Department of Agriculture estimates the combined medical costs, productivity losses, and the costs of premature death at a minimum of $6.9 billion per year. But that estimate excludes costs such as lost business opportunities, public costs, pain and suffering and much more. The Food and Drug Administration assigns a cost of $5 million per death, reaching a total cost of $17 billion per year. But using a more complex FDA formula that factors in the full societal cost, the savings reach an astronomical $357 billion.

There may be argument over the calculations, but these are not paper costs; they are real. In the 17 years I have been representing the victims of food-borne illness, we have collected more than $500 million in settlements and verdicts against food manufacturers. Most of that goes to cover the costs of medical bills, lost wages and the pain and suffering incurred by people whose only crime was to believe processors` claims that their products were safe. So what if we passed meaningful food safety legislation? What if we saved billions of dollars in medical care and treatment by avoiding poisoning in the first place? What if Linda Rivera and thousands of Americans like her never became infected with E. coli or Salmonella or Listeria?

It’s time to tone down the rhetoric on health care and do something positive: pass meaningful food safety legislation that will put lawyers like me out of business, while saving money and the lives and well being of innocent Americans.

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Lauren Beth Rudolph died on December 28, 1992 in her mother’s arms due to complications of an E. coli O157:H7 infection - Hemolytic Uremic Syndrome. She was only 6 years, 10 months, and 10 days old when she died. Her death, the deaths of three other children, and the sicknesses of 600 others, were eventually linked to E. coli O157:H7 tainted hamburger produced by Von’s and served at Jack in the Box restaurants on the West Coast during late 1992 and January 1993. Roni Rudolph, Lauren’s mom, I have known for 16 years.

Dave Theno became head of Jack in the Box’s food safety shortly after the outbreak. I too have known Dave for 16 years. However, I only learned recently a significant fact about Dave – one that made me admire him even more – one that I think, not only that all leaders in corporate food safety should emulate, but one that both Secretaries Vilsack and Sebelius should pay attention too.

Dave and I shared the stage at the Nation Meat Association annual convention a few months ago. The NMA is an association representing meat processors, suppliers, and exporters. Dave, spoke just before I did and was rightly lauded as someone who takes food safety to heart. However, it was his story about Lauren Rudolph and his relationship with Roni that struck me. Dave told the quiet audience about Lauren’s death. Dave also told us that the death of Lauren and his friendship with Roni had changed him. He told us all that he had carried a picture of Lauren in his brief case everyday since he had taken the job at Jack in the Box. He told us that every time he needed to make a food safety decision – who to pick as a supplier, what certain specifications should be – he took out Lauren’s picture and asked, “What would Lauren want me to do?”

I thought how powerful that image was. The thought of a senior executive holding the picture of a dead child seeking guidance to avoid the next possible illness or death is stunning, but completely appropriate. I wonder if Secretaries Vilsack and Sebelius do anything similar when they do their work on President Obama’s Food Safety Working Group? If they do not, perhaps they should?

Secretaries Vilsack and Sebelius right now there are hundreds of families struggling right now due to illnesses and death related to food that you oversee that has been tainted with E. coli O157:H7.

Yesterday, I spent time with a family in South Carolina whose 4 year old ate cookie dough and suffered months of hospitalizations, weeks of dialysis and seizures. She faces a lifetime of complications. And, there is a woman in Nevada who is still hospitalized, who has lost a portion of her large intestine, was on dialysis until a few days ago. She faces months if not years of rehabilitation. Both ate cookie dough that was watch over by Secretary Sebelius’s FDA.

Today I sat across the kitchen table with a family who lost their only daughter because she died from an E. coli O157:H7 infection from meat inspected by Secretary Vilsack’s USDA/FSIS. I then visited families in a Cleveland hospital whose children are struggling in their battle against Hemolytic Uremic Syndrome – again E. coli O157:H7 tainted hamburger is to blame.

Secretaries Vilsack and Sebelius you should be like Dave Theno. Run your departments like Dave ran food safety at Jack in the Box. Go meet these families. Sit across their kitchen tables. Go to their child’s hospital room and see more tubes and wires than you can count. Understand what these people have lived though. Take their stories into your heart. It is hard, very hard, but it will give you a real reason to do your jobs.

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What if the cookie dough E. coli outbreak actually happened this way?

At 10:00 PM last night between yet another story about Michael Jackson’s death, a foreign Network begin airing a video taken inside a manufacturing facility showing someone treating a batch of cookie dough with an unknown liquid. There is a claim that this is a terrorist act.

In the next 15 minutes, every network news operation is playing the video. The broadcast networks break into regular programming to air it, and the cable news stations go nonstop with the video while talking heads dissect it. Michael Jackson fades into the distance.

Coming on a Friday evening on the East Coast, the food terrorism story catches the mainstream Media completely off guard. Other than to say the video is being analyzed by CIA experts, and is presumed to be authentic, there isn’t much coming out of the government.

Far-fetched? Don’t count on it. I have been saying for years that a foodborne illness outbreak will look just like the terrorist act described above, but without the video on FOX News. Far-fetched?

Tell that to the 751 people in Wasco County, Oregon—including 45 who required hospital stays---who in 1984 ate at any one of ten salad bars in town and were poisoned with Salmonella by followers of Bhagwan Shree Rajneesh. The goal was to make people who were not followers of the cult too sick to vote in county elections.

Tell that to Chile, where in 1989, a shipment of grapes bound for the United States was found laced with cyanide, bringing trade suspension that cost the South American country $200 million. It was very much like a 1970s plot by Palestinian terrorists to inject Israel’s Jaffa oranges with mercury.

Tell that to the 111 people, including 40 children, sickened in May 2003 when a Michigan supermarket employee intentionally tainted 200 pounds of ground beef with an insecticide containing nicotine.

Tell that to Mr. Litvenenko, the Russian spy poisoned in the UK with polonium-laced food.

Tell that to Stanford University researchers who modeled a nightmare scenario where a mere 4 grams of botulinum toxin dropped into a milk production facility could cause serious illness and even death to 400,000 people in the United States.

The reason I bring this up is not to mark another anniversary of 9/11, not because I actually think that food terrorism really is the cause of this week’s E. coli cookie dough outbreak, but I wonder if it would have made any difference in our government’s ability to figure out there was an outbreak, to figure out the cause, and to stop it before it sickened so many.

After 9/11, Health & Human Services Secretary Tommy G. Thompson said: “Public health is a national security issue. It must be treated as such. Therefore, we must not only make sure we can respond to a crisis, but we must make sure that we are secure in defending our stockpiles, our institutions and our products.”

Before Thompson’s early exit from the Bush Administration, he did get published the “Risk Assessment for Food Terrorism and Other Food Safety Concerns.” That document, now 5-years old, let the American public know that there is a “high likelihood” of food terrorism. It said the “possible agents for food terrorism” are:

• Biological and chemical agents
• Naturally occurring, antibiotic-resistant, and genetically engineered substances
• Deadly agents and those tending to cause gastrointestinal discomfort
• Highly infectious agents and those that are not communicable
• Substances readily available to any individual and those more difficult to acquire, and
• Agents that must be weaponized and those accessible in a use able form.

After 9/11, Secretary Thompson said more inspectors and more traceability are keys to our food defense and safety. To date, we’ve made little movement to ensure this.

Would the fact of terrorists operating from inside a manufacturing facility somewhere inside the United States bring more or effective resources to the search for the source of the E. coli? If credit-taking terrorists were putting poison on our cookies, could we be certain Uncle Sam’s response would have been more robust or effective then if it was just a “regular” food illness outbreak?

Absolutely not! The CDC publicly admits that it manages to count and track only one of every forty foodborne illness victims, and that its inspectors miss key evidence as outbreaks begin. The FDA is on record as referring to themselves as overburdened, underfunded, understaffed, and in possession of no real power to make a difference during recalls, because even Class 1 recalls are “voluntary.” If you are a food manufacturer, packer, or distributor, you are more likely to be hit by lightening than be inspected by the FDA. You are perfectly free to continue to sell and distribute your poisoned product, whether it has been poisoned accidentally or intentionally.

The reality is that the cookie dough E. coli outbreak is a brutal object lesson in the significant gaps in our ability to track and protect our food supply. We are ill prepared for a crisis, regardless of who poisons us.

Somewhere between the farm and your table, our Uncle Sam got lost.

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“It was not the failure of the cookie dough manufacturer for not keeping cattle feces (E. coli) out of cookie dough that sickened the child, it is the fault of the parent who allowed the child to eat the dough.”

I have received several calls and emails like the above over the last few days as the country has been ensnared once again in a nationwide recall – this time cookie dough – that has sickened at least 69 in 30 States – mostly people (girls) under the age of 18.

At first I calmly tried to respond that a company that makes a profit off of selling a product that it knows is eaten raw can not blame the consumer if the product actually contains a pathogen that can severely sicken or kill a child. The reality is that cookie manufacturers know that they sell a product that is eaten raw.

From the Minneapolis Star-Tribune – “Long known to satisfy a certain longing of the brokenhearted and the children-at-heart, the dough is nearly as popular raw as it is baked. There are more than 40 cookie dough groups on Facebook -- one with more than 1.3 million members -- complete with photos and postings that read like love notes.”

From the Washington Post – “Nestle’s cookie dough is packaged with labels warning consumers not to eat it raw. But people tend to disregard the warning -- 39 percent of consumers eat raw cookie dough, according to Consumer Reports. It has become such a popular snack that many ice cream makers have developed a cookie dough flavor.”

So, the reply to my calm response has been, “the consumer should know that cookie dough may contain bacteria and they are told to cook it.”

My calmness has now faded. Think about the little labels on cookie dough that you buy in the store – the ones that tell you “cook before eating” – wink, wink. However, the labels do not say:

“THE FDA INSPECTION MEANS NOTHING. THIS PRODUCT MAY CONTAIN A PATHOGENIC BACTERIA THAT CAN SEVERELY SICKEN OR KILL YOU AND/OR YOUR CHILD. HANDLE THIS PRODUCT WITH EXTREME CARE.”

I wonder why the Cookie Industry would not want a label like that on your tub of dough. It knows that the label is truthful. Do you think it might be concerned that Moms and Dads would stop buying it? The day the Cookie Industry puts a similar label on the label is the day that I will go work for them. The reality is that the Cookie Industry and the FDA has not yet been able to assure the public that the dough we buy is not contaminated. So, instead of finding a way to get cattle feces out of our cookie dough, they blame parents when children get sick.

Consumers can always do better. However, study after study shows that, despite the CDC estimated 76 million people getting sick every year from food borne illnesses, the American public still has misconceptions and overconfidence in our Nation’s food supply.

According to a study by the Partnership for Food Safety Education, fewer than half of the respondents knew that fresh vegetables and fruits could contain harmful bacteria, and only 25% thought that eggs and dairy products could be contaminated. Most consumers believe that food safety hazards can be seen or smelled. Only 25% of consumers surveyed knew that cooking temperatures were critical to food safety, and even fewer knew that foods should be refrigerated promptly after cooking. Consumers do not expect that things that you cannot see in your food can kill you.

Consumers are being blamed, but most lack the knowledge or tools to properly protect themselves and their children. The FDA has stated, “unlike other pathogens, E. coli O157:H7 has no margin for error. It takes only a microscopic amount to cause serious illness or even death.”

Many consumers wrongly believe the Government is protecting the food supply. How many times have we heard our Government officials spout, “The US food supply is the safest in the world.”

Where is the multi-million dollar ad campaign to convince us of the dangers of uncooked cookie dough, like we do for tobacco? Most consumers learn about food safety from TV and family members – If your TV viewing habits and family are like mine, these are highly suspect sources of good information.

The industry that makes a lot of dough off of selling dough must step up and clean up their mess. They can, and someday will, if I have anything to say about it. That day will come much faster if they start working on it now, and stop blaming the victims.

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The recall of Salmonella-tainted peanuts and peanut products processed and produced by the Peanut Corporation of America has caused one of the largest food recalls in US history; almost 4000 products made by hundreds of companies have been withdrawn, and the number is still growing. The 700 culture-confirmed cases of Salmonella indicate a much higher number of unreported illnesses – the actual number is probably close to 25,000. At least nine lost their lives. Beyond this terrible human toll, the financial toll on businesses and the American food supply has been staggering.

How did it happen? How did a single peanut processor in rural Georgia cost the American economy over a billion dollars? The two factories run by PCA only processed 2.5% of the annual US peanut crop, but their actions had huge repercussions. The investigations into the actions of the Peanut Corporation of America have revealed that PCA repeatedly retested product until a clean sample was obtained, shipped product that they knew was contaminated, and did not act on recommendations from the FDA to clean up their act.

It’s too easy to point to the company as a “bad actor” - an isolated case. There was a similar widespread outbreak of Salmonella in peanut butter two years earlier, centered not 75 miles from the Georgia plant. Unbelievably, this did not appear to affect how PCA ran its business, or how they were inspected or regulated so it can - and may - happen again.

Let’s start with the human toll, which is what I know best. My firm represents over 100 people who were sickened by the Salmonella and two families who lost a family member to it. One of our clients, Clifford Tousignant, won three purple hearts in the Korean War, but lost his life to peanut butter. Another family’s three-year-old son got sicker and sicker as his pediatrician allowed him his favorite food during his illness - the peanut butter crackers that later turned out to be the source of his infection. Hundreds of families spent time and money in emergency rooms and Intensive care units as their family members struggled with their illnesses. Although no one can put a price tag on human suffering and loss, these claims will probably settle in the range of 30-35 million dollars. That’s serious money, but most of it will be covered by insurance. Those settlements will be, well, peanuts, compared to the other costs surrounding the nationwide recall.

Recalling tainted food is the right thing to do – for legal and ethical reasons as well as basic public relations. But recalls come with astounding costs. One of my good friends in the food-processing industry estimates that the peanut recall will cost well over $500 million. It’s impossible to assign precise numbers, but you can start with the costs of tracking down, retrieving and transporting millions of items, most of which have already found their way onto retail shelves and kitchen cabinets. Kellogg, just one of the companies that recalled products recently, has estimated those costs at $75 million – for just one company.

Then there are the lost sales – not just of the tainted products themselves, but also of related peanut products that may be completely safe. The tomato-Salmonella recall last year resulted in $100 million in lost tomato sales – even though the real culprit proved to be peppers. In 2006, E. coli-tainted spinach cost that industry over $175 million - even though the outbreak was linked to just one fifty-acre farm in California. Peanut sales already have plummeted by more than 25 percent. Demand is down and peanut fields are lying fallow. The peanut industry estimates the loss is over one billion dollars in lost production and sales.

Let’s not forget the costs of advertising and public relations aimed at restoring consumer confidence. We have already seen expensive newspaper ads from peanut butter-makers, reassuring readers that their product is safe. What about the cost of restoring tainted brands?

Those in the chain of distribution are feeling the effects as well. Suppliers may or may not have to reimburse retail stores for lost sales. Large retailers like Wal-Mart include such reimbursement in their contracts; small businesses probably don’t do that, but suppliers may reimburse them anyway. And, then there are the losses to stock prices. One major food processor lost $1 billion in stock value following an E. coli outbreak. Imagine what’s happening to peanut stocks these days.

The Big Guys – the Kelloggs and ConAgras and Jack-in-the-Boxes – can sustain those losses. Not so the smaller retailers. My heart goes out to mom-and-pop businesses like Betsy Sanders of Santa Clara, California whose small business supplies cookies for local Parent Teacher Association and marching band fundraisers, and who now has to reimburse her customers for recalled products that contained peanut butter from PCA.

Is anyone keeping track of the math? Let’s call it $1.5 billion - just because of the actions of one small player in the peanut industry. The likely costs of compensating their sickened customers are a tiny part of that number; virtually none of the rest of that $1.5 billion will be covered by insurance. In an economy already battered by failing banks, lost jobs and scarce credit, people will be driven out of business. And, it was preventable.

As I was preparing this speech, the Food and Drug Administration announced that President Obama’s 2010 proposed budget included an increase of almost 20% for the FDA, including almost $260 million for better food safety. That sounds like big money, but if it can prevent a single billion-dollar recall and prevent citizens from being sickened, it’s a step in the right direction. However, there are a few other things that I would suggest.

First, be honest with the American Public. With 76,000,000 foodborne illness cases yearly, 325,000 hospitalizations and 5,000 deaths, our food supply might be safer than some – but it is not safe enough.

Second, put food safety on the “front burner” and turn up the heat. It is time that we commit to the American Public to get animal feces out of our food. How to do it - Here are my “top ten” ideas to combat this recurring epidemic:

- Improve surveillance of bacterial and viral diseases. First responders - ER physicians and local doctors - need to be encouraged to test for pathogens and report findings directly to local and state health departments and the CDC promptly.
- These same governmental departments, whether local, state or federal, need to learn to “play well together.” Turf battles need to take a back seat to stopping an outbreak and tracking it to its source. That means resources need to be provided and coordination encouraged so illnesses can be promptly stopped and the offending producer - not an entire industry - are brought to heal.
- Require real training and certification of food handlers at restaurants and grocery stores. There also should be incentives for ill employees not to come to work when ill.
- Stiffen license requirements for large farm, retail and wholesale food outlets, so that nobody gets a license until they and their employees have shown they understand the hazards and how to avoid them.
- Increase food inspections. While domestic production has continued to be a problem, imports pose an increasing risk, especially if terrorists were to get into the act. Points of export and entry are a logical place to step up monitoring. We need more inspectors - domestically and abroad - and we need to require that they receive the training in how to identify and control hazards.
- We need to reform federal, state and local agencies to make them more proactive, and less reactive. This too requires financial resources and accountability. We also need to modernize food safety statutes by replacing the existing collection of often conflicting laws and regulation with one uniform food safety law of the highest standard.
- There are too few legal consequences for sickening or killing customers by selling contaminated food in the US. We don’t need to impose the death penalty, as China did recently. But, we should impose stiff fines, and even prison sentences, for violators, and even stiffer penalties for repeat violators.
- We need to use our technology to make food more traceable so that when an outbreak occurs authorities can quickly identify the source and limit the spread of the contamination and stop the disruption to the economy.
- We need to promote university research to develop better technologies to make food safe and for testing foods for contamination.
- We need to provide tax breaks for companies that push food safety research and employee training.
- And, we need to improve consumer understanding of the risks of foodborne illness.

Last year I testified before the US Congress and laid out the above 11 points. I told them the time has come to act and not continue simply to react. Consumers, Farmers, Suppliers, Manufacturers, Retailers, Regulators and Politicians need to work together to make our food supply safe, profitable and sustainable. When a quarter of our population is sickened yearly by contaminated food, when thousands die, we do not have the “safest food supply in the world.” We should, must, and can do better.

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So, what is the big deal? President Obama ordered a medium-well burger for himself and the VP, and ordered medium burgers for the press – in a restaurant with a spotty food safety record that does not use, or may not even have, a thermometer. Forgoing the phrase “teachable moment” for a bit, I would like to get right to the “meat” of the matter. What Obama did was foolish - in the view of many food safety experts - but it is something that many consumers do every day; they order a burger from their favorite restaurant or cook it themselves on the backyard grill.

Food safety professionals inside and outside government will tell you that medium or medium-well means nothing in the food safety world – temperature is the key. Pink or brown color is not a good indicator of “doneness.” Temperature on the inside of the burger (at several places) of 155 to 160 degrees (rules vary a bit state to state) is the only way to assure that the burger is safe. Yet less that 2% of consumers use or own a thermometer. Restaurants are required to have thermometers, but not necessarily use them. So, why do consumers - including the President - ignore the advice of experts who are trying to protect them from the bacteria and viruses lurking in their cheeseburgers that can sicken or kill them or their children?

What consumers believe, including the President apparently, is what they hear every day from Government officials and the Beef Industry – “Our Food Supply Is The Safest In the World”. Compared to China? Great! Clearly, any food safety message is missed, because of lack of honesty (hamburger really may contain animal feces that can sicken or kill you!) and lack of education (why don’t we teach kids how to cook safely in addition to teaching them to wear seatbelts and shun smoking?)

So, what is a President to do - avoid hamburgers? Well, I do (and so does my family) ever since the Jack in the Box E. coli O157:H7 Outbreak of 1993 that sickened nearly 600, caused acute kidney failure in 50 and killed four children - but that is just me.

Full disclosure, I am a trial lawyer who represents victims of foodborne illness. I have seen too much misery, and yes, death, caused by failures in food production at every stage of the food supply. If you do not think our food supply is dangerous, then just open a newspaper, turn on the radio or TV or surf the Internet. Foodborne illness outbreaks linked to all types of food (including hamburger) are nearly a daily occurrence. However, the Government and Industry keep telling us its safe and we seem to believe it.

So, what is a President to do?

First call the head of Food Safety Inspection Services (actually, a spot yet to be filled) and ask him why there is cow feces in hamburger meat in the first place. Also, while you have him on the phone, ask about Salmonella, Listeria, MRSA and all the other bugs that may have been in the hamburger you ate the other day.

Next, be honest with the American Public. With 76,000,000 foodborne illnesses cases yearly, 325, 000 hospitalizations and 5,000 deaths, our food supply might be safer than China’s – but it is not safe enough.

Third, put food safety on the “front burner” and turn up the heat. It is time that we commit to the American Public to get animal feces out of our food. How to do it:

A. Revise food regulations to criminalize manufacturers who sell food that poisons consumers. I am not suggesting the “China Method,” but it is time to impose stiff fines, and jail sentences for businesses that kill kids;

B. Give tax credits and other incentives to businesses that invest in safe food methods and technology. Remind me, how many billions have we given the banks? Perhaps it is time to invest in those who will actually invest in us;

C. Increase the surveillance of foodborne diseases. Right now, for every one person counted in an outbreak, we miss another 20 to 40. This causes delays in determining what food product is sickening our neighbors allowing hundreds of others to become sick before we figure out what product to pull;

D. Fully fund Local, State and Federal Health and Food Inspectors and give them the legislative and financial tools to get the job done.

The “teachable moment” is simply that the hamburger that the President ordered on Monday should not put him at risk for getting sick on Thursday. That is true for all of us and all the food that we eat. The “teachable moment” has passed, the real question is, “did we learn anything?’

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The presence of E. coli O157:H7 in hamburger was defined as an adulterant under the Federal Meat Inspection Act in 1994.  However, recalls of E. coli O157:H7 contaminated meat and related illnesses continued over the next decade to grow, as did my law firm.   Oddly too, and with near regularity, E. coli O157:H7 recalls and illnesses seemed to begin in the Spring and peak in late Summer and Fall from 1993 through 2002.

After 24 million pounds of contaminated beef were recalled in 34 separate incidents in 2002, recalls dropped off to just over a million pounds a year for the next three years, and then to just 181,900 pounds in 2006.  The Centers of Disease Control and Prevention saw E. coli O157:H7 – related illnesses drop 48% between 2000 and 2006.

The reality is that from 1993 through 2002, children sickened with E. coli O157:H7 tainted hamburger made up the bulk of my law practice.  However, as E. coli O157:H7 hamburger recalls fell from 2003 through the end of 2006, I wondered if the law firm would survive.   Springs just simply were not the same.

But then came Spring 2007.   E. coli O157:H7, which begins its life in the hindgut of a cow, mounted a surge on its home court.  And, it came back with a vengeance.  Since the Spring of 2007, forty-four million pounds of beef have been recalled in 25 incidents due to E. coli O157:H7.  And, I am now back in the meat business, and look to Spring not just for the beginning of hay fever season.

Now, Spring 2009 is upon us.   In preparing for it, I had some research done on the “seasonality” of E. coli O157:H7 in both humans and cattle and then say what was available in the literature as to the reasons behind it.  Perhaps it does not fully explain what I experienced from 1993 though 2008, but it is a start.  It is all about being prepared.

Seasonality in humans:

• A review of E. coli O157:H7 diarrhea in the US by Slutsker et al (1997) found that E. coli O157:H7 was isolated most frequently from patients during the summer months.
• Results from an epidemiological review of E. coli O157:H7 outbreaks in the US (1982-2002) showed that outbreaks involving ground beef peaked in summer months (Rangel et al, 2005)
• In a review of non-O157 STEC infections in the US from 1983-2002 revealed that these infections also were most frequent during the summer (Brooks et al, 2005)
• In Scotland, HUS and E. coli O157:H7 infections peaked in patients under 15 years of age in July/August, followed by a plateau from June to September (Douglas et al, 1997). Interestingly, the prevalence in Scottish beef cattle at slaughter was found to be highest during the winter, but the concentration of E. coli O157:H7 (number of bacteria shed in cattle feces) was highest during the warmer months (Ogden et al, 2004).

Seasonality in ruminants:

• Numerous studies in cattle indicate that fecal shedding of E. coli O157:H7 is typically low in the winter, increases in the spring, peaks during the summer and tapers off in the fall (Edrington et al, 2006; Hancock et al, 2001; Hussein et al, 2005, etc.)
• Barkocy-Gallagher et al (2003) found that the prevalence of E. coli O157:H7 in cattle feces peaked in the summer, and prevalence on hides (a known risk factor for beef contamination) was highest from spring through fall.
• A survey of ground beef samples in the US showed that they were 3x more likely to be contaminated with E. coli O157:H7 from June – September (Chapman, et al 2001)
• A survey in the UK found that the majority of retail meats that tested positive for E. coli O157:H7 were collected between May and September.

Hypotheses on why there are seasonal differences in prevalence in both humans and cattle

Human factors:

• Differences in handling and cooking food, or differences in consumption patterns during the summer, especially ground beef (outdoor BBQs, picnics, summer camps)
• Higher prevalence of E. coli O157:H7 in cattle feces and hides entering the slaughterhouse
• More outbreaks linked to swimming pools, recreational water, and agriculture fairs during the summer

Animal factors:

• Speculation that temperature may affect shedding or survival in feces (warmer months promoting survival and/or growth of E. coli O157:H7).
• Studies by Edrington et al (2006 and 2008) suggested that day length and effects on hormones such as melatonin secretion from the gastrointestinal tracts may be the underlying mechanism for seasonality in cattle. The authors hypothesized that the seasonal variation is a result of physiological responses within the host animal to changing day-length. Hormones have been shown to play a role in the regulation of bacterial populations and host immunity.

REFERENCES

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The foodie/organic/raw/local/small farmer blogs are alive with conspiracy theories (real or imagined) about the reasons behind the moves in Congress to finally try to make our food supply safer.  Some see the evil hand of Monsanto, Cargill, etc., and their minions in Congress, as trying to crush the organic, small farmer by enacting “one size fits all” rules.  Others see that the administration and Congress have finally noticed that 76,000,000 of our citizens are sickened by food each year in the US and may actually try and do something.  True?   False?   Perhaps a little of both?

Last week I had a long chat with the Dean of Agriculture reporters, Phil Brasher, about the risks to “small-scale farmers and organic growers [who] say those standards can force them to choose between selling to supermarkets and schools or else following practices that degrade the soil and require more synthetic chemical … [that] … farmers worry that food-safety bills being considered in Congress could make matters more difficult.”  As I said:

Bill Marler, a Seattle lawyer who represents victims of food poisonings, said safety standards shouldn't be weaker for small farms. Should kids get sick at school from contamination linked to a small farm, parents will ask why the farm didn't meet the standards required of bigger suppliers, he said. "We all need to figure out a way, whether you're a big player or a small player, that you're treated fairly, that you're inspected fairly and the product you're producing, whether big or small, has the least chance of poisoning some kids," Marler said. "That's not easy."

Not easy, but not impossible.  It is time to actually engage in a reasoned discussion instead of a shouting match across the blogs.  Food safety should be important whether you’re a small or large producer of food for supermarkets or schools.  The discussion should not be that food safety regulations should be less concerned about producing safe food if you’re a small farmer.  Small or large, producers of food should be concerned about what we feed our neighbors and kids.

Perhaps we need to look hard at stopping the environmental degradation caused by mass-produced, factory farming – overuse of pesticides, antibiotics and energy – in the production food?   Perhaps we need to look hard at localizing and regionalizing our food supply while at the same time making it safe and sustainable?  Perhaps we need to focus at changing how we get our food while still making it safe for parents who buy the food at the local supermarket or kids that eat in our school lunch rooms?

So, ideas?  I've been blogging about ideas for a long time.  Heck, I've even applied for a job - "Hey, Mr. President, call me, I'll work for peanuts."

So, engage the President, FSIS, FDA and Congress in a dialog about how to fix the problem of creating a safe, sustainable, fair food supply.  For me, there can be no compromise on food safety - I have seen too much to give slack to Cargill or to a local farmer who supplies my grocery store or my kid's school.  Sure, some rules will need to be adjusted to reflect economic realities.  However, regardless of your size, if you poison someone with your products it is wrong. 

We - all of us - need to figure out what our goals are and move fairly and openly towards solving the problems plaguing our food supply.  So, stop with the conspiracies and roll up your sleeves  and dig in the garden of politics, you might actually find it fruitful.

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According to press reports, eight senior China food regulators were fired for "slack supervision" in a tainted milk scandal that killed at least six children and sickened over 300,000. High-ranking regulators in the country's major food supervisory agencies, including the ministries of Health and Agriculture and the top food safety watchdog, were stripped of their positions and their membership in the Communist Party. Regulators in the State Administration for Industry and Commerce and the State Food and Drug Administration were also punished. Last September, the chief of the General Administration of Quality Supervision and Quarantine and two high ranking officials in the city of Shijiazhuang, where Sanlu was based, were dismissed or stepped down.

Help me here.  Can anyone recall anyone ever being fired in the US - in local, state or federal government - after a major foodborne illness outbreak?  Frankly, I can not recall any corporate leader being canned after his or her product sickened or killed?

No one was fired in 1993 at FSIS or at Jack in the Box after E. coli O157:H7-tainted burgers sickened 650 and killed four.  No one lost their jobs at the CDC or FDA for bungling the 2008 the tomato - right - pepper Salmonella outbreak that sickened over 1,200.  What about the Con Agra E. coli O157:H7 outbreak of 2002 and then its Salmonella outbreaks of 2007 in peanut butter and pot pies?  What about the ongoing Salmonella peanut butter fiasco that began in September but was not figured out until hundreds were sickened, many hospitalized and nine died? 

Remember, 76,000,000 of us are poisoned by food every year in the US and no one looses their jobs?  When ever were "[US] food regulators ... fired for 'slack supervision.'"  When was a CEO ever shown the door.  Get the picture?  As my teenager would say - "like - never - Dad!"

Perhaps it is time to follow China's example?

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I learned a long time ago to "try" and not argue politics (people still think Obama is a Muslim) or religion (people still think the earth is 5,000 years old) with people.  Regardless of the facts, folks tend to dig in their heels and can not hear another side's perspective.  However, after listening to the religion and politics of the "Raw Milk Folks" denying the facts of this outbreaks for nearly three years, I have had enough.  Here are the facts:

Click above to download PDF.  Here are Exhibit 1 and Exhibit 2.  Here is a Pro and Con Paper that I wrote.  Here is the Weston Price Foundation's Response.  One of my "fans" asked me what the above-document was prepared for and by whom?  The answer is that it was prepared by me and given to counsel for Organic Pastures and the grocery stores so they would better understand our position in the litigation.  We have nothing to hide.  I also told him with respect to his version of the facts - "Obama could be a Muslim and the earth could be 5,000 years old.  All possible, but very, very unlikely."

And, yes, I do understand that pasteurized milk - more specifically - improperly pasteurized milk or milk that becomes contaminated AFTER pasteurization - has caused a lot of human illnesses - see link.  I am suing them too.  By the way, here is a link to what happened to two of the children who drank Organic Pastures Raw Milk.

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Because he is the President and he and his family eat, and the fact that he is actually talking about food safety is so important to all of us, here is his entire radio/video Saturday address:

"I've often said that I don't believe government has the answer to every problem or that it can do all things for all people. We are a nation built on the strength of individual initiative. But there are certain things that we can't do on our own. There are certain things only a government can do. And one of those things is ensuring that the foods we eat, and the medicines we take, are safe and don't cause us harm. That is the mission of our Food and Drug Administration and it is a mission shared by our Department of Agriculture, and a variety of other agencies and offices at just about every level of government.

"The men and women who inspect our foods and test the safety of our medicines are chemists and physicians, veterinarians and pharmacists. It is because of the work they do each and every day that the United States is one of the safest places in the world to buy groceries at a supermarket or pills at a drugstore. Unlike citizens of so many other countries, Americans can trust that there is a strong system in place to ensure that the medications we give our children will help them get better, not make them sick; and that a family dinner won't end in a trip to the doctor's office.

"But in recent years, we've seen a number of problems with the food making its way to our kitchen tables. In 2006, it was contaminated spinach. In 2008, it was salmonella in peppers and possibly tomatoes. And just this year, bad peanut products led to hundreds of illnesses and cost nine people their lives – a painful reminder of how tragic the consequences can be when food producers act irresponsibly and government is unable to do its job. Worse, these incidents reflect a troubling trend that's seen the average number of outbreaks from contaminated produce and other foods grow to nearly 350 a year – up from 100 a year in the early 1990s.

"Part of the reason is that many of the laws and regulations governing food safety in America have not been updated since they were written in the time of Teddy Roosevelt. It's also because our system of inspection and enforcement is spread out so widely among so many people that it's difficult for different parts of our government to share information, work together, and solve problems. And it's also because the FDA has been underfunded and understaffed in recent years, leaving the agency with the resources to inspect just 7,000 of our 150,000 food processing plants and warehouses each year. That means roughly 95% of them go uninspected.

"That is a hazard to public health. It is unacceptable. And it will change under the leadership of Dr. Margaret Hamburg, whom I am appointing today as Commissioner of the Food and Drug Administration. From her research on infectious disease at the National Institutes of Health to her work on public health at the Department of Health and Human Services to her leadership on biodefense at the Nuclear Threat Initiative, Dr. Hamburg brings to this vital position not only a reputation of integrity but a record of achievement in making Americans safer and more secure. Dr. Hamburg was one of the youngest people ever elected to the National Academy of Sciences' Institute of Medicine. And her two children have a unique distinction of their own. Their birth certificates feature her name twice – once as their mother, and once as New York City Health Commissioner. In that role, Dr. Hamburg brought a new life to a demoralized agency, leading an internationally-recognized initiative that cut the tuberculosis rate by nearly half, and overseeing food safety in our nation's largest city.

"Joining her as Principal Deputy Commissioner will be Dr. Joshua Sharfstein. As Baltimore's Health Commissioner, Dr. Sharfstein has been recognized as a national leader for his efforts to protect children from unsafe over-the-counter cough and cold medications. And he's designed an award-winning program to ensure that Americans with disabilities had access to prescription drugs.

"Their critical work – and the critical work of the FDA they lead – will be part of a larger effort taken up by a new Food Safety Working Group I am creating. This Working Group will bring together cabinet secretaries and senior officials to advise me on how we can upgrade our food safety laws for the 21st century; foster coordination throughout government; and ensure that we are not just designing laws that will keep the American people safe, but enforcing them. And I expect this group to report back to me with recommendations as soon as possible.

"As part of our commitment to public health, our Agriculture Department is closing a loophole in the system to ensure that diseased cows don't find their way into the food supply. And we are also strengthening our food safety system and modernizing our labs with a billion dollar investment, a portion of which will go toward significantly increasing the number of food inspectors, helping ensure that the FDA has the staff and support they need to protect the food we eat.

"In the end, food safety is something I take seriously, not just as your President, but as a parent. When I heard peanut products were being contaminated earlier this year, I immediately thought of my 7-year old daughter, Sasha, who has peanut butter sandwiches for lunch probably three times a week. No parent should have to worry that their child is going to get sick from their lunch. Just as no family should have to worry that the medicines they buy will cause them harm. Protecting the safety of our food and drugs is one of the most fundamental responsibilities government has, and, with the outstanding team I am announcing today, it is a responsibility that I intend to uphold in the months and years to come.

"Thank you."

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With each new outbreak of foodborne illness, my colleagues and I go to bat for a new round of sick people – mostly kids and senior citizens.

At the same time, we brace ourselves for the familiar rant: We are the blood-sucking ambulance chasers who impose crippling legal costs on honest companies that have made innocent mistakes trying to feed the nation. So be it. Limbaugh, Hannity, O’Reilly, Beck, Dobbs and friends can bash us all day and all night for our efforts to make companies pay the personal costs associated with their mistakes. If somebody knows a better way to get justice and compensation for injured people, I want to hear about it. But, for the record, trial lawyers like me are not the reason that screw-up companies like Peanut Corporation of America (PCA) go bankrupt. We are not the reason our Government has failed to protect its citizens.

The ongoing peanut recall is a case in point. In the end, PCA and various manufacturers will be stuck with a tab of, say, $30 to $35 million for the nine people who died and the hundreds who were sickened by peanuts tainted with salmonella. That’s serious money, but all or most of those costs will be covered by insurance.

More important, those settlements will be, well – peanuts - compared to the other costs surrounding the nationwide recall. And, it is those preventable recall costs that will drive businesses into bankruptcy.

As of this week, tainted peanuts have been blamed for well over 650 illnesses and nine deaths in 45 states and Canada, and we know that thousands more salmonella cases were never diagnosed nor reported.

In an attempt to end the outbreak, more than 200 companies have recalled some 2,850 products that may be contaminated – products ranging from candy bars and crackers to ice cream and pet food.

Who would disagree that recalling tainted food is the right thing to do – for legal and ethical reasons as well as basic public relations?

But recalls come with astounding costs. One of my good friends in the food-processing industry estimates that the peanut recall will cost well over $500 million – that’s half a billion bucks. It’s impossible to assign precise numbers, but you can start with the costs of tracking down, retrieving and transporting millions of items, most of which have already found their way onto retail shelves and kitchen cabinets.

Kellogg, just one of the companies that recalled products recently, has estimated those costs at $75 million – for just one company.

Then there are the lost sales – not just of the tainted products themselves, but most likely of related peanut products that may be completely safe. The tomato Salmonella recall last year resulted in $100 million in lost tomato sales – even though the real culprit proved to be peppers. E. coli-tainted spinach cost that industry over $175 million even though the outbreak was linked to one fifty acre farm. The peanut industry estimates that its sales already have plummeted by more than 25 percent, which breaks down to at least $500 million in losses on 2.6 million tons of raw peanut sales.

Also, do not forget the costs of advertising and public relations aimed at restoring consumer confidence. We have already seen expensive newspaper ads from peanut butter-makers, reassuring readers that their product is safe. What about the cost of restoring tainted brands?

Suppliers may or may not have to reimburse retail stores for lost sales. Large retailers like Wal-Mart include such reimbursement in their contracts; small businesses probably don’t do that, but suppliers may reimburse them anyway.

And, then there are the losses to stock prices. My friend reports that one major food processor lost $1 billion in stock value following an E. coli outbreak. Imagine what’s happening to peanut stocks these days.

The Big Guys – the Kellogg’s and Con Agra’s and Jack-in-the-Box’s – can sustain those losses. Not so the smaller retailers. My heart goes out to mom-and-pop businesses like Betsy Sanders, of Santa Clara, California whose small business supplies cookies for local PTA and marching band fundraisers, and who now has to reimburse her customers for recalled products that contained peanut butter from PCA.

So look for the costs of this recall to exceed $1 billion – many times more than the likely costs of compensating their sickened customers. And, virtually none of that $1 billion will be covered by insurance.

In an economy already battered by failing banks, lost jobs and scarce credit, people will be driven out of business – not by ambulance-chasing lawyers, but by greedy and careless food processors and by a Government that has walked away from its moral responsibility to protect the public.

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Kansas Governor Kathleen Sebelius accepted President Obama's request to become his secretary of Health and Human Services (HHS). Governor Sebelius will inherit a department of 65,000 employees responsible for public health, food safety, scientific research, and the administration of the Medicare and Medicaid programs, which serve 90 million Americans.

The Food Safety side of HHS is the Center for Food Safety and Applied Nutrition (CFSAN). It “is responsible for promoting and protecting the public's health by ensuring that the nation's food supply is safe, sanitary, wholesome, and honestly labeled, and that cosmetic products are safe and properly labeled.” Here is the present Organizational Chart (click below for PDF):

If someone has her email or know who she is thinking about tapping for the head of CSFAN, pass this along:

As I have said many, many times, once again, hundreds of Americans have been sickened by poisoned food. This time it is 666 ill in 45 States put down by Salmonella in peanut butter – again. Nine people have died and it is now the largest food recall in US history. Consumers have lost confidence in the businesses that feed them and a government that is supposed to protect them. After a brief lull a few years ago, we’re seeing a sweeping increase in outbreaks of Salmonella, E. coli and other foodborne contaminates. There are many reasons for this ugly trend – businesses more focused on sales than safety, fragmented government agencies, inadequate inspection of foods, poorly educated food handlers and lack of consumer awareness, to name a few. The reality is that we now live in a global food supply and we need to come up with global solutions that leverage our scientific and technological capabilities to prevent human illness and death.

Here are my “top ten” ideas to combat this recurring epidemic:

1.  improve surveillance of bacterial and viral diseases. First responders - ER physicians and local doctors - need to be encouraged to test for pathogens and report findings directly to local and state health departments and the CDC promptly.

2.  These same governmental departments, whether local, state or federal, need to learn to “play well together.” Turf battles need to take a back seat to stopping an outbreak and tracking it to its source. That means resources need to be provided and coordination encouraged so illnesses can be promptly stopped and the offending producer - not an entire industry - are brought to heal.

3.  Require real training and certification of food handlers at restaurants and grocery stores. There also should be incentives for ill employees not to come to work when ill.

4.  Stiffen license requirements for large farm, retail and wholesale food outlets, so that nobody gets a license until they and their employees have shown they understand the hazards and how to avoid them.

5.  Increase food inspections. While domestic production has continued to be a problem, imports pose an increasing risk, especially if terrorists were to get into the act. Points of export and entry are a logical place to step up monitoring. We need more inspectors - domestically and abroad - and we need to require that they receive the training in how to identify and control hazards.

6.  Reform federal, state and local agencies to make them more proactive, and less reactive. This too requires financial resources and accountability. We also need to modernize food safety statutes by replacing the existing collection of often conflicting laws and regulation with one uniform food safety law of the highest standard.

7.  There are too few legal consequences for sickening or killing customers by selling contaminated food in the US. We don’t need to impose the death penalty, as China did recently. But, we should impose stiff fines, and even prison sentences, for violators, and even stiffer penalties for repeat violators.

8.  We need to use our technology to make food more traceable so that when an outbreak occurs authorities can quickly identify the source and limit the spread of the contamination and stop the disruption to the economy.

9.  Promote university research to develop better technologies to make food safe and for testing foods for contamination. Provide tax breaks for companies that push food safety research and employee training.

10. Improve consumer understanding of the risks of foodborne illness.

In America in 2009 it is criminal that, according to the CDC, ever year nearly a quarter of our population is sickened, 350,000 hospitalized and 5,000 die, because they ate food. It is time to change that.

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In the "blog-o-sphere" a lot of heat, but not much light is generated in the "foodie space" talking passionately about these issues.  Here are several articles that have been posted on Marler Blog over the last year.  I hope they are helpful in a lighter debate.

Grass-Fed vs Grain-Fed Beef and the Holy Grail: A Literature Review

Pros and Cons of Commercial Irradiation of Fresh Iceberg Lettuce and Fresh Spinach: A Literature Review

Raw Milk Cons: Review of the Peer-Reviewed Literature

Raw Milk Pros: Review of the Peer-Reviewed Literature

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Our food supply seems so challenged, that it was hard to narrow it down to only 10.

1. Globalization: More international recalls and outbreaks due to expanding globalalization of the food supply and the challenges of oversight/infrastructure in developing countries. International challenges probably deserve a list of their own, but in the mean time, this wide umbrella includes the possibility of bioterrorism and/or “economic/chemical terrorism” (intentional adulterations with a profit motive, like melamine).

2. Local Food: Outbreaks linked to local food and/or farmer's markets. Community Supported Agriculture (CSA) groups and food co-ops need to demonstrate knowledge and practice of food safety, and be inspected. In addition to produce and meats/fish, prepared items are currently unsupervised in some, but not all locations.

3. Non-O157 STEC (Shiga Toxic producing E. coli) illnesses and outbreaks (both beef and produce): E. coli O157:H7 is listed as an adulterant, is tested for, and is still a terrible problem. E. coli strains that are non-O157 (but are equally as deadly) have not been evaluated or listed, and are not regularly tested for.

4. Animal to Human contamination: More contamination events involving the whole food chain (from animal feed to animals to humans). Whether it’s dioxin in Irish hogs or melamine in Chinese egg-laying hens, it’s clear that what goes into animals eventually goes into us. As the market for animals-as-food grows, so does the price to feed those animals and then the impetus to cut corners.

5. Having to do more with less: Public funding for food safety research, surveillance, and education is down, but the work load (and its importance) continues to grow.

6. 21st Century communication: In addition to improving communication between each other, food safety agencies need to improve communication with consumers. Outbreaks will move through the population with increasing speed, and agencies need to streamline their processes (and embrace social media like twitter and Facebook) in order to keep up.

7. Balancing food protection and environmental health: How to balance on-farm food safety practices with the protection of water quality, the prevention of soil erosion & dust, and the protection of wildlife and their habitats.

8. Zoonotic diseases: The rise of grain prices and starvation in other parts of the world will have many consequences, including the possibility that as people hunt wild animals for food, they may become exposed to new diseases, triggering a zoonotic virus jumping into humans. (A zoonotic virus is one that originates in animals and crosses to humans, like avian influenza.)

9. Consumers and food safety: How do consumers sort through the cacophony of information on food? What’s “safe”? What does “organic” mean anymore? How is it that “USDA inspected and passed” doesn’t guarantee pathogen-free meat? Who does the consumer believe/trust? Included in this category are the raw milk controversy, food irradiation, and even the new labeling laws like COOL (Country Of Origin Label). Will we get closer to farm to fork tracking of all fruits and vegetables this year?

10. Pet food ills: Pet food testing is increasing, so the level of contamination will become more apparent, and we should expect more recalls. Supervision of the pet food industry as a whole needs improvement, with clarity in ingredients and calorie counts.

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You might recall a blog post I did from January of 2008 where I discussed testing retail ground beef for Non-O157:H7 Pathogenic Shiga Toxin Producing E. coli (STEC). We have completed a portion of the first year’s tests and are in the process of compiling the data. We hope to publish the results in the next month.  (See Abstract)

Non-O157 STEC are capable of causing the same debilitating triad of diseases as E. coli O157:H7, including hemorrhagic colitis, hemolytic uremic syndrome, and thrombotic thrombocytopenic purpura. Infection with the non-O157 STEC can result in death in children, the elderly and the immunocompromised. According to the U.S. Centers for Disease Control and Prevention, the number of reported cases of illnesses caused by this group of pathogenic E. coli has been steadily increasing over the past several years. Despite this, Non-O157:H7 STEC is not considered an adulterant under current law in the U.S. That needs to change.

Non-O157:H7 STEC are also known to occur in imported beef from several trading partners, yet the U.S. Department of Agriculture Food Safety and Inspection Service (FSIS) has not required that imported beef be free of these pathogens. The Agency has also failed to devise steps to measure and control the presence of these pathogens in domestic beef production and the ground beef supply, at the slaughterhouse or the grocery store.

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In April 2007, Rick Perlstein penned a piece entitled “E. Coli Conservatism.”  His bottom line was the “Conservatism has been killing Americans. The recent food safety crisis is only one case study.”  Perhaps he is in part right.  However, whatever the political reasons for the “food safety crisis,” it has been long in coming and the system needs to be fixed.

E. coli is a powerful and deadly bacterium.  You cannot see it, taste it, or smell it. 250,000 E. coli bacteria will fit on the head of a pin.  Ten to 50 will kill your child or your grandmother.  Most likely due the expertise of Children’s Hospitals, and other top medical centers around the country, deaths at times are avoided, however, often not before Hemolytic Uremic Syndrome (HUS) nearly kills.  HUS, a complication from an E. coli infection, can cause severe damage to kidneys, intestines, liver and pancreas.  Falling into a coma and suffering further from cognitive impairment are all too common.

I have seen the inside of too many of those Intensive Care Units with families who are scared senseless as they watch their child or mother shutdown.  For 16 years, this has been my world.   When I was an undergraduate, I read Upton Sinclair’s, The Jungle.  That book took the American public on a tour of the contaminated underbelly of the meat industry and they were sickened.  It led to the Pure Food & Drug Act and the Federal Meat Inspection Act, versions of which are still in place today.

Until 1993, I thought—because of those laws—that the United States had a safe and secure food supply. But, then came the Jack-in-the-Box E. coli outbreak.  It killed four, and sickened hundreds, including many who were gravely ill with HUS and related complications.  Many of those victims became my clients.  Once again, there was a public outcry for safe meat.  The Food Safety & Inspection Service responded by creating and aggressively enforcing the Mandatory Risk Management System.  Based on research and practices of the U.S. Space Program, the risk management system established checkpoints at every phase of meat processing.

Although, the presence of some E. coli in hamburger was defined as an adulterant under the Federal Meat Inspection Act, I continued to sue “Big Meat” as most of my clients up to 2002 were children who were made sick by eating E. coli contaminated meat.  I recovered over $350 million during this period from the meat industry and the restaurants they supplied in verdicts and settlements on behalf of those clients.  In 2003 recalls of meat laced with E. coli began to decline.  After 24 million pounds of contaminated beef were recalled in 34 separate incidents in 2002, recalls dropped off to just over a million pounds a year for the next three years, and then to just 181,900 pounds in 2006.  The Centers of Disease Control and Prevention saw E. coli – related illnesses drop 48% between 2002 and 2006.

But then came Spring 2007.  E. coli, which begins its life in the hindgut of a cow, mounted a surge on its home court.  And, it came back with a vengeance.  Forty-four million pounds of beef have been recalled in 25 incidents.  All over the country, slaughterhouses, packing and distribution centers, retail outlets, and restaurants were once again testing positive for E. coli and people-mostly children-were getting seriously sick.  The American meat supply, which had again been touted as safest in the world, tumbled back into disarray.  But, why?

As with any unexplained mystery, theories abound.  Could it really just be meat industry complacency?  Did everyone respond to the good numbers in 2006 by taking a long nap?  Did meat processors slack off—consciously or unconsciously—and relax their testing procedures?  Did government regulators take a few years off?

Or could it be better reporting?  Doctors are more aware of E. coli now, and perhaps when patients present symptoms of food poisoning; tests are more likely to be ordered.  When the presence of E coli is found and reported, a recall is triggered.

There’s always global warming.  Seriously though – very smart people have posited that droughts in the southeast and southwest have launched more fecal dust into the air, which then finds its way into beef slaughtering plants.  It has also been suggested that the rainfall in other areas created muddy pens—an ideal environment for E. coli.

Why not blame high oil prices?  High prices have fueled the growth of ethanol plants.  These plants are often built next to feedlots, and a byproduct of the ethanol production process—distiller’s grains—is considered an excellent and cheap alternative to corn for cattle feed.  Unfortunately, research associates the use of distiller’s grains as feed with an increase in the incidence of E. coli in the hindguts of cattle.

Another controversial issue may affect the meat supply.  The New York Times reported that immigration officials began a crackdown at slaughterhouses across the country in the fall of 2006.  Experienced—albeit undocumented—workers have been cleared out and replaced with unskilled, inexperienced labor.

And then there’s Darwin.  Another theory holds that interventions have caused the wily E. coli microbes to adapt, selecting pathogens that are more resistant to detection or intervention.  E. coli back in our meat cannot be tolerated.  Summer has always been kind to the E. coli bug.  More than 5.6 million pounds of E. coli contaminated beef has been recalled so far in 2008, most supplied by Nebraska Beef Ltd., via the Kroger Grocery chain.  All of which was responsible for a multi-state outbreak of E. coli that again is filling up the ICU’s in Hospitals in the seven states.

What is being done?  Honestly, not much.  Congress has held some hearings, but the only new reform is that the names of retail stores that received meat and poultry involved in recalls with high health risk will be made public.  Good as far as it goes.

However, despite 76,000,000 American’s being sickened, 325,000 hospitalized and 5,000 deaths each year, food safety did not make it as a Presidential campaign issue.  Congress, Democrats and Republicans, have about run out its clock.  But E. coli is back in our meat and we better care.

Solutions?  Improve surveillance of bacterial and viral diseases. First responders - ER physicians and local doctors - need to be encouraged to test for pathogens and report findings directly to local and state health departments and the CDC promptly. Right now, for every person counted in an outbreak there are some 20 to 40 times those that are sick but never tested. The more we test, the quicker we know we have an outbreak and the quicker it can be stopped.

These same governmental departments, whether local, state or federal, need to learn to “play well together.” Turf battles need to take a back seat to stopping an outbreak and tracking it to its source. That means resources need to be provided and coordination encouraged so illnesses can be promptly stopped and the offending producer - not an entire industry - are brought to heal.

Require real training and certification of food handlers at restaurants and grocery stores. There also should be incentives for ill employees not to come to work when ill. We should impose fines and penalties on employers who do not cooperate.

Stiffen license requirements for large farm, retail and wholesale food outlets, so that nobody gets a license until they and their employees have shown they understand the hazards and how to avoid them.

Increase food inspections. While domestic production has continued to be a problem, imports pose an increasing risk, especially if terrorists were to get into the act. Points of export and entry are a logical place to step up monitoring. We need more inspectors - domestically and abroad - and we need to require that they receive the training in how to identify and control hazards.

Reorganize federal, state and local food safety agencies to increase cooperation and reduce wasteful overlap and conflicts. Reform federal, state and local agencies to make them more proactive, and less reactive. This too requires financial resources and accountability. We also need to modernize food safety statutes by replacing the existing collection of often conflicting laws and regulation with one uniform food safety law of the highest standard.

There are too few legal consequences for sickening or killing customers by selling contaminated food. We should impose stiff fines, and even prison sentences for violators, and even stiffer penalties for repeat violators.

We need to use our technology to make food more traceable so that when an outbreak occurs authorities can quickly identify the source and limit the spread of the contamination and stop the disruption to the economy. When I buy a book on line I can track it all the way to my mailbox.  We must be able to do the same with our food.

Promote university research to develop better technologies to make food safe and for testing foods for contamination. Provide tax breaks for companies that push food safety interventions and employee training. Greatly expand irradiation of raw hamburger and other high-risk products.

Improve consumer understanding of the risks of food-borne illness. Foster a popular campaign similar to Mothers Against Drunk Driving, which uses consumer power to promote a no-tolerance policy toward growers and companies that produce tainted food.

The time has come to act and not continue simply to react.  Consumers, Farmers, Suppliers, Manufacturers, Retailers, Regulators and Politicians need to work together to make our food supply safe, profitable and sustainable.  When a quarter of our population is sickened yearly by contaminated food, when thousands die, we do not have the “safest food supply in the world.  We should, must and can do better.

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News outlets report that the toll of Chinese children ill from toxic milk formula may have nearly doubled since the Health Ministry's last public count.  That number now may be over 94,000 children sickened.  Beijing is now struggling with the political, business and moral fallout from the adulteration of milk with the industrial chemical melamine.

Like the alcoholic, China needs at least several of Alcoholics Anonymous Twelve-Step Program’s guiding principles for "recovery from addiction, compulsion, or other behavioral problems."  Dr. Bob - one of AA’s co-founders - has characterized the process of twelve-step recovery as "trust God, clean house, help others". 

OK, so God may not be a moving force in China, but it really is time to “clean house and help others.”  As summarized by the American Psychological Association, and adapted by me, China’s process must involve at least the following:

*  Admitting that the Chinese government cannot control its addiction or compulsion for money and power;

*  Recognizing a greater power that can give strength – The Party leaders need to go back and read and understand Confucius, Mao and Sun Tzu;

*  Examining past errors with the help of a sponsor - I’m available;

*  Making amends for these errors – It is time to take care of the children that you have allowed to be poisoned;

*  Learning to live a new life with a new code of behavior – it is time for a free press and a functioning civil legal system;

*  Helping others that suffer from the same addictions or compulsions – Every country can do better – China, that has developed so much over a proud history, can help us all.  It just needs to first admit that it has a problem.

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I am catching up on both sleep and US News reports. This morning I read the New York Times summary of the events so far in the Sanlu Fonterra Melamine Baby Formula Disaster – “Despite Warnings, China’s Regulators Failed to Stop Milk,” and the Washington Posts summary – “China's Tainted-Milk Crisis Grows Despite Official Claims.”

Since I left China, the recalls have mounted.  Now, not only is powdered milk being recalled, but various other products, including White Rabbit candy, are being pulled from store shelves throughout the world.  More than 50,000 children, most aged under three, have fallen ill after drinking China's top-selling infant formula, made by the Sanlu Group, a joint venture with New Zealand dairy giant Fonterra.  At least four children have died and almost 13,000 are still in the hospital, at least 100 of them in critical condition from kidney failure.  After spending a week in China, my guess is that those numbers are grossly under reported.   Here are some more startling facts:

December 2007 - Sanlu Fonterra had first received complaints about its powdered baby formula.

March 2008 - Sanlu Fonterra had hired private companies to test its milk powder for contaminants.  Sanlu Fonterra never issued any public warnings and never stopped promoting its products.

May 18 - After the devastating earthquake in Sichuan Province, the Sanlu Fonterra made a much-publicized donation of $1.25 million worth of baby formula for infants orphaned or displaced by the catastrophe.

June 30 - A mother in Hunan Province had written a detailed letter pleading for help from the food quality agency, the General Administration of Quality Supervision, Inspection and Quarantine (organization that sponsored the Food Safety Conference I attended).  The letter, posted on the agency’s Web site, described rising numbers of infants at a local children’s hospital who were suffering from kidney stones after drinking powdered formula made by Sanlu Fonterra.  The watchdog agency's director, Li Changjiang, and several Communist Party officials in Hebei province, where Sanlu Fonterra is based, lost their jobs.

August 2 - Sanlu Fonterra officials informed the board about the melamine problem.

September - The New Zealand government, after discussions with Fonterra executives, contacted authorities in Beijing.  Beijing officials say they knew nothing about the scandal until September, though a Fonterra company spokesman said the company believed the central government knew in August.

September 9 – Recall announced.

Chinese Premier Wen Jerboa (did not meet him while I was there, but I did tour the “Hall of the People.”) yesterday reassured the world that China was serious about bettering its food safety record:

"We plan not only to revitalize the food industry and the milk powder industry, we will try to ensure that all China-made products are safe for consumers and consumers can buy with assurance."

Empty words? Likely. Here are the real problem and until there are changes, “Made in China,” still will mean, “Buyer Beware."

• The Chinese Central Propaganda Department had been issuing broad reporting guidelines that were distributed in Internal Digest, a classified bimonthly Communist Party bulletin.  The emphasis was on promoting good news about the Olympics.  Propaganda officials responded by issuing rules that required domestic publications to obtain permission before publishing any articles about food safety and other politically delicate subjects.
• On Friday, 20 lawyers in 15 provinces received threatening visits or calls from their local legal affairs bureaus warning them not to join a group to help the victims of tainted milk. They were told they could lose their licenses if they did not withdraw from the effort. As one lawyer said:  "Our goal is not to help the victims sue the dairy companies. We just want to help them with advice," the lawyer said, speaking on the condition of anonymity for fear of reprisals. "We believe the government will eventually have a solution, so it's important to preserve the evidence. We don't understand why we are being stopped."

A free press and the right to legal advice is a must to keep corporations like Sanlu Fonterra and the Chinese Government honest.  Frankly, that is true whatever country you are in.  The world's media and legal associations, especially in the US, need to speak out in support of our chinese collegues.  Until there is a free press and a functioning legal system in China, expect to see more outbreaks, illnesses and cover-ups.

For a bit more information on the Chinese legal system (or lack thereof) see "What China's Tainted Milk May Not Bring - Lawsuits" and a very good early analysis in "China Says 432 Infants Have Kidney Stones From Sanlu Formula" of why the outbreak happened in the first place.

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What if the great 2008 Tomato, right Pepper, Salmonella Outbreak actually happened this way?

At 10:00 PM last May 30th, on the same day New Mexico asked for help from the Centers for Disease Control and Prevention (CDC) and the U.S. Food & Drug Administration (FDA) with a growing outbreak of Salmonella Saintpaul, a foreign Network begin airing a video taken inside a fresh produce distribution center showing workers treating peppers with an unknown liquid. There is a claim that this is a terrorist act.

In the next 15 minutes, every network news operation is playing the video. The broadcast networks break into regular programming to air it, and the cable news stations go nonstop with the video while talking heads dissect it.

Coming on a Friday afternoon on the East Coast, the food terrorism story catches the mainstream Media completely off guard. Other than to say the video is being analyzed by CIA experts, and is presumed to be authentic, there isn’t much coming out of the government.

Far-fetched? Don’t count on it. I have been saying for years that a foodborne illness outbreak will look just like the terrorist act described above, but without the video on FOX News. Far-fetched?

Tell that to the 751 people in Wasco County, Oregon—including 45 who required hospital stays---who in 1984 ate at any one of ten salad bars in town and were poisoned with Salmonella by followers of Bhagwan Shree Rajneesh. The goal was to make people who were not followers of the cult too sick to vote in county elections.

Tell that to Chile, where in 1989, a shipment of grapes bound for the United States was found laced with cyanide, bringing trade suspension that cost the South American country $200 million. It was very much like a 1970s plot by Palestinian terrorists to inject Israel’s Jaffa oranges with mercury.

Tell that to the 111 people, including 40 children, sickened in May 2003 when a Michigan supermarket employee intentionally tainted 200 pounds of ground beef with an insecticide containing nicotine.

Tell that to Mr. Litvenenko, the Russian spy poisoned in the UK with polonium-laced food.

Tell that to Stanford University researchers who modeled a nightmare scenario where a mere 4 grams of botulinum toxin dropped into a milk production facility could cause serious illness and even death to 400,000 people in the United States.

The reason I bring this up is not only because we are about to mark the seventh anniversary of 9/11, but because I wonder if food terrorism really had been the cause of this year’s Salmonella Saintpaul outbreak, would it have made any difference in our government’s ability to figure out there was an outbreak, to figure out the cause, and to stop it before it sickened so many.

Would the fact of terrorists operating from inside a fresh produce distribution center somewhere inside the United States or Mexico brought more or effective resources to the search for the source of the Salmonella Saintpaul? If credit-taking terrorists were putting poison on our peppers, could we be certain Uncle Sam’s response would have been more robust or effective then if it was just a “regular” food illness outbreak?

After 9/11, Health & Human Services Secretary Tommy G. Thompson said: “Public health is a national security issue. It must be treated as such. Therefore, we must not only make sure we can respond to a crisis, but we must make sure that we are secure in defending our stockpiles, our institutions and our products.”

Before Thompson’s early exit from the Bush Administration, he did get published the “Risk Assessment for Food Terrorism and Other Food Safety Concerns.” That document, now 5-years old, let the American public know that there is a “high likelihood” of food terrorism. It said the “possible agents for food terrorism” are:

• Biological and chemical agents
• Naturally occurring, antibiotic-resistant, and genetically engineered substances
• Deadly agents and those tending to cause gastrointestinal discomfort
• Highly infectious agents and those that are not communicable
• Substances readily available to any individual and those more difficult to acquire, and
• Agents that must be weaponized and those accessible in a use able form.

After 9/11, Secretary Thompson said more inspectors and more traceability are keys to our food defense and safety. To date, we’ve made no movement to ensure this.

So would the fact of a terrorist group operating from a produce distribution center inside the United States or Mexico have brought more or effective resources to the search for the source of Salmonella Saintpaul? If credit-taking terrorists were putting poison on our peppers, could we be certain that Uncle Sam’s response would be more robust, more effective than if it was just a “regular” food illness outbreak?

Absolutely not! The CDC publicly admits that it manages to count and track only one of every forty foodborne illness victims, and that its inspectors miss key evidence as outbreaks begin. The FDA is on record as referring to themselves as overburdened, underfunded, understaffed, and in possession of no real power to make a difference during recalls, because even Class 1 recalls are “voluntary.” If you are a food manufacturer, packer, or distributor, you are more likely to be hit by lightening than be inspected by the FDA. You are perfectly free to continue to sell and distribute your poisoned product, whether it has been poisoned accidentally or intentionally.

The reality is that the Salmonella Saintpaul outbreak is a brutal object lesson in the significant gaps in our ability to track and protect our food supply. We are ill prepared for a crisis, regardless of who poisons us.

Somewhere between the farm and your table, our Uncle Sam got lost.

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Guest Blog by Denis W. Stearns:

On October 3, 2002 I submitted a petition to the USDA in which I asked the agency to explicitly clarify whether a USDA policy that appeared to allow the deadly pathogen E. coli O157:H7 on so-called “intact meat” applied to meat sold to retail outlets like grocery stores and restaurants. Even now it is a near-universal practice for retail outlets to use this meat—commonly called “boxed beef” because the cuts of meat are individually shrink-wrapped and then boxed—to make ground beef. Sometimes the meat is directly used to make ground beef, and sometimes only trimmings are used—that is, the pieces left over after roasts and steak are cut and trimmed. Either way, there has never been any doubt that tens of thousands of grocery stores and restaurants use tons of intact meat every day to make ground beef. To my mind it makes absolutely no sense that the USDA would allow meat companies to sell intact meat contaminated with E. coli O157:H7. Why allow a loophole so large that it essentially moots USDA policy on this deadly pathogen?

Interestingly, the USDA responded to my petition with a letter from Philip Derfler, Deputy Administrator of the Food Safety and Inspection Service. In the letter, Mr. Derfler acknowledged that USDA policy was unclear, and stated that my petition would be treated as a public comment and referred to the Regulations and Directives Development Staff. That was six years ago, and USDA policy is less clear today than it was back then, and just as indefensible.

We are now in the midst of yet another outbreak of heartbreaking illnesses and likely deaths caused by contaminated meat that the beef industry claims the USDA authorizes it to sell. This claim is hardly new either. In 2004, the American Meat Institute and other meat industry trade groups fought all the way to the United States Supreme Court trying to overturn a Wisconsin Court of Appeals decision. The decision held that USDA policy on intact meat did not immunize meat companies from lawsuits based on allegations that E. coli-contaminated meat was unreasonably dangerous as a matter of state law. In other words, the meat industry was fighting for the right to sell E. coli-contaminated meat, claiming that USDA policy said that it could. It lost, but that did not prompt the USDA to change or clarify its policy.

Putting legal arguments aside, common sense alone clearly demonstrates why an exception for intact meat makes no sense. While the meat industry can cleverly argue that its intact meat is not intended for ground beef, and that cooking always makes it safe, neither statement is true. As the recent Nebraska Beef outbreaks make tragically clear, most intact meat does not reach consumers still intact. Furthermore, if each shrink-wrapped cut of meat had “DO NOT USE FOR GROUND BEEF; E. COLI O157:H7 PRESENT” printed in bold letters on it, there is not a grocery store in the country that would buy it. Indeed, commenting on the current outbreak, a representative of Whole Foods explained that it was using intact meat to make its own ground beef “in an attempt to assure quality and safety.” I guess the joke was on them then.

The current USDA policy on E. coli and intact meat is indefensible because it protects the interests of the meat industry instead of the public health. A policy that is based on the demonstrably false assumption that intact meat is not being used to make ground beef at a retail level is a policy that has no basis in fact or reason. It also entirely ignores the incredible risk of cross-contamination, which is what caused the 2000 outbreak at a Milwaukee-area Sizzler restaurant that killed one child and sickened scores of others. The Sizzler outbreak also recently resulted in a $7.1 million verdict against the same meat company that fought to the Supreme Court (with industry trade groups) for the right to sell the deadly stuff. Meanwhile, all these years later, the USDA says it is continuing to consider its options. Well, I have a suggestion: How about putting the interests of the public first for a change and sticking to a real zero-tolerance policy for this deadly pathogen?

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In just a year and a half, the American meat industry has experienced a whiplash of beef recalls. 40 million pounds of meat tainted with highly toxic E. coli O157:H7 has been publicly recalled, up by a staggering factor of two hundred from the 2006 amount of only 181,900 pounds.

“This is beyond the ‘wheels coming off’ of the meat supply system,” said food borne illness attorney William Marler. “It’s the entire train in a tangled heap. And the people caught in the train wreck are you and me and all of our neighbors. When reports say that there is a one in 400 chance that the package of ground beef you pick up at the supermarket will be tainted with a lethal bacterium, the food safety system is no longer functioning, and immediate, radical steps must be taken.”

In more than thirty recalls ranging from a few hundred to millions of pounds, the Food Safety Inspection Service (FSIS) has deemed E. coli contaminated meat a class I (one) health hazard to consumers. (A class I recall involves a health hazard situation in which there is a reasonable probability that eating the food will cause health problems or death.)

“There are many theories as to why there has been such an unprecedented jump in E. coli,” said Marler. “It could be regulatory complacency, better reporting, or immigration sweeps that have left slaughterhouses empty of skilled workers. Global warming may be spreading fecal dust. High oil prices may have led to an E. coli-producing diet for cattle. The microbe itself may even be evolving to elude capture. Another possibility is that the higher costs of slaughterhouse inputs (beef cattle) have collided with retailer’s low price pressures on outputs (hamburger) from those same slaughterhouses. These ideas need investigation and research, so that real change can begin.”

To advance that change, Marler reached out to the food safety community and asked for ideas from experts, scientists, regulators, and food agency brass. He distilled the volumes of submitted suggestions into ten action items:

1.   Improve surveillance and reporting of bacterial and viral diseases.
2.   Require real training and certification of food handlers at restaurants and grocery stores.
3.   Stiffen license requirements for large farm, retail, and wholesale food outlets.
4.   Increase food inspections.
5.   Reorganize federal, state, and local food safety agencies to increase cooperation and reduce wasteful overlap and conflicts.
6.   Establish tax credits for companies with good food safety records, and greater legal consequences for sickening or killing customers with tainted food.
7.   Use our technology to make food more traceable
8.   Promote university research
9.   Improve consumer understanding of the risks of food-borne illness
10. Provide Presidential leadership on a topic that impacts every single one of us.

“There are a lot of very smart, very dedicated professionals in the food safety community,” Marler concluded. “They have spent their careers working toward a better food supply, and that collective knowledge is available to design and implement change. We need our leaders to get on board, and get the food safety train back on track.”

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Here is a letter that I sent to all members of the US Senate and House Agriculture Committees

RE: Food Safety in the United States

Dear U.S. Congress Member:

I am writing to you because the American people are losing confidence in the U.S. government’s ability to keep our food supply safe.

As you know, there is presently an outbreak of a Salmonella strain known as Saintpaul that has made more than 1,250 people sick in forty-three states, put 228 in hospitals, and contributed to the deaths of two elderly men. It is the largest fresh produce outbreak in two decades. The source of the outbreak remains, in part, a mystery. A two-month-long federal investigation has been able to tell us only that jalapeño peppers (and possibly tomatoes and cilantro) are causing part of the outbreak.

However, the present multi-state E. coli O157:H7 outbreak is even more dangerous and demands the Agriculture Committee’s full attention. Omaha’s Nebraska Beef Ltd. has spread E. coli contaminated beef across the country to its various suppliers, all under the guise that existing USDA policy supposedly states that it is all right to sell tainted meat as long as it was ‘intact’ when it left the plant. So far, there are nearly sixty ill in Michigan, Utah, Georgia, New York, Indiana and Ohio. Some women in Georgia and Michigan have been in the hospital for over a month. 5.3 million pounds of meat has been recalled.

From 2003 until 2007, E. coli illnesses from fresh produce - spinach, lettuce, and sprouts - dominated my practice. After ConAgra recalled 19.3 million pounds of hamburger in 2002, I thought that E. coli in beef had been brought under control. In 2006, federal recalls involved just 181,000 pounds of meat, down from 23 million pounds in 2002. However, since the spring of 2007, we’ve seen an explosion of nearly 40 million pounds of beef recalled because it was contaminated with E. coli O157:H7. That’s nearly twenty thousand tons. Hundreds have been sickened and I am back in the beef business.

I fear we are at a tipping point. If this situation is allowed to further deteriorate, the public harm is going to be immeasurable – both in terms of lives damaged and businesses lost.

After the 1993 Jack-in-the-Box outbreak that killed four children and sickened nearly 700 in several states, the Food Safety & Inspection Service responded by creating and aggressively enforcing the Mandatory Risk Management System. Based on the research and practices of the U. S. space program, the new risk management system established check points at every phase of meat processing. And more importantly, the presence of E. coli was defined as an adulterant under the Federal Meat Inspection Act. It took years for those changes to be adopted and accepted, but progress - significant progress - was made. Until the spring of 2007, E. coli-related illnesses were falling and recalls became a rarity.

We need immediate and aggressive Congressional oversight and support of the Food Safety & Inspection Service of USDA, the U.S. Food and Drug Administration, and the Centers for Disease Control. Here are my suggestions for where Congress should focus its efforts:

Improve disease-surveillance so that we can better identify and trace what foods are making people sick. The frontlines of the medical community need to be encouraged to routinely test for foodborne pathogens and promptly report findings to local and state health departments and the CDC.

Government agencies, at all levels, need to learn to “play well together.” Turf battles like those we see between state health departments and the USDA need to stop so we can track illness to its source. Without effective traceback, companies are not held responsible, and thus have no incentive to stop selling tainted food.

Increase inspections. While domestic production remains a problem, imports pose an increasing risk, especially if terrorists get into the act. Food must be inspected before it enters our country, and we need more inspectors, better technology, and better training to do this effectively.

Reform federal, state and local agencies to be more proactive, and less reactive. This will require agencies to be properly funded, and also held accountable.

Modernize food safety statutes by replacing the present conflicting laws and regulations with one uniform food safety law that puts public safety first.

Increase legal consequences for causing foodborne illness and death. We don’t need to impose the death penalty, as China did recently. But we should impose serious consequences for companies who don’t do enough to keep their products safe, especially if they are repeat-offenders.

Use advanced technology to make food traceable from farm-to-table. Then, when an outbreak occurs, authorities can quickly identify the source, limit the numbers of people injured or killed, and stop the disruption to our economy.

Promote university research to develop better technologies to make food safe, and for testing foods for contamination.

Provide economic incentives, like tax breaks, to companies that push food safety, and invest in research and training.

Improve consumer understanding of the risks of food-borne illness.

I hope that you will act upon these recommendations. The 76 million Americans who suffer from food-borne illnesses annually—including 325,000 who require hospitalization, and the families of the 5,000 who die—would all be grateful.

Sincerely,

William D. Marler

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Food safety advocate and attorney William Marler is calling on the Meat Industry and the USDA Food Safety Inspection Service (FSIS) to make the inspection reports from meat processing facilities visible and easily available to the public so that consumers—in including grocery stores and restaurants—can make informed choices on which products they want to purchase.

“During the last decade, the number of city and state health departments that post restaurant inspection results online has increased significantly, said Marler from his office in Seattle. “Moreover, in places like Los Angeles County, all restaurants regularly receive either a letter-grade or inspection-score, and these must be prominently posted near the entrance to the restaurant. The primary goal of these efforts is to motivate restaurants to improve sanitation and food-handling practices so that fewer people get sick. The more customers know about the relative safety of a restaurant’s operation, the better informed their choice to dine at a given place can be. When faced with a choice between dining at a restaurant that received a C-grade versus an A-grade, it is pretty much a no-brainer that people are going to be more inclined to spend money at a restaurant with a higher grade!

“But if making this kind of information easily available online is such a no-brainer, why then does the FSIS make it so difficult for the public to find out the results of thousands of inspections it performs everyday in meat plants across the country? In 2005, FSIS employed over 7,600 inspection program personnel in about 6,000 federally inspected establishments nationwide with an annual cost of $815.1 million. That is a lot of money to spend on inspections given that the public does not currently have any way by which to gain easy and timely access.

“Right now, for all meat products made in a USDA-inspected plant, the plant’s establishment number must appear on the label with the mark of inspection. But if a consumer trying to decide what brand of frozen hamburgers to buy wants to compare one plant’s inspection records with another, the only way copies of the inspection reports (called Noncompliance Records, or NR’s) can be obtained is by making a request under the Freedom of Information Act (FOIA) (Here are some examples).  These FOIA requests can, however, take years to be processed. And so usually it is only after there has been a big outbreak and recall—like the recent ones involving Topps or Nebraska Beef—that the public learns about how many times a plant has failed an inspection, or been found to be in violation of safety regulations.

“Consumers should know the record of the company responsible for any meat they purchase,” sums up Marler. “We’ve paid for the inspections—we’re owed that much, at least.”

Over the last few days I have had several interviews with the media - here are a few:

Food Litigation Lawyer Bill Marler Is Careful about What He Eats News

“It is only companies that don’t stay focused on food safety, that I get repeat business from.”

More suits to come

“It’s frustrating to me to be getting all of this business,” Marler said. “We thought we were out of the E. coli business in 2002. Congress needs to get into the middle of this.”

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It is time politicians take notice – a recent poll found:

• Nearly half (46 percent) of consumers have changed their eating and buying habits in the past six months because they're afraid they could get sick by eating contaminated food.

• An overwhelming number (80 percent) support setting up a better system to trace produce in an outbreak back to the source, the poll found.

• Three in four people remain confident about the overall safety of food.

• The survey found gender, racial and economic gaps on attitudes about food safety. Women, who do most of the shopping, were more concerned than men. For example, 39 percent of men said they were "very confident" that the food they buy is safe, but only 23 percent of women said they felt that way. However, men and women agreed on the need for better federal oversight.

• 80 percent of Americans would support new federal standards for fresh produce.

• 86 percent said produce should be labeled so it can be tracked through layers of processors, packers and shippers, all the way back to the farm.

Well at least “The Haphazard Gourmet Girls” are paying attention:  "Bill Marler: The Avenging Angel Of The Chowpocalypse:"

Once again, Bill Marler, the leading genius watchdog of the Food Industrial Complex and an incredibly even-handed analyst, parses the where, how & why of contamination outbreaks with an excellent summation of E. coli issues.

And, the “Food Law Guy:”  Improving Food Safety: Insights from Intensive Care

Paraphrasing Tom Sawyer, a person who takes a bull by the tail once, learns sixty or seventy times more than a person who hasn’t.  Perhaps no one has seen the inside of as many intensive care units for foodborne illness as Bill Marler.  Gain some of Marler’s insight on improving food safety by reading his latest commentary, “E. coli O157:H7 is a powerful and deadly bacterium.”

“You cannot see it, taste it, or smell it. 250,000 E. coli O157:H7 (E. coli) bacteria will fit on the head of a pin. Ten to 50 will kill your child or your grandmother."

And, the “Food Snark:”  Bill Marler, Food Czar, Cries Out (Again)

Some lawyers want better BMWs, food poisoning lawyer Bill Marler wants to see fewer kids die from E. coli O157:H7.  He does everything he can to raise awareness of the powerful deadly bacteria in hope to see fewer kids lose their kidneys, even when that means driving around in an ugly VW bug with ECOLI on his license plates and taking shit from Tort Deformists who have dubbed him an ambulance chaser.

I’ve called Bill Marler “Batman” for a while now, partially because he could use a bat-plane for all the traveling he does, but also because he truly is a superhero to the children whose lives would be lost without him.  However, I think it’s about time to upgrade him to Food Czar, because he’s already king of the industry, and he’d look good in a crown.

Honestly, Bill Marler is the only lawyer I know who works so hard every day to try to put himself out of business.

And, Jane Genova of “Law and More:”

... I don't hear a peep from presidential candidates Barack Obama and John McCain about making sure what children wind up putting in their mouths is safe - whether that's food, milk, or a toy imported from China. Is it true, as the article in FORTUNE by Marc Gunther claims, that government is increasingly less in the loop on consumer safety issues? Replacing it, documents Gunther, are the new watchdogs: Industry, plaintiff lawyers, and citizen activists....

I envision a cabinet-level position. We can call its head The Food Safety Czar. Right now the best-qualified pro in that field seems to be Bill Marler of Marler Clark. Google his name and you'll see what I mean. Or you can read some of the testimony he delivered on Capitol Hill - Download Testimony here.

And, the Food Law Prof Blog, “Food Czar Bill Marler on E. coli and Food Safety”

And, the Fanatic Cook, "For His Work In Food Safety, Bill Marler Deserves A Spot In The Next Administration"

There are times when a man would do well to win a certain job. And there are times when a job would do well to win a certain man.

The job of Food Safety Czar in this country would do well to win Bill Marler.

This country does not currently have a Food Safety Czar. It needs one. Someone to cut through the muck that swaddles numerous, discrete food-related government agencies. Someone with a history of going to bat for consumers, a successful history. Someone with a tireless passion for this work.

To the next President: If you intend to make food safety a priority, you'll want Bill Marler in your cabinet.

Efoodalert weighs in:  I propose that the next President form an independent Food Safety Commission. The Commission should be non-political (as opposed to by-partisan), and should receive testimony, briefs and proposals from industry, academia, consumers and regulators. The mandate should include:

1. Determine a current estimate of food-borne disease in the United States;
2. Recommend improvements to the current methods for reporting illnesses and detecting incipient outbreaks;
3. Review the present US food safety regulatory structure and compare its effectiveness with food safety regulatory structures adopted by other countries; and
4. Propose a new US food safety regulatory structure designed to respond more effectively to the current state of the US domestic and imported food supply.

It is vital that such a Commission be headed by an individual who does not owe loyalty to industry, regulators, or lobbying organizations. An individual who has no political axe to grind. An individual whose primary goal is to do whatever it takes to improve the safety of the country's food supply.

Bill Marler, are you listening?

Loud and clear.

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You cannot see it, taste it, or smell it. 250,000 E. coli O157:H7 (E. coli) bacteria will fit on the head of a pin.  Ten to 50 will kill your child or your grandmother.

More likely due the expertise of Children’s Hospitals, and other top medical centers around the country, deaths at times are avoided, however, often not before Hemolytic Uremic Syndrome (HUS) nearly kills.  HUS, a complication from an E. coli infection, can cause severe damage to kidneys, intestines, and pancreas.  Falling into a coma and suffering further from cognitive impairment are all too common.

I’ve seen the inside of too many of those Intensive Care Units with families who are scared senseless as they watch their children or mother shutdown.  For 15 years, this has been my world.   When I was an undergraduate, I read Upton Sinclair’s, The Jungle.  That book took the American public on a tour of the contaminated underbelly of the meat industry and they were sickened.  It led to the Pure Food & Drug Act and the Federal Meat Inspection Act, versions of which are still in place today.

Until 1993, I thought—because of those laws—that the United States had a safe and secure food supply. But, then came the Jack-in-the-Box E. coli outbreak.  It killed four, and sickened hundreds, including many who were gravely ill with HUS and related complications.  Many of those victims became my clients.

Once again, there was a public outcry for safe meat.  The Food Safety & Inspection Service responded by creating and aggressively enforcing the Mandatory Risk Management System.  Based on research and practices of the U.S. Space Program, the risk management system established checkpoints at every phase of meat processing.

The presence of E. coli was defined as an adulterant under the Federal Meat Inspection Act.  I continued to sue “Big Meat” as most of my clients up to 2002 were children who were made sick by eating E. coli contaminated meat.  I recovered over $350 million during this period from the meat industry and the restaurants they supplied in verdicts and settlements on behalf of those clients.  In 2003 recalls of meat laced with E. coli began to decline.  After 24 million pounds of contaminated beef were recalled in 34 separate incidents in 2002, recalls dropped off to just over a million pounds a year for the next three years, and then to just 181,900 pounds in 2006.  The Centers of Disease Control and Prevention saw E. coli – related illnesses drop 48%.

But then came Spring 2007. E. coli, which begins its life in the hindgut of a cow, mounted a surge on its home court.  And, it came back with a vengeance.  Thirty-three million pounds of beef would be recalled in 22 incidents.  All over the country, slaughterhouses, packing and distribution centers, retail outlets, and restaurants were once again testing positive for E. coli and people-mostly children-were getting seriously sick.

The American meat supply, which had again been touted as safest in the world, tumbled back into disarray.  But, why?

As with any unexplained mystery, theories abound.  Could it really just be meat industry complacency?  Did everyone respond to the good numbers in 2006 by taking a long nap?  Did meat processors slack off—consciously or unconsciously—and relax their testing procedures?

Or could it be better reporting?  Doctors are more aware of E. coli now, and perhaps when patients present symptoms of food poisoning; tests are more likely to be ordered.  When the presence of E coli is found and reported, a recall is triggered.

There’s always global warming.  Seriously though – very smart people have posited that droughts in the southeast and southwest have launched more fecal dust into the air, which then finds its way into beef slaughtering plants.  It has also been suggested that the deluging rainfall in other areas created muddy pens—an ideal environment for E. coli.

While we’re at it, why not blame high oil prices?  High gas prices have fueled (sorry) the growth of ethanol plants.  These plants are often built next to feedlots, and a byproduct of the ethanol production process—distiller’s grains—is considered an excellent (and cheap) alternative to corn for cattle feed.  Unfortunately, research at Kansas State University associates the use of distiller’s grains as feed with an increase in the incidence of E. coli in the hindguts of cattle.

Another controversial issue may affect the meat supply.  The New York Times reported that immigration officials began a crackdown at slaughterhouses across the country in the fall of 2006.  Experienced—albeit undocumented—workers have been cleared out and replaced with unskilled, inexperienced labor.

And then there’s Darwin.  Another theory holds that interventions have caused the wily E. coli microbes to adapt, selecting pathogens that are more resistant to detection or intervention.  E. coli back in our meat cannot be tolerated.  We’ve got a lot of summer of 2008 left. Summer has always been kind to the E. coli bug.  More than 5.6 million pounds of E. coli contaminated beef has been recalled so far in 2008, most supplied by Nebraska Beef Ltd., via the Kroger Grocery chain.  All of which is responsible for a multi-state outbreak of E. coli that again is filling up the ICU’s in Hospitals in the seven states.

What is being done?  Not much.

Congress has held some hearings, but the only new reform is that the names of retail stores that received meat and poultry involved in recalls with high health risk will be made public.  Good as far as it goes.

However, despite 76,000,000 American’s being sickened, 325,000 hospitalized and 5,000 deaths each year, food safety has not made it as a Presidential campaign issue.  Congress, Democrats and Republicans, have about run out its clock.  But E. coli is back in our meat and we better care.

Solutions?

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September was “Food Safety Month.” During September and the ensuing two months there have been at least four reported bacterial outbreaks tied to produce. The bacteria have been the deadly E. coli O157:H7 and Salmonella. The produce: spinach, tomatoes and now green onions. First it was announced that over 200 people were sickened, many with acute kidney failure, and four people died after eating Dole spinach grown in the Salinas Valley. Then the announcements came that not one, but two Salmonella outbreaks had been traced to contaminated tomatoes grown in the Southeast and served in restaurants, sickening nearly 400.

As if the events of the last three months were not enough to warrant action, it must be recognized that the produce and restaurant industries have had plenty of notice of continuing problems through a sad litany of similar outbreaks.  In 2000, Taco Bell food was again to blame for a hepatitis A outbreak involving green onions.  In 2003, green onions were yet again implicated in a Pennsylvania outbreak that left over 600 sick with hepatitis A, causing at least four deaths and one liver transplant.  In 2004, salmonella-tainted tomatoes, again grown in the Southeast, sickened 450 people who had eaten at convenience stores in the Northeast.  And in 2005, Dole lettuce caused dozens more E. coli illnesses, including one young girl who suffered acute kidney failure.  The 2005 Dole outbreak was the nineteenth E. coli O157:H7 outbreak tied to spinach or lettuce since 1995.  In those previous outbreaks, nearly 500 were sickened and two elderly women died. 

One would think that with thousands of Americans poisoned by produce, hundreds hospitalized, many with severe, life-long complications or deaths, that Congress would have asked growers, producers, manufacturers, restaurants, grocers, and consumers to the table to talk about these ongoing outbreaks and how to prevent them in the future. But, Congress has been all too absent, all too willing to sit by and watch consumers become sickened or die from eating produce. Perhaps even more surprising is that Congress has not helped the multi-million and billion dollar corporate growers, producers, manufacturers, restaurants and grocers, help themselves by enacting food safety rules to avoid poisoned produce and sick customers in the future. 

Congress needs to act now. What needs to be discussed:

• A thorough, scientifically-based discussion on how these recent outbreaks actually happened and what can be done to prevent or limit the next one.
• Increased funding for university-based research, health department epidemiological surveillance, and prevention of bacterial and viral contamination.
• Consideration of pre-consumption bacterial and viral testing of raw food products, especially those where no “kill step” is expected.
• A discussion of making mandatory good agricultural and food handling practices.
• A review of the proposal to create a single federal agency charged with ensuring the nation’s food safety, whether the food is grown within the United States or in foreign countries.

It is time for Congress to accept a leadership role and call hearings, not only to explore the reasons for the past months’ outbreaks, but also to help prevent the next one. Congress must reach out to all facets of the produce industry, from “farm to fork,” to consumers who bear the burden of illnesses, and to academics and regulators to find reasonable, workable solutions to prevent produce-related illnesses. More regulation may not help. Testing all products may not be feasible. More funding for enforcement for the FDA, CDC and USDA may not work. And, more funding for university research may also not be the answer. However, getting all to the same table is a start. Congress, you need to do the inviting.

Bill Marler is managing partner at the Marler Clark law firm in Seattle.

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