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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

AAJ weighs in on Non-O157:H7

By Allison Torres Burtka

Seattle lawyer Bill Marler has taken food safety into his own hands: A year and a half ago, Marler, who represents plaintiffs in tainted-food cases, hired a lab to test 5,000 samples of ground beef from grocery stores in six states for (non-O157:H7) E. coli, and the testing is almost complete. When he found the bacteria in meat from a WinCo Foods store in California and told the company last month, it recalled all ground beef sold over a 13-day period in March and April.

The strain of E. coli in the WinCo beef, and the one that most often sickens people, is O157:H7. The Food Safety and Inspection Service (FSIS), part of the U.S. Department of Agriculture, considers it an "adulterant" and tests for it. But six other unregulated strains also can sicken and kill people, and Marler has petitioned the FSIS to deem them adulterants as well. The agency is considering it.

Marler set out to conduct his own testing after he was approached by the family of a 13-year-old girl who was killed by O111, one of the unregulated strains. Of the roughly 4,700 samples tested so far, the lab has found that about 1.9 percent contain the non-O157 strains. "If you extrapolate that to all the beef that’s sold, it’s a pretty significant amount," he said.

The FSIS designated O157 an adulterant after the highly publicized Jack in the Box outbreak in 199(3). Marler said that designation "changed the landscape in the beef industry" and "started moving across industries." That’s what needs to happen for these other strains as well, he said.

According to the Centers for Disease Control and Prevention, about 70,000 E. coli O157 infections occur each year. Infection rates for other strains are difficult to quantify because many labs do not test for them.

Marler explained that when a sick person is tested for O157 and the test comes back negative, the hospital typically doesn’t test further unless the person is seriously ill. If he or she has acute kidney failure, for example, "then they dig a little deeper."

Last month, an outbreak of O111 sickened prison inmates in Colorado. Earlier this month, an O145 outbreak in Michigan, New York, and Ohio was traced to romaine lettuce from a facility in Ohio. Lettuce falls under the FDA’s purview.

A report released last month by the inspector general of the Department of Health and Human Services found that the FDA inspects less than a quarter of food facilities each year, and 56 percent of food facilities have gone at least five years without an inspection.

"The FDA doesn’t have the resources to keep up," Marler said.

Legislation pending in the Senate–the FDA Food Safety Modernization Act (S. 510)–would make the food supply safer, Marler said. "But are Congress and the public willing to pay for additional oversight?" he asked. "Hopefully the O145 outbreak will prompt a little more action politically."

Marler plans to finish his E. coli testing this summer and publish the results.