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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Colorado Bill Leaves Poisoned Consumers Without Justice

Retailers in Colorado might well escape any liability for a consumer’s illnesses if Colorado House Bill 11-1190 becomes law – even if the manufacturer is bankrupt or from a foreign country. According to a summary of the Bill:

Screen shot 2011-02-16 at 6.33.58 AM.pngThe bill applies to a product liability action brought against a food retailer who is not a manufacturer of food but who is deemed to be the manufacturer of the food because jurisdiction cannot be obtained over the manufacturer. The bill limits the liability of food retailers who are deemed manufacturers for causing an injured party to suffer a food-borne illness unless the injured party establishes that:

1. The food retailer introduced into the food the contaminant, agent, defect, or mechanism producing the food-borne illness; or

2. The food retailer has actual knowledge at the time of the sale that the food contained the contaminant, agent, defect, or mechanism producing the food-borne illness or was subject to a recall.

So, to put this in context:

A retailer that purchased Salmonella-tainted peanut butter from bankrupt PCA would bear no responsibility for injuries to victims, even if the retailer never visited the PCA plant and never cared what type of conditions the peanut products were being produced, and even if the victim had no other recourse for compensation.

A retailer that purchased melamine-tainted food from China would also escape all liability to victims even though the retailer profited from the sale.

This is a bad law and one that likely was drafted for a particular retailer in Colorado. Which one is the question that needs to be answered and what is that retailers relationship to the legislators who authored this bill.

  • Bill Anderson

    So Bill, I don’t shop at grocery stores very often. I get most of my food at farmer’s markets. But I’m curious…
    Would you be in favor of holding corporate grocery chains accountable for marketing and selling foods laced with BPA?
    What about GMO foods? If future scientific evidence demonstrates more conclusively their link to human diseases, should Monsanto and all the industrial farms, processors, distributors, and grocery stores who have spent the last decade+ promoting GMO-laced foods be held liable for the widespread damage to public health (and to the enviroment) that GMO’s have caused?
    What about the FDA and USDA? Should John Sheehan and Tom Vilsack be held liable for allowing GMO alfalfa, sugar beets, and salmon onto the market when it is shown how detrimental they are to human health?

  • Yes I would and yes they should. It is good to see that you at least recognize that the science around human illness and GMA, and to a lesser extent BPA, is still not solid. I personally have great concerns about both – especially BPA. I am not anti-science, I am anti-stupid.

  • Doc Mudd; evil corp shill, etc., etc…

    Hmmm. And should the Weston A. Price Foundation and other whackadoodle evangelists “who have spent the last decade+ promoting [raw milk and other needlessly risky] foods be held liable for the widespread damage to public health…”?
    Why not? Heck, why not right now?

  • Bill Anderson
  • Bill Anderson

    Don’t tell me that raw milk is “needlessly risky” if you advocate for GMOs, evil corp shill.
    People have been drinking raw milk for thousands of years. It has withstood the test of time. Pasteurization is a modern invention, designed to deal with a modern problem — industrial confinement agriculture. Raw milk produced with traditional dairying practices following good hygene and sanitation is very safe. The last death from milk in the U.S. was from pasteurized milk. And estimates have it that there are several million people in the U.S. who drink raw milk on a regular basis.
    As far as GMOs go… not so time-tested. This is where the precautionary principle is useful.
    I would also suggest that pasteurized milk should have the following warning label:
    “WARNING: This milk is produced using rBGH. According to a recent court ruling, rBGH causes dairy cows to increase the production of insulin-like growth hormones that, in high levels, are linked to several types of cancers, among other things. This milk may also contain mycobacterium paratuberculosis (Johnes disease), which has the potential to survive pasteurization and may be linked to Crohnes disease in humans.”
    Bill, would you be in favor of putting the above warning label on all pasteurized factory-farmed milk?

  • Sure and this one for Raw Milk and Raw Milk Cheese:
    Warning signs on the bottles and at point-of-purchase should be mandatory. An example: “WARNING: This product has not been pasteurized and may contain harmful bacteria (not limited to E. coli O157:H7, Campylobacter, Listeria and Salmonella). Pregnant women, infants, children, the elderly and persons with lowered resistance to disease (immune compromised) have the highest risk of harm, which includes Diarrhea, Vomiting, Fever, Dehydration, Hemolytic Uremic Syndrome, Guillain-Barre Syndrome, Reactive Arthritis, Irritable Bowel Syndrome, Miscarriage, or Death, from use of this product.”

  • Also the use (over use) of antibiotics.

  • Dog Doctor

    Bill, I like your most recent blog http://www.marlerblog.com/lawyer-oped/comments-on-blogs—the-good-bad-and-ugly/. Let limit the discussion to the science issues. BPA, and GMO are still under question. Raw milk if you look at the number of serving consumed using 1-3% of fluid milk production and the number of illnesses linked by Good Epidemiologic investigations. It is about 1,000 risker than pastuerized milk so we can warning lables on both. May be we can come of with a risk ranking like green, yellow, blue, and red. Green for cleared by science, I don’t mean GRAS – generally regarded as safe but actually studies. Yellow some question but no clear anser. blue for some indications of problems and Red for documented cases. Just a thought to agreement that there is risk in everything but some qualitive way of ranking it.

  • Bill Anderson

    It is true that pasteurized milk is slightly less likely to harbor organisms responsible for accute gastro-intestinal distress as compared to certified raw milk (although when it does harbor them, pasteurized milk can be much worse… raw milk is almost never a vector for listeria because listeria is saprotrophic — it feeds on dead/decaying oganic matter. Raw milk is a living food and so does not support the growth of listeria. Pasteurized milk is dead, and so supports the growth of listeria, and PMO milk plants are naturally RIFE with listeria.)
    However, the long-term risks of drinking pasteurized milk are not well understood, particularily when you consider modern industrial dairy farming practices.
    Personally, I trust thousands of years of tradition (and millions of years of evolution) over untested modern industrial biotechnology. That’s just me.
    Speaking of anti-biotics, Bill, did you hear about this — http://www.greenchange.org/article.php?id=6498
    And here is the information about the recent court ruling on rBGH — http://truefoodnow.org/2010/09/30/federal-court-strikes-down-ohio-ban-on-rbgh-free-labels-on-dairy-products/
    My contention is that if we are going to require warning labels on raw milk, then there should also be warning labels on all foods that contain GMOs, including milk produced with rBGH.

  • Dog Doctor

    Mr. Anderson, do you realize what you are endorsing with this statement
    “Personally, I trust thousands of years of tradition (and millions of years of evolution) over untested modern industrial biotechnology. That’s just me.”
    Old forms of treatment include bleeding to correct the four humours in the body which was done for hundreds of years. see http://articles.latimes.com/2006/jun/26/health/he-esoterica26
    Tomatoes were thought to be poisonous.
    Mr. Anderson do you really want to stop progress?
    Other issues like you doctor washing his or her hands before surgery was developed by Dr. Lister in 1900’s. You may want to read “The Lancet and Scalpel: A Brief History of Medical Science and Understanding” at http://scheong.wordpress.com/2010/04/14/the-lancet-and-scalpel-a-brief-history-of-medical-science-and-understanding/ before you want to stay with the old ways are best.

  • Bill Anderson

    Obviously, humans are capable of making mistakes, and of carrying on those mistakes for a time because of arrogance and refusal to see the evidence in front of their face. However, ultimately, bad practices don’t stand the test of time for a reason.
    I predict that GMO’s and chemical-industrial agriculture will not last, because they are bad practices and are not sustainable. It is only a matter of time, as more and more people see the errors in the industrial agriculture system and abandon it for a better, healthier, less input-intensive, more diversified, more wholesome, and more sustainable system.
    The question is how much damage, destruction, suffering, and collateral damage is this system going to cause until it is totally abandoned? I fear that it could be many decades or centuries before we are finally able to vanquish the dark forces that continue to impose these toxins onto an unwitting American public. Sadly, their hand may (ultimately) only be forced by the end of cheap oil and the looming threat of total mass rebellion.
    Industrial agriculture is less than a century old. The process to fix nitrogen in a labratory was not invented to fertilize crops. It was first invented by the Germans to replace blockaded supplies of saltpeter (gunpowder) during WWI. The same is true of many toxic industrial-ag chemicals — they were first developed for wartime purposes (guess who designed Agent Orange used in the jungles of Vietnam — that’s right, our good friend Monsanto Corp.) and then adapted to peacetimes purposes in order to wage war on the enviroment.
    European raw milk cheese making traditions have lasted for centuries — despite the dark ages, wars, revolutions, WORLD wars, industrialization, urbanization, globalization… these traditional raw milk cheeses are still cherished and valued. Some traditions (such as Alpine cheese making, with its transhumance to the mountains and back every year) are over 2,000 years old and were documented by the Romans during the time of Christ.
    Why is this, might you ask? Why have these traditions lasted for so long, despite all odds?
    The reason: Because raw milk cheese tastes better and is healthier for you. Farming methods that are consistant with raw milk cheese production are consistant with good enviromental stewardship and good animal husbandry.
    Industrial Ag is unproven and dangerous. It should be abandonded before it completely destroys all of our topsoil and leads to famine and war.

  • Bill Anderson

    Also, I should add, tomatoes ARE mildly poisonous to some people. They are a member of the nightshade family. Poison nightshade is a close relative of the tomatoe.
    Other members of the nightshade family — Potatoes (didn’t your mother ever teach not to eat sprouted potatoes? Same thing — they are poisonous). Tobacco (need I say anymore?)

  • Dog Doctor

    Mr. Anderson, I would not disagree a number of advances have occurred during wars. As the saying goes necessary is the mother of invention. Not that I am advocating for war but there are number of advances linked to battlefield medicine. The development of Plasma, blood clotting accelerants, new bandages, sutures, etcs have been done during wars. The issue of ahtroscerolosis was discovered in the Korean War hospital therefore, to say something is bad because it was developed during war isn’t true.
    I will not argue about your belief that raw milk cheeses taste better that is your preference, just like I don’t argue with Adrew Zimmern about the food he chooses to eat. On the safety issue, we have a large disagreement. There have been too many outbreaks associated with raw milk cheese especially queso fresco which has been linked to numerous Listeria, TB and other outbreaks.
    Since you doubt anything that doesn’t agree with you I suggest you try Google scholar which is a search engine of published scientific literature.
    For proof pathogens in raw milk, I suggest the article the Journal of Food Protection which is a well respected journal in the food safety world published by the International Association of Food Protection.
    Recovery of Salmonella, Listeria monocytogenes, and Mycobacterium bovis from Cheese Entering the United States through a Noncommercial Land Port of Entry
    Authors: Kinde, Hailu1; Mikolon, Andrea2; Rodriguez-Lainz, Alfonso3; Adams, Cathy4; Walker, Richard L.5; Cernek-Hoskins, Shannon3; Treviso, Scarlett2; Ginsberg, Michele6; Rast, Robert7; Harris, Beth8; Payeur, Janet B.8; Waterman, Steve9; Ardans, Andalex5
    Source: Journal of Food Protection®, Volume 70, Number 1, January 2007 , pp. 47-52(6)
    Publisher: International Association for Food Protection
    JAMA Salmonella Typhimurium Infection Associated With Raw Milk and Cheese Consumption—Pennsylvania, 2007
    For places where CAFO’s and “big Dairy and Ag” don’t exist below is article from Brazil
    Appl Environ Microbiol. 2008 August; 74(15): 4954–4961.
    Published online 2008 May 23. doi: 10.1128/AEM.01828-07.
    PMCID: PMC2519366
    Copyright © 2008, American Society for Microbiology
    Retail Survey of Brazilian Milk and Minas Frescal Cheese and a Contaminated Dairy Plant To Establish Prevalence, Relatedness, and Sources of Listeria monocytogenes Isolates
    I found articles going back to 1906 reporting illnesses associated with raw milk and raw milk cheese before Monsanto existed, before World War 1, CAFO’s, big Ag, etc.

  • Randy Francisco

    I am a bit surprised to hear Mr. Anderson say that he believes in evolution. Since that is the case, he must understand that bacteria is also subject to the evolutionary process, as are viruses.
    Randy Francisco

  • James Dodd

    The story going around the state house is that this bill is being promoted by Vitamin Cottage through its lobbyist, Kirstn Thomson.

  • James Dodd

    I just spoke with Sen. Jahn. She confirmed that Vitamin Cottage and Kirsten Thomson, its lobbyist, are the source and prime movers behind this bill. Why – you may ask. Think PCA and peanut butter.