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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Small vs. Large Producers of Cheese – What is Safer?

Screen shot 2011-01-31 at 9.49.06 PM.pngBryan Buckalew of OPB News and I talked a few weeks ago:

Listen Here – Audio

Read the transcript below:

Northwest artisan cheese makers say the F.D.A. just doesn’t get their craft. The U.S. Food and Drug Administration has been getting tough on food companies after years of incidents like last August’s nation-wide egg recall.

President Obama signed a new food safety law this month expanding the F.D.A.’s authority. But two Northwest cheesemakers have been especially hard hit by new requirements.

Last year, Washington State inspectors found listeria at the Estrella Family Creamery in Montesano, Washington.

It’s a bacteria that causes flu-like symptoms that’s especially dangerous for pregnant women.

Owner Kelli Estrella says she cleaned up the listeria, but last September the FDA checked again.

After one swab came back positive, inspectors asked Estrella to order a broad recall.

She said no. Estrella argued most of her cheese wasn’t contaminated at all.

But a federal judge sent marshals to impound the cheese anyway.

Kelli Estrella: “At this point, our attorney is hoping we can come to an agreement out of court. To be honest, I’ve very concerned that we are still too far away from coming to an agreement and will we be able to hold up and not go bankrupt by the time that happens.”

Central to the question of whether Estrella and the FDA will be able to reach an agreement is the issue of size: should artisan producers be judged by the same standards as industrial food companies?

For example:

Kelli Estrella: “Do you know what cheese mites are?”

They’re these microscopic little critters that sometimes burrow into the rinds of longer aged cheeses, like Mimolette, a French cheese that’s actually aged with cheese mites.

Kelli Estrella: “On purpose! It doesn’t make anybody sick. But see the F.D.A. says, ‘This is filth.’ That’s not filth, that’s natural.”

Jennifer Thomas: “From our perspective, from the F.D.A.’s perspective, we don’t treat small producers any differently from large producers.”

Jennifer Thomas heads up the enforcement group at F.D.A.’s center for foods.

Jennifer Thomas: “If the F.D.A. comes in and finds you have product contamination or environmental contamination, then our expectation is that those producers take action very quickly to address that. Safety pertains the same to a small producer as it does a large producer.

But many consumers in the Northwest prefer small, local food producers.

Bill Marler questions why. He’s an attorney in Seattle who’s represented people sickened by contaminated food from companies like KFC and ConAgra.

Bill Marler: “There’s no question I think that we really need to look really hard at how we produce our agriculture in the country. But I don’t think we should just have these conventional wisdoms that because something is small, because something is artisan, that somehow it’s safer.”

Still, artisan cheesemakers are finding it hard to conform the F.D.A’s one-size-fits-all approach.

Sally Jackson is another raw milk cheesemaker in Washington. Her farm is in Oroville, way up near the Canadian border.

In December, her cheese sickened eight people in four states.

Sally Jackson: “In 30 years of cheesemaking, I had never had anybody say that they got sick from eating my cheese, so it was really shocking because it sounded bad, obviously.”

Ultimately, she shut down her business. She says the recall plus the upgrades she would’ve had to make to her facility – it was all just too expensive.

Bryan Buckalew: “Will you keep your farm?”

Sally Jackson: “I don’t know at this point.”

Jackson’s fellow cheesemaker Kelli Estrella is hoping she can reach an agreement with the F.D.A. so she doesn’t go out of business too.

  • Doc Mudd

    Too small to fail.
    Yeah, whatever.

  • Bill Anderson

    Cheese mites add flavor to cheese, they are not dangerous. Why is it that we can import traditional French cheeses that are intentionally infested with mites, but American cheese makers who even have small amounts of mites penetration are supposed to discard the cheese? The mites are not dangerous. They are just a nucainse if they turn your cheese to a pile of dust before you eat it.
    btw… In the E.U. Listeria Monocytogenes is tolerated in cheese at upto 10 CFU/gram. The infectious dose is over 100 cfu/g. It is unfortunate the we are not upto European standards in our ennumeration and differentiation techniques for listeria. Cheese can have low levels of listeria and still be perfectly safe. The same applies to Staph Auerus. Low levels of Staph are not dangerous. It is when they reach a large concentration (from my understanding, over 10^7 per mL) that they produce entero-toxins.

  • Doc Mudd

    Bill A. instructs us: “Cheese mites add flavor to cheese, they are not dangerous…Cheese can have low levels of listeria and still be perfectly safe. The same applies to Staph Auerus.”
    Well, you eat it then, genius. Not me, not my kids.
    Bill A. further informs us: “The infectious dose [of LIsteria monocytogenes] is over 100 cfu/g.”
    So, would that be the LD50 for an immune compromised kidney transplant patient? For a 2 year old child? For a Canadian octogenarian? For a pregnant American woman?
    Obviously, Bill A., you have somehow completed the laboratory research to arrive at this pivotal LD50 number you’ve enshrined for us? Or, are you just blowing more smoke up our skirts?
    I’ll take mine without the Listeria or the Staph or the mites, thank you very much.
    Ship your contaminated garbage to the EU if they consider it such a delicacy.

  • Marco

    Bill A: I’m willing to be open-minded about your claim that a little listeria won’t hurt me or my children or my elderly parents. So please tell me whether the low levels of listeria on your cheese when you sell it to me might grow in my refrigerator to infectious levels. Can that happen? And do you recommend that pregnant women should eat or avoid artisan-crafted cheese?

  • Listeria monocytogenes can be found throughout the environment and in many foods. It resists heat, salt, nitrite and acidity better than many organisms and can grow at temperatures as low as 34F (1C). Low storage temperatures slow, but do not stop growth. The infective dose of Listeria monocytogenes is unknown but is believed to vary with the strain and susceptibility of the victim. It is safe to assume that in susceptible persons, fewer than 1,000 total organisms may cause disease.

  • Also from the FDA:
    The review showed that many soft cheeses exhibited the capability to support growth of L. monocytogenes.1 Further, a number of soft cheeses have been implicated in foodborne illnesses.2
    However, in addition to refrigeration, there are several factors in certain cheeses that may further control growth of pathogenic organisms. These factors may include the presence of organic acids, preservatives, or competing flora; pH; water activity; or salt concentration. When two or more of these are combined, the resultant effect is an additional hurdle to the outgrowth of pathogens of concern. It is precisely this effect that makes it possible to safely store some refrigerated cheeses beyond either one of the two Food Code criteria for date marking (i.e., 7 days at 41°F or 4 days at 45°F).
    On the other hand, there is a considerable body of evidence showing that certain cheeses do not support the growth of pathogens during the aging process and subsequent storage although survival of the organisms is possible.3, 4, 5, 6 Also, evidence supporting the contention that growth of L. monocytogenes is inhibited during refrigerated storage can be found in inoculation studies conducted on various cheeses.7
    Cheeses that do not support growth of L. monocytogenes include hard or semisoft cheeses such as Cheddar and Romano or Colby and Swiss, and various pasteurized process cheeses. Hard cheeses are manufactured with a moisture content not exceeding 39 percent as specified in 21 CFR 133.150 and semisoft cheeses contain more than 39 percent but less than 50 percent moisture as specified in 21 CFR 133.187. Pasteurized process cheeses (manufactured according to 21 CFR 133.169 and labeled as containing an acidifying agent) were also shown to inhibit growth of L. monocytogenes.

  • Bill Anderson

    The growth and survival of listeria in cheese has to do with its moisture, pH, stage of ripeness, presence of competative microflora, and when and how the listeria contaminated the cheese.

  • Therein lies the problem for the cheesemaker, customer and regulator. What’s the right tolerance given the cheese and conditions?

  • Bingo. The problem is essentially simple. If you have a culture medium for flora in the wild they will always take the opportunity to grow. It’s a race. Do you eat it before they do or not ?

    Water pollution is changing the rules of the game. CAFOs have polluted the Mississippi River Basin with agricultural pollutants such as antibiotics, manure and their suppliers have added pesticides and GMO ‘foods’ with added toxins inbred to the feeds and Roundup all into the water system. Nor is that all.
    But the long and short it noted by the pesky raw food advocates – who know stabilizers and preservatives are toxic to people. That’s the problem with medicines too : you poison ( hopefully ) a disease before the person.
    And in a community of immune compromised individuals – whether from exposure to plastics, airborne smog or other progressive materials – the autoimmune system is a growing concern.

    Adding toxins to foods and removing natural nutrition has predictable results. Is your sawdust food safe when it is free of nutrients which would also feed chance phage or other organisms ? Safe in this case meaning unhelpful in maintaining a healthy body in the first instance regardless of hazards.

  • Marco

    Opit: I don’t eat sawdust food. Like many, I eat a mix of produce and protein from my co-op, farmers’ market and a supermarket chain. Maybe, someday, the accumulated stabilizers and preservatives I’ve consumed in my lifetime — or the air I’ve breathed — will affect my health. But I’m asking you and Mr. Anderson a more timely question. Will the low-level listeria on the cheese I bought from Mr. Anderson or my local cheese maker make me sick now? How about my pregnant wife? Simple questions, it would seem … yet you seem to obfuscate.

  • Doc Mudd

    So, then, it is unanimously agreed that listeria control in small producer artisanal cheeses is, by definition, a crap shoot.
    Apparently the problem cannot be resolved, since Bill A. argues for a lowering of safety standards to ‘correct’ the issue. Sorry, not a solution, Bill A. You need to manufacture clean, safe product or none at all if you’re gonna market here in the U.S. If you can’t/won’t clean up, then maybe you should be producing and selling some sort of screwy elitist something or other that’s not intended to be ingested as food.
    Maybe you could transition to growing Christmans trees that are so snobby and special they come infested with their very own termites in a variety of aromas; chocolate, cinnamon, licorice, raspberry, etc.? Maybe you could add enough termites to reduce the trees (and the needles!) to “a pile of dust” by New Years?

  • Bill Anderson

    Scroll towards the bottom of this link (about 3/4’s down)
    http://www.oddee.com/item_97263.aspx
    Yes, that’s a monument to the cheese mite. They are everywhere. They live on your eyebrows and in your armpits and they can float on dust particles. Rather than wage war on them, it would be wiser to learn to live in balance with them. The biggest issue with out-of-control cheese mites is that they can eat the cheese before it is fully mature in flavor.
    Personally I’d rather eat some cheese mites than have my cheese aged in a room that is fumagated with Methyl Bromide. One whiff of that stuff can kill you. That is how they used to kill mites on traditional clothbound cheddar. Methyl Bromide is a horrible greenhouse gas and enviromental toxin and is banned in most place (most importantly England — not sure about the U.S.)
    Today they brush the rind by hand or with a machine to disrupt the mites reproductive cycle every 7 days.
    Some producers will use a vacuum cleaner to suck up the mites, and then coat the cheese in Diatomacous Earth (D.E.) to slash through their exoskeletons. This is only effective for so long. Eventually the mites will build a pile of dead mites large enough to protect themselves from the DE. DE is also very desicating to cheese, and can be carcinogenic if inhaled. Its use is banned in the E.U. It should probably be banned in the U.S., but it would be impossible to control mites to the health inspectors satisfaction without the use of carcinogenic D.E.
    You see, there are many dimensions to food safety that are not usually considered on this blog. This obsessive focus on germ theory is far too narrow. Food safety is not something which you can reduce down to a few “evil” organisms. It is a wholistic system which requires a wholistic approach. To fail to understand this, it to fail to really be in favor of food safety.

  • Gabrielle Meunier

    To be win-win, the goal of the Food Safety Modernization Act must not be to put businesses out of business, it must be to work with owners to quickly and smartly resolve the safety issues so that their products meet good production safety standards. Its sad that Sally Jackson may go out of business, but perhaps some of these safety updates could have been implemented over her last 30 years of production and hence not have been so costly taken on all at once. Bill Anderson may have thought that Sally Jackson was producing a good product, but how would he feel if his wife lost their baby due to listeria? When it hits home, it is a very different story. Hopefully the the new Food Safety Modernization Act will bring to light changes NOW that artisan cheese producers can invest in so that they can avoid some of these issues in the future.

  • Sam

    Our friend Bill A. seems exactly the sort of person who, if he were running a food company, would contribute generously to the continued success of Marler Clark LLP. PS.
    Yes, a “holistic” approach is desirable, but one simply can not toss out modern science with the bath water. The “head in the sand” approach to microbial hazards forms the very basis of existence for Marler Clark. Get used to it, or get out of the food business. Or keep making people sick. Pretty simple choice, really.

  • Doc Mudd

    Sadly, the terms ‘holistic’ and ‘sustainable’ have been bastardized and corrupted to just short of meaningless – or rather, they are used as code for ‘I will just do as I damned please and will make up defensive crap as I go along’. Too bad because a kernel of truth and wisdom resided in the original concepts that might have added an important dimension to applied science.

  • Have you seen Food inc? Leave the small guys alone. We don’t need the big boys getting any bigger. I’m not super comfortable with the fact that 90% of my food comes from a half dozen producers.

  • Daniel, actually, yes – I was involved with the production and I represented the woman who lost her son.