Marler Blog - Providing commentary on food poisoning outbreaks & litigation

Ethanol has long been promoted (especially by farm state Senators) as a solution to greenhouse gas emissions. In 2005, Congress passed the Renewable Fuel Standard, which mandated that 7.5 billion gallons of renewable fuel be blended into gasoline by 2012. Two years later it increased this amount to 36 billion gallons by 2022. Ethanol – the most common alternative fuel – is now blended into 70% of the nation’s gas.

So what’s the benefit? The U.S. Department of Energy says that ethanol production and use will reduce greenhouse gas emissions by up to 52%, compared to gasoline production and use.

But the list of ethanol cons - or “corns,” if you will - is lengthy. It includes:

-       Ethanol is harming the meat, egg and dairy industries by taking up huge amounts of the country’s corn supply (now 40%) thereby driving up the cost of the grain used to feed livestock, and in turn upping the cost of commodities that come from animals.  The end of 2011 saw the end of the government’s $5 billion in annual subsidies to the ethanol industry, but its alternative fuel requirement remains the same, meaning that if corn needs to be rationed, ethanol producers may be exempt from this rationing, putting more of a burden on meat producers, who will have to reduce the amount of animals they raise and slaughter, which will in turn make meat more expensive for consumers.

-       Ethanol uses up more energy than it produces. A study out of the University of California Berkley and Cornell University found that producing a liter of ethanol requires 29% more fossil fuel energy than the ethanol energy it produces. And ethanol may not even be more efficient than gasoline. It takes an estimated 2.2 billion gallons in oil equivalents to produce 1.7 billion gallons of ethanol, according to a 2001 article from Cornell University.

-       Ethanol production takes up large amounts of land, irrigation water and other resources. It takes 2.69 kg of corn grain to produce 1 liter of ethanol. In 2005, to produce the 10.6 billion gallons of ethanol used in the United States, approximately 1,335,000 acres of land were needed.

-       Gas with ethanol is harder on a car’s engine than pure gasoline, and cars that use ethanol mixes are less fuel-efficient.

-       For the first time in 40 years, last year the U. S. was no longer the world’s biggest corn exporter, as more and more corn goes to domestic ethanol production.

-       There are children starving in Africa – actually. In a world where the food supply is becoming an increasing problem (35% of deaths of children under 5 are due to malnutrition), corn is one of the cereal grains that make up 80 percent of what the world eats, and is therefore essential to combatting global hunger. Reducing corn exports reduces the amount of the grain available to other countries.

Now, a new study by U.S. Department of Agriculture, Agricultural Research Service, U.S. Meat Animal Research Center has pointed out yet another drawback of an ethanol byproduct, wet distillers grains with solubles (WDGS), could also be harmful to public health.

According to the study, with the catchy title “Impact of Reducing the Level of Wet Distillers Grains Fed to Cattle Prior to Harvest on Prevalence and Levels of Escherichia coli O157:H7 in Feces and on Hides,” found that cattle fed finishing diets with WDGS, as opposed to a predominantly corn diet, have been shown to harbor increased Escherichia coli O157:H7 populations in the feces and on the hides.

The problems with ethanol appear many and the benefits few, and more importantly, it appears to be downright dangerous.

This past week, I read Utah’s S.B. 34 titled “Production and Sale of food in Utah Revisions,” along with its New Hampshire counterpart, H.B. 1650-FN, called “Commerce in Food in New Hampshire.”  As any lawyer would, I immediately asked myself, “what are these pieces of legislation really trying to do,” and, of course, “are they constitutional?”  I’ll get to those questions in a moment.  Here are the two bills:

The Utah bill, S.B. 34:

• Prohibits federal regulation of an agricultural product that remains in Utah after it is made, grown, or produced in Utah;
• Allows a person to identify certain agricultural products by indicating that the products are "Made in Utah," "Grown in Utah," or "Produced in Utah;"
• Prohibits a person from claiming that an agricultural product was made, grown, or produced in Utah if the product is not a Utah agricultural product; and
• Makes it a class A misdemeanor for a person to enforce federal regulation of a Utah agricultural product that remains in Utah.

Under the bill, the definition of “Utah agricultural product" is an agricultural product that is entirely, (i) made in Utah, (ii) grown in Utah, (iii) produced in Utah or produced with an insignificant part of a basic or generic material that is acquired from outside of Utah.

I guess that could mean Made/Grown/Produced in Utah and a little bit in China? 

Perhaps even more problematic than SB 34’s possible conflict with Congress’s power under the Commerce Clause is that SB 34 creates criminal liability for state or local officer trying to enforce federal law.  This is a conflict with federal law if there ever was one, presuming, of course, that Congress (and its statutorily created agencies, the FDA and USDA) had the constitutional power to regulate the conduct in the first place.

The New Hampshire bill, HB 1650-FN:

Like Utah’s bill, this bill seeks to

• Exempt foodstuffs grown or produced, and then sold, in New Hampshire from federal regulation if the product is labeled “Made in New Hampshire;” and,
• Provides penalties for both agents attempting to enforce federal regulations and for producers and processors who label their food as “Made in New Hampshire” when it does not meet “Made in New Hampshire” requirements.

According to the preamble, the purpose of the New Hampshire bill is to allow for locally produced food products to be sold and consumed within New Hampshire and to encourage the expansion and accessibility of farmers’ markets, roadside stands, farm and home based sales, and producer to end consumer agricultural sales.

First, these bills seem to lack any clear point.  The sale of local food certainly is not improperly impeded by the fact that there are federal laws that bear on the production of that food.  And clearly, these bills are not motivated by a concern for the public’s safety.  Instead, these bills are just a effort to piecemeal these states out of an entirely constitutional regulatory scheme that, like it or not (and pretty clearly, they don’t like it) allows for federal regulation and oversight over a broad range of food producers, and food producing activities.  Even New Hampshire’s slogan “Live Free or Die” must recognize the federal government’s constitutional role in our society.

On that point, exactly what is the federal government’s power to control the methods and manners by which our food is produced and sold?  Most will immediately jump to the Commerce Clause of the US Constitution.  Undoubtedly, this powerful set of words is a part of the equation, but it is only a part.  The federal government not only has plenary (meaning complete and all encompassing) power over interstate commerce—i.e. commerce between the states—but also can constitutionally undertake any act, so long as it does not infringe on some individual right guaranteed by the bill of rights or some power granted to another branch of government, that is “necessary and proper” to the furtherance of its enumerated power over interstate commerce. 

Just words?  Think again.  A little more history:  The federal government is one of enumerated powers, meaning that it can act only where it has the constitutional authority to do so.  As James Madison wrote:

[t]he powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State governments are numerous and indefinite.

The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961).  Among the powers specifically delegated to the federal government is the power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."  U.S. CONST. art. I, § 8, cl. 3.  The "commerce clause" has, of course, become a particularly potent regulatory enabler that, as a result, has spawned a notoriously complex body of case law.  See generally United States v. Lopez, 514 U.S. 549 (1994) (Kennedy, J., concurring).  For present purposes, however, it suffices to say that the Commerce Clause has provided the constitutional authority for a great many landmark legislative and regulatory measures.

The Supreme Court’s interpretation of these powers has produced a complex line of case law that contemplates the rightful regulation of things that appear to be even intrastate matters—i.e. local actions that do not involve the sales of goods and services across state lines—as long as those matters have a "substantial economic effect on interstate commerce."  See Wickard v. Filburn, 317 U.S. 111, 125 (1942) (emphasis added).   "[E]ven if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce."  Id.

This is mere food for thought, as it remains to be seen how the actions that are seemingly insulated from federal reach by the Utah and New Hampshire bills actually affect interstate commerce.  The crafting of the Utah’s and New Hampshire’s legislation to require the production (well, maybe not all of it) of the food instate and that it be consumed or remain instate (hmm, what about internet sales and roadside stands or farmer’s markets near state borders?), at most allows these states to walk a fine line around the Commerce Clause.

And then, again, there are the provisions in these bills that seek to criminalize any action taken to enforce a federal law that is in conflict with the dictates of these bills.  Even the bills themselves acknowledge the potential tension with the Supremacy Clause of the US Constitution (Article VI, Section 2):  "This Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

The Utah bill’s legislative analysis acknowledges that the United States Supreme Court has "long recognized that state laws that conflict with federal law are 'without effect,'" Altria Group, Inc. v. Good, 555 U.S. 70, 76 (2008), quoting Maryland v. Louisiana, 451 U.S. 725, 746 (1981), and has further held that an individual cannot be guilty of a state crime if the individual was acting necessarily and properly under the authority of the laws of the United States. Cunningham v. Neagle, 135 U.S. 1, 75 (1890).

The only relevant question is whether Congress, again through its statutorily created agencies FDA and USDA, have the power to regulate, or create the law that is in conflict with the Utah or New Hampshire law, in the first place.  If so, there is an unconstitutional conflict with the Supremacy Clause, and these states laws are of no force and effect.

Again, on this question the Necessary and Proper Clause speaks loudly.  Properly created federal agencies like the FDA and USDA have the constitutional power to make any regulation that is both necessary and proper to the effectuation of its constitutional authority over interstate commerce.  And this, as the Supreme Court said in Wickard v. Filburn, potentially reaches even activities that appear purely local in character. 

At best, the Utah and New Hampshire bills raise a number of Constitutional concerns.  At worst, we should all just view these bills for what they really are:  likely misguided attempts to address the concerns of just a few about feared governmental intrusion into our private lives.  I’m all for freedom, but not every guy who espouses the power of his constitutional rights and liberties is correct in his analysis of constitutional jurisprudence.  I would say that the supporters of these bills have conscientiously walked a fine line between constitutional right and wrong, and have done so in a basically empty manner. 

What do these bills really accomplish?

More to the point, what are Utah and New Hampshire Agriculture afraid of?  Are they really afraid of the FDA and FSIS regulating food safety within the state, especially when it is likely that they food may cross state boundaries?  And, why would the legislature even consider laws that are likely unconstitutional?  Is it to curry favor of a constituent, or stick a thumb in the eye of Uncle Sam?

The point should be to produce safe food, not to push legislation that essentially meaningless.

When AP reported this week that an owner of Jensen Farms was being fined by the U.S. Department of Labor for failing to provide safe migrant worker housing, I must admit even I was a bit shocked.  Could it be that an owner of a business that allowed the deadly fecal bacteria Listeria to coat its product would also treat its employees like crap too? 

Well, apparently yes.  It seems that Eric Jensen, the Colorado Cantaloupe grower that caused an outbreak that killed 30 (by my count 32) - sickening a total of 146 - people, rented migrant workers unsanitary, overcrowded rooms at a motel he owns. Inspectors said many rooms lacked beds, laundry facilities and smoke detectors. Jensen now faces a whopping $4,250 in civil penalties.  As the Department’s Denver director said:

"Profiting at the expense of vulnerable workers is not just inhumane, it's illegal."

I would add immoral and really, really stupid – especially when it comes to producing safe food.

Less we forget, the FDA and the staff of the House Energy and Commerce Subcommittee found a number of safety lapses at Jensen Farms that likely led to the outbreak:

• Condensation from cooling systems draining directly onto the floor,
• Poor drainage resulting in water pooling around the food processing equipment,
• Inappropriate food processing equipment which was difficult to clean (i.e., Listeria found on the felt roller brushes),
• No antimicrobial solution, such as chlorine, in the water used to wash the cantaloupes,
• No equipment to remove field heat from the cantaloupes before they were placed into 
cold storage, and
• FDA officials were highly critical of the processing methods used at Jensen Farms. According to these FDA officials, the probable causes of the melon contamination at Jensen Farms included “serious design flaws” in the processing technique used at Jensen Farms, “poor sanitary design of the facility itself,” and “lack of awareness of food safety standards by Jensen Farms.” In particular, FDA emphasized to Committee staff that the processing equipment and the decision not to chlorinate the water used to wash the cantaloupes were two probable causes of the contamination.

Hmm, does this sound familiar to you?  Remember the sickening of 1939 people with Salmonella and the recall of 500,000,000 eggs in 2010 linked to Iowa’s Wright County Egg?  Who could forget the FDA inspection report highlights of some of its findings at Wright County:

• Chicken manure located in the manure pits below the egg laying operations was observed to be approximately 4 feet high to 8 feet high at the following locations: Layer 1 – House 1; Layer 3 – Houses 2, 7, 17, and 18. The outside access doors to the manure pits at these locations had been pushed out by the weight of the manure, leaving open access to wildlife or domesticated animals,
• Un-baited, unsealed holes appearing to be rodent burrows located along the second floor baseboards were observed inside Layer 1 – Houses 1-9 and 11-13; Layer 2 – Houses 7 and 11; Layer 3 – Houses 1, 3, 4, 5, and 6; Layer 4 – House 3,
• Dark liquid which appeared to be manure was observed seeping through the concrete foundation to the outside of the laying houses at the following locations: Layer 1 – Houses 1, 2, 3, 4, 5, 8, 11, 12, and 14; and Layer 3 – Houses 1, 8, 13, and 17,
• Standing water approximately 3 inches deep was observed at the southeast corner of the manure pit located inside Layer 1 – House 13,
• Un-caged birds (chickens having escaped) were observed in the egg laying operations in contact with the egg laying birds at Layer 3 – Houses 9 and 16. The un-caged birds were using the manure, which was approximately 8 feet high, to access the egg laying area,
• Layer 3 – House 11, the house entrance door to access both House 11 and 12 was blocked with excessive amounts of manure in the manure pits,
• There were between 2 to 5 live mice observed inside the egg laying Houses 1, 2, 3, 5, 7, 9, 10, 11, and 14, and
• Live and dead flies too numerous to count were observed at the following locations inside the egg laying houses: Layer 1 – Houses 3, 4, 6, 8, 9, 11, and 12; Layer 2 – Houses 7 and 11; Layer 3 – Houses 3, 4, 4, 5, 7, 8, 15, 16, 17, and 18. The live flies were on and around egg belts, feed, shell eggs and walkways in the different sections of each egg laying area. In addition, live and dead maggots too numerous to count were observed on the manure pit floor located in Layer 2 – House 7.

And, guess what else – the owner of Wright County, Jack DeCoster, cared little for his employees too.  A few examples:

• In 1997, DeCoster Egg Farms agreed to pay $2 million in fines to settle citations brought in 1996 for health and safety violations at DeCoster's farm in Turner, Maine. Then-Labor Secretary Robert Reich said conditions were:

"As dangerous and oppressive as any sweatshop."

• In 2002, the federal Equal Employment Opportunity Commission announced a more than $1.5 million settlement of an employment discrimination lawsuit against DeCoster Farms on behalf of Mexican women who reported they were subjected to sexual harassment, including rape, abuse and retaliation by some supervisory workers at DeCoster's Wright County plants.

And, who can forget Stewart Parnell and the Peanut Corporation of America Salmonella outbreak of 2009 that sickened 714 persons in 46 states – killing nine.  The FDA reported that the company shipped tainted products under three conditions: (1) without retesting, (2) before the re-test results came back from an outside company, and (3) after a second test showed no bacterial contamination.

As one PCA employee was quoted as saying:

“I never ate the peanut butter, and I wouldn’t allow my kids to eat it.”

My strong suspicion is that Jensen Farm workers were not eating Jensen Farm cantaloupes as they sat in their overcrowded hotel rooms.  And, I would be willing to bet that Wright County employees were not taking a dozen eggs home to the family from work.

Perhaps there is a lesson here?  Perhaps how you treat your employees, and how the employee feels about the product, says volumes about the quality and safety of the product?  If the employees will not eat the product, perhaps that products should simply not be sold.

My father died last evening. I had the honor of being with him for the last days, hours, minutes and seconds of his long life. A former high school and college basketball star, Korean War veteran, college math teacher, gentleman farmer and fisherman - but never a “former” marine, my dad died on his own terms and with the same quiet dignity he lived his life.

I am not sure why I put Ernest Hemmingway’s short stories into my computer bag when I drove to spend the night with him on Thursday, but the Nick Adam’s stories always reminded me of the fishing lessons I struggled through with dad when I was a kid.

As dad now struggled during Thursday night and into Friday day and evening, I was reading him this part of “The Big Two-Hearted River:”

There was a long tug. Nick struck and the rod came alive and dangerous, bent double, the line tightening, coming out of water, tightening, all in a heavy, dangerous, steady pull. Nick felt the moment when the leader would break if the strain increased and let the line go.

The reel ratcheted into a mechanical shriek as the line went out in a rush. Too fast. Nick could not check it, the line rushing out, the reel note rising as the line ran out. With the core of the reel showing, his heart feeling stopped with the excitement, leaning back against the current that mounted icily his thighs, Nick thumbed the reel hard with his left hand. It was awkward getting his thumb inside the fly reel frame.

As he put on pressure the line tightened into sudden hardness and beyond the logs a huge trout went high out of water. As he jumped, Nick lowered the tip of the rod. But he felt, as he dropped the tip to ease the strain, the moment when the strain was too great, the hardness too tight. Of course, the leader had broken. There was no mistaking the feeling when all spring left the line and it became dry and hard. Then it went slack.

His mouth dry, his heart down, Nick reeled in. He had never seen so big a trout. There was a heaviness, a power not to be held, and then the bulk of him, as he jumped. He looked as broad as a salmon.

Nick's hand was shaky. He reeled in slowly. The thrill had been too much. He felt, vaguely, a little sick, as though it would be better to sit down.

The leader had broken where the hook was tied to it. Nick took it in his hand. He thought of the trout somewhere on the bottom, holding himself steady over the gravel, far down below the light, under the logs, with the hook in his jaw. Nick knew the trout's teeth would cut through the snell of the hook. The hook would imbed itself in his jaw. He'd bet the trout was angry. Anything that size would be angry. That was a trout. He had been solidly hooked. Solid as a rock. He felt like a rock, too, before he started off. By God, he was a big one. By God, he was the biggest one I ever heard of.

I stopped reading, looked up through tears, and my brother Don and I watched dad’s breath continue to slow until it just stopped.

We and mom, grandkids, great grandkids, family and friends will miss him.

In recent months, a surge of papers have appeared in the literature describing findings from the deadly 2011 E. coli O104:H4 outbreak in Germany linked to sprouts (2-10, 12-14).  The speed at which this information is being published in the literature—much of it free to the public through open access journals—is a testament to the advances in biotechnology available to scientists that study emerging foodborne pathogens.  However, despite all the impressive molecular tools the researchers’ have at their disposal, the origin of the unusual strain associated with the outbreak in Germany is still unknown.  In fact, the origin of E. coli O157:H7, a bacterium first described in the 1970s and currently the most well studied shiga toxin-producing E. coli (STEC) strain, also (despite conventional wisdom) remains elusive.

Introduction

So, I ask, where the hell did E. coli O157 and other STECs come from?

If you read the media stories and foodist blogs, it would seem that this question has been answered with total certainty.  The popular belief is that “superbugs” in the food system are the product of industrial agriculture. The dogma is that feedlots (also called concentrated animal feeding operations or CAFOs), grain-feeding, and genetically modified organisms (GMOs) are the root cause of everything wrong in our food system including food safety problems. 

For example, Michael Pollen said in a 2010 editorial, “The Food Movement Rising” (11): 

“The 1993 deaths of four (sic, three) children in Washington State who had eaten hamburgers from Jack in the Box were traced to meat contaminated with E. coli O157:H7, a mutant strain of the common intestinal bacteria first identified in feedlot cattle in 1982.”

But, Dr. Thomas Whittam (1954-2008), a pioneer in the study of E. coli O157:H7 evolution, said in a 1998 paper published in Emerging Infectious Diseases (15): 

"It has been proposed that an increased mutation rate (indicated by the frequency of hypermutable isolates) has facilitated the emergence of Escherichia coli O157:H7. Analysis of the divergence of 12 genes shows no evidence that the pathogen has undergone an unusually high rate of mutation and molecular evolution."

Then in 2011, Dr. Eric Denamur, a French expert in the ecology and evolution of microorganisms, pointed out in Clinical Microbiology and Infection that the shiga toxin-producing E. coli German outbreak teaches us a lesson in genome plasticity (5):

“The main lesson from this outbreak is that we should be aware of the capacity of the E. coli species to produce new combinations of genes, leading to the emergence of highly aggressive strains. Furthermore, antibiotic pressure in human and veterinary medicine should be kept as low as possible, as it will select for such strains once they become resistant.”

So, I jumped into the literature to gain a deeper understanding of the question about the origin of E. coli O157:H7 and other STECs, especially the role industrial agriculture may or may not have played in their evolution and emergence as human pathogens.  What was the ultimate answer to the question of whether STECs are old or new pathogens, and where they arose?    I would have loved a clear answer, but only came up with “it depends.”

This 3-part series summarizes my findings from the literature review.

Terminology

Escherichia coli was named after its discoverer, Theodor Escherich.  The current terminology and nomenclature (naming) of E. coli strains can be confusing.  There are over 700 E. coli “serotypes” described.  Most of these E. coli strains are harmless inhabitants of the intestinal tract of humans and other warm-blooded animals (1).  

An E. coli serotype is named based on its numbered “O” (letter capital “O,” not zero) and “H” antigen types.  E. coli O157:H7 is the prototype of a subset of pathogenic strains called enterohemorrhagic E. coli (EHEC).  EHEC is a “pathotype” associated with human infections that may cause gastrointestinal and hemorrhagic symptoms such as bloody diarrhea and hemolytic uremic syndrome (HUS).  E. coli O157:H7 and other EHEC pathotypes belong to a broader group of E. coli called shiga toxin-producing E. coli (STEC) as shown in the figure.  Members of the STEC “serogroup” carry shiga toxin genes (stx1 and/or stx2).  STEC strains (including E. coli O157) are found primarily in healthy animal hosts (e.g., cattle, goats, sheep, pigs, deer, elk).  The harmful strains may be transmitted to humans through contaminated food, water, contact with infected animals, or person-to-person transmission via fecal-oral ingestion.

Interestingly, according to recent research in Germany (2), the E. coli O104:H4 strain linked to raw sprouts is a combination of two different pathotypes:  entero-aggregative E. coli (EAEC) and EHEC.   A proposed name for the new pathotype is entero-aggregative-hemorrhagic Escherichia coli (EAHEC).  It is unknown if the natural reservoir of this new EAHEC type is of human or animal origin.

Bacterial Evolution

Understanding the terminology used in describing E. coli strain relationships is important in deciphering the research into STEC evolution, including how fast these strains mutate into new variants.  Serotyping is based on differences in surface antigens, which are likely encoded by genes that evolve slowly.  In contrast, “virulence factors” describe generally a broad group of molecules or proteins that affect the bacteria’s ability to cause disease in humans.  Shiga toxins and proteins or enzymes that confer antibiotic resistance are examples of virulence factors.  Virulence factors are usually encoded by genes in the bacteria’s chromosomal DNA, or genes encoded by bacteriophage or plasmid DNA carried inside the bacteria.  The ability of some of these virulence factor genes to move rapidly between different populations of E. coli may explain short-term changes in the virulence potential of some strains.    

In Part 2, the discovery of E. coli O157:H7 and evidence of long and short-term evolutionary changes influencing its emergence as a human pathogen will be explored.  In Part 3, evidence for and against the importance of agriculture practices (e.g., feedlots, GMOs) in the spread of E. coli O157:H7 and other STECs will be reviewed.  (Part 1 as PDF)

References