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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Candidate for top FSIS job talks E. coli testing, irradiation, education

By Ann Bagel Storck on 2/6/2009

As buzz abounds around who will be the next under secretary of USDA’s Food Safety and Inspection Service, Bill Marler’s name frequently has been part of the conversation.

The Seattle-based attorney, managing partner at Marler Clark LLP, is best known for his food-borne illness cases, but he also speaks about food safety and litigation prevention to companies worldwide, including ConAgra Foods last summer.

In an interview with Meatingplace, Marler confirmed he applied for the position of FSIS under secretary, although he said he did not know when a decision would be made. Regardless of whether the job is his, however, Marler has plenty of strong opinions about how the meat and poultry industries can improve their approach to food safety.

If you are named FSIS under secretary, what would be on your agenda?

First of all, I’m not a huge fan of a single food safety agency. I think that fixing what can be fixed doesn’t necessarily mean you need a new agency with a new name and new stationary.

With respect to the meat and poultry industry, my approach would be with a clear understanding that these are businesses that need to make a profit. There’s absolutely nothing wrong with that. Being in a lot of slaughter facilities and a lot of processing plants, [I understand] the squeeze that processors are under, especially over the past few years when grain prices, gas prices and labor prices have been going up.

I’m not saying that they cut corners on safety, but more money needs to be poured into technology. The only way to do that effectively is by encouraging companies to spend more money on technologies that work and research to prevent bacterial contamination from happening. I think you have to look hard at some tax relief, tax breaks, tax incentives for businesses to invest in things that make sense to try to limit bacterial exposure to carcasses and to allow less product to be contaminated that winds up on grocery shelves.

[I also would look] at how inspections are done. I can’t tell you how many pages of NRs I’ve looked at over the last 15 years, most of which really don’t help very much in trying to determine whether or not a plant has contaminated product or not. I think you really have to look at whether or not the amount of money we’re spending and how we’re spending that money in inspection makes the most bang for the buck.

Has USDA made any moves in the right direction with changes to its E. coli testing policy?

Testing has its place. In order to validate a HACCP plan, a tool — and maybe the best tool — is product testing, at many stages in the process, including end-product testing.

It’s not perfect, but I think a vigorous testing protocol that scientifically validates HACCP plans is what I would see as potentially a better solution than having a guy in a white coat watching carcasses fly by.

How much might interventions at other points during processing help prevent E. coli?

Those are, in some respects, research and scientific decisions and business decisions about what interventions work the best. And even those over time will have to take into account how these bugs adapt to change. Certainly steam processing, washing carcasses, washing hides — all of those things are in the mix.

Ultimately the public acceptance of irradiation is another thing I think has not been pushed as well as it could be.

Another component I would push pretty hard is consumer awareness. Even if you had a more rigorous testing protocol, even if you had interventions, there is no guarantee that the product that comes to the consumers is completely pathogen-free. The industry has to be honest with the public, and there has to be more education of the public about the risks of bacterial contamination.

I’ll give you an example: I’ve got three kids. I can’t get in the car without my kids going, "Put your seat belt on!" Yet my 16-year-old daughter has never had a class in school about how to cook anything.

You have made a career out of suing food companies on behalf of victims of foodborne illnesses. What have you observed as the most common misstep in the food supply chain that led to illnesses and death?

In every food-borne illness outbreak, there are always multiple breakdowns in the chain of distribution to the consumer. It’s never one thing. There are always warning signs during the course of an outbreak or a bacterial contamination that companies could have and should have been aware of and corrected.

The real question is whether or not we can learn from each other. A lot of times when these outbreaks happen a company learns quite well how to fix their own problem. But there’s [often not] outreach to the rest of the industry.

Are you feeling optimistic with a new administration in place that there will be food safety improvements in the coming years?

I’m very concerned that what we do is limp from outbreak to outbreak, but nothing ever really moves forward in a comprehensive way. I worry that it’s going to be the same thing all over again. It just doesn’t benefit us.

Nobody wants to poison little kids, We understand that it’s not going to be perfect, but how do we get there using our brains, our scientific technologies and just good business sense? It’s not easy, but things that are important in life aren’t necessarily easy.