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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

E. coli Op-ed

The Bug that ate the Lettuce

Most Americans would agree with me that fast food is generally unhealthy. They would also agree that lettuce is a healthy food and that eating healthy foods should improve your health – not put you in the hospital.

But, here’s the reality: In recent weeks as many as 150 people across the Northeast and upper Midwest have become ill after eating at fast food restaurants. Many of those have landed in hospitals; some attached to kidney dialysis machines. And it wasn’t just fast food that made them sick – it was the lettuce.

A few months ago, 200 people got sick and at least four died from eating E. coli-contaminated spinach. A year earlier, in September 2005, over two dozen were sickened, including one young girl who suffered acute kidney failure, after eating bagged, pre-washed lettuce. Similar outbreaks occurred in 2002 and 2003.

This recent history shows us that E. coli is no longer linked exclusively to tainted meat. The Food and Drug Administration reports over 20 outbreaks related to fresh leafy produce in the last 10 years with nearly 1,000 sickened.

Despite having no legislative mandate or recall authority, the FDA has been prodding the produce industry to address problems that pose a serious risk to consumers. In August 2006, the agency developed the Lettuce Safety Initiative in an effort to support the goals of its own 2004 Produce Safety Action Plan and to protect public health by preventing further lettuce-related E. coli outbreaks.

According to the Centers for Disease Control and Prevention, E. coli outbreaks linked to tainted meat have declined by 42 percent. As a lawyer specializing in food-borne illness litigation, I’ve seen this happen, but I’m still as busy as ever. A decade ago most of my clients had been sickened by tainted meat. Today, my business comes almost entirely from people sickened by lettuce, sprouts, tomatoes, spinach, green onions, and parsley.

To turn this around, we need somebody like Michael Taylor, who was head of USDA’s Food Safety and Inspection Service in the mid-1990s, when undercooked hamburgers from Jack in the Box sickened 650 people and killed four children. In the wake of that epidemic, Taylor stood before the American Meat Institute and announced, "We consider raw ground beef that is contaminated with E. coli O157:H7 to be adulterated within the meaning of the Federal Meat Inspection Act." Taylor was warning the industry "things were going to be different and there was going to be accountability."

Taylor and FSIS introduced mandatory Hazard Analysis Critical Control Point plans, a risk management system requiring meat processors to adopt precautions such as carcass washes, citric acid sprays, steam pasteurization, and air-exchange systems. Today, the U.S. meat industry staffs in-house microbiologists or contracts with outside labs to test for E. coli and other contaminants before meat is shipped to consumers.

To prevent future outbreaks, we need follow FSIS’ example, and serve notice to processors that E. coli is an adulterant that will no longer be tolerated in our fresh produce supply. The produce industry must adopt the same precautions that meat processors adopted years ago.

But, putting the burden solely on produce producers will not be the “silver bullet” to control E. coli. We need a broad approach. If I had a vote, I would demand Senate hearings to discuss not only what the produce industry can do but also the following:

– Is the production of an E. coli vaccine for cattle to reduce or eliminate one large reservoir of the nasty germ feasible?

– Is irradiation for all mass-produced foods, including produce, an option?

– Are our food safety regulations up to date given risks we face today from at home and abroad?

– Do we need mandatory State and Federal recall authority, or is industry-based, voluntary recall authority sufficient?

– Is establishing one agency at the federal level responsible for all food safety to work directly with state and local regulators and health departments to help industry prevent viral or bacterial contamination the answer?

– Would an increase in funding for state health departments and CDC help in identifying outbreaks and stopping them early?

– What is the best science available to help the victims of E. coli if they do become ill?

Having this discussion is long past due. There should be no more excuses for finding real solutions. Finding solutions will ultimately help the business bottom line, but most importantly, finding solutions will prevent innocent people from being sickened by eating what is supposed to be good for them.