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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Fighting for Food Safety: Bill Marler’s Personal Quest

What can one lawyer do to change a food safety system that doesn’t do much to keep people safe? If you’re Bill Marler, spend over a half million dollars of your own money funding an independent study to try and make the USDA take action.

Bill Marler is a name people in the food industry game know and, truth be told, may not love. The food safety attorney and advocate first came face-to-face with the devastation caused by the foodborne pathogen Escherichia coli (E. coli) when he represented several of the children sickened or killed by the Jack in the Box outbreak in the early 1990s.

That historic tragedy, which made hundreds ill and killed four, brought about a sea change in how the USDA treats food tainted with E. coli O157:H7.The problem is that the infamous E. coli O157:H7 isn’t alone in the physical and financial ruin it can cause. There are at least six other toxic strains of E. coli that can make people (particularly children and the elderly) exceedingly ill. Marler wants the government to step up and add protections against these pathogens—before another incident like the one involving Jack in the Box forces them to.

“It is a shame that in 2010, after years and years of outbreaks, there are still lethal strains of E. coli in our food supply that are not regulated by the proper government agency,” said Marler. “E. coli O157:H7 has been considered by the USDA’s Food Safety Inspection Service an adulterant in food since 1994. Sixteen years later, non-O157 strains, which can be just as devastating, are not. The recent outbreak of E. coli O145 in lettuce is proof positive that if it’s in cows, sooner or later it will appear in produce as well.”

This distinction means variants of non-O157 strains of E. coli are not regulated or even regularly tested for in the nation’s meat supply. While there are literally hundreds of strains of E. coli living in the intestines of healthy cattle, there are six—identified by the Centers for Disease Control and Prevention—that, in addition to O157—produce Shiga toxin, which can cause kidney failure.

After being contacted by the family of a 13-year-old girl who died from a non-regulated strain of E. coli and overwhelmed by the mounting evidence, Marler (who was on the short list for the job of Undersecretary of Food Safety for the USDA), decided to fund his own study to test how common non-O157 contamination is in the retail ground beef supply.

What he found was staggering and should scare anyone who eats beef.

While full results will be available later this year, tests from the last year and a half from over 4,600 samples from around the country have found that a full 1% are tainted with non-O157 adulterants. Considering the thousands of tons of ground beef consumed in the U.S. each year, this number is potentially devastating.

With this data in hand, Marler with backing of his firm Marler Clark, filed a Petition with the USDA/FSIS to get them to recognize and regulate non-O157 serotypes of E. coli as adulterants. While they have acknowledged that the petition is under review, no immediate action by FSIS has been taken.

Marler isn’t the only person concerned by the FSIS inaction. In April, New York Senator Kirsten Gillibrand penned a letter to USDA secretary Tom Vilsack urging him to respond formally to Marler’s petition as well as one submitted by consumer advocacy group Safe Tables Our Priority (STOP).

Via a press release Gillibrand said, “ The laws that are meant to keep us safe from hazardous foods are in critical need of updating. We need immediate action to keep our families safe.”

STOP laid out the ultimate goal succinctly in their petition by urging FSIS to declare “disease-causing E. coli’s other than O157:H7 as adulterants in beef and begin testing for them.”

The CDC says that E. coli O157:H7 causes 73,000 illnesses a year. The six non-O157 strains are estimated to sicken an additional 37,000 people a year and kill 30. However, the truth is though no one knows for sure because most of the labs used to test for foodborne pathogens don’t test for anything other than O157:H7.

“It is well past time for the USDA to declare that all Shiga-toxin producing strains of E. coli are adulterants and ban them from our food supply,” said Marler.