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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Food Safety Lawyer Bill Marler On Sprouts, Raw Milk, and Why “Local” Isn’t Always Safer

By Blisstree’s Hanna Brooks Olsen:

Based on the cases he’s tried and the amount of blogging he’s done on the subject, it’s amazing that Seattle-based food safety lawyer Bill Marler can eat anything he hasn’t grown or raised himself. But instead of being repulsed by the sheer volume of recalls and outbreaks, the prominent attorney, who was an integral part of the Jack-in-the-Box E. case Coli in 1993, has decided to take the challenge and become one of the most outspoken advocates for consumer protection and food safety in the U.S.

“I spend more than 50% of more of my time giving lectures on food safety topics, testifying before Congress, working on the Food Safety Modernization Act…I probably spend way too much time blogging about food safety,” he says.

It’s unfortunate but true that when it comes to food safety, things usually have to get bad before they get better. Someone has to get sick (or even die) before measures like the Food Safety Modernization Act get passed–which means that someone has to be there to advocate on their behalf. A lot of the time, that person is Marler.

I asked him about sprouts (which Jimmy John’s recently discontinued from all stores due to health concerns), raw milk (which is a polarizing issue, and a microcosm for a lot of bigger “big-government” issues), and why “local” sometimes gives consumers a false sense of security.

Since the Jack-in-the-Box case, what changes have you seen in the food climate in the U.S?

From the public’s perspective, I think we’ve seen a greater demand on the part of consumers for more healthful products; less processed products, products that are organic, natural, and perceived to be safer.

At the same time, we’ve had, obviously, a population increase. And mass-produced, highly-processed foods are still available. But we’ve seen a pretty substantial increase in organic agriculture, and a big increase in farmer’s markets. You know, Walmart is marketing local products and, in some respects, that says it all.

From a consumer’s perspective, there have been some improvements. Some of the big mass-produced players have still had problems, but on the other hand, we’ve still seen a pretty significant decrease in e Coli cases.

90% of what my firm did in the late 90s and early 2000s was e. Coli linked to hamburger, and that’s not something we see anymore, and that’s because E. coli in red meat is way down.

What does that push for local and organic produce mean for food safety? Are we safer eating that kind of food?

Although I’m a huge supporter of organic and local and small agriculture, I worry a lot about those purveyors thinking that they’re immune to food safety issues…even though it’s true that most of what I do is representing victims of mass-produced food, I worry that there are people who are producing local food, who are seeing their farmer, who think that just because it’s local and just because it’s small, they think it’s absolutely safe.

I was on a panel with a James Beard chef, and the chef said “You know, I don’t cook my meat to the appropriate temperature, because I get my meat locally, so it won’t have E. coli in it, because it’s grass-fed.” And I was like “You’re crazy!”

You can’t approach things that way. It may be safer, but it’s not safe.

So why is it that most of the cases you handle are due to mass-produced food? What is it about conventional, large-scale food that results in disease?

Size matters, when it comes to food safety. A company has an opportunity to increase food safety when they’re more profitable, when they’ve created systems, and when they have the bulk and the wealth to make their products safer.

But if there’s a mistake that gets made, or something happens in the processing that allows pathogens to enter, the chance of causing a problem–a big problem–is exponential. And that’s why you hear about them–because they’re big! And they’re easier to catch when they’re big. Pathogens cross state lines, you have a lot of illnesses, and they get caught.

The spinach outbreak of 2006 was ultimately linked back to one small, 25-acre spinach farm…It’s likely that only a small field was contaminated, and when the spinach from that field got mixed in and washed with everything else, that’s when it got into trouble.

Jimmy Johns is kind of the big food safety story right now, and, as a response, they’ve pulled sprouts from their menus entirely. Do you think that’s a good solution, or do you think products like sprouts just need to be safer?

The sprout problem has been ongoing for a long, long time. There have been some 50-sprout outbreaks, and some of the largest and most deadly outbreaks have been linked to sprouts. And the reason why has almost always been linked back to contaminated seeds.

Seeds are extremely difficult to decontaminate–and even more so if you want to have an organic product.

Organic sprouts are even harder to keep safe?

Well, yeah. Because you can’t use the chemicals that might kill off pathogens in the seeds.

So, with sprouts, like raw milk–and I think both of these products are similarly high-risk–there’s no margin of error. If something goes wrong, it goes really wrong. And I know that there are a lot of health benefits to sprouts, but I don’t think anyone has come up with a surefire, safe way of sprouting seeds that may be contaminated. And only one sprout has to be contaminated!

A lot of restaurants have pulled them, and a lot of grocery stores have just stopped carrying them, too. Right now, there’s just no way to make sure that sprouts aren’t contaminated.

Oh, I’m glad you brought up raw milk. I recently wrote an article about raw milk and how it’s difficult to ship and sell safely, because of how most major dairy farms operate, and I was shocked by how angry the commenters were at the idea of government regulation. If people don’t want to be protected…should they be?

It really is the only food that there is a pretty high level of regulation on–the rationale is that, going back 100 years, the vast majority of foodborne illnesses were traced back to raw milk. There was a push toward pasteurization, and raw milk became much more of a niche market, and eventually was just sort of pushed away. Because so many people got sick.

What has happened over the last decade is that as people have gotten more and more disgusted by mass-produced milk, and got mad that Walmart was selling organic and Walmart was selling local, and they moved out onto a fringe. And now you have city dwellers and suburbanites wanting to have this illegal elixir that proponents of it have said cures everything from eczema to autism.

You have sort of a prohibition going on, and now you have about 28 states where you can buy raw milk, but you can’t sell it across state lines. Frankly, it’s a mess.

I’m starting to see a lot more illnesses linked to raw milk. Many of them are casual buyers, who are kind of health food advocates anyway, and they go to their health food store or co-op, and they see a new product called Farm Fresh Raw Milk for $18 a gallon, so it must be good for you. And they drink it…and their kids end up with kidney failure.

So what is the solution, if there’s already so much regulation? What about people who argue against the regulation?

I’m not sure what the solution is, other than education of consumers. I think that it shouldn’t be sold in grocery stores, but if people want it, they can go out to the farm and see it for themselves. It’s actually a very difficult process to clean and to sell it as an unpasteurized product.

And I do think that the state should regulate it and require testing. But I also don’t think that the prohibition sort-of, black market, sort-of situation we have going on is working. It’s a mess.

If you really don’t want regulation, and you really don’t want to participate, you can make choices. You can go work on a farm and grow your own crops, or you can be a sharecropper. If you want to go live outside the mainstream, people can do that. It’s a free country.

But I don’t like the idea, very much, because there are still concerns. I certainly have seen situations where kids have drank raw milk, and then they go to day care or school, and then other kids get sick from secondary transmissions. And that’s why public health does the investigations that they do. Because the risk for secondary transmission is so high. Even if you don’t want regulation, other people need to be protected, too.

I think that people don’t want regulation; if they want to go live off the grid, go ahead. But food-borne illness sickens so many people, and it costs millions in medical bills, and you and I end up paying for it.

Nobody thinks that they’re going to get sick when they’re eating something that they think is healthful, but when they do, they want medical treatment.

It’s not very easy to be a savvy consumer these days. The economy is terrible, commercial growing practices are bad for the environment…people just want to feel like their food is safe. Is there anything else people need to know about food safety?

For the most part, the market system doesn’t operate well for food. Most of the time, what makes you sick, you don’t know what it was. Really, for something like listeria, that has a long incubation of three to 70 days, it’s hard. Did you eat a melon 45 days ago? Who knows?

One of the reasons that regulation is needed in the food sector is because the market doesn’t work efficiently or accurately. If you get sick at a restaurant, you may not have actually gotten sick there, because you don’t actually know the incubation time for the thing that made you sick, so you stop going to that restaurant–even though it’s not the one that made you sick.

Consumers don’t have time to analyze the food that we get from Dole and ConAgra and Cargill, so we rely on government officials to do it for us.

  • Paul F Schwarz

    It is unfortunate that things do have to get bad, but things don’t always get better! There is plenty of outbreaks to confirm this.
    Section 51 Row 1 Grave 3

  • Michael Broussard

    All quality and safety systems have critical steps. when there is a failure in two or more critical steps or two consecutive steps including one or more critical steps you typically have a significant incident (disease or death). Food Safety must have multiple steps to guard against this two step syndrome. Local producers don’t embrace this principle and simply believe that if they are clean, or natural, raw, organic, etc. then they are next to heavenly. I investigated a case with 13 Salmonella infections one of which was a nursing mother passing it onto her infant. Fortunately no deaths resulted but was all this worth the money saved in not cleaning or sanitizing, not cooling, not installing a convenient hand wash sink?