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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Jeff Benedict – “E. coli on my mind”

This is from writer, Jeff Benedict’s Blog:

For the past year and a half I’ve been writing a book about the biggest E. coli outbreak in U.S. history. It started in Seattle in 1993 and ended up spreading through most Western states. Jack in the Box restaurants was implicated as the source. Writing this story has changed my life, particularly when it comes to the way I eat. And I’m not just talking about beef.

This story has also introduced me to some remarkable people who were caught up in the outbreak – parents of poisoned children; the doctors and public health officials that treated the children and figured out the source of the outbreak; the CEO of Jack in the Box who got hauled before Congress and became the public face of the nightmare; and a food scientist hired by Jack in the Box to make sure nothing like this ever happened again. But the most compelling figure in this story is a lawyer named Bill Marler. At the time of the outbreak, Marler was pretty fresh out of law school and—like most Americans at that time – had never heard the term E. coli. He ended up representing hundreds of children in the outbreak. Today Marler is considered the world’s top foodborne illness lawyer. You can learn more about him at www.marlerclark.com

There’s a lot to like about Marler. For starters, he’s unlike any lawyer I’ve ever met. Second, he’s a fighter. Third, there’s probably no one in the U.S. that has done more in the past 15 years to influence food safety policy in this country. Right now he’s at the forefront of a push to get additional strains of E. coli designated as adulterants under the Federal Meat Inspection Act. I bet you have no idea what I’m talking about. This essay that I wrote over the weekend will explain …and probably prompt you to think twice next time you shop at the grocery store.

Concerns over food safety in this country are reaching the crisis stage. Two weeks ago Congress held hearings on the recent salmonella outbreak that sickened 1,600 people in 11 states, resulting in the recall of some 550 million eggs. The Senate is expected to vote on the Food Safety Modernization Act right after the mid-term elections. Meantime, the USDA’s Food Safety and Inspection Service currently lists 36 active food recalls and alerts on its website and the CDC reports that foodborne diseases now cause 76 million illnesses and 5,000 deaths annually.

These are sobering numbers. But perhaps the biggest threat to food safety is the emergence of six unregulated strains of E. coli. In a meeting two weeks ago with Dr. Elisabeth Hagen, the USDA’s new undersecretary for food safety, four leading experts warned that the agency needs to act fast to label these pathogens as adulterants under the Federal Meat Inspection Act.

There are thousands of strains of E. coli. So far, the USDA has outlawed only one in the presence of meat – E. coli O157:H7. Back in 1993 close to 750 people were poisoned and 4 children died after Seattle health officials discovered E. coli O157:H7 in hamburgers served by Jack in the Box restaurants. Known as the food industry’s 9/11, the Jack in the Box outbreak triggered the biggest reforms to food safety policy since Upton Sinclair wrote The Jungle. Most notably, the USDA designated E. coli O157:H7 an adulterant. As a result, all stool cultures submitted to labs by physicians are now tested for E. coli O157:H7. All positive results must be provided to public health departments, who forward that information on to the CDC.

Although people still get sick from food tainted with E. coli O157:H7, these mandatory testing and reporting laws have enabled public health officials to more quickly spot potential outbreaks, which have resulted in far fewer large-scale E. coli outbreaks over the past 15 years.

That’s the good news. The bad news is that other E. coli strains – known as non-O157s – are just as deadly. Worse, the USDA doesn’t inspect for them. Yet the CDC estimates that these strains of E. coli poison 37,000 people each year, killing nearly 30 of them. Still, the meat industry takes the position that there’s insufficient scientific evidence of these pathogens in our meat supply.

That’s because no one is looking. Since the USDA doesn’t treat these strains as adulterants, less than 5 percent of the laboratories in the U.S. test for the presence of these strains in stool cultures.

The meeting last week in Undersecretary Hagen’s office could change that. One of the attendees, Seattle-based foodborne illness attorney Bill Marler, presented Hagen with the results of a privately funded two-year study of meat sold in U.S. grocery stores. Marler, who represented hundreds of children in the Jack in the Box outbreak, commissioned the study after a 13-year-old client died in 2007 from eating food contaminated with an unregulated strain of E. coli. The Institute for Environmental Health analyzed 5,000 samples of meat randomly purchased from grocery stores throughout the U.S. About 1 percent of the samples were contaminated by the non-O157 strains of E. coli.

That may not sound like much. But each year Americans consume billions of pounds of ground beef. If 1 percent is contaminated with these unregulated strains of E. coli, millions of pounds of poisonous meat are being eaten annually.

The meat industry has consistently opposed labeling these E. coli strains as adulterants, arguing that no reported outbreaks in the U.S. have been confirmed to be directly linked to beef products.

That’s no longer true. On August 28th, just ten days after the AMI’s letter was sent, the USDA announced that Cargill Meat Solutions, one of the biggest beef suppliers in the U.S., had recalled roughly 8,500 pounds of ground beef products that may be contaminated with E. coli 026, one of the non-O157 strains. The announcement came after the CDC reported two patients in Maine and one in New York that had contracted a rare strain of E. coli after consuming beef. The only reason the CDC found about these three people is that they happened to have their stool cultures analyzed at one of the few labs in the U.S. that tests for non-O157 strains.

But for this coincidence, the latest salmonella outbreak in eggs might have been eclipsed by a more deadly E. coli outbreak tied to meat. We may not be so lucky next time. The USDA should declare these non-O157 strains as adulterants, an inexpensive step that would prompt all labs to test stool cultures for these pathogens and enable public health officials to avert another Jack in the Box-scale outbreak.

  • John Munsell

    Just as the 1993 JITB outbreak woke up America to the dangers of E.coli, if the day ever comes when USDA/FSIS aggressively performs tracebacks to the SOURCE of pathogens, America will become aware of the true incidence of pathogens emanating from our largest, fast-chain speed slaughter behemoths. Consider these facts:
    1. Dr. Elisabeth Hagen’s predecessor was Dr. Richard Raymond. In one of his final public speeches, on September 17, 2008, he stated that the agency had tested 24 pieces of intact meat cuts for E.coli 0157:H7. Of the 24, 8 tested positive! That’s a remarkable 33% incidence of positives. But here’s the clincher:
    2. USDA/FSIS allows slaughter plants to ship into commerce intact cuts of meat which are surface-contaminated with E.coli 0157:H7. Chew on that awhile! What are the destinations of these intact cuts? To retail meat markets (such as Safeway and Costco), where the intact cuts are processed into steaks, roasts, and ground beef. If these finished cuts are tested for E.coli, and the pathogens are found, wouldn’t you know it, FSIS concludes that the retail meat market is responsible. FSIS totally discounts the GIGO effect, as well as the certainty of cross contamination. These intact meat cuts also go to USDA-inspected processing plants, which also become fully liable if their finished products harbor the pathogen. But please know that these same intact cuts are sold to restaurants, hospitals, and nursing homes, all of whom are held liable if their clients are sickened.
    3. Does FSIS conduct a meaningful incidence of microbial testing for E.coli 0157:H7? Consider these facts, obtained via a FOIA. My very small meat plant, which I sold in 2005, experienced 16 microbial tests for E.coli 0157:H7 by FSIS in 2008. Guess how many tests were collected by FSIS in 2008 at the huge Cargill plant in Friona Texas? This plant kills more in one day that my old plant kills in two years. Well, the monster plant also experienced 16 FSIS-conducted tests in 2008. Yes, we have to admit, FSIS now performs tests at plants of all sizes: a substantial number at small plants, but a statistically irrelevant number at the large SOURCE plants.
    The JITB outbreak was indeed our 9/11, but not our final 9/11. As long as FSIS continues to insulate the SOURCE from liability, consumers are guaranteed ongoing outbreaks and recurring recalls. And Bill Marler’s staff will work overtime into the forseeable future.
    “Force the Source” should be the agency’s rallying call. Instead, FSIS is perfectly content to “Destroy the Destination” facilities.
    John Munsell

  • E.coli? please don’t. i had 4 times bad experience with it. i lost 2kgs just in 2 days. what a hard day! Thanks for taking the time to discuss this, I feel strongly about it and love learning more on this topic. If possible, as you gain expertise, would you mind updating your blog with more information? It is extremely helpful for me