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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Mr. Bill goes to Washington

I’m off to Washington D.C. next week to gauge the interest of the new Congress in taking a hard look at Food Safety, specifically, fresh fruits and vegtables, in light of all the recent E. coli outbreaks.  Below is a letter that I had sent to key lawmakers:

During the last four months of 2006, U.S. consumers suffered an epidemic of bacterial contamination in their produce supply. The numbers are staggering. In September, people across the country were struck with the largest E. coli O157:H7 outbreak in history associated with leafy greens. FDA’s official figures reflect 204 confirmed illnesses and three deaths. FDA quickly followed with announcements that two distinct Salmonella outbreaks had been traced to contaminated tomatoes grown in the Southeast and served in restaurants, sickening nearly 400. But there was still more. In early December, several state health departments, along with FDA and CDC, announced another outbreak of E. coli O157:H7. This time, over 70 people were confirmed ill as the result of eating contaminated lettuce in products sold at Taco Bell restaurants. Almost immediately thereafter, it happened again. Nearly 100 more restaurant customers became ill with E. coli O157:H7 infections after consuming lettuce provided at Taco John’s restaurants in Iowa and Minnesota.

Standing alone, the events of the past four months evidence a serious problem. But these outbreaks do not stand alone. In particular, there is a long history of E. coli O157:H7 outbreaks associated with leafy greens. Prior to September’s spinach outbreak, the fresh produce industry and the FDA were aware of what the regular consumer was not aware: that prepackaged spinach and lettuce were potentially risky foods with respect to contamination with E. coli. According to a new article in the New England Journal of Medicine written by Dr. Dennis G. Maki, the latest outbreak is “at least the 26th reported outbreak of E. coli infections that has been traced to contaminated leafy green vegetables since 1993.” FDA counts 20 such outbreaks since 1996, and states “a majority of the outbreaks, including the recent outbreak in September of 2006, traced product back to California, eight of which were from the Salinas Valley.” Among these was an outbreak associated with Salinas Valley spinach that killed two elderly nursing home residents in 2003.

FDA has made past attempts to spur the fresh produce industry into action. In 1998, FDA issued guidance to the industry entitled “Guide to Minimize Microbial FoodSafety Hazards for Fruits and Vegetables.” The guide was specifically designed to assist growers and packers in the implementation of safer manufacturing practices. On February 5, 2004, the FDA issued a letter to the lettuce and tomato industries to “make them aware of [FDA’s] concerns regarding continuing outbreaks associated with these two commodities and to encourage the industries to review their practices.”

Nevertheless, the outbreaks continued, apparently unabated. In the fall of 2005, another E. coli outbreak was traced to lettuce grown in the Salinas Valley, and distributed nationwide. FDA sharpened its rhetoric with growers in its November 2005 “Letter to California Firms that Grow, Pack, Process, or Ship Fresh and Fresh-Cut Lettuce.” Still in the end, FDA was simply “encourage[ing] firms in your industry to review their current operations.”

Encouragement is no longer enough. It is time that growers, producers, manufacturers, restaurants, grocers, and consumers were asked to the table to talk about these ongoing outbreaks and how to prevent them in the future. Congress needs to act now and discuss the following:

– How these recent outbreaks actually happened and what can be done to prevent or limit the next one.
– Increasing funding for university-based research, health department epidemiological surveillance, and prevention of bacterial and viral contamination.
– Pre-consumption bacterial and viral testing of raw food products, especially those where no “kill step” is expected.
– Making mandatory good agricultural and food handling practices.
– The proposal to create a single federal agency charged with ensuring the nation’s food safety, whether the food is grown within the United States or in foreign countries.

It is time for Congress to accept a leadership role and call hearings, not only to explore the reasons for the past months’ outbreaks, but also to help prevent the next one. Congress must reach out to all facets of the produce industry, from “farm to fork,” to consumers who bear the burden of illnesses, and to academics and regulators, to find reasonable, workable solutions to prevent produce-related illnesses. Getting all interested parties at the same table is a start.

As an attorney who has represented hundreds of victims of past produce-related outbreaks, I would like to offer whatever assistance you would find useful in finding solutions to this plague on consumers and farmers. Many of my clients who have suffered acute kidney failure or lost family members to E. coli poisoning would be willing to speak with you directly or at hearings so all can understand the devastation caused by contaminated produce.

I will be in Washington, DC, on Wednesday, January 10, 2007, for the American Association for Justice’s 7th Annual Leaders Forum Legislative Day, and would welcome the opportunity to meet with you in person. Please let me know what I can do to help.

  • Carl S. Custer

    USDA APHIS has wide and Draconian jurisdiction over plant and animal production. But, they’re only charged with plant and animal diseases — not human diseases.
    Congress should (1) Add human diseases to APHIS’ charge, and (2) Add PHS officers to the APHIS management staff (too many stuck-in-the-mud veterinarians there).
    Salmonella enteritidis in eggs in the 1990’s is an excellent example of APHIS’ inaction because of their plant-and-animal-disease-only charge.

  • Kenneth Hall

    Research indicates that chickens can be immunized against Salmonella enteridis and cows immunized against E. coli 0157H7, why not spend money on research to immunize humans against these troublesome diseases.