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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Open Letter to a New Under Secretary for Food Safety – FSIS – The End of E. coli Conservatism

In April 2007, Rick Perlstein penned a piece entitled “E. Coli Conservatism.”  His bottom line was the “Conservatism has been killing Americans. The recent food safety crisis is only one case study.”  Perhaps he is in part right.  However, whatever the political reasons for the “food safety crisis,” it has been long in coming and the system needs to be fixed.

E. coli is a powerful and deadly bacterium.  You cannot see it, taste it, or smell it. 250,000 E. coli bacteria will fit on the head of a pin.  Ten to 50 will kill your child or your grandmother.  Most likely due the expertise of Children’s Hospitals, and other top medical centers around the country, deaths at times are avoided, however, often not before Hemolytic Uremic Syndrome (HUS) nearly kills.  HUS, a complication from an E. coli infection, can cause severe damage to kidneys, intestines, liver and pancreas.  Falling into a coma and suffering further from cognitive impairment are all too common.

I have seen the inside of too many of those Intensive Care Units with families who are scared senseless as they watch their child or mother shutdown.  For 16 years, this has been my world.   When I was an undergraduate, I read Upton Sinclair’s, The Jungle.  That book took the American public on a tour of the contaminated underbelly of the meat industry and they were sickened.  It led to the Pure Food & Drug Act and the Federal Meat Inspection Act, versions of which are still in place today.

Until 1993, I thought—because of those laws—that the United States had a safe and secure food supply. But, then came the Jack-in-the-Box E. coli outbreak.  It killed four, and sickened hundreds, including many who were gravely ill with HUS and related complications.  Many of those victims became my clients.  Once again, there was a public outcry for safe meat.  The Food Safety & Inspection Service responded by creating and aggressively enforcing the Mandatory Risk Management System.  Based on research and practices of the U.S. Space Program, the risk management system established checkpoints at every phase of meat processing.

Although, the presence of some E. coli in hamburger was defined as an adulterant under the Federal Meat Inspection Act, I continued to sue “Big Meat” as most of my clients up to 2002 were children who were made sick by eating E. coli contaminated meat.  I recovered over $350 million during this period from the meat industry and the restaurants they supplied in verdicts and settlements on behalf of those clients.  In 2003 recalls of meat laced with E. coli began to decline.  After 24 million pounds of contaminated beef were recalled in 34 separate incidents in 2002, recalls dropped off to just over a million pounds a year for the next three years, and then to just 181,900 pounds in 2006.  The Centers of Disease Control and Prevention saw E. coli – related illnesses drop 48% between 2002 and 2006.

But then came Spring 2007.  E. coli, which begins its life in the hindgut of a cow, mounted a surge on its home court.  And, it came back with a vengeance.  Forty-four million pounds of beef have been recalled in 25 incidents.  All over the country, slaughterhouses, packing and distribution centers, retail outlets, and restaurants were once again testing positive for E. coli and people-mostly children-were getting seriously sick.  The American meat supply, which had again been touted as safest in the world, tumbled back into disarray.  But, why?

As with any unexplained mystery, theories abound.  Could it really just be meat industry complacency?  Did everyone respond to the good numbers in 2006 by taking a long nap?  Did meat processors slack off—consciously or unconsciously—and relax their testing procedures?  Did government regulators take a few years off?

Or could it be better reporting?  Doctors are more aware of E. coli now, and perhaps when patients present symptoms of food poisoning; tests are more likely to be ordered.  When the presence of E coli is found and reported, a recall is triggered.

There’s always global warming.  Seriously though – very smart people have posited that droughts in the southeast and southwest have launched more fecal dust into the air, which then finds its way into beef slaughtering plants.  It has also been suggested that the rainfall in other areas created muddy pens—an ideal environment for E. coli.

Why not blame high oil prices?  High prices have fueled the growth of ethanol plants.  These plants are often built next to feedlots, and a byproduct of the ethanol production process—distiller’s grains—is considered an excellent and cheap alternative to corn for cattle feed.  Unfortunately, research associates the use of distiller’s grains as feed with an increase in the incidence of E. coli in the hindguts of cattle.

Another controversial issue may affect the meat supply.  The New York Times reported that immigration officials began a crackdown at slaughterhouses across the country in the fall of 2006.  Experienced—albeit undocumented—workers have been cleared out and replaced with unskilled, inexperienced labor.

And then there’s Darwin.  Another theory holds that interventions have caused the wily E. coli microbes to adapt, selecting pathogens that are more resistant to detection or intervention.  E. coli back in our meat cannot be tolerated.  Summer has always been kind to the E. coli bug.  More than 5.6 million pounds of E. coli contaminated beef has been recalled so far in 2008, most supplied by Nebraska Beef Ltd., via the Kroger Grocery chain.  All of which was responsible for a multi-state outbreak of E. coli that again is filling up the ICU’s in Hospitals in the seven states.

What is being done?  Honestly, not much.  Congress has held some hearings, but the only new reform is that the names of retail stores that received meat and poultry involved in recalls with high health risk will be made public.  Good as far as it goes.

However, despite 76,000,000 American’s being sickened, 325,000 hospitalized and 5,000 deaths each year, food safety did not make it as a Presidential campaign issue.  Congress, Democrats and Republicans, have about run out its clock.  But E. coli is back in our meat and we better care.

Solutions?  Improve surveillance of bacterial and viral diseases. First responders – ER physicians and local doctors – need to be encouraged to test for pathogens and report findings directly to local and state health departments and the CDC promptly. Right now, for every person counted in an outbreak there are some 20 to 40 times those that are sick but never tested. The more we test, the quicker we know we have an outbreak and the quicker it can be stopped.

These same governmental departments, whether local, state or federal, need to learn to “play well together.” Turf battles need to take a back seat to stopping an outbreak and tracking it to its source. That means resources need to be provided and coordination encouraged so illnesses can be promptly stopped and the offending producer – not an entire industry – are brought to heal.

Require real training and certification of food handlers at restaurants and grocery stores. There also should be incentives for ill employees not to come to work when ill. We should impose fines and penalties on employers who do not cooperate.

Stiffen license requirements for large farm, retail and wholesale food outlets, so that nobody gets a license until they and their employees have shown they understand the hazards and how to avoid them.

Increase food inspections. While domestic production has continued to be a problem, imports pose an increasing risk, especially if terrorists were to get into the act. Points of export and entry are a logical place to step up monitoring. We need more inspectors – domestically and abroad – and we need to require that they receive the training in how to identify and control hazards.

Reorganize federal, state and local food safety agencies to increase cooperation and reduce wasteful overlap and conflicts. Reform federal, state and local agencies to make them more proactive, and less reactive. This too requires financial resources and accountability. We also need to modernize food safety statutes by replacing the existing collection of often conflicting laws and regulation with one uniform food safety law of the highest standard.

There are too few legal consequences for sickening or killing customers by selling contaminated food. We should impose stiff fines, and even prison sentences for violators, and even stiffer penalties for repeat violators.

We need to use our technology to make food more traceable so that when an outbreak occurs authorities can quickly identify the source and limit the spread of the contamination and stop the disruption to the economy. When I buy a book on line I can track it all the way to my mailbox.  We must be able to do the same with our food.

Promote university research to develop better technologies to make food safe and for testing foods for contamination. Provide tax breaks for companies that push food safety interventions and employee training. Greatly expand irradiation of raw hamburger and other high-risk products.

Improve consumer understanding of the risks of food-borne illness. Foster a popular campaign similar to Mothers Against Drunk Driving, which uses consumer power to promote a no-tolerance policy toward growers and companies that produce tainted food.

The time has come to act and not continue simply to react.  Consumers, Farmers, Suppliers, Manufacturers, Retailers, Regulators and Politicians need to work together to make our food supply safe, profitable and sustainable.  When a quarter of our population is sickened yearly by contaminated food, when thousands die, we do not have the “safest food supply in the world.  We should, must and can do better.

  • Bill, you have my vote.

  • Paul Nunes

    Marler for Food-Safety Czar!

  • You have some great suggestions, but very few of them deal with the source of pathogenic E.coli. You talk about the theories of why contamination has increased so rapidly. Why not suggest solutions to those increased causes of contamination? How about banning the feeding of distillers grains to ruminants? How about making feedlots submit a clean bill of health prior to selling an animal? Also, a huge factor in the rise of pathogens in our food supply come from antibiotic resistant bacteria. Why not advocate to completely ban the use of non-therapeutic antibiotics in our farm animals?

  • Good comments. I would add that to be effective, additional inspection should done in the context of good product and process specifications, vendor certification, and continuous process management and improvement. The USDA AMS has purchased 494.4 million pounds of ground beef for the National School Lunch Program in the last four years under TRS-GB2007 and not had a single pathogenic eColi episode. An example well worth emulating.

  • Greta Lint

    Let me add one more thing. Doctors should not have to be scared of litigation when testing for food-borne illnesses. My parents were hospitalized, and I was sick too, after eating salads at a high-class restaurant. The health dept. determined the day after we all got sick that the kitchen was filthy and that correct temperatures were not maintained – a breeding ground for cross-contamination. The attending physician told us we had a food-borne illness, but refused to write it in his notes. As a result, the restaurant’s insurance company did have grounds not to reimburse us for our medical bills. The doctor was afraid of litigation and he didn’t want to be involved. Laws need to be changed. The FDA needs to be overhauled. Health departments need to be better staffed and trained so they can visit restaurants more than quarterly. All workers should have to show they have been immunized. I don’t care if that is profiling or not. Most restaurants in North Carolina hire Latinos who may or may not have their shots or green card. People need to be educated on food cleanliness and preparation – and a good place to start is with food show hosts. Our food situation in the USA is in turmoil.

  • GeneThera

    There is a lot of talk about preventing e.coli, but the fact remains that it CAN be stopped at the source. GeneThera, a very small biotech company in Colorado, has a genetically engineered therapy that can virtually eliminate the harmful O157:h7 variant of the e.coli bacteria. Why isn’t it already being administered to cattle??? because the companies with the resources to accomplish the daunting task of manufacturing and distributing a product such as this seem to have marked it as “un-marketable”. In other words, too political. The cost of this therapy is expected to be $10 per animal. We could not possibly expect the ranchers, or meat processors to foot that bill, now could we??
    Why should the consumer have to take extra effort to protect themselves when it is the product that needs changed? If an automobile is found to have an inherint problem, aren’t changes and standards demanded immediately? Why is the food industry immune to the same requirements?

  • Joe Snyder

    Pathogenic bacteria
    You can get a 1000 on a pin head…50 could make you ill….they double every 40 minute at room temp.
    You cannot irradiate them but you can educate us.
    The food chain is now a net and nobody cooks anymore….food is at best warmed up.
    With the lag time between harvest…production…distribution…sales….and final consumption….the bacteria have a huge advantage
    With multiple suppliers and global markets different sero types are routed world wide.
    Global agents of mass infection .
    The only response is…order well done or prepare it yourself…micro agents in a macro world.
    We have only seen the beginning.It is a brave new world with the same old problem that now is spread to the masses.
    Microbes must be micro managed.
    As e retired 35 years experiences food microbiologists…..HACCP ends at home ! Have a critical control point….you are the last defensive step before you put something in your mouth.
    Maybe their should be an …Eating Handbook for Dummies…the smartest ones in the business cannot protect you from yourself.
    When you go to the market remember….the items you are buying were produced weeks or months ago and the meat and produce counters that display the food are cleaned how often ?
    Think about it …1000 on a pin head and 50 to make you sick and they will double or triple by the time you leave the store and you get home.
    HACCP ends at home and your body is the final test !
    Food for thought
    Prepared Foods…potential weapons of mass infection…it is not what you eat…it is what you ate.

  • There are an estimated 500M end-users of Microsoft Excel in the world. The sooner Microsoft Excel is transformed into a supply chain traceability tool for individuals, small businesses, ER physcians, local doctors, governmental departments, etc., the sooner the solutions you propose will come true.

  • Brian Ticknor

    I am absolutely amazed at resistance to the irradiation of meat and eggs exhibited by many Americans. Are we THAT worried about the possibility that irradiated meat may not be good for us? Five thousand people a year no longer have to worry about irradiation, they die from E. Coli.