CDC Public Health Law News: Do you see yourself as working in the area of public health law?
Marler: I do. The civil justice system is the last, if not the only, bastion of Justice available to a person who becomes ill with a foodborne illness after eating contaminated food. I see my practice as a significant deterrent to any company that fails to make food safety the number one priority. Not only does my work help victims recover fair and reasonable compensation, but my success in this field lets food companies know that real, financial, consequences will follow lapses in food safety efforts. Public health benefits when food safety moves to the forefront, no matter the driving force.
CDC Public Health Law News: What was your route to public health law, specifically foodborne illness litigation?
Marler: I was practicing law in Seattle when the 1993 Jack in the Box hamburger outbreak introduced us all to E. coli. Back then there were no food safety attorneys and, like everyone else, I knew nothing about E. coli. That changed when I found myself representing a couple of children who became ill during the outbreak. I set to work learning everything I could about E. coli and after a period knew more about the pathogen than some of the doctors treating my clients. As the outbreak grew, so did my client list and I soon was known as the primary attorney representing victims against Jack in the Box.
In the midst of this the family of Brianne Kiner contacted me. Brianne’s illness was catastrophic and nearly everyone expected her to die. At age 9, she suffered severe organ damage: her kidneys failed, she suffered injuries to her liver and brain, and she was in a coma for 40 days. She had seizures, developed diabetes, and sections of her intestine were removed. I met the Kiners in Brianne’s hospital room. The sight of a child in that state changed me forever. There is something very cruel about a child suffering so undeniably just because she ate a burger. It is because of faultless victims like Brianne and so many others since that I have not been able to see myself doing any other sort of litigation.
CDC Public Health Law News: Many hail the Jack in the Box litigation as a pivotal point in food safety law and procedure. In your opinion, what are the greatest contributions this case has made to public health law?
Marler: Jack in the Box has been called the meat industry’s 9/11. Perhaps the most notable change that came out of the outbreak was that the USDA’s change in perspective on E. coli O157:H7. Prior to the outbreak, E. coli O157:H7 was not reportable in most states; afterward the USDA declared E. coli O157:H7 an adulterant in ground beef. PulseNet also has been a force in driving down the incidence of E. coli O157:H7 illnesses through early detection of outbreaks.
CDC Public Health Law News: After almost 20 years litigating foodborne illness cases, what changes have you seen in the industry? What changes, if any, have you observed in public perception of and response to foodborne illnesses?
Marler: First, of course, was the declaration of E. coli O157:H7 an adulterant in ground beef. Over time, testing at slaughterhouses and beef packers became more prevalent, and as recently as 2011, major retailers like Costco and Wal-Mart began testing ground beef for additional Shiga toxin-producing strains of E. coli (STEC) before they were declared adulterants by USDA. The whole food industry has become more proactive, instead of reactive. Recalls seem to be issued earlier, and product that tests positive for pathogens is diverted—either into cooked food products or as animal feed—so it never reaches the human food supply.
Beyond that, E. coli is now a household word. Although I think there are still misconceptions about the virulence of foodborne pathogens and the severity of the illnesses they can cause, people generally understand that E. coli food poisoning is “bad.” That became even more evident after the September 2006 spinach E. coli outbreak. Spinach farmers said as late as last year that sales had still not rebounded from where they were in 2005–2006. Marketing agreements and other food industry-led consortiums are increasingly popular as a way to prevent outbreaks—and therefore protect profits—while reducing the likelihood of what producers see as unnecessary regulations. No matter what the motive, public health benefits since the focus is on food safety.
Consumers are getting smarter about the risks associated with certain foods. They’re turning to foods produced by local farmers for a number of reasons, the perception of safety being one of them. I think a major public health campaign could emphasize the fact that local food isn’t always safer. Farmers—no matter how big or how small—need to understand the potential risks associated with food production and how to minimize them.
CDC Public Health Law News: What recent legal developments are you most enthusiastic about?
Marler: I’m thrilled that the USDA officially declared the “Big 6” E. coli strains adulterants in meat and is requiring companies to test for those STEC. I also think the FDA Food Safety Modernization Act, when funded, will provide a better framework for preventing foodborne illness outbreaks. I am also hopeful that the Council to Improve Foodborne Outbreak Response (CIFOR) will make strides in tracing outbreaks to their source far sooner than it’s happening today.
CDC Public Health Law News: You strongly supported the 2010–2011 FDA Food Safety Modernization Act, which became law in January 2011. From your perspective, what direction will food safety laws take in the future?
Marler: From where I sit, I think something that’s missing from current food safety laws is punishment for bad actors. I hope that future laws will provide for swift action by the government to bring charges against food companies and executives who knowingly jeopardize people’s lives by shipping bad product—like Stewart Parnell of Peanut Corporation of America, who has yet to face charges four years after people started becoming ill with Salmonella infections after eating products containing contaminated peanuts manufactured by his company. I’d also like to see a requirement for food producers manufacturing risky products to carry a minimum amount of insurance to cover damages related to foodborne illness outbreaks. So often, we see restaurants and other food manufacturers responsible for outbreaks declaring bankruptcy and leaving victims with little—or no—recourse.
CDC Public Health Law News: If you were not working in public health law, what would you likely be doing?
Marler: It’s a toss-up between wanting to be President of Washington State University and a fly-fishing guide.
CDC Public Health Law News : Describe any personal information, hobbies, or interests you care to share.
Marler: I love my wife and kids and love doing what I do as a food safety lawyer and advocate. I have been fortunate to be able to travel to China, Australia, New Zealand, England, France and the Middle East with my family while I give food safety speeches. My kids have been able to meet Presidents and many world leaders (food safety leaders) and that gives a dad a smile.
CDC Public Health Law News : What are your favorite books and what have you read lately?
Marler: Favorite—Hemmingway’s short story—”Big Two-Hearted River” and “Poisoned.”