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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Put me out of business – Please – 2007

In August 2002, I wrote an Op-ed for the Denver Post entitled “Put me out of business – please.” That summer, the now infamous ConAgra case, started with a few sick kids in Colorado and quickly spread coast-to-coast, eventually triggering the recall of over 19,000,000 pounds of ground beef tainted with E. coli O157:H7. I asked, no pleaded, that the government and industry adopt measures to prevent illnesses. I asked:

* Actually, inspect and sample meat. At present, the USDA employs thousands of inspectors across the nation to inspect hundreds of plants that produce millions of pounds of beef at processing plants and retail outlets. The GAO has warned that the USDA’s food samplings are so scattered and infrequent that there is little chance of detecting microscopic E. coli or any other pathogen.

* Consider mandatory recall authority. This authority is required in Sen. Tom Harkin’s Safer Meat, Poultry and Foods Act of 2002 (named Kevin’s law for a young boy who died of E. coli that year).

* Require the meat industry to document where specific lots of food are sold. That way, it can be recalled quickly if a pathogen is detected. In most E. coli outbreaks, there is no recall because retailers do not know where the meat came from and processors rarely step forward.

* Merge the two federal agencies responsible for food safety. Right now, USDA’s Food Safety Inspection Service and the inspection arm of the Food and Drug Administration share this mission. The system is bifurcated, which leads to turf wars and split responsibilities. We need one independent agency that deals with food-borne pathogens.

* Finally, large purchasers of meat – fast food industry, grocery store chains, and yes, the USDA – must require the meat industry to produce high quality, pathogen lessened, meat.

From 2002 until a few weeks ago I believed that even though most of the measures above never fully occurred, E. coli illnesses, especially those tied to red meat consumption were down – way down. A report in 2005 released by the CDC, in collaboration with the FDA and USDA, showed important declines in foodborne infections due to common bacterial pathogens in 2004. From 1996-2004, the incidence of E. coli O157:H7 infections decreased 42 percent.

Now that was, and still seems, significant. We saw the same results in our law firm. From 1993 (Jack in the Box) to 2002 (ConAgra), 95% of the cases in our office were E. coli cases tied to red meat consumption. After 2002, we saw enormous drop in clients, and more importantly, ill people nationwide. Recalls fell to nothing. That is until six weeks ago. The last six weeks look like the late springs and summers from 1993 to 2002, when hamburger recalls and E. coli illnesses were a large part of every summer – much like vacations and baseball season. Now here is the concerning reality of 2007:

* At least thirteen people have been confirmed ill with E. coli O157:H7 infections after eating ground beef produced by United Food Group sold in Arizona, California, Colorado, Idaho, Nevada, New Mexico, Oregon, Utah, Washington, Wyoming and Montana. Over 5,700,000 pound of meat have been recalled.

* Tyson Fresh Meats, Inc. recalled 40,440 pounds of ground beef products due to possible contamination with E. coli O157:H7. No illnesses yet reported.

* Seven Minnesotans were confirmed as part of the E. coli O157:H7 outbreak that prompted PM Beef Holdings to recall 117,500 pounds of beef trim products that was ground and sold at Lunds and Byerly’s stores.

* Twenty-seven people have been confirmed ill with E. coli O157:H7 infections in Fresno County. The Fresno County Department of Community Health inspected the “Meat Market” in Northwest Fresno, the source of the outbreak.

* At least two people were confirmed ill with E. coli O157:H7 infections in Michigan after eating ground beef produced by Davis Creek Meats and Seafood of Kalamazoo, Michigan. The E. coli outbreak prompted Davis Creek Meats and Seafood to recall approximately 129,000 pounds of beef products that were distributed in Arkansas, Florida, Illinois, Indiana, Iowa, Kansas, Kentucky, Michigan, Missouri, Ohio, Pennsylvania, Tennessee, Virginia, West Virginia, and Wisconsin.

* Following reports of three Napa Valley children who became sick from hamburger patties sold at a St. Helena Little League snack shack, 100,000 pounds of hamburger (that was a year old) was recalled.

* Several people were confirmed ill with E. coli O157:H7 infections in Pennsylvania after eating E. coli-contaminated meat products at Hoss’s Family Steak and Sea Restaurants, a Pennsylvania-based restaurant chain that purchased its meat from HFX, Inc., of South Claysburg, Pennsylvania. As a result of the outbreak, HFX recalled approximately 4,900 pounds of meat products.

I am not sure I know the reason for the new and ominous trend (these are the largest meat recalls in five years), but by anyone’s count these numbers are concerning. What I do know is that these recent outbreaks have all the ugly signs of another national emergency. As a nation – and that includes all federal and local government agencies as well as the private sector – we cannot let the positive tend of the past become another acceptable body count. We need to figure out why this has happened. My suggestion – if Congress was willing to drop everything in order to investigate the deaths of a dozen cats due to contaminated pet food from China – perhaps bringing all the executives of the companies responsible for this recent rash of outbreaks, recalls and illnesses to Washington for a few days of questioning (under oath) might help us get to the bottom of this.

  • Katherine Martin

    I have a question regarding the FDA. If a company such as Tyson found out that there meat was contaminated with E. coli do they by law have to report this to the FDA and recall all the meat or is it just a voluntary recall for good measure. This has be an on going argument in my office. Thank you for your time

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