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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Putting me out the beef business

I am sitting in my office in Seattle watching the snowfall on this St. Patrick’s Day while working on one of the latest food disasters – Listeria in cantaloupe.  I was reminded by the staff at Food Safety News that my “Publisher’s Platform” was due.  After spending most of my day reading about the horrible illnesses and deaths caused by eating cantaloupes, I honestly needed something a bit more positive to write about.

200x152.aspx.jpgFor those who have know me for sometime you have heard me say often, “put me out of business.”  But, I doubt most know when I first said it.  It was in an Op-ed in the Denver Post on August 4, 2002, entitled, “Four steps to safer food.”  Here it is in full:

This summer, scores of Americans, most of them small children or senior citizens, have already or will become deathly ill after eating ground beef boldly labeled “USDA approved.”

The now infamous ConAgra case started with a few sick kids in Colorado and quickly spread coast-to-coast, eventually triggering the recall of 18 million pounds of ground beef tainted with E. coli.

Now we know that this recall came weeks late, after most of that meat had been consumed by innocent consumers from Washington State to New Jersey. Because they trusted government’s food inspections, several kids suffered kidney failure and spent days or weeks hooked up to kidney dialysis machines. For some, the long-term prognosis is grim, with the risk of further kidney failure, dialysis, transplants or worse. I know this because I am a trial lawyer who has built a practice on food pathogens. Many of those kids’ parents have hired me to help them get compensation for hundreds of thousands in medical costs. Which may prompt some readers to consider me a blood-sucking ambulance chaser who exploits other people’s personal tragedies.

If that’s the case, here’s my plea:

Put me out of business. Please.

For this trial lawyer, E. coli has been a successful practice – and a heart-breaking one. I’m tired of visiting with horribly sick kids who did not have to be sick in the first place. I’m outraged with a food industry that allows E. coli and other poisons to reach consumers, and a federal regulatory system that does nothing about it.

Stop making kids sick – and I’ll happily move on. Here’s how:

Actually inspect and sample food. At present, the U.S. Department of Agriculture 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 General Accounting Office 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.

So hire more inspectors and give them real authority to sample meat and stop its distribution as soon as a pathogen is detected. Implement a sampling system that provides a reasonable chance of preventing another outbreak.

Doing so might add a nickel a pound – maybe less – to the price of hamburger. But it will also cut into my business. And isn’t that the idea?

Consider mandatory recall authority. This authority was required in Sen. Tom Harkin’s Safer Meat, Poultry and Foods Act of 2002. Under the present system of voluntary recalls, no company has actually refused to recall contaminated product. But in its recent report, the GAO did document several instances where companies delayed complying with recall requests. Delays mean tainted product has more time to reach consumers.

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 don’t know where the meat came from and processors rarely step forward. ConAgra deserves credit for owning up to its responsibility to track down as much of the tainted meat as possible and for covering the medical costs of its victims.

But ConAgra is the exception. Timely online records would allow meat to be efficiently tracked down and recalled as soon as inspectors get a positive test result. Those plastic club cards issued by grocery chains could enable stores to contact specific individuals who have bought suspect ground beef. 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.

None of this will stop E. coli entirely. This invisible poison has been around a long time and is bound to pop up again. But these steps will enable us to detect it far more quickly, to alert stores and families, and to keep our most vulnerable citizens – kids and seniors – out of harm’s way. And, with a little luck, it will force one more damn trial lawyer to find another line of work.

Fact:  E. coli O157:H7 cases were down 44% in 2010 compared to 1996-1998.  See, Vital Signs: Incidence and Trends of Infection with Pathogens Transmitted Commonly Through Food — Foodborne Diseases Active Surveillance Network, 10 U.S. Sites, 1996—2010.

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I sit here now working on the cases of two 80 plus year olds, who fought in WWII, (splitting three purple hearts between them – coming home as heroes) who got married, who raised families and who then died from eating cantaloupes tainted with Listeria.  In years past my Saturday would have been with a 5-year-old who had died or suffered from acute kidney failure due to E. coli O157:H7 in hamburger.  From 1993 though 2003 most of my firm’s revenue was directly related to E. coli O157:H7 in hamburger.  That has changed and changed for the better.

To the beef industry – yes, including those who sell “Pink Slime” – thank you for meeting my challenge.  That being said, there is still much the industry can do.  Shiga-toxin producing E. coli will always be an issue, and antibiotic resistant Salmonella, and other bad bugs we do not even know about lurk around the corner.  The industry cannot let up.  Even with the success there still have been people like Stephanie Smith and Abby Fenstermaker who remind you the battle will likely always have to be fought.

However, to the beef industry, take some solace that you have been doing a far better on food safety, and doing really well not putting money in my pocket. 

Well, back to cantaloupe.

  • Lewis

    I threw a pair of beef steaks on the BBQ during a break in the recent rain storms here in Northern California, and then thought about this article.
    As students of Food Safety we passed around and discussed for hours the preventative improvements proposed and whether measurable changes would be experienced. So much more still needs to be done towards putting you out of business, as the Listeria outbreak or the AA Meat Product Corp recall demonstrates.
    We must continue to stress the prinicples of Food Safety within both retail and wholesale food business, and mentor new individuals on the enforcement of US and local food regulations. Last, we will have to be willing to change, accept the new challenges and tasks required of us to protect the public.
    Daily I will be looking for a way to do my part, and read your blog about you doing yours.

  • Paul F Schwarz

    Bill, I doubt that the food industry will put you out of business. As long as there is money to be made by the food industry, food safety will take a back seat! Additional safety measures will cost the industry money. Inadequate audits will remain the norm. As consumers we should expect food safety when we buy our meat, produce and milk. Food safety should be treated as a national security issue, but sadly it is not.
    I am a son of one of the 80 plus year olds that ate listeria tainted cantaloupe from Jensen Farms.
    Section 51 Row 3 Grave 3

  • Barbara Griffith

    What I have to say may shock a lot of people but does anyone here know that the US government allows thousands of US raised horses to be shipped to Canada and Mexico to be butchered for meat to be sent to the EU countries that still eat horse flesh. In 2007 the last US horse slaughter plant was shut down for numerous reasons including severe damage to drainage systems in the town in TX where one of the plants was located. The horses are bought at auctions in many states by what is known as killer buyers or men that have contracts with slaughter plants in Canada and Mexico to deliver a certain number of horses to be killed and the meat shipped to the companies in Europe to be packaged and sent to grocery stores and meat markets for consumers to buy. To try to make a long story short, 99% of US horses are given Veterinary drugs that plainly state are not to be given to horses sent to slaughter. The European Union has what is called a passport system that all horses must have that states what Vet drugs the animal was given from birth to death. The EU regulations are very strict on all animals that are slaughtered.
    There is one drug called “Phenlbutazone” or Bute that is given on a daily basis to many thousands of US horses from racehorses to show horses. This is like the aspirin of the horse world. The only trouble is that the EU bans this drug in all horses for life if given just one dose, no exceptions. The drug can cause aplastic anemia in children, that is how deadly this is. For decades at the horse slaughter plants in the US the Agriculture department inspectors only checked small samples of muscle meat for this drug and not to many samples at that from what I learned. They claimed they found no Bute. From what I found out a few weeks ago Bute is found to metabolize in the horses kidneys not muscle samples.
    And it stays in the horses system for the rest of the horses life which means that the US has been shipping contaminated horse meat to consumers in Europe for decades. The same thing is going on at the Canadian and Mexican horse slaughter plants since the slaughter plants in the US are gone. All horses have to have a list of Vet drugs to give to the border inspectors which are very easy to just write in that the animals have never any had these drugs. US horses are not required to have the passports so it is been left up to the killer buyers to fill in the blanks with pure guesswork since they never saw any of the horses they buy at auctions before.
    If you want to learn more about this please contact equinewelfarealliance.org

  • Oscar M.

    No unemployment worries Bill. The recent wave of cottage industry food laws aim to bring loads and loads of questionable product into the market. You will need to step up your surveillance to detect much smaller food poisoning outbreaks. Individual victims will still get just as sick, and some will still die. The new wave of defendants won’t be established businesses with adequate liability insurance coverage, so you will have to get creative in attaching personal assets in fulfillment of fairly won damage settlements. Maybe team up with a good realtor to move those little hobby farms and suburban homes you will be taking title to as their previous owners screw up as cottage food vendors? A good auctioneer will help you monetize those SUVs and boats and livestock menageries. It’s merely a matter of shifting competencies.

  • Joseph Butterweck, COL, USAF, VC ( ret)

    In 1964 while a new Lt. in the USAF Veterinary Corp I was required to send milk samples to the Army Lab to confirm the bacteria count was below our requirements. I decided to also send some hamburger samples. The only requirement was the fat content had to be less than 20 %. However, my interest were beyond this. I was amazed at the very high levels of bacteria in our hamburger. I thought I had discovered something new.
    A few months later I confronted the US Army lab personal while on a visit to the lab about this issue. One of the employees went to their file and pulled out newspaper article about this issue from the early 1950’s.
    Now. do you really think more inspectors with more authority will make a change?

  • Jamie Reeve

    Canada’s Bioniche Life Sciences Inc. is about to begin production of a preharvest vaccine that reduces ecoli shedding by 98%. The vaccine will be available in the summer of 2012 and yet there has been no announcement of any producers any where in the world that are willing to absorb the cost ($US12/head). While we will see more meat recalls and more contamination making its way through the post production cycle when will consumers, producers and governments recognize that preharvest prevention is the safest and most economical way to effect the reduction of ecoli poisoning?

  • Minkpuppy

    The current FSIS sampling program is set up now so that as more “negative”results are generated from a plant, fewer sample requests are sent out.

    How the heck is the Agency supposed to catch a problem in time if the sampling frequency is reduced?

    So yes, inspectors do need more authority when it comes to sampling,