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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Survival means sometimes fixing the problem and saying you are sorry

Last week we got a hint that the spinach industry feels that spinach is safe – well OK, not from three counties in California.  But, how can the consuming public be sure of that?  Also, when Salinas product does try to make it back on the market, how can the spinach industry in the Salinas Valley of California can assure us that the inputs to bagged spinach are safe – wait, remind me again why lettuce is safe – given that Salinas lettuce (head and bagged) has been implicated in more outbreaks than spinach, and is grown in the same area, with the same water, workers and processes?

So, really what is the industry as a whole, workers, growers, shippers, processors, industry groups and retailers – from “farm to table” going to do?    Although Natural Selection, the manufacturer of some of the contaminated product, and DOLE the owner of the label that consumers trusted, are in my legal cross-hairs, this is an industry problem that demands an industry solution.  If the industry leaves Natural Selection and DOLE “swinging in the wind,” eventually, perhaps not now, but in the next E. coli outbreak, instead of “hanging together” now, they will “hang separately now” and “hang separately later.” Of course the Western Growers Association have a plan, but it may look like a rehashing of old programs that should have been followed in the first place.

So, will the industry simply let Natural Selection and DOLE twist, or will the industry come up with a solution so this does not have to happen again?  How is the industry going to make the public know that the product that they claim to be good for you will in fact not kill you?  Here are some simple steps to fix the problem and get the spinach and lettuce industry back to work:

1.    Implementation – The industry needs people on farms, who know farms, providing producers with information on risk reduction; individuals who are passionate about the production of safe food, and who can share that passion and knowledge with individual farmers.

2.    Verification – Farmers and processors need to demonstrate to consumers they are aware of microbial risks and are taking serious steps to reduce that risk, day-in, day-out, even in the absence of an outbreak. Regulatory or even third party-audits are largely meaningless.  Audits are snapshots, and auditors look for easily viewed visual mistakes and do little to look at what a farmer or staff member does.  Just like restaurant inspections audits are not a good indicator of likelihood of an outbreak. Farmers need food safety resources 24/7 to help guide their production practices, and they need those best practices continually reinforced; an annual audit is hopelessly insufficient, especially since outbreaks keep happening from processors that are audited.

3.    A proactive Communication program – Talk about real risks, talk about real outbreaks, with farmers, buyers and staff – all staff, because, when it comes to food safety, if the industry is only as strong as its weakest grower, than a specific company is only as strong as its front-line staff. Tell everyone what is being done to address the risks.

4.    Not another program – Guidelines, good agricultural practices sound nice, but on their own are meaningless.  The program itself must be:
    
•    Flexible and continuously evolving and improving,
•    Easy to understand
•    Provides support for individual growers to help them understand the  requirements,  documentation, principles
•    Utilizes multiple strategies to reduce knowledge, attitude and behavioral barriers Efficient and inexpensive; provide practical, cheap solutions
•    Well documented
•    Compel farmers, processors and staff to care about illnesses through an open dialogue

I’m not making these solutions up, they’ve been in print for a year in Book called “Improving the Safety of Fresh Fruit and Vegetables.”  This information is in a chapter by Ben Chapman and Doug Powell called “Implementing On-Farm Food Safety Programs in Fruit and Vegetable Cultivation.”  

Will the industry survive if the focus is only on doing those things it should have done years ago, and is designed solely to draw customers back to its multi-billion dollar industry?  What about the victims of this outbreak?  What of the nearly 200 sickened, 75 hospitalized, 30 with serious complications and as many as three deaths?  Where are the industry groups like United Fresh Produce Association? According to their website, United Fresh Produce Association is the industry’s leading trade association committed to driving the growth and success of produce companies and their partners.  You’d think that the trade organization would be interested in fixing this problem so they could get back to promotion.  Every time I check their websites for spinach information I’m asked for to sign up as a member. 

All I’m looking for is an apology. Where has the offer been to help now with medical expenses, wage loss and the risks of severe future complications to this deadly bug the industry let out in “triple-washed” plastic bags?  

Here again, Natural Selection and DOLE are in my legal cross-hairs.  But again, this is an industry problem that demands an industry solution.  Frankly, given the size of this outbreak and the severity
of the illness, if the entire industry does not work together to find a creative financial solution for the victims, one by one these companies may fail under the weight of litigation, liability and damages.  Driving companies into the ground is not something good lawyers do lightly or with any relish.  However, between companies who poison and the victims left as a result, the decision for this
lawyer is easy.
 
In my other life as a principle of Outbreak, I try to teach companies why it is a bad idea to poison people.  What has happened over the last two weeks I think serves as a great example of why that message makes sense.  Despite that the worst scenario has happened, there is now an opportunity for the industry to survive, but it means fixing the problem together and saying you’re sorry together.

  • Great Article. Do you mind if I link to it from our blog site?