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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

The President and Safe Food

Trump-McDonalds-in-Plane-Instagram-1Since taking office, President Trump has instituted a freeze on federal employees and the same on new or pending regulations.  He signed an Executive Order setting up a task force within agencies to repeal old rules.  The President has also asked for a $54B increase in military spending that will likely be offset by across-the-board cuts in agencies like the FDA and FSIS that focus on maintaining a safe food supply and inspecting food being imported.

Some would say that President Trump is not interested in food safety, or he is simply not focused on it.  I think it is the latter.  The President has described himself as a germaphobe who enjoys eating McDonald’s hamburgers and chicken from KFC.  As he told CNN: “The one thing about the big franchises; one bad hamburger, you can destroy McDonald’s.”  The President orders his hamburgers and steaks well-done even from his favorite restaurants.  He was recently recorded discussing food safety regulations as a method of reigning in trade with Japan.  The President clearly understands the economics of foodborne illness and customers, as well as food safety and trade.

According to the CDC, foodborne illnesses in the U.S. sicken 48M, put 128,000 in the hospital and kill 3,000 people yearly.  The USDA estimates the yearly loss in medical expenses, lost wages, and death at nearly $16B.  The losses to industry are staggering.  The Pew Charitable Trusts has estimated the “economic losses to industry, including farmers, are enormous, estimated at over $75B per year.”  Industry notices; the GMA reported “in 2007, the estimated cost of the peanut butter recall to one company due to Salmonella contamination was $78M.  The estimated cost to American peanut-containing product producers from the 2009 contamination of peanut butter by Salmonella was $1B.”  Consider that there are dozens of recognized outbreaks prompting hundreds of recalls and you can quickly see the enormous burden on the producers and importers of food. Much of those losses to business are not insurable, which can lead to bankruptcy and loss of employment. The public health burden and costs to consumers and the food industry when outbreaks happen need to be avoided.  This is a place where government can be a valuable partner.

Food safety regulations work when government, industry and consumers work together.  In 1993, the infamous Jack-in-the-Box E. coli outbreak linked to hamburgers sickened 600, put hundreds in the hospital – dozens with kidney failure – and four children dead.  Jack-in-the-Box barely survived after paying my clients over $100M in damages.  The beef and restaurant industry knew the time had come to embrace government assistance through increased regulation, testing and inspection.  Over the next decade, E. coli cases linked to hamburgers became a distant memory and my law firm’s bank account shrank.  Meat, regulated by FSIS, still has room for improvement – Salmonella and Campylobacter are still a persistent risk in poultry.  However, in order to continue to make progress, investments need to be made in research and technology to allow us to effectively battle a bacterial foe that you cannot see, smell or taste.  Government has a role in this.

After the 2006 E. coli outbreak linked to spinach killed five, sickened 200, and nearly decimated the leafy green industry in California, once again consumers, government and industry came together in a bipartisan manner to pass sweeping food safety legislation entitled the FDA’s “Food Safety Modernization Act.”  In essence this legislation allows the FDA to set standards – with input from consumers and industry – to be more proactive, instead of reactive to food safety risks both homegrown and imported.

While outbreaks linked to U.S. – grown fresh fruits and vegetables have declined in the intervening years, according to a recent CDC study, there has been an uptick of foodborne illness outbreaks linked to imported produce and fish.  Without more regulatory oversight, we leave our imports vulnerable to contamination – intentional or otherwise.  Required inspection and testing that makes scientific and economic sense, need to be tools in the FDA’s food safety toolbox.  They also help level the food safety playing field with trading partners.  The same is true for investing in surveillance of foodborne disease through the CDC and State Departments of Health – catching outbreaks early and finding the source helps prevent the next outbreak.

As a businessman, the President wants to know the bottom line.  With consumer illnesses costing $16B a year, and with economic losses to industry of $75B a year linked to food, investing in surveillance, technology, education, and improving governmental regulations to combat foodborne illness is wise and good for business.  Food safety is clearly an area where government works – especially in partnership with industry and consumers.  The bottom line is that spending money now has and will save money and protect the public’s health in the future.

Bill Marler has been a food safety lawyer and advocate since 1993 based in Seattle, Washington.