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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Towards a Policy of Secrecy or Transparency in Public Health

Is there a good reason to keep a companies name secret when it is linked to a foodborne illness outbreak?

tauxe.jpgI have a great deal of respect for Robert Tauxe, MD, MPH, Deputy Director of the Division of the CDC that is charged with prevention and control of foodborne, waterborne and fungal infections.  He has been in the diarrheal trenches for a very long time – since just after E. coli O157:H7 made its quiet entrance in McDonald’s restaurant (unnamed at the time) hamburgers in Michigan and Oregon to the deadliest Listeria outbreak linked to tainted Colorado cantaloupes.  Over many years he has had the responsibility for overseeing the 76 million (or is it 48 million) sickened, 325,000 (or it is 125,000) hospitalized, and 5,000 (or is it 3,000) deaths yearly due to foodborne illness – that is a lot of responsibility.  

I have had the pleasure over that last two decades to on occasion share the food safety stage with him (although you get the sense that the feeling is less than mutual).  And, I cannot think of anyone who looks better in a bow tie.

It is therefore with mixed emotions, and the knowledge that I likely make my relationship with public health – both federal and state – even more tenuous, that I question his quotes in today’s MSNBC dust-up over the disclosure or non-disclosure of “Mexican-style fast food restaurant chain, Restaurant Chain A” that is a source of a Salmonella outbreak that sickened 68 people in 10 states.  Here is what he had to say to MSNBC:

Dr. Robert Tauxe, a top CDC official, defended the agency’s practice of withholding company identities, which he said aims to protect not only public health, but also the bottom line of businesses that could be hurt by bad publicity. The CDC, the Food and Drug Administration and state health departments often identify companies responsible for outbreaks, but sometimes do not.

“The longstanding policy is we publicly identify a company only when people can use that information to take specific action to protect their health,” said Tauxe, the CDC’s deputy director of the Division of Foodborne, Waterborne and Environmental Diseases.

“On the other hand, if there’s not an important public health reason to use the name publicly, CDC doesn’t use the name publicly.”

Because companies supply vital information about outbreaks voluntarily, CDC seeks to preserve cordial relationships.

“We don’t want to compromise that cooperation we’ll need,” Tauxe said. …

Tauxe acknowledged there’s no written policy or checklist that governs that decision, only decades of precedent.

“It’s a case-by-case thing and all the way back, as far as people can remember, there’s discussions of ‘hotel X’ or ‘cruise ship Y,” he said.

I too was quoted in the article above and was repeatedly asked if I thought that the CDC was bending to company pressure to keep the restaurant name quiet.  I said emphatically no!  But that did not make it into the article.  So, not to put words in Dr. Tauxe’s mouth (and granted he may have had more to say), but as best as I can tell, these are his arguments for disclosure and non-disclosure and my thoughts in italics:

A.  Although there is no written policy, it is the way we have done things for years;

Why do I hear my mom saying, “just because so and so does that does not mean you should too.” Like all government policies (and neckwear) – change is good.

B.  Since the outbreak has concluded, there is not an immediate public health threat;

Frankly, that is true in most foodborne illness outbreaks.  In nearly every single outbreak investigated by the CDC the outbreak is figured out far after the peak of the illnesses happened.  However, disclosure gives the public information on which companies have a strong or weak food safety record.

C.  Disclosing the name of the company jeopardizes cooperation from the company in this and future outbreaks; and

If a company will only cooperate if they are placed in a witness protection program and with promises of non-disclosure, it does not say much for our government’s and the company’s commitment to safe food.

D.  Bad publicity may cause economic hardship on the restaurant.

True, but not poisoning your customers is a better business practice.

I would also add a couple more reasons that I have received via email (mostly anonymously):

1.  The source was an unknown supplier, so naming the restaurant might place unfair blame on the restaurant;

This one does make some sense.  However, is this the unnamed restaurants first problem with a faulty supplier, or is this a pattern?  And, even if it is the first time, perhaps some of the unnamed product is still in the market?

2.  Since the outbreak involves a perishable item, by the time the CDC announces the outbreak, the tainted product has long been consumed;

This one I have heard a “bunch” of times – especially in leafy green outbreaks.  However, why should the public be left in the dark about the type of product that sickens as well as the likely grower and shipper so they can make future decision who to buy from?

3.  Going public with the name of the restaurant compromises the epidemiologic investigation by suggesting the source of the outbreak before the investigation is complete;

I completely agree with this one.  This is a tough call, and one that must create the most angst for public health officials – they decide the balance between having enough data to go forward to protect the public health or wait for more data.  The point is do not go forward until the investigation is complete.

4.  Public health is concerned of making an investigation mistake like, it’s the tomatoes, err, I mean peppers; and

See my answer to 3 above.  This is why under the law; public health officials are immune for liability for the decisions that they make in good faith to protect the public.

5.  Public health – especially surveillance – is under budgetary pressures and there is simply not the resources to complete investigations; and

There is no question that this is true.  I have seen it in dropped investigations over the last few years.  Labs are not doing genetic fingerprinting to help reveal links between ill people.  And, many tracebacks are stopped by the lack of peoplepower to do the research necessary to find the “root cause” of an outbreak.

For me it is easy – the public has a right to know and to use the information as it sees fit, and people – especially government employees – have no right to decide what we should and should not know.  CDC, FDA and the state health departments of Texas, Oklahoma, Kansas, Iowa, Michigan, Missouri, Nebraska, New Mexico, Ohio and Tennessee should do their jobs.

  • http://eFoodAlert.net Phyllis (aka foodbuglady)

    Here, here!!!

  • Doc raymond

    The USDA now identifies all retailers who sold meat or poultry linked to an outbreak or a positive product test. There is no reason for FDA not to do the same. The perishable excuse is bunk. People freeze leftovers and even though the outbreak peak may have passed, the culprit may still be in someone’s freezer. I could give multiple examples. Robert Tauxe is a good guy, but he still follows orders and directions from above. Probably not totally fair to point the finger at him and him only.

  • http://www.marlerclark.com/wmarler.htm Bill Marler

    I hear ya Doc.

  • Gabrielle Meunier

    Perhaps there should be some sort of policy based upon severety or a three strikes and you are outed policy. The public needs to know who offenders are. If there is not public pressure on large companies, serious change will not happen. Protecting a company for good reasons is a good thing, but as in the case of the 2008/2009 peanut poisoning, companies need to be responsible for all of their ingredients and suppliers and that cannot be a reason for not identifying the company. They should not be able to pass the buck because the public is relying on them for doing more than due diligence when they purchase from their suppliers. Certainly, however, if in a 10 year history, a company frequently has caused outbreaks, I’d say their name needs to be identified regardless . . .

  • http://www.johnmunsell.com John Munsell

    On May 9 & 10, 2002, a “Pathogen Reduction Conference” was held. This question was posed to Robert Tauxe: “Does USDA share with CDC PFGE information on recalled product?” Mr. Tauxe replied “We have been waiting to get that from the USDA for quite a while”. When gov entities intentionally delay, or prevent, sharing epidemiological evidence with each other, we have to assume that the agencies’ primary focus is NOT protecting consumers from foodborne outbreaks. What IS the agencies’ primary focus then? Might it be protecting the agency from litigation emanating from food manufacturers or processors? Might it be to insulate the agency from the delicate discomfort involved with attempting meaningful enforcement actions against the true source of contamination? Might we need agency officials with the courage of a Lee Iacoca? Might it be that agency officials who hope to gain employment with the industry upon retirement from the government don’t want to risk burning their bridges with the very industry which will be their revenue source in the future? There may be many reasons, but the fact remains that these agencies exist only because of taxpayer dollars; thus, taxpayer interests must be foremost.
    John Munsell

  • Domenic

    Your comments are right on target. This secrecy about the name of the chain/restaurant only serves to taint ALL “mexican style” or burger businesses while protecting the one that screwed up!

  • Doc raymond

    John, I may get corrected, but it is my firm understanding that every USDA meat and poultry sample that tests positive is entered into the CDC data base and the PFGEs are also duly noted. Can’t speak for 2002. Anyone, is this accurate today?

  • Sam

    Look, Taco Bell has been around a long time. This venerated institution has provided jobs for thousands, and fast cheap food for late night stoners, for decades. Just like our beloved banking industry, I am totally convinced that Taco Bell is too big to fail. Imagine the potential economic impact; the owners of Taco Bell might have to sell the jet and go to a prop driven aircraft!! The HORROR!
    Make a run from the odor…

  • Gary Harnum

    You are absolutely right…put their feet to the fire. Money talks.and that is the only reason they will invest in food safety ….the people have a right to Know… Go RON PAUL

  • Jennifer

    I’m concerned that there is an “unknown supplier”. All companies have an obligation to know where there supplies are coming from!