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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Why the Massive Recall of Food Shows our Food Safety System is Not Completely Broken

istock-000035713338-medium-22708From the 1993 Jack-in-the-Box E. coli outbreak that sickened 700 and killed four children to the mid-2000’s, nearly 90% of my law firm revenue came from E. coli cases linked to hamburger.  Kids who suffered kidney failure or death, kept me busy until the outbreaks and recalls prompted government, industry and the free market to pry my lucrative practice from my hands.

In response to the illnesses (and a significant drop in beef consumption) in 1994 the USDA banned E. coli in hamburger.  A seemingly simple step, it set the standard for what industry had to do and what consumers should expect.  In the 1990’s the CDC focused on E. coli like a laser.  Outbreaks and recalls spiked.  Like the vegetable Listeria recall we see now, E. coli recalls in the 1990’s were frequent and large, some as large if not larger than what we are seeing these past few weeks.  Consumer lawsuits were frequent and costly. The outbreaks and recalls became both embarrassing and costly to industry. These costs prompted the government and industry to begin testing meat before it shipped and destroying tainted meat before it could be eaten.  Industry to its credit devised interventions to prevent contamination and the resulting outbreaks and recalls.  And, guess what?

How many E. coli cases linked to hamburger do I have in my office today?  One.  How many E. coli outbreaks and recalls linked to hamburger in the last year?  One.  The free market worked and the increased costs of recalls drove a free market (with a bit of government intervention) solution.

So. let’s put the current frozen food Listeria recall in context.

In March of 2016, as part of a routine investigation into a report of foodborne illnesses, public health investigators interviewed family members and caregivers of people recently stricken by the potentially deadly pathogen, Listeria.  Some of those illnesses appeared linked to the consumption of frozen vegetables purchased at Costco and produced by a little known company named CFR Frozen Foods under dozens of brand names.

At about the same time, Ohio agriculture officials had randomly tested a brand of frozen vegetables (also produced by CFR) and it had tested positive for Listeria.  The Ohio test genetically matched the ill, which eventually lead the CDC to report that eight people became sick between September 2013 and March 2016.  The CDC was able to link illnesses, including those back three years, by using its genetic database, PulseNet, to CFR.

Although FDA does have mandatory recall authority under the Food Safety Modernization Act passed in 2010, on April 23, 2016, CFR “voluntarily” recalled eleven frozen vegetable products.  However, that would just be the beginning of the recall.  As of last Friday, CRF and other companies that used CFR vegetables in their own products, had recalled more than 500 vegetable containing products dating back years, most under the jurisdiction of the FDA. Many retail chains and several other food companies have also recalled products from all 50 states. The vegetable recall infected dozens of other food products under the jurisdiction of the USDA from frozen chicken with vegetable meals, tamales with corn to Kale and chicken salads.  All toll, those recalls now amount to over 100,000,000 pounds of food. The recall has also spilled across the border to Canada where US imported vegetables have been recalled by its food inspection agency.  And, at the end of the week Britain’s Food Standards Agency announced the recall of US sourced frozen food.

So why would I say that the massive recall is a short term worry but of long term benefit?

True, the recall notifications posted on the various governmental and company websites warning of the risks of consuming Listeria tainted product are worry enough.  And, combined with the media – print, radio, TV and the internet – it is enough for any Chicken Little to sound the alarm that our food safety system is broken.  In addition, major retailers have been emailing, texting, robo-calling and mailing customers directly about the risks of consuming the contaminated products, some of which was purchased years ago and might well be lurking in the back of one’s freezer.  Consumers are feeling a bit under attack by frozen vegetables that are supposed to be good for them.

And, it is not like Listeria is something that can be ignored.  This nasty pathogen sickens thousands in the U.S. annually, hospitalizing nearly 100% and killing about a third of those infected.  It is also one of the leading causes of miscarriages or pre-term pregnancies.  In 2011 Listeria tainted cantaloupe killed at least 33 in what is one of the largest foodborne death tolls in US history.

So, clearly a short term worry.  We as consumers are well served by paying attention to the recalls notices and tossing the products – especially, the elderly, immune compromised and pregnant women.

So, where is the long term benefit?

There was something wrong in the CFR plant that allowed for the proliferation of Listeria, at albeit, low and likely sporadic levels.  As the investigation unfolds, we all will likely learn more on what was or was not going on in the plant over the years that would allow this to happen.  Was the plant and equipment construction such that Listeria had a place to grow?  Was plant sanitation lacking?  Did CFR test for Listeria in the plant, on food contact surfaces and in the product itself?  What was the role of FDA or other government inspectors in not catching problems before it exploded into a massive recall? There will be likely legitimate criticisms to be shared between government and industry and certainly lessons that can and will be learned.

The CDC’s ability to track outbreaks is good and getting better.  The use of genetic fingerprinting of foodborne pathogens – including such new technology as whole genome sequencing – found in plants, products and people, allows for more promptly figuring out an outbreak, alerting the public and holding the producer accountable. In addition, the US Attorney’s office has shown a great deal of interest in the last few years finding companies and their CEO’s criminally responsible for manufacturing tainted food.  Lawsuits and jail time have a unique ability to make companies pay attention.

However, it is the recall itself in my view, that although alarming now, is the greatest force for long term change.  Recalling 100,000,000 pounds of frozen product produced over years from around the world is both disruptive and expensive.  The costs of ferreting it out will cost all the companies involved hundreds of millions of dollars.  These costs create a strong incentive to create mechanisms to prevent outbreaks and recalls in the future.  And, the recalls aside, it is likely that consumers are starting to think twice before purchasing frozen vegetables from their local grocery stores.

Recall costs, slumping sales, along with civil and criminal liability, are powerful market incentives, and ones that have worked over time.  Just ask the beef industry and my wallet.