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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

William Marler Opinion – Sellers of E. coli – Stop Blaming the Victims

“It was not the failure of the cookie dough manufacturer for not keeping cattle feces (E. coli) out of cookie dough that sickened the child, it is the fault of the parent who allowed the child to eat the dough.”

I have received several calls and emails like the above over the last few days as the country has been ensnared once again in a nationwide recall – this time cookie dough – that has sickened at least 69 in 30 States – mostly people (girls) under the age of 18.

At first I calmly tried to respond that a company that makes a profit off of selling a product that it knows is eaten raw can not blame the consumer if the product actually contains a pathogen that can severely sicken or kill a child. The reality is that cookie manufacturers know that they sell a product that is eaten raw.

From the Minneapolis Star-Tribune – “Long known to satisfy a certain longing of the brokenhearted and the children-at-heart, the dough is nearly as popular raw as it is baked. There are more than 40 cookie dough groups on Facebook — one with more than 1.3 million members — complete with photos and postings that read like love notes.”

From the Washington Post – “Nestle’s cookie dough is packaged with labels warning consumers not to eat it raw. But people tend to disregard the warning — 39 percent of consumers eat raw cookie dough, according to Consumer Reports. It has become such a popular snack that many ice cream makers have developed a cookie dough flavor.”

So, the reply to my calm response has been, “the consumer should know that cookie dough may contain bacteria and they are told to cook it.”

My calmness has now faded. Think about the little labels on cookie dough that you buy in the store – the ones that tell you “cook before eating” – wink, wink. However, the labels do not say:

“THE FDA INSPECTION MEANS NOTHING. THIS PRODUCT MAY CONTAIN A PATHOGENIC BACTERIA THAT CAN SEVERELY SICKEN OR KILL YOU AND/OR YOUR CHILD. HANDLE THIS PRODUCT WITH EXTREME CARE.”

I wonder why the Cookie Industry would not want a label like that on your tub of dough. It knows that the label is truthful. Do you think it might be concerned that Moms and Dads would stop buying it? The day the Cookie Industry puts a similar label on the label is the day that I will go work for them. The reality is that the Cookie Industry and the FDA has not yet been able to assure the public that the dough we buy is not contaminated. So, instead of finding a way to get cattle feces out of our cookie dough, they blame parents when children get sick.

Consumers can always do better. However, study after study shows that, despite the CDC estimated 76 million people getting sick every year from food borne illnesses, the American public still has misconceptions and overconfidence in our Nation’s food supply.

According to a study by the Partnership for Food Safety Education, fewer than half of the respondents knew that fresh vegetables and fruits could contain harmful bacteria, and only 25% thought that eggs and dairy products could be contaminated. Most consumers believe that food safety hazards can be seen or smelled. Only 25% of consumers surveyed knew that cooking temperatures were critical to food safety, and even fewer knew that foods should be refrigerated promptly after cooking. Consumers do not expect that things that you cannot see in your food can kill you.

Consumers are being blamed, but most lack the knowledge or tools to properly protect themselves and their children. The FDA has stated, “unlike other pathogens, E. coli O157:H7 has no margin for error. It takes only a microscopic amount to cause serious illness or even death.”

Many consumers wrongly believe the Government is protecting the food supply. How many times have we heard our Government officials spout, “The US food supply is the safest in the world.”

Where is the multi-million dollar ad campaign to convince us of the dangers of uncooked cookie dough, like we do for tobacco? Most consumers learn about food safety from TV and family members – If your TV viewing habits and family are like mine, these are highly suspect sources of good information.

The industry that makes a lot of dough off of selling dough must step up and clean up their mess. They can, and someday will, if I have anything to say about it. That day will come much faster if they start working on it now, and stop blaming the victims.

  • John Munsell

    Whether the contaminated product is cookie dough, lettuce, ground beef, spinach, peanut butter or whatever, a lethal related area not being addressed is the probability of cross contamination. Let’s assume a mom exercises all due diligence with raw cookie dough, personally ensuring that no one in her family eats the raw dough. The dough is fully cooked, and it is true that folks eating the finished product are eating safe food. Another danger lurks almost everywhere in the kitchen however, caused by cross contamination. When mom formed the raw dough into round balls and placed them on the cookie platter, she touches the raw dough with her hands (how many cooks use gloves when handling raw dough?), and her hands touch numerous other kitchen objects, such as the oven door handle, oven mitts, drawer handles, kitchen door handle, sink handles, on and on. Will manufacturers of raw cookie dough sue the mothers of everyone sickened in this outbreak, based on mothers’ unwillingness to wear gloves, and refusal to remove and replace the gloves everytime they touch something else in the kitchen? I challenge you to show me where USDA’s meat inspection policies place any emphasis on cross contamination, which has become the ugly stepsister to be avoided at all costs. I also challenge you to chop a head of lettuce, or blend BBQue sauce in your burger and carefully consider the dozens of ways you can easily cross contaminate other items in your kitchen. Neither the food industry nor gov entities such as USDA & FDA discuss this ubiquitous problem, because the inevitability of cross contaminating numerous areas within the food preparation area cannot be dismissed, and then who can be blamed for these outbreaks? Personally, I prefer to place 10 lbs of ground beef on my counter top, blend special spices into it, then hand form it into patties, place the patties on large cookie sheets, and leave them in my frig for 24 hours before cooking, allowing the spices to permeate the meat. All my guests LOVE the final product. In recent years, as I have become familiar with cross contamination issues, I swear to you that I find it practically impossible to prevent cross contamination, regardless of how diligent I am. In frustration, I finally resort to a few “questionable” protocol in this process, simply because there are only 24 hours in a day, and there aren’t enough disposable gloves on this globe to enable me to be 100% careful. So, if we consider food safety strictly from a cross contamination standpoint, manufacturers would conclude that production of consistently safe food is in their best interests. John Munsell

  • cheryl berenson RN, MS-MPH student OHSU

    I agree. One of my classmates at OHSU and I wrote a research paper on the use of the internet to educate college students(a high risk group for bad food prep behavior, thus FB illness) about safe storage, handling and preparation of food. The information is simple and straightforward and has been formatted by many groups- it is just not getting disseminated.

  • Bix

    Those are interesting statistics, about the popularity of raw cookie dough.
    Nestle needs to be careful in what they say. They’re already at risk of losing their raw cookie dough market. They might not want to alienate consumers more by denigrating them.
    John makes a good point about cross contamination. Liked this: “there aren’t enough disposable gloves on this globe to enable me to be 100% careful.”

  • Steve

    The Bottom Line is what dictate our food safety. As long as it will be cheaper to pay victims or damages compared to the cost of “food safety”, we will have food scare and recall on a regular basis.
    As a consumer, I am always baffled to see that hamburger meat is twice as cheap as some veggies.
    American consumers want cheap food: well, it’s produced cheaply.
    The FDA is a clown and act as a clown, as long as the FDA will not have the power to seriously control and punish the companies that put our lives in jeopardy, nothing will change.

  • vcinbc

    It’s not ‘blaming the victims’ – it’s educating the public so that a PREVENTABLE illness can be prevented! Yes, this is a very unfortunate situation and e.coli should be kept out of the dough. But if you knew there was a small chance there could be e.coli (ditto if you undercook burgers) and you let your kid eat the cookie dough… Whatever happened to taking responsibility for one’s actions?

  • Debi

    I hope that the mom you are discussing has washed her hands prior to handling the raw dough and after. That in itself would prevent cross contamination. We need to be mindful of washing our hands before handling food and when going between raw foods and meats etc. This isn’t tough to do. People need to practice basic sanitation. Washing hands, covering your mouth when you sneeze or cough and washing your hands again. Gloves? I don’t particularly want latex coming in contact with my food.

  • MDF

    I agree with vcinbc. Eating raw cookie dough is an assumed risk. In some areas (such as raw milk cheese), our food safety laws are even excessive. This isn’t an issue of safety, but information. It’s not blaming the victim to expect people to practice common sense.

  • Kate

    I think the majority of Americans (myself included at times) think that if a food item is packaged, it is safe. The label on packaged “triple washed” spinach says to wash it before eating – I wonder how many people actually do that? Foodborne illness is not a problem that the food industry can solve, or the FDA, or consumers. Everyone needs to do their part to package, inspect, and prepare food safely.

  • Daniel Ithaca, NY

    after reading Mr. Munsell’s commment:
    So the recommendation from the corporations/FDA is to handle the cookie dough like a biohazard? If a glob of it is inadvertently dropped upon the floor, should the EPA be contacted for a clean up?
    There is e-Coli in the dough likely because there is fecal contamination. So it is okay that your cookies contain fecal matter and dead e-Coli?
    Just say “no” to foods containing more than 5 ingredients. Make healthier version of cookie dough with ground flax seed as an egg replacers and use dairy free chocolate chips.

  • Daniel Ithaca, NY

    Common sense would be to avoid companies/products that have these safety labels on them. If the food is that risky, why chance it!

  • DensityDuck

    If you’re going to complain about people using things off-label, then read up on Cytotec. It’ll curl your hair. You’ve got bigger fish to fry than idiots who eat raw eggs and get sick from it.

  • Nony Mouse

    The FDA would probably not approve any label that said that their inspection was worthless, anyway.
    Daniel: 5 ingredients? So does that mean that you’re not allowed to have a sandwich because of all the ingredients in the bread?
    More seriously: As I understand it, there’s a nonzero chance of e.coli contamination from anything with eggs. Not because the inside of the egg is damaged, but because we haven’t redesigned the chicken. In the home kitchen, with pasturized milk, making cookie dough and eating it is probably a fairly low-risk activity, since home cooks (at least if my family is any indication), wash everything, individually evaluate each ingredient, and clean everything between uses. On an industrial scale, individual evaluation is Much More Difficult. For all the vaunted mechanical quality controls who, in a not random example revealing a horrible snacking habit of my own, has not upon occasion happened upon merged M & Ms, burned potato chips, and/or wrapping problems on a single chocolate in a package of them?
    And in this particular case, did they not use pasturized milk (in which case, they’re probably in violation of several FDA regulations) or is there a more significant problem of which we are not aware, since you are specifically referencing CATTLE fecal material?

  • Presumably some people use hairdryers in bathtubs, too.
    Is it “blaming the victim” to say “cook your food before you eat it because, you know, we invented cooking 80,000 years ago to solve this problem”? If so, count me in the “blame the victim” category.
    Is it sad? yes. Is it the mother’s fault? yes.
    The government cannot protect you from everything – nor should it. Anyone who pays any attention to the news would know food contamination happens on a regular basis.

  • Marymary

    Several days ago, I made similar arguments as Mr. Marler and Mr. Munsell (including the possibility of cross contamination) in a longish post that was apparently not approved. I’ll add this, at the risk of being “not approved” again. :)
    To the person who said that people “assume the risk” when eating raw cookie dough, I must respectfully disagree. Until recently, almost no one, including Nestl√ɬ©, would have thought that E. coli O157:H7 would be present in raw cookie dough. Salmonella, sure. Bacillus Cereus, yeah. but E. Coli O157:H7? Not likely. Therefore, how can consumers, especially little kids who may sneak and eat raw dough when Moms and Dads aren’t looking, be expected to “assume the risk” that cookie dough is contaminated with E. coli? One thing that makes E coli O157:H7 so dangerous, is that it takes a small number of bacteria to cause illness in humans. With a lot of other foodborne illness bacteria, there needs to be an explosive growth of the bacteria on or within the food in order to make people sick.
    I would also disagree with the statement that food regulations are excessive. Both the number and severity of outbreaks in the last several years suggests otherwise.
    Do people need to be more knowledgeable of food safety? Absolutely. The title of a Michael Jackson song comes to mind, however. Human nature being what it is, we often have to see, smell, or taste that something is wrong with food before we believe that there may be something wrong with it. It is counterintuitive for us to think that food that looks, tastes, and smells fine could make us sick. The reality is, however, that most of the time, foodborne illness organisms (whether viruses or bacteria) do not make food look, taste, or smell bad. Cookie dough, even that contaminated with E.coli O157:H7, tastes and smells good. We really can’t expect consumers to put aside their atavistic tendencies to take a bite of something that is so tempting just because Nestl√ɬ© puts a wimpy warning on the package.

  • Fran B

    Excuse me???
    Assumption of risk is not valid in this case!
    No one can / should expect cow dung ( e coli 0157H7) in raw cookie dough! PERIOD. end of discussion

  • We can all become victims of E. coli 0157, a bacteria created in the early 1970s. When it is released to sewers, it mixes with other bacteria and viruses, and they are all delivered to agricultural land where food crops are grown, as well as to local garden supply outlets and then to parks, school grounds and your lawn in the form of sludge or biosolids. These are the perferred dumping grounds. Contaminted cookie dough can start in the field where the wheat is contaminated, then passes through the milling company to the processor. E. coli can also run off that same field into water and then is picked by drinking water plants and passed on to your kitchen tap. The standard test for E. coli (a coliform) does not recognize E.coli 0157. It is time to quit blaming the victims and focus on the guilty, the employees of government agencies who have known about this dangerous situation for the past 30 years.