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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

2011 Listeria Cantaloupe Outbreak – blame enough for all, 146 sickened and leaving 32 dead so far

Screen Shot 2012-01-11 at 5.16.29 AM.pngI was reading the “Staff Report on the Investigation of the Outbreak of Listeria monocytogenes in Cantaloupe at Jensen Farms” as it was released today. Frankly, it did not break any new ground on the cause of this devastating outbreak. The staff restated that FDA officials cited several deficiencies in Jensen Farms’ facility, which reflected a general lack of awareness of food safety principles and may have contributed to the outbreak, including:

• Condensation from cooling systems draining directly onto the floor,

• Poor drainage resulting in water pooling around the food processing equipment,

• Inappropriate food processing equipment which was difficult to clean (i.e., Listeria found on the felt roller brushes),

• No antimicrobial solution, such as chlorine, in the water used to wash the cantaloupes, 
and

• No equipment to remove field heat from the cantaloupes before they were placed into 
cold storage.

• FDA officials were highly critical of the processing methods used at Jensen Farms. According to these FDA officials, the probable causes of the melon contamination at Jensen Farms included “serious design flaws” in the processing technique used at Jensen Farms, “poor sanitary design of the facility itself,” and “lack of awareness of food safety standards by Jensen Farms.” In particular, FDA emphasized to Committee staff that the processing equipment and the decision not to chlorinate the water used to wash the cantaloupes were two probable causes of the contamination.

Of more than passing interest is the discussion surrounding the “new equipment” that was placed in the Jensen Farm facility and the lack of chlorine rinse. Also, the report mentioned that retailers (unnamed) visited the Jensen Farms facility, as did broker/shipper Fronterra.

Screen Shot 2012-01-11 at 5.17.05 AM.pngIn addition a letter to the “FDA from Democratic members of the House Committee on Energy and Commerce” was also released. It focused a great deal on the usefulness of audits. The Committee members noted:

We urge you to review closely the information uncovered during our investigation. In particular, the investigation identified significant problems with the third-party inspection system used by growers and distributors to ensure the safety of fresh produce. This auditing system is often the first and only line of defense against a deadly foodborne disease outbreak.

This auditing system failed in the case of the recent Listeria outbreak. Our investigation reveals some of the reasons why: the auditors’ findings were not based on the practices of the best farms and failed to ensure that the producer met FDA guidance; the auditors missed or failed to prioritize important food safety deficiencies; the auditors lacked any regulatory authority and did not report identified problems to the FDA or other state or federal authorities; the auditors did not ensure that identified problems were resolved; and the auditors provided advance notice of site visits and spent only a short period of time on-site. It also became apparent in the investigation that the auditors had multiple conflicts of interest.

And, despite having nearly two-dozen victims contact the Committee, none were interviewed or allowed to give testimony.

As I said to Bloomberg:

“It’s unfortunate that victims and their families weren’t involved in the congressional committee’s investigation,” said Bill Marler, a Seattle-based food safety lawyer who represents clients in the Jensen Farms case, in an interview.

“There’s really nothing new that’s added,” said Marler, referring to the report. “It’s basically what the FDA already found.”

And to the AP:

Bill Marler, a food safety lawyer who is suing Jensen Farms on behalf of several of the victims, said government inspectors should be present at food facilities more often.

“The present audit system is fraught with conflicts and is designed not to find safety problems, but to keep food – regardless of quality – flowing from farm to fork,” he said.

  • Paul F Schwarz

    What will congress do? That is the question my family is asking! My feeling is probably nothing. Our father is no longer with us because of a piece of cantaloupe. Other families lost loved ones or are watching loved ones suffer from listeria. Food safety should be a national security issue!

  • Gabrielle Meunier

    The FSMA requirements must be enforced and followed up with objective 3rd party audits to ensure compliance or peer to peer review for smaller establishments might be an idea to keep costs down . . .

  • Steve

    Nice of the FDA report to mention that a key sector of the industrialized food system — the “unnamed retailers” — visited (inspected) the farm before the outbreak…
    It’s been reported earlier, however, that WalMart, our nation’s largest grocer, played a key role in this — although they haven’t taken any responsibility. But they certainly are culpable for elevating a localized farming organization not ready for Prime Time into the Big Time — sourcing the cheapest melons they could find (cheaper than China, even) and distributing them widely over a multi-state area — and thereby affecting/infecting many hundreds of WalMart customers.
    Yup –Always Low Prices… Always.

  • T. Willis

    So that’s what happens when there is lax oversight (as with large producers) or no oversight (as with exempt small producers).
    FDA comes too late to the party with their scathing audit, when they come at all.
    As commenter Steve points out, we have more of this to look forward to as FSMA-exempt producers come flooding into local markets. No oversight, no understanding of food safety, no effective precautions, no concern for customers. Not ready for “prime time” and placing local families at risk in the meantime. This prime time catastrophe is a rare look into the dangerous small time mindset.

  • Kathleen Buchanan

    Okay, after reading the entire report, let me see if I have this straight…
    while my mother spent all spring undergoing difficult chemotherapy and ultimately achieving remission from her leukemia, the good ol’ boy system of third party auditing put their stamp of approval on Jensen Farms whom the FDA describes as having “serious design flaws”, “poor sanitary design of the facility itself,” and “lack of awareness of food safety standards”. Besides the glaringly obvious oversight of the auditor in reference to ordinary FDA guidelines, to make matters worse, we know that in the previous year, the auditor actually recommended a change in equipment and processing procedures that, of course, he gave a glowing inspection in July 2011 BECAUSE THEY WERE HIS IDEA. That’s the textbook definition of conflict of interest.
    So, immune compromised from leukemia and chemotherapy, while my mother innocently enjoyed a late summer cantaloupe, she had no idea that it had been sent to her via ignorance, apathy, and an auditing system not worth the paper it was printed on and that all of those deficits along with Jensen Farms, like dominos falling against one another, would cause her horrible, excruciating death less than two weeks later.
    Yes, House Committee on Energy and Commerce, I believe that about sums it up… for you. I still have anger and frustration and grief to deal with until this is resolved.

  • Steve

    Hmmm, here’s a twist… seems like T.Willis only has it half right — there’s lax oversight of the big producers, alright — bought and paid for by corporate lobbyists and revolving door agency lap dogs…
    But “no oversight” for “exempt” small producers in FSMA?? Even a cursory reading of the legislation would demonstrate that there’s meaningful alternative oversight that eschews one-size-fits-all remedies and reflects the scale and relative riskiness of small scale production. Of course we’ll have to see how FDA has actually fashioned the law into rules and regs when they’re released for comment later in the year…

  • Alexander

    Why would they not chlorinate the rinse water? Were they some sort of whacky food religion like organic or something? Were they just cutting corners to save money? What they hell were they thinking?

  • Theresa Kentner

    People need to put pressure on their representatives to hold hearings, investigate, and make the needed changes. Otherwise, Congress will be distracted by some minutia about swearing on TV or something.