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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

A food fix for sick produce industry

Nancy Luna of The Orange County Register wrote a detailed and comprehensive report on last years multiple E. coli outbreaks stemming from Lettuce and Spinach.  We were happy to provide Marler Clark clients for her to talk to.  I think it helps put a human face on the outbreaks.  We also had a long discussion about out involvement in the various outbreaks, specifically the Dole Spinach Outbreak.  The full article can be found on the link – FDA, produce industry see need for new procedures to stem bacterial outbreaks.

No one knows shortcomings of food safety more than Bill Marler, a Seattle attorney involved in some of the food industry’s most high profile food-poisoning cases, including suits against San Diego-based Jack in the Box in the 1990s.

Every week, Marler’s firm logs dozens of calls from individuals who claim to be food-poisoning victims. But, in late August 2006, the nature of the complaints took on an eerie, similar pattern. Each caller described sickness that came after eating bagged spinach from the same brand. Marler said he called state and federal health authorities, but no one could confirm any illnesses tied to one specific source.

Yet Marler said he knew a major spinach outbreak was under way. He filed a lawsuit against Dole Food Co. on the afternoon of Sept. 14 on behalf of Oregon spinach eater Wellborn, who was hospitalized for six days.

Later that same night – more than four hours after Marler fingered Dole in his lawsuit – the CDC declared a multi-state outbreak tied to pre-packaged spinach, but did not name any brands. The next day, San Juan Bautista-based Natural Selection Foods told consumers to toss its spinach products, including Dole.

"Do you really want a lawyer from Seattle to be the bellwether for an E. coli outbreak?" Marler said.


Food allergies and asthma have made Suganthan Sundaralingam a sickly kid. But the New Jersey boy, 13, says he’s never suffered more than after eating his favorite Taco Bell meal: two chicken tacos.

For three sleepless nights in November he was stuck in bed, his intestinal woes causing him to moan, "When is this going to stop?" He has yet to fully recover.

Three months earlier, Gwyn Wellborn, 27, of Oregon ate a few spinach salads in the course of a week. She thought she was doing something good for her body. Instead, the meals sent her kidneys into failure.

Those consumers – different ages, genders and time zones – were just two of the more than 300 who were sickened late last year by green leafy vegetables grown in California. The well-publicized E. coli outbreaks also rocked local companies including Irvine-based Taco Bell, as well as the state’s large produce industry.

The annual number of produce-related outbreaks doubled in the U.S. from 1998 to 2004. That combined with last year’s E. coli scares has put pressure on the Food and Drug Administration, which oversees the produce industry, to step up standards to keep consumers safe.

This week, the FDA advised the nation’s 250 fruit and vegetable packers to establish better procedures to reduce pathogen outbreaks in the $12 billon fresh-cut produce industry. Suggestions range from frequent lab testing to workers’ washing their hands more often.

"Believe me, there’s a clear sense of urgency," said Dr. David Acheson, the FDA’s chief medical officer. "I don’t want people to get sick from fresh produce."

The FDA’s recommendations come as the agency is preparing to discuss long-term solutions to the nation’s produce problems. On Tuesday in Oakland, the FDA will host the first of two hearings for growers, consumer groups and the public at large. Growers are expected to endorse self-regulation. Consumer groups and some lawmakers want increased federal oversight.

For now, everything, including possible penalties to farmers, is on the table.

"Right now that’s not where we’re headed, but it is certainly a possibility," Acheson said.

Oversight confusion

Though it might be hard to believe, based on news reports of the past few months, E. coli-related illnesses are trending down. Such cases have dropped 29 percent over the past decade – a decline that coincides with tighter regulation of the meat industry, according to the Centers for Disease Control and Prevention.

But when it comes to the safety of fruits and vegetables, the story changes.

In 2004, there were 85 produce-related pathogen outbreaks, nearly double the number of six years earlier, according to the Center for Science and Public Interest. The consumer group has criticized federal health officials and the California farming industry for not establishing mandatory food-safety regulations at the farm level.

In January, the U.S. Government Accountability Office issued a report saying the nation’s current food-safety system puts the health and safety of consumers, as well as the country’s $1 trillion agricultural economy, at risk.

Chief among the problems – chaos.

No fewer than 15 government agencies, including the Department of Agriculture and the FDA, administer and enforce 30 laws related to food safety. The FDA is responsible for regulating 80 percent of the nation’s food supply, including produce – yet it spends less money on food safety than the USDA, which regulates beef and poultry.

The GAO illustrated the potential for confusion by describing the potential regulations applicable to a packaged ham and cheese sandwich. If the sandwich was open-face, with one slice of bread, the manufacturer who made it would have daily USDA inspections. However, closed-face meat or poultry sandwiches fall under the jurisdiction of the FDA, which, on average, inspects makers of those sandwiches "once every five years," the report stated.

Critics say such a process won’t keep bad food from our dinner table.

"We need to change the system. It’s a mess," said Michael Doyle, director of the Center for Food Safety at the University of Georgia.

Sen. Dick Durbin, D-Ill., who sits on the Congressional subcommittee on Agriculture, agrees: "Our current food-safety system has turned into a food fight among dozens of federal agencies."

From reactive to proactive

Last month, in response to recent produce outbreaks, Durbin and Rep. Rosa DeLauro, D-Conn., introduced legislation calling for one super agency to oversee food safety.

Dubbed the Food Safety Administration, it would standardize inspections of food-processing plants and the monitoring of food imports. It also would establish a better system for tracing produce back to fields where it is grown – a process the FDA currently describes as "problematic."

No one knows shortcomings of food safety more than Bill Marler, a Seattle attorney involved in some of the food industry’s most high profile food-poisoning cases, including suits against San Diego-based Jack in the Box in the 1990s.

Every week, Marler’s firm logs dozens of calls from individuals who claim to be food-poisoning victims. But, in late August 2006, the nature of the complaints took on an eerie, similar pattern. Each caller described sickness that came after eating bagged spinach from the same brand. Marler said he called state and federal health authorities, but no one could confirm any illnesses tied to one specific source.

Yet Marler said he knew a major spinach outbreak was under way. He filed a lawsuit against Dole Food Co. on the afternoon of Sept. 14 on behalf of Oregon spinach eater Wellborn, who was hospitalized for six days.

Later that same night – more than four hours after Marler fingered Dole in his lawsuit – the CDC declared a multi-state outbreak tied to pre-packaged spinach, but did not name any brands. The next day, San Juan Bautista-based Natural Selection Foods told consumers to toss its spinach products, including Dole.

"Do you really want a lawyer from Seattle to be the bellwether for an E. coli outbreak?" Marler said.

The FDA’s Acheson acknowledged that his agency acts when "we hear about a problem."

Further, the FDA does not enforce Good Agricultural Practices, a set of food-safety procedures that the agency urges – but does not compel – growers and produce packers to follow.

Still, Acheson said that doesn’t mean the FDA sits on its hands. Since 1998, the agency has updated the best practices document a handful of times – including this week – to recommend measures that can reduce produce outbreaks, including third-party auditing of fields and packing plants.

The FDA also has asked for a $10.8 million increase in its food-safety budget for 2008, in part, to boost its 2,000 inspector ranks, whose numbers are four times less than those under the USDA.

"Prevention is certainly better than a cure," Acheson said.

California acts quickly

While the FDA and Congressional leaders search for long-term solutions, an agriculture trade group, based in Irvine, has already responded.

On April 1, Western Growers Association will launch a self-regulation program, calling for handlers of leafy, green produce to certify that farmers are following a uniform set of best agricultural practices. Rules of the self-policing pact include frequent monitoring of soil and irrigation water.

Growers would be charged assessment fees to pay for state inspections – a tab that could run some large farms up to $1 million a year, said Tim Chelling, a spokesman for Western Growers.

Critics question if the produce industry can police itself. Food-safety expert Doyle, currently working as an adviser to Taco Bell, describes Western Grower’s pact as "not strong enough" to prevent another outbreak.

State Sen. Dean Florez, D-Shafter, also opposes Western’s self-policing, referring to the strategy as "the fox watching the hen house." Last month, he introduced legislation calling for California inspectors to regulate growers and packers of leafy green produce, with penalties levied at those violating safety standards.

But Chelling said his industry’s response is more effective than waiting around for regulation that may never happen.

"Whatever the weaknesses are, you’ve got something out there in April," he said.

Regardless of the solutions, consumers, lawmakers and produce leaders agree that the stakes are high.

Some 7,000 farms in California grow leafy green vegetables, accounting for about 74 percent of the lettuce and 69 percent of the spinach sold in the United States. The fallout from the spinach crisis, alone, cost the industry an estimated $74 million.

For Taco Bell, the food scare took a $20 million bite from its bottom line. Last month, chain leaders said East Coast restaurants are recovering better than expected from the bad publicity of 71 customers falling ill from food served at its restaurants.

Such a comeback hasn’t happened yet for New Jersey teen Sundaralingam, who is represented by Marler but has not filed a lawsuit against Taco Bell. In February, three months after getting sick, he tried to return to school. He lasted three days before returning home.

"I like Taco Bell, but sometimes I think, ‘I should have never ate that taco.’ It’s changed my life."

Tomorrow: From field to fork – how produce can be kept clean.