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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Does this recent Sprout Salmonella Outbreak show a hole in the new Food Safety Law called the Tester Amendment, and why are Sprouts and Raw Milk not treated equally?

Screen shot 2010-12-30 at 11.44.44 AM.pngThe CDC has confirmed that there are presently 94 individuals infected with the outbreak strain of Salmonella serotype I 4,[5],12:i:- from 16 states and the District of Columbia. The number of ill people identified in each state with the outbreak strain is as follows: California (1), Connecticut (1), District of Columbia (1), Georgia (1), Hawaii (1), Iowa (1), Illinois (51), Indiana (9), Massachusetts (1), Missouri (17), New York (1), Pennsylvania (2), South Dakota (1), Tennessee (1), Texas (1), Virginia (1), and Wisconsin (3). It appears that the CDC has also implicated Tiny Greens Organic Farms, that according to the firm’s website, “is a unique organic farm located in the flatlands of central Illinois” in most, if not all, of the illnesses.

So, would a company like Tiny Greens be exempt from the requirements of the Food Safety Act?

Food facilities would qualify for an exemption from the preventive control/HACCP provisions under certain conditions. If they are either a “very small business” as defined by FDA in rulemaking; or (2) the average annual monetary value of all food sold by the facility during the previous 3 year period was less than $500,000, but only so long as the majority of the food sold by that facility was sold directly to consumers, restaurants, or grocery stores (as opposed to 3rd party food brokers) and were in the same state where the facility sold the food or within 275 miles of the facility. Facilities that qualify would be exempt from the preventive control/HACCP provisions, but would still have to comply with one of the following: (1) They would have to demonstrate that they have identified potential hazards and are implementing preventive controls to address the hazards, or (2) they would have to demonstrate to FDA that they are in compliance with state or local food safety laws.

Farms would qualify for an exemption from the produce safety standards if, during the previous 3 year period, the average monetary value of the food they sold was less than $500,000, but only so long as the majority of sales were to consumers, restaurants, or grocery stores (as opposed to 3rd party food brokers) and were in the same state where the farm harvested or produced the food or within 275 miles of the farm.

alfalfa-sprouts(1).jpgHowever, in the event of an active investigation of a foodborne illness outbreak that is directly linked to a facility or farm exempted under this section, or if the Secretary determines that it is necessary to protect the public health and prevent or mitigate a foodborne illness outbreak based on conduct or conditions associated with a facility or farm that are material to the safety of food, the Secretary may withdraw the exemption provided to such facility under this section.

So, my sitting on the beach in Hawaii answer – I think Tiny Greens is not tiny enough to be exempted, and after this outbreak, would not longer qualify anyway.

Raw Milk.jpgWhile we are on sprouts, it got me thinking again about raw milk and the similarity to raw milk – at least as it relates to bacterial infections. Sprouts have been implicated in some 40 outbreaks, sickening thousands in the last 20 years (See, Sprouts, please hold the E. coli and Salmonella). As for Raw Milk, according to CDC, between 1998 and 2008, there were 85 outbreaks of human infections resulting from consumption of raw milk reported to CDC, including a total of 1,614 reported illnesses, 187 hospitalizations and two deaths. I have tracked similar, but not exact numbers during that same time frame (See, Examples of bacterial foodborne disease outbreaks linked to contaminated raw (unpasteurized) dairy products in the United States, 2000-2007). In 2008 and 2009, I tracked even more (See, Raw Milk Outbreaks – 2009 Update). And, in 2010, there were so many outbreaks and recalls, it was hard to keep track (See, The Raw Truth about Milk and Cheese in 2010).

So, both sprouts and raw milk have been implicated in outbreaks, and both have kept me busy representing sickened people.  Both are intended to be served raw without a “kill step.”  Both have suffered FDA scrutiny in one form or another.  However, like in the Tiny Green’s case, sprouts can be shipped across state lines when raw milk can not.  Also, some dozen states ban the sale of raw milk and many severely restrict it.  I am not aware of any states that treat sprouts that way.

So, why are sprouts and raw milk not treated equally?  I’m headed back to the beach.

 

  • Doc Mudd

    Hmmm….interesting point. Looks like banning sales across state lines would all but assure resulting producers would exempt out under Tester. Maybe there are some commodities that would still top the $500,000 gross per annum test, but I can’t think of any offhand (oh man, if anyone thinks of one, let me know – that’s what I’m gonna be producin’! Kona coffee in Hawaii, maybe?). Anyway, a gaping loophole undermining the safe operation of our food producers – caveat emptor!
    Enjoy the surf. You’ve earned it after your S.510 effort…and all of your support for safer food.

  • Marymary

    My guess is that sprouts are treated differently from raw milk because milk is a staple food. Sprouts are not. Also, pasteurization has become the norm in the dairy industry. As far as I know, sprouts are considered produce, thus any bacteria-killing or reducing step is not used in their production. I gather that the history of illnesses related directly to the consumption of raw milk began long before law suits, the CDC, USDA, FDA, etc. Sprouts’ known history of being directly related to foodborne illness is relatively new by comparison. I believe that it is only recently, say the last 10 -15 years or so, that sprouts have been considered a potentially hazardous food, along with cut melons and cut tomatoes. Please correct me if I’m wrong about that.