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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Domino’s Employees Face Criminal Penalties, but Parnell and DeCoster?

We all remember this video:

Today I learned that the Domino employees, Kristy Hammonds and Michael Setzer, who made a video of Setzer, 32, putting cheese up his nose before putting it on a sandwich, passing gas on a piece of salami and sneezing on an order of cheese sticks, then hiding the mucus under the cheese before boxing the order. Hammonds, 31 at the time, narrates the videos, laughing and making encouraging comments. Hammonds and Setzer were charged with felony adulterating food. Last week Hammonds pleaded guilty to a lesser charge. She received a 45-day suspended sentence and 18 months probation. During her probation, Hammonds cannot work at any establishment that prepares or serves food or beverages. Hammonds also must complete 200 hours of community service and pay for her attorney fees, which amounted to $1,125. Setzer pleaded guilty in March, taking an Alford plea. This admits the evidence against him is strong enough to produce a guilty plea but admits no wrongdoing. Setzer was given a six-month suspended sentence, 24 months supervised probation and he was ordered to have no contact with Hammonds or Domino’s.

And, Peanut Corporation of America President Stewart Parnell (who sickened over 700 and killed 9 in a Salmonella Outbreak in 2009) and Wright County Eggman Jack DeCoster (who sickened over 1,600 in a Salmonella Outbreak in 2010) have been charged with no crimes at all. What the hell is with that?

  • L. E. Peterson

    It’s much harder to prove intentional adulteration and distribution of tainted products on the federal level unless you have a smoking gun like videotape, audiotape and emails. People like Parnell and DeCoster can plausibly deny that they knew about positive test results and insist that they were never informed of the problems by their employees. If there’s nothing on paper or in emails proving the results were passed to them and they gave the order to ship anyway, then it’s hearsay.
    Also, if they have documentation showing that they were actively working on the problem (even if the records are fake–hard to prove that also), then it makes it even harder to prove intent. Very frustrating for us inspector-types.

    After all this time, Parnell should be warming up the inside of a jail cell with DeCoster for company. Go figure.

  • Bill Anderson

    Bill Marler-
    A little off topic here, but continuing our discussion from the previous thread — Yes, Big Ag pulled their support for the bill because of the Tester amendment that would supposedly exempt small scale producers, even after considerable compromise on the contents of that amendment. I still don’t support giving FDA more power.
    Since I’m not a lawyer like you, I will cite Pete Kennedy’s assessment of the bill. Pete is an attorney and expert on food and dairy law:
    Also, did you bother to read the link I sent, about the Scottish blue cheese maker’s battle with the health authorities over a supposed finding of Listeria in his cheese?
    I’ll give you a spoiler here — He was exonerated by the courts.
    It is very reminiscent of Esterella and Morningland’s current struggle against FDA.
    Zero-tolerance for L. Monocytogenes in all RTE foods in unscientific and inconsistent with international food safety law. It takes MUCH more than one listeria cell to make a person sick, and there are many RTE foods which will not support the growth of listeria, such as aged raw milk cheeses like cheddar. Additionally, not all strains of L. Mono are pathogenic.
    Catherine Donnelly is a world renowned leading expert on Listeria Monocytogenes, and she is quoted in the NYTimes article about Estrella cheese’s battle with FDA:
    “If the F.D.A. wanted to shut down the U.S. artisan cheese industry, all they’d have to do is do this environmental surveillance and the odds of finding a pathogen would be pretty great,” said Catherine W. Donnelly, co-director of the Vermont Institute for Artisan Cheese of the University of Vermont, referring to the listeria testing at cheese plants. “Is our role to shut these places down or help them?”
    Clearly FDA can’t be trusted. I continue my opposition to SB510.
    If we want food safety, we have to start on the local level and we must think holistically. Your approach to food safety is reductionist (germ theory based) and one-size-fits-all (thus your support for SB510 and FDA). That is why I continue to argue with you. You are not promoting food safety at all. Your are promoting corporatization.
    Again, have you bothered to read any of my links? Have you bothered to look into other nations policies towards Listeria?

  • A “little” off topic?
    Pete Kennedy and the folks he represents I know are concerned about S. 510. I hope the addition of the Tester/Hagen Amendment will make you and he feel somewhat more at ease. On the Listeria from other countries, I do not know the answer, but on the prior post a fellow named L.E. Petersen seems to.

  • Bill Anderson

    L.E. Peterson was talking about U.S. policy towards Listeria Monocytogenes in the previous thread, not about the policy of other nations. The presence of any amount of listeria in any RTE food is considered an adulterant in the U.S., if I am not mistaken. This is just foolish.
    There are certainly categories of food which will support the growth of Listeria, and so there should be “zero-tolerance” in those types of foods, but there are also categories of relatively shelf-stable foods which will not support the growth of Listeria, and quite the opposite will (over time) support the death of listeria if it is present.
    Aged raw milk cheddar cheese is in the latter category, particularily cheddar aged under cool aerobic conditions (open-air cured in a cellar/cave enviroment), as opposed to aged under near-freezing anaerobic conditions (vaccuum sealed in a plastic bag, and stored in a walk-in cooler, the way most industrially produced pastuerized cheddar is aged)
    When culturing listeria in the lab, it is neccessary to culture it under conditions of reduced oxygen, because listeria is a poor competitor with aerobic organisms. Listeria growth is also favored at very cold (near freezing) temperatures as in a refrigerator enviroment, when compared to warmer temperatues such as a cheese cave which is around 55F.
    So yes, FDA is totally and completely wrong about Estrella and Morningland, Bill Marler. And you are wrong for trusting FDA. And for supporting SB510.
    Have you read my link about the UK cheese maker who ultimately won in his battle with the health authorities, Bill Marler? As far as I am concerned, there should be zero-tolerance for health authorities putting small food producers out of business for erroneous and/or political reasons.

  • Re: Listeria and zero tolerance – I am only really against having enough Listeria in a product that someone can get sick from it. If there is a standard that is greater than zero, I am all for it.
    I did read about the UK cheese maker – interesting case. And, I do agree with you that “there should be zero-tolerance for health authorities putting small food producers out of business for erroneous and/or political reasons.” The problem is that I think we have a difference of opinion of what constitutes “putting small food producers out of business for erroneous and/or political reasons.”
    I had read Kennedy’s thoughts on S 510 before the Tester/Hagen Amendment was added. Do you know his thinking on it now? Hopefully, it has changed.
    I think we just have to agree to disagree on whether the “FDA is totally and completely wrong about Estrella and Morningland,” and if I am “wrong for trusting FDA. And for supporting SB510.”
    So, I agree with you – you think I am wrong. Again, feel free to call. It is snowing hard here in Seattle and I let all the employees go home early. 1-206-346-1890

  • Doc Mudd

    Food consumers should be protected from sociopaths like those Domino’s employees, from uncaring louts like Parnell & DeCoster, from psychotic idiots who suggest Listeria is good food, from any dirty, nasty operator who argues to manufacture unclean, unsafe product for sale to my family and yours.

  • Dog Doctor

    I have been following the “comments: from Mr. Anderson, and I am amazed at Mr. Marler tolerance. The reference to being 25 got me to thinking. Let think about the world since 1985, the year that I graduate from Veterinary College. It had been 10 years since man last walk on the moon. In 1989 the Berlin wall came down. Therefore in the last 25 years, you missed the cold war, and concerns about being nuked out of existence with less than 30 minutes notice. You don’t have friends who carried their children over “the wall” to escape true fascism and oppression. So when you call some one a “fascist” you really don’t have a reference except ancient history for you. You probably don’t remember Tiananmen Square. “Fascist” has become a word that you hear people like Glenn Beck use and don’t have any concept of what it really means.
    You probably haven’t had time to visit other countries and realize that US is so unique and lucky with our constitution and bill of rights that you shout what ever you want and not be shoot or arrested. That you can’t be randomly stopped and arrested until you can prove yourself innocence that can even happen in European countries.
    I also find it strange that you talk about food safety standards countries in other counties. I have provided links to information about other countries food safety standard but be careful. You can’t cherry pick your standards, the Europeans also use the precautionary principle for many of their regulations and don’t have the generally regarded as safe list that we have in the US which many of the dietary supplement companies used to protect their potions
    So if you want to know about international standards this is a start
    There are several international sources of food safety information
    From CPSI
    WHO/ FAO
    And before you start your next diatribe, that s510 will turn our national sovereignty over to the WHO. It will not
    As to your use of language, may I suggest you read the diary of Anne frank, see “Jakob the Liar”, or visit the holocaust museum.
    As to life behind the iron curtain read “How We Survived Communism & Even Laughed”
    Than we can talk about Fascists, and fascism as opposed to people disagree with you.
    If Mr. Marler was a “fascist” as you labeled him, he simply would not print your comments like some of the pro raw milk blogger census the information submitted to them.
    So if you want to discuss real issues that people get sick from potentially any foods, we can agree that includes spinach, pate, cheeses, raw milk, pasteurized milk, eggs, etc. We can have agreement. It is clear we will never have agreement on how the public health should be protected

  • I am the nephew of someone who sat on one of the juries for the Jack in the Box E. coli outbreak, and I’ve been taking some advanced science classes from a local community college. I was referred to this site by a former professor. Mr. Marler, please do keep on keeping on because you’re absolutely right! I’d feel absolutely terrible if I, knowingly or unknowingly, contaminated food and then served it to others or to myself. I can remember at a cookout this past summer, a neighbor of mine noticed that my steak looked a bit pink inside. So what did he do? He took it back outside and cooked it some more before bringing it back to me.

  • Jeff Almer

    Never fear. According to the Senator with a heart; Dr. Tommy Coburn -(R OK) the U.S. has the “best legal system in the world”. He also stated the “peanut butter factory workers ARE going to jail”. It should be any day now for Stewie P inside of a jail cell then. Since the Parnell damaging emails were displayed no less than 21 months ago; that would put our lil buddy Decoster in jail sometime around Memorial Day 2012 at that rate.

  • Gabrielle Meunier

    My comment is to Bill Anderson. Bill, fact of the matter is, like the FDA or not, they are acting under severly antiquated law. HS 2749 and S. 510 are attempts to bring old law current. I have read your commentary and read your links. Have you spoken to women who have lost their pregnancies to Lysteria? Have you talked to young children maimed because they lost their kidney’s due to HUS? Have you talked to Mother’s witnessing their young child struggle for days and weeks with nothing but screaming pain and bleeding from their anus from being poisoned by unsafe food practioners? Well I have — and it is high time that our food producers had updated laws from which to produce food under. It is my understanding that the new law, when enacted, will take years to roll out and there will be lots of help and guidance. And, just like the new body scanners at the airports, there will be some mistakes and we will all learn. But if we do nothing, and let Fear be our guide, mediocracy or less will rule. Change is hard and people fear change. Please, for all of us Moms, let S. 510 have a chance or more children will die from unsafe food practices. Don’t let that be on your conscience. It could be your child. How would you feel? For more information on pain and suffering caused by unsafe food practices, please visit http://www.safetables.org.

  • L. E. Peterson

    Mr. Anderson,

    Where in my previous post did you get the impression that I said that the US has zero tolerance towards Listeria??? I said no such thing. In fact, I was asking for you to show me the regulations and/or written rules that state that there is a zero tolerance for Listeria because I can’t find them. You need to re-read that post, my friend.

    I am a FSIS inspector and know for a fact that it’s not an automatic seizure and destruction of product if Listeria is found in the environment or in the product . The 9 CFR 430.1 and numerous directives, etc. DO NOT say they must eliminate Listeria and I should know because I have to refer to them quite often. Listeria is only considered an adulterant if it is found in post-lethality exposed Ready To Eat products (RTE) and there are very specific rules for those products.

    The regulations lay out what is required of RTE plants to show that they are controlling, suppressing, and/or eliminating the Listeria pathogen on food contact surfaces if their product is exposed post-lethality and gives them several options for doing so. If a food contact surface is found to be contaminated with Lm or an indicator organism, the regulation tells them what steps to follow to ensure their corrective actions are sufficient. If they test positive a second time on a food contact surface, they must hold product and they cannot release potentially contaminated product unless it is tested using an approved method and found to be negative. They also have the option of reworking the product using a method that will destroy the listeria organisms (think irradiation as one possible method). Same goes for E. coli–the ground beef can be sent to facility where it is cooked to a temperature sufficient to kill the E. coli pathogens. The words “zero tolerance” never enter into it. They are required to bring the product back into compliance before shipping it but that is hardly zero tolerance. The establishment chooses what they will do with it, whether it be reworking or destruction. USDA doesn’t tell them that they have to destroy the product unless there’s good evidence that the meat was adulterated with a harmful chemical substance that cannot be eliminated any other way. All destruction, re-cooking and reworking of USDA product is voluntary and done under an inspector’s supervision so we can verify that the corrective action was taken and was sufficient. More often than not, the product is destroyed, especially if an outbreak is linked to the product. The short shelf life of meat products also factors into the decision to destroy products because no one wants to buy spoiled meat even if it is free of pathogens.

    Do the meat companies recall the product if it tests positive for Listeria, E. coli etc? Yes, they do and they do it voluntarily to protect the consumer and their company reputation. Very seldom does the USDA encounter a plant that refuses to voluntarily recall product and when it does happen, there’s usually a multitude of other valid reasons to shut the plant down that have nothing to do with Listeria or E. coli and everything to do with HACCP critical limit failures and sanitation non-compliances.

    You insist that the FDA has a zero tolerance policy towards Listeria–show me the proof. When I google ” Listeria and FDA” all I get is a bunch of articles talking about how they’re going to crack down and nothing stating their official policy on it as an adulterant in food.

    Do I have issues with the way my counterparts in FDA do their business. You betcha! They give everyone in the food safety business a bad name. The celery recall including product clear back to January 2010 defies common sense. It’s highly unlikely that any celery from the far back remains in commerce unless it is in a frozen vegetable package of some sort. Sheesh!

  • L.E. Peterson

    FYI–Mr. Marler

    This “fellow” is actually a “lady” (somewhat of a tomboy, however) but it’s ok. The initials throw most folks off.

    The confusion is understandable as some in the meat industry have told I must have a pair of *ahem* brass ones to have survived the old boy’s network. ( if you know what I mean) ;-)

  • L.E Peterson

    I’d like to reiterate that the USDA regs deal with POST LETHALITY EXPOSED RTE meat products because they are more likely contaminated post-cooking/lethality treatment. That’s why food contact surfaces are tested in the post-lethality environment. These regs don’t apply if the product is cooked/treated to lethality “in-bag” where it will never be exposed to the air or food contact surfaces after the lethality steps are completed.

  • Forgive me.

  • L. E. Peterson

    Mr. Marler: You’re forgiven :-) I’ve been told I don’t act very ladylike at times. Maybe its the cussing like a sailor behind closed doors. ;-)

    Mr. Anderson: Pretend I’m from Missouri and show me the Lm strains that are not harmful. To my knowledge, all strains of Listeria (genus) monocytogenes (species) are pathogenic. I’ve taken several microbiology courses and not once have I ever seen any indication that there are harmless strains of Listeria monocytogenes.

    However, other species in the Listeria genus are harmless and are used as indicator organisms during food contact surface and environmental testing. If generic Listeria spp. are present, then the likelihood that Lm is also present is very high.

    I think you are confusing species with strains. Strains are variations within the species but my understanding is that strains are rarely harmless if the parent species causes disease, For example, a rare strain of E. coli O157:H7 was implicated in the Costco/Bravo outbreak. E. coli o157:H7 is a known STEC regardless of the strain.

    And once again, if you are young, old or immunocompromised, there doesn’t have to be very much Lm present at all to make you sick or kill you. Apparently, you missed that part of your microbiology class.

    I’m all for keeping the levels of Lm down to an undetectable levels with high statistical probability that the organism is not present in the lot tested. It’s the best we can hope for until the technology improves and it will improve eventually.

  • Michael

    Salmonella-hit egg company gets FDA OK for sales
    USA Today
    November 30th
    Why is Wright County Egg permitted to resume operations when the FDA appears to have not prosecuted the owners and management?