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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

When Jane Zhang of the Wall Street Journal Weighs into Nestlé E. coli Cookie Dough Case Businesses and Government Need to Pay Attention

I spent time yesterday visiting with a feisty “50 something” woman and her adoring husband (they have six kids) in a Nevada hospital as she spent her 50th day hospitalized with severe complication of Hemolytic Uremic Syndrome from an E. coli O157:H7 infection linked directly to Nestlé Cookie Dough. For a woman who has lost part of her large intestine, is still on dialysis, and is learning to walk again, her spirit was amazing. Still on a feeding tube and between retching because of ongoing gastroenterological problems, she still was able to lovingly tease her husband and make a lawyer feel welcome.  The husband kept saying, "I would not wish this on my worst enemy."

I was stuck at their lack of anger towards Nestlé whose product contained a bacteria that has nearly taken her life and for a government that over the years failed to protect the public.  I am not sure they will feel the same after they read Jane Zhang’s article in this mornings Wall Street Journal – “Nestlé Unit Denied FDA Requests.” Here are excerpts:

The Nestlé USA plant at the center of a federal probe into an E. coli outbreak involving cookie dough refused to give inspectors access to pest-control records, environmental-testing programs and other information, according to newly released inspection reports covering the past five years.

In a September 2006 visit, for example, managers at the Danville, Va., plant refused to allow a Food and Drug Administration inspector to review consumer complaints or inspect its program designed to prevent food contamination. The inspector found dirty equipment and "three live ant-like insects" on a ledge but nothing severe enough to give the plant a failing grade.

A year earlier, officials at the Nestlé plant presented another FDA inspector with a list of things it wouldn’t do. "Among these are the refusal to review the firm’s consumer complaint file, refusal to permit photography, refusal to sign affidavits or receipts and refusal to provide specific information on interstate commerce," the inspector wrote.

Companies aren’t required to show those records to FDA inspectors and Nestlé’s practice isn’t out of line with the rest of the food industry, FDA and industry officials said.

When will companies realize that it really is a bad idea to poison customers? When will government realize that standing up for consumers is the right thing to do? And, when will us taxpayers realize that we need to compel our lawmakers to pass laws and regulations, and then to spend the money necessary to protect the public?

  • dOt

    SHAME on Nestle. SHAME them. This is incorrigible! I’ll bet Nestle comes back and says they never encouraged the practice of eating raw cookie dough. But even if it is cooked, it is still contaminated with who knows what! Sorry, Nestle, my family won’t be purchasing your products any longer. I mean that, too.

  • John Munsell

    The revelations of Nestle’s unwillingness to share data with FDA inspectors, and to refuse the inspectors access to documents should be no surprise to us. To a degree, the same protocol is allowed by USDA/FSIS at meat plants. When USDA required that all meat plants implement HACCP Plans which were phased in during the 1998 – 2000 time frame, USDA publicly made several promises. The agency stated that under the HACCP ideal, (1) USDA would no longer police the industry, (2) the industry would have to police itself, and (3) USDA would disband its previous command and control authority. Those 3 promises are at the very heart of why Nestle and other entities are fully justified in refusing to cooperate with regulatory authorities. Since the food industry has been authorized to police itself, and our government has promised it would no longer police food plants, inspectors have no right to demand access to records which companies now claim to be proprietary. And, since the agency promised to disband its previous command and control authority, it now has sforced itself into the subjugated role of a feedble bystander. The problem is NOT Nestle, salmonella or e.coli. The underlying problem here is our government’s pell mell dash to a deregulated food non-inspection system which has enabled our government to adopt a semi-retirement role as oversight auditors with greatly reduced enforcement authority. Subsequent to the publishing of Upton Sinclair’s book, the Federal Meat Inspection Act was passed which granted authority to USDA. In less than 100 years, our government has come full circle, and they’ve unilaterally acquiesced their previous enforcement authority over to the food industry which now “polices itself”. We should not be the least surprised when we read revelations such as printed above from the Wall Street Journal. Frankly, this is part and parcel of deregulated HACCP, which has morphed into the ubiquitous protocol now required for international trade. The comments in the blog above are right on the money when it suggests that our lawmakers need to pass laws and regulations, then spend the money to implement these laws. Their first act must be to expose and outlaw HACCP. John Munsell

  • cheryl berenson RN, MS-MPH student OHSU

    This is just another sign of how American industry and its huge profit motive is king and the citizens of this great country are the victims– from Nestle to WR Grace and Co. we keep “getting the shaft”–
    We are seeing this in the fight for health care coverage for all Americans in the wild statements about the government taking away our ability to choose our own doctors and the fear-mongering on rationing– we are the government– let’s take back our right to health and safety!!

  • DJ

    Jane Zhang’s article is misleading to this recall case. Within 24 hours of being notified by FDA and CDC of a possible link of illnesses caused by E.Coli. Nestle immediately did a voluntary recall of all refrigerated cookie dough as a precautionary measure in the interest of consumers. Nestle has FULLY cooperated with FDA and CDC to resolve the issue. In the investigation, E Coli, has NOT been detected in any of Nestle’s products.

  • Ashley Doman

    This is such poor reporting. Nestle VOLUNTARILY recalled 30,000 cases of all their Cookie Dough product after it learned of these unfortunate cases even though the FDA had not completed its investigation or required them to so.
    Here are the facts.
    1. The FDA has found that out of 80 people who have this strain about half of them consumed raw Nestle Tollhouse cookie dough as well as other products.
    2. The FDA has literally been given FREE reign to inspect and take apart the factory in question. They have NOT yet found any evidence of this e. Coli strain in the factory or any of Neslte’s products.
    3. The product is PERFECTLY safe when consumed as directed on the packaging. The company HAS NOT been so crude as to say ‘well you shouldn’t have eaten it raw’ although they have every legal right to do so. No one from Nestle has pointed this out as a sole defense because they understand that people do it anyways, and don’t want take a harsh stance on the matter.
    I’ve always liked Nestle products and was concerned because I myself eat the Chocolate Chip Cookie Dough raw and wanted to make sure I was ok…
    I found much of this info by just browsing news sites and paying attention to the story when it first broke on CNN, MSNBC and Fox.
    Jane Zhang should have perhaps done the same so she could have told the entire story.