I dropped an Op-ed on the Hill this morning.  Here is an excerpt:

This week the CDC reported that at least 47 people were stricken with Salmonella, with one death, likely linked to papayas imported from Mexico. In the summer of 2016 came reports of hepatitis A tainted scallops sickening 292 in Hawaii. In that outbreak two died of liver failure complications. And, also in 2016, 143 people, mostly in Virginia, were also stricken with hepatitis A. This time the culprit was hepatitis A-tainted strawberries imported from Egypt.

While most food we consume is still produced in the United States, we rely on imports for some of our most nutritionally important but more risky commodities. And, imported food is increasingly taking a larger “bite” out of our food consumption. We now import over 90 percent of our seafood, 50 percent of our fresh fruit and 20 percent of our vegetables. Canada, Mexico, China and India are our top food trading partners. In 2014, we imported nearly $50 billion of food from just those four countries. Imports from all countries have increased, and that is especially true for China and India.

Lawyers Who Are Changing the World

By Jeff Tolman

I have great respect for people who take control of their lives and create a successful life and practice in the changing and evolving legal universe. That would be Bill Marler, Senior Partner at Marler Clark, The Food Safety Law Firm, in Seattle. Bill is considered the most prominent foodborne illness lawyer in America and a major force in food policy in the U.S. and around the world. Wondering if as a youngster he was innately interested in food and food poisoning – and, if not, how in the world he got into this niche practice – I gave Bill a call.

Bill grew up in Silverdale, WA, less than 10 miles from my office, the son of a Navy nurse and Marine Sergeant, both later teachers. After graduating from Olympic College in Bremerton, WA, Bill attended Washington State University. He graduated with three majors due to the fact he was elected to the Pullman City Council as a 19-year-old student and he was determined to fill out his term. After working as a paralegal in a Seattle law firm (Bog;e and Gates) for a year, Bill went to law school and received his J.D. from Seattle University School of Law in 1987. From 1987 to 1998 Bill worked in a variety of firms including Dick Krutch; McKay and Gaitan, Keller Rohrback; Perey Law Group; and Kargianis, Osborne, Watkins & Marler.

His first big civil case related to two children killed by Westley Allan Dodd. Bill decided to go right to the horse’s mouth and met with Dodd in the Washington State Penitentiary in Walla Walla, and for five hours heard about Dodd’s various contacts with the legal system. Determining the state of Washington had failed in its duty to monitor Dodd, resulting in the murders, a settlement was reached for the family of the victims.

Then came the 1993 E. coli outbreak at Jack-in-the-Box restaurants. Within a day Bill’s investigation led him to file a lawsuit and he became the face of that litigation. Sometime later, in two days of mediation, the plaintiffs received $23 million in settlements. Bill’s reputation as a foodborne illness go-to lawyer was cemented. Now, he said, there is not a significant outbreak of foodborne illness that isn’t touched by his firm.

In 1998 Marler Clark was formed, initially with four lawyers and four staff, now with six lawyers.

Bill is an enthusiastic, charming, ebullient, charismatic speaker. I wish we could have spoken for another hour or two. He was in Houston, speaking to a conference of food safety agencies. His schedule a week before and after our conversation took him all over America as a lawyer, speaker and advocate for food safety.  His next stop was Utah where he is representing a group of victims of food poisoning from a store’s chicken salad, including a 20-year-old woman who became brain injured, unable to work and unable to bear children as the result of the poisoning.

Bill indicated that the foodborne illness litigation is a small community of plaintiff and defense specialists where collegiality and professionalism still reign. He would recommend becoming a lawyer (he has a daughter who plans to take the LSAT) if you go in with your eyes open. Ask yourself: What do you want to do in your career? Can you afford to get a law degree?

Describing his life, he says, “I travel all over the world trying to convince companies that it’s a really bad idea to poison people.”

Not a bad goal to have. Not a bad way to spend a professional life.

Trump-McDonalds-in-Plane-Instagram-1Since taking office, President Trump has instituted a freeze on federal employees and the same on new or pending regulations.  He signed an Executive Order setting up a task force within agencies to repeal old rules.  The President has also asked for a $54B increase in military spending that will likely be offset by across-the-board cuts in agencies like the FDA and FSIS that focus on maintaining a safe food supply and inspecting food being imported.

Some would say that President Trump is not interested in food safety, or he is simply not focused on it.  I think it is the latter.  The President has described himself as a germaphobe who enjoys eating McDonald’s hamburgers and chicken from KFC.  As he told CNN: “The one thing about the big franchises; one bad hamburger, you can destroy McDonald’s.”  The President orders his hamburgers and steaks well-done even from his favorite restaurants.  He was recently recorded discussing food safety regulations as a method of reigning in trade with Japan.  The President clearly understands the economics of foodborne illness and customers, as well as food safety and trade.

According to the CDC, foodborne illnesses in the U.S. sicken 48M, put 128,000 in the hospital and kill 3,000 people yearly.  The USDA estimates the yearly loss in medical expenses, lost wages, and death at nearly $16B.  The losses to industry are staggering.  The Pew Charitable Trusts has estimated the “economic losses to industry, including farmers, are enormous, estimated at over $75B per year.”  Industry notices; the GMA reported “in 2007, the estimated cost of the peanut butter recall to one company due to Salmonella contamination was $78M.  The estimated cost to American peanut-containing product producers from the 2009 contamination of peanut butter by Salmonella was $1B.”  Consider that there are dozens of recognized outbreaks prompting hundreds of recalls and you can quickly see the enormous burden on the producers and importers of food. Much of those losses to business are not insurable, which can lead to bankruptcy and loss of employment. The public health burden and costs to consumers and the food industry when outbreaks happen need to be avoided.  This is a place where government can be a valuable partner.

Food safety regulations work when government, industry and consumers work together.  In 1993, the infamous Jack-in-the-Box E. coli outbreak linked to hamburgers sickened 600, put hundreds in the hospital – dozens with kidney failure – and four children dead.  Jack-in-the-Box barely survived after paying my clients over $100M in damages.  The beef and restaurant industry knew the time had come to embrace government assistance through increased regulation, testing and inspection.  Over the next decade, E. coli cases linked to hamburgers became a distant memory and my law firm’s bank account shrank.  Meat, regulated by FSIS, still has room for improvement – Salmonella and Campylobacter are still a persistent risk in poultry.  However, in order to continue to make progress, investments need to be made in research and technology to allow us to effectively battle a bacterial foe that you cannot see, smell or taste.  Government has a role in this.

After the 2006 E. coli outbreak linked to spinach killed five, sickened 200, and nearly decimated the leafy green industry in California, once again consumers, government and industry came together in a bipartisan manner to pass sweeping food safety legislation entitled the FDA’s “Food Safety Modernization Act.”  In essence this legislation allows the FDA to set standards – with input from consumers and industry – to be more proactive, instead of reactive to food safety risks both homegrown and imported.

While outbreaks linked to U.S. – grown fresh fruits and vegetables have declined in the intervening years, according to a recent CDC study, there has been an uptick of foodborne illness outbreaks linked to imported produce and fish.  Without more regulatory oversight, we leave our imports vulnerable to contamination – intentional or otherwise.  Required inspection and testing that makes scientific and economic sense, need to be tools in the FDA’s food safety toolbox.  They also help level the food safety playing field with trading partners.  The same is true for investing in surveillance of foodborne disease through the CDC and State Departments of Health – catching outbreaks early and finding the source helps prevent the next outbreak.

As a businessman, the President wants to know the bottom line.  With consumer illnesses costing $16B a year, and with economic losses to industry of $75B a year linked to food, investing in surveillance, technology, education, and improving governmental regulations to combat foodborne illness is wise and good for business.  Food safety is clearly an area where government works – especially in partnership with industry and consumers.  The bottom line is that spending money now has and will save money and protect the public’s health in the future.

Bill Marler has been a food safety lawyer and advocate since 1993 based in Seattle, Washington.

The Daily Meal put this out today – I have been honored to make the list over the last several years.

Bill-Marler-B-W-headshot

An accomplished personal injury and products liability attorney specializing in foodborne illness, Bill Marler has been litigating foodborne illness cases since 1993, when he represented Brianne Kiner, the most seriously sickened survivor of the Jack in the Box E. coli outbreak, creating a Washington State record for an individual personal injury action ($15.6 million). More than a lawyer, Marler has become an advocate for a safer food supply, petitioning the USDA to better regulate pathogenic E. coli, working with nonprofit food safety and foodborne illness victims’ organizations, and helping spur the passage of the 2010-2011 FDA Food Safety Modernization Act. It would only make sense that Marler was front and center in the recent Chipotle foodborne illness fray, representing several victims of the outbreak.

HonoreeBadgeEditors of the ABA Journal announced today they have selected MARLER BLOG as one of the top 100 best blogs for a legal audience.

HALL OF FAME: Bill Marler has consistently earned a place on our Blawg 100 list, and it’s not just because the tales of food poisoning outbreaks recounted on his blog keep us up at night. We feel he has truly proven how blogs can help lawyers with niche practices become sought-after experts.

In addition, the magazine has added 10 more bloggers to its Blawg 100 Hall of Fame, featuring the very best law blogs, known for their untiring ability to craft high-quality, engaging posts sometimes on a daily basis.  In 2012, we established the Blawg 100 Hall of Fame for those blogs which had consistently been outstanding throughout multiple Blawg 100 lists.

“For 10 years, the Blawg 100 has helped shine a light on the stunning breadth of legal topics and voices to found in the legal blogosphere,” Acting Editor-Publisher Molly McDonough said. “Journal editors have selected yet another stellar list of blogs. We hope you’ll find legal information sources in this list that are completely new to you and bookmark them for regular reading.”

HallofFame200pxV3About the ABA Journal:

The ABA Journal is the flagship magazine of the American Bar Association, and it is read by half of the nation’s 1.1 million lawyers every month. It covers the trends, people and finances of the legal profession from Wall Street to Main Street to Pennsylvania Avenue. ABAJournal.com features breaking legal news updated as it happens by staff reporters throughout every business day, a directory of more than 4,000 lawyer blogs, and the full contents of the magazine.

About the ABA:

With nearly 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

Daddy MaoOver the last 20 plus years I have given close to 400 speeches around the world on “why it is a bad idea to poison your customers.”

My “chats” have been in front of industry and governmental groups on every continent (except South America) – I’m somewhat popular in China.

Most of the audiences are receptive to both my experience representing  many of the most seriously injured people in nearly every major foodborne illness outbreak that has occurred in the U.S. since the 1993 Jack in the Box E. coli outbreak.  I think over time many that I have sued to fairly compensate my clients, have acquired a grudging respect that I do what I do not just for the money.

However, there have been moments.  I have had more than a few tense encounters with people who simply do not believe in the civil justice system.  I have had a few boo, not clap or simply walk out.  Most I have taken in somewhat good humor.

A week ago I was in Hawaii giving again my take on ways to avoid seeing me on the other side of a witness table.  Things went well and the group was engaged – even the fellow with the bright red baseball hat emblazoned with “Make America Great Again” seemed to tolerate me.

Then the question came: “Mr. Marler, how do you sleep at night?  You sued me over an outbreak that did not happen and it was not my product.”  At first I did not recognize the fellow, but as he spoke I recalled the outbreak.  I tried to explain how we take what we do seriously and use both the law and science to determine who is at fault and therefore who should take legal responsibility.  But, he was having none of it – he was convinced what I did was a “shake down.”

Yes, a “shake down” – here is the backstory:

At first glance, it appeared that the E. coli O157:H7 infections experienced by Natalia and Andrea D’Ercole were simply part of a small cluster of cases occurring in San Diego and Orange County, California.  As part of the routine case investigation, San Diego County public health investigators learned that on October 12, 2008 the D’Ercole siblings had eaten at The Cheesecake Factory restaurant located in Fashion Valley Mall in San Diego.  In neighboring Orange County, a 46-year-old man with an E. coli O157:H7 infection reported eating at a Cheesecake Factory restaurant located in Brea, California on October 13, 2008.  Genetic testing by pulsed field gel electrophoresis (PFGE) showed that Andrea, Natalia, and the Orange County patient were sickened with an indistinguishable strain of E. coli O157:H7, designated by PFGE pattern numbers EXHX01.4626/EXHA26.2558.  The strain was so unusual that it triggered a cluster investigation.  Federal officials at the Centers for Disease Control and Prevention (CDC) assigned Cluster Identification Number 08100NEXH-1mlc to the investigation.

Through OutbreakNet, a national outbreak response unit staffed at the CDC, a fourth case-patient in the cluster was identified, an 18 year old resident of South Dakota.  This patient confirmed the association between illness and eating at a Cheesecake Factory restaurant.  She had eaten at The Cheesecake Factory in Fashion Valley Mall on October 12, 2008 while on vacation in San Diego.  Natalia D’Ercole, the Orange County resident, and the South Dakota woman had symptom onset within five days of eating at the restaurant.  Andrea D’Ercole’s symptoms started several days after Natalia’s onset.  It is unclear whether Andrea’s infection was due directly to her meal at the Cheesecake Factory, or if her illness was secondarily caused via person-to-person contact with her ill sister.

Within a matter of days the outbreak grew beyond the Southern California confines.  Public health laboratories continued to report PFGE matches to the “Cheesecake Factory” strain of E. coli O157:H7.  Case-patients were identified in Illinois, Florida, New Jersey, and Ohio.  These individuals reported restaurant exposures but none ate at a Cheesecake Factory.  This led investigators to suspect a contaminated ingredient was in the marketplace.  Canadian investigators in Ontario identified an outbreak involving 55 persons with at least 13 ill case patients culturing positive for the outbreak strain. The majority of cases were linked to one of two restaurants.  Illnesses occurred between October 11 and October 28.  Canadian investigators conducted a case-control study and lettuce was statistically associated with illness.  Product traceback showed that two restaurants tied to the outbreak shared a common produce supplier and that Andy Boy brand romaine lettuce was the only lettuce in common to all Canadian restaurants with outbreak cases.

Its called the law and science.  Those that ignore both are bound to again see me on the other side of a witness table.  “Shake down” indeed.

It looks like “The Donald” is trying to expand his bromances from Putin to a broader group of guys – including me.  In a Trump fact sheet posted online today (which was then removed and saved thanks to @nycsouthpaw), the campaign highlighted a number of “specific regulations to be eliminated” under the Trump economic plan:

Screen Shot 2016-09-15 at 3.06.53 PM

That damn FDA and FSIS trying to protect us from deadly pathogens.

How did “The Donald” know that my business has dropped over the last few years as the regulatory work of our governmental agencies have kicked into gear.

Thanks for the help, but what about the people who are sickened or die because of food tainted with E. coli, Salmonella, Listeria, Hepatitis, etc?

I guess anything for another buck?

539w-300x227Jack DeCoster and Peter DeCoster were sentenced April 13, 2015 by U.S. District Court Judge Mark Bennett to three months in prison for introducing adulterated food into interstate commerce.  In addition, they were each required to pay $100,000. The DeCosters’s former company, Quality Egg LLC, was fined nearly $6.8 million. Eggs from their Iowa farms were linked to a 2010 Salmonella enteritidis outbreak that sickened nearly 2,000 and caused the recall of 500,000,000 eggs.

The DeCosters filed an appeal April 27, 2015, asking the U.S. District Court of Appeals 8th Circuit to remove remove the jail time from their sentence.

Pro-business groups, including the Cato Institute and the National Association of ManufacturersPharmaceutical Research and Manufacturers of America and Chamber of Commerce, and the Washington Legal Foundation filed briefs in support of the DeCosters, arguing executives shouldn’t serve jail time for this type of crime.  In part, the arguments for no jail time were the same:

“If executives can be imprisoned for criminal violations of strict liability laws by virtue of the position they hold within a company, the United States economy would suffer.”

“Executive business decisions would be motivated less by good business principles and more by fear of possible future prison sentences.”

The 8th Circuit heard oral arguments in the appeal March 17, 2016 and the parties are now waiting for a decision.

I am not sure if Judges of the 8th Circuit have read Bill Neuman’s New York Times article from September 2010 entitled, “An Iowa Egg Farmer and a History of Salmonella.” However, they should. Here are some of the highlights/lowlights.

DeCoster’s frequent run-ins with regulators over labor, environmental and immigration violations have been well cataloged. But the close connections between DeCoster’s egg empire and the spread of Salmonella enteritidis in the United States have received far less scrutiny.

Farms tied to DeCoster were a primary source of Salmonella enteritidis in the U.S. in the 1980s, when some of the first major outbreaks of human illness from the bacteria in eggs occurred, according to health officials and public records. At one point, New York and Maryland regulators believed DeCoster eggs were such a threat that they banned sales of the eggs in their states.

“When we were in the thick of it, the name that came up again and again was DeCoster Egg Farms,” said Paul A. Blake, who was head of the Enteric Diseases Division at the Centers for Disease Control and Prevention in the 1980s, when investigators began to tackle the emerging problem of Salmonella enteritidis and eggs.

Records released by Congressional investigators suggest that tougher oversight of Mr. DeCoster’s Iowa operations might have prevented the 2010 outbreak, which federal officials say is the largest of its type in the nation’s history, with nearly 2,000 reported illnesses and probably tens of thousands more that have gone unreported.

According to the records, Mr. DeCoster’s farms in Iowa conducted tests from 2008 to 2010 that repeatedly showed strong indicators of possible toxic Salmonella enteritidis contamination in his barns. Such environmental contamination does not always spread to the eggs, and it is unclear what actions Mr. DeCoster took in response. However, when the Food and Drug Administration inspected the farms after the recalls, officials found insanitary conditions and the presence of Salmonella enteritidis in barns and feed.

The first Salmonella enteritidis outbreak recognized by public health officials came in July 1982, when about three dozen people fell ill and one person died at the Edgewood Manor nursing home in Portsmouth, N.H. Investigators concluded that runny scrambled eggs served at a Saturday breakfast were to blame. They traced the eggs to what the Centers for Disease Control reports referred to as a large producer in Maine; interviews with investigators confirmed that it was Mr. DeCoster’s former operation.  Eggs from the same farms were also suspected in a simultaneous outbreak that sickened some 400 people in Massachusetts.

In 1987, the deadly outbreak at Coler Memorial Hospital on Roosevelt Island occurred. Investigators determined that mayonnaise made from raw eggs had caused the outbreak. They traced the eggs to Mr. DeCoster’s Maryland farms. On a July night in 1987, scores of elderly and chronically ill patients at Bird S. Coler Memorial Hospital in New York City began to fall violently sick with food poisoning from eggs tainted with Salmonella enteritidis “It was like a war zone,” said Dr. Philippe Tassy, the doctor on call as the sickness started to rage through the hospital. By the time the outbreak ended more than two weeks later, nine people had died and about 500 people had become sick. It remains the deadliest outbreak in this country attributed to eggs infected with the bacteria known as Salmonella enteritidis.

After two more outbreaks were linked to DeCoster eggs the following year, New York banned Mr. DeCoster from selling eggs in the state. He was forced to agree to a rigorous program of Salmonella enteritidis testing on his farms in Maine and Maryland.  Michael Opitz, a poultry expert retired from the University of Maine, said that the testing found that a Maine breeder flock owned by Mr. DeCoster was infected, meaning that hens there could be passing the bacteria to their chicks, which might grow up to lay tainted eggs. Widespread contamination was also found in laying barns.

In 1991, tests revealed more Salmonella enteritidis contamination at one of Mr. DeCoster’s farms in Maryland. The state quarantined the eggs, allowing them to be sold only to a plant where they could be pasteurized to kill bacteria. Mr. DeCoster challenged the order and a federal judge ruled that Maryland could not block him from shipping eggs to other states. He was still barred from selling the eggs in Maryland, and in 1992, a state judge found that he had violated the quarantine by selling eggs to a local store; Mr. DeCoster was given a suspended sentence of probation and a token fine.

Soon after interstate shipments resumed in 1992, eggs from the Maryland farm caused a Salmonella enteritidis outbreak in Connecticut, according to a 1992 memo from the Maryland attorney general’s office. Federal regulators insisted that Mr. DeCoster decontaminate his barns.  Dr. Roger Olson, the former state veterinarian of Maryland, said that Mr. DeCoster complained about the cost of testing and the quarantine and insisted there was little risk associated with his eggs.

Perhaps the Pro-business groups arguing for the DeCosters remain free are unaware of the DeCoster history?  The Business arguments aside, personally, I think Jack and Peter need some time away to think about this history – three months seem just about right.

For a little background on the law – Congress passed the Federal Food, Drug, and Cosmetic Act (FDCA) in 1938 in reaction to growing public safety demands.  The primary goal of the Act was to protect the health and safety of the public by preventing deleterious, adulterated or misbranded articles from entering interstate commerce.

Under section 402(a)(4) of the Act, a food product is deemed “adulterated” if the food was “prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health.” A food product is also considered “adulterated” if it bears or contains any poisonous or deleterious substance, which may render it injurious to health. Chapter III of the Act addresses prohibited acts, subjecting violators to both civil and criminal liability.

Felony violations include adulterating or misbranding a food, drug, or device, and putting an adulterated or misbranded food, drug, or device into interstate commerce.  Any person who commits a prohibited act violates the FDCA.  A person committing a prohibited act “with the intent to defraud or mislead” is guilty of a felony punishable by years in jail and millions in fines or both. The key here is an intentional act.

A misdemeanor conviction under the FDCA, unlike a felony conviction, does not require proof of fraudulent intent, or even of knowing or willful conduct.  Rather, a person may be convicted if he or she held a position of responsibility or authority in a firm such that the person could have prevented the violation.  Convictions under the misdemeanor provisions are punishable by not more than one year or fined not more than $250,000, or both.

Seems evident that the DeCosters more than fit this definition.  Like I said, three months seem just about right.

istock-000035713338-medium-22708From the 1993 Jack-in-the-Box E. coli outbreak that sickened 700 and killed four children to the mid-2000’s, nearly 90% of my law firm revenue came from E. coli cases linked to hamburger.  Kids who suffered kidney failure or death, kept me busy until the outbreaks and recalls prompted government, industry and the free market to pry my lucrative practice from my hands.

In response to the illnesses (and a significant drop in beef consumption) in 1994 the USDA banned E. coli in hamburger.  A seemingly simple step, it set the standard for what industry had to do and what consumers should expect.  In the 1990’s the CDC focused on E. coli like a laser.  Outbreaks and recalls spiked.  Like the vegetable Listeria recall we see now, E. coli recalls in the 1990’s were frequent and large, some as large if not larger than what we are seeing these past few weeks.  Consumer lawsuits were frequent and costly. The outbreaks and recalls became both embarrassing and costly to industry. These costs prompted the government and industry to begin testing meat before it shipped and destroying tainted meat before it could be eaten.  Industry to its credit devised interventions to prevent contamination and the resulting outbreaks and recalls.  And, guess what?

How many E. coli cases linked to hamburger do I have in my office today?  One.  How many E. coli outbreaks and recalls linked to hamburger in the last year?  One.  The free market worked and the increased costs of recalls drove a free market (with a bit of government intervention) solution.

So. let’s put the current frozen food Listeria recall in context.

In March of 2016, as part of a routine investigation into a report of foodborne illnesses, public health investigators interviewed family members and caregivers of people recently stricken by the potentially deadly pathogen, Listeria.  Some of those illnesses appeared linked to the consumption of frozen vegetables purchased at Costco and produced by a little known company named CFR Frozen Foods under dozens of brand names.

At about the same time, Ohio agriculture officials had randomly tested a brand of frozen vegetables (also produced by CFR) and it had tested positive for Listeria.  The Ohio test genetically matched the ill, which eventually lead the CDC to report that eight people became sick between September 2013 and March 2016.  The CDC was able to link illnesses, including those back three years, by using its genetic database, PulseNet, to CFR.

Although FDA does have mandatory recall authority under the Food Safety Modernization Act passed in 2010, on April 23, 2016, CFR “voluntarily” recalled eleven frozen vegetable products.  However, that would just be the beginning of the recall.  As of last Friday, CRF and other companies that used CFR vegetables in their own products, had recalled more than 500 vegetable containing products dating back years, most under the jurisdiction of the FDA. Many retail chains and several other food companies have also recalled products from all 50 states. The vegetable recall infected dozens of other food products under the jurisdiction of the USDA from frozen chicken with vegetable meals, tamales with corn to Kale and chicken salads.  All toll, those recalls now amount to over 100,000,000 pounds of food. The recall has also spilled across the border to Canada where US imported vegetables have been recalled by its food inspection agency.  And, at the end of the week Britain’s Food Standards Agency announced the recall of US sourced frozen food.

So why would I say that the massive recall is a short term worry but of long term benefit?

True, the recall notifications posted on the various governmental and company websites warning of the risks of consuming Listeria tainted product are worry enough.  And, combined with the media – print, radio, TV and the internet – it is enough for any Chicken Little to sound the alarm that our food safety system is broken.  In addition, major retailers have been emailing, texting, robo-calling and mailing customers directly about the risks of consuming the contaminated products, some of which was purchased years ago and might well be lurking in the back of one’s freezer.  Consumers are feeling a bit under attack by frozen vegetables that are supposed to be good for them.

And, it is not like Listeria is something that can be ignored.  This nasty pathogen sickens thousands in the U.S. annually, hospitalizing nearly 100% and killing about a third of those infected.  It is also one of the leading causes of miscarriages or pre-term pregnancies.  In 2011 Listeria tainted cantaloupe killed at least 33 in what is one of the largest foodborne death tolls in US history.

So, clearly a short term worry.  We as consumers are well served by paying attention to the recalls notices and tossing the products – especially, the elderly, immune compromised and pregnant women.

So, where is the long term benefit?

There was something wrong in the CFR plant that allowed for the proliferation of Listeria, at albeit, low and likely sporadic levels.  As the investigation unfolds, we all will likely learn more on what was or was not going on in the plant over the years that would allow this to happen.  Was the plant and equipment construction such that Listeria had a place to grow?  Was plant sanitation lacking?  Did CFR test for Listeria in the plant, on food contact surfaces and in the product itself?  What was the role of FDA or other government inspectors in not catching problems before it exploded into a massive recall? There will be likely legitimate criticisms to be shared between government and industry and certainly lessons that can and will be learned.

The CDC’s ability to track outbreaks is good and getting better.  The use of genetic fingerprinting of foodborne pathogens – including such new technology as whole genome sequencing – found in plants, products and people, allows for more promptly figuring out an outbreak, alerting the public and holding the producer accountable. In addition, the US Attorney’s office has shown a great deal of interest in the last few years finding companies and their CEO’s criminally responsible for manufacturing tainted food.  Lawsuits and jail time have a unique ability to make companies pay attention.

However, it is the recall itself in my view, that although alarming now, is the greatest force for long term change.  Recalling 100,000,000 pounds of frozen product produced over years from around the world is both disruptive and expensive.  The costs of ferreting it out will cost all the companies involved hundreds of millions of dollars.  These costs create a strong incentive to create mechanisms to prevent outbreaks and recalls in the future.  And, the recalls aside, it is likely that consumers are starting to think twice before purchasing frozen vegetables from their local grocery stores.

Recall costs, slumping sales, along with civil and criminal liability, are powerful market incentives, and ones that have worked over time.  Just ask the beef industry and my wallet.

unnamed-300x150Were I  the CEO of a 1,900-store restaurant chain with 45,000 employees (with a CEO-to-worker pay ratio of 1522:1), and just had six foodborne illness outbreaks in six months, what would I do this coming Monday morning?

Frankly, with my stock price in free fall – losing $6 billion in value in less than two months – just staying in bed in the fetal position might be welcome.   However, I did not get to be a multi-millionaire hiding in bed. So, here are the things you would see me doing starting  bright and early Monday morning.

  1. Park my large ego. Monetary success can and does breed a sense of otherness – especially when the core of your business culture is that your brand of “integrity” is better than your competitors. With a crisis of this proportion facing the company going humble is not a bad thing.
  2. It is time to be as open as possible. Why was the July E. coli outbreak in Seattle kept from the public by both public health and the company? What did I learn in the August Salmonella outbreak in Minnesota and the Norovirus outbreak in California? Could have being open and learning from these three outbreaks have prevented the next two E. coli outbreaks and the Norovirus outbreak that has nearly brought my company to its knees?
  3. It is time to have a culture of food safety added to the “integrity” of the food. I have now learned that bacteria and viruses do not care a whit if my food’s ingredients are organic, sustainable, non-GMO and humanely raised.
  4. I am going to make mandatory reading Benedict’s book “Poisoned” and Yannis’s book “Food Safety Culture.”
  5. I am going to hire a vice-president of Food Safety. That person will report directly to me and to the Board of Directors. Like Dave Theno being brought in to address the Jack-in-the-Box crisis of 1993, this person will have the resources and access to decision makers to create a culture of food safety from the top down.
  6. With input from the new vice-president, we will hire the consultants and experts necessary to create a sustainable food safety program that brings even more meaning to our core value of “food with integrity.”
  7. I would invite input from regulators, academics, pubic health officials, and yes, the public to add to and critic the new food safety program.
  8. The company’s new mantra – “Safe Food with Integrity” – will be completely transparent and shared with all – including our competitors.
  9. I am going to rehire the two Boston employees fired last week and instead fire someone in management that allowed the company to drift into a position that allowed these outbreaks to occur. I am likely not going to fire myself, but I certainly will take a cut in pay to $1 a year until the ship gets off the rocks – same with the existing top management.
  10. I will stop “shooting the messengers.” This crisis was not caused by public health announcements (one could argue in fact had the July outbreak been announced perhaps all others would have been avoided) or the coverage by the media. We like it when public health covers for us and when the press fawns, its time to grow up and take the good with the less so.
  11. Hit the reset button. Shut every store and open them only when each store is actually ready – not just “deep cleaned” – but ready from a structural and management (food safety culture) perspective.
  12. Invite the customers back with open arms – they will come back.