After 25 years doing food litigation, I am seldom surprised by the announcement of a foodborne illness outbreak.  It was no different last Friday when the Indiana Department of Health announced a multi-state Salmonella outbreak linked to cut fruit – mainly melons sold at large retailers in several states.  People in government or in various parts of the food industry know that an outbreak is brewing weeks before the evidence becomes too overwhelming to ignore, so on more than a few occasions, when the delay between government and industry knowledge and a public announcement becomes too slow for concerned people and I get a call, text of email.

But, it is not how the information gets out that concerns me – there will always be a difficult balance in foodborne epidemiology about when to go public.  If a contaminated food product is missed by proper production and testing, we will not know of the problem until people become ill.  And, the time between consumption, illness, investigation and recall can stretch for weeks or months depending on the numbers of people sick and the numbers of jurisdictions that encompass the outbreak.  Foodborne illness surveillance will always have challenges and continuing to make the process faster and more accurate must always be the goal.

However, what continues to both concern and perplex me is the FDA’s failure to be more transparent with the public once we know the cause of the outbreak.  In the early 2000’s the USDA/FSIS had a policy that would publicly announce who manufactured E. coli O157:H7 meat but refused to announce the location of where the product was sold – retailers or restaurants.  In 2002 the ConAgra beef E. coli O157:H7 outbreak and recall sickened dozens and killed one.  Most of the illnesses happened on or around the 4thof July.  However, a couple of illnesses happened later that Fall. When asked if those sickened had heard of the ConAgra outbreak and recall they said they had, but “we bought our meat at Safeway, not at ConAgra.”

It was not until 2008 that USDA/FSIS began to routinely disclose the retail distribution lists, so retailers and consumers would know where tainted product was shipped and potentially served.  According to a recent article in the Washington Post:

In the early 2000s, the Food Safety and Inspection Service — the branch of the U.S. Department of Agriculture that regulates meat, poultry and egg products — decided to revisit its own interpretation of the trade secrets rule. During a lengthy comments period, industry groups concerned with protecting their distribution lists from competitors faced off against consumer advocates. In 2008, after several years of debate, FSIS’s final rule concluded that it would “not cause substantial harm to the competitive position of any business” to disclose retailer names.

Not surprisingly retailers of USDA/FSIA regulated products have survived disclosure – transparency has been a benefit to consumer confidence.

Conversely, 80% of the food supply – that regulated by the FDA – has remained silent and opaque leaving retailers and consumers confused and at times angry at the lack of transparency.  According to the same Washington Post article:

In a statement to The Washington Post, the FDA affirmed that it believes its disclosure measures are sufficient and blamed the lack of downstream recall information on federal disclosure rules. Federal regulations do limit the sort of information that can be released to the public. Under the Freedom of Information Act and Title 21 of the Code of Regulations, government agencies — and specifically, the FDA — are told to exempt trade secrets and commercial information from any of their releases.

“Examples of [confidential consumer information] include raw material supplier lists, finished product customer lists, trace back information, etc.,” said Peter Cassell, a spokesman for the FDA. “CCI is exempt from Freedom of Information Act requests but can be shared through certain information sharing agreements (including with other Federal agencies).”

“The FDA publicizes recall notices, including pictures of affected products, and uses social media accounts to reach consumers as swiftly as possible,” he later added. “In some cases, the FDA can release certain information that is otherwise exempt from disclosure if it is necessary to effectuate a recall. In many cases, it is most efficient for the company to directly notify its distributors, so they can take appropriate action.”

Cassell declined to make an agency lawyer available for comment or explain how the FDA had arrived at its definitions….

Let me weigh in where the FDA would not.  Let me also be blunt – there is no reason (especially when faced with an outbreak of foodborne illness) – for the FDA to claim that the retail distribution list is a trade secret.  Transparency of the food chain for products overseen by USDA/FSIS has not lead to a collapse of trade secrets.  The FDA might well learn from a ten-year history of its sister food safety agency. Chicken Little, the sky did not fall.

An egregious example of FDA’s failure to not name retailers was 2017 E. coli outbreak linked to I.M. Healthy (great name for a product with a pathogen) soy nut butter that sickened dozens, some children seriously so. The outbreak began in December 2016 and reached critical mass in April 2017.  A recall was publicly announced, but no retailers were named.  I.M. Healthy went bankrupt and was likely uninterested or unavailable to assist in the recall.  Not surprisingly, product remained available to purchase in retail settings and online several months after the outbreak and recall were announced.

Seriously, someone at the FDA needs to explain why an arguable “trade secret” trumps public health?  The chain of distribution needed a good dose of transparency – both retailers and consumers were confused – not by too much information, but from too little.

Now back to last Friday when Indiana announced a multi-state Salmonella outbreak linked to cut fruit – mainly melons sold at large retailers in several states.  Here, the Indiana State Department of Health – not FDA, nor the manufacturer – announced the outbreak.  There was no recall yet, but Indiana did name several retailers, but not the manufacturer. The first news articles targeted retailers, not the manufacturer.  Several hours later the CDC and FDA announced a 60 – person Salmonella outbreak and named the manufacturer, but not the retail chain.  Then the manufacturer posted a press release naming the retailer chain.

Confused?  Me too.

So, my advice to the mystery FDA lawyer is simple – focus on public health and what should be disclosed and what is a trade secret will become clear.  Formulations, ingredients and how a product are made are trade secrets.  Who supplied the tainted raw material, who made the tainted product and where the tainted product was sold is not a trade secret – especially during and outbreak.  Simplicity, transparency and consistency allows for a visible supply chain and one that consumers can have confidence in.  Hiding behind “trade secrets” creates confusion and mistrust – not something that is helpful in the sale of food.

The non-profit group Stop Foodborne Illness has extended the application deadline for the Dave Theno Food Safety Fellowship until June 15.

The fellowship program is a partnership with the Michigan State University Online Food Safety Program. The fellow will live in Chicago and work with Stop Foodborne Illness while completing a 12-credit online Food Safety Certificate with Michigan State University. The fellowship includes housing, benefits, salary and tuition.

Eligible applicants include recent graduates (2016-2018) with a food science or animal science undergraduate degree from a U.S. Land Grant University. The non-profit organization said preference will be given to those seeking a career in the food industry or food regulation.

About Dave Theno
At age 66, food safety pioneer Dave Theno was hit and killed by a large wave while swimming with his grandson in Hawaii on June 19, 2017.

At the time of his death, Theno was CEO of Gray Dog Partners Inc., based in Del Mar, CA. He been CEO for the food safety consulting business since 2009.

Theno made history in food safety circles after he was hired as senior vice president and chief food safety officer for Jack-in-the-Box in 1993. The San Diego fast food chain was reeling from a massive and deadly outbreak of E. coli O157:H7. Four deaths and hundreds of illnesses were blamed on the burger chain.

At Jack in the Box, Theno implemented a comprehensive Hazard Analysis and Critical Control Point (HACCP) plan. He was instrumental in requiring finished product test-and-hold protocols for hamburger. The safety measure initially irked those in the meat industry, but was later almost universally adopted.

Theno was also actively involved in numerous food industry and scientific organizations. In May 2017 he posthumously received the lifetime achievement award at the Food Safety Summit as part of the annual NSF Food Safety Innovation awards.

The Dave Theno fellow will:

  • Work in the Stop Foodborne Illness office 35 hours a week;
  • Complete two projects defined by the Stop and MSU Online Food Safety Directors;
  • Participate in weekly Safe Food Coalition calls; with possible travel to Washington, D.C.;
  • Assist the community coordinator in identified initiatives;
  • Help staff Stop’s booth at conferences, including the 2019 International; Association for Food Protection conference in Louisville, KY;
  • Attend “Creating a Food Safety Culture Executive Education” at MSU, May 21-24, 2019; and
  • Finish the MSU Food Safety Certificate coursework (12 credits).

A studio apartment, which is provided for the duration of the fellowship, is located in Chicago’s Ravenswood neighborhood. According to the organization it is wholly furnished, including full kitchen, basic cable and utilities. The Stop Foodborne Illness office is in the same building as the fellowship apartment.

In order to be considered for the fellowship, the application and supplemental materials must now be received by the organization no later than the extended deadline of June 15, 2018.

Applicants will need official transcripts from their degree granting university and three letters of recommendation (2 academic, 1 personal). Additionally, applicants will need a Statement of Intent outlining their background, professional interests, their reason for wanting this fellowship, and how they believe it will help their future career.

To review and begin the application process click here.

About STOP Foodborne Illness 
STOP Foodborne Illness is a national nonprofit public health organization dedicated to preventing illness and death from foodborne pathogens by advocating for sound public policies, building public awareness and assisting those impacted by foodborne illness.

Former FDA Deputy Commissioner of Foods and current board member for STOP, Mike Taylor, said the organization helped create a culture of food safety that has been the driver of “everything that’s happened since [1993] … It’s absolutely clear that [STOP is the] catalyst, and that change of mindset has had a transformative effect on the food system in this country.”

By Food Safety Magazine Staff

Bill Marler is the most prominent foodborne illness lawyer in America, and a major force in food policy in the U.S. and around the world. Bill’s firm—Marler Clark: The Food Safety Law Firm—has represented thousands of individuals in claims against food companies whose contaminated products have caused life-altering injuries and even death.

Bill began litigating foodborne illness cases in 1993, when he represented Brianne Kiner, the most seriously injured survivor of the historic Jack in the Box Escherichia coli O157:H7 outbreak, in her landmark $15.6 million settlement with the fast food company. For the last 25 years, Bill has represented victims of nearly every large foodborne illness outbreak in the U.S. He has filed lawsuits and class actions against Cargill, Chili’s, Chi-Chi’s, Chipotle, ConAgra, Dole, Excel, Golden Corral, KFC, McDonald’s, Odwalla, Peanut Corporation of America, Sheetz, Sizzler, Supervalu, Taco Bell, and Wendy’s. Through his work, he has secured over $650 million for victims of E. coli, Salmonella, Listeria, and other foodborne illnesses.

Bill Marler’s advocacy for a safer food supply includes petitioning the U.S. Department of Agriculture to better regulate pathogenic E. coli, working with nonprofit food safety and foodborne illness victims’ organizations, and helping spur the passage of the Food Safety Modernization Act. His work has led to invitations to address local, national, and international gatherings on food safety, including testimony before the U.S. House of Representatives Committee on Energy and Commerce, and the British House of Lords.

Bill travels widely and frequently to speak to law schools, food industry groups, fair associations, and public health groups about the litigation of claims resulting from outbreaks of pathogenic bacteria and viruses, and the issues surrounding it. He gives frequent donations to industry groups for the promotion of improved food safety and has established numerous collegiate science scholarships across the nation.

He is a frequent writer on topics related to foodborne illness. Among other accolades, Bill was awarded the NSF Food Safety Leadership Award for Education in 2010.

Link for Podcast: 

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In this episode of Food Safety Matters, we speak to Bill Marler about: 

  • The circumstances under which he met the late Dave Theno
  • The Jack in the Box case and how it propelled his career
  • The current listeriosis outbreak in South Africa, and how it compares to the Jack in the Box case 25 years ago
  • Why foodborne illness cases involving hamburger and Escherichia coli are no longer a huge problem
  • How the Odwalla apple juice outbreak could have been avoided
  • Whether or not Salmonella should be officially declared an adulterant
  • The responsibility of food safety: consumer vs. food industry
  • His thoughts on the ongoing Peanut Corporation of America case and whether or not Stewart Parnell’s attempts at a new trial are valid
  • FSMA, and how the new regulations can be improved
  • Blockchain, whole-genome sequencing, and other technologies that are changing the food safety for the better
  • His newfound interest in public health as it relates to food safety

Related Content
Poisoned: The True Story of the Deadly E. coli Outbreak That Changed the Way Americans Eat
20 Years of Marler Clark’s Top Foodborne Illness Cases

News Mentioned in This Episode
Deadly Listeria Strain Confirmed at South Africa Meat Plant
UPDATE: One Death Caused by Romaine Lettuce as E. coli Outbreak Spreads
New USDA Report Breaks Down Food Recalls 2004-2013; Trends in Food Recalls 2004-2013
UPDATE: Study: Fresh Produce Bacteria Can Thrive Despite Routine Chlorine Sanitizing; Official Study

I assume that the fellow that left this comment on my post of yesterday “Why I work weekends” is a real person who is actually in charge of “the Food Safety programs of two grower/shippers of fruit and produce.”  I bet your buyers – consumers, restaurants or retailers, feel great about the vote of confidence in your product.

Setting aside for a moment how Chad may feel about lawyers, do you really think the appropriate response to someone who buys a salad at a place like Panera or buys a package of “triple-washed” chopped, bagged romaine at a grocery store, and becomes sick due to E. coli O157:H7 and develops HUS is, sorry, “shit happens?’

Sorry, that is not acceptable.  If you put a defective product – yes, E. coli O157:H7 is a defective product – into commerce and you harm someone, you are responsible.  To suggest otherwise, especially in these circumstances is legally and morally wrong.

It is the attitude of it’s “Nature’s fault” that leads to complacent finger-pointing at consumers.  Are consumers supposed to wash the lettuce they are served at a restaurant?  Do we really expect a busy homemaker (man or woman) to wash the washed chopped bagged salad they picked up at the grocery store?

Here is his comment in full, unedited:

chad gress

“I promised the distraught father that I would take care of his kid and find the grower, shipper, processor and retailer (honestly, I know most of the chain already and the rest will flip shortly – perhaps I should offer a reward?) that did this to his daughter.“

NATURE did this to his daughter. Was it facilitated by a breakdown in safe growing, harvesting and/or processing practices by one or more companies in the chain of custody? Perhaps. But that is yet to be determined.

I am responsible for the Food Safety programs of two grower/shippers of fruit and produce. I hate hearing about people suffering because they made a healthy choice to eat fresh produce. And being a father, I sympathize with anyone who’s child becomes sick or dies as a result of exposure to a food-borne pathogen. But I am all too aware that, despite our best efforts to protect the consumer by proactively reducing the potential for cross contamination during the growing and harvesting stages, it is not possible to eliminate the potential for contamination. Without a kill step, fruits and vegetables have always and will always be susceptible to contamination.

To tell a father that you are going to find out who “did this to his daughter” without knowing all the facts is irresponsible and misleading. I support taking legal action against companies who demonstrate negligence in thier duties towards the health and safety of the public. It seems the only way to effect change is to go after their wallets. But for so many of us in the produce industry doing our reasonable best to grow and ship a product that is safe for human consumption, being portrayed as “villians” in these scenarios is just ethically wrong.

Produce is grown outdoors, in nature, exposed to countless sources of contamination, the most dangerous of which are microorganisms that are invisible to the human eye, extremely adaptable and likely more resilient than we currently understand them to be. We are constantly performing risk assessments to identify potential weak points in our Food Safety Programs, and modifying our procedures so they reflect the most current science-based metrics. We are conscientious and diligent. And yet, we will never be able to eliminate the risk of our produce being a source of food-borne illness.

And so we will continue to be the targets of litigation, and attorneys will continue to use the type of language that you did with thier clients and the public, encouraging them to file lawsuits against everyone who touched the product. Eveyone who “did this to thier daughter”.

If you can not make mass produced produce safely – don’t sell it.  If you sell it and sicken some 11 year old girl whose only crime was to order a salad at Panera, then step up and be responsible for what happened to her.

And Chad, since I posted “Why I work weekends” – I have been retained by the family of a 16-year-old girl with HUS who just was released from ICU and the mother of a 6-year-old boy who was just hospitalized in the last few days and has early stages of HUS.  Would you like to tell them, that is just nature’s way?

I was up at 4:00 AM this morning to communicate with my colleagues in South Africa about the Listeria outbreak that has sickened over 1,000 – killing almost 200.  I hope that the team at Marler Clark can bring our 25 years of experience to help these people and to try and limit something like this from every happening again (one paralegal is heading there next week and Bruce is heading there in early June).

As I was thinking about heading back to bed to wait for the sun to come up, my cell phone rang – It was the father of a 13 year old girl still on dialysis over three weeks after eat chopped romaine tainted with E. coli O157:H7.  I promised the distraught father that I would take care of his kid and find the grower, shipper, processor and retailer (honestly, I know most of the chain already and the rest will flip shortly – perhaps I should offer a reward?) that did this to his daughter.

I was about to head back to bed – sun was not yet up – when this popped up on social media:

This man represented our case in the Peanut Corp peanut paste Outbreak of 2008. Christopher was the sickest child. Bill brought to me sanity at a time when Chris was still recovering and I was working in an inept way with the Dept of Health to sort of track down how and why Chris got so sick from something he ate. I had been upset, baffled and puzzled for 2 months until I met Bill Marler. He immediately took me and our family’s situation under his wing. He educated me and advocated for us. He created sanity for something that had been chaotic. Bill was my light. As a Mom, none of what had happened made any sense until I met Bill. Bill gave me a voice through national media to help others and educate others based up my experience. This entire outbreak which killed too many and sickened hundreds and probably thousands, if truth be told, was not handled efficiently at all. Bill helped me to get involved on a National level to advocate change in Food Safety laws. Through his efforts and others like STOP and PEW, we were able to finally push legislators to update the antiquated food safety laws and FSMA was finally passed and signed into law in January 2011. A monumental change to update how US food moves through the supply chain. Bill was quietly behind all of it.

Bill filed the first law suit against PCA on my Christopher’s behalf. Bill then quietly supported the victims efforts (as well as PEW) to bring justice to the company that knowingly poisoned the American public through 5,000 products their paste was sold in. And three years ago I was able to be part of the sentencing of the company’s executives and managers, and I was able to tell the judge my story/Christopher’s story and stare the responsible man in the face who was ultimately responsible. Justice was served that day. It had been a long long road.

Bill Marler you will always have a place in my heart. America is lucky to have a man like you out there fighting for what is right.

I think I’ll stay up and go to work.

Seattle U Lawyer: By Claudine Benmar, April 18, 2018

Bill Marler ’87 takes calls about foodborne illness from clients around the country. 

This year marks the 25th anniversary of a massive E. coli outbreak, which hit 73 Jack in the Box restaurants in Washington, Idaho, Oregon and California; sickened 700 people; sent 171 to the hospital; and killed four. The anniversary is a somber but noteworthy milestone for accomplished food safety attorney Bill Marler ’87.

“It’s the 25th anniversary of the outbreak, but it’s also the 20th anniversary of our law firm,” he said. Seattle-based Marler Clark, which he co-founded with fellow Seattle University School of Law alumnus Bruce Clark ‘84, was the nation’s first law firm to focus solely on helping victims of foodborne illnesses and grew directly from both attorneys’ experience with the 1993 outbreak.

As milestones like this come and go, Marler, who recently turned 60, wonders whether it’s time to retire. A few of his colleagues from the law firm’s early days have already done so.

“But I really love my job,” he said. “I get to make a huge difference in people’s lives, people who have lost their kidneys, lost their large intestines, are brain-injured, families that are facing millions and millions and millions of dollars in medical expenses, or a husband who’s never going to work again. And I get to help them. That’s a reason to get up and go to work every day.”

In the last two decades, Marler Clark has been involved in the aftermath of every major and minor outbreak of foodborne illness in the United States, working not only with victims but also with scientists and public health officials to make the food supply safer. Author Jeff Benedict, who chronicled the Jack in the Box story in his 2011 book, “Poisoned,” wrote that “no individual has had more influence on the shape and direction of food safety policy in the U.S.” than Marler.

Back in 1993, just a few years out of law school, he became the lead lawyer for the plaintiffs through an effective combination of hustle, hard work, personal connections, and media savvy.

His first E. coli client was a Tacoma family referred to him by a woman he had helped with a worker’s compensation claim. He rushed from his office in downtown Seattle to his old law school hangout in Tacoma (the law school was formerly affiliated with University of Puget Sound), the Poodle Dog Restaurant, met with the family, and convinced them to hire him.

“I went from obscurity to being sort of the legal face of the outbreak. I went from having one client to five clients to 10 clients to hundreds,” he said. Two years into the class-action lawsuit, when the end was finally in sight, Marler settled $25 million worth of cases in two days of mediation.

Most notably, he secured a $15.6 million settlement – the largest of its kind at the time – on behalf of Brianne Kiner, the Seattle girl who was the most severely injured victim of the outbreak, which was traced to undercooked hamburgers at 73 Jack in the Box restaurant locations. Just 9 years old, she spent several weeks in a coma, followed by a long and painful recovery. She still struggles with lifelong health effects such as infertility, asthma, and diabetes.

When the case concluded, Marler figured he would return to a general personal injury practice, possibly specializing in medical malpractice. But then another E. coli outbreak hit, again centered in Washington state. In 1996, a tainted batch of apple juice, from a juice company called Odwalla, killed one toddler and sickened 66 people. The families called Marler for help, thanks to his high profile in the Jack in the Box litigation.

“It really was at that point that I thought, ‘Hmm, clearly people think I know what I’m doing,’” Marler joked. “But candidly, I had worked really hard. I knew the law and I knew the medicine really well. I started wondering if you could create an entire practice around this.”

You could. Or rather, he could. Marler and Clark partnered with lawyers Denis Stearns and Andy Weisbecker to create the firm in 1998. (Both Clark and Stearns essentially switched sides, having represented Jack in the Box during the earlier litigation.) Two of the firm’s most recent hires are also Seattle U Law graduates – Anthony Marangon ’15 and Josh Fensterbush ’17. Stearns and Drew Falkenstein ’02 are of counsel at the firm.

Over the years, Marler has secured more than $600 million for victims of E. coli, salmonella, and other foodborne illnesses. While lawsuits often spur companies to make important changes – Jack in the Box developed the industry’s toughest safety standards after its outbreak – Marler knows there’s more to it than litigation. So he also devotes his energy and expertise to advocate for stronger food safety laws and regulations.

He petitioned the U.S. Department of Agriculture to better regulate pathogenic E. coli and successfully advocated for the passage of the 2010-2011 FDA Food Safety Modernization Act. He has spoken to countless industry groups and journalists, established science scholarships, and written extensively on all manner of foodborne pathogens.

What motivated Bill Marler back in 1993 is what continues to motivate him today. Many people who suffer the most from foodborne illness are children, and the money he earns for them is intended to take care of them for the rest of their lives.

Marler has three daughters of his own – one is a graduate of Seattle University and two are current students. The oldest was just an infant when he took on Jack in the Box.

“When you’re representing little children and you see how injured they are,” he said, “it doesn’t take much to look at your own kids and realize just how important your job is.”

Bill Marler, the E. coli lawyer, shot for Trial Magazine in Seattle, WA

Trial Magazine April 2018  – Bill Marler interview, by Kate Halloran

Attorney Bill Marler of Marler Clark in Seattle has dedicated his career to representing people injured by foodborne illness and to advocating for better food safety regulation. Trial spoke with him about what’s challenging about these cases, common misconceptions, and what more needs to be done to protect consumers.

How did you get started in food safety?

My first experience with food safety litigation was the 1993 Jack in the Box E. coli outbreak, which was linked to the fast-food chain’s meat. More than 700 people were sickened, with hundreds hospitalized—dozens with acute kidney failure—and four children died. It was one of the first major foodborne illness cases that happened in the United States.

A woman I had done some legal work for called me, and she asked if I would meet with a friend of hers whose kid was in the hospital with E. coli. I met with the family, and I filed the first lawsuit against Jack in the Box that week. I didn’t even know what E. coli was, frankly. I gathered information from the University of Washington’s medical school to get up to speed.

Very quickly, I went from having a handful of cases to being lead counsel for more than 400 cases that were filed in several states against the restaurant. By the time Jack in the Box started settling cases, I probably knew more about E. coli than one would ever want to. Shortly after that, there was an outbreak linked to unpasteurized juice sold by Odwalla, and I started working on those cases. After that, I decided to start my own firm, and I hired Bruce Clark, who had been chief counsel for Jack in the Box. Now all we do is handle food cases nationwide.

What are some of the most significant changes you’ve seen resulting from food safety litigation?

I think that, like a lot of lawyers who do products cases, the hope is that litigation leads to structural changes in whatever industry you’re going after, and I think for the most part it does. From the 1990s to early 2000s, most of our work involved E. coli cases linked to hamburger; now that is nearly zero. The positive changes—more testing, more interventions to prevent contamination—have led to a safer meat supply.

But I became frustrated by the pace of change, so I started doing more advocacy work. I started speaking to consumer, public health, and industry groups. And by then, unfortunately, I had a lot of stories about severely injured children, pregnant women, and elderly adults and how devastating foodborne illness can be.

I became very involved with the political side of food safety, including the run-up to the Food Safety Modernization Act, which was signed by President Obama in 2011. It established a variety of new regulations for food manufacturers and importers to ensure product safety through controls, testing, and sanctions. That law was a multiyear effort by consumer and industry groups, lawyers, and clients who testified in front of Congress.

I also have seen a lot of changes in how the U.S. Department of Agriculture (USDA) regulates food, primarily meat. And that is due to a combination of litigation and regulatory pressure—making companies do the right thing, whether for economic or moral reasons.

With the FDA, which regulates most of our food supply, we’re starting to see some positive impact from recent regulations that cast a wide net over all FDA-regulated products to ensure that they are manufactured to enforceable standards that are likely to reduce foodborne illnesses. We’ve seen a downturn in salmonella and E. coli cases linked to leafy greens, which were common 10 years ago.

What food safety issues are you seeing become more common?

Imports are becoming a bigger part of my cases—not necessarily because imported food products are inherently dangerous, but because the increase in the volume of imported food means that more tainted food cases are coming from imports. That creates additional legal challenges because you can’t necessarily sue a supplier or manufacturer in China. There are some real opportunities for regulation to help. We still can hold importers and retailers responsible for contaminated food from overseas.

And we’re seeing outbreaks happening with unexpected foods. For example, we’re representing people who were sickened by a soy nut butter E. coli outbreak, including an 11-year-old boy who was hospitalized for months in the ICU, lost his large intestine, suffered severe brain and kidney injuries, and is learning how to walk again. These are significant and serious cases from a food product that you wouldn’t necessarily expect to cause injury.

What are the strengths and weaknesses of the consumer alert and recall process for contaminated food?

I’m a big fan of recalls and product testing that prompts recalls. Like litigation, testing and recalls are a market-driven exercise. Companies tend to try to find a way to fix a problem so they don’t have to spend money on it. We saw this during the mid-to-late ’90s when it was common to see hamburger recalls on a weekly basis because companies were testing their products and finding E. coli, so they had to recall them. Then, to prevent recall costs, they started testing and holding the product, so it wouldn’t even get into the marketplace; or they’d test it and divert it to be a cooked product to kill the bacteria. The number of E. coli cases from hamburger dropped like a stone.

But there are some odd delineations between USDA and FDA when it comes to food safety. USDA regulates meat, except fish (other than catfish). FDA regulates everything else—fruits, vegetables, and fish primarily, as well as baked goods and similar processed foods. The FDA rules are pretty clear: If food has a pathogen in it that can make you sick, then it’s an adulterated product. But for USDA, if chicken in a grocery store has salmonella on it, the agency may not consider it to be adulterated until the chicken can be proven as the source of an illness—then that would prompt a recall. And there are some recall rules that relate to E. coli but not salmonella—even though both make people sick.

But one thing that USDA does when there’s a recall is tell you the entire chain of distribution—who produced the item and where it went. The FDA does not. When the FDA recalls something, it names the manufacturer, but it doesn’t tell you where the products went. The soy nut butter product I mentioned before was recalled in March 2017, but we’re still finding it for sale online and in grocery stores. To me, that’s a real failing of the FDA not to look at the system from manufacturer through where people buy the product and make the public aware of what’s going on.

As the local food movement and farmers’ markets have become popular, has that changed where you’re seeing problems in the food supply?

That’s a difficult question to answer. The reason why is that most people who get a foodborne illness never figure out what made them sick. Even when there are clusters of ill people, they seldom link it to a particular food item, restaurant, or manufacturer. It is very difficult, and it’s what we spend most of our time figuring out. We figure out causation, and then we can do something. But we turn away 90 percent of prospective cases because causation is unclear.

That helps explain part of the issue with local or regional outbreaks. Multistate outbreaks are much easier to put together because then you can pinpoint common denominators among people. The farther apart people are, the more likely it is you’ll be able to find a common thread. But with just a couple of people in the same city, it may be too difficult to untangle the common denominator—or there may not be enough data available to make that determination.

Because the incubation period of different bacteria can vary from hours to weeks, the smaller the operation, sometimes the more difficult it may be to pinpoint the food item that made someone sick. And that’s important­ because if you looked at it, you’d say, “Clearly local agriculture’s not poisoning anybody.” But that would be a false assumption. It’s most likely that it is but on a smaller scale and so the statistics don’t necessarily implicate it. Bacteria don’t care whether you’re a big producer or a small producer—they’ll sicken your customers regardless. That’s why good food handling and manufacturing practices are essential.

What are some of the risk factors for foodborne illness outbreaks?

When you delve into it, you still see companies that have bad manufacturing processes and practices. A lot of it has to do with cooking and cleanliness. A product that’s not cooked is a bigger risk than a product that’s cooked because most bacteria and viruses are killed by cooking. If you have a product that’s heated well, it’s unlikely that you’ll have a foodborne illness outbreak.

Foods that are eaten raw and don’t have what’s called a “kill step,” such as lettuce, can be a riskier food item to the consumer. That’s why certain kinds of cheeses and deli meats—foods that are consumed without cooking them again—shouldn’t be eaten by certain groups, such as pregnant women, because there’s a risk of listeria. Unpasteurized juices, unpasteurized milk, oysters—foods that are close to the environment where contamination can occur and then are eaten raw tend to be more risky.

That’s why fresh fruits and vegetables, while important for human consumption, need to be washed and handled properly. You may not necessarily rid the food product of all contaminants, but you’re knocking down the bacterial load to the point that your body can handle it. If you consume 10 E. coli bacteria, it’s likely that your body will be able to ignore it. But if you ingest 100 bacteria, that might be enough to overwhelm your system and make you sick—and in some instances, really sick.

A lot of foodborne illness tends to have worse effects on the elderly, children, immune-compromised people, and pregnant women. Unfortunately, if you look at the size of the vulnerable population, it’s a big chunk of America. These people are the most vulnerable to becoming ill and the ones most likely to have severe reactions—kidney failure, long-term complications, or death.

What is the biggest challenge when helping clients in different states seek recovery for injuries from a foodborne illness outbreak?

I often deal with cases following an outbreak in different states that may have the same liability and causation law, but they have differences in damages law. I remember a listeriosis case when we represented 30 people and families of people who died from eating cantaloupe, and they were in 15 different states. A person in Oklahoma’s damages were capped at $150,000, while for pretty much the same person in Montana, there was no cap—and so the damages would be much more. Even in cases with severe injuries, state legislatures limit legitimate compensation for people, and it’s obviously unfair.

People can be exposed to some of the same bacteria that cause foodborne illness through environmental contamination, such as at a water park or other public recreation area. What are typical issues in these cases?

In food cases, it’s a product that you’re consuming that causes the illness, so you’re dealing with strict liability laws, which most states have. Once you’re able to prove that the product caused the injury, it’s really game over and becomes about damages. In environmental contamination, such as at water parks, swimming holes, or petting zoos, that falls in the negligence category. Whether it is a petting zoo that didn’t have adequate handwashing stations to reduce the risk of transmitting bacteria from the animals or a water park that wasn’t chlorinating or filtering the water appropriately, you need to find some act of negligence that caused the outbreak. That tends to be a much larger but not insurmountable challenge.

What are the most common misunderstandings you see about foodborne illness?

The biggest misunderstanding in food cases is the science behind incubation periods. Everyone’s convinced it was the last thing that they ate. It may well be something you ate two or three days ago. For example, I get a lot of calls from both victims and lawyers who say they or their client ate here and an hour later got sick with E. coli. Well, that isn’t the case because the incubation period between the time of ingestion and first symptoms is three to four days.

When evaluating a case, it’s always important to find out if the potential client had medical treatment and whether a stool culture or blood culture was done so you know what bacteria it is and have a fairly good understanding of what the time frame is—you’re looking for a common denominator. Figuring out what caused the illness is one of the major challenges.

The other big misunderstanding for consumers and even more so for businesses is that some of these cases can lead to devastating injuries. I’m representing a 19-year-old girl who has her whole life ahead of her, and she ate chicken salad that was tainted with E. coli. She spent four months in the hospital, had her large intestine removed, suffered multiple seizures, and her kidneys failed. Fortunately, she was able to get a kidney transplant—but kidneys last 10 to 15 years, and then you need another transplant. People don’t realize that foodborne illness can cause such severe, life-changing injuries.

Here is the link to the “200 Million Eggs Recalled Over Salmonella Concerns”

In one of the largest-ever recalls of eggs, Rose Acre Farms ordered 206 million eggs off of consumer shelves after health officials traced a salmonella outbreak to one of its farms in North Carolina. The product is the second major recall this year, with a separate warning out to consumers of romaine lettuce because of E. coli that has spread across seven states.

This year is the 25th anniversary of the “Jack in the Box” E. coli outbreak that spread across 73 stores, sickening over 700 people and contributing to four deaths. That outbreak changed how the U.S.D.A. and F.D.A. monitor food safety today and is part of the reason why the recent recalls of eggs and packaged lettuce can be seen as signs of regulatory success.

Ben Chapman, associate professor at North Carolina State University and co-host of the Food Safety Talk podcast, and Bill Marler, attorney specializing in food-borne illness, discuss the latest recall in the context of broader regulatory trends within the federal government.


Over the last 20 plus years I have given countless talks to food industry groups on the moral and business reasons to “not poison your customers.”  However, it has only been a handful of companies who have allowed me behind the curtain (at no charge) to talk directly, candidly and forcefully about the role of litigation as a agent of change in our food system.  Today, I had the honor to talk with the leaders at Walmart whose jobs it is to protect their customers around the world from the ravages of E. coli, Salmonella, Listeria and Hepatitis A.

A commitment to a culture dedicated to safe food lessens the chances of a food poisoning event, litigation and brand damage – all under the watchful gaze of Mr. Walton.