E. coli Outbreaks still a Risk in Leafy Greens

I spent the day is a well-run, informative, conference sponsored by Fresh Express (never sued them). The science was interesting and well presented. The bottom line however is there is far more research needed and the risks to consumers are still quite real in the consumption of “ready-to-eat” products. Here are some of the highlights from the scientists:

1. Contamination can spread during washing, cutting in the fields and the tumble drying of greens

2. Chlorinated water alone isn't enough to kill the pathogens.

3. Some varieties of spinach with textured leaves have greater potential for harboring pathogens than smooth-leaf varieties.

4. E. coli can paralyze pore closures (somata) on spinach leaves and allow bacteria into the plant.

5. Compost used inorganic operations can retain traces of live E. coli cells that can reconstitute under the right conditions.

6. Spinach and lettuce harvested on hotter days are more likely to create an environment for pathogen growth.

7. Lower product temperature, especially during transportation, lowers risk of bacterial growth.

8. Flies or other insects can excrete bacteria in their fecal droplets.

9.  It seems apparent that the E. coli bacteria is not absorbed by the roots into the plant structure.

OK, not much good news here. The only two areas that seemed hopeful was that some research on E. coli transmission found ozone gas is faster and more effective than chlorinated water at sanitizing leafy greens. And, although not mentioned until the last hour, irradiation of leafy greens can make food safer.

Bottom line – more work to do.
 

Posted on September 12, 2008 by Food Poisoning Attorney
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Grass-Fed vs Grain-Fed Beef and the Holy Grail: A Literature Review

Several people have commented that switching from grain to grass feeding could be one of the solutions to the problem with foodborne pathogens in cattle and other livestock. Quotes like these are becoming more common on the Internet and in recent media reports:

“Products from grass-fed animals are safer than food from conventionally-raised animals.”  Eatwild, 2008

“Research has shown that the strains of E. coli most devastating to humans are the product of feedlots, not cows. This is due to the animals being forced to eat an unnatural diet, and not their natural choice, grass.”  Grass-Fed Beef: Safer and Healthier, Animal Welfare Approved, June 15, 2008

If true, changing the cow’s diet would be such a simple and cheap management practice to implement. Have we found the Holy Grail for food safety? Below is some research I did on the topic.

OVERVIEW

• Identification of on-farm management practices that would reduce or eliminate foodborne pathogens in cattle and other livestock (including diet changes) is an active area of research, but many study results are inconclusive. E. coli O157:H7, Campylobacter, Salmonella, and other dangerous pathogens have been repeatedly isolated from both grass and grain fed livestock, and the studies show conflicting results regarding whether the levels of pathogens are higher, lower, or the same when animals are fed grass- or grain-based diets.

• There is no clear and consistent definition in the literature of “grass-fed,” but the majority of papers describe animals that are on pasture or confined, but receiving only hay-based diets. Last year, the USDA Agricultural Marketing Service issued a standard for grass (forage) fed marketing claims. More research on this topic is needed that compares rates of foodborne pathogens among grain and grass fed animals using a specific definition such as the USDA standard or other accepted definition.

• The original study by Diez-Gonzalez published in Science in 1998, and since cited numerous times in the literature and media, suggested that cattle could be fed hay for a brief period before slaughter to significantly reduce the risk of foodborne E. coli infection. They based this conclusion on a hypothesis that grain feeding increases acid resistance of E. coli in cattle. Although they showed increased acid resistance in E. coli from grain-fed cattle, but the sample size was small, and they used “generic” E. coli stains, not E. coli O157:H7.

• Studies by other researchers worldwide have since found little difference in acid resistant E. coli O157:H7 among grain- verses grass-fed cattle, and some even found more E. coli O157:H7 shed by grass-fed animals.

• It has been discovered that E. coli O157:H7 and Salmonella can rapidly switch from being “acid sensitive” to “acid resistant” within minutes after entering an acidic environment (such as the human stomach). Thus, even if the grass-fed/E. coli acid-resistance hypothesis were true, manipulating the diet may not have any effect since pathogens can adapt quickly to new environments like the human stomach.

• Outbreaks have traced back to grass-fed and pastured animals, as well as animals in feedlots. Notably, the E. coli O157:H7 spinach outbreak strain in 2006 was isolated from grass-fed cattle. Another outbreak of E. coli O157:H7 was linked recently to raw milk and colostrum from cattle raised organically on grass.

• In summary, the scientific evidence at this time does not support a broad conclusion that grass feeding significantly and consistently reduces the risk of E. coli O157:H7 or other dangerous foodborne pathogens entering the food chain. However, more research is needed into the influence of food animal diets. For example, preliminary experimental data shows a possible association between feeding dried distiller’s grains and shedding of E. coli O157:H7 in cattle feces.

INTRODUCTION

A systematic approach is necessary to combat the emerging challenges in food safety such as the unexplained “uptick” of E. coli O157:H7 outbreaks and recalls linked to beef products. Interventions to protect the food supply should ideally occur across the continuum from “farm to fork.” The “Holy Grail” of pre-harvest (farm-level) food safety would be to find an effective, affordable, and practical means to prevent or reduce food animals from shedding foodborne pathogens in the first place so the dangerous bacteria never enter the human food chain. Since cattle or other livestock may be located near drinking water sources or vegetable crops, a farm-level intervention could also help to protect nearby water and crops from contamination by manure via runoff, transport by wildlife/insects, or other mechanisms.

Oliver et al (2008) published a comprehensive review of developments and future outlooks for pre-harvest food safety this month. Examples of potential farm-level management practices that have been studied for E. coli O157:H7 and other foodborne pathogens in livestock include:

• Antibiotics
• Bacteriophages (viruses of bacteria)
• Dietary changes
• Immunization
• Probiotics or prebiotics in animal rations
• Sanitation/hygiene (feed, water, environment)
• Wildlife and insect control

Unfortunately, the best approaches for on-farm control of foodborne pathogens in livestock remain elusive. No single management practice, or even a combination of methods, has proven to be very effective or reliable in preventing foodborne pathogen colonization in livestock. Clearly, sanitation including clean feed/water sources and insect control are important, but difficult to maintain in a farm environment. Livestock immunizations are not available for most foodborne pathogens with the exception of an E. coli O157:H7 vaccine under development (and some ask “who would pay for such a program?” since cattle do not become ill from E. coli O157). Use of antibiotics is problematic because it can lead to resistance.

GRASS VERSUS GRAIN FEEDING

Definition of “Grass-Fed”

The majority of cattle are fed grass or other forage at some time during their lives. For the purpose of marketing, the USDA Agricultural Marketing Service issued a voluntary standard for grass (forage) fed marketing claims last year that states: “grass fed standard states that grass and/or forage shall be the feed source consumed for the lifetime of the ruminant animal, with the exception of milk consumed prior to weaning. The diet shall be derived solely from forage and animals cannot be fed grain or grain by-products and must have continuous access to pasture during the growing season.”

Note that most papers in the literature do not specifically define grass-fed using this new standard or any other specific definition, but differentiate, in general, between animals on forage (grass) only verses diets containing grain.

The Study that Started the Controversy

The original study that launched the controversy over grain feeding was published in Science in 1998 by researchers from Cornell (Diez-Gonzalez et al). They described potential dietary effects on the acid resistance of E. coli in cattle fed grain- versus hay-based diets. This study has since been cited numerous times in the literature and media, but later studies have not been able to reproduce the findings. This may be due, in part, to several limitations in the original study design including: 1) small sample size and 2) “Generic” E. coli levels were measured, not E. coli O157:H7.

In 2006, Hancock and Besser wrote a summary of the evidence surrounding the hypothesis that feeding hay instead of grain would reduce the problem with E. coli O157:H7, purportedly because the stomachs of grain-fed cattle are more acidic. They concluded: “while one cannot rule out a role of cattle diet on affecting exposure and infectivity of E. coli O157:H7 to humans, the data available at present demonstrate that cattle on a wide variety of diets (including 100% forage diets) are regularly and similarly colonized with this pathogen.”

Another interesting study from a research group in The Netherlands discovered that E. coli O157:H7 and Salmonella can rapidly switch from being “acid sensitive” to “acid resistant” within minutes after entering an environment with reduced pH (such as the human stomach). Thus, even if the grass-fed hypothesis were true, manipulating the diet may not have any effect since E. coli O157:H7 can adapt quickly to new environments like the human stomach.

Recent Findings in the Literature

In searching through the literature since Hancock and Besser’s review, several new papers relevant to the discussion were found.

1. Nutritional aspects of grass-fed beef.

Leheska, J. M., L. D. Thompson, J. C. Howe, E. Hentges, J. Boyce, J. C. Brooks, B. Shriver, L. Hoover, and M. F. Miller. 2008. Effects of conventional and grass feeding systems on the nutrient composition of beef. J Anim Sci.

• This paper explores the question about whether there are differences in nutrient composition of grass-fed beef compared with conventional (grain)-fed beef. Researchers have previously found higher omega-3 fatty acids and CLA (conjugated linoleic acid) in forage-fed beef, and lower fat content overall. Some consumers prefer eating grass-fed meat because they believe it is “healthier,” and/or tastes better than conventional beef.

• The authors of this study enrolled only producers that were marketing grass-fed beef and confirmed that “100% of the diets were made up of native grasses, forages, or cut grasses or forages.”

• Fatty acid composition of grass-fed and conventional-fed beef was found to be different, but the authors conclude “the effects of the lipid differences between grass-fed and conventional raised beef, on human health, remains to be investigated.”

2. Papers continue to be published about possible effects of diet on E. coli O157:H7 prevalence and concentration.

For example, a research team from Kansas State University reported that feeding distillers grains, a co-product of ethanol production, to feedlot cattle may have a positive association with fecal shedding of E. coli O157. The mechanism is unknown, but they hypothesize that the grains change the ecology of the hindgut where E. coli O157 is most likely to colonize cattle. The authors report that larger studies are underway to investigate this possible link.

CONCLUSIONS

In summary, the scientific evidence at this time does not support a broad conclusion that grass feeding significantly reduces the risk of E. coli O157:H7 or other dangerous foodborne pathogens from entering the food chain. However, more research is needed to better understand the influence of diet, especially the use of different types of grains in animal feed.

REFERENCES BELOW

1. Bach, S. J., L. J. Selinger, K. Stanford, and T. A. McAllister. 2005. Effect of supplementing corn- or barley-based feedlot diets with canola oil on faecal shedding of Escherichia coli O157:H7 by steers. J Appl Microbiol 98:464-75.

2. Bailey, G. D., B. A. Vanselow, M. A. Hornitzky, S. I. Hum, G. J. Eamens, P. A. Gill, K. H. Walker, and J. P. Cronin. 2003. A study of the foodborne pathogens: Campylobacter, Listeria and Yersinia, in faeces from slaughter-age cattle and sheep in Australia. Commun Dis Intell 27:249-57.

3. Berg, J., T. McAllister, S. Bach, R. Stilborn, D. Hancock, and J. LeJeune. 2004. Escherichia coli O157:H7 excretion by commercial feedlot cattle fed either barley- or corn-based finishing diets. J Food Prot 67:666-71.

4. Brownlie, L. E., and F. H. Grau. 1967. Effect of food intake on growth and survival of salmonellas and Escherichia coli in the bovine rumen. J Gen Microbiol 46:125-34.

5. Buchko, S. J., R. A. Holley, W. O. Olson, V. P. Gannon, and D. M. Veira. 2000. The effect of different grain diets on fecal shedding of Escherichia coli O157:H7 by steers. J Food Prot 63:1467-74.

6. Callaway, T. R., R. O. Elder, J. E. Keen, R. C. Anderson, and D. J. Nisbet. 2003. Forage feeding to reduce preharvest Escherichia coli populations in cattle, a review. J Dairy Sci 86:852-60.

7. Centers for Disease Control and Prevention. 2008. Escherichia coli 0157:H7 infections in children associated with raw milk and raw colostrum from cows--California, 2006. MMWR Morb Mortal Wkly Rep. 57:625-8.

8. Cray, W. C., Jr., T. A. Casey, B. T. Bosworth, and M. A. Rasmussen. 1998. Effect of dietary stress on fecal shedding of Escherichia coli O157:H7 in calves. Appl Environ Microbiol 64:1975-9.

9. de Jonge, R., K. Takumi, W. S. Ritmeester, F. M. van Leusden. 2003. The adaptive response of Escherichia coli O157 in an environment with changing pH. J Appl Microbiol. 94:555-60.

10. Depenbusch, B. E., T. G. Nagaraja, J. M. Sargeant, J. S. Drouillard, E. R. Loe, and M. E. Corrigan. 2008. Influence of processed grains on fecal pH, starch concentration, and shedding of Escherichia coli O157 in feedlot cattle. J Anim Sci 86:632-9.

11. Diez-Gonzalez, F., T. R. Callaway, M. G. Kizoulis, and J. B. Russell. 1998. Grain feeding and the dissemination of acid-resistant Escherichia coli from cattle. Science 281:1666-8.

12. Djordjevic, S. P., V. Ramachandran, K. A. Bettelheim, B. A. Vanselow, P. Holst, G. Bailey, and M. A. Hornitzky. 2004. Serotypes and virulence gene profiles of shiga toxin-producing Escherichia coli strains isolated from feces of pasture-fed and lot-fed sheep. Appl Environ Microbiol 70:3910-7.

13. Doyle, M. P., and M. C. Erickson. 2006. Reducing the carriage of foodborne pathogens in livestock and poultry. Poult Sci 85:960-73.

14. Fegan, N., P. Vanderlinde, G. Higgs, and P. Desmarchelier. 2004. The prevalence and concentration of Escherichia coli O157 in faeces of cattle from different production systems at slaughter. J Appl Microbiol 97:362-70.

15. Fox, J. T., B. E. Depenbusch, J. S. Drouillard, and T. G. Nagaraja. 2007. Dry-rolled or steam-flaked grain-based diets and fecal shedding of Escherichia coli O157 in feedlot cattle. J Anim Sci 85:1207-12.

16. Franz, E., A. D. van Diepeningen, O. J. de Vos, and A. H. van Bruggen. 2005. Effects of cattle feeding regimen and soil management type on the fate of Escherichia coli O157:H7 and salmonella enterica serovar typhimurium in manure, manure-amended soil, and lettuce. Appl Environ Microbiol 71:6165-74.

17. Fu, C. J., J. H. Porter, E. E. Felton, J. W. Lehmkuhler, and M. S. Kerley. 2003. Pre-harvest factors influencing the acid resistance of Escherichia coli and E. coli O157:H7. J Anim Sci 81:1080-7.

18. Gilbert, R. A., S. E. Denman, J. Padmanabha, N. Fegan, D. Al Ajmi, and C. S. McSweeney. 2008. Effect of diet on the concentration of complex Shiga toxin-producing Escherichia coli and EHEC virulence genes in bovine faeces, hide and carcass. Int J Food Microbiol 121:208-16.

19. Gilbert, R. A., N. Tomkins, J. Padmanabha, J. M. Gough, D. O. Krause, and C. S. McSweeney. 2005. Effect of finishing diets on Escherichia coli populations and prevalence of enterohaemorrhagic E. coli virulence genes in cattle faeces. J Appl Microbiol 99:885-94.

20. Grauke, L. J., S. A. Wynia, H. Q. Sheng, J. W. Yoon, C. J. Williams, C. W. Hunt, and C. J. Hovde. 2003. Acid resistance of Escherichia coli O157:H7 from the gastrointestinal tract of cattle fed hay or grain. Vet Microbiol 95:211-25.

21. Hancock, D. and T. Besser. 2006. E. coli O157:H7 in hay- or grain-fed cattle. Accessed at: http://www.puyallup.wsu.edu/dairy/nutrient-management/data/publications/E%20coli%20O157%20in%20hay-%20or%20grain-fed%20cattle%20Hancock%20and%20Besser%2011%2006.pdf

22. Hovde, C. J., P. R. Austin, K. A. Cloud, C. J. Williams, and C. W. Hunt. 1999. Effect of cattle diet on Escherichia coli O157:H7 acid resistance. Appl Environ Microbiol 65:3233-5.

23. Hussein, H. S. 2007. Prevalence and pathogenicity of Shiga toxin-producing Escherichia coli in beef cattle and their products. J Anim Sci 85:E63-72.

24. Jacob, M. E., J. T. Fox, J. S. Drouillard, D. G. Renter, and T. G. Nagaraja. 2008. Effects of dried distillers' grain on fecal prevalence and growth of Escherichia coli O157 in batch culture fermentations from cattle. Appl Environ Microbiol 74:38-43.

25. Jacob, M. E., J. T. Fox, S. K. Narayanan, J. S. Drouillard, D. G. Renter, and T. G. Nagaraja. 2008. Effects of feeding wet corn distillers grains with solubles with or without monensin and tylosin on the prevalence and antimicrobial susceptibilities of fecal foodborne pathogenic and commensal bacteria in feedlot cattle. J Anim Sci 86:1182-90.

26. Jacob, M. E., G. L. Parsons, M. K. Shelor, J. T. Fox, J. S. Drouillard, D. U. Thomson, D. G. Renter, and T. G. Nagaraja. 2008. Feeding supplemental dried distiller's grains increases faecal shedding of Escherichia coli O157 in experimentally inoculated calves. Zoonoses Public Health 55:125-32.

27. Jay, M. T., M. Cooley, D. Carychao, G. W. Wiscomb, R. A. Sweitzer, L. Crawford-Miksza, J. A. Farrar, D. K. Lau, J. O'Connell, A. Millington, R. V. Asmundson, E. R. Atwill, and R. E. Mandrell. 2007. Escherichia coli O157:H7 in feral swine near spinach fields and cattle, central California coast. Emerg Infect Dis 13:1908-11.

28. Krueger, N. A., R. C. Anderson, W. K. Krueger, W. J. Horne, I. V. Wesley, T. R. Callaway, T. S. Edrington, G. E. Carstens, R. B. Harvey, and D. J. Nisbet. 2008. Prevalence and Concentration of Campylobacter in Rumen Contents and Feces in Pasture and Feedlot-Fed Cattle. Foodborne Pathog Dis.

29. Kudva, I. T., P. G. Hatfield, and C. J. Hovde. 1995. Effect of diet on the shedding of Escherichia coli O157:H7 in a sheep model. Appl Environ Microbiol 61:1363-70.

30. Leheska, J. M., L. D. Thompson, J. C. Howe, E. Hentges, J. Boyce, J. C. Brooks, B. Shriver, L. Hoover, and M. F. Miller. 2008. Effects of conventional and grass feeding systems on the nutrient composition of beef. J Anim Sci.

31. Looper, M. L., T. S. Edrington, R. Flores, J. M. Burke, T. R. Callaway, G. E. Aiken, F. N. Schrick, and C. F. Rosenkrans, Jr. 2007. Influence of dietary endophyte (Neotyphodium coenophialum)-infected tall fescue (Festuca arundinacea) seed on fecal shedding of antibiotic resistance-selected Escherichia coli O157:H7 in ewes. J Anim Sci 85:1102-8.

32. Looper, M. L., T. S. Edrington, R. Flores, C. F. Rosenkrans, Jr., M. E. Nihsen, and G. E. Aiken. 2006. Prevalence of Escherichia coli O157:H7 and Salmonella in beef steers consuming different forage diets. Lett Appl Microbiol 42:583-8.

33. Oliver, S. P., D. A. Patel, T. R. Callaway, and M. E. Torrence. 2008. ASAS Centennial Paper: Developments and future outlook for preharvest food safety. J Anim Sci.

34. Renter, D. G., J. M. Sargeant, and L. L. Hungerford. 2004. Distribution of Escherichia coli O157:H7 within and among cattle operations in pasture-based agricultural areas. Am J Vet Res 65:1367-76.

35. Renter, D. G., J. M. Sargeant, R. D. Oberst, and M. Samadpour. 2003. Diversity, frequency, and persistence of Escherichia coli O157 strains from range cattle environments. Appl Environ Microbiol 69:542-7.

36. Russell, J. B., F. Diez-Gonzalez, and G. N. Jarvis. 2000. Invited review: effects of diet shifts on Escherichia coli in cattle. J Dairy Sci 83:863-73.

37. Russell, J. B., F. Diez-Gonzalez, and G. N. Jarvis. 2000. Potential effect of cattle diets on the transmission of pathogenic Escherichia coli to humans. Microbes Infect 2:45-53.

38. Sargeant, J. M., J. R. Gillespie, R. D. Oberst, R. K. Phebus, D. R. Hyatt, L. K. Bohra, and J. C. Galland. 2000. Results of a longitudinal study of the prevalence of Escherichia coli O157:H7 on cow-calf farms. Am J Vet Res 61:1375-9.

39. Tkalcic, S., C. A. Brown, B. G. Harmon, A. V. Jain, E. P. Mueller, A. Parks, K. L. Jacobsen, S. A. Martin, T. Zhao, and M. P. Doyle. 2000. Effects of diet on rumen proliferation and fecal shedding of Escherichia coil O157:H7 in calves. J Food Prot 63:1630-6.

40. Van Baale, M. J., J. M. Sargeant, D. P. Gnad, B. M. DeBey, K. F. Lechtenberg, and T. G. Nagaraja. 2004. Effect of forage or grain diets with or without monensin on ruminal persistence and fecal Escherichia coli O157:H7 in cattle. Appl Environ Microbiol 70:5336-42.
Posted on August 30, 2008 by Bill Marler
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My interview on Progressive Talk Radio

Marler Radio InterviewI recently did an interview with Don Riggs, the host of Introspect Northwest, which airs on KMPS-FM 94.1 at 6:00 a.m. on Sunday, and on KPTK-AM 1090 at 9:00 a.m. on Sunday.  Don and I talked about food poisoning lawsuits during our interview.  You can listen in on Sunday at 9 a.m. here:  radiotime.com
Posted on December 13, 2007 by Bill Marler
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Bill Marler: Food Safety Czar?

Food Safety CzarSpeechwriter/Ghostwriter Jane Genova recently posted on her blog that she thinks Hillary Clinton will win the Whitehouse and when she does, I should be appointed Food Safety Czar: 

I have someone in mind for the job of food-safety czar.  It's Bill Marler of Marler Clark Law firm. Actually Hillary might already know Marler, a plaintiff attorney specializing in food-borne diseases.  Marler was among the coalition of experts who helped create a new system after the E-Coli outbreak early in Bill Clinton's first administration.  The new president was delivering a televised town meeting when a couple whose child ate some of that contaminated meat spoke up. That child later died.

I worked with former President Bill Clinton to arrange congressional hearings and victim testimony after the Jack in the Box E. coli outbreak in 1993. What we needed – and still need – was change in our food safety system. Significant change. 

What we got then was a classification of E. coli O157:H7 as an adulterant in meat products. A good step in the right direction. What we need now is a single agency responsible for food safety – one that has the power to shut down processing plants and recall contaminated food products, among other things.

“Bill Marler: Food Safety Czar” does have a nice ring to it, but since I don’t think my wife and kids would let me move them to Washington, D.C. here’s my offer: When the Democrats win the Whitehouse and create a single food safety agency, and when companies stop poisoning people, I’ll stop calling for Congressional hearings on food safety and asking the food industry to “put me out of business.” 

Posted on October 11, 2007 by Bill Marler
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Seminar: Food Safety in the U.S. - Does Litigation Help?

On June 16, 2005, I discussed during a seminar at the University of Guelph why processors, ingredient suppliers, restaurant operators, and any operations involved in the growth, processing, and distribution of food products should understand the legal consequences and dangers of what may happen when foodborne illness strikes as a result of one of their products sold in the U.S. I discussed issues such as liability and how it is determined, the discovery process, and the importance of open communications in the event of an outbreak.

A copy of the Powerpoint presentation is available at http://www.foodsafetynetwork.ca/food/fslitigation.pdf

Posted on July 15, 2005 by Marler Lawyer
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Foodborne Illness

The Centers for Disease Control and Prevention (CDC) estimates that each year 76 million - or one out of every four - Americans are sickened as a result of consuming contaminated foods or beverages. Some become seriously ill; 325,000 require hospitalization and 5,000 die. Older adults, young children, and those who have weakened immune systems are particularly vulnerable.

More than 250 different foodborne diseases have been identified. Most of these diseases are infections caused by a variety of bacteria, viruses, and parasites.

Foods that are contaminated with poisonous chemicals or harmful substances can also cause illness. Symptoms of foodborne illness vary by disease but the most common are nausea, vomiting, abdominal cramps, and diarrhea.

I have some of the symptoms described. Do I have a foodborne illness?

Possibly. For example, scientists estimate that 35% of diarrheal illness is caused by a foodborne pathogen. Diarrhea that is caused by food poisoning usually lasts one week or less. Symptoms that appear suddenly are a sign of foodborne illness, although the last food consumed is not necessarily the cause of illness. Different microbes have different incubation periods. The incubation period refers to the time between ingestion and onset of symptoms.

Incubation Periods of Common Foodborne Pathogens

PATHOGEN INCUBATION PERIOD
Staphylococcus aureus1 to 8 hours, typically 2 to 4 hours.
Campylobacter 2 to 7 days, typically 3 to 5 days.
E. coli O157:H7 1 to 10 days, typically 2 to 5 days.
Salmonella 6 to 72 hours, typically 18-36 hours.
Shigella 12 hours to 7 days, typically 1-3 days.
Hepatitis A 15 to 50 days, typically 25-30 days.
Listeria 3 to 20 days, typically 14 days
Norovirus 24 to 72 hours, typically 36 hours.

How can I find out if I am sick because of something I ate or drank?

Foodborne infections are usually diagnosed by laboratory tests that identify the organism. Bacteria such as E. coli O157:H7, Salmonella, Shigella, and Campylobacter are found by microbiologic testing of the ill person's stool. Parasites can be identified by examining stool specimens under the microscope. Laboratory testing to detect viruses requires stool specimens or serum derived from blood samples. Many foodborne infections are not detected through routine laboratory procedures and health care providers must order appropriate testing before the cause can be identified.

Should I see a doctor if I think I have a foodborne illness?

A person with symptoms of a foodborne illness should seek prompt medical attention if there is blood in the stools, if they are experiencing prolonged vomiting or show signs of dehydration, if diarrhea last 3 days or more or if diarrhea lasts more than 3 days. Anyone at risk for serious consequences - the very young, the very old, or those with immune impairment - should consult a health care provider if symptoms do not improve after 24 hours.

What else should I do?

If you think you have a foodborne illness contact your local health department. They will ask you questions about your symptoms, when they started, and what you have eaten for several days prior to symptom onset. Because some of the organisms that cause illness can be spread by ways other than food, they will ask you about other potential sources such as contact with others with similar symptoms or exposure to animals. This distinction is important so that public health authorities can if necessary, take steps to stop others from becoming ill.

If you know others who have similar symptoms, urge them to contact the health department. Oftentimes, information compiled from a group of individuals provides clues to the source of illness that can be missed when only one person reports to the health department.

If you suspect that your illness is food related, keep any left over food for possible testing. If laboratory tests show the food was contaminated, you will have powerful evidence that the food is the likely cause of your illness. The health department will advise you about any laboratory tests that should be conducted and how long food should be kept. Similarly, keep retail or restaurant receipts showing that you purchased the suspected food. Receipts often contain valuable pieces of information about a food product that the consumer does not know or cannot recall.

Common myths of foodborne illness

As you attempt to determine if you have a foodborne illness and what the potential source could be, avoid these common misconceptions.

The last thing I ate is what made me sick.

Not necessarily. Refer to the table that shows how long it takes for certain microbes to grow inside your body and cause illness. Write down what you ate, where you ate, and when you ate in as much detail as possible. Health department investigators will ask you for this information and accurate recall is critical.

If other people ate what I ate and did not become ill, that particular meal could not be the source of my illness.

Not necessarily. It is well documented that microbes that cause foodborne illness are not always uniformly distributed in a food item. Also, people have different immune systems. One person may consume hamburger prepared from a package of ground beef and become seriously ill with E. coli O157:H7 or Salmonella while his dining companion consumes ground beef from the same package and remains healthy.
Posted on July 6, 2005 by Marler Lawyer
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What to do about the "Mad Cow"

According to a recent article written by the Associated Press, The Food and Drug Administration had promised in January 2004 to close loopholes in a ban on putting cattle remains in cattle feed. However, according to the article, the loopholes seem to remain:

  • Ground-up cattle remains can be fed to chicken, and chicken litter is fed back to cattle. Poultry feed that spills from cages mixes with chicken waste on the ground, then is swept up for use in cattle feed.

  • Cattle blood can be fed to cattle and often comes in the form of milk replacement for calves.

  • Restaurant leftovers, called "plate waste," are allowed in cattle feed.

  • Factories are not required to use separate production lines and equipment for feed that contains cattle remains and feed that does not, creating the risk that cattle remains could accidentally go into cattle feed.

  • Besides being fed to poultry, cattle protein is allowed in feed for pigs and household pets, creating the possibility it could mistakenly be fed to cattle.

  • Unfiltered tallow, or fat, is allowed in cattle feed, yet it has protein impurities that could be a source of mad cow disease.

One would think tough enforcement is in order on the feeding of animal parts to other animals that are eventually consumed by humans. This should be a "no brainer."

While the incubation period for most food borne pathogens is a matter of days, and human symptoms of hepatitis-A infection frequently do not show up for over a month, symptoms of "Mad Cow," or the human variant known as Creutzfeldt-Jakob Disease, may not appear for decades. Because we should not have to worry about the meat we eat today, and the impact that it could have on us days or decades from now, we need stronger and more aggressive regulation and enforcement by the Government, specifically the USDA. This arm of the government must do everything it can to protect the consuming public from tainted product and to protect the US meat industry from economic suicide.

While European countries have resorted to testing massive numbers of cows to both establish the prevalence of BSE and to eradicate the disease, the has USDA limited testing to less than 20,000 animals out of a US herd of millions. We also have the ability to cheaply and scientifically test meat for a whole host of contaminates before it hits our plate. Europe requires testing for "Mad Cow" for nearly every cow slaughtered. Testing for all pathogens should happen at every stage of production - from "farm to fork."

We have the ability to live up to the billing of the safest food supply in the world. The question is whether another "Mad Cow" crisis will be the catalyst that finally starts the reform necessary to stop making US consumers ill and to regain the confidence of the World in our food supply.
Posted on June 20, 2005 by Marler Lawyer
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Meat safety still a hot-button issue

The Associated Press did an interesting article on a Montana man named John Munsell who wants out of the meat processing business and is trying to sell the meat processing plant his father started decades ago. All of this comes after the ConAgra recall and the USDA's claims that his plant's food protection efforts are lax.

From the article:

In early 2002, a U.S. Department of Agriculture inspector found beef contaminated with the potentially deadly E. coli O157:H7 bacteria at Munsell's plant. He insisted that contaminated meat didn't come from his own plant and accused the USDA of failing to trace the beef to the large meatpacker who sent it to him.

Munsell said he told the USDA he knew the tainted beef came from ConAgra, but contends the agency didn't follow up. An FSIS official, in testimony before a congressional field hearing in December 2002, said the source of contamination couldn't be identified because Munsell's records couldn't "definitively verify" a single beef source was used.

Munsell claims that after he criticized the USDA's investigation, the agency retaliated by demanding he rewrite repeatedly a plan detailing possible hazards and controls at his plant.

The article goes on to discuss changes made by the FSIS and the decline in E. coli recalls since the ConAgra outbreak:

Steven Cohen, an FSIS spokesman, said the agency has enacted numerous changes since the E. coli outbreak, including improved training for inspectors and requiring greater accountability from supervisors. Plants that do their own testing are no longer exempt from agency testing, and FSIS is moving toward increased testing at higher-volume facilities, he said.

The ConAgra outbreak was a major tipping point for the meat industry and its commitment to dealing with E. coli, said Bill Marler, an attorney who's handled e. coli cases and represented many who ate tainted beef in 2002.

But not everyone agrees that America's food supply is safer.

Barbara Kowalcyk, a biostatistician and president-elect of the group Safe Tables Our Priority, refuses to read too much into the figures. Kowalcyk -- whose toddler son, Kevin, died in 2001 due to E. coli -- says it's still unclear how much credit the industry deserves.

"To say that the overall incidence is down and that meat is safer, I don't think is accurate," she said.

Posted on June 17, 2005 by Marler Lawyer
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Seminar: Food safety in the U.S.? does litigation help?

Thursday, June 16, 2005
12:30 -- 1:30 pm
OVC Learning Centre
Room 1715
University of Guelph

I will discuss why processors, ingredient suppliers, restaurant operators, and any operations involved in the growth, processing, and distribution of food products should understand the legal consequences and dangers of what may happen when foodborne illness strikes as a result of one of their products sold in the U.S. I will discuss issues such as liability and how it is determined, the discovery process, and the importance of open communications in the event of an outbreak.

For further information, please contact Doug Powell at 519-835-3015 or
dpowell@uoguelph.ca.

Posted on June 16, 2005 by Marler Lawyer
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How to Keep Your Focus on Food Safety

Recently the media has focused public attention on a one inch piece (uncooked) of a finger found in the chili at a fast-food restaurant. Claims and counterclaims have flown. But, at this writing, most indications point to a grotesque hoax.

It's too bad that some people make bogus, unsupportable claims of food-borne illness. But they do, and that means that health officials -- and lawyers -- need reliable criteria for identifying illegitimate claims.

At the same time, the food industry tends to over-emphasize, and thus over react to such claims. Such a strategy can lead to the denial of legitimate complaints. Denying legitimate claims increases the likelihood of overlooking real problems with food safety. And overlooking real problems increases the risk of health code violations, of poisoning consumers, costly litigation and public relations headaches.

So how does one distinguish between legitimate and illegitimate or unsupported claims of food poisoning? On a slow day, my firm gets about 25 emails and phone calls from prospective clients. We reject about 95% of them -- mostly on the basis of a few basic criteria, such as the following:

Incubation Period

Incubation periods the time between ingestion of a foodborne pathogen and the onset of symptoms are only ranges, and wide ones at that. But they can serve as a first test in assessing a claim. And incubation periods are generally measured in days. Here are some typical incubation periods:

PATHOGENINCUBATION PERIOD

Staphylococcus aureus 1 to 8 hours, typically 2 to 4 hours.
Campylobacter 2 to 7 days, typically 3 to 5 days.
E.coli O157:H7 1 to 10 days, typically 2 to 5 days.
Salmonella 6 to 72 hours, typically 18-36 hours.
Shigella 12 hours to 7 days, typically 1-3 days.
Hepatitis A 15 to 50 days, typically 25-30 days.
Listeria 3 to 20 days, typically 21 days
Norovirus 24 to 72 hours, typically 36 hours.

For example, consider this recent query from a consumer:

After getting out of church yesterday morning, I stopped at [a restaurant] to grab a sandwich, just a double cheese [sandwich], and a small Dr. Pepper at 12:02 pm. I still have my receipt. I had not eaten anything prior to eating the sandwich, and I still am unable. Within two hours of eating that sandwich I became very ill. My fever went up from 98.6 to 100.2; I got diarrhea, stomach cramps, headache and chills. I am still very sick, I'm very weak, I can't really eat anything, and I'm having chills. I'm at work trying to work and I feel like crap...I don't know what to do, I called the restaurant and the manager is supposed to be calling me back when he gets in. Can you please help me?

A quick consultation of the chart above suggests that this persons lunch from this restaurant is likely not the source of his illness. The incubation period is too short. A diagnosis of Salmonella, Shigella, Campylobacter, or E. coli O157:H7, for example, all of which have incubation periods longer than two hours, would effectively rule out the meal as a source of the illness. It is possible that the person became ill after ingesting Staphylococcus aureus, but given the prevalence of the bug, and without knowledge of multiple ill persons, this would be very difficult to establish in court...

The Food Looked/Smelled/Tasted Funny

Here is another case we turned away:

I have recently read articles and lawsuits that you have pursued regarding contaminated food. I am hoping that you may be able to give me your professional advice or recommendation. My husband recently opened a bottle of salsa and smelled an unusual odor but chose to eat it regardless, thinking that it was just his nose. After taking two bites and tasting rather badly, he found what appeared to be a rather large piece (approx. the size of the back of an adult's fist) of human or animal flesh. Even though he didn't seek medical attention, he did become very nauseated. I do feel that the manufacturer should be held responsible for this mishap. Thank you for your time and consideration.

In most situations, harmful bacteria are not detectable by the consumer. So customers who complain that they know they got a food-borne illness from a particular meal because the food tasted funny are probably wrong.

However, consumers with legitimate complaints tend to retroactively assign a negative connotation to a meal once the health department has identified it as a source of an outbreak. This common instinct should not undermine an otherwise viable claim. But a claim that something tasted funny, without other proof linking a particular food to illness, remains suspicious.

Gross-Out Claims

This is the finger-in-the-chili case. While certainly not the type of thing a food provider may want on the evening news, claims centered on finding, but not eating, some undesirable agent in food rarely have value in court. Consider this case:

I opened a box of Buffalo wings and dumped them out on a plate to be cooked in the microwave. An unusually shaped piece caught my eye and I picked it up. When I saw that the "piece" had a beak, I got sick to my stomach. My lunch and diet coke came up and I managed to christen my carpet, bedding and clothing. I want them to at least pay for cleaning my carpet etc. What do you think?

We thought the incident was suspect, so we did not take it.

Not all complaints are either clearly compelling or clearly illegitimate. At Marler Clark, we use four methods for evaluating a claim of food-borne illness:

1. The Health Department Investigation of an Outbreak

While statutes and regulations vary from state to state, there are a number of bacterial and viral illnesses associated with food consumption that are monitored by health departments, including E. coli O157:H7, Campylobacter, Salmonella, Shigella, Listeria, Norovirus, and Hepatitis A. For most of these pathogens, a positive lab result from a human sample (blood or stool), triggers a mandatory report to the local health department and some type of follow-up investigation.

The length, breadth, and paperwork involved in any investigation varies depending on the pathogen involved, the type of food, the number of persons who are or may be sick, the local jurisdiction, and other factors. In most situations, the results of the investigation are either made public by the health authorities or can be obtained through public records acts like the Freedom of Information Act (5 U.S.C. 552 et. seq.). It is very difficult to dispute a Health Department Confirmed Outbreak or Isolated Case.

In litigating thousands of food poisoning claims arising out of dozens of outbreaks, many defendants have taken issue with some or all of the health department's conclusions regarding the outbreak. None of these defendants, however, have yet avoided liability where the health department concluded that the defendant's food was the source of a given outbreak.

One likely reason for this is that, in general, health departments do good and careful work. Despite the occasional disagreement of the pinpointed member of the food service industry, most would agree that health departments are rather cautious and conservative. In our experience, health departments do not prematurely label an entity as the source of an outbreak.

In addition, health departments are operating with a much higher burden of proof than the civil justice system. Most epidemiologists will not confirm an outbreak without 95% confidence in a particular conclusion. This makes it very difficult to convince a jury that health officials have erred in their investigations.

Finally, it has also been our experience that jurors are more likely to accept the neutral determinations of health officials rather than the opinions of paid expert witnesses.

That credibility can favor either side. I health investigators conclude that a claimants illness did not come from a particular source, the plaintiff will face the same uphill battle in court. Although this scenario occurs infrequently, it is possible for a plaintiff to make a claim for damages. In these cases, reliable expert opinion or examination of the health department investigators themselves can establish the source of a plaintiff's illness with sufficient certainty to meet the legal burden of proof.

2. Prior Health Inspections/Violations

One extraordinarily effective tool in establishing the defectiveness of a product that no longer exists is to obtain documentation of a restaurants track record. This may include information regarding prior incidents or accusations of food contamination and prior inspections of the facility and the establishment's food production and service procedures.

Supportive documents can be acquired through the discovery process or through the Freedom of Information Act. The uncovered documents will help the plaintiff make his case in a variety of ways. Sometimes, there may be documentation of improper food handling procedures that can circumstantially prove the manner of contamination. In other situations, a list of improper techniques and code violations can serve as a tool for limiting a defendants trial options, or it can position a case for early and favorable settlement.

Finally, particularly egregious or repetitive examples of improper food handling techniques can build a punitive damages case, where such damages are available.

3. Identifying the Improper Procedure that Led to the Contamination of the Food

It is rare for lawyers or investigators to arrive on the scene of alleged contamination in time to recover contaminated leftovers. But this missing piece of the puzzle can be supplied by identifying specific errors in the preparation of the suspected food or foods.

For example, in 2001 a young girl suffered a particularly severe E. coli O157:H7 infection that left her with permanent kidney damage. The little girl had eaten a hamburger purchased from a southern California fast-food chain. Hamburgers have been commonly viewed as the source of E. coli O157:H7 infections in humans and nothing else in the girls food history was a likely source of the infection. By the time health department officials investigated, however, the suspect meat was long gone and investigators failed to find any food on site that tested positive for E. coli O157:H7.

A thorough review of the restaurants current and prior inspections though, revealed a serious flaw in the firms cooking method that provided an explanation for the client's exposure.

According to the inspection report:

Hamburger buns are toasted on the grill immediately adjacent to the cooking patties, and it is conceivable that, early in the cooking process, prior to pasteurization, meat juices and blood containing active pathogens might possibly splash onto a nearby bun.

On six separate occasions spanning three years, the management of the restaurant had been advised of the dangers of the hamburger buns being contaminated by hamburger juices. The plaintiff's expert also reviewed the prior inspection reports and concluded that the chains cooking methods presented a high risk of cross contamination. The matter settled shortly after the presentation of this information.

In a 2002 case, a Chinese restaurant in Ohio was the suspected source of an E. coli O157:H7 outbreak. There was no leftover food, and the buffet-style serving made it difficult to identify a single source. However, many of the sickened patrons were children, and it began to appear that the culprit food might in fact be Jell-O. A previous health department investigation report provided the answer to the obvious question: how might Jell-O have become the source of an E. coli O157:H7 outbreak? The report noted a host of food handling errors in the restaurant, none more important than this one: raw meat stored above the Jell-O in the refrigerator. Officials concluded that the likely source of E. coli O157:H7 in the Jell-O was from raw meat juices dripping on the Jell-O while it was solidifying in the refrigerator. Once this report surfaced, the defendant never seriously contested liability.

Another example: In 2003, a group of people became ill after attending a banquet hosted by a restaurant in Washington State. Many of the guests tested positive for Salmonella, but leftover food had either been discarded or had tested negative. But health officials leaned that the establishment had violated state food regulations by pooling dozens, if not hundreds, of raw eggs in a single bucket for storage overnight. This process allows bacterial contamination from a single egg to taint exponentially larger amounts of food, thereby placing many more consumers at risk. The establishment subsequently used the raw eggs as a wash on a specialty dessert. Then, once again in violation of food code, the food workers failed to cook the egg thoroughly. When these actions were taken together with the fact that raw eggs are a particularly notorious source of Salmonella, the smoking gun was back in the defendant's hands

4. Medical Records - What medical evidence can make or break a case?

Four types of medical records can help establish the credibility of a claim.

First, of course, are laboratory tests. Stool cultures, and less commonly blood cultures, can identify the specific pathogen causing a claimants illness. These tests and their impact on subsequent legal claims are discussed at length below.

In reviewing a claim, it is important to recognize that laboratory testing is not always ordered by health care providers.

Secondly, records can show whether the symptoms of food-borne illness match the expected incubation period. As discussed earlier, each foodborne pathogen carries with it an expected incubation period the amount of time expected to transpire between exposure to the pathogen and the onset of symptoms. The incubation period can encompass a significant period of time, and can thus lessen the effectiveness in a given situation. Nevertheless, it can still be useful.

For example, people often assume that the last meal they consumed before falling ill was the culprit. With many pathogens, however, this is unlikely. The typical incubation for E. coli O157:H7 is 2-7 days, with a reported range of one day to 20 days.

Thirdly, investigators can match symptoms with typical profiles of a given pathogen, or given outbreak. Most common bacterial and viral pathogens found in food share similar symptoms -- nausea, vomiting, diarrhea, fever, aches, chills, and the like. Various pathogens can have more typical courses. While these cannot be used alone to determine the pathogen affecting a claimant, it can provide part of the puzzle. For example, Hepatitis A infections are often characterized by yellow skin and eyes, or jaundice. E. coli O157:H7 infections are most often characterized by excessively painful, bloody diarrhea.

Finally, while the lack of a laboratory test or a negative result may detract from the strength of a claimant's case, it is unwise to assume invulnerability where a lack of a positive test can be easily explained by other factors. The consumption of antibiotics, whether or not related to the illness at issue, essentially renders a stool culture worthless. A negative result after commencement of antibiotics is common. For different pathogens and different people, the speed with which the pathogen exits the body varies widely. The symptoms can continue well after the pathogen has been expelled from the body. Testing that occurs more than a few days after the onset of symptoms is unreliable, and a negative result at that time is not necessarily indicative that the pathogen had not been previously present. Health care providers do not order blood and stool cultures for all, or even most, cases of gastroenteritis. In many cases, there simply will not be testing to include in the determination of the source of illness.

With an isolated illness, the lack of a positive stool culture may be a problem for a claimant. But it is not a problem in the context of a broader outbreak. Circumstantial evidence may easily compensate.

One such example is where one member of a dining party does not get tested, and others do. Three of four persons who all ate together fall ill with the same, documented, pathogen. The fourth demonstrates the same symptoms in the same time frame, but his or her doctor does not order stool cultures. Liability can be easily established without the positive stool culture. In food poisoning cases there is generally no food to test because, not surprisingly, it was eaten.
But left-over food that tests positive for the given bacteria or virus is powerful evidence that the food is the likely cause of the illness. If there is food to be tested (whether the request is by the State investigators or a party to a suit), one must be aware of chain of custody issues that may arise to question the results.

In conclusion, the goal of the food service industry is to produce high quality products that sell well without injuring consumers. Focusing on bogus or marginal claims is likely to distract your attention from the legitimate needs of your customers. Using these tools should help you serve your customers without sickening them. When a claim is made, you can quickly and fairly decide if it is serious, if it is not, then fight it. If a claim has merit, treat the customer fairly and learn from your error. This will help you keep your eye on your bottom line as opposed to looking for the finger in the chili.
Posted on April 20, 2005 by Marler Lawyer
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Separating the Chaff from the Wheat: How to determine the strength of a foodborne illness claim

Unfortunately, some people make suspect and unsupportable foodborne illness claims. It is important to develop a reliable method of identifying suspect, unsupportable, or illegitimate foodborne illness claims. In my experience, food industry corporations over-emphasize, and thus over react to, the presence of such claims. Such a strategy can lead to the denial of legitimate claims. Denying legitimate claims increases the likelihood of missing important measures to improve food safety. Not improving food safety increases the risk of poisoning consumers and resulting litigation. Litigation not only carries its own expenses, but the threat of public relations headaches as well.

In a paper I wrote for the Defense Research Institute (DRI) for an upcoming speech at their conference on foodborne illness claims, I discuss how to evaluate whether a claim is legitimate:

Separating the Chaff from the Wheat: How to determine the strength of a foodborne illness claim

Posted on March 17, 2005 by Marler Lawyer
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The Jungle's new century

The Seattle Post-Intelligencer reported yesterday that a human rights group has looked closely at a major industry in one country and found safety conditions like those of a century ago, systematic disrespect for workers' rights and widespread disregard of international labor standards. Yes, conditions for U.S. meatpacking workers are scandalous.

Human Rights Watch last week released a comprehensive study of the meatpacking and processing industry. It's a damning report that shows the widespread effects on workers of constant corporate cost cutting, union busting and political irresponsibility.

Worse, as Human Rights Watch acknowledges, much of the picture was already well documented, both in official papers and previous studies. The Human Rights Watch report gives particular credit to the chilling portrayal of workplace conditions in meat plants provided a few years ago by Eric Schlosser in "Fast Food Nation."

As the Human Rights Watch report, written by Lance Compa, and Schlosser both observe, conditions today sadly mirror those in Upton Sinclair's classic work, "The Jungle." Sinclair's portrayal of meatpacking plants, which will reach its 100th anniversary next year, led to federal legislation that improved conditions for workers and made meat considerably safer for consumers.

Strong representation by unions and rising standards of living contributed not just to safety, but to good pay for workers. By early in the second half of the 20th century, Human Rights Watch shows, meatpacking workers' pay ran above the average for manufacturing-sector workers.

That all changed rapidly in the 1980s as companies used automation to squeeze out some skills provided by union workers, held down labor costs and replaced longtime workers with constantly rotating casts of expendable employees, often newly arrived immigrants. Companies that cut costs put relentless pressure on other firms to match their conditions or get out of the business, Human Rights Watch found.

Often, the new hires lacked documentation, making them subject first to pressure to keep quiet and, more recently, a U.S. Supreme Court decision depriving them of the right to compensation when they are illegally fired for union organizing. Although the 5-to-4 decision runs contrary to international agreements and drew protests from our ally Mexico, Congress and the Bush administration have failed to change the law. Decrying the inaction, Human Rights Watch notes that the decision, known as the Hoffman case, actually has created a new, perverse incentive for employers to hire undocumented immigrants and discriminate against legal U.S. residents.

As strong unions disappeared, workplace safety deteriorated along with the pay. Human Rights Watch reports: "Injury rates had been in line with other manufacturing sectors with trade union representation, but since the breakdown of national bargaining agreements, meatpacking has become the most dangerous factory job in America, with injury rates more than twice the national average."

Disabling repetitive stress injuries are widespread, as are lacerations. Loss of limbs and deaths also occur. Human Rights Watch documents a discouraging series of barriers that are often created to reporting and treating injuries. Injured workers also face difficulties receiving worker compensation.

Today, meat is reasonably safe to consume. Modern science was partially incorporated into the meat inspection system during the 1990s. But the evolution of such threats as E. coli, mad cow disease and other problems provide regular reminders that there are gaps in food safety as well as major successes.

Workplace safety conditions might draw more regular attention if companies hadn't succeeded, at least to a substantial degree, in repeatedly speeding up processing of beef, pork and poultry without causing more health threats. The workers bear the increased risks of heavy, hot and dirty work with sharp instruments being performed under ever-increasing pressures for fast performance.

Human Rights Watch explains in detail how the workers' conditions violate a host of international agreements, understandings and principles developed over a long period of time, with U.S. involvement. Once upon a time, there was even U.S. leadership.

The report contains pages of recommendations for bringing U.S. conditions up to standards. It would take concerted action by the Bush administration, Congress, the states (which enforce many worker protections) and the industry. The changes would require questioning the widespread ideology that approves squeezing unions' ability to organize, replacing workers who strike and alternately welcoming and exploiting immigrants. Such a conversation would be difficult, but without it, we will continue to allow meat to be brought to our tables through abuses of worker rights that ought to belong to other places and times.
Posted on January 31, 2005 by Marler Lawyer
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Quotable Quotes: William D. Marler

FOOD IRRADIATION UPDATE
January 15, 2005


"People's perception of the disease (Bovine Spongiform Encephalopathy) is
coloured by the fact that it's not a very nice disease," adding that
salmonella, botulism and E. coli are much more effective killers." Stephen
Moore, chairman of bovine genomics, University of Alberta's department of
agriculture


"We've resolved our differences. Both restaurants agreed to settle the
claims with the (E. coli) victims and are now going upstream after the
suppliers," William Marler, Attorney, Marler Clark.

Posted on January 14, 2005 by Marler Lawyer
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Food Safety Attorney, William Marler, Speaks Out On Mad Cow

We as Americans have grown up believing that our food supply is the safest in the world. But the CDC estimates that over 300,000 people are hospitalized and over 5,000 die, just from eating food contaminated with a pathogen. In recent years, E. coli outbreaks have been linked to not just ground beef, but also to sprouts, lettuce, and steaks. Salmonella outbreaks have been traced to foods such as tomatoes, orange juice and cantaloupe. The largest Hepatitis-A outbreak in United States history has been linked to green onions. School children in a Chicago suburb were served chicken fingers contaminated with ammonia. And now, "Mad Cow" disease has been discovered at a slaughterhouse in Washington State.

While the incubation period for most foodborne pathogens is a matter of days and symptoms of hepatitis-A infection frequently do not show up for over a month, symptoms of Mad Cow, or Creutzfeldt-Jakob Disease, do not appear for up to forty years.

Because we should not have to worry about what we eat today, and the impact that it could have on us decades from now, we need stronger and more aggressive regulation by the USDA and the FDA. These two arms of the government must do everything they can to protect the consuming public.

Specifically:

Require the meat industry to document where specific lots of food are sold. That way, it can be recalled quickly if a pathogen is detected. In most outbreaks, there is no recall because retailers do not know where the meat came from and processors rarely step forward. Timely online records would allow meat to be efficiently tracked down and recalled as soon as inspectors get a positive test result.

Merge the two federal agencies (USDA and FDA) responsible for food safety. Right now, USDA's Food Safety Inspection Service and the inspection arm of the Food and Drug Administration share this mission. The system is bifurcated, which leads to turf wars and split responsibilities. We need one independent agency that deals with food-borne pathogens.

Finally, large purchasers of meat - fast food industry, grocery store chains, and yes, the USDA - must require the meat industry to produce high quality, pathogen lessened, meat. Can you imagine the power they can put on slaughterhouses to clean up this mess?

Posted on January 12, 2005 by Marler Lawyer
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Put me out of business, please

This winter, scores of Americans, most of them small children or senior citizens, have already or will become deathly ill after eating ground beef boldly labeled "USDA approved."

The now infamous ConAgra case started with a few sick kids in Colorado and quickly spread coast-to-coast, eventually triggering the recall of nearly 19 million pounds of ground beef tainted with E. coli O157:H7 in July. Now Emmpak Foods recalls 400,000 pounds of tainted ground beef. However, Emmpack Foods is no stranger to E. coli. It recalled 471,000 pounds of ground beef just last May. I guess lightening can strike twice?

What we will learn about the Emmpack Foods recall is that it comes weeks late, after most of that meat has been consumed and 40 Wisconsin residents are sickened. Because these people trusted our government's food inspections, dozens are ill and some suffered kidney failure and spent days or weeks hooked up to kidney dialysis machines. For some, the long-term prognosis is grim, with the risk of further kidney failure, dialysis, transplants or worse.

I know this because I am a trial lawyer who has built a practice on food pathogens. I represented most of the severely injured children in the 2000 Sizzler E. coli outbreak in Milwaukee. Over the last ten years, I have represented hundreds of families who become devastated for doing a very American pastime - eating a hamburger. This may prompt some readers to consider me a blood-sucking ambulance chaser who exploits other people's personal tragedies.

If that is the case, here is my plea:

Put me out of business, please.

For this trial lawyer, E. coli has been a far too successful practice - and a heart-breaking one. I am tired of visiting with horribly sick kids who did not have to be sick in the first place. I am outraged with a food industry that allows E. coli and other poisons to reach consumers, and a President, Congress and federal regulatory system that does nothing about it.

Stop making kids sick - and I will happily move on. Here is how:

Actually, inspect and sample meat. At present, the USDA employs thousands of inspectors across the nation to inspect hundreds of plants that produce millions of pounds of beef at processing plants and retail outlets. The GAO has warned that the USDA's food samplings are so scattered and infrequent that there is little chance of detecting microscopic E. coli or any other pathogen.

So hire more inspectors and give them real authority to sample meat and stop its distribution as soon as a pathogen is detected. Implement a sampling system that provides a reasonable chance of preventing another outbreak. Doing so might add a nickel a pound - maybe less - to the price of hamburger. However, it will also cut into my business. Moreover, isn't that the idea?

Consider mandatory recall authority. This authority is required in Sen. Tom Harkin's Safer Meat, Poultry and Foods Act of 2002 (named Kevin's law for a young boy who died of E. coli in Wisconsin last year). Under the present system of voluntary recalls, no company has actually refused to recall contaminated product. However, in its recent report, the GAO did document several instances where companies delayed complying with recall requests. Delays mean tainted product has more time to reach consumers.

Require the meat industry to document where specific lots of food are sold. That way, it can be recalled quickly if a pathogen is detected. In most E. coli outbreaks, there is no recall because retailers do not know where the meat came from and processors rarely step forward. Timely online records would allow meat to be efficiently tracked down and recalled as soon as inspectors get a positive test result.

Merge the two federal agencies responsible for food safety. Right now, USDA's Food Safety Inspection Service and the inspection arm of the Food and Drug Administration share this mission. The system is bifurcated, which leads to turf wars and split responsibilities. We need one independent agency that deals with food-borne pathogens.

Finally, large purchasers of meat - fast food industry, grocery store chains, and yes, the USDA - must require the meat industry to produce high quality, pathogen lessened, meat. Can you imagine the power they can put on slaughterhouses to clean up this mess?

None of this will stop E. coli entirely. This invisible poison has been around a long time and is bound to pop up again. However, these steps will enable us to detect it far more quickly, to alert stores and families, and to keep our most vulnerable citizens - kids and seniors - out of harm's way.

And, with a little luck, it will force one damn trial lawyer to find another line of work.
Posted on January 7, 2005 by Marler Lawyer
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What to do about the "Mad Cow"

We as Americans have grown up being told that our food supply is the safest in the world. However, the CDC estimates that each year over 76 million of us become ill, 300,000 are hospitalized and over 5,000 die, just from eating food contaminated with a food borne pathogen.

In recent years, E. coli outbreaks have been linked to not just ground beef, but also to sprouts, lettuce, apple juice and steaks. Salmonella outbreaks have been traced to foods such as tomatoes, orange juice and cantaloupe. In the last months the largest Hepatitis-A outbreak in United States history has been linked to green onions. Last year, school children in a Chicago suburb were fed chicken fingers contaminated with ammonia. And now, bovine spongiform encephalopathy (BSE) or "Mad Cow" disease has been discovered at a slaughterhouse in Washington State.

While the incubation period for most food borne pathogens is a matter of days, and human symptoms of hepatitis-A infection frequently do not show up for over a month, symptoms of "Mad Cow," or the human variant known as Creutzfeldt-Jakob Disease, may not appear for decades. Because we should not have to worry about the meat we eat today, and the impact that it could have on us days or decades from now, we need stronger and more aggressive regulation and enforcement by the Government, specifically the USDA. This arm of the government must do everything it can to protect the consuming public from tainted product and to protect the US meat industry from economic suicide.

Our tables, and the entire food industry, can be protected by five available and simple decisions that will help promote food safety - one, track animals from the farm to your fork; two, test for food borne pathogens; three, reconsider the use of "downer cattle;" four, give the USDA absolute authority to recall meat that may pose a risk to the public health; and, five, stop feeding animals (especially those at risk of harboring disease) to other animals.

We must require the meat industry to document where cows come from and where specific lots of meat are sold. That way, meat can be recalled quickly if a pathogen is detected anywhere in the process. Timely online records would allow meat to be efficiently tracked and recalled as soon as inspectors get a positive test result. We have the technology; we simply need to use it. The fact that the beef industry and the government did not know where the BSE-contaminated cow came from, or where its meat went, is beyond belief. If we can track online a book from Amazon.com, we should be able to do the same with a cow.

While European countries have resorted to testing massive numbers of cows to both establish the prevalence of BSE and to eradicate the disease, the USDA has limited testing to less than 20,000 animals out of a US herd of millions. We have the ability to cheaply and scientifically test meat for a whole host of contaminates before meat hits our plate. Europe requires testing for "Mad Cow" for nearly every cow slaughtered. Many of the largest US retail purchasers of meat products now require pathogen testing (for such pathogens as E. coli O157:H7 and Salmonella) before the meat reaches restaurants or grocery stores. We have the ability to test food before we eat it. Testing for all pathogens should happen at every stage of production - from "farm to fork."

We know that the Washington State cow that has caused the entire US cattle market to collapse was what the industry calls a "downer" - a cow so sick that it can not walk to its own slaughter. It is estimated that over 200,000 such "downers" are used each year. If a cow is so ill that it needs to be dragged into the slaughter house, should it really be used in meat that might make it onto your child's plate? Congress considered banning the use of "downers" last year; perhaps reconsideration is in order.

Also, the USDA must be granted authority to recall any meat product it deems to be unfit for human consumption. Presently, the USDA can only "request" that the industry recall meat - meat that has most likely been consumed or is in someone's freezer. In today's risk-filled world, we need an agency with the goal and the power to protect the public.

Finally, in 1997 the FDA banned the use of cow brain and spinal tissue in cattle feed. But in 2002, according to a General Accounting Office (GAO) report, several firms were violating the restriction, and the GAO concluded that the ban was not adequate to control the spread of BSE. One would think that with all the knowledge the government and cattle industry have about BSE, they would realize that tough enforcement is in order on the feeding of animal parts to other animals that are eventually consumed by humans. This should be a (pun-intended) "no brainer."

We have the ability to live up to the billing of having the safest food supply in the world. The question is whether this "Mad Cow" crisis will be the catalyst that finally starts the reform necessary to stop making US consumers ill and to regain the confidence of the World in our food supply.
Posted on January 7, 2005 by Marler Lawyer
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Fighting big beef

I had a nice chat with Mike Keefe-Feldman of the Missoula Independent about John Munsell, the owner of Montana Quality Foods meat packing plant, who is suing the USDA. As the Independent puts it, it's a lawsuit which "if successful, could bring about the most significant changes to America's meat-inspection system since the Federal Meat Inspection Act of 1906 tried to limit the amount of crap one could legally shovel into a sausage."

"This is a watershed moment for meat inspection and public health," Munsell writes in a statement describing his motivation. In a phone interview, Munsell explains that his suit wouldn't be necessary had the USDA not fallen victim to "agency capture," meaning that a number of high-ranking USDA officials have come from within the corporate meat packing industry and are now unwilling to implement practices that could hurt the industry financially. Instead, Munsell says, the agency has turned to reliance on ineffective industry self-policing measures.

"The USDA doesn't have the courage to do its job anymore," he says.

Munsell's meat packing plant was shipped E. coli contaminated beef from ConAgra as early as January 2002. But when Munsell notified the USDA, the only action taken was to make Munsell rewrite his Hazard Analysis Critical Control Point plan 14 times and pay for additional testing while suspending him from grinding his own beef for four months. In the end, Munsell was right. The end result was a 2002 recall of nearly 19 million pounds of ConAgra beef. Munsell is suing for more than just compensation for what he perceives as retaliation for his whistleblowing. He's also suing to change the system.

Bill Marler, a Seattle-based managing partner at the law firm of Marler Clark and thenation's leading food-illness lawyer, called Munsell "the Don Quixote of the system for the USDA" in a phone interview with the Independent.

Marler says the public typically isn't aware of the magnitude of the E. coli problem because, as in many of his own cases, those who suffer from E. coli receive compensation only by signing a gag order, thus keeping outbreaks out of the public eye.

"Lots of cases that deal with restaurant chains never show up on our website because they pay my clients millions of dollars for a confidentiality agreement," Marler says.

The Centers for Disease Control reported 443 confirmed cases of E. coli in 2003. Marler says the number is probably much higher, because E. coli in humans often goes unreported, since symptoms typically don't show until about three days after consumption of contaminated food. Researchers at the University of Wisconsin-Madison conclude that E. coli causes approximately 75,000 illnesses a year in the United States, ranging from severe diarrhea to death. Marler says he sees about 100 cases in a year, but even if Marler wins settlements for those affected by E. coli, Munsell says that a larger problem within the system goes unchecked.

"When the [affected] family takes their well-deserved money, nothing else is done [by the USDA]," Munsell says. "No improvements are then made to the meat system. A year ago, Con Agra reported their annual net income as $1.9 billion. So if they have to pay a family $200,000, it's no big deal."

Munsell is facing an uphill battle for sure, but good for him.

Posted on November 4, 2004 by Marler Lawyer
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The Essential Summer BBQ Accessory

Going to a BBQ? Bring your meat thermometer, The Essential Summer BBQ Accessory.

"The only safe hamburger is one cooked to 160 degrees," says Nancy Donley, president of the nonprofit Safe Tables Our Priority, a food-safety advocacy group. "Research has shown color is not a reliable indicator."

Donley learned about food safety the hard way seven years ago when her 6-year-old son died of HUS from eating an E. coli contaminated hamburger.

What worries Donley is that the E. coli situation may not have improved much, despite a number of well-publicized cases, including a 1993 outbreak linked to undercooked burgers from Jack in the Box restaurants and a spate of 1996 cases linked to Odwalla brand fruit juice.

Donley says that about half the cattle that come in for slaughter have some exposure to E. coli, and that ground meat samples tested by the federal government are turning up higher amounts of bacteria than before -- although this may be because of better testing.

"The slaughterhouse market is relatively unchanged since Sinclair Lewis wrote The Jungle," says Bill Marler, a Seattle attorney who has represented victims of some of the most notorious food poisoning cases of the last decade, including the Jack in the Box and Odwalla cases. He holds this opinion despite the fact that some plants have adopted new Hazard Analysis Critical Control Point (HACCP) quality-control procedures to keep contamination down.


"The concept is great," Marler says. "You look at those particular areas with the potential for contamination and focus on it and deal with it. In reality, it still takes a commitment by the company." Still, he adds, "I think you have got to have oversight in addition to HACCP. You can't let your own industry regulate itself."

As consumers, we can't trust that what we're eating is safe.

Proper cooking is of key importance, but it's not the only thing. Raw meat should be handled very carefully, all the way from the grocery story to the plate.

Posted on October 22, 2004 by Marler Lawyer
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Irradiating Foods - One More Step to Preventing Illness in Our Schools

A piece of legislation called the California Safe Schools Lunch Act (AB 1988) was recently passed by the State Assembly and now awaits action by the State Senate. Unfortunately, its positive-sounding title might not satisfy the State's own truth-in-labeling laws. The Bill's passage and the passage of similar laws around the country could put school children at greater risk, not less, from the dangers of foodborne illness.

As originally drafted, the Bill restricted the State's Department of Education from ordering irradiated ground beef from the USDA's National School Lunch Program, an option that school districts have available for the first time in 2004. In its present form, it makes this additional food safety measure more difficult and expensive, at a time local school districts are financially strained. In some cities, like San Francisco, Berkeley and Washington, DC, local school boards have succumbed to pressure from irradiation opponents and voted outright bans on serving irradiated foods in cafeterias.

The problem is this: an estimated 73,000 people, many children, get E. coli infection every year and 61 die from it. The GAO found that between 1990 and 1999, 195 outbreaks of foodborne illnesses occurred in our schools, sickening thousands of children. I currently represent children who were made ill with E. coli O157:H7 infections after eating contaminated lettuce served at Eastern Washington University, a school in Coeur d'Alene, Idaho, and schools in San Diego and Orange Counties. In the past, I represented children made ill after eating contaminated ground beef in Washington state and Georgia. The list goes on, and E. coli is not the only pathogen making our children sick.

Last fall, the Washington state Supreme Court affirmed a Jury's verdict of $4.75 million against a small, rural School District for undercooking hamburger that was contaminated with the deadly pathogen, E. coli O157:H7 and was served to elementary students for lunch in the fall of 1998. Justice for these children, one who suffered severe kidney failure, was long in coming. The big issue is not the money, no matter how well deserved. The issue is that the contaminated meat was sent to the school through the National School Lunch Program by the same Governmental agency supposedly responsible for meat safety - the USDA.

When ground beef is irradiated, at least 99.99 percent of E. coli and other harmful foodborne bacteria are killed. Yet irradiation is not a panacea; it is only one additional food safety measure. Others I strongly urge are higher quality and safety standards from plants and suppliers; improved traceback of contaminated meat; better training of food service personnel; serving precooked as well as irradiated foods in school cafeterias; educating students, faculty and parents on safe food handling practices; and requiring the USDA and FDA to publish online all inspection reports, recall notices, and violations of food safety standards for every plant that supplies food to our schools. This will give parents and school administrators a powerful tool in learning the quality of food being served to the children. This comprehensive and cost effective approach to food safety protects our kids and protects a school's budget by preventing lawsuits.

Shown to be safe after more than 40 years of research, food irradiation is endorsed by nearly every major science and health agency, including the World Health Organization, the Centers for Disease Control and Prevention (CDC), the American Medical Association, and the A