I.M. Healthy – goodness the irony.

For a bit(e) of history: In the Spring of 2017, the CDC reported that thirty-two people infected with the outbreak strains of E. coli O157:H7 were reported from 12 states – Arizona 4, California 5, Florida 2, Illinois 1, Massachusetts 1, Maryland 1, Missouri 1, New Jersey 1, Oregon 11, Virginia 2, Washington 2 and Wisconsin 1.  There were also others sickened but because stool cultures were not completed, those two people were not “officially” counted by the CDC.  One of those was the likely first illness.  had “genetic fingerprinting” been done on the E. coli O157:H7 culture, it is certainly possible that this outbreak would have been identified sooner.

Twelve people were hospitalized – some for as many as four months. Nine people developed hemolytic uremic syndrome – some will require kidney transplants. Fortunately, no deaths were reported.

Twenty-six (81%) of the 32-ill people in this outbreak were younger than 18 years.

Epidemiologic, laboratory, and traceback evidence indicated that I.M. Healthy brand SoyNut Butter manufactured by Dixie Dew was the likely source of this outbreak.

Of the 32 sick, I have had the honor of representing 21 of the sickened through the bankruptcies of I.M. Healthy and its manufacturer Dixie Dew.  All but three cases have been resolved.  One failed at mediation in the last month and is now in litigation.  A month from now we will attempt to resolve two more, and if not resolved, those too will be put into litigation.  It has been a long process for the ill, both in medical recovery, but in seeking fairness from the insurance companies and lawyers that represent the retailers and supply chain that supplied the tainted product.

The Journal of Pediatrics weighed in on the outbreak and it is worth a read.  J. Pediatrics Article (02178215xAD20B) – I am most impressed by the authors* conclusions and recommendations:

  • This investigation identified soy nut butter as the source of a multistate outbreak of STEC infections affecting mainly children.
  • The ensuing recall of all soy nut butter products the facility manufactured, totaling .1.2 million lbs, likely prevented additional illnesses.
  • Prompt diagnosis of STEC infections and appropriate specimen collection aids in outbreak detection.
  • Child care providers should follow appropriate hygiene practices to prevent secondary spread of enteric illness in child care settings.
  • Firms should manufacture ready-to- eat foods in a manner that minimizes the risk of contamination.

*Rashida Hassan, MSPH, Sharon Seelman, MS, MBA, Vi Peralta, MPH, Hillary Booth, MPH, Mackenzie Tewell, MA, MPH, CPH, Beth Melius, RN, MN, MPH, Brooke Whitney, PhD, Rosemary Sexton, BS, Asha Dwarka, BS, Duc Vugia, MD, MPH, Jeff Vidanes, BS, David Kiang, PhD, Elysia Gonzales, RN, MPH, Natasha Dowell, MPH, Samantha M. Olson, MPH, Lori M. Gladney, MS, Michael A. Jhung, MD, Karen P. Neil, MD, MSPH.

The Mississippi State Department of Health (MSDH) is investigating a case of hepatitis A in a food service worker that could have led to possible exposure for restaurant customers.

An employee of Dixie Depot Courtyard Lane deli, 6241 Highway 613 in Lucedale (Agricola area), who handles food has been diagnosed with hepatitis A infection, and patrons who ate food from this facility during the following dates and times may have been exposed to hepatitis A:

  • August 19-21 from 2 p.m. to 10 p.m.
  • August 23-24 from 2 p.m. to 10 p.m.
  • August 26-31 from 2 p.m. to 10 p.m.

“While the risk of transmission is likely low, the management and staff of Dixie Depot are cooperating with us to prevent new illnesses as a result of this exposure,” said MSDH State Epidemiologist Dr. Paul Byers. “We recommend that anyone who ate at this restaurant during these times should consider getting a hepatitis A vaccination if they have not been previously immunized.”

Those who think they may have been exposed to this case can receive a hepatitis A vaccination free of charge Wednesday, Thursday and Friday this week (September 11-13) at the George County Health Department, 166 West Ratliff Street in Lucedale.

Hepatitis A is a contagious liver disease that causes fever, nausea, diarrhea, vomiting, jaundice (yellowing of the skin or eyes) and abdominal pain and dark colored urine. Hepatitis A usually spreads when a person unknowingly ingests the virus from objects, food, or drinks contaminated by small, undetected amounts of stool (feces) from an infected person. If you think you have symptoms of hepatitis A, you should contact your healthcare provider.

Everyone can prevent the spread of hepatitis A by carefully washing hands with soap and water, including under the fingernails, after using the bathroom or changing diapers and before preparing or eating food.

As a reminder, there is an ongoing hepatitis A outbreak in Mississippi and surrounding states affecting those who use drugs, those who are in jail or were recently in jail, those with unstable housing or who are homeless, and men who have sex with men. The MSDH continues to recommend hepatitis A vaccination for those specific groups as well.

Presently, there has been outbreaks of hepatitis A that were first identified in 2016.  I started noticing the outbreak in San Diego in 2016, spreading to Utah, Kentucky and beyond. Now 30 states have publicly reported the following as of August 30, 2019

  • Cases: 24,952
  • Hospitalizations: 14,984 (60%)
  • Deaths: 244

Although many of the illnesses have been linked to homelessness and drug use, other illnesses are simply from an unknown cause. To help stop the outbreaks, the CDC recommends the hepatitis A vaccine for people who use drugs (including drugs that are not injected), people experiencing homelessness, men who have sex with men, people with liver disease, and people who are or were recently in jail or prison.

With food service being one of the lower paying positions, an interesting question to ask is how many food service workers fit into one or more of the above categories?

However, according to the CDC, the Advisory Committee on Immunization Practices continues to recommend only that the following persons be vaccinated against hepatitis A:

  • All children at age 1 year,
  • People with unstable housing or experiencing homelessness
  • Persons who are at increased risk for infection,
  • Persons who are at increased risk for complications from hepatitis A, and
  • Any person wishing to obtain immunity.

Which groups do NOT need routine vaccination against hepatitis A?

  • Food service workers. Foodborne hepatitis A outbreaks are relatively uncommon in the United States; however, when they occur, intensive public health efforts are required for their control.
  • Although persons who work as food handlers have a critical role in common-source foodborne outbreaks, they are not at increased risk for hepatitis A because of their occupation. Consideration may be given to vaccination of employees who work in areas where community-wide outbreaks are occurring and where state and local health authorities or private employers determine that such vaccination is cost-effective.

Although the CDC feels the risks to restaurant patrons from a hepatitis A ill food service worker is “relatively uncommon,” it certainly can be with tragic consequences.  Next week I will be in Court in upstate New York on behalf of the family of a 58-year-old mother and grandmother who died of acute hepatitis A induced liver failure in 2015.  She, and her family, suffered horribly.  She spent months hospitalized hovering between life and death.  Her medical expenses were several hundreds of thousands of dollars. The loss to her family is incalculable.

The unvaccinated food service worker who transmitted hepatitis A to this grandma worked while infectious before she showed any signs of symptoms of the infection.  Had she been vaccinated against hepatitis A this mother would not be dead and I would not be in Court against one of the largest restaurant chains in the world (let’s call it “fast food restaurant A” – the CDC will get my humor).

And, it is not like this chain has avoided hepatitis A in the past.  I have sued them several times because unvaccinated hepatitis A positive employees sickened customers.  I have also sued them multiple times for exposing thousands of customers and requiring them to seek hepatitis A vaccination to protect themselves – and the restaurant chain – from the ravages of a hepatitis A infection.

I recently challenged members of the food service industry – including “fast food restaurant A” – to voluntarily vaccinate employees against hepatitis A, and I would never sue them for anything ever in the future.  My phone still has not rung.

Yes, I have other examples – hundreds of customers sickened, with some dying, after been exposed to a hepatitis A infectious food service worker – just recently over 20 were sickened and 1 died after being exposed to a food service worker at a New Jersey golf and country club.  I have also seen tens of thousands of exposed customers standing in long lines to be vaccinated, with those vaccinated primarily being paid by taxpayers.  The news is replete with daily warnings of yet another hepatitis A positive employee exposing customers.

In the last week, in a community seeing a current spike in hepatitis A illnesses that had previously required hepatitis A vaccinations for food service workers, was asked why they would no longer require it.  The response – or excuse – put the onus on the CDC – “we will not do it because the CDC does not recommend it.”  As the Church Lady says:  “How convenient.”

CDC, it is time for a change.

In 2000, I wrote this:

In light of the recent, large-scale Hepatitis A exposure in the San Francisco Bay Area, food safety attorneys of the Seattle-based law firm of Marler Clark, are asking restaurants and food manufacturers to voluntarily vaccinate all workers against Hepatitis A. “In the last six months Hepatitis A exposures have been linked to two Seattle-area Subways, a Carl’s Jr. in Spokane, WA, Hoggsbreath, a Minnesota restaurant, and three restaurants in Northwest Arkansas, IHOP, U.S. Pizza, and Belvedeers. Now more than seven- hundred children are being vaccinated against this potentially deadly virus in California after possible consumption of contaminated strawberries. Furthermore, this isn’t the first time that strawberries have been implicated in the outbreak of a foodborne disease.” Marler continued, “Restaurants and food manufacturers must take action and voluntarily vaccinate all of their employees.”

Sound familiar?

Sorry, Mr. “Verde” – Green, I really could use my Spanish in a Listeria outbreak that has sickened well over 200 and killed 3 – and, that number is likely to rise.

According to Google Translate, and therefore the Spanish Health Authorities:

On Friday, August 16, Public Health of the Autonomous Community of Andalusia notified the Center for Coordination of Health Alerts and Emergencies of the Ministry of Health, Consumption and Social Welfare an outbreak of food poisoning by listeriosis in its Autonomous Community associated with the consumption of industrial meatloaf of the La Mechá brand prepared by a company located in the municipality of Seville.

The association between the product involved and the outbreak occurred on August 14 after the positive results for listeria in the analyzes carried out in the Autonomous Community in several processed meat products corresponding to different batches and that had consumed most of the cases identified.

The total number in the community is 196 cases related to the outbreak. Most of the cases have been registered in Seville (161), but they have been found in almost all the provinces of the Community: Cádiz (10), Granada (4), Huelva (17) and Málaga (4). 58% of cases are women, 31 of them in a state of gestation. 25% of cases are 65 years of age or older, with hardly any gender disparity (24 men and 25 women).

The clinic developed by the confirmed cases in Andalusia was distributed as follows: 58% presented symptoms compatible with acute gastroenteritis, 47% presented fever, 10% (19) developed meningeal forms and four patients presented septicemia. The average incubation period has been 3 days, shorter than usual. During the outbreak there have been three deaths, two people over 70 with serious co-morbidities and a person over 90 years. The investigation of the cause of death has not yet been closed.

Other communities are investigating cases associated with this outbreak. These cases may vary between different reports as possible duplicate cases are cleared that are reported in more than one community (e.g, diagnostic community and community of residence). In the rest of the Autonomous Communities, 4 laboratory confirmed cases (1 in Aragón, 1 in Castilla y León, 1 in Extremadura and 1 in Madrid) and 3 cases confirmed by epidemiological link (1 in Extremadura and 2 in Aragón) have been registered. In addition, 56 probable cases and 41 suspects have been reported in Aragón, Asturias, Canarias, Castilla y León, Castilla La Mancha, Cataluña, Comunidad Valenciana, Extremadura, Madrid and Melilla, many of them continue in research pending results.

The French authorities notified on August 23 through the EU Early Warning and Response System (EWRS), a confirmed case of listeriosis in an English citizen, diagnosed in France on August 16 and prior of consumption of a cold pork meat in Seville on August 13. The product was consumed by 4 more people during a meal in Seville and they all got sick. Although most of the product has been distributed in Andalusia, the Spanish Agency for Food Safety and Nutrition (AESAN) has reported that a small part of the product was sold to distributors in other communities, but according to the latest information available, most of the product did not leave Andalusia or was returned to origin.

All the autonomous communities involved have reported that the products have already been immobilized and are pending destruction, and therefore are no longer for sale.According to the information received from AESAN, given the isolation of Listeria in the product involved on August 14, the food safety authorities of Andalusia made an inspection visit to the company’s facilities and agreed voluntary withdrawal by the company of all food produced since May 1 and the suspension of production.

On August 20, the food alert was extended to other baked meat products of the inspected company and on August 23 to all products produced by it. On August 24, AESAN informs that the shredded meat manufactured by Magrudis, S.L. It had also been marketed by the Martínez León Commercial Company, with poor labeling. All clients of the latter company are located in various municipalities of the province of Seville and both the Official Control Services of the Junta de Andalucía and the City of Seville have verified that the clients have been contacted and informed of the problem, and indeed not they commercialize the mentioned product.

Since the incubation period of the disease is long and the wide distribution of the product cannot rule out the occurrence of new cases in the coming days, even in people residing in other regions or countries, who have been able to consume the roasted meat during their Stay in the distribution areas. Nor can we rule out the appearance of new cases due to the consumption of products that may have final consumers in their homes, since the expiration date is approximately 3 months.

However, according to the information available, since Friday, August 23, there is a reduction in the number of confirmed cases since the beginning of the outbreak, a trend that remains until today. As a precautionary measure, it is recommended that people who have in their homes some meat products of the brand “La Mechá” refrain from consuming it and return it to the point of purchase.

If you have consumed it, if you have any symptoms, go to a health center. To avoid risks of cross contamination from contaminated products to others, it is important to ensure proper hygiene on surfaces and utensils that may come into contact with food. The Ministry of Health, Consumption and Social Welfare, given the possibility of identifying cases of listeriosis in other countries, has made the necessary communications both to the Early Warning and Response System of the European Union and to the World Health Organization in the framework of the International Health Regulations. It is recalled that pregnant women and people with immune deficiencies, higher risk groups, should consume only perfectly cooked meats and pasteurized dairy products and heat leftovers. They should also avoid ready-to-eat prepared foods.

Listeria:  Marler Clark, The Food Safety Law Firm, is the nation’s leading law firm representing victims of Listeria outbreaks. The Listeria lawyers of Marler Clark have represented thousands of victims of Listeria and other foodborne illness outbreaks and have recovered over $650 million for clients.  Marler Clark is the only law firm in the nation with a practice focused exclusively on foodborne illness litigation.  Our Listeria lawyers have litigated Listeria cases stemming from outbreaks traced to a variety of foods, such as deli meat, cantaloupe, cheese, celery and milk.

If you or a family member became ill with a Listeria infection after consuming food and you’re interested in pursuing a legal claim, contact the Marler Clark Listeria attorneys for a free case evaluation.

The Southern Nevada Health District has identified a person with hepatitis A that worked at a 7-Eleven convenience store located at 2910 S. Maryland Parkway, Las Vegas, NV 89109 (Maryland Parkway and Vegas Valley Drive) while they were potentially infectious to others. Although transmission of hepatitis A from food handlers to patrons is rare, the Health District is informing customers who purchased non-prepackaged foods such as hot dogs or hot deli items between Friday, July 26 and Friday, Aug. 7, 2019, at this 7-Eleven location that they may have been exposed to the virus.

Customers who purchased food at this location should contact their health care providers about getting a hepatitis A immunization or receiving post-exposure treatment. Packaged items, including bottled beverages and microwaved foods, are not implicated in this potential exposure. Customers who are fully vaccinated (two doses) against hepatitis A or who consumed only packaged or bottled items are not at increased risk.

This person is considered linked to the ongoing outbreak in Clark County. Currently, there are 86 reported cases, and one person has died. Updated outbreak reports are available on the Health District website at www.SNHD.info/hep-a-control.

Hepatitis A is commonly spread from person-to-person through the fecal-oral route. Symptoms include jaundice (yellowing of the skin and eyes), fever, fatigue, loss of appetite, nausea, vomiting, abdominal pain, dark urine, and light-colored stools. Vaccination is the best prevention against hepatitis A. Practicing good hygiene can also help prevent the transmission of hepatitis A. Wash hands thoroughly after using the bathroom, changing diapers, and before preparing or eating food.

Food handlers are not at increased risk for hepatitis A virus because of their occupation. Most food handlers with hepatitis A virus infection do not transmit it to exposed consumers or patrons. During ongoing outbreaks, transmission from food handlers to restaurant patrons has been extremely rare due to sanitation standards and food safety practices that help prevent the spread of the virus. The Centers for Disease Control and Prevention (CDC) does not recommend vaccinating all food handlers because it would not be an effective method of stopping an outbreak. Hepatitis A outbreaks primarily affect individuals who report using injection or non-injection drugs and people experiencing homelessness.

For information about the Health District’s immunization clinics, call (702) 759-0850. Immunizations are available at the following locations. Please arrive by 4 p.m. to allow time for processing:

  • Main Public Health Center, 280 S. Decatur Blvd., Las Vegas
    Monday – Friday, 8 a.m. – 4:30 p.m.
  • East Las Vegas Public Health Center, 570 N. Nellis Blvd., Suite D1, Las Vegas
    Monday – Friday, 8 a.m. – 4:30 p.m.
  • Southern Nevada Health District Henderson Clinic, 874 American Pacific Dr., Henderson
    Monday – Thursday, 8 a.m. – 4:30 p.m., Friday 8 a.m. – 1 p.m.
    Closed daily 1 p.m. – 2 p.m.
    By appointment only. Call (702) 759-0960.
  • Mesquite Public Health Center, 830 Hafen Lane, Mesquite
    Tuesday and Thursday, 8 a.m. – 4:30 p.m. Closed noon – 1 p.m.
    By appointment only. Call (702) 759-1682.

And, that means you retailers.

Every day Americans enjoy an abundant food supply that is among the safest in the world. The U.S. Food and Drug Administration works tirelessly to ensure that foods available to consumers, whether they are produced domestically or abroad, meet the FDA’s food safety requirements and that we are using all available tools to ensure compliance.

As demand and tastes continue to drive change in the market, consumers’ desire for a variety of products available year-round have increased the number of imported foods offered for sale in the U.S. To keep up with this trend, we have doubled down on our efforts to ensure the safety of imported food. This includes issuing a new Strategy for the Safety of Imported Food and requesting new funding from Congress to support our efforts.

While we continue to focus on shifting our work upholding food safety from response to prevention, we know that there are times where we will still need to respond to problems when they arise, including outbreaks of foodborne illness. This is especially important when we see recurrent patterns of illness associated with particular commodities. For example, fresh papayas. This commodity is most often eaten raw, without cooking or processing to eliminate microbial hazards; and therefore, the way they are grown, harvested, packed, held, processed and distributed is crucial to minimizing the risk of contamination with human pathogens.

Unfortunately, since 2011, American consumers have been exposed to eight outbreaks caused by Salmonella serotypes linked to imported, fresh papaya. And, just this June we started an investigation into an outbreak of Salmonella Uganda illnesses tied to the consumption of whole, fresh papaya imported from Mexico. While the 2019 outbreak is ongoing, the first seven outbreaks accounted for almost 500 reported cases of illness, more than 100 hospitalizations, and two deaths.

This trend has to stop. The pattern of recurrent outbreaks we have observed since 2011, including the 2019 illnesses, have involved Salmonella infections traced back to, or are suspected of being associated with, papaya grown in Mexico. The recurring nature of these outbreaks is a clear indication that more must be done within all sectors of the papaya industry to protect its customers and to meet its legal obligations. This includes growers, importers and even retailers that can and must do more.

This is why today we have issued a letter calling on all sectors of the papaya industry to take actions to prevent these outbreaks in the future. We are urging growers, packers, shippers and retailers in the papaya industry to review their operations and make all necessary changes to strengthen public health safeguards.

Our letter calls on the papaya industry to assess the factors that make their crops vulnerable to contamination. If a foodborne pathogen is identified in the crop or growing environment, a root cause analysis should be performed to determine the likely source of contamination. Procedures and practices that minimize that contamination must be implemented.

We are strongly encouraging the papaya industry to examine the use and monitoring of water used to grow, spray (pesticides, fungicides), move, rinse or wax crops to identify and minimize risks from potential hazards. All sectors of the industry should adopt tools and practices needed to enhance traceability since papayas are a perishable commodity, to more rapidly facilitate the tracking of involved product to expedite its removal from commerce, prevent additional consumer exposures, and properly focus any recall actions.

And finally, they should fund and actively engage in food safety research to identify the potential sources and routes of contamination by microbial pathogens and develop data-driven and risk-based preventive controls.

In response to this most recent Salmonella Uganda outbreak, the FDA deployed an inspection team to the packing house and farm that was linked to the contaminated papayas via traceback and epidemiological evidence. The findings of those visits will be made public when their investigation is complete. We have also increased sampling and screening of papayas at the border. In addition, the FDA is actively collaborating with our counterparts in the Mexican government regarding this current outbreak through the agency’s Latin America Office to determine ways to further our collaborative prevention efforts.

The U.S. Federal Food, Drug, and Cosmetic Act prohibits food producers from introducing, or delivering for introduction, into interstate commerce adulterated foods (meaning foods that are potentially harmful to consumers). Additionally, there are new requirements under the FDA Food Safety Modernization Act (FSMA). The Produce Safety Rule under FSMA sets science- and risk-based minimum standards for domestic and foreign farms for the safe growing, harvesting, packing and holding of covered produce, which includes papayas. Another FSMA rule, the Foreign Supplier Verification Program(FSVP) makes importers responsible for verifying that the foods they bring into the U.S., including papayas, have been produced in a manner that meets applicable U.S. safety standards.

We take our responsibility to protect public health very seriously and will continue to use all of our regulatory authorities and enforcement tools available to do so. So, today we issued a warning letter to a papaya importer, Agroson’s LLC, following an FDA investigation at the facility in conjunction with the current outbreak. This investigation uncovered significant violations of the Federal Food, Drug, and Cosmetic Act. Rest assured that the FDA will continue to strengthen safeguards and prevent contaminated papayas from being imported into the U.S. Our efforts also include education, outreach, training and research activities designed to support farmers’ efforts to keep their crops safe for consumers.

Although today’s actions focus on the papaya industry, recurring outbreaks taking place with any commodity are unacceptable from a public health perspective. We know that more must be done by industry as repeated illness outbreaks are a threat to public health. In such situations, it is incumbent upon all sectors of the industry to work together to investigate the cause, review food safety procedures and practices, and take action to prevent further outbreaks.

We must take collective steps to eliminate the threat that recurring outbreaks pose to consumers and look forward to working with the papaya industry as well as all food producers to ensure that America’s food supply remains among the safest in the world.

The FDA, an agency within the U.S. Department of Health and Human Services, protects the public health by assuring the safety, effectiveness, and security of human and veterinary drugs, vaccines and other biological products for human use, and medical devices. The agency also is responsible for the safety and security of our nation’s food supply, cosmetics, dietary supplements, products that give off electronic radiation, and for regulating tobacco products.

As of August 23 2019, there have been seven confirmed cases of Listeria monocytogenes illness in three provinces: British Columbia (1), Manitoba (1) and Ontario (5). Individuals became sick between November 2017 and June 2019. Six individuals have been hospitalized. Individuals who became ill are between 51 and 97 years of age. The majority of cases (86%) are female.

According to Health authorities in Canada, based on the investigation findings to date, Rosemount brand cooked diced chicken has been identified as a likely source of the outbreak. Rosemount cooked diced chicken was supplied to institutions (including cafeterias, hospitals and nursing homes) where many of the individuals who became sick resided, or visited, before becoming ill.  That product has now been recalled.

The CDC, several states, and federal partners (USDA/FSIS) are investigating a multistate outbreak of Listeria monocytogenes infections. This investigation is ongoing and has not identified a specific food item, grocery store, or restaurant chain as the source of infections.  However, The Public Health Agency of Canada is also investigating a Listeria monocytogenes outbreak in several Canadian provinces linked to cooked diced chicken.

Whole genome sequencing (WGS) shows that the type of Listeria monocytogenes making people sick in Canada is closely related genetically to the Listeria monocytogenes making people sick in the United States. WGS gives investigators detailed information about the bacteria causing illness. In this investigation, WGS showed that bacteria isolated from ill people were closely related genetically. This means that people in this outbreak are more likely to share a common source of infection.

As of August 23, 2019, a total of 24 people infected with the outbreak strain of Listeria monocytogenes has been reported from 13 states: California (4), Florida (1), Iowa (10), Illinois (4), Indiana (1), Kansas (1), Kentucky (1), Michigan (1), Missouri (3), New York (2), Ohio (2), Oregon (2) and Texas(1). Ill people range in age from 35 to 92 years, with a median age of 72. Sixty-three percent of ill people are female. Of 23 ill people with information available, 22 hospitalizations have been reported. Two deaths have been reported.

In the United States, Tip Top Poultry, Inc., a Rockmart, Ga. establishment, has recalled approximately 135,810 pounds of fully cooked poultry products that may be adulterated with Listeria monocytogenes, the U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) announced.

The frozen, diced, and mechanically separated ready to eat chicken was produced on January 21, 2019 and display “PACK DATE 01/21/19” on the labels. The products subject to recall bear establishment number “P-17453” inside the USDA mark of inspection or on the case. These items were shipped to hotels, restaurants, and institutions nationwide.

The problem was discovered on August 17, 2019, when the Canadian Food Inspection Agency (CFIA) notified FSIS that a sample of product produced by Tip Top Poultry, Inc. confirmed positive for the presence of Listeria monocytogenes.

By warning you not to wash chicken (or other poultry), FSIS correctly recognizes the risk of cross-contamination in your kitchen and the risk that it poses to you and your family – especially children and the elderly.  But, why does it continue to allow companies to knowingly sell us Salmonella-tainted poultry?

Personally, as I said to the Los Angeles Times some time ago, “I think that anything that can poison or kill a person should be listed as an adulterant [in food].”

Ignoring Salmonella in meat makes little, if any, sense. Even after the Court’s twisted opinion in Supreme Beef v. USDA, where it found Salmonella “not an adulterant per se, meaning its presence does not require the USDA to refuse to stamp such meat ‘inspected and passed’, ” our government’s failure to confront the reality of Salmonella, especially antibiotic-resistant Salmonella, is inexcusable.

The Wisconsin Supreme Court in Kriefall v Excel called it as it saw it:

The E. coli strain that killed Brianna and made the others sick is a “deleterious substance which may render [meat] injurious to health.” There is no dispute about this. Thus, under the first part of 21 U.S.C. § 601(m)(1), meat that either “bears or contains” E. coli O157:H7 (the “deleterious substance”) is “adulterated.” That E. coli O157:H7 contamination can be rendered non-“injurious to health” by cooking thoroughly, as discussed below, does not negate this; Congress used the phrase “may render,” not “in every circumstance renders.” Moreover, if the E. coli bacteria is not considered to be “an added substance,” because it comes from some of the animals themselves and is not either applied or supplied during the slaughtering process (although we do not decide this), it cannot be said that the E. coli strain “does not ordinarily render [the meat on or in which it appears] injurious to health.” Accordingly, meat contaminated by E. coli O157:H7 is also “adulterated” under the second part of § 601(m)(1).

Now, why would Salmonella be different? According to the CDC, it is estimated that 1.4 million cases of salmonellosis occur each year in the United States. Of those cases, 95 percent are related to foodborne causes. Approximately 220 of each 1,000 cases result in hospitalization, and 8 of every 1,000 cases result in death. About 500 to 1,000 deaths – 31 percent of all food-related deaths – are caused by Salmonella infections each year.

So, where do we stand with the existing USDA/FSIS law on adulteration?  Here is the law:

21 U.S.C. § 601(m)(4) – SUBCHAPTER I – INSPECTION REQUIREMENTS; ADULTERATION AND MISBRANDING – CHAPTER 12 – MEAT INSPECTION – TITLE 21—FOOD AND DRUGS

(m) The term “adulterated” shall apply to any carcass, part thereof, meat or meat food product under one or more of the following circumstances:

(1) if it bears or contains any poisonous or deleterious substance which may render it injurious to health; but in case the substance is not an added substance, such article shall not be considered adulterated under this clause if the quantity of such substance in or on such article does not ordinarily render it injurious to health; …

(3) if it consists in whole or in part of any filthyputrid, or decomposed substance or is for any other reason unsound, unhealthfulunwholesome, or otherwise unfit for human food;

(4) if it has been prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health; …

Hmmm. It is hard to read the above and not think that the words in bold equate to all E. coli and Salmonella — frankly, all pathogens in food. I know, I am just a lawyer, but don’t ya think that when food with animal feces (and a dash of E. coli O157:H7) in it is considered an adulterant, that other animal feces (with dashes of other pathogens, like Salmonella) in them, should be considered adulterated too?  But, hey, that is just me. Another odd governmental fact is that the FDA does not seem to make a distinction between pathogens it considers adulterants or not. FDA’s enabling legislation – Sec. 402. [21 USC §342] of the Food, Drug & Cosmetic Act also defines “Adulterated Food” as food that is: 

(a) Poisonous, insanitary, or deleterious ingredients.

(1) If it bears or contains any poisonous or deleterious substance which may render it injurious to health; but in case the substance is not an added substance such food shall not be considered adulterated under this clause if the quantity of such substance in such food does not ordinarily render it injurious to health;

(2) If it bears or contains any added poisonous or added deleterious substance … that is unsafe within the meaning of section 406;

(3) if it consists in whole or in part of any filthy, putrid, or decomposed substance, or if it is otherwise unfit for food;

(4) if it has been prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health …

It would be interesting, and perhaps entertaining, to have House and Senate hearings focusing on what should and should not be considered adulterants in our food. I can see panels of scientists from various fields, FDA, USDA and FSIS officials, beef and produce industry representatives, and consumers discussing this. I would pay to watch it.