Law360: Prominent food safety plaintiffs’ attorney Bill Marler of Marler Clark LLP, who has been representing victims of foodborne illnesses since the early 1990s, recently spoke with Law360 about practicing remotely from his home on Bainbridge Island in Puget Sound and about food safety concerns during the COVID-19 pandemic.

Marler began his career in 1993, representing 9-year-old Brianne Kiner who was sickened in the Jack in the Box E. coli outbreak that killed four children and sickened hundreds of others. After securing a $15.6 million settlement, Marler went on to represent other victims of foodborne illnesses against companies such as Chipotle, Dole and ConAgra.

This interview has been edited for length and clarity.

How have you and your firm adapted to working remotely?

We have some people who have always worked remotely. I have an associate who lives in Kentucky, so we have some experience. My nurse works remotely, and my epidemiologist works remotely.

But we always had people in the office. I’ve been practicing law for almost 30 years and I’m like the old school. When I first started practicing, everyone wore a suit and tie and suspenders and bow ties, and you were in the office six days a week. On Saturdays, you dressed in business casual, and that’s obviously changed a lot over time, and everyone is way more casual.

It’s been probably a bit more of an adjustment for me just because I’m an old guy. But I think everyone else seems to relish it, especially the millennials with dogs. All millennials seem to have dogs.

Ha, that describes me, actually.

I have three daughters in the same group, so I say that with the same loving way that I do with them.

I think people are adjusting. I think you have to get over the immediate gratification you get when you walk and talk with someone and ask a question. Now, you’re either Zooming them or calling them or emailing them, and you’re not getting quite that response because they may be out walking their dog. It’s not like they’re not doing their job; they’re doing it at a slightly different time frame.

But we’re still taking depositions, filing lawsuits. I filed a lawsuit today. We do a lot of Zoom meetings. We’ve done two or three Zoom cocktail hours.

You can tell it’s wearing on some people more so than others. People who are maybe a bit more social, you can tell they’re having a little harder time. So I’ve been doing some more outreach and I think that’s been helpful.

But I don’t think we have skipped a beat on how we practice law.

We’re getting a lot of calls from people who are not being called back from health departments, people who have been sick with Salmonella or E. coli and get the diagnosis.

Normally, you would hear that the health department would call them because once you’re diagnosed with salmonella or E. coli or listeria, by law the health department is supposed to contact you. But health departments are focused on other stuff right now, understandably.

It will be interesting to see how if in the next couple of months, if not only recalls are down and inspections are down but you start to see a downturn in the number of E. coli cases or salmonella cases. Is it because people are not going out to restaurants and getting poisoned? Or is it just we’re not tracking the cases? I kind of have a tendency to think that it’s probably because cases are not being tracked.

The long and the short of it: The firm is doing fine. We have lots of cases from years past and things to work on. Not going to cut back on staff at all. I probably wouldn’t do it even if business was down because my people have been with me for a long time.

But in a couple months from now, I think there are going to be less confirmed cases by the CDC [Centers for Disease Control and Prevention] and health authorities, so that’s going to be interesting.

Are you concerned that because the Food and Drug Administration is so focused on COVID-19 and finding a vaccine, are there going to be fewer resources for food safety?

I got a lot of questions early on about the safety of food itself. There are two sides to that equation. Red meat, chicken, lamb, that’s all inspected by inspection services on the USDA [U.S. Department of Agriculture] side. They’re supposed to have an inspector in every plant, and you cannot produce meat and sell it unless there’s an inspector in the plant. That’s just the law.

And so there are inspectors who have gone out sick because of COVID or fear of COVID, and some inspectors unfortunately died. Then you have these slaughter facilities, which are hot spots, and you have lots of them shut down, and of course you have the president ordering everybody to go back to work. That’s super problematic for the inspectors because they’re going into environments that are hot spots. Slaughterhouses are the next old-folks’ homes. That’s just kind of how it is.

There hasn’t been a meat recall in two months, and I can’t think that it’s because everything is running smoothly. I think it’s because there’s been a lack of tests.

On the FDA side, which does imports and all the other foods, cereals, vegetables, they have a limited number of inspectors as it is. Most major food producing facilities might get inspected once every year or two or three. So when they’re limiting inspections because of COVID, it’s kind of hard to argue that it makes a huge difference because they weren’t doing that much inspection to begin with.

But again, the recalls from the FDA have dropped dramatically, and other than that, I think the only CDC report of a multistate outbreak was one involving blackberries that came out in January and February.

So I think there is clearly an impact by their focus on COVID. I’m not saying they shouldn’t focus on COVID.

It strikes me that with 30 million people unemployed, we might be able to find some people who could assist with COVID and assist with food safety, but that’s just me.

Assuming we ever get our [act] together to do testing and tracing, we’re going to have to hire, in a sense, a small public health army to do that. I haven’t seen a big push for that yet.

Do you have any other food safety concerns with regard to the pandemic?

I got a lot of questions early on about the safety of food itself. There still appears to be no evidence that COVID can be transmitted via food, especially food that’s cooked.

There is certainly risk, but there haven’t been any cases by COVID being spread by ready-to-eat food. We haven’t seen anything like that because it’s a primarily inhaled virus.

But COVID cases are going to be really, really hard causation-wise to prove because the incubation period is long and there’s so many ways you can get exposed to it.

If you went to a restaurant and there was an ill worker or an asymptomatic worker and you wound up getting it. But maybe you got it in the subway going to the restaurant or maybe you picked it up on the bus or walking down the street.

So it’s going to be really difficult to try to prove the most likely way an ill patron [contracted COVID]. I’m not saying that there won’t be some lawsuits. I’m sure there will be, but I think causation is going to make it pretty difficult for most of these cases to have legs.

We haven’t gotten any calls, somebody saying, “I got COVID. I think I got it at a restaurant.” We had calls from people who said that they got food poisoning and didn’t go to the hospital because they were afraid that they would get COVID. So there are certainly some impacts.

What litigation do you see arising out of the pandemic?

If I had to guess, the ones where causation would be clearest. I think the ones that you are going to see the most are nursing home cases, failure to properly prevent the spread of a disease. Certainly that’s a negligence standard, and the way that it would play out in the law would be that in some of these early cases, the early transmission cases, the courts probably wouldn’t find liability.

But I think there’s a CDC study of a couple of the nursing homes here in the state of Washington and they had an asymptomatic worker working in two facilities, so that’s obvious how that spread.

The question really is: Could they have put a system in place, PPE [personal protective equipment], hand-washing, to have prevented the spread and whether or not they had knowledge of the risk of spread before and didn’t do anything about it?

I definitely see those kinds of cases because of this ill worker or this failure of having adequate PPE.

I think you’ll see a lot of litigation between various owners of businesses and their tenants who say, “I can’t afford to pay my rent anymore.”

Given probably a 25% unemployment rate in the next 30 days, I think, unfortunately, you’re going to see a lot of people going bankrupt. I don’t know how that’s all going to shake out.

In my space, I have a hard time seeing foodborne illness litigation over COVID. But I can definitely see in some areas, like the medical malpractice area, or I can see workers potentially trying to get around worker compensation situations where they can show some level of negligence or conscious disregard on the part of an employer, which is probably why [Senate Majority Leader Mitch] McConnell and the Republicans want to give immunity.

What were you working on when the pandemic hit?

I’ve been working on the latest romaine lettuce cases from last fall and the Jimmy John’s E. coli cases linked to their continuing to sell sprouts and the hepatitis cases linked to blackberries in the Midwest. Those are all cases that got generated in the last six months by outbreaks, so that’s what we are working on right now.

That’s why I said it will be interesting to see when there’s lack of inspections, lack of recalls, lack of investigations, that whether there’s less litigation in my space because of the lack of investigations, inspections, reports.

We’ve seen that happen in the downturn in the economy in 2008. We saw definitely less inspections, less outbreaks, so that definitely impacted the number of lawsuits that we filed because there were less of them to file.

I’m kind of anticipating something like that again. But the great thing about practicing the same thing since 1993 — so 27 years since the Jack in the Box cases — I’ve seen downturns and upturns and I think, unfortunately, we’ve still not gotten as good as we could be about protecting Americans from foodborne illness.

So it might be a downturn for a few years, but, unfortunately, I think it will be back again. It was just in 2018 that we had one of the largest E. coli outbreaks ever linked to romaine lettuce. They’re still growing romaine lettuce in Yuma and probably haven’t solved the problem and there are probably cases going on right now but nobody’s investigating them.

Aside from work, what have you been doing to keep busy?

I have been walking eight miles a day. The great thing about living on an island is that the traffic has been nothing. We have a lot of trails. It’s a pretty rural island. Sometimes in the morning I’ll just get up and go for a four- or five-mile walk and do it again in the evening, and sometimes I’ll go for a forced eight-mile march.

Sometimes I’ll be walking along, and somebody will drive by, like, “What are you doing? Is your car somewhere?” and I’m like, “No, I’m just out walking.”

I have to admit I’ve been doing a little online shopping. I bought things that are a little bit odd. I won’t necessarily tell you all of them, but I bought my wife some new outdoor furniture to sit on.

I’ve been trying to stay sane a little bit because my normal practice had me on the road two to three days a week somewhere in the world.

I’ve got a case pending in South Africa. I’ve got all of these food safety speeches all over the world and all of those conferences got canceled over the last three months, and some that are scheduled for later this year have gotten canceled too. I was supposed to be in Beijing a month ago and that got canceled.

And then I commute an hour from my house to my office, so I’m saving two hours a day of commuting. I have a lot more time on my hands than I did before, but I seem to be spending my time walking, working in our yard and buying things I don’t need online.

My wife hasn’t left me yet. I don’t know if she’s gotten used to me being here so much, but she clearly had gotten used to me being on the road a couple of days a week. She’s probably been the one to suffer more than anyone.

What are you looking forward to the most when the shutdown ends?

I really enjoy going to these food safety conferences and speaking about food safety. I like the litigation aspect of my job too, but I still enjoy trying to make things better. I miss that a little bit, so hopefully I’ll get back to doing that.

I teach a class at the University of Arkansas on food safety. I teach a seminar every year, usually two to three days, but I had to do it all by Zoom this year, which is kind of weird.

I’m looking forward to doing that more for sure.

And I miss going to my local restaurants on the island where everybody knows your name and they know what drink you order.

We’ve been helping out local businesses here on the island. I’ve donated money to them. They make meals for people who don’t have work or who are hurting. We’ve been trying to help keep the restaurants alive for the reason I’d like them to be there when this is over.

–Editing by Jill Coffey.

Stop Foodborne Illness and the Center for Science in the Public Interest (CSPI) are calling for important changes at the U.S. Department of Agriculture to reduce consistently high burdens of foodborne illness associated with Salmonella and Campylobacter in poultry.

In comments filed with USDA’s Food Safety and Inspection Service (FSIS), the groups said that USDA’s 25-year old regulatory framework lags behind recent advances in science and technology and fails to reflect modern best practices for preventing illness caused by pathogens in food.

“To their credit, FSIS, academic experts, and many poultry industry leaders recognize the poultry safety problem and are working on solutions,” said Stop Foodborne Illness CEO Mitzi Baum. “Consumers rightfully expect, however, that FSIS build today’s best practices into its regulatory system so they can become common practices.”

Two of the country’s leading consumer groups called for key changes in FSIS rules. First, they asked the agency to hold poultry slaughter establishments accountable for minimizing the extent to which live birds entering their facilities are contaminated with dangerous pathogens.  Second, the groups asked the agency to replace the currently unenforceable Salmonella and Campylobacter performance standards with enforceable finished product standards targeting the forms of these bacteria most likely to make people sick.

“Given all that we now know about how disease spreads from farms into our food system, it is no longer acceptable for safety regulations to stop at the slaughterhouse door,” said Sarah Sorscher, Deputy Director of Regulatory Affairs at Center for Science in the Public Interest.  “USDA must work with stakeholders to ensure that harmful pathogens are controlled on the farm, so that sick animals will not spread disease to humans through the food supply.”

Salmonella and Campylobacter together account for more than 70 percent of the confirmed hospitalizations and deaths attributable to the foodborne pathogens monitored by the Centers for Disease Control and Prevention (CDC) in its FoodNet surveillance system, and poultry is a significant contributor to illness.  The groups also endorsed CDC’s conclusion in its 2019 FoodNet report that: “Reducing foodborne illness will require more widespread implementation of known prevention measures and of strategies that target particular pathogens and serotypes.”

The groups are not alone in calling for changes. In 2015, FSIS made extensive recommendations for poultry growers to improve pre-harvest food safety practices and to implement interventions aimed specifically at reducing contamination of live birds with Salmonella and Campylobacter.  In 2019, the National Advisory Committee on Microbiological Criteria for Foods recommended FSIS consider serotype-specific pre-harvest controls and the development of approaches that exclude Salmonella serotypes of public health concern from raw poultry products.  Some poultry companies are reportedly using sophisticated microbial mapping, vaccines, and other modern tools to control hazards in their pre-harvest operations.

“My 18-month son was seriously injured and permanently disabled as a result of Salmonella-contaminated chicken,” said Amanda Craten, who serves on the board of directors of Stop Foodborne Illness. “My family wants nothing more than to support the work of those in USDA, the poultry industry, and the public health community who share our goal of preventing others from suffering what we have suffered.”

The comment from Stop Foodborne Illness and CSPI responds to a petition from the law firm Marler Clark, LLP asking FSIS to declare Salmonella serotypes associated with illness outbreaks to be adulterants under the meat and poultry inspection laws.  The consumer groups’ comment said the petition made a compelling case and should serve as a springboard for reform of the FSIS regulations mandating Hazard Analysis and Critical Control Points (HACCP) and the accompanying pathogen reduction performance standards.

This is not meant as a criticism of my friends at the FDA or the good people at LGMA – California and Arizona – or at Western Growers, United Fresh or PMA.  But seriously, since leafy green E. coli O157:H7outbreaks spiked in the early 2000’s, is anyone surprised by the following conclusion by the FDA (only that it was not said out loud sooner).

Also, the has long reported that tracebacks on all three outbreaks have identified a common grower in Salinas.  However, that grower has remained unnamed – so much for transparency.

FDA considers adjacent or nearby land use for cattle grazing as the most likely contributing factor associated with these three outbreaks. While the agency could not confirm a definitive source or route(s) of contamination of the romaine fields, the Agency considers indirect transmission of fecal material from adjacent and nearby lands from water run-off, wind, animals or vehicles to the romaine fields, or to the agricultural water sources used to grow the romaine, as possible routes of contamination.

According to a report by the FDA released today, in November and December 2019 there were three E. coli O157:H7 foodborne illness outbreaks.  One outbreak sickened 167 and was in part linked to Ready Pac Bistro® Chicken Caesar Salad and Fresh Express Leafy Green Romaine.  The romaine lettuce came from the Salinas growing region.  The second outbreak sickened 11 and was linked in part to the Evergreen’s restaurant chain and was again linked to romaine lettuce from the Salinas growing region.  The third outbreak sickened 10 and was linked to Fresh Express Sunflower Crisp Chopped Salad Kits from romaine lettuce grown in the Salinas growing region.

During the course of these investigations, the FDA determined that:

  • Each of these three outbreaks was caused by distinctly different strains of coli O157:H7 as determined by whole genome sequencing (WGS) analysis;
  • Outbreak 1 strain of coli O157:H7 was found in two different brands of fresh-cut salads containing romaine lettuce in 2019;
  • Traceback investigations of multiple illness sub-clusters and supply chain information identified a common grower with multiple ranches/fields, which supplied romaine lettuce during the timeframe of interest to multiple business entities associated with Outbreaks 1, 2 and 3;
  • The Outbreak 1 strain of coli O157:H7 was detected in a fecal-soil composite sample taken from a cattle grate on public land less than two miles upslope from a produce farm with multiple fields tied to the outbreaks by the traceback investigations.
  • Other STEC strains, while not linked to outbreaks 1,2, or 3, were found in closer proximity to where romaine lettuce crops were grown, including two samples from a border area of a farm immediately next to cattle grazing land in the hills above leafy greens fields and two samples from on-farm water drainage basins.

See picture above right – cows on hillside, leafy greens below.  People say what about shit and hillsides?

The FDA has made the following recommendation (not mandates):

In light of the findings of these investigations, FDA recommends that growers of leafy greens:

  • Emphasize/Redouble efforts around Prevention
  • Assess growing operations to ensure implementation of appropriate science and risk-based preventive measures, including applicable provisions of the FSMA Produce Safety Rule and GAPs.
  • Adjacent Land Use – Assess and mitigate risks associated with adjacent and nearby land uses, including grazing lands and animal operations regardless of size. Prevent contamination from uphill adjacent cattle grazing lands, such as by produce farms increasing buffer zones if fields are adjacent to cattle grazing lands (based on assessment); and adding physical barriers such as berms, diversion ditches and vegetative strips
  • Agricultural Water – Ensure that all agricultural water is safe and of adequate sanitary quality for its intended use. Assess and mitigate risks related to land uses near or adjacent to agricultural water sources that may contaminate agricultural water. Ensure that any agricultural water treatment is validated, verified, and in accordance with all applicable Federal, State, Local, and other regulations
  • Improve Traceability
  • Increase digitization, interoperability and standardization of traceability records, which would expedite traceback and prevent further illnesses.
  • Broader, more consistent implementation of voluntary source labeling on packaging or point of sale signs, or by other means to help consumers and retailers more readily identify product during an outbreak or recall.
  • Improve Root Cause Analysis
  • Perform a root cause analysis when a foodborne pathogen is identified in the growing environment, in agricultural inputs (e.g., agricultural water or soil amendments), in raw agricultural commodities or in fresh-cut ready-to-eat produce.

Here is the complete report: Investigation Report:  Factors Potentially Contribution to the Contamination of Romaine Lettuce Implicated in the Three Outbreaks of E. coli O157:H7 During the Fall of 2019

Thank you captain.

According to data collected by FERN, as of May 13 at 12pm ET, at least 206 meatpacking and processed food plants and 9 farms have confirmed cases of Covid-19, and at least two meatpacking plants and five processed food plants are currently closed. At least 15,525 workers  (14,136 meatpacking workers, 1,017 food processing workers, and 372 farmworkers) have tested positive for Covid-19 and at least 60 workers (55 meatpacking workers and 5 food processing workers) have died. 

Lack of food worker safety will lead to a lack of food security.

Kyle Bagenstose of  USA Today did a deep dive into food safety in today’s article: “Inspections, citations, recalls slashed: Coronavirus is testing America’s food safety net.”  The lack of inspections and recalls are of great concern.

In addition, the questions raised about foodborne illness investigations (or the lack thereof) are of even great concern, as I weighed in on:

Another weak link in the food safety chain involves doctors, patients and health departments.  

Typically, outbreak investigations start at the local level, when a sick patient visits a doctor and a stool sample is taken. Those samples are then collected through a series of commercial and public health laboratories before being uploaded into the PulseNet database.

But hospitals and health departments are understandably focused on COVID-19, said William Marler, an attorney with Marler Clark in Seattle who specializes in food safety.

“If a kid gets acute kidney failure caused by E. coli, normally there would be a health worker there interviewing them to find out the common denominator for their illness,” Marler said. “Are they able to do that? I think the answer is probably not.”

There are additional signs such shortfalls may be occurring.

On a national call with consumer groups last week, CDC officials said several state health departments reported trouble keeping up with stool sample testing and asked for federal support. One state, which was not identified by the CDC, requested further help with interviewing patients to determine what they ate.

Janet Hamilton, executive director of the Council of State and Territorial Epidemiologists says her organization has also been holding weekly COVID-19 calls with health officials from across the country. 

Asked about whether state health departments were struggling to keep up with foodborne illness responsibilities, Hamilton did not offer specifics but said such agencies were being crunched by years of budget cuts even before coronavirus.

“Of course, protecting the nation’s food supply is critical,” Hamilton said, “but what we need is consistent, dedicated funding to support our public health infrastructure, to ensure we’re ready to respond to foodborne illnesses, as well as any other kind of outbreak.”

Many experts said they believe the drop-off in sampling may be caused by Americans choosing to stay home rather than seek treatment and testing for stomach problems.

“There’s no question that people who have called us over the last couple of months, have gone, ‘I don’t really want to go to the doctor because of COVID,’” Marler said. “Clearly some of the mild cases of foodborne illness are not going to get caught.”

Marler added that there may also be changes to risk factors for foodborne illness, with less eating out at restaurants and more people eating out at home.

But he said we probably won’t not have all the answers until after the pandemic has subsided.

“It’s going to be an interesting time after all this is over,” he said, “to sort of do an analysis of the whole food safety system and what impact COVID did or did not have.

So, let me get this right, the President orders meat processing plants to open and a Governor orders to withhold information about COVID illnesses in those same plants.

From the CDC as of May 1: COVID-19 cases among U.S. workers in 115 meat and poultry processing facilities were reported by 19 states. Among approximately 130,000 workers at these facilities, 4,913 cases and 20 deaths occurred. Factors potentially affecting risk for infection include difficulties with workplace physical distancing and hygiene and crowded living and transportation conditions.

Now the Nebraska News Channel reports that hours before workers at a Nebraska City food processing plant were informed of prevalence of COVID-19 in the workplace, Gov. Pete Ricketts announced that state health workers will no longer be able to report COVID-19 data from meat processing plants.

Grant Brueggemann of the Southeast District Health Department says he expects county-by-county cases to still be reported, but not specific data on food processors.

The Southeast District has previously reported seven cases within its boundaries and has not indicated a workplace for any of them.

Elkhorn Logan Valley Health Director Gina Uhing had provided updates on the Tyson plant in Madison, Neb.  Her final report indicated 220 cases. Public Health Solutions’ last report prior to the governor’s order said the Smithfield Plant in Crete had seen 139 positive cases.

Gov.  Pete Ricketts said Wednesday that the state won’t be releasing specific numbers of cases at meatpacking plants, saying it’s a matter of privacy.

President Trump has classified U.S. meat plants as critical infrastructure. The President’s order prevents local health agencies from closing plants down.

With COVID-19, what will 2020 bring?

According to FoodNet data published in the recent Morbidity and Mortality Weekly Report, in 2019, compared with the previous 3 years, the incidence of infections caused by pathogens transmitted commonly through food increased (for Campylobacter, Cyclospora, STEC, Vibrio, Yersinia) or remained unchanged (for Listeria, Salmonella, Shigella).

These data indicate that Healthy People 2020 targets for reducing foodborne illness will not be met.

Serotype Enteritidis has been the most common cause of Salmonella infections at FoodNet sites since 2007 and incidence has not decreased. Eggs were the major source of Enteritidis infections in the 1980s. Chicken was recognized as another important source during the late 1990s. Infantis moved from the ninth most common Salmonella serotype among infected persons during 1996–1998 to the sixth most common in 2019. Many infections are now caused by a new, highly resistant strain found in chicken. The incidence of some serotypes has declined. Typhimurium moved from the most common serotype during 1996–1998 to the third most common in 2019. Heidelberg, the third most common serotype during 1996–1998, is no longer among the top 20. These decreases might be partly related to the widespread practice of vaccinating chickens against Typhimurium, which shares antigens with Heidelberg. This observation, combined with a marked decline in Enteritidis infections in the United Kingdom after implementation of widespread chicken vaccination and improved farm hygiene, suggests that targeting other serotypes through poultry vaccination could be one way to reduce human illnesses in the United States.

Laboratory-diagnosed non-O157 STEC infections continue to increase. Although STEC O157 infections appear to be decreasing, outbreaks linked to leafy greens continue.

Produce is also an important source for Cyclospora, Listeria, and Salmonella. Although adoption of syndromic panels could be contributing to the large increase in Cyclospora, increased exposure to this pathogen cannot be excluded. Continued implementation of FDA’s Produce Safety Rule (e.g., expanded surveillance inspections of foreign and domestically grown produce) is needed, as are innovative approaches for preventing contamination.

Advances in laboratory science continue to revolutionize enteric disease clinical diagnostics and surveillance. Many laboratories now use CIDTs to detect infections that would have previously been undiagnosed. In 2019, public health laboratories fully transitioned the standard subtyping method for clinical bacterial isolates from pulsed-field gel electrophoresis to WGS. WGS provides detailed information to more effectively recognize outbreaks, determine resistance patterns, and investigate reoccurring, emerging, and persisting strains. However, because CIDTs do not yield isolates needed to perform WGS, the full potential of these new technologies can only be realized when laboratories are fully able to culture CIDT-positive specimens.

With health officials now focused (understandably) on the COVID-19 pandemic, it will be interesting to see if foodborne illnesses decline in 2020 and the cause of the decline..

Infections from five of eight pathogens tracked by the CDC are on the rise.  See MMWR this week.

Initial analysis of data comparing the period from 2016-2018 with numbers for 2019 (see table below) shows that the federal government’s Healthy People 2020 targets for reducing foodborne illness will not be met, according to the Morbidity and Mortality Weekly Report (MMWR) published by the Centers for Disease Control and Prevention.

The bad news could be softened if businesses would adopt proven food safety measures, according to the research team.

“. . . progress in controlling major foodborne pathogens in the United States has stalled,” according to the report. “To better protect the public and achieve forthcoming Healthy People 2030 foodborne disease reduction goals, more widespread implementation of known prevention measures and new strategies that target particular pathogens and serotypes are needed.”

A network of labs in 10 states, dubbed FoodNet, tracks the eight foodborne pathogens covered in the report: Campylobacter, Cyclospora, Listeria, Salmonella, Shigella, shiga toxin-producing E. coli (STEC), Vibrio, and Yersinia. Infections caused by Listeria, Salmonella, and Shigella remained flat. Illnesses from all other pathogens showed increases.

The research team specifically held up leafy greens and other fresh produce as problematic.

“Laboratory-diagnosed non-O157 STEC infections continue to increase. Although STEC O157 infections appear to be decreasing, outbreaks linked to leafy greens continue. Produce is also an important source for Cyclospora, Listeria, and Salmonella,” according to the report.

The chicken industry also got attention in the report.

“Reductions in Salmonella serotype Typhimurium suggest that targeted interventions — e.g., vaccinating chickens and other food animals — might decrease human infections,” states the report.

“. . . Reducing contamination during food production, processing, and preparation will require more widespread implementation of known prevention measures and of new strategies that target particular pathogens and serotypes.”

While Campylobacter and Salmonella were responsible for the most illnesses, proportionally, trends in incidence among several Salmonella serotypes varied. 

Researchers gave a nod to technology, specifically culture independent diagnostic tests (CIDTs), but they say better testing cannot account for the significant increases of infections from some pathogens and no change in others.

Number of laboratory-diagnosed bacterial and parasitic infections, hospitalizations, and deaths, incidence and percentage change compared with 2016–2018 average annual incidence rate, by pathogen —10 U.S. sites, Foodborne Diseases Active Surveillance Network (FoodNet),* 2016–2019†

Click to enlarge

Abbreviations: CI = confidence interval; N/A = not applicable; STEC = Shiga toxin-producing Escherichia coli.
* Data collected from laboratories in Connecticut, Georgia, Maryland, Minnesota, New Mexico, Oregon, Tennessee, and selected counties in California, Colorado, and New York.
† Data are preliminary.
§ Cases per 100,000 population.
Percentage change reported as increase or decrease. CIs not including zero are statistically significant.

So says the press release from the Department of Justice today.

Here is something that I wrote almost 5 years ago today:

After watching the Blue Bell Listeria Outbreak unfold over the last months – especially after reading the FDA’s 483’s, I think it is time for the President and CEO of Blue Bell to consult with criminal counsel.  True, perhaps he did not know that his Broken Arrow Plant had Listeria positives going back over years, but knowledge is not necessary for the FDA and a US Attorney to prosecute – just ask the Jensens and DeCosters.

Congress passed the Federal Food, Drug, and Cosmetic Act in 1938 in reaction to growing public safety demands.  The primary goal of the Act was to protect the health and safety of the public by preventing deleterious, adulterated or misbranded articles from entering interstate commerce.  Under section 402(a)(4) of the Act, a food product is deemed “adulterated” if the food was “prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health.” A food product is also considered “adulterated” if it bears or contains any poisonous or deleterious substance, which may render it injurious to health.  The 1938 Act, and the recently signed Food Safety Modernization Act, stand today as the primary means by which the federal government enforces food safety standards.

Chapter III of the Act addresses prohibited acts, subjecting violators to both civil and criminal liability. Provisions for criminal sanctions are clear:

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

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

The legal jargon aside, if you are a producer of food and knowingly or not sell adulterated food, you can (and should) face fines and jail time.  Mr. Kruse, I know you are a lawyer, but you should get another one.

The inspection observations of the most recent completed FDA inspections at the Blue Bell production facilities in Brenham, Texas, Broken Arrow, Okla., and Sylacauga, Ala. are available:

More from the Justice Department:

Texas-based ice cream manufacturer Blue Bell Creameries L.P. agreed to plead guilty to charges it shipped contaminated products linked to a 2015 listeriosis outbreak, and the company’s former president was charged in connection with a scheme to cover up the incident, the Justice Department announced today.

In a plea agreement filed with a criminal information in federal court in Austin, Texas, Blue Bell agreed to plead guilty to two misdemeanor counts of distributing adulterated ice cream products and pay a criminal fine and forfeiture amount totaling $17.25 million.  Blue Bell also agreed to pay an additional $2.1 million to resolve civil False Claims Act allegations regarding ice cream products manufactured under insanitary conditions and sold to federal facilities.  The total $19.35 million in fine, forfeiture, and civil settlement payments constitutes the second largest-ever amount paid in resolution of a food-safety matter.

In a related case, Blue Bell’s former president, Paul Kruse, also was charged with seven felony counts related to his alleged efforts to conceal from customers what the company knew about the listeria contamination.

“American consumers rely on food manufacturers to take necessary steps to provide products that are safe to eat,” said Assistant Attorney General Jody Hunt of the Department of Justice’s Civil Division.  “The Department of Justice will take appropriate action where food manufacturers ignore poor factory conditions or fail to abide by required recall procedures when problems are discovered.”

The plea agreement and criminal information filed today against Blue Bell in the U.S. District Court for the Western District of Texas alleges that the company distributed ice cream products that were manufactured under insanitary conditions and contaminated with Listeria monocytogenes, in violation of the Food, Drug and Cosmetic Act.  According to the plea agreement, Texas state officials notified Blue Bell in February 2015 that two ice cream products from the company’s Brenham, Texas factory tested positive for Listeria monocytogenes, a dangerous pathogen that can lead to serious illness or death in vulnerable populations such as pregnant women, newborns, the elderly, and those with compromised immune systems.  Blue Bell directed its delivery route drivers to remove remaining stock of the two products from store shelves, but the company did not recall the products or issue any formal communication to inform customers about the potential listeria contamination.  Two weeks after receiving notification of the first positive listeria tests, Texas state officials informed Blue Bell that additional testing confirmed listeria in a third product.  Blue Bell again chose not to issue any formal notification to customers regarding the positive tests.

Here is Kruse Indictment – 1-main

From professor Lytton in the Conversation:

Governors around the country are attempting to restart the economy by easing restrictions put in place to prevent the spread of COVID-19. The prospect of returning to “normal” amid a pandemic has businesses lobbying Congress to grant them sweeping immunity from civil liability for failure to adequately protect workers and customers from infection.

Senate Majority Leader Mitch McConnell has warned of an “avalanche” of lawsuits that will stymie economic recovery efforts if Congress does not act quickly. He said he won’t let another coronavirus bailout pass the Senate unless it also shields companies from coronavirus-related liability.

My research on the role of civil lawsuits in reducing foodborne illness outbreaks suggests that fears of excessive litigation are unwarranted. What’s more, the modest liability exposure that does exist is important to ensuring businesses take reasonable coronavirus precautions as they reopen their doors.

How not to be careless

As a general matter, businesses are subject to civil liability for carelessness that causes injury to others. The law defines carelessness as a failure to exercise “reasonable care.”

In applying this standard, courts consider several factors:

If the answer to one or more of the questions is no, then a court may conclude that the business was careless and is subject to liability for damages to customers who suffered harm.

In the context of the current pandemic, I believe that reasonable care sets a clear standard for business owners. Invest in cost-effective precautions like ensuring employees wear masks and gloves and keeping customers apart. Follow the guidance of health officials and all health and safety regulations. Keep up with what other similar businesses are doing to prevent infection. Use common sense.

Law abiding, thoughtful business owners – those who care about the safety of their employees and their patrons – are likely to exercise reasonable care to prevent COVID-19 transmission with or without the threat of a lawsuit.

For example, the owner of a nail salon in Georgia recently described her plans for reopening. The salon will accept patrons by appointment only, conduct pre-screening telephone interviews for signs of illness, limit the number of people in the salon at any one time, take temperatures before allowing people to enter, require hand-washing, equip employees and patrons with masks and gloves, and sanitize all work areas between appointments.

Conscientious business owners like this have no reason to fear a lawsuit alleging they failed to take reasonable precautions.

Predictions of “frivolous” lawsuits appear to be generating unnecessary anxiety among business groups. But they shouldn’t. Personal injury lawyers representing victims work on a contingency fee basis. This means that they only earn fees when they bring cases with a strong enough chance of winning to reach a favorable settlement or a judgment.

Lawyers have no incentive to bring sure losers, and they risk being disciplined for professional misconduct if they do so. For these reasons, frivolous lawsuits are rare and highly unlikely in the context of COVID-19 transmission claims against businesses.

Exaggerated fears

Even for business owners who fail to take reasonable precautions, the prospect of a lawsuit is still remote.

To successfully sue a business for COVID-19 transmission, a patron would have to prove that he or she contracted COVID-19 from the business and not from some other source. However, most people infected with COVID-19 currently have no reliable way of identifying the source of their infection. The gap of three to 11 days between infection and illness, the difficulty of recalling all of one’s contacts during that interval and limited testing for the virus present formidable obstacles to establishing causation.

Moreover, a business would not be liable to patrons who knowingly and voluntarily assumed the risk of infection. Patrons of crowded stores or businesses where many customers and employees are not wearing masks, for example, would not have viable legal claims even if they can prove carelessness and causation.

Sending a strong signal

Because of these considerable challenges, viable legal claims related to COVID-19 are likely to be extremely rare.

Yet even occasional lawsuits act as a nudge, encouraging the entire business community to adopt reasonable precautions. This is one of the lessons of civil litigation arising out of foodborne illness outbreaks.

As I document in my 2019 book, “Outbreak: Foodborne Illness and the Struggle for Food Safety,” a small handful of high-profile lawsuits against food companies have encouraged businesses at every link along the supply chain to improve their safety practices. That’s what happened after lawsuits against Jack in the Box over contaminated hamburgers in 1993 and Dole over E. coli in baby spinach in 2006.

Similarly, the prospect of liability for COVID-19 transmission is likely to encourage business owners to invest in cost-effective precautions, follow the advice of public health authorities, adopt industry safety standards and use common sense.

Shielding business owners from this liability is one kind of immunity that will not help end the current crisis.

Thanks professor Lytton.