Saturday, September 26, 2026

This is the twelfth Saturday column. Last Saturday’s edition ran under the headline FDA Confirmed the Sprout Seed Recall and Still Did Not Say Who Sold the Seed; its point was that the answers existed, just not on the page where people look. This week the pages filled in, and every one of them was written after the fact. A raw milk cheese outbreak that put eight people in the hospital, in a group where more than half are five or younger, was announced Friday, seventy-nine days after the first illness and thirty days after the last. The broccoli sprout recall that reached the shelf on September 4 could have reached seven of the 32 people now counted. The alfalfa seed lot turned up in retail bags in 44 states, with no lot code on the small ones. Two outbreaks closed with 1,270 sick people between them, three files opened with 78 more, and the person nominated to run FDA sat for her confirmation hearing Thursday and, by one account, could not name the office that investigates any of it. The recalls are arriving. The outbreaks are already over.

Thirteen people in nine states have E. coli O26:H11 from a raw milk cheese, eight are hospitalized, three have HUS, and more than half are five years old or younger. CDC and FDAposted the outbreak Friday. The cheese is Graziers grass-fed raw milk cheese from Sierra Nevada Cheese Company of Willows, California: medium cheddar, sharp cheddar, jalapeño jack and Monterey jack, in 8-ounce and 16-ounce retail packages and five-pound food-service loaves, sold nationwide and online. Illnesses began July 7 and the last reported one began August 26; the sick live in California, Nevada, Colorado, Georgia, Kentucky, Michigan, Oregon, Tennessee and Utah, ages one to 58 with a median age of five, and all nine people interviewed ate the cheese. FDA contacted the company Thursday and the company recalled every Graziers cheese the same day, with no lot codes, because the investigation has not narrowed to a lot or a date. That is seventy-nine days after the first illness. San Diego County says two of California’s three cases are San Diego children under five. The labels FDA posted say the cheese was aged at least sixty days, which is what the federal rule has asked of raw milk cheese for decades, and this is the fourth outbreak in thirty-one months in cheese that met it: Raw Farm in February 2024, Twin Sisters Creamery in October 2025, Raw Farm again in March 2026, and now Graziers, 43 sick, 17 hospitalized and six with HUS between them. The same company had its Bella Capra raw goat cheddar recalled and quarantined by the state for Listeria in August 2025. I wrote about it Friday night, including the citizen petition I have been working on to put a warning statement on cheese made from unpasteurized milk and to finish the reevaluation of the sixty-day rule that FDA announced in 2013.

The broccoli sprout count went to 32 in six states on Thursday, and 25 of those people were sick before the first recalled bag was delivered. CDC’s update adds ten people and two states, Minnesota and Oregon, to the Salmonella Bovismorbificans outbreak tied to Evergreen Fresh Sprouts of Moyie Springs, Idaho: Washington 24, Montana four, and one each in Idaho, Minnesota, Oregon and Utah, three hospitalized, onsets July 7 to September 3. Last Saturday the state’s page counted 27 across the outbreak and CDC’s counted 22; this week Washington counts 24 at home, in nine counties from Clark to Whatcom, and CDC counts 32 in all. Washington tested sprouts from a grocery store and from a sick person’s home, and both matched the outbreak strain. The recall, initiated September 4, covers 1,290 four-ounce bags delivered between August 24 and September 2; 25 of the 32 illnesses began on or before August 23, so the recall could have reached, at most, the last seven. Evergreen’s three outbreaks since 2011 now sum to 76 people. I ran the onset arithmetic Thursday.

The seed lot behind the alfalfa sprout outbreak was sold at retail in 44 states for seven months, and the small bags carry no lot code. Berlin Seeds of Millersburg, Ohio recalled 950 pounds of alfalfa sprouting seed Wednesday, lot SAL2-24JB, sold in its store and on its website from February 13 to August 23 to customers in every state but six. The lot code is printed only on the five-pound and fifty-pound bags; the quarter-, half- and one-pound bags a home sprouter buys have none. One illness has been reported to the company. It is the sixth sprout or seed recall since August 22, after Everything Sprouts, its expansion, the seed supplier, Evergreen and Todd’s Seeds, and FDA’s advisory, updated Thursday to add Berlin, still does not name the supplier, International Sprout Holdings of Cookeville, Tennessee, which has been in FDA’s own Enforcement Report since September 10, where Phyllis Entis found it. The outbreak itself has not moved since September 1: 55 sick in 15 states, four hospitalized, 46 with E. coli, seven with Salmonella Agona, two with both. Between the two sprout outbreaks, 87 people are sick, and the alfalfa advisory names neither the seed supplier nor the second grower it says received the seed. I wrote it up Wednesday night.

FDA’s table opened three files this week and closed two, and 65 of the new sick people have no food named. On Wednesday the CORE table added reference 1421, E. coli O157:H7, 25 sick, product not yet identified, carrying a USDA-FSIS reference number, 2026-04, which is what a joint investigation looks like on paper; and reference 1417, Listeria monocytogenes, 40 sick, product not yet identified. The SalmonellaNewport file opened August 26 went from 111 to 116 and FDA began sampling something it does not name. The rows with no food now number ten and carry 645 people, up from 575 last Saturday. On Friday the Graziers file went on as reference 1419. Frozen blueberries and moringa moved to the closed list. CDC’s own dashboard, dated Wednesday, shows 32 active multistate investigations, 20 Salmonella, six E. coli, five Listeria and one Campylobacter, down from 38 the week before. I wrote about the shared reference number Thursday; it is the most informative thing on any of the three agencies’ pages.

Two outbreaks closed with 1,270 sick between them, and the most useful fact in each came out on the last day. CDC declared the frozen blueberry E. coli O145:H28 outbreak over Monday at 17 sick and six hospitalized in Florida and Georgia. FDA’s closing note disclosed, for the first time on any agency page, that a Publix-collected sample of GreenWise frozen blueberries tested positive for the outbreak strain while every sample FDA collected was negative, and that FDA never inspected the Chilean packer in person; it did a remote assessment and put the firm on an import alert. Some of the recalled bags carry best-by dates in 2028. On Thursday CDC closed the 2026 backyard poultry Salmonella outbreaks at 1,253 sick, 256 hospitalized and two dead, in Georgia and Washington, across 46 states and Puerto Rico, seven serotypes, 22 percent of the sick under five. Eight hatcheries were linked to the strains. Not one is named. Both are on Food Poison Journal, the blueberries and the poultry.

The files that did not move are the ones where people are still waiting. Happy Hens: 23 sick, seven hospitalized, a recall on the state’s page since September 11 and none on the farm’s, and the egg test results San Diego County called pending on September 4 are still unpublished three weeks later. Bear River: 21 confirmed cases in Cache and Box Elder Counties, Utah, no source, no update since September 1. Hepatitis A in frozen blood clams: 37 sick, 30 hospitalized in four states, illness onsets into June on CDC’s page while FDA’s alertstill says they ended in February, and neither page says the clams came from a country with no shellfish agreement; I wrote that up Thursday. Woods Hill Table in Concord, Massachusetts reopened Tuesday with 14 confirmed Salmonella cases, nine employees and five customers, and no source; I wrote about it when it closed. Pet turtles hold at 20 sick in 12 states, half under five. And Cyclospora sits where CDC left it on September 15: 19,883 confirmed, 1,064 hospitalized, two dead, 12,883 of them in the closed iceberg lettuce outbreak and roughly 7,000 with no food named, with the next update whenever the agency decides.

The recall ledger, kept as every week by Phyllis Entis at eFoodAlert. FSIS announced Tuesday that Star Meat Delivery of North Carolina recalled 167,639 pounds of raw pork, beef and goat sold nationwide under the A&D Foods label, produced without federal inspection and carrying a counterfeit USDA mark; no illnesses are reported, and I wrote about the penalty for that on Food Poison Journal. FSIS added two Friday: 4,596 pounds of Sempio Korean ginseng chicken stew imported without reinspection, in eight states, and 2,320 pounds of Fontanini pork sausage links for hard plastic, in four. On the FDA side, Elegant Foods’ Pecorino Toscano wheels were recalled for Listeria and GreenTripe’s Xkaliber raw dog food for Salmonella, both in the Enforcement Report only, where Entis found them; Wakefern recalled Wholesome Pantry organic applesauce for patulin, Galil Importing recalled Lior ground cinnamon for lead in six states, Deano’s Pastarecalled ravioli for undeclared lobster in Massachusetts, and Mezzetta recalled a lot of Golden Greek peperoncini for what its notice calls a pest contaminant, after a video went around. In Canada, R.J. King Fisheries recalled frozen cooked lobster meat for Staphylococcus aureus. FDA also posted two warning letters Tuesday to raw pet food makers: Viva Raw, whose raw chicken dog food carried Salmonella Enteritidis and whose puppy food carried Listeria, and Raaw Energy, whose products carried Salmonella, Listeria and Campylobacter; that one is on Food Poison Journal too. The rest of the week’s ledger is in her September 20 to 22 and September 24 posts.

The nominee to run FDA sat for her confirmation hearing Thursday and, by Food Safety Magazine’s account, could not name the office that investigates outbreaks. Dr. Heidi Overton went before the Senate HELP Committee. Senator Patty Murray told her the Human Foods Program has about 1,700 employees, 13 percent fewer than at the start of 2025, and Senator Tim Kaine that FDA has lost 4,500 people, about a fifth of its workforce, and employs fewer federal food inspectors than in any year since 2005. Asked about mandatory GRAS notifications, she said the agency would need more resources to review them. Food Safety Magazine reported that when Murray asked about outbreak response, the nominee was not able to identify the CORE Network as the team that does it. Meanwhile the fifteenth congressional letter of the Cyclospora season turned up: 25 Democrats, 17 House members and eight senators including Schumer, led by Rosa DeLauro, wrote Secretary Rollins on September 17 asking USDA to stop closing the Beltsville research center that does the parasite work. Published answers to fifteen letters: none. On infant formula, the shirts have been on 77 committee desks for nearly two weeks with one reply, and Target argued in federal court that it had no duty to ask a question about the formula it sold during an outbreak; I answered that Tuesday. A federal judge in Minnesota entered a consent decree against a Minneapolis warehouse that stored infant formula among rodents after 26 state inspections; nobody was charged. I also wrote this week on what a food safety NTSB would have had to record this month, on Tom Gremillion’s deterrence piece, and on why E. colidoes not care how you vote, and I gave two talks at the Aquatiq Food Forum in Oslo on Wednesday and Thursday. And the firm is hiring an associate and a paralegal; the ad ran last Saturday.

That’s the week — a raw milk cheese recalled seventy-nine days after the first illness, a sprout recall that could have reached seven of 32, a seed lot in 44 states with no code on the small bags, 65 new sick people with no food named, two outbreaks closed at 1,270, an egg farm still waiting on its test results, and a nominee who could not name CORE. The recalls are arriving. The outbreaks are already over. Check back next Saturday.

About Bill Marler

William “Bill” Marler has spent more than thirty years as a food safety lawyer and advocate—work that began with the 1993 Jack in the Box E. coli outbreak and has never really stopped since. In the years that followed, he has represented victims in nearly every major foodborne illness outbreak in the United States. That case, and the movement it launched, is the subject of the book “Poisoned” and the Emmy Award–winning Netflix documentary of the same name. Bill’s work has been profiled in The New Yorker (“A Bug in the System”), the Seattle Times (“30 years after the deadly E. coli outbreak, a Seattle attorney still fights for food safety”), the Washington Post (“He helped make burgers safer. Now he’s fighting food poisoning again”), and many others.

Dozens of times a year, Bill speaks to industry, regulators, and universities across the United States, Canada, Europe, Africa, China, and Australia about a simple idea: outbreaks are preventable. He has testified before Congress on the Food Safety Modernization Act and teaches food safety at institutions including the Harvard T.H. Chan School of Public Health. He writes regularly about food litigation and food safety at Marler Blog, and in 2009 he founded Food Safety News, which he continues to publish.

On Friday, September 25, the CDC and FDA announced that a multistate outbreak of Shiga toxin-producing E. coli O26:H11 has been linked to Graziers grass-fed raw milk cheese made by Sierra Nevada Cheese Company of Willows, California. Thirteen people in nine states are sick. Eight have been hospitalized, and three have developed hemolytic uremic syndrome (HUS), the kidney failure that follows some E. coli infections. No one has died. The median age of the sick is 5, and more than half of them are children age 5 or younger.

All four Graziers raw milk varieties — medium cheddar, sharp cheddar, jalapeño jack and Monterey jack — have been recalled. They were sold nationwide, in stores and online, in 8-ounce and 16-ounce packages and in 5-pound loaves to restaurants, delis and wholesalers. The cheese has a long shelf life. If any of it is in your refrigerator or freezer, do not eat it.

The numbers, as of September 25

CDC’s count:

  • 13 confirmed illnesses in nine states: California (3), Nevada (3), and one each in Colorado, Georgia, Kentucky, Michigan, Oregon, Tennessee and Utah.
  • 8 hospitalized — 62 percent of the people with information available.
  • 3 cases of HUS.
  • 0 deaths.
  • Ages range from 1 to 58, with a median of 5. Sixty-two percent are female.
  • Illnesses began between July 7 and August 26, 2026 — six in July and seven in August.

Nine sick people or their caregivers have been interviewed, and all nine reported eating Graziers raw milk cheese. For comparison, only 4.9 percent of respondents in CDC’s FoodNet Population Survey report eating raw milk cheese in a given week. Whole genome sequencing shows the bacteria from the sick people are closely related, which means they share a common source. San Diego County reports that two of California’s three cases are San Diego County children under 5.

The timeline matters. The first illness began on July 7; FDA did not contact the company until September 24, more than eleven weeks later. That lag is not unusual — CDC says it typically takes three to four weeks to link a sick person to an outbreak — but with a long-shelf-life cheese it means recalled product is almost certainly still sitting in homes, and CDC says the true number of sick people is likely much higher than 13.

The recall

FDA notified Sierra Nevada Cheese Company of the outbreak on September 24 and recommended a recall. The company agreed the same day and recalled all Graziers raw milk cheeses. In a statement posted to social media, the company said the illnesses have been associated with its medium cheddar, but that it is recalling every Graziers raw milk cheese on the market because the investigation has not narrowed to a specific lot or date code. That means there are no codes to check: every package of the four varieties is in the recall.

The 5-pound loaves are a particular problem. Cheese sold in bulk to food service and wholesale customers gets cut, re-wrapped and sold under a store’s own label, and FDA has told retailers that repackaged it not to sell it. If you bought cut raw milk cheddar or jack from a deli or cheese counter this summer and cannot tell where it came from, throw it out. FDA says its investigation into the source of the contamination, and into whether other products are affected, is ongoing.

This is not the company’s first problem with raw milk. In August 2025, California’s State Veterinarian ordered a statewide recall and quarantine of Sierra Nevada’s Bella Capra raw goat milk cheddar after California Department of Food and Agriculture testing found Listeria monocytogenes in the cheese.

“Aged 60 days” is not a kill step

Raw milk cheese is legal to sell across state lines. FDA’s standards of identity for cheddar (21 CFR 133.113) and Monterey jack (21 CFR 133.153) allow unpasteurized milk if the cheese is cured at not less than 35°F for at least 60 days — a rule adopted in 1949 on the theory that acid, salt and time would finish off whatever pasteurization was not there to kill. FDA has known for a decade that the theory does not hold. Beginning in 2014, it tested 1,606 aged raw milk cheeses because, in its own words, evidence indicated that 60 days of aging may not eliminate or adequately reduce disease-causing bacteria. It found Salmonella, Listeria monocytogenes and Shiga toxin-producing E. coli, each in under one percent of samples, and generic E. coli, the indicator of insanitary processing, in 5.4 percent. Then it stopped large-scale sampling.

The outbreak record since then is what the sampling predicted. Every one of these cheeses met the 60-day rule:

  • February 2024 — Raw Farm, LLC (Fresno, California), raw cheddar, E. coli O157:H7: 11 sick in five states, 5 hospitalized, 2 with HUS.
  • October 2025 — Twin Sisters Creamery (Ferndale, Washington), aged raw milk cheese, E. coli O103 and O26: 10 sick in Washington and Oregon, 1 hospitalized. The Washington State Department of Health noted the cheese “is aged at least 60 days, as required by law.” (I represent a claimant in that outbreak.)
  • March 2026 — Raw Farm again, raw cheddar and raw milk, E. coli O157:H7: 9 sick in three states, 3 hospitalized, 1 with HUS. Over half the sick were children under 5.
  • September 2026 — Sierra Nevada Graziers, E. coli O26:H11: 13 sick in nine states, 8 hospitalized, 3 with HUS. Over half are age 5 or younger.

Four outbreaks in a little over two and a half years: 43 people sick, 17 hospitalized, at least six with HUS, all from cheese that complied with federal law. The same O26 serogroup that is sickening people now turned up in the Twin Sisters cheese last fall. This is no longer a story about one bad dairy.

What FDA needs to do

I have been working on a citizen petition to FDA under 21 CFR 10.30 asks for two things. First, a prescribed warning statement on cheese made from unpasteurized milk, added to 21 CFR 101.17 — the same regulation that has required a warning on unpasteurized juice since 1998, after a child died in the 1996 Odwalla E. coli O157:H7 outbreak, and a safe-handling statement on shell eggs. The warning would have to travel with the cheese, onto cut-to-order pieces, imports and online listings, because a parent at a deli counter cannot read the fine print on a 5-pound loaf that was cut and re-wrapped in the back. Second, FDA should finish the reevaluation of the 60-day rule that it announced in 2013, when it released the joint FDA/Health Canada listeriosis risk assessment, and has never completed.

CDC’s advice in this very outbreak is to choose pasteurized milk and dairy products, and that doing so “is especially important for children under 5.” FDA and CDC already say that on their websites. The petition asks them to say it on the package, where a parent will see it.

What to do now

  • Check your refrigerator and freezer for Graziers medium cheddar, sharp cheddar, jalapeño jack or Monterey jack. Throw it away or return it for a refund. If you stored raw milk cheese without its original packaging and cannot identify it, throw it away.
  • Wash and sanitize anything the cheese touched: cutting boards, knives, containers and refrigerator shelves.
  • Watch for symptoms. E. coli O26 usually causes severe stomach cramps, diarrhea that is often bloody, and vomiting, beginning three to four days after eating the contaminated food and sometimes as late as nine days. Call a doctor for bloody diarrhea, a fever above 102°F, diarrhea lasting more than two days, vomiting that keeps you from holding down liquids, or signs of dehydration.
  • In young children, watch for the signs of HUS: urinating less often, unusual tiredness, and losing the pink color in the cheeks and inside the lower eyelids. Those are emergency-room symptoms.

Marler Clark has represented victims of E. coli and HUS since the 1993 Jack in the Box outbreak, including families whose children were sickened in earlier raw milk and raw milk cheese outbreaks. If you or a family member developed an E. coli infection or HUS after eating Sierra Nevada Graziers raw milk cheese, we can be reached at 1-800-884-9840. And if you are wondering whether raw milk cheese is worth it for your family, CDC’s answer this week is the same as mine: choose pasteurized.

Three federal websites are carrying the same outbreak this week, and none of them will tell you what food is in it.

On September 23, FDA’s CORE investigations table added reference #1421: E. coli O157:H7, 25 sick, traceback initiated. The entry carries a second number, USDA-FSIS reference 2026-04, and it is the only active row on FDA’s table with a USDA number attached. FSIS’s outbreak table now lists 2026-04 as a September 2026 investigation, pathogen E. coli O157:H7, product Unknown, Active: Yes, with a note that FDA and FSIS are investigating it together. Before this row, FSIS had listed three investigations for all of 2026, every one of them marked closed. This is the fourth, and the only one open.

CDC’s page does not list an outbreak until it has something to tell people to do. What it posts is a weekly count of active multistate investigations by germ. This week’s count: six for E. coli, five for Listeria, twenty for Salmonella, one for Campylobacter. CDC does not say which six E. coli clusters those are.

Is it the same outbreak?

Yes. The two tables point at each other: FDA’s row carries FSIS’s number and FSIS’s row carries FDA’s. FSIS’s own FAQ says an outbreak may appear on both tables when products regulated by both agencies are suspected sources. FDA’s CORE table is, in practice, a multistate table, and FSIS notes that CDC generally works only multistate investigations, so #1421 is almost certainly one of CDC’s six. Almost certainly is as far as the public record lets anyone go.

Why is CDC involved?

CDC is on every multistate cluster, whatever the food. The cases are matched by whole genome sequencing through PulseNet, the interviews are done by state and local health departments, and CDC coordinates the epidemiology. By its own description, CDC coordinates between 17 and 40 multistate investigations in a typical week, and not all of them produce a public notice. CDC being involved is the default, not the signal.

Why are both FDA and USDA on it?

This is the part worth understanding, because the two agencies do not share jurisdiction over food. They divide it. FSIS covers meat, poultry and processed egg products under the Federal Meat Inspection Act, the Poultry Products Inspection Act and the Egg Products Inspection Act. FDA covers everything else under the Food, Drug, and Cosmetic Act. Where a food contains both, a formula decides: products with more than 3 percent raw meat or poultry, or 2 percent or more cooked, are FSIS’s; anything under those thresholds is FDA’s. The line produces results that have been mocked in Congress for twenty years. Cheese pizza is FDA’s; pepperoni pizza is FSIS’s. A packaged open-face meat sandwich is inspected by FSIS and a closed-face sandwich by FDA, and GAO reported in 2001 that the split exists because FSIS lacked the resources to inspect every sandwich maker, so it kept the less common kind.

An outbreak lands on both tables when the epidemiology has not settled on one side of that line. FSIS says it posts an active investigation only when there is compelling epidemiologic, sampling or traceback evidence that an FSIS-regulated product is a confirmed or suspected source. It also says that calling a product suspected does not mean other foods were ruled out, and that an investigation can end up implicating a product FSIS does not regulate even when meat or poultry was the first suspect. On FDA’s side, a traceback has to start from something, a product or a point of sale, so FDA has a lead it is not naming. Put the two rows together and they read: the sick people ate something with a meat or poultry component and an FDA component, and neither agency has been able to eliminate its half.

There are two ways that happens, and they are different animals.

The first is a single mixed product that sits on one side of the line by formula. A chicken Caesar salad kit or a ready-to-eat pasta meal with chicken is an FSIS product on paper, but the contaminated ingredient inside it can be the lettuce, which pulls FDA into the traceback. The last two rows on FDA’s table to carry a USDA number were Listeria outbreaks in prepared pasta meals and ready-to-eat deli foods, both multi-ingredient products.

The second is a meal rather than a product. The customer ate a hamburger. The patty is FSIS’s; the lettuce and the onions are FDA’s. For E. coli O157:H7 this is the more likely shape, because its two biggest vehicles, ground beef and leafy greens, sit on opposite sides of the jurisdictional line, and a restaurant signal drags in both agencies at once.

What happened the last time it was a hamburger

On October 22, 2024, FDA, FSIS and CDC announced a joint investigation of E. coli O157:H7 illnesses in people who had eaten McDonald’s Quarter Pounders and said investigators were working out whether the slivered onions or the beef patties were the source. FDA traced the onions; FSIS traced the patties. The interviews could not separate the two: of the people who could remember what they ordered, 83 percent reported a menu item with slivered onions and 79 percent reported one with a quarter-pound patty. Three people had onions without the patty. One had the patty without onions. By October 30, FSIS reported that its traceback of the patties had not identified a beef source and that Colorado’s testing of the patties was negative, and Taylor Farms’ yellow onions were the likely vehicle. The final count was 104 sick in 14 states, 34 hospitalized and one dead. My firm represented people sickened in that outbreak.

The McDonald’s file also shows why the split matters to consumers and not only to lawyers. On the day of the announcement, McDonald’s pulled both the slivered onions and the Quarter Pounder patties from the affected states while the traceback ran. Nobody waited for the tie to be broken, and the public was told which two ingredients were in play.

What the public will and will not be told

For #1421 there are three doors. CDC posts a notice when there is something actionable to tell people, and it says plainly that not every investigation gets one. FDA posts an advisory when it names an FDA-regulated food. FSIS issues a public health alert or a recall when the evidence lands on meat or poultry. If none of those opens, the file closes the way #1382 did this month: romaine lettuce named only at closure, no grower, no processor, and nothing said while people were still eating it. FSIS’s own answer, on its outbreak page, to what if I want to know more about a specific investigation, is a link to its FOIA office.

What I would ask for is modest. Say which states. Say the onset dates. If the suspect is a mixed product, say so, and say which ingredient each agency is tracing, the way FDA and FSIS did within hours in 2024. The McDonald’s outbreak reached 104 people. This one is at 25, and 25 is a floor: a cluster that has produced two federal reference numbers and a traceback has not finished growing.

Why I am watching which half of the sandwich it is

I spent the first decade of this work suing over hamburger. That business went away because FSIS declared E. coli O157:H7 an adulterant in raw ground beef in September 1994 and the industry built its testing and its liability around that word. My firm’s hamburger cases ran from Jack in the Box in 1993 to the ConAgra recall in 2002 and are now close to zero. Since about 2000, the E. coli cases have mostly been lettuce. The bacteria did not move. The regulator did, and the half of the food supply that got the adulterant standard is the half that nearly stopped sending me clients. When FDA and FSIS both open a file on an O157 outbreak, the question I care about is not only what the food was. It is which side of the line it was on, and whether the regulator on that side has sampled for the bug the way FSIS has sampled ground beef since the fall of 1994.

CDC updated its outbreak page today. Thirty-two people in six states are infected with the outbreak strain of Salmonella Bovismorbificans linked to broccoli sprouts grown by Evergreen Fresh Sprouts, LLC of Moyie Springs, Idaho: twenty-four in Washington, four in Montana, and one each in Idaho, Minnesota, Oregon and Utah. Three have been hospitalized. No one has died. Illnesses began between July 7 and September 3. On September 11 the count was twenty-two people in four states with two hospitalizations; Minnesota and Oregon are new, and ten people have been added. The recalled sprouts carried use-by dates of September 7 through 16, the last of which passed eight days ago, and CDC still lists the investigation as open.

Ten more people and two more states, and the two are Minnesota and Oregon

CDC’s September 24 investigation update moved the last illness onset from August 26 to September 3. Of the twenty-seven people interviewed, twenty-six reported eating sprouts or microgreens, twenty-two named broccoli sprouts, and one reported a microgreen mix containing broccoli microgreens, against a FoodNet baseline of 8.7 percent for eating any sprouts in the prior week. Three of the thirty-two have been hospitalized, 9 percent.

CDC’s map shows where sick people live, not where they bought sprouts. Confirmed distribution is still Idaho, Montana and Washington, and both the recall notice and FDA’s advisory say product may have gone further. Utah has had a case since September 9 without appearing on the distribution list, and Minnesota and Oregon now join it. The microgreen line is new too: CDC does not say who grew that mix, the recall covers broccoli sprouts only, and FDA says its investigation is ongoing to determine the source of contamination and whether additional products are affected. That is the sentence to watch.

Twenty-five of the thirty-two got sick before the first recalled bag was delivered

CDC’s onset data, exported September 22 and posted with today’s update, shows two waves. Four people got sick in the second week of July, no one for the next nineteen days, and then twenty-seven between August 2 and August 28, with the busiest single day August 19, when five people fell ill. One more began September 3.

Week beginningOnsets
July 52
July 122
July 190
July 260
August 24
August 96
August 169
August 238
August 301
Total32

Illness onsets by week, Sunday through Saturday, computed from the CDC data export dated September 22, 2026 and posted with the September 24 update. The nine weeks sum to thirty-two.

Now put the recall against that curve. The company’s notice says the recalled bags were delivered to distributors between August 24 and September 2. Twenty-five of the thirty-two people were already sick by August 23, and Salmonella takes six hours to six days to make someone ill, so none of those twenty-five could have eaten a recalled bag. By its own dates the recall could account for at most the last seven illnesses. The other twenty-five ate broccoli sprouts from earlier production that was never recalled, because it had been eaten or had expired before anyone knew. That is the ordinary arithmetic of a sprout recall, and it is also why the count keeps rising after the product is gone: CDC says it usually takes three to four weeks to confirm that a sick person belongs to an outbreak, the newest onset is exactly three weeks old today, and bags with September 14 and 16 use-by dates were still on shelves after it.

Washington holds twenty-four of the thirty-two, and its own page still says twenty-one

The Washington State Department of Health last updated its page on September 17: twenty-one Washington residents in nine counties, two hospitalized, and two more broccoli sprout samples positive for the outbreak strain, one from a sick person’s home and one from a local food co-op. CDC’s map now carries twenty-four Washington residents, three the state page does not yet show. Montana’s page has not moved since September 3, when it reported two Montana residents and said local sanitarians were contacting stores one at a time to pull the sprouts; CDC has Montana at four. The state pages and CDC’s page are updated on different days by different people. Use the number attached to whichever agency you cite, and do not add state totals on top of CDC’s national count.

CountyCases
Clark2
Island1
King5
Skagit2
Snohomish1
Spokane3
Walla Walla1
Whatcom5
Yakima1
Total21

Washington cases by county of residence, as reported by the Washington State Department of Health on September 17, 2026. The nine counties sum to twenty-one.

Four positive sprout samples, 1,290 bags and one week of use-by dates

The recall Evergreen initiated on September 4 reached FDA’s recall page on September 10. It covers 215 cases of six four-ounce bags, 1,290 bags in all, UPC 8 38796 00105 1, with use-by dates of September 7, 9, 11, 14 and 16, delivered to three Washington distributors between August 24 and September 2 and sold on to stores in Idaho, Montana and Washington. The company says it stopped producing and shipping broccoli sprouts on September 4, that a third-party laboratory found Salmonella in a bag with a September 16 use-by date, and that a root cause investigation is under way.

The laboratory record is unusually strong for a sprout outbreak. Montana officials collected an unopened package from a sick person’s home, and whole genome sequencing matched it to the outbreak strain. Washington’s two samples, from the co-op and the sick person’s home, matched as well. Add the company’s own positive and there are four positive product samples. In Evergreen’s 2011 and 2014 outbreaks the product samples never matched, and epidemiology and traceback carried those investigations alone, as I wrote when FDA and CDC posted their pages on September 9. One gap in the notice remains: the company’s announcement describes bags, while CDC and Washington describe bags and clamshell containers sold through grocery stores, food co-ops and restaurants.

Evergreen’s third outbreak since 2011, and the running total is now seventy-six

In 2011, twenty-five people in five states were infected with Salmonella Enteritidis from alfalfa and spicy sprouts sold under the Evergreen Produce label. The company declined FDA’s request to recall until FDA warned the public directly, then recalled on July 1. In 2014, nineteen people in six states were infected with E. coli O121 traced to Evergreen’s raw clover sprouts, and there was no recall at all. Twenty-five plus nineteen plus thirty-two is seventy-six people over fifteen years from one grower. The history, with sources, is in my September 3 post.

Not the alfalfa outbreak, and not the only sprout recall this month

CDC says this outbreak does not appear to be related to the Salmonella and E. coli outbreak traced to alfalfa sprouts from Everything Sprouts of Minneapolis, which stands at fifty-five sick in fifteen states on FDA’s advisory. A Minnesota resident on today’s map is a state of residence, not a second link between the two: the serotypes are different, the growers are different, and the seed lots are different. That outbreak has produced its own chain of recalls, from the grower to the seed supplier to two retail seed sellers, and Evergreen’s is one of six sprout or sprouting-seed recalls posted between August 22 and September 23.

FDA has told the public not to eat raw sprouts since 1999. The bag still does not say so.

On July 9, 1999, FDA advised that anyone who wants to reduce the risk of foodborne illness should not eat raw sprouts, and that children, the elderly and people with weakened immune systems should not eat them at all. Twenty-seven years later that advice is on FDA’s website and nowhere on the package. I first asked FDA to require a warning statement on raw sprouts in March 2003, during a Salmonella outbreak traced to sprouts in Oregon, Washington and California. Two sprout outbreaks, eighty-seven sick people and six recalls in one summer are the argument, again.

What to do

Do not eat Evergreen Fresh Sprouts broccoli sprouts with use-by dates of September 7 through 16. Throw them away or return them, and wash anything they touched with hot soapy water or in a dishwasher. Restaurants and retailers should not sell or serve them. Symptoms of Salmonella usually begin six hours to six days after exposure, and most people recover in four to seven days. Call a doctor for diarrhea with a fever above 102°F, diarrhea lasting more than two days, bloody diarrhea, vomiting so severe that liquids will not stay down, or signs of dehydration. If you ate these sprouts and became ill, ask to be tested. A confirmed case is what connects a person to the outbreak, and it is where the next update’s numbers come from. Marler Clark’s page on this outbreak is here.

A federal judge in Minnesota entered a consent decree on September 21, 2026 that bars Gold Star Distribution, Inc. and its owner, Bassam Abu Samrah, from receiving, holding or shipping any FDA-regulated product until FDA says in writing that the North Minneapolis warehouse is fit to use. FDA announced it September 23. Investigators who walked the building from November 17 to December 18, 2025 counted nine live rodents, seventeen dead ones, eight live birds, one dead bird and five live worms among rice, cat food, over-the-counter drugs and, according to the government’s complaint, Enfamil infant formula. No illnesses have been reported. The story is not the rodents. The story is the calendar.

Inspectors found rodents, birds and worms in a warehouse that supplied WIC stores with infant formula.

FDA’s release is specific. Inspectors documented rodent excreta pellets, urine stains and gnaw holes in product packaging, refuse leaking near outgoing shipments, and ceiling leaks over stored goods. The agency’s laboratory confirmed rodent urine, excreta and hairs on packaging and gnaw holes through it. The complaint filed September 11 in the District of Minnesota, as reported by Hoodline and Medical Daily, names the stock: Enfamil and Enfamil Gentlease infant formulas, Meow Mix and Friskies, Tylenol, Advil and DayQuil, basmati rice, pregnancy tests and sanitary pads. The Minnesota Department of Health’s WIC program told its local agencies on January 6, 2026 that Gold Star “supplies food and infant formula products to some small WIC-authorized stores in Minnesota,” and that WIC could not reissue the recalled items on a participant’s card. The families who buy formula at a corner market on a WIC card are not the families with a second option.

The state had been in the building 26 times since 2013, and FDA five times before 2025.

That is FDA’s own count. The Minnesota Department of Agriculture inspected Gold Star 26 times between 2013 and 2025. FDA inspected it five times before the 2025 inspection that produced the complaint. Earlier visits, the release says, “documented rodents, gnaw marks, excrement, and nesting materials.” According to the complaint as reported, the state issued three warning letters between 2018 and 2025, imposed two monetary penalties and put the firm under a two-year license limitation agreement. None of it changed the building. The Department of Agriculture, the Board of Pharmacy and FDA all knew the address. The table below is the whole record as the government has now told it.

WhenWhoWhat happened
2013–2025Minnesota Department of Agriculture26 inspections of the Humboldt Avenue warehouse
Before 2025FDA5 inspections documenting rodents, gnaw marks, excrement and nesting material
2018–2025Minnesota Department of Agriculture3 warning letters, 2 monetary penalties, a 2-year license limitation agreement (per the complaint)
Nov. 17–Dec. 18, 2025FDA9 live and 17 dead rodents, 8 live birds, 1 dead bird, 5 live worms; lab confirms rodent urine, excreta, hair and gnaw holes on packaging
Nov.–Dec. 2025MDA and Board of Pharmacy2 embargo and cease-and-desist orders; food wholesale license revoked; pharmacy cease-and-desist for unlicensed OTC drug distribution
Dec. 26, 2025Gold Star DistributionVoluntary recall of every FDA-regulated product it held, shipped to 59 stores in Minnesota, Indiana and North Dakota
Sept. 11, 2026United StatesComplaint for injunction filed, D. Minn. No. 0:26-cv-03976
Sept. 21, 2026Judge Laura M. ProvinzinoConsent decree of permanent injunction entered
Sept. 23, 2026FDAPress release

Table: Government contact with Gold Star Distribution, 2013–2026, compiled September 24, 2026 from FDA’s September 23 press release, the December 26, 2025 recall notice, the Justia docket and press reports of the complaint. Check: 26 state inspections plus 5 FDA inspections equals 31 before the November 2025 inspection; 31 plus 1 equals 32 in all, over roughly thirteen years.

The December recall pulled nearly 2,000 products from 59 stores, most of them small markets and delis.

Gold Star’s December 26, 2025 recall notice covered everything FDA regulates that passed through the warehouse between August 1 and November 24, 2025: human food, pet food, dietary supplements, drugs, medical devices and cosmetics, shipped to 59 retail locations, most of them specialty markets and delis, and running to nearly 2,000 products by CBS Minnesota’s count. The notice carries the standard warning that Salmonella “can cause serious and potentially fatal infections in infants, young children, elderly people, pregnant people and people with weakened immune systems.” Rodent excreta is how Salmonella gets onto a package. Consumers were told to destroy the products and send proof of destruction for a refund. No illnesses have been reported, and nothing in the record suggests anyone could have found the customers who bought over the counter at 59 small stores.

The decree tells Gold Star to stop, clean up and prove it. It does not punish anyone.

The consent decree does what a civil injunction under 21 U.S.C. § 332 does. Gold Star must stop receiving, holding and distributing FDA-regulated products; hire an independent expert to write sanitation and drug-storage plans; eliminate the pests and the filth; renovate the building; destroy every FDA-regulated product on hand under FDA supervision; pass inspections by the expert, a pest-control company and FDA; and wait for written notice from FDA before reopening. Elizabeth Miller, FDA’s Associate Commissioner for Inspections and Investigations, said: “When a company repeatedly ignores serious, ongoing violations that put trust at risk, the FDA will act.” She is right that FDA acted. The question a parent in North Minneapolis is entitled to ask is why acting took from 2013 to 2026, and why the answer, after 32 inspections, is a promise to clean up.

Family Dollar’s rat warehouse drew a $41.675 million guilty plea. This one drew an injunction.

In June 2024 Family Dollar pleaded guilty to holding food, drugs, devices and cosmetics under insanitary conditions at its West Memphis, Arkansas distribution center, and paid $41.675 million, the largest criminal penalty ever in a food safety case. The conduct was the same conduct: live rodents, feces, urine and nesting in a building that shipped to stores. The difference was the charging decision. Family Dollar is a national chain with a legal department; Gold Star is one man and a warehouse on Humboldt Avenue. I do not argue that every rodent case is a criminal case. I argue that a thirteen-year record of state and federal findings, three warning letters, two penalties, a revoked license and infant formula on the shelves is the record a prosecutor looks at, and that in August I counted eighteen federal food crime prosecutions in forty years. Executive Order 14294 now steers agencies away from regulatory crimes. Gold Star is what that policy looks like on the ground.

Deterrence is a line item until someone is charged.

I wrote on Monday, in a note to Tom Gremillion, that a civil check is a line item and a criminal charge is personal. Gold Star’s decree carries no check at all. It carries a to-do list. The owner keeps the building, keeps the business and can reopen when FDA signs off. Every other warehouse operator in the Upper Midwest who read FDA’s release on Wednesday learned the same lesson: twenty-six state inspections and five federal ones buy you a consent decree and a press quote. On Sunday I wrote that Abbott paid $385 million and nobody was charged. Gold Star paid nothing and nobody was charged. The two cases sit at opposite ends of the industry and reach the same place.

Three things would have changed this record, and none of them is new.

First, an inspection history that follows a firm. A state inspector on visit twenty walks in with visits one through nineteen on a screen, and the federal complaint is drafted at visit ten, not thirty-two. Second, a charging guideline. I asked Attorney General Blanche in August to publish one and to say whether the strict-liability misdemeanor under the Food, Drug, and Cosmetic Act is still a charge the Department will bring. A published rule that repeated insanitary-holding findings after a warning letter will be referred for prosecution would have reached Humboldt Avenue years before a consent decree did. Third, a way to find the customers. The recall went to 59 stores; the people who bought infant formula there were never identified, so no one knows whether anyone got sick. The government did its job in the end, and the people who did it deserve credit for a thorough inspection and a decree with teeth on the cleanup. The architecture around them let a building with rodents in it hold baby formula for thirteen years. That is the part worth stopping on.

Berlin Seeds of Millersburg, Ohio, recalled 950 pounds of alfalfa sprouting seed on Wednesday, and FDA posted the notice the same day. The seed is from lot SAL2-24JB, the lot International Sprout Holdings of Cookeville, Tennessee, began recalling on August 23 after alfalfa sprouts grown from it by Everything Sprouts of Minneapolis were tied to 55 illnesses in 15 states: 46 with Shiga toxin-producing E. coli of three serotypes, seven with Salmonella Agona, two with both, four hospitalized. Berlin Seeds sold the seed from February 13 to August 23, in its store and online, to customers in 44 states, in bags from a quarter pound to 50 pounds. Only the five- and 50-pound bags bear the lot code. One illness has been reported to the company. It is the sixth recall of sprouts or sprouting seed since August 22.

The same day, FDA’s outbreak table added two investigations with no food named, 25 people sick with E. coliO157:H7 in a joint file with USDA and 40 sick with Listeria monocytogenes, moved the Salmonella Newport file to 116, marked every remaining Cyclospora file ended, and closed the frozen blueberry and moringa files. Ten rows on the table now name no food. They carry 645 people.

The seed lot is a retail product now, and a quarter-pound bag has nothing on it to check

On September 15 FDA’s advisory said the recalled seed lot went to sprout growers and wholesale distributors and may also have reached retail. Berlin Seeds sold it in five sizes, from a quarter-pound resealable bag to a 50-pound sack, in every state but six. The lot code is printed only on the five- and 50-pound packages. For the smaller sizes, the purchase window is the only identifier.

The notice says the supplier told Berlin Seeds the lot had been traced to a sprout grower in FDA’s investigation, and that spent irrigation water from one of the supplier’s alfalfa seed lots tested positive for E. coli, the finding Todd’s Seeds cited in its September 15 notice, which named the supplier as International Specialty Supply. Berlin Seeds’ notice does not name the supplier, as Food Safety News noted. The 950 pounds is about two percent of the 43,799-pound lot.

The illness reported to Berlin Seeds is a report, not a confirmed case; nothing public says whether that person is among the 55. The dates say this seed was in home kitchens long before anyone got sick: Todd’s Seeds shipped its lots beginning January 10, Berlin Seeds began selling February 13, and the first outbreak onset was May 31. Sprouting seed means days in warm water, the conditions that grew four pathogens out of this lot in Minneapolis.

Three recalls of one lot in a month, and the page the public reads names none of them

DateWhat happenedWhere it is on the record
Aug. 22Everything Sprouts recalls Calco and Everything Sprouts alfalfa sproutsFDA recall page; advisory updated Aug. 24
Aug. 23International Sprout Holdings begins recalling lot SAL2-24JB by email to customers; Berlin Seeds’ sales window endsFDA Enforcement Report; Berlin Seeds notice
Aug. 31FDA says the supplier has not responded to its recall recommendation, and a second grower used the lotFDA advisory
Sept. 10The supplier’s recall appears in FDA’s weekly Enforcement ReportEnforcement Report; eFoodAlert
Sept. 15FDA says the supplier agreed to recall, and the lot may have reached retail; Todd’s Seeds posts its noticeFDA advisory; Todd’s Seeds website
Sept. 23Berlin Seeds’ notice is postedFDA recall page

FDA’s advisory is still stamped September 15. It names no supplier, no lot number, no second grower and no retailer. Its distribution list, 16 states plus Puerto Rico, Canada, Mexico, Tahiti and Venezuela, is the wholesale tier. Berlin Seeds’ 44 states are the retail tier for two percent of the lot, and that notice sits on FDA’s recall page, not on the outbreak page a home sprouter would read. The supplier’s name has been public since Phyllis Entis found it in the Enforcement Report on September 10, and I wrote about it that day; the advisory still omits it.

Berlin Seeds says the recall was initiated after the supplier notified it and does not say when. The record shows sales stopping on August 23, the day the Enforcement Report says the supplier began emailing customers, and a public notice on September 23. What happened to the retail notice in those 31 days is a fair question for FDA and both companies, and no page answers it.

Sprouts again: two outbreaks this summer, five sprout files on FDA’s tables in two years, six recalls in a month

This recall does not stand alone. Evergreen Fresh Sprouts of Moyie Springs, Idaho, recalled its broccoli sprouts September 4 after a Montana sample matched the outbreak strain; CDC counts 22 sick with SalmonellaBovismorbificans in Idaho, Montana, Utah and Washington, two hospitalized, and Washington’s own countreached 27 on September 17. That is FDA reference #1411, posted September 10, and CDC says the two sprout outbreaks do not appear to be related. It is Evergreen’s third outbreak since 2011, after Salmonella Enteritidis in 2011 and E. coli O121 in 2014.

Behind those two sit three more sprout files on FDA’s closed tables. Salmonella Oranienburg in alfalfa sproutsfrom an unnamed Arizona grower, five sick, closed in 2025 with FDA’s own summary saying the source was likely the seed. Salmonella Anatum in Deep-brand frozen sprouted beans, 12 sick in 11 states, four hospitalized, recalled in July 2025. And E. coli O26:H11 in sprouts, ten sick, posted October 2024 and closed with no firm named. Counting the Everything Sprouts recall and its expansion, the supplier’s seed recall, Evergreen, Todd’s Seeds and Berlin Seeds, that is six recalls of sprouts or sprouting seed in 32 days. FDA’s own guidance for seed producers says contaminated seed has been the most common source of sprout contamination and the likely cause of most sprout outbreaks from 2012 to 2020, which is why I am drafting a citizen petition asking FDA to require a warning statement on the package, the advice it has given high-risk consumers since 1998.

Two new outbreaks, 65 sick, no food named, and one of them has a USDA number

Reference #1421 is E. coli O157:H7, 25 sick, posted September 23 with traceback initiated, the only active row with a USDA number, FSIS reference 2026-04. FSIS’s outbreak page explains the shared number: an outbreak appears on both tables when products regulated by both agencies are suspected sources. In plain terms, meat or poultry has not been ruled out. The last two rows on FDA’s table with USDA numbers were Listeriaoutbreaks in prepared pasta meals and ready-to-eat deli foods, multi-ingredient products. When I wrote about FSIS’s table in August, it listed three investigations for all of 2026, everyone closed. This would be the fourth.

Reference #1417 is Listeria monocytogenes, 40 sick, traceback initiated, with no states, ages, hospitalizations, deaths or onset dates. For a pathogen CDC estimate sickens about 1,600 people a year and kills about 260, and which hospitalizes nearly everyone counted in an outbreak, 40 is a large file; the 2024 Boar’s Head outbreak, which my firm litigated, ended at 61 sick and ten dead. Such clusters can include illnesses years apart, and without dates the row does not say. Neither file has an advisory, and as of this writing CDC had posted no notice for either.

Ten rows with no food named now carry 645 people

The table lists 16 active investigations. Ten name no food: the new O157 and Listeria files at 25 and 40, Salmonella Newport at 116, Salmonella I 4,[5],12:i:- at 43, Salmonella Oranienburg at 99, the older Listeriafile at ten, and four Cyclospora files at 234, 38, 22 and 18. That is 645 people. A week ago, eight rows carried 575.

The Newport file, posted August 26, went from 111 to 116 and, for the first time, shows sampling initiated: four weeks of traceback have produced something to sample, and the table does not say what. All five Cyclosporafiles are now marked ended while FDA’s investigations stay active; the four with no food named hold 312 people, part of the 7,000 confirmed cases no outbreak file explains.

Two files moved to the closed table. The frozen blueberry E. coli O145:H28 file closed at 17 sick and six hospitalized in Florida and Georgia; CDC ended it September 21, and FDA’s final update disclosed that a sample Publix collected early on matched the outbreak strain, the first strain match to product on the advisory. The moringa leaf powder file, 131 sick, 36 hospitalized, 38 states, posted January 14, also closed. FDA’s advisory said the investigation was complete on July 22; the table carried it as active for two more months. My firm represents people sickened in the moringa outbreaks.

Three questions

Which Berlin Seeds bags are recalled? Every size sold from February 13 to August 23, 2026. Lot code SAL2-24JB is printed only on the five- and 50-pound bags; the smaller bags carry no code.

Is this the seed that caused the alfalfa sprout outbreak? It is the lot number in the supplier’s recall in FDA’s Enforcement Report, and Berlin Seeds says the supplier traced the lot to a grower in FDA’s investigation. FDA’s advisory has not been updated to say so.

Is this related to the broccoli sprout outbreak? No. CDC says the Everything Sprouts and Evergreen Fresh Sprouts outbreaks do not appear to be related.

The seed lot is the common thread in this outbreak, and sprouts are the common thread in the season. The public list of where the lot went is being assembled one retailer notice at a time, a month after the supplier started emailing, on a page most people never open, while the advisory they do open names nobody. And the table added 65 people and no food on the same day it closed two files whose most useful facts reached the page only at the end.

Last Friday, Target told a federal court that it had no duty to ask a single question about the infant formula it sold – even in the middle of a national infant botulism outbreak, and even after the FDA sent Target a warning letter about that outbreak. Target’s position is simple: not our job.

What we say Target owed these families

Target’s motion treats our case as if we were asking it to trace the supply chain of every item in the store. We are not. Here is what the amended complaint in Nam v. Nara Organics actually alleges.

Target does not passively receive what it sells. It decides which products to carry, negotiates with vendors, and runs vendor onboarding and assortment review. Target had been talking with Nara about this formula since 2022. It planned to launch in April 2026, then asked Nara to put the formula on its shelves in December 2025 instead – while the ByHeart outbreak was active and under federal investigation. On January 7, 2026, Target announced Nara as one of the “most trusted” brands in its wellness expansion.

Under Washington law, a product seller owes a duty of reasonable care to avoid the foreseeable harm of what it sells. We allege that duty was heightened here. The product was powdered infant formula, a category the FDA had identified to retailers as historically associated with C. botulinum. It is eaten only by infants. It was marketed as containing more organic whole milk than any other formula in the country – the very ingredient under investigation as the vehicle in an active national outbreak. And Target is a sophisticated national retailer with the resources and leverage to vet what it carries.

Target was on notice. The FDA’s March 2023 Call to Action was addressed to retailers of powdered infant formula and named C. botulinum. On December 12, 2025, the FDA sent a warning letter to Target about recalled ByHeart formula remaining on its shelves. By January 23, 2026, the FDA had publicly identified whole milk powder as a suspected vehicle, and on January 28 the Associated Press named Organic West and Dairy Farmers of America as the companies behind it.

Given all that, we allege reasonable care required, at a minimum, that Target:

  • Monitor and act on FDA communications directed to retailers of powdered infant formula;
  • Ask, before adding a new whole-milk-based formula during an active outbreak linked to whole milk powder, whether and how the manufacturer tested for C. botulinum in its finished product and dairy ingredients;
  • Ask who supplied the manufacturer’s dairy ingredients, and whether those suppliers were implicated in the ByHeart investigation;
  • Obtain and review certificates of analysis, testing protocols, and food safety documentation showing whether the manufacturer controlled for spore-forming pathogens in whole milk powder;
  • Apply its own food safety and supplier quality-assurance requirements, including any heightened requirements for infant products;
  • Hold off selling the formula until the root cause of the ByHeart outbreak was identified and the risk assessed; and
  • Apply the vetting Target publicly says it applies to the brands it adds to its shelves.

We allege Target did none of this with reasonable care. From January 28 on, one question to its own vendor would have revealed that the newest formula on its shelves was made with milk powder from the suppliers implicated in the ByHeart outbreak. Nearly four months later, on May 19, 2026, Target sold two cans from recalled Lot No. 709125280E14F2 to my clients in Lacey. Their son was hospitalized with infant botulism less than three weeks later.

Target’s answer is that none of that was its job.

If the retailer will not ask the questions, and the manufacturers did not test for the pathogen, somebody has to make sure the next baby is protected. That is what the last few weeks have been about, and WJLA’s I-Team has the latest.

The FDA declared formula safe – without testing for botulism

The I-Team’s earlier reporting found that while the FDA was investigating the ByHeart outbreak, it was also running what it promoted as its largest-ever study of infant formula safety. That study left out pathogens entirely – including C. botulinum, the organism that was putting babies in intensive care. The FDA then told the public the nation’s formula supply was safe.

People noticed. The story has drawn nearly a million views and thousands of comments from parents who are angry, and rightly so.

Across the ByHeart and Nara outbreaks, 52 babies were hospitalized. Some were paralyzed. Some were on breathing tubes. Katie Connolly, whose infant daughter recovered from paralysis during the outbreak, told WJLA what every parent assumes: that the FDA is there to protect babies. The FDA still says it does not know the root cause. And on the day the story aired, the agency again turned down WJLA’s request to expedite release of records on the outbreak supply chain, saying the station had not shown an urgent need.

Fifty-two hospitalized babies is not an urgent need?

Congress: 77 offices, one answer

Rep. Rosa DeLauro has introduced legislation (H.R. 7867) that would require formula makers to test for C. botulinum, impose strict environmental monitoring in manufacturing plants, and require that Congress be told when a pathogen is found. She told WJLA she is done with letters and voluntary guidance: “I’m tired of recommended guidelines and voluntary procedures.” So am I.

I have sent formal letters to the members of the committees that can move this bill, asking them to support it, to meet with the families of sickened babies, and to hold hearings that put the formula makers and the FDA on the record. I have not received a single response.

So we went to them. My daughter Sydney spent two days walking the halls of Congress, delivering baby-bottle-shaped T-shirts to all 77 members who have the power to move this legislation. Her point was simple: not every mother can breastfeed, formula has to be a safe option, and after two outbreaks in one year, that means testing it for botulism.

WJLA then contacted all 77 of those members with two questions: Will you support the bill requiring infant formula to be tested for pathogens, including botulism? Will you push for a hearing on the outbreaks? One member answered – Rep. Lori Trahan of Massachusetts. She supports the bill. Thank you, Congresswoman.

That leaves 76. The FDA did not respond either, including to the question of whether it would testify if called.

I understand why. Hearings are uncomfortable. Mandatory testing costs money. Asking a vendor where its milk powder comes from takes effort. These are exactly the hard things that industry and government would rather ignore – and exactly the things that create change.

What you can do

Rep. DeLauro said it best: the public needs to be on its feet. Call your representative and your senators. Ask them two questions – the same two WJLA asked: Will you support mandatory botulism testing of infant formula? Will you call for a hearing? You can find your members of Congress here.

Target says it had no responsibility. The FDA says the formula supply is safe while leaving botulism out of the test. Seventy-six members of Congress have said nothing. The babies in these outbreaks and their parents deserve better, and so does the next family that opens a can of formula.

We will keep pushing – in court, and on the Hill.

Amanda Vicari, a food and agriculture policy communicator, published a piece on LinkedIn today — “MAHA Moved Food Politics to the Right. Now the Right Has to Decide What to Do With It.” — that is worth your time.

Her argument, briefly: in remarkably little time, MAHA took questions that used to belong to progressive food activism — ultra-processed foods, chemical exposure, corporate influence over nutrition policy, regenerative agriculture — and moved them to the center of Republican politics. But winning the argument is not the same as settling the policy. The MAHA coalition contains people who want very different things. Some want transparency but oppose mandates. Some want ingredient regulation; others see that as exactly the administrative power conservatives spent decades trying to constrain. Some rally against glyphosate while the administration treats it as essential to food security. As she puts it, the right now has to decide: “Does healthier food require more federal regulation or less?”

It is a fair question, and on most of the issues she raises — dyes, seed oils, ultra-processed food definitions, dietary guidelines — reasonable people can and will disagree about the proper role of government.

But I have been litigating foodborne illness cases since 1993, when I represented Brianne Kiner, the most seriously injured survivor of the Jack in the Box E. coli outbreak. And from where I sit, there is one corner of food policy where the ideological question Ms. Vicari poses has an easy answer. It is the corner where my clients live: pathogens.

No consumer “chooses” E. coli O157:H7 on romaine. No parent exercising personal responsibility can read a label hard enough to detect botulism in infant formula, Listeria in deli meat, or Salmonella in peanut butter. The free market cannot price a hazard the buyer cannot see, smell, or taste. That is not nanny-state theory. That is the oldest and least controversial justification for government there is: protecting people from harms they cannot protect themselves against. Inspections, surveillance, and enforcement are not the ceiling of food policy. They are the floor.

And here is the contradiction Ms. Vicari’s piece does not reach: while MAHA was winning the argument about how Americans should eat, the infrastructure that keeps acute hazards out of the food supply was being cut. Iasked publicly what Secretary Kennedy was doing when sweeping FDA cuts threatened federal outbreak prevention — and when the state grant programs that carry out roughly 90 percent of our produce inspections and 75 percent of our manufactured food inspections were told to expect steep reductions. I joined a coalition of consumer, industry, and public health groups urging the Secretary not to gut the FDA’s Human Foods Program — pointing out that an under-resourced food safety agency jeopardizes his own stated MAHA objectives. We learned this lesson the hard way in Sturgis, Michigan: when the FDA is unable to inspect, people die. And too often those people are the very children this movement says it exists to protect.

So here is my answer to the question the right is now asking itself. Whatever you decide about food dyes and seed oils, a movement that claims the mantle of children’s health cannot simultaneously starve the systems that find outbreaks — PulseNet, FoodNet, state and local health departments — and the inspectors who prevent them. Liberty means choosing what is for dinner. It does not mean your dinner giving your kid hemolytic uremic syndrome without your consent.

I have said for more than three decades that my goal is to be put out of business. I will work with anyone — left, right, MAHA, MAGA, or vegan — who is serious about that project. The measure of this movement will not be whether it produces a federal definition of ultra-processed food. It will be whether, a few years from now, fewer families are sitting in a hospital room next to a child on dialysis, wondering how a salad did this.

Ms. Vicari is right that MAHA moved food politics. My hope is that whoever ends up owning the issue remembers that bacteria are the one constituency that never changes sides.

On Wednesday and Thursday of last week, t-shirts rolled into plastic baby bottles were hand-delivered to 77 congressional offices — all 54 members of the House Energy and Commerce Committee and all 23 members of the Senate HELP Committee, two apiece, with every other office in Congress getting one. Unrolled, each shirt reads: For Babies’ Sake, Test for Botulism in Infant Formula, in support of H.R. 7867, the Infant Formula Safety Modernization Act of 2026. The timing was deliberate: both chambers walked back in from recess on Monday, September 14, and the shirts landed the same week. I said then that the aim was every office that can put this bill on a calendar.

That was the week of September 14. It is now September 22. This post is the accounting of what has come back, and the accounting is short: no markup has been scheduled, no oversight hearing has been noticed, and not one of the 77 offices has replied — not to the shirts, not to the letters that preceded them, and not to the fourteen families whose statements have been sitting in a committee file since June.

The paper trail, and what it has produced

I have now written each committee twice. Energy and Commerce got a letter on June 23 supporting H.R. 7867, with the statements and photographs of fourteen families attached as Appendix A, and a follow-up on August 28 after the government confirmed the genetic link between the two outbreaks. Senate HELP got a letter on June 29 and a follow-up on August 28. Four letters. I have also written Secretary Kennedy, and when Chairman Cassidy demanded answers from Nara and ByHeart I gave him full credit for it in public — a letter from a chairman matters, and his is still the only one. But as I wrote on Saturday, none of it has produced a markup, and none of the four letters has drawn a reply. The citizen petition asking FDA to require the testing by regulation, with 24 parents of hospitalized infants as co-petitioners, is being finalized now — because when Congress will not act, the agencies are the only door left open.

The families have been waiting since June 23

The shirts are a prop. The families are not. Fourteen of them wrote statements for Congress — in their own words, with photographs of their children in hospital beds, feeding tubes taped to their cheeks — and those statements have been attached to the Energy and Commerce Committee’s file for ninety-one days. The parents offered to do more than write. They offered to come to Washington and sit at a witness table and tell the members what “safe” turned out to mean. Not one of those families has received an acknowledgment. Not a form letter. Not a staffer’s email saying the statements arrived. Their children were paralyzed by a product the federal government has now confirmed — at the level of the genome — was contaminated, and the committees with jurisdiction over that product have not managed to say we got your letter.

What the record showed while nobody answered

On August 27, CDC closed the Nara Organics investigation without a hedge: four infants, all hospitalized, and a finding that the formula was contaminated with Clostridium botulinum and made infants sick. Whole genome sequencing linked a Nara patient sample to a patient sample, product samples and an ingredient sample from the 2025 ByHeart investigation — 48 infants in 17 states, the largest infant botulism outbreak in American history. One contamination, two brands, 52 hospitalized babies, many on ventilators, each treated with BabyBIG antitoxin at $69,300 a dose.

And the rule has not moved an inch. This morning, as every morning since these babies got sick, 21 C.F.R. § 106.55 requires finished-formula testing for exactly two organisms — Salmonella and Cronobacter — and says nothing about the one that put 52 infants in intensive care. The FDA named that organism itself, by genus and species, in a Call-to-Action letter to the entire industry on March 8, 2023 — three and a half years ago. Eight days ago Abbott agreed to pay $384,999,040 over the formula it sold WIC, and the rule still does not require the test.

The four asks, unchanged, because nothing has been done about them

Mark up H.R. 7867 and report it favorably — the Health Subcommittee held its hearing on April 29, and the next step has been procedural for 146 days. Hold the oversight hearing, with the FDA, Dairy Farmers of America, Organic West Milk, Nara Organics and ByHeart at the table, because there is now a laboratory result to ask about. Put the parents at the witness table — they have written already, and they are willing to say it in person. And put a written question to the FDA with a deadline: what has the root cause investigation found, and is a testing rule coming or not. If your representative or senator sits on either committee, the template letter, phone numbers and addresses are still on the blog — constituent mail is the one thing these offices cannot log and forget.

We have done this before

The Jack in the Box tragedy became a rule that made hamburger safer for a generation of children. Congress has stopped doing that part of its job, and this is what the stoppage looks like up close: told in June, told again in August, handed the genome in September, delivered the argument by hand in a week when every member was in the building — and silence. I said in July that a t-shirt in a plastic bottle would not produce a markup, and so far, I am right. But the shirts were never the point. They made the argument impossible to lose in a mail cart, and the silence around them is now its own entry in the record. When the next letter goes out — and there will be a next letter — it will have to say that too.

The families followed every instruction on the label. The least Congress can do is respond to theirs.

Just landed in Norway, and the first thing I read off the plane was Tom Gremillion’s new piece for the Consumer Federation of America, “Food Safety and Corruption.” Read the whole thing. Nobody in Washington connects the dots on food safety better than Tom, and nobody says it more plainly. Thank you, Tom — for the piece, and for the work CFA does every day.

Tom was also kind enough to quote something I wrote recently: eighteen prosecutions in forty years — that is the entire history of food crime enforcement in America. And every food safety executive I have ever deposed has told me some version of the same thing: the budget requests get approved after somebody gets prosecuted, not after somebody gets sick.

Tom builds the case well. But after four decades of suing food companies and sitting across the table from their executives, I want to add a few arguments of my own — because his piece is even stronger than he lets on.

A civil check is a line item. A criminal charge is personal.

The $385 million Abbott settlement sounds enormous. It is not. It is paid by shareholders and priced by insurers, and it will be absorbed into the cost of doing business by a company with over $40 billion in annual revenue. What civil settlements have never done — in my experience, not once — is change behavior in the boardroom the way personal criminal exposure does. Stewart Parnell is serving 28 years for shipping Salmonella-laced peanut paste. Austin “Jack” DeCoster and his son went to jail over contaminated eggs. The Jensen brothers were prosecuted after their cantaloupe killed 33 people. Those cases echoed through every executive suite in the food industry. A civil check, however large, does not.

And the Abbott facts were tailor-made for prosecution. Under the Park doctrine, executives can be held criminally responsible for food safety failures even without proof of intent. Here, DOJ alleged Abbott “knowingly” failed to adopt safeguards against Cronobacter at Sturgis and withheld information from FDA about microorganisms in the facility. Knowing conduct plus concealment from the regulator is precisely the aggravated fact pattern that has historically turned Park misdemeanors into felony territory. That the government had those allegations in hand — and had opened a criminal investigation — and still settled civil-only tells you everything about the Executive Order declaring criminal enforcement of regulatory offenses “disfavored,” and the disbanding of the DOJ unit that brought these cases.

Congressional oversight is deterrence too — and it has collapsed.

In 2022, after four Cronobacter infections and two infant deaths, House and Senate panels hauled in the FDA Commissioner and Abbott executives and grilled them on national television. Today, more than 50 babies have been hospitalized with infant botulism linked to formula — same product category, a worse acute toll — and the 119th Congress has not held a single hearing. Executives prepare for oversight hearings the way they prepare for depositions: badly, and with fear. Take the hearings away and you have removed another reason to spend money on food safety before, rather than after, the outbreak.

You cannot deter what you cannot detect — and the numbers will lie about it.

Here is the part that should worry hopeful reformers most. Cutting FoodNet surveillance from eight tracked pathogens to two does not reduce foodborne illness by one case. It reduces the counting of foodborne illness. And that sets up a perverse feedback loop: fewer counted outbreaks will be trumpeted as proof the system is working, which will justify the next round of cuts. When the outbreak statistics improve over the next few years, ask what we stopped measuring, not what we started preventing.

The Taylor Farms cyclospora investigation shows what the detection side costs in real time. The company took roughly a week to hand FDA the grower location data that the final traceability rule — delayed by this Administration for two and a half years — would have required within 24 hours. A week, during an active outbreak, is not a paperwork delay. It is contaminated product staying on shelves and in refrigerators while investigators wait.

Lawyers like me are the backstop, not the substitute.

I have spent my career getting compensation for families after the fact. I am proud of that work, and civil discovery has repeatedly pried loose what companies knew and when they knew it. But let’s be honest about what civil litigation cannot do: it cannot put anyone in front of a grand jury, and it arrives only after the funerals. When the government steps back from criminal enforcement, it is not deregulating — it is outsourcing accountability to plaintiffs’ lawyers and grieving parents. That is a policy choice, and families are the ones who pay for it.

Deterrence and detection. Take away the credible threat of prosecution, blind the surveillance system, and slow-walk traceability, and you should expect exactly what we are seeing: more outbreaks, more sick kids, less accountability.

Thanks again, Tom, for saying it plainly. As he puts it: hopeful food reformers should take notice — and beware.