“A Diminished Capacity: Can the FDA Assure the Safety and Security of the Nation’s Food Supply?”

My name is William Marler. My law firm Marler Clark, located in Seattle, Washington, specializes in foodborne diseases, especially E. coli, Salmonella, Hepatitis A, Campylobacter, Shigella, Norovirus, and Listeria. Unfortunately, we at Marler Clark have been “in business” since The Jack in the Box E. coli outbreak of 1993. I was here in 1994 during the last set of serious hearings about the safety of our food supply. Demand for our litigation services on behalf of witnesses such as Ashley and Isabella Armstrong, Sean Pruden and Terri Marshal’s mother-in-law has continued to grow at an alarming rate.
Today, the U.S. Center for Disease Control estimates that there are 76 million cases of foodborne illness annually. That means one in four Americans will contact a foodborne disease every year. Hundreds of thousands will be hospitalized and thousands will die.

My clients who will testify before this committee are but a small slice of your constituents who will suffer and die needlessly each year and every year unless action is taken. That’s the human suffering part. There is also the business part. Billions of dollars will be spent on medical treatment and many more billions will be lost in wages and in sales of food. When American business poisons its customers and when our regulatory agencies do not have the manpower or the ability to help business perform, people die and market share is lost, nationally and internationally.

My goal in testifying here today is that you put Marler Clark “out of business.” It is time that you help government, help business, help consumers and make me unnecessary. I will do that by presenting best practices and other recommendations that can make that possible. Therefore, I thank this committee for inviting me to help with a dialogue about making the food chain safer for consumers.

The issue of food safety is not new, of course. A century ago Upton Sinclair’s book “The Jungle” exposed both contamination of meat processing and the corruption that lead inspectors to look the other way.

Three-quarters of the nation’s lettuce and spinach come from California. When consumer confidence in the safety of the produce food chain declines, so does the profitability of a key industry. There is also damage to the brandnames of a state’s specific products.  These business implications extend beyond California. More companies, ranging from food processors to retailers, are asking for help to regain their “reputational capital” after foodborne disease problems. Will the brandnames of the fast-food chains involved in the recent E. coli outbreaks fully recover? The jury is out on that one.

What has changed since Upton Sinclair’s “Jungle” are two things.

One, the source of disease has shifted from the meat that Sinclair described to produce. As usually happens, it took a crisis for incidences of E. coli in meat to decline. That crisis occurred in the early 1990s. Undercooked hamburgers containing E. coli from Jack in the Box sickened 650 people, four of them children who died.  Shortly, I will discuss how that problem was fixed, perhaps not completely, and the important lessons we as a nation should learn from that. Incidentally, that has been one of the major food safety success stories of our time. According to the CDC, E. coli outbreaks linked to tainted meat have declined by 42 percent. The American Meat Institute puts that figure at 80 percent.  Currently, the single largest source of food-borne disease is produce such as lettuce, spouts, tomatoes, spinach, green onions and parsley. Here are some figures. In the past 10 years, the Food and Drug Administration – the FDA – reported 21 outbreaks related to fresh leafy products. In 2006, 205 people became sick and five died from eating E. coli contaminated spinach. Late last year and throughout this year, the CDC reported that over 425 people in 44 states have become infected with Salmonella Tennessee found in peanut butter. More than 70 have been hospitalized. From experience, we know cases of Salmonella Tennessee go under-reported. It is likely that the sick may well be over 15,000. In the Northeast there was an outbreak of sickness from milk from a dairy processor that has had recurrent food safety issues.

The second development that’s new in food safety has been the result of changing times. Here are just a handful of new variables we’re dealing with:

1.The threat of terrorist attacks via the food system. Just as too many couldn’t imagine the horror of 9/11, too many cannot envision this kind of disaster.

2.Growth of food imports. The latest problem came from contaminated wheat gluten from China. That affected animals not humans. That might do the trick in getting us to be duly concerned about imports of everything from pesticide-sprayed pea pods to salmonella infection in pigs from the European Union.

3.The well-intentioned but scientifically questionable use of “environmental-friendly practices” such as recycled water and planting native grasses.

So, how can we ensure that the gains in food safety that have already been made are preserved and the new problems addressed?  From research and experience, here are eight recommendations.

First of all, there exist two “best practices” in meat that should be extended to produce. Following the Jack in the Box crisis, the head of the U.S.D.A.’s Food and Safety Inspection service took a regulatory and systems approach to food safety. That “hero” was Michael Taylor. Taylor declared that raw ground beef that is contaminated with E. coli would be classified and treated as “adulterated” within the meaning of the Federal Meat Inspection Act. Taylor also introduced a mandatory Risk Management System. The required meat processors to adopt comprehensive precautions. Those included carcass washes, citric acid sprays, steam pasteurization and air-exchange systems.  Following Taylor’s example, we must serve notice to produce and other food processors that E. coli, salmonella, etc. will be classified and treated as adulterants. In addition, the same kind of comprehensive Risk Management System must be established and implemented. Penalties must be criminal and civil.  When these best practices are adopted, firms will have to certify that not only they, but that every aspect of their supply chain, also are in compliance. Branding can and should reflect this certification of both the firms and their suppliers. This would be a new kind of “Seal of Approval.” This “Seal of Approval” can also apply to such issues as the location of produce fields near animal farms, what kinds of procedures are used, and the method of irrigation as well as the type of water used.

Two, we need the same kind of food safety champion that Taylor was. This person would be a highly visible symbol of our commitment. Along these lines, it is useful to consider consolidating responsibility in one federal-level agency. That would be the central point for communication about best practices and the point of contact for state and local regulators and health departments.

Three, the track record of business for issuing warnings and recalls rapidly isn’t good.  The federal and state governments should have authority to do this. That means increased funding, particularly at the state level. Most outbreaks are regional, not national.

Four, produce an E. coli vaccine for cows. I would say that the lion’s share of produce problems result from this contaminant passed on through cow feces.

Five, the nation requires education about the benefits of irradiation of all mass-produced food including produce. Resistance to this practice seems to be rooted in public perception, not science.

Six, attention has to be paid to the vulnerability of our food supply system to acts of terrorism. Denial and lack of common sense seem to dominate thinking at all levels – business and federal and state government.

Seven, why haven’t we applied our economic and political muscle to imposing more stringent regulations on food imports? This is a central trade issue that has been neglected.

And, eight, there’s an urgent need to improve the resources available to foodborne disease victims. At the top of the list are the out-of-pocket medical costs. Those are usually not immediately or even eventually reimbursed by medical insurance if victims have coverage. By time compensation comes from litigation, the person could be heavily in debt. Next on the list is the expense of missing work. Marler Clark has been encouraging food processors and retailers to provide this help as a gesture of goodwill.

Let me wrap this up with one thought. Just as the boldness, courage and relentlessness of Michael Taylor made meat safer, these eight recommendations can ensure the integrity of the rest of the food chain. And better care for victims. Let me say again: “I ask this committee to put us at Marler Clark out of business.” Thank you.Continue Reading WRITTEN TESTIMONY BEFORE THE COMMITTEE ON ENERGY AND COMMERCE