November 2008

After two days of mediation in New York City, we were able to resolve several cases. However, a number were left unresolved. As readers recall, on August 31, 2007 a consumer complaint was filed with the USDA after a Florida resident fell ill after consuming a hamburger patty produced by Topps Meat Company (“Topps”) on July 12, 2007. The resident tested positive for E. coli O157:H7 on September 4, 2007. This was followed by similar reports of illnesses connected with Topps product in New York State and elsewhere in the following days. On or before September 8, 2007 the USDA had confirmed a sample from a Topps hamburger had tested positive for E. coli O157:H7. Additional illnesses continued to be reported.

Topps took no action to remove its products from the shelves until September 25, 2007. On that date, the USDA announced that Topps was recalling 332,000 pounds of ground beef due to contamination with E. coli O157:H7. The initial recall encompassed only products produced on June 22, July 12, and July 23, 2007. The New York Department of Health subsequently reported that an intact sample with a production date of June 21, 2007 had also tested positive for E. coli O157:H7. At the same time, a USDA Food Safety and Inspection Service (FSIS) conducted an inspection of Topps’s plant in Elizabeth, New Jersey.

The FSIS inspection of Topps’s plant and procedures at its Elizabeth, New Jersey facility on September 26, 2007 revealed alarming deficiencies in the firm’s safety programs. The problems began with the raw materials. Topps received boxed sub-primal products, which did not carry Certificates of Analysis (COA). Topps initially used these boxed sub-primal cuts only for non-ground product. But, Topps then mixed the trim, the left-overs after butchering, with the raw materials being used for its ground beef products. The trim was placed into the grinding operation without testing for E. coli O157:H7. This practice was in violation of federal regulations. See 9 CFR 417.5 (a) 1. The FSIS then concluded that this failure to ensure that product intended for grinding was free of E. coli O157:H7 called into question the “adequacy of the design and execution of your prerequisite program and HACCP [Hazard Analysis Critical Control Point] program.”

FSIS inspectors also found various sanitation deficiencies at the facility. During the pre-operational inspection FSIS personnel noted that “the patty making machine had gouges, cracks, and tears in the neoprene transfer belt used to move raw patties to packaging.” The inspectors also noted a history of prior non-conformance records relating directly to raw product residue on equipment surfaces. The FSIS concluded:

The recurring deficiencies of unsanitary equipment documented by USDA…provide evidence that [Topps] failed to re-evaluate the effectiveness of the sanitation SOPs [standard operating procedures].”
Continue Reading Topps Settles E. coli O157:H7 Illnesses Stemming from 2007 Outbreak

Myself, along with Charles Murray, Esq., represented Carl Ours, a man with the tragically bad luck to be one of the eight cases of botulism associated with contaminated Castleberry’s Austex Hot Dog Chili Sauce. As a result of the botulism, Carl spent almost a month in the hospital, with sixteen days of it on a…

According to Canadian press reports, Romaine lettuce is the “prime suspect” in an E. coli outbreak in southwestern Ontario that has sickened at least 26 people, the Canadian Food Inspection Agency said Tuesday. The federal agency and health officials in the Niagara and Halton regions say preliminary tests suggest romaine lettuce is the likely source.

[新唐人記者張芬、林亦云採訪報導]由三鹿毒奶粉事件引發的中國大陸黑心食品引發了許多討論，問題的根源到底是甚麼﹖華爾街日報一位中國特派員10月24日在夏威夷說，毒奶事件歸咎於小部份人民對金錢的貪念、地方政府的怕事、以及自己揣摩迎合上級領導的意思所導致，但這些都是開發中國家可能發生的現象。他認為，在中國逐漸開放和開發的過程中，未來這些現象將會消失。真的是這樣嗎﹖美國西雅圖一位著名食品安全律師有不同看法。

Bill Marler認為，以獨立的監督系統確保商業公司遵守規則、保護民眾食品安全是政府的責任。

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Bill MarlerË™çÁÇ∫ÔºåÂú®‰∏≠ÂÖ±Áµ±Ê≤ª‰∏ãÁöщ∏≠ÂúãÔºåÊîøÊ≤ªÈ´îÂà∂ÂíåÂïÜÊ•≠Á≥ªÁµ±ÊòØÊï¥ÂÄã‰∏ÄÂÄã“Âø´Ê®Ç§ßÂÆ∂Â∫≠”„ÄÇÈĆÊàêÁº∫‰πèÁç®Á´ãÁõ£Áù£„ÄÇÂõ†Ê≠§ÔºåÂè™Ë¶Å‰∏≠ÂÖ±Â∞àÂà∂È´îÂà∂‰∏çÊîπËÆäÔºåÊØí•∂‰∫㉪∂Â∞±ÁÑ°Ê≥ïÊùúÁµï„ÄÇ

Bill MarlerÔπï“Áï∂‰Ω†Ë©¶Âúñ˶ʼn∏≠ÂúãÊîπËÆäÂÆÉÁöÑË°åÁÇ∫ÔºåÊàëÁöÑËßÄȪûÊòØÔºå˶ÅÂÆÉÁúüÊ≠£ÊúâÂضË≥™ÊÑèÁæ©Âú∞ÊîπËÆäË°åÁÇ∫Â∞áÈùûÂ∏∏ÁöÑÂõ∞Èõ£Ôºå‰∏秙ÂèØËÉΩÊàêÂäüÔºåÈô§ÈùûÂÆÉÂÄëÊîπËÆäÈ´îÂà∂„ÄÇÂÆÉÂÄëÈúÄ˶ÅÁç®Á´ãÁöÑÁõ£Áù£Á≥ªÁµ±„ÄǶÇÊûúÊ≤íÊúâÂ∞çÁîüÁî¢Á≥ªÁµ±ÁöÑÁç®Á´ãÁõ£ÂØüÁöÑË©±Ôºå‰Ω†ÂêåÊ®£ÁöÑÂïèÈ°åÊúɉ∏çÊñ∑È´ÆÁîüÔºå‰∏çÂÉÖÂÉÖÊòØ•∂Á≤âÔºåÈÇÑÊúâË™øÂë≥Êñô„ÄÅ˱¨ËÇâ„ÄÅÈõûËÇâԺ剪ª‰Ωï‰∏≠ÂúãÂÖ¨Âè∏˶ÅÂá∫Âè£Âà∞ÁæéÂúãÊàñÂÖ∂ÂÆÉÂúãÂÆ∂ÁöÑÁî¢ÂìÅÔºå‰Ω†ÈÉΩÊúÉÊúâÈÄôÂÄãÂïèÈ°åÔºåÈô§Èùû‰Ω†ÊúâËæ¶Ê≥ïÁõ£Áù£ÁîüÁî¢Á∑ö‰∏äÊØèÂÄã‰∫∫ÈÉΩÂÆà˶èÁü©„ÄÇ

Investigators from the Colorado Department of Health reported today that the outbreak of E. coli among eight children in the Evergreen area may be linked to elk droppings.  Specimens obtained from elk droppings in the mountain region have tested positive for the same strain of E. coli O157:H7 bacteria that was identified in the children…

Last September I was invited by the Chinese Government to speak at a food safety conference in Beijing. Later that week I found myself sitting in the posh lobby of the Beijing Ritz Carlton chatting with a young Chinese lawyer – a first time visitor to the hotel. He was a skinny, 30-something, very serious and earnest, draped in an ill-fitting suit. As we spoke through an interpreter, he occasionally excused himself to take cell phone calls from parents of kids sickened by melamine-tainted infant formula. He wanted to go to court to force Sanlu (an infant formula company owned jointly by the Chinese Government and a New Zealand Corporation) to pay his clients’ medical bills. He was seeking no fee. He wanted justice, but was being discouraged by the government and his own profession from representing these families. He was frustrated, understandably intimidated, and a bit scared, but kept taking the calls.

That conversation—and my entire experience in China—left me rethinking my profession and the role of law and lawyers in a free society. I thought how blessed I am that when a client hires me to prosecute a claim, I seldom think twice about who the defendant is. I certainly never worry that the bar association or government will tell me who I can or cannot represent. I never worry that my clients’ or my freedom could be in jeopardy for making a claim.Continue Reading Chinese Food Products and the Law – A Trial Lawyer in China

Introduction

Part I and Part II of this series reviewed the historical background and technology of food irradiation, and the food safety implications relating to FDA’s recent approval of a new rule for use of ionizing irradiation as a processing step in fresh iceberg lettuce and spinach. This segment summarizes state-of-the art knowledge of the pros and cons (advantages and limitations) of using ionizing radiation to enhance the quality of fresh iceberg lettuce and spinach. The term “food quality” encompasses all of the objective and subjective factors that contribute to a food’s wholesomeness, nutritional value, and sensory attributes. Peri (2006) succinctly defined food quality as: “fitness for consumption,” in other words, “the requirements necessary to satisfy the needs and expectations of the consumer.”

Ionizing Radiation as a Food Preservation Technique

Irradiation is one of many food preservation techniques. As discussed in Part I, food irradiation is not new, but the application of this technology to fresh lettuce and spinach was only recently approved in the US. Before delving into the details of food quality in the context of food irradiation, it is worthwhile to consider the historical perspective of food preservation, and how food irradiation fits into this picture.

The quality of any fresh food deteriorates after harvest, in part, due to the action of spoilage organisms (e.g., bacteria, fungi). Spoilage leads to loss of nutrients and negative effects on the flavor and appearance of fresh food over time. The negative effects of deterioration could be avoided if consumers were able to prepare and eat foods almost immediately after the food leaves the farm. But, for most consumers this scenario is not practical on a year-around basis. The search for efficient and effective methods to preserve the safety, quality, and nutritional value of perishable foods during transportation and storage, while simultaneously maintaining the benefits of the original fresh product, has been an ongoing challenge across the ages of civilization.

The earliest examples of food preservation include cooking/boiling, cold storage (refrigeration/freezing), drying, and salting. To this day, these traditional methods remain a cornerstone in the prevention of food spoilage and waste, worldwide. Examples of more recent historical developments in food preservation include pasteurization and canning.

In the modern age, the food processing industry has addressed the unique food preservation challenges associated with fresh produce by introducing novel approaches such as the use of modified atmosphere packaging (MAP) and wash water disinfectants, especially for fresh-cut, minimally processed produce. Temperature control (refrigeration) continues to be the most important approach to preserving the quality and safety of fresh produce. Irradiation of fresh lettuce and spinach represents a new tool in the produce preservation toolbox. The following are examples of current approaches to achieve food quality preservation of fresh produce that may be used individually, or in combination, depending on the specific product.

• Refrigeration
• Freezing (spinach)
• Heat treatment – cooking and canning (spinach)
• Wash water sanitizers (e.g., sodium hypochlorite, hydrogen peroxide, chlorine dioxide, ozonated water, etc.)
• Modified atmosphere packaging (MAP), a procedure that packages fresh-cut lettuce/spinach in high CO2 and low O2 to control spoilage organisms
• Ionizing radiationContinue Reading Pros and Cons of Commercial Irradiation of Fresh Iceberg Lettuce and Fresh Spinach: A Literature Review – Part III. Food Quality.