February 2009

In addition to the first filed case against Peanut Corporation of America and Kellogg (Meunier) we filed on the 20th of January, yesterday we filed the following in Georgia Federal Court.

Bryson Trone is a three year old resident of California. He consumed "Austin" brand peanut butter crackers on multiple occasions on or around December

“Never confuse movement for action.”
Ernest Hemingway

As this multi-part series on FDA’s new rule approving commercial irradiation of fresh iceberg lettuce and fresh spinach comes to its conclusion, it is important to ask if and how this movement by the regulatory agency can be translated into action by industry and consumers to promote public

John Sepulvado – National Public Radio – Weekend Edition Sunday, February 8, 2009 · As a result of the salmonella outbreak at a Georgia peanut plant, state officials are drafting a bill that would require food processors to report self tests. If Georgia passes the law, it could be among the strictest in the nation.

At least 20 people have been infected with E. coli O157:H7 in Colorado, and that number is expected to grow. The illnesses have been linked to the National Western Stock Show, held in Denver in January. 16 of the 20 sickened attended the show, and investigators are trying to determine the infection vehicle – food

The Food and Drug Administration had initially said Peanut Corporation of America (PCA) retested products after getting an initial positive result for Salmonella. The FDA and PCA said the company shipped the goods after follow-up tests came back negative. Today, the FDA amended the "483" and said the company sent out peanut butter, chopped peanuts

"He’s not quite the assassin in Armani that many in our business wish him to be." 

Cattlenetworks – Chuck Jolley

I called Marler to ask a few pointed questions.  You’ll find just two themes in this interview. (1) What the hell is going on?  And (2) What will be the effects on the cattle industry.

Q. Bill, despite changes in federal rules and regs and your decade-and-a-half of court room work, food borne illnesses still seem to be piling up year-after-year. Let’s look at the Salmonella illnesses that began appearing half a year ago. It took five months to link it to King Nut peanut butter’s Blakely, GA plant. Why did it take so long and what did it cost in deaths and illnesses?

A. The PCA facility was in bad shape. They were shipping product for about 2 years that they knew was bad. So far, 120 people have been hospitalized and 8 have died. According to published reports, over 540 have been sickened in 43 states. We know our surveillance isn’t perfect, though. For every reported case, maybe 40 are missed so we could be looking at many more hospitalizations and deaths and over 20,000 illnesses.

It was an epidemic, but we figured it out only after it had just about run its course. After the tomato, spinach and ground beef problems, we need to put more effort into catching these things sooner rather than later and throwing a whole industry under the bus.

Q. Peanut butter spiked with Salmonella is the hottest news item these days but I’ve read reports of trace amounts of mercury found in High Fructose Corn Syrup and antibiotic-resistant staph bacteria in C.A.F.O. pigs. You’ve been quoted as saying we’re losing the fight against E. coli. With all of the federal, state and local organizations charged with overseeing the safety of our food, why are we unable to move the dial on this thing?

A. We have a real failure in our ability to survey bacterial and other food borne illnesses. The problem is each state has its own skill sets at finding and tracking these outbreaks. Some states are very good, some states are abysmal. We have too many organizations, too, that don’t communicate well with each other.

Q. With a new administration in place and new hands like Tom Vilsack on deck at the USDA, do you see a chance for improvements – a new emphasis on food safety – at the federal level?

A. I sent an open letter to the FSIS with some suggestions. It’s posted on my blog (https://www.marlerblog.com/). In it, I said:

‘Improve surveillance of bacterial and viral diseases. First responders – ER physicians and local doctors – need to be encouraged to test for pathogens and report findings directly to local and state health departments and the CDC promptly.’

‘These same governmental departments, whether local, state or federal, need to learn to “play well together.” Turf battles need to take a back seat to stopping an outbreak and tracking it to its source.’

‘Require real training and certification of food handlers at restaurants and grocery stores. There also should be incentives for ill employees not to come to work when ill. We should impose fines and penalties on employers who do not cooperate.’

‘Stiffen license requirements for large farm, retail and wholesale food outlets, so that nobody gets a license until they and their employees have shown they understand the hazards and how to avoid them.’

‘Increase food inspections. While domestic production has continued to be a problem, imports pose an increasing risk, especially if terrorists were to get into the act. Points of export and entry are a logical place to step up monitoring.’

‘Reorganize federal, state and local food safety agencies to increase cooperation and reduce wasteful overlap and conflicts. Reform federal, state and local agencies to make them more proactive, and less reactive.’

‘There are too few legal consequences for sickening or killing customers by selling contaminated food. We should impose stiff fines, and even prison sentences for violators and even stiffer penalties for repeat violators.’

‘We need to use our technology to make food more traceable so that when an outbreak occurs authorities can quickly identify the source and limit the spread of the contamination and stop the disruption to the economy.’

‘Promote university research to develop better technologies to make food safe and for testing foods for contamination. Provide tax breaks for companies that push food safety interventions and employee training. Greatly expand irradiation of raw hamburger and other high-risk products.’
‘Improve consumer understanding of the risks of food-borne illness.’

Q. Let’s talk about existing laws and regulations. Peanut Corporation of America was not required to inform the FDA or state food-safety agencies that its products had tested positive for Salmonella. They merely went ‘lab shopping,’ had the product re-checked, and then placed it into commerce. A Georgia state dismissed the practice when he said, "It’s just basically a loophole that has been there." How many loopholes are out there and why do they exist?

A. A few companies are less concerned about food safety – more concerned about their profit margins. They crank up line speeds and reduce labor. Everyone suffers. The problem is a lack of organization and turf battles among competing inspection systems at the federal, state and local levels.

Q. Let’s focus on the cattle and beef industries now. What do you see as our biggest challenges in 2009 and what can we do to meet those challenges.

A. The past 15 years will show you the next 15. Emerging pathogens, new pathogens, antibiotic resistant strains – think MRSA, Methicillin-resistant Staphylococcus aureus. It’s an infection caused by a strain of bacteria that is highly resistant to treatment. They’re coming at us hard. You’ll be challenged by pathogens that didn’t exist then as they do now.

You’ll need to do everything you can to minimize end-product contamination and that will include how you raise animals. Are CAFO’s the right way, for instance? You’re faced with feeding a growing world population but you’ll have to ask if the efficiencies of CAFO’s are worth it. How will a production change affect the price and the availability of food?

There is a lack of cooperative spirit among the regulators, companies and buyers and sellers. It has to be fixed. Everyone in the food chain, every facility, needs to cooperate on science-based pathogen testing. It should be mandatory and the results must be transparent. 

It’s clear that the vast majority of businesses are well-run, well-maintained and dedicated to putting out the high quality product that consumers have a right to expect. We really have to take a hard look at how plants are inspected, though. We’re using too much of the ‘poke and sniff’ techniques of the early 20th century to find pathogens that didn’t exist until a few years ago.

More from Mr. Jolley:Continue Reading Five Minutes With Bill Marler, Well-known Lawyer, Food Safety Activist