Last week I had a talk with Roberto Ferdman of the Washington Post on “Why a top food poisoning expert won’t ever eat these foods.” Putting aside the things that I shy away from (here is the list), it was good to walk down memory lane on the Odwalla case:
You keep telling me that you have all these crazy stories—all these things I wouldn’t believe. Can you share one of them?
I actually have the perfect one, which I told at a recent conference, and really floored people.
Do you know the juice Odwalla? Well, the juice is made by a company in California, which has made all sorts of other juices, many of which have been unpasteurized, because it’s more natural. Anyway, they were kind of like Chipotle, in the sense that they had this aura of good and earthy and healthful. And they were growing very quickly. And they had an outbreak. It killed a kid in Colorado, and sickened dozens of others very seriously, and the company was very nearly brought to its knees. [The outbreak, which was linked to apple juice produced by Odwalla, happened twenty years ago]
If you look at how they handled the PR stuff, most PR people would say well, they handled it great. They took responsibility, they were upfront and honest about it, etc etc. What’s interesting though is that behind the scenes, on the legal side of the equation, I had gotten a phone call, which by itself isn’t uncommon. In these high profile cases, people tend to call me—former employees, former government officials, family members of people who have fallen ill, or unknown people giving me tips. But this one was different. It was a Saturday—I remember it well—and someone left me a voicemail telling me to make sure I get the U.S. Army documents regarding Odwalla. I was like ‘what the heck, what the heck are they talking about?’ So I decided to follow up on it, and reached out to the Army and got something like 100 pages of documents. Well, it turned out that the Army had been solicited to put Army juice on Army PX’s, which sell goods, and, because of that, the Army had gone to do an inspection of a plant, looked around and wrote out a report. And heres what’s nuts: it had concluded that Odwalla’s juice was not fit for human consumption.
It’s crazy, right? The Army had decided that Odwalla’s juice wasn’t fit for human consumption, and Odwalla knew this, and yet kept selling it anyway. When I got that document, it was pretty incredible. But then after the outbreak, we got to look at Odwalla’s documents, which included emails, and there were discussions amongst people at the company, months before the outbreak, about whether they should do end product testing—which is finished product testing—to see whether they had pathogens in their product, and the decision was made to not test, because if they tested there would be a body of data. One of my favorite emails said something like “once you create a body of data, it’s subpoenable.”
So, basically, they decided to protect themselves instead of their consumers?
Yes, essentially. Look, there are a lot of sad stories in my line of work. I’ve been in ICUs, where parents have had to pull the plug on their child. Someone commented on my article about the six things I don’t eat, saying that I must be some kind of freak, but when you see a child die from eating an undercooked hamburger, it does change your view of hamburgers. It just does. I am a lawyer, but I’m also a human.
That Odwalla story is one of the crazier stories I can think of, but there are many others, and there would be many fewer if the way we handled food safety here made more sense.
Here is a bit more of what happened to Odwalla (in addition to paying my clients $12-$15,000,000): In 1998 in what was the first criminal conviction in a large-scale food-poisoning outbreak, Odwalla Inc. pleaded guilty to violating Federal food safety laws and agreed to pay a $1.5 million fine for selling tainted apple juice that killed a 16-month-old girl and sickened 70 other people in several states in 1996. Odwalla, based in Half Moon Bay, California pleaded guilty to 16 counts of unknowingly delivering ”adulterated food products for introduction into interstate commerce” in the October 1996 outbreak, in which a batch of its juice infected with the toxic bacteria E. coli O157:H7 sickened people in Colorado, California, Washington and Canada. Fourteen children developed a life-threatening disease (hemolytic uremic syndrome -HUS) that ravages kidneys. At the time, the $1.5 million penalty was the largest criminal penalty in a food poisoning case. Odwalla also was on court-supervised probation for five years, meaning that it had to submit a detailed plan to the food and drug agency demonstrating its food safety precautions and that any subsequent violations could have resulted in more serious charges. (Odwalla)
Interesting that the same US Attorney that took on Odwalla is the same who is looking at Chipotle.