Our offices have been essentially empty for the last month.

We have been successfully working remotely since early March and all lawyers and staff have continued to work hard and produce the high quality legal work that Marler Clark is known for.

We are starting to plan for the “new normal.”  Here are some thoughts.  I know I have a number of very smart subscribers, so feel free to give me any input that will make my staff safer.

Note:  Harvard researchers have opined that people around the world might need to practice some level of social distancing intermittently through 2022 to stop the disease from surging again and overwhelming hospital systems, unless hospital capacity is increased, or effective vaccines and treatments are developed. Businesses should begin to make plans that provide adequate social distancing within the workplace. And, they should also be prepared to demonstrate that when regulatory restrictions are eased, they can accommodate physical distancing for both their employees and customers.

Of course, I am assuming that we will continue to see a lack of COVID-19 testing for the disease of for antibodies.  In a perfect world, I would hope to have tests available.

Marler Clark Office Changes:

  • Tape markers on the floor to remind everyone of how far 6 feet is (i.e., tape on floor behind each cubicle that is being used, and outside each publicly used door, in kitchen, etc.)
  • Put a sign in elevator reminding everyone that only one person is to ride at a time
  • Put up some reminders for regular hand-washing (i.e. in the bathroom, in the kitchen, by the exits, and around cubicles for hand washing every 2 hours or more often when moving about)
  • Place caddies by entrances to office with hand sanitizer, masks, wipes, and thermometers (a noninvasive type that doesn’t require touching the skin)
  • Place hand sanitizer dispensers, sanitizer wipes and no-touch waste bins at strategic places in office (kitchen, printer room, elevator, conference rooms, sitting areas, archives, at cubicles)
  • Ask employees to use their own thermometers to check temperature before coming to work and before departing home
  • Masks made available for use upon entry to office. No need to use masks at desk all day, only coming and leaving office, or when conferring or meeting with others, or walking around office or in common areas
  • Message other businesses in building so that all are compliant with elevator and stairwell limits
  • Create elevator waiting areas tape markers and hang signs about elevator use/hand-washing
  • Turn on whatever type of air filtration is available to keep air clean and virus-free

Office Etiquette:

  • No more than 5 people in the office at any time and work separated by at least one cubicle
  • Each person works 2-3 days in the office, including weekends – schedule either created by one person or to incorporate people’s workday preferences
  • People should drive, walk, or ride bikes (pay for parking) – No public transportation
  • Employees to take temperature at the beginning of their work time – will work on a honor system (normal temp: 5–37.5 °C (97.7–99.5 °F)
  • Employees to stay at least 6 ft from others and wear masks when conferencing, walking around the office or in common areas
  • Hand wash or sanitize before using common areas – printer room, kitchen, conference room – and wash hand after using the bathroom
  • No more than one person at a time in common areas– printer room, kitchen, conference room
  • All food coming in should be from home to avoid outside contamination
  • Each person must sanitize their workspace at the end of day, and each person assigned one other area to sanitize (kitchen, supply room, bathrooms)
  • Cleaning service should be disinfecting on a weekly basis, at least
  • Stay home if any signs of respiratory illness (coughing, fever, sore throat, fatigue, trouble breathing)
  • If sickness occurs while at work, employee should inform the whole office and sanitize anything they touched before leaving

Up from last months count of 39 , the CDC announced today that a total of 51 people infected with the outbreak strain of E. coli O103 were reported from 10 states – Idaho, Utah, Wyoming, Texas, Iowa, Missouri, Illinois, Florida, Virginia and New York.

Illnesses started on dates ranging from January 6, 2020, to March 15, 2020. Ill people ranged in age from 1 to 79 years, with a median age of 29 years. Fifty-five percent of ill people were female. Of 41 ill people with information available, 3 were hospitalized and no deaths were reported.

Epidemiologic, traceback, and laboratory evidence indicated that clover sprouts were the source of this outbreak.

Seventeen (63%) of 27 people interviewed reported eating sprouts at a Jimmy John’s restaurant. Jimmy John’s LLC reported that all of their restaurants stopped serving clover sprouts on February 24, 2020. Clover sprouts are no longer available at Jimmy John’s restaurants.

Additionally, FDA identified the outbreak strain of E. coli O103 in samples of Chicago Indoor Garden products that contain sprouts. On March 16, 2020, Chicago Indoor Garden recalled all products containing red clover sprouts.

FDA’s traceback investigationexternal icon showed that a common seed lot was used to grow both the sprouts recalled by Chicago Indoor Garden and sprouts that were served at some Jimmy John’s locations. The same seed lot was also used to grow sprouts linked to an outbreak of the same strain of E. coli O103 infections in 2019.

We have filed lawsuits in Utah and Iowa – more to follow.

Recognizing the impact on our communities, we have donated nearly $100,000 to local food banks.  We have also donated $20,000 to area restaurants to serve people in need and to help keep restaurant employees employed.  We are honored to also be serving dinners and lunches to local Police and Fire departments and a local medical clinic that is doing COVID-19 testing.

We need to do more, and we will.  We all need to do more, and I urge all to do what they can.

Marler Clark lawyers and employees have been working from home (well, most – some keep coming to the office) since late February.  Everyone has been all set up at home with phones, faxes, printers, etc., to serve the needs of our clients.

Things have been a challenge.  Courts are closed and hearings are being done via video and phone, albeit slowly.  However, we continue to push the process.

Getting medical records, bills and health department records have slowed, but every day the paralegals “gently” push to get the records needed to prosecute cases.

If anyone is having an issue on their case or need assistance, please email me at bmarler@marlerclark.com or call me at 1-206-794-5043.

Marler Clark is here to serve.

In 2015, we were involved in litigation with Chipotle over Norovirus cases in Massachusetts and California and a Salmonella outbreak in Minnesota.  And, folks recall both E. coli outbreaks – O26 and O157 as well, which we also prosecuted.  

Then the Justice Departments press release – its headlines ALL CAPS – landed in my inbox.

Damn, this is a significant fine.

California-Based Company Agrees to Pay Largest-Ever Fine in a Food-Safety Case and Implement a Comprehensive Food Safety Compliance Program

WASHINGTON – Chipotle Mexican Grill Inc. will pay $25 million to resolve criminal charges related to the company’s involvement in foodborne illness outbreaks that sickened more than 1,100 people between 2015 and 2018, the Department of Justice announced today.

A criminal information filed today in federal court in Los Angeles charges Chipotle with adulterating food in violation of the Federal Food, Drug, and Cosmetic Act.  The Newport Beach, California-based company agreed to a three-year deferred prosecution agreement (DPA) that will allow it to avoid conviction if it complies with an improved food safety program.  Chipotle also agreed to pay the $25 million criminal fine, the largest ever in a food safety case, as part of the DPA.

“This case highlights why it is important for restaurants and members of the food services industry to ensure that managers and employees consistently follow food safety policies,” said Assistant Attorney General Jody Hunt of the Department of Justice’s Civil Division.  “The Department of Justice will vigorously enforce food safety laws in order to protect public health.”

“Chipotle failed to ensure that its employees both understood and complied with its food safety protocols, resulting in hundreds of customers across the country getting sick,” said U.S. Attorney Nick Hanna for the Central District of California.  “Today’s steep penalty, coupled with the tens of millions of dollars Chipotle already has spent to upgrade its food safety program since 2015, should result in greater protections for Chipotle customers and remind others in the industry to review and improve their own health and safety practices.”

“The FDA will hold food companies accountable when they endanger the public’s health by purveying adulterated food that causes outbreaks of illness,” said Food and Drug Administration Commissioner Stephen M. Hahn, M.D.  “We will continue to investigate and bring to justice any company whose food products present a health hazard to consumers.”

The charges stem in part from incidents related to outbreaks of norovirus, a highly infective pathogen that easily can be transmitted by food workers handling ready-to-eat foods and their ingredients.  Norovirus can cause severe illness, including diarrhea, vomiting, nausea, and stomach pain.

According to the factual statement in the DPA, which the company agreed was true, Chipotle was implicated in at least five foodborne illness outbreaks between 2015 and 2018 connected to restaurants in the Los Angeles area, Boston, Virginia, and Ohio.  These incidents primarily stemmed from store-level employees’ failure to follow company food safety protocols at company-owned restaurants, including a Chipotle policy requiring the exclusion of employees who were sick or recently had been sick.

For example, in August 2015, 234 consumers and employees of a Chipotle restaurant in Simi Valley, California reported becoming ill.  Although company policies required the restaurant to report certain employee illnesses to Chipotle safety officials and to implement enhanced food safety procedures, the restaurant did not pass along information regarding an ill employee until multiple consumers already had reported being sick.

In December 2015, a norovirus incident at a Chipotle restaurant in Boston sickened 141 people.  According to the DPA, that outbreak likely was the result of an ill apprentice manager who was ordered to continue working in violation of company policy after vomiting in the restaurant.  Two days later, the same employee helped package a catering order for a Boston College basketball team, whose members were among the consumers sickened by the outbreak.

In July 2018, approximately 647 people who dined at a Chipotle restaurant in Powell, Ohio reported illness related to Clostridium perfringens, a pathogen that grows rapidly when food is not held at appropriate temperatures.  The local health department found critical violations of local food regulations, including those specific to time and temperature controls for lettuce and beans.

As set out in the DPA, some store-level Chipotle employees from the 2015 to 2018 time period reported inadequate staffing and food safety training.  Employees also reported pressure to work while sick, even though that was against Chipotle’s sick-exclusion policies.

Chipotle agreed in the DPA to develop and follow an improved, comprehensive food safety compliance program.  Chipotle agreed to work with its Food Safety Council to evaluate the company’s food safety audits, restaurant staffing, and employee training, among other areas, to mitigate the issues that led to the outbreaks.

This investigation was conducted by the Food and Drug Administration-Office of Criminal Investigations.  The government is represented by Trial Attorney Daniel E. Zytnick of the Justice Department’s Consumer Protection Branch, and Assistant U.S. Attorneys Joseph O. Johns and Mark A. Williams and Special Assistant U.S. Attorney Sonia W. Nath of the U.S. Attorney’s Office for the Central District of California’s Environmental and Community Safety Crimes Section.

For more information about the Consumer Protection Branch and its enforcement efforts, visit its website at http://www.justice.gov/civil/consumer-protection-branch.  For more information about the U.S. Attorney’s Office for the Central District of California, visit its website at https://www.justice.gov/usao-cdca.

The year 2020 marks the 150th anniversary of the Department of Justice.  Learn more about the history of our agency at www.Justice.gov/Celebrating150Years.

Here is a bit of my history with Chipotle:

2018 Outbreak of Clostridium perfringens at Chipotle, Powell, Ohio

In July 2018 public health investigators at the Delaware General Health District (DGHD) and the Ohio Department of Health (ODH) investigated an outbreak of Clostridium perfringens associated with Chipotle Mexican Grill located at 9733 Sawmill Parkway in Powell, Ohio. Six hundred forty-seven people became ill after eating at the restaurant between July 26 and July 30. Chipotle closed the store on Monday, July 30. After implementing its food-safety-response protocols which included replacing the food and cleaning the restaurant, the facility reopened on July 31.

2017 Outbreak of Norovirus at Chipotle Mexican Grill, Sterling, Virginia

The Loudoun County Health Department reported that more than 135 people were sickened after eating food from the Chipotle Mexican Grill located at 21031 Tripleseven Road in Sterling, Virginia. The first reports of illness occurred on July 13, 2017. Two ill patrons tested positive for norovirus. The outbreak was attributed to an ill food handler.

2015 Outbreak of Norovirus, Chipotle Mexican Grill, Boston, Massachusetts

More than 120 Boston College students were taken ill after eating at the same Chipotle at 1924 Beacon Street in Brighton in December 2015. After receiving reports of multiple cases of gastrointestinal illness among patrons who ate at the Chipotle Mexican Grill in Cleveland Circle, the Boston Public Health Commission, the City of Boston Inspectional Services Department, and the Massachusetts Department of Public Health launched an investigation to determine the cause and the nature of the illness. Laboratory testing confirmed the presence of norovirus. There were 136 known cases of norovirus from people who ate at Chipotle; others who were contacts to these cases have also become ill. City inspectors closed the Chipotle, located in Brighton near BC’s campus, “until further notice” after reporting three critical health violations following a visit Monday.

2015 Outbreak of E. coli O26 Linked to Chipotle Mexican Grill, Washington and Oregon

The CDC, FDA, USDA FSIS and public health officials in several states investigated two outbreaks of E. coli O26 linked to food sold at Chipotle Mexican Grill restaurants. Public health investigators used PulseNet to identify illnesses that were part of the outbreaks. Two different rare PFGE patterns were included in these investigations. Outbreak #1: A total of 55 people infected with PulseNet strain EVCX01.1180/EVCA26.0773 were reported by 11 states. The majority of cases were reported from Washington (27) and Oregon (13). Other states included California (3), Delaware (1), Illinois (1), Kentucky (1), Maryland (1), Minnesota (2), New York (1), Ohio (3) and Pennsylvania (2). Among people for whom information was available, illnesses started on dates ranging from October 19, 2015 to December 1, 2015. Twenty-one (38%) reported being hospitalized. There were no reports of hemolytic uremic syndrome or deaths. This outbreak was assigned CDC Outbreak ID 1511MLEVC-1. Outbreak #2: In December 2015 a second outbreak with a different rare strain of E. coli O26 was identified. A total of 5 people were reported from three states, Kansas (1), North Dakota (1) and Oklahoma (3). Illness onsets for these outbreak cases ranged from November 18, 2015 to November 26, 2015. One person reported being hospitalized. There were no reports of hemolytic uremic syndrome or deaths. A review of chipotle’s distribution records by state and federal regulators was unable to identify a single food item or ingredient that could explain illnesses in either outbreak.

2015 Outbreak of Norovirus, Chipotle Mexican Grill, Simi Valley, California

In August 2015 Ventura County Environmental Health and Ventura County Public Health Division staff investigated an outbreak of norovirus among patrons of a Chipotle restaurant located in the Simi Valley Towne Center. During the week of August 18, 2015 about 80 customers and 18 restaurant employees reported symptoms. Laboratory testing of patient specimens confirmed the presence of Norovirus. The restaurant closed for thorough cleaning before reopening.

2015 Salmonella Newport Outbreak, Chipotle Mexican Grill, Minnesota

Minnesota Department of Health (MDH) and Minnesota Department of Agriculture investigators reported an outbreak of Salmonella Newport among customers of 17 different Chipotle Mexican Grill restaurants. The MDH Public Health Laboratory detected two PFGE outbreak strains identified as PulseNet patterns JJPX01.0030 and JPX01.0011. In total 92 culture confirmed case patients were identified. Eighty-one (88%) of the 92 cases reported that they ate or likely ate at a Chipotle location before onset of Illness. Ten (12%) cases denied exposure to Chipotle and one (1%) case was secondary to a household member with Chipotle exposure. In addition to the confirmed cases, 34 persons met the definition as a probable case. Among the 115 (81 confirmed and 34 probable) cases, illness onset dates ranged from August 2 to September 27. Seventeen cases were hospitalized, 18 were seen at an emergency department and 54 sought care at an outpatient clinic. No cases died. Analysis of case control data showed that mild tomato salsa, carnitas and brown rice were significantly associated with illness. Tomatoes were implicated as the outbreak vehicle by an ingredient-specific analytic study, supported by internal product distribution information provided by chipotle corporate. The ultimate source of contamination (i.e., the tomato farm or packing house) was not identified.

2015 E. coli O157 Outbreak Linked to Chipotle Mexican Grill, Seattle, Washington

In early August 2015 Public Health Seattle King County (PHSKC) investigated an outbreak of E. coli O157 that occurred among five patrons of Chipotle Mexican Grill located at 1415 Broadway in Seattle, Washington. Illness onset dates occurred on July 28, 2015 (1 case), July 29 (2 cases) and July 31 (2 cases). All five cases reported experiencing diarrhea that turned bloody and abdominal cramps. Two cases reported vomiting. Two cases reported fever. Three cases were hospitalized. Two sought treatment at an emergency department. None of the patients developed Hemolytic Uremic Syndrome. There were no deaths. The Washington Department of Health (WDOH) Public Health Laboratory (PHL) conducted genetic testing by pulsed field gel electrophoresis (PFGE) on isolates cultured from patients’ specimens. Test results showed that all were infected with an indistinguishable genetic strain assigned PulseNet Identification Numbers EXHX01.0012/EXHA26.1779. This strain had not been seen previously in King County. 

You cannot slaughter animals without workers to do the work, and you cannot sell meat without inspectors.

We need to protect both workers and inspectors or we will see more plants shutter and our grocery stores empty.

Forcing workers and inspectors to work unprotected is not the answer.

According to the New York Times, there are about 800 federally inspected slaughterhouses in the United States, processing billions of pounds of meat for food stores each year. But a relatively small number of them account for the vast majority of production. In the cattle industry, a little more than 50 plants are responsible for as much as 98 percent of slaughtering and processing in the United States

More than a dozen beef, pork and chicken processing plants have closed or are running at greatly reduced speeds because of the pandemic. This past week, the number of cattle slaughtered dropped nearly 22 percent from the same period a year ago, while hog slaughter was down 6 percent, according to the Department of Agriculture. The decline is partly driven by the shutdown of restaurants and hotels, but plant closings have also caused a major disruption, leaving many ranchers with nowhere to send their animals.

According to Government Executive, as more federal food inspectors go home sick, the Agriculture Department is scrambling to reassign employees from shuttered facilities to those with new outbreaks and is instructing those with known exposure to the novel coronavirus to continue reporting to work.

The Food Safety Inspection Service, the USDA component that handles meat inspections, is still not providing employees with masks or other protective equipment, citing a national shortage. Instead, the agency told employees they could voluntarily bring their own “cloth face coverings” to slaughterhouses, processing plants and other facilities, and will reimburse them up to $50. Until earlier this month, employees were prohibited from wearing masks, multiple inspectors said, because it created fear in the workplace.

You could solve one outbreak by vaccinating the homeless against Hepatitis A (there is one available) and providing then adequate bathroom facilities.

We are likely a year out for a Coronavirus vaccine.  You could help mitigate the spread by providing the homeless with homes, food and health care.

Being a good human is good for humanity.

The Seattle Times reports that a local outbreak over the last several months has showed their concerns were justified. More than 100 people have been sickened by hepatitis A in King County since the beginning of January, compared with annual totals of five to 16 cases over the last decade, according to Public Health — Seattle & King County. Nearly 50% have been among people experiencing homelessness.

Of 30 local cases in March, 14 were from people who were homeless in the Ballard area, according to Public Health director Patty Hayes.

Officials are now confronting two outbreaks at once: A novel coronavirus pandemic that has proven deadly, as well as hepatitis A, a highly infectious liver disease transmitted through fecal matter that disproportionately harms people who are homeless. And advocates say the city has not done enough to prevent either in its unsheltered homeless communities.

Features – Cover Story

Quality Assurance and Food Safety Magazine

April 3, 2020

Lisa Lupo

Photos by Jake Gravbrot

On one hand: “You have to recognize what an amazing job food production is doing in the world, especially in the U.S. Given the amount of people that we feed, the relative safety of the food supply is pretty amazing given how it has become more and more complex. … I’ve seen some in industry step up and do an amazing job.”

On the other hand: “The things I see on a day-to-day basis are the people negatively impacted by food poisoning, and it’s hard not to look at that in the context of the bigger picture. I’ve known kids so injured, they can’t walk. I’ve been in the room when a child was removed from life support. I’ve spoken at funerals. … I’ve seen the devastation of food poisoning.”

Bill Marler is the food industry’s most (in)famous foodborne illness attorney. As managing partner of Marler Clark, he is the leading defender of victims who suffer life-altering injury or death from food poisoning — sitting on the other side of the courtroom from the food companies whose contaminated products are implicated in those outbreaks. In the 27 years since his first foodborne illness case representing victims of the Jack in the Box E. coli outbreak, he has represented thousands of individuals in claims against food companies. And he has attained multi-million-dollar landmark settlements for them.

But he is not just about litigation. Rather, Marler is an active pro bono advocate for a safer food supply working with nonprofit food safety and foodborne illness victims’ organizations; helping spur the passage of FSMA; and speaking to the industry on “how to prevent foodborne illness … and prevent me from showing up.”

In February, QA Editor Lisa Lupo sat down with Marler to discuss just that along with his thoughts and advice on prevention; litigation, liability, and fault; outbreak warning signs; consumer communication; and food safety culture.

Let’s start with the basics of litigation in a foodborne illness case. Say the implicated food manufacturer has a very robust food safety program, GFSI implementation, regular audits, and food safety culture. Will that protect the company in a lawsuit? 

Marler. Only if you don’t poison anyone. Due diligence is not a defense.

Well, that certainly starts things off on a definitive note. Does it mean there’s nothing the food industry can do to keep from getting sued? 

Marler. This shouldn’t make you feel resigned to not being able to do anything. Doing all these food safety things helps. For example, a test-and-hold program can keep contaminated food from getting to market, so people don’t get sick, and you don’t get sued. Interventions knock down the bacterial load, so it doesn’t get in the market; you don’t get sued, because no one gets sick. Use auditing, use all the tools in your toolbox to prevent illnesses, which should be the real goal.

Bill Marler is the food industry’s most (in)famous foodborne illness attorney. As managing partner of Marler Clark, he is the leading defender of victims who suffer life- altering injury or death from food poisoning .

In food safety there are always warning signs before an outbreak. The real question is: What are you going to do to allow your operation to stay ahead? The margins (in the food industry) aren’t great. I get it, but you have to ask yourself, what are the alternatives? Do you ignore the problem? Or do you grapple with it?

If you do everything you can to prevent illness, you’re likely to prevent illness. And if that’s not something you think is doable, then maybe you’re not in the right business, or you’re just a person who says, “Shit happens.” I feel like that’s where we’ve wound up in the romaine problem.

Can you further discuss that? 

Marler. If you think about how many billions of servings of romaine lettuce are eaten, you may think, “Well, only 500 people got sick. Only five died.” Statistically that’s true, but what that says is that statistically you’re ok with illnesses and deaths. If that’s the case, what are you going to do about it? If you’re going to treat it as something that is just inevitable, it strikes me that, as an industry, you should do more than simply say, “Oh, if it’s inevitable, we’ll leave it up to Marler to sue our asses.”

The reality is that not everyone hires a lawyer, not everyone hires me, not everyone makes a claim; so the industry, for the most part, gets a pass on poisoning people. I certainly hold them accountable for the people who hire me, but in the scheme of things, does me filing hundreds of millions of dollars of lawsuits change industry a lot?

I’ve been around the leafy green industry long enough now to see the changes they’ve tried to make post-spinach 2006. The outbreaks we know about are clearly linked to environmental contamination. There’s clearly something going on that putting up a fence, washing, and testing are not solving.

Should we really be growing a ready-to-eat product within a stone’s throw of a 100,000-cow concentrated animal feeding operation (CAFO); should we be using untreated water to irrigate or aerial spray? Aren’t we just asking for a problem? Both of those things are tough public policy calls to the point where industry and government will have to say we’re going to deal with that, or say it’s ok to have hundreds of people sick and a bunch die, because it seems consumers quickly forget and come back to eating a product — it’s kind of like cigarettes.

But when you go to an ICU with a family who unplugs their child from life support because they ate a food product that killed them, it’s hard to step back and say, we feed hundreds of millions of people successfully every day.

So, having a robust food safety program with substantial documentation and verification systems doesn’t absolve a company, but can it reduce the punitive damages in a food poisoning or outbreak litigation? 

Marler. Let’s say there’s two companies that simultaneously have a Salmonella outbreak. One company has the most robust food safety system in the world, they go to every conference and read every magazine, they do all the things one should do to prevent foodborne illness. Another company — say Peanut Corporation of America (PCA) — does nothing to prevent illness; they knowingly ship Salmonella-tainted product. What happens to those two companies? PCA executives go to jail for 28 years.

So, is there a difference between that and a company that tries to do everything? The answer is “Yes.” It’s likely you’re not going to poison somebody, and if there is something that slips through the cracks, you won’t be held liable criminally; you won’t be held liable for punitive damages. So, there is a reason to work hard.

There also are a lot of cases the food industry has to deal with that are not science based. For example, I got a call from a person who wanted to sue a restaurant where he had eaten the day before, for having caused him to get Hepatitis A. I told him no, it has to have been from something else, the Hepatitis A incubation period is two weeks. You can protect yourself from those cases with science.

What are the most common mistakes you’ve seen in the food industry? 

Marler. The most common mistake is not paying attention to problems before they blow up into something worse. There’s not one outbreak I’ve ever been involved in that didn’t have warning signs — though I do get the benefit of hindsight. Take PCA as an example. I think it’s a pretty big warning sign when you’re getting positive Salmonella tests, and then you start forging documents to say that it’s a negative. They didn’t have a system to fix that.

Or consider Jack in the Box, which actually started in December 1992. E. coli O157:H7 was not a reportable disease in California in 1992, so there was a cluster of diseases in California that no one knew about; the meat got shipped to Washington; and the thing blew up. Almost more importantly, the state of Washington had changed its food code to 155° internal temp (for hamburger), told Jack in the Box — told all the restaurants. Jack in the Box knew about it, but because all the other states were 140°, they made the decision that because they were in all these other states they weren’t going to twist their process to help one state; instead of asking itself why Washington was doing that: what’s the food safety implication of that? And saying, maybe what we should do is raise everybody’s requirement.

Six months before the 1996 Odwalla unpasteurized juice E. coli outbreak, Odwalla tried to sell its juice to the U.S. Army. The Army told them no, saying the juice was not fit for human consumption. If you were told that by the Army, do you think you may have thought about changing your procedures?

So, do you have the people and processes to recognize a problem and communicate the problem to the people who can make a decision, so you don’t cause an outbreak?

What is the manufacturer’s liability if a contamination originates in the upstream supply chain? 

Marler. Food is a product. It’s no different than a car. If you’re a manufacturer of product, you are strictly liable if it’s defective. Say a car had a leaky gas tank — you may not have made it, but you added it to the car, so you are the manufacturer. In the same way, if you’re a taco manufacturer and you add cilantro to your product that turns out to be contaminated, you’ve added it, so you’re liable. So is the cilantro producer. The question is: Did you make someone sick? If it can be proven that a product caused an injury, the manufacturer is at fault.

Care in handling and cooking of foods by consumers is considered a significant aspect of food safety. Is the fact that a food was not properly handled post-production a defense in litigation for the producer? What responsibilities do consumers bear? 

Marler. The law tends to look at things very black and white: us vs. them. When you go into a courtroom, there is 100% fault; how that fault gets allocated will be determined by the jury. Say there’s company A and plaintiff B. If company A produced a Salmonella-tainted chicken and plaintiff B got sick, the fight will be: How do you allocate fault between them, presuming the consumer cooked the product or cross-contaminated the product?

But let’s say plaintiff B is a 10-year-old kid. How will the jury allocate fault between a giant corporation and a 10-year-old kid? What if plaintiff B is a busy soccer mom with four children; one of the kids unloads the groceries, gets chicken juice on the counter and wipes it with a towel. How will they allocate fault? What if plaintiff B were Bill Marler? They’d probably allocate most of the fault to me.

So just saying consumers have responsibility is a nice thing to say, but in real practical terms, how does that work? All consumers are different; not every consumer reads food safety magazines, and not every consumer is a microbiologist. Most consumers don’t even know how to say Salmonella. And we know, for a fact, that most consumers don’t use a thermometer.

It’d be one thing if we had clarity on the message, but consumers get all kinds of mixed messages. Most of the time consumers are, apparently, doing a pretty good job, because we don’t have everyone getting sick all the time.

So I think that broadly, abstractly, do consumers bear responsibility? Certainly they do. But you have to look at it in the context of: who is the person consuming? I think what it comes down to is consumers are very different, very few know anything about food safety; and then they’re given incredible mixed messages. It’d be one thing if the label on chicken said, “This product is likely to contain Salmonella and Campylobacter. Handle this like it could kill you.” If the industry wanted to put a label like that on a product, then I think they’d have a better fighting chance in the courtroom against a consumer.

You’ve discussed the lack of transparency by both the food industry and FDA. What do you see as the issues, and why are they a problem?  

Marler. When we learn about how many outbreaks we don’t know about, that FDA and CDC don’t tells us about, it skews consumers’ thoughts about whether or not the product is safe. Look at the last summer’s outbreak that FDA finally announced in November — because I knew it existed and I told (FDA) that I was going public with it unless they made the announcement. The industry knew, the FDA knew, most labs knew that there was an outbreak that went on in the summer of 2019, but the consumers didn’t know about it. FDA said there was no actionable thing consumers could do. But that’s pretty much true of every leafy green outbreak. By the time they’re figuring out the outbreak happened, it’s off the shelves; consumers ate the evidence. So if the analysis is that we’re only going to announce something if the consumer can do something, why have any outbreak announcements?

The food industry is so broad, and it’s further complicated by imports and issues of oversight. I think in the short and long run, industry will never be able to count on government to help them, so they will have to help themselves. I think in a perfect world, we would have more government control of food safety, because it evens the playing field for everyone. The wealthier companies and poorer companies get treated the same, or should be, and everyone is forced to play at the same pace for the same safety issues.

One of the pushbacks I get is, “Oh you want it to be public, so you get the cases.” I get the cases! That’s how I found out there was an outbreak. 

The point is that consumers have a right to know. We, as consumers, pay the FDA’s and CDC’s salaries. They should be responsible to us, not to the industry. And the industry should be responsible to consumers by giving them knowledge about whether their product is safe or not.

If you want the capitalist consumer-oriented marketplace to work effectively, consumers need to know as much information as they can get. It’s never going to be perfect because a lot of people have no idea what caused them to get sick.

I think bringing transparency to bear against an industry is the right thing. Sun is the best sanitation.

How much of an impact do you believe your, and others’, litigation has had on improving food safety for those who have been sued — and those who have not? 

Marler. I think lawyers like to think that lawsuits and money judgments change behavior; I think I’m not so egotistical to think that’s completely true. So 25 years ago I stated doing other things like speaking at conferences, being involved in legislation, making sure that people’s stories got told. Do I think all of that in combination has had a positive impact on the food system? Yes. Have there been other people and other things who have had a bigger impact, positively? Certainly. But I think the combination of all the things I do has had some positive impact.

Most food safety professionals agree that food safety culture is critical, but there is no uniform consensus on implementation, measurement, etc. What are your thoughts on this? 

Marler. What if there had been one person at PCA who said, we can’t be manufacturing Salmonella tests, who went to management and said we can’t do that, and then got fired and went to the media or the police? Obviously, that’s the far extreme. With Jack in the Box, shouldn’t somebody have gone to someone at food safety, and someone at food safety have gone to the CEO and said, “There’s been studies, there’s an E. coli problem. McDonald’s had it in 1982, so we should probably be worried about this.”

Do you have a system in place — and I think it dovetails into culture — that allows people to pay attention to things that can turn around and bite them?

To me, the idea of HACCP, is in some respects simple. It’s so simple. I’m big into making lists of things to do. So when I look at a case, I look at the good parts and bad parts and think about what I need to do to fix the bad parts and make the good parts even better. In the same way, I look at the manufacturing of food products. One of the goals is obviously to increase sales, and we don’t want to poison people. Those two things are not mutually exclusive.

If you’re going to be a serious player, you have to pay attention to details, and you have to pay attention to the things that are coming at you and make sure you’re aware of issues.

Lawyers spend three years (in law school), and almost all that you’re doing is spotting issues. That’s what lawyers are trained to do. When you’re taking the law exam, you get credit for being able to see the problem. You get credit for applying the law to the problem, but you get as much credit for seeing the problem. What we’re trained to do is to find the problem, which is why people hate lawyers. The training is to look for problems that allow us to actually see them. I think that’s part of the problem in the food industry, we don’t figure out ways to train people to look for problems or be aware of them.

So if there’s one bit of advice, it’s to create a system that allows people to be aware and that reacts to that awareness. That’s how you prevent foodborne illness and that’s how you prevent me from showing up.

Dear Speaker Pelosi, Leader McCarthy, Leader McConnell and Leader Schumer,

As Congress develops urgently needed additional legislation to address the impacts of the COVID-19 pandemic, legislators must do much more to ensure that healthy, safe and affordable food is available to all, and to minimize the challenges facing farmers, food workers and farmworkers who are risking their own health to keep our food system going. Before this pandemic, 37 million people in the U.S. were food insecure (1), and the economic crisis exacerbated by COVID-19 will leave millions more without access to affordable healthy food. From farm to fork, your response to the COVID-19 pandemic must ensure that these people – the tens of millions of food insecure households in this country, and nearly 22 million individuals employed in the agriculture and food industries (2) – have the economic security necessary at this critical time to feed and support themselves, their children and their families.

Congress got it right by including in the Family First Act and CARES Act provisions that provide financial assistance to food banks, school nutrition programs, farmers and restaurants forced to close. But these bills do not protect food and farm workers doing their essential jobs. Food and farm workers need to be designated “first responders” because they are on the front lines of this battle. They deserve not only our gratitude but adequate protection and provision for their health, safety and financial security. They need access to adequate information about the virus. They need paid sick time so that if they do contract the virus, they can take time off to get better. They need basic safety equipment, like handwashing stations, and basic protections, like six feet of space between workers. They need health care when they do get sick, and they need fair compensation for the risks each of them takes every day to keep us fed. In addition, the CARES Act fell short of what’s needed to keep farms going, keep newly unemployed food workers afloat, and to help keep food on the table for all people in this country facing hunger, especially our seniors.

As you develop new legislation to address the COVID-19 pandemic, we urge you to:

  • Protect food and farm workers – Much more needs to be done by the Occupational Safety and Health Administration, or OSHA, which needs to issue and strongly enforce an Emergency Temporary Standard to mandate that employers offer adequate protections for front-line food-chain workers and others at risk. These protections must ensure that the food and farm workers who grow, manufacture, stock , sell, and transport our food have adequate protections from the virus, including personal protective equipment and the ability to report violations. USDA should also issue food and worker safety guidance to school food service workers, operators and volunteers, and provide them with personal protective equipment.
  • Expand food and farm worker benefits – Congress should do more to support newly unemployed food and farm workers by expanding the number of weeks that workers are eligible for unemployment benefits, regardless of immigration status, and provide hazard pay. Congress should also ensure that all food and farm workers are designated as first responders and are eligible to receive state benefits such as childcare, overtime, premium pay and have the right to organize.
  • Expand paid leave – To protect the health of food and farm workers and their families, and reduce the spread of the virus, Congress should provide free COVID-19 testing regardless of immigration status and provide universal paid sick days and paid family and medical leave. What’s more, Congress should expand health care coverage by paying for medical treatment related to COVID-19, by increasing the federal share of state Medicaid expenditures, and by adopting policies to help unemployed food and farm workers obtain health insurance.
  • Support farmers in need – Farmers are ready to meet regional food supply needs. To ensure that they can do so, Congress should place a moratorium on farm foreclosures and expand grant and loan programs. Priority in financial assistance from USDA should be directed to those most susceptible to economic downturns, including socially disadvantaged farmers and ranchers and those who have lost local and regional markets due to the COVID-19 pandemic. All farmers receiving financial assistance should demonstrate how funds will bolster local and regional food and economic security.
  • Enforce food safety laws – Congress should ensure that the USDA, EPA and the FDA enforce laws that keep our food supply safe, especially environmental laws that protect farm workers from pesticides and protect our drinking water supplies and laws that limit line speeds in meat and poultry processing.
  • Support families facing hunger – To support families facing hunger and provide an immediate boost to the economy, Congress should increase the SNAP benefit by 15 percent and raise the minimum monthly benefit to $30, and suspend rules that limit benefits. Congress should also suspend the public charge rule and take other steps to prohibit discrimination in anti-hunger programs. USDA should also use its authority to make it easier to provide meals to low-income families during school closures, many of whom are food and farm workers, by issuing a nationwide waiver for area eligibility.
  • Support elderly people and families – Congress should immediately expand the definition of “homebound” in the Meal to Wheels program to include all seniors. This will help reduce the threat the virus poses to the most susceptible Americans.
  • Support food vendors – Congress should do much more to support independent restaurants, including street vendors, by providing grants, reforming loan forgiveness standards and expanding zero-interest loans, and by extending loan periods.

Our food and farm workers are working long hours, at enormous personal risk, to make sure store shelves are stocked and families are fed. Millions of restaurant workers have lost their jobs. Mom and pop restaurants face the risk of economic ruin. And many families who lost their jobs or depend on school meals may now go hungry. As more workers become sick and job losses grow, our nation’s food farm system will be tested. We must get ahead of this with proactive measures rather than play catch-up later. Congress must do much more to provide the resources and policies we need to protect workers and ensure that healthy, affordable food is available to all. Food and farm workers have always taken care of us. It is in our national interest to take care of them.