546b8ec85be23.image_-300x300This afternoon Napa County Public Health announced that people who ate food or drink at La Toque restaurant and BANK Café and Bar, which are both in The Westin Verasa Napa Hotel, between February 9 and February 26, may have been exposed to the Hepatitis A virus. According to those officials, in the last two weeks five confirmed cases of Hepatitis A virus (HAV) have been reported to Napa County Public Health. They should watch for symptoms of Hepatitis A for 50 days after their visit. If they start having Hepatitis A symptoms they should call their healthcare immediately and tell them they may have exposed to Hepatitis in Napa. Anyone experiencing Hepatitis A symptoms should contact their healthcare provider immediately.

Hardly a month passes without a warning from a health department somewhere that an infected food handler is the source of yet another potential hepatitis A outbreak. Absent vaccinations of food handlers, combined with an effective and rigorous hand-washing policy, there will continue to be more hepatitis A outbreaks. It is time for health departments across the country to require vaccinations of food-service workers, especially those who serve the very young and the elderly.

Hepatitis A is a communicable disease that spreads from person-to-person. It is spread almost exclusively through fecal-oral contact, generally from person-to-person, or via contaminated food or water. Hepatitis A is the only foodborne illness that is vaccine-preventable. According to the U.S. Centers for Disease Control and Prevention (CDC), since the inception of the vaccine, rates of infection have declined 92 percent.

CDC estimate that 83,000 cases of hepatitis A occur in the United States every year, and that many of these cases are related to food-borne transmission. In 1999, more than 10,000 people were hospitalized due to hepatitis A infections, and 83 people died. In 2003, 650 people became sickened, four died, and nearly 10,000 people got IG (immunoglobulin) shots after eating at a Pennsylvania restaurant. Not only do customers get sick, but also businesses lose customers or some simply go out of business.

Although CDC has not yet called for mandatory vaccination of food-service workers, it has repeatedly pointed out that the consumption of worker-contaminated food is a major cause of foodborne illness in the U.S.

Hepatitis A continues to be one of the most frequently reported, vaccine-preventable diseases in the U.S., despite FDA approval of hepatitis A vaccine in 1995. Widespread vaccination of appropriate susceptible populations would substantially lower disease incidence and potentially eliminate indigenous transmission of hepatitis A infections. Vaccinations cost about $50. The major economic reason that these preventive shots have not been used is because of the high turnover rate of food-service employees. Eating out becomes a whole lot less of a gamble if all food-service workers faced the same requirement.

According to CDC, the costs associated with hepatitis A are substantial. Between 11 percent and 22 percent of persons who have hepatitis A are hospitalized. Adults who become ill lose an average of 27 days of work. Health departments incur substantial costs in providing post-exposure prophylaxis to an average of 11 contacts per case. Average costs (direct and indirect) of hepatitis A range from $1,817 to $2,459 per case for adults and from $433 to $1,492 per case for children younger than 18. In 1989, the estimated annual direct and indirect costs of hepatitis A in the U.S. were more than $200 million, equivalent to more than $300 million in 1997 dollars.  A new CDC report shows that, in 2010, slightly more than 10 percent of people between the ages of 19 and 49 got a hepatitis A shot.

Vaccinating an employee make sense.  It is moral to protect customers from an illness that can cause serious illness and death. Vaccines also protect the business from the multi-million-dollar fallout that can come if people become ill or if thousands are forced to stand in line to be vaccinated to prevent a more serious problem.

Official PortraitNew York Senator Gillibrand has once again proposed a law that would give the United States Department of Agriculture’s (USDA) Food Safety Inspection Service (FSIS) the ability that it does not believe it already has to recall meat tainted with the pathogenic Salmonella bacteria. The law in essence would prompt the FSIS to label Salmonella for what it really is – an adulterant that should not be on the meat on our tables.

In our convoluted food safety system, FSIS generally oversees beef, chicken, pork and lamb production and the Food and Drug Administration (FDA) regulates all other manufactured food products. FDA already bans Salmonella from all food, FSIS not at all.

Salmonella is a fecal bacteria that the Centers for Disease Control and Prevention (CDC) estimates sickens 1.4 million annually in the United States, hospitalizing 15,000 and killing 400. The economic loss is as staggering. The USDA’s own Economic Research Service reports Salmonella illnesses and deaths cost $3.6 billion yearly in medical costs, wage loss and premature death.

The Junior Senator from New York properly recognizes the long-standing dysfunction at the FSIS. This supposed public health agency, despite an 18 month Salmonella outbreak during 2013 and 2014, which sickened over 600 people – 40% who were hospitalized – and linked to one chicken supplier, felt powerless to close the plants or recall the chicken because, notwithstanding the illnesses linked to the chicken, FSIS presently does not consider Salmonella an adulterant – regardless of what commonsense might otherwise tell you.

As long as FSIS maintains that Salmonella is not an adulterant, it will continue to claim it lacks authority to protect public safety by recalling the tainted meat and shuttering the offending plants. This is why the Senator’s proposal has merit.

FSIS’s decades long position is as perplexing as it is wrong-headed – especially in light of a history of its own success with another fecal bacterial pathogen – E. coli O157:H7.

In 1993 as a new President was being inaugurated, a deadly E. coli outbreak was being linked to hamburgers. Four kids were dead, dozens suffered kidney failure, and hundreds were hospitalized – hamburger sales dropped.

The beef industry was on its knees and the public wanted answers. Haltingly at first, the Clinton administration found its backbone when FSIS Administrator Michael Taylor (now FDA’s Deputy Commissioner for Foods) stood before the American Meat Institute and proclaimed that the deadly E. coli bacteria would no longer be tolerated in hamburger – it would now be considered an adulterant – a so called: “Zero Tolerance Rule.”

At first, the beef industry balked – even litigated against the new rule – arguing that consumers should just cook the bacteria out of the meat. However, over time, industry and government found that with E. coli banned, the numbers of outbreaks and recalls linked to hamburger fell from commonplace to infrequent. And as a lawyer whose firm benefited from the commonplace, I was pleasantly stunned to see the flow of new clients – mainly children – slow to a trickle.

It is hard to underestimate what the success that setting the E. coli bar low – with ongoing plant inspections by FSIS inspectors – has meant for consumers and the industry. All the fears of hamburger being regulated out of existence, or that the cost of production would be so high that hamburger would no longer be an American staple, never came to be. And it had the added success of less sickened by E. coli – tainted hamburger and resulting in fewer lawsuits.

The Senator’s proposal gives us a great opportunity to learn from the hamburger/E. coli experience. We can do more to move the needle down on the 48 million sickened, 125,000 hospitalized, and 3,000 deaths per year by food, which costs our economy over $15 billion annually.

I once penned an op-ed during the middle of an E. coli outbreak linked to hamburger centered in Colorado that sickened fifty, killed one, and caused a half-a-dozen children to suffer acute kidney failure urging action. Banking on the reality that trial lawyers are only slightly more popular than members of Congress, I suggested that something be done to “put me out of business.”

As it relates to hamburger, the plea has worked. And a few months ago I had my first hamburger in twenty-two years.

The Senator’s proposal gives FSIS the tools it feels it needs to keep the public a bit safer. Safer food should be non-partisan. Republicans and Democrats eat and drink, and they have parents, kids, grandkids, and constituents who are some of the most vulnerable to foodborne illness. We can do something to make our food just a bit safer. The Senator’s proposal is a step in the right direction.

top10In the United States:

1. Typhoid fever, 1924-25

Oysters from Long Island, NY, held in polluted waters, sickened more than 1,500 people in New York, Chicago, and Washington, D.C.; 150 died.

2. Typhoid fever, 1903

A public water source in Ithaca, NY, was polluted from a dam construction site, resulting in a typhoid outbreak involving 1,350 people; 82 died, including 29 Cornell University students.

3. Streptococcus, 1911

Raw milk delivered door-to-door in the Boston area was responsible for a strep outbreak; 48 people died.

4. Listeria, 2011

“Rocky Ford” cantaloupe from Colorado became contaminated, probably in the packing facility, sickening at least 146 people in 28 states; 33 deaths and one miscarriage. Ten additional deaths were possibly related to the outbreak.

5. Listeria, 1985

Mexican cheese made by a Los Angeles company sickened mostly Hispanic women, many who were pregnant; 28 died.

6. Streptococcus, 1922

Raw milk delivered door-to-door in Portland, OR, was contaminated; 22 died.

7. Listeria, 1998

Ball Park hot dogs and Sara Lee deli meats were recalled after Listeria was found in the Michigan processing plant; 21 died.

8. Botulism, 1919

Canned ripe olives from California sold to inland states were contaminated and caused outbreaks in three states; 19 died.

9. Salmonella Typhimurium, 2008-09

Peanut butter and paste contaminated with S. Typhimurium caused at least 714 illnesses in 46 states; 9 died.

10. Listeria, 2002

Sliced turkey meats from Pilgrim’s Pride were responsible for a multiple state outbreak; 8 died.

© Food Safety News

peanutbutter-iphoneIn 2009, during yet another foodborne illness outbreak, which had killed nine and sickened over 700 with Salmonella, our new President stated:

At a bare minimum, we should be able to count on our government keeping our kids safe when they eat peanut butter…. That’s what Sasha eats for lunch…. Probably three times a week. I don’t want to worry about whether she’s going to get sick as a consequence of eating her lunch.

In addition to the sick and dead, and the worry of the most powerful dad in the world, this needless outbreak caused 4,000 products to be recalled and acres of unwanted peanuts to be plowed under. Besides the illnesses and deaths, estimates on the loss to the economy was more than half a billion dollars.

That outbreak, and scores of others involving spinach, lettuce, cheese, cookie dough, sprouts, pot pies – common items in the shopping aisles – prompted Republicans and Democrats to reach across the political aisle and pass the House version of the Food Safety Modernization Act (FSMA) in the Summer of 2009. The Senate passed its version – barely – just before Christmas 2010. The President quietly signed it into law. All agreed that it was the largest, and most comprehensive safe food overhaul in political history.

For the last five years, the Food and Drug Administration (FDA) has worked to implement FSMA with a limited budget, and with very little White House or Congressional support. Although new regulations have been slowly forthcoming, only minor increases in FDA inspections of domestically and imported food products have occurred, and the outbreaks and recalls – costing our economy billions of dollars – have continued. Even our exports have suffered. Southeast Asia recently banned U.S. apples after a caramel apple Listeria outbreak in the U.S. killed at least three and sickened 30.

Could we also make a food safety system more rational than one where the FDA regulates cheese pizza, but FSIS does if peperoni is added, or where FDA inspects fish, but FSIS regulates catfish?

Could we actually make our food supply safer and more efficient by consolidating over a dozen agencies with some food oversight into one where the goal becomes the reality of the safest food supply in the world?

What could a President and a Congress, unable to agree even on table setting, let alone how to make the food they and our families eat safer, do?

In the last month there have been some promising appetizers served up. First, Senator Durban and Congresswoman DeLauro proposed consolidating the food side of FDA and USDA (and a baker’s dozen of other agencies) into one.

Then just a few weeks ago, the President put a whole meal on the Congressional table by inserting into the White House’s budget the Durban/DeLauro single food safety agency, along with moving the Centers for Disease Control and Prevention (CDC) foodborne illness outbreak surveillance and investigation arm into a more unified food safety system.

Of course the attacks have come from all quarters. Some in industry – despite the benefits of real regulatory successes – complain about more unified regulation. Some in consumer groups simply argue that the perfect should always be the enemy of the good. And finally, many in Congress simply will disagree just to be disagreeable.

We should do better and do something. The recent proposals by members of Congress and the President have merit, and we all deserve that they have a reasoned, vigorous, and open discussion.

Yes, the President and Congress have a lot on their plates for the next 22 months, and perhaps safe food is not the main course, but it certainly can be a meal that is shared regardless of your political point of view.

Remember this, there is only one person that benefits from doing nothing, and that is me.

Law Review Color Seal-HRe-Tooling Food Law: How Traditional Legal Models Can Be Re-Tooled For Food System Reform.
Friday, March 06, 2015 9:00 AM – 3:30 PM (Pacific Time)

Seattle University
901 12th Avenue
Sullivan Hall
Seattle, Washington 98122
United States
Map and Directions

4.0 General CLE Credits, approved | WSBA Activity ID #394410

8:30AM
Registration and Breakfast

9:00 AM
Opening Remarks

9:15-10:30 AM
Panel 1 – “Re-Tooling Fisheries: Where Does Food Fit Among Environmental and Public Health Paradigms”
Moderator: Clifford Villa, Adjunct Professor, Seattle University School of Law; Assistant Regional Counsel, EPA
Panelists:
Janette Brimmer, Staff Attorney, Earthjustice Northwest
Anastasia Telesetsky, Associate Professor, University of Idaho
Robin Craig, Professor of Law, University of Utah

10:30-10:45 AM – Break

10:45 AM-12:00 PM
Panel 2 – “Re-Tooling Consumer Demand: How to Use Consumer Choice and Consider Those Who Lack It”
Moderator: Madeline Kass, Visiting Associate Professor, Seattle University School of Law; Editor, ABA Natural Resources & Environment Magazine
Panelists:
Jamie Renner, Assistant Professor and Clinical Lead, Vermont Law School
Andrea Freeman, Assistant Professor, University of Hawaiʻi
Samuel Wiseman, Professor, Florida State University

12:00 PM
Lunch – Keynote Speaker Emily Broad Leib, Director of the Food Law and Policy Clinic at Harvard Law School

1:30 PM
Panel 3 – “Re-Tooling Speech: What You Can Say About Your Food”
Moderator: David Skover, Fredric Tausend Professor of Law, Seattle University School of Law; co-author “On Dissent: Its Meaning in America”
Panelists:
Denis Stearns, Stearns Law PLLC; Adjunct Professor, Seattle University School of Law
Justin Marceau, Associate Professor, University of Denver
Baylen Linnekin, Executive Director, Keep Food Legal; Adjunct Professor, George Mason Law School
Nicole Negowetti, Assistant Professor, Valparaiso University

3:00 PM
Closing Remarks and Reception

284Recently, a Kansas State University Study examined again the effectiveness, through vaccination, of reducing pathogenic E. coli shedding in cattle. Schroeder, Ted C and Tonsor, Glynn T (2015) Agricultural and Food Economics: Market impacts of E. Coli vaccination in U.S. Feedlot cattle 3:7. This commercially available intervention has been used sparingly since 2010. But although it’s proven effectiveness has been shown to decrease the presence of pathogenic E. coli bacteria in cattle by as much as 98 percent, the cattle industry have largely refrained from adopting the practice of vaccinating herds.

Research shows that pathogenic E. coli bacteria cause more than 175,000 human illnesses per year with annual direct economic costs to the public ranging from $489 million to $983 million. The study found that if a vaccination program was adopted the cattle industry would face $100 million to $180 million in yearly costs. However, despite the economic and moral benefit generally, the cattle industry has not adopted vaccination because it bears little of the economic costs borne by the public as a whole and nothing – regulation or litigation – has forced a response.

Which begs the question, can and should the cattle industry be liable for the deaths and injuries that happen each year across the United States because of public consumption of E. coli-tainted food – be it beef contaminated during slaughter or foods – like leafy greens – contaminated environmentally through contact with cattle feces?

The question takes us back more than eighty years to the precedent setting opinion in the case of T. J. Hooper by Judge Learned Hand.  In the case of T.J. Hooper, tugboat owners where held liable for the sinking of two barges. The plaintiffs in the case argued that the tugboat owners were liable for negligence because they had not properly equipped their boats with receiving sets, which would have allowed them to receive two weather predictions daily, and allowed them to avoid the storm that resulted in the sunken barges. The tugboat owners argued in opposition, and the Court agreed that there was no custom at all as to receiving sets; some tugboats had them and some did not; the most that could be urged was that they had not yet become a general practice. Yet, the Court, finding in favor of the plaintiffs, held that a lack of community standard was no defense and found the tugs liable because had they been properly equipped, they would have received the weather reports, and the injury was a direct consequence of the lacking receivers. See, The T. J. Hooper, 60 F.2d 737 (2d Cir. N.Y. 1932).

This T. J. Hooper principle supports the notion that a lack of industry standards for E. coli vaccinations in the cattle industry is no defense if that E. coli kills or injures someone. The cattle industry, like the tugboat owners, when faced with this argument, would plainly argue that they are not required to vaccinate their cattle and that there is no industry custom by which to shed light on their negligence in not vaccinating their herds. But these facts, and these arguments, are analogous to those surrounding the holding reached by Judge Learned Hand almost a century ago—a lack of industry standard is no defense for negligence.

And this brings me to my next point – a point emphasized again by Judge Learned Hand just 15 years after his opinion in T. J. Hooper – the calculus of negligence. If we identify, per Judge Learned Hand, the probability that someone becomes infected with E. coli, the gravity of the resulting injury (hospitalization and/or death), and the burden of adequate precautions (vaccination), there is almost no logic to the cattle industry refusing to vaccinate their cattle.

In a prevalence study concerning just the presence of E. coli O157:H7 in beef cattle during processing, 28 percent of fecal samples were positive. Robert O. Elder, et al. Correlation of Enterohemorrhagic Escherichia coli O157 Prevalence in Feces, Hides, and Carcasses of Beef Cattle During Processing, Proc Natl Acad Sci USA. Mar 2000. 97(7): 2999-3003. And three other multistate studies reported the apparent prevalence of feedlots containing one or more infected cattle. These estimates were 63 percent, 100 percent, and 100 percent. Dargatz DA, Wells SJ, Thomas LA, et al. Factors associated with the presence of Escherichia coli O157 in feces of feedlot cattle. J. Food Prot. 1997; 60(5): 466-470; Hancock DD, Besser TE, Rice DH, et al. Multiple sources of Escherichia coli O157 in feedlots and dairy farms in the Northwestern USA. Prev. Vet. Med. 1998; 35: 11-19; Smith, D, Blackford M, Younts S, et al. 2001. Ecological relationships between the prevalence of cattle shedding E. coli O157:H7 and characteristics of the cattle or conditions of the feedlot pen. J. Food Prot. 64(12): 1899-1903. These studies show a high prevalence of E. coli O157:H7 amongst both beef and dairy cattle during processing.

When you consider the prevalence of E. coli amongst beef and dairy cattle with the injury likely to result to humans – $4.9 billion to $9.8 billion in economic costs every 10 years – against the burden of adequate protection – $1 billion to $1.8 billion in industry costs over the same 10 years – Learned Hand’s equation begs for vaccination of cattle against E. coli. And why the beef industry hasn’t recognized this and made vaccination common practice is baffling. But whatever it is, research is making it more and more clear that hundreds and thousands of deaths and injuries every year are preventable. And they are preventable at a cost much lower than what the injuries and deaths are currently costing the United States economy.

Given the clear value to vaccination and the cattle industries refusal to adopt it to protect the public, perhaps a new theory of liability has arisen? I look forward to asking the next cattle industry president while under on the stand and under oath – “Now, can you explain to the jury why you did not vaccinate your cattle before this child died?”

017204-grocery-shoppingThe next time you walk down the produce aisle (with your kids in tow) picking out fruits and vegetables to feed your family, ask yourself the question I ask myself when I do the same: “Does this grocery store – locally, regionally or world-wide owned – really care if what it sells you has a pathogen on it, or in it, that can kill or maim you or your family?”

Of course it says it does.  You can see it in ads to entice you into the store to buy the produce – “farm fresh” or “local” – you have seen it, and likely believed it.

But, it’s a lie.

The grocery store might well talk about food safety of the produce it sells, but it knows very well that it has had a bevy – or, is it a gaggle? – of lawyers, whose job it was to write contracts to push responsibility for safe food as far away from the grocery store as lawyerly possible.

Please bear with me and actually read some real contracts between grocery stores and brokers, shippers and farmers, where grocery stores pushed food safety responsibility on to those brokers, shippers and farmers.

INDEMNIFICATION. ___________ shall protect, defend, hold harmless and indemnify ___________, including its officers, directors, employees and agents, from and against any and all lawsuits, claims, demands, actions, liabilities, losses, damages, costs and expenses (including attorneys’ fees and court costs), regardless of the cause or alleged cause thereof, and regardless of whether such matters are groundless, fraudulent or false, arising out of any actual or alleged:

(b) Death of or injury to any person, damage to any property, or any other damage or loss, by whomsoever suffered, resulting or claimed to result in whole or in part from any actual or alleged use of or latent or patent defect in, such Merchandise, including but not limited to:

(i) Any actual or alleged failure to provide adequate warnings, labelings (sic) or instructions,

(ii) Any actual or alleged improper construction or design of said Merchandise, or

(iii) Any actual or alleged failure of said merchandise to comply with specifications or with any express or implied warranties of Supplier.

And, here is another:

Indemnification.  a)  __________ shall indemnify, defend and hold __________, its parent, subsidiary, and affiliated corporations, and their respective officers, directors, employees, and agents, harmless from and against any and all liability, claims, and damages (including reasonable fees of an attorney of __________’s choice) arising from or in connection with the Products including, but not limited to: (i) claims for property damage, personal injury or death; (ii) claims by governmental agencies; and (iii) claims for refunds or credits due to the weight of the packages or poor quality.  b) This indemnification shall not apply to the following: i) liability, claims, and damages which are caused solely by the negligence or intentional misconduct of _________.

What does the above really mean?

It means those grocery stores can push all responsibility for the production of safe food on to others.  Simply put, you may well think that the grocery store actually cares that the food you buy from it is safe, but they have spent much on lawyer fees to make the reality something very different.

And, when you consider that those same grocery stores can also set the price they will pay for the produce that they buy, they also deny the pennies that brokers, shippers and farmers need for fair profits, fair wages and food safety.

Grocery stores know that when brokers, shippers and farmers sign these contracts, and say a spinach E. coli outbreak sickens 205, killing five, or a Listeria cantaloupe outbreak sickens 147, killing 33, the grocery stores can talk about safe food but never really pay for it.

The only ones who really pay for it are sick consumers and their families.

mad cowIn recent years, “mad cow” disease has created considerable confusion for American consumers as it has grabbed headlines, thanks to several now infamous North American bovines – including two recently found in Canada.

The question in many minds is whether litigation will follow.

Many Americans reflexively assume it will; after all, Products Liability 101 teaches that the manufacture and sale of bad food creates liability, and beef from “mad cows” is certainly bad food. From a litigation perspective, however, beef tainted with a potentially brain-wasting disease presents singular difficulties that more common bugs such as Salmonella and E. coli O157:H7 do not.

Bovine spongiform encephalopathy (“BSE”), better known as mad cow disease, was first diagnosed in 1986 by British doctors. Since then, the disease has been confirmed in more than 178,000 head of cattle in Great Britain alone, with a peak rate in January 1993 of 1,000 cases each week.

BSE is a degenerative nervous system disease that, unless something else does the job, will kill every cow that contracts it. Currently, we are without a test to detect BSE in a live animal. Veterinary pathologists confirm the disease posthumously through microscopic examination of brain tissue, which will appear spongy, or by the detection of the infectious protein structures known as prions (short for proteinaceous infectious particles and pronounced “pree-ons”).

BSE does not occur in humans. However, it can cause a similar disease called new variant Creutzfeldt-Jakob Disease (“vCJD”), a rare, degenerative and fatal brain disorder. As of December 1, 2003, a total of 153 cases of vCJD had been reported worldwide: 143 from the United Kingdom, six from France and one each from Canada, Ireland, Italy, and the United States. Nearly all cases had multiple-year exposures in the United Kingdom between 1980 and 1996, which roughly coincided with the large BSE outbreak among U.K. cattle.

Occurrence of vCJD in humans likely occurs by consuming BSE-contaminated cattle meat products. Knowledge of the specific foods that are associated with transmission is obscure at best — an unsettling thought given the ubiquitous nature of the cow and its constituent parts. Tests on experimentally infected cattle have confirmed signs of BSE in the brain, spinal cord, retina, dorsal root ganglia, distal ileum and bone marrow, suggesting that these tissues are associated with a heightened risk of transmission.

Many countries, particularly those in which an indigenous BSE case has occurred, have implemented control measures to prevent potentially BSE-infected tissues from entering the human food supply. These include increased herd surveillance, destroying sick animals and banning the use of certain “high risk” cattle parts in human or bovine food.

The U.K., for instance, excludes from the human and bovine food supply the parts of all cows older than thirty months of age. Certain European countries require testing of almost every slaughtered cow. Loopholes do remain, however, and certain countries have been less pro-active. In many countries, there remains no prohibition against using poultry litter, cattle blood and restaurant leftovers in cattle feed, and all of these ingredients have roots in the high-risk cattle parts described above.

We do not plan to head any new-fangled ABA mad cow litigation section, not in the short term at least, and for two primary reasons. The first is that the disease is simply not currently prevalent in the United States. As noted above, only one case of BSE has ever been reported in the U.S.

The second problem is less about available markets, and more about causation and other law school basics. As with any foodborne-illness case, the science of the particular bug involved is critically important to the rights and remedies available to victims. More specifically, the incubation period — that is, the length of time between ingesting a pathogen and falling ill — helps to narrow the range of meals or specific food items that could have been the source of somebody’s illness.

For instance, a hamburger consumed 10 minutes before the onset of an E. coli O157:H7 illness cannot possibly have been the source of the infection because the average incubation period for E. coli O157:H7 is measured in days (typically between two and five), not minutes. The source of an E. coli O157:H7 illness must have been something eaten within the expected medical range prior to the onset of symptoms.

In stark contrast to E. coli O157:H7 and other more common foodborne illnesses, the incubation period for vCJD is extremely long, probably more than a decade. No one is going to recall sources of beef consumed years before, much less the more particular identifying information typically necessary to implicate a given defendant.

With other common foodborne pathogens, incubation periods range from a few hours to a couple of weeks. Once an individual tests positive for a pathogen like E. coli O157:H7, Salmonella or Shigella, for example, his or her recent food history can be identified with relative ease. Epidemiological investigation tools can then be used to conclusively establish a link to a particular product, even where there are no contaminated “leftovers.” With BSE-contaminated beef, however, the possible period for consumption is unknown, but is likely years and possibly decades in breadth. This severely limits the effectiveness of an epidemiological investigation.

Nevertheless, mad cow litigation cannot be discounted permanently on these bases. Not so long ago, even the more common foodborne diseases were more difficult to track, for lawyers and health departments alike. Scientific and technological advances have made for more sound conclusions. For example, we are now able to match the

DNA of a particular sample of E. coli O157:H7 or Salmonella — each of these bugs can be likened to a species with different subspecies, each having its own genetic profile — to another sample, thus creating more certainty that the samples had a similar source.

There are steps that the cattle industry can take to minimize the chances that beef from a BSE-infected cow will be transferred to a human in the United States. The industry can and should document where individual cows come from and where specific lots of meat are sold, thus allowing the companies that produced or sold contaminated meat a meaningful opportunity to recall the bad product and avoid injury. Given that, it is plausible to suggest that an enterprising attorney might have success with “enterprise” or “market share liability” theories against the cattle industry as a whole.

It is difficult, at least in part due to the lengthy incubation period of the disease, to accurately assess the threat that BSE presents both in the U.S. and globally. Litigation to address individual cases of BSE is not imminent, and frankly can only come too late for the individual involved. The responsibility for protecting the public lies with regulatory agencies like the USDA and the members of the cattle industry.

_65912134_fsaThe United Kingdom’s Food Standards Agency (FSA) today published the latest set of results from its year-long survey of Campylobacter on fresh chickens at retail.

The results to date show:

  • 19% of chickens tested positive for Campylobacter within the highest band of contamination.
  • 73% of chickens tested positive for the presence of Campylobacter.
  • 7% of packaging tested positive for the presence of Campylobacter.

More than 3,000 samples of fresh whole chilled chickens and packaging have now been tested. The FSA’s 12-month survey, running from February 2014 to February 2015, will test around 4,000 samples of whole chickens bought from UK retail outlets and smaller independent stores and butchers. The full set of results is expected to be published in May.

Wouldn’t be interesting if our government did the same?

“We’re going to move the timeline up,” Vilsack told Rep. Rosa DeLauro, D-Conn.

mechanically-tenderized-beefPhil Brasher reports that special safety labels for mechanically tenderized meat are likely to take effect as soon as 2016, two years earlier than expected, Agriculture Secretary Tom Vilsack told lawmakers. At a hearing with the House Agriculture Appropriations Subcommittee, Vilsack said his department would suspend a regulation that would otherwise prevent the labeling for mechanically tenderized meat to take effect until 2018, because the administration failed to finalize the labeling rule before the end of last year.

USDA’s Food Safety and Inspection Service first proposed the labeling for mechanically tenderized meat in June 2013 out of concern that consumers aren’t cooking the meat properly to eliminate pathogens. The meat is tenderized with knives and needles that can drive bacteria inside the product.

USDA officials did not send the final rule to the White House Office of Management and Budget for review until November 21. The regulation remains pending at OMB. Under FSIS labeling regulations, the labeling rule could have taken effect as soon as 2016 only if it had been cleared by OMB and approved by USDA by December 31.