Published today in Fresh Fruit Portal:

Nearly 20 years ago, a growing, all organic, all raw juice company saw its sales and profits ever rising. Looking for new markets to sell its “Superfood,” it reached out to the U.S. Army to sell the juice to healthy young men and women. The Army sent a food safety group to visit the plant. In a letter to Odwalla after the plant inspection and product-testing, the Army stated that it had determined that “your plant sanitation program does not adequately assure product wholesomeness for military consumers. This lack of assurance prevents approval of your establishment as a source of supply for the Armed Forces at this time.” Hmm, if you cannot sell your juice to the Army, why would you continue to sell it to the general public, including pregnant women and children?

Just a few months after receiving the above notice from the Army, an E. coli O157:H7 outbreak linked to the company’s organic, raw apple juice sickened dozens. The outbreak caused several people to have acute kidney failure, and killed one child. The company pleaded ignorance that its product could be the cause. Eventually, the company paid out US$15,000,000 to my clients in settlements and was fined by the FDA for US$1,400,000. A tough lesson for the company on the realities of bacteriology and pasteurization; however, a deadly lesson for at least one young customer.

In early December 2014 came the announcement of a Listeria outbreak linked to caramel apples that had sickened over two dozen, sending all to the hospital. Eventually the number of outbreak victims would rise to at least thirty-two in ten states, with several dead. Given the long incubation period (up to 70 days), the illness and death toll will surely rise.

After an extensive traceback and traceforward, the grower and processor of two types of apples were implicated, which prompted an apple recall. A strain of Listeria matching that which had sickened and killed so many was found in the plant. Moreover, the recall that had initially been limited to the U.S. now spans the globe. Warnings have been issued from Malaysia and Vietnam to refrain from eating U.S. apples. There is no lack of irony in this warning, given that over the years I have watched U.S. food producers attempt to scare domestic consumers away from “foreign grown food.” The eventual cost of the worldwide recall and the consumer litigation from the apple outbreak will be in the tens of millions of dollars.

Of course the inevitable refrain has arisen, “how could we have known, this is the first Listeria outbreak linked to caramel apples. It has never happened before.” We heard the same whine following the Listeria outbreak that left 147 sick with 33 dead in 2011 linked to cantaloupe grown in Eastern Colorado. That outbreak was not only one of the deadliest in U.S. history, but I am making sure that it will also be one of the most expensive.

When I am not suing companies for poisoning and killing their customers, I am telling them a few simple concepts gleaned from the tatters of companies that cannot seem to learn from the past or pay attention to warning signs from the future. They are three simple ideas:

1. Arm yourself with good, current information – including paying attention to the past.
2. Since you have a choice between doing nothing and being proactive, be proactive.
3. Make food safety a part of everything you do.

Chances are good that if you follow the above simple principles, reading this editorial will be the very last you hear of me.

I have received quite a few comments (mostly positive) on Wil S. Hylton’s article in The New Yorker – A Bug in the System – Why last night’s chicken made you sick.

Although, I just figured out I might well be the bug!

Although the opening tagline makes my mom happy, my kids embarrassed and me blush – “A lawyer is leading the fight to keep contaminated food off the supermarket shelf” – there are a lot of people in industry, academia, government (regulatory and public health), and public advocacy that really do the heavy lifting to make our food supply as safe as it presently is.  However, we all can do much better – and we all know it.  Here are a few quotes about the use of a well placed lawsuit:

… During the past twenty years, Marler has become the most prominent and powerful food-safety attorney in the country….

… Given the struggles of his clients—victims of organ failure, sepsis, and paralysis—Marler says it can be tempting to dismiss him as a “bloodsucking ambulance chaser who exploits other people’s personal tragedies.” But many people who work in food safety believe that Marler is one of the few functioning pieces in a broken system….

… When regulation fails, private litigation can be the most powerful force for change. As Marler puts it, “If you want them to respond, you have to make them.” Robert Brackett, who directed food safety at the F.D.A. during the George W. Bush Administration, told me that Marler has almost single-handedly transformed the role that lawsuits play in food policy: “Where people typically thought of food safety as this three-legged stool—the consumer groups, the government, and the industry—Bill sort of came in as a fourth leg and actually was able to effect changes in a way that none of the others really had.” Hagen said the cost that Marler extracts from food makers “can be a stronger incentive or disincentive than the passing of any particular regulation.” Mike Taylor called litigation such as Marler’s “a central element of accountability.” …

… At least twice a month, he flies across the country to speak with advocacy groups and at food-industry events. He will not accept payment from any food company, and has turned down thousands of dollars to deliver a short lecture, only to pay his own way to the venue and present the speech for free. Sometimes, when Marler takes the stage, members of the audience walk out. At a meeting of the Produce Manufacturers Association, in the summer of 2013, he approached the lectern as loudspeakers blared the Rolling Stones song “Sympathy for the Devil.” …

… Sometimes, when Marler encounters critics who charge him with having predatory motives, he challenges them to “put me out of business.” David Acheson, a former Associate Commissioner for Foods at the F.D.A., told me, “That’s just become a bit of a trademark. He doesn’t want that.” Still, Acheson told me that he has seen an evolution in Marler. “In the early days, Bill was just on a mission to sue large food companies—he was on a mission to make money,” Acheson said. “But I think during the course of that he realized that there are problems with the food-safety system, and I think progressively, philosophically, he changed from just being a plaintiff attorney to being somebody who believes that changing food safety for the betterment of public health is a laudable goal.” Acheson added, with no small measure of distaste, “He still sues food companies.” …

I think Dr. David needs a hug.