The Marler Clark Network
Posted by Food Poisoning Attorney on August 25, 2008

Are Technical Fixes Just PR Stunts By FDA?

Stephen J. Hedges of the Chicago Tribune's Washington Bureau weighs in with a story questioning whether the new ruling by the U.S. Food & Drug Administration (FDA) to allow irradiation of some fresh produce is a public relations stunt.  Hedges writes:

The FDA's irradiation decision is the latest attempt to find a technical fix to what has become a near-epidemic food safety problem.

•In 2000, the FDA approved the use of irradiation on meat, a practice that has not gained widespread consumer acceptance.

• In July 2004, the agency approved the application of carbon monoxide gas to preserve the red color of packaged meat.

•In January more controversy was stirred when the FDA approved the sale of meat and dairy products from cloned cows.

Whether consumers will accept irradiated lettuce and spinach is an open question. Irradiated meat, for example, is hard to find in most stores.

"Hopefully there'll be some manufacturers that will take that step," said Bill Marler, a Seattle attorney who represents food contamination victims. "Hopefully the public will be less concerned about it. All the evidence suggests that there's not a risk."

For more from Hedges, go here.

P.S. If the symbol above is on a food package, its gone through irradiation.

Posted by Food Poisoning Attorney on August 22, 2008

FDA Final Rule Favors Radiation Of Fresh Lettuce & Spinach

Someone we learned much from about government taught us that, for better or for worse, there are certain periods of time when things happen in near silence.   At the end of every year, from Thanksgiving through New Year's, many decisions without much notice or attention.  This occurs in every statehouse, courthouse, and city hall across the land.

The final days of every Presidency is also such a time.   For all that is written about "lame ducks," the power of the Presidency is every much as complete in its last moment as its first.  In other words, the outgoing administration is not less powerful just because Congress and the media are distracted by the campaign.

The issue of timing came to our mind as soon as we heard of the U.S. Food and Drug Administration (FDA)'s long awaited decision to allow ionizing radiation for the treatment of fresh iceberg lettuce and fresh spinach.

Radiation would be used "for control of food-borne pathogens" and "extension of shelf life."

A petition for voluntary use of ionizing radiation of many foods was presented to FDA in the final days of the Clinton Administration by the Grocery Manufacturers Association. With no action on it after six years, the association amended their petition to focus on fresh lettuce and spinach.

Both lettuce and spinach were subjects of E. coli 0157:H7 outbreaks at the time the petition was amended, illustrating the need for a "kill step" for pathogens.

The trouble with making big policy decisions at these moments when nobody is looking is that nobody is vested in the outcome.

"I do not know anyone clamoring for it." said Scott Horsfall of California's Leafy Green Marketing Agreement.   "There has to be consumer acceptance. We do not know how big a hurdle that might be. The science needs to be looked at and the cost, too."

While industry has its doubts and reservations, consumer groups are downright hostile to radiation of food with one activist calling it an "expensive gimmick."

Gimmick or not, its an FDA final rule.  One that "does not individually or cumulatively have a significant effect on the human environment."  In early 2009, we will find out just want its effect on the political environment will be when the new President and new Congress begin going through their "in" baskets.

San Francisco Chronicle has good story here. 

 

 

 

 

Posted by Food Poisoning Attorney on August 18, 2008

Attorney Denis W. Stearns Questions USDA Policies

Guest Blog by Denis W. Stearns:

On October 3, 2002 I submitted a petition to the USDA in which I asked the agency to explicitly clarify whether a USDA policy that appeared to allow the deadly pathogen E. coli O157:H7 on so-called “intact meat” applied to meat sold to retail outlets like grocery stores and restaurants. Even now it is a near-universal practice for retail outlets to use this meat—commonly called “boxed beef” because the cuts of meat are individually shrink-wrapped and then boxed—to make ground beef. Sometimes the meat is directly used to make ground beef, and sometimes only trimmings are used—that is, the pieces left over after roasts and steak are cut and trimmed. Either way, there has never been any doubt that tens of thousands of grocery stores and restaurants use tons of intact meat every day to make ground beef. To my mind it makes absolutely no sense that the USDA would allow meat companies to sell intact meat contaminated with E. coli O157:H7. Why allow a loophole so large that it essentially moots USDA policy on this deadly pathogen?

Interestingly, the USDA responded to my petition with a letter from Philip Derfler, Deputy Administrator of the Food Safety and Inspection Service. In the letter, Mr. Derfler acknowledged that USDA policy was unclear, and stated that my petition would be treated as a public comment and referred to the Regulations and Directives Development Staff. That was six years ago, and USDA policy is less clear today than it was back then, and just as indefensible.

We are now in the midst of yet another outbreak of heartbreaking illnesses and likely deaths caused by contaminated meat that the beef industry claims the USDA authorizes it to sell. This claim is hardly new either. In 2004, the American Meat Institute and other meat industry trade groups fought all the way to the United States Supreme Court trying to overturn a Wisconsin Court of Appeals decision. The decision held that USDA policy on intact meat did not immunize meat companies from lawsuits based on allegations that E. coli-contaminated meat was unreasonably dangerous as a matter of state law. In other words, the meat industry was fighting for the right to sell E. coli-contaminated meat, claiming that USDA policy said that it could. It lost, but that did not prompt the USDA to change or clarify its policy.

Putting legal arguments aside, common sense alone clearly demonstrates why an exception for intact meat makes no sense. While the meat industry can cleverly argue that its intact meat is not intended for ground beef, and that cooking always makes it safe, neither statement is true. As the recent Nebraska Beef outbreaks make tragically clear, most intact meat does not reach consumers still intact. Furthermore, if each shrink-wrapped cut of meat had “DO NOT USE FOR GROUND BEEF; E. COLI O157:H7 PRESENT” printed in bold letters on it, there is not a grocery store in the country that would buy it. Indeed, commenting on the current outbreak, a representative of Whole Foods explained that it was using intact meat to make its own ground beef “in an attempt to assure quality and safety.” I guess the joke was on them then.

The current USDA policy on E. coli and intact meat is indefensible because it protects the interests of the meat industry instead of the public health. A policy that is based on the demonstrably false assumption that intact meat is not being used to make ground beef at a retail level is a policy that has no basis in fact or reason. It also entirely ignores the incredible risk of cross-contamination, which is what caused the 2000 outbreak at a Milwaukee-area Sizzler restaurant that killed one child and sickened scores of others. The Sizzler outbreak also recently resulted in a $7.1 million verdict against the same meat company that fought to the Supreme Court (with industry trade groups) for the right to sell the deadly stuff. Meanwhile, all these years later, the USDA says it is continuing to consider its options. Well, I have a suggestion: How about putting the interests of the public first for a change and sticking to a real zero-tolerance policy for this deadly pathogen?

Posted by Food Poisoning Attorney on August 15, 2008

FDA Warns Consumers Not to Eat Certain Mussel Products from Bantry Bay Seafood

The U.S. Food and Drug Administration (FDA) is warning consumers against eating certain frozen cooked mussel products made by Bantry Bay Seafoods, imported from Ireland, because they may be contaminated with azaspiracid toxins, a group of naturally occurring marine toxins known to cause nausea, vomiting, diarrhea, and stomach cramps.

Azaspiracid toxins are odorless, tasteless, and cannot be destroyed or neutralized by freezing or cooking, including boiling. Individuals who have experienced gastrointestinal symptoms such as those noted above after eating any of the products listed below should consult their health care professional. Symptoms typically occur within hours of consumption and persist for two to three days.

In July, two people in Washington state became ill after eating the company's "Mussels in a Garlic Butter Sauce." FDA tested unopened product from the same production lot and found that it contained the azaspiracid toxins.

Consumers should throw out the following Bantry Bay Seafood frozen cooked products with "Best before end" dates ranging from January 23, 2009, to November 15, 2009:

* Mussels in a Garlic Butter Sauce
* Mussels in White Wine Sauce
* Mussels in Tomato and Garlic Sauce

The "Best before end" dates are displayed on the side of the box in the following format: MM:DD:YY. Products to be thrown out are marked with dates 01:23:09 through 11:15:09.

These products are sold frozen in 1 pound cardboard packages in stores throughout the United States.

The FDA also recommends that retailers and foodservice operators remove these products, and any food in which these products were used as an ingredient, from sale or service.

Azaspiracid toxins were an unknown marine toxin until 1995, when they were identified and linked to an outbreak of foodborne illnesses associated with consumption of Irish shellfish. The toxins have since been identified in other shellfish from the west coast of Europe. They have never been detected in shellfish harvested from U.S. waters.

 

Posted by Food Poisoning Attorney on August 15, 2008

Adnan Sami Victim of Food-borne Illness: Making Recovery

We always try and note when famous people become victims of food-borne illnesses.

Bollywood News and Gossip is reporting that singer, composer, pianist Adnan Sami is recovering from severe food poisoning after being rushed to a hospital.

According to Bollywood:

Bubbly singer-cum-composer-cum-pianist Adnan Sami was recently rushed to the hospital as he suffered from severe food poisoning.

His ill health forced him to miss out the music launch of Vikram Bhatt’s flick 1920, for which he is the composer.

 

 

Posted by Food Poisoning Attorney on August 07, 2008

William Marler: American Food Safety System a "Train Wreck"

SEATTLE--(BUSINESS WIRE)--In just a year and a half, the American meat industry has experienced a whiplash of beef recalls. 40 million pounds of meat tainted with highly toxic E. coli O157:H7 has been publicly recalled, up by a staggering factor of two hundred from the 2006 amount of only 181,900 pounds.

“This is beyond the ‘wheels coming off’ of the meat supply system,” said food borne illness attorney William Marler. “It’s the entire train in a tangled heap. And the people caught in the train wreck are you and me and all of our neighbors. When reports say that there is a one in 400 chance that the package of ground beef you pick up at the supermarket will be tainted with a lethal bacterium, the food safety system is no longer functioning, and immediate, radical steps must be taken.”

In more than thirty recalls ranging from a few hundred to millions of pounds, the Food Safety Inspection Service (FSIS) has deemed E. coli contaminated meat a class I (one) health hazard to consumers. (A class I recall involves a health hazard situation in which there is a reasonable probability that eating the food will cause health problems or death.)

“There are many theories as to why there has been such an unprecedented jump in E. coli,” said Marler. “It could be regulatory complacency, better reporting, or immigration sweeps that have left slaughterhouses empty of skilled workers. Global warming may be spreading fecal dust. High oil prices may have led to an E. coli-producing diet for cattle. The microbe itself may even be evolving to elude capture. Another possibility is that the higher costs of slaughterhouse inputs (beef cattle) have collided with retailer’s low price pressures on outputs (hamburger) from those same slaughterhouses. These ideas need investigation and research, so that real change can begin.”

To advance that change, Marler reached out to the food safety community and asked for ideas from experts, scientists, regulators, and food agency brass. He distilled the volumes of submitted suggestions into ten action items (full text can be found here):

  • Improve surveillance and reporting of bacterial and viral diseases.
  • Require real training and certification of food handlers at restaurants and grocery stores.
  • Stiffen license requirements for large farm, retail, and wholesale food outlets.
  • Increase food inspections.
  • Reorganize federal, state, and local food safety agencies to increase cooperation and reduce wasteful overlap and conflicts.
  • Establish tax credits for companies with good food safety records, and greater legal consequences for sickening or killing customers with tainted food.
  • Use our technology to make food more traceable.
  • Promote university research.
  • Improve consumer understanding of the risks of food-borne illness.
  • Provide Presidential leadership on a topic that impacts every single one of us.

“There are a lot of very smart, very dedicated professionals in the food safety community,” Marler concluded. “They have spent their careers working toward a better food supply, and that collective knowledge is available to design and implement change. We need our leaders to get on board, and get the food safety train back on track.”

BACKGROUND: Marler Clark has represented thousands of victims of foodborne illness outbreaks since 1993. The firm’s attorneys have litigated high-profile food poisoning cases against such companies as ConAgra, Wendy’s, Chili’s, Chi-Chi’s, and Jack in the Box. Marler Clark currently represents thousands of victims of outbreaks traced to ground beef, peppers, pot pies, spinach, and peanut butter, as well as other foods. For further information contact Mary Siceloff at msiceloff@marlerclark.com or (206) 719-4705, or visit www.MarlerClark.com.

Posted by Food Poisoning Attorney on August 03, 2008

Bipartisan Group of Senators Led By Harkin Floats Food Safety Reform Bill

Congress is taking its usual summer recess and there is precious little real legislative time left before they leave town for good to campaign to get their jobs back.   Nevertheless, it is not unusual to have the concepts and support for legislation to come together now and become spring-loaded for advancing through the new Congress that will convene in January.

That might be what we are looking at in a food safety bill introduced last week by powerful farm state Senator Tom Harkin, D-Iowa.  The bill is cosponsored by Dick Durbin (D-IL), Judd Gregg (R-NH), Richard Burr (R-NC), Chris Dodd (D-CT) and Lamar Alexander (R-TN).  The bipartisan group put out a joint press release.

“This country doesn’t need any more spectacles like the slow unfolding of FDA’s investigation of the recent Salmonella outbreak. The present system is not just a public health concern, but an issue for producers feeling the economic impact of food safety scares,” said Harkin. “This food safety bill gives FDA the authority it needs to prevent and respond to food safety problems, from requiring recalls, to setting food safety standards for fresh produce, to enhancing trace-back and surveillance of food-borne illness. It’s a win-win for producers and consumers.”
“When Americans go to the grocery store, the last thing on their mind should be the safety of the foods they are bringing home to serve their families,” Gregg stated. “The recent salmonella outbreak highlights the current vulnerability of our food supply and the need to modernize our food safety laws. We cannot afford to wait until the next food-borne illness outbreak or an intentional attack on our food supply occurs for Congress to act on this bipartisan legislation to ensure the safety of our food and restore confidence in the quality of these products for American families.”


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