“The additional safeguards we are announcing today will improve our ability to prevent foodborne illness by strengthening our food safety infrastructure,” said USDA Under Secretary for Food Safety Dr. Elisabeth Hagen “Together, these measures will provide us with more tools to protect our food supply, resulting in stronger public health protections for consumers.”

The policy measures include the following:

USDA’s Food Safety and Inspection Service (FSIS) intends to implement new traceback measures in order to control pathogens earlier and prevent them from triggering foodborne illnesses and outbreaks. FSIS is proposing to launch traceback investigations earlier and identify additional potentially contaminated product when the Agency finds E. coli O157:H7 through its routine sampling program. When FSIS receives an indication of contamination through presumptive positive test results for E. coli, it will aim to link products, companies, and the pathogen to a sole source supplier and to any other processors that received the contaminated product from the supplier, instead of waiting for confirmation.

FSIS is implementing three provisions included in the Food, Conservation and Energy Act of 2008 (the 2008 Farm Bill). The new regulations, published as a Final Rule and directed by Congress, require establishments to prepare and maintain recall procedures, to notify FSIS within 24 hours that a meat or poultry product that could harm consumers has been shipped into commerce, and to document each reassessment of their hazard control and critical control point (HACCP) system food safety plans.

FSIS is announcing the availability of guidance to plants on the steps that are necessary to establish that their HACCP food safety systems will work as designed to control the food safety hazards that they confront. This process, called “validation,” enables companies to ensure that their food safety systems are effective for preventing foodborne illness. This notice announces that the draft guidance document is available for comment.

In the past two years, FSIS has announced several measures to safeguard the food supply, prevent foodborne illness, and improve consumers' knowledge about the food they eat. These initiatives support the three core principles developed by the President’s Food Safety Working Group: prioritizing prevention; strengthening surveillance and enforcement; and improving response and recovery. Some of these actions include:

• Zero tolerance policy for six Shiga toxin-producing E. coli (STEC) serogroups. Raw ground beef, its components, and tenderized steaks found to contain E. coli O26, O103, O45, O111, O121 or O145 will be prohibited from sale to consumers. USDA will launch a testing program to detect these dangerous pathogens and prevent them from reaching consumers.

• Test and hold policy that will significantly reduce consumer exposure to unsafe meat products, should the policy become final, because products cannot be released into commerce until Agency test results for dangerous contaminants are known.

• Labeling requirements that provide better information to consumers about their food by requiring nutrition information for single-ingredient raw meat and poultry products and ground or chopped products.

• Public Health Information System, a modernized, comprehensive database about public health trends and food safety violations at the nearly 6,100 plants FSIS regulates.

The meat industry saw media sensationalism as a campaign of misinformation to undermine a product used for more than ten years to supplement lean beef supplies used in ground beef. Ground beef is the most popularly consumed beef item among American consumers, and consumers have increasingly demanded lean ground beef. USDA approved the process that Beef Products, Inc. (BPI), the primary producer of LFTB, uses to produce LFTB, and USDA continues to affirm that LFTB is a safe, nutritious beef product.

Although LFTB received negative press in previous years, the uproar starting in March 2012 has had greater impacts. USDA changed its policy on school lunches to allow schools to have a choice of whether to buy ground beef with LFTB or not. Major grocery chains announced that they were discontinuing the use of LFTB in retail ground beef. The result has been an immediate, sharp decline in 50% beef trimming prices, and expectations of higher ground beef prices. Some companies decided to voluntarily use LFTB labels on ground beef containing the product. Some food safety advocates who believe BPI was a food safety innovator have expressed concern that the barrage of negative publicity could stifle further innovation by meat companies.

The LFTB controversy demonstrates that consumers’ perceptions and understanding of modern food production can quickly affect markets and/or a company’s business. It raises policy issues about how consumers should be informed by either industry or government. Some Members of Congress have expressed strong interest in the LFTB controversy through statements and letters to USDA. Some Members have called for the immediate end of LFTB in the school lunch program, and others have asked that ground beef include labels informing consumers that LFTB is used in a beef product. Legislation also has been introduced that would require LFTB labels.

Full Report PDF.

The following information was provided as "Outbreak Highlights:"

• As of March 21, 2012, 58 persons infected with the outbreak strain of E. coli serotype O157:H7 were reported from 9 states.
• Collaborative investigative efforts of state, local, and federal public health and regulatory agencies indicated that romaine lettuce was the likely source of illnesses in this outbreak, and contamination likely occurred before the product reached retail stores.
• This particular outbreak appears to be over and consumers are not being advised to avoid eating any specific foods at this time. However, E. coli O157:H7 is still an important cause of human illness in the United States.

In keeping with their dubious practice, CDC is still not providing the name of the grocery store chain associated with the illnesses- which is Schnucks.   Similarly, the distributor, Vaughan Foods is not named.   In connection with litigaiton brought by Marler Clark, the grower, "Farm A" should be identified soon.

The following are the updated details on the state by state breakdown, timing of illnesses, and other biographical date provided by CDC today:

As of March 21, 2012, 58 persons infected with the outbreak strain of E. coli O157:H7 were reported from 9 states. The number of ill persons identified in each state was as follows: Arizona (1), Arkansas (2), Illinois (9), Indiana (2), Kansas (2), Kentucky (1), Minnesota (2), Missouri (38), and Nebraska (1). Two cases were removed from the case count because advanced molecular testing determined that they were not related to this outbreak strain. Among persons for whom information was available, illnesses began from October 9, 2011 to November 7, 2011. Ill persons ranged in age from 1 to 94 years, with a median age of 28 years. Fifty-nine percent were female. Among the 49 ill persons with available information, 33 (67%) were hospitalized, and 3 developed hemolytic uremic syndrome (HUS). No deaths were reported.

According to Murphy’s report, the meetings are open to growers, buyers, and auditors in the produce industry, as well as regulators from state agencies, the Food & Drug Administration and the U.S. Department of Agriculture.  However, the meetings will not be open to the public– a decision that has left many Listeria victims and their families feeling ignored.

“If the full weight of our losses is not recognized by those in industry, how can they make fully informed decisions regarding the importance of improved practices?” asks Kathleen Gilbert Buchanan, whose mother, Frances Gilbert, died in September from a Listeria infection.   “Treating all of the illnesses and deaths as mere statistics will not have the same impact as hearing the voices of our families and seeing the faces of our loved ones.”

Jennifer Exley, the daughter of a Colorado man who was hospitalized for over a month and still requires in-home health care believes that the cantaloupe industry needs to hear the victims’ side of the outbreak in order to fully understand the real-life impact of foodborne illness.

“They need to know our stories,” said Exley. “People that have been affected should be allowed to speak about what we all have been through and are continuing to go through so the seriousness of foodborne illnesses can be relayed in a personal manner.”

In October, the Associated Press published a story covering the Death of George Drinkwalter called, Nebraska Family Hopes Changes Follow Listeria Outbreak. Despite the initial optimism that the loss might actually help improve food safety in the future, the family now says the decision of the cantaloupe industry has dampened any expectation of real change.

“We feel tremendously let down and ignored. This is very disappointing for those of us who lost a family member in this outbreak, said Drinkwalter family spokesman Keith Drinkwalter. “After the deaths of over 35 people, I would think that the industry would want to be open and upfront with upcoming discussions.”

For additional comments from the families of those affected by the 2011 cantaloupe Listeria outbreak regarding the upcoming industry meetings visit: Marler Blog.  For additional information contact Cody Moore at 206-407-2200 or cmoore@marlerclark.com

Bowing to industry lobbying, the Obama administration has proposed eliminating a program that tests fresh produce for food-borne diseases like the listeria outbreak in cantaloupe that killed 36 people in 2011. The USDA microbiological data program (MDP), created by the administration of President George W. Bush in 2001, collects fresh produce samples from distribution centers and terminal markets across the United States and tests them for pathogens. Specifically, MDP tests high-risk produce like alfalfa sprouts, cilantro, green onions, peppers, tomatoes, spinach, and other leafy greens, every one of which has caused a product recall or a food-borne illness outbreak, some of them lethal. The Obama administration has proposed defunding the program. As the program cost is barely $5 million annually, the justification for the cut is not budgetary.

In fact, food industry lobbyists like the United Fresh Produce Association, which spends more than $1 million a year on lobbying, have never liked the program, contending that it needlessly duplicates other government efforts, unfairly burdens growers, may yield false positive test results, and causes unnecessary food recalls. Yet the FDA, which generally has jurisdiction over food safety, lacks the budget to conduct anything more than limited inspections. The industry’s plan is for it to regulate itself via privately contracted testing, a practice the FDA recently termed “an inherent conflict of interest,” and which failed to prevent the deadly Listeria outbreak last year.

When challenged at a House of Representatives appropriations hearing, Agriculture Secretary Tom Vilsack gave weak excuses for eliminating MDP. He said that its mission was not appropriate to agency of which it is a part, the Agricultural Marketing Service (AMS). The Obama budget says the program “is not central to the core mission of AMS, which is to facilitate the competitive and efficient marketing of agricultural products.”

The 13-year study, involved a review of dairy product outbreaks from 1993 to 2006 in all 50 states.  The authors compared the amount of milk produced in the United States during the study period (about 2.7 trillion pounds) to the amount that CDC estimates was likely consumed raw (1 percent or 27 billion pounds) to determine the 150 times higher rate for outbreaks caused by raw milk products.  Raw milk products include cheese and yogurt.

The study included 121 dairy–related disease outbreaks, which caused 4,413 illnesses, 239 hospitalizations and three deaths. In 60 percent of the outbreaks (73 outbreaks) state health officials determined raw milk products were the cause.  Nearly all of the hospitalizations (200 of 239) were in those sickened in the raw milk outbreaks.  These dairy-related outbreaks occurred in 30 states, and 75 percent (55 outbreaks) of the raw milk outbreaks occurred in the 21 states where it was legal to sell raw milk products at the time. The study also reported that seven states changed their laws during the study period.

For a consumer, it is impossible to tell if raw milk is safe to drink by simply looking at, smelling, or tasting it.  Even under ideal conditions of cleanliness, the process of collecting milk introduces some bacteria.  Unless the milk is pasteurized, these bacteria can multiply and grow in the milk and cause illness in those who consume it.  Pasteurization involves heating milk to kill disease-causing bacteria.

“This study shows an association between state laws and the number of outbreaks and illnesses from raw milk products,” said Robert Tauxe, M.D., M.P.H., deputy director of CDC’s Division of Foodborne, Waterborne and Environmental Diseases (DFWED). “Restricting the sale of raw milk products is likely to reduce the number of outbreaks and can help keep people healthier. The states that allow sale of raw milk will probably continue to see outbreaks in the future.”

The study also found that the raw milk product outbreaks led to much more severe illnesses, and disproportionately affected people under age 20. In the raw milk outbreaks with known age breakdowns, 60 percent of patients were younger than age 20, compared to 23 percent in outbreaks from pasteurized products.  Because of their underdeveloped immune systems, children are more likely than adults to get seriously ill from the bacteria in raw milk.

“While some people think that raw milk has more health benefits than pasteurized milk, this study shows that raw milk has great risks, especially for children, who experience more severe illnesses if they get sick,” said study co-author Barbara Mahon, M.D., M.P.H., deputy chief of CDC’s DFWED Enteric Diseases Epidemiology Branch. “Parents who have lived through the experience of watching their child fight for their life after drinking raw milk now say that it’s just not worth the risk.”

Additional information on evidence-based scientific studies covering the benefits and risks of raw milk consumption can be found HERE (pdf).

According to Food Safety News, since the end of the study's review period of 1993 to 2006, there have been an additional 56 foodborne illness outbreaks associated with raw milk and raw milk products. 

According to Jay-Russell, nearly all instances of outbreaks from pasteurized dairy occur because of contamination after the pasteurization process.

This year, Indiana, New Jersey, Iowa, Idaho, New Hampshire, Kentucky and Wisconsin have all considered changes to their raw milk sales laws. The majority of the bills under review would either permit the sale of raw milk where currently illegal, or remove certain restrictions on its sale in states where it's already permitted.

Federal law restricts the transport of raw milk across state lines for sale, though consumers are free to travel across state lines to purchase milk and take it home, and there is no law against consuming unpasteurized milk.

The push for loosened raw milk sales rules across many states runs counter to the best scientific recommendations the CDC and Food and Drug Administration can make based on the available data, Jay-Russell said. Many raw milk proponents argue that raw milk provides nutrients and numerous health benefits negated by the pasteurization process, while many food scientists say there's no credible scientific evidence for any of those claims.

"It's [the CDC and FDA's] charge to look at the health statistics and inform the public and help policy makers create policy that makes sense," Jay-Russell said. "But there's a push-back. Some groups don't want government influence over food, so it makes it a much more political debate than a scientific one."

Several of us have been representing consumer interests on food safety and nutrition issues for most of our careers. All of us have known Michael Taylor for many years, including when he occupied previous high‐level positions in the federal government, taught at George Washington University School of Public Health, and even when he worked at Monsanto.

We acknowledge that Monsanto symbolizes a lot of things that many people (including some of us) don’t like about modern, industrial agriculture. But Mr. Taylor’s résumé is not reducible to his work at that company. It is far more relevant that in the Clinton Administration he headed the Food Safety and Inspection Service at the U.S. Department of Agriculture, where he stood up to the meat industry and fought for strict controls that help keep E. coli and other pathogens out of meat and poultry. Since joining the Obama Administration, Taylor has been working extraordinarily hard to transform the FDA from a reactive agency that chases down foodborne‐illness outbreaks after people fall ill, to a proactive public‐health‐based agency focused on preventing foods from becoming contaminated in the first place. We are confident that his leadership, formerly at USDA and now at FDA, has and will continue to reduce the number of Americans sickened, hospitalized, and killed by foodborne pathogens.

Also, the attack on Taylor includes statements about genetically engineered foods that are simply without any basis in fact. The petition states that since the introduction of GE foods, the “diagnosis of multiple chronic illnesses in the U.S. has skyrocketed,” and that the industry’s products “may also be contributors to colon, breast, lymphatic, and prostate cancers.” Reasonable people can disagree about Monsanto’s corporate policies (often bad), or the quality of government oversight of GE foods (inadequate), or the appropriateness of genetically engineering food crops in the first place. But all of us agree that there is no foundation for the outlandish statements made in the petition.

Undermining MoveOn’s credibility is that the petition’s author, Frederick Ravid, self‐ identifies as the “the 21st generation descendent from father‐to‐son of the famous 12th century Kaballistic [sic] Master Rabbi Abraham ben David, of Posquierres, known as the RaVaD.” Ravid’s web site claims that President Barack Obama is the reincarnation of a Civil War‐era Senator, Lyman Trumbull. It also indicates his belief that various events, such as the earthquake in Haiti or the founding of the League of Nations, are linked to solar eclipses. We mean no disrespect for Mr. Ravid’s religious beliefs, but we do question his respect for science.

We are disturbed that SignOn.org/MoveOn.org and other organizations have spread Mr. Ravid’s uninformed statements so far and wide, seemingly without any apparent concern about their veracity or of its author’s bona fides. Frankly, the petition represents the baldest sort of character assassination and plays right into the hands of those who are bent on convincing the public that all government officials are corrupt.

Michael Taylor has been an important part of an impressive food safety team that has accomplished an enormous amount in a short time. While the Administration has not accomplished everything we food safety advocates would like to see done, Mike Taylor, along with President Obama, USDA Secretary Tom Vilsack, Under Secretary for Food Safety Elisabeth Hagen, and FDA Commissioner Margaret Hamburg, have made great progress on food safety in a rather short period of time. They deserve the chance to keep on doing it, despite the conspiracy mongering to which Mr. Taylor is now being subjected.

We urge MoveOn to inactivate the petition, send an email to everyone who has signed the petition correcting its factual misstatements and offering instructions for people to unsign, and apologize to Mr. Taylor.

Sincerely,

Michael F. Jacobson, Ph.D., Executive Director Center for Science in the Public Interest

Shaun Kennedy, Director, National Center for Food Protection and Defense Director, Partnerships and Programs, College of Veterinary Medicine Assistant Professor, Veterinary Population Medicine University of Minnesota

William D. Marler, Esq. Marler Clark, The Food Safety Law Firm

J. Glenn Morris, M.D., Director, Emerging Pathogens Institute University of Florida

Michael Rodemeyer, Lecturer, Department of Science, Technology and Society University of Virginia, Former Executive Director, Pew Initiative on Food and Biotechnology

Donald W. Schaffner, Ph.D., Extension Specialist in Food Science and Professor Director of the Center for Advanced Food Technology Rutgers University

Deirdre Schlunegger Chief Executive Officer STOP Foodborne Illness

Carol L. Tucker‐Foreman, Distinguished Fellow, The Food Policy Institute Consumer Federation of America, Former Assistant Secretary of Agriculture

Marler pointed out that the value of the program greatly outstrips the related cost:

"For the amount of money, $5 million a year, to cut this when we're also adding $900 billion to the deficit, it's really a penny wise and a pound foolish," Marler said.

Produce companies are pushing to axe the program.   Marler says they'd rather ask for forgiveness with a check than prevent future problems with this program.

"In the [2006 Spinach E. coli] outbreak, just in the 200 people that became sickened, cost the spinach and lettuce industry upwards of $150 million," Marler said.

Outbreaks from produce are not just a thing of the past though.  This week, the CDC announced an outbreak of the rare E. coli O26 connected to sprouts that sickened 12 people in 5 states.

And of course, last fall, the listeria cantaloupe outbreak sickened 146 in 38 states.

Well, apparently yes.  It seems that Eric Jensen, the Colorado Cantaloupe grower that caused an outbreak that killed 30 (by my count 32) - sickening a total of 146 - people, rented migrant workers unsanitary, overcrowded rooms at a motel he owns. Inspectors said many rooms lacked beds, laundry facilities and smoke detectors. Jensen now faces a whopping $4,250 in civil penalties.  As the Department’s Denver director said:

"Profiting at the expense of vulnerable workers is not just inhumane, it's illegal."

I would add immoral and really, really stupid – especially when it comes to producing safe food.

Less we forget, the FDA and the staff of the House Energy and Commerce Subcommittee found a number of safety lapses at Jensen Farms that likely led to the outbreak:

• Condensation from cooling systems draining directly onto the floor,
• Poor drainage resulting in water pooling around the food processing equipment,
• Inappropriate food processing equipment which was difficult to clean (i.e., Listeria found on the felt roller brushes),
• No antimicrobial solution, such as chlorine, in the water used to wash the cantaloupes,
• No equipment to remove field heat from the cantaloupes before they were placed into 
cold storage, and
• FDA officials were highly critical of the processing methods used at Jensen Farms. According to these FDA officials, the probable causes of the melon contamination at Jensen Farms included “serious design flaws” in the processing technique used at Jensen Farms, “poor sanitary design of the facility itself,” and “lack of awareness of food safety standards by Jensen Farms.” In particular, FDA emphasized to Committee staff that the processing equipment and the decision not to chlorinate the water used to wash the cantaloupes were two probable causes of the contamination.

Hmm, does this sound familiar to you?  Remember the sickening of 1939 people with Salmonella and the recall of 500,000,000 eggs in 2010 linked to Iowa’s Wright County Egg?  Who could forget the FDA inspection report highlights of some of its findings at Wright County:

• Chicken manure located in the manure pits below the egg laying operations was observed to be approximately 4 feet high to 8 feet high at the following locations: Layer 1 – House 1; Layer 3 – Houses 2, 7, 17, and 18. The outside access doors to the manure pits at these locations had been pushed out by the weight of the manure, leaving open access to wildlife or domesticated animals,
• Un-baited, unsealed holes appearing to be rodent burrows located along the second floor baseboards were observed inside Layer 1 – Houses 1-9 and 11-13; Layer 2 – Houses 7 and 11; Layer 3 – Houses 1, 3, 4, 5, and 6; Layer 4 – House 3,
• Dark liquid which appeared to be manure was observed seeping through the concrete foundation to the outside of the laying houses at the following locations: Layer 1 – Houses 1, 2, 3, 4, 5, 8, 11, 12, and 14; and Layer 3 – Houses 1, 8, 13, and 17,
• Standing water approximately 3 inches deep was observed at the southeast corner of the manure pit located inside Layer 1 – House 13,
• Un-caged birds (chickens having escaped) were observed in the egg laying operations in contact with the egg laying birds at Layer 3 – Houses 9 and 16. The un-caged birds were using the manure, which was approximately 8 feet high, to access the egg laying area,
• Layer 3 – House 11, the house entrance door to access both House 11 and 12 was blocked with excessive amounts of manure in the manure pits,
• There were between 2 to 5 live mice observed inside the egg laying Houses 1, 2, 3, 5, 7, 9, 10, 11, and 14, and
• Live and dead flies too numerous to count were observed at the following locations inside the egg laying houses: Layer 1 – Houses 3, 4, 6, 8, 9, 11, and 12; Layer 2 – Houses 7 and 11; Layer 3 – Houses 3, 4, 4, 5, 7, 8, 15, 16, 17, and 18. The live flies were on and around egg belts, feed, shell eggs and walkways in the different sections of each egg laying area. In addition, live and dead maggots too numerous to count were observed on the manure pit floor located in Layer 2 – House 7.

And, guess what else – the owner of Wright County, Jack DeCoster, cared little for his employees too.  A few examples:

• In 1997, DeCoster Egg Farms agreed to pay $2 million in fines to settle citations brought in 1996 for health and safety violations at DeCoster's farm in Turner, Maine. Then-Labor Secretary Robert Reich said conditions were:

"As dangerous and oppressive as any sweatshop."

• In 2002, the federal Equal Employment Opportunity Commission announced a more than $1.5 million settlement of an employment discrimination lawsuit against DeCoster Farms on behalf of Mexican women who reported they were subjected to sexual harassment, including rape, abuse and retaliation by some supervisory workers at DeCoster's Wright County plants.

And, who can forget Stewart Parnell and the Peanut Corporation of America Salmonella outbreak of 2009 that sickened 714 persons in 46 states – killing nine.  The FDA reported that the company shipped tainted products under three conditions: (1) without retesting, (2) before the re-test results came back from an outside company, and (3) after a second test showed no bacterial contamination.

As one PCA employee was quoted as saying:

“I never ate the peanut butter, and I wouldn’t allow my kids to eat it.”

My strong suspicion is that Jensen Farm workers were not eating Jensen Farm cantaloupes as they sat in their overcrowded hotel rooms.  And, I would be willing to bet that Wright County employees were not taking a dozen eggs home to the family from work.

Perhaps there is a lesson here?  Perhaps how you treat your employees, and how the employee feels about the product, says volumes about the quality and safety of the product?  If the employees will not eat the product, perhaps that products should simply not be sold.

Investigation disclosed unsanitary conditions, overcrowding at Eric Jensen's Gateway Motel

DENVER -- The U.S. Department of Labor’s Wage and Hour Division has fined cantaloupe grower Eric Jensen, who owns and operates Jensen Farms in Holly, $4,250 in civil money penalties for failing to provide migrant worker housing that meets the safety and health requirements of the Migrant and Seasonal Agricultural Worker Protection Act.

Jensen rents rooms to migrant workers at a building he owns in Holly called the Gateway Motel, where investigators from the division’s Denver District Office found overcrowded rooms without beds, windows that did not open, a lack of laundry facilities, a lack of smoke detectors and unsanitary conditions, all in violation of the MSPA. Workers pay Jensen about $25 per week to stay there.

“Profiting at the expense of vulnerable workers is not just inhumane, it’s illegal,” said Chad Frasier, the Wage and Hour Division’s district director in Denver. “Our agency is committed to upholding wage and hour laws that protect the nation’s workers, particularly those who earn the least and are vulnerable. Enforcing regulations prohibiting employers from housing migrant workers in dangerous and unsanitary conditions is a priority for the Wage and Hour Division, and the penalties assessed in this case demonstrate our commitment to holding housing providers accountable.”

According to the Centers for Disease Control and Prevention, whole cantaloupe grown at Jensen Farms’ production fields in Granada, Colo., was identified as the source of a multistate listeria outbreak in 2011 based on collaborative investigations by local, state and federal public health and regulatory agencies.

Jensen had claimed an exemption from the requirements of the MSPA as an innkeeper. Although he said that other people used the motel during the hunting season, the investigation revealed that the facility is not open to the public. Investigators found that it is closed most of the year and has no telephone number for prospective guests to call to reserve a room. Consequently, the exemption was found inapplicable.

Most agricultural employers, agricultural associations and farm labor contractors are subject to the MSPA, which protects migrant and seasonal agricultural workers by establishing employment standards related to wages, housing, transportation, disclosures and record keeping. Under the MSPA, each person or organization owning or controlling a facility or real property used for housing migrant workers must comply with federal and state safety and health standards. The MSPA also requires farm labor contractors to register with the Department of Labor. More information on the MSPA is available at http://www.dol.gov/whd/regs/compliance/whdfs49.pdf and in the Employment Law Guide at http://www.dol.gov/compliance/guide/mspa.htm.

Information about all of the federal labor laws enforced by the Wage and Hour Division is available in English and Spanish by calling the division’s toll-free helpline at 866-4US-WAGE (487-9243) or its Denver office at 720-264-3250. Information also is available on the Internet at http://www.dol.gov/whd.

On the first day of Christmas my food maker gave to me: Listeria in a cantaloupe.

On the second day of Christmas my food maker gave to me: Two pounds of Ground Turkey, and Listeria in a Cantaloupe.

On the third day of Christmas my food maker gave to me: Three Tainted Papayas, Two pounds of Ground Turkey, and Listeria in a Cantaloupe.

On the forth day of Christmas my food maker gave to me: Four Contaminated Sprouts, Three Tainted Papayas, Two pounds of Ground Turkey, and Listeria in a Cantaloupe.

On the fifth day of Christmas my food maker gave to me: Five African Dwarf Frogs, Four Contaminated Sprouts, Three Tainted Papayas, Two pounds of Ground Turkey, and Listeria in a Cantaloupe.

On the sixth day of Christmas, my food maker gave to me: Six Chicks and Ducklings, Five African Dwarf Frogs, Four Contaminated Sprouts, Three Tainted Papayas, Two pounds of Ground Turkey, and Listeria in a Cantaloupe.

On the seventh day of Christmas, my food maker gave to me: Seven Turkish Pine Nuts, Six Chicks and Ducklings, Five African Dwarf Frogs, Four Contaminated Sprouts, Three Tainted Papayas, Two pounds of Ground Turkey, and Listeria in a Cantaloupe.

On the eight day of Christmas, my food maker gave to me: Eight Broiled Chicken Livers, Seven Turkish Pine Nuts, Six Chicks and Ducklings, Five African Dwarf Frogs, Four Contaminated Sprouts, Three Tainted Papayas, Two pounds of Ground Turkey, and Listeria in a Cantaloupe.

On the ninth day of Christmas, my food maker gave to me: Nine Dancing Lawyers, Eight Broiled Chicken Livers, Seven Turkish Pine Nuts, Six Chicks and Ducklings, Five African Dwarf Frogs, Four Contaminated Sprouts, Three Tainted Papayas, Two pounds of Ground Turkey, and Listeria in a Cantaloupe.

On the tenth day of Christmas, my food maker gave to me: Ten E. coli Hazelnuts, Nine Dancing Lawyers, Eight Broiled Chicken Livers, Seven Turkish Pine Nuts, Six Chicks and Ducklings, Five African Dwarf Frogs, Four Contaminated Sprouts, Three Tainted Papayas, Two pounds of Ground Turkey, and Listeria in a Cantaloupe.

On the eleventh day of Christmas, my food maker gave to me: Eleven slices of Bologna, Ten E. coli Hazelnuts, Nine Dancing Lawyers, Eight Broiled Chicken Livers, Seven Turkish Pine Nuts, Six Chicks and Ducklings, Five African Dwarf Frogs, Four Contaminated Sprouts, Three Tainted Papayas, Two pounds of Ground Turkey, and Listeria in a Cantaloupe.

On the Twelfth day of Christmas, my food maker gave to me: Twelve jugs of raw milk, Eleven slices of Bologna, Ten E. coli Hazelnuts, Nine Dancing Lawyers, Eight Broiled Chicken Livers, Seven Turkish Pine Nuts, Six Chicks and Ducklings, Five African Dwarf Frogs, Four Contaminated Sprouts, Three Tainted Papayas, Two pounds of Ground Turkey, and Listeria in a Cantaloupe.

This past week, we were pleased to welcome our distinguished visiting professor, Bill Marler for the condensed course that he teaches on Food Safety Litigation. The first two hours of his class were conducted as a public forum, with good attendance from the law school, others from the University of Arkansas, and the wider community.

An accomplished attorney and national food safety expert, William (Bill) Marler is recognized as the most prominent foodborne illness lawyer in America and a major force in food policy. His firm, Marler Clark has represented thousands of individuals in claims against food companies whose products have caused serious illness or death, securing over $600,000,000 for victims of E. coli, Salmonella, and other foodborne illnesses.  He is the founder of the popular online newspaper, FoodSafetyNews, a blogger and tweeter with a large following, and a frequent commentator on food safety issues.  Marler Clark is a sponsor of our Graduate Assistantship program, with Allie Condra serving as the 2011-12 Marler Clark Graduate Assistant.

Bill Marler was a strong proponent of the Food Safety Modernization Act that was signed into law in January of 2011. This was the first major reform of the Food & Drug Administration’s (FDA) food safety regime in seventy years. It shifts the FDA focus from reactive to preventative, expands FDA powers to inspect and recall, establishes risk-based priorities, and addresses major weaknesses in import safety assurances.  Bill advocated for the legislation, writing about the need for better consumer protection, testifying before Congress, and speaking to the media about the need for stronger food safety regulation.  His public forum topic was, How the Food Safety Modernization Act Came About:  Food Safety and Forces of Change.

As part of the condensed course, Bill brought popular author Jeff Benedict to Arkansas to talk to the class. Jeff is the author of the well received 2011 book, Poisoned: The True Story of the Deadly E. Coli Outbreak That Changed the Way Americans Eat.  This book chronicles the historic Jack in the Box E. coli O157:H7 outbreak in 1993 and its impact on our food safety system.  As one review notes, the book provides a "jarringly candid narrative of the fast-moving disaster drawing on access to key documents and exclusive interviews with the real-life characters at the center of the drama - the families whose children were infected, the Jack in the Box executives forced to answer for the tragedy, the physicians and scientists who identified E. coli as the culprit, and the legal teams on both sides of the historic lawsuits that ensued."  Central to the story is the young lawyer, Bill Marler, who "staked his career on bringing the victims justice without compromise."

The LL.M. candidates truly enjoyed the class and the opportunity to get to know Bill and Jeff. They each did a great job in the classroom. Our appreciation is extended to them for providing such a fantastic experience to our class.

The Food Safety Modernization Act became law in January 2011. The act represents the first major reform of the Food & Drug Administration’s food safety regime in 70 years. It shifts the administration’s focus from reactive to preventative, expands its powers to inspect and recall, establishes risk-based priorities, and addresses major weaknesses in import safety assurances. Marler was a strong proponent for the legislation, writing about the need for better consumer protection, testifying before Congress, and working in the media, advocating for stronger food safety regulation. In his presentation, he will discuss how the legislation came about.

Marler is recognized as the most prominent foodborne illness lawyer in America and a major force in food policy. His firm, Marler Clark, has represented thousands of individuals in claims against food companies whose products have caused serious illness or death, securing more than $600,000,000 for victims of E. coli, Salmonella, and other foodborne illnesses. The 2011 book, Poisoned: The True Story of the Deadly E. Coli Outbreak That Changed the Way Americans Eat, by Jeff Benedict, chronicles Marler’s first food safety case, the historic Jack in the Box E. coli O157:H7 outbreak in 1993.

According to the North Carolina Department of Health and Human Services, after a nearly month-long investigation, officials have determined that a building holding pigs, goats, and sheep at the state fair is most likely the source of an E. coli O157:H7 outbreak that sickened at least 27. Many visitors, including children, passed through the building looking at and petting the animals.

This is the third time in seven years that the North Carolina State Fair has been linked to an E. coli outbreak. In 2004, a petting zoo operating at the fair was determined to be the source of an E. coli O157:H7 outbreak that sickened as many as 108 people. In 2006, five people became ill after eating at the fair.

Now, E. coli attorney and safety advocate William Marler is calling on those in the animal exhibition industry nationwide to finally heed warnings and follow long-standing guidelines on animal-human interaction safety.

"The 2004 E. coli outbreak was roughly the twenty-fifth outbreak from animal-human contact and there hasn't been any sign of a slow-down since," said Marler, who sponsors a website devoted to fair safety. "This isn't a new issue, and there are plenty of resources out there to prevent these types of things; there is simply no reason this should still be happening."

The National Association of State Public Health Veterinarians produces a set of guidelines aimed at reducing risks and improving safety at petting zoos and animal exhibits. Some of the major recommendations include:

-- Wash hands after contact with animals to reduce the risk of zoonotic disease transmission.

-- Do not allow food, drink, or pacifiers in animal areas.

-- Include transition areas between animal areas and non-animal areas.

-- Educate visitors about disease risk and prevention procedures.

-- Properly care for and manage animals.

Attorneys at Marler Clark, and the 11 families they represent, are currently waiting on a ruling from the trial of their claims conducted in Durham, N.C. this last summer on claims against the State of North Carolina arising out of the 2004 outbreak.

In 2006 there were three E. coli cases linked to the North Carolina State Fair. Officials believe it to be tied to a pita stand. In 2004, 108 cases of E. coli were reported, all linked to the petting zoo at the same State Fair. 

In April, 2005, William Marler of Marler Clark, the Seattle law firm that has represented hundreds of victims of E. coli poisoning, wrote letters to Washington State legislators on both the House and Senate Agriculture committees to encourage them to put into place requirements for fair and petting zoo operators that would likely reduce the likelihood of bacterial contamination among fairgoers. These include increasing signage and warnings about health risks associated with human-animal contact, providing adequate handwashing facilities at strategic locations throughout petting zoos, and designing petting zoos with the intent of reducing the risks of human contact with animal feces. An outline of proposed requirements is available at the Marler Clark-sponsored Web site http://www.fair-safety.com.

“I realize the measures we are proposing might seem extreme,” said Marler. “But we’re looking at this from the standpoint of having represented dozens of children who visited petting zoos and ended up with kidney failure and life-long medical conditions.”

Few states at this time have laws governing human-animal contact at petting zoos. However, Pennsylvania and North Carolina have both recently enacted laws after E. coli outbreaks traced to fairs and petting zoos in their states. Under Pennsylvania law, a petting zoo operator must comply with at least the following requirements:

  (1) An operator shall promote public awareness of the risk of contracting a zoonotic disease at the animal exhibition and of the measures necessary to minimize the risk of contraction by posting appropriate notices at the animal exhibition.

  (2) An adequate hand-cleansing facility for adults and children shall be conveniently located on the animal exhibition grounds. The operator shall post appropriate notices which designate the location of the hand-cleansing facility . . . and encourage the cleansing of hands after touching animals, using the restroom, and before eating.

Marler continued, “Pennsylvania and North Carolina have at least made a start. The federal CDC agency first released its similar Recommendations for Human-Animal Contact way back in 2001, but petting zoo operators apparently haven’t been paying any attention to those. Its time now that the government stepped in and passed enforcable laws that reduce this risk, instead of relying on petting zoo operators to police themselves. Our kids’ health is at stake.”

Children, the target population for petting zoos, are most susceptible to E. coli O157:H7 infection. Between five and ten percent of children who contract E. coli infection will go on to develop hemolytic uremic syndrome (HUS), which can lead to kidney failure and damage to the pancreas, liver, brain, and heart.

“I’ve represented kids with varying levels of damage after suffering from HUS. Nearly all of them face the possibility of multiple kidney transplants in their lifetime. Most suffer from high blood pressure, and several have become insulin-dependent diabetics,” Marler added. “We can think about HUS being a rare disease, but its not in these cases, and these kids will have to live with debilitating medical conditions for the rest of their lives.”

Caring for a person with HUS is costly. Marler has represented children with HUS whose medical bills ranged from $15,000 to over $200,000. “And that’s just for the initial hospital stay and a year of check-ups,” Marler continued. “Over their lifetimes, kids with HUS – kids who were healthy before they were exposed to E. coli O157:H7 – will require millions of dollars worth of extra medical treatment.”

“The longer politicians and the fair industry resist changes, the longer our children’s health and the health of the fair industry itself will be at risk,” Marler concluded.

According to the Centers for Disease Control and Prevetion (CDC) the outbreak, now the second most deadly in U.S. history, has sickened at least 123, causing 25 deaths and at least one miscarriage.

Last month, state and federal public health agencies linked the outbreak to Colorado-based Jensen Farms. On October 19, the U.S. Food and Drug Administration (FDA) released a report detailing unsanitary conditions and widespread contamination throughout the Jensen Farms packing facility despite the farm's score of 96 on a scale of 100 during a food safety audit conducted by a third-party private company days before the outbreak was announced.

“It's crystal clear that the entire chain of production – from grower, processor, wholesaler, shipper and retailer – is at fault in this outbreak. We are seeing a failure of the food protection system on several levels,” said Marler.

Currently there are no accreditation procedures to verify companies performing third-party audits. According to nationwide news reports, the cantaloupe industry as a whole is undergoing large-scale economic losses due to the outbreak.

“For the sake of the families affected by this tragedy, for the future of production practices, and for the sake of the cantaloupe industry, Congress needs to conduct an investigation as soon as possible,” Marler continued.

Earlier this month, dozens of Marler's clients sent a letter to the House Energy and Commerce Committee imploring it to hold hearings on the outbreak. Marler said he intends to send another letter next week with additional signatories.

“At the core of this are mothers, fathers, sons, and daughters; all of whom have seen a loved one endure horrible pain and suffering or even death--all because they ate cantaloupe. Never mind the industry losses and the obvious systematic problems; on the most basic human level, these people deserve an explanation.”

Today, I spent the day talking to a father of a 38 year old, mother of two, who died, and the husband of a woman who died after nearly 50 years of marriage. The common denominator? They both ate Jensen Farms Frontera cantaloupe, audited by PrimusLabs and sold at grocery stores in the Denver area.

So, after once again spending time with victims of yet another outbreak of foodborne disease who are advocating for justice for themselves and family members, I thought again why prosecutors seem so reluctant to charge those who poison us with food. As I have said far too often, in nearly two decades of representing families impacted in foodborne outbreaks large and small, criminal prosecutions of those who poison us are rare. It is not because the laws do not exist. So why is that?

Congress passed the Federal Food, Drug, and Cosmetic Act in 1938 in reaction to growing public safety demands. The primary goal of the Act was to protect the health and safety of the public by preventing deleterious, adulterated or misbranded articles from entering interstate commerce. Under section 402(a)(4) of the Act, a food product is deemed "adulterated" if the food was "prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health." A food product is also considered "adulterated" if it bears or contains any poisonous or deleterious substance, which may render it injurious to health. The 1938 Act, and the recently signed Food Safety Modernization Act, stand today as the primary means by which the federal government enforces food safety standards.

Chapter III of the Act addresses prohibited acts, subjecting violators to both civil and criminal liability. Provisions for criminal sanctions are clear:

Felony violations include adulterating or misbranding a food, drug, or device, and putting an adulterated or misbranded food, drug, or device into interstate commerce. Any person who commits a prohibited act violates the FDCA. A person committing a prohibited act "with the intent to defraud or mislead" is guilty of a felony punishable by not more than three years or fined not more than $10,000 or both.

A misdemeanor conviction under the FDCA, unlike a felony conviction, does not require proof of fraudulent intent, or even of knowing or willful conduct. Rather, a person may be convicted if he or she held a position of responsibility or authority in a firm such that the person could have prevented the violation. Convictions under the misdemeanor provisions are punishable by not more than one year or fined not more than $1,000, or both.

The legal jargon aside, if you are a producer of food and sell adulterated food, you can (and should) face fines and jail time.

The decision is consistent with the principles laid out by the President in his March 2009 television speech on food safety programs. He said then that there are certain things that we can’t do on our own and that government must step in to address. One of those things is ensuring that the foods we eat are safe and don’t cause us harm.

The USDA’s program to control E. coli O157:H7 has been reasonably effective. The determination of adulteration, regular government testing and the threat of recall created an urgency within the industry to address the problem in order to avoid positives and the disease rate has fallen according to the Centers for Disease Control and Prevention (CDC). Last June CDC reported that E. coli O157:H7 illnesses had fallen to the level set in the national health objectives. In 2010 illnesses attributable to the other six E. coli strains USDA is now acting on caused more illnesses than O157:H7.

FSIS has laid out a reasonable approach to the new program, focusing first on the trim that is used to make ground beef and doing testing at large slaughterhouses that supply most of the trim to ground beef manufacturers. It is good public health practice to prevent adulteration at the earliest possible point in the process.

This is also the first major initiative of this Administration to improve meat and poultry safety. Focus has been on FDA and meat and poultry contamination has seemingly not been of much interest at the White House.

Under Secretary for Food Safety Dr. Elisabeth Hagen and her team made the case for this action and it was persuasive enough, and the program details reasonable enough, to overcome fierce industry and trading partner opposition.

On September 13, the city announced that all patrons of Cheddar’s Casual Café on 4009 S. Loop 289 who dined at the restaurant between August 31 and September 8 were at risk for possible exposure to hepatitis A.  According to reports, a restaurant employee who worked in food preparation during that time period tested positive for the virus, which can be passed through contaminated food.

“From both a public health perspective and business perspective, it makes sense for restaurants to vaccinate their employees against hepatitis A,” said Marler Clark attorney William Marler. “It’s much simpler for a restaurant to pay for its couple dozen or so employees to be vaccinated, rather than wait for a mass scare involving hundreds, if not thousands of customers waiting in lines for hours to get inoculated against the virus.”

Currently the City of Lubbock is working to obtain hepatitis A vaccine or Immune globulin to be offered at designated vaccination clinics to anyone who dined at Cheddar’s from August 31 – September 8.  The city will hold a free hepatitis A immunization clinic at the Lubbock Memorial Civic Center, starting Friday September 15th through Monday, September 19th. The city’s estimated cost for the vaccine is approximately $256,000.

“The amount of business Cheddar’s and other restaurants lose in a situation like this can be devastating.  Worker vaccinations are not only an investment in employee and customer health, but the health of the business as well.”

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 Centers for Disease Control and Prevention (CDC), since the inception of the vaccine, rates of infection have declined 92 percent. 

MARLER CLARK is the nation’s foremost law firm dedicated to representing victims of foodborne illness.  The firm’s attorneys have unmatched experience representing victims of hepatitis A and other food poisoning cases.  Marler Clark sponsors many informational sites about foodborne illness, including www.about-hepatitis.com and www.foodborneillness.com. For more information contact Cody Moore at cmoore@marlerclark.com or 206-407-2200.