From Seattle KCTS Public Television: Attorney, Lawyer and food-safety advocate Bill Marler talks about how his career has changed since the 1993 E. coli break in Seattle and his ongoing fight for tough food-safety laws.
When AP reported this week that an owner of Jensen Farms was being fined by the U.S. Department of Labor for failing to provide safe migrant worker housing, I must admit even I was a bit shocked. Could it be that an owner of a business that allowed the deadly fecal bacteria Listeria to coat its product would also treat its employees like crap too?
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:
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:
And, guess what else – the owner of Wright County, Jack DeCoster, cared little for his employees too. A few examples:
"As dangerous and oppressive as any sweatshop."
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.
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.
From the L.L.M. class at University of Arkansas School of Law
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.
An accomplished attorney and national food safety expert, William Marler, will present “How the Food Safety Modernization Act Came About: Food Safety and Forces of Change” at 9 a.m. Monday, Nov. 14, in room 339 of the Leflar Law Center. The presentation is free and open to the public, and is approved for 1.5 hours of general continuing legal education.
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.
In the same week that a two-year-old Charlotte-area boy has finally been released from the hospital after a life-threatening E. coli O157:H7 infection, North Carolina health officials are linking the outbreak that sickened him to visiting an animal barn at this year's North Carolina State Fair.
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.
William Marler, the prominent attorney and food safety expert who has represented thousands of victims of foodborne illness, is calling on Congress to investigate the ongoing Listeria outbreak linked to cantaloupe.
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.”
Ever wonder why the lawyers at Marler Clark take the food industry head on day in and day out? Little more need be said than 25 dead and 123 hospitalized due to cantaloupes made bad by plain negligence. Bill Marler published the following today about more justice than wrongful death lawsuits on www.marlerblog.com:
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.
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Drew Falkenstein received his Bachelor of Arts degree in political science from the University of Washington in 1999 and his Juris Doctor degree in 2002 from Seattle University School of Law, where he graduated with honors. Read More
David Babcock graduated cum laude from the University of Massachusetts in 1991. He received his Juris Doctor from the University of Washington Law School, graduating with Honors in 1997.Read More
Colin Caywood received his Bachelor of Arts degree in sociology from the University of Washington in 1999. Mr. Caywood worked at a number of Seattle-area law firms before joining Marler Clark as a paralegal in 2002. Read More
An accomplished personal injury lawyer and national expert in foodborne illness litigation, William Marler has been a major force in food safety policy in the United States and abroad. Read More