Food Poisoning Lawyer & Attorney : Marler Clark : Food Poison Journal

Yesterday, Heartland Foods, Inc., an Indianapolis, Indiana company recalled "all sizes/containers of COARSE GROUND BLACK PEPPER shipped from their facility at 6815 E. 34th Street, Indianapolis IN. Potential distribution took place on or after October 19th, 2009 to February 17th, 2010." 

This recall comes on the heels of a major national outbreak linked to pepper-coated salami that has sickened at least 238 people in 44 states and the District of Columbia.  The outbreak has been making people sick since July, and has long been thought to be linked to contaminated pepper, both red and black.  In fact, Wholesome Spice Company, a Brooklyn, NY spice wholesaler, has also recently recalled red pepper.  The recall has spawned two lawsuits so far.  Also, yesterday's recall by Heartland Foods immediately followed the filing of a wrongful death lawsuit arising from a 2009 Salmonella outbreak linked to white pepper produced by UF Union International Foods, a California company. 

Heartland's recall prompts a few questions.  Is Heartland a customer of Wholesome Spice, or is it linked in another way to the Daniele/Wholesome outbreak and recall--e.g. were Heartland and Wholesome supplied by the same pepper exporter?  Wholesome has recalled only red pepper, but black pepper was originally fingered as the contaminated vehicle in the Daniele outbreak; so does Wholesome need to recall its black pepper too? 

Further, and more importantly from a public health standpoint, where is Heartland's contaminated black pepper?  Notably, it distributes to only retailers and food producers, meaning that its potentially contaminated products are used as ingredients in further processed foods.  Which ones, and where are they? 

And this just in, T. Marzetti Company has recalled its veggetable and chip-dip products due to potential salmonella contamination.  What was the contaminated ingredient in the dip?  Was it pepper?  Was it something else like hydrolized vegetable protein, which is the suspect vehicle in the recent recall of Johnny's french dip au jus recall? 

More answers to come, but with all the spice recalls and lawsuits lately, it would not be surprising to ultimately see some relationship between them.  See Spices:  emerging threat or clear and present danger. 

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Over the last several years, there have been multiple outbreaks linked to, and recalls of, various kinds of spices. From white pepper, to red pepper, to black pepper and beyond, spices are a potentially ideal vehicle for the transmission of foodborne disease. More and more people are becoming ill from contaminated spices, and more and more recalls are occurring. So is this problem merely an emerging threat? Or is it a problem that food producers must confront here and now, finding ways to better ensure the safety of the consumers they profit from.

Spice outbreaks in recent history:

1. Veggie Booty

In May 2007, the Centers for Disease Control and Prevention (CDC) began a multi-state investigation in response to an increase in laboratory reports, first posted on PulseNet on April 2, 2007, of Salmonella Wandsworth. Salmonella Wandsworth is a very rare serotype that was never before implicated in a U.S. outbreak. As of September 6, 2007, there were 69 reported cases of Salmonella Wandsworth in 23 states and 14 cases of Salmonella Typhimurium in six states who became ill after consuming Veggie Booty, a puffed vegetable snack food with a raw, dried vegetable coating. A total of 61 bags of Veggie Booty were ultimately tested in twelve states. Salmonella was isolated from thirteen of them. Eleven of the thirteen bags were positive for the outbreak strain of Salmonella Wandsworth, and one bag was positive for Salmonella Typhimurium and Enterobacter sakazakii. One bag also tested positive for Salmonella Kentucky, and Salmonella Haifa and Saintpaul were isolated from other bags.

2. Union International

The Union International Food outbreak sickened more than 79 people in Western states between December 2008 and April 2009; the majority of the illnesses were in California. Public health officials traced the outbreak to white pepper manufactured by Union International and sold under the brand names Uncle Chen and Lian How. Ultimately the company recalled more than 50 products, including spices, oils, and sauces, due to potential contamination with Salmonella.

3. Wholesome Spice Company and Overseas Spice

This outbreak and recall is, of course, still going on.  According to the CDC just days ago, 238 individuals infected with the outbreak strain of Salmonella Montevideo, which displays either of two closely related pulsed-field gel electrophoresis (PFGE) patterns, have been reported from 44 states and District of Columbia since July 1, 2009.  Epidemiological investigation showed that these 238 sick people all ate Daniele Inc salami products contaminated by salmonella.  Daniele used salmonella-contaminated pepper in the production of the various kinds of recalled salami. 

4. Today’s recall of Johnny’s brand French dip au jus powder?

Will the Johnny’s recall, announced today out of Tacoma, Washington, be another recall or outbreak to add to this list? The ingredient list for the recalled prodcut states that it contains: 'MSG, Wheat, Soy & Milk; Hydrolyzed vegetable protein (corn, soy, wheat), yeast extract, salt, rice flour, monosodium glutamate, partially hydrogenated vegetable oil (soy & cottonseed), caramel color, whey solids, non-fat milk solids, mono & diglycerides."  Only time will tell, hopefully, what happened at Johnny's to prompt today's recall.  Spices?  Certainly possible.

The historical trend:

These kinds of events naturally prompt the question why are we suddenly seeing outbreaks and recalls linked to pepper and other spices. Is this truly a new phenomenon; a new species of failure by food importers and producers? 
 

The combination of Google and about 5 spare minutes will show you that spice problems are, by no means, a new phenomenon. As stated in a 2006 Journal of Food Protection article (“Journal article”): "We reviewed spice recalls that took place in the United States from fiscal years 1970 to 2003. During the study period, the FDA monitored 21 recalls involving 12 spice types contaminated with bacterial pathogens."  See Journal of Food Protection, Vol. 69, No. 1, 2006, Pages 233–237(Recalls of Spices Due to Bacterial Contamination Monitored by the U.S. Food and Drug Administration: The Predominance of Salmonellae). See article at: http://www.cdc.gov/enterics/publications/381_vij.pdf.

Indeed, as the name of the Journal article suggests, the problem of spice contamination has long been known. And not only that, it has long been known to be predominantly one of Salmonella contamination specifically.

Defining the problem:

Lest we delude ourselves into believing that the risk is not that great, it is clear that spice outbreaks are on the rise. The Journal article further states that “Although five of these recalls transpired during the preceding 30 years (one each in 1971, 1983, 1989, 1995, and 1996), the remaining 16 (76%) occurred during fiscal years 2001 to 2004.” And the other outbreaks described above (i.e. Veggie Booty, Union International, Wholesome/Overseas, and possibly Johnny’s) are too recent to have been included in the Journal article’s study.

But to add even further concern, it is evident that counting recalls and outbreaks may only partially define the problem. The Journal article further notes that, of the 105,440 spice brands imported at the time into the US, 258 were coded as "refusals" and were thus prevented access to US markets:

178 (69%) were refused because the manufacturer had a history of shipping Salmonella-contaminated spices. In 131 (74%) of these 178 refusals, the importer chose not to challenge the refusal; in 44 (25%) instances, Salmonella was shown to be present by laboratory analysis. In the remaining three (1%) instances, the spices were refused because of the presence of mold or filth.

Thus, upon inspection, there were an additional 258 refusals of spice products during the one year period analyzed, thereby preventing those contaminated spices from being included in the Journal article’s analysis. Admittedly, some were refused entry only because of past problems associated with the exporter, and some due to contamination by mold or other filth, but 44 were refused entry because they were, in fact, contaminated.

Where do all these contaminated spices come from? Again, the Journal article:

The country of origin of the spice was known for 15 recalls: 12 involved imported spices (India [three recalls], Spain [three recalls], Turkey [two recalls], and one recall each from Egypt, Jamaica, Mexico, and Taiwan), and the remaining three involved domestically produced spices (two recalls due to Salmonella and one recall due to L. monocytogenes).

Further:

Overall, there were 6,112 unique spice manufacturers in the 129 nations from which the United States imported spices; the three countries with the leading numbers of spice manufacturers were India (629 manufacturers), China (547), and Mexico (441). During fiscal year 2003, there were 9,911 unique spice consignees in the United States who purchased imported spices. Approximately 85% of the spices imported in fiscal year 2003 were produced in China, and the next four leading spice exporters to the United States—Honduras, Mexico, Lebanon, and Peru—contributed an additional 13%.

Further defining the problem:

As we know from past experience with food products, certain items are more susceptible to contamination, or to causing higher rates of infection and illness, due to their very nature. For instance, ground beef is a risky food because of the oftentimes preventable contamination that is so rampant in the production process. And lettuce and other leafy greens are susceptible to contamination because they are grown in an environment particularly capable of causing the contamination. 

Spices have numerous “performance characteristics” that make them a ready vehicle for contamination and illness. First, they are generally a dried product that have a long shelf-life . . . even for those of us who do not have spices still on our shelves for the 1990s. Second, they are ubiquitous and widely-sold; everybody has them, and everybody eats them, from the very healthy to the young and old, and all people in between. Third, the Salmonella bacteria, which is far and away the most prevalent contaminant of spices, is a hearty bug capable of surviving for long periods in a dry environment (e.g. a container of spices). As the Journal article notes, in a 1993 spice outbreak in Germany, testing 8 months after the contaminated product was identified produced positive results for viable Salmonella bacteria.

And the threats from a public health and surveillance standpoint? Long shelf-life frustrates the efforts of investigating health authorities to detect outbreaks and stop them.  Also, again, everybody eats these spices, which works to the detriment of public health in investigating spice outbreaks because investigators are not necessarily able to hone in on the suspect product as easily. Even though everybody buys them and uses them, people may use many different brands on their shelves and would not be able to retrospectively identify which particular brand they used days, weeks, or months ago.  And finally, spices are often a post-cooking flavoring ingredient, and thus there is often no kill step.

So what are we to do?

Certainly, the solution does not lie in not using the product. Very few, even among those who truly know the scope of the problem, will stop using spices altogether. And nor does the solution lie in preventing US food companies from using imported spices. These solutions are both totally unrealistic, forcing the bottom line conclusion that the food companies themselves must act as a buffer against the purchase, manufacture, and distribution of contaminated spices.

With respect to spices, the buck stops with the industry. It is time for the process of irradiation to gain a stronger foothold in the United States with respect to all products, and most definitely with respect to those food products that carry the greatest risk.

But irradiation is not the only answer. The Journal article describes others as well:

A number of methods exist to reduce or eliminate pathogens from spices (e.g., the use ethylene oxide, heat treatment, or irradiation [UV, infrared, or gamma]). Ethylene oxide is highly diffusive; is simple to use; does not significantly alter either the aromatic or flavor components of spices (unlike heat treatment, which can destroy the aromatic and flavor components of spices as well as their color (12)); and is effective in destroying microorganisms (18). However, the effect of ethylene oxide on spores is not as great as it is for vegetative cells (12). The FDA has established a maximum tolerance of 50 ppm for residues of ethylene oxide in ground spices (2). On the other hand, at least one study has suggested that irradiation represents the most effective and safe method of treatment of spices, and it is a process that yields no toxic by-products (17). For the microbial disinfection of spices, the FDA has established that, when irradiation is used, the maximum dose should not exceed 30 kilogray (3 Mrad) (3).

And yet another solution is good old fashioned hard work by food companies. Do your job better by instituting and following rigorous standards in the import, production, distribution, and sale of your products. This involves knowing your suppliers, and their track-record with respect to food safety; don’t simply look at cost as the sole conclusive factor in deciding who to buy spice products from. Also, take all necessary precautions to avoid contaminating your production environment. This was certainly a factor in the Union International outbreak, and possibly one in the Daniele salami outbreak linked to black and red pepper. And finally, as is the case in any outbreak of foodborne illness, act quickly and proactively in informing the public and investigating health authorities about the probability and scope of a contamination problem with your products. Media exposure, and the resulting business loss, that occurs in the wake of outbreaks and recalls is only worse when more people get sick; and hiding the ball is certainly a good way to make more people sick.
 

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There has been no further word on the massive Salmonella outbreak that sparked a major recall by Daniele Inc. of salami products distributed nationally.  The latest CDC update on the outbreak was on February 18, at which point the CDC had identified 233 illnesses in 44 states linked to the outbreak.  But as of the date of the CDC's last update, there remained many unanswered questions in the outbreak investigation.

To recap, Daniele Inc has recalled a total of almost 1.4 million pounds of salami products, some produced as recently as mid February.  See list of recalled products.  It is widely thought that both red and black pepper used during production of the recalled salami products was the original source of contamination.  Daniele Inc's pepper suppliers are two companies called Overseas Mincing Spice Company and Wholesome Spice Company.  Daniele has terminated its relationship with Wholesome Spice Company and now reports that it is using irradiated pepper exclusively in its products. 

But it has been nearly a week since we have received any word on the status of the outbreak, despite epidemiological evidence that contaminated products may in fact still be in consumer households.  So, are people still getting sick?  Are we dealing with an ongoing threat to public health?  Has all potentially contaminated product been recalled?  And what is the latest on the status of the investigation into the pepper, both red and black, that has been identified as the original source of contamination?  Notably, neither pepper company, Overseas Spices or Wholesome Spice Company, has recalled any of its products.  What is the significance of this?  There are only three possibilities:  (1) the true source of contaminaton was at Daniele alone, (2) the pepper companies did not sell the contaminated pepper to any other companies, and they are confident that the Daniele recall is broad enough to include all potentially contaminated pepper, or (3) the companies simply have not acted to protect public health.  We would like to think, in this day and age and in this country, that the third possibility is, in fact, not possible, but events over the past several years are cause for concern.  Recall that we are only one year removed from the now infamous PCA salmonella outbreak, in which Stewart Parnell knowingly sent salmonella-contaminated product on to other companies for inclusion in peanut-based products.

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The CDC now counts 217 confirmed cases in the Salmonella montevideo outbreak linked to contaminated salami and pepper. 

As of 9:00 pm EST on February 8, 2010, a total of 217 individuals infected with a matching strain of Salmonella Montevideo have been reported from 44 states and District of Columbia since July 1, 2009. The number of ill persons identified in each state with this strain is as follows: AK (1), AL (2), AZ (5), CA (30), CO (4), CT (5), DC (1), DE (2), FL (3), GA (3), IA (1), ID (2), IL (14), IN (3), KS (3), LA (1), MA (12), MD (1), ME (1), MI (4), MN (5), MO (1), MS (1), NC (9), ND (1), NE (1), NH (1), NJ (8), NM (2), NY (18), OH (9), OK (1), OR (9), PA (6), RI (2), SC (1), SD (3), TN (5), TX (7), UT (9), VA (1), WA (15), WI (1), WV (1), and WY (2).

This outbreak was originally announced back on January 23, which is also the day that Daniele Inc recalled 1,240,000 pounds of salami products potentially contaminated by Salmonella.  Daniele later expanded the recall by over 17,000 pounds.  The products were distributed nationally and sold at many retail grocery outlets. 

Outbreak summary:  the 217--a number that will likely continue to grow--confirmed illnesses that the CDC has linked to the outbreak have occurred in 44 different states.  The Daniele Inc recalled salami product was contaminated with multiple strains of Salmonella, including montevideo.  There has been no official announcement of the other strains of salmonella involved in the outbreak.  We also know that the actual outbreak vehicle was the black pepper that was used to coat the recalled salami products.  Daniele purchased the contaminated pepper from two companies, Wholesome Spice and Overseas Spice Company.  Samples from unopened containers of pepper from both companies have tested positive for Salmonella. 

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We are currently investigating the illnesses of 15 people potentially sickened by Salmonella-contaminated Salami.  There is the possibility, as well, that other products are contaminated by Salmonella montevideo or other strains of salmonella, yet we know virtually nothing about the whereabouts of the pepper.  We were contacted yesterday by a young woman from Washington sickened in late January 2010 . . . after the Daniele Inc recall of 1.2 million pounds of potentially contaminated salami.  She bought the salami at Costco, but didn't consume it until after word of the outbreak and recall had been announced.  She just didn't know that the outbreak was occuring.

Had more effort been put forth to make people aware of the outbreak and dangers associated with consuming the implicated product, this woman's illness may not have happened, and she would not now be in danger of losing her job because of missed work days due to illness.  This outbreak is associated with a product--actually two products, pepper and salami--with very long shelf lives.  In such a situation, where there is more than a slim possibility that contaminated product will stay in people's homes well past public announcement of an outbreak or recall, better effort and more resources need to be devoted to informing the public of the risks they face. 

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The CDC's February 2 update on the Salmonella outbreak linked to salami and black pepper indicates that Washington, with 15 victims, is among the hardest hit states in the outbreak.  Only California and New York, with 30 and 16 victims respectively, have more sick residents.  Here is a distribution map of illnesses linked to the outbreak:

The latest update on the outbreak:

Rhode Island Department of Health has confirmed that the black pepper used to manufacture Daniele Inc's salami products has tested postiive for Salmonella Montevideo, thus confirming that the pepper was the ultimate source of contamination in the outbreak.  Rhode Island has also indicated that black pepper from two of Daniele Inc's spice suppliers (Wholesome Spices and Oversees Spice Company) has tested positive for the outbreak strain of salmonella.  This means that Wholesome and Oversees must have purchased their black pepper from the same supplier. 

This outbreak may not be over.  Unfortunately, the FDA and CDC have been largely silent on the nature of the ongoing risk to the public.  And Wholesome and Oversees have not yet heeded calls to tell the public whether they sold contaminated product to other companies, so we do not yet know whether other food producers have been using the contaminated product.  In fact, it seems very likely that they did.  There is some indication that certain outbreak victims had no exposure to salami whatsoever in the timeframe of their illnesses, yet they match the outbreak strain of Salmonella.  The implication is that there is, in fact, another food that is, or was, making people sick.

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Today, the Rhode Island Department of health announced that the pepper that Daniele Inc used to produce its salami--now the subject of a major recall and outbreak--was contaminated, not the meat itself   Pepper has been suspected as the source of this outbreak since at least January 23, 2010, if not before.  A little frighteningly, Rhode Island also says that pepper from both of Daniele Inc's suppliers has tested positive for the outbreak strain (suggesting a common grower or shipper) of salmonella, and that a number of outbreak victims may not have eaten salami at all.  What's the implication?  That more than just Daniele Inc. has received contaminated  black pepper.  Is it in your home now?

The problem that this scenario brings to light is that the public is clearly not getting the information that it should . . . and in a timely fashion.  As I posted earlier today, the suppliers of pepper to Daniele (Oversees Spice Company and Wholesome Spice) should publicly disclose the list of customers who bought, or may have bought, the contaminated pepper.  After all, the fact that some of the people sickened with the outbreak strain of salmonella in this outbreak, and who did not have an exposure to salami, suggests that other food producers may in fact have received the contaminated pepper as well, and they may be producing and selling food that is contaminated.  Maybe the FDA doesn't have enough information to establish just who that or those food producers are, but Oversees and Wholesome could certainly protect a lot of people by disclosing their customer list. 

This problem--i.e. the stagnant flow of information in food outbreaks--is not all on food suppliers either.  Timely information published in a manner that effectively passes the information to the consuming public is not a strong point of our government either.  Bill Marler authored a highly insightful blog post several days ago about this problem.  Asking "why the silence of the steaks and the perjury of the peppers," he stated as follows:

why do the US Government and US Business not believe in Capitalism? The one thing that makes capitalism – free markets – work is knowledge and transparency. If you know who poisoned you, you can stop buying food from them. However, here – especially here – the government and industry do everything they can to not tell us the facts. In both instances they put the information out on a holiday or a Friday night, so no one but a loser blogger would be paying attention. More importantly is the fact that they withhold information about the ultimate source of the contamination? Why not say whom the supplier of steaks and trim is? Why not let the public know who produced the peppers and where they are from?

As for steaks, the event that got Bill talking was the recall of 124 tons of tenderized beef products manufactured by National Steak and Poultry and sold to a variety of major restaurant chains throughout the country.  The recall was announced by USDA's Food Safety and Inspection Service on . . . Christmas Eve.  Other than a few lawyers and the CDC, who is paying attention to FSIS recall notices on Christmas Eve?  Or the following day?  Or really any day for the rest of the year?  And for that matter, on New Year's day too?  Virtually nobody, particularly not a very significant percentage of the food consuming public. 

This kind of information should not come on Christmas Eve, Friday night, or any other time of the year clearly designed to lessen the flow of information to the public, thereby protecting the interests only of the business that manufactured or sold the contaminated product.  Eddie Gehman Kohan said it much better on her blog, Obamafoodorama.com, posing the question "How is it possible that a blogger notifies the public of a new Class I (you could die) recall of 1,240,000 pounds of meat before USDA does?":

It's a grim situation when a private citizen is more on the ball than the federal agency that's supposed to be managing national food safety concerns (CDC's own e mail heads-up about the outbreak included no information, except that a product sold nationally was contaminated with Salmonella Montevideo).

If the answer to these valid questions is that notifying the public will encourage lawsuits, or make them easier to prove, the failure to do so is only going to allow outbreaks to happen.  And that's when the lawyers come in. 

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The Rhode Island Department of Health announced today that recent test results strongly suggest black pepper is the source of the Salmonella outbreak associated with Daniele Inc. salami.  According to the CDC, the outbreak has sickened at least 207 people in 42 states.

Daniele purchased black pepper from two different distributors (Mincing Oversees Spice Company and Wholesome Spices) who buy imported black pepper. Samples of pepper from both distributors have tested positive for Salmonella. All other tests of employees and the facilities are negative at this time. These findings are consistent with Daniele Inc.’s history of no Salmonella findings by in-house testing and USDA periodic testing. No additional food items have been added to the recall list.

As part of the outbreak investigation, it was determined that both distributors who supplied black pepper to Daniele imported pepper from common sources.

“These recent findings show that black pepper used during the manufacturing process at Daniele was the likely source of this outbreak,” said Director of Health David R. Gifford, MD, MPH. “This outbreak only underscores the importance of closely monitoring food that is imported from other countries as they may not have the same food safety standards as we do.”

Adding even more concern to an already devastating outbreak, a spokesperson for the Rhode Island Department of Health indicates that some of the outbreak victims don't have a known exposure to salami.  What does this mean?  Bad news for the american consumer.  If there are lots of people out there who have been sickened by a strain of Salmonella that genetically matches the strain on Daniele Inc salami, there is a high likelihood that plain old pepper, or pepper on foods other than salami, is making people ill too. 

What needs to happen now is that both suppliers of black pepper to Daniele Inc.--Mincing Oversees Spice Co. and Wholesome Spice--need to tell the government and everybody else who they distributed potentially contaminated pepper to.  Pepper is a product with a long shelf life, and is ubiquitous in every home.  This makes it a particularly risky food when there is a possibility that it is contaminated. 

Oversees Spice and Wholesome:  do what's right.  If your products and sales are traceable, as they should be, then tell the public where the potentially contaminated product went.  You may be facing multiple lawsuits now, but there will be many more to come if this outbreak continues to grow. 

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