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

Seattle Times staff reporter, Maureen O' Hagen,  writes in today's paper about the role our firm, Marler Clark, played in the recent WinCo Foods meat recall related to potential E. coli O157:H7 contamination. Positive E. coli O157:H7 test results revealed in a study that Marler Clark has commissioned revealed the contamination:

The E. coli came to light not because of testing by the government or by WinCo or its suppliers. Instead, it was because a Seattle lawyer is conducting a private study, testing ground beef from retailers all over the country.

"I've spent about a half-million dollars on this project," attorney Bill Marler said. Clients represented by Marler's firm have won more than $500 million in settlements from companies whose food sickened them.

Marler set out, in 2008, to prove a point: that certain pathogens could be in your burgers because of a loophole in government regulations.

Most of the time, when you hear about E. coli, it's a strain known as O157:H7. Under government regulations, O157 is an "adulterant" in ground beef, which means processors have to test for it. If the meat tests positive, it can't be sold.

But there are other potentially harmful strains of E. coli, too — O26, O111, O103 — and they can cause illness just as serious as O157, including diarrhea, kidney failure, and even death. (Cooking meat well-done should kill the pathogens.)

For a number of reasons, however, these bugs aren't labeled as "adulterants" under government regulations so processors don't have to test for them. The bottom line is, since processors aren't testing for them, you could be eating them.

Last October, Marler petitioned the government to include these bugs in its list of "adulterants." If he succeeds, beef processors will have to conduct additional testing. But if pathogens do slip through and people get sick, it also could make it easier for Marler to sue.

Waiting for a decision, he took an unprecedented step: private testing.

"This is clearly something the government should be doing," he said. "This is stuff, frankly, I think retail stores should be doing. They're the ones that could put the pressure on the manufacturers."

He hired a well-regarded local scientist to test grocery-store ground beef around the country. So far, they've tested 4,700 samples and found about 1.9 percent contain the non-O157 E. coli strains they were looking for, Marler said.

To him, that argues for regulation.

Periodically, he'd also been testing for the more well-known E. coli O157. That's when Marler said they found two contaminated packages at a WinCo store in Modesto, Calif. Because O157 is regulated, they felt they should report it to WinCo.

"It was a call out of the blue from a lab that we hadn't hired and wasn't connected with a government study," said Michael Read of WinCo. The company voluntarily recalled all ground beef sold over a 13-day period, ending April 9.

WinCo has stores in six Western states, including Washington. No human illness has been linked to the recalled ground beef.

Meanwhile, Marler has been hammering government regulators, and is impatient for a decision.

J. Glenn Morris, director of the Emerging Pathogens Institute at the University of Florida, says that while Marler has a valid point — government should address this issue — it's not quite so simple. Not all of these non-0157 E. coli bacteria carry the genes that make them harmful to humans, he said.

"This is, in part, why the regulatory process has been going somewhat slowly," he said. "Because there are uncertainties."

 

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In 1996, the USDA's Food Safety and Inspection Service established the HACCP (hazard analysis and critical control points) rule to verify that establishments have consistent process control for preventing, eliminating, or reducing the contamination of raw meat and poultry products with disease-causing bacteria like Salmonella, E. coli O157:H7, and campylobacter.  The rule, in part, sets performance standards for foodborne pathogens that slaughter establishments, and establishments that produce raw ground products, need to meet.  

The FSIS recently released its 2009 progress report for Salmonella, specifically, on raw meat and poultry products:

In calendar year 2009, FSIS analyzed 29,116 verification samples across eight meat and poultry product classes with the following percent positive rate of Salmonella per product class: broilers (7.2%), market hog (2.3%), cow/bull (0.6%), steer/heifer (0.2%), ground beef (1.9%), ground chicken (18.2%), ground turkey (10.7%) and turkey (3.8%).

Sounds like a lot of salmonella, particularly on broilers, ground chicken, and ground turkey.  As for broilers, the 7.2% contamination rate is actually a reduction, down from 7.3%, 8.5%, and 11.4% in 2008, 2007, and 2006, respectively.  Ditto for ground chicken and ground turkey, though the percentage of those raw products that are contaminated remains quite high.  The figure below tracks the incidence of salmonella in raw product over the course of the last decade.

 

 

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The Associated Press and New York Times just reported on the impetus behind the testing that caused WinCo to issue its large-scale meat recall:  us.  The positive tests were generated during a study that Marler Clark had comissioned on the presence of E. coli in retail beef samples.  The Times reports:

A ground beef recall that has expanded to WinCo Foods stores in six Western states was prompted by a law firm's investigation of contaminated beef products.

Saying the meat could be contaminated with E. coli, California officials issued the recall Sunday for WinCo Foods fresh ground beef that was packaged in Styrofoam trays at the stores and marked with sale dates from March 28 to April 9. The warning covers about 70 stores in California, Idaho, Nevada, Oregon, Utah and Washington.

The announcement expanded a voluntary recall last week at one store in Modesto, Calif. California officials say an additional sample from that store tested positive for E. coli Friday, prompting the expanded recall. No illnesses have been reported.

The supermarket chain learned about the bacterial contamination from an independent lab that was conducting a nationwide survey of ground beef for Marler Clark, a Seattle law firm specializing in food-borne illness cases.

The ground beef likely came from one of two national beef companies that supply many grocery stores, said Michael Read, WinCo Foods vice president of public and legal affairs.

WinCo has no reason to believe any ground beef that was sold was contaminated, he said. Read had no estimate of how many pounds of ground beef could be affected, but he noted that much of the meat has probably already been consumed and no illnesses have been reported.

''That's the truly nice thing,'' he said. ''We've recalled all ground beef from all stores, even though there's only a suggestion that there's a problem with one store, but we want to do everything possible to protect the public.''

Read said WinCo is cooperating with the investigation by California and federal officials. 

Bill Marler represented more than 100 victims in the 1993 Jack in the Box E. coli outbreak that killed four children. He commended WinCo Foods for issuing the recall, given that the information came from a private study.

''They certainly could have pushed back and said, 'What is this, it's a lawyer doing testing in a lab in Seattle,'' he said. ''They could have taken the much less pro-consumer point of view, because obviously this is not something a company wants to do. Under the circumstances, I certainly appreciate what they did.''

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On February 12, 2010, Huntington Meat Packing, Inc., expanded its January 18, 2010 beef recall to include approximately 4.9 million pounds of beef and veal products that it produced in 2009 and the first few days of this year. This expanded recall brings the grand total of beef products recalled since November 2009 (just 3 and a half months) to 5,672,000 pounds. 

The expansion of the Huntington Meat recall is remarkable for both its size and the fact that it occurred based on evidence gathered during an ongoing criminal investigation being conducted by the Office of the Inspector General (OIG) with assistance from FSIS. This evidence shows that the products subject to this recall expansion were produced in a manner that did not follow the establishment's Hazard Analysis and Critical Control Points (HACCP) plan. A HACCP plan describes the process controls an establishment must take to prevent food safety hazards and create a safe and wholesome product. The investigation has uncovered evidence to show that the food safety records of the establishment cannot be relied upon to document compliance with the requirements.

This recall expansion continues the disturbing trend of major meat recalls over the last several months.  On February 4, West MissourI Beef, LLC, a Rockville, Missouri beef company, recalled 14,000 pounds of boneless beef products due to potential E. coli O157:H7 contamination. 

On January 11, 2010, Adams Farm Slaughterhouse, LLC., an Athol, Mass., stablishment, recalled approximately 2,574 pounds of beef products due to potential E. coli O157:H7 contamination. The recall occurred in the wake of an epidemiological investigation into the E. coli illness of at least one Massachusetts resident.

On Christmas Eve 2009, National Steak and Poultry recalled at least 124 tons of mechanically tenderized beef products. The National Steak and Poultry outbreak caused at least 21 E. coli O157:H7 illness in 16 states, including nine hospitalizations and one case of HUS.

And in November 2009, ground beef from a New York ground beef company called Fairbank Farms was recalled due to E. coli O157:H7 contamination. That outbreak caused resulted in 26 E. coli O157:H7 illnesses, nineteen hospitalizations, and five who developed hemolytic uremic syndrome (HUS).

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Marler Clark filed a lawsuit today on behalf of Alice Smith against Fairbank Farms in Federal District Court in Maine.   Ms. Smith, 88 years old, was hospitalized for weeks with an E. coli O157:H7 infection after consuming ground beef contaminated with the bacteria produced by Fairbank.

In late October 2009, Fairbank Farms recalled 545,699 pounds of ground beef contaminated with toxic E. coli O157:H7. A joint investigation between the Centers for Disease Control (CDC), the Food Safety and Inspection Service (FSIS), and several state health departments determined that the contaminated meat was responsible for 2 deaths and at least 25 E. coli illnesses in 10 states, most of them in New England.

Ms. Smith was hospitalized for several weeks, during which time she suffered from renal failure.  She has not returned to her prior state of health.  

Marler Clark previously filed lawsuits in Maine and Massachusetts on behalf of other victims of the Fairbank Farm outbreak.

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West Missouri Beef, LLC has voluntarily recalled 14,000 pounds of boneless beef products due to potential contamination by E. coli O157:H7.  USDA's Food Safety and Inspection Service (FSIS) announced the Class I recall in a press release last night.  It is the third Class I recall this year, and the fifth since November, adding up to 1,636,000 pounds of beef products that have been recalled due to potential E. coli O157:H7 contamination in the last 3+ months.

What is a Class I recall?

A Class I recall, according to FDA definitions, should occur when "there is a reasonable probability that the use of or exposure to a violative product will cause serious adverse health consequences or death."  Class II and III recalls are appropriate only when there is a significantly lesser, or remote, risk of adverse health consequences, or when the health consequences are minor.  Due to its lethal capacity, E. coli O157:H7 is a bacteria that always requires a Class I recall.

What is E. coli O157:H7?

Escherichia coli (E. coli) are members of a large group of bacterial germs that inhabit the intestinal tract of humans and other warm blooded animals (mammals, birds). Newborns have a sterile alimentary tract which within two days becomes colonized with E. coli.

More than 700 serotypes of E. coli have been identified. The different E. coli serotypes are distinguished by their “O” and “H” antigens on their bodies and flagella, respectively. The E. coli serotypes that are responsible for the numerous reports of contaminated foods and beverages are those that produce Shiga toxin (Stx), so called because the toxin is virtually identical to that produced by another bacteria known as Shigella dysenteria type 1 (that also causes bloody diarrhea and hemolytic uremic syndrome [HUS] in emerging countries like Bangladesh) (Griffin & Tauxe, 1991, p. 60, 73). The best known and most notorious Stx-producing E. coli is E. coli O157:H7. It is important to remember that most kinds of E. coli bacteria do not cause disease in humans, indeed, some are beneficial, and some cause infections other than gastrointestinal infections, such urinary tract infections. This section deals specifically with Stx-producing E. coli, including specifically E. coli O157:H7.

Shiga toxin is one of the most potent toxins known to man, so much so that the Centers for Disease Control and Prevention (CDC) lists it as a potential bioterrorist agent (CDC, n.d.). It seems likely that DNA from Shiga toxin-producing Shigella bacteria was transferred by a bacteriophage (a virus that infects bacteria) to otherwise harmless E. coli bacteria, thereby providing them with the genetic material to produce Shiga toxin.

Although E. coli O157:H7 is responsible for the majority of human illnesses attributed to E. coli, there are additional Stx-producing E. coli (e.g., E. coli O121:H19) that can also cause hemorrhagic colitis and post-diarrheal hemolytic uremic syndrome (D+HUS). HUS is a syndrome that is defined by the trilogy of hemolytic anemia (destruction of red blood cells), thrombocytopenia (low platelet count), and acute kidney failure.

Stx-producing E. coli organisms have several characteristics that make them so dangerous. They are hardy organisms that can survive several weeks on surfaces such as counter tops, and up to a year in some materials like compost. They have a very low infectious dose meaning that only a relatively small number of bacteria, less than 50, are needed “to set-up housekeeping” in a victim’s intestinal tract and cause infection.

The Centers for Disease Control and Prevention (CDC) estimates that every year at least 2000 Americans are hospitalized, and about 60 die as a direct result of E. coli infections and its complications. A recent study estimated the annual cost of E. coli O157:H7 illnesses to be $405 million (in 2003 dollars) which included $370 million for premature deaths, $30 million for medical care, and $5 million for lost productivity (Frenzen, Drake, and Angulo, 2005).
 

What is Hemolytic Uremic Syndrome?

Post-diarrheal Hemolytic Uremic Syndrome (D+HUS) is a severe, life-threatening complication that occurs in about 10% of those infected with E. coli O157:H7 or other Shiga toxin (Stx) producing E. coli. D+HUS was first described in 1955, but was not known to be secondary to E. coli infections until 1982. It is now recognized as the most common cause of acute kidney failure in infants and young children. Adolescents and adults are also susceptible, as are the elderly who often succumb to the disease.

How did these otherwise harmless E. coli become such killers? It seems likely that DNA from a Shiga toxin producing bacterium known as Shigella dysenteriae type 1 was transferred by a bacteriophage (bacteria infected with a virus) to harmless E. coli bacteria, thereby providing them with the genes to produce one of the most potent toxins known to man. So potent, that the Department of Homeland Security lists it as a potential bioterrorist agent. Although E. coli O157:H7 are responsible for the majority of cases in America, there are many additional Stx producing E. coli that can cause D+ HUS.

The chain of events leading to HUS begins with ingestion of Stx producing E. coli (e.g., E. coli O157: H7) in contaminated food, beverages or through person to person transmission. These E. coli rapidly multiply in the intestines causing colitis (diarrhea), and tightly bind to cells that line the large intestine. This snug attachment facilitates absorption of the toxin into the circulation where it becomes attached to weak receptors on white blood cells (WBC) thus allowing the toxin to “ride piggyback” to the kidneys where it is transferred to numerous avid (strong) Gb3 receptors that grasp and hold on to the toxin. Organ injury is primarily a function of Gb3 receptor location and density. Receptors are probably heterogeneously distributed in the major body organs, and this may explain why some patients develop injury in other organs (e.g., brain, pancreas).

Once Stx attaches to receptors, it moves into the cell’s cytoplasm where it shuts down the cells’ protein machinery resulting in cellular injury and/or death. This cellular injury activates blood platelets and the coagulation cascade which results in the formation of clots in the very small vessels of the kidney resulting in acute kidney injury and failure. The red blood cells are hemolyized (destroyed) by Stx and/or damaged as they attempt to pass through partially obstructed microvessels. Blood platelets (required for normal blood clotting), are trapped in the tiny blood clots or are damaged and destroyed by the spleen.
 

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Counting Friday's sausage recall by Daniele International, Inc., food companies have recalled at least 2,880,000 pounds of meat products since November 2009 due to contamination by E. coli or Salmonella. 

Friday's recall:  (from FSIS press release)

Daniele International Inc., an establishment with operations in Pascoag and Mapleville, R.I., is recalling approximately 1,240,000 pounds of ready-to-eat (RTE) varieties of Italian sausage products, including salami/salame, in commerce and potentially available to customers in retail locations because they may be contaminated with Salmonella, the U.S. Department of Agriculture's Food Safety and Inspection Service (FSIS) announced today.

The Daniele Inc. sausage outbreak, due to contamination by Salmonella Montevideo, has caused at least 184 illnesses in residents of 38 states. 

On January 18, 2010, the USDA's food inspection branch (FSIS) announced the recall of 846,000 pounds of ground beef products produced by a California company called Huntington Meat Packing, Inc., due to potential contamination by E. coli O157:H7.

On January 11, 2010, Adams Farm Slaughterhouse, LLC., an Athol, Mass., establishment, recalled approximately 2,574 pounds of beef products that was potentially contaminated with E. coli O157:H7.  The beef was the cause of infection in at least one Massachusetts resident. 

On December 24, 2009 (The Christmas Eve sneak), an Oklahoma company called National Steak and Poultry recalled 248,000 pounds of tenderized beef products due to contamination by E. coli O157:H7.  The outbreak is known to have sickened at least 21 people in 16 states.  Last week, Marler Clark filed the first lawsuit arising from the outbreak on behalf of a Utah resident.

And in November 2009, A New York company called Fairbank Farms recalled 545,699 pounds of ground beef due to E. coli O157:H7 contamination. The outbreak caused resulted in 26 E. coli O157:H7 illnesses, nineteen hospitalizations, and five who developed hemolytic uremic syndrome (HUS). 

 

 

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Fox 6 News in Milwaukee reported today that the state of Wisconsin, with the aid of local health authorities, is investigating 6 E. coli O157:H7 illnesses in Belgium, Wisconsin.  Wisconsin has been hit hard by E. coli before.  Why is it that some states--Minnesota, Utah, and a list of 3 or 4 others--seem to be involved in many major E. coli O157:H7 outbreaks?

Forty-nine Wisconsin residents were sickened in the infamous spinach E. coli O157:H7 (and other serotypes) outbreak in August/September 2006.  (Actually, it was a call from the mother, in the second week of September, of TWO kids infected in the outbreak that helped us figure out exactly what was happening), as were multiple Minnesota residents.  In the Cargill E. coli O157:H7 outbreak in 2007, many Minnesota residents were sickened including Stephanie Smith.  And in the JBS E. coli O157:H7 outbreak in summer 2009, at least six Wisconsin residents were infected, including Joshua Rosploch, who developed HUS.  This is just a short list, but these several states (most prominently Wisconsin and Minnesota) truly have been at the epicenter of surveillance and detection of multiple major national outbreaks. 

Why?  Unlucky distribution of the implicated products?  Wisconsin and Minnesota residents eat more beef and bad produce? 

Many would say that the real reason doesn't have anything to do with plain old nebulous bad luck.  Instead, it happens because these states have surveillance, microbiological, and sanitation personnel who are among the most talented anywhere.  It is not mere coincidence that these states figure prominently in many outbreaks of foodborne disease.  

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Today, the USDA's food inspection branch (FSIS) announced the recall of 846,000 pounds of ground beef products produced by a California company called Huntington Meat Packing, Inc., due, of course, to potential contamination by E. coli O157:H7.  In addition to ground beef produced early this month (Jan 2010), the recall includes ground beef products produced as far back as February 19 to May 15, 2008, due to the concern that some of these products may still be frozen in consumers' homes.  For anybody keeping a running tally, with the addition of today's large recall, beef companies have recalled 1,640,000 pounds of beef products since November.  Its a little scary to think where this number may end up come December 2010. 

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FSIS reported today that Huntington Meat Packing Inc., a Montebello, Calif. establishment, is recalling approximately 864,000 pounds of beef products that may be contaminated with E. coli O157:H7.  Although the recall is Class I--i.e. associated with a very high risk to consumer health--there are no illnesses currently known to be associated with the potentially contaminated meat.  The recalled ground beef was produced between January 5, 2010, and January 15, 2010, and was shipped to distribution centers, restaurants, and hotels within the State of California.

The following products, consisting of all ground beef products produced by the plant from January 5, 2010 to January 15, 2010, are subject to recall:

40 lb. boxes of “Huntington Meats Ground Beef”
40 lb. boxes of “ HUNTINGTON MEAT PKG. INC. BEEF GROUND FOR FURTHER PROCESSING”
40 lb. boxes of “BEEF BURRITO FILLING MIX”
10 lb. boxes of “IMPERIAL MEAT CO. GROUND BEEF PATTY”
20 lb. boxes of “IMPERIAL MEAT CO. GROUND BEEF PATTY”
10 lb. boxes of “El Rancho MEAT & PROVISION ALL BEEF PATTIES”

Each box bears the establishment number "EST. 17967" inside the USDA mark of inspection on a label.

Interestingly, though, these are not the only products subject to the large recall.  FSIS investigation at Huntington Meat Packing, Inc., must have turned up some serious violations because the company is also recalling meat produced in 2008.  FSIS determined that the 2008 meat was adulterated because the ground beef products produced from February 19, 2008 to May 15, 2008 may have been contaminated with E. coli O157:H7.

As a result, the following products produced from February 19, 2008 to May 15, 2008, are subject to recall:

40 lb. boxes of “Huntington Meats Ground Beef”
40 lb. boxes of “ HUNTINGTON MEAT PKG. INC. BEEF GROUND FOR FURTHER PROCESSING”
40 lb. boxes of “BEEF BURRITO FILLING MIX”
10 lb. boxes of “IMPERIAL MEAT CO. GROUND BEEF PATTY”
20 lb. boxes of “IMPERIAL MEAT CO. GROUND BEEF PATTY”
10 lb. boxes of “El Rancho MEAT & PROVISION ALL BEEF PATTIES”

Each box bears the establishment number "EST. 17967" inside the USDA mark of inspection on a label.

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So how does the principle of strict liability--i.e. liability without regard to fault--which is applicable in foodborne illness cases, apply to bottles of Tylenol that make people sick?  The answer:  very well.

For some background, Johnson & Johnson today expanded its recall of various Tylenol products, which, like many food items, are regulated by the FDA, due to potential contamination with a substance that produces a chemical odor that has made a bunch of people ill with gastrointestinal symptoms.  (see primer on strict liability). 

Despite some differences in the way the fifty states apply the doctrine, strict liability holds manufacturers of defective products liable to people injured by the product defect.  It's pretty simply applied in food cases.  A beef company that produces ground beef, or any meat, contaminated with E. coli O157:H7 is liable to the people who become ill because contaminated ground beef is defective.  Similarly, a restaurant that serves a meal that became contaminated with Salmonella because an infected foodworker prepared it is liable to the customer who then contracts the disease.  In both situations, it does not matter whether the defendant (i.e. the beef producer and the restaurant) was negligent.  Simply making and selling contaminated food makes the defendant liable. 

Tylenol, whether the bottle it is sold in or the indvidual pills themselves, that is contaminated with a substance that makes people ill is also defective.  Johnson and Johnson is strictly liable to the people who have become ill, as would be the company that made the pallets that were contaminated with the substance that has made people sick.  Both produced a defective product in the eyes of the law.

This concept sounds offensive to some people. But when you pause for a moment to think where the safety of our food and pharmaceutical supply might be without the media attention that these recalls and outbreaks have gotten, and without lawsuits that put the immense costs of illnesses and medical treatment squarely back in the food producer's hands, the concept begins to seem a little less grim.

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Federal and Massachusetts State officials continue to investigate the circumstances that led to the recall of 2,574 pounds of beef products from Adams Farm in Athol, Massachusetts.   The USDA announced the recall on Monday, January 11, saying the recall resulted from a ground beef sample that tested positive for E. coli O157:H7 during an illness investigation.  

The products involved were not Adams' own retail brand, but rather ground beef and other beef products produced at Adams' slaughterhouse for three farms/retailers.  The USDA stated:

The following products are subject to recall:

1,025-pounds of "Beef Cuts and Ground" packed for Mazzarese. (Warren, MA)
697-pounds of "Beef Cuts and Ground" packed for Side Hill Farm. (Ashfield, MA)
852-pounds of "Beef Cuts and Ground" packed for Sweet Water Farm. (Petersham, MA)

A follow up article in the Worcester Telegram yesterday focused on investigators' attempts to determine at which farm the E. coli O157:H7 "originated"  The two farms whose representatives provided comment for the story both indicated that they did not think their farm was the culprit:

Nicole Burton, a manager at Sweetwater Farm in Petersham, said state and federal health officials have not determined whether the beef came from a farm or the slaughterhouse.   “I want to be clear that tests have not been done on our farm or investigated,” Ms. Burton said.

Sidehill farm representatives had a similar message:

Amy Klippenstein, owner of Sidehill Farm in Ashfield, said someone from the USDA told her that someone got sick from the beef from an animal at a different farm.  “We have all the beef, and none of it has been sold,” Ms. Klippenstein said. “We are not concerned about people eating our beef.” 

New information in the Telegram  today does seem to point toward the third farm as the original source of the implicated beef:

Jennifer L. Manley, a spokeswoman for the state Department of Public Health, said that on Jan. 7, 13 meat samples from a family that received a quarter cow share from a farm in Warren [presumably Mazzarese] were tested. She said ground beef samples and a representative selection of the intact cuts tested positive for E. coli. DNA analysis needed to determine where the animal came from will not be completed until either tomorrow or Monday. 

The focus on the source of the actual cattle is interesting.  It is a well known fact that a significant portion of cattle harbor E. coli O157:H7.   The regulations and HACCP plans in place to eliminate E. coli O157:H7 from retail products are not currently aimed or designed at preventing such contamination at the farm level.  To the contrary these regulations and safety plans essentially ask that slaughterhouses work under the assumption of the presence of E. coli O157:H7 in cattle, and then call for steps to prevent the contamination of meet with the bacteria during the slaughtering process.

In other words, presumptively identifying the farm where the E. coli O157:H7 came from is not the end of the story.   Rather, what needs to be determined is why was this bacteria allowed access to finished raw product during the manufacturing process.  

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 Today's announcement by USDA-FSIS of another beef recall due to E. coli O157:H7 contamination bodes poorly for this new year.  Adams Farm Slaughterhouse, LLC., an Athol, Mass., establishment, is recalling approximately 2,574 pounds of beef products that may be contaminated with E. coli O157:H7.  The recall occurs in the wake of an epidemiological investigation into the E. coli illness of at least one Massachusetts resident.  The recall also marks the third beef recall in the last three months due to E. coli O157:H7 contamination.

In November 2009, ground beef from a New York ground beef company called Fairbank Farms was recalled due to E. coli O157:H7 contamination. That outbreak caused resulted in 26 E. coli O157:H7 illnesses, nineteen hospitalizations, and five who developed hemolytic uremic syndrome (HUS).   

And on Christmas Eve 2009, National Steak and Poultry recalled at least 124 tons of mechanically tenderized beef products.  The National Steak and Poultry outbreak caused at least 21 E. coli O157:H7 illness in 16 states, including nine hospitalizations and one case of HUS.   

Together, the recalls and outbreaks linked to beef from Adams Farm, National Steak and Poultry, and Fairbank Farms, has caused at least 48 illnesses in nationally.  At least 776,000 pounds of beef have been recalled in total in the three outbreaks.  

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Urinary tract infections (UTI) are a serious health problem affecting millions of people each year.  In fact, they are the second most common type of bodily infection, accounting for about 8.3 million doctor visits annually.  Escherichia coli--a family of bacteria that includes E. coli O157 and other shiga-toxin producing strains, as well as certain generic strains that can reside quite peacefully in the human colon--is the most common cause of urinary tract infections.  New research suggests that, even for strains associated with UTI rather than gastrointestinal disease, meat may be the ultimate reservoir. 

Researchers from Denmark conducted the study, and will soon publish the results in the publication "Foodborne Pathogens and Disease."  In the study, abstract available here, researchers studied the serogroups and antimicrobial resistance characteristics of E. coli isolates (pure bacteria examined for genetic characteristics and uniqueness) from various sources, including community-dwelling humans, broiler chicken meat, broiler chickens, pork, and pigs.

A total of 964 geographically and temporally matched E. coli isolates from UTI patients (n=102), community-dwelling humans (n=109), Danish (n=197) and imported broiler chicken meat (n=86), Danish broiler chickens (n=138), Danish (n=177) and imported pork (n=10), and Danish pigs (n=145) were tested for phylogroups (A, B1, B2, D, and nontypeable [NT] isolates) and antimicrobial susceptibility. Phylogroup A, B1, B2, D, and NT isolates were detected among all groups of isolates except for imported pork isolates. Antimicrobial resistance to three (for B2 isolates) or five antimicrobial agents (for A, B1, D, and NT isolates) was shared among isolates regardless of origin.

Using cluster analysis to investigate antimicrobial resistance data, the researchers found that UTI isolates always grouped with isolates from meat and/or animals. Researchers detected B2 and D isolates, that are associated to UTI, among isolates from broiler chicken meat, broiler chickens, pork, and pigs. Although B2 isolates were found in low prevalences in animals and meat, these sources could still pose a risk for acquiring uropathogenic E. coli. Further, E. coli from animals and meat were very similar to UTI isolates with respect to their antimicrobial resistance phenotype. The researchers believe that the study provides support for the hypothesis that a food animal and meat reservoir might exist for UTI-causing E. coli.

 

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 The CDC did not provide any updated statistics today about the number of people sickened in the ongoing E. coli O157:H7 outbreaks linked to ground beef (still 26 illness in 11 states, with 2 deaths and 3 HUS), but the Food Safety and Inspection Service (FSIS) did update the list of retail stores who may have received contaminated ground beef.  The list is long and comprehensive and, to me at least, suggests that the number of people who may be involved in at least the Fairbank Farms outbreak may continue to grow.  See the FSIS update here.

 Here is the short version:  

Shaws in Connecticut, Maine, Massachussetts, Rhode Island, New Hampshire and Vermont

Price Chopper in Connecticut, Pennsylvania, Rhode Island, and Vermont

Acme in Delaware, Maryland, New Jersey, and Pennsylvania

Giant in Pennsylvania

Pathmark in Delaware, New Jersey, New York, and Pennsylvania

Food Lion in North Carolina, South Carolina, Virginia and West Virginia

Trader Joe in Connecticut, Delaware, Maryland, Massachussetts, New Jersey, New York, and North Carolina

BJ in New Hampshire, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, Virginia

Martins in Maryland, Pennsylvania, Virginia, and West Virginia

Great American in New York

IGA in Maine, New York, and Vermont

Surefresh in Delaware, Maryland, and Pennsylvania

Grand Union in Connecticut and New York

A&P in New Jersey and New York

Waldbaum in New York

C&S in Vermont

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 The CDC reports today that there are currently only 26 illnesses in 11 states that are linked to the Fairbank Farms E. coli O157:H7 ground beef outbreak and recall.  This represents a reduction in the number of cases attributed to the outbreak by two.  

Here is the outbreak rundown:

On October 31, 2009, FSIS issued a notice about a recall of over 500,000 pounds of beef products from Fairbank Farms that may be contaminated with E. coli O157:H7. Health officials in several states who were investigating a cluster of E. coli O157:H7 illnesses, with isolates that match by “DNA fingerprinting” analyses, found that most ill persons had consumed ground beef, with several purchasing the same or similar product from a common retail chain. At least some of the illnesses appear to be associated with products subject to these recalls. A sample from an opened package of ground beef recovered from a patient's home was tested by the Massachusetts Department of Health and yielded an E. coli O157:H7 isolate that matched the patient isolates by DNA analysis.

The cluster includes 26 persons from 11 states infected with matching strains of E. coli O157:H7. The number of ill persons identified in each state is as follows: California (1), Connecticut (4), Massachusetts (8), Maryland (1), Maine (2), Minnesota (1), New Hampshire (4), New Jersey (1), New York (1), Pennsylvania (2), and Vermont (1). Of these, the genetic association of 13 human isolates and the product isolate have been confirmed by an advanced secondary DNA test; secondary tests are pending on others. Depending on the results of continuing laboratory testing and ongoing case finding, the number of persons determined to be in this cluster may increase or decrease.

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Earlier today, the CDC posted the following update on the E. coli O157:H7 ground beef outbreak and recall on its website:

Several state health departments, CDC, and the United States Department of Agriculture's Food Safety and Inspection Service (USDA-FSIS) are investigating a multi-state outbreak of Escherichia coli O157:H7 infections. On October 31, 2009, FSIS issued a notice about a recall of 545,699 pounds of beef products from Fairbank Farms that may be contaminated with E. coli O157:H7. Health officials in several states who were investigating a cluster of E. coli O157:H7 illnesses, with isolates that match by “DNA fingerprinting” analyses, found that most ill persons had consumed ground beef, with several purchasing the same or similar product from a common retail chain. At least some of the illnesses appear to be associated with products subject to these recalls. A sample from an opened package of ground beef recovered from a patient's home was tested by the Massachusetts Department of Health and yielded an E. coli O157:H7 isolate that matched the patient isolates by DNA analysis.

The cluster includes twenty-eight persons from 12 states infected with matching strains of E. coli O157:H7. Of these, the genetic association of 7 human isolates and the product isolate have been confirmed by an advanced secondary DNA test ; secondary tests are pending on others. The number of ill persons identified in each state is as follows: California (1), Connecticut (4), Massachusetts (8), Maryland (1), Maine (2), Minnesota (1), New Hampshire (4), New Jersey (1), New York (1), Pennsylvania (2), South Dakota (2), and Vermont (1).

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It's not much good to announce the recall of 4,000 pounds of ground beef for E. coli O157:H7 contamination when no one knows where the beef went.  According to this report, state health officials in Texas are working with the owner of Culebra Meat Market No. 1 in San Antonio to determine which restaurants purchased meat there that may be contaminated with E. coli O157:H7.  The report states that:

State health services officials said a routine lab test detected E. coli O157:H7 in samples collected from the meat company.  The volume of beef in recall is about 4,000 pounds, the Texas Department of State Health Services said in a statement, and includes three cuts: beef asada, beef stew meat and ground beef produced by the company from Oct. 2 through Saturday.

Likely because there is uncertainty as to where the meat went, a list of restaurants that may have purchased the beef has not been released.  This is a common problem with recalls that greatly reduces their effectiveness in getting full information to consumers.

The products involved, according to the report:

• Products sold to consumers at the company's retail store were packaged in various weights and wrapped in white butcher paper with no markings.
• Products sold to restaurants were packed in 10-pound boxes labeled with the company and product names and lot codes 100209 through 101709. The boxes have the inspection label “TEXAS INSP. & PSD. 740” located inside an outline of the state of Texas.

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The presence of antibiotic resistant Salmonella at the slaughterhouse may be one thing, but its presence in retail meat (i.e. its final stop before consumption) is yet another.  So how much retail meat (ground turkey, chicken, beef, and pork) is actually contaminated at the point of purchase?  And with what? 

An article in the New England Journal of Medicine reported on a study that answers these specific questions.  And the results of the study provide only more grist for the mill regarding the current debate over the non-adulterant status of antibiotic resistant Salmonella and other pathogens.  Click on image below to view entire article.

The scientists who performed the study selected 200 samples of ground meat (ground turkey, chicken, beef, and pork) being offered for sale at three grocery stores in the greater Washington, DC area:  98 from one store, 54 from the second, and 48 from the third.  Testing revealed an alarming level of contamination . . . in my opinion.  Salmonella isolates were recovered from 41 of the 200 samples, with 4 samples testing postive for more than one strain of Salmonella.  In total, 13 different strains accounted for the 45 Salmonella isolates.  Adding to the level of concern, and hopefully the debate over the USDA/FSIS definition of "adulterant," was that 38 of 45 isolates (that's 84%) displayed resistance to at least one antibiotic, and 24 of 45 isolates (53%) displayed resistance to at least three antibiotics. 

Constructive dialogue on this important issue can only help delineate the arguments, both for and against expanding the USDA/FSIS's current definition of adulterant to include more bugs that kill people.  I guess you could say i'm biased because the people who have been injured or killed, or their families, are the folks we work for.  But even putting that aside, doesn't it make just plain good sense that something as harmful, and apparently as prevalent, as antibiotic resistant Salmonella and other dangerous pathogens should be considered "adulterants" on the foods we consume?  What are the counter arguments?   I know they can't be that this is just an issue of passing concern.  As one commenter on one of my recent blog posts puts it:   

It is unlikely we can reverse this process or reduce their existance by not using antibiotic resistant bacterial. Once these new organism is formed they only multiply and spread. You can see what happened with HA-MRSA since 1980s.

So what are the counter arguments?

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     Blatantly (and self-servingly) rewriting history, in Friday’s Wall Street Journal, the USDA is reported as stating the following:

The USDA has been considering for more than a year a policy change that would allow whole beef cuts to be considered "adulterated" -- and thus subject to recall -- even if they aren't "intended for use in ground beef," according to Daniel Engeljohn, a deputy assistant administrator for USDA's Food Safety and Inspection Service, or FSIS.
The policy change is still under consideration, he said.

See Bill Tomson, U.S. Beef Safety Plan Languishes Amid New Illnesses, Wall Street Journal, July 10, 2009, see: online.wsj.com/article/SB124725846273124757.html

     Despite the fact that it has been pressed on the problem for over eight years, the USDA is now trying to act as if the serious risk of E. coli O157:H7 contamination of primal and subprimals, so-called intact cuts of meat, is a recent problem that is currently subject to ongoing policy review. This, to put it mildly (and aptly), is a bunch of cow-sh*t. Confusion has reigned since the FSIS E. coli O157:H7 policy on intact vs. non-intact meat was first announced on January 19, 1999. See 64 Fed. Reg. No. 11, 2803-05, see ftp.resource.org/gpo.gov/register/1999/1999_2805.pdf (hereinafter “Intact Meat Policy Statement)”.

For a complete and accurate history of how long this issue has been before the USDA, without it taking any action to address the risk, please click on the Continue Reading link.

    Following Texas Food Industry v. Espy, which upheld the USDA decision to treat E. coli O157:H7 as an adulterant in raw meat “in light of the common cooking practices of most Americans,” the Agency stated in its Non-Intact Meat Policy Statement, published in the Federal Register on January 19, 1999, that it "believes the status under Federal Meat Inspection Act (FMIA) of beef products contaminated with E. coli O157:H7 must depend on whether there is adequate assurance that subsequent handling of the product will result in food that is not contaminated when consumed." Intact Meat Policy Statement at 2803.

   In its policy statement, the Agency provided no statutory basis for its authority to define adulteration on a product-specific basis. Nor did the Agency expressly state that E. coli O157:H7 was no longer an adulterant per se. Instead, it stated that:

[USDA] believes that with the exception of beef products that are intact cuts of muscle that are to be distributed for consumption as intact cuts, an E. coli O157:H7-contaminated beef product must not be distributed until it has been processed into a ready-to-eat product—i.e., a food product that may be consumed safely without any further cooking or other preparation. Id at 2804.

Accordingly, based on the input it received, the Agency announced that it would consider expanding its sampling and testing program to include non-intact beef products or intact cuts of meat that are to be further processed into non-intact cuts. Id.

   The corollary of the Agency’s position was that, while it would treat non-intact meat as “adulterated” if contaminated with E. coli O157:H7, it would not treat intact meat as “adulterated” if it was identically contaminated. Id. (“such intact products that are to be distributed for consumption as intact cuts are not deemed adulterated.”) Essentially, the Agency had therefore created an exception to its E. coli O157:H7 policy for an entire product-category—intact meat. The Agency defined the category by exclusion as “cuts of muscle include steaks, roast, and other intact cuts (e.g., briskets, stew beef, and beef ‘cubes for stew’, as well as thin-sliced strips of beef for stir-frying) in which the meat interior remains protected from pathogens migrating below the exterior surface.” Id.

   The definition of “intact meat” is explicit in its reliance on the deliberations of the National Advisory Committee on Microbiological Criteria for Foods (NACMCF) and the work it did for FDA and USDA in their joint development of the 1999 Food Code. One such task was to determine the “appropriate cooking temperatures for, among other things, intact beef steaks for the control of vegetative enteric pathogens.” As stated in the Non-Intact Meat Policy Statement regarding intact product:

Due to a low probability of pathogenic bacteria being present in or migrating from the external surface to the interior of beef muscle, cuts of intact muscle (steaks) should be safe if external surfaces are exposed to temperatures sufficient to effect a cooked color change. In addition, the cut (exposed) surfaces must receive heat to effect a complete sear across the cut surfaces . . . . The Committee’s definition of “Intact Beef Steak” limited the applicability of this conclusion to “[a] cut of whole muscle[s] that has not been injected, mechanically tenderized, or reconstructed.”Id. at 2803-04. See also 1999 Model Food Code, 3-201.11(E), at vm.cfsan.fda.gov/~dms/fc99-3.html (defining “whole-muscle intact beef steaks” as those “that are intended for consumption in an undercooked form without a consumer advisory”).

Therefore, intact meat is any meat that is not non-intact, and vice versa.

   Recognizing the utility of excluding entire product-categories from the USDA’s E. coli O157:H7 policy, the meat industry soon began to press the Agency to also exclude mechanically-tenderized meat from the policy. The meat industry sponsored research intended to show the safety of this second category of meat products. Wendy Warren, Characterization of E. coli O157:H7 on Subprimal Beef Cuts Prior to Mechanical Tenderization: Project Summary (Aug. 2002), at www.beef.org/uDocs/E.%20coli%20Mech%20Tenderization_Warren_6_6_03.pdf (stating on title page “Funded by America’s Beef Producers”).

   In response to meat industry lobbying, the Agency asked NACMCF to “answer several questions with regard to E. coli O157:H7 in blade-tenderized, non-intact beef.” E. Coli O157:H7 Contamination of Beef Products, 67 Fed. Reg. 62,325, 62,333 (Oct. 7, 2002). For its part, “NACMCF concluded that non-intact, blade tenderized beef steaks could potentially contain an infective dose of E. coli O157:H7 in their interior.” Id. As a result, on October 7, 2002, USDA announced in a policy statement that:

FSIS is reviewing the NACMCF report and its draft risk assessment for E. coli O157:H7 in intact and non-intact (blade tenderized) steaks and will consider NACMCF’s conclusions and the conclusions from the risk assessment with regard to the policy announced for non-intact products in the January 19, 1999 Federal Register . . . . At this time, FSIS believes that the public health hazard presented by E. coli O157:H7 and the prevalence of E. coli O157:H7 in these products continues to support application of the policy announced in the January 19, 1999, Federal Register. There is a lack of data on industry and consumer practices for cooking pinned, needled, and blade tenderized steaks (e.g., grilling, oven broiling, or frying) and a lack of data on the proportion of [meat] industry outlets and consumers that prepare these products according to each of these different methods. If FSIS obtains substantial and reliable data showing that [meat] industry and consumers customarily cook pinned, needled, and blade tenderized products in a manner that destroys E. coli O157:H7, FSIS would consider modifications to its policy . . . in these products. Id. at 62,334.

   As a result, the focus continued to be placed upon cooking and nothing else. The extremely low infectious-dose made cross-contamination as big a risk as undercooking. At least in the case of cross-contamination risk, the Agency remained steadfast in its position.

   Two years later an outbreak of E. coli O157:H7 infections was linked to non-intact blade tenderized steaks. Ellen Swanson Laine et al., Outbreak of Escherichia coli O157:H7 Infections Associated with Nonintact Blade-Tenderized Frozen Steaks Sold by Door-to-Door Vendors, 68 J. Food Protection (No. 6) 1198, 1200, 1202 (2005) (describing an outbreak in which one 52 year-old HUS victim was hospitalized for 25 days and suffered permanent brain injury, and concluding that the “USDA should consider reevaluating the microbiologic hazards of technologies used in the production of nonintact steaks”). Nevertheless, the Agency continued to consider further narrowing the products subject to its E. coli O157:H7 per se adulteration standard. After having first set forth a zero-tolerance policy for this deadly pathogen, the Agency proceeded with an approach designed to satisfy the meat industry rather than protect the public from a known risk.

   This risk became even better known in 2000 when, in Milwaukee, there were over 62 lab-confirmed E. coli O157:H7 infections linked to a Sizzler restaurant where cross-contamination from intact cuts of meat caused other ready-to-eat food items to turn deadly. Tragically, one young child, Brianne Kriefall died as a result of her infection.

Wisconsin health investigators later concluded Brianna Kriefall died from eating watermelon that Sizzler workers had inadvertently splattered with juices from tainted sirloin tips. The meat came from a Colorado slaughterhouse where beef repeatedly had been contaminated with feces, [E. coli]'s favorite breeding ground. Federal inspectors had known of the problems at the plant and had documented them dozens of times. But ultimately they were unable to fix them.).

Joby Warrick, An Outbreak Waiting to Happen: Beef-Inspection Failures Let In a Deadly Microbe, Wash. Post, Apr. 9, 2001, at A1.

   In the resulting litigation, the defendant meat company, Excel Meat Corporation, a subsidiary of Cargill, argued that it could not be held legally liable for the injuries because the USDA authorized it to sell intact cuts of meat contaminated with E. coli O157:H7, citing the Intact Meat Policy Statement discussed above. The trial court agreed and dismissed all claims, but the Court of Appeals reversed, finding, among other things, that the USDA had no jurisdiction to treat E. coli O157:H7 as an adulterant on some meat but not others. The court also found that the actual policy of the USDA was a zero-tolerance one, notwithstanding the Agency’s conflicting statements regarding enforcement policy to the contrary. Estate of Kriefall ex rel. Kriefall v. Sizzler USA Franchise, Inc., 671 N.W.2d 849 (Wis. 2003) (denying petition for review); Excel Corp. v. Estate of Kriefall, 541 U.S. 956 (2004) (denying Excel’s petition for writ of certiorari).

   While the litigation and appeals were pending, I filed a petition with the USDA seeking a clarification of its policy on intact meat and E. coli O157:H7. A copy of that Petition can be found here: www.fsis.usda.gov/OPPDE/Comments/02-022N/00-022N-12.pdf Among the many points made in the Petition is one in which I emphasized that substantial amounts of intact meat end up being used to make ground beef at retail. This, I argued, was contrary to the Agency’s own stated position that the policy was to allow the pathogen to be present only if the meat was to be distributed for consumption as an intact cut. This was plainly not the case, however, with intact cuts sold to restaurants and grocery stores.

    In response to my Petition, the USDA simply punted, stating that “because the issues raised in your petition are related to the matters discussed in the October 7, 2002 notice [67 FR 62325], the Agency will consider your petition in conjunction with the comments received in response to that document.” And that was over five years ago.

   The final bit of history that gives lie to Mr. Englejohn’s statements concerning supposedly ongoing policy review is the fact that the FSIS issued a draft risk assessment report on E. coli O157:H7 and ground beef, titled Preliminary Pathways and Data for a Risk Assessment of E. coli O157:H7 in Beef, on October 28, 1998—over ten years ago. See www.fsis.usda.gov/Ophs/ecolrisk/prelim.htm  It then submitted the draft for scientific peer-review to the National Academy of Sciences. This review found numerous shortcomings, including, not surprisingly, the complete failure to take into account the risk of cross-contamination as a vehicle of infection. See, e.g. National Academy of Science, Escherichia coli O157:H7 in Ground Beef: Review of a Draft Risk Assessment, Executive Summary, at 7 (noting that the lack of data concerning the impact of cross-contamination of E. coli O157:H7 during food preparation was a flaw in the Agency’s risk-assessment), available at www.nap.edu/books/0309086272/html/

   Then, as announced in October 7, 2002 notice (the one cited in response to my Petition), the USDA noted that, “On November 5, 2001, FSIS announced the availability of and requested comments on its draft risk assessment for E. coli O157:H7 in ground beef (66 FR 55912).” There it also stated that “FSIS believes that the availability of certain scientific data on E. coli O157:H7 constitutes a change that could affect an establishment's hazard analysis or alter its HACCP plans for raw beef products.” See E. coli O157:H7 Contamination of Beef Products, 67 Fed. Reg. 62325, at www.fsis.usda.gov/oppde/rdad/frpubs/00-022n.htm Here, tellingly, again over five years ago, in 2002, the USDA stated:

The Agency stated that if non-intact products or intact products that are to be further processed into non-intact product prior to distribution for consumption are found to be contaminated with E. coli O157:H7, they must be processed into ready-to-eat product, or they would be deemed to be adulterated (64 FR 2804). FSIS explained that pathogens, including E. coli O157:H7, may be introduced below the surfaces of non-intact products as the result of the processes by which they are made. As a result, customary cooking of these products may not be adequate to kill the pathogens. In contrast, the meat interior of intact products remains protected from pathogens migrating below the exterior. Consequently, customary cooking of these products will destroy any E. coli O157:H7. Finally, in this Federal Register notice, FSIS requested comments and recommendations relevant to the Agency's policy and to any regulatory requirements that might be appropriate to prevent the distribution of beef products adulterated with this pathogen.
Id. at 62326 (emphases added).

Thus, it seems plain as day, that the FSIS policy has always been, at most, that intact cuts distributed FOR CONSUMPTION as intact cuts might reasonably be treated as not adulterated, but nothing else. There is no, and has been no, rational basis for FSIS to somehow claim that intact cuts that are destined for purposes other than consumption AS INTACT CUTS.

   Of course, all of this ignores why the USDA thinks it has the authority to pick and choose what meat it considers to be adulterated when it comes to E. coli O157:H7. To-date, the only court that has been asked to answer that question has ruled that the USDA lacks the authority for this very policy. Perhaps it is time to put this question to the test in a declaratory action against the USDA. Maybe that will get more of a response that my petition did many years ago.

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E. S. Miller Packing Co., a Montgomery, Ill., establishment is recalling approximately 219 pounds of ground beef products that may be contaminated with E. coli O157:H7, the U.S. Department of Agriculture's Food Safety and Inspection Service (FSIS) announced today.

The products subject to recall include:

10-pound Cryovaced bags of bulk "EDWARD S. MILLER PACKING CO., GROUND BEEF." Each bag bears the establishment number "EST. 34342" inside the USDA mark of inspection and case codes of "070709," "070809," "070909" or "071009."

12- and 15-pound boxes "EDWARD S. MILLER PACKING CO., GROUND BEEF PATTIES." Each box bears the establishment number "EST. 34342" inside the USDA mark of inspection and case codes of "070709," "070809," "070909" or "071009."

 

Fortunately, the recall is small, and the limited distribution of the recalled products should allow quick product retrieval by E. S. Miller Packing Co.  The FSIS website notice of the recall also indicates that the recalled ground beef products were produced from July 7, 2009, through July 10, 2009, and were distributed to consumers and several local restaurants in the Montgomery and Paw Paw, Ill., areas, located in northern Illinois. 

As we usually find ourselves saying in these outbreak and recall situations, it would be nice (for all involved, from customers to manufacturers) to know precisely where the recalled meat went, not just that it went to "several local restaurants" in "northern Illinois."  Hopefully, at the very least, the E.S. Miller company knows exactly where those products went and has already completed its round of phone calls informing customers who received potentially contaminated product.

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   Yesterday, the USDA Food Safety and Inspection Service issued a largely useless, but still widely published, news release entitled “Independence Day: Drills for the Grill.” See News Release, www.fsis.usda.gov/News_&_Events/NR_062909_01/index.asp While notable for a cheery and reassuring tone, the information provided is, at best, unhelpful, and, at worst, is dangerously misleading. In addition to providing little in the way of substantive food safety information about how to “safely” grill a burger, the FSIS news release deceitfully soft-pedals the real risks posed by ground beef, generally, and outdoor grilling in particular. For example, the new release clumps together hamburgers, steak, chicken, hot dogs, and ribs as if all can be treated in the same way, and pose the same relative risk—which is blatantly false. And also, how can anyone at FSIS expect to educate the public about safely grilling ground beef (the real risk here) without once mentioning E. coli O157:H7, the primary risk?

  Take, for example, the introductory quote from FSIS Administrator, Alfred V. Almanza, who states: “Safe food handling is always important, but during the warm summer months — peak grilling season — there is an increased need for awareness of safe food handling practices.” Well, Mr. Almanza, why is that? Could it be because numerous research studies have shown that the incidence of E. coli O157:H7 in cattle rises significantly during the spring, and peaks during the summer months? See, e.g., Edrington, et al, 2006. Seasonal shedding of Escherichia coli O157:H7 in ruminants: a new hypothesis. Foodborne Pathog Dis 3:413-21; Hancock, et al., 1994. The prevalence of Escherichia coli O157.H7 in dairy and beef cattle in Washington State. Epidemiol Infect 113:199-207; Hancock, et al., 1997. A longitudinal study of Escherichia coli O157 in fourteen cattle herds. Epidemiol Infect 118:193-5; and Hussein, et al., 2005. Prevalence of Shiga toxin-producing Escherichia coli in beef cattle. J Food Prot 68:2224-41.  Why not level with the public and tell them that ground beef simply tends to be more dangerous in the summer, and that is when a higher than average percentage of E. coli O157:H7 infections occur?  Of course, that might make the USDA look bad, and could further depress the sales of ground beef.

(Please click on Continue Reading to view the rest of this article.)

Another reason the safe grilling practices are particularly important is because grilling burgers on a barbecue grill is an exceedingly risky practice that is almost certain to result in burgers not consistently reaching an internal temperature of 160 degrees Fahrenheit? Snyder, O. P. 2005. Cooking hamburgers on a Weber outdoor grill. HITM. St. Paul, MN.: http://www.hi-tm.com/Documents2005/hamb-cook-webgrill-6-4-05.pdf  And the USDA spent years and years telling people to rely on color as an indication of doneness when cooking hamburger patties, but then switched in June 1997 and started recommending the use of thermometers to determine doneness. See FSIS Technical Publication, Color of Cooked Ground Beef as it Relates to Doneness, available www.fsis.usda.gov/oa/pubs/colortech.htm (citing the studies that prompted the changed recommendation). Or because once the USDA started to recommend the use of a thermometer use, it was inappropriate and inaccurate bi-metallic coil thermometer (the one that appears on the USDA safe-handling instructions on all meat) that was consistently suggested. See, e.g. O. Peter Snyder, Ph.D., The Dangerous Bi-Metallic Thermometer, available at www.hi-tm.com/Documents2001/hamburger-temp.pdf (“USDA-recommended bimetallic coil thermometer is an inaccurate, awkward, and complicated device for measuring the temperature of highly contaminated, government-inspected and improved raw foods that cooks must pasteurize”).

Notably, yesterday’s press-release recommends the “use of an instant-read thermometer,” which is an excellent recommendation. But few consumers even own this kind of thermometer, let alone use one. McCurdy, et al., 2004. Availability, accuracy and response time of instant-read food thermometers for consumer use. Food Prot. Trends. 24(12):961-968. A 2006 food safety survey conducted by—you guessed it—the USDA (and FDA) found that only 13% of consumers always or often use a thermometer, of any kind, when cooking hamburgers. Lando and Verril, 2008. 2006 USDA/FDA Food Safety Survey, www.cfsan.fda.gov/~comm/crnu-tri7.html And there is also the significant risk that the temperature measured in one place on the hamburger will be different than the temperature elsewhere. Berry, B. W., and Bigner-George, M.E. 2001. Postcooking temperature changes in beef patties. J. Food Prot. 64(9):1405-1411.

And then there is the low infectious dose of E. coli O157:H7, and its virulence. Patricia M. Griffin, et al., Large Outbreak of Escherichia coli O157:H7 Infections in the Western United States: The Big Picture, in RECENT ADVANCES IN VEROCYTOTOXIN-PRODUCING ESCHERICHIA COLI INFECTIONS, at 7 (M.A. Karmali & A. G. Goglio eds. 1994) (“The most probable number of E. coli O157:H7 was less than 20 organisms per gram.”) Patricia M. Griffin & Robert V. Tauxe, The Epidemiology of Infections Caused by Escherichia coli O157:H7, Other Enterohemorrhagic E. coli, and the Associated Hemolytic Uremic Syndrome, 13 Epidemiologic Reviews 60, 73 (1991) (“an organism that can be transmitted by exposure to extremely few organisms.”) Indeed, the USDA has repeatedly noted that a primary reason behind the decision to treat E. coli O157:H7 as an adulterant per se is “the low infectious dose of E. coli O157:H7 associated with foodborne disease outbreaks and the very severe consequences of an E. coli O157:H7 infection.” See  Beef Products Contaminated with Escherichia coli O157:H7, 64 Fed. Reg. 2803, at 2804 (Jan. 19, 1999).

Finally, there is the issue of the cooking instructions that appear on the packages of frozen ground beef patties, one of the most popular products purchased for purposes of outdoor grilling. By law, the USDA is supposed to approves the labels of meat and poultry products, which includes any cooking instructions. But a recently published study compared the cooking instructions on 37 retail packages and found a huge variation in suggested cook times (from 1.5 to 8 minutes per side), and inconsistent advice on whether to use a thermometer or rely on the color of the patty to determine doneness. S. McCurdy, et al., Label Instructions and Cooking Times for Retail Frozen Ground Beef Patties, Food Prot. Trends, 29 (6, 335-41 (June 2009). The study found many cooking instructions “are inadequate to produce a safely cooked patty.” And these are instructions supposedly approved by the USDA.

So if consumers cannot even rely on the USDA-approved cooking instructions printed on the box of frozen ground beef patties, how can they be expected to take seriously a new release about the “food safety ‘drills of the grill’”? I certainly wouldn’t.

(Oh, and by the way, if you do want to grill burgers, I would suggest that you cook all hamburger patties on a cooking rack in your oven set at 350 degrees. After cooking for 15-20 minutes, check the temperature of each patty in multiple locations with a digital read thermometer. If all readings are above 150 degrees, remove the patties from the cooking rack to a warm platter. Now take those patties out to the barbecue grill so you can put grill marks on them. Happy cooking!)

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As we head into the holiday weekend, we are In the midst of another outbreak of E. coli O157:H7 related to ground beef. Remarkably, despite the prevalence of outbreaks and the severity of the risks involved, the proper messages on handling and preparing ground beef can still prove elusive.

I googled "e coli" this morning. One of the first sites up is this one, called FamilyDoctor.org. In two locations on its fact page on E. coli O157:H7 it suggests that the proper way to achieve or ascertain the safety of ground beef is to check color. (I don't mean to single these folks out, I think the message is common elsewhere, as well.) Here is the relevant text:

How can I catch E. coli infection?

Most E. coli infections come from:

•      Eating undercooked ground beef (the inside is pink

And, later on:

How can I keep from getting E. coli infection?

You can help prevent this infection by handling and cooking meat in a safe way. For your protection, follow these rules:

• Cook ground beef until you see no pink anywhere.

The problem is, we learned long ago that color is not a reliable indicator when it comes to ridding ground beef of E. coli O157:H7. Let’s get the better answer from the folks at Washington State University Extension, at their E. coli O157:H7 fact sheet site:

How Can I Safely Prepare Beef?

• Always cook ground beef patties to an internal temperature of 160ºF. When a ground beef patty is cooked to 160ºF throughout, it will be safe and tasty, regardless of color. Color is not a reliable indicator. Use an accurate instant-read thermometer inserted horizontally into the center of the burger. Ground beef is a perishable product. Use or freeze within one or two days of purchase.

So, this weekend, if you break out the grill and ground beef patties, use a thermometer, and not an unreliable visual inspection, to make sure you and yours stay healthy.

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Valley Meats LLC recently recalled nearly 96,000 pounds of ground beef due to potential contamination by E. coli O157:H7.  Now, SP Provisions of Portland, Oregon has recalled almost 40,000 pounds of ground beef due to positive sampling of its ground beef during production.   Hamburger E. coli season appears to be getting underway.

John McDonald was a victim of E. coli O157:H7 in hamburger almost two years ago now.  We represented John and his family in a ground beef outbreak that occurred in 2007.  The following summary tells you a bit about John's very sad case.

John was hospitalized at East Tennessee Children's Hospital from October 4 through 12, then was transferred to the University of Tennessee Medical Center where he remained until October 29.  During his hospitalization, John's kidneys failed requiring extensive dialysis to cleanse his blood, and he became badly anemic requiring many blood transfusions.

But these conditions, though in and of themselves potentially lethal, were just the beginning.  What truly separates John's illness from most of the hemolytic uremic syndrome illnesses that we see was the extent of injury to his gastrointestinal tract. 

Jim McDonald, John's father, was present at the moment it became apparent just how severe John's illness was.  It occurred in the early morning hours of Thursday, October 11, 2007.  He recalls: 

As usual, I got up to help as much as possible when the nurses came in and woke us up. When we opened his diaper, I got excited since it looked like he had had dark brown diarrhea, which told me that his digestive system was finally starting to kick in again. Realizing how liquidy the diaper was, we turned on an extra light to help us while changing him.

I will never forget what I saw. To my dismay, the diaper was not full of a bowel movement like I had desperately hoped. It was full of blood. An entire bowel movement of blood. Maybe an entire cup of blood. I got light-headed and almost passed out. I immediately sat down and grasped my head, apologizing to the nurses and telling them that I could no longer help them treat my son. This was the first of five grossly bloody stools that day.

Now bloody diarrhea is typical in the setting of an E. coli O157:H7 illness.  But this was another animal altogether.  John was losing blood from his gastrointestinal tract like he was bleeding from an opened artery.  In fact, over the course of the day on October 11, John was given two transfusions of packed red blood cells to address the significant blood loss he had suffered.  John was transferred to The University of Tennessee Medical Center the next day, where he endured, hopefully, the fight of his life. 

After transfer to UT, it became apparent that John was suffering from an infection somewhere in his body.  Coupled with the fact that he was bleeding heavily from his rectum and was constantly complaining of severe abdominal pain, doctors began to suspect that the infection was in his abdomen.  Heavy duty antibiotics were administered, but with no effect.  John continued for several days to exhibit signs of severe infection. 

The afternoon of October 16, 2007, doctors began to suspect that John had suffered a perforation (e.g. a puncture) somewhere in his gastrointestinal tract.  Besides the immense pain, the concern was that the contents of John's gastrointestinal tract, including the shiga-toxin producing E. coli O157:H7 bacteria, would escape and cause severe, potentially lethal infection elsewhere in his body. 

At around 8:00 PM on October 16, John was rushed to the Operating Room for an emergency exploratory laparotomy—i.e., an incision through the abdominal wall to gain access to the abdominal cavity. What the pediatric surgeon found inside was a mess of fecal material and grossly swollen bowel loops. The surgeon also found a portion of John’s rectum to be necrotic (i.e. diseased and dead) and there he located the perforation through the rectal wall that had allowed the contents of John’s bowel to spill into his abdomen, thus causing the severe infection in his peritoneal cavity.  

Ultimately, the surgeon decided that the necrotic and damaged portions of John’s colon and rectum stood no chance of recovery or survival, and so he removed about five inches of John's colon and rectum. After cutting and removing the damaged tissues, the surgeon washed John’s peritoneum copiously with normal saline. He then took a portion of John's colon outside of the peritoneal cavity and formed a pouch out of John's own tissue.  This pouch was then connected a colostomy bag to drain feces from John's abdominal cavity. 

It goes without saying that John's illness was severe.  After his surgery to remove part of his colon, John had to be sedated and kept on mechanical ventilation for many days.  He was hardly able to walk at discharge on October 29, 2007.  About John's discharge, his father recalls:

October 29, 2007: John got to come home today. He came home to a new house. He still couldn’t walk, but was trying to very hard. It was difficult for him (like Michaela) to rebuild his strength in his atrophied and skinny legs. We carried him when he couldn’t crawl. Nonetheless, everybody, including John, was thrilled that he was home. There were many tears of joy shed by all.
 

John's recovery is still ongoing.  He has done well since discharge, and has proved to be an extremely tough little customer.  We were honored to represent him and his family (by the way, his younger sister Michaela had HUS too), and have truly been inspired by his story.

 

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As I noted in an earlier post on a different blog about the USDA’s decision to, in a matter of speaking, take its head out of the sand and recognize that E. coli O157:H7 is a problem that starts (and someday will hopefully end) with the slaughter and dressing process, the agency is finally appearing to take a more reality-based (which is to say, less industry-biased) approach to ensuring food safety.  For the earlier post, see here:www.foodpoisonblog.com/2009/05/food-policy-regulation/usda-sees-the-light-on-e-coli-o157h7-and-meat/#comments

Specifically, the only way that meat gets contaminated is because insufficient care was taken during slaughter and feces or ingesta cross-contaminates the previously uncontaminated carcass. Knowledge that this cross-contamination is commonplace is what has given rise over the years to post-slaughter “interventions” like steam-pasteurization and organic acid washes. Put bluntly, there is no need to try to remove the poop on the meat if it does not end up there in the first place.

Since the Pathogen Reduction; HACCP Final Rule was issued in 1996, it has been the stated policy of the USDA that E. coli O157:H7 be reduced to an "undetectable level." This is the so-called zero-tolerance policy for this deadly pathogen, which is based on the irrefutable fact that if the “presence [of E. coli O157:H7] can be prevented, no amount of temperature abuse, mishandling, or undercooking can lead to foodborne illness.” See HACCP Final Rule, 62 Fed. Reg. at 38,962. Now, seemingly more intent at make zero-tolerance a reality, USDA yesterday issued notice that it was mandating an increase in the frequency of its in-plant testing for E. coli O157:H7 in raw ground beef. While this is an improvement, it is but a baby step, since the most frequent testing that will occur under this policy is 4 times per month, and this is only at plants that produce volumes of ground beef greater than 250,000 pounds PER DAY.

For more on this change in policy, please click on CONTINUE READING.
 

As the agency noted in FSIS Directive 6410.1, "it considers an acceptable reduction of E. coli O157:H7 to be a reduction to an undetectable level." It thus announced that it was going to start increasingly demand that plants reassess their Slaughter HACCP plans when a sample tests confirmed-positive for E. coli O157:H7. This policy change is now being buttressed by an increase in the frequency of the testing that the USDA performs in each plant producing ground beef, with such frequency determined by each plant’s daily production amount. While this is certainly improvement, the increased testing is in large part symbolic, as the USDA has come close to admitting when it defended the chosen frequency by stating:

The number of samples that you would need to collect to have some statistical confidence that if it was contaminated you would find it is in the hundreds," he said. "I mean, it is a lot of samples that need to be collected. At $20 to $100 a sample, you have to make some decisions as to what you can afford.

For the full article from which this quote was taken, see: abcnews.go.com/Health/Wellness/story
 

Although I applaud any increase in testing, it seems to me that the American public deserves a testing-frequency that achieves statistical significance. Furthermore, it is time for the USDA to implement a meaningful testing program at retail, and stop using the American public as guinea pigs to determine how much E. coli O157:H7 is not eliminated in the plant.

The one final step that the FSIS needs to take to make this new and much improved approach really work is to eliminate, once and for all, the absurd fiction that a presumptive positive is not a "real" positive test result. Confirmatory testing should be required of all presumptive positive test results. Or, in the alternative, if the plant objects to the expense of doing confirmatory testing, then the presumptive results should be presumed to be confirmed positives for purposes of prompting further corrective actions and enforcement efforts.

It is time for the FSIS to enfore a true zero-tolerance for E.coli O157:H7; and with this new Directive, the agency has taken a great step in the right direction.

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Approximately 96,000 pounds of ground beef products are being recalled by Valley Meats, a company operating out of Coal Valley, Ill., for E. coli O157:H7 contamination.

It appears this recall did not come soon enough for one unfortunate person.  The Department of Health in Cleveland, Ohio has announced that a 6 or 7 year old girl has died, apparently from consuming some of the recalled ground beef.

For a complete list of the products currently being recalled, see below:

3S Brand Products:

• 10-pound cases containing a total of 40 (4-1) "KEEP FROZEN 3/S 100% GROUND BEEF PATTY." Each package bears the identifying case code "95554."
• 10-pound cases containing a total of 60 (6-1) "KEEP FROZEN 3/S 100% GROUND BEEF PATTY." Each package bears the identifying case code "95556."
• 10-pound cases containing a total of 30 (3-1) "KEEP FROZEN 3/S CHOPPED BEEF SIRLOIN STEAK BURGER." Each package bears the identifying case code "95573."
• 10-pound cases containing a total of 40 (4-1) "KEEP FROZEN 3/S CHOPPED BEEF SIRLOIN STEAK BURGER." Each package bears the identifying case code "95574."

Grillmaster Brand Products:

• 10-pound cases containing a total of 100 (10-1) "KEEP FROZEN GRILL MASTER 100% GROUND BEEF PATTY." Each case can be identified by the case code "95588."
• 10-pound cases containing a total of 20 (2-1) "KEEP FROZEN GRILL MASTER 100% GROUND BEEF PATTY." Each case can be identified by the case code "95500."
• 10-pound cases containing a total of 30 (3-1) "KEEP FROZEN GRILL MASTER 100% GROUND BEEF PATTY." Each case can be identified by the case code "95502."
• 10-pound cases containing a total of 40 (4-1) "KEEP FROZEN GRILL MASTER 100% GROUND BEEF PATTY." The cases can be identified by the case codes "95504" and "95505."
• 10-pound cases containing a total of 50 (5-1) "KEEP FROZEN GRILL MASTER 100% GROUND BEEF PATTY." Each case can be identified by the case code "95508."
• 10-pound cases containing a total of 60 (6-1) "KEEP FROZEN GRILL MASTER 100% GROUND BEEF PATTY." Each case can be identified by the case code "95509."
• 10-pound cases containing a total of 40 (4-1) "KEEP FROZEN GRILL MASTER BEEF PATTIE." Each case can be identified by the case code "95512."

J & B Brand Products:

• 10.5 pound cases containing a total of 28, 6-ounce "KEEP FROZEN BEEF HOAGIE PATTIE." Each package bears the identifying case code "51706."
• 10.5 pound cases containing a total of 14, 12-ounce "KEEP FROZEN BEEF DINNER PATTIE." Each package bears the identifying case code "51312."
• 10-pound cases containing a total of 30 (3-1) "KEEP FROZEN TENDERKNIT BEEF STEAK CHOPPED AND FORMED." Each package bears the identifying case code "11028."
• 10-pound cases containing a total of 40 (4-1) "TENDERKNIT BEEF STEAK CHOPPED AND FORMED." Each package bears the identifying case code "11024."
• 10-pound cases containing a total of 10 (4-1) "KEEP FROZEN TENDERKNIT VEAL LUNCHEON CHOPPED AND FORMED." Each package bears the identifying case code "13014."
• 10-pound cases containing a total of 40 (4-1) "KEEP FROZEN SEASONED GROUND BEEF PATTIE." Each package bears the identifying case code "11384BR."
• 10-pound cases containing a total of 40 packages (4-1) "KEEP FROZEN BEEF STEAK BURGER." Each package bears the identifying case code "J1004."
• 10-pound cases containing a total of 30 (3-1) "KEEP FROZEN FLAVOR BURST BEEF PATTIE." Each package bears the identifying case code "51803."
• 10-pound cases containing a total of 40 (4-1) "KEEP FROZEN FLAVOR BURST BEEF PATTIE." Each package bears the identifying case code "51804."

Klub Brand Products:

• 10-pound cases containing a total of 20 (2-1) "KEEP FROZEN KLUB GROUND BEEF STEAK." Each case can be identified by the case code "95565."
• 10-pound cases containing a total of 30 (3-1) "KEEP FROZEN KLUB GROUND BEEF STEAK." Each case can be identified by the case code "95567."
• 10-pound cases containing a total of 40 (4-1) "KEEP FROZEN KLUB GROUND BEEF STEAK." Each case can be identified by the case code "95568."
• 10-pound cases containing a total of 20 (2-1) "KEEP FROZEN KLUB HOMESTYLE GROUND BEEF STEAK." Each case can be identified by the case code "95583."
• 10-pound cases containing a total of 30 (3-1) "KEEP FROZEN KLUB HOMESTYLE GROUND BEEF STEAK." Each case can be identified by the case code "95584."

Thick 'N Savory Brand Products:

• 10-pound cases containing a total of 20 (2-1) "KEEP FROZEN THICK 'N SAVORY SEASONED BEEF PATTY." Each case can be identified by the case code "95579."
• 10-pound cases containing a total of 30 (3-1) "KEEP FROZEN THICK 'N SAVORY SEASONED BEEF PATTY." Each case can be identified by the case code "95580."
• 10-pound cases containing a total of 40 (4-1) "KEEP FROZEN THICK 'N SAVORY SEASONED BEEF PATTY." Each case can be identified by the case code "95581."

Ultimate Brand Products:

• 10-pound cases containing a total of 20 (2-1) "KEEP FROZEN ULTIMATE BURGER CHOPPED BEEF STEAK." Each case can be identified by the case code "1012CL."
• 10-pound cases containing a total of 30 (3-1) "KEEP FROZEN ULTIMATE BURGER CHOPPED BEEF STEAK." Each case can be identified by the case code "1013CL."
• 10-pound cases containing a total of 40 (4-1) "KEEP FROZEN ULTIMATE BURGER CHOPPED BEEF STEAK." Each case can be identified by the case code "1014CL."

Products with No Specified Name Brand:

• 10-pound cases containing a total of 20 (2-1) "KEEP FROZEN ULTIMATE BURGER CHOPPED BEEF STEAK." Each case bears the case code "50123."
• 10-pound cases containing a total of 30 (3-1) "KEEP FROZEN ULTIMATE BURGER CHOPPED BEEF STEAK." Each case bears the case code "50125."
• 10-pound cases containing a total of 40 (4-1) "KEEP FROZEN ULTIMATE BURGER CHOPPED BEEF STEAK." Each case bears the case code "50127."
• 10-pound cases containing a total of 30 (3-1) "KEEP FROZEN PURE BEEF PATTIE HEARTY HOMESTYLE." Each case bears the case code "3253."
• 10-pound cases containing a total of 40 (4-1) "KEEP FROZEN PURE BEEF PATTIE HEARTY HOMESTYLE." Each case bears the case code "3254."
• 10-pound cases containing a total of 50 (5-1) "KEEP FROZEN PURE BEEF PATTIE HEARTY HOMESTYLE." Each case bears the case code "3255."
• 24.75-pound cases containing a total of 144 "KEEP RERIGERATED GROUND BEEF PATTY." Each case can be identified by the case code "8218."
• 20-pound cases containing a total of 4 (4 X 5) "KEEP REFRIGERATED GROUND BEEF." Each package bears the identifying case code "8020EC."
• 40-pound cases containing a total of 8 (8 X 5) "KEEP REFRIGERATED GROUND BEEF." Each package bears the identifying case code "8020VP."
• 20-pound cases containing a total of 4 (4 X 5) "KEEP REFRIGERATED GROUND BEEF." Each package bears the identifying case code "8515."
• 20-pound cases containing a total of 4 (4 X 5) "KEEP FROZEN GROUND BEEF." Each package bears the identifying case code "8020ECF."
• 20-pound cases containing a total of 4 (4 X 5) "KEEP FROZEN GROUND BEEF." Each package bears the identifying case code "10201."
• 20-pound cases containing a total of 4 (4 X 5) "KEEP FROZEN GROUND MEAT." Each package bears the identifying case code "10301."

Additionally, each product bears the establishment number "EST. 5712" inside the USDA mark of inspection. The (2-1), (3-1), (4-1), (5-1) and (6-1) markings refer to the number of portions per one-pound.

These ground beef products were produced on March 10, 2009, and were distributed to various consignees nationwide.

The problem was discovered through an epidemiological investigation of illnesses. On May 13, 2009, FSIS was informed by the Ohio Department of Health of a cluster of E. coli O157:H7 infections. Illnesses have been reported in Ohio, Pennsylvania, and Illinois. Individuals concerned about an illness should contact a physician.

E. coli O157:H7 is a potentially deadly bacterium that can cause bloody diarrhea, dehydration, and in the most severe cases, kidney failure. The very young, seniors and persons with weak immune systems are the most susceptible to foodborne illness.

Media and consumers questions regarding the recall should be directed to the company spokesperson at (309) 799-7341.

Consumers with food safety questions can "Ask Karen," the FSIS virtual representative available 24 hours a day at AskKaren.gov. The toll-free USDA Meat and Poultry Hotline 1-888-MPHotline (1-888-674-6854) is available in English and Spanish and can be reached from l0 a.m. to 4 p.m. (Eastern Time) Monday through Friday. Recorded food safety messages are available 24 hours a day.

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During the Bush administration, and its do-anything-help-big-business approach, agencies were required to insert "preemption" language into all regulations, rules, and policies that  the agencies promulgated.  This was intended as an attempt to "protect" corporations from state laws and regulations that had the effect of imposing stricter requirements, especially with regard to product safety.  One big "win" for this approach was the U.S. Supreme Court decision in Reigel v. Medtronic, which held that people injured by a medical device "pre-approved" by the FDA could not file a lawsuit claiming that the device was defective as a matter of state law.  A not so successful attempt to use preemption for food cases was that tried by the Excel Corporation in litigation arising from an E. coli O157:H7 outbreak linked to a Milwaukee-area Sizzler restaurant. In those cases, Excel argued that its admittedly contamianted meat was neither defective nor unsafe because USDA policy at the time only prohibited this deadly pathogen from being in ground beef. (For an op-ed piece I wrote about this USDA policy, see Who does the USDA Really Protect, which can be found here: www.marlerblog.com/2008/08/articles/lawyer-oped/who-does-the-usda-really-protect-when-it-comes-to-deadly-e-coli/)

But now most of the arguments in favor of preempting state law in favor of "uniform" federal regulations are going to be undercut by a just-issued Executive Order that declares a new (or renewed) era of states rights.  The introductory paragraph of the Order is telling and compelling:

From our Nation's founding, the American constitutional order has been a Federal system, ensuring a strong role for both the national Government and the States. The Federal Government's role in promoting the general welfare and guarding individual liberties is critical, but State law and national law often operate concurrently to provide independent safeguards for the public. Throughout our history, State and local governments have frequently protected health, safety, and the environment more aggressively than has the national Government.

Not only does this Order announce a new direction, it requires the heads of all federal agencies to "review regulations issued within the past 10 years that contain statements in regulatory preambles or codified provisions intended by the department or agency to preempt State law," and to remove them.  So once more the role of the state in protecting its citizens from unsafe food and other products is restored to its rightful place.  More importantly, the next time that a big food company argues that the USDA said it was okay to poison people, it will likely get laughed out of court. Or at least we can hope so.

To read the full text of the Executive Order, please click on the Continue Reading link.

THE WHITE HOUSE
Office of the Press Secretary
 

For Immediate Release May 20, 2009
May 20, 2009
 

MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES
SUBJECT: Preemption
 

From our Nation's founding, the American constitutional order has been a Federal system, ensuring a strong role for both the national Government and the States. The Federal Government's role in promoting the general welfare and guarding individual liberties is critical, but State law and national law often operate concurrently to provide independent safeguards for the public. Throughout our history, State and local governments have frequently protected health, safety, and the environment more aggressively than has the national Government.

An understanding of the important role of State governments in our Federal system is reflected in longstanding practices by executive departments and agencies, which have shown respect for the traditional prerogatives of the States. In recent years, however, notwithstanding Executive Order 13132 of August 4, 1999 (Federalism), executive departments and agencies have sometimes announced that their regulations preempt State law, including State common law, without explicit preemption by the Congress or an otherwise sufficient basis under applicable legal principles.
 

The purpose of this memorandum is to state the general policy of my Administration that preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption. Executive departments and agencies should be mindful that in our Federal system, the citizens of the several States have distinctive circumstances and values, and that in many instances it is appropriate for them to apply to themselves rules and principles that reflect these circumstances and values. As Justice Brandeis explained more than 70 years ago, "[i]t is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."
 

To ensure that executive departments and agencies include statements of preemption in regulations only when such statements have a sufficient legal basis:
 

1. Heads of departments and agencies should not include in regulatory preambles statements that the department or agency intends to preempt State law through the regulation except where preemption provisions are also included in the codified regulation.
 

2. Heads of departments and agencies should not include preemption provisions in codified regulations except where such provisions would be justified under legal principles governing preemption, including the principles outlined in Executive Order 13132.
 

3. Heads of departments and agencies should review regulations issued within the past 10 years that contain statements in regulatory preambles or codified provisions intended by the department or agency to preempt State law, in order to decide whether such statements or provisions are justified under applicable legal principles governing preemption. Where the head of a department or agency determines that a regulatory statement of preemption or codified regulatory provision cannot be so justified, the head of that department or agency should initiate appropriate action, which may include amendment of the relevant regulation.
 

Executive departments and agencies shall carry out the provisions of this memorandum to the extent permitted by law and consistent with their statutory authorities. Heads of departments and agencies should consult as necessary with the Attorney General and the Office of Management and Budget's Office of Information and Regulatory Affairs to determine how the requirements of this memorandum apply to particular situations.
 

This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
 

The Director of the Office of Management and Budget is authorized and directed to publish this memorandum in the Federal Register.
 

BARACK OBAMA

 

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The summer is fast approaching and that means--you guessed it--E. coli-contaminated meat recalls!

Bob's Food City, a Hot Springs, Ark., retailer is recalling approximately 375 pounds of ground beef products that may be contaminated with E. coli O157:H7, the U.S. Department of Agriculture's Food Safety and Inspection Service (FSIS) announced today.

The following ground beef products subject to recall were sold as tray packs of varying weights bearing a "Sell By" date of "05/09/09." The products subject to recall include:

• 1-pound through 5-pound tray packs of "GROUND BEEF CHUCK," "GROUND ROUND" or "REGULAR GROUND BEEF." Each pack bears a sell by date of "05/09/09." There is no USDA mark of inspection on the tray packs.

These ground beef products were produced on May 7, 2009, and were sold to customers of the Bob's Food City retail store located at 800 Malvern Avenue, in Hot Springs, Ark.

The problem was discovered through FSIS sampling procedures. FSIS has received no reports of illness due to consumption of these ground beef products.

While cooking meat to a thermometer-verified internal temperature of at least 160 degrees F is wise, it does not solve the problem of feces-contaminated (and therefore potentially E. coli-contaminated) meat.  How about the endless possibilities for cross-contamination before the meat ever hits the grill?

As Bill says, "get the poop out!"

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The U.S. Department of Agriculture's Food Safety and Inspection Service (FSIS) issued a public health alert today after a joint investigation by state public health officials and the Centers for Disease Control and Prevention identified ground beef as the source of a multi-drug-resistant strain of Salmonella.  At least 38 people in Arizona, California, Hawaii, Nevada, and New Mexico became ill with Salmonella Newport infections after consuming the ground beef between September 19 and November 5, 2007.

FSIS stated in its public health alert:

This alert is being issued after an exhaustive and continuing investigation whereby FSIS could not identify specific establishments, lots and products that would be subject to a recall. FSIS has no reason to believe that these products are still available for sale in commerce.

Consumers that may have purchased these fresh ground beef products between Sept. 19 and Nov. 5, 2007, and stored them in the freezer should look for and discard or destroy these products if they find them. . . .

This particular strain of Salmonella is resistant to many commonly prescribed drugs, which can increase the risk of hospitalization or possible treatment failure in infected individuals.

Antimicrobial Resistance in Salmonella Bacteria

Antimicrobial resistance in bacteria is an emerging and increasing threat to human health. Physicians should be aware that antimicrobial resistance is increasing in foodborne pathogens and that patients who are prescribed antibiotics are at increased risk for acquiring antimicrobial resistant foodborne infections. In addition, “[i]increased frequency of treatment failures for acute illiness and increased severity of infection may be manifested by prolonged duration of illness, increased frequency of bloodstream infections, increased hospitalization or increased mortality.”

The use of antimicrobial agents in the feed of food animals is estimated by the FDA to be over 100 million pounds per year. Estimates range from 36% to 70% of all antibiotics produced in the United Sates are used in a food animal feed or in prophylactic treatment to prevent animal disease. The use of antibiotics is thought to promote growth and to prevent disease in beef, pork, and poultry production as well as on fish farms and some fruit and vegetable farms.

According to the National Antimicrobial Resistance Monitoring System (NARMS), Campylobacter has been recovered from 47% of chicken breasts tested in recent studies. In the same NARMS studies, five mulit-drug resistant strains of Salmonella Newport were recovered from ground beef, ground turkey and pork chops. According to the report, “[a]ntimicrobial resistance among these foodborne bacteria is not uncommon and often associated with the use of antimicrobial agents in food animals.” Ceftriaxone-resistant Salmonella has also been reported (Fey et al., 2000). The emergence of multidrug-resistant Salmonella typhimurium in the United States is another example of a drug-resistant bacteria spreading from animals to humans (Glynn et al., 1998).

The use of antibiotics in feed for food animals, on animals prophylactically to prevent disease, and the use of antibiotics in humans unnecessarily must be reduced. European countries have reduced the use of antibiotics in animal feed and have seen a corresponding reduction in antibiotic-resistant illnesses in humans.

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Eight Washington state and Oregon residents have been confirmed ill with E. coli infections since eating E. coli-contaminated ground beef sold by Interstate Meat Dist., Inc. of Clackmas, Oregon, under the Northwest Finest brand.  The ground beef was sold in Alaska, Idaho, Oregon, and Washington between July 19 and July 30, 2007.  Health officials believe consumers could still have the product in their freezers.

On July 21, E. coli attorney Bill Marler posted about this summer's meat recalls and outbreaks due to E. coli contamination.  Yesterday, one of the victims of an outbreak in Huntsville, Alabama, passed away. 

E. coli contamination in our food supply is a serious issue, as are other concerns such as contamination with Salmonella and other foodborne pathogens.  A post from earlier today highlights the downturn in consumer confidence since last year's E. coli outbreak traced to spinach.

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Richwood Meat Co. has recalled hamburger patties that may be contaminated with E. coli O157:H7.  The recall was initiated after at least three children became ill with E. coli infections after eating the hamburgers at two California Little League snack shacks, according to the Eureka Reporter.

Three children fell ill after eating hamburgers at the St. Helena and Calistoga Little League baseball snack shacks and have since recovered. Two other possible cases are being investigated.

Sample tests on the children and the meat will be completed Wednesday, said Mike Bowman, spokesperson for the California Department of Health Services.

E. coli O157:H7 infection often causes abdominal cramps and diarrhea, sometimes bloody diarrhea. There is usually little or no fever and the illness typically resolves itself in five to 10 days. Consumers with any of these symptoms should contact their physician.

Infection with this organism can also cause hemolytic uremic syndrome and lead to kidney failure. Those most at risk for serious complications of this food-borne illness include young children, the elderly and those with compromised immune systems.

The hamburger patties were distributed to Winco, Raley's, Save Mart, and Vons retail stores, as well as to discount grocers, food distributors, and food service vendors in California, Arizona, Idaho, Oregon, and Washington.  Consumers checking their freezers for the potentially E. coli-contaminated hamburgers should note that the hamburgers were produced in April of 2006, and were sold under the Fireriver, Chef’s Pride, Ritz Food, Blackwood Farms, California Pacific Associates, C&C Distributing, Golbon and Richwood brands.

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