Food Poisoning Law Blog : Food Poisoning Lawyer & Attorney : PritzkerLaw : Food Safety, Outbreaks & Recalls

Reporter Michael Moss of The New York Times has written a compelling story highlighting a sickening trend in the food industry: Shifting the onus for food safety onto consumers with cooking instructions and warnings on product packaging.

As Mr. Moss illustrates, it has started with frozen pot pies. It seems that manufacturers cannot make a safe product, so instead of correcting the problem or stopping production, they pass the problem to consumers. It's as if to say: "Here, you fix it. It's your responsiblity to cook it in such a way that it won't kill you.'''

Pot pies are food products.  As such, they are subject to the same product safety analysis that all product sellers and designers must utilize:

1. Design out the defects.
2. If the defects cannot be designed out, utilize an appropriate guard to protect users from the danger.
3. If the danger cannot be designed out or guarded against, then, and only then, are you allowed to warn consumers of the danger. When warnings and instructions are the only option, they must be robust, legible and clearly advise people of the danger involved.

Even if the danger of foodborne illness cannot be designed out and guarded against (a debatable proposition), the food industry is hardly complying with a century of knowledge about adequate instructions and warnings.

If it were -- and we shouldn't hold our breath -- frozen pot pies would be required to carry a warning such as this:

DANGER: THIS PRODUCT MUST BE PRESUMED TO CONTAIN LIFE THREATENING PATHOGENS. IF YOU DO NOT FOLLOW THE ENCLOSED INSTRUCTIONS EXACTLY,
CONSUMPTION OF THIS FOOD PRODUCT MAY CAUSE DEATH OR SERIOUS INJURY.

_________________________________________________________

The author, Fred Pritzker, is founder and president of national food safety law firm Pritzker Olsen Attorneys. The firm is involved in practically every major outbreak of E. coli  O157:H7, Salmonella, Campylobacter, Listeria, Shigella and other foodborne illnesses. Mr. Pritzker and his associates have won millions of dollars for the victims of food poisoning and their families. For more information, contact Fred at 1-888-377-8900 (toll free) or write to us for a free case consultation.

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Fred Pritzker, the founder and president of national food safety law firm Pritzker Olsen Attorneys, has seen private sector food safety programs come and go during many years of representing people injured or killed by E. coli O157:H7, Hemolytic Uremic Syndrome, Salmonella, Campylobacter, Guillain-Barre Syndrome, Listeria, botulism, Shigella and other types of food poisoning. Mr. Pritzker has recovered millions of dollars for these victims and their families and is devoted to educating the public about food safety issues. He continues to advocate for badly needed food safety legislation and increased funding for the federal, state and local agencies charged with protecting our food and enforcing food safety laws. He can be reached at 1-888-377-8900 (toll free).

By FRED PRITZKER

The Grocery Manufacturers Association has announced three private sector initiatives designed “to improve the safety and security of the nation’s food supply.” The initiatives include creation of a product recall portal, improving the integrity of third party food safety certifications and “modernizing” good manufacturing practices for food.

These are laudatory suggestions that may actually improve food safety, but only incrementally. On a more fundamental level, they constitute tinkering on the margins of a flawed system that requires far more dramatic change.

The motivation for these recommendations is also suspect. Like most trade organizations that promulgate safety recommendations after a disaster (in this case, the Peanut Corporation of America Salmonella outbreak) they are as much about avoiding government regulation as they are about improving food safety. Look no farther than the toothless Leafy Greens Marketing Agreement created in response to the 2006 spinach E. coli O157:H7 outbreak. 

We don’t need any more corporate fig leafs or lamentations from food safety regulators. We need a top-to-bottom overhaul that includes a centralized and uniform system of food safety with adequate resources and manpower to implement it. This means doing away with the balkanized current system in which many different agencies have overlapping jurisdiction and not enough coordination when it comes to preventing and investigating food safety outbreaks.
 
 It also means that at its core, the food safety system must be based on personal and corporate responsibility.
 
For example, professionals like lawyers, doctors, accountants and nurses are licensed to practice their professions. In addition to criminal penalties applicable to all citizens, professionals have their own rules and ethical responsibilities the violation of which, even if not criminally culpable, is grounds for sanction and in certain cases, removal from the profession.
 
Professions also demand of practitioners compliance with continuing education requirements,  initial certification (e.g. bar examinations and medical boards), regulated and enforced conduct, and rigorous prosecution for any violations. The system is far from foolproof, but as any professional will tell you, it creates an effective enforcement mechanism that is both more corrective and focused than criminal laws alone.
 
So in addition to public relations gambits masquerading as food safety, how about borrowing a page from professionals:

•  If you produce and sell food, you have to be trained as a professional and licensed as one.
• You have to comply with a code of conduct that is understood, evolving and enforceable.
• You have to pay dues and therefore finance your own professional enforcement.
• You have to attend continuing education courses and you must swear under oath that you have done so.
• You must be subject to vigorous and independent prosecution for violations of professional standards and still be subject to criminal prosecution.
• In other words, you can only produce and sell food if you are a licensed professional.

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By FRED PRITZKER

Late last summer there was a devastating outbreak of E. coli O111 traced back to the Country Cottage restaurant in Locust Grove, Oklahoma. 341 people were sickened and one person died.

While the source of the outbreak – the restaurant – was quickly identified, the disease-causing organism was not isolated on the restaurant premises or in the food and water served there. Thus, thefinal outbreak report (just released by the Oklahoma State Department of Health) concluded:

"In the absence of isolating the outbreak organism from any environmental specimen, including restaurant surfaces, food, well water and animal feces, or from a restaurant employee who reported diarrheal illness, the original vehicle of contamination could not be determined. The exact mode of spread within the restaurant was not established, however, the epidemic curve and exposure analyses suggests there was ongoing foodborne transmission of E. coli O111:NM to Country Cottage restaurant patrons between August 15 and August 24, 2008."

Not surprisingly, this outbreak created some political fallout in the Sooner state. The state’s attorney general was quoted as saying “they [OSDH] botched the investigation and are very reluctant to admit they botched the investigation.”  He said his own office determined the likely cause of the outbreak was poultry litter that contaminated the restaurant’s well water.  Local politicians and, of course, the poultry industry vigorously dispute the attorney general’s accusations.

What is not in dispute, however, is the fact that E. coli O111 is a virulent pathogen that causes severe illness and death. Also not in dispute is the fact that most of the restaurant patrons will never be fully compensated for the losses they suffered. That’s because although the restaurant had insurance, the amount of the coverage is woefully insufficient to cover the harms and losses sustained by the victims. Do the math: even assuming a liability policy of $1,000,000, the average recovery for an outbreak victim would be under $3,000.

Within a few months of this massive outbreak, the restaurant reopened its doors and presumably is well on the way to building back up its business. That’s probably a good thing, assuming the restaurant owners utilize this tragedy to review and revamp the restaurant’s food safety and sanitation practices.

Of course, the outbreak victims, especially the person who died, don’t have that luxury. Many of them will never recover and even those who do face financial and physical hardship for years to come.

 So the restaurant re-opens, the disease spreading vector is never identified, nobody is held accountable and politicians try to advance their careers. What about the victims?

The Locust Grove tragedy illustrates a number of problems – some insoluble, but some fairly easy to remedy. For example, let’s start requiring food purveyors to carry enough insurance to fairly compensate their customers when the food they sell is adulterated with deadly pathogens.  This should not be hard or prohibitively expensive.

 If the coverage is not available at a fair price in the private sector, let the government underwrite risk pools and excess coverage. There are a plenty of existing programs to model on including flood insurance, crop insurance, vaccine compensation programs, etc.

 Insurance is risk spreading when the risk of harm cannot be eliminated. So why should foodborne illness survivors have to go it alone, especially when they are absolutely blameless for the damage they suffer. If we write off toxic assets, can’t we at least underwrite insurance for victims of toxic food?

Fred Pritzker is founder and president of PritzkerOlsen, P.A., a national food safety law firm that represents victims of all major outbreaks of foodborne illness, including the Country Cottage E. coli 0111 event.  Mr. Pritzker and members of his firm are frequent guests and commentators about food safety issues and have been interviewed by and profiled in a number of media sources including The New York Times, The Wall Street Journal, CNN, The Associated Press and CBS News. The firm's telephone number is 1-888-377-8900.

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Federal lawmakers say they will hold hearings soon to examine ways to strengthen food safety laws to protect against  a repeat of food poisoning outbreaks like the current one involving Salmonella Typhimurium and peanut products made at a plant in South Georgia.

The wave of 500 illnesses and up to eight deaths that are now linked to the Blakely, Georgia, plant of Peanut Corporation of America (PCA) has exposed at least one major regulatory gap: Food companies don't have to report possible contamination of their plants when internal testing shows positive results for pathogens like Salmonella.

 The issue was explored today in a news story by The Associated Press that quoted Minneapolis lawyer Fred Pritzker and other nationally recognized food safety experts. Infuriated by the loophole, food safety advocates and lawmakers want legislation that would mandate companies to alert authorities at the first sign of trouble.

In the case of Peanut Corporation of America, the U.S. Food & Drug Administration said this week that the company did not alert state or federal authorities when the company documented 12 positive tests for Salmonella between 2007 and 2008. There were no requirements to report the results and the company continued to ship product after retesting came up negative, the FDA said.

Pritzker, who represents the next-of-kin of two people who died in the outbreak, said he doubts any states have such a requirement because those requirements would be more restrictive than the federal government.

Pritzker, the founder and president of Pritzker | Olsen, P.A., a national food safety law firm, filed a Salmonella wrongful death lawsuit  Monday against PCA for the heirs of Shirley Mae Almer, 72, of Perham. Mrs. Almer died Dec. 21 with a Salmonella infection matching the outbreak strain. She had eaten peanut butter made at the Georgia plant before any of the product had been recalled. Minnesota health officials later confirmed that the peanut butter in use at Mrs. Almer's nursing home contained the same strain of Samonella alive in the outbreak.

Pritzker also represents the family of Doris Flatguard, 87, another Minnesota nursing home resident who died after developing a Salmonella infection tied to peanut butter produced by PCA. A lawsuit in that case is expected to be filed soon.

According to The AmLaw Daily, PCA may be represented by Alan Maxwell, a partner in Atlanta-based Weinberg Wheeler Hudgins Gunn & Dial. Pritzker has been up against Maxwell in foodborne illness cases in the past.

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For the third year in a row, the prevalence of E. coli O157:H7 in raw ground beef has increased in sample tests conducted by the United States Department of Agriculture's Food Safety and Inspection Service (FSIS).

A review of the latest 2008 FSIS data by Pritzker Law, one of the few law firms in the United States that practices extensively in the area of foodborne illness litigation, indicates that .47 percent of raw ground beef samples analyzed from Jan. 1 to Dec. 16, 2008, tested positive for E. coli O157:H7.

That compares to .23 percent positive test results in 2007, .17 percent in 2006 and .08 percent in 2005. According to the Pritzker Law review, the prevalence of E. coli O157:H7 in samples of raw ground beef in 2008 was the highest it has been in the past six years.

E. coli O157:H7 is an adulterant in raw ground beef and FSIS inspectors test for it in federally regulated packing plants and at retail stores. The overwhelming majority of tests are performed at packing plants.

In 2008 (through Dec. 16), there were 54 positive microbiological test results for E. coli O157:H7 in 11,535 samples, according to the FSIS. One year earlier, FSIS inspectors found the bacteria only half as often: 29 times in 12,292 samples.

The results bolster what leading food safety attorney Fred Pritzker said in a press release issued last week: That America's E. coli outbreaks of 2008 are indicative of a problem that's getting worse.

Going back to 2002, here's a listing of year-end result posted by FSIS for its E. coli O157:H7 testing program for raw ground beef:

• 2008 -- 54 positives in 11,535 samples or .47 percent.
• 2007 -- 29 positives in 12,292 samples or .23 percent.
• 2006 -- 20 positives in 11,779 samples or.17 percent.
• 2005 -- 9 positives in 10,976 samples or .08 percent.
• 2004 -- 14 postives in 8,010 samples or .17 percent.
• 2003 -- 20 positives in 6,584 samples or .30 percent.
• 2002 -- 55 positives in 7025 samples or .78 percent. 

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