A Lawyer's Perspective on the Spinach-Related E. coli Outbreak
Since 1995, 19 outbreaks of foodborne illness caused by Escherichia coli O157:H7 have been linked to bagged salads. These outbreaks injured over 400 people and resulted in two deaths. The current E. coli spinach outbreak, the twentieth, has so far injured 171 people in 25 states and taken the life of a 77-year-old Wisconsin woman. Many more people will be injured or even killed before this outbreak is contained. Why is this happening and what can be done to stop it?
E. coli is a pernicious pathogen. In the case of bagged salads, it survives in the high humidity conditions within the plastic packaging and is consumed along with the "fresh," "pre-washed" produce. Once inside the body, it produces toxins that result in an intense inflammatory response. This leads to diarrhea often accompanied by a copious bloody discharge. In some cases, particularly those involving young children, the elderly and people with weakened immune systems, it causes devastating damage to the kidneys (hemolytic uremia) and even death.
Bagged lettuce, spinach and other produce is particularly susceptible to contamination from E. coli O157:H7. Here's how it happens: E. coli O157:H7 lives in the gut of humans and animals. It is shed in feces and, in the case of animal waste, remains in the soil. From the soil, it can both contaminate crops directly and mix freely with agricultural run-off. This run-off often floods growing areas and reaches wells used for the irrigation of crops. E. coli can also reach these products through agricultural workers, in unsanitary processing plants or in the fields during harvest.
Once spinach or lettuce is contaminated by E. coli, it is notoriously difficult to kill. Washing the produce, even with disinfectants, can reduce the number of pathogens but has little effect on well-established bacteria. Moreover, chopping, shredding or otherwise processing produce releases nutrient-rich cellular fluids. Any E. coli in those vegetables feed, multiply and spread. Place these vegetables in a moist plastic bag, and you have created perfect-storm conditions for bacterial growth.
Most lettuce and spinach in the United States is produced in California and virtually all the bagged salad E. coli outbreaks have been linked to California firms that grow, pack, process or ship fresh and fresh-cut lettuce and spinach. On November 4, 2005, Robert E. Brackett, Ph.D., the Director of the FDA's Center for Food Safety and Applied Nutrition, addressed these California companies in an open letter. He outlined the FDA's "serious concern" about the continuing outbreaks and urged the companies to take prompt and effective steps to prevent them. Despite much hand-wringing and many meetings, the only result seems to have been the current outbreak - probably the largest and most virulent of them all.
If a drug caused widespread illness, consumers and regulators would demand an immediate product recall, formula change and alternative therapy. The same standard should be applied to bagged salads, which have far less utility and for which a natural substitute is readily available. The convenience of a pre-packaged salad simply cannot justify even one case of Hemolytic Uremic Syndrome or the death of a loved one. Until the problem of Escherichia coli O157:H7 contamination is solved, the USDA and FDA should ban these products from sale.
Unfortunately, no such swift and decisive action will happen. There is simply no statutory authority for agency action and no political will to take on a $12 billion-dollar industry that did not exist less than a generation ago.
Consumers may force change by not buying these products, but if the recent past is any indication, that won't happen either. Twenty outbreaks haven't curbed sales and the "it can't happen to me" syndrome seems more intransigent when it comes to traditional heath foods (Popeye's spinach) than to traditional junk foods (Ronald's burger).
This consumer apathy is fueled, in part, by a lack of information. People continue to purchase bagged salads because they don't know how dangerous they really are. In March of 2006, the FDA drafted an industry guidance document entitled Guide to Minimize Microbial Food Safety Hazards of Fresh-cut Fruits and Vegetables. It cautions:
The degree of handling and product mixing ...can provide opportunities for contamination and for spreading contamination through a large volume of product. Moreover, the release of plant cellular fluids when produce is chopped or shredded provides a nutritive medium in which pathogens... can survive and grow. The potential for pathogens to survive or grow is increased by the high moisture and nutrient content..., the absence of lethal process ...to eliminate pathogens, and the potential for temperature abuse during processing storage, transport, and retail display.
It is time that the FDA stops whispering its warning only to industry and speaks loudly and clearly to and for consumers. Why not stamp each plastic package with a clear, unambiguous warning?: "Packaged greens have been linked to twenty separate outbreaks involving the deadly E. coli bacteria. No amount of washing will make this product safe." Let members of the public know what they're really eating.
Another step toward safer food and more informed consumers is to reveal the origin of the products we consume. In the case of bagged salad outbreaks, the Salinas Valley has been a repeat offender. The same produce from other regions has not been linked to this recurring scourge. Yet, it is impossible for consumers to know where the produce in packaged salads is grown. Producers should be required to list the source of each vegetable they sell. This disclosure is neither costly nor difficult. It could be coupled with an Internet list of every farm and producer implicated in outbreaks. Armed with this basic information, consumers will be empowered to make informed choices about the products they purchase and consume. In that respect, it is no different than another food safety trend - local health departments publishing restaurant inspection results. If you can find out about a restaurant's cockroaches. shouldn't you have the right to know about bugs you can't see?
The other primary E. coli O157:H7 vector is meat, particularly ground beef. In response to lethal foodborne illness outbreaks linked to meat processors, the USDA mandated a food safety system identified by the acronym, HACCP - Hazard Analysis and Critical Control Point. Under a HACCP regime, each producer is required to create a site-specific food safety plan based on seven food safety principles. As the FDA recently stated, "The strength of HACCP is its proactive approach to prevent food contamination rather than trying to identify and control contamination after it has occurred."
Most consumers expect that their produce is safer than their meat yet fresh-cut lettuce and spinach producers are not required to adopt HACCP plans under current law. While certainly not fool-proof, HACCP has helped to reduce the incidence of foodborne pathogen outbreaks in the meat industry and should be immediately adopted for fresh-cut produce.
Greater transparency and basic regulatory requirements would surely curb the steady stream of deadly E. coli O157:H7 outbreaks. The question is whether we have the will to force change. Unfortunately, I'm guessing a twenty-first outbreak is not very far away.
Fred Pritzker practices extensively in the area of foodborne illness litigation and has recovered millions for victims of food poisoning. Learn more about E. coli lawyer Fred Pritzker on our website, www.pritzkerlaw.com. To contact Fred Pritzker, call toll-free at 1-888-377-8900, e-mail fhp@pritzkerlaw.com or fill out the online, E. coli-lawyer consultation form.
