Will We Ever Learn? – “Obamaburger”Will We Ever Learn? – “Obamaburger”

Ray's Hell Burger, a.k.a. Butcher Ray's Hell Burger, a.k.a. Butcher Burger, had Critical Food Safety Burger, had Critical Food Safety Violations:Violations:

Employee was observed contacting Employee was observed contacting ready-to-eat (RTE) food [hamburger ready-to-eat (RTE) food [hamburger roll and lettuce] with their bare roll and lettuce] with their bare hands.hands.

The food establishment serves The food establishment serves hamburgers [cooked-to-order] hamburgers [cooked-to-order] undercooked without informing undercooked without informing consumers of the significantly consumers of the significantly increased risk.increased risk.

Insect, rodent, and/or other pest Insect, rodent, and/or other pest harborage conditions exist on the harborage conditions exist on the premises [mouse droppings were premises [mouse droppings were observed on the floor of the storage observed on the floor of the storage room].room].

Why What We Do Is ImportantWhy What We Do Is Important

Salmonella Pot PiesSalmonella Pot Pies

272 isolates of Salmonella 272 isolates of Salmonella I 4,[5],12:i:- with an I 4,[5],12:i:- with an indistinguishable genetic indistinguishable genetic fingerprint were collected from fingerprint were collected from ill persons in 35 states. Three of ill persons in 35 states. Three of these patients’pot pies yielded these patients’pot pies yielded Salmonella I4,[5],12:i:- isolates Salmonella I4,[5],12:i:- isolates with a genetic fingerprint with a genetic fingerprint indistinguishable from the indistinguishable from the outbreak pattern.outbreak pattern.

LessonLesson - clear pattern of customer confusion over - clear pattern of customer confusion over ready to eat and ready to cook – especially in ready to eat and ready to cook – especially in microwaves.microwaves.

Salmonella Veggie Booty?Salmonella Veggie Booty?

69 reported cases of 69 reported cases of Salmonella Wandsworth in 23 Salmonella Wandsworth in 23 states and 14 cases of states and 14 cases of Salmonella Typhimurium in Salmonella Typhimurium in six states who became ill six states who became ill after consuming Veggie after consuming Veggie Booty, a puffed vegetable Booty, a puffed vegetable snack food with a raw, dried snack food with a raw, dried vegetable coating. A total of vegetable coating. A total of 61 bags were tested in 61 bags were tested in twelve states. Salmonella sp. twelve states. Salmonella sp. was isolated from thirteen was isolated from thirteen bags of Veggie Booty. bags of Veggie Booty.

LessonLesson – know your suppliers. – know your suppliers.

Salmonella Tomatoes, or was it Salmonella Tomatoes, or was it Peppers?Peppers?

A final count of 1,442 ill in 43 states, D.C., and Canada, and those are the confirmed illnesses. Using CDC math - which estimates that for every documented case of salmonella in the US, another 38.5 go unreported - the total number sickened was probably closer to 50,000.

Lesson – FDA and CDC are woefully underfunded and understaffed.

Botulism in a CanBotulism in a Can

As of August 24, 2007, eight cases of botulism had been reported to CDC from Indiana (2 cases), Texas (3 cases), and Ohio (3 cases). All eight persons were reported to have consumed hot dog chili sauce made by Castleberry's Food Company.

Castleberry’s manufacturing facility closed after decades in operation.

Lesson – Invest in equipment and people.

E. coli and Campylobacter in Raw MilkE. coli and Campylobacter in Raw Milk

Peanut Butter and Salmonella - AgainPeanut Butter and Salmonella - Again

As of last week, over 691 persons infected with the As of last week, over 691 persons infected with the outbreak strains of outbreak strains of Salmonella Typhimurium Salmonella Typhimurium have been reported have been reported from 46 statesfrom 46 states

Over 150 people Over 150 people hospitalizedhospitalized

Nine DeathsNine Deaths Over 3,800 products Over 3,800 products

recalledrecalled BankruptcyBankruptcy Criminal ProsecutionCriminal Prosecution Declaratory JudgmentDeclaratory Judgment Lesson - ?Lesson - ?

Jack in the BoxJack in the Box

1992 and 1993 Nearly 600 people sickened in

six States – most children - 50 HUS – 4 deaths

Two Class Actions – Hundreds of Individual Suits

Shareholders Litigation, Congressional Investigation

Settlements in Excess of $100,000,000

Cause - knowingly undercooking

E. coli and Hamburger – Together E. coli and Hamburger – Together AgainAgain

In 2007 and 2008 – In 2007 and 2008 – 26 recalls; ground 26 recalls; ground beef companies beef companies recalled more than 44 recalled more than 44 million pounds of E. million pounds of E. coli O157:H7-coli O157:H7-contaminated meat.contaminated meat.

In 2006 – 186,000 In 2006 – 186,000 pound recalled.pound recalled.

E. coli is back – Why?E. coli is back – Why?

Complacency:  After five years of progress with the E. coli problem, one wonders if meat processors have consciously or unconsciously slacked off, relaxing their testing procedures so that they are less likely to detect tainted meat.

Better Reporting:  More doctors are more likely to recognize the symptoms of E. coli poisoning, thereby increasing the chances that an outbreak will be detected, leading to a recall.

E. coli is back – Why?E. coli is back – Why?

Global Warming:Global Warming:   Too dry? Too dry? One theory has it that One theory has it that drought through much of drought through much of the southeast and southwest the southeast and southwest has led to more fecal dust has led to more fecal dust wafting in the breezes wafting in the breezes through beef-slaughtering through beef-slaughtering plants, creating new plants, creating new avenues for beef to become avenues for beef to become tainted. tainted.

Too wet?Too wet? This theory focuses on excessive rainfall in This theory focuses on excessive rainfall in other regions, which leads to muddy pens that serve other regions, which leads to muddy pens that serve as an ideal vehicle for E. coli at meat-processing as an ideal vehicle for E. coli at meat-processing plants.plants.

E. coli is back – Why?E. coli is back – Why?

High oil prices: High oil prices:  The theory is The theory is that $3 gas has fueled the that $3 gas has fueled the growth of ethanol plants. Those growth of ethanol plants. Those plants tend to be built next to plants tend to be built next to feedlots because the plants feedlots because the plants produce a byproduct called produce a byproduct called distiller’s grains, which serves distiller’s grains, which serves as an excellent feed for as an excellent feed for livestock. Problem is, according livestock. Problem is, according to research at Kansas State to research at Kansas State University, the distillers grain University, the distillers grain also increases the incidence of also increases the incidence of E. coli in the hindguts of cattle.E. coli in the hindguts of cattle.

E. coli is back – Why?E. coli is back – Why?

Illegal Immigration:Illegal Immigration:    Wait, perhaps not. The Wait, perhaps not. The New York Times reported New York Times reported that immigration officials that immigration officials began began a crackdown at a crackdown at slaughterhouses across the slaughterhouses across the country last fall. Some are country last fall. Some are now hiring men from now hiring men from homeless missions and homeless missions and providing free providing free transportation to many transportation to many of them. of them.

Hmmm, an influx of Hmmm, an influx of unskilled, but U.S. unskilled, but U.S. workers, with no workers, with no experience and high experience and high turnover.turnover.

Risk of ImportsRisk of Imports

It Can Happen In Great BritainIt Can Happen In Great Britain

2009 Salmonella outbreak in UK linked to seeds

(Estimated 137 ill)

2008 Cryptosporidium outbreak in UK

(700 reported ill, 23 confirmed  Listeriosis outbreak in UK hospital

(Estimated 5 cases) Salmonella Agona outbreak

in UK/Ireland(Estimated 114 ill and 1 dead)

2007 Cryptosporidium outbreak Galway, Ireland

(Estimated 200 ill) Salmonella in UK from Cadbury

(Estimated 40 ill)

It Can Happen In Great BritainIt Can Happen In Great Britain

20062006 Botulism outbreak in Scotland Botulism outbreak in Scotland

(Estimated 200 cattle ill)(Estimated 200 cattle ill)   Salmonella Montevideo in UK to chocolateSalmonella Montevideo in UK to chocolate

(Estimated 37 ill)(Estimated 37 ill)

20052005 E. coli outbreak in WalesE. coli outbreak in Wales

(Estimated 172 ill and one dead)(Estimated 172 ill and one dead) Cryptosporidium outbreak in WalesCryptosporidium outbreak in Wales

(Estimated 203 cases)(Estimated 203 cases)

20042004 Salmonella Thompson outbreak in UKSalmonella Thompson outbreak in UK

(Estimated 46 cases)(Estimated 46 cases) Salmonella Newport outbreak in UKSalmonella Newport outbreak in UK

(Estimated 350 cases)(Estimated 350 cases)

And, then there is ChinaAnd, then there is China

Emerging Foodborne PathogensEmerging Foodborne Pathogens

E. coli O111 linked to nearly 300 illnesses and one death in Oklahoma. E. coli O111 and other Shiga-toxin E. coli are NOT listed as an adulterant under the Federal Meat Inspection Act – Yet.

MRSA

C. dif

Bird Flu – Swine Flu

Mad Cow

Incentives for Companies Incentives for Companies to Produce Safe Food Productsto Produce Safe Food Products

Market Forces - risk of damage to business reputation, loss of market share, and decreased sales revenue;

• Contract Specifications as a “market force”

• Charging a “premium” for safer food

Food Safety Laws and Regulations - violations can result in fines, product-recalls, plant-closures or criminal penalties

Incentives for Companies Incentives for Companies to Produce Safe Food Productsto Produce Safe Food Products

Strict Liability For Food: In SumStrict Liability For Food: In Sum

STRICT LIABILITY IS LIABILITY STRICT LIABILITY IS LIABILITY WITHOUTWITHOUT REGARD TO FAULTREGARD TO FAULT

The focus is on the product; not conduct.

You are liable if:• The product was

unsafe and thus defective

• The defective product causedan injury

Planning Planning AGAINSTAGAINST Litigation Litigation What Is Really ImportantWhat Is Really Important

Identify HazardsIdentify Hazards• HACCPHACCP• Do you have Do you have

qualified/qualified/committed committed people?people?

Questions?Questions? (206) 346-1888www.marlerclark.com

Marler Clark LLP, PS6600 Columbia Center701 Fifth AvenueSeattle, Washington 98104