E Coli Lawyer & Attorney : Marler Clark Law Firm : E. coli Blog

The safety of our leafy green food supply - mainly lettuce and spinach - has received significant attention since the USDA's Agricultural Marketing Service published a request for comments regarding proposed national leafy greens handling regulations in October.  According to Michael Durando, branch chief of USDA's marketing order administrative branch, who was interviewed for an article in the Washington Post that was published yesterday, this request generated over 3,500 comments - considerably higher than the average 2-3 responses for an average issue or 100 or so comments for a "hot-button" issue. 

The Washington Post article, written by Bloomberg News reporter Cindy Skryzcki, is titled, "In a Pickle Over Self-Regulation for Produce Growers".  For the article, Ms. Skryzcki interviewed various stakeholders who will be impacted by decisions made regarding whether government or industry should regulate the growth and distribution of fresh produce.  Stakeholders include leafy greens marketing groups, farmers, and the USDA. 

Ms. Skryzcki wrote about differences of opinion in the comments that have thus far been submitted, which include viewpoints on whether all farms and processors should be required to follow the same standards and whether industry should be able to regulate itself with such agreements as marketing agreements instituted by California and Arizona leafy greens growers and handlers after the 2006 spinach E. coli outbreak instead of facing formal government regulation. 

From the article: 

The Western Growers Association said there should be no exemptions from uniform steps that growers and handlers should have to follow to certify the safety of lettuce, spinach, endive, kale, cabbage and other greens.

At a congressional hearing in May, Joseph Pezzini, an executive with Ocean Mist Farms in Castroville, Calif., and the chairman overseeing California's Leafy Green Handlers Marketing Agreement, said industry is best suited to define best practices for handling the covered vegetables.

The Consumers Union's Odabashian opposed the marketing-agreement plan in comments, saying the Agriculture Department idea isn't appropriate for addressing safety concerns. She said in an interview that the California agreement, which went into effect in July, didn't prevent two recent recalls.

While we all share the goal of reducing the incidence of foodborne illness outbreaks traced to contaminated produce, USDA faces a tough decision.

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In an editorial titled, "Is the meat you buy safe enough?" that appears online at the Eco-Logic Powerhouse website, Henry Lamb evaluates the state of the meat industry and USDA's role in it.  He reviews the recent E. coli outbreaks linked to meat produced at Topps and Cargill, and poses the question, "Every package of this contaminated meat contained a USDA inspection seal. Why did the USDA inspection fail to discover this contamination before it was shipped to stores across the nation?"

Mr. Lamb analyzes what in his view is the inadequacy of the current USDA inspection system and discusses USDA's current efforts to implement an animal tracking system - which he believes is completely unnecessary:

How can this inspection deficiency be corrected? Will it take more inspectors? Will it take new procedures? Whatever it takes, American consumers expect the USDA Food Safety and Inspection Service to do whatever is necessary to assure that the meat that reaches the grocery store is safe.

In view of these two most recent recalls, it would seem that the USDA would be extremely embarrassed, and working on a crash program to improve their food safety procedures. Apparently, the USDA has higher priorities.

There is far more interest and effort at the USDA to get every property where any one of 29 species of livestock animals reside, registered into a federally controlled database. What does this effort have to do with preventing contamination in the meat processing plant?

Mr. Lamb addresses the argument that irradiation will make food safer, and counters with the argument that if food irradiation is implemented there will be less pressure on slaughterhouses to prevent contamination.

And as to the question of why the average American should care about meat safety, Mr. Lamb concludes, "It matters not how safe the USDA system might be, if you are among those who fall ill as the result of inadequate USDA inspection procedures. To these people, the system is obviously not safe enough."

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The California Department of Food and Agriculture (CFDA) today announced that members of the California Leafy Greens Handler Marketing Agreement (LGMA) can begin using a service mark on July 23.  The service mark certifies membership in the LGMA program, and "indicates a handler's commitment to a set of Good Agricultural Practices audited by the LGMA." 

In a press release issued by CFDA, Chairman of the LGMA communications committee and member of LGMA board of directors Tom Nunes stated, "The service mark reflects a handler's commitment to implementing enhanced food safety standards.  By using it on their bills of landing, our signatories will be communicating to customers that they are members in good standing of the LGMA."

LGMA CEO Scott Horsfall commented on the use of the service mark:

Using the service mark communicates that a handler is in compliance with the marketing agreement, which means they are producing and marketing lettuce, spinach and other leafy green products in California according to the enhanced Good Agricultural Practices accepted by our board.

In the past, firms identified as the source of E. coli outbreaks traced to leafy green products like spinach and lettuce have been in compliance with Good Agricultural Practices.  Does this new service mark indicating a member's good standing in the LGMA really translate into safer food? 

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Yesterday, the California Assembly Agriculture Committee defeated Senate Bill 202, and did not vote on Senate Bills 200 and 201, all bills introduced by California Senator Dean Florez.  The bills, as summarized below, were introduced in response to last year's E. coli O157:H7 outbreaks traced to contaminated spinach and lettuce grown in California. 

• Senate Bill 200 gives the Department of Health Services the much-needed authority to recall, quarantine, or destroy produce which may pose a threat to the public. The measure also creates an inspection program to proactively address the threat of outbreaks. DHS inspectors would have the authority to conduct periodic on-farm inspections, including testing of water, soil and produce.
• Senate Bill 201 mandates Good Agricultural Practices for leafy green growers, covering everything from water and fertilizer use, to worker hygiene, to the creation of buffer zones between fields and potential contamination sources. Growers would be required to maintain extensive documentation of these practices. These documents would be reviewed by DHS to ensure compliance.
• Senate Bill 202 calls for the creation of a traceback system that can quickly trace contaminated produce through the various stages of the distribution process, from farm to processor, to distributor, to retailer. In the most recent E. coli outbreaks, lettuce and spinach producers nationwide took a major economic hit, because it could not immediately be determined where the contaminated produce came from and every farm was suspect. The ability to quickly find the specific source in an outbreak, combined with DHS’ ability to quarantine or destroy suspect produce, will prevent a similar industry-wide hit in future E. coli outbreaks.
  

According to an article in the Fresno Bee, Senator Florez and Assembly Member Nicole Parra, a member of the Assembly Agriculture Committee, engaged in a heated exchange over the bills.  As opposed to government regulation, Assembly Member Parra supports industry self-regulation.  E.J. Schultz wrote for the Bee:

Parra, who earned the endorsement of the California Farm Bureau Federation in her last election, told reporters that she was "to this point" satisfied with the industry approach.

"Food is never 100% secure, so even waiting for one more fatality and blaming the industry is not fair," she said after the hearing. "We will do everything to work with [state agriculture officials] and the industry to make sure our food is as safe as it can be."

During the hearing, she blasted Florez: "I know you're going to go out to the press and probably say that if someone else dies, it's on our back. Well, don't blame the members of this committee, senator. Blame me if you have an issue, but that is not the message that we want to get out of this committee."

Florez shot back, criticizing Parra and the committee for failing to vote on two of the bills.

"I think this is one of those cowardly acts that will just kind of haunt people as they go on," he told reporters after the hearing. "And people will ask the question, 'Why didn't you ever vote on food safety?' At least say yes or no."

Meanwhile, the Western Growers Association put out a press release applauding the Assembly Agriculture Committee's refusal to vote on Senate Bills 200 and 201 and its defeat of Senate Bill 202:

"We are very pleased with the committee's decision to stop these pieces
of legislation and allow our industry an opportunity to show that the Leafy
Greens Handler Marketing Agreement is the most effective approach to
ensuring the leafy greens grown, harvested, packed and shipped to our
dinner tables is as safe as scientifically possible," said Western Growers
President and CEO Tom Nassif. "Assembly Member Parra has shown incredible leadership and resolve in dealing with this issue, and we truly appreciate her and the committee's vote of confidence."

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CNN is featuring a video on food safety on their Web site.  The video, which can be accessed here, focuses on how spinach fields can become contaminated with E. coli O157:H7. 

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Marian Burros, a journalist with the New York Times, interviewed Marler Clark client Elizabeth Armstrong, asking her about her recent testimony in front of the US House Energy & Commerce Subcommittee on Oversight and Investigations, for an article titled, "Who's Watching What We Eat?" that appeared in today's edition of the New York Times.  She started her column about food safety with a recount of the events that led up to Elizabeth and her husband Michael becoming food safety advocates:

ELIZABETH ARMSTRONG did not give the Food and Drug Administration much thought until her children became ill from eating contaminated bagged spinach.

Her 2-year-old daughter, Ashley, one of more than 200 people affected by the outbreak of E. coli 0157:H7 in spinach last year, is still dealing with the effects of kidney failure. Today she is off dialysis and home from the hospital. But she is on daily medication and will eventually need a kidney transplant, said her mother, who lives with her family in a suburb of Indianapolis.

The incident galvanized Ms. Armstrong, turning her into something of a food-safety activist. Testifying before Congress in April, she said that the Food and Drug Administration, the agency responsible for regulating much of the food we eat, including spinach, needed to be reformed.

She continued her article with a report on efforts to overhaul the US Food and Drug Administration, and included comments from important players in the food industry, including a quote from former FDA commissioner Dr. David Kessler, who stated, "Our food safety system is broken," and mentioned the recent Government Accountability Office designation of food safety as being "high risk":

This year the nonpartisan Government Accountability Office, the investigative arm of Congress, added the country’s food safety system to its list of “high risk” operations. The fact that 12 different agencies have some responsibility for food safety does not help, said a G.A.O. report, which recommended that all food safety matters be regulated by one agency.

The entire article, which includes many perspectives on food safety, is available on the New York Times Web site.

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Today's Daily Record, a newspaper out of Morris County, New Jersey, featured an article on former Marler Clark client Barbara Kowalcyk.  Barbara served on the Board of Directors for S.T.O.P. (Safe Tables Our Priority) for several years, and recently formed the Center for Foodborne Illness Research and Prevention (CFI). 

Barbara and her husband, Michael, were propelled into food safety advocacy in 2001, when their two-year-old son, Kevin, died after suffering an E. coli O157:H7 infection and hemolytic uremic syndrome.  In the article, Barbara was quoted on what led her to become an activist:

"Our public health department didn't have the resources or, frankly, the desire to spend a lot of time investigating our case because it wasn't part of an outbreak," Kowalcyk said. "They did very little to help us. We only found out what we did because we contacted an attorney and he worked on our case."

The Kowalcyks had limited knowledge of foodborne illness before their son got sick. The family lived in Wisconsin at the time. They now live in Loveland, Ohio, near Cincinnati.

"We knew a lot more than most people do. We didn't eat out very often, yet we really didn't know enough," Kowalcyk said. "We both are highly educated; we both have master's degrees. I am a biostatistician by training and spent my entire career working in clinical research, so I am publicly health-minded anyway. We were well aware that food could kill."

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CBS News correspondent Wyatt Andrews interviewed Marler Clark client Lisa Brott, who became ill with an E. coli infection after eating E. coli-contaminated spinach in September, former USDA and FDA food safety official Michael Taylor, and Senator Dick Durbin for a story that aired tonight on the CBS Evening News.  Notable comments included the following:

"There's no one in charge in the federal food safety system."  - Michael Taylor

"The basic allocation has nothing to do with who's getting sick, and it's out of proportion to where the actual risks in the food supply." - Michael Taylor

"When you consider 75 million Americans with food-borne illnesses each year, I do believe a better, more modern, streamlined agency would reduce those numbers. And it means that more people would survive." - Senator Dick Durbin

"It's outrageous so many people are poisoned by food.  A lot more has to be done, whatever it takes, to protect people's health." - Lisa Brott

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