Take the "Cold" out of Cold Cuts and Put Back the "Hot" in Hot Dogs

We've blogged a lot about listeria and avoiding it is a good idea, in the neighborhood of "breathing is a good idea."  The CDC, in an article reported by Elizabeth Weise in USA Today Wednesday, is recommending a couple of things in connection with cold cuts, including hot dogs, for those over 50, and in particular those over 65, to avoid listeria:

  • Reheat them to 165 degrees Fahrenheit just before eating
  • Don't keep them in the refrigerator longer than five days after opening

Which kind of takes the "cold" out of cold cuts, doesn' t it? 

Ms. Weise's article then goes on to explain what a change this would be in the behavior of people who are often dependent on lunch meats as a relatively inexpensive source of protein, and to question where the source of this advice is coming from.  The CDC, for its part, notes that listeria doesn't go away when refrigerated and doesn't give either visual or olfactory clues to its presence.  The industry response is that consumers should look for products containing antimicrobials like sodium lactate or potassium lactate. 

As the article implies, this advice is counterintuitive for many people.  Moreover, as one person quoted in the article points out, the placing of the label of "risky" on such an ordinary item takes away some of life's enjoyment as well.  That is not to deny that the risk is real, but it is akin to a "Black Swan" event whose probability may be low but where the consequences of the event occurring are high and can change the way we think.  Pregnant women and people with weakened immune systems are at high risk, but constitute a more discrete part of the population that is generally more likely to consider itself in need of health information.  I'm 54 and don't think of myself as at extra risk of this kind of food-borne illness. 

On the other hand, I haven't eaten any cold cuts or hot dogs since I started getting a reaction to them while still in my 30s. 

ACI Food-Borne Illness Conference in Chicago October 27 - 28, 2010

American Conference Institute (“ACI”) will hold its 4th National Conference on Food-Borne Illness Claims in Chicago, October 27 to 28. Highlights of this year's conference will include:

• Appearances by a number of current and former high-level regulators such as Dr. Arthur Liang from CDC, Dr. David Goldman from USDA, Dr. David Acheson formerly of FDA, Dr. Bob Brackett formerly of CFSAN, Jack Guzewich from FDA, Dr. Bill Keene from Oregon Public Health Division and Benjamin Miller from Minnesota Department of Agriculture

• Mock witness examination of a testifying epidemiologist

• Insights from of the nation's top in-house and outside food-borne illness counsel

The complete conference brochure can be linked here.

Unfortunately, my schedule won't allow me to join the conference this year (I've spoken at the first three ACI national conferences on food-borne illness). But I can arrange for a conference discount. Just give me a call (206-386-7595) or send me an email.

CDC Sees "Sustained Decline" for 2009 in Reported Rates of Food-Borne Illness, but Is This Real?

A somewhat surprising report out this week by the CDC reports for 2009 "sustained declines in the reported incidence of infections caused by Campylobacter, Listeria, Salmonella, Shiga toxin-producing Escherichia coli (STEC) O157, Shigella, and Yersinia." Only Vibrio seems on the rise. For E.coli O157:H7 infections, the CDC claims its "Healthy People 2010 target" was met.

The chart below shows the trend lines since 1996 in the reported incidence for many of these pathogens:

FIGURE 1. Relative rates of laboratory-confirmed infections with Campylobacter, STEC* O157, Listeria, Salmonella, and Vibrio compared with 1996-1998 rates, by year -- Foodborne Diseases Active Surveillance Network (FoodNet), United States, 1996-2009†

While the news sounds good,(see Rick Goldfarb's detailed analysis of the implications of the 2009 report for context) other factors could be at play that give only the appearance of a safer food system. One explanation can be found in a CDC report from 2009 that "in 2009, 10% fewer epidemiologists were working in state health departments than in 2006." The data the CDC has is only as good as the capacity the state health departments have on the ground to collect it. Fewer epidemiologists means fewer investigated food-borne illnesses. Fewer investigated food-borne illnesses means fewer reported food-borne illnesses. Fewer reported food-borne illnesses, therefore, does not necessarily mean the existence of fewer food-borne illnesses.

PepsiCo Developing "Designer Salt" in Effort to Reduce Sodium Content

Sodium content issues continue to be a hotbed of activity in the food industry. Hot on the heels of the New York City-led National Salt Reduction Initiative (which we blogged about here), an article in the Wall Street Journal gives us an indication on how one major brand is responding to the pressure to reduce the sodium content in its products.

PepsiCo Inc., which manufacturers the popular Lay’s brand potato chips, is developing a new “designer salt” with crystals shaped and sized in a way that reduces the amount of sodium consumers ingest while snacking. PepsiCo’s hope is that this innovation will cut sodium in its Lay’s Classic brand by 25%, and perhaps even more in its seasoned chips. This move is also consistent with PepsiCo’s stated goal of reducing the sodium in its snack products by 25% by 2015. PepsiCo anticipates it could take up to two years before the new salt is introduced in the marketplace.

This effort reflects a growing recognition within the food industry of the pressure to reduce salt content. According to the Centers for Disease Control and Prevention, most Americans consume more than twice their recommended daily limit of sodium. Excessive salt intake has been linked to a litany of health problems, including high blood pressure and heart disease. The challenge for food manufacturers (specifically those who manufacture processed foods, which are the source of most of the sodium Americans consume), as the Wall Street Journal points out, is that any adjustments to sodium content will have an impact on the overall taste profile of the product. Thus, manufacturers must strike a delicate balance between health concerns and the marketability of their products to target consumers. With new U.S. dietary guidelines due to be released this year and rumblings that sodium intake recommendations will be lowered by a significant degree, we will continue to monitor this issue.

Food Liability 2010: More of the Same and Landmark Change?

We’re in the “crystal-ball” season—time to look forward and assess what’s coming in 2010 and beyond. The most likely scenario: more of the same and landmark change.

More of the Same

The last few years have seen growth in both the number of food-borne illnesses detected and the variety of foods affected. This is because more resources are being put into detection (though the CDC recently reported an overall decline in epidemiological capacity by the states) and technology is continuing to advance (think Next Generation Sequencing). There’s little reason to believe these trends will abate in 2010. Expect more outbreaks. Expect to hear about recalls of products not previously implicated in food-borne illness.

Landmark Change

Nobody doubts that we’re in the midst of the most significant legislative and regulatory changes in food safety in generations. Most believe that Congress will pass some form of food safety legislation (e.g., S 510 or HR 2749) in the new year. It will likely include the most comprehensive food safety reform in decades. Among other things, this legislation is likely to give FDA mandatory recall power and great authority for risk-based inspections, and require FDA to create a traceability program.

FDA and USDA are already pushing the boundaries of their current authority to become more aggressive on food safety and labeling enforcement. Examples include USDA moving toward classification of Salmonella as an adulterant, more aggressive rules on ground beef safety, and increased retail enforcement. FDA is already studying how traceability could work, being more aggressive in identifying products and retailers in the event of recalls, reexamining the effectiveness of current nutritional labeling requirements, and investigating whether front of pack nutrition labeling (FOP) practices need to be regulated.

And on the heels of legislative reform and increased regulatory enforcement come the lawyers. Action by the government creates new avenues for the plaintiffs’ bar. Food litigation will likely increase in prevalence both in product liability claims (i.e., food contamination) and in putative consumer fraud class claims into 2010 and beyond.

Some Take-Aways from ACI's 3rd National Forum on Food-Borne Illness Litigation

American Conference Institute (ACI) recently held its latest conference on food-borne illness litigation. The conference has been a fairly intimate gathering of the nation’s lawyers, insurers and experts involved with food-borne illness litigation.

This year, I had the privilege of moderating an in-house counsel “think tank.” The panel was composed of lawyers from a nice cross-section of food businesses: Yum Brands, Hormel, Fresh Express and SUPERVALU (though for each, food-borne illness litigation is a rare event)  A slide-deck from the panel can be found here.

Also among the presenters at this year’s conference were Center for Disease Control’s (CDC) Dr. Arthur Liang and USDA/FSIS representative Dr. Dan Engeljohn. Both presentations provided fascinating insight into changes afoot in food safety enforcement and policy at the federal level. Here are some of the take-aways:

“Outbreaks Waiting to Be Discovered” – Dr. Liang opined that, based on surveilled illnesses, most food-borne illness outbreaks are not presently discovered. He believes that recent data shows that there are perhaps 2-3 times more outbreaks nationally than what’s been uncovered over the last few years.

• Food Safety Progress Being Undone by Retail Deli Operations – FSIS says there has been a “steady increase in risky behavior at the retail level.” According to Dr. Engeljohn, budget authority is being sought to intervene with retailers, particularly smaller supermarket deli operations.

Negative Tested Product Can Be Considered Adulterated - FSIS will be issuing a policy soon that for the first time will consider a “negative tested product to be determined adulterated” under circumstances where an associated product tested positive for pathogens.

Non-0157 STECs - FSIS will be finalizing methodology to detect non-0157 Shiga Toxin-Producing Escherichia coli (STEC).

Hungry for Change: ABA Journal on Food Safety Reform and Its History

Kristin Choo has written a piece for the ABA Journal tracking the history of food safety regulation, recent outbreaks and current legislation pending in Congress. I am grateful to be mentioned in the piece. The article can be found at this link.

 Ms. Choo writes:

Litigation is likely to increase as a pumped-up FDA, an arm of the Department of Health and Human Services, identifies more outbreaks of food-borne illness and collects more evidence about their causes. Meanwhile, many companies are likely to struggle, at least initially, with stricter requirements to develop safety plans, disclose business records when outbreaks occur and improve procedures for tracing products, according to Kenneth M. Odza, a member of Stoel Rives in Seattle, who litigates food safety cases and writes a blog on the subject.

Ms. Choo also includes a summary of information (see below) derived from CDC documented outbreaks (two or more people with the same illness after eating the same contaminated food) from 1990 to 2006 broken down by category of food. Note that nearly 50% of illnesses documented are from produce or "multi-ingredient."  Produce and "multi-ingredient" account for about twice the number of illnesses as beef and poultry combined.

Category Outbreaks Illnesses
Beef 518 14,191
Beverages 101 3,640
Breads and Bakery 179 4,904
Dairy 221 6,364
Eggs 351 11,143
Game 28 193
Luncheon and Other Meats 196 7,108
Multi-Ingredient 1,054 30,254
Pork 233 6,954
Poultry 620 18,906
Produce 768 35,060
Seafood 1,140 11,809
Other 369



Liability Limits: How Much Should Your Food Company Maintain?

Food business clients frequently want to ensure that they have sufficient liability limits in the event of an outbreak (they also want to make sure they have adequate coverage, but this is a separate discussion). Determining the amount of a business’s limits depends on the business’s possible exposures. No one-size-fits-all formula is available. Every business should have a yearly conversation with its counsel and broker to determine what makes sense.

Disclaimers aside, a few pieces of recent news should help inform the discussion of liability limits:

First, we've learned more about the food-borne illness claims filed in the peanut outbreak earlier this year. Here’s a complete list of the claims (personal injury, commercial, etc.) asserted in the PCA bankruptcy and a newspaper article about them. Most of the claims appear to be filed by Marler Clark, though other food-borne illness claims also appear. So far, I count about 100 claims filed in the PCA bankruptcy (out of a CDC-reported 714 illnesses). Of those claims, at least eight resulted in deaths. The death claims are valued by the plaintiffs'  at $10 million each. The nondeath claims are valued at up to $1 million each. Total personal injury claims are approximately $150 million. Plaintiffs have probably overstated their claims, but given the national outrage against PCA, a jury might lend credibility to the bloated values and award larger sums.

The other recent news is that CDC has released some interesting statistics about food-borne illnesses. For 2006, leafy vegetables and fruits/nuts accounted for the largest number of reported cases of food-borne illness (33%). Produce and nut products that might not have been associated in the past with food-borne illness (and, therefore, liability exposure) are now frequently associated with outbreaks. As exemplified by the PCA situation, claims from a national or even a regional outbreak from produce or nuts can easily exceed $100 million.

The Perils of Raw Cookie Dough

Nestlé is voluntarily recalling all its refrigerated and frozen chocolate chip cookie dough.  The FDA and CDC warn of the risk of contamination with E. coli O157:H7.  In its release, Nestle says the following: 

Nestlé Toll House cookies made from refrigerated and frozen dough are perfectly safe for consumption when prepared according to the instructions on the label. These clearly state that the raw dough must be baked before consumption.

The CDC has a podcast telling kids the same thing: don't eat raw cookie dough. 

Nestlé is suggesting that consumers return unused cookie dough to their stores for a full refundWe assume that Nestle will be reimbursing the stores. 

We have complimented Nestle for its food safety program in the past.  As their release says, "The safety and quality of its products is a non-negotiable priority for Nestlé, and the company apologizes for any inconvenience cause by this voluntary recall. " 

But there is good news:  the recall doesn't affect any chocolate chips, or any baked cookies. 

Pork Producers Feel Effects of Swine Flu

Pork producers are feeling the effects of the swine flu as the number of reported cases of the virus increases.  Stock prices for Virginia-based Smithfield Foods, the world’s largest pork processor, and Arkansas-based Tyson Foods, fell 12 percent and 9 percent today, respectively.  The Wall Street Journal reports that the prices of hogs, corn, and soybeans also dropped today.  About 16 percent of U.S. pork exports have been shipped to Mexico over the past year – a country where so far 149 people have died from the swine flu.

The Centers for Disease Control and Prevention and other health officials have emphasized that swine flu viruses are not transmitted by food and people cannot contract the virus by eating pork or pork products.  That fact alone does not seem to be enough to quell consumers’ fears. MarketWatch earlier today quoted a pork industry analyst as saying the industry wants to avoid a slip of exports and prices akin to the 2003 avian flu outbreak in Asia.  Analyst Heather Jones said she believes the pork industry “needs to undertake an aggressive and widespread informational marketing campaign.”

Meanwhile, the Associated Press is reporting that Seattle-based Starbucks Corp. announced today that it is closing 10 of its Mexico City cafes in response to the swine flu outbreak and pursuant to instructions from the Mexican government.

FDA and CDC Warn of Salmonella in Raw Sprouts

The U.S. Food and Drug Administration and the Centers for Disease Control and Prevention are recommending against eating raw alfalfa sprouts because of potential salmonella contamination.

According to the FDA, the salmonella contamination appears to be in seeds for alfalfa sprouts. As of yesterday, 31 cases of illness with Salmonella Saintpaul have been reported to the CDC. The reported cases are in Michigan, Minnesota, Pennsylvania, South Dakota, Utah, and West Virginia. The FDA cautions that the number of infected people may rise because some illnesses have not yet been confirmed with laboratory testing.

The FDA believes this outbreak may be linked to an outbreak from earlier this year. Its initial investigation traces the contaminated raw alfalfa sprouts to multiple sprout growers in multiple states. Additional details are available here.

Food-Borne Illness: Glass Half-Empty or Half-Full?

The Centers for Disease Control has issued a study of the incidence of food-borne illness in ten states.  The study, by the Foodborne Diseases Active Surveillance Network, known as "FoodNet", in general concludes that food-borne illness has not significantly either increased or decreased in the United States since 2004, after substantial gains in food safety from 1996 to 2004. 

The Associated Press article on this, by Mike Stobbe, is entitled, "CDC: US food poisoning cases held steady in 2008."  This is an appropriately neutral headline.  What is interesting is how different media outlets have dealt with the story

Reuters, in an article by Julie Steenhuysen, uses the headline, "U.S. making little progress on food safety."  She emphasizes in the lede the use in the study of the word "plateaued."  Lyndsey Layton's Washington Post article is headed, "CDC Study Finds Some Food-Borne Illnesses Rising in U.S."  The article's lede actually says that the rate has "remained stagnant", and nowhere in the article is any mention made of any specific diseases whose rates have risen (the article instead clumps together some where rates have either risen or remained constant, without distinguishing which are which).  The UPI headline is "Little Progress in U.S. food safety", similar to the New York Times's "U.S. Food Safety No Longer Improving, Data Show". 

On the rosier side, the Wall Street Journal's Jacob Goldstein blogged with the headline, "Reality Check on Foodborne Illness Rate." Goldstein takes the position that the lack of an increase given the wide publicity to certain outbreaks is an indication that things are doing well.  It is not clear, however, whether Goldstein understood, as the Washington Post article reported,

The data did not include the ongoing national outbreak of salmonella illness linked to peanut products that began in late 2008 but peaked in the early months of 2009, with nearly 700 people sickened and nine killed.

So what does the report actually say?


Let's start with the report's own discussion of its own limitations.  To start with the title of the report is "Preliminary FoodNet Data on the Incidence of Infection with Pathogens Transmitted Commonly Through Food --- 10 States, 2008."  The word "Preliminary" is not featured in any of the above headlines.  Many of the articles do point out that the report is based on data from ten states, covering about 45 million people.  The report itself lists four important limitations to the validity of its data, none of which are discussed sufficiently in any of the media reports:

First, because FoodNet relies on laboratory diagnoses, changing laboratory practices might affect the reported incidence of some pathogens. For example, fewer laboratory-confirmed infections might be reported as a result of increased use of nonculture tests. Second, many foodborne illnesses (e.g., norovirus infection) are not reported to FoodNet because these pathogens are not identified routinely in clinical laboratories. Third, differences in health-care seeking behaviors between age groups might contribute to a much higher incidence of reported illness in certain age groups (e.g., young children and older persons) (10). Finally, although the FoodNet population is similar demographically to the U.S. population, the findings might not be generalizable.

That's a lot of noise.  In particular, the fourth issue, whether it is appropriate to generalize from the data in these ten states to the rest of the country, is critical.  FoodNet argues that its data are from states that, other than an underrepresentation of Hispanics, are not significantly different from U.S. census data for the entire country.  This misses, however, what I think is the more critical question, which is whether the participation of these ten states in FoodNet indicates something different about the public health organizations of those states compared to the remaining states.  It is possible that the other states are putting their funds into inspection and food safety education instead of statistics gathering, but it may be just as likely if not more that the states who participate are the ones whose public health organizations are the most modern and vigilant.  What this might mean for trends is quite problematic.  The ten states may have plateaued because they're doing all they can while there is progress elsewhere, or there may be worse conditions elsewhere that are not being reported.

The report covers ten enteric pathogens:

The report indicated only one increase, that for salmonella, which it stated was "not significant."  In addition, among salmonella serotypes, one (Saintpaul) increased significantly.  We previously reported that saintpaul was the main pathogen found in bad tomatoes in 2008.  Of the others, one increased some and one decreased some and the seven others didn't change. 

What is significant is not so much that the reports of these diseases among the ten states are increasing or decreasing (they appear to be doing neither) but that we are nearly at 2010, when the national health goals contained in the federal government's "Healthy People 2010" program are supposed to be met.  Salmonella incidence is supposed to be at 6.8 per 100,000 people by 2010 and it was at 16.2 in 2008, which is a long way away. 

The other critical lesson from the report is that the apparent plateauing has occurred despite a number of important public health measures that have been taken in the period studied.  These include the FSIS's salmonella initiative, the FDA's lettuce and spinach irradiation program, and the FDA's and Customs and Border Patrol's efforts relating to screening food imports

I imagine that the FDA and the CDC and the various state public health agencies are feeling more than a little like Hans Brinker right now.  However, I wonder if what is really going on, which the report doesn't talk about at all, is a combination of three things:  (1) the low-hanging fruit has been taken care of to a great extent; (2) some of the measures the reports touts were not completely implemented due to funding and other constraints (the importation program would be where I would start in studying this); and (3) pathogens evolve. 

Now let me let you in to what wasn't reported:  the report doesn't look too different from last year's.

Here is the critical paragraph from this year's report:

Despite numerous activities aimed at preventing foodborne human infections, including the initiation of new control measures after the identification of new vehicles of transmission (e.g., peanut butter--containing products), progress toward the national health objectives has plateaued, suggesting that fundamental problems with bacterial and parasitic contamination are not being resolved. Although significant declines in the incidence of certain pathogens have occurred since establishment of FoodNet, these all occurred before 2004. Of the four pathogens with current Healthy People 2010 targets, Salmonella, with an incidence rate of 16.2 cases per 100,000 in 2008, is farthest from its target for 2010 (6.8). The lack of recent progress toward the national health objective targets and the occurrence of large multistate outbreaks point to gaps in the current food safety system and the need to continue to develop and evaluate food safety practices as food moves from the farm to the table.

Here is the corresponding paragraph from last year's report:

Although significant declines in the incidence of certain foodborne pathogens have occurred since 1996, these declines all occurred before 2004. Comparing 2007 with 2004-2006, the estimated incidence of infections caused by Campylobacter, Listeria, Salmonella, Shigella, STEC O157, Vibrio, and Yersinia did not decline significantly, and the incidence of Cryptosporidium infections increased. The incidence of Salmonella infections in 2007 (14.92 cases per 100,000) was the furthest from the national target for 2010 (6.80 cases), and only infections caused by Salmonella serotypes Typhimurium and Heidelberg declined significantly.

There's really not a lot of news here, and if there is any, it's that the closeness of 2010 is making those goals seem harder to achieve.  When you actually look up the meaning of "plateau" in this context, Merriam-Webster's actually has two almost contradictory definitions.  Definition 2(b) is "a relatively stable level, period or condition."  Definition 3 is, "a level of attainment or achievement."  Neither one has a negative connotation.  In these times, even stability seems like a wonderful goal.  Attainment or achievement sound wonderful. 



Lengthy List of Products NOT Affected By Peanut Butter Recall

UPDATE  to "Avoiding the Panic" - The American Peanut Butter Council has a website that lists products it knows are UNAFFECTED by the peanut butter recall associated with the current Salmonella outbreak. The list of unaffected products is lengthy and growing. Lets hope the media is successful at assisting consumers avoid the panic by providing them with the information to consume safely the products they enjoy.

Peanut Butter - Avoiding The Panic

Marler Blog and some of the press have been sounding the alarm on all peanut butter products.  True the FDA and CDC have been investigating a multi-state Salmonella outbreak and that there may be a connection with certain peanut butter products. But does this mean that consumers, restaurants and food sellers should avoid all peanut butter products? The answer is NO.

For example. the CDC has stated that:

Preliminary analysis of an epidemiologic study conducted by CDC and public health officials in multiple states comparing foods eaten by ill and well persons has suggested peanut butter as a likely source of the bacteria causing the infections. To date, no association has been found with major national brand name jars of peanut butter sold in grocery stores.

One thing that any restaurant or food seller can do is to educate their customers about the safety of their products. CNN has a great article up today in their Consumer Tips section.  Based on information available to date, the article provides the following guidance for the consumer:

1. Is it safe to make my child a peanut butter sandwich? The FDA says as of Sunday there is no indication that brand name peanut butter sold in grocery stores is linked to the outbreak.

2. What about the peanut butter served at schools? The peanut butter found to contain salmonella bacteria was made by the Peanut Corporation of America. They make peanut butter for institutional use in places like prisons, schools and nursing homes. As a precaution, the Peanut Corporation of America has recalled all peanut butter and peanut paste made in its Blakely, Georgia, plant. That means institutions should no longer be serving it.

3. What about other food made with peanut butter? Officials say for right now, hold off on eating foods that contain peanut butter or peanut paste. Peanut paste is found in commercially made cakes, candies, crackers, cookies and ice cream. The Kellog Co. announced a voluntary recall of 16 products, including Keebler and Famous Amos peanut butter cookies, because they contain peanut butter that could be connected to the Peanut Corporation of America.

 4. How do I know if I have been infected by salmonella? According to the Centers for Disease Control, most people infected by salmonella bacteria develop diarrhea, fever and abdominal cramps 12 to 72 hours after the infection. Most people recover without treatment. However, in some cases salmonellosis, as the infection is called, can be deadly. The infection may spread from the intestines to the blood stream and on to other body parts. Antibiotics need to be administered immediately. The elderly, infants and people with impaired immune systems are more likely to get seriously sick. If you think you may have infected with salmonella, go to the doctor immediately. The doctor can perform lab tests to determine if you have it.

To keep current on the list of products recalled as a result of the recall, sign-up for FDA email alerts and keep in close communication with suppliers.

What to Do When the Investigators Knock . . .

This week brought news of yet another nationwide Salmonella outbreak from a source not yet identified by government regulators. The last time we had a nationwide Salmonella outbreak for an extended period of time without identification of a definitive source the federal government initially singled out tomatoes imported from Mexico (a huge array of products). In that case, the government was wrong and wreaked financial havoc on many farmers and businesses.

So far, in the current outbreak, nothing more specific than “poultry, eggs and cheese” have been identified as possible sources. Last year’s outbreak involved Salmonella Saintpaul whereas the current outbreak is Salmonella Typhimurium, which is more commonly associated with poultry, eggs and cheese, but could come from almost anything.

That a source has yet to be identified to the media doesn’t mean that state and federal officials aren’t zeroing in on possible sources. Restaurant owners, retailers and food manufacturers should be ready for the regulators when they come knocking.

In the past, I’ve had clients who were worked over aggressively by regulators (especially federal officials) who were investigating a large, nationwide outbreak with an uncertain cause. These officials face enormous pressure from those in Washington and from the public. Federal officials can make demands that threaten an entire business. They can demand credit card receipts, contact information for customers, personal employee information, shutdown of the business and more. Noncompliance might mean the officials will go to the press and advertise that the business is a target of the investigation. Unlike local health officials, who are usually vested in the well-being of local food producers under their jurisdiction, federal officials may care only about the investigation and nothing else.

Any food business should implement its crisis response team the minute it suspects it could be targeted in an investigation like the one that is currently ongoing. Specialists in food safety and foodborne illness investigations, genetic microbiologists, public relations experts, accountants, quality assurance personnel, purchasing personnel and lawyers should be lined up and ready to go. Events may unfold quickly for your business (over the course of a day or even a morning). Everything needs to be done at that moment to assist a business in navigating what may appear to be an impossible crisis.

2009 Priorities for USDA in Food Safety

I just returned from ACI’s Second National Forum on Food-Borne Illness, which included several interesting presentations and discussions. One was by Dan Engeljohn, Deputy Assistant Administrator of the Office of Policy and Program Development at the Food Safety and Inspection Service (“FSIS”). Mr. Engeljohn spoke about FSIS’s priorities for “2009 and beyond.” Takeaways from this presentation include:

Non-O157 STECs

FSIS is increasingly concerned with strains of E. coli other than O157:H7. Non-O157:H7 strains such as E.coli O121:H19 and O111 are growing more prevalent in the environment. FSIS is putting additional resources into developing methodology for detection of non-O157 STECs.

As FSIS, CDC, FDA and local health departments develop this methodology, the industry can expect more reported outbreaks and more liability exposure. Most experts believe that many non- O157:H7 outbreaks go undetected. Increased focus on detection of non-O157 E. coli strains is yet another reason to examine the sufficiency of your companies' insurance limits.

Frozen, Not Ready to Eat Meals

According to Mr. Engeljohn, because of recent salmonella scares, FSIS remains concerned about “frozen, not ready to eat” meals and specifically “frozen, not ready to eat” poultry meals. He explained that “evidence is mounting that these products cannot be safely prepared unless salmonella is controlled in the source materials.” In other words, FSIS now believes that no amount of package labeling or consumer education can prevent consumers from undercooking these meals.

FSIS jurisdiction over salmonella in poultry is limited. FSIS attempts restrict the sale of “frozen, not ready to eat” meals or impose more stringent standards against salmonella in poultry may be a reach for the agency. As discussed in Supreme Beef Processors v. USDA Salmonella, "is not an adulterant per se, meaning its presence does not require the USDA to refuse to stamp such meat 'inspected and passed.'" Absent statutory reform, FSIS action in this area may be challenged.


Mr. Engeljohn stated that FSIS is “deeply concerned” about listeria. It believes that gains made in recent years at meatpacking plants may be undone by problems at supermarket deli counters. FSIS believes that little is being done to address critical control points at the retail level, such as proper cleaning and sanitizing of meat slicers. FSIS may be exploring ways to exercise more jurisdiction to regulate supermarket delis.