One of the first scenes in IFC’s comedy “Portlandia’ involves a couple asking their waitress for the provenance of the chicken they are considering ordering. She comes back with a photograph of “Colin”, the actual chicken, and describes the conditions under which he lived before he died for their meal. Unsatisfied with her answer, they ask her to hold their table while they drive 30 miles to the farm where Colin was raised. Five years later, they reappear (their waitress still holding their table) and decide they’d prefer not to have the chicken.
I thought of that as I read Jim Prevor’s report for The Perishable Pundit on “Farmers Market Fraud”, which included a follow-up as well. Without question, farmers markets are opening rapidly all over, and it is not particularly surprising that some of the participants are not following the rules, leaving the honest participants with a bad name and consumers with legitimate concern that they are not getting what they bargained for in their farmers market experience. Apparently, similar research in Detroit indicated the same pattern as in Los Angeles.
In the spirit of the kind of people parodied on “Portlandia,” weren’t these supposed to be the good guys?
As it happens, I am related (by marriage, but we are far closer friends than the degree of relation) to Jennie Schacht, the author of the award-winning “Farmers Market Desserts.” In researching her book, Jennie visited farmers markets all over the country, and, she tells me, “I never had a producer refuse a visit to their farm and what I saw every place I visited, around the country, appeared authentic. (I didn't verify pesticide levels or other claims.).” For her work, of course, she needed to take the steps that Fred and Carrie parodied on “Portlandia.” What is the ordinary, non-cookbook author, non-obsessed consumer to do?
California is considering steps to deal with this issue, including raising the fees charged to farmers market participants from 60 cents to four dollars per market day, in order to increase the number of inspectors. One critic of the raised fee contends that dollars will not necessarily increase expertise. While Jennie Schacht suggests getting to know your producer can help, one of the letter writers to the Perishable Pundit notes that Bernie Madoff looked all his victims in the eye as well.
In the end, I think the best regulation would occur by self-policing. This is not some free market solution, but rather a recognition that every honest seller in the marketplace has an incentive to weed out the bad apples, in this case sometimes literally. I recognize that farmers who attend farmers markets have a lot to do in the course of a day, and policing their neighbors’ stalls isn’t on their agendas. Market managers have a lot of work to do as well. But it is the honest farmer who will lose most if the reputation of farmers markets in general are diminished.
Other, of course, than someone like me, who is already in mourning because the last of the year’s organic carrots have disappeared from the Ballard Farmers Market.
The quote, "Watch what we do, not what we say," is attributed to John Mitchell, Nixon's first attorney general. It can apply, however, to the behavior of consumers with respect to shrimp from the Gulf of Mexico, and that will be watched carefully everyone from shrimp fishers to the owners of your local fish market. The FDA says flatly, about Gulf shrimp, "the public should not be concerned about the safety of seafood in stores at this time." Not surprisingly, a coalition led by the Natural Resources Defense Council, while not going so far as to advise anyone not to eat Gulf shrimp, thinks higher standards and more testing is appropriate, and has so advised both the FDA and NOAA.
Shrimpers themselves are of course worried about the backlash if any tainted shrimp are consumed. Similar to the dialogue I had with Jim Prevor a few months ago, there is often a difference between what we might think of as rational behavior and how consumers in fact react. Every year, a certain percentage of shrimp turn bad for reasons unrelated to oil spills; in 2010, it's likely a consumer who gets a bad shrimp will first blame it on the oil spill.
According to an AP article reprinted in today's Wall Street Journal, however, the reality on the ground in fish stores is less grim. It quotes the supplier to Hapuku Fish Shop, an upscale store in the Rockridge District of Oakland, as saying, "the shrimp has been nothing less than spectacular lately." The shop itself is selling about as much of the shrimp as it did before the spill.
President Obama also has put his stomach where his mouth is, serving Gulf shrimp at his birthday party.
As with any seafood, consumers of Gulf shrimp should handle it properly and apply their own smell test before cooking and before eating.
We recently asked for comments on Jim Prevor's story about traceability. While there was a loud silence in our comments in box (still happy to take them), today we got a long response from Jim himself in his latest Perishable Pundit. I commend it to you. And feel free to comment to Jim directly or, of course, right here.
Jim Prevor has an intriguing story in one of his latest Perishable Pundits, updated here and here, that frankly has me wondering. According to Jim, Freshway Foods discovered E.Coil 0145 in some romaine and, using tracking numbers, was able to trace it to a specific lot supplied by a grower in Yuma, Arizona. It then issued a recall limited to that specific lot.
But the FDA decided to be more cautious and to advise Freshways to recall all the romaine from Yuma, not just the identified lot. And the buyers of the product decided to pull anything they had on their shelves from Freshways, whether it was from Arizona, and whether, apparently, it was romaine or not.
This raises a number of questions and I am not going to purport to answer them. Rather, I'd really like to solicit comments from our very knowledgeable and resourceful readership. This is the age of Web 2.0 and beyond. We'd love to hear from you.
- Is the implication of Jim's article right, that spending money on good tracing systems may be futile because consumers and regulators will never trust the system?
- What kind of public education might work to improve the acceptance of traceability?
- As a legal matter, it's unlikely that the buyer of the non-recalled products has any recourse against the seller; in the real world, however, is the seller likely to make good in order to assure future sales?
- Ken recently wrote about a similar insurance issue; is there any kind of insurance for something taken off the shelves because of an abundance of caution when the supplier says only to recall specific items?
- In his updates, Jim suggests that the real issue is that perhaps we are providing more traceability than the market demands and others suggest that the issue is that upon discovery of an outbreak, the FDA doesn't either adequately communicate the perceived cause of the outbreak or ever issue an "all clear" after it is over. Is either step either (a) practical when things are moving in real time, or (b) really the FDA's responsiblity or even power under current laws and regulations?
The motto of Consumers Union, the publisher of Consumer Reports, is "working for a fair, just and safe marketplace for all." The motto of Jim Prevor's Perishable Pundit is "where the subject may be perishable but the insight isn't." When Consumer Reports publishes a report, it nearly always becomes widespread news. When Jim Prevor publishes a report, it will be carefully read and commented upon within the confines of the produce industry, but it is not often that it reaches national attention. Let us now match the insight of Jim Prevor against the values of Consumers Union. The subject: bagged salad.
Bagged salad is one of the most successful take-home convenience foods ever. The produce industry loves it, because it greatly expands the market for fresh produce. The packaging industry loves it, because it only works with special packaging that extends the product's shelf life. The grocery industry loves it, because it is high-margin, high-volume product that goes in the produce aisle. And consumers love fresh salad they don't need to prepare. Win-win-win-win.
Until Consumers Union comes along.
Consumers Union has published a report that is entitled, "Bagged Salad: Better Standards and Enforcement Needed." A shorter article is in the March issue of Consumer Reports, entitled, "Bagged Salad: How Clean?" Both are based on a study, funded in part by Pew Health Group, that examined samples of bagged salad purchased, as Consumers Union ordinarily does, in grocery stores near its Yonkers, New York headquarters. It found levels of bacteria they called "indicator organisms" that exceeded standards set by a number of other countries, since there is no federal standard in the United States. No E Coli O157:H7, listeria or salmonella was found.
From the study, Consumers Union concluded that the United States needed to adopt food safety legislation pending in Congress (about which we reported here), needs to declare known pathogens in leafy greens "adulterants" (even though the study didn't find any), and set satefy standards for indicator organisms. In addition, Consumer Reports recommended that consumers should:
- Buy packages as far from their use-by date as possible
- Even if the salad is pre-washed, wash it again
- Prevent cross-contamination with other foods (although the link the article does not, as it appears to promise, go straight to a how-to list for that)
Since this is of great concern to the produce industry, Jim Prevor sent the report to Dr. Trevor Suslow of the University of California at Davis., a plant pathologist. Apparently a number of other readers of the report did so as well, because Dr. Suslow's response printed in the Perishable Pundit is broader than Jim's questions. Dr. Suslow makes some very cogent points about the Consumers Union report.
- "We eat lots and lots of microbes all the time." And generally don't die from them. Leafy greens are colonized by microbiota, not contaminated by them.
- The specific number of microbes on a leaf do not relate well to risk of illness.
- Higher numbers closer to the use-by date are expected, particularly if the product was subject to significant changes in termperature. More specifically,
Because all the samples were taken from retail stores, the numbers of bacteria (not that fact that they were present) may tell us more about the temperature history of the product than provide clear evidence of poor sanitation.
- Additional washing of pre-washed greens can lead to cross-contamination and is not recommended. He cited a 2007 study to that effect which concluded,
additional washing of ready-to-eat green salads is not likely to enhance safety. The risk of cross contamination from food handlers and food contact surfaces used during washing may outweigh any safety benefit that further washing may confer
His ultimate recommendation was that a consumer should check both the way the bagged salads are placed in the store (vertical in a row, not placed on top of one another in a stack) and get a feel for the temperature at which they are stored (both the air and the bag should feel "very cool").
As I read the report and the rejoinder from Dr. Suslow, it would seem the Perishable Pundit has the better of it. What Consumers Union proposed would seem to lead to a lot of regulation and attendant expense, leading to a false sense of security in consumers. What Dr. Suslow proposed would seem to enable consumers to make senisible choices for themselves.
The Center for Science in the Public Interest has released its list of "Ten Riskiest Foods Regulated by the FDA." The list has gotten a lot of publicity, particularly because some unexpected foods like potatoes made the list.
Our friend Jim Prevor, the Perishable Pundit, has written a Special Edition of his newsletter that pretty much says everything about the list that we would say, so I'm just linking to his article. The only thing I'd add is that Stoel Rives were co-sponsors of the conference he mentions in the article, along with Bill Marler. Otherwise, thanks for doing the good work, Jim.
UPDATE: Being the total gentleman that he is, within hours of Friday's post Jim emailed me that he would add a credit to Stoel Rives on his entry. And of course he did.
Jim Prevor, the author of the Perishable Pundit blog and a man who has probably forgotten more about the produce industry and its practices than many will learn in a lifetime, has been blogging constantly about the lawsuit brought by Theresa Nolan, her company The Nolan Network and her late husband Jim against Ocean Spray Cranberries, Inc. On May 30, he reported that a jury in Plymouth, Massachusetts, home of Ocean Spray, had brought in a $1 million verdict against Ocean Spray and in favor of the Nolans.
The lawsuit involved marketing practices with fresh cranberries, a minor part of Ocean Spray's business compared to, say, cranberry juice cocktail. The background to the case is discussed at length in an article by Bill Martin in Jim Prevor's other publication, Produce Business. As far as I can tell from the news reports, the actual allegation in the lawsuit was a violation of Chapter 93A of the Massachusetts General Laws, This broadly prohibits unfair or deceptive acts or practices in trade or commerce. I'm not a Massachusetts lawyer, but I did a stint as a law clerk for the Massachusetts Appeals Court and my recollection is that Chapter 93A was considerably stronger in application and interpretation than many other states' mini-FTC Acts, particularly since a private right of action is included essentially without limit.
The core of the allegations related to alleged differential pricing afforded by Ocean Spray to Costco and H.E. Butt in 2000 and 2002, respectively. How this eventually led to the Nolans' claim is too complicated to discuss here. I am more interested, however, in a suggestion Jim Prevor makes in some of his columns on the case, that the alleged differential pricing and the way it was dealt with might have violated PACA, the Perishable Agricultural Commodities Act,.
A key allegation is that C&S Wholesale Grocers, which supplied fresh cranberries to BJ's Wholesale Club, a competitor of Costco, was told by Ocean Spray, upon complaining about the price advantage allegedly given Costco, "to claim some cranberries it would receive from Ocean Spray were of poor quality and to take a discount from the Ocean Spray invoice."
If true, there are ways that such treatment could violate PACA or violate the duties that Ocean Spray owed to its growers.
PACA is best-known for creating a statutory trust in favor of unpaid growers of perishable agricultural commodities. It also, however, requires people who deal in those commodities to account accurately for all transactions in those commodities. Thus, the allegation that a buyer was told, in essence, to make a claim that certain cranberries were of lesser quality than they actually were raises the issue of whether some of Ocean Spray's growers were provided reports on their cranberries that inaccurately represented their quality (if not, one wonders how the auditors would have missed it, since they would have presumably had to match the returns from the pools that included the sales to C&S against the payments from C&S). It's a reasonable question, though nothing that has occurred to date appears to have answered it.
It is conceivable, of course, that the matter was settled internally without publicity, or that the growers involved considered the issue too small to litigate. Anyone handling fruit or vegetables within PACA's ambit, though, must be aware that any form of inaccurate reporting can violate the statute.