Five Minutes with Bill Marler, Well Known Lawyer and Food Safety Activist
Did you know the Food and Drug Administration needed permission from the Peanut Corporation of America before they could announce a huge recall of its products? Even after the feds began looking into felony charges against PCA management?
A statement made a few days ago by White House press secretary Robert Gibbs might change that legal thorn in the side of food safety. Gibbs said President Obama will soon announce a new F.D.A. commissioner who would conduct a review of the administration’s procedures and put in place a “stricter regulatory structure.”
The New York Times suggested the review is “sure to examine whether the requirement for the peanut company’s approval caused delays in warnings about its products once public health officials became aware of significant problems at its plant in Blakely, Ga.”
How about this for an unconscionable delay? PCA ran an unlicensed and never inspected peanut processing plant in Plainview, Texas for 4 years. Texas is one of the states that the F.D.A. leaves food inspection duties to state officials but they never knew the place existed until a few days ago – even though it was right there in the ironically named city of ‘plain view.’
Acknowledging the fault in the recall process, Michael R. Taylor, a former top official with the F.D.A., said the administration “negotiates communications about recalls with companies and that sometimes leads to delays. Changing that dynamic when people are getting seriously ill and dying is something that ought to happen.”
Ummm, yeah. That’s a good idea.
Bill Marler, the Seattle food safety lawyer who is the subject of this interview, said the agency had neither the authority nor the courage it needed to keep the food supply safe.
Judy Leon, an F.D.A. spokeswoman, following a time-honored Washington public relations technique known as ‘duck-and-cover,’ refused to comment.
In the same old news from Washington, Rosa DeLauro (D-CT) has just introduced a bill to reorganize federal food safety enforcement and claimed, "There is an openness to putting together the strongest legislation possible." Maybe so but similar bills were proposed last year and disappeared in the political wrangling that followed. Meanwhile, the number of recalled peanut products has bounded over the 1000 mark and soon could set a recall record for foods consumed by humans.
President Obama, speaking with Matt Lauer on the Today show, might have given DeLauros’ bill a little extra punch when he said, "At bare minimum, we should be able to count on our government keeping our kids safe when they eat peanut butter. That's what Sasha [his youngest daughter] eats for lunch probably three times a week. I don't want to have to worry about whether she's going to get sick as a consequence.”
Review the huge food recalls of just the past two years and you’ll quickly understand why that hoary old saw “We have the safest food supply in the world” is quickly becoming a choke point with American consumers and our international trading partners. No matter how often those of us in the food business try to reassure ourselves with that phrase, an increasing number of people are not buying it anymore.
At best, the phrase rings as hollow as a panicky politician’s promise on Election Day.
I wanted to find out more about the fed’s shortcomings when it comes to assuring the safety of our food supply and what the never-ending drum beat of bad news might mean to the future of the cattle business. The one man who has consistently been at the center of every sizable recall since the Jack-in-the-Box case over 15 years ago is Seattle attorney Bill Marler, often called the “litigious scourge of the food industry.”
He’s not quite the assassin in Armani that many in our business wish him to be. In 2007, Marler acknowledged the advances made by meat industry when he said we had made all the right moves to help prevent outbreaks of foodborne illness. Talking with a group of produce growers who were being clobbered by their own E. coli associated recall problems, he urged them to “Follow their example and put me out of business.”
The recent surge in ground meat recalls linked to E. coli contamination and the growing fear of B.S.E. fostered by Canada’s recurring herd health problems suggests Marler won’t be out of business for a long time.
Several months ago, Marler told the beef industry that recent setbacks showed us we're now losing that fight against E. coli. He could have just as easily added most of the other food pathogens, too. New and more virulent bacterial and viral strains joined by an overwhelmed and confused inspection system have led to some incredibly embarrassing headlines.
The most embarrassing headline came Wednesday when China Daily reported that the country that introduced melamine contaminated dairy products and pet food to the world has banned imports from 11 U.S.-based food companies whose products have been tainted with PCA’s salmonella laden peanut butter or paste. The Chinese newspaper said the General Administration of Quality Supervision, Inspection and Quarantine’s list starts with the Peanut Corporation of America and even includes Kellogg. Upon hearing that news, Tony the Tiger slinked back into the jungle, too embarrassed to show his face in his home town of Battle Creek.
I called Marler to ask a few pointed questions. You’ll find just two themes in this interview. (1) What the hell is going on? And (2) What will be the effects on the cattle industry.
To fully understand Marler’s outrage about the current peanut recall, read his comment about the FDA Globalization Act bill just introduced by John Dingell (D-MI):
“With the onslaught of reports of contaminated spinach, tomatoes, beef, pet food, and now peanut butter, it is clear increased funding and authority is needed at the FDA like Congressman Dingell’s legislation provides,” said Bill Marler, a food safety attorney and member of the American Association for Justice’s Foodborne Illness Litigation Group.
“However, the revelation the peanut manufacturer responsible for the salmonella outbreak knowingly endangered consumers by selling product they knew was harmful shows why FDA enforcement is not enough,” added Marler. “The increased inspections and civil justice penalties provided by this legislation go hand-in-hand with the right to hold wrongdoers accountable for the food they sell and profit from,” added Marler. “We are glad Congressman Dingell included language to protect the right of consumers to seek justice on these issues in the court system.”-AAJ
PS: He’s also offered his services to President Obama, volunteering for a post in the FDA. A fox/henhouse analogy comes to mind. In this case, though, maybe the FDA’s henhouse needs to invite a fox to step in and rearrange the pecking order.
Q. Bill, despite changes in federal rules and regs and your decade-and-a-half of court room work, food borne illnesses still seem to be piling up year-after-year. Let’s look at the Salmonella illnesses that began appearing half a year ago. It took five months to link it to King Nut peanut butter’s Blakely, GA plant. Why did it take so long and what did it cost in deaths and illnesses?
A. The PCA facility was in bad shape. They were shipping product for about 2 years that they knew was bad. So far, 120 people have been hospitalized and 8 have died. According to published reports, over 540 have been sickened in 43 states. We know our surveillance isn’t perfect, though. For every reported case, maybe 40 are missed so we could be looking at many more hospitalizations and deaths and over 20,000 illnesses.
It was an epidemic, but we figured it out only after it had just about run its course. After the tomato, spinach and ground beef problems, we need to put more effort into catching these things sooner rather than later and throwing a whole industry under the bus.
Q. Peanut butter spiked with Salmonella is the hottest news item these days but I’ve read reports of trace amounts of mercury found in High Fructose Corn Syrup and antibiotic-resistant staph bacteria in C.A.F.O. pigs. You’ve been quoted as saying we’re losing the fight against E. coli. With all of the federal, state and local organizations charged with overseeing the safety of our food, why are we unable to move the dial on this thing?
A. We have a real failure in our ability to survey bacterial and other food borne illnesses. The problem is each state has its own skill sets at finding and tracking these outbreaks. Some states are very good, some states are abysmal. We have too many organizations, too, that don’t communicate well with each other.
Q. With a new administration in place and new hands like Tom Vilsack on deck at the USDA, do you see a chance for improvements – a new emphasis on food safety - at the federal level?
A. I sent an open letter to the FSIS with some suggestions. It’s posted on my blog (http://www.marlerblog.com/). In it, I said:
‘Improve surveillance of bacterial and viral diseases. First responders - ER physicians and local doctors - need to be encouraged to test for pathogens and report findings directly to local and state health departments and the CDC promptly.’
‘These same governmental departments, whether local, state or federal, need to learn to “play well together.” Turf battles need to take a back seat to stopping an outbreak and tracking it to its source.’
‘Require real training and certification of food handlers at restaurants and grocery stores. There also should be incentives for ill employees not to come to work when ill. We should impose fines and penalties on employers who do not cooperate.’
‘Stiffen license requirements for large farm, retail and wholesale food outlets, so that nobody gets a license until they and their employees have shown they understand the hazards and how to avoid them.’
‘Increase food inspections. While domestic production has continued to be a problem, imports pose an increasing risk, especially if terrorists were to get into the act. Points of export and entry are a logical place to step up monitoring.’
‘Reorganize federal, state and local food safety agencies to increase cooperation and reduce wasteful overlap and conflicts. Reform federal, state and local agencies to make them more proactive, and less reactive.’
‘There are too few legal consequences for sickening or killing customers by selling contaminated food. We should impose stiff fines, and even prison sentences for violators and even stiffer penalties for repeat violators.’
‘We need to use our technology to make food more traceable so that when an outbreak occurs authorities can quickly identify the source and limit the spread of the contamination and stop the disruption to the economy.’
‘Promote university research to develop better technologies to make food safe and for testing foods for contamination. Provide tax breaks for companies that push food safety interventions and employee training. Greatly expand irradiation of raw hamburger and other high-risk products.’
‘Improve consumer understanding of the risks of food-borne illness.’
Q. Let’s talk about existing laws and regulations. Peanut Corporation of America was not required to inform the FDA or state food-safety agencies that its products had tested positive for Salmonella. They merely went ‘lab shopping,’ had the product re-checked, and then placed it into commerce. A Georgia state dismissed the practice when he said, "It's just basically a loophole that has been there." How many loopholes are out there and why do they exist?
A. A few companies are less concerned about food safety – more concerned about their profit margins. They crank up line speeds and reduce labor. Everyone suffers. The problem is a lack of organization and turf battles among competing inspection systems at the federal, state and local levels.
Q. Let’s focus on the cattle and beef industries now. What do you see as our biggest challenges in 2009 and what can we do to meet those challenges?
A. The past 15 years will show you the next 15. Emerging pathogens, new pathogens, antibiotic resistant strains – think MRSA, Methicillin-resistant Staphylococcus aureus. It’s an infection caused by a strain of bacteria that is highly resistant to treatment. They’re coming at us hard. You’ll be challenged by pathogens that didn’t exist then as they do now.
You’ll need to do everything you can to minimize end-product contamination and that will include how you raise animals. Are CAFO’s the right way, for instance? You’re faced with feeding a growing world population but you’ll have to ask if the efficiencies of CAFO’s are worth it. How will a production change affect the price and the availability of food?
There is a lack of cooperative spirit among the regulators, companies and buyers and sellers. It has to be fixed. Everyone in the food chain, every facility, needs to cooperate on science-based pathogen testing. It should be mandatory and the results must be transparent.
It’s clear that the vast majority of businesses are well-run, well-maintained and dedicated to putting out the high quality product that consumers have a right to expect. We really have to take a hard look at how plants are inspected, though. We’re using too much of the ‘poke and sniff’ techniques of the early 20th century to find pathogens that didn’t exist until a few years ago.