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What to do about the “Mad Cow”

As a trial lawyer I spend much of my time finding fault. But, from my mother, I learned to thank someone for doing the right thing, whatever their motives. So, thank you Agricultural Secretary Ann Veneman for instituting long-needed protections against bovine spongiform encephalopathy or mad cow disease. These changes over time should rebuild confidence that the U.S. Department of Agriculture is serious about making our food system one of the safest in the world.

The change requiring the tracking of animals from birth-to-slaughter should finally give the USDA the ability it needs to identify contaminated product at any point in the system and to quickly trace the contamination back to its source. It will also allow for more effective recalls. If we can track online a book from, we should be able to do the same with a cow.

The renewed commitment to the 1997 FDA ban on using brain and spinal-tissue in cattle-feed is also positive -- assuming commitment translates into action. In 2002, a General Accounting Office report found numerous violations of the ban and concluded it was inadequate to control the spread of BSE. Tough enforcement and a zero-tolerance policy will thus remain key.

The silver-lining of the mad cow crisis is that many of the changes may have the added affect of removing other foodborne pathogens from our plates. For example, taking "downer" cattle out of the human food chain not only reduces the risk of BSE, but also reduces the risk of E. coli contamination. This pathogen annually sickens 75,000, hospitalizes 2,500 and kills nearly 100. Most victims are children, and many that survive suffer long-term complications, such as brain damage or kidney failure.

I know this because over the past decade, I have represented hundreds of families devastated by the simple act of eating a hamburger. And while the millions of dollars I have won in verdicts may prompt Veneman to consider me an ambulance-chaser, I still congratulate her for restoring some credibility regarding the safety of our food supply. That being said, there is still much left to do before you put this trial lawyer out of business, which I beg you to do.

For me, E. coli has been a far too successful practice -- and a heart-breaking one. I am tired of visiting with horribly sick kids who did not have to be sick in the first place. I am outraged with a meat industry that allows E. coli and other poisons to reach consumers, and a federal regulatory system that does nothing about it, until after a crisis and a wave of bad publicity forces their hands.

If the USDA really wants to get serious about protecting kids from getting sick from the food they eat and put me out of business, these are some steps that should be taken:

·       Actually inspect and sample meat. USDA employs thousands of inspectors across the nation at plants producing millions of tons of beef all intended for human consumption. But very little of that meat is physically inspected. Instead, inspectors rely on random sampling to "verify" that the meat being manufactured is "safe." But the GAO has warned that the USDA's samplings are so scattered and infrequent that there is little chance of detecting microscopic E. coli or any other pathogen.

·       Give USDA mandatory recall authority. This authority would have been granted to the USDA in Iowa Sen. Tom Harkin's Safer Meat, Poultry and Foods Act of 2002. Under the present system of voluntary recalls, it is true that no company has actually refused to recall contaminated product. But a recent GAO report found numerous instances where companies delayed recalls, contested their scope and fought to keep information private so the public never knew which stores the recalled meat was distributed to.

·       Merge the two federal agencies responsible for food safety. Right now, USDA's Food Safety Inspection Service and the inspection arm of the FDA share this mission. This set-up leads to turf wars and split responsibilities. It also gives rise to conflicts of interest because both agencies are also charged with the responsibility of promoting the industries they regulate. We need one independent agency that deals with foodborne pathogens and whose sole responsibility is to protect the public.

None of these steps will stop BSE or E. coli entirely. But we have the ability to live up to the billing of the safest food supply in the world. The question is whether this mad cow crisis will be the catalyst that finally starts the reform necessary to stop making U.S. consumers ill and to regain the confidence of the world in our food supply.

William Marler is the managing partner at Marler Clark in Seattle.


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