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As recalls continue following the discovery in early January 2009 of Salmonella Typhimurium in peanut butter produced by the Peanut Corporation of America (“PCA”) in Blakely, Georgia, the Texas Department of State Health Services (“TDSHS”) has now confirmed that Salmonella was also isolated from peanut meal produced at PCA’s Plainview, Texas facility. Doug McBride, a spokesman for the TDSHS, also confirmed that the sample was the same strain as the ongoing nationwide outbreak.

PCA voluntarily closed its Plainview facility weeks ago, after a private lab sample showed likely Salmonella contamination. Soon thereafter, Texas health officials ordered a recall of all products ever produced at the facility since its opening in March, 2005.

As we reported earlier, the Colorado Department of Public Health and Environment had previously linked as many as six illnesses (that were associated with the national outbreak) to products distributed from PCA's Plainview facility. Additionally, an open container of Vitamin Cottage fresh ground peanut butter, made from raw materials produced at the Texas plant, had previously tested positive for the outbreak strain as well.

PCA also recently announced, in its latest Press Release, that because of continuing bankruptcy proceedings, it is no longer able to communicate with customers of recalled products. As a result, PCA customers should contact FDA Recall Coordinators regarding the proper disposition of any recalled products.

To date, over 2,600 consumer products have been affected by the continuing recalls. The national outbreak is believed to have sickened over 650 people in 45 states, and is suspected of contributing to as many as nine deaths. For the latest information, visit the FDA Peanut Butter Recall Website.  We, of course, will continue to report additional developments as well.

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As governmental surveillance improves, and more food-borne illness outbreaks are identified, we find ourselves reporting more often on litigation avoidance and crisis management. In addition to dealing with outbreaks and recalls when they occur, many companies will also be faced with resulting food-borne illness claims. In the lawsuits that follow, it is no secret that a company’s potential liability will depend on the quality of its defense. In addition to offering our litigation library as an industry resource for defending claims through trial, we wanted to discuss what happens when a food poisoning lawsuit actually reaches the jury.

Not long ago, we had the distinct pleasure of working with Tara Trask, president of Tara Trask and Associates, a nationally-recognized trial and jury consulting firm, on a mock food-borne illness case. Over the last 15 years, Trask has gained extensive experience consulting in thousands of lawsuits throughout the country, and during hundreds of “bet-the-company” jury trials. Trask also speaks nationally about juror perceptions and the effect of popular culture (i.e. the “CSI Effect”) on civil juries. As Trask predicted in our exercise, the “CSI Effect” can and will play a significant role in complex food-borne illness lawsuits.

The term “CSI Effect,” as explained by Trask, “describes the phenomenon whereby high-tech, forensic science dramatized in television crime shows can promote unrealistic expectations among jurors of how conclusively forensic evidence determines innocence or guilt, or from the perspective of the civil litigator, causation or liability.” According to Trask, nearly half of potential jurors will list one of the “CSI” productions as their favorite television shows and, as a result, will likely expect detailed forensic science to play a large role in the case. Trask warns further, however, that such jurors may also be prone to “recalibrate the way they consider evidence and, in turn, contemplate the burden of proof.” In these instances, explains Trask, a juror’s “deductive reasoning may be replaced with the need for absolute scientific proof.” Such dangers, she concludes, should always be anticipated and guarded against.

Thus, in an area as scientifically complex as food safety litigation, it is critical for any food liability attorney to fully appreciate the potential role of the “CSI Effect” in the courtroom. Indeed, in any food-borne illness lawsuit, a jury must at the very least be primed to:

• Understand the science defining the parameters of governmental oversight of food companies;

• Understand the science of how food-borne illnesses and outbreaks are investigated and tracked;

• Understand the science relating to the specific behavior (and isolation) of the pathogen(s) at issue;

• Understand the science surrounding the plaintiff’s alleged illness;

• Understand the science available to support arguments that a specific product was (or was not) a source; and

• Understand the science available to support arguments regarding alternative sources.

While no two food poisoning claims are the same, each of these elements will, at least to some degree, be present in every case. Thus, in addition to simply recognizing that the “CSI Effect” may play a role, an attorney must also appreciate, as he or she prepares for trial, how the phenomenon can impact the jury’s understanding of these foundational elements.

In this regard, although the “CSI Effect” can be used offensively at trial (a topic that will be left for another day), an attorney should always consider the potential impact on juror perceptions if underlying scientific concepts are not clearly explained or properly taught. This is because, as Trask explains, many jurors will expect (based upon their preconceived beliefs from television) that science and forensic testing can and will conclusively solve any dilemma. “They expect DNA sequencers, mass spectrometers, photometric fingerprint illuminators, and scanning electron microscopes.” When such evidence is not present, jurors may question why.

Thus, according to Trask, “the lack of forensic scientific evidence, even if it was simply overlooked, it never existed or is otherwise irrelevant, may in the end cause many jurors to disbelieve a legitimate claim or defense.” For this reason, in addition artfully teaching the science of food safety, a food liability attorney should always: (1) anticipate what scientific or forensic evidence jurors might independently believe “should" be available; and (2) if the evidence is not accessible (or, does not exist), be sure to explain why. Trask also discusses this phenomenon, and proposes various solutions, in a recent article (The “CSI Effect”: Popular Culture’s Effect on Civil Juries) she authored for the ABA Section of Litigation.

In our own food-borne illness mock trial, we watched first-hand as the “CSI Effect” worked into deliberations and, at least in part, shaped the result. As Trask’s jury discussed the case, they focused heavily (as expected) on the scientific evidence presented, assumed independently in some instances (as predicted) that additional forensic evidence “should” be available, and even questioned on occasion (as forewarned) why “missing” evidence was not shared by the attorneys. As advertised and promised, Trask’s mock trial exercise provided incredible insight into juror perceptions and the “CSI Effect” in a complex food-borne illness case.

In addition to specializing in the design and implementation of mock trials and focus groups, Tara Trask and Associates also provides extensive consulting on witness preparation, jury profiles, jury questionnaires, voir dire development and jury selection. At trial, Tara Trask and Associates can even empanel a “shadow jury” to provide additional, real time insight and feed-back.

As demonstrated in our own exercise, Tara Trask and Associates will bring national experience, customized research, qualitative and quantitative methodology, and rigorous analysis to each new matter. We, of course, remain exceedingly impressed by the quality of Trask’s insight, and thank her personally for a job well done.

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Tom Vilsack, Secretary of the United States Department of Agriculture, announced that the final rule (74 FR 2658) for mandatory country-of-origin labeling (“COOL”) will become effective on March 16, 2009. Under the new rule, retailers will be required to notify customers of the country of origin of certain food products. Food products (or, “covered commodities”) included within the COOL program include whole muscle cuts, ground beef, lamb, chicken, goat and pork; wild and farm-raised fish and shellfish; perishable agricultural commodities (specifically fresh and frozen fruits and vegetables); and macadamia nuts, pecans, peanuts and ginseng. Additionally, for food such as fish and shellfish, the method of production, wild or farm-raised, must be specified.

Exempted from COOL, however, are various products (e.g., ingredients) used to manufacture “processed” food items. Processed foods are generally defined as: (1) any retail item derived from a covered commodity that has undergone specific processing resulting in a change in the character of the covered commodity; or (2) any retail item that has been combined with at least one other covered commodity or substantive food component. “Specific processing” that results in a change in the character of food includes cooking (e.g., frying, broiling, grilling, boiling, steaming, baking, roasting), curing (e.g., salt curing, sugar curing, drying), smoking (cold or hot), and restructuring (e.g., emulsifying and extruding). For this reason, Vilsack also expressed concerns, in an open letter to industry, that the definition of processed foods contained within the final rule "may be too broadly" drafted. Because Vilsack was also concerned about the labeling of products of mixed origins, and time allowances for labeling of certain ground meat products, he asked industry to voluntarily adhere to the following additional labeling practices:

• With respect to processed foods, Vilsack suggested that processors voluntarily use country-of-origin labeling for those products that "are subject to curing, smoking, broiling, grilling, or steaming."

• With respect to products derived from animals with multiple countries of origin, Vilsack asked processors to include labeling information identifying what production step -- born, raised and/or slaughtered -- occurred in each country.

• Finally, because final rule allows a label for a ground meat products to bear the name of a country when meat from that country was present in the processor's inventory within the last 60 days, Vilsack suggested that time allowance be reduced to 10 days.

American Meat Institute President J. Patrick Boyle stated that, despite Vilsack’s concerns, the organization was "gratified" that USDA is allowing the final rule to go into effect. Namely, this is because the new rule, in its current form, took nearly six-years (with assistance from industry) to develop. Boyle also noted that, once the rule is effective, nearly 95 percent of beef and pork products would likely be eligible to bear a "Product of the USA" label.

Nevertheless, Boyle also stated that it would ultimately be up to individual companies to decide whether to voluntarily comply with Vilsack’s recommendations. According to Boyle, "to the extent that companies are able and elect to go beyond [the] federal labeling requirements, as requested by Agriculture Secretary Vilsack, [that] is an individual company decision, which will have to be made in collaboration with a company's retail grocery customers . . .."

In any event, Vilsack confirmed that the USDA “will closely review industry compliance with the regulation and its performance in relation to these suggestions for voluntary action.” Depending upon such performance, the USDA “will [then] carefully consider whether modifications to the rule will be necessary to achieve the intent of Congress." The rule had also been under review on the orders of the new presidential administration. Ultimately, Vilsack stated that, allowing the rule to go into effect on March 16, 2009, and then monitoring implementation and compliance by industry, would likely be the most efficient way to evaluate the success of COOL, and also to determine whether additional rulemaking would be necessary.

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The State of California recently enacted a new criminal law, effective January 1, 2009, designed to prevent slaughterhouses from purchasing and processing non-ambulatory animals for human consumption. As enacted, Section 599f amended the California Penal Code to criminalize, without exception, the receipt and use of non-ambulatory animals by slaughter facilities.

In response, the National Meat Association (“NMA”) sought and obtained a preliminary injunction to prevent the State of California from enforcing the new law. NMA, et al. v. Brown et. al, Case No. CV-F-08-1963 (E.D. Cal. 2008). In its briefs, NMA argued that the treatment of non-ambulatory animals was already regulated extensively by the Federal Meat Inspection Act (“FMIA”), which expressly permits, subject to certain requirements, the receipt and use of non-ambulatory animals for slaughter. Under the FMIA (21 U.S.C. § 601, et seq.) and its implementing regulations, non-ambulatory animals may be processed for human consumption if the animals are first inspected for disease and then passed by a federal veterinarian inspector. Because the California law attempted to criminalize what the FMIA permits, NMA argued persuasively that the California initiative was preempted.

Indeed, the FMIA (a distant relative of the 1906 Wholesome Meat Act) regulates virtually every aspect of meat production. The Act requires continuous federal inspection in meat packing plants, often times by multiple inspectors. These federal inspectors are responsible for ensuring that all animals entering slaughter facilities are healthy and free from disease, and that all meat products subsequently produced from such animals are safe, wholesome and not adulterated. Currently, the federal statutory and regulatory scheme is enforced by the Food Safety Inspection Service (a sub-agency of the United States Department of Agriculture).

To ensure that the FMIA and its uniform national requirements are not usurped by the individual states, the FMIA contains an express preemption provision which prevents states from enacting or enforcing any laws that are “different” from the federal standards. 21 U.S.C. § 678. Thus, under the FMIA, any state laws which attempt to penalize a food producer for doing what federal law permits (whether the laws relate to production or product labeling) are strictly preempted.

In this case, the new California criminal law conflicted directly with the federal statutory and regulatory scheme. Because the FMIA permits the use of non-ambulatory animals for slaughter (assuming such animals have been declared to be free from disease by a federal FSIS veterinarian inspector), the Court granted NMA’s request for a preliminary injunction. In its February 19, 2009 Decision, the Court reasoned that the California Penal Code, Section 599f, was both expressly and implicitly preempted under the FMIA and its implementing regulations.

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In recent years, we have witnessed a large increase in the number of reported food-borne illnesses and outbreaks. As a result of improved governmental surveillance, aided by PulseNet and OutbreakNet, more food-borne illnesses and outbreaks are being identified. In turn, as food companies attempt to overcome these trends, new antimicrobial interventions are receiving even greater attention.

One of the most promising food safety technologies is a post-packaging pasteurization technique known as High Pressure Processing (“HPP”). HPP can be used for a wide variety of perishable foods, and works by uniformly applying up to 87,000 psi of hydrostatic pressure to prepackaged foods for up to three minutes. The application of high pressure to the product inactivates both spoilage microorganisms and harmful pathogens by causing the microbial cell membrane to become more porous, and by inactivating enzymes vital for microbial survival. This process, which the American Pasteurization Company (“APC”) has been performing on behalf of customers for years, reduces microorganisms and increases shelf-life significantly.

Notably, the USDA-FSIS currently regards high pressure processing as a valid intervention method for Listeria monocytogenes in prepackaged, ready-to-eat meat products. Because the pressure is hydrostatic (think of a grape in a bottle), there is no impact on the texture or flavor of products that are treated. Other applications include ready-to-eat meat and poultry products, guacamole, fresh salsa, humis, raw and marinated meats, seafood, oysters, dips, wet salads, and various cheese products. The list of appropriate uses and products, of course, continues to expand daily.

Additional benefits of HPP include:

• Dramatically increasing the safety of food products;

• Affording greatly enhanced brand equity protection;

• Extending the optimal freshness of food products using a non-thermal technology;

• Dramatic extension of shelf life;

• Allows reformulation to reduce or eliminate dependency on added microbial inhibitors;

• Facilitates the migration of many products from frozen to fresh; and

• For USDA plants, HPP is considered an effective intervention and helps processors comply with current Listeria regulations.

APC is the first company in the United States to offer HPP on a commercial tolling basis. This arrangement is extremely beneficial to customers because, once pre-packaged foods are received from customers and treated, the products can be custom labeled, packed and shipped directly from APC’s USDA-inspected facility to end-users. Moreover, recent advances in pressure equipment have significantly lowered the cost of use.

To date, APC has successfully processed more that 50 million pounds of food products for more than 30 separate food processors. APC is located in Milwaukee, and because it does not manufacture food (it only makes food safer), the company does not compete with its customers.

Thus, for food companies looking to utilize this new technology on a commercial tolling basis, without incurring the necessary infrastructure costs, don’t hesitate to contact Greg Zaja (of APC’s Research and Development Group) for more information.

Special thanks to APC (www.pressurefresh.com) for helping make our food safer.

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As the CDC outbreak investigation continues, and thousands of products are recalled, reported cases are on the decline. 

In early January 2009, the CDC and public health officials determined that peanut butter products were the likely source of the ongoing national Salmonella Typhimurium outbreak. Product testing eventually prompted recalls of various peanut butter products produced by the Peanut Corporation of America (“PCA”). Crisis management efforts, at all levels, then began in earnest.  On January 28, 2009, PCA recalled all peanuts, peanut meal, peanut paste and peanut butter, distributed from its Blakely, Georgia facility since January 1, 2007. Following additional governmental investigations, PCA also recalled all products, including peanut meal, granulated peanuts and dry roasted peanuts, produced and distributed from its Plainview, Texas facility since the plant opened in March 2005.

PRODUCTS AFFECTED:

Although the majority of products produced by PCA were not distributed for direct consumer sale, most products were distributed to downstream manufacturers for use as ingredients in many other products. As a result, the PCA recalls prompted hundreds of these manufacturers to recall their own products as well. Given the expansive scope of the recalls, and diverse use of PCA’s products as raw materials in many consumer foods, the FDA and industry are continuing their efforts - even to this day - to determine what additional products might potentially be affected. So far, more than 2,000 consumer products have been recalled. To find products affected, use the searchable FDA Recall Interface on our blog (just scroll down the left-hand column).

PRODUCTS NOT AFFECTED:

According to the CDC, major national brands of jarred peanut butter found in grocery stores are NOT affected by the recall. As we reported previously, Girl Scout Cookies are also Not affected. For a list of additional products not affected by the ongoing recalls, please visit the American Peanut Council Website.

CDC INVESTIGATIVE UPDATES:

The following are highlights from the CDC’s most recent investigation update:

• Case count is 642 in 44 states with latest confirmed, most recent reported illness beginning on January 28, 2009;

• Although the outbreak is continuing, the numbers of new cases have declined modestly since December. Many recently ill persons report eating peanut butter and other recalled peanut-containing products; and

• Consumers should continue to check at home for recalled peanut butter containing products, and discard them.

As noted, as of February 15, 2009, 642 persons believed to be infected with the outbreak strain have been reported from 44 states. The number of ill persons identified in each state is as follows: Alabama (2), Arizona (13), Arkansas (6), California (76), Colorado (15), Connecticut (10), Florida (1), Georgia (6), Hawaii (4), Idaho (16), Illinois (9), Indiana (9), Iowa (3), Kansas (2), Kentucky (3), Maine (5), Maryland (8), Massachusetts (48), Michigan (35), Minnesota (39), Missouri (14), Mississippi (7), Nebraska (1), New Hampshire (13), New Jersey (23), New York (28), Nevada (6), North Carolina (6), North Dakota (17), Ohio (94), Oklahoma (4), Oregon (12), Pennsylvania (19), Rhode Island (4), South Dakota (4), Tennessee (13), Texas (9), Utah (6), Vermont (4), Virginia (21), Washington (18), West Virginia (2), Wisconsin (5), and Wyoming (2). Additionally, one ill person was reported from Canada (learn how food-borne illness outbreaks are tracked).

Oregon public health officials also recently confirmed, in a press release, that the ongoing outbreak may have also affected some pets. One laboratory-confirmed case of Salmonella in a dog from an Oregon household was reported, and further characterization of this Salmonella isolate is pending. Salmonella resembling the outbreak strain was also reportedly isolated by a private laboratory from recalled Happy Tails dog biscuits from the dog’s household. 

We, of course, will continue to report new developments.

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Agriculture Secretary Tom Vilsack recently announced that, despite previous opposition, he now favors combining the food safety functions of the United States Department of Agriculture (“USDA”) and Food and Drug Administration (“FDA”) into a single food safety agency. Currently, the USDA through it’s Food Safety and Inspection Service (“FSIS”) is responsible for regulating the safety of meat, poultry and egg products. In turn, the FDA has responsibility for most other foods. In his recent comments, Vilsack also stated that he has not yet decided whether a single agency would be best located within the FSIS, the FDA or an independent agency.

As debate continues about merging the food safety responsibilities of the USDA and FDA, Janie Gabbett (from Meatingplace.com) reported that the majority of industry participants in an online survey favored combining the food safety regulatory functions of the USDA and FDA, but only one in five believed that such a merger would result in improved food safety.

Of 289 readers who responded to the survey, 58 percent agreed the two agency functions should be combined, while 42 opposed a merger. When respondents were asked if they thought that a merger of the two agencies would improve food safety, 50 percent believed that food safety would remain unchanged, while 30 percent believed that the quality of food regulation could actually decline.

According to the survey, participants were more concerned with deficiencies in FDA regulation than in FSIS protocols. Namely, this is because, unlike the FDA, FSIS inspectors currently maintain a continuous, on-site presence in meat packing facilities, and also regularly test meat and poultry products for harmful pathogens. As a result, several respondents also concluded that if the agencies were to merge, the FDA would need to become more like FSIS, and not the other way around.

Other suggestions from survey participants included:

• Providing better technology and tools for inspectors;

• Increased laboratory testing;

• Imposing fines on plants with repeated serious violations;

• Requiring all food establishments to adopt and implement Hazard Analysis and Critical Control Point (“HACCP”) plans;

• Requiring all food establishments to adopt and implement sanitation standard operating procedures (“SSOPs”);

• Continuing to improve risk-based analysis of food safety systems in plants;

• Targeting high-risk foods (under FDA jurisdiction) and moving toward to the USDA model of inspection;

• Providing better training for inspectors; and

• Funding additional research to improve food safety.

According to Gabbett, many respondents also believed that, even with a single food safety agency, increasing the funding and number of federal inspectors would likely be needed to improve the effectiveness of regulations. According to one respondent, "simply merging two departments and changing their names . . . won't affect food safety." Rather, "there would need to be fundamental changes at the plant inspection level to actually make a difference."

Currently, the United States is the only industrial nation to have two separate federal food safety regulatory systems. Moving forward, we'll continue to post on emerging developments.

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As many as six cases associated with the ongoing Salmonella outbreak may have been traced to products produced at PCA's Plainview, Texas production facility. According to the Colorado Department of Public Health and Environment, these individuals reported exposure to peanut butter distributed by the Lakewood-based Vitamin Cottage. In turn, an open container of Vitamin Cottage fresh ground peanut butter, made from peanuts distributed from the Texas facility, tested positive for the outbreak strain of Salmonella. Because the container was opened, however, it is not yet known if the peanut butter was potentially contaminated at the Texas facility, or if the product was cross-contaminated with the outbreak strain after distribution (learn how food-borne illnesses and outbreaks are tracked). Vitamin Cottage, in a Recall Notice, announced last week that it was recalling these products.

It is estimated that, since opening in March 2005, PCA's Plainview, Texas facility produced and distributed about one-third of the volume of products that were distributed from the company's Blakely, Georgia plant.  Although Salmonella has not yet been isolated from any non-opened products distributed from the Plainview facility, it has been reported that truck loads of raw peanuts from PCA's Georgia facility were previously sent to the Texas plant.  Currently, the FDA is still waiting on lab confirmation from numerous product and environmental samples taken from the facility determine the extent, if any, of potential contamination. 

In addition to operating plants in Georgia and Texas, PCA also operated a facility in Virginia. The FDA has completed a comprehensive inspection of the Virginia plant, and has reported that all lab results were negative for Salmonella. Although PCA closed this facility following its bankruptcy announcement on February 13, 2009, the FDA has not taken any action against the Virginia plant or any of the products produced there.

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On Monday, February 9, 2009, the Plainview Peanut Co., a subsidiary of Peanut Corporation of America (“PCA”), voluntarily halted operations at its Plainview, Texas production facility pending the resolution of continuing governmental investigations.

On Thursday, February 12, 2009, the Texas Department of State Health Services announced, in a News Release, that it has ordered a recall of all products ever produced at the facility. The order followed the discovery of various sanitary issues identified in the plant.  The following day, on Friday, February 13, 2009, PCA formally declared bankruptcy.

The newest recall follows PCA's announcement, on January 28, 2009, that it was recalling all peanuts, peanut meal, peanut paste and peanut butter, distributed from it's Blakely, Georgia facility since January 2007.  PCA has now recalled all products, including peanut meal, granulated peanuts and dry roasted peanuts, produced and distributed from the Plainview, Texas facility since March 2005.   

Earlier, investigators reported that the Plainview facility had been operating for years without any inspections or licensure from the state. As the FBI continues its criminal probe into PCA's operations, we will continue to report new developments.  

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In the coming months, the FDA will likely begin requiring food manufacturers that obtain positive test results from product samples to report such findings to the agency. Although the new rules will likely have a significant impact on industry as adjustments are made to ensure compliance, the rules (once implemented) would likely add an additional layer of safety to our food regulatory system.

In 2007, former President Bush signed into law the Food and Drug Administration Amendments Act (Public Law 110-85). The Act, which amended the Federal Food, Drug and Cosmetic Act by creating a new section 417 (21 U.S.C. 350f), required the Secretary of Health and Human Services, no later than September 27, 2008, to establish a Reportable Food Registry. The stated purpose of the amendment was “to provide a reliable mechanism to track patterns of adulteration in food [which] would support efforts by the FDA to [better] target [its] limited inspection resources.” Implementation of the new law, along with its mandatory reporting requirements, however, has been delayed while the FDA continues to develop an effective electronic reporting system.

In its current form, the new food registry will apply to food manufacturers, and will define “reportable foods” as any article of food (other than infant formula) found to contain harmful pathogens, “for which there is a reasonable probability that the use of, or exposure to, such of food will cause serious adverse health consequences or death to humans or animals.” 21.U.S.C. 350f. If a food sample tests positive for any pathogen considered an adulterant for the particular food at issue, manufacturers would be required, within 24 hours, to submit an electronic report to the agency.

Currently, the FDA anticipates that the registry (and the associated reporting requirements) will likely go into effect sometime later this spring.  We, of course, will keep you posted.

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Stewart Parnell, president of the Peanut Corporation of America (“PCA”), along with Sammy Lightsey, a PCA plant manager, were called today to testify before the House Energy and Commerce subcommittee. It has been alleged that PCA shipped certain peanut butter products from its Blakely, Georgia facility after receiving conflicting laboratory reports about the presence of salmonella. The testimony lasted only 10 minutes, however, as both individuals cited Fifth Amendment protections against self-incrimination and refused to answer questions. Prior to the appearance by PCA representatives, the subcommittee received statements from family members of individuals believed to be affected by the outbreak.

Also testifying today was the president of Deibel Laboratories, a company previously hired by PCA to conduct sampling on its products. Charles Deibel told the subcommittee that his company had consistently informed PCA of positive test results when salmonella was isolated from samples. According to Deibel, "[i]t is not unusual for . . . food testing laboratories to find samples that test positive for salmonella and other pathogens." In turn, when ready-to-eat samples are found to be positive for a harmful pathogen, companies should either dispose of such products or employ additional safeguards (such as a lethality step or adopting other interventions) to ensure product safety. Characterizing product testing of ready-to-eat foods as "the last chance to catch a problem," Deibel also expressed his view that FDA regulations needed to be updated to enhance the overall safety of our food supply. Notably, with the coming months, the FDA will likely introduce a new food registry that will require food companies to promptly report any positive testing results, along with the disposition of any potentially implicated products, directly to the FDA.

To date, the 2008-2009 salmonella outbreak has affected more than 1,800 consumer products. (use the FDA Recall Interface on the left-hand column of our blog to search for recalled products). The FBI, working closely with the FDA, is continuing its investigation into PCA and its operations to determine whether, and to what extent, there was wrongdoing.

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As the investigation into the Peanut Corporation of America (“PCA”) continues, it has been reported that salmonella was isolated from various product samples manufactured by a PCA subsidiary in Plainview, Texas. The facility, operated by the Plainview Peanut Company, issued a press release following its closure yesterday at the request of the FDA and Texas Department of State Health Services. Early reports indicate that the facility agreed to halt operations ahead of an announcement that salmonella may have been found at the site. Although the pathogen was reportedly isolated from certain product samples, officials have also stated that, at this point, it does not appear that any of the tested products reached consumers. The Plainview production facility, like PCA’s Blakely, Georgia facility, produces peanut meal, granulated peanuts and dry roasted peanuts.

As we reported previously, federal officials are continuing their criminal investigation into PCA operations. The closing of PCA’s Plainview facility comes only one day after the FBI executed search warrants at both PCA’s production facility in Blakely, Georgia, and and its headquarters in Lynchburg, Virginia. To date, the ongoing outbreak may have sickened as many as 550 people, and may have contributed to as many as eight deaths. The recalls which followed (and continue to this day) have affected more than 1,800 consumer products.

Congressional hearings on the outbreak and recalls are scheduled to occur tomorrow, and we will continue to report on emerging developments.

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I never gave much thought to the number of foods made using peanuts until we started tracking the recent peanut butter recalls. A quick visit to the local grocer confirmed that our choices, once in the thousands, had been narrowed to just a few. 

The declining availability of peanut related products has left consumers, quite literally, in a jam.  The situation, however, is one we can heartily embrace. Walking through the store, I was delightfully amazed by the diverse range of jelly products waiting to fill my cart. There was an entire aisle, nearly twenty feet high and a quarter mile long, lined on both sides, top to bottom, with nothing but jelly. In addition to your standard jelly, there was jam, marmalade, spreads and something called preserves. There was seeded and seedless. There was orange, grape, cherry, strawberry, blueberry, mango, muscadine, and dozens of others, including one flavor, called scuppernong. There was low-cal and fat-free. There was even sugar-free which, for a moment, flummoxed me greatly. I had long been under the mistaken impression that jelly was, for all intents and purposes, nothing but sugar. Very cool. Jelly can also be used for dips, sandwiches, cookies, cakes, streusels, and even, as a sugar substitute in rock candy. There are even vegetable jellies which make for a fantastic glaze on ribs and lamb chops.

Let’s be honest, the current supply of peanut butter has been spread a bit thin. Until the recalls are over, consider letting jelly take its place. Kids love jelly-filled candies and adults cherish American-style marmalade. And, in case you've been worried, there's simply no reason to let the salmonella outbreak ruin your Valentine's Day. Just buy Jelly Beans. They’re fat free, make for a lovely, thoughtful gift, and are delicious.  Even better, some companies sell jelly beans that taste just like, well . . . peanut butter.

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As we follow the PCA recalls, we are reminded that in matters of great public concern, some resort to rhetorical extremes. Pulitzer Prize-winning historian, Richard Hofstadter, described this tradition in his 1964 essay, “The Paranoid Style in American Politics,” which essay was recently revisited in “Politics for Grown Ups,” by Paul Hond, Columbia (Winter 2008-09).

While such tactics garner attention – Joe McCarthy was front-page news – there is a price to be paid, and not just by those who are the targets of a “cruelly reckless character assassin.” As Hond explains, the paranoid advocate damages his campaign, as he “doesn’t so much invent wild ideas, then, as undermine sound ones, alienating people with his exaggerations and ultimately discrediting his own cause.”

We are seeing examples of the paranoid style in recent writings about the PCA recall. Even before the facts are fleshed out, some insist that first-degree murder (or perhaps only manslaughter) occurred, with executives, technicians, customers and regulators acting as aiders and abettors of these murderous acts. Moreover, whatever happened at PCA, say these advocates, is replicated in each company throughout the food industry.

Thus, it should not surprise that today a PCA critic reminded us of the recent Chinese executions of food safety regulators, and suggested that something similar (“figuratively”) should be done here.

Let’s allow the rule of law and its procedural safeguards to play out.  Sometimes speculation is simply wrong. News that a peanut shipment had been rejected by Canada led to the supposition that this product had been sold in the United States. It wasn’t. The FDA has confirmed that the shipment at issue was rejected because of small metal fragments – and the product was destroyed.

While the recall proceeds, we should allow the regulators and prosecutors to do their work. Facts will be gathered and disclosed and we’ll see who knew what, and when they knew it. Until then, fanning the flames of outrage with unfounded inferences and broadsides against entire industries causes thoughtful readers – the people we need to reach – to step back from our message.

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