Defending Food Safety : Food Safety Defense Lawyer & Attorney : National Food Industry Counsel : National Food Regulatory Lawyer and Attorney, FDA Lawyer and Attorney. USDA Lawyer and Attorney : Gass Weber Mullins Law Firm

It is no small secret that our collective survival depends, quite literally, on the food we eat.

The availability and affordability of food has a direct impact on our individual health, along with (if we work in the food industry) the success and longevity of our careers. Indeed, if we produce food for others, the quality of the food we market and sell also affects our individual ability to provide for and feed our families. In this regard, every one of us (no matter how large or small our role may be) has an interest in making sure that the food we produce (and, ultimately, consume) is the safest it can possibly be.

To date, we’ve done an excellent job. Nevertheless, despite our best efforts, the existence of naturally occurring pathogens in our environment – and by extension in many foods – remains a real part of our business and lives. Given the limitations of science and, in no small part, consumer behavior, no one is immune. Every month, for instance, approximately 6,000,000 Americans will develop some type of food-borne illness. This also means that – each year– nearly one in every four Americans will be affected. Of these, approximately 325,000 individuals will be hospitalized, and nearly 5,000 could die.

And, no matter how much we care about food safety, this trend is not only likely to continue, but will likely accelerate. Given recent and substantial improvements in national food-borne illness outbreak surveillance, more food-borne illnesses are being identified, and more outbreaks are being reported. By extension, these outbreaks are being associated with an increasing number of foods, and more companies are – either directly or indirectly – being affected.

This resulting increase in reported outbreaks, along with a corresponding increase in media coverage, has also affected public and governmental interest in food safety. The politics of food safety, of course, translates exponentially into more regulation and a significant increase in food litigation. Thus, if your company has not yet faced a food-borne illness claim, chances are in the short term it will. Additionally, for this reason, businesses should begin contemplating how to best position themselves (from both a food safety and liability standpoint) to anticipate future problems, reduce company exposure, and react appropriately when an alleged food-borne illness or outbreak does indeed occur.

Not all food-borne illnesses claims, however, have merit. As noted, as a direct result of the growing public and political awareness in food safety, we have also witnessed an explosion in food-borne illness and outbreak litigation. In turn, we also know that, because of limited resources and other reasons, some outbreak investigations are still unable to identify the real culprit, and some continue to identify the wrong source. In these and other cases, many claimants (and their attorneys) continue to sue the wrong party.

Thus, here too, it is critical that food companies understand how food-borne illnesses are tracked, identified and confirmed, what to expect in a food-borne illness investigation, how to respond during an outbreak or recall, how to react when confronted with a potential claim, and how to properly defend their business and reputation when lawsuits are ultimately filed.

In any event, this is why we are proud to offer our Advance Series on Managing Food-borne Illness Outbreaks and Claims. For nearly a decade, our food safety team has helped food companies across the nation prevent litigation, manage crisis and defend claims (both meritorious and non-meritorious allegations). In the coming weeks and months, this series will provide additional and timely insight on what food companies can do to anticipate risk and reduce potential exposure, to effectively respond to and manage food-borne illness outbreaks and claims, and to effectively defend food-borne illness litigation and lawsuits when they do, indeed, occur.

Although we enjoy one of the most plentiful, affordable and safest food supplies in the world, we also live in one of the most litigious societies. Thus, despite the fact that food-borne pathogens are (and likely always will be) an inherent part of our food supply, and despite the fact that individual risk can be greatly reduced through responsible consumer behavior, many individuals will continue to be affected by food-borne illness and, unfortunately, regardless of source or cause, many will continue to sue.

In recognition of the incredible efforts hard working Americans to provide safe and affordable food to our families, we feel inclined, when lawsuits overreach, to protect and defend yours.

Again, thanks for a job well done. And, welcome to www.defendingfoodsafety.com.

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Travelling throughout the United States and Internationally this week to speak at various food safety conferences (and mingling endlessly with numerous regulators and industry professionals), I continue to hear a common theme.

When it comes to the safety of our food here at home, it is intellectually healthier, if you will, to stand behind the teachings of science, than to be force-fed the frenzied rhetoric of cynics to whom things like perspective and reason are but tasteless, bland and easily ignored concepts.

Each year, American families eat somewhere in the neighborhood of 328.5 Billion safe meals – and countless more safe snacks. While any illness or death linked to the consumption of food is one too many, the fact remains that (at three meals a day) you and I are 20 times more likely to die this year from pneumonia or drowning than from a food-borne illness. Although not perfect, the statistics are quite impressive.

Mostly, the risk of eating is low because the hard-working people who actually grow, raise, manufacture, transport, process, prepare and serve our food – despite what you might be told by the media – are actually well-intentioned human beings. With incredible assistance and cooperation from numerous federal, state and local agencies, these hard-working individuals help make our food supply one of the safest in the world.

Included, of course, in this cast of thousands, are dedicated professions who work for numerous federal, state and local agencies such as the CDC, the FDA, the USDA, the FSIS, 50 individual State health departments, and countless local health departments. These individuals, in many instances volunteer extended hours at wages far below their true worth, working tirelessly to ensure that the food sustaining our nation is as plentiful and safe as it can be.

Yet, despite these incredible human efforts, both the food industry and government workers that oversee and track the safety of our food remain under continuous attack. As consumers, we are inundated by media “fear-mongering,” and made to believe that with each meal consumed, we draw closer to the precipice of some fathomless tragedy. We are also taught to be suspicious and wary of the people who have dedicated their lives to ensuring that our families are fed, and that our food is wholesome.

We are told of the ineffectiveness of federal, state and local regulators, alleged problems in food processing plants, restaurants and grocery stores, and how industry workers simply don’t care about the food they make. In order to believe this, however, we must ignore a fundamental truth: the food that our fellow Americans work so hard to produce is the same food they proudly feed to their families.

You see, food safety is a complicated and dynamic issue. It is easy to be a cynic. It is easy to attack others with the benefit of extended hindsight. It is easy to simplify things to a level that a third grader would find devoid in both substance and fact. The real challenge, however, lies in embracing a reasoned and proactive approach that not only recognizes the limits of technology and science, but, at the same time, within these limits, best reduces the risks most likely to occur to the greatest extent possible.

And, we must recognize, as well, that there are many sources of food-borne illness other than food products. More common than problems which occur at the highly regulated production level, are those which occur at the consumer level.

• How many offending foods, for instance, were perfectly safe until rendered unsafe by improper storage or handling?

• How many offending meals were perfectly safe until contaminated by ill food handlers?

• How many buffets at restaurants, churches, family gatherings or weddings were completely safe until contaminated by sick guests?

When we probe deeper, and actually balance the real and multiple causes of food-borne illness (most of which occur long after production), the safety of the food produced by industry is astonishing. And, frankly, until we recognize that each one of us shares responsibility for basic food safety in our homes, and until every food-handler, homemaker and guest can be rendered “sterile,” we also need to ensure that the laws regulating our food supply are driven by (and based upon) reality and science, not merely inflammatory rhetoric.

Nevertheless, many will continue to indiscriminately criticize our entire food system and, by extension, the countless people working to find solutions to the challenges we do face. And, although the same critics will also argue that consumers bear little responsibility for their own safety, please understand this is a dangerous and flawed philosophy which serves no one but those who profit from the sensationalism and mistrust they create.

In any event, for those who continue to ignore science and reason, who contend that food safety is the responsibility of food producers alone, and who wrongly proclaim that food safety is only as simple as “not eating poop,” I say this: given the statistics, what goes into one mouth is often far less harmful than what comes out of another.

*And, if you have any questions related to proper food handling, please feel free to peruse our site for safe handling instructions and tips; and, please encourage others to do the same.

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Food safety, of course, is a top priority for our nation’s food processors.

In addition to numerous other interventions, poultry processors also train employees to visually inspect carcasses for potential defects prior to final USDA approval.

This system of visual screening, however, is only as good as the human eye. Thus, in a continuing effort to push the food safety envelop even further, researchers have now proven that computer imaging can lend a helping hand.

The US Agricultural Research Service (“ARS”) has announced the development of an automated hyperspectral imaging system that can accurately detect food safety and quality defects (including small amounts of fecal contamination) on poultry carcasses. Hyperspectral imaging is a technique that combines digital imaging with spectroscopy, creating individual wavelengths of light that pinpoint contaminants.

The new system was developed, in conjunction with Stork Food Systems, by ARS scientists at the Quality and Safety Assessment Research Unit in Athens, Georgia. Notably, a prototype was recently tested in a poultry plant to evaluate its performance under commercial conditions. In the trial, carcasses were imaged after evisceration (but prior to washing) at a rate of 150 birds per minute. According to reports, the system ran successfully for several days. Nevertheless, while the initial trials showed great promise, researchers are still working to refine the system to better avoid false-positives.

The ARS researchers are also collaborating with the Environmental Microbial and Food Safety Laboratory in Maryland, which has developed a similar on-line system designed to differentiate diseased poultry carcasses from those that are wholesome. The system relies upon the same imaging technology, but uses different wavelengths.

In any event, the two groups are now attempting to merge the systems into a single unit, which will include an imaging camera and detection software. According to reports, the team plans to have a prototype of the joint system ready for further trials later this year.

Congrats to all.

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With Halloween fast approaching, it would seem the perfect time to worry the masses.

Researchers from the Center for Science in the Public Interest (“CSPI”), for instance, have just compiled nearly twenty years of CDC data, and used it to create a list of the riskiest foods to consume. In turn, some major news outlets, including CNN, quickly publicized the findings. Click on the following link to view the CSPI Study.

The study attempted to determine the relative risk of select foods by examining the frequency of past food-borne illness outbreaks associated with each. The findings, ironically, are nearly identical to the Food Guide Pyramid, which tells us what, and how much, food we should eat in order to stay healthy.

In any event, according to the CSPI study, the ten most risky foods are as follows:

1. Leafy Greens: 363 outbreaks (13,568 reported cases of illness);
2. Eggs: 352 outbreaks (11,163 reported cases of illness);
3. Tuna: 268 outbreaks (2341 reported cases of illness);
4. Oysters: 132 outbreaks (3409 reported cases of illness);
5. Potatoes: 108 outbreaks (3659 reported cases of illness);
6. Cheese: 83 outbreaks (2761 reported cases of illness);
7. Ice Cream: 74 outbreaks (2594 reported cases of illness);
8. Tomatoes: 31 outbreaks (3292 reported cases of illness);
9. Sprouts: 31 outbreaks (2022 reported cases of illness); and
10. Berries: 25 outbreaks (3397 reported cases of illness).

The implied lesson from the findings seems to be that we should, in order to minimize our risk of getting sick, avoid eating fruits, vegetables, dairy products and seafood. In turn, it would seem, a diet which consists strictly of beef, chicken and candy would be exactly what the doctor ordered.

In my view, scaring people away from certian foods doesn’t help promote food safety. And, warning people not to eat fruits and vegetables may be a bit short-sighted. Leafy greens, for instance, are served in virtually every single salad and on every single sandwich; that translates to nearly a billion safe servings every single day. The same is true for other foods on the list, including countless fruits and most vegetables.

So, in twenty years, we have less than 14,000 reported cases of people getting sick from leafy greens? You do the math. This is really no different than arguing that visiting the grocery store (to buy your produce) is an inherently dangerous activity because, every so often, someone trips.

Moreover, in my house, it is not what you eat that determines the risk, but rather who made it. My father, for instance, didn’t stop at just cooking our food. He cremated it. In this regard, most foods we enjoy are perfectly safe when properly handled and cooked to a thousand degrees centigrade (or, 160 degrees fahrenheit as recommended by FSIS).

In any event, recognizing that nothing in our world is without risk, I’ll continue to take my chances with a healthy diet and tasty food. And, despite its safety record, the candy can wait until Halloween. For now, I’m going to go eat a salad.

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Following recent media coverage involving the regulation of our food supply, Agriculture Secretary Tom Vilsack issued a statement highlighting the continuing efforts of USDA to ensure that our food remains as safe as it can be. Click on the following link to view the USDA Statement.

“Over the last eight months since President Obama took office,” said Vilsack, “the USDA has been aggressive in its efforts to improve food safety, and has been an active partner in establishing and contributing to President Obama's Food Safety Working Group.”

"Protecting public health is the sole mission of the USDA Food Safety and Inspection Service. FSIS has continued to make improvements to reduce the presence of E. coli O157:H7 and the agency is committed to working to reduce the incidence of food-borne illnesses caused by this pathogen.

"Shortly after coming into office, the Administration created a high-level Food Safety Working Group to coordinate food safety policies, focus greater resources on prevention, and improve response to outbreaks. Since doing so, we have taken the following actions:

• Launched an initiative to cut down E. Coli contamination (including in particular contamination from E. Coli O157:H7) and as part of that initiative, stepped-up meat facility inspections involving greater use of sampling to monitor the products going into ground beef;

• Appointed a chief medical officer within USDA's Food Safety Inspection Service to reaffirm its role as a public health agency;

• Issued draft guidelines for industry to further reduce the risk of O157 contamination;

• Started testing additional components of ground beef, including bench trim, and issuing new instructions to our employees asking that they verify that plants follow sanitary practices in processing beef carcasses; and

• Designed the Public Health Information System (PHIS) in response to lessons learned in past outbreaks.

According to Vilsack, "the USDA is also looking at ways to enhance trace back methods and will initiate a rulemaking in the near future to require all grinders, including establishments and retail stores, to keep accurate records of the sources of each lot of ground beef."

"No priority is greater to me than food safety," said Vilsack, "and I am firmly committed to taking the steps necessary to reduce the incidence of food-borne illness and protect the American people from preventable illnesses. We will continue to make improvements to reduce the presence of E. coli 0157:H7."

Because there is no technology (with the exception of irradiation or cooking), however, to ensure that raw animal products can be made sterile, FSIS continues to remind consumers that thoroughly cooking raw animal products to an internal temperature of 160 degrees will destroy any pathogens that may be present, and will render the products safe.

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