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

Our food safety lawyers have defended food industry clients for more than a decade. During this period, we have worked closely with numerous food companies reducing their risk, managing their recalls and defending their claims.

It’s also been ten years since my colleagues and I first stepped through the doors of a beef slaughter facility. It was a frosty dawn. The early morning sun was just cresting the horizon as we passed through the guard station and into the parking lot. Having only the most basic understanding of what went on in a slaughter facility, we were curious and apprehensive.

It was a transformational experience. Leaving the plant that day, we felt as though we had suddenly become a part of something very important. We saw the unwavering effort exuded by hundreds of employees in each aspect of their jobs. We witnessed first-hand the cleanliness and efficiency of dedicated employees working to ensure a safe and plentiful product, and we were honored to be given the opportunity to defend them.

Ten years and hundreds of cases later, we are honored that industry continues to call upon our food safety attorneys in its most difficult times. We are, as we were that early morning years ago, proud of what our industry does and what our industry stands for.

Our food safety team also takes great pride, not only in defending clients in the face of a recall, outbreak or lawsuit, but also in working to reduce their risk in the first instance. Over the years, we have enjoyed sharing our vast experience and teaching our colleagues and friends about the latest in food safety litigation here and abroad. In 2010, we addressed audiences at food safety conferences throughout the United States, Mexico, Canada and China. And, as the food safety landscape continues to transform, we will continue to help our industry clients stay ahead of their most pressing issues, and abreast of new and emerging trends, technologies and regulatory developments.

Our team had made a difference in other ways as well. We were given the recent privilege of hosting the newest weekly Meatingplace Industry Blog, Legally Speaking, as well as authoring monthly food safety columns for the National Provisioner and Food Quality Magazine.

And finally, I would note that our firm logo (contained in the upper left-hand corner of this blog) is emblematic of our approach to food safety. We have been leaders in this area for nearly decade. In turn, our logo represents the relationship we share with each of our food industry clients. It is symbolic of the responsibility they have given us, and our unwavering obligation to honor it. Finally, it represents our responsibility as both advocates and litigators — to carry our clients (as well as their burdens) across the tightrope of risk.

As we continue to shoulder our clients’ most difficult cases, the food safety lawyers at Gass Weber Mullins will also, of course, continue to lead the way.
 

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Two years ago, we lauded High Pressure Processing (“HPP”) as “one of the most promising food safety technologies.” As it turns out, we were right.

In 2005, the American Pasteurization Company (“APC”) became the first company in the country to offer HPP on a commercial tolling basis. Just five years after the company opened its doors, we are excited to report that APC has been embraced by industry and the company is expanding.

As we wrote previously, HPP is a post-packaging pasteurization technique. The technology can be applied to food products with high water content, such as ready-to-eat meat and poultry products, seafood, fruits, vegetables and soft cheeses. HPP works by uniformly applying up to 87,000 psi of hydrostatic pressure to foods, often in their final packaging, for up to three minutes. The hydrostatic pressure does not compress the food product, but it does destroy food-borne pathogens and spoilage microorganisms.

APC’s first processing facility in Milwaukee started with just two employees processing about 5,000 pounds of food each week. Today, the company’s staff numbers over 50 and is processing more than 700,000 pounds per week. In order to meet the growing demand, APC just opened a second processing facility in Evansville, Indiana. The company hopes to open even more locations across the United States in the future.

The benefits of HPP are especially significant given its proven ability to eliminate food-borne pathogens in certain products. The emotional and financial toll of a food-borne illness outbreak and product recall can devastate a manufacturer. The average cost of a recall to companies is $10 million, in addition to brand damage and lost sales. Thus, by removing pathogens from treated products, and by extension all associated risk, the long term benefits can be substantial.

HPP can also double a product’s shelf life while simultaneously removing the manufacturer’s need to add chemical preservatives. Longer shelf life means longer production runs and fewer markdowns. The business of one APC customer went from static to growing when, with an extended shelf life, it was able to switch its product from frozen to fresh.

These feats are accomplished without the use of chemicals or irradiation, and amazingly, without affecting product quality, thus satisfying some the most significant consumer issues right now: (1) safe; and (2) natural. While irradiation has remained controversial for many years, HPP is quickly gaining a much wider acceptance.

With regard to regulatory compliance, HPP is USDA and FDA approved and helps processors comply with current Listeria regulations. APC “works with food processors in many ways to make the utilization of HPP as seamless and cost effective as possible.”

So is there any downside to HPP? Well, yes. While HPP makes our ready-to-eat meats, raw shellfish, and salsa safer, the process cannot yet be applied to all foods. The good news is that APC is diligently working to expand HPP’s portfolio of products, which will hopefully someday include ground beef.

We are grateful and happy for our friends at APC who now anticipate processing more than 50 million pounds of safe food each year!

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It was won on beef.

It has long been said in America, that for those who seek new frontiers, adventure and a good hard day’s work, all roads lead west.

A lot has changed since the days of Bill Hickok and the Wild West. But, as with those truths we hold to be self-evident, some things remain the same.

The Cowboy has always been a symbol of pride, independence and the vast, untamed wilderness which once stretched across our nation. The American cowboy is legendary, not just here in the United States, but around the world for strength and toughness. More than anything else, the cowboy embodies the principle that here, in America, a good work-ethic trumps a fancy last name every time.

It is easy to lose sight of the fact that, even today, for every steak and every hamburger enjoyed amongst friends, family and loved ones, there are ranchers out there giving everything they can to ensure their cattle grow strong and healthy. It is a tough job, and no easier today than 200 years ago.

Today’s rancher must also be a veterinarian, a business person and an innovator. He or she must be able to fix a saddle as well as implement cutting edge technology to ensure that their products are as good, safe and wholesome as they can possibly be. And, they must also protect their families, juggling the responsibilities of parent-teacher conferences and little league games with cold nights and endless demands of the job. While the job of today’s rancher is vastly different than it once was, the values, toughness and integrity have endured.

As has been true since the unlikely beginnings of our great nation, strength, integrity and a willingness to persevere through anything to get the job done right, are the trademarks of today’s cattlemen. Thank you for a job well done. Today, we recognize you not just as American icons but also as Food Safety Heroes.

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The FDA’s Reportable Food Registry (“RFR”) has now been up and running for a full year.  So, has the RFR been successful?

As we discussed previously, the RFR is an internet based portal through which food manufacturers must notify the FDA of food products that have a “reasonable probability” of causing health problems or death in humans or animals. The RFR applies to any food product regulated by the FDA, with the exception of infant formula and dietary supplements.

This summer, the FDA issued a report on the RFR’s first seven months of operation, September 2009 through March 2010. Click on the following link to view a copy of the THE 2009 - 2010 FDA RFR REPORT.

During the first seven months, food companies submitted 125 “primary reports” through the RFR. A primary report is an initial report concerning a reportable food from either industry or public health officials, such as federal, state, or local regulators. Of those 125 primary reports, 122 were from industry, and 3 were from regulatory officials.

Also during that initial period, 1,638 “subsequent reports” were submitted as a result of a primary report. A subsequent report is a report submitted by either a supplier (upstream) or a recipient (downstream) of a food/feed (including ingredients) for which a primary report was submitted.

The FDA classified the 125 primary reports into seven food safety hazard categories, as illustrated in the pie graph below:

Percent Distribution of 125 Primary RFR Entries by Food Safety Hazard

Because this initial reporting period was so brief, the FDA wisely cautions that inferences cannot be drawn from this data. Nevertheless, the figures are still interesting.

More meaningful, however, is that of the 125 reports, only one caused a health problem – “an allergic-type reaction” in four family members. The FDA pointed out that all the reports had the potential to bring harm. However you want to interpret the fact that there was only a single health problem, it cannot be lost among the other numbers. Perhaps it highlights how the RFR brings an abundance of caution that will only make our food supply even safer.

And a meaningful statement was made by the FDA’s Deputy Commissioner for Foods, Michael Taylor. When asked how industry reacted to the RFR, Taylor said “The industry is taking it very seriously. They know it is a legal duty.” We are in a period of consumer distrust. I would like to share with consumers that not only does industry take food safety regulation seriously, I have personally experienced food manufacturers setting their safety standards above and beyond their legal obligation. Although recent media may suggest otherwise, our food manufacturers, with the exception of a few, care deeply about safety.

After just one year, it is too soon to determine whether the RFR will meet its goals of tracking patterns of adulteration and targeting the FDA’s limited inspection resources. The FDA has labelled the RFR’s first seven months “a success story.” It was not a perfect first year – the electronic submission process was already overhauled once; and questions still remain – how many of the potentially hazardous situations would have been reported under regulation in place prior to the RFR?

In any event, we will continue, of course, to answer your questions about RFR compliance and monitor new RFR developments.

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