Defending Food Safety : Food Safety Defense Lawyer & Attorney : Gass Weber Mullins Law Firm : National Food Product Defense Counsel : Defending Food Safety Blog

Given recent improvements in national food-borne illness outbreak surveillance, more food-borne illnesses are being identified, and more outbreaks are being reported.

By extension, many of these outbreaks are being associated with an increasing number of foods, and more companies are – either directly or indirectly – being affected.

For nearly a decade, we have been defending food companies across the country in high-profile outbreak litigation (involving meritorious and non-meritorious allegations). During this period, we have also learned first-hand that when outbreaks do occur, not all investigations are performed properly, and not all resulting claims have merit.

Because of limited resources and other reasons, many outbreak investigations are still unable to identify the real culprit, and some continue to identify the wrong source. Unfortunately, in these and other cases,  many claimants (and their attorneys) continue to sue the wrong party.

Thus, when a food company is faced with an outbreak, it is critical to obtain experienced counsel counsel: (1) who understand how food-borne illnesses are tracked, investigated and confirmed; (2) who can help challenge developing assumptions and conclusions regarding potential source; (3) who can effectively respond to regulators and media during an outbreak and recall; and (4) who know how to properly defend food-borne illness claims and lawsuits when they do, indeed, occur. Over the last 10 years, our firm has written the doctrine on Defending Food-Borne Illness Outbreaks And Claims.

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 your incredible efforts to provide safe and plentiful food to our families, we are proud, when lawsuits are threatened, to protect and defend yours.

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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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• Return to Defending Claims.  

So, here we go again. Thinking about food rather than eating it. But, that's okay.

Because helping food companies decrease the risk of potential litigation, finding the real source of an outbreak (when it does occur), helping a faultless company avert a crisis, working to extract an innocent food producer from a stray investigation, or simply proving decisively before trial that a food-borne illness claim lacks all merit, is well worth the small sacrifice of delaying a meal.

For nearly a decade, we have worked nationally with food companies and food safety professionals preventing litigation, managing outbreaks and defending claims.

During this period, we have observed (first hand) what really happens inside our processing plants, grocery stores and restaurants, and are here to proclaim, without hesitation, that we are proud to eat the food you make. Additionally, while our food safety system may never be perfect, it is extremely well suited to identify problems when they arise, to encourage quick and effective solutions, and to help ensure that our food supply remains one of the most plentiful, affordable and safest in the entire world.

Thank you for a job well done!

Welcome to www.defendingfoodsafety.com.

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Beginning in August and September 2008, a few, sporadic cases of Salmonella Typhimurium started to appear on the CDC PulseNet radar screen.  This was not unexpected, as numerous cases will exist at any given time throughout any given year. Through October and November 2008, however, the number of cases believed to be associated with this pathogen began to increase. Using Pulse-Field Gel Electrophoresis (“PFGE”) testing of culture-confirmed isolates (taken from various stool samples), the CDC determined that many of the newly-reported cases appeared to be related. In turn, these findings led to the first national case-control study, conducted on January 3 and 4, 2009, associated with the outbreak (learn how food-borne outbreaks are tracked).

According to the CDC, preliminary analysis of the study led investigators to suspect that peanut butter was a likely source of the outbreak. Following the preliminary findings, the Minnesota Department of Agriculture then began testing various peanut butter products, and eventually reported it had isolated the outbreak strain from an open 5-pound container of King Nut creamy peanut butter.  On January 10, 2009, after test results were shared with King Nut, it immediately initiated the first voluntary recall of peanut butter in the investigation.  Soon thereafter, the Connecticut Department of Public Health reported that it had isolated salmonella from an unopened 5-pound container of King Nut peanut butter. According to officials in Connecticut, the salmonella found in the container also appeared, by PFGE, to match the outbreak strain.   

Relying on trace-back efforts, investigators discovered that the King Nut peanut butter at issue was manufactured by the Peanut Corporation of America (PCA) in Blakely, Georgia. These preliminary findings prompted PCA, on January 13, 2009, to initiate the second voluntarily recall in the investigation - this recall included various peanut butter and paste products produced at the facility after July 1, 2008 (as additional information was developed and shared by investigators, this initial recall was later expanded on two occasions). Although these products were not sold directly to consumers, they had been distributed to numerous institutions, food service providers, food manufacturers and distributors.  In turn, because some of these products were also reportedly used, in part, as ingredients in other products (including cookies, crackers, cereal, candy, ice cream, pet treats, and other foods), additional precautionary recalls followed.  The following list outlines the progression of the subsequent voluntary and precautionary recalls (and, some expanded recalls), as industry worked very closely with the CDC and FDA to determine what raw materials and products could potentially be affected:

Friday, January 16, 2009:  

• Kellogg Company (Select Austin® and Keebler® Branded Peanut Butter Sandwich Crackers, and Select Snack-Size Packs of Famous Amos® And Keebler® Soft Batch Peanut Butter Cookies); and
• Peanut Corporation (First Expanded Recall of Peanut Butter).

Saturday, January 17, 2009:

• Hy-Vee Inc. (Select Bakery Products With Peanut Butter);and
• Perry's Ice Cream Company (Select Peanut Butter Ice Cream Products).

Sunday, January 18, 2009:

• McKee Foods Corporation (Select Little Debbie® Peanut Butter Toasty and Peanut Butter Cheese Sandwich Crackers);
• South Bend Chocolate Company (Various Candys Containing Peanut Butter);
• Ralcorp Frozen Bakery Products (Select Food Lion Bake Shop Peanut Butter Cookies);
• Ralcorp Frozen Bakery Products (Select Lofthouse Peanut Butter Cookies, Chuck's Chunky Peanut Butter Cookies And Pastries Plus Gourmet Cookies);
• Ralcorp Frozen Bakery Products (Select Wal-Mart Bakery Brand Peanut Butter Cookies); and
• Peanut Corporation of America (Second Expanded Recall of Peanut Butter).

Monday, January 19, 2009:

• Meijer (Select Meijer Brand Peanut Butter Crackers and Ice Cream);
• Abbott Nutrition (Select ZonePerfect® Chocolate Peanut Butter Bars, ZonePerfect® Peanut Toffee Bars and NutriPals™ Peanut Butter Chocolate Bars);
• Kroger (Select Ice Cream Products);
• Clif Bar & Company (Select CLIF® and LUNA® Branded Bars Containing Peanut Butter);
• Evening Rise Bread Co. (Select Peanut Butter Cookies and Bars); and
• General Mills (Select LÄRABAR and JamFrakas Peanut Butter Snack Bars).

Tuesday, January 20, 2009:

• Country Maid (Select Classic Breaks® Peanut Butter Cookie Dough);
• Nature's Path (Select Peanut Butter Optimum Energy Bars);
• PetSmart (Select Grreat Choice® Dog Biscuits);
• Ready Pac Foods, Inc (Various, select products);
• Premier Nutrition (Select TWISTED and TITAN Branded Bars);
• Boca Grande Foods (Select POCO PAC®, and GRANDE GOURMET™ Peanut Butter Products);
• Dinners Ready Meridian (Select Asian Marinated Flank Steak, Indonesian Chicken and Chicken Satay Prepared Meals);
• Weis Markets (Select Weis Quality (WQ) Cheese Peanut Butter Sandwich Crackers and WQ Toasted Peanut Butter Sandwich Crackers);
• Nash Finch (Select Bakery Products With Peanut Butter); and
• Kroger (Additional Select Ice Cream Products).

Wednesday, January 21, 2009:

• NutriSystem (Select Peanut Butter Granola Bars);
• Blanton's Candies (Select Peanut Butter Sticks);
• Landies Candies Co. Inc (Select Peanut Butter Filled Chocolates);
• Lovin Oven, LLC (Select Health Valley Organic Peanut Crunch Chewy Granola Bars);
• Best Brands Corp. (Select Peanut Butter Frozen Cookie Dough); and
• Chef Jay’s Food Products (Select Cookies, Bars and Brownies).

Thursday, January 22, 2009:

• Aspen Hills, Inc. (Select Cookie Dough Products);
• South Bend Chocolate Company (Expanded Recall of Select Candy Containing Peanut Butter);
• Rain Creek Baking Corporation (Product Withdrawal of Select Peanut Butter Turtles, Baskets and Princesses);
• General Nutrition Centers, Inc. (Select GNC Triflex Peanut Butter Soft Chews);
• Perry's Ice Cream Company (Expanded Recall Of Select Peanut Butter Ice Cream Products);
• Jimmy's Cookies (Select Peanut Butter Cookies);
• Arbonne International (Select Figure 8 Peanut Butter Chews);
• Parker Products, Inc. (Select Peanut Butter Cups And Other Products); and
• Trader Joe’s (Select Trader Joe’s Peanut Butter Chewy Coated & Drizzled Granola Bars, Nutty Chocolate Chewy Coated & Drizzled Granola Bars and Sutter’s Formula Cookies).

Friday, January 23, 2009:

• Brent and Sam’s (Select Sam’s Choice Brand Cookies);
• Brent and Sam’s (Select Archer Farms Brand Cookies);
• Amway Global (Select NUTRILITE Energy Bars); and
• Whole Foods Market (Select "Whole Foods Carob Energee Nuggets”).

Saturday, January 24, 2009:

• ShopRite (Select ShopRite Peanut Butter on Toasty Crackers and ShopRite Peanut Butter and Cheese Cracker Snacks).

Although the list of precautionary recalls has been extensive (and could still increase as new information is discovered and shared by investigators), it is important to recognize that all of the recalls were voluntary, and most were precautionary. Although many of the recalled products likely did not carry the bacteria at issue, most recalls were nevertheless announced in an abundance of caution because, at the very least, the possibility was there. Additionally, as to those samples in which the pathogen was isolated, there is a good chance that the bacteria was not evenly distributed; thus impacting only limited products, but not others. For this reason, all parties will need to wait for the investigation to conclude to determine whether only a very few or potentially more of these products actually carried trace elements of the pathogen at issue.

Additionally, as an aside, you may recall that we reported (early on) that at least one American staple - Girl Scout Cookies - was not in any way associated with the ongoing outbreak and recalls.  To learn more about additional products not implicated, please visit the American Peanut Council, which has published a (still growing) list of peanut butter products and brands NOT affected in any way be the current recall.   

In the coming days, we will of course continue to watch and report as this investigation winds down.  We anticipate this will likely be soon, as illnesses associated with the outbreak appear, at this point, to be declining.  For this and many other reasons, we also once again express our gratitude to both industry and public health officials, scattered throughout the country, working collectively to bring this outbreak and investigation to its closure.  
 

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