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The Long Road To Safety Changes In Food Systems

Marler Clark

Salmonella. E.coli. Listeria. Every year about 48 million Americans get sick from eating contaminated food. Some people become seriously ill and need to be hospitalized. More than 3 million of those illnesses are from tainted produce.
No one knows food poisoning better than Bill Marler. Marler is a food-safety lawyer in Seattle who represented families affected by the deadly Jack in the Box E. coli outbreak that struck this region 20 years ago. Four children died. 

He keeps a framed picture of that first class-action lawsuit on his wall. “This complaint and [the] Jack in the Box case is just a way to remind me, sort of why we do what we do,” he says.

The Jack in the Box case was his first such case, but it wouldn’t be his last. Marler has built his career suing companies when people got sick from eating tainted foods. He says the Jack in the Box case was a watershed moment. It made the public start to question the safety of our food system. By the late ‘90s the US Department of Agriculture had adopted new rules for meat products.

“It says to companies you need to figure out what the risks are to your process,” says Marler. “You need to figure out how to solve them, and you need to document and test to make sure you’re abiding by your rules.”

There were talks about bringing those standards to all other foods. But those ideas didn’t get far. It would take another series of outbreaks before Congress paid attention. Between 2004 and 2006, hundreds of people got sick from contaminated food. This time it wasn’t from eating tainted meat. Rather, it was from eating spinach, lettuce, peanut butter — foods that the Food and Drug Administration regulates.  

Marler handled many of those lawsuits. His experience with those cases made him want to do more. He began lobbying Congress for new food laws. He estimates he’s traveled to Washington, DC, 20 times in the past few years. He also flew in his clients to committee hearings so they could tell lawmakers their stories.

"Far more effective than a trial lawyer is a mom who lost her kid, or a woman on dialysis, or family members who lost people,” he says. “That had a big impact."

In 2010 Congress passed the Food Safety Modernization Act, the most sweeping set of food-safety rules in 70 years. The principles used to regulate meat products became the blueprint for produce and processed foods. They shifted the focus to preventing outbreaks. That’s in contrast to the current system, which only responds to outbreaks.

“A lot of times, what happens in outbreaks, the consumer is the canary in the coal mine,” says Marler. “And then they get sick and you do a recall, you do a trace back, and then you figure out what happened. To me, that’s a really bad way of producing food.”

One of the mechanisms for prevention is testing — testing the soil for pathogens, testing the crops that come in after harvest, testing during packaging, and testing the products again before they go to market. The new rules would affect about 20 percent of all farms in the US.

Anne Morrell is the food-safety coordinator at Hansen Fruit in Yakima. The company grows apples, pears and cherries. Growers like Hansen say they already test their irrigation water once a year as a requirement to sell to big-box stores like Wal-Mart or Costco. Under the FDA’s proposed rules, however, farmers would have to test more frequently, especially during the growing season.

And that could be a burden. Morrell says normally water is used under the tree. But during the summer months, they also use overhead sprinklers to protect the fruit from the heat. "If your results were too high, then under the FDA rule you have to stop irrigating with that water,” she says. “And most farmers don't have an alternate source of water besides their irrigation."

Morrell says it usually takes 48 hours before the results come back. During that time, farmers have to hold off watering the trees until they know the bacteria levels are okay. Morrell says the waiting period makes the trees vulnerable. “If they don’t have plenty of water in the root zone, they’ll pull moisture out of the fruit, and that really hurts your fruit quality,” she says.

It can also hurt the health of the tree. “An orchard tree lasts about 20 years, if it’s well managed,” she says. "If you were to let your trees get stressed, that really shortens the life of the tree and makes it not a productive tree.”

The rules aren’t final yet. Last week, the Office of Management and Budget stripped out the testing requirement. It’s not clear why, or who made the decision. But the FDA is still taking public comments.

Attorney Bill Marler is puzzled and critical of that decision. He admits that testing isn’t 100 percent foolproof, but he says it’s still the best way to prevent an outbreak in a system that already lacks enough checks and balances.

For example, there aren’t enough product inspectors, he says. Many producers hire third-party auditors. But Marler says that creates an inherent conflict of interest. “The cantaloupe outbreak that sickened 147 people [and] killed 33 people, the audit was being performed while the cantaloupes that ultimately led to the outbreak were being produced. And they got a superior rating.”

The FDA will issue additional rules later, including certification requirements for third-party auditors. Despite the flaws, Marler says the rules are a good start for changes that are long overdue. The FDA has learned from the meat industry’s experience.

“In the late ‘90s, early part of 2000, 90 percent of my firm’s income was E. coli cases linked to hamburger,” he says. “And that’s nearly zero today. So what they’ve done over there works.”

In his 20 years litigating food poisoning cases, Marler has seen some shifts in the food industry. It took a while for the meat industry to pay attention to safety. It’s taking other food organizations longer to do that. Marler says no one food group is immune from safety concerns; there’s always potential for problems. He says when industries stop worrying about safety, that’s when something bad is more likely to happen.

Year started with KUOW: 1994