Not too long ago, I wondered if the beef industry had actually wised up, and was about to put me out of the business of representing the people they make sick. After a decade of nearly continuous outbreaks of deadly E. coli O157:H7, from Jack in the Box to ConAgra, the beef industry seemed to suddenly clean up its act. That would have been good news for millions of Americans, especially young children, who are most vulnerable to food-borne illness. It would also have been good news for the beef industry. And, believe it or not, it would have been good news to a lawyer who would prefer to never see another three-year-old child hooked up to a kidney dialysis machine.
Thanks to the FSIS for inviting me to address this esteemed group today. I am impressed that the FSIS, CDC and the industry are addressing many of the food safety challenges we are facing today. Your agenda is ambitious; to explore the challenges of addressing E. coli O157:H7, including illness and recall trends; to discuss FSIS’s plans to begin a short-term study to determine the extent to which non-O157 STECs may be present in FSIS-regulated products; and, to discuss the evidence that may support a determination that raw beef products such as primal cuts and boxed beef contaminated with E. coli O157:H7 are adulterated. This is ambitious, but important.
In January of 2007 I wrote an Op-ed commenting on something J. Patrick Boyle, President and Chief Executive of the American Meat Institute, wrote to the New York Times regarding an article entitled: "100 Years Later, the Food Industry Is Still ‘The Jungle.’" Mr. Boyle wrote: "Since 1999, the incidence of E. coli O157:H7 in ground beef samples tested by the Agriculture Department has declined by 80 percent to a fraction of a percent, a level once thought impossible." I agreed with Mr. Boyle. E. coli illnesses, especially those tied to red meat consumption were down - way down. A report in 2005 released by the CDC, in collaboration with the FDA and USDA, showed important declines in foodborne infections due to common bacterial pathogens. From 1996 to 2004, the incidence of E. coli O157:H7 infections decreased 42 percent. We saw the same results in our law firm. From 1993 (Jack in the Box) to 2002 (ConAgra), 95% of the cases in our office were E. coli cases tied to red meat consumption. After 2002, we saw an enormous drop in clients, and more importantly, ill people nationwide. Recalls fell to nothing. I agreed with Mr. Boyle despite the fact that since 1993 most of my clients had been sickened by tainted meat. In fact, between 1993 and 2002 I took over $250 Million from the meat industry in verdicts and settlements on behalf of my clients, mostly children with kidney failure caused from consuming E. coli-tainted hamburger.
In February of 2007, just a few months after suing the Spinach industry on behalf of people sickened and killed by eating E. coli-contaminated spinach, I was invited to a Salinas California spinach luncheon. I told the "leafy green industry" to follow your example. However, within a few months my words began to haunt me as reports of meat recalls, outbreaks and illness starting hitting the news. First it was some sick little leaguers from Sonoma, then some folks at a bar in Pennsylvania. By June of 2006 it began to look and feel like the late springs and summers from 1993 to 2002, when hamburger recalls and E. coli illnesses were as large a part of every summer – much like vacations and baseball season. Kids were getting sick and my phone was ringing. An area of my practice that I thought was gone had pulsed back to life. No sooner could I get my lawsuit ready against AFG in California than, now bankrupt, Topps recalled 21,000,000 pounds of meat and food giant, Cargill, recalled another 2,000,000 pounds. I was suddenly back in the beef business.
Speaking of Topps for a second. In late August and early September of last year a teenager, who recently became my client, became ill after consuming frozen, boxed, pre-formed patties. Within days she suffered HUS. Florida health official would eventually link the illness by PFGE to the leftover Topps product in the family’s freezer. But the recall was not called for weeks later, after several others consumed the tainted hamburger. Why? Because FSIS and the industry had an understanding that a recall was not necessary, because there was only one illness and the leftover hamburger came from an opened packet. Interestingly, that was the same set of facts that occurred with Topps in 2005 when its product nearly killed an up-state New York 10 year old.
I am pleased that the open box of meat understanding is no longer the rule. One wonders if a recall in 2005 would have alerted Topps to issues in its plant or its suppliers. One wonders if a recall earlier in September of 2007 would have both saved the company and ill people.
But, of course, the down turn from 1994 to 2004 was too good to be true. In the last several months, E. coli O157:H7 has returned. And, there is only one person in this room who benefits from that. The last half of 2007 showed a substantial increase in the volume of recalls and illnesses in any year since 2002. By way of comparison, the amount of ground beef recalled in all of 2006 was 156,235 pounds in only 8 recalls. In 2007, over 30,000,000 pounds of meat was recalled in 21 recalls. Well over 100 people were sickened, some developing acute kidney failure – most have contacted me. There are several E. coli-related deaths that may be eventually linked to consumption of hamburger. Lawsuits have been commenced on behalf of victims of HUS against Interstate Meats, Nebraska Beef, United Food Group, Topps, Cargill, Fresno Meat and Rochester Meats.
There are as many theories as to why the uptick in E. coli exists, as there are authorities, researchers, meat packers and at least one trial lawyer. Over the past couple of months I have talked to a number them, and theories abound. Here are a few:
Complacency: After five years of progress with the E. coli problem, one wonders if meat processors have consciously or unconsciously slacked off, relaxing their testing procedures so that they are less likely to detect tainted meat. Perhaps HACCP is simply too much responsibility for companies with low margins.
Better Reporting: When you deal with statistics, there is always some risk that a change in data collection will create false impressions. Perhaps more doctors are more likely to recognize the symptoms of E. coli poisoning, thereby increasing the chances that an outbreak will be detected, and leading to a recall. This may be a factor, but the effects of improved reporting would be gradual. Last year’s increase in outbreaks and recalls is far too dramatic and sudden to be explained by a statistical quirk.
Global Warming: Too dry? One theory has it that drought through much of the southeast and southwest has led to more fecal dust wafting in the breezes through beef-slaughtering plants, creating new avenues for beef to become tainted. Too wet? This theory focuses on excessive rainfall in other regions, which leads to muddy pens that serve as an ideal vehicle for E. coli at meat-processing plants.
High oil prices: They get blamed for everything else, so why not food poisoning? The theory is that $4 gas has fueled the growth of ethanol plants. Those plants tend to be built next to feedlots, because the plants produce a byproduct called distiller’s grains, which serves as an excellent feed for livestock. Problem is, according to research at Kansas State University, the distiller’s grain also increases the incidence of E. coli in the hindguts of cattle. But research is research – the same University recently published data saying the opposite.
Illegal Immigration: Wait, perhaps not. The New York Times reported that immigration officials began a crackdown at slaughterhouses across the country last 2006. Some now are hiring men from homeless missions and providing free transportation to many of them. Hmmm, an influx of unskilled, but US workers, with no experience and high turnover.
The Darwinian explanation: Another theory has it that previous interventions – from Jack in the Box to Odwalla and ConAgra – have forced the E. coli microbes to adapt, selecting pathogens that are more resistant to detection or intervention. Darwin might be proud. But this seems unlikely because beef comes from a huge and diverse geographic range – literally coast-to-coast, border-to-border and nation-to-nation. While the climate and geography varies, the feedlot practices and the manner of slaughtering and processing do not vary much, if at all.
Answers, I do not have them. But I can guarantee one thing – If we do not find the answers – expect to see more Topps in the future in meat production in the US.
Another issue facing, not only the meat industry, but all of us, is the extent to which non-O157 E. coli may be present in food products – FSIS regulated or not. It is clear that Non-O157 Shiga toxin producing E. coli have emerged as a public health issue. Some non-O157 possess the same range of virulence factors as E. coli O157:H7 and are capable of causing serious illnesses, or death. Numerous serotypes, including O26, O103, O111 and O145 have been identified as agents of food borne disease.
I have seen their nasty work in the Dole spinach outbreak and an outbreak in Utah involving Wendy’s. Since 1990, 13 outbreaks of non-O157 E. coli have been reported in the US. While E. coli O157 is the principal strain isolated from implicated food and clinical isolates in the US, non-O157 predominate in other countries, including several of our beef trading partners like Australia, Brazil and Canada.
I will leave this to scientists and public health officials to sort all out. However, perhaps one needs to look no further than the FEDERAL MEAT INSPECTION Act and look at the term ''adulterated" for and answer. A product is adulterated: (1) if it bears or contains any poisonous or deleterious substance which may render it injurious to health." If non-O157 E. coli fits the bill, then to me that answers the question. However, what do we then do about salmonella, listeria, campylobacter, and shigella – especially those with particular virulence or antibiotic resistance?
One thing to remember, whether a product is considered to be an adulterant under the FMI or not, if a food product contains a bacteria or virus that sickens or kills, civil liability can, and often will attach. My vote is to simply get pathogens out of your product.
This leads me to the final, and likely most controversial issue facing this room today: Should primal cuts and boxed beef contaminated with E. coli O157:H7 (or for that matter any pathogen) be considered adulterated?
This is both a complicated and simple issue. One that we all have had first-hand experience from the now infamous Kreifall v. Sizzler and Excel case. In part that case was fought over the desire of the meat industry to hide from liability on behalf of the victims of their contaminated product. But more to the point, an appellate court decided that an intact cut of meat is in fact adulterated, if it is contaminated with E. coli O157:H7 and the seller knew it was to be further processed, in that instance "needle tenderized" in the restaurant.
A little more history. The intact/non-intact distinction was first announced in a July 19, 1999 FSIS policy statement that the meat industry had long pushed as a way of deeming O157 an "adulterant" only in ground beef and other non-intact meat not "further processed" in a federally-inspected facility. This was only a "policy statement" but has since been treated as if it was a rule. This was further elaborated on by FSIS in an October 7, 2002 policy statement issued in response to the ConAgra outbreak and recall. Notably, what was never clarified was whether this "rule" was really meant to apply to meat that was intact when it left a meat plant, or instead, meat that only reached a consumer as intact. As such, the meaning of "further processing" was never explicitly said to apply to processing that happened at retail. Meanwhile, the meat industry has consistently operated under the assumption that O157 can be on anything that is intact when it leaves a meat plant. Indeed, in the last several years, meat processors have started using disclaimer statements to introduce meat that is known to be possibly contaminated with O157 into commerce.
There should either be a zero tolerance policy or not. But as it currently exists, the non-intact meat rule is the exception that swallowed the rule; it is a loophole you could drive a caravan of trucks through. This issue needs to be resolved. Producers, retailers and consumers need to know the score.
We should not allow a tragedy as the one that killed Caroline Hawkinson and sickened members of a church and patrons of restaurants in upstate Minnesota to occur again. Perhaps the facts of this case show the problems of this intact/not intact issue. It all began in the summer of 2006 in the small town of Longville, Minnesota. A local grocery store (Tabaka’s) received in late June another shipment of chuckrolls (1,900 lbs) from its supplier/middleman Interstate. The chuckrolls, as usual, were ground into hamburger. The church bought 40 pounds of the hamburger. The chuckrolls originating from Nebraska Beef produced in mid-June. About the same time that those chuckrolls were produced, Nebraska Beef or FSIS found an E. coli O157:H7 positive sample in trim - a positive that would eventually link by PFGE Nebraska Beef to the ill-fated church picnic. That trim was either destroyed or sent to further processing (ie cooking). The chuckrolls were shipped, but this time the invoice was labeled "non ground beef items are not intended for ground beef." From the invoices we have seen, this was the first time that this warning had been placed on an invoice where chuckrolls were sold. Hmm, to borrow a well used phrase in this down; what did they know and when did they know it? Nebraska Beef’s response to all of this? It sued the church.
In conclusion, not too long ago, I wondered if the beef industry had actually wised up, and was about to put me out of the business of representing the people they make sick. After a decade of nearly continuous outbreaks of deadly E. coli O157:H7, from Jack in the Box to ConAgra, the beef industry seemed to suddenly clean up its act. That would have been good news for millions of Americans, especially young children, who are most vulnerable to food-borne illness. It would also have been good news for the beef industry. And, believe it or not, it would have been good news to a lawyer who would prefer to never see another three-year-old child hooked up to a kidney dialysis machine.