Will We Ever Learn? – “Obamaburger”  Ray's Hell Burger, a.k.a. Butcher Burger, had Critical Food Safety Violations:  Employee was observed contacting ready-to-eat (RTE) food [hamburger roll and lettuce] with their bare hands.  The food establishment serves hamburgers [cooked-to-order] undercooked without informing consumers of the significantly increased risk.  Insect, rodent, and/or other pest harborage conditions exist on the premises [mouse droppings were observed on the floor of the storage room].

Why What We Do Is Important

Salmonella Pot Pies  272 isolates of Salmonella I 4,[5],12:i:- with an indistinguishable genetic fingerprint were collected from ill persons in 35 states. Three of these patients’pot pies yielded Salmonella I4,[5],12:i:- isolates with a genetic fingerprint indistinguishable from the outbreak pattern.  Lesson - clear pattern of customer confusion over ready to eat and ready to cook – especially in microwaves.

Salmonella Veggie Booty?  69 reported cases of Salmonella Wandsworth in 23 states and 14 cases of Salmonella Typhimurium in six states who became ill after consuming Veggie Booty, a puffed vegetable snack food with a raw, dried vegetable coating. A total of 61 bags were tested in twelve states. Salmonella sp. was isolated from thirteen bags of Veggie Booty.  Lesson – know your suppliers.

Salmonella Tomatoes, or was it Peppers?  A final count of 1,442 ill in 43 states, D.C., and Canada, and those are the confirmed illnesses. Using CDC math - which estimates that for every documented case of salmonella in the US, another 38.5 go unreported - the total number sickened was probably closer to 50,000.  Lesson – FDA and CDC are woefully underfunded and understaffed.

Botulism in a Can  As of August 24, 2007, eight cases of botulism had been reported to CDC from Indiana (2 cases), Texas (3 cases), and Ohio (3 cases). All eight persons were reported to have consumed hot dog chili sauce made by Castleberry's Food Company.  Castleberry’s manufacturing facility closed after decades in operation.  Lesson – Invest in equipment and people.

E. coli and Campylobacter in Raw Milk

Peanut Butter and Salmonella - Again  As of last week, over 691 persons infected with the outbreak strains of Salmonella Typhimurium have been reported from 46 states  Over 150 people hospitalized  Nine Deaths  Over 3,800 products recalled  Bankruptcy  Criminal Prosecution  Declaratory Judgment  Lesson - ?

Jack in the Box   1992 and 1993   Nearly 600 people sickened in six States – most children - 50 HUS – 4 deaths   Two Class Actions – Hundreds of Individual Suits   Shareholders Litigation, Congressional Investigation   Settlements in Excess of $100,000,000   Cause - knowingly undercooking

E. coli and Hamburger – Together Again  In 2007 and 2008 – 26 recalls; ground beef companies recalled more than 44 million pounds of E. coli O157:H7- contaminated meat.  In 2006 – 186,000 pound recalled.

E. coli is back – Why?   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.  Better Reporting: More doctors are more likely to recognize the symptoms of E. coli poisoning, thereby increasing the chances that an outbreak will be detected, leading to a recall.

E. coli is back – Why?  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.

E. coli is back – Why?  High oil prices: The theory is that $3 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 distillers grain also increases the incidence of E. coli in the hindguts of cattle.

E. coli is back – Why?  Illegal Immigration: Wait, perhaps not. The New York Times reported that immigration officials began a crackdown at slaughterhouses across the country last fall. Some are now hiring men from homeless missions and providing free transportation to many of them.  Hmmm, an influx of unskilled, but U.S. workers, with no experience and high turnover.

Risk of Imports

It Can Happen In Great Britain 2009   Salmonella outbreak in UK linked to seeds (Estimated 137 ill) 2008  Cryptosporidium outbreak in UK (700 reported ill, 23 confirmed  Listeriosis outbreak in UK hospital (Estimated 5 cases)  Salmonella Agona outbreak in UK/Ireland (Estimated 114 ill and 1 dead) 2007  Cryptosporidium outbreak Galway, Ireland (Estimated 200 ill)  Salmonella in UK from Cadbury (Estimated 40 ill)

It Can Happen In Great Britain 2006  Botulism outbreak in Scotland (Estimated 200 cattle ill)  Salmonella Montevideo in UK to chocolate (Estimated 37 ill) 2005  E. coli outbreak in Wales (Estimated 172 ill and one dead)  Cryptosporidium outbreak in Wales (Estimated 203 cases) 2004  Salmonella Thompson outbreak in UK (Estimated 46 cases)  Salmonella Newport outbreak in UK (Estimated 350 cases)

And, then there is China

Emerging Foodborne Pathogens   E. coli O111 linked to nearly 300 illnesses and one death in Oklahoma. E. coli O111 and other Shiga-toxin E. coli are NOT listed as an adulterant under the Federal Meat Inspection Act – Yet.   MRSA   C. dif   Bird Flu – Swine Flu   Mad Cow

Incentives for Companies to Produce Safe Food Products   Market Forces - risk of damage to business reputation, loss of market share, and decreased sales revenue; Contract Specifications as a “market force” Charging a “premium” for safer food

  Food Safety Laws and Regulations - violations can result in fines, product-recalls, plant-closures or criminal penalties Incentives for Companies to Produce Safe Food Products

Strict Liability For Food: In Sum STRICT LIABILITY IS LIABILITY WITHOUT REGARD TO FAULT  The focus is on the product; not conduct.  You are liable if: The product was unsafe and thus defective The defective product caused an injury

Planning AGAINST Litigation What Is Really Important  Identify Hazards HACCP HACCP Do you have qualified/ committed people? Do you have qualified/ committed people?

Questions? (206) Marler Clark LLP, PS 6600 Columbia Center 701 Fifth Avenue Seattle, Washington 98104