“Should I eat the chicken?”: Responses to Food Safety Challenges in the US Professor Kif Augustine-Adams Fulbright Distinguished Lecturer, Renmin University Law School Charles E. Jones Professor of Law, J. Reuben Clark Law School Brigham Young University

Foster Farms Chicken Fall

j As of the end of February, a total of 481 persons infected with Salmonella Heidelberg have been reported from 25 states and Puerto Rico. – 38% of ill persons have been hospitalized – No deaths have been reported – Multi-drug resistant Likely actual incidence of sickness is much higher: more than 12,000 persons (481 x 25) to about 18,500 (481 x 38.5)

Investigations conducted by local, state, and federal officials identified Foster Farms brand chicken as the likely source. In October, U.S. Department of Agriculture’s Food Safety and Inspection Service (USDA-FSIS) issued a public health alert. Also in October, two Costco stores in California voluntarily recalled approximately 64,000 pounds units of rotisserie chicken products due to possible salmonella contamination. Center for Disease Control and USDA-FSIS recommend consumers follow food safety tips to prevent salmonella infection from raw poultry produced by Foster Farms or any other brand. j

Selected Outbreak Investigations 2013 Center for Disease Control Ready to Eat Salads – Escherichia coli O157:H7 Chicken – Salmonella Heidelberg Raw Shellfish – Vibrio parahaemolyticus Fresh Produce – Cyclospora Crave Brothers Farmstead Cheeses – Listeriosi s Pomegranate Seeds – Hepatitis A Tahini Sesame Paste – Salmonella Montevideo & Mbandaka Cucumbers – Salmonella Saint Paul Frozen Food Products – Escherichia coli O121 Chicken – Salmonella Heidelberg Ground Beef -- Salmonella Typhimurium

Outbreaks in 2014 Salmonella Heidelberg (January) – Tyson brand chicken 9 persons at a correctional facility in Tennessee 2 (22%) hospitalized No deaths reported – Unknown Sources 23 persons in 15 other states

Outbreaks in 2014 Roos Food Dairy Products (February) – Listeria monocytogenes 8 persons sickened 7 (87%) hospitalized 1 (12.5%) death

Government Responses Investigation Tracking – Pulsenet, National Outbreak Reporting System, etc. Information – Food Safety and Inspection Service, USDA; Center for Disease Control – Public health alerts – Details on particular outbreaks – Guidance on how to prevent food born illnesses Recall of products Factory closures Criminal prosecution

Private Responses Retail company may voluntarily recall products and change sanitation practices. Individuals may limit or eliminate consumption of risky foods. Individuals may bring a law suit under tort law.

Jack in the Box Hamburgers

j After government investigation, 73 different Jack in the Box locations were linked to the E. coli outbreak, primarily in Washington State. The bacteria outbreak – sickened at least 700 people in four states – led to 171 hospitalizations (24%) – resulted in 4 deaths (.5%)

j Local health departments as well as others had warned Foodmaker, Inc., parent company of Jack in the Box, to cook hamburgers to at least 155 degrees Fahrenheit. The company decided not to because it made the hamburgers tough. That decision became the core of a negligence claim against the company.

k Brianne Kiner (9) developed hemolytic uremic syndrome (HUS). Permanent injuries from the infection include diabetes, asthma, brain damage and severe kidney problems. Brianne’s parents along with hundreds of others sued Jack-in-the-Box.

J Brianne’s attorney, William Marler, obtained a $15.6 million settlement on her behalf. William Marler also represented hundreds of other victims in a class-action suit against the Jack-in-the-Box and Food Maker, Inc. Settlements for individual and class-action claimants reached over $50 million.

Jensen Farms Cantaloupes Spring/Summer/Fall

j Listeria-contaminated cantaloupes – sickened at least 147 persons in 28 states – killed 33 people (22.4%) – linked to deaths of 10 others (6.8%)

j In October, 2013, two Jensen brothers pled guilty – To “six counts each of introducing adulterated food into interstate commerce” – with potential prison time of six years and – up to $1.5 million in fines In January, 2014, a judge sentenced – both to five years probation – one brother to 6-months in-house detention and $150,000 in restitution

j Marler Clark, a law firm in Washington State, represents the families of 45 victims, 28 people who died and 17 people who survived. Marler Clark pursued compensation from at least 15 actors: Jensen Farms itself, food safety auditors, distributors, and retailers. Claims against Jensen Farms were resolved through bankruptcy proceedings after Jensen Farms declared Chapter 11 Bankruptcy in Claims against other parties are still pending in court. The total medical expenses to date are in excess of $12,000,000.

Plaintiffs’ Bar j

Marler Clark Website

Private law suits as a response to food safety challenges require: well-developed tort law attorneys willing to take the case strong judiciary

Should I eat the chicken?