A total of thirty cases of Salmonella illness linked to poultry, including frozen raw breaded chicken products, are being reported in the Canadian provinces of Alberta, Ontario, Quebec, and New Brunswick  Yet no recall warnings are yet associated with this outbreak.

The Public Health Agency of Canada is collaborating with provincial public health agencies, the Canadian Food Inspection Agency (CFIA)  and Health Canada to investigate an outbreak of Salmonella Enteritidis infections.  The human illnesses are linked to poultry products including frozen raw breaded chicken.The investigation is ongoing, and this public health notice will be updated on a regular basis as the investigation evolves.

Health experts say the risk to Canadians is low. Salmonella is commonly found in raw chicken and frozen raw breaded chicken products. Illnesses can be avoided if safe food handling, preparation and cooking practices are followed when preparing these types of food products.

This outbreak is turning into a  reminder to properly handle, cook and store poultry, including frozen breaded chicken products to avoid getting sick. Frozen raw breaded chicken products contain raw poultry and should be handled and prepared no differently from other raw poultry products.

Canadians are advised to follow cooking instructions carefully and verify the internal temperature after cooking before consuming these products. Frozen raw breaded chicken products and raw poultry pieces must be cooked to an internal temperature of at least 74°C (165°F) to ensure they are safe to eat. Whole poultry must be cooked to an internal temperature of at least 82°C (180°F).

Currently, there are 30 cases of Salmonella Enteritidis illness in four provinces: Alberta (2), Ontario (17), Quebec (7), and New Brunswick (4). Four individuals have been hospitalized. Individuals became sick between May 2017 and February 2018. The average age of cases is 32 years, with ages ranging from 1 to 73 years. The majority of cases (57 percent) are male.

Based on the investigation findings to date, exposure to poultry, including frozen raw breaded chicken products has been identified as a source of illness. Several individuals who became ill reported consuming a mix of poultry and frozen raw breaded chicken products. CFIA  is conducting a food safety investigation into a source of the outbreak.

Anyone can become sick with a Salmonella infection, but infants, children, seniors and those with weakened immune systems are at higher risk of serious illness because their immune systems are more fragile.

Most people who become ill from a Salmonella infection will recover fully after a few days. It is possible for some people to be infected with the bacteria and not get sick or show any symptoms, but still be able to spread the infection to others.

Frozen raw breaded chicken products may appear to be pre-cooked or browned but they contain raw chicken and should be handled and prepared no differently from other raw poultry products.

Foods carrying Salmonella may look, smell and taste normal, so it’s important to follow our safe food handling tips for buying, chilling, thawing, cleaning, cooking, and storing poultry products:

• Wash your hands thoroughly with soap and warm water before and after handling all types of raw poultry.
• Always follow package cooking instructions. Cook poultry to a safe internal temperature that has been checked using a digital thermometer. Raw poultry pieces should be cooked to an internal temperature of 74°C (165°F). Whole poultry should be cooked to an internal temperature of 82°C (180°F).
• Eggs and egg-based foods should be fully cooked to ensure they are safe to eat.
• Keep raw poultry away from other food while shopping, storing, repackaging, cooking and serving foods.
• Never rinse poultry before using it because the bacteria can spread everywhere the water splashes, creating more of a hazard.
• Use warm soapy water to clean knives, cutting boards, utensils, your hands and any surfaces that have come in contact with food, especially meat, poultry, and fish.
• If you have been diagnosed with a Salmonella infection or any other gastrointestinal illness, do not cook food for other people.
• If you are preparing frozen raw breaded chicken products, such as nuggets, strips or burgers, the following precautions should be taken to protect your health:
• Do not eat raw or undercooked frozen breaded chicken products. Cook all frozen breaded products to an internal temperature of at least 74°C (165°F) to ensure they are safe to eat.
• Microwave cooking of frozen raw breaded poultry products including chicken nuggets, strips or burgers is not recommended because of uneven heating.
• Always follow package cooking instructions, including products labeled Uncooked, Cook and Serve, Ready to Cook, or Oven Ready.
• Wash your hands thoroughly with soap and warm water before and after handling frozen raw breaded chicken products.
• Use a separate plate, cutting board and utensils when handling frozen raw breaded chicken products to prevent the spread of harmful bacteria.
• Do not re-use the same plate, cutting board or utensils on breaded chicken products after they have been cooked, unless the plate has been thoroughly washed.
• Use a digital food thermometer to verify that frozen raw breaded chicken products have reached at least 74°C (165°F). Insert the digital food thermometer through the side of the product, all the way to the middle. Oven-safe meat thermometers that are designed for testing whole poultry and roasts during cooking are not suitable for testing nuggets, strips or burgers.

Symptoms of a Salmonella infection, called salmonellosis, typically start 6 to 72 hours after exposure to Salmonella bacteria from an infected animal or contaminated product.

Symptoms include:

• fever
• chills
• diarrhea
• abdominal cramps
• a headache
• nausea
• vomiting

These symptoms usually last for four to seven days. In healthy people, salmonellosis often clears up without treatment. In some cases, severe illness and hospitalization may occur. People who are infected with Salmonella bacteria can be infectious from several days to several weeks. People who experience symptoms, or who have underlying medical conditions, should contact their healthcare provider if they suspect they have a Salmonella infection.

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Having over one third of victims in a Salmonella outbreak require hospitalization is a rarity.  A high hospitalization rate speaks to the dangerous nature of the particular strain of bacteria involved, sometimes, or to the population of people to whom the contaminated food items were sold. 

The Rhode Island Health Department’s news release Sunday indicates that it may be the latter, in the Defusco’s Bakery Salmonella outbreak, that is responsible for so many hospitalizations.

Defusco’s zeppoles were sold or served at 19 different places across Rhode Island — to American Bakery Supplies, in West Warwick, which then distributed the contaminated zeppoles to Roch’s Market and Touch of Class Catering in West Warwick (among other locations), and Meal Works in Coventry.  Meal Works, which is a catering company, served the zeppoles at events on March 17 and 18 at West Warwick Manor Senior Center, St John and Paul Church in Coventry, Sparrow Point (senior facility) in West Warwick, and Crescent Park Manor in Riverside.

Zeppole are a traditional treat served during St. Joseph’s Day celebrations.

According to the Rhode Island Health Department, the custard used to fill the St. Joseph’s Day zeppoles and eclairs hadn’t been stored at safe temperatures. And the pre-baked holiday pastry shells were packed away in egg crates, possibly exposing them to contaminated raw egg residue.

Most people (not all) recover from Salmonella infections, but the notion that Salmonella illnesses consist of just a few days of diarrhea is totally incorrect.  (See the story of Barb Pruitt, who lost 4 feet of her small intestine due to Salmonella infection)  And the risk is heightened for the elderly, particularly where preparation and storage conditions for the contaminated food item may have led to large inoculating doses of bacterial ingestion (question: was Defusco’s pooling their eggs too?)

There are several relatively complex reasons why the elderly suffer more severe Salmonella infections.  First, the aging of their gastrointestinal tracts reduces peristalsis, or the natural ability of the GI tract to propel contents through and out the system.  This delayed clearance of food, and the bacteria that they contain, means longer periods of contact between the bacteria and the lining of the GI tract.  This gives the bacteria more time to do their ugly job before being shed from the system.  Second, the elderly, as a group, have a higher incidence of co-morbidities (i.e. other illnesses or conditions), which presents a host of medical problems and threats in the context of a severe Salmonella infection. 

If this is a biased opinion, it’s only because of the sorry way that the Hartmann Dairy has handled itself since their current round of problems began last spring (their license to operate as a Grade A dairy was revoked in 2001 for insanitary conditions).

Remember the response to the announcement that Hartmann products had been implicated in an E. coli O157:H7 outbreak that sickened 8, caused 4 hospitalizations, and one case of HUS last spring?  Deny, Deny, Deny; God and Constitution both give me the right to produce a lethal product; and the State of Minnesota Departments of Agriculture and Health (which, unfortunately for Mr. Hartmann, happen to be among the best in the world at this stuff), got it all wrong.  Actually, here is what Hartmann said back on June 8:

“As of today, there is no evidence of any harmful bacteria in any raw milk, cheese, meat or other product sampled from the Hartmann Farm.  The State has engaged in a serious regulatory and potentially criminal action in a grossly negligent manner with total disregard for the defamatory content of their media campaign.”

See Hartmann Dairy’s typically raw-milkian PR blunder.  They saved the Constitutional argument for the Court, which roundly rejected it.

Then comes the Hartmann trial, where he has his “day in court,” complete with the right to present his own evidence and to challenge the state’s.  In reading the opinion, one will struggle to find one thing that the judge found remotely credible about Hartmann’s case.

Due process is important, but what a waste of time and energy, not to mention scarce resources, for the State of Minnesota to have to spend a year proving its case that Hartmann’s products shouldn’t be available for kids to consume.

Also good commentary on the constitutional arguments often so carelessly espoused by certain raw dairy proponents, who don’t understand the constituitonal authority that states have to act in defense of public safety, particularly where the asserted right being violated is not one historically accorded a whole lot of weight. 

Sprouts have been called one of the 10 riskiest foods.  They have been estimated to have caused 40 percent of foodborne illness outbreaks linked to fresh produce.  And now they are implicated in a major Salmonella outbreak linked to Jimmy John’s sandwiches in Illinois.  Why?  Unlike other fresh produce, seeds need warm and humid conditions to sprout and grow . . . conditions that are also ideal for the growth of bacteria, including Salmonella, Listeria, and E. coli.

In 1999, the FDA issued guidance documents to the sprout industry.  The principles are non-binding:

All parties involved in the production of sprouts — seed producers, seed conditioners, and distributors, and sprout producers — should be aware that seeds and sprouted seeds have been recognized as an important cause of foodborne illness. The following recommendations identify the preventive controls that the Food and Drug Administration (FDA) believes should be taken immediately to reduce the risk of raw sprouts serving as a vehicle for foodborne illness and ensure sprouts are not adulterated under the food safety provisions of the Food, Drug, and Cosmetic Act (the act). Failure to adopt effective preventive controls can be considered insanitary conditions which may render food injurious to health. Food produced under such conditions is adulterated under the act (21 U.S.C. 342(a)(4)). FDA will consider enforcement actions against any party who does not have effective preventive controls in place, in particular, microbial testing.

These recommendations are based on the recommendations of the National Advisory Committee on Microbiological Criteria for Foods (NACMCF, 1999) and elaborate on Compliance Policy Guide 7120.28 (CPG 7120.28).

Seed Production: Seeds for sprout production should be grown under good agricultural practices (GAPs) in order to minimize the likelihood that they will contain pathogenic bacteria. For more information on GAPs, see FDA’s 1998 “Guidance for Industry: Guide to Minimize Microbial Food Safety Hazards for Fresh Fruits and Vegetables”. Copies of this guidance are available on the Internet (http://www.foodsafety.gov/~dms/prodguid.html) …

Seed Conditioning, Storage, and Transportation: Seeds that may be used for sprouting should be conditioned, stored, and transported in a manner that minimizes the likelihood that the seeds will be contaminated with pathogens. For example, seed should be stored in closed or covered containers in a clean dry area dedicated to seed storage. Containers should be positioned off the floor and away from walls to reduce the possibility of contamination by rodents or other pests and to facilitate regular monitoring for pest problems.

Sprout Production: Sprouters should implement appropriate practices to ensure that sprouts are not produced in violation of the act which prohibits the production of food under insanitary conditions which may render food injurious to health (21 U.S.C. 342(a)(4)). In addition to seed treatment and testing for pathogens (see below), sprouters should maintain facilities and equipment in a condition that will protect against contamination. Facilities with poor sanitation can significantly increase the risk of contaminating product. Sprouters should employ good sanitation practices as a standard operating procedure to maintain control throughout all stages of sprout production. Inadequate water quality and poor health and hygienic practices can all increase the risk of food becoming contaminated with pathogens. Sprouters may wish to review 21 CFR Part 110 which sets forth good manufacturing practices (GMPs) in manufacturing, packaging, or holding human food that cover these aspects of food production.

Seed Treatment: Seeds for sprouting should be treated with one or more treatments (such as 20,000 ppm calcium hypochlorite that have been approved for reduction of pathogens in seeds or sprouts. Some treatments can be applied at the sprouting facility while others will have to be applied earlier in the seed production process. However, at least one approved antimicrobial treatment should be applied immediately before sprouting. Sprouters should carefully follow all label directions when mixing and using antimicrobial chemicals.

Testing for Pathogens: Because currently approved antimicrobials have not been shown to be capable of eliminating all pathogens from seed, sprout producers should conduct microbiological testing of spent irrigation water from each production lot to ensure that contaminated product is not distributed. Because testing for pathogens can be done with irrigation water as early as 48 hours into what is generally a 3 to 10 day growing period, producers who plan accordingly can obtain test results before shipping product without losing product shelf-life. Testing, whether done by the producer or contracted out, should be done by trained personnel, in a qualified laboratory, using validated methods. 

Traceback: Traceback cannot prevent a foodborne illness outbreak from occurring. However, being able to trace a food back to it’s source quickly can limit the public health and economic impacts of an outbreak, if it occurs. Information gained in traceback investigations may also help prevent future outbreaks. Sprout producers, seed producers, conditioners and distributors should develop and implement systems to facilitate traceback and recalls in the event of a problem. All parties should test their systems in advance of a real problem.

Even though there are at least 37 confirmed illnesses in the  E. coli outbreak involving Gouda-style cheese, many people probably escaped severe illness under some relatively difficult epidemiological circumstances.

 It is important to recognize an ongoing, collaborative job very well done by local, state and federal health organizations involved in the investigation.

Sick people in the outbreak purchased or ate Bravo Farms gouda cheese at many different Costco locations in a number of major metropolitan areas throughout a 5-state region, including Southern California, Arizona, New Mexico, Colorado, and Nevada.  Important to also note that the cheese was not only sold to consumers, but also tasted by them at sampling stations.

If people find it difficult to recall major items of food they may have eaten, what’s it like with items that are merely sampled as a shopper walks by?

Nevertheless, health agencies from affected states, together with the Centers for Disease Control and Prevention and PulseNet, recognized a pattern of matching E. coli illnesses and didn’t hesitate to call the outbreak when they saw it.

Their work has resulted in detection of the outbreak strain in multiple packages of opened Bravo Farms gouda cheese.  The CDC has credited the New Mexico Department of Health for isolateing the outbreak strain of E. coli in an unopened (intact) package of cheese.

It certainly doesn’t hurt that Denver/Boulder and New Mexico are FoodNet sites, which is a collaborative epidemiological project with the CDC and several states and metro areas.  Also, although Arizona and Maricopa County are not FoodNet members, they are particularly aggressive in investigating reported cases of foodborne pathogens.

But still, questions remain: What was the precise cause of the outbreak? Was the raw milk used to make the gouda cheese from a reputable producer? Or was it CAFO-style (concentrated animal feeding operation) milk from somebody who had no business supplying the product for human consumption.

 Was the mandatory 60 day aging period for raw milk-based cheeses adhered to?  Does it even matter if the answer is yes?  Or is the 60 day period really an insufficient prophylactic against contamination, given the nature of the raw material used to produce the cheese?  And what was the production environment like?

FDA is at the Bravo Farms facility testing environmental and product samples; we’ll publish the results when they are released.

This piece originally was posted on www.foodpoisonjournal.com

Sangar’s brass is taking a pretty brash stance on its implication in the outbreak, saying that the state of Texas got it wrong when it generated positive Listeria test results from samples of Sangar celery, prompting the closure of Sangar’s plant and the recall of Sangar products produced since January.

Companies should defend themselves, especially when they have a legitimate belief that they have been wrongly implicated in a mess that really wasn’t of their making.

But the state of Texas Health Department looks like it really does have the goods on Sangar celery.  Likely the PFGE pattern associated with the positive celery tests matches the isolates drawn from the four people thought to have died in the outbreak; and likely the state has figured out how those people were exposed to Sangar products as well.

This was probably an easier task here than it sometimes is in Listeria outbreak situations because, as has been widely reported, the folks who died had underlying illnesses and were likely hospitalized, and Sangar is known to service hospitals.

In any event, it’s always a good idea to pass judgment only after you know all the facts, but the Sangar Listeria outbreak investigation has the appearance of being highly credible.  Maybe I’m just a bit jaded, however, when it comes to these things.  See Hartmann Dairy’s Typically Raw-Milkian PR Blunder.

My advice would be to follow Bill Marler’s advice (7 steps for CEO’s to take in dealing with outbreaks): Fourth, assuming that the outbreak is in fact your fault, publicly admit it.  If it is not your fault, then fight it.  However, pretending that you are innocent when you are actually at fault will get you nowhere.  Asking for forgiveness is not a bad thing when you have something to be forgiven for.  Saying you are sorry is not wrong when you are in fact wrong.

Last week, Senator Coburn introduced his own version of new food safety legislation, called the “Ensuring Greater Food Safety Act of 2010.”  The bill is one page long, and it’s purpose is basically to demand that the FDA and USDA get along, communicate, and improve food safety. 

This is a brilliant plan.  Why has nobody thought of it before?  While we’re at it, why don’t we just tell Congress to fix the deficit, Kim Jong Il to not become a nuclear power, and BP to be a better environmental citizen?  Call it the blind faith based approach.  

Here is Coburn’s plan, from his website:

Require FDA and USDA to immediately establish a comprehensive plan to share information and clarify existing efforts related to products and facilities in which the agencies have overlapping, joint, or similar authority;

Require FDA and USDA to issue a joint report to Congress summarizing the effectiveness of the new arrangement;

Task the Government Accountability Office with auditing the arrangement.

Done.  No more.  No additional resources; apparently no increased cost; and subservient to the vocal locavore movement who sees S. 510 as the biggest infringmenet on personal liberties . . .

To be more specific, the FSIS-USDA website contains reference to only two summer beef product recalls.  The first was a June 22 recall by Crown I Enterprises from NY of about 3,700 pounds of ground beef.  The second was a June 23 recall by South Gate Meat Co from CA of 35,000 pounds of ground beef.

Compared to recent years, only two summer recalls totalling just under 40,000 pounds of product–particularly when the recalls were not known to be associated with any illnesses–is progress indeed.  In 2007, beef companies recalled over twenty-nine million pounds of meat, including Cargill’s recall of nearly one million pounds of hamburger patties, one of which sickened Stephanie Smith. 2008 saw at least sixteen recalls of beef products, totaling at least 2,361,295 pounds of meat. And in 2009, beef companies recalled almost 2 million pounds of meat due to various contamination and processing problems.

(Notably, the year began very poorly for meat.  Winco, Beltex Meat Co, Montclair Meat Co., Huntington Meat Co, and several other businesses recalled over 5,000,000 pounds of meat products between January and May.)

Is the apparent success really progress?  Or is it simply too good to be true?  We’ve got another month and a half of summer left in Seattle; a little longer most other places.  If the apparent success really is success, maybe Marler Clark will represent no HUS victims sickened in the summer by ground beef products for the first time in a long time.

Editor’s Note:  “Ground beef and E. coli this summer” by Drew Falkenstein originally appeared at Food Poison Journal on July 22, 2010. 

What was ultimately a bad stretch for produce kicked off in April of this year with the E. coli O145 outbreak linked to romaine lettuce grown by Andrew Smith Company and processed by Freshway Foods, an Ohio distributor.  The CDC’s official case-count for the Freshway/ASC outbreak included 26 confirmed and 7 probable illnesses, though the estimate was certainly quite low given the failure of many victims to report their illnesses to public health agencies.  

The 33 official victims of the outbreak lived in Michigan, Ohio, Pennsylvania, New York, and Tennessee.  During the outbreak investigation, health officials isolated E. coli O145 and another strain of Shiga toxin-producing E. coli, or STEC, from bags of Freshway romaine lettuce, sparking a large recall that ultimately spread to 23 states and the District of Columbia.

Industry leader Fresh Express, a Chiquita brand, came next . . . though nobody really knew it outside of public health and industry.  There is not much known about the Salmonella outbreak in early May linked to Fresh Express lettuce products, other than it happened, and multiple people got sick in the upper Midwest.  Fresh Express did not recall any product in this outbreak.

Next up to bat in the Spring of 2010 was alfalfa sprouts.  With their rather checkered history–37 outbreaks and 2,273 illnesses since 1990–every new sprout outbreak comes as no real surprise.  Nevertheless, on May 21, Caldwell Fresh Foods of Maywood, California announced a voluntary recall of alfalfa sprout products due to fears that the products were contaminated with Salmonella Newport.  Undoubtedly, the recall was based on epidemiological evidence that many people–23 by May 21–had fallen ill due to infection with Salmonella Newport after consuming Caldwell’s contaminated sprouts. Ultimately, the CDC’s case-count included 35 individuals infected with a matching strain of Salmonella Newport from 11 states, with illnesses stretching from March 1 to May 2010.

Fresh Express’s troubles in May 2010 continued with a romaine-based, ready-to-eat-salad recall on May 24.  Notably, this recall was unrelated to the “upper Midwest outbreak” that happened earlier in the month, and was also linked to Fresh Express.  In any event, the company’s May 24 recall was also due to fears of Salmonella contamination–actually, a sample of Fresh Express product tested positive for Salmonella–and included romaine salads with use-by dates May 13-16 and sold in Michigan, Minnesota, Wisconsin, Louisiana, Nebraska, Montana, Missouri, Iowa, Kansas, Oklahoma, Arkansas, Nevada, Arizona, California, Colorado, New Mexico, Texas, Oregon, Washington, Alaska, Hawaii, Idaho, Utah, Wyoming, North Dakota, and South Dakota.

The next produce recall this spring was by organicgirl, which recalled a limited number of cases of 10 oz organicgirl baby spinach with a use-by date of May 22 and product code 11A061167.  Organicgirl’s recall was also due to contamination by Salmonella bacteria; it extended to spinach products sold in six states: Alabama, North Carolina, Oregon, Wisconsin, Arizona and California.  Like the Fresh Express recall, the organicgirl spinach recall occurred because a private laboratory generated a positive test for Salmonella in the implicated product.  

And most recently, Subway restaurants in Illinois are linked to 71 confirmed cases of Salmonella hvittingfoss–and the number is surely growing, as is the number of restaurants implicated.  Illinois Subway restaurants have pulled and replaced much of their produce, including certain varieties of peppers, onions, and lettuce.  There has been no official word yet as to the cause of the large outbreak, but it certainly has the feel of an outbreak linked to produce.    

Spring 2010 was certainly a forgettable time for the produce industry generally . . . or was it?  Certainly, and most notably with regard to the Freshway E. coli O145 outbreak, many people were sickened, but the good to come of the Freshway outbreak was that it highlighted a glaring deficiency in our disease surveillance–i.e. the failure of both industry and health care providers to test for all shapes and sizes of Escherichia coli.  And with regard to the multiple Salmonella-contamination recalls, maybe we should give the industry a break and highlight only the illnesses prevented, not the contamination responsible.  

The detection of communicable diseases like E. coli, Salmonella, and Campylobacter are within the purview of the Minnesota Departments of Health and Agriculture, which includes the nation’s most dynamic and competent illness detection unit:  “Team Diarrhea.”  This critical group of illness sleuths, in conjunction with the state’s public health lab, are not only involved in, but are instrumental to, the detection of many outbreaks of not only state, but also national scope.  Thus, in the wake of endless food poisoning outbreaks and recalls, the price of Governor Pawlenty’s anticipated shutdown of any aspect of Minnesota’s public health machine may be millions of dollars in medical costs, many illnesses, and maybe even worse. 

On March 6, 2009, Elizabeth Weise and Julie Schmit profiled Team Diarrhea in a USA Today article titled, “When Food Illnesses Spread, Minnesota Team Gets the Call.”  The article details Team Diarrhea’s role in cracking the national Salmonella Typhimurium outbreak linked to peanut products sold by Peanut Corporation of America.  The outbreak ultimately caused nearly one thousand confirmed illnesses, nine deaths, and probably tens of thousands of other related illnesses.  USA Today reported:

“Minnesota’s prowess in investigating food-borne illness outbreaks–in contrast to less successful efforts by other states–exposes weaknesses in the nation’s ability to quickly track and contain outbreaks, food safety specialists say.

“That’s because the national system for identifying food-borne illnesses relies on the efforts of hundreds of local, regional and state health departments, all with differing capabilities, budgets, priorities and procedures. If an outbreak starts in a region ill-prepared to investigate cases, it may not be stopped as quickly as if it had started elsewhere, food safety officials say.”

Just how many people were spared the agony and cost of severe illness as a result of Team Diarrhea’s actions will never be known for sure, but the answer may well be measured in the thousands, in terms of illnesses prevented, and millions, in terms of medical costs saved.  The article went on to state:

“Minnesota’s fast work has protected the public from contaminated food before. Last year, its team was among the first to blame hot peppers–not tomatoes, the initial suspect–for the largest [S]almonella outbreak in a decade. In 2007, the team found pot pies to be the source of another [S]almonella outbreak. In both cases, Minnesota took less than a month to find what turned out to be a confirmed culprit when people had been falling ill in other states for months.

“When it comes to food-borne illness investigation, ‘Minnesota is leap years ahead of … most of the rest of the nation,’ says James Phillips, head of infectious diseases for the Arkansas Department of Health.”

Notably, part of Minnesota’s success in stopping outbreaks cold is the regulatory and legal framework that the State of Minnesota has wisely put in place.  By law, hospital laboratories in Minnesota are required to send stool samples that test positive for many communicable diseases on to the State Public Health Lab, which continues the detective work by identifying the strain and DNA fingerprint of the particular type of bacteria involved.  This is critical in the detection of outbreaks because, for the most part, only illnesses from genetically related strains of bacteria indicate an ongoing outbreak.  

In contrast, the same cannot be said for approximately 40 percent of other states.  In the above-referenced article, USA Today reported, for example, that Texas, which had more than one-third of all illnesses in the pepper Salmonella outbreak, does not require hospital and clinic labs to send positive samples on to the state lab for further DNA and strain identification.  “Instead, Texas only requests that labs send samples to the state lab, and they’re not always sent.”  

The list of Minnesota’s successes in major public health events and outbreaks is long and distinguished, and the cost of shutting the machine down may be, with no exaggeration, illness and death–and devastating losses to food businesses who are undoubtedly well-served by Minnesota’s competent work.  Just ask the tomato industry, which lost more than $100 million due to its erroneous association with the 2008 Salmonella saintpaul outbreak.  Who knows how many more tomato farmers would have unnecessarily lost their livelihoods without Minnesota’s help.  

And one more statistic to support the argument that a shutdown of Minnesota’s public health machine poses extreme risks to the entire country’s health and well-being.  Texas is one of the largest states in the country, with 22 million people.  In 2006, Texas reported a grand total of 4 food poisoning outbreaks to the CDC.  Wyoming, whose population totals half a million, also reported 4.  Minnesota, with less than one-fourth the population of Texas, reported 79.  

Nobody can fault Governor Pawlenty for trying to save money, particularly in this economic climate.  But, speaking for the entire nation and all its residents who are undoubtedly served by the Minnesota health machine remaining in place and fully operational, we ask that you consider the grave threat to public health that closing the machine down would cause.     

Stephanie Smith, who, at the time of her illness, was a 19-year-old dance instructor from Cold Springs, Minnesota, suffered an E. coli O157:H7-hemolytic uremic syndrome illness so severe that it left her paralyzed (See Dancer Paralyzed by E. coli Sues Cargill, Dec. 5, 2009).  And Linda Rivera, who was sickened from contaminated Nestle cookie dough, was just flown from a Las Vegas Hospital to a long-term rehabilitation center after almost a year-long hospitalization from her own E. coli O157:H7 infection.

But there is one particular food product that has become as much a political issue as it is an issue of food safety.  It has been the source of fierce legislative battles throughout the country; an endlessly interesting topic for bloggers and traditional media alike; and the ultimate source of a number of major personal injury cases.  It is raw milk–an unpasteurized, back-to-our-roots fluid milk product that, despite its seemingly benign persona, has raised questions about unwarranted and unconstitutional government intrusion into private affairs, and how best to spite the government’s regulatory efforts.[1]

The raging debate over raw milk is largely the product of a grassroots campaign aimed at food decentralization, which has gained a much larger voice in the wake of a long list of food poisoning outbreaks linked to mass-produced food products, including Dole baby spinach, Nestle’s cookie dough, and countless ground beef, meat, and other widely distributed products.

But the debate over raw milk is different than the debate over safe food generally because the vocal minority that consumes the product, or at least wants to, elects to either ignore the real risks associated with the product, or chooses to consume raw milk knowing full well the risks that it poses.  The latter group, in fact, is gaining many more members nationally in the wake of a string of outbreaks linked to raw milk.  Thus, at least the debate has crystallized, and now largely involves a vocal group of well-educated consumers who understand the risk, but choose to take it nonetheless.

Whatever the case, the federal government’s stand on raw milk is unequivocal.  The Food and Drug Administration bans the interstate trade of raw milk entirely; and most states heavily regulate the production and intrastate sale of raw milk, if they permit it at all.  But many raw milk proponents feel individually, and very personally, wronged by what they see as governmental meddling in private affairs–some going so far as to call the ability to purchase and consume raw milk a fundamental constitutional right:

According to the founding documents of the United States, personal liberties are self-evident and inalienable rights, not privileges endowed by state health departments, federal bureaucracies, or personal injury lawyers. There is no scientific evidence to justify the singling out of raw milk from among other foods for prohibition or damaging regulation, and there is no legitimate constitutional or philosophical basis on which Americans or anyone else should be deprived of the basic human right to determine what to eat and drink.

See http://realmilk.com/documents/ResponsetoMarlerListofStudies.pdf.

Regardless of whether one believes he should be allowed to eat whatever he wants, there exists no tool to prevent the several states and the federal government from regulating the production and distribution of raw milk.  States have the authority in the exercise of their general police powers to enact measures to protect the health, safety, and welfare of their citizens.  Brecht v. Abrahamson, 507 U.S. 619, 635, 123 L. Ed. 2d 353, 113 S. Ct. 1710 (1993); see also Sligh v. Kirkwood, 237 U.S. 52, 59-60, 35 S.Ct. 501 (1915) (“The power of the State to . . . prevent the production within its borders of impure foods, unfit for use, and such articles as would spread disease and pestilence, is well established”).  This power is bounded only by principles of federalism, generally, and by the protections afforded all persons within a state’s borders by the equal protection and due process clauses of the 14th Amendment.

The federal government, in contrast, is one of enumerated powers, meaning that it can act only where it has the constitutional authority to do so.  As James Madison wrote,

[t]he powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State governments are numerous and indefinite.

The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961).

Among the powers specifically delegated to the federal government is the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”  U.S. CONST. art. I, § 8, cl. 3.  The “commerce clause” has, of course, become a particularly potent regulatory enabler that, as a result, has spawned a notoriously complex body of case law.  See generally United States v. Lopez, 514 U.S. 549 (1994) (Kennedy, J., concurring).  For present purposes, however, it suffices to say that the commerce clause has provided the constitutional authority[2] for a great many landmark legislative and regulatory measures.

The commerce clause unquestionably gives Congress the authority to prohibit the interstate distribution of raw milk, by sale or otherwise, even without resort to the Supreme Court’s historically disjointed commerce clause analysis.  The reason is that the interstate distribution of raw milk is, in and of itself, “commerce . . . among the several States.”  As a result, it can be regulated “to its utmost extent.”  Gibbons v. Ogden, 9 Wheat. 1, 196 (1824).  Congress has done exactly this in enacting 21 CFR 1240.61(a), which prohibits the delivery “in interstate commerce [of] any milk or milk product in final package form for direct human consumption unless the product has been pasteurized.”

But the more intriguing question is how far Congress’s regulatory power actually extends with respect to the manufacture and distribution of raw milk.  Is it broad enough to outlaw the sale of raw milk entirely?  Stated another way, does the fact that raw milk is produced, and frequently even sold only locally (i.e. not interstate commerce per se) insulate it from Congress’s potentially, if not theoretically, apocalyptic reach?

Out of the difficult analytical framework has emerged a line of precedents approving Congress’s regulatory efforts, even with respect to intrastate commerce, that has a “substantial economic effect on interstate commerce.”  See Wickard v. Filburn, 317 U.S. 111, 125 (1942) (emphasis added).   “[E]ven if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.”  Id.

Thus, under the Court’s current commerce clause analysis at least, the
question is ultimately whether local production and distribution of raw milk “substantially affects” interstate commerce.  Notably, there have been many seemingly local endeavors that did not harmoniously persist as “merely local” upon Supreme Court scrutiny.  See e.g., Wickard, 317 U.S. 111 (1942) (the production and consumption of home-grown wheat); Katzenbach v. McClung, 379 U.S. 294 (1964) (restaurants utilizing substantial interstate supplies); and Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) (inns and hotels catering to interstate guests).

Without predicting the precise boundaries of Congress’s power to regulate the production and distribution of raw milk, it suffices to say that it has not come close to exhausting its potential reach by merely enacting 21 CFR 1240.61(a).  Again, the shipment of raw milk across state lines is interstate commerce in and of itself, and the power of Congress over that particular species of raw milk distribution is bounded only by an as-yet undefined, and at best highly nebulous, personal freedom to consume raw milk.  The better question is how far Congress’s reach actually extends into the modes and channels of production and distribution; and the answer is that the power is potentially very broad.

Nevertheless, proponents of raw milk are nothing if not resilient and devoted to their cause.  In the face of wide-ranging regulation of their prized product, they continue to seek out creative ways to undermine the opposition, persisting in their mantra that the intrusive efforts of the state and federal governments are acts of unwarranted, legally unjustified bullying.

In this vein, and serving as an implicit acquiescence to the constitutional authority of the states and federal governments to regulate their product, raw milk proponents continue to try to navigate the unfriendly legal waters in which they find themselves.  The result of some of their steadfast work are cow-share (or herd-share) agreements, which seek to insulate purveyors of raw milk from state and federal regulation by allowing consumers to purchase shares in a specific cow or herd instead of paying money directly for milk.  The logic, of course, is that state and federal regulation cannot reach this conduct because it does not involve the specific sale of raw milk.

I have addressed these agreements before, concluding:

Truly, to call a cow share agreement a species of legal maneuvering may be giving too much credit to an effort that is designed either to flout the law entirely, or at the very least avoid the often stringent requirements associated with licensure.  In reality, cow shares are poorly disguised attempts to accomplish something that is, in most states, patently criminal.  As a result, when judging whether such conduct constitutes the sale or distribution of raw milk, courts are likely to approach these cases with a healthy dose of realism in determining what the parties’ true intent was, whether the forum be civil or criminal court.

See Cow Share Agreements: Fooling Nobody, Food Safety News, Nov. 9, 2009

Many states have confronted cow and herd-share agreements head-on, and most have closed the legislative loophole by specifically outlawing the practice.  But not even that has deterred proponents of raw milk; it has, in fact, forced some into ever-more-dangerous, and highly illegal, distributive schemes, including placing a “pet food only” label on raw milk that they know, or have reason to know, will or may be consumed by human beings.  Alaska, Colorado, and North Carolina require raw milk to be dyed before being marketed as pet food in order to address this problem specifically.

But, clearly, this type of despicable mislabeling would be illegal in more than just those three states, regardless of the dye requirement.  In most states, it would violate consumer protection laws; and additionally would make the job of trial lawyers representing kids who have been sickened by the product a lot easier, as the “pet food only” label is more than an implicit admission that the product is not fit for human consumption and is, as a result, unreasonably dangerous and defective.  Punitive damages, in states where they are available, would be sought with gusto.

These and other issues in the raw milk debate are not likely to go away soon; as a result, neither will the outbreaks nor the major personal injuries that can and do occur by consuming this unpasteurized product.  In the midst of all this, small-scale farmers and dairies, and other purveyors of raw milk, are well-advised to live with the regulations in place in their home states.  From a legal standpoint, there is simply no constitutional argument to be made that state and federal regulations are invalid as a class, and attempts such as the cow-share agreements and “pet food only” labeling that we have witnessed thus far only perpetuate the reality that the exchange is one that the law simply does not permit.

References:

1.  At a recent pro-raw milk symposium in Madison, Wisconsin, the keynote presentation, given by dairyman Mark McAfee, was titled “Raw milk as medicine Proudly violating FDA drug laws.”

2.  Cf. Gonzalez v. Raich et al, 545 U.S. 1, 34 (2005) (Scalia, J., concurring) (“[A]ctivities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone.  Rather as this Court has acknowledged since at least United States v. Coombs, 37 U.S. 71, 12 Pet. 72, 9 L. Ed. 1004 (1838), Congress’s regulatory authority over intrastate activities that are not themselves part of interstate commerce [] derives from the Necessary and Proper Clause [set forth at U.S. CONST. art. I, § 8, cl. 18]).

On March 5 2010, the DuPage County Health Department announced that it was:

investigating the cause of a cluster of gastrointestinal illnesses primarily among customers of a Subway restaurant located at 1009 E. Roosevelt Road in Lombard. Restaurant ownership and corporate representatives have been cooperating with health officials, and the Lombard restaurant has been closed pending further results of the investigation.  It has been determined that some of the illnesses were caused by shigellosis, an infectious disease caused by a group of bacteria called Shigella. The investigation is ongoing and the health department is working closely with the Illinois Department of Public Health toward control and prevention of disease transmission.  As of the afternoon of March 4, the health department has received multiple reports of illness possibly associated with food consumption from this Subway location. To date, eight cases of shigellosis have been laboratory-confirmed.  Four cases have been hospitalized, with at least one case discharged and recovering at home.

The outbreak has since grown to include at least 113 confirmed illnesses.  Likely, this number only scratches the surface when it comes to counting all outbreak victims.  The number is more likely upwards of 200 to 300, if not more.

The Lombard Subway outbreak is reminiscent of another major Chicago-area outbreak.  In June and July 2003, The Lake County Health Department concluded its investigation into a Salmonella outbreak at a Chili’s restaurant located in Vernon Hills, Illinois.  By the end of the investigation, Lake County had received over 300 reports of illness from patrons of the restaurant; of those, 141 people tested positive for Salmonella javiana, which was the outbreak serotype.  In its preliminary report on the cause of the outbreak, Lake County found that restaurant employees had used poor sanitation and food handling practices, including operating without hot water for an entire day, and operating without any running water whatsoever for the lunch rush on another day.  More importantly–at least to the point of this article–Lake County stated that 28 Chili’s employees had tested positive for Salmonella.

Time will tell exactly how egregious the errors were at the Lombard Subway.  Certainly, the outbreak included the “perfect storm” of dangerous circumstances:  sick foodhandlers having contact with lots of sandwich ingredients that would not be cooked, or subjected to any other measure intended to kill harmful bacteria.  The unfortunate result in both the Lombard Subway outbreak and the Vernon Hills Chili’s outbreak was likely millions of dollars in medical costs, lost wages, and other incidental expenses to outbreak victims dealing with severe illness.

In outbreak litigation, we rarely encounter the argument that the defendant didn’t know better.  We certainly didn’t hear or entertain that argument in litigation over the Chili’s outbreak, and we likely won’t see it in the Subway outbreak either.  The reason, of course, is that the State of Illinois, and likely every other state in the country, speaks very clearly on the issue of employees who work while ill.  ILCS Section 750.500(a) states unequivocally:

“No person, while affected with a disease in a communicable form that can be transmitted by foods or who is a carrier of organisms that cause such a disease or while afflicted with a boil, or infected wound, or an acute respiratory infection, shall work in a food service establishment in any capacity in which there is a likelihood of such person contaminating food or food-contact surfaces with pathogenic organisms or transmitting disease to other persons.”

One thing that restaurants can do to guard against foodhandler-caused outbreaks is to have a sick leave policy.  The policy must not only forbid working while ill with any symptoms of gastrointestinal illness or influenza, but also provide for compensation to employees who elect to do the right thing and stay away from work while ill.

Unfortunately, these outbreaks are evidence that restaurants are not getting the message about sick employees–even large operations like Chili’s and Subway who undoubtedly have heavy-handed franchise agreements about what individual locations can and cannot do.  In the wake of the H1N1 scare, an interview occurred on Chicago Public Radio that is right on point . . . and also a little concerning.  The following is a selection of a few short, highly relevant comments from the interview:

HILL: ‘I’m here in the middle of busy food court. It’s lunch time. People all around me are eating their fried chicken, burritos, hamburgers, pretty much anything you can name. I don’t know the specific situations of the people who work here, who make all this food, but I know a ton of people in the food industry don’t get paid sick days.’

LAKIN: ‘I’ve had lots of different jobs, as a line cook, as a sous chef, as an executive chef.’  That’s Eddie Lakin. He counts 15 years in the food service business.

LAKIN: ‘I’ve never had paid sick time, even as a corporate employee, even as a salaried person with paid vacation days; I’ve never had a job with a sick day or a personal day.’

The Institute for Women’s Policy Research–an advocacy group–looked at job benefits nationally. It found as many as 85-percent of food service workers don’t have paid sick days–the worst showing for any group. By comparison, ONLY about 16 percent of people in the legal profession don’t get paid when they call in.

Eddie Lakin says there’ve been plenty of times where he and his restaurant co-workers, have gone into work sick. Part of it, he says, is an unwritten rule in professional kitchens.

LAKIN: ‘You don’t call in sick unless you are too sick to stand up.’  Lakin says some workers, especially those who get paid by the hour, come in because they need the money. Others don’t want to give the boss a reason to think they aren’t committed to the job, which isn’t a bad instinct. Dr Tom Smith is with the National Opinion Research Center at the University of Chicago.

SMITH: ‘We found that one out of every six workers have actually been fired, demoted or otherwise punished for taking time off because they weren’t covered by paid sick days.’

According to Smith’s research, which looks at workers broadly not just the food industry, people without paid sick days are more likely to go to work when they feel like crap. Sixty-eight percent of people without paid sick days have gone in with a contagious illness like the flu. The recession and tenuous labor market add to the pressure.”

Food for thought for any restaurants that want to avoid losing everything in a major outbreak of foodborne disease.

Despite the patent risks, twenty-four states do not require that retail food service establishments use pasteurized eggs in items that typically contain raw eggs; and raw milk, again despite the patent risks associated with the product, is legal to sell in a number of states; legal to sell with restrictions in a few more (e.g. Washington, where the seller has to be a properly licensed dairy); and flat against the law to sell in other states.  

It is time for greater uniformity in our regulatory system.  There are more than three thousand state, local, and tribal agencies responsible for regulating the retail foodservice industry, which includes over a million foodservice establishments in the United States.[1] It is time for a federal mandate making the FDA’s Model Food Code (the Code) compulsory as a baseline regulatory scheme on all states, territories, and tribal jurisdictions.  The FDA apparently agrees:  “Adoption of the Food Code represents a successful federal/state/local partnership in improving food safety.”[2]

FDA and [the Association of Food and Drug Officials’] goal is the prevention and reduction of foodborne illness and death from food produced at the retail level. Adoption of the Food Code by all food safety agencies at the federal, state, local and tribal levels establishes a sound regulatory foundation and legal framework for uniformity in achieving such a reduction. [Id.]

In fact, most states have already spoken, in a way, about such a move.  In its introductory comments about the Code, the FDA states that “48 of 56 States and territories have adopted food codes patterned after one of the five versions of the Food Code, beginning with the 1993 edition. Those 48 states and territories represent 79% of the U.S. population.”  It is thus readily apparent that many of the States and territories think the FDA got it right–or at least got it right in the code version that they have chosen to adopt.  And that should be the states’ position.  As the FDA states on its website, the Code is:  

[A] model that assists food control jurisdictions at all levels of government by providing them with a scientifically sound technical and legal basis for regulating the retail and food service segment of the industry (restaurants and grocery stores and institutions such as nursing homes). Local, state, tribal, and federal regulators use the FDA Food Code as a model to develop or update their own food safety rules and to be consistent with national food regulatory policy.[3]

The utility of mandating implementation of the Code is simply that it would require adoption of a solidly science-based approach to food safety.  The Code is an amalgam of sorts, created by the FDA with input from the Centers for Disease Control and Prevention and FSIS, which is the branch of the USDA responsible for ensuring the safety of meat, poultry, and egg products.  The Code represents the FDA’s best practices to ensure that food at retail is safe and properly prepared.

There are many advantages to adopting uniform standards for food safety.  First, when regulatory officials agree on one set of acceptable procedures and practices, industry is more likely to comply.  Not only is there less confusion as to what safeguards should be used, but there is greater confidence in those procedures because they are endorsed by federal government and are scientifically sound.  Along the same lines, nationwide adoption of the same baseline standards will streamline the often complex process of employee training, particularly for national restaurant chains that currently must account for many different regulatory schemes.  

Second, mandating the standard alleviates the burden from local and state governmental bodies of having to develop and update their own codes.  Instead, these entities would be able to focus their resources on implementing and enforcing the Code.  

Third, the Code is more likely to be consistent with the federal performance standards that are already established.  This reduces the likelihood of inconsistencies and ensures that each standard has a sound technical and legal basis.

Also, in its current iteration, the Code treats a wide variety of critical food safety issues that, as the short list in the first paragraph of this article shows, states have failed to come to terms with in an even-handed fashion.  For example, the Code lays out time and temperature controls for leafy greens, as well as handling instructions at all points throughout the distribution chain.  As one of the riskiest foods that the FDA regulates–leafy greens have caused, by some estimates, as many as 363 outbreaks[4]–uniform standards might have helped prevent quite a few illnesses.  Additionally, the Code requires that mechanically tenderized meats be cooked to the same internal temperature as ground beef.  If these procedures were standard procedure, the 124 tons of beef products that was recalled in December 2009 by national steak and poultry may have been avoided–not to mention the illnesses of 21 people nationwide.  The Code also establishes safety practices for a number of other potentially risky foods, including milk products, eggs, fish, shellfish, and sprouts.  

The benefit of adopting uniform standards for food safety cannot be overstated.      Consumers should be able to rely on the safety and quality of the food they eat, and they should not have to rely on the civil justice system for the de facto regulatory changes that ought to come from the government.  Nationwide adoption, by federal mandate, of the FDA’s Model Food Code is a step in the right direction.  

Matt Cheung contributed to the research and writing of this article.

References:

1.  See http://www.fda.gov/Food/FoodSafety/RetailFoodProtection/FoodCode/default.htm
2.  See http://www.fda.gov/Food/FoodSafety/RetailFoodProtection/FederalStateCooperativePrograms/ucm108156.htm
3.  See http://www.fda.gov/Food/FoodSafety/RetailFoodProtection/FoodCode/default.htm
4.  See http://www.cspinet.org/new/200910061.html

Diseases that spread from animals to humans, regardless of the route of transmission, are called zoonotic diseases.  Many outbreaks of foodborne disease are zoonotic in nature, at least at root.  Human errors in processing, handling, and manufacturing aside, contamination of lettuce, milk, or beef ultimately destined for human consumption begins with transfer of the pathogen from animal to food.

Millions of people across the country hunt.  Often, the harvested game is the culinary, sometimes ritualistic, centerpiece of family or communal gatherings.  Aunts and uncles, neighbors, and even small children and the elderly who have grown up eating wild game partake in myriad preparations, including burgers, steaks, stews, and smoked meats.  

People who eat the game that they take–as we all should, if for no other reason than to exhibit appropriate respect for the privilege we enjoy–must take precaution to harvest and prepare the game in a safe manner.  This involves more than not taking game with an obvious illness, such as deer with chronic wasting disease (a neurological condition that causes visible deterioration of the animal and behavioral abnormalities), because the truth of the matter is that wild game is not necessarily safer (i.e. not harboring a pathogenic bacteria or virus) simply because it has not been contained in a feedlot.  

There are a wide variety of zoonotic diseases that people can acquire from wild game.  Pathogens can be contained in blood, muscle, brain tissue, organs, urine, and feces.  Just to cite a few examples, wild hogs can harbor brucellosis, oysters can contain vibrio vulnificus, deer and elk can be asymptomatically infected by E. coli O157:H7; and, lest the bird-hunters among us think their quarry is safe because they are not “ruminant” animals,  Salmonella bacteria can be found in quail.  Even the plague, caused by a bacteria called Yersinia pestis, can still be found in rodents who have been infected by disease-carrying fleas.

Thus, anyone involved in hunting, or the preparation or consumption of wild game, should be aware that diseases can be acquired from these common game species, and virtually any other wild animal, from their meat, blood, or other tissues.  

Plan and act accordingly, from field dressing, to butchering, to preparation and consumption.  Non-hunters may not realize the lengths (often literally great geographical distances) that hunters must go to properly field-dress and transport their harvested animal to the point of consumption.  Often, 90% of the act of preparing an animal, particularly a large game species such as a bear, moose, or elk, occurs out in the woods, or in the mountains, or some other remote location.  The tool that the hunter uses is often just a knife.  Intestines and organs must be removed, the cape or hide appropriately taken from the meat, and the meat cut from the carcass and prepared for transport.  Quite clearly, there are many critical points at which the meat being prepared for consumption may become contaminated, especially when one considers the many potential routes of infection: eyes, nose, mouth, or even a simple cut suffered earlier in the day.  

The Centers for Disease control and Prevention has several recommendations for preparing wild game, whether in the field or elsewhere.  Use clean, sharp knives for field dressing and butchering; wear eye protection and rubber or latex gloves when handling carcasses; avoid direct contact between the hands or other exposed skin and the fluid or organs from the wild game; burn or bury inedible parts of the carcass after butchering; wash hands as soon as possible afterward; and clean all tools and reusable gloves with a disinfectant.  

This is only half the battle.  As with any food item destined for the human food supply, appropriate precautions must be taken from initial contact with the animal through to the point of consumption.  This means having appropriate respect for the importance of hand-washing, cross-contamination, cooking to appropriate temperatures, and post-preparation handling.  Days in the field, for most of us, are few and far between; with proper attention to just a few basic precautions, and a little knowledge about the risks that animals can pose post-harvest, hunters will always be able to reflect fondly on the entire experience.  

Admittedly, my question derives, in large part, from my experiences with raw milk.  None of them have been good.  I have never consumed the product, and nobody in my family or indirect sphere of influence ever will.  In 2005, I represented two families whose children developed hemolytic uremic syndrome in an outbreak linked by the Washington Departments of Health and Agriculture to raw milk produced by “Dee Creek Farms” in Woodland, Washington.[1] And since the Dee Creek Farms outbreak, I have certainly seen many whose lives have been devastated, even permanently altered, by raw milk–not least of whom Mari Tardiff, who developed Guillain Barre Syndrome after contracting Campylobacter from raw milk sold by Alexandre EcoDairy in Crescent City, California.     

My guess is that a desirous person could obtain raw milk in any state in the country.  But there are only a few states that actually allow the sale of raw milk from farm or dairy to consumer.[2] Of those states that prohibit the sale of raw milk outright, or allow it only by licensed dairies,[3] many have had to respond to a certain species of legal maneuvering called “cow share agreements.”  Some states explicitly prohibit cow share agreements, and others do not express an opinion on the subject in state statutes.

Unfortunately, it is precisely this relative silence on the subject of cow shares that creates the problem.  Though I don’t know who first dreamt them up, I certainly know why:  because (1) the state where that individual lived did not permit the sale or distribution of raw milk, or (2) the individual was not a dairy licensed to distribute or sell raw milk.  Thus, even at their inception, cow shares were strikingly transparent.  Their sole purpose from inception was to avoid the illegalities of their otherwise forbidden action.  

When I saw my first such agreement, these illusory milk-sales contracts struck a chord with me as a lawyer.  I immediately thought back to my first year criminal law class, when we reviewed a drug possession case where the defendant contended that he was innocent because he had “looked the other way” when several people had loaded his car with drugs to be delivered.  The defendant’s theory was that, because he did not watch the men loading drugs into his car, he had no actual knowledge of what he was possessing and transporting, and therefore could not be guilty of possessing and transporting drugs.  The parallel is admittedly not exact, but it is surely another situation where somebody is engaging in manipulative conduct that he well-knows will achieve exactly the result forbidden by the legislature.  In fact, both people, the defendant not watching his car being loaded with drugs and the people selling shares of cows rather than raw milk, actually intend and expect the forbidden result to occur.

As the chorus of “no” builds, a brief look at a cow-share agreement that was used in one of our raw milk cases will illustrate.  One would think that, if he purchases a “share” of a cow or herd of cows, he would have the expectation of certain property rights in his cow or herd of cows.  Not so.  Here are a few of the contractual terms:

Purchase and Sale of an Interest in a Herd of Cows.  Seller hereby sells to Buyer and Buyer hereby purchases from Seller ___ shares in the herd of cows described in Exhibit “A” . . .  It is agreed and understood by Buyer that Buyer’s interest in the Herd is a limited interest shared with others of co-ownership in the Herd and that the interest purchased by Buyer does not convey or vest in Buyer sole ownership of the Herd or of any particular cow in the Herd.  It is further agreed and understood that the specific cows in the Herd may change over time as cows die or as Seller adds to or deletes from the Herd in its sole and absolute discretion; however, Seller shall not be obligated to add to the Herd to replace a cow that dies, but may do so at Seller’s discretion.  Seller will notify Buyer of all such changes in the Herd.  Buyer’s interest does not include any rights to or interest in any offspring of any cow in the Herd; all rights to, interest in, and ownership of any and all offspring of cows in the Herd is reserved by Seller and shall vest and remain in Seller.

Indeed, aside from the right to “visit and interact with the Herd at such times and places as Seller shall from time to time designate,” the contract at issue gave the buyer virtually nothing at all that would be consistent with his enjoyment of true property rights or interests in the cow herd that he had purchased shares of.  There was, however, monthly maintenance fees and a “container fee,” which was “a one-time, non-refundable fee of $15.00 per share to cover costs associated with milk containers.”  

Why do these contractual provisions matter?  Because they suggest what really was being bargained for.  My guess is that both parties to the above contract fully expected that the buyer’s only use of his share of the herd would be the provision of raw milk.  Likely only a few, if any, would ever exercise their rights of herd visitation, and even then the right would be incidental to the true purpose of the bargain that the parties had struck.  Bottom line:  these contracts are purely and simply for the distribution of raw milk, which, again, is exactly the result that the legislatures of many states have forbidden.  

This was exactly the conclusion that the State of Washington reached in response to the Dee Creek Farm outbreak.  Ultimately, Dee Creek was fined $8,000 for distributing raw milk without a license and other violations related to the sanitary condition of its facilities.  

Truly, to call a cow share agreement a species of legal maneuvering may be giving too much credit to an effort that is designed either to flout the law entirely, or at the very least avoid the often stringent requirements associated with licensure.  In reality, cow shares are poorly disguised attempts to accomplish something that is, in most states, patently criminal.  As a result, when judging whether such conduct constitutes the sale or distribution of raw milk, courts are likely to approach these cases with a healthy dose of realism in determining what the parties’ true intent was, whether the forum be civil or criminal court.

References

[1]  In point of fact, however, it wasn’t so much the milk as it was the deplorable conditions found at the dairy that soured that experience entirely (See WSDOH Report).  Among other things, the Washington State Department of Agriculture found during its investigation:
 

• No animal health testing documentation for brucellosis and tuberculosis or health permits
• Beef cattle contact wi

  th wild elk

• No water
  or waste water system available at milk barn for milking operations or cleaning
• No hand washing sinks available for cleaning and sanitizing
• No bacteriological test results available for the farm’s well-water system
• Mud/manure with standing water at the entrance to the milk barn parlor
• Milking bucket in direct contact with unclean surfaces during milk production
• Multiple instances providing for the opportunity for cross-contamination
• No separate milk processing area from domestic kitchen
• No raw milk warning label provided on containers

[2]  Interestingly, two such states, California and Connecticut, have experienced recent outbreaks.  In July 2008, the Connecticut Department of Health identified an outbreak of E. coli O157:H7 linked to raw milk purchased at a Whole Foods store.  California, of course, has experienced multiple outbreaks in recent years, including those linked to the illnesses of Chris Martin and Mary Tardiff.

[3]  For instance, Washington allows the sale of raw milk by licensed sellers, and the licensed sellers must meet stringent legal standards set forth at RCW § 15.36 et seq. and by the Department of Agriculture.

Their symptoms included severe nausea and vomiting. Part of the mystery surrounding the outbreak of illnesses was that the victims’ symptoms came on so quickly after dining at the restaurant–sometimes just after eating the meal.

The reason, as investigating health authorities recently discovered, was that the outbreak was not caused by a common foodborne pathogen like E. coli O157:H7 or Salmonella, which typically take a lot longer to incubate before causing illness. It was caused by the ingestion of a dangerous pesticide called methomyl, which causes illness much more quickly in human beings than do its bacterial and viral counterparts

Methomyl is a highly toxic compound in EPA toxicity class I. It was introduced in 1966 as a broad spectrum insecticide to be applied to the surface of plant foliage. Methomyl effectively kills target insects by direct contact, or by what is known as “systemic poisoning” or absorption of the insecticide by the target insects.

Oral ingestion by human beings is the quickest, most efficient delivery route, and produces the most severe symptoms.

Typically, symptoms of methomyl poisoning include weakness, blurred vision, headache, nausea, abdominal cramps, chest discomfort, constriction of pupils, sweating, muscle tremors, and decreased pulse. Cases of severe poisoning may also cause apparent neurological dysfunction including twitching, giddiness, confusion, lack of muscle coordination, slurred speech, low blood pressure, heart irregularities, and loss of reflexes.

In the most severe cases, paralysis and death may occur. In addition to ingestion orally, people may become sick from methomyl poisoning by inhalation of aerosolized or dustborne particles, and even by skin contact with the pesticide.

For the Mi Ranchito outbreak, the remaining mystery is how, or for what reason, a pesticide would have contaminated the restaurant’s salsa, which was identified as the contaminated food vehicle.

Given the nature of the contaminant involved one conclusion would be that a particular ingredient in the salsa was treated with a heavy dose of methomyl, which was not adequately washed off prior to processing or service.

Another theory, according to Rulber Dela Torre, one of the restaurant’s founders, is that the methomyl contamination was a deliberate act.

Understandably upset about his restaurant’s association with the public health crisis, Dela Torre stated ” If this did happen, it was a deliberate act by somebody who wants to hurt my business.”

State officials cleared the restaurant to open last week after it passed a safety inspection and its employees passed a safety test.

In the food context, “recall” is a less than apt description for a process that, a lot of the time, is really geared toward just stopping the bleeding.  The USDA and FDA define a Class I recall[1] as “a situation in which there is a reasonable probability that the use of or exposure to a violative product will cause serious adverse health consequences or death.”  The definition implicitly contemplates the ability to physically secure the violative product, or at least ensure that it is not distributed as originally intended.  

But food is different from many products in that it often has an extremely finite shelf life and is thus not reachable by even well-intentioned recalling companies.  Frequently, particularly in the context of lettuce and other fresh vegetables, shelf lives are measured in days, and getting product back from distributors and retailers, much less the ultimate consumer, can be an exercise in futility.  

In its 2004 report to Congress on the success of food recalls generally,[2] the United States Government Accountability Office (GAO) discussed four recalls that it had tracked, finding that only a recall of canned soup occurred “well before” the end of the soup’s shelf-life.  Packaged turkey sandwiches were recalled “near the end” of the products’ shelf-lives, and recalls of ground beef and fresh-cut, bagged lettuce occurred “well after” the recommended shelf-life had expired.  A more recent example is the spinach STEC[3] outbreak in September 2006.  The FDA announced this large outbreak on September 14, 2006, by which point most of the affected product had been consumed, and most outbreak cases were already sick.     

Food manufacturers need not waste time looking to the FDA or USDA for help in most recall situations.  For one thing, the agencies lack virtually any legal teeth in the food context.  In stark contrast to the authority of certain regulatory bodies over other products, Congress has not vested the USDA or FDA with the authority to seize and detain food products, even when the agencies well know that the products at issue are contaminated.  And to complicate matters, it is less than certain whether the USDA and FDA are equipped to effectively assist at all.  They certainly cannot lengthen the shelf lives of perishable products to make effective recalls more realistic.  And, as the GAO notes in its 2004 report:

USDA and FDA do not know how promptly and completely companies are carrying out recalls.  Neither agency’s guidance provides time frames for companies on how quickly to initiate and carry out recalls.  Consequently, companies may have less impetus to notify downstream customers and remove potentially unsafe food from the marketplace.  
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USDA and FDA do not promptly verify that recalls have reached all segments of the distribution chain, yet monitoring the effectiveness of a company’s recall actions is the agencies’ primary role in a food recall.[4]  

Aside from a sometimes less than efficient effort from the government, and the problems posed by extremely perishable product, yet another obstacle exists for a food manufacturer trying to recall contaminated food:  the dissemination of information to consumers.  Currently, recall listings in the form of basic news releases are distributed to the media and posted on the FDA or USDA Website, as well as on the recalling company’s Website.  Realistically, however, if a person does not learn about a recall in the print or broadcast media, the only audience for online releases is interested people in the food industry or government–not a good cross-section of the food-consuming public.  My experience is that the food-consuming public generally will not become aware of a recall unless it’s been issued as a result of an outbreak and has therefore garnered media attention–in other words, we don’t become aware of a recall unless people get sick.  And if there are outbreak victims, it’s probably too late to do much more than stop the bleeding.  

I’m the first to point out that food manufacturers face a daunting uphill battle in trying to successfully recall a contaminated food product.  The simple fact that these products are typically highly perishable renders recall efforts, a lot of the time, public relations exercises where there is little expectation that much, if any, affected product will be secured.  As a result, food manufacturers cannot afford to think retrospectively about food safety.  Avoiding the brand injury and liability costs associated with sick people means avoiding contamination in the first place.  

1.  A Class II or Class III recall is not appropriate when recalling products due to probable, or even potential, microbial contamination.  The presence of pathogenic microbes on food presents an immediate, undeniably severe health risk to all who consume the contaminated food.  

2.  The GAO’s analysis was based data gathered from the FDA and USDA.

3.  “STEC” stands for Shiga-toxin producing Escherichia coli, which includes the most famous serogroup E. coli O157:H7, as well as many other strains.  The phrase “STEC” is used here because the spinach outbreak involved several different STEC strains, including E. coli O157:H7.

4.  The GAO found that, for 10 USDA monitored recalls in 2003, USDA staff took an average of 38 days to complete verification checks with companies that had received recalled product.