Food Safety Counsel : Food Safety Defense Lawyer & Attorney : National Food Industry Counsel : National Food Regulatory Lawyer and Attorney, FDA Lawyer and Attorney. USDA Lawyer and Attorney : Gass Weber Mullins Law Firm

Our food safety lawyers work with food companies nationwide, helping them comply with complex food safety regulations, decrease their food safety risk, prevent unwanted litigation, manage recalls exceptionally quickly and defend high profile foodborne illness claims -- when they do occur. 

Over the last decade, the firm has assisted food companies throughout the country on a wide-range of food safety matters involving regulatory compliance, crisis planning and management, and outbreak litigation.

During this period, the firm has defended food industry clients against high-profile foodborne illness outbreak claims in more than 2o states throughout the country (including Arizona, Arkansas, Alabama, California, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Iowa, Maine, Massachusetts, Michigan, Minnesota, Nebraska, New Jersey, New Hampshire, New York, North Carolina, Ohio, Pennsylvania, Tennessee and Wisconsin). These have included outbreaks and claims involving a wide-range of foodborne pathogens, including E. coli O157:H7, Campylobacter, Clostridium Perfringens, Norovirus, Salmonella and Staphylococcus.  The firm's food safety team also assists clients with crisis management and other issues in advance of and following major food product recalls.

Shawn K. Stevens, a member of the firm's food safety team, is one of the only lawyers in America who dedicates his practice entirely to representing the food industry. 

Mr. Stevens counsels food industry clients throughout the country (including some of the nation’s largest food producers, national restaurant chains, and several food distributors and grocers) on a wide-range of food safety regulatory and liability issues.  Mr. Stevens works closely with clients to identify and appropriately manage risk, plan and prepare for possible crises, and also respond to governmental enforcement actions and recalls.  Mr. Stevens also defends industry clients against high-profile foodborne illness outbreaks and claims. Mr. Stevens has additional, wide ranging experience counseling clients in commercial, insurance and medical malpractice disputes.

In addition to his legal practice, Mr. Stevens also speaks regularly to national and international audiences on issues relating to food safety, regulatory compliance, crisis management, and foodborne illness outbreaks, recalls and lawsuits.  Mr. Stevens also serves as a weekly contributor to Meatingplace (as the author of its newest “Legally Speaking” Blog), writes a dedicated monthly food safety column for the National Provisioner, and is a regular contributor to Food Quality Magazine.

Mr. Stevens has also been recognized by his peers as a Wisconsin Super Lawyer Rising Star, and was recently selected as one of Milwaukee's 2011 "Forty Under 40." 

Ralph A. Weber, Ralph A. Weber has represented clients in several of Wisconsin’s highest profile lawsuits over the past several decades, and currently litigates for one of the world’s largest companies in food safety cases throughout the United States. His trial experience includes many lengthy jury and court trials. His appellate experience includes multiple oral arguments before the Wisconsin Supreme Court and intermediate appellate courts.

The prestigious international lawyer reference, Chambers Guide-USA, identifies Mr. Weber as a top commercial litigator. He also has been recognized by his peers through selection to Best Lawyers in America, Wisconsin Super Lawyers, and has been selected one of the Best of The U. S.’s list of “Best of Class” service providers in the United States.

An Adjunct Professor at Marquette University Law School, he taught Trial Advocacy for 15 years, and created a jury research and courtroom facility, the Trial Science Institute. In addition to speaking about litigation subjects, Mr. Weber co-edited a best selling book, Dear Americans: Letters from the Desk of Ronald Reagan (Doubleday, 2003).

Mr. Weber served on the Law Review at Columbia University Law School, graduating in 1982, and then served as a Law Clerk for the Hon. Richard D. Cudahy, United States Court of Appeals for the Seventh Circuit. He graduated summa cum laude from Marquette University in 1978.
 

Amelia L. McCarthy, a member of the firm, specializes in general commercial, health care, food and product liability litigation.

She also currently serves as a Municipal Prosecutor for a Wisconsin community and has served as a Public Service Special Prosecutor for the Dane County and Milwaukee County District Attorney's offices. 

Throughout the course of her career, Ms. McCarthy has tried over 50 court and jury trials. She also successfully defended four class action lawsuits, obtaining three dismissals with prejudice and one nuisance value settlement without having to proceed through class certification.

Ms. McCarthy has been recognized by her peers through selection to Wisconsin Super Lawyers and was recently named one of Milwaukee's Top "40 under 40" business leaders.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

FDA’s Deputy Commissioner for Foods, Michael Taylor, recently addressed the issue of the consumer confidence in food safety at China’s International Food Safety and Quality Conference last week. Taylor described the issue as “an important goal in its own right.” He stressed the issue is just as important as public health in regards to food safety. Taylor argued that we all benefit if we do not have worry about food safety. In turn, although Taylor pointed out that most consumers know that food is not 100% risk-free, he did explain that they expect a certain “basic level” of safety.

During the conference, Taylor also described the economic impact that consumer confidence can have on the industry as a whole. He stated, “it provides the foundation for the growing global trade, as well as robust domestic markets that are open to innovative products and technologies.” In contrast, he explained what happens when consumer confidence is lost. If a company’s product results in an illness outbreak, the company pays the price: they lose consumer confidence and profit. Often times, assuming the company survives, it can take a significant amount of time to rebuild consumer confidence.

Taylor also discussed how countries are revamping their food safety programs to help enhance consumer confidence abroad. Examples of these countries include: Canada, the Dominican Republic, and Vietnam. Taylor explained how the role of government is vital in aiding these new food safety initiatives. They can, in the end, and if done right, provide very “credible and effective” oversight.

Ultimately, Taylor stressed how it is the industry’s commitment and responsibility to food safety that will ultimately affect consumer confidence. As we always say, if industry continues lean forward in the food safety foxhole (as opposed to looking for ways to hide in it), both industry and the consumer will be better off.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A new scorecard for lawmakers was launched on Wednesday by the advocacy group, Food Policy Action. The National Food Policy Scorecard will grade lawmakers on food issues relating to food safety, hunger, farm subsidies, farm workers’ rights and humane animal treatment. Other heavy-hitters in the food industry are backing the movement, such as Top Chef Tom Colicchio, Stonyfield Farm’s Gary Hirshberg, and Robin Schepper, the former executive director for Michelle Obama’s “Let’s Move” campaign.

The scorecard looked at over 30 key food policy votes in Congress. Lawmakers were rewarded for voting on initiatives to reduce or eliminate federal subsidies paid to farmers, boost E. coli prevention funding, and that repeal ethanol subsidies. However, they were penalized for voting to reduce food assistance or weaken pesticide regulations.

Food Policy Action feels that despite Democrats out-scoring Republicans, the food scorecard is objective and non-partisan. Scott Faber, VP of Environmental Working Group said, “Food is a bipartisan issue.” Adding that, “some Republicans scored well and Democrats scored poorly.” Others chimed in saying “it isn’t about politics, it’s about values.”

Food Policy Action’s mission is to increase awareness about food policy. More specifically, they want to promote policies that encourage “healthy diets, reduce hunger at home and abroad, improve food access & affordability, uphold the rights and dignity of food and farm workers, increase transparency, improve public health, reduce the risk of foodborne illness, support local and regional food systems, treat farm animals humanely and reduce the environmental impact of farming and food production.”

It is not set on how the scorecard will be implemented. Only a few media outlets have reported the results from the scorecard released this past Wednesday.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The International Food Safety Training Lab (IFSTL) has seen positive results after only one year of operations. The lab is designed to train scientists globally in top food testing methods.

IFSTL has also opened up its doors to trade policymakers and other industry professionals. The overall goal is to improve food safety quality on a global scale. Advocates feel that, by helping foreign suppliers better understand efforts in the US to control potential food contamination, foreign exporters can better understand how to comply with the related US requirements. In addition, policymakers can learn more information about food safety practices to make better informed policy and trade decisions.

The lab is operated by the University of Maryland along with the FDA. Both FDA scientists and guest lecturers from the industry help run the lab. The director of IFSTL, Jane Dubois explains that students get a “one-on-one interaction with FDA, USDA and EPA specialists.” Dubois also adds that, “by learning to use internationally recognized testing methods students are able to verify whether a product meets a country’s standards, even if those standards vary country-to-country, because the method [being used] is universal.”

Currently the program is working on E. coli related research, including a more detailed look into the “Big Six.” In November, the lab is planning on conducting a course on microscopic identification of ingredients that will allow students to determine whether or not an ingredient is truly what it purports to be on the product label. A second lab is set to open in England in 2013.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Food safety concerns with hazelnuts were highlighted during a 2009 recall where nearly 30,000 pounds of nuts were recalled for potential Salmonella contamination. There have been many smaller outbreaks since, including one involving E. coli in the Midwest. Notably, before 2009, there were no reported outbreaks linked to US hazelnuts. Currently, there is no industry safety requirement. Despite this, individuals in the industry have taken many steps to enhance food safety of hazelnuts.

For example, Willamette Hazelnut Growers comprises of nearly 99% of the hazelnut producers in the country. They investigated their own processing system after the 2009 recall, finding they needed improvements in the shelling their process. The company also decided to invest in a 3rd party microbiology lab to develop improved testing methodologies. As a result, the company now sanitizes all shelled products with an organic-water-based spray. The final products are then tested for bacteria. The company also tests the facility for contamination. So far, all the tests have come back negative.

Various groups in the industry continue to make efforts to ensure food safety. Growers have implemented a set of science-based guidelines know as GAPS (good agricultural practices). Handlers have also upped their standards by adding new steps that will reduce bacterial levels and noting the efficacy of them. Polly Owen, Manager of the Hazelnut Marketing Board, stated that industry is, “continuing to aggressively pursue the best practices possible.”
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As of July 1, 2012, California has enforced a ban on the French delicacy known as foie gras. Chefs and restaurants were unsuccessful persuading the California Legislature to withdraw the ban. California restaurants could face fines up to $1,000.00 if they violate the new restrictions. The implementation comes from a 2004 bird feeding law. However, the 8 year delay of enforcement was reportedly “to let producers adjust.” The law restricts both production and sale of foie gras and by-products like jackets and comforters made from down.

The French delicacy is made from fatty geese or duck liver. The process of producing foie gras was seen as cruelty towards animals. During the process, the birds are force-fed cornmeal to increase the size of their livers. Former California Senator John Burton, sponsor of the 2004 bill, said it has “nothing to do with meat. It has to with animal cruelty.”

Food safety was also was called into concern with the popular dish. Some argued that the force-fed birds could develop a blood-borne bacteria that could cause pre-mature death. Yet, the USDA rejected the claim.

Many of those in the culinary industry are not backing down without a fight. Various California groups have asked the federal courts to strike down the ban on the basis of its impact on interstate commerce. The court has stuck down a few similar bans due to the same argument. Another issue that has arisen is the law’s ambiguity. It does not give any standards for weight, volume, or caloric values.

The controversy over the popular food product continues nationwide. Notably, Chicago recently over-turned their ban on foie gras.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Scottish government has recently decided to break away from the United Kingdom’s Food Standards Agency (FSA). Instead, they will be setting up their own food standards agency. The new agency will be responsible for food safety, food standards, nutrition, food labeling, and meat inspections.

This action stems from the 2010 decision by UK’s government to move food labeling and standards from the FSA to the UK’s Department of Health of Environment, Food, and Rural Affairs. After this decision, Scotland decided to conduct research to decide what the best option was. The research panel published their report in April, advising that Scotland should go “independent.” Scotland’s Health Minister, Michael Matheson stated, “the changes in England removed significant capacity in the FSA’s nutrition and labeling functions for Scotland and needed to be address.”

The new agency will allow Scotland to tackle in-house emerging diet and foodborne illness issues. In addition, the move will help Scottland ensure that the food and drink industry of Scotland will continue to have a strong reputation for safety and quality.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

China announced a new 5-year food safety program to address continuing concerns about its food industry. According to reports, the government will be updating, reviewing and eliminating any old and overlapping regulations and standards. Many standards and regulations currently contradict one another. This is a result of multiple government agencies regulating the industry. There will be 14 different government departments including the Ministry of Health, Ministry of Science and Technology, and Ministry of Agriculture, that will work together to revamp regulations and standards by 2015.

The government will prioritize safety standards for dairy products, infant food, meat, alcohol, vegetable oil, seasoning, health products, and food additives. They will also take extra steps to improve testing standards for contaminants, food additives, microorganisms, pesticides and animal drug residue.

The new program comes after nationwide concern about food safety in China. Indeed, suspect food from China has been involved in many recent food safety headlines. Scandals have included mercury findings in baby formula, produced by one of the biggest dairy companies in China; clenbuterol involving pork; and overall concerns about Chinese food products.

Reportedly, the plan will add 269 new national food standards and require more supervision and harsher consequences for violators. The Chinese government released a statement acknowledging the difficulty of the task; however, overall, they are hoping to simplify the complex and confusing system. Time will tell whether they get it right.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The demand for food safety products in the US market has bolstered in the recent years. Industry experts feel this substantial growth will continue through 2016. Factors such as consumer interest, awareness, new government regulations, and industry initiatives all contribute to the increased demand. Various parts the food industry including the processors, servicers, and farmers markets are all taking note.

Among one of the fastest growing products in food safety are smart labels. A smart label is a flat responsive electronic device that can perform and track various functions. These labels help with the traceability of food supply. They can also play a crucial role in a outbreak by linking the contaminated food back to its origin. Along with smart labels, diagnostic products are also expanding. However, these products are more expensive. Diagnostic products test food for a multitude of food safety related factors.

Representing the largest market for food safety products is in the processing plants. In this market, there are many fast growing areas such as seafood, prepared food, and beverage segments that receive significant regulation. In turn, companies in these segments are looking for new ways to reduce both their regulatory burden and food safety risks.

Food service also accounts for a significant part of the food industry. Growth in the service area has been accelerated over the recent years due to increased profits. Here too, larger profits have allowed the food service industry to develop and purchase a greater range of food safety-oriented products and services. Additionally, product demand in this industry has also risen due to efforts in improving sanitation and avoiding cross-contamination.

Looking forward, it is anticipated that, at least through 2016, farmer’s markets will be one of the fastest growing sectors for food safety products. Industry experts feel this is because, “crop and product uses will outpace those of livestock due to increased pathogen testing of produce at the farm level and continued presence of GMOs at the grain levels.” In other words, the production of produce will likely outrun meat production due the vast regulation of pathogens. With the popular trend of growing and buying local, more regulations are being adopted and enforced at these levels as well.

This projected expansion of food safety products in the United States is forecast to continue through 2016. Based on increased efforts to decrease the possibility of foodborne illnesses and increased consumer awareness, new products will continue to be marketed. Hopefully these efforts will help ensure that the US food supply remains one of the most affordable and safest in the world.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Grow Green Industries Inc. and P.L. Thomas & Co. Inc. just announced that they will be launching two new all-natural food safety and shelf-life enhancer products at the Food Technologists Annual Meeting and Food Expo in Las Vegas in June. The products are eatSafe™ Natural Food Wash and eatFresh™ Natural Antimicrobial. According to the company,they will be a two-part alternative to longer-lasting, better tasting, and safer food.

The products use synergistic complexes of FDA-approved GRAS (Generally Recognized as Safe) and organic components used in food processing to make sure products do not carry foodborne bacteria. Both will come in a liquid or powder form. They will protect against pathogens, extend the shelf-life, and make the food product overall safer to eat. eatSafe™ also removes other contaminants like oils, dust, and pesticides. In addition, unlike its competitors, eatFresh™ is a near taste-less replacements for preservatives: allowing no impact to the overall flavor of the food.
Reportedly, both products control pathogens by a cell electro-potential disruption mechanism. As a result, they have a large range of ability to handle various levels of pathogens. This avoids having to combine certain preservatives that could be expensive and alter the taste of the products.

The patent-pending products have been put through a series of lab tests both by the manufacturers and third-party lab testers. Results from the studies showed that eatSafe™ Natural Food Wash “removed 99.999% of bacteria, including Salmonella, E. coli, Listeria and coliform bacteria from the surface of produce.” Other studies have found eatFresh™ Natural Antimicrobial has extended the shelf-life of food by 200% compared to other test controls.

Both companies are very excited and proud of the new product line. Founder and CEO of Grow Green, Mareya Ibrahim says, “[food safety] is a problem that is worth our attention. And we felt an all-natural solution that avoided potentially harmful chemicals was a natural extension of that drive.” President of P.L Thomas, Paul M. Flowerman, explains, “these new all-natural products open up new opportunities for consumer product development and can significantly reduce overall costs for all-natural foods and beverages.” Both admit that all-natural and clean labels are the new trend in the industry. However, they are hoping these products will, “offer an end-to-end solution for improving taste, quality and shelf life.”
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

California Cantaloupe handlers have unanimously passed the state’s first mandatory food safety program .

Even though California cantaloupes have never been linked to a foodborne illness, this action will add another layer of insurance to that segment of the state's industry.

The program solidifies the past two decades of food safety leadership demonstrated by the state’s cantaloupe growers. They have been working diligently to revise existing federal food safety guidelines pertaining to growing and packing. In addition they have been working to promote international food safety guidelines with contract science-based risk assessment associations and the Center for Food Safety.

This program will affect California cantaloupe growers statewide, specifically the Southern region. A new growing district will be established consisting of the desert south. The California Department of Food and Agriculture will appoint members for this new district from nominations at the previous public hearing in March. The group will implement the new mandatory program by conducting a board meeting to elect officers for the new districts. They will then determine the best way to regulate the industry modeling after other commodity-based programs.

The California Cantaloupe Advisory Board will also include a food safety certification program that will require compliance to production and handling. Failure to comply will make it an unfair trade practice. The unanimous approval of this mandate is significant since California Cantaloupe growers compromise 70% of the nation’s cantaloupe growers.

For this reason, the program will serve as an example for further mandatory food safety programs both domestically and internationally.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In recent years, delis have greatly expanded their product portfolio, catering to a growing need for more ready-to-eat items in a faster paced world.

For these reasons, food safety in delis has never been more important.  One of the most critical control points for food safety in delis (as well as restaurants and other foodservice establishments) is the slicer, which is commonly used to slice meats, cheeses and produce.

Unfortunately, deli slicers can sometimes be difficult to clean. According to the U.S. Food and Drug Administration (“FDA”) Food Code, deli slicers should be disassembled, cleaned and sanitized per the manufacturer’s instructions at least once every four hours to prevent the growth of disease-causing bacteria.

This, of course, can create numerous challenges for food companies. First, the task may be difficult to accomplish in a busy deli or restaurant which relies on slicers throughout the day to meet unpredictable customer demand. Second, slicers may become more difficult to properly clean over time.

Seals and gaskets within a typical deli slicer may become worn or degraded as a result of heavy use and cleaning. In some instances, this can create spaces that trap debris and moisture, and these spaces may not be able to be adequately cleaned under normal conditions. Thus, slicers should be frequently examined by operators for worn or broken parts and seals, and regularly serviced by manufacturers.

Large scale foodborne disease outbreaks allegedly linked to deli slicers have recently prompted a national study on slicer food safety. In one outbreak, seventy-two patrons of a restaurant became ill with Salmonella over a three-month span. The same strain of Salmonella which sickened the patrons was found on the restaurant’s slicer.

Currently, the Rhode Island Department of Health is leading a nation-wide study regarding the extent to which inadequately cleaned or poorly designed slicers are causing foodborne illness. The department’s investigation has confirmed that slicers are not always being properly sanitized every four hours. Additionally, the department identified three brands of slicers with certain design limitations that can inhibit proper cleaning.

Hopefully, a new initiative by the FDA will bring a renewed effort on this food safety issue. The FDA developed a poster and flyer designed to raise awareness of the sanitation concerns with slicers. The poster, which explains the importance of proper slicer maintenance and highlights examples of hard-to-clean problem areas, can be tacked up right beside a slicer.

The flyer provides tips for food safety professionals inspecting deli slicers. Click on the following link for the FDA’s press release, or to download or order the poster and flyer at no charge.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Two years ago, we lauded High Pressure Processing (“HPP”) as “one of the most promising food safety technologies.” As it turns out, we were right.

In 2005, the American Pasteurization Company (“APC”) became the first company in the country to offer HPP on a commercial tolling basis. Just five years after the company opened its doors, we are excited to report that APC has been embraced by industry and the company is expanding.

As we wrote previously, HPP is a post-packaging pasteurization technique. The technology can be applied to food products with high water content, such as ready-to-eat meat and poultry products, seafood, fruits, vegetables and soft cheeses. HPP works by uniformly applying up to 87,000 psi of hydrostatic pressure to foods, often in their final packaging, for up to three minutes. The hydrostatic pressure does not compress the food product, but it does destroy food-borne pathogens and spoilage microorganisms.

APC’s first processing facility in Milwaukee started with just two employees processing about 5,000 pounds of food each week. Today, the company’s staff numbers over 50 and is processing more than 700,000 pounds per week. In order to meet the growing demand, APC just opened a second processing facility in Evansville, Indiana. The company hopes to open even more locations across the United States in the future.

The benefits of HPP are especially significant given its proven ability to eliminate food-borne pathogens in certain products. The emotional and financial toll of a food-borne illness outbreak and product recall can devastate a manufacturer. The average cost of a recall to companies is $10 million, in addition to brand damage and lost sales. Thus, by removing pathogens from treated products, and by extension all associated risk, the long term benefits can be substantial.

HPP can also double a product’s shelf life while simultaneously removing the manufacturer’s need to add chemical preservatives. Longer shelf life means longer production runs and fewer markdowns. The business of one APC customer went from static to growing when, with an extended shelf life, it was able to switch its product from frozen to fresh.

These feats are accomplished without the use of chemicals or irradiation, and amazingly, without affecting product quality, thus satisfying some the most significant consumer issues right now: (1) safe; and (2) natural. While irradiation has remained controversial for many years, HPP is quickly gaining a much wider acceptance.

With regard to regulatory compliance, HPP is USDA and FDA approved and helps processors comply with current Listeria regulations. APC “works with food processors in many ways to make the utilization of HPP as seamless and cost effective as possible.”

So is there any downside to HPP? Well, yes. While HPP makes our ready-to-eat meats, raw shellfish, and salsa safer, the process cannot yet be applied to all foods. The good news is that APC is diligently working to expand HPP’s portfolio of products, which will hopefully someday include ground beef.

We are grateful and happy for our friends at APC who now anticipate processing more than 50 million pounds of safe food each year!

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Hamburgers and fries have long been a staple of both American diet and culture.

In recognition of that, President Barack Obama treated fellow world-leader, Dimitri Medvedev, to lunch at Washington’s favorite burger restaurant.

Ray’s Hell-Burger, a Washington hot-spot, is known for delicious, ten-ounce behemoths which are built from hand-trimmed, freshly ground beef. The restaurant is located in an unassuming storefront and boasts numerous B-movie posters and wooden tables outfitted with an assortment of condiments and a roll of paper-towels.

What did the two leaders talk about while consuming the all beef patties? Ironically, it was poultry. The men agreed, over their 10-ounce burgers, to resume poultry exports to Russia, overturning a ban that was put in place earlier this year. The dispute arose over the use of a chlorine rinse which Russia said violated its food-safety rules. Fortunately, the Washington burgers helped seal the deal, and poultry is now back on the menu. 

And, once again, a simple meal proves its worth in bringing the world just a little bit closer.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Given recent improvements in national food-borne illness outbreak surveillance, more food-borne illnesses are being identified, and more outbreaks are being reported.

By extension, many of these outbreaks are being associated with an increasing number of foods, and more companies are – either directly or indirectly – being affected.

For nearly a decade, we have been defending food companies across the country in high-profile outbreak litigation (involving meritorious and non-meritorious allegations). During this period, we have also learned first-hand that when outbreaks do occur, not all investigations are performed properly, and not all resulting claims have merit.

Because of limited resources and other reasons, many outbreak investigations are still unable to identify the real culprit, and some continue to identify the wrong source. Unfortunately, in these and other cases,  many claimants (and their attorneys) continue to sue the wrong party.

Thus, when a food company is faced with an outbreak, it is critical to obtain experienced counsel counsel: (1) who understand how food-borne illnesses are tracked, investigated and confirmed; (2) who can help challenge developing assumptions and conclusions regarding potential source; (3) who can effectively respond to regulators and media during an outbreak and recall; and (4) who know how to properly defend food-borne illness claims and lawsuits when they do, indeed, occur. Over the last 10 years, our firm has written the doctrine on Defending Food-Borne Illness Outbreaks And Claims.

Although we enjoy one of the most plentiful, affordable and safest food supplies in the world, we also live in one of the most litigious societies. Thus, despite the fact that food-borne pathogens are (and likely always will be) an inherent part of our food supply, and despite the fact that individual risk can be greatly reduced through responsible consumer behavior, many individuals will continue to be affected by food-borne illness and, unfortunately, regardless of source or cause, many will continue to sue.

In recognition of your incredible efforts to provide safe and plentiful food to our families, we are proud, when lawsuits are threatened, to protect and defend yours.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

It is no small secret that our collective survival depends, quite literally, on the food we eat.

The availability and affordability of food has a direct impact on our individual health, along with (if we work in the food industry) the success and longevity of our careers. Indeed, if we produce food for others, the quality of the food we market and sell also affects our individual ability to provide for and feed our families. In this regard, every one of us (no matter how large or small our role may be) has an interest in making sure that the food we produce (and, ultimately, consume) is the safest it can possibly be.

To date, we’ve done an excellent job. Nevertheless, despite our best efforts, the existence of naturally occurring pathogens in our environment – and by extension in many foods – remains a real part of our business and lives. Given the limitations of science and, in no small part, consumer behavior, no one is immune. Every month, for instance, approximately 6,000,000 Americans will develop some type of food-borne illness. This also means that – each year– nearly one in every four Americans will be affected. Of these, approximately 325,000 individuals will be hospitalized, and nearly 5,000 could die.

And, no matter how much we care about food safety, this trend is not only likely to continue, but will likely accelerate. Given recent and substantial improvements in national food-borne illness outbreak surveillance, more food-borne illnesses are being identified, and more outbreaks are being reported. By extension, these outbreaks are being associated with an increasing number of foods, and more companies are – either directly or indirectly – being affected.

This resulting increase in reported outbreaks, along with a corresponding increase in media coverage, has also affected public and governmental interest in food safety. The politics of food safety, of course, translates exponentially into more regulation and a significant increase in food litigation. Thus, if your company has not yet faced a food-borne illness claim, chances are in the short term it will. Additionally, for this reason, businesses should begin contemplating how to best position themselves (from both a food safety and liability standpoint) to anticipate future problems, reduce company exposure, and react appropriately when an alleged food-borne illness or outbreak does indeed occur.

Not all food-borne illnesses claims, however, have merit. As noted, as a direct result of the growing public and political awareness in food safety, we have also witnessed an explosion in food-borne illness and outbreak litigation. In turn, we also know that, because of limited resources and other reasons, some outbreak investigations are still unable to identify the real culprit, and some continue to identify the wrong source. In these and other cases, many claimants (and their attorneys) continue to sue the wrong party.

Thus, here too, it is critical that food companies understand how food-borne illnesses are tracked, identified and confirmed, what to expect in a food-borne illness investigation, how to respond during an outbreak or recall, how to react when confronted with a potential claim, and how to properly defend their business and reputation when lawsuits are ultimately filed.

In any event, this is why we are proud to offer our Advance Series on Managing Food-borne Illness Outbreaks and Claims. For nearly a decade, our food safety team has helped food companies across the nation prevent litigation, manage crisis and defend claims (both meritorious and non-meritorious allegations). In the coming weeks and months, this series will provide additional and timely insight on what food companies can do to anticipate risk and reduce potential exposure, to effectively respond to and manage food-borne illness outbreaks and claims, and to effectively defend food-borne illness litigation and lawsuits when they do, indeed, occur.

Although we enjoy one of the most plentiful, affordable and safest food supplies in the world, we also live in one of the most litigious societies. Thus, despite the fact that food-borne pathogens are (and likely always will be) an inherent part of our food supply, and despite the fact that individual risk can be greatly reduced through responsible consumer behavior, many individuals will continue to be affected by food-borne illness and, unfortunately, regardless of source or cause, many will continue to sue.

In recognition of the incredible efforts hard working Americans to provide safe and affordable food to our families, we feel inclined, when lawsuits overreach, to protect and defend yours.

Again, thanks for a job well done. And, welcome to www.foodsafetycounsel.com.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

• Return to Defending Claims.  

So, here we go again. Thinking about food rather than eating it. But, that's okay.

Because helping food companies decrease the risk of potential litigation, finding the real source of an outbreak (when it does occur), helping a faultless company avert a crisis, working to extract an innocent food producer from a stray investigation, or simply proving decisively before trial that a food-borne illness claim lacks all merit, is well worth the small sacrifice of delaying a meal.

For nearly a decade, we have worked nationally with food companies and food safety professionals preventing litigation, managing outbreaks and defending claims.

During this period, we have observed (first hand) what really happens inside our processing plants, grocery stores and restaurants, and are here to proclaim, without hesitation, that we are proud to eat the food you make. Additionally, while our food safety system may never be perfect, it is extremely well suited to identify problems when they arise, to encourage quick and effective solutions, and to help ensure that our food supply remains one of the most plentiful, affordable and safest in the entire world.

Thank you for a job well done!

Welcome to www.foodsafetycounsel.com.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Anyone associated with the food industry appreciates the critical importance of sanitation, the most basic and important aspect of which is proper hand washing.

Notably, eighty percent of all illnesses and infections are transported by touch. In turn, according to the World Health Organization, an individual who washes their hands often is 24 percent less likely to acquire a respiratory illness, and 45 percent to 50 percent less likely to get a stomach bug.

Fortunately, with each passing moment, science and technology lead to new innovations which enhance our knowledge of food-borne illness, as well as our ability to combat it. One of these innovations, while currently being used only in hospitals, may potentially have wide-ranging applications in the food industry as well.

The system, known as Hygreen, enables companies to monitor and keep track of hand washing. It is currently being tested in the Neuro-Intensive Care Unit of Shands, at the University of Florida Medical Center. The units require an employee to simply run their hands beneath a wall mounted sensor which can detect the presence and level of soap on the individual’s hands. If the employee’s hands are clean, a green light turns on.

Conversely, if the sensor detects low levels of cleanliness, or that too much time had elapsed between hand washings, a badge worn by the employee will vibrate softly. The badges and sensors communicate wirelessly with a computer which logs the collected information and can monitor compliance.

"I do wash my hands more often," said nurse Carrie McGirr, R.N., who volunteered to help test the HyGreen system. "It's a fairly simple process to learn."

While seemingly basic, proper hand washing requires one to follow certain basic guidelines which should be both trained and enforced.

Put simply, one should scrub vigorously with water and soap until lather appears, making sure to get between fingers and fingernails. This should be done for at least 20 seconds. Briskly dry with a towel.

While better than nothing, the popular sanitizing hand gels have been shown to be far less effective than hand washing. The reason for this is simple. When you use a hand sanitizer, the bacteria and viruses have no where to go so they remain on your hands. Conversely, when you use soap and water the germs are washed down the drain. A vigorous drying with a towel will ideally get rid anything that washing left behind.

Air dryers, once popular, are seen less and less frequently. They are generally thought to take too long to finish the job of drying, and studies have shown that paper towels are actually more effective at removing dirt and bacteria.

It is possible, however, that they will make a resurgence. At least that’s what the people at Dyson hope. The Dyson AirBlade is similar to other air dryers but it uses room temperature air which is blown out at over 400mph. It is a futuristic looking machine that is supposed to dry hands completely in less than ten seconds.

We are only left pondering, however, whether the AirBlade is strong enough to help open the bathroom door . . .

• Email This
• Print
• Comments
• Trackbacks
• Share Link

According to the USDA, Mother's Day is an excellent time to teach children food safety:

Indeed, rubbery eggs, burned pancakes, undercooked bacon — what mother doesn't treasure the memory of the little hands that cooked a Mother's Day breakfast! Mother's Day is the perfect time for dads and other caregivers to teach children simple food safety lessons while supervising the preparation of a special meal made for Mom.

Mother's Day has been officially celebrated the second Sunday in May since 1914 when President Woodrow Wilson signed the day into national observance. Ever since, children have been lovingly — yet messily — preparing breakfast in bed and other meals for mom.

It is also important, however, for children to learn and practice safe food handling techniques so moms don't end up becoming the patient from a foodborne illness. Not washing hands, leaving perishable food sitting out too long at room temperature, and not cooking food to a high enough temperature to destroy bacteria are several main causes of foodborne illness.

In turn, USDA / FSIS encourages both children and adults to put these four easy to remember lessons — Clean, Separate, Cook and Chill — into practice in order to Be Food Safe on Mother's Day and every day: 

• Clean: Wash hands and surfaces often.

• Separate: Separate raw meat, poultry and egg products from cooked foods to avoid cross-contamination.

• Cook: Raw meat, poultry and egg products need to be cooked thoroughly. Use a food thermometer to ensure foods have reached a high enough temperature to kill any harmful bacteria that might be present.

• Chill: Refrigerate promptly.

Lesson 1: Stay Clean

Bacteria can be hiding just about anywhere: in the kitchen, on a plate and on hands. These invisible enemies can multiply and make Mom sick. Cooks of every age should wash their hands with soap and warm water for 20 seconds before and after food preparation, after playing with pets, and after using the bathroom.

All fruits and vegetables should be washed with running water before cutting or eating them. Only put food on clean surfaces. Always use clean knives, forks, spoons and plates.

Lesson 2: Keep Raw and Cooked Foods Separated

Cross-contamination is the technical description for how bacteria can be spread from one food product or surface to another. This is especially true when handling raw meat, poultry, eggs and seafood, so keep these foods and their juice away from ready-to-eat foods.

Always use a clean plate. Never place cooked food on a plate that previously held raw meat, poultry and seafood. Never put food on a dirty table or counter. Always wash cutting boards, dishes and utensils with hot, soapy water after they come in contact with raw meat, poultry, eggs and seafood.

Lesson 3: Cook Food to Safe Temperatures

Foodborne bacteria can't be seen, smelled or tasted. Use a food thermometer to make sure food has reached a USDA recommended minimum internal temperature. No matter how old the chef, you can't tell food is cooked safely by how it looks.

Always place the food thermometer in the thickest part of the food, away from bone and fat, to check the temperature. When cooking in a microwave oven, stir, cover, and rotate food for even cooking. It's important to let food stand for a few minutes after cooking it in the microwave. Always cook eggs before eating them. When cooked, eggs should be firm, not runny.

Lesson 4: Keep Perishable Foods Cold

Bacteria need time and the right environment to grow and multiply - such as moisture and warmth. Most foodborne illness-causing organisms grow quickly above 40° Fahrenheit. Some bacteria can double their numbers every 20 minutes at temperatures above 40° Fahrenheit. In a few hours, bacteria on food can cause an illness or form "toxins" that might not be fully destroyed by cooking.

Some foods that need to stay cold (at 40° Fahrenheit or below) include sandwiches or salads made with meat and poultry; tuna and egg salad; milk, cheese, and yogurt; and peeled or cut fruits and vegetables.

Finally, any leftovers from Mom's special meal should be refrigerated within two hours. Perishable food left out for more than two hours should be thrown out -- and not fed to the family pet. Even pets are susceptible to foodborne bacteria. To reheat leftovers safely, make sure they reach 165" Fahrenheit as measured with a food thermometer.

So, whether the family gathers at the dining room table (or in the kitchen hours before), make sure this weekend that each of you thoroughly enjoy quality time spent with Mom.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

We live in a world of contrasts.  I wrote a few days ago about a positive food safety experience while flying on Delta (leaving Milwaukee). I was not so impressed, however, on the return flight home.  While weaving our way back to Milwaukee on an American Airlines flight, I was discouraged to discover that the faucets on American's regional jets are now bone dry. Hmmm.

While I understand that the airlines are struggling to stay afloat in this difficult economy, and have started removing certain niceties from their flights, shutting-off the running water in the lavatory strikes me as a bit extreme. Rather than allowing customers to grace their hands with hot, soapy water after using the restroom, American now offers a plastic container full of cold wet-wipes.

The airlines already pack (literally) dozens of adults, children and sometimes pets into a small silver tube for hours at a time. And, although the flight crews on American are by no means experts in food service, they do serve food. The potential for the spread of illness among large groups of people in airports and on airlines is already high, and need not be exemplified because of the decision to turn off water in a bathroom. Water is cheap – health is not.

So, if you’re listening American, please turn the water back on. You will likely save a customer – and, might even save a life.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

It never occurred to me to ask if responsibility has a border. Neither, apparently, has it occurred to the flight crews of Delta Airlines. While flying from Milwaukee to an undisclosed location today, I experienced Southern Hospitality in an entirely new way. The flight attendant’s name was Mandy, and she is based out of Atlanta. Midway into our flight, she handed me the Coke I ordered - along with a plastic cup.  Because I like to drink my soda from the can, I promptly attempted to return the plastic. She, of course, refused.

“No offense honey, but I’ve no idea where your hands have been. I know where mine were! I don’t know where yours have been . . .”

The statement may look rude on paper, but it was expertly delivered, and with a genuine smile. Mandy was distinctly friendly and, because of her, my next flight will be on Delta. Individuals like Mandy exemplify the care and consideration that most food (or, in this case, drink) vending Americans should strive to emulate. She wasn’t concerned about her own well-being. She could have (and did) wash her hands before and after doing the drink service. She didn’t touch my cup because she understood that by doing so, she could potentially put other passengers at risk (my own hands are very clean, by the way).

In any event, I don’t know how the personnel at Delta are trained. What I do know is that one person can always make a difference. Today, I witnessed exactly that. As a result, I had one of the most positive flying experiences in my life

Keep up the good work, all.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In recent years, we have witnessed a large increase in the number of reported food-borne illnesses and outbreaks. As a result of improved governmental surveillance, aided by PulseNet and OutbreakNet, more food-borne illnesses and outbreaks are being identified. In turn, as food companies attempt to overcome these trends, new antimicrobial interventions are receiving even greater attention.

One of the most promising food safety technologies is a post-packaging pasteurization technique known as High Pressure Processing (“HPP”). HPP can be used for a wide variety of perishable foods, and works by uniformly applying up to 87,000 psi of hydrostatic pressure to prepackaged foods for up to three minutes. The application of high pressure to the product inactivates both spoilage microorganisms and harmful pathogens by causing the microbial cell membrane to become more porous, and by inactivating enzymes vital for microbial survival. This process, which the American Pasteurization Company (“APC”) has been performing on behalf of customers for years, reduces microorganisms and increases shelf-life significantly.

Notably, the USDA-FSIS currently regards high pressure processing as a valid intervention method for Listeria monocytogenes in prepackaged, ready-to-eat meat products. Because the pressure is hydrostatic (think of a grape in a bottle), there is no impact on the texture or flavor of products that are treated. Other applications include ready-to-eat meat and poultry products, guacamole, fresh salsa, humis, raw and marinated meats, seafood, oysters, dips, wet salads, and various cheese products. The list of appropriate uses and products, of course, continues to expand daily.

Additional benefits of HPP include:

• Dramatically increasing the safety of food products;

• Affording greatly enhanced brand equity protection;

• Extending the optimal freshness of food products using a non-thermal technology;

• Dramatic extension of shelf life;

• Allows reformulation to reduce or eliminate dependency on added microbial inhibitors;

• Facilitates the migration of many products from frozen to fresh; and

• For USDA plants, HPP is considered an effective intervention and helps processors comply with current Listeria regulations.

APC is the first company in the United States to offer HPP on a commercial tolling basis. This arrangement is extremely beneficial to customers because, once pre-packaged foods are received from customers and treated, the products can be custom labeled, packed and shipped directly from APC’s USDA-inspected facility to end-users. Moreover, recent advances in pressure equipment have significantly lowered the cost of use.

To date, APC has successfully processed more that 50 million pounds of food products for more than 30 separate food processors. APC is located in Milwaukee, and because it does not manufacture food (it only makes food safer), the company does not compete with its customers.

Thus, for food companies looking to utilize this new technology on a commercial tolling basis, without incurring the necessary infrastructure costs, don’t hesitate to contact Greg Zaja (of APC’s Research and Development Group) for more information.

Special thanks to APC (www.pressurefresh.com) for helping make our food safer.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Agriculture Secretary Tom Vilsack recently announced that, despite previous opposition, he now favors combining the food safety functions of the United States Department of Agriculture (“USDA”) and Food and Drug Administration (“FDA”) into a single food safety agency. Currently, the USDA through it’s Food Safety and Inspection Service (“FSIS”) is responsible for regulating the safety of meat, poultry and egg products. In turn, the FDA has responsibility for most other foods. In his recent comments, Vilsack also stated that he has not yet decided whether a single agency would be best located within the FSIS, the FDA or an independent agency.

As debate continues about merging the food safety responsibilities of the USDA and FDA, Janie Gabbett (from Meatingplace.com) reported that the majority of industry participants in an online survey favored combining the food safety regulatory functions of the USDA and FDA, but only one in five believed that such a merger would result in improved food safety.

Of 289 readers who responded to the survey, 58 percent agreed the two agency functions should be combined, while 42 opposed a merger. When respondents were asked if they thought that a merger of the two agencies would improve food safety, 50 percent believed that food safety would remain unchanged, while 30 percent believed that the quality of food regulation could actually decline.

According to the survey, participants were more concerned with deficiencies in FDA regulation than in FSIS protocols. Namely, this is because, unlike the FDA, FSIS inspectors currently maintain a continuous, on-site presence in meat packing facilities, and also regularly test meat and poultry products for harmful pathogens. As a result, several respondents also concluded that if the agencies were to merge, the FDA would need to become more like FSIS, and not the other way around.

Other suggestions from survey participants included:

• Providing better technology and tools for inspectors;

• Increased laboratory testing;

• Imposing fines on plants with repeated serious violations;

• Requiring all food establishments to adopt and implement Hazard Analysis and Critical Control Point (“HACCP”) plans;

• Requiring all food establishments to adopt and implement sanitation standard operating procedures (“SSOPs”);

• Continuing to improve risk-based analysis of food safety systems in plants;

• Targeting high-risk foods (under FDA jurisdiction) and moving toward to the USDA model of inspection;

• Providing better training for inspectors; and

• Funding additional research to improve food safety.

According to Gabbett, many respondents also believed that, even with a single food safety agency, increasing the funding and number of federal inspectors would likely be needed to improve the effectiveness of regulations. According to one respondent, "simply merging two departments and changing their names . . . won't affect food safety." Rather, "there would need to be fundamental changes at the plant inspection level to actually make a difference."

Currently, the United States is the only industrial nation to have two separate federal food safety regulatory systems. Moving forward, we'll continue to post on emerging developments.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As the investigation into the Peanut Corporation of America (“PCA”) continues, it has been reported that salmonella was isolated from various product samples manufactured by a PCA subsidiary in Plainview, Texas. The facility, operated by the Plainview Peanut Company, issued a press release following its closure yesterday at the request of the FDA and Texas Department of State Health Services. Early reports indicate that the facility agreed to halt operations ahead of an announcement that salmonella may have been found at the site. Although the pathogen was reportedly isolated from certain product samples, officials have also stated that, at this point, it does not appear that any of the tested products reached consumers. The Plainview production facility, like PCA’s Blakely, Georgia facility, produces peanut meal, granulated peanuts and dry roasted peanuts.

As we reported previously, federal officials are continuing their criminal investigation into PCA operations. The closing of PCA’s Plainview facility comes only one day after the FBI executed search warrants at both PCA’s production facility in Blakely, Georgia, and and its headquarters in Lynchburg, Virginia. To date, the ongoing outbreak may have sickened as many as 550 people, and may have contributed to as many as eight deaths. The recalls which followed (and continue to this day) have affected more than 1,800 consumer products.

Congressional hearings on the outbreak and recalls are scheduled to occur tomorrow, and we will continue to report on emerging developments.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I affectionately call him Buck Magnum.  You may know him by some other name.    Whatever his true identity, I would like to thank him for a job well-done.  

Buck’s story begins over one hundred years ago.  At the turn of the Century, we began shipping more and more food products between states.  Due to the emergence of rapid transportation, improved preservation techniques and the ability of media to reach additional consumers, food became more plentiful, affordable and accessible.  For the first time, food processors could viably ship perishable products anywhere in the nation.

While interstate shipments grew, however, food safety regulations became inadequate.  Industrial advances quickly outpaced limited state and local regulations.  In the meat industry, laws defining what constituted “adulteration” or “misbranding” were determined, if at all, by each individual state. Moreover, what was forbidden in one state was lawful in another.  This hodgepodge of inconsistent laws soon made it apparent that, without a national approach to food safety, a single set of rules, and a single agency to enforce them (enter Buck Magnum), American citizens could have no confidence in the origins or safety of their food. 

The federal approach to food safety was solidified in 1906, when Congress passed the Wholesome Meat Act and the Pure Food and Drugs Act.  These Acts (along with their successors) formed the framework for the national food safety policy that continues this day. The 1906 Wholesome Meat Act (now known as the Federal Meat Inspection Act, 21 U.S.C. § 601, et seq.) requires continuous federal inspection in meat packing plants, often times by multiple inspectors, to ensure that meat products are safe and wholesome, not adulterated and marked with the federal legend of inspection verifying the same.  

Today, the federal statutory and regulatory scheme is enforced by the Food Safety Inspection Service (a sub-agency of the USDA), via inspectors such as Buck.  In turn, I have watched quietly over the years as this picture has become, in some sense, legendary.  I have seen the photograph countless times on the internet, and have referenced it in publications, speeches and Powerpoints.  I even have a copy sitting next to the plant on my desk. 

Thus, if you know the true identity of this food safety icon, and can privately express our thanks, we'd be grateful.  Alternatively, if you could land me an autograph, you’d make my day.

• Email This
• Print
• Comments
• Trackbacks
• Share Link