“Should I eat the chicken?”:

Responses to Food Safety Challenges in the US

Professor Kif Augustine-AdamsFulbright Distinguished Lecturer, Renmin University Law SchoolCharles E. Jones Professor of Law, J. Reuben Clark Law School

Brigham Young University

Foster Farms ChickenFall 2013

http://www.cdc.gov/salmonella/heidelberg-10-13/index.html

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• As of the end of February, a total of 481 persons infected with Salmonella Heidelberg have been reported from 25 states and Puerto Rico.– 38% of ill persons have been hospitalized– No deaths have been reported– Multi-drug resistant

• Likely actual incidence of sickness is much higher: more than 12,000 persons (481 x 25) to about 18,500 (481 x 38.5)

• Investigations conducted by local, state, and federal officials identified Foster Farms brand chicken as the likely source.

• In October, U.S. Department of Agriculture’s Food Safety and Inspection Service (USDA-FSIS) issued a public health alert.

• Also in October, two Costco stores in California voluntarily recalled approximately 64,000 pounds units of rotisserie chicken products due to possible salmonella contamination.

• Center for Disease Control and USDA-FSIS recommend consumers follow food safety tips to prevent salmonella infection from raw poultry produced by Foster Farms or any other brand.

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Selected Outbreak Investigations 2013Center for Disease Control

http://www.cdc.gov/foodsafety/outbreaks/multistate-outbreaks/outbreaks-list.html

• Ready to Eat Salads – Escherichia coli O157:H7

• Chicken – Salmonella Heidelberg

• Raw Shellfish – Vibrio parahaemolyticus

• Fresh Produce – Cyclospora

• Crave Brothers Farmstead Cheeses – Listeriosis

• Pomegranate Seeds – Hepatitis A

• Tahini Sesame Paste – Salmonella Montevideo & Mbandaka

• Cucumbers – Salmonella Saint Paul

• Frozen Food Products – Escherichia coli O121

• Chicken – Salmonella Heidelberg

• Ground Beef -- Salmonella Typhimurium

Outbreaks in 2014

• Salmonella Heidelberg (January)

– Tyson brand chicken• 9 persons at a correctional facility in Tennessee • 2 (22%) hospitalized• No deaths reported

– Unknown Sources • 23 persons in 15 other states

Outbreaks in 2014

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

Government Responses

• Investigation• Tracking – Pulsenet, National Outbreak Reporting System,

etc.

• Information – Food Safety and Inspection Service, USDA; Center for Disease Control

– Public health alerts– Details on particular outbreaks– Guidance on how to prevent food born illnesses

• Recall of products• Factory closures• Criminal prosecution

Private Responses

• Retail company may voluntarily recall products and change sanitation practices.

• Individuals may limit or eliminate consumption of risky foods.

• Individuals may bring a law suit under tort law.

Jack in the Box Hamburgers1993

http://www.billmarler.com/key_case/jack-in-the-box-e-coli-outbreak/

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• After government investigation, 73 different Jack in the Box locations were linked to the E. coli outbreak, primarily in Washington State.

• The bacteria outbreak – sickened at least 700 people in four states– led to 171 hospitalizations (24%)– resulted in 4 deaths (.5%)

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• Local health departments as well as others had warned Foodmaker, Inc., parent company of Jack in the Box, to cook hamburgers to at least 155 degrees Fahrenheit.

• The company decided not to because it made the hamburgers tough.

• That decision became the core of a negligence claim against the company.

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• Brianne Kiner (9) developed hemolytic uremic syndrome (HUS).

• Permanent injuries from the infection include diabetes, asthma, brain damage and severe kidney problems.

• Brianne’s parents along with hundreds of others sued Jack-in-the-Box.

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• Brianne’s attorney, William Marler, obtained a $15.6 million settlement on her behalf.

• William Marler also represented hundreds of other victims in a class-action suit against the Jack-in-the-Box and Food Maker, Inc.

• Settlements for individual and class-action claimants reached over $50 million.

Jensen Farms CantaloupesSpring/Summer/Fall 2011

http://www.cdc.gov/listeria/outbreaks/cantaloupes-jensen-farms/index.htmlhttp://www.nytimes.com/2013/10/23/business/guilty-pleas-in-outbreak-of-listeria.html?hp

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

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• In October, 2013, two Jensen brothers pled guilty– To “six counts each of introducing adulterated food into

interstate commerce” – with potential prison time of six years and – up to $1.5 million in fines

• In January, 2014, a judge sentenced – both to five years probation– one brother to 6-months in-house detention and

$150,000 in restitution

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• Marler Clark, a law firm in Washington State, represents the families of 45 victims, 28 people who died and 17 people who survived.

• Marler Clark pursued compensation from at least 15 actors: Jensen Farms itself, food safety auditors, distributors, and retailers.

• Claims against Jensen Farms were resolved through bankruptcy proceedings after Jensen Farms declared Chapter 11 Bankruptcy in 2012.

• Claims against other parties are still pending in court. The total medical expenses to date are in excess of $12,000,000.

Plaintiffs’ Barhttp://www.marlerclark.com/

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Marler Clark Websitehttp://www.marlerclark.com/

Private law suits as a response to food safety challenges require:

• well-developed tort law

• attorneys willing to take the case

• strong judiciary

Should I eat the chicken?