“Mr. Dole, Mr. Fresh Express, I might suggest a good lawyer.”
That’s the advice of Bill Marler, probably the nation’s foremost food safety litigator, in a column from December 23.
The column appeared in Food Safety News, a news source operated by Marler’s legal firm.
Marler cites two recent issues, both having to do with bagged salad greens. On December 21, Fresh Express recalled several brands of packaged salad products. Between July 26 and October 19, 10 were reported sick with Listeria monocytogenes in 8 states, with 1 death reported as a result of eating these products.
Last week, Dole announced the recall of all Dole-branded and private label packaged salads processed at its Bessemer City, NC, and Yuma, AZ, processing facilities. Again, the culprit was Listeria monocytogenes infections. In this case, 16 were reported sick, with 2 deaths, in 13 states.
Dole is also suspending operations at both facilities “to conduct an extensive cleaning and sanitation protocol,” according to a company press release.
Although safety concerns have dogged the leafy greens industry for the past 15 years, there were hopes that difficulties involving cut, bagged greens had for the most part been solved. The biggest scares in the last three years have come from whole romaine heads infected with Salmonella as a result of contamination from nearby animal operations.
These recent outbreaks suggest that the industry may not have completely won its battle for safety with bagged greens.
“The legal jargon aside, if you are a producer of food and knowingly or not sell adulterated food, you can (and should) face fines and jail time,” writes Marler.
An article by Dan Flynn in Food Safety News highlights changes in food safety monitoring.
Over the decades, Flynn indicates, voluntary recalls by producers have largely supplanted mandatory recalls by the Food and Drug Administration (FDA).
FDA has not been “shy about flexing its recall muscles,” former FDA Commissioner Scott Gottlieb has said. “It’s just that most companies collaborate with the FDA to initiate voluntary recalls of hazardous food products rapidly.” According to Flynn, since 2011 the FDA has only used mandatory recall three times: in 2013, 2014, and 2018.
In the cases above, the infections were first reported by public health agencies (such as the Georgia and Michigan departments of agriculture), which then prompted company action.
Some in Congress, including Sen. Kirsten Gillibrand (D-NY) and Rep. Rosa DeLauro (D-CT), have called for more mandatory FDA recalls.
U.S. food safety now rests on a three-legged stool: (1) government and industry regulation; (2) the prospects of litigation; (3) companies’ fears of damage to their reputations.
Some critics assail this current mix of public and private monitoring, saying it gives too much power to the industry.
This may or may not be so, but the American approach provides safe, high-quality products to hundreds of millions of people in this country and abroad. If you suffer from a food outbreak, it may not be comforting to think that you are in a tiny minority, but this is the case. Even in the cases reported above, the numbers of illnesses and deaths have ranged from one to two figures.
Even so, food safety is never a problem that is completely or permanently solved.
