With regulatory agencies underfunded and outgunned by private companies that put profit before quality, are lawsuits the last, best defense of food safety in America? Yes, according to a new report by the American Association for Justice.
John and Pat McKissick became food safety advocates after John contracted listeriosis. They helped announce the new report at the AAJ press call. John and Pat are clients of attorneys at Pritzker Hageman.
The report, Food Safety and the Civil Justice System, looks at a our food system which annually sickens 48 million Americans at a cost of $77 billion and asks how producers of food responsible for 128,000 hospitalizations and 3,000 deaths every year are held accountable.
“The civil justice system is not just the major deterrent to negligent behavior, it also serves as the most effective tool for rooting out systemic problems in the food chain. While regulators’ investigatory efforts are limited to the external factors of the food chain—for instance tracking genetic links between the sick and the food consumed—private attorneys frequently use discovery to compel producers, suppliers, buyers, and auditors to disclose inside information, which helps to trace the specifics of how food was allowed to become contaminated in the first place,” the report states.
The power to compel food producers to disclose information contrasts sharply with that of regulators, “who are often restricted to asking the guilty party for nothing more than a voluntary recall with no admission of negligence. Even regulators themselves recognize the need for private litigation.” Michael R. Taylor, the FDA’s highest-ranking food safety official, described litigation as “a central element of accountability,” the report’s authors write.
A summary of ten notable outbreaks shows how litigation spurred change.
For example, the 2002 Jack-in-the-Box E.coli outbreak, created greater awareness of proper cooking temperatures for ground beef and prompted the U.S. Department of Agriculture’s Food Safety and Inspection Service to declare E. coli O157:H7 an adulterant in ground beef, forcing producers to test for the pathogen or face criminal penalties.
The Pilgrim’s Pride Poultry Listeria outbreak of 2002, which sickened 46 people, caused three miscarriages and killed seven people, led to changes requiring producers to test and hold lunch meat products for Listeria.
The Peanut Corporation of America Salmonella outbreak of 2009, which killed 9 people, led to the first ever federal felony conviction of a company executive in food safety case. PCA president Stewart Parnell authorized product shipments knowing they were contaminated with Salmonella.
“This report highlights problems and issues we confront on a daily basis successfully representing survivors of foodborne illness,” said food safety attorney Fred Pritzker. “In too many outbreak cases, the fault of the processor is often abetted by the systemic failures of our food safety system. I can’t tell you how many times I’ve heard “We have the safest food in the world.” Tell that to the millions of people who get food poisoning each year.”
How can we strengthen the system? The report’s authors say Congress should classify multi-drug-resistant Salmonella strains as adulterants and pass legislation to create a single agency to oversee food safety. They recommend food producers implement random testing programs and begin vaccination of herds and remind consumers to use good handwashing practices, avoid cross contamination, use a food thermometer to make sure meat and poultry are cooked to safe temperatures and regularly sanitize kitchen sponges.
