Earlier this week, Bill Marler, the attorney who’s earned oodles suing food companies for selling products contaminated with E. coli and other pathogens (his wife's car even sports an ECOLI license plate), published his list of top 10 food safety challenges for 2009. Most of these items made me nod my head vigorously. Improved communication, yes! Zoonotic diseases and country of origin labeling — yes, yes!
But I kept coming back to the #2 item. This item, second only to the globalization of our food supply, was “local food.” Under this heading, Marler targets:
Outbreaks linked to local food and/or farmer’s markets. Community Supported Agriculture (CSA) groups and food co-ops need to demonstrate knowledge and practice of food safety, and be inspected. In addition to produce and meats/fish, prepared items are currently unsupervised.
Now it’s possible that some Ethicureans are growling at the mere mention of Marler’s name. It’s true, he has come out in opposition to raw milk, one of the sacred cows (pun intended, but with a groan) of the local-foods movement. And yeah, Marler — who, for the record, shops locally and grows some of his own food — has gone after small, local producers with the same gusto with which he takes on fast-food chains and large-scale meat processors.
But the truth is, I really like the guy. I like him because he’s witty; I like him because he’s passionate. I like him because in two sentences, he effectively framed for me — better than anyone else had, ever before — what’s wrong with the meat industry telling consumers they simply need to cook the pathogens out of their food:
The Meat Industry believes that it is the consumer’s responsibility to get cow shit out of its product. Seriously, can you think of one consumer product that the manufacturer expects you to fix it, AFTER they make it, and BEFORE you use it.
(The logic: so simple, so beautiful. Read his post on that topic here.)
Mostly I like him because I believe the man is perhaps our best hope of bringing real change to the meat industry. Sure, I can blog my brains out about industrial meat, and CAFOs, and downer cows — "Hey, dirty meat industry! I’m so mad I’m gonna’ blog about you in between a post on swiss chard and one on cauliflower! Take that!" But the meat industry? It doesn’t notice me. Not one bit. For them, I am no more worthy of attention than a downer cow on the slaughter line at Westland Hallmark would be.
Bill Marler, on the other hand, speaks their language. To paraphrase John Travolta-as-Jan-Schlictmann, money is how companies apologize for their wrongdoing. When it comes to unsanitary processes and tainted product, Marler can make these companies very sorry indeed.
But let's get back to those local farms. Let's take one farm as an example — a small dairy farm, Whittier Farms, in Shewsbury, Massachusetts. That's not far from me. Last year, Whittier Farms was forced to to close its doors after a listeria outbreak left three adults dead and caused a pregnant woman to miscarry. Marler represents one of the victims' families. It's a terribly sad story, but it shouldn’t surprise us. We know that our beloved small, local processors aren’t magically immune from foodborne pathogens. After all, one of the main rationales we offer for eating locally is the comfort that if an outbreak of food contamination does take place, we can identify the cause and stop it much more easily.
See, right there, we’re saying it. We’re acknowledging that outbreaks will occur. Eating can be a risky business, no matter how many food miles are involved.
And I get where Marler’s coming from, the idea, when he says — as he recently did in an Ethicurean comment — “if I have a legitimate client sickened by a food product, it frankly does not matter if the manufacturer is Con Agra or Mom and Pop. A child who suffers kidney failure or death certainly does not care who poisoned them.”
(And he’s right, though the cynic in me also recalls the words of Richard Fish, the fast-talking lawer-boss of Ally McBeal: "Somebody’s dead. There’s money.")
But here’s the thing that really worries me: that it is precisely because of local foods’ virtue — that when an outbreak occurs, it is easier to identify the source and contain the outbreak — that makes small-scale, local producers the easiest to sue. And given the nature of these businesses — they are small, mostly operating close to the margin, and unlikely to have Tilda Swinton on retainer — these are the producers are most vulnerable to closing their doors.
The irony, of course, is that these small-scale producers are often the most responsible. By all accounts, the owners of Whittier Farms did everything they could to ensure a quality product. They treated their herds well. They provided their cows access to pasture, reducing the risk of pathogens like E. coli, and boosting their milk’s nutrition and overall quality. They didn’t feed their cows artificial hormones. They genuinely cared. When listeria was detected, they did everything they could to cooperate.
At the opposite end of the spectrum are the industrial providers who issue denials and obfuscations, who resist accountability at every turn. There are many examples, but let's take one: Nebraska Beef. In mid-June of last year, Nebraska Beef was informed that some of its meat had tested positive for E. coli, because — in the words of the USDA Food Safety and Inspection Service— the meat had been produced under “unsanitary conditions.” Despite its meat testing positive for a pathogen that causes kidney failure or death, Nebraska Beef didn’t feel this information necessitated a recall until weeks later — a response so slow that Marler questioned whether it warranted criminal sanctions. Then again, this is a company that recently sued a church for not cooking their meat to a high enough temperature when congregants were sickened by tainted meat. Marler is rightfully hitting them with everything in his arsenal.
But look what’s happened here: two companies released contaminated product. One was a careful provider who did everything it could to offer a quality product, and everything it could to comply with the investigation. The other was less responsible, less careful, and less compliant. Who’s left standing today? Who’s still supplying food to families today? Who’s not?
And herein lies a true dilemma: that those producers who are most transparent, and from what I’ve seen, often the most responsible, are the most vulnerable.
I think about my own CSA, my own local dairy, my own farmers market. I can tell you — and I can tell you, because I have been there, I have seen the food produced with my own eyes — that these growers care very much about the quality of their food. Unlike the large-scale processors, they put that quality above their financial interests day after day after day. But I also know that there will always be things I can’t see when I visit the farm. I can see how and where organic matter is composted, where pigs live relative to where lettuce is grown, where food is stored, and how it is washed. But there are many things I can’t see. Pathogens are invisible, and they are insidious. I know this.
Still, I want this food. I want to be able to choose this food, as it is — fresh from a good farm, no irradiation, no acid baths, no shenanigans.
Some locavores might wish Marler would go away and leave our small-scale dairies alone. But cut the head off of '80s pop star Tiffany, and a shaved Britney Spears dome grows in its place. Had Marler declined to sue Whittier Farms, another attorney would have happily taken his place.
However, Marler stands out, because he sets precedent. And it wouldn't surprise me if someday he set policy as well.
So to Bill Marler — guy whom I really basically like, a guy who makes me laugh, and a guy who often makes me cheer, and a guy whom I believe represents great hope for our national food safety — I say this: please proceed cautiously as you target small-scale producers. I agree with you: a family who loses a loved one to listeria from a small dairy is just as grief-stricken as one that loses a relative to a fast-food chain. And I know that if I lost my own child to E. coli, listeria, or salmonella, I would be wild with rage. But Bill, as you move forward, please keep me in mind.
I don’t expect my neighbors’ food will be 100% free from pathogens. For me — and I suspect for many of us who buy locally — I am grateful simply to know the farmers, grateful to know that these farmers genuinely make whatever efforts they can to ensure the safety of my food. I can go to the farm; I can see this. I know that if there is an outbreak, it will be swiftly contained, and it won’t require the months-long forensic detective skills that must be employed with national outbreaks. For me, it is enough to know that the supply chain is short, and that companies like Agriprocessors, Nebraska Beef, and Westland Hallmark — who, unlike my farm neighbors, value quarterly earnings statement above the health of their customers — never, ever touched my kids’ food.
Besides, if you truly want to bring down the incidence of death from foodborne illness, I’m not sure my neighbor who makes tomatillo salsa in her kitchen, or my local supplier of pastured chicken, would be the place to start. Not when almost 84 percent of the beef consumed in the U.S. is slaughtered by four companies. Not when 64% of hogs are killed by four companies. Not when two plants process 75% of the nation’s pre-cut salads. Not when a mere five companies control half of U.S. supermarket sales.
After all, the difference between a crusader and the kind of attorney that appears in most lawyer jokes — the difference between Erin Brockovich and Lionel Hutz — is simply this: a crusader goes to where the biggest difference will be made. The other kind just goes after the fastest cash.
And if all of our small providers go the way of Whittier Farms, if the cost of producing quality food for informed consumers becomes prohibitive, or even if potential quality small producers are too intimidated by the risks of potential lawsuits to even open their barn doors for business — then as a nation, we will be left only with the kinds of producers who can afford to fight the likes of Marler Clark LLP. Make no mistake: these will be the large-scale agriprocessors — Nebraska Beef and Hallmark Westland Meatpacking Company and IBP and Smithfield Farms, and the like.
Which would be a very grim day for food safety indeed.