Local food safety cop?: In which Bill Marler is compared to John Travolta, Ally McBeal, Julia Roberts, and 80s pop star Tiffany, all in one place

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.

41 Responsesto “Local food safety cop?: In which Bill Marler is compared to John Travolta, Ally McBeal, Julia Roberts, and 80s pop star Tiffany, all in one place”

  1. Ajay says:

    "But cut the head off of ’80s pop star Tiffany, and a shaved Britney Spears dome grows in its place."

    Is this supposed to be funny? Or is it just basic unthinking societal misogyny and desensitization to violence?

    Try the sentence using the names of people you love, and see why it isn't worthy of being included in this otherwise thoughtful post.

    Sorry - it just jarred me.

  2. Sam Spade says:

    I understand your admiration of Marler's Passion.  But the problem with Marler is he is in a for profit business that makes money by taking it from someone else.  It's a zero sum game and Marler is not making an addition, just taking from others.  When there are no bad practioners, Marler will just as zealously go after good practationers who made a mistake, probably leaving them too crippled to continue providing for the consumers who were dependant on them.  A major mistake of the Marler approach is to demand that a raw material be made into a perfectly safe, 100% foolproof consumer ready product.  We would get just as much mileage out of educating consumers, teaching them to safely handle meat and giving them an understanding that you get what you pay for when you buy food.  When you are willing to outsource your food preperation to unknown actors through low price outlets you are going to get a product that has little invested in it.  Educate consumers to know their providers and be willing to pay sustainable prices that will allow people in their own communities to make a living providing food.  The Marler approach does not lead to higher quality food, it leads to larger organizations who are better able to withstand his onslaught and go on.  Marler and his big judgements are helping to further consolidate the food industry, driving out smaller producers who can't afford the legal help to defeat him.  And larger producers do not produce safer food, they distribute their mistakes to a larger consumer group and when a problem arises, it is that much more damaging.

  3. Bill Marler says:

    To Sam - Sam, you have no idea who I am or why I do what I do.  You have no idea what I do with whatever money I earn.  Frankly Sam, your prejudices and your knowledge of how lawsuits function in our economy are simply full of E. coli.
    To Alison - Really nicely done.  I agree – for a lot of reasons other than food safety – that local, regional food makes a great deal of sense (you read Pollan's, aka " the food Jesus's, letter to Obama?).  My point was (perhaps not as well as I could) that with the rush (and there will be) to go regional and local, food safety can not take a back seat, or it will collapse.  A couple of small points, manufacturers, small or large need to be treated the same in relation to the victim.  No one group should be allowed to poison people to make a buck.  You do not know what I would give for 30 days setting policy for poultry, pork and beef manufacturers in the US.  I would but myself out of the "suing" business.  Re your concern about your local farm that went out of business after killing, yes killing four (I count the woman who miscarried), well, at least it is not China.  Finally, we shop locally, grow some of our own food, and I can count on one hand how many "mom and pop" producers I have sued in 15 years (yes, mostly raw milk folks).  Cheers, Bill

  4. I think many of your points are extremely well made.  I am also a fan of locally grown food, and also concerned about foodborne illness.  What I think is important about what Marler has said is that many people who are not involved in food safety make assumptions that because something is locally grown or home produced, it is safe and clean.  I think both ideas can co-exist - there can be a thriving local food movement, AND it can be supervised for safety.

  5. Ali says:

    Ajay, just to clarify - the Britney/Tiffany comment references Greek myth. Hercules had to defeat Hydra, the nine-headed beast, but every time he knocked one of Hydra's heads off, another grew in its place. If it makes you feel better, the first time I ever heard the phrase, it was about Geraldo and Sally Jesse Raphael, so it's kind of equal opportunity.
    But here I am, explaining a joke. A sure sign of funny.

  6. Polly says:

    I think Bill Marler's approach in treating "big" and "small" ag equally is appropriate.  Indeed, small farmers are more vulnerable, but the "smallness" also represents an opportunity to show true leadership in food safety, as well as sustainability and quality.  Unfortunately, the raw milk movement has planted its head in the sand with regard to food safety risks rather than addressing in an honest way the potential problems (and they are disproportionately implicated in outbreaks and sued relative to other small farmers...).  As the locavore movement grows, I hope folks are inspired by Bill's food safety advocacy, rather than being afraid of it, and choosing the path of denial (like big ag has done for years...).  Food safety practices are never simple, but on smaller farms they are much more straightforward compared with massive production.  There are costs for setting-up a sound food safety program from the farm to the market.  Things like testing for pathogens and indicator organisms are expensive and sometimes hard to interpret, but the smaller farm is in an excellent position to work with university extension programs and others to promote and perfect the best approach to protect the valuable food they are supplying.  Not simple and probably not cheap, but the bit of added costs and effort could pay off in the long run.  A local food/small farm model for food safety would be a wonderful accomplishment for the Year 2009. 

  7. Amanda Rose says:

    I wonder how prohibitive liabilty insurance is to the small producer. Our business is entirely different but 1M in liability costs about 3% of our operating costs. If I were producing raw milk, I'd put at least a zero on that amount. What does 10M in coverage cost? If a farmer is producing enough to have an outbreak in the first place, it seems like this is one of the first bills she would want to pay.
     

  8. So, what, our food supply is the TV sitcom "Cheers?"  Where everybody knows your name?  Ali, you can't honestly believe that Bill Marler should consider your magical romanticized relationship with your local farmer before he goes after a farmer who's killed someone...CAN YOU?
    Whether it's a huge conglomerate or a local farmer, if a food producer harms someone with a product, that producer should be penalized under the full spectrum of the law.  In America, we "forgot" to criminalize murder through food, so civil damages are the only recourse available to those who've been harmed.  Marler's pursuit of civil damages has helped bring attention to food safety as well as gotten Big Ag to significantly change their standards, in some cases.  That's a good thing, and it didn't happen by considering the feelings of people who've romanticized small producers.
    If we keep acting like the best thing about eating local is our palsy relationship with Farmer John, and we keep giving Farmer John a free pass because he's our pal...we're encouraging small farmers to fail, and Big Ag is going to retain its stranglehold on the foodchain.  Holding local producers and food creators to the same standards as everyone else, whether the food is straight off the farm or sold as a processed food at a farmers' market, is important to changing the way food is created in the US.  And it's vitally important for everyone who is promoting local and organic to start really getting interested in and activist about food safety.   It's counter productive for everyone--eaters, producers, sellers--to continue to act like food safety isn't of primary importance with smaller ag endeavors.  Our free market, capitalist economy is supposed to provide an environment that promotes competition based on quality--and surely "quality" means a food supply that's free of pathogens.  If you can't do this, whether you're a large or small growing operation, you shouldn't be selling your food to ANYONE.  End of story.
    Lastly, you negleced to mention the huge amount of time Marler has donated to educating others about food safety, around the globe.  He has an amazing record in that area.  It's clear to anyone who's paid attention that he is not in the business for the money.

  9. Bill Marler says:

    My hometown paper is covering this - remember, we have the Pike Place Market: http://blog.seattlepi.nwsource.com/devouringseattle/archives/158355.asp

  10. JC Costello aka Man of La Muncha says:

    *Our* hometown paper, Bill, *our*.  I'm sure that Pike Place Market is familiar to tourists and visitors to downtown Seattle, but we have a number of neighborhood farmers markets (Ballard, University, Columbia City, West Seattle, Phinney, Magnolia, etc.) in addition to the grand old market and the markets on the islands.  See http://www.pugetsoundfresh.org/farmers_markets.htm.

  11. Brian says:

    I have to agree with Sam on this one.  Litigation will never guarantee food safety, it will only guarantee that the food providers remaining are able to pay for it.  Certainly the mega-corporations budget for it every year.
    Bill, I'd be interested on your take on exactly how lawsuits function in our economy.  You could post here or link to something if this has been discussed already.  As I see it (prejuidiced, perhaps) you are essentially convincing public authority to extract someone's property through force and give it to someone else.  Personally, I'd prefer a more voluntary and contractual approach to conflict resolution.
    We do not have a right to risk free food.  It is impossible to gaurantee such a thing ever, no matter how many millions are extracted from violators through litigation.  We do have a natural right to choose where we get our food from.  The more we have to choose from and the more we know, the higher quality food will be available to us.

  12. Bill Marler, since Sam doesn't understand you can you please explain the details of who you see yourself being, what you do and what you do with the money you earn? I would be very interested in understanding your views on the these issues, on the prejudices and how you see lawsuits functioning in our economy.
     
    What I read in the papers about such things is discouraging. I don't understand how a small farmer or processor can function when the penalties for mistakes are so severe they are terminal. Do you believe that perfection is attainable? Ali almost had me liking you. Almost. Please explain so I can make that leap and understand fully.

  13. Jacki says:

    The fundimental problem with the idea of treating the big producers and the small producers equally is it will not happen. This is the same throughout industries. When a small producer, generally an individual, makes a bad mistake they are destroyed by our legal system. When a big producer makes a mistake they have the money to hire the legal power to fight back and even $5 billion judgments are nothing to them (exxon).

    What this gets down to is what is the concept of equal and what is fair and to whom. To give an example, if a person is killed by tainted food the judgment may be that million dollars is a fair payment. For the small producers that kills them, takes their farm, their home and puts them in debt for the rest of their life. The big corporations barely even notice that million dollars and their executives get no punishment, no jail time, no personal accountability, no pain.

    The reality is life is not fair or equal. It can be made proportional. If we are going to have judgements against big companies that they can so easily pay then the judgements against small producers should be proportional. If Tyson pays 0.01% of its 10 billion dollar revenues ($1 million) then a small producer should pay 0.01% of their 100,000 dollar revenues ($10). There is fair to the victim and fair to the producer both of which must be considered or all we'll have left are Tysons and Marlers.

    There should also be limits on payments to lawyers. There is way too much ambulance chasing going on and BillM is a culpret. His responses and self justifications just make him look dirtier. You are right though that if it wasnt him it would be someone else.

  14. Bill Marler says:

    Jeff - give me a call anytime next week 1-206-346-1890.

  15. Joe says:

    Jacki - 2008 saw 2 major meat processors - Agriprocessors and Hallmark Westland put out of business by their misdeeds.  These misdeeds appeared to be intentional, by the way.  So no one is giving them a free pass.  (Nebraska Beef does appear to have used political connections to have survived far longer that it probably should have - ask Whole Foods).
    As the owner of a very small USDA-inspected meat processing plant in the Mid-Atlantic region, I can tell you that almost all meat available in Farmer's Market's is very rigorously inspected.  I say almost all, because I know for certain that some individuals do on farm processing, and use various means to masquerade as fully inspected while selling at farmers markets, and thus likely at CSA's as well.  It is probably easier to masquerade well operating a CSA than it is to so at the Farmer's Market, so buyer beware.  That said, I suspect that the percentage of bad actors is very low.
    One concern I have with the comments in this thread, and the article itself, is the failure to distinguish between the role of FARMER and PROCESSOR.  They seem to be used interchangeably, with most folks assuming that local food goes straight from farm to table, with perhaps the occasional stop at a small retail outlet.  This may be the case with fruits and vegetables, but is rarely the case with meats and processed foods.  Dairy is a bit tricky, because they are frequently one and the same.  That appears to have been the case with the Listeria outbreak mentioned above.
    If people want stronger local food systems, they need to understand the role of processing, and the need for local processing plants.  These plants can help with the insurance issue, for example - few of my customer farmers carry even $1 million in insurance, yet I carry $3 million.  That gives them the ability to place food into schools for example, by selling through me.
    In spite of Sam's opinion, Marler is definately adding something to the system.  Its called accountability.  Its why all of my machines are taken apart every night and thoroughly sanitized by one team of individuals, and why they are inspected and put back together by a separate individual the next morning.  This kind of discipline is what is required to create a safe food system.  Take a look at Wall Street for an example of what happens to a system once accountability is removed.

  16. Joe,
    I read with interest that you own a very small USDA-inspected meat processing plant. I would be very interested in hearing more about your experiences as a processor. I am interested in building a very small inspected processing facility. If you are willing to talk with me I would be most interested. You can reach me via email walt...@sugarmtnfarm.com
    -Walter

  17. tai haku says:

    Walter wrote "What I read in the papers about such things is discouraging. I don’t understand how a small farmer or processor can function when the penalties for mistakes are so severe they are terminal."
    The penalties for food safety mistakes can indeed be so severe they are terminal....for the consumer. if you are making mistakes that could kill people perhaps you shouldn't be in the industry of providing food to people?

  18. tai haku says:

    PS the 2 "you"s in my last sentence should perhaps be read as "one"s - I wasn't accusing Walter or anyone else of negligence, just talking in the abstract.

  19. The reality is nothing is perfectly safe. We strive to make things as well as we can, be it in the software industry, auto industry, food industry or web design industry. Yet, nothing is perfect and you can not prevent all mistakes. Even our beloved USDA points this out in their HACCP/SSOP documentation - They talk about learning from the mistakes and taking corrective actions to help prevent the mistakes from happening again. They talk about risk assessment and management.
     
    The problem is that if the punishment for making the punishment for a mistake is terminal then there will be no learning. For example, a fly lands on my arm. I kill it. Has the fly learned not to land on my arm? No. The punishment for the action was terminal so no learning for the fly was involved. The next fly also has not learned. Perhaps you might argue, that through evolution, the species might learn not to land on my arm but that is a bit of a stretch.
     
    If you really believe everything must be perfect then perhaps it is time to stop eating, stop driving, stop living. Most unfortunate. The reality is nothing is perfectly safe so we go on muddling through.
     
    What we need is for people to be able to take risks if they want. You should be able to dive with sharks, play with scorpions, rock climb without protection, jaywalk, etc. Isn't that the whole point behind the raw milk issue? Personally I don't want to drink raw milk bought from someone else. I consider that too much of a risk for myself and my children. However, if you wish to buy and drink raw milk that is your choice and it should be your right. The government regulations and the legal system should not be getting in between you and your choices like they do in some places.
     
    Then we get into the interesting question of if you do something 'dangerous' you waive the right to sue? What responsibilities are you taking on. It gets interestingly complicated. While we're figuring this all out it would be nice not to kill off the small producers who are trying to do it right. I believe that is Ali's point.
     
    I also like the point about proportionality. What is a mere slap on the wrist to the big corporations kills the little guy dead - no learning involved.

  20. Ali- excellent post.  I get the same sentiment when I read Bill Marler's blog.  What I wonder is if Marler is against producers/processors/retailers who knowingly or via neglect sell food that is harmful and perhaps deadly, why is he not going after tobacco, alcohol, and some of the known carcinogens in food, such as Bisphenol-A, pesticide residues, rocket fuel, and the like?  The vigor in which he attacks the tiny raw milk industry would be so much more effectively placed on these giant meat-packeers who sicken and kills so many more.  Bill- please apply at change.org to help create policy and restructure the FDA and FSIS- that is at the core of some many of our food safety problems.

  21. Mark says:

    A lot of this will be moot, I expect, when funding for the courts that hear  high-profile, precedent-setting cases dries up and blows away. If I can look my local farmer in the eye on a regular basis, I'm as sure as anyone has a right to be that my food is going to be pathogen-free.

  22. Jackie says:

    Thing is, farms have germs.  The idea that somehow we should make a farm pathogen-free is frightening and absolutely wrong.  Obviously raw milk absolutely needs to be handled with utmost sanitation.  But when we take this brush and paint it over all livestock farms, we are crossing a line.  We must be careful to distinguish between what practices livestock farmers can use to ensure the safest, most nutritious food (organic, small-scale, humane, etc.) and the practices livestock processors must use to ensure the same (sanitation, small-scale production, humane handling, etc.).   When you look your farmer in the eye, ask him or her what they're doing to ensure you're purchasing the highest quality, most nutritious product.  But don't expect them to reassure you that their farm is pathogen or germ free.  It isn't.  Nor should it be. 

  23. Spinner says:

    I'm new to this blog and to being a SOLE food eater. I live in Austin and have a lot of locally produced dairy, meat and veggies available. I've definitely learned a lot from these posts and comments. It's nice to find a group of people discussing these issues intelligently with minimal emotion (not to be confused with minimal passion), despite how emotionally charged I'm sure some of you feel on these issues.
    I would like to know how the listeria contaminated(?) the raw milk in the dairy that was shut down. Was it due to unsanitary milking or handling of the milk? Or is listeria one of those things that you can't detect or prevent until it's too late? I just signed up to get raw milk and am very curious about this issue.

  24. Bill Marler says:

    "The first thing we do," said the character in Shakespeare's Henry VI, is "kill all the lawyers." Contrary to popular belief, the proposal was not designed to restore sanity to commercial life. Rather, it was intended to eliminate those who might stand in the way of a contemplated revolution - thus underscoring the important role that lawyers can play in society.
     
    I believe in the civil justice system - it is not perfect - but better than most.  I also believe that if a producer of food poisons a child they should be held accountable - ConAgra or a raw milk farmer.
     
    My point that started all this anger, is that local producers will become a bigger part of the food supply (and they should).  However, just because they are smaller, does not mean they should be insulated from making food safety a part of everything that they do.  Fact, in 15 years of litigating food cases, guess how many "mom and pop" operations I have bankrupted - zero.  How many farmers' markets have I sued - zero.  Take a deep breath all you folks with so much anger.
     
    Here is a speech I recently gave that those that (no matter what I do) feel I am evil will enjoy:
     
    http://www.marlerblog.com/2008/12/articles/lawyer-oped/china-and-food-safety-what-i-learned-about-the-us-legal-system/

  25. Bill Marler says:

    I forgot - I might be changing jobs - perhaps you will get some other lawyer more to your taste - outside chance, but "Change is coming."  http://obamafoodorama.blogspot.com/2008/12/bill-marler-best-hope-for-rapid-change.html

  26. Bix says:

    The food co-op Manna Storehouse didn't want to get a license.  The state wanted them to.  After a year, the state closed them.  Manna said it was unfair.  Some of Manna Storehouse's beef was discovered in a food service freezer at Oberlin College.  I don't understand why a food co-op that knowingly distributes meat to a College shouldn't be licensed and inspected.
    http://www.crossroad.to/articles2/08/swat-team.htm

  27. Barb Kowalcyk says:

    Given the discussion, I thought it might be useful for everyone to hear from a victim.  It is often easy to forget about the consequences to consumers when contaminated food reaches the marketplace - regardless of the source.  

    In August 2001, my 2 1/2 year old son died from complications due to an E. coli O157:H7 infection.  He went from being perfectly healthy to being dead in 12 days.  The autopsy later showed that he died from gangrene of the large and small intenstine, which is a horrific way to die.  Distraught, our family went searching for answers - we wanted to know what had caused our beautiful child to die such a violent death. 

    First, we turned to our state and local health departments who basically told us to go away.  Then we called the CDC who told us they couldn't help without the state asking them to.  We finally found Bill Marler - and he was the only one that was willing to help us.  Two years later - after several threatened lawsuits (against USDA) and getting our congressional representatives involved - we finally learned that our son's PFGE pattern matched that of a meat recall (on two enzymes) around the same time. 

    To make a long story short, a year later Bill flew out to inform us that, knowing our goals, he thought it was time to drop our lawsuit.  He knew we were never interested in the money.  We simply wanted an apology and to force the company responsible for producing the DEFECTIVE product that killed our child to either change the way they do business or get out of business.  In the end, Bill Marler spent three years working on our case and never got paid a penny for it.  I wish I could pay him for the peace he has brought our family - but there isn't enough money in this world to do that. 

    I wish we could have held that company accountable - they've had several more recalls since my son's death.  Accountability fosters responsibility.  Unfortunately, our food protection system does not foster responsibility and that needs to change.  Accountability and responsibility need to built into the system - regardless of where the food came from.  Bill - and others like him - are trying to put accountability into the system.

  28. Sam Spade says:

    I agree that when a consumer buys processed food marked USDA inspected the consumer should be able to assume that it is USDA inspected the food and that USDA approved processes that were used to produce the food and that companies that claim USDA approval should be held accountable if they negligently or fraudulently fail to adhere to applicable standards.

    I also agree that the USDA inspection programs have been trimmed to the point that they are nearly non-existant precisely at a time when the USDA is working to open our domestic markets to foriegn providers. 

    But I don't believe there should be no choice in the market place.  I don't believe consumers should be prevented from buying food in the form that they wish by the governemt.  If a consumer wants to buy raw food and there is a supplier willing to sell it, the government should not be preventing the two of them from making an exchange.

    I am sure there will be people who choose to stay within the confines of USDA inspected foods and the restrictions that places on the food they buy.  And if a provider of USDA inspected food is found to be negligent, there is nothing wrong with holding them accountable.  But that should not mean that everyone is confined by the choice of those individuals.

  29. Mary says:

    The number and intensity of posts here makes me think that Marler's positioning of this topic as number two on his list of Top 10 Food Safety Challenges of 2009 was exactly right.  In re-reading his original post, the information was compiled by speaking to a number of people in the food safety community, and it was presented as a list of challenges, not "Here's who I'm going to sue in 2009".  And it will be challenging - how does the small grower/producer protect his(her) product, customer, and bottom line?  It's a question that all businesses have to answer to survive.

  30. Andrea Stibbens says:

    My condolences to you. It is a terribly sad thing to lose your child. There is a interesting e coli fact sheet at http://www.oregon.gov/DHS/ph/acd/diseases/ecoli/facts.shtml and one of the things they talk about is proper cooking. failing to properly cook food is a big problem just like failing to drive on the right side of the road or failing to unload a gun or what ever. But we dont blame the car manufacturer. it is the drivers fault. It sounds like you should blame the cook. if the food had been propely cooked then it should be safe as ecoli is killed by proper cooking. I think this is the reason some people are agaist the whole raw milk thing since it doesnt get cooked and is a great place to grow bacteria. I gues this is sort of like freedom of religeon.
    Andy

  31. Ali says:

    Barb, thank you for commenting and sharing your devastating story. I have a two and half year old daughter; I can't tell you how your experience moves me.
    I don't advocate "no standards." That was never, ever my point, and Eddie is wholly incorrect in assuming that I give my farmer a free pass because we're pals, or because we have some magical romanticized relationship. The exact opposite is true; I buy locally, because then I can scrutinize the process.
    That's not an option from the large suppliers, and it never will be. The current system of inspection has failed, again and again (remember that Westland Hallmark, the group that released downer cows into the food supply, had a full-time USDA veterinary medical officer assigned to the facility AND a full-time official from the USDA’s Grading Service at the operation, AND they'd had 17 third party audits, 12 internal audits and weekly humane handling audits AND they had been named Supplier of the Year for the school lunch programs by the USDA).
    Given this, scrutinizing how the product is made, talking with the farmers who make it, is, I feel, my best hope, my childrens' best hope, in a world that is teeming with life-threatening pathogens. I'm not looking for Cheers. I'm looking for the least-terrifying option.
    It pains me to think that the company that killed Barb's child is still out there, releasing their (apparently still contaminated) product. That's the heart of my concern; that the companies that care the least will be the last ones standing. It's a tremendous conundrum.
    One other point, for Spinner: the small dairy that closed its doors wasn't actually a provider of raw milk. They pasteurized their product. To my knowledge, inspectors never actually figured out how the listeria entered the product. It was either carried in on workers' shoes or clothes, or it somehow entered the hoses used for cleaning. There's no doubt that it came from the dairy, but it wasn't an obvious path, last I knew. That's the insidious thing about these bugs. We all choose our best path to avoid them.
    Barb, I wish your family peace, as much as is possible. Thank you again for commenting.
     

  32. Ali says:

    One last thing, for Andrea, whose comment hadn't appeared before: if GM knowingly released a car with faulty brakes, we absolutely would hold them accountable, as we should.
     
    Many of these food processors have deliberately embraced a model that increases, rather than decreases, pathogens. They feed their animals low-quality feed that actively fosters food-borne illness (read about the connection between E.coli and corn, and particularly distillers grain). They then process the meat at lightening speed, in unsanitary conditions, often using untrained workers. Then they load that now-contaminated meat onto a truck, or a series of trucks, where it passes through many hands, and it can take upwards of a month, no lie, to reach the consumer.
     
    They didn't choose this model by accident. They chose it because that's how they make the biggest profit. They chose it knowing the risks. And they chose it knowing that they they supply the majority of the nation's food supply. That's what I mean when I say that companies choose earning statements over people's health. Like Nebraska Beef, not recalling their meat for weeks - weeks! - after it had been linked to E.Coli. Then to add insult to injury, they wave fact sheets saying "but you didn't cook it to a high enough temperature. Not our fault."  But meanwhile, they have deliberately chosen a model of carelessness for their own financial gain. That's why Barb wanted to hold the company accountable. They profited, and she lost her child. Blaming the cook for that misses a really important point.
     

  33. MaryAnn says:

    I think you credit Marler too much. His crusading is not equal-opportunity. Based on what I've read at his blogs and his comments elsewhere, I believe he's in it for his own gain, mostly. And when his own gain requires getting along with the government regulators, who are owned by Agribusiness, then it means Marler will, in the end, be promoting Big Ag by going after Mom & Pop. There is no equivalence between suing a Hallmark vs. Whittier, because the Whittiers wind up setting the example that scares Mom & Pop out of taking the risk of a potential Marler-type law suit. The big guys never wind up paying anywhere near as much as their profits. They never go out of business. They will still be there for the next Marler suit, with their deep pockets. But the more suits Marler files against small farmers, the fewer options we will have, as others take heed, and stop producing, out of fear of economic ruin. The insurance industry probably assists, by refusing to insure Mom & Pop. Marler has stated that he is pro-irradiation. What does that imply about his allegiances? Is he for healthful food, or merely decontaminated/sterile food? And here's what he had to say about the Hallmark recall: "Why is this not really a food safety story?  Because no contaminated meat or illnesses were documented." I interpret this to mean that he's pro-CAFO, as long as no illnesses can be traced back to them. Maybe that means he's pro-NAIS also? Of course, it's always easy to document the source of illness from Mom & Pop, the low-hanging fruit. In short, I believe that Marler is pretending that he's an equal-opportunity litigator, because his methods serve Big Ag, in the aggregate. I have yet to read any statements by Marler promoting the healthful attributes of food grown by small producers, over industrial food.

  34. Bill Marler says:

    It is against the law to have E. coli O157:H7 in or on beef hamburger or beef that may be turned into hamburger.  If it has E. coli on it, it is defective.  What makes E. coli O157:H7 truly and decidedly deadly is its very low infectious dose,  and how relatively difficult it is to kill these bacteria.   Unlike Salmonella, for example, which usually requires something approximating an “egregious food handling error, E. coli O157:H7 in ground beef that is only slightly undercooked can result in infection.”   As few as twenty organisms have been said to be sufficient to infect a person and, as a result, possibly kill them.   And unlike generic E. coli, the O157:H7 serotype multiplies at temperatures up to 44° Fahrenheit, survives freezing and thawing, is heat resistant, grows at temperatures up to 111° Fahrenheit, resists drying, and can survive exposure to acidic environments.

    And, finally, to make it even more of a dangerous threat, E. coli O157:H7 bacteria are easily transmitted by person-to-person contact.   There is also the serious risk of cross-contamination between raw meat and other food items intended to be eaten without cooking. Indeed, a principle and consistent criticism of the USDA E. coli O157:H7 policy is the fact that it has failed to focus on the risks of cross-contamination versus that posed by so-called improper cooking.   With this pathogen, there is ultimately no real margin of error, and the cost of error can be death.  It is for this precise reason that the USDA has repeatedly rejected calls from the meat industry to hold consumers responsible for E. coli O157:H7 surviving the cooking process.

  35. farmboy says:

    I want to follow-up on a point that I've only read once in this string and that shouldn't be overlooked:  The Massachusetts listeria outbreak in 2008 that resulted in three fatalities was transmitted through pasteurized milk and NOT a raw milk product.

    I have general reservations about the effectiveness of litigation and its lottery-style allocation of justice to contribute to the ongoing elevation of the standards of practice.  For example, has past fifty years of malpractice litigation in our society actually improved the service that doctors provide?  Or have doctors become reactive, defensive practitioners who avoid high risk specialties and procedures? Take a look at the incidence of Caesarian deliveries over that time period.  I have no grievance with Mr. Marler and respect the sincerity of his desire to help people who have suffered  great loss from food borne illness.  I do believe, however, that hyper-sensitivity to food borne illness is driving our culture to make ill-informed decisions based on an inaccurate assessment of risk. I prefer a more libertarian approach to decision making that affords individuals the opportunity to weigh risks and benefits, act accordingly and live with the consequences.  For example, I find it preferable for people to consume non-pasteurized milk and cider - should they choose to do - even if we know that some level of disease transmission is inevitable.  I do not say that to be mean or inconsiderate to those who have suffered personal loss that they feel may be due to the negligence of others.  I have not walked in their shoes and don't pretend to have.

    Final point - I have come to believe that it is not the outliers that slip through the food safety system - for example, the Massachusetts listeria strain that kills three but whose source is never identified - that constitute our greatest health risk.  As a society, we are suffering far more grievously from the cumulative effects of the excessively processed food ( some of which is done for safety reasons, some for reasons of shelf life, and most simply to sell cheap ingredients for the highest price possible) that we find front and center in our grocery stores. 

  36. Bix says:

    Is this then an argument against small food producers adhering to food safety regulations?

  37. Barb Kowalcyk says:

    Just a couple of points that I'd like to clarify from my post. 

    First, we used safe food practices but it wasn't enough to protect our child.  As Bill said, O157 and other STECs are incredibly dangerous and the infectious dose is quite small.  The fact is that if food manufacturers and government - with their microbial testing and SSOPs - can't control foodborne pathogens, then how could they possibly expect me - or any other consumer - armed with a meat thermometer and kitchen cleaner - to do it.  Remember, the consumer didn't put the pathogens there and would not knowingly buy products that contain them.

    Second, cooking isn't the fail-safe that everyone thinks it is.  In 2003, the Journal of Food Protection published the results of a study by Rhee et al that evaluated the effectiveness of cooking ground beef to an internal temperature of 160 degrees using consumer style cooking methods.  Using one popular cooking method - and after achieving 3 internal temperature readings of 160 degrees, 22% of the hamburgers still contained live E. coli.  As a statistician, I'll tell you that the sample size in this study is too small to demonstrate that the other 2 cooking methods used in the study are more effective but it certainly demonstrates that cooking doesn't always work.

    Third, I would agree that litigation may not be the most effective way to hold companies accountable - it certainly didn't in our case.  But it currently is the only way we have to do it.  A USDA Economic Research Service Report (Product Liability and Microbial Foodborne Illness) talks about how the food industry is uniquely protected from the three forces that should drive food safety:  market forces, food safety laws & regulations and product liability.  Many have long advocated for civil penalties against food producers that trade-off food safety for profits.

    Finally, through my non-profit (http://www.foodborneillness.org), I have advocated that consumers need information so that they can make educated choices about what they feed themselves and their loved ones.  I have always been reluctant to tell people what to eat.  I do tell them that they need to know what the risks are - and the reality is that foodborne illness is NOT just a bad tummy ache - and make decisions based on that.  But the reality is that consumers don't have complete information in the market place - remember, you cannot see, taste or smell these pathogens - and when that happens, the free market fails and the government needs to step in to protect consumers. 

    I personally support the idea of local food - but I'm always quick to point out that I don't do that because I think it is safer - because I don't.  I support it because "anonymous" food does not encourage accountability and responsibility.  In fact, my organization advocates that consumers use six safe food practices:  1.  Use Safe Water and Raw Materials (as recommended by WHO) - which includes knowing the source of your food 2.  Separate.  3.  Clean.  4.  Cook.  5. Chill 6.  Report foodborne illness.  Sadly, the our government and many food safety educators leave out the first and last - which are critical. 

    In closing, I just wanted to reiterate what I think was Bill's main point in the first place.  We have a huge population - over 300 million people - in this country that needs to be fed and we have environmental issues that need to be dealt with.  The challenge will be how to feed everyone, protect our environment and keep the small farmer in business because they are very important to our economy.  Food safety needs to be part of the equation and can't be sacrificed. 

  38. mark mcafee says:

    Bill and others,

    The more a processor attempts to control or kill a pathogen the worse it gets. The same thing happens in your gut....try to kill them and you will get more of them.

    Does this sound like reverse intelegence...perhaps not. Look at the data. When sterilizers ( Quat Ammonias and others )are used in Australia 66% of the pasteurized milk creameries show listeria in their environmental pathogen tests ( Dr. Ron Hull PhD Australia  ). This is becuase pathogens love a vaccume. If however,  if organic acid producing  bacteria are allowed to grow and flourish pneudamonas and listeria can not live. That is one of the reasons why pasteurized milk can be so very dangerous and why raw milk has demonstrated such a good safety track record.  Those same good bacteria do the same thing in your gut and keep pathogens in check. Antibiotics destroy this balance and pathogens kill when this happens.

    Let us all remember that Ecoli 0157H7 was a product of GMO and Antibiotic abuse in the 1970's. Prior to 1975-1977 it was not even known as a possible infective pathogen. So lets blame the right people....lets blame biotect and drug companies for the retarded antibiotic resistant offspring ( superbugs ) created by their destructive drugs and processes. Lets also blame the FDA for their corrupt prodrug policies and short visioned concepts of creating an immune depressed America.

    Also....remember that Whittier farms in MA  killed four humans with award winning safe pasteurized milk. It was not raw milk. They never intended for that to happen ever... This tragedy is not their fault it is the fault of political science and the idea that sterile is somehow better. If Whittier Farms knew that their floors could harbor listeria they would be using probiotics on the floors instead of foaming agents and quats like most paranoid pasteurized places do.

    Sterile is the step right before death. We need good bacteria in our diets and tons of them to combat the antibiotics and sterilized and preserved foods that crowd out American plates and diets.

    Marler is a good guy and I respect his passion and spunk. He plays an important part in caring for families in distress with sick kids in ICU's. He is the knight in shining armor on the darkest day of a families life.

    I take a different position....what if we did not have sick kids in ICU's because we did not have weak immune systems.

    This is the new frontier.

    Sorry Bill.... there is less money to be made in court rooms with prevention and good solid biodiverse nutrition. Farmers make the money instead. I invite you to engage the real enemy...the FDA and its corrupt policies and the drug companies that kill with impunity and are excused when they do.

    Thats the place that prevents tragedy. Thats where you are needed and needed badly. You are actually supporting more of this perfect storm of further sterilized immune systems and sicker and sicker kids. that is the wrong way....recheck your GPS and change for the good of us all.
    We need a knight in shining probiotic armor to slay the dragons at the FDA and Biotech and bring us hope for healthy kids that have strong immune systems and robust ability to fight infection.  This comes from whole food nutrition. Unprocessed and whole with all the organic left in it.  

    All the best,

    Mark Mcafee
    Founder OPDC Raw Milk Producer
    Fresno CA

  39. Mary says:

    Barb,

    I read your son's story on S.T.O.P.'s website.  My heart breaks for you and your family.  I know first hand the suffering caused by E.coli 0157:H7 turned HUS.  It is horrific....a journey to hell.  Our son was seven when he became ill and spent two months in the hospital.  We are one of the lucky families because he did survive.  Thank you for  all the work to do to educate people about foodborne pathogens.

  40. Heather in Oregon says:

    I am coming in to this late...but as the new owner of an established dairy goat herd I can tell you that I am taking every step to ensure that our product is top notch.

    Want to know how I found this blog...I was googling "small dairy liability insurance".

    We haven't made one sale yet because I have not purchased liability insurance. We also are working out the details of clean milk handling and I am dragging my feet until I am sure we get it right.

    As a potential producer of raw goat milk that will be consumed by humans I can tell you that I take the health of my customers very seriously. I and my family will be drinking the same milk our customers do.

    Bill - I hope we never meet on opposite sides of the courtroom! But otherwise, keep up the pressure on the big guys. Now if you could do something about the imported junk from China that taints our food supply that would a feat!
    Cheers,
    Heather