How to Keep Food Free of Salmonella: Lawsuits
September 7 2011
In an August, 2011 Atlantic post, acclaimed food writer Barry Estabrook tells why food poisoning attorney Bill Marler may be the nation’s best bet for keeping food safe
Even if the government won’t go after the food industry, William Marler will—by ensuring safe food through litigation
Given that Salmonella-contaminated ground turkey produced by Cargill, Inc. had already sickened more than 100 people and killed one, William Marler’s offer to the Minneapolis-based company early last month seemed worth considering: Regularly test your meat for antibiotic-resistant Salmonella, and I won’t sue you.
Suing corporations that sicken their customers is something Marler does often and well. He is a Seattle trial attorney whose firm, Marler Clark, specializes in representing victims of food poisoning. It’s proven to be a lucrative specialty. Marler has won more than $600 million for his clients over the past two decades. A good chunk of that money has come from Cargill, which, according to Marler, has had four outbreaks of resistant Salmonella in its facilities in the last 10 years.
Marler also knows a fair bit about self-promotion. His offer was obviously designed to draw public attention to his firm, which represents about two dozen victims of the most recent Cargill outbreak. But in addition, Marler hoped that his overture would shine light on one of the most gaping holes in the tattered safety net that is supposed to keep our food supply safe.
Astoundingly, under current United States Department of Agriculture (USDA) rules, it’s perfectly okay for companies to sell meat to the public that is contaminated with Salmonella and other disease-causing bacteria.
Although the USDA stipulates that meat and poultry containing “adulterants” cannot be sold, it recognizes only one bug—E. coli O157:H7—as an adulterant, even though Salmonella, Listeria, Campylobacter, and many other strains of E. coli have also sickened or killed people. In a twist of logic that would baffle anyone other than a bureaucrat, these potentially lethal bacteria achieve official adulterant status after the fact—only in specific instances when they actually make people sick. “Then they magically become adulterants,” Marler said in an interview.
Since the USDA decreed that E. coli O157:H7 was an adulterant in 1994 and required companies to test for the bug and to cook any positive samples before distributing them to consumers, Marler has noticed a dramatic drop in the outbreaks of illness caused by E. coli-tainted ground meat. “Prior to that, 90 percent of our firm’s revenue came from E. coli cases linked to hamburger,” he said. “That’s virtually disappeared—with one little act.”
Marler wanted Cargill to perform the same scientifically-based sampling for resistant Salmonella as it does for E. coli and to divert any contaminated meat for use in precooked products (thorough cooking kills the harmful bacteria). If Cargill agreed to do that, he proposed to sit down behind closed doors with company lawyers to quietly negotiate a fair settlement. Having handled more than 5,000 salmonella-poisoning cases in his career, Marler said that he has a good idea of reasonable rewards for his clients.
The obvious question is: Why do such obvious suggestions on how to improve food safety have to come from a trial lawyer instead of from well-paid officials within the government agency that is supposed to protect our meat?
Marler says that part of the problem is that attorneys at the USDA (and the Food and Drug Administration, which oversees food safety in all areas other than meat and poultry) are reluctant to deploy the enforcement tools they have. “I can count on one hand the outbreaks that have led to illness and deaths that there’s been a criminal charge or a penalty other that the government saying, ‘You poisoned a lot of people; you killed a lot of people, and you need to recall some of your meat or lettuce.’ That’s about the extent of what the government does.”
In one tongue-in-cheek blog post last month, Marler suggested that certain duties of the Attorney General’s office be privatized, and he volunteered to assume some duties himself. “I would be willing to put people in jail for poisoning people, and I would do it on the cheap—perhaps for the fun of it,” he wrote, and then went on to point out several laws that he says any moderately competent prosecutor could use to jail CEOs of companies that poison people.
The executives at Cargill don’t seem worried. After the outbreak became public in August, the company recalled 36 million pounds of ground turkey—the third largest meat recall in history. According to Mike Martin, a Cargill spokesman, the company also adopted an enhanced food safety program which he claims is “the most aggressive monitoring and sampling program in the poultry industry.” Cargill also created an independent panel of experts to review its actions and make additional recommendations.
But Cargill stopped short of accepting Marler’s proposal to test its meat for resistant Salmonella, and one of the company’s attorneys told him that he should go ahead and sue.