The nation’s foremost law firm with a practice dedicated to representing victims of food poisoning.

Call us at 1 866-770-2032

More Stomach-Churning Facts about the E. Coli Outbreak

June 8 2011

In his New York Times blog, famed food writer Mark Bittman talks of his a 2 A.M. safe eating conversation with food poison attorney Bill Marler.

Well, at least someone isn’t worried about food-borne illness. Wouldn’t you know it would be a Republican senator from Oklahoma.

Everyone else is worried, or should be. As of this writing, House Dems want a hearing. So do I, and so should you.

Anyway. The guy we have to thank for having our current level of protection against E. coli, which is inadequate but less inadequate than it might be, is Bill Marler, who made his bones in the Jack in the Box case. There’s a new, thriller-style account of the horrors of that E. coli outbreak and the subsequent events, including the groundbreaking rulings making O157:H7 an “adulterant,” in the new (good timing!) book Poisoned, by Jeff Benedict. (I haven’t read it; I will.)


I spoke to Marler at length for my piece and, for a guy who “has spent 20 years watching kids die,” he has an amazing sense of humor, especially given that half our communication was at 5 a.m. Eastern time/2 a.m. Pacific time (he lives outside Seattle). I asked him whether we are safer eating at home than out. This is a difficult question to answer given how many cases of E. coli (and salmonella, and all the rest) go unreported unless they’re part of an outbreak. My instincts tell me it’s safer to eat at home, but I asked not only Bill but a few other experts this question, and no one could really be definitive. The closest I got was this e-mail from Marler, which may not be authoritative, but is certainly sensible (and cute!):

“Eat simply, locally, things that you wash well, cook well and process yourself. Wash your hands and keep your kitchen clean — especially the dish rag. Keep cold things cold and hot things hot. Keep meat and unwashed vegetables away from ready to eat food. Have a glass of good red wine.

“Think about eating mass-produced raw meat and produce like you are swimming in a pool with a thousand people you don’t know. Think of eating as described above as sitting in a bath with your significant other — hopefully less risky and much more fun.”

I also asked him (and others) whether grass-fed beef had a lower incidence of E. coli than beef raised on grain (not entirely clear, but it seems not), or whether we could say that feeding cows grain instead of grass might have spurred the growth of STEC. Here’s what he said:

“Maybe somewhere in the far distant past, before we started feeding grain to cows, these shiga toxins weren’t in cows. And maybe because of a higher acid content in the gut these bugs evolved to become pathogenic. There isn’t a lot of good science on this, and there have been studies that have gone either way in whether feeding grass to cows will create a lower level of pathogenic E. coli in their guts. What you can say is that cows fed DDGs” – distillers’ grains with solubles, a by-product of distillation, including ethanol production, which I’ll write about at some point – “may have a higher level than cows that weren’t fed them. If you’re anti-CAFO” (Concentrated Animal Feeding Operations, or factory farms) “and anti-corn subsidies, you jump from that study to ‘get rid of this and you get rid of e-coli,’ and it would be great if things were that simple but they’re not.”

Few things are.

It’s worth noting that Marler calls this the worst outbreak of E. coli he’s seen (so did everyone else quoted below). There are more deaths recorded than any other, and the rate of HUS - hemolytic uremic syndrome, the thing that might kill you or leave you (especially if you’re a child) with acute kidney failure – is also the highest of any recorded outbreak. (It appears to be double or even more the rate of most outbreaks, but the diagnosis is something of a judgment call, and this outbreak isn’t resolved. In any case, hundreds of people with HUS qualifies as a tragedy in anyone’s book.)

Last question for Marler: Is local food safer?

“We don’t know. Bigger outbreaks are easier to figure out, and they’re always caused by mass-produced food, but many outbreaks aren’t figured out at all. If things were regionalized and there was an outbreak, it would be smaller. And poisoning fewer people at once is a good thing!”

Marler thinks farmer-to-person sales should remain mostly unregulated, but that once any food “enters the chain of commerce” it should be subject to the same regulations as mass-produced food.

I also spoke with David Acheson, an MD who was the chief medical officer in Center for Food Safety and Applied Nutrition at the FDA. He was extremely helpful in explaining to me how vegetables become contaminated with E. coli (and frankly scared me even more than Marler). Acheson says that “only 5 percent of food-borne illness is linked to big outbreaks; 95 percent is sporadic,” by which he means a case here and a case there. There are, he told me, 1.5 million cases of salmonella in the U.S. each year, and few are linked to outbreaks.

“You really need an outbreak to triangulate the illness to a food,” he said. “You ate something, I ate something, we both got sick, we were in the same city at the same restaurant … with that information, you can find out what happened. But in the home, where one or two people get sick, it doesn’t generate all this reactive type phenomena, which makes it hard to categorize, confirm, and link to specific food.”

Even with all the detective work going on in Germany, I believe (and I’m no expert, but I’m far from alone, and this seems a no-brainer anyway) that it’s going to be impossible to find and confirm the real source of this outbreak. You can’t test one-month-old sprouts, because they no longer exist. And, as Elisabeth Rosenthal quoted a Centers For Disease Control and Prevention official in her terrific piece, “You can go to a place reeking of chlorine, and find nothing.” If you were running a sprouts factory right now, wouldn’t you disinfect it to death?

Noting that he’s now consulting an irradiation firm, Acheson said it’s time “to revisit some of the more robust and less desirable interventions like irradiation. Though there may be an ‘ick’ factor, all science indicates it doesn’t introduce a problem.” We’re going to hear more of this. And it’s not impossible – or necessarily terrible – that we may see irradiated vegetables as an option in the near future. Of course there is not only the “ick” factor; it may not work. Or it may not work well enough — and then what?

Of the dozen or so people I interviewed over the weekend and into the early part of this week, two others had especially interesting things to say. One was Phillip Tarr, a professor of pediatrics and microbiology at Washington University in St. Louis, who immediately said that although we can’t guarantee the safety of fruits and vegetables, “we don’t want to discourage their consumption, which saves more lives than it costs. We don’t want to divert kids from fresh fruits and vegetables to processed foods.” A good point, and one worth remembering. In fact, although no one wants to belittle these outbreaks (or the sporadic cases of E. coli and other food-borne bacteria), food safety is just one of the diet-related health problems we have, and arguably an overconsumption of animal products (which have food safety problems of their own) and junk food (perfectly safe! except it kills you slowly) are bigger issues. Or, let’s just say, “also very important.”

Tarr also thinks we have to have “a rational discussion, pro and con” about radiation, which seems fair.

When I asked him about budget issues in the public health sector he said: “Are they doing the best they could with the resources they have? Yes. Do they have the resources they need? Undoubtedly not. No one in public health does.

“This situation is not unlike what happened with anthrax: it causes chaos. There’s no indication this was intentional, but if something like this happened and it was intentional, it would cause the same kind of chaos. Our ability to respond to infectious threats is very, very important.”

Finally, I spoke with Robert Brackett, a microbiologist who is director of the Institute for Food Safety and Health at Illinois Institute of Technology and who has also held high positions at the FDA and the Grocery Manufacturers Association. His primary quote: “Don’t make assumptions.” He elaborated:

“Many assume they have a handle on the behavior of certain organisms but they don’t, really. Public health authorities have not recognized importance of shigella-producing E. coli beyond O157. We need much better surveillance of these organisms: Where are they hiding? We don’t see them because no one looks until there’s a big outbreak.

“The point is that there is an underlying set of food-borne illnesses that don’t rise to the level that the C.D.C gets involved, because we don’t have an understanding of these organisms. You have to have a person who gets sick go to the doctor, the doctor has to report it to the local authorities, and the local authorities have to report it to the C.D.C. What you now see in C.D.C. data is just the tip of the iceberg.”

The C.D.C. data says a whole lot of people get sick every year from E. coli. If that’s the tip of the iceberg, it’s scary as hell. That’s what wakes Bill Marler up at 2:30 in the morning.

The Marler Clark Network