On Nov. 1, a BuzzFeed News headline stated: “Chipotle Has Closed Nearly 50 Restaurants Because People May Have Caught E. Coli From Their Food.” This was followed up by the statement that “At least 22 people in Oregon and Washington have contracted the infection after eating at Chipotle restaurants since Oct. 14, the Oregon Health Authority said.”
Most people who scan headlines or don’t read the entire story will likely stay clear of every one of the 1,595 Chipotle Mexican Grill restaurants nationwide, even though the foodborne illness has apparently been limited to Oregon and Washington. Such is the nature of the food supply and American's fear and ignorance of being poisoned by their food.
That is precisely why Salinas-based L+G LLP Attorneys at Law created Recall-Ready.com to provide a wide range of services to farmers and shippers to better prepare them to respond in the event of an outbreak that might lead to a recall. The website brings together a comprehensive team of food safety experts, along with technical assistance in handling recalls. It has sections that include information on pertinent food safety legislation, news stories about outbreaks, links to information resources, articles by industry experts and how the website can help grower-shippers.
If you were to look at Chipotle’s website on Nov. 2 and clicked on the FOOD WITH INTEGRITY, tab you’d find no indication whatsoever that anything was amiss. In fact, the page boldly states that: “Day after day we’re committed to sourcing the very best ingredients we can find and preparing them by hand. To vegetables grown in healthy soil, and pork from pigs allowed to freely root and roam outdoors or in deeply bedded barns. We understand because we understand the connection between how food is raised and prepared, and how it tastes.”
Healthy soil? What does that even mean? And what is the connection between how food is raised and how it’s prepared? There are a lot of steps between the two and a lot of things that can go wrong — most of which American consumers are totally unaware of — until they get sick.
Nowhere on its website will you find a comment or update about what’s happening in the Pacific Northwest with its 50 restaurants. While the outbreak is still being investigated, Chipotle should have already begun its preemptive campaign to head off the negative impact of the perception that its food is dangerous and downright deadly to eat at any one of its restaurants as the public extrapolates a regional outbreak into a nationwide catastrophe.
Those who have experienced foodborne disease outbreaks before know that figuring out where the contamination came from and how far it may spread is a race against time and perception, both of which can have a lasting effect on the corporation’s very survival.
According to Food Safety News, Centers for Disease Control and Prevention (CDC) analysis of recent e. Coli O157 outbreaks shows food was the major mode of transmission and that “of the 255 foodborne disease outbreak reports, 141 implicated a specific food that could be classified into a single category. Outbreaks attributed to foods generally consumed raw caused higher hospitalization rates than those attributed to foods generally consumed after being cooked.”
It should be noted that Food Safety News is the brainchild of food safety lawyer Bill Marler, who has made millions of dollars suing food producers and restaurants. So, with a power-broker lawyer with his own news outlet to promote the failings of the food industry to keep consumers safe, it would seem that farmers and food shippers would be wise to have their own source for information in order to head off financial disasters.
And they do.
Bradley W. Sullivan, a partner in L+G at its Hollister office, said managing partner, Jeff Gilles, grew up in farm country and is a boyhood friend and contemporary of many of the current fresh produce grower-shippers and has been involved in agriculture law since the 1980s.
“Jeff worked for Bruce Church before it was Church Brothers, and he worked with Earthbound Farms, Fresh Express (before it was acquired by Chiquita Brands), and Taylor Farms,” said Sullivan, who is also contracted to be the city of Hollister's attorney. “I was doing litigation when I joined the firm in 2002, and there was an outbreak involving green onions with one of our grower-shipper clients down in Santa Maria.”
Sullivan said the firm’s unique understanding of what is involved in growing fresh produce enables it to better represent grower-shippers (companies that grow their own vegetables, package and ship them).
“It’s best to know how the produce is actually grown, picked, cooled, and distributed,” he said. “We set up the website where we brought in other national and international firms with the expertise to provide a resource if a grower-shipper were to get the call from the FDA or the California Department of Public Health that they had identified a product as possibly being involved in an outbreak and it has been traced to having come from their facility or farm, and it has tested positive for a pathogen.”
The website is a place for growers and shippers to go in order to figure out what they have to do before disaster strikes.
“We’ve found that most people don’t know what to do in these instances,” Sullivan said. “They probably have a recall section in their policy manual, but an investigation doesn’t automatically trigger a recall. If you are going to do a recall, there is a right way and a wrong way to do it.”
Sullivan referred to the 2006 outbreak involving baby spinach that resulted in what some called overkill by the government.
“The federal authorities ultimately ordered that all baby spinach be taken off the market,” he said. “If we had been more involved at the processor level we probably could have made that recall smaller. The reason why you want a smaller recall is you don’t want to cause panic. You don’t want people being afraid of spinach or throwing their spring-mix away because it looks like spinach. They threw away a lot and the market for baby spinach took years to recover, if it ever really has.”
The goal, Sullivan said, is to focus the recalls by identifying the product that could be contaminated and get only it off the market and not all the product, whatever it is, in the entire North American marketplace. He said that while most of the larger grower-shippers have experienced recalls and know how to deal with them, many of the smaller operations have not and that can be a scary proposition.
When L+G is working with a grower or grower-shipper, it gathers all the pertinent information regarding the operation and focuses it in order to present it to government investigators.
“We’ll focus it because what you don’t want to do is give the CDC, the FDA or any of these regulatory agencies everything,” Sullivan said. “They will take everything you give them, so you don’t want to give them 10,000 documents because most of it will be irrelevant. But once you give it to them it’s subject to the California Public Records Act request and depending on the level of expertise of the investigator they might find something that’s a violation that has nothing to do with the investigation.”
Because some investigation take years to determine the cause of contamination, if it ever does, Sullivan said too much information can come back to haunt a company because standards change over time.
“Things that were said that were entirely true in 2006, by the time the last case went to trial in Utah in 2011, there was a great deal of advancement in knowledge,” he said. “Because a lot of information was gained and things that were said in 2006 were no longer the industry’s standard, or that company’s standard by 2011, you’re creating an opportunity of cross examining yourself with old interviews. That’s why you need to have a person who knows how to give them the relative information, but also knows enough about the industry to not give them irrelevant information that can be blown out of proportion.”
The firm covers the entire country, and because it is retained as an outside law firm rather than being part of the company, it has the advantage of being able to conduct its own investigation parallel to the federal investigation and that it will remain privileged as attorney-client work product, whereas in-house lawyers can be considered part of the management.
“Various communications during the spinach case that Dole and Natural Selection had with their corporate councils that were thought to be privileged, weren’t,” Sullivan said. “We’re prepared to go to court for them if it goes that far.”
Recall-Ready.com was intentionally designed so people could not post comments on it.
“Those kinds of things can be read by Bill Marler or the FDA,” Sullivan said. “We wanted to get the word out to the food safety professional or the in-house attorney who is being put to the task of dealing with an investigation to call us so we can walk them through the process. We’ve already gotten some calls since the website even though it has been up only a month and a half.”
Even though a recall may be extremely focused on a particular product in a particular area of the country, things can still go south when it comes to public perception.
“Let’s say there’s a recall of cilantro sold in specific cities in Southern California, the Phoenix area and Las Vegas and nowhere else,” Sullivan said as a hypothetical. “We will get calls from Maine asking about the parsley they bought, wondering if it’s okay. That’s the tension involved during a recall.”
Sullivan emphasized the need for due diligence before a problem surfaces because once it does the fallout can go on seemingly forever.
“I was the lead defense attorney in a green onions case that caused Hepatitis A from a contamination that we never did find out where the farm was,” he said. “That case is still alive. The plaintiff’s case was settled fairly quickly, but the finger-pointing between three different farms, two different grower-shippers, two national distributors, and one of two restaurant chains is still going on.”
Sullivan said he’s not out to scare small growers, but reminds them that there are issues that can come up in operations that grow specialized crops, like certain herbs, that should make an effort to head off any liability.
“We wanted to put that resource out there so they might think about the possibilities,” he said.
The Recall-Ready website officially launched in September, and is beginning to build traffic, but it’s a bit early to determine how many people are visiting it, according to Zack McDonald of Chatterbox Public Relations. He said there are about two dozen articles on the site, written by food safety experts from around the country.
“We're marketing on social media with Facebook and Twitter and plan to add Pinterest soon, as well,” McDonald told BenitoLink by email. “When Brad or one of our other food safety experts are on the road giving talks, we also take those opportunities to distribute brochures raise awareness of the site. We are currently working on our first newsletter, which will go out next month. These bi-monthly newsletters will be a great resource for recent food safety news, important articles and upcoming events.”
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