Defending Food Safety

Managing Foodborne Illness Outbreaks, Recalls and Claims

Shawn Stevens — Sat, 14 Apr 2012 13:37:00 -0600

A long-time industry colleague and friend recently told me that it was the things he couldn’t see which he feared most. Lurking somewhere in his processing equipment, or on a product sitting in a sales cooler, there are a few colonies of pathogenic bacteria waiting patiently for their chance to wreak havoc in our business and lives.

Over the last decade, foodborne illness outbreak surveillance has improved significantly. As a result of improved surveillance, more illnesses are being identified and more outbreaks are being reported. By extension, many of these outbreaks are being associated with an increasing number of food products (ranging from waffles to cookie dough) and more companies are being affected.

These improvements, while having an overall positive impact on public health, have also had a tremendous (and sometimes less than positive) impact on the food industry.

Indeed, literally thousands of spotlights (taking various forms) are now steadily and continuously crisscrossing the nation, searching for problems in our food products. These “spotlights” take the form of verification testing by processors, incoming product testing by customers, regulatory sampling by federal inspectors and patient isolate testing ordered by concerned physicians. With such vast resources being dedicated to looking for problems in today’s food, the question is not whether your product will be caught in the spotlight. The real question is when.

Thus, assuming contamination is inevitable, and assuming that (once a product leaves your control) that contamination will be found, all food companies should begin planning now for how they will react if and when a outbreak or recall occurs.

Fortunately, with advance planning, a company can begin limiting the fallout from an outbreak-related crisis the moment it learns about a potential problem. After learning that its product may be associated with an emerging outbreak, any company should immediately and directly engage federal, state and local health investigators. Proactive engagement is essential to: (1) quickly identify and then contain the problem (i.e., keep the problem from expanding); (2) help solve the immediate public health issue; and (3) ensure that the continuing investigation is conducted appropriately. These steps are critical for numerous reasons.

First, in the food industry, we know that the potential downstream consequences of any upstream food safety problems can also be catastrophic. Just consider, for a moment, the processing of ready-to-eat food products. If a single raw material supplier unknowingly introduces contaminated ingredients into the supply stream, each of the downstream products manufactured with those ingredients will be affected. Thus, when product contamination is suspected, it is critical to identify all potentially affected lots and notify all customers to contain all affected product. Doing so will help alleviate the impact of any possible contamination, and also demonstrate to investigators that your company is committed to protecting the public (in addition to being the “right thing” to do, this will also pay significant dividends in your dealings with the regulators following the recall).

In addition, it is important to recognize that public health officials are increasingly being asked to investigate and solve a growing number of overlapping outbreaks at any given time. With limited resources to conduct investigations properly and methodically, we have found that federal and state investigators will sometimes adopt and embrace incorrect assumptions about the source of an outbreak. And, whether explained by inadequate resources, limitations in time or a lack of individual expertise, once an incorrect hypothesis is embraced, it becomes very difficult for public health officials to admit possible errors, set aside potential bias and identify alternative sources.

For this reason, the moment any association is suspected, a food company should: (1) actively engage public health officials to address their immediate questions and concerns; (2) learn as much as possible about the status, scope and direction of the investigation; (3) aggressively identify the full range of potential cases and alternative sources; (4) politely but forcibly challenge, (where issues are identified) developing assumptions and hypotheses; and (5) persuasively demonstrate, where possible, that the company’s product is not likely involved. From our experience, investigators tend to be more open and thorough when all parties are actively engaged and at least someone – even if only emblematically – is looking over their shoulders.

In those circumstances where a company’s product is ultimately linked to an outbreak, and a recall is warranted, management should also begin anticipating and planning for the claims and lawsuits which will inevitably follow. This, of course, includes enlisting experienced food safety regulatory and litigation counsel as early as possible in the investigative and recall process.

In addition to assisting with the recall itself, counsel should also be used to help address the regulatory issues which will follow. Once a recall is announced, federal investigators will often perform a comprehensive assessment of a food company’s operations to search for and “find” at least one problem. These findings will then, in most instances, be documented in an FDA Letter of Warning or USDA Notice of Intended Enforcement. Unfortunately, this practice is followed even if a company was operating to virtual perfection.

In turn, when responding to the government’s criticisms (whether warranted or not), it is critical for management to consider how each of the comments it makes will potentially impact future litigation. Certain regulatory “terms of art” often used in these communications are understood to have one meaning by government and industry, but can be mischaracterized by opposing counsel or misunderstood by a jury.

For this reason, management should carefully draft responses that: (1) put the recall into context; (2) articulate clearly the company’s position with respect to the alleged problem (even if it may differ from the government’s position); (3) detail each of the positive elements of the company’s food safety programs; and (4) address appropriately and artfully the governmental requests in a way that will be appreciated and understood by a jury. Appreciating how the company’s post-recall communications with the government may be used by opposing counsel in lawsuits months or years later, can significantly reduce a company’s potential litigation exposure.

When claims are eventually asserted, food companies should work with experience food safety litigation counsel. This is because many companies (and their lawyers) managing a recall and outbreak for the first time are not equipped to effectively challenge any one of the complex epidemiological, microbiological and long-term damage issues often present in these cases.

In many lawsuits, significant questions also exist about the true source of a claimant’s illness. Unfortunately, most people incorrectly believe that they got sick from the “last thing they ate.” In those cases where the target defendant is not at fault, the key to proving the company’s innocence often turns on a painstaking analysis of health department records, patient questionnaires, shipping records, witness interviews and key depositions.

The emotional edge a plaintiff brings to the table can also be tempered in some cases by raising challenges to the source of the alleged illness. If we can show significant problems with an outbreak investigation and its conclusions, or that our client produced and distributed thousands of safe and wholesome meals the week it processed the meal in question (and, the plaintiff was the only person who allegedly became ill), a jury will likely be more disposed to set aside emotion and focus instead on what really made the plaintiff sick.

Most jurors will also understand and appreciate a plaintiff’s obligation to exercise reasonable care for his or her own safety. Depending upon the circumstances, a plaintiff may have admitted to health department investigators eating a rare or undercooked hamburger despite the federally-mandated safe handling labels warning her not to. Where a plaintiff shows no appreciation of the inherent risk, a jury will be more disposed to set aside sympathy and attribute fault to the plaintiff.

Additionally, many claimants (and their attorneys) will also significantly inflate and exaggerate damage claims to maximize potential recovery at settlement or trial. When a plaintiff’s overreaching is challenged appropriately and tactfully, his or her dishonesty in many cases will significantly diminish the potential sympathy a jury might otherwise be inclined to feel. Thus, while emotion is always a factor, it can in many instances be effectively controlled.

In the end, our own mantra is “proudly defending the hard working people who feed our families.” We believe strongly in this statement, and what it means. Having worked with food companies for nearly a decade, we have observed (first hand) the valiant efforts of the hardworking individuals and food companies who labor tirelessly to improve the safety of our food. Thus, in most cases, we will also have a great story to tell about the significant efforts our clients undertake to ensure the food they sell – and feed to their families – is as safe as it can be.

Although we enjoy one of the safest and affordable food supplies in the world, we continue to face incredible risk. Because of improved surveillance, increased scrutiny from regulators, and a swelling interest from the media and lawyers, fewer mistakes are avoiding detection. Thus, it is critical for all companies to remember that, if there is a chance that your product can be contaminated, there is a significant chance that the contamination (whether through downstream testing or an emerging outbreak) will be found.

If it also critical for all food companies to begin planning and preparing for this contingency today. No matter how hard you try, there are (and perhaps always will be) a few colonies of pathogenic bacteria in you equipment or coolers waiting patiently to wreak havoc in your business and lives.

** This article, authored by Shawn K. Stevens, is also featured in the April/May edition of Food Quality Magazine.

Testing the Tester [Part 2]

Shawn Stevens — Wed, 28 Mar 2012 13:53:48 -0600

In our last column, I discussed how current FSIS policy (which invariably reacts critically to any positive testing results) discourages companies from aggressively testing to find pathogens in their products.

When adulterants are found in ground beef products, the results must be shared with FSIS and determinations made regarding which products are potentially affected and how they will be disposed. Unfortunately, in many instances, FSIS will use a company’s positive findings as a catalyst to aggressively and sometimes unreasonably second-guess its actions and response.

This costly and unwarranted burden has, in many cases, discouraged the development and creation of truly effective testing programs by industry.

Now, FSIS is in the process of reviewing a petition from the Center for Science in the Public Interest which asks the agency to declare numerous strains of Salmonella as adulterants in raw meat and poultry.

The agency’s response to recent questions on this issue suggests that FSIS is seriously considering the policy. Dan Engeljohn, assistant administrator FSIS’s Office of Policy & Program Development, recently told attendees at an annual meat industry conference that FSIS is currently “assessing [the policy], and how we’d go forward if we were to adopt it.”

This sounds to me like the decision has already been made.

As FSIS considers it next steps, however, it needs to maintain a reasoned approach which recognizes the fact that it is currently impossible, given current technology, to completely eradicate ubiquitous organisms from raw beef and poultry products. For this reason, whatever policy FSIS develops, the agency should at the same time reassess how it will react and respond to processors who aggressively test to find Salmonella (or other pathogens) in their products.

From my experience, the majority of beef processors would welcome additional controls aimed at reducing the numbers and levels of pathogens in incoming raw trim used to process hamburger. If, however, the agency continues to penalize (rather congratulate) processors who test for and then find these pathogens in their finished products, then our food supply will not likely become any more safe.

Thus, in my view, as FSIS considers its policy going forward, the agency should also recognize that it has an unparalleled opportunity to develop and embrace rules that adequately enforce the new standards at slaughter, but also encourage (rather than discourage) additional testing. If FSIS can incentivize the creation of new cutting-edge programs designed to find pathogens in products before they reach consumers, as opposed to destroying any incentive to test and find (through its often oppressive reaction when pathogens are found), then the agency will have substantially advanced the calling of food safety.

So, as we wait with interest to see whether FSIS will declare Salmonella as an adulterant, we also wait to see if FSIS will continue to unfairly (and, in my view, improperly) test the tester.

** This article, authored by Shawn K. Stevens, is also featured in the April edition of the National Provisioner.

Testing the Tester [Part 1]

Shawn Stevens — Mon, 12 Mar 2012 13:21:24 -0600

Microbiological sampling can be an effective tool to help companies verify that their interventions are working. But how much testing is really expedient given the current food safety climate?

Today, many companies are testing for Listeria, Salmonella, E. coli O157:H7, generic E. coli, various other indicator organisms and, now, six additional STECs. Many companies perform raw material sampling, environmental sampling, equipment sampling and finished product sampling.

Even so, some argue, it is still not enough.

Unfortunately, not even companies on the cutting edge of food safety, who have implemented state of the art testing programs which far exceed FSIS requirements, are immune from outbreaks, recalls and criticism. This is because testing can never provide a one hundred percent guarantee that a product is sterile. Contamination in foods is by nature quite sporadic and, thus, difficult to detect.

Although finished ground beef product testing is not mandated by federal law, many companies nevertheless embrace finished product testing as a means to better monitor their processes and to further enhance the safety of their products. These companies not only deserve our commendation, but they also deserve to be treated better by USDA.

This is because current USDA policy discourages companies from finding pathogens in their products. When E. coli O157:H7 is found, the results must be reported to USDA, and determinations made regarding which products are potentially affected and how they will be disposed. Unfortunately, in many instances, USDA will use a company’s positive findings as a catalyst to aggressively second-guess its actions and response.

Indeed, rather than allowing processors who test and find to quickly address those findings and divert affected product, the agency too often responds with additional regulatory intrusion and unwarranted criticism. Moreover, the more companies test, and the more they find, the more onerous and oppressive agency intervention can and potentially will become. Similarly, in the unfortunate event that a company (despite its best efforts) finds itself associated with an outbreak or recall, USDA is virtually certain to conclude in a Notice of Intended Enforcement issued following the recall that the companies’ testing program was somehow deficient – no matter how good the program actually was.

This reality, unfortunately, demonstrates the glaring disconnect between the science of food safety and the expectations of regulatory inspectors.

Thus, although companies that perform more testing stand a far better chance of finding contamination and reducing their risk of being associated with an outbreak or recall, they cannot reduce the risk entirely. Thus, to encourage more (not less) sampling, USDA should begin adjusting its policies to create more (not less) incentive for companies to test to find.

If we are to make further strides in food safety, we must develop science-based solutions which examine the root causes of contamination. And, USDA needs to take a closer look at how it responds to processors who aggressively test their finished products. In the end, it needs be pathogens – not companies doing the right thing – who feel they are being tested.

** This article, authored by Shawn K. Stevens, is also featured in the March edition of the National Provisioner.

FSIS Extends Deadline for Implementation of Non-O157:H7 STEC Rule

Shawn Stevens — Mon, 27 Feb 2012 16:40:16 -0600

The USDA’s Food Safety and Inspection Service ("FSIS") recently announced they will extend the agency’s implementation date for non-O157:H7 STEC sampling and testing to June 4, 2012.

The extension, according to FSIS, was announced to give establishments additional time to validate their test methods and detect non-O157:H7 STECs prior to entering the stream of commerce.

As part of its zero-tolerance policy for E. coli O157:H7, FSIS will begin sampling both domestically produced and imported raw beef manufacturing trimmings and other raw ground beef components for the serogroups O26, O103, O45, O111, O121 and O145.

In a statement, AMI Executive Vice President Jim Hodges applauded the temporary delay, but argued again that additional research is still needed given the significant shift in agency policy.

“Even with a 90 day delay, imposing this new regulatory program in June puts the cart before the horse and will needlessly cost tens of millions of federal and industry dollars – costs that likely will be borne by taxpayers and consumers. In short, the policy is not likely to yield a significant public health benefit and given that research should precede and dictate the policy, the process that FSIS has followed in this matter is no way to develop good public policy.”

In the end, significant questions still exist regarding the prevalence and virulence of non-O157:H7 STECs in beef products. Time will tell whether the substantial resources being directed toward these new pathogens will, indeed, translate into a substantial improvement in public health.

CDC Criticized For Outbreak Reporting Policy

Shawn Stevens — Fri, 10 Feb 2012 16:07:38 -0600

Government health agencies have come under fire in recent days for the manner in which they conducted a recent foodborne illness investigation.

The CDC, in the final report of the outbreak, was criticized for referring only to a “Chain A” when describing a company that likely had been supplied with contaminated product, likely produce. The outbreak, and any possible attendant risk to public health, had ended by the time the report was published. The CDC determined that the contamination likely occurred before the product ever reached the restaurants.

Investigative efforts were unable to identify a specific food associated with illness, but data indicate that contamination likely occurred before the product reached Restaurant Chain A locations.

This outbreak now appears to be over.

Despite the reported unlikelihood of any possible additional risk, many are accusing the CDC of jeopardizing the public health by not identifying “Chain A.”

A Seattle-based plaintiffs’ food safety attorney has been leading the charge against the unnamed company, the FDA and the CDC. His complaints stem from CDC’s decision not to disclose the identity of the restaurant chain. It is his contention that “the public has a right to know and to use the information as it sees fit, and people – especially government employees – have no right to decide what we should and should not know.”

CDC’s policy, according to Robert Tauxe, is to disclose the identity of an outbreak source “only when people can use that information to take specific action to protect their health." While some decry the policy, it is in place to promote cooperation between governmental health agencies and companies that may be associated with illnesses.

On the one hand, cooperation between agencies and business during the course of an outbreak is critical. The most important thing, I think we can all agree, is to protect public health in the event of an ongoing outbreak. In the event that public health is at risk, CDC and FDA release the names of companies and the potentially implicated products.
Without cooperation, however, CDC investigators worry that it will take longer to identify the source of outbreaks, potentially resulting in unnecessary illnesses. Thus, if an outbreak is over, current policy is not to name the offending company. Often, as in this case, it is a supplier who provided the contaminated product and not the restaurant itself.

In the end, CDC is not interested in blaming or punishing. Their job is to protect the public from health hazards and they feel they can better accomplish that by not revealing the names of companies who received contaminated products.

Others, however, take the position that it is a consumer’s right to know if a restaurant is associated with an outbreak, even after it is over. They argue that, when it comes to public health, it is not for the government to decide what information people should and should not have access to.

In the case of the outbreak at issue, the investigation revealed:

Collaborative investigative efforts of state, local, and federal public health agencies indicated that eating food from a Mexican-style fast food restaurant chain, Restaurant Chain A, was associated with some illnesses.

CDC and FDA do the best they can with the resources they have. Their investigation showed a statistical association between the outbreak and the restaurant chain. The restaurant chain, in turn, did all it could to assist the CDC in determining the root source. This cooperation is reflected in the CDC report:

Restaurant Chain A, as well as their food suppliers and distributors, were very cooperative in providing extensive information to public health officials as various leads were explored.

Unfortunately, notwithstanding its best efforts, the CDC was unable to trace the illnesses back to a single product. Tracing microscopic bacteria to a single source can in some cases be very challenging. But to accuse the CDC of colluding to make people sick because it didn’t reveal the name of a company that may itself have been a victim of the outbreak is inappropriate.

Both the restaurant chain and the agencies involved in investigating the outbreak deserve to be praised for their cooperation in trying to determine the source of this outbreak. The chain at issue did not contaminate the food, it arrived that way. As such, there is absolutely no reason to openly criticize the company, especially in light of its own efforts to help CDC and FDA prevent further illness.

Here is a link to the CDC report: I think it is actually rather impressive.

http://www.cdc.gov/salmonella/restaurant-enteriditis/011912/index.html

FSMA: A One Year Progress Report

Shawn Stevens — Mon, 16 Jan 2012 15:24:28 -0600

On January 4, 2011, President Obama signed the Food Safety Modernization Act ("FSMA").

Since the FSMA was signed into law, the FDA has made significant progress in a number of areas. Although not all of the changes expected under the FSMA have gone into effect, many of the changes have already been implemented. In the past year, for instance, the agency has implemented the following initiatives quickly and with minimal confusion:

Consumer-Friendly Web Search for Recalls. FDA launched a more consumer-friendly recall search engine on the FDA website.

Guidance to Seafood Industry on Food Safety Hazards. FDA issued its updated guide to the seafood industry on hazards associated with fish and fishery products and appropriate controls for those hazards.

Administrative Detention of Foods. Allows FDA to administratively detain food products that it has reason to believe are adulterated or misbranded for up to 30 days, if needed. FDA has begun using this authority.

Prior Notice of Imported Food. FDA issued an interim final rule that requires a person submitting prior notice of imported food, including food for animals, to report the name of any country to which the article has been refused entry.

Joint Anti-Smuggling Strategy. FDA and the Department of Homeland Security issued a joint anti-smuggling strategy to help to identify and prevent smuggled foods from entering the U.S. and posing a threat to national security and consumer safety.

Fee Schedule. FDA announced the fiscal year 2012 fee schedule for certain domestic and foreign facility re-inspections and for failure to comply with recall orders.

Authority to Suspend the Registration of Food Facilities. FDA has the authority to suspend the registration of food facilities to prevent the import and export into the U.S. in certain circumstances involving food that has a reasonable probability of causing serious adverse health consequences or death to humans or animals.

Product Tracing Pilots Launched. FDA announced that the Institute of Food Technologists (IFT) will carry out two new pilot projects aimed at enhancing the agency’s and industry’s ability to trace products responsible for foodborne illness outbreaks.

Reportedly, the FDA has also met the FSMA mandate for foreign inspections. For domestic inspections, the FSMA mandate is based on a 5-year time period.

In the past year, FDA has defined its high-risk and non-high-risk domestic food facility inventories and in FY11, FDA and various state partners conducted more than 20,000 food facility inspections. At this rate the Agency will likely meet the domestic food inspection frequency mandates contained within FSMA. In addition, FDA is developing new risk-based approaches to domestic inspection to maximize public health benefit.

Communication and outreach have also played an important role as FDA implements the various FSMA provisions.

FDA has participated in more than 350 meetings with industry leaders, farmers, consumers, public officials, and academics.

On produce safety, FDA has worked very closely with USDA, which has an established relationship with farmers, and taken part in 14 farm tours across the country to gather input on how the proposed rules can work feasibly across the diversity of commodities and growing conditions and practices.

FDA, the US Department of Agriculture, and the National Institute of Food and Agriculture entered into an agreement to collaborate on the establishment of a competitive grant program for food safety training and other projects.

FDA held three public meetings on preventive controls, import provisions, and changes to inspection and compliance programs in a preventive controls environment.
FDA has participated in more than 70 meetings globally to discuss the international impact of FSMA. This includes trips by the Deputy Commissioner for Foods to China, Mexico, Canada and the European Union.

FDA participated in, and helped fund, the establishment of the Produce Safety Alliance and the Food Safety Preventive Controls Alliance to help industry, especially small and very small firms, to comply with the requirements.

FDA provided information to the business community through the extension services of 49 land-grant colleges and universities.

FDA established a FSMA webpage that now has more than 10,000 subscribers, includes more than 100 Frequently Asked Questions by topic, and features videos, webinars, presentations, and print materials.

While the impact of many of the changes implemented by FDA to date have been relatively minor, some of the most comprehensive regulatory changes – such as the requirement that food companies adopt written food safety plans – are still to come. We, of course, continue wait in earnest to see, exactly, what the agency has in store.

The Food Safety Modernization Act: Are We Almost There Yet?

Shawn Stevens — Thu, 15 Dec 2011 15:03:59 -0600

With the passage of the Food Safety Modernization Act (FSMA), FDA has been tasked to cultivate approximately 50 new rules, guidance documents, reports and studies – all of which all must be implemented within very specific timeframes.

In turn, while many of the new provisions have yet to be implemented, numerous milestones (despite popular belief) have already been met. These milestones have also, at least in part, touched upon many of the most significant changes under the new law, including increased agency authority, new requirements for preventative controls and new import standards and expectations. Although many of these topics (along with additional anticipated developments still lurking just over the horizon) will be discussed in greater detail in our next issue, we wanted to provide a quick primer of both where we’ve been and how much further we still need to go.

Notably, FDA’s implementation of the FSMA first started gaining real momentum three months after passage (in March 2011), when FDA hosted a public meeting focused on the legislation’s new import safety requirements. The meeting attracted more than 500 attendees and, although many topics were discussed, the debate focused mainly on four key import safety provisions: Accredited Third-Party Certification; Import Certifications of Food; the Voluntary Qualified Importer Program; and the Foreign Supplier Verification Program. In essence, these new initiatives will require food product importers to ensure that each of their foreign suppliers are following the same standards that are and will be expected of food processors here in the U.S.

It became clear from the meeting, however, that setting such standards, and then ensuring compliance, will create significant challenges. The amount of food that is imported into the United States has been steadily and rapidly increasing for years. This is especially true with high risk foods like fruits, vegetables and seafood. In turn, much of the food imported annually originates from countries (and economies) without the resources or infrastructure to develop and implement the robust food safety programs which are taken for granted here in the United States.

Nevertheless, the FDA has announced that it will expect those U.S. food companies who chose to import, process or sell foreign products to ensure not only the safety of the products themselves, but to also ensure that their foreign suppliers are complying with each of the regulatory requirements under the FSMA. These requirements, for instance, will mandate that each foreign supplier implement a written food safety plan that satisfies the requirements of FDA.

In the weeks following the March 2011 import safety meeting, FDA then began focusing additional effort on widening it regulatory powers here at home. On May 5, 2011, FDA issued a new rule allowing it to administratively detain foods which the agency has reason to believe may be adulterated or misbranded. The new rule went into effect on July 2, 2011.

Effective the following day, on July 3, 2011, the FDA then gave itself additional authority, which allows the agency to suspend the registration of regulated U.S. food facilities. This new power gives FDA the ability to suspend (or threaten to suspend) the registration of any regulated food facility if the facility is producing food which, in the judgment of the agency, presents a reasonable probability of causing serious adverse health consequences or death.

Since July, the agency has been moving forward on other fronts as well. With the assistance of the Department of Health and Human Services (HHS), FDA has also begun to develop and implement a joint-anti smuggling strategy to identify and prevent smuggled foods from reaching the United States. HHS and FDA report that they will be partnering with the Department of Homeland Security and the U.S. Customs and Border Patrol to implement multi-phase strategies and technologies to counter existing and emerging smuggling threats. The threat of smuggled food, of course, extends all the way from consumer safety to national security and terrorism.

And, as many of you know, the FDA was also accepting public comment – through last August – on the docket for “Preventive Controls for Registered Human Food and Animal Food/Feed Facilities.” According to FDA, the comments received will be used by the agency to help shape the new regulations which will mandate that all regulated food facilities implement written food safety plans no later than July 2012. While many industry groups have taken advantage of the opportunity to share their perspectives with FDA, substantial uncertainty continues to exist with regard to not only what the new standards will specifically say, but how they will be uniformly and fairly enforced across the vast array of differing food processing operations across the country.

In this regard, despite the agency’ progress on many fronts, virtually all regulated food companies continue to wonder what is going to be asked of them and when. Although we have talked generally in previous articles about approaching deadlines and anticipated expectations, it will remain difficult for any food company to effectively prepare for the new anticipated regulatory changes until FDA actually publishes the new requirements.

Additionally, in the absence of any clear direction yet from FDA regarding what, specifically, the new regulations with say, many small and medium-sized companies remain worried about their long-term survival. Given the unprecedented increase in new FDA regulation triggered under the FSMA, many small businesses (some already struggling as a result of the lethargic economy) are fearful that the investments which will be required to ensure compliance could ultimately impact their ability to compete and potentially lead to financial collapse.

Indeed, Kathy Means, Vice President of Government Relations and Public Affairs at the Produce Manufacturer’s Association, recently echoed such fears, warning that while “[e]very business must have a food safety plan, these plans should be adaptable and not burdensome to small businesses.” After all, Means concluded, “the reality is that pathogens simply do not respect the size or type of an operation.” Thus, we remain hopeful that the public comments already received by FDA from industry and key stakeholders will lead to practical standards which all companies can both efficiently and effectively implement to improve their food safety programs.

In spite of the progress already made by FDA, the implementation of effective regulations (whatever their form) remains a significant challenge. In addition to the difficulties associated with developing a single set of clear and effective standards, FDA will need significant additional funding to properly, uniformly and fairly enforce those standards. Already, FDA has expressed frustration over the contrast between Congressional expectations and the limited funding which may ultimately be allocated. The agriculture appropriations bill recently passed by the House of Representatives, for instance, would decrease funding to the FDA next year by $87 million.

With that said, the FDA, seems to recognize the breadth of changes it faces, and now has more than two dozen separate working groups focused on implementing the FSMA. And, at the end of the day, we remain confident that FDA is doing all it can, and trying to do it well.

As with any piece of monumental legislation, especially one which directly affects every consumer in our nation, FDA has wisely solicited assistance directly from the food industry in a sincere effort to make the coming changes workable for all.

In the meantime, as we are driven by FDA further down this new regulatory path, we simply hope the continuing journey remains as smooth and bump-free as possible.

Whether You Like It Or Not, Plaintiffs' Lawyers Have To Eat Too

Shawn Stevens — Mon, 14 Nov 2011 15:09:48 -0600

If there’s any doubt that the legal profession will continue to significantly impact the way we do business, I wanted to share some additional perspective. When conditions are ripe, lawyers (like pathogens) tend to multiply quickly.

Most of us recall the large west coast E. coli O157:H7 outbreak in the early 1990s, in which nearly 600 people fell ill and some lost their lives. At that time, there were few reported outbreaks, very few food safety attorneys and hardly any foodborne illness lawsuits.

Since then, we have witnessed stunning changes within the industry. Beginning in 1994, USDA required raw meat products to carry safe-handling labels. In turn, Mike Espy issued a policy statement declaring E. coli O157:H7 to be an adulterant in ground beef. In 1998, USDA solidified its zero tolerance standards (for fecal and ingesta), and required establishments to implement comprehensive HACCP plans.

Meanwhile, enhanced surveillance increased our ability to detect food-borne illnesses nationwide. The CDC created PulseNet so public health agencies could upload and compare the PFGE (DNA) patterns of pathogens isolated from ill persons nationally. From 195 PFGE patterns in the mid-1990s, the database has grown to nearly 400,000 today. Having access to such information has helped investigators determine: (1) whether reported food-borne illness cases are genetically similar; and (2) whether they may have originated from a common source.

This, of course, has also led to a recent increase in reported outbreaks and recalls. Rarely a day goes by when we don’t hear about food safety in the news. And, with increased media coverage and public awareness, many attorneys have taken notice.

While a Google search for “slip and fall attorney” yields about 125,000 returns, “food poisoning lawyer” garners nearly 500,000. The result is an ever increasing number of lawsuits, often without merit, pursued by lawyers with little or no knowledge of food safety.

Because of increasing scrutiny from regulators, the media and lawyers, fewer mistakes are also avoiding detection. Thus, we should do all we can to reduce our risk and exposure to the greatest extent possible. We should embrace a robust food safety culture, closely monitor our suppliers, continuously refine our HACCP Plans, and aggressively ensure incoming and outgoing product has been appropriately tested. We are, after all, members of an incredible industry that works tirelessly to provide our families with the safest food possible.

So, recognizing that plaintiffs’ attorneys have to eat too, we should each do our part to ensure they’re shopping for our products – and not our customers.

Not a Happy Campylobacter

Shawn Stevens — Sun, 23 Oct 2011 12:50:14 -0600

There has been a lot of attention drawn to recent salmonella and listeria outbreaks, and, in turn, those pathogens themselves. In the meantime, the pathogen Campylobacter has worked itself into relative obscurity. This may seem surprising, as CDC estimates that Campylobacter associated illnesses affect as many as 845,000 Americans each year.

Campylobacter is a spiral-shaped bacteria that causes disease (Campylobacteriosis) in both humans and animals and is often found in the intestinal tracts of poultry, cattle, swine, domestic animals, and sometimes humans. The bacteria pass through feces and can also be found in untreated water. It is the leading cause of diarrheal illness in the United States (USDA).

Symptoms of infection due to the bacteria usually occur 2 to 5 days after consuming contaminated food, however, it may take as long as 10 days for symptoms to appear. This is similar to E. coli and the two are often confused for one another. The most common symptom is diarrhea which can often times be bloody. Other symptoms include fever, nausea, abdominal pain, headache, vomiting, and muscle pain. Like most FBIs, those most susceptible to contracting Campylobacteriosis are young children, elderly persons, and pregnant women.

In most instances, campylobacter infections resolve without serious illness occurring. It is important to note, however that even though complications from Campylobacter infections are rare, they can occur. The following are the most common:

Gullian-Barre´ Syndrome (GBS): most common cause of generalized paralysis. GBS occurs when antibodies built up to fight the disease attack nerve cells.

Reactive Arthritis: inflammation of the joints, eyes, reproductive or urinary organs.

Appendicitis

In the event that a widespread outbreak was to occur, even statistically insignificant numbers of individuals affected by such complications could spell disaster for a company. The resulting lawsuits could easily result in millions of dollars in settlements and significant brand damage.

As with preventing all foodborne illnesses, maintaining sanitary conditions and remaining cognizant of potential hazards can make all the difference in preventing Campylobacter outbreaks. With continued awareness of harmful bacteria such as Campylobacter, and how we can prevent it from occurring in our food, we can continue to prevent serious foodborne illnesses from affecting our families and ourselves.

Getting To The CORE Of Foodborne Illness Outbreaks

Shawn Stevens — Mon, 10 Oct 2011 12:42:18 -0600

The FDA recently announced the implementation of a fully-staffed network dedicated to rapidly responding to human and animal foodborne illness outbreaks. This group is called the Coordinated Outbreak Response and Evaluation (CORE) Network.

Kathleen F. Gensheimer, formally Maine’s state epidemiologist, will lead CORE, in the new position of Chief Medical Officer/Outbreak Director. Under the leadership of Gensheimer and the FDA, CORE will be staffed by epidemiologists, veterinarians, microbiologists, environmental health specialists and risk communications specialists.

Their primary objectives of the new group are to: (1) rapidly respond to emerging outbreaks; and (2) research past outbreaks in order to develop new preventative methods in the hopes of mitigating or preventing future outbreaks.

Gensheimer, quoted in the FDA’s press release, stated, “A real benefit of the network approach is enhancing communication and coordination with federal, state and local food safety agencies, as well as industry and consumers. Given my background at the state public health level, this is a major priority for me.”

Before CORE was created, there was no centralized staff, but rather various offices of the FDA that responded to incidents. CORE, FDA is hopeful, will provide a more in-depth process of monitoring and evaluating foodborne illness outbreaks as well as facilitating faster responses when outbreaks do occur.

The lack of coordination between the multiple governmental agencies involved in foodborne illness outbreaks has, historically, resulted in a host of problems. In some instances, these have included errors in trace back investigations conducted by local health department personnel which have prevented the true source of an outbreak from being identified.

The FDA confirms that CORE will work closely in all outbreak investigations with the Centers for Disease Control and Prevention (CDC), the U.S. Department of Agriculture (USDA), as well as public health and agriculture agencies.

“The centralized staff of the CORE Network will work closely with FDA’s field emergency response coordinators and the investigative and analytical teams in the District offices and associated laboratories,” said Dara Corrigan, associate commissioner for regulatory affairs. “Working together will help to both standardize and strengthen how we conduct foodborne outbreak activities in the field.”

Ideally, CORE will fundamentally change the manner in which foodborne illness investigations are conducted in a way that allows for faster resolutions, more effective trace back and most importantly, fewer illness.

We Think We Have An Adequate Food Safety Plan, But How Will It Be Enforced?

Shawn Stevens — Wed, 28 Sep 2011 12:33:46 -0600

With the passage of any new legislation, there is bound to be a period of lengthy adjustment. When that legislation is as broad and sweeping as the Food Safety Modernization Act (“FSMA”), the period of adjustment can last for years.

In a recent column, we addressed the new federal requirement that food companies (beginning in June 2012) adopt written food safety plans, alternatively referred to as Hazard Analysis and Critical Control Point (“HACCP”) plans. While the initiative may appear relatively simple and straightforward, in practice it may prove difficult for FDA to enforce the new requirements both uniformly and fairly. Thus, we wanted to take a moment to highlight some of the momentous challenges associated with the eventual implementation of the FDA’s new food safety rules.

The concept of HACCP was jointly developed in the 1960's by Pillsbury and NASA in a project aimed at keeping astronaut's food pathogen-free. Microbiological testing, they knew, was only effective to a point. So, they collaborated on a program aimed at understanding where and how failures in food safety occur. The result was HACCP; a program designed to seek out and identify the processing points where food safety risks could be reduced to the greatest extent possible. In the 1990s, FDA mandated HAACP for sea food production, and HACCP was eventually required by FSIS in meat and poultry establishments.

The program has been largely successful in the meat industry, and has led to a pronounced reduction in the number of foodborne illnesses and outbreaks. As with any regulatory initiative, however, it requires continuous refinement as science, technology and consumer attitudes mature. In spite of HACCP’s far-reaching success in the meat industry, it is important to note that the meat industry produces a fairly limited set of distinct products. And, all beef slaughter operations, by nature of the processes used, follow relatively similar HACCP programs. The risks are finite, and can be addressed from one plant to another with identical (or at least similar) interventions. Thus, within the meat industry, establishing uniformity in enforcement and compliance, while never easy, has at least proven somewhat manageable.

The FDA on the other hand, is a whole different kettle of fish. Under the new requirements, each and every food processor will have to identify, categorize and then formally address a unique set of hazards. In other words, the HACCP program at a factory which makes frozen waffles is going to be fundamentally different than the one for a processor who makes yogurt, crackers, seasonings or egg salad sandwiches. There are tens of thousands of food processors in the U.S. making hundreds of thousands of products.

So, how will the FDA ultimately approach the development and implementation of an inspection apparatus that deals uniformly and fairly with thousands of companies producing hundreds of thousands of distinct food products? This, of course, is the million (or, perhaps, billion) dollar question. This is also a question which should be flagged and debated today, as opposed to next year when compliance (however that term is ultimately defined by FDA) will be required.

In a perfect world, FDA could simply publish guidance materials outlining a single HAACP methodology (with a single set of compliance standards) that could be applied uniformly to every manufacturing facility and food product. This, however, would prove impossible. As noted, there are simply too many different food companies producing too many dissimilar food products, and there is no such thing as a one-size-fits-all science-based HACCP program.

Additionally, even if a uniform set of compliance benchmarks could be adopted and understood by all, it remains unclear how the FDA would uniformly enforce those standards throughout its many districts. In each of the FDA’s jurisdictional districts, there will inherently be countless different inspectors each sharing different qualifications. Thus, the follow-on dilemma for FDA will be how to ensure that the cookie producer in New York is ultimately being judged by the same standards as the one in California.

That, of course, presumes that the FDA inspectors will be adequately trained in HACCP. Indeed, before the FDA can determine whether any company is in compliance (again, once this term is better defined by the agency), FDA inspectors will need to gain significant expertise in HACCP. They should, ideally, hold a degree in food science, and have a clear understanding of the risks which exist in the specific products they oversee (which, as noted, could exceed thousands if not more). As of today, however, many FDA and other public health inspectors lack the appropriate food science background. Thus, there is and will continue to be a shortfall of the qualified inspectors needed to build an inspection apparatus of the size and scope necessary to visit, even on a rotating basis, each of the food processing plants in the country.

And, that’s just here at home. In today's rapidly globalizing world, many of the food products in our nation’s grocery stores, gas stations, drug stores and specialty shops contain imported ingredients. From salt and pepper to noodles, brownies and whipped cream, the things we consume often contain ingredients from faraway places. It remains to be seen who, if anyone, will oversee these products.

Thus, it stands to reason that the FDA will have to substantially increase the number and qualifications of its inspectors, not only in the United States, but also possibly abroad, to meet the goals of the FSMA. The FDA must also recognize, however, enforcement will be complicated tremendously if the inspectors who are tasked to ensure compliance lack the basic experience and training needed to oversee a science based a system which, while appearing simple on paper, can in practice be extremely complex.

With that said, both FDA and industry have time to address many of these challenges, and I have no doubt they can do so successfully. Companies and business owners, however, need to pitch in as well.

The new legislation presents a unique opportunity for industry to partner with FDA in order to prepare for and streamline the implementation of FSMA. In advance of each pending deadline, FDA will invite industry to comment on its proposed rules and regulations. In turn, offer written suggestions, and ask the FDA to define, as precisely as possible, what its ultimate expectations will be. Companies should take maximum advantage of these opportunities, as it will be their best chance to play a role in developing the rules (and, by extension, the expectations) which will one day govern their food safety programs.

As with any large undertaking, active engagement (as well as preparation and planning) will make all the difference between success and failure. Use the time you have now to prepare for the sweeping changes which will soon be at your doorsteps. Lastly, if you do nothing else, work alongside and communicate with the FDA as these changes are instituted. How, exactly, your food safety plan is ultimately enforced may eventually be up to you.

USDA Formalizes Rules On Non-O157:H7 STECs

Shawn Stevens — Thu, 22 Sep 2011 12:28:31 -0600

Just yesterday, FSIS formally published its final determination and request for comments relating to its decision last week to declare non-O157 STECs as adulterants in ground beef and trim products. Since the announcement last week, there has been a great deal of concern within the industry over the scope and breadth of the proposed new regulations.

Generally, FSIS intends to carry out verification procedures, including sampling and testing to ensure control of both O157:H7 and, now, the six other STECs.

To allow industry time to implement possible changes to food safety systems, however, FSIS will generally not regard products found to have these pathogens as formally "adulterated" until it begins this routine testing. As of right now, FSIS intends to begin a routine sampling program for the non-O157 STECs no later than March 5, 2012.

A significant concern for industry at this early stage is the elapsed time between micro-sampling and results. At this point, FSIS estimates that negative (or presumptive positive) results could be available within 48 hours of sampling. For samples that are initially reactive an additional three to five days may be necessary for a confirmed positive or confirmed negative result.

Fortunately, the antimicrobial interventions used by beef manufacturers to control E. coli O157:H7 are believed to be equally effective in controlling non-O157 STECs. Thus, while it is inviting industry comment, the agency "does not anticipate" at this point that industry will have to incur additional cost by implementing new or different interventions. They do, however, “anticipate that many firms will want to implement their own testing programs and even conduct the same kind of testing that FSIS plans to carry out.”

According to FSIS, establishments that manufacture raw, non-intact beef products (or intact raw beef components of those products) will be expected to evaluate whether non-O157:H7 STECs are a hazard reasonably likely to occur. If a company’s HACCP plan cites O157 as a hazard reasonably likely to occur. If so, those companies will also be expected to reassess their HAACP plans and address the new hazard accordingly; likely by testing for it.

Finally, in the event that FSIS finds a non-O157 STEC in a regulatory sample, it will conduct a for cause food safety assessment (FSA), "as it does currently for E. coli O157:H7-positive [regulatory] samples."

With this as the prelude, FSIS is inviting comments on its proposal from public and industry. Since it currently intends to begin testing for non-O157:H7 STECs as soon as March 2012, however, the agency recommends that any comments be submitted no later than November 1, 2011. Thus, while rules are never really meant to be broken, they are, at least in this case, meant to be critiqued.

So, while FSIS has indeed created a "new set rules" as they apply to non-O157:H7 STECs, you may be able to influence, at least in part, how those new rules will ultimately be implemented and enforced.

USDA Declares "Big Six" Non-O157:H7 STECs As Adulterants

Shawn Stevens — Thu, 15 Sep 2011 12:13:01 -0600

After years of deliberation, USDA has formally declared six additional pathogenic E. coli serogroups (O26, O45, O103, O111, O121 and O145) to be adulterants in non-intact raw beef.

From this point forward, any raw ground beef or tenderized steaks found to contain these pathogens will be prohibited from sale to consumers.

While some within the beef industry reacted warmly to the news, others where not so receptive. In a September 13^th, press release, AMI Executive Vice President James H. Hodges criticized the foundation of the new policy:

“This new policy is not supported by science and likely will not benefit public health. Indeed, in the policy notice USDA acknowledged that ‘we do not know how many illnesses will actually be prevented. It is not clear whether or not there will be a reduction in the number of illnesses. It is also challenging to know what the industry cost will be because it is difficult to predict how many establishments will start to test and what the size distribution will be or to what extent industry will take additional measures that will prevent, reduce, or control those hazards, as they do with regard to O157 STEC.”

Indeed, in many ways, the issue has given way to more questions than answers. Processors, especially small ones, are asking how they will be able to adapt to the likely array of new testing requirements and protocols which may soon be be expected of industry. Moreover, as of today, the time needed to carryout the tests has been causing significant problems for those companies which are already testing.

“It can be a cumbersome process,” Craig Letch, director of quality assurance for Beef Products Inc., told Meatingplace. Letch said that while testing for E. coli O157:H7 can hold up a product shipment for days, there have been times when products being tested for the new strains have been held for even longer, “if in fact you have reactivity.”

Many companies, especially those dealing in fresh products, simply do not have the space or capacity to hold their products for nearly a week before shipment. The added expense of not just testing, but then instituting new programs and holding product for extended periods of time, could significantly and adversely affect both industry and consumers alike.

I have always been the first to commend USDA for demonstrating a real commitment to food safety. In the absence of any real studies supporting this decision, however, the policy appears to have been driven more by sensationalism than by science.

While it may feel good to declare a bug an adulterant, there is little to show, at this point, that it will have any effect on making our food safer.

I sincerely hope that I am proven wrong.

The New Food Safety Modernization Act: What IS a Food Safety Plan?

Shawn Stevens — Tue, 30 Aug 2011 11:58:40 -0600

Anyone involved in the food industry has now heard about the recent passage of the Food Safety Modernization Act (“FSMA”).

Although the FSMA imposes many new and (some might argue) exotic requirements on industry, the one that will likely have the greatest impact on food companies is the mandate that they “develop and implement written food safety plans.” In turn, many companies are now asking, what does this really mean? Although none of us can be certain until the FDA begins enforcing the new laws (starting in June 2012), we can give you a pretty good sense of what to expect.

Following the passage of the FSMA, and in an attempt to keep things sounding as simple as possible, the FDA announced in its promotional materials that, moving forward, food companies will simply be required to adopt “Food Safety Plans.” But things, of course, are not always as simple as they sound. In regulatory and legal terms, this means that regulated food companies will soon be required to develop and then closely follow the Hazard Analysis and Critical Control Point (“HACCP”) methodology.

So, what is HACCP? Well, at its most basic level, it’s a system designed to address the food safety hazards we fear most. The HACCP concept was first developed by Pillsbury in the 1960s, as a quality control program to govern the production of food for the United States space program. Under the HACCP methodology, a food processor would first identify the hazards reasonably likely to affect the safety of its food (including the introduction of chemical, physical and microbiological contamination), and then establish various critical control points where interventions could be used to prevent, reduce or control those hazards. Ultimately, HACCP was critically important for NASA as it worked to ensure that the meals its astronauts were taking into space would be as safe (and as free from unwanted contamination) as possible.

Years later, in the early 1980s, Foster Farms (a California company) was one of the first meat processors to introduce HACCP into its own operations. Thereafter, in 1985, HACCP gained additional notoriety when the National Academy of Science recommended HACCP as a means to modernize the USDA’s meat inspection system. Eventually, in the 1990s, USDA mandated HACCP for all meat and poultry production in the United States. At about the same time, FDA mandated HACCP for all seafood production, and extended these requirements in 2001 (in response to numerous outbreaks involving unpasteurized juices) to the domestic juice industry. And, more recently, recognizing how HACCP has improved the overall safety of these products, FDA successfully petitioned to have the new FSMA extend HACCP to all other segments of the food industry. Thus, with only a few exceptions, the FDA will soon require all food companies regulated by the agency to develop and closely follow their own HACCP plans.

In turn, according to the FDA, the underlying goal of HACCP is to prevent problems from occurring in the first instance. Although describing the HACCP methodology can be somewhat complex, food companies will generally be required to: (1) formally consider and identify all reasonably foreseeable food safety hazards; (2) develop written plans addressing each of those hazards; and (3) closely follow those plans to reduce or eliminate such hazards to the greatest extent possible. More specifically, the underlying principles of HACCP will require regulated food companies to do the following:

Assess Hazards: Conduct a hazard analysis to identify reasonably foreseeable food safety hazards, and develop reasonably appropriate control measures for each;

Determine Critical Control Points: Identify appropriate critical control points (“CCPs”) where a control measure can be applied to prevent or reduce an identified hazard;

Establish Critical Limits: Define acceptable and unacceptable science-based limits for all CCPs, and use those limits to ensure the production of a consistently safe product.

Establish Monitoring Procedures: Monitor each CCP continuously in order to identify and immediately address any deviations from the critical limits which may occur;

Establish Corrective Actions: Develop procedures to be followed in the event of a deviation, which should include an assessment of the root cause, the disposition of affected product, and a written record of any corrective actions;

Establish Verification Procedures: Test and critique the HACCP plan, once designed (and periodically thereafter), to verify that the HACCP plan is working correctly;

Establish a Record Keeping System: Develop a system to maintain and catalog all HACCP documentation for at least 2 years, in such a form that any records can be promptly made available to the FDA if requested by the agency for inspection.

Recognizing this may be a lot to swallow, there are plenty of resources available to help companies develop their own HACCP plans. As a starting point, and although they should never be used as a substitute for a well-designed program which will withstand agency scrutiny in your specific facility, both the FDA and numerous industry associations have published basic guidance materials online (and will likely be publishing additional materials in the months to come).

In addition to these background materials, there are numerous industry consultants and lawyers who will be available to help you develop, refine and critique your HACCP plan. In this regard, all companies should strongly consider obtaining advice from a qualified expert in the field as they work to ensure compliance. This is because a company’s HACCP plan will not only need to be scientifically and legally sound, but the plan itself will, for all practical purposes, become a direct extension of in-plant federal FDA regulation. Put simply, the FDA’s new regulations will not only require that your HACCP plan be adequate, but that it also be followed precisely.

So, what IS a Food Safety Plan? Technically speaking, it is a comprehensive science-based HACCP plan. In lay terms, however, it’s a proven system designed to address the food safety hazards we fear most.

The Food Safety Modernization Act: FDA's Six Month "Progress Report"

Shawn Stevens — Mon, 15 Aug 2011 11:19:25 -0600

The Food Safety Modernization Act (“FSMA”) has now been law for more than six months. In turn, FDA issued a progress report on its implementation efforts since the FSMA was signed into law last January:

Preventive Controls:

In April, almost 500 persons participated in the agency’s public meeting seeking information on preventive controls used by industry to identify and address hazards associated with specific types of food and specific processes. FDA is actively seeking further industry comment (through August 22) on its rulemaking for preventive controls. Please click on the following links to review the docket on preventive controls and submit your comments electronically or via mail.

Imported Foods:

More than 500 persons were given the opportunity in a March public meeting to weigh in on each of the four FSMA import safety provisions: Accredited Third-Party Certification; Import Certifications of Food; Voluntary Qualified Importer Program; and Foreign Supplier Verification Program.

On May 5, 2011 FDA issued an interim final rule requiring that a person submitting prior notice of imported food, including food for animals, to report the name of any country to which the article has been refused entry.

Food Smuggling:

On July 3, 2011 FDA issued a joint anti-smuggling strategy developed with the Department of Health and Human Services (HHS) and the Department of Homeland Security (DHS) to prevent smuggled foods from entering the United States and potentially threatening consumer safety and national security.

Registration Suspension:

Effective July 3, 2011 FDA has the power to suspend the registration of a food facility, thus ceasing operations, if it believes there is a “reasonable probability” that food from the facility could cause harm to humans or animals.

Administrative Detention of Food:

Also on July 3, 2011 the rule on criteria under which FDA may order administrative detention of food product went into effect. FSMA lowered the standard, granting FDA the power to detain food product for up to 30 days if it has “reason to believe” that a product is adulterated or misbranded and may cause harm to humans or animals. Click on the following link to review the Rule on Administrative Detention.

Seafood:

FDA issued an updated guide to the seafood industry on appropriate controls for hazards associated with fish and fishery products. Industry may employ different controls if the alternative controls satisfy the applicable statute and regulations. Click on the following link to view Seafood Hazard and Control Guidance.

Inspections and Compliance:

In June, almost 700 people participated in the agency’s public meeting regarding FDA’s development of guidance and regulations and/or the implementation of: Enforcement Authorities; Frequency and Targeting of Facility Inspections; Manner of Inspection in a Preventive Controls Environment; and Enhancement of the Reportable Food Registry (RFR).

Funding:

FDA’s progress report did not touch on what might be FSMA’s biggest obstacle: funding. The agriculture appropriations bill recently passed by the House of Representatives would decrease funding to the FDA next year by $87 million.

Hopefully, the agency is receiving abundant, constructive advice from industry that will lead to practical regulations which facilities can utilize to improve their food safety, regardless of whether FDA is able to frequently stand over their shoulders and inspect.

FDA Continues Work On Rules Governing Preventative Controls

Shawn Stevens — Fri, 22 Jul 2011 10:49:31 -0600

Moving forward, the Food Safety Modernization Act (“FSMA”) requires the U.S. Food and Drug Administration (“FDA”) to issue rules governing preventive controls in FDA registered food facilities. In turn, food facilities must develop, no later than June 2012, written Hazard Analysis and Critical Control Point (HACCP) plans which are compliant with those rules.

Under FSMA, HACCP plans must identify all known or reasonably foreseeable hazards that may be associated with a food facility and then spell out the preventive controls which assure that the hazards will be minimized or prevented and food will not be contaminated.

Effective preventive controls yield safer food and are, undoubtedly, one of the top weapons against foodborne illness. Given the incredibly diverse range of food facilities and products which FDA regulates, how can its rule on preventive controls reconcile with the equally diverse range of controls needed by these facilities?

Hopefully, industry input will help. “The preventive-controls requirement of FSMA is one of the most important aspects of this historic law on food safety,” said Michael R. Taylor, deputy FDA commissioner for foods. “It’s imperative that we get information, data and feedback from industry and other stakeholders.”

FDA held a public meeting regarding preventive control rule-making in April (click on the following link to view the public meeting transcript), and is now seeking industry comment in electronic or written form through August 22, 2011. Click on the following link to submit your comments electronically or via mail.

FDA regulated food facilities should take care to review the status of preventive control rule-making, and also provide comments to help, where possible, shape the new regulations. Click on the following link for updates on the status of FDA preventative control rule-making.

Should State and Local Health Departments Be Accredited?

Shawn Stevens — Sat, 18 Jun 2011 10:39:40 -0600

I will dare to venture that many people do not appreciate the vital role our local and state health departments must play in the health of our communities. Health departments perform a wide range of wellness initiatives, including, just to name a few: reaching out to new parents, educating about disease prevention and management, promoting clean air and water, administering to low-income families and the elderly, and supplying disaster assistance. In addition, our health departments track a dizzying array of statistics to monitor and improve our well being.

Health departments also play an important role in assuring food safety by teaching about safe food handling practices, inspecting grocery stores and restaurants, and investigating foodborne illnesses and outbreaks.

Given the significance of public health, a movement has been underway since 2007 to create a national system for ensuring the accountability and quality of our health departments. Spurred by two Institute of Medicine studies which found that public health in America was in disarray, the non-profit Public Health Accreditation Board (“PHAB”) was created and tasked with launching a national public health accreditation program.

The CDC, a sponsor of PHAB, stated that "Just as the public expects hospitals, law enforcement agencies and schools to be accredited so should they come to expect public health departments." The accreditation program, set to launch this coming fall, requires health departments to meet stringent requirements for 10 essential areas of public health activities and demonstrate a commitment to constant improvement. Some of the benefits of accreditation include:

People from the east to west coast can expect the same quality of health services no matter where they live;

The accreditation process provides measurable feedback to health departments on their strengths and weaknesses so they can better serve;

Accreditation is an opportunity for health departments to promote what they do and show taxpayers that dollars are well spent; and

Top health professionals will be drawn to employment at accredited departments.

One area in which health departments will be evaluated is their ability to investigate environmental health hazards. Whether a health department meets this standard could mean the difference between your company’s future success or future decline.

Largely due to an increase of reported foodborne illnesses and outbreaks (brought about by advances such as PulseNet and PFGE and MLVA testing), health departments are under increasing pressure to solve more and more outbreaks at any one time. In turn, this pressure, and limited or unqualified resources, can lead health departments to reach erroneous conclusions about the sources of foodborne illness outbreaks. Unfortunately, I have defended several wrongly accused, innocent companies.

I have had the pleasure of interacting with some incredible health departments, but based on my numerous poor experiences, it is a solid step for all health departments to apply to this voluntary accreditation program. If a health department does not apply to compare itself against the other health departments in the country, and the national standards approved by PAHB, then communities should ask why. Accredited or not, however, if a health department report comes across my desk, we will, as always, thoroughly verify its conclusions before advising our clients.

OIG Questions E. coli O157:H7 Testing; Still No Approval Of Carcass Irradiation

Shawn Stevens — Sat, 28 May 2011 10:31:26 -0600

In November 2009, U.S. Rep. Rosa DeLauro, Chairwoman of the House Agriculture-FDA Appropriations Subcommittee, asked the USDA’s Office of Inspector General (“OIG”) to investigate the efficacy of the Food Safety and Inspection Service’s (“FSIS”) N-60 sampling method to test beef trim for E. coli O157:H7.

In response, the OIG spent six months, from January to June 2010, auditing the FSIS’s N-60 program, and then issued the first portion of its findings in March 2011. Click on the following link to view a copy of the “Phase I” report. The detailed, 40-page report concludes that FSIS must thoroughly reevaluate its N-60 sampling program for testing beef trim.

The report demonstrates that an incredible amount of work has been done, and remains to be done, by both the OIG and the FSIS on this issue. The OIG has not yet even performed “Phase II” of its investigation. The bottom line is that FSIS will increase the amount of testing it performs for E. coli O157:H7.

While some positive changes will flow from the OIG investigation (perhaps from the Phase II evaluation of whether plants are following proper protocols for their own sampling and testing), there are valid questions about the investigation’s merit. Should so many more resources be invested in the concept of testing when we can never test to zero? As the prevalence of E. coli O157:H7 in beef continues to decrease, are we just going to continually increase our testing to look for a needle in the haystack that, thankfully, is now rarely present? Can the FSIS rely more heavily on the robust E. coli O157:H7 testing already being done by industry?

Testing is an important part of the validation process, but as OIG concedes, “testing alone cannot suffice to ensure that consumers are safe from a pathogen like E. coli O157:H7.” It is striking that the response to Rep. DeLauro’s request to the OIG regarding N-60 testing was expedited, but the industry’s petition to the FSIS for carcass irradiation has gone unanswered (Despite Safety Benefits, FSIS Delays Approval Of New Food Safety Technology).

Over five years ago, the American Meat Institute (“AMI”) submitted a petition to the FSIS to approve the use of carcass e-beam irradiation technology in meat plants. AMI requested that the petition be granted so that low levels of irradiation could be applied to the surface of chilled beef carcasses as a food safety processing aid. The use of this technology has proven to be an effective measure in reducing the presence of pathogens in raw meat products.

Carcass irradiation is an intervention that could immediately increase the safety of our food. We implore the FSIS to approve carcass irradiation without any further delay.

Staphylococcus In Raw Animal Products Likely Creates Little Cause For Concern

Shawn Stevens — Sat, 14 May 2011 10:18:07 -0600

Attention grabbing headlines in recent media reports have suggested that Staphylococcus aureus (S. aureus) exists in nearly half of U.S. meat. The authors of a study published in the journal Clinical Infectious Diseases recently suggested that “U.S. meat and poultry is widely contaminated.” Researchers collected and analyzed samples of beef, chicken, pork and turkey and reported that nearly half of the samples — 47 percent — were contaminated with S. aureus bacteria, and more than half of those bacteria — 52 percent — were resistant to at least three classes of antibiotics.

In turn, many of these stories have improperly questioned the safety of our meat supply. The study, however, likely creates little cause for concern.

Setting aside the fact that S. aureus are easily destroyed when meat (or any other food products) are cooked properly, American Meat Institute (“AMI”) concluded, and we agree, that the research was also misleading for the following reasons:

The study’s small sample size was insufficient to reach the sweeping conclusions conveyed in a press release about the study. The study involved only 136 samples of meat and poultry from 80 brands in 26 retail grocery stores in five U.S. cities. In comparison, when the U.S. Department of Agriculture studies the prevalence of bacteria, their work involves thousands of samples collected over long periods of time to ensure accuracy.

Data from the Centers for Disease Control and Prevention show steady declines in foodborne illnesses linked to consumption of meat and poultry overall and indicate that human infections with S. aureus comprise less than one percent of total foodborne illnesses.

According to a new white paper authored by Ellin Doyle, Ph.D., of the University of Wisconsin’s Food Research Institute, S. aureus bacteria are found in half of all human nasal passages, and only two foodborne outbreaks of the antibiotic resistant strain of this bacteria (“MRSA”) have been identified and both were attributed to food handlers contaminating food – not to the food source itself.

The study criticizes U.S. production methods and suggests that they cause antibiotic resistant bacteria to develop, but Doyle’s white paper documents that similar incidence patterns can be observed in livestock in many countries with a variety of different production methods.

Industry has developed amazing processes and technologies to render American meat and poultry the safest in the world, and consumers can take simple steps to make it even safer. This study made headlines about bacteria being found in “nearly half” of our meat. The reality is, however, that consumers should treat all raw meat as if it contains bacteria. Raw meat must be stored and prepared separately from ready-to-eat foods. Restaurants and homes must have cutting boards designated solely for raw meat. Hands, utensils and any surfaces which come into contact with raw meat must be carefully washed. Finally, cooking raw meat to the proper temperatures will destroy bacteria.

The New Food Safety Modernization Act (FSMA) - What Your Company Needs To Know

Shawn Stevens — Wed, 27 Apr 2011 14:59:03 -0600

The FDA's Food Safety Modernization Act (FSMA) is now LAW.

On April 21, 2011, nationally-recognized food safety professionals gathered at Marquette University Law School in Milwaukee to explain the new legislation and how the new laws will affect the food industry. Representatives from federal and state food regulatory agencies, leaders of numerous food industry groups, and food safety executives from some of the largest food companies in the nation offered their unique perspectives, and answered pressing questions, regarding the new law

This industry-leading food safety conference (the New Food Safety Modernization Act -- Approved) was a huge success. In turn, we are looking forward, in coming months, to offer a similar program as FDA continues to develop and publish the new food safety regulations which will soon follow.

Click on the following link to download a copy of the seminar program, and feel free to contact us for additional details regarding future events: