Raw Hamburger

OnJuly 22, 2012, Cargill Meat Solutions Corporation (“Cargill”) announced a Class I voluntary recall of approximately 30,000 pounds of fresh ground beef due to contamination from Salmonella Enteritidis.   The recall follows a Salmonella outbreak involving 33 patients in seven states (MA, ME, NH, NY, RI, VA, VT).  An investigation performed by the Food Safety and Inspection Service (“FSIS”), the regulatory agency responsible for ensuring that our country’s commercial supply of meat is safe, has linked five cases of Salmonella infection to ground beef produced by Cargill on May 25, 2012.

Additional incidences of salmonellosis related to the meat subject to the recall should be few, as the onset of the five illnesses which were traced back to the subject ground beef were all well over a month ago, between June 6, 2012 and June 13, 2012.  Symptoms of salmonellosis, which include diarrhea, abdominal cramps and fever, generally manifest between 12 and 72 hours after consumption.  The use by date on all ground beef recalled by Cargill has passed.  Accordingly, none of the meat recalled is presently available for retail purchase.   Concerns remain, however, with respect to whether consumers may have stored potentially contaminated meat in their freezers for later consumption.

Cargill recalled 36 million pounds of ground turkey in August of 2011, after 107 people in 31 states were infected with salmonellosis.   In response to the last recall, Cargill temporarily halted ground turkey production at its Springdale, Arkansas facility in order to implement additional quality and testing standards.   Cargill has not yet determined the source of the bacteria contamination in relation to the present recall.  Accordingly, it is unclear what measures Cargill will implement to prevent future incidents of contamination.

Though it remains early in the recall process, Cargill has performed admirably in working to protect public health, while at the same time protect its brand and minimize the commercial impact of the current Salmonella Enteritidis contamination.

An effective recall requires preparedness, a rapid response, transparency, and a focus on the consumer.  Cargill has exhibited all of these qualities in this instance by:

  1. quickly identifying the potentially contaminated batch of ground beef;
  2. rapidly initiating a voluntary recall;
  3. working effectively with the FSIS to protect consumers against further infection; and
  4. issuing an apology to those who have become ill.

Now, Cargill must work to identify the source of the Salmonella Enteritidis contamination so it may implement measures aimed at the prevention of any future occurrences and attempt to restore consumer confidence.
Continue Reading Cargill Initiates Salmonella-Related Recall Of Ground Beef Distributed In The Northeast

Ben & Jerry's Chocolate Nougat Crunch Ice Cream

With the Summer Solstice only days away, and peak ice cream eating season upon us, Unilever,PLC, the company which owns Ben & Jerry’s, is voluntarily recalling pints of Ben & Jerry’s Chocolate Nougat Crunch Ice Cream because the container label does not include a statement which warns that the product was manufactured on equipment also used to process peanuts and tree nuts.  In its press release concerning the recall, the Food & Drug Administration (“FDA”) warned that individuals who have an allergy to nut products would “run the risk of serious or life-threatening allergic reaction if they consume” this Ben & Jerry’s product.  The ice cream was distributed to retailers nationwide and it appears that the pints reached shelves for consumer purchase. Luckily, no illnesses have been reported to date.

In 2004, Congress passed the Food Allergen Labeling and Consumer Protection Act (“FALCPA),” which mandates the labeling of food allergens on packaged foods.  The Act was added to the Federal Food, Drug and Cosmetic Act and became effective in 2006.  21 U.S.C.  § 321.  FALCPA requires that manufacturers of foods which contain one of the eight major allergens responsible for 90 percent of food allergies (which includes peanuts and tree nuts) either:

  1. state on the food’s packaging that the food contains the allergen; or
  2. refer to the allergen in the ingredients listing.

According to the Food Allergy and Anaphylaxis Network, 4 percent, or 9 million adults, and about 8 percent or 6 million infants and young children in theU.S., suffer from food allergies. Every 3 minutes a food allergy sends someone to the emergency room in theUnited States.  In fact, more than 200,000 consumers require emergency room treatment each year.  According to the FDA approximately 150 Americans die each year from food allergies.  This is a large pool of potential claimants and you can rest assured that plaintiff firms are well aware of the statistics and track labeling related recalls closely.

We continually advise our manufacturing and processing clients that proper labeling, especially with respect to allergens is critically important.  We help insure that they have appropriate checks and balances surrounding food production and labeling.  Furthermore, we remind our retail (i.e. grocery stores and restaurants) and food services clients that they are held to the same FALCPA labeling standards if they package food for consumption at their facilities.

The Ben & Jerry’s recall is the perfect example of a situation that could result in serious food borne illness claims, and even wrongful death claims.  These claims can be difficult to defend if the labeling practices of a company violated FALCPA, and a claimant can provide proof that they consumed the mislabeled product and suffered an adverse reaction.  In cases such as the Ben & Jerry’s recall, an experienced plaintiff firm’s first step will be to attempt to preserve the food item and any packaging.  As such, any company conducting a recall for mislabeling should not destroy the product at issue, or risk a spoliation claim from future claimants.  Allow this
Continue Reading Ben & Jerry’s Recall: Container Label Missing Nut Allergen Advisory in Chocolate Nougat Crunch

Raw Hamburger As we reported several weeks ago, there has been a media fueled public outcry against the inclusion of Pink Slime, which is otherwise known as, “lean finely textured beef,” or “LFTB,” in ground beef.  LFTB is comprised of the beef scraps which remain after the valuable cuts of meat are sold.  These pieces of meat are separated from fat through the use of a centrifuge, and treated with ammonium hydroxide to kill harmful bacteria. The result is a safe, edible, high quality beef product containing the same nutritional value as other ground beef.   In fact, the United States Department of Agriculture (USDA) continues to proclaim that both LFTB and the use of ammonium hydroxide to eliminate bacteria in meat are safe.

Despite the USDA’s continued support for LFTB, the social media led firestorm directed against LFTB has caused a significant backlash against the product.  For example, all but three states which participate in the National School Lunch Program (NSLP), which is administered by the USDA to provide low income school children with a free or reduced cost  lunch, now refuse to purchase ground beef which contains LFTB, despite the fact that it costs three percent less than the alternative. In addition, many restaurants, including McDonalds, and supermarket chains have followed suit and ceased the sale of ground beef which contains LFTB. As a result, many large beef producers have suffered large declines in revenue.  In fact, Beef Products, Inc. (“BPI”), the largest LFTB manufacturer, was forced to close three of its plants and lay off 650 employees.

In an effort to resuscitate their flagging businesses, many beef producers recently submitted requests to the USDA to add labels indicating the inclusion of LFTB. In response, the USDA instituted a voluntary labeling initiative, which many beef manufacturers have already put into practice.   In a further effort to increase transparency and dispute misinformation, BPI has also set up a website, www.beefisbeef.com, which provides valuable factual information about LFTB and the way it is produced.

The impact which the “Pink Slime” phenomenon has had upon the beef industry and the speed with which it developed are staggering.  The sale and consumption of LFTB had been widespread for more than thirty years, with USDA approval. Nevertheless, in a span of a few months, one of the country’s largest industries was derailed through the lightning fast spread of misinformation and misperception.   Perhaps, the lesson to be learned by the food industry is that transparency is the only way to prevent attacks such as those waged against LFTB.
Continue Reading UPDATE: The Pink Slime Backlash

Raw HamburgerOn May 2, 2012, the United States Department of Agriculture (“USDA”) announced a series of prevention-based policy measures that it believes will better protect consumers from foodborne illness in meat and poultry products.

The USDA states that the purpose of these new regulations is to better allow both manufacturers and the USDA to:

(1)  trace contaminated food materials in the supply chain;

(2)  react more quickly to contamination; and

(3)  establish effective food safety systems.

The first measure will allow the USDA’s Food Safety and Inspection Service (“FSIS”)  to speed up the process for tracking E. coli O157:H7 in the nation’s food supply.  Currently, after an initial report of E. coli, USDA officials are required to wait for additional confirmation before they can begin an investigation.  These new measures will now allow FSIS to  initiate its investigation after the first indication of a positive test and move quickly to identify the source of the contaminated product and any processors who may have received contaminated product.  Once the source is properly identified, FSIS can issue instructions for minimizing consumer cases of foodborne illness accordingly.

The second key measure announced by the USDA is the implementation of three provisions included in the Food, Conservation and Energy Act of 2008.  These provisions will now require food establishments to:

(1)  prepare and maintain recall procedures on site;

(2)  notify FSIS within 24 hours that a meat or poultry product which could harm consumers has been shipped into commerce; and

(3)  document each reassessment of their hazard control and critical control point (HACCP) system food safety plans.

In addition,  USDA will make publicly available guidance to plants on the steps that are necessary to establish that their HACCP food safety systems will work as designed to control the food safety hazards that they confront. This process, called “validation,” enables companies to ensure that their food safety systems are effective for preventing food borne illness.  The guidelines will be available on the USDA website.

Proactive compliance with food safety standards, such as these recent measures enacted by USDA is of paramount importance to any company in the food industry. We advise our clients that such a proactive approach is essential to minimize risk, protect  the company’s brand name, and most importantly, to protect the customer. As such, all food manufacturers, suppliers and processors should, as soon as possible, ensure that their plants are in compliance with the new USDA measures, particularly with respect to reporting potential contamination and documenting any changes to a HACCP plan.  Furthermore, companies should preemptively review the HAACP plan guidelines released by USDA to confirm that their food safety systems are adequate and in compliance with federal laws.  The USDA expects the new regulations to go into effect in July, which just happens to coincide with the peak grilling season in the United States.
Continue Reading USDA Tightens Oversight and Announces New Foodborne Illness Measures

nanotechnologyNanotechnology is a cutting edge technology which involves the use of engineered, non-soluble material so tiny, it cannot be seen through a light microscope. Through manipulation of the chemical, physical and biological properties of nanomaterials, manufacturers can significantly alter the product into which they are added.   The potential capabilities of this technology in the food industry are endless. For instance, nanotechnology may be used in food packaging to keep products fresher and increase shelf life. Moreover, nano-based compounds can be used in food to enhance flavor or provide additional vitamins and minerals.

On April 20, 2012, the U.S. Food and Drug Administration (FDA) issued a draft guidance which addresses, among other things, the use of nanotechnology in food manufacturing and packaging materials. Though not legally binding, the draft guidance provides manufacturers with significant insight into the FDA’s current thinking on the use of nanomaterials in food products and packaging, as well as the direction in which the FDA may head in the future. The FDA makes it very clear as to its view on the potential risk such technologies present to both the consumer and food industry:

The consequences (to consumers and to the food industry) of broadly distributing a food substance that is later recognized to present a safety concern have the potential to be significant.

USA Today News reported that based upon the draft guidance, it appears that the FDA will place increased scrutiny upon food products and packaging which utilize nanotechnology. The draft guidance provides criteria to be used by food manufacturers to determine whether changes to the manufacturing process, including the use of nanotechnology, are authorized under the food additive or color additive regulations. According to the draft guidance, changes which utilize nanotechnology would likely fall outside the purview of those regulations, and therefore would be subject to increased regulatory scrutiny.  A recent article written by Chicago Tribune reporter Anna Yukhananov, reported that companies which utilize engineered nanoparticles in the manufacture of a particular food or food packaging may be required to affirmatively demonstrate, through additional testing, that their product is safe before they can introduce the product into the market.  Further, that the food manufacturers which utilize nanotechnology are “encouraged” to make regulatory submissions to the FDA for its approval before marketing the product, a process which is not required before a company can sell products which use approved additives.

The FDA’s recent draft guidance suggests that it will be cautious and thorough in its oversight of nanotechnology.   The long-term impact of the use of engineered nanoparticles is largely unknown, and the FDA is scrambling to get ahead of the curve.  By imposing heightened regulatory requirements on companies who wish to utilize nanotechnology in their products, the FDA will transfer the responsibility and cost of assessing the safety of this new technology onto the food industry.  The FDA’s stance will likely result in a delay in the introduction into the marketplace of products which incorporate nanotechnology, as company’s assess whether the benefits outweigh the
Continue Reading FDA Pumps The Brakes On Nanotechnology In The Food Industry