If you’re a farmer or food manufacturer, don’t drive the food-safety bus off the cliff.


That was the message that Seattle food-safety attorney Bill Marler, publisher of Food Safety News, shared with his audience of more than 500 people, many of them small-scale farmers and local-food advocates, during his keynote presentation, “Producing Food Can Be a Risky Business,” at the Nov. 3 Focus on Farming 2011 in Everett, WA.

Along with that advice, came admonitions for farmers to keep a vigilant eye on farming practices and places on their farms or processing facilities that would allow potentially deadly foodborne pathogens such as E. coli, Salmonella, or Listeria to contaminate their food.

“What you do impacts all of us,” Marler said, emphasizing that farmers and food manufacturers play a “vital role” in food safety. To put it another way, they are, in fact, in the driver’s seat of the food-safety bus.

As an attorney who represents people who have become ill — sometimes with life-long health problems — or families who have lost a loved one,  Marler knows firsthand that foodborne illness outbreaks aren’t just about statistics. They’re about “real people.”

“I see this in a much more real way,” he said, referring to Centers for Disease Control and Prevention statistics that point to an estimated 48 million cases of human illnesses, 125,000 hospitalizations and up to 3,000 deaths each year caused by foodborne pathogens.

With that much said, he showed the audience a heartrending video featuring a mother and father who lost their 7-year-old daughter, Abby Fenstermaker, to E. coli caused by contaminated hamburger. Unable to contain his grief, the father told of when the decision to pull Abby off life support was made, he asked the doctor to open the shades so his once lively and fun-loving daughter could go outside to play. She died two minutes later, the mother said through her tears.

After several moments of silence, Marler interjected a somber note of warning: “The thing about E. coli is that it doesn’t really care” about how big or small a farm is or what food it contaminates — anything from sprouts to hamburger. Bottomline: that’s why it’s so easy for a farmer or manufacturer to get into legal trouble.

Setting the stage for some courtroom dramas with smoking guns, Marler told the audience that in every foodborne illness outbreak he’s been involved in — large or small — in the past 20 years, there were always opportunities to turn the bus around before it went off the cliff.

Case in point. Twenty years ago, when undercooked hamburgers, contaminated with E. coli and served in Jack-in-the-Box restaurants, sickened 650 people, put 50 children in the hospital with acute kidney failure, and killed four, Marler won legal battles against the fast food chain, in large part, by showing that the company had been warned that “the bus was headed for a cliff.” 

First a short look back: In early 1992, Washington state had begun requiring hamburgers to be cooked to an internal temperature of 155 degrees — instead of 140 degrees. Marler told of a red warning flag that Wendy Cochinella, a company shift leader in Bellingham, WA, had waved in front of the bus.

Filling out a form for the suggestion box in June 1992 — 7 months before the Jack-in-the-Box E. coli outbreak — the shift leader said that she thought regular patties should cook longer because they were not getting done (at the lower temperature), and customers were complaining. In describing the benefit of making the change to cook them longer, she said the company’s burgers would be “done and edible.”


Marler said that when this suggestion was faxed to headquarters, testing was done, and it became evident that there was a difference between how the chain’s old and the new grills cooked the burgers. Even so, the company didn’t require the burgers to be cooked for more than two minutes on the older grills.

Long story short, the old grills, of which there were many at the time, weren’t thoroughly cooking the burgers.

“The bus went off the cliff,” Marler said.


Another bus story: In 1996, juice and food-bar producer Odwalla got a warning that its bus was headed for a cliff. This time it came from none other that the U.S. Army. After trying to sell its apple juice to the Army for its bases, the company was advised that inspectors had reviewed deficiencies in the plant’s sanitation and decided they couldn’t assure that the juice would be suitable for military consumers.

“You would think that if Odwalla couldn’t sell the juice to the U.S. Army, it would think whether it should sell it to pregnant women and children,” Marler said. That fall, Odwalla’s unpasteurized juice sickened 80 people and killed a two-year-old toddler.

When Marler launched a lawsuit against the company, he discovered that before the outbreak, Odwalla officials had debated over whether the juice should be tested for bacteria. But the fear was that if they did test the juice, they might come up with a body of information that could fall into “the wrong hands.”  The conclusion came down to: Let’s not test. We don’t want to know.

 “The bus went off the cliff,” Marler said.

Pointing out that “these things happen,” Marler said that when they do happen, it’s because of a number of errors, most of them having to do with things that people could have corrected.

With that as a “courtroom” introduction to the important role that people in the food business can play in averting foodborne-illness catastrophes, Marler dove into the controversy over whether food from small, local farms is safer than food from corporate ag.

The recently passed Food Safety Modernization Act includes an amendment that grants most small-scale producers an exemption from many of the bill’s requirements, such as inspections.

Pointing out that the bacteria and viruses of today are “bigger, stronger, and faster” than when he was growing up on a farm,  Marler urged farmers to identify the possible hazards on their farms and in their manufacturing operations and to stay up-to-date and tuned into “science” when they make decisions about food-safety practices. Doing nothing can put their customers in harm’s way.

And that’s where one of the risks of farming — the threat of lawsuits — comes into the picture.

 “. . . it won’t be any fun if I catch you,” he warned.

With that blunt message, he urged the farmers to adopt a culture that makes food safety part of “absolutely everything you do.”

“It’s has to be the first thing you think of in the morning,” he said. ” Believing your food is safe, isn’t enough.”

He said he gets a lot of e-mails from small-scale local ag folks who really believe that because they’re small and local that their food is inherently safe.

 “Safer, maybe,” he said, “but not inherently safe.”

That’s why he becomes so frustrated when he hears mantras such as “Know your farmer,” and “If you can look your farmer in the eye, you know the food is safe.”

“To me, that’s not a satisfatcory answer,” he said.

And while he was quick to say that the vast majority of foodborne illness outbreaks in the United States have been linked to mass-produced food or locally produced food that
had been mingled with oth
er foods or processed, he also said that the reason so many outbreaks have been traced to “big ag,” could be that the cause of the illnesses was easier to pinpoint due to the number of people sickened.

“Perhaps local, sustainable, organic, non-GMO (genetically modified organisms) ag does in fact sicken less people,” he said. “But the reality from a bacteria or virus’s perspective is that local food can become contaminated between the farmer you know and the fork you put in your mouth just as easily as the food you eat in a chain restaurant. Bacteria and viruses simply don’t make that distinction.”

In that same vein, Marler advised local-food consumers to trust their local farmer, but also verify that the farmer is following food-safety standards.

Looking to the future, especially in reference to small-scale agriculture’s goal to be sustainable, Marler said that the farmers need to be proactive when it comes to food safety.

“Without food safety, local, sustainable, organic, non-GMO agriculture will remain a niche and that’s no future at all,” he said.

Did his message to the farmers and local food advocates come in muffled or loud and clear?

Whatever the answer to that question, the audience responded to his talk with a robust round of applause.

And in comments to the audience following his talk, local farmer Linda Neunzig, agricultural coordinator for Snohomish County, and the person who invited Marler to speak at the conference, thanked him for “sharing what we need to do.”

“None of us wants to get people sick,” she said. “It can’t be ‘it can never happen to me.’ It’s what can we do to make sure it never happens to me.”  In an interview with produce grower John Postema, also co-owner of Flower World, after the talk, Postema described food safety as a “very loaded issue.”

For him, the question is what is the acceptable level of risk that society wants to bear.

“If you insist on ‘no risk,’ we will all starve to death,” he said.

Although he went through training for Good Agricultural Practices, he said he’s not GAP-certified because he was told he needed to fence in 80 acres to keep out the wildlife.

“There’s no way that can be done,” he said, referring to birds flying over the orchard and small critters such as rabbits.

As a grower who sells his apples to schools, he said he firmly believes that if you shorten the time and distance between farmer to table, there’s less risk. 

But even so, he also thinks it’s important that small-scale farmers follow food-safety practices.

For him, the takeaway message from Marler’s talk came down to this: “Protecting ourselves (from lawsuits) and protecting our customers go hand in hand.”

As for the “voice of the future,” two FFA high school students who listened to Marler’s talk, quickly agreed they had learned a lot.

“I need to buy a meat thermometer and make sure I wash the fruits and vegetables we buy,” said Katryna Castor, a comment that was quickly seconded by her fellow FFA member Kathryn Dunham.

Dunham, who lives on a hobby farm with a few cows and a garden, said she also learned that you have to be very careful about food safety when you’re producing food.

“Just because we grow it at home, it’s not automatically safe,” she said.


Legal issues

It all comes down to who’s going to pay,  said Marler.  “You can say ‘I hate lawyers, there shouldn’t be any lawsuits, lawyers shouldn’t get any money for these people,’ ” he told the group. “But the reality is someone has to pay.”

For him, there’s a societal question in this: Who should be accountable for the bills? The farmer, the manufacturer, the taxpayers, the family? Someone has to pay or absorb them.

Responding to a question about liability from Becky Elias, food-safety staff member with the Washington State Department of Agriculture, after the meeting, Marler told her that while doing food-safety planning and getting GAPs certification lessens the chances that you’ll get someone sick, it wouldn’t protect you from a lawsuit. That’s why you need product liability insurance should you get sued. By doing that, you’re protecting yourself as an individual.

 More legal-related information from Marler is available here. Click through the Power Point pages to get to the parts about strict liability, negligence, and criminal liability.