Is there a good reason to keep a company’s name secret when it is linked to a foodborne illness outbreak?

Tauxe.jpegI have a great deal of respect for Robert Tauxe, MD, MPH, Deputy Director of the Division of the CDC that is charged with prevention and control of foodborne, waterborne and fungal infections.  He has been in the diarrheal trenches for a very long time – from just after E. coli O157:H7 made its quiet entrance in a McDonald’s restaurant (unnamed at the time), to the deadliest Listeria outbreak linked to tainted Colorado cantaloupes.

Over many years he has had the responsibility for overseeing investigations into the estimated 76 million (or is it 48 million?) sickened, 325,000 (or it is 125,000?) hospitalized, and 5,000 (or is it 3,000?) deaths yearly due to foodborne illness. That is a lot of responsibility.


I have had the pleasure over the last two decades to, on occasion, share the food safety stage with him (although I get the sense that the feeling is less than mutual).  And I cannot think of anyone who looks better in a bow tie.

It is therefore with mixed emotions, and the knowledge that I likely make my relationship with public health – both federal and state – even more tenuous, that I question his quotes back in January to MSNBC during the dust-up over the disclosure or non-disclosure of “Mexican-style fast food restaurant chain, Restaurant Chain A”,  which was the source of a Salmonella outbreak that sickened 68 people in 10 states.  Here is what he had to say to MSNBC:

Dr. Robert Tauxe, a top CDC official, defended the agency’s practice of withholding company identities, which he said aims to protect not only public health, but also the bottom line of businesses that could be hurt by bad publicity. The CDC, the Food and Drug Administration and state health departments often identify companies responsible for outbreaks, but sometimes do not.

“The longstanding policy is we publicly identify a company only when people can use that information to take specific action to protect their health,” said Tauxe, the CDC’s deputy director of the Division of Foodborne, Waterborne and Environmental Diseases.

“On the other hand, if there’s not an important public health reason to use the name publicly, CDC doesn’t use the name publicly.”

Because companies supply vital information about outbreaks voluntarily, CDC seeks to preserve cordial relationships.

“We don’t want to compromise that cooperation we’ll need,” Tauxe said. …

Tauxe acknowledged there’s no written policy or checklist that governs that decision, only decades of precedent.

“It’s a case-by-case thing and all the way back, as far as people can remember, there’s discussions of ‘hotel X’ or ‘cruise ship Y,” he said.

I, too, was quoted in the article above and was repeatedly asked if I thought that the CDC was bending to company pressure to keep the restaurant chain’s name quiet.  I said emphatically no!  But that did not make it into the article.  So, not to put words in Dr. Tauxe’s mouth (and, granted, he may have had more to say), but as best as I can tell, these are his arguments for disclosure and non-disclosure and my thoughts, in italics:

A.  Although there is no written policy, it is the way we have done things for years;

Why do I hear my mom saying, “just because so and so does that does not mean you should too.” For all government policies (and neckwear) – change is good.

B.  Since the outbreak has concluded, there is not an immediate public health threat;

Frankly, that is the case in most foodborne illness outbreaks.  In nearly every single outbreak investigated by the CDC, the outbreak source is figured out long after the peak occurrence of the illnesses.  However, disclosure gives the public important information about which companies have a strong or weak food safety record.

C.  Disclosing the name of the company jeopardizes cooperation from the company in this and future outbreaks; and

If a company will only cooperate if they are placed in what amounts to a witness-protection program, with promises of non-disclosure, it does not say much for our government’s or the company’s commitment to safe food.

D.  Bad publicity may cause economic hardship to the restaurant.

True, but not poisoning your customers is a better business practice.

I would also add a couple more reasons for non-disclosure that I received via email (mostly anonymously):

1.  The source was an unknown supplier, so naming only the restaurant might place unfair blame on the restaurant;

This one does make some sense.  However, is this the unnamed restaurant’s first problem with a faulty supplier, or is this a pattern?  And even if it is the first time, is there a possibility that some of the unnamed, contaminated product is still in the market?


2.  Because the outbreak involves a perishable item, by the time the CDC announces the outbreak, the tainted product has long been consumed or discarded;

This one I have heard a “bunch” of times – especially in relation to leafy green outbreaks.  However, why should the public be left in the dark about the type of product that sickens, as well as the likely grower and shipper responsible for the product? Shouldn’t consumers have this informations so they can make decisions about who to buy from?

3.  Going public with the name of the restaurant compromises the epidemiologic investigation by suggesting the source of the outbreak before the investigation is complete;

I completely agree with this one.  This is a tough call, and one that must create the most angst for public health officials – they decide the balance between having enough data to go forward to protect the public health or wait for more data.  The point is, do not go public until the investigation is complete.

4.  Public health is concerned about making an investigation mistake like, it’s the tomatoes, err, I mean peppers; and

See my answer to 3 above.  This is why, under the law, public health officials are immune from liability for the decisions they make in good faith to protect the public.

5.  Public health – especially surveillance – is under budgetary pressure and there are simply not enough resources to complete investigations.

There is no question that this is true.  I have seen it in dropped investigations over the last few years.  Labs are not doing genetic fingerprinting to help reveal links between ill people.  And many tracebacks are stopped by the lack of people-power to do the research necessary to find the “root cause” of an outbreak.

For me it is easy – 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 no
t know.

  • Frank Winzig

    I first started working in the family restaurant when I was 11 years old peeling potatoes for french fries, and mashed, and anything else the chef wanted to make out of them. My dad built and managed the business for 36 years, without any foodborne illnesses. He would tell me over and over again that it takes years to build up a restaurant’s reputation, and can be loss in just one day if you do not do your best to manage your operation. I am retired and as far as I know after 58 years in and around the business – I have never caused anyone to get sick from anything I managed.
    So I am disgusted by the filth that is allowed to occur (McDonalds really?) within these corporate chains either in the retail end or in the production end! …And these Doctors and Health officials *hide* these self inflicted problems – for what? McD’s should have been subject to the market forces, and learn to manage better; not sweep it into a corner!!
    GREED is not the way to manage anything in your life.

  • lin sasman

    I appreciate your newsletter and legal work immensely — thanks for the website.
    1. I think you need to hear more from regulators about real world problems in running an enforcement team for public health cases– and you cannot ignore budget – cost benefit or other factors needed for the hard decisions. Just to mention some considerations:
    Picking which cases to go all the way with takes agreement on budget expenditures and necessarily what cases will not get attention. There are a range of sanctions for tools. When and what publicity is part of the equation on how to best change corp/industry behavior.
    2. Company and agency reputation is an important part of short and long term strategy: to maintain agency reputation by not rushing before the full evidence is in, and FAIRNESS in not
    naming a company too soon or at all in some cases is part of the strategy.
    I’ve handled water supply contamination issues similar to food issues — waiting for scientific confirmation means some protection has gone by and other uses must be evaluated like alerting public and the industry that govt is on the job and will act– but it is not sometimes perceived as a happy message for the public at that point . . . science is not instant soup but TV repeated shows the public you get all the right answers in 1 hour. How about you write a pilot for TV ?
    3. It would be a good Food Safety News FOIA request to CDC and other agencies on an annual basis to get the outbreak statistics overall by type of source and industry showing highest incidence — with the caveat that that is still a snapshot and not the whole picture of ACTUAL incidence. Why push on publicizing one restaurant or chain if resources would be better spent on a different industry or other more important cases (and don’t say it all should be done because committed govt employees don’t have that luxury). My definition of a good regulator is one that analyzes what the cost benefit use is of his/her own time is as well as all ripples from an individual case. In addition the context for an agency would be helpful for all of us — what percent is devoted to food safety cases v. all the other public health work.
    4. Your skills and analysis as a private atty are similar to govt attys but in govt the “client” is the public AND the agency AND the industry while looking over your shoulder at the budget committees in Congress and your chief executive…. it is an intricate dance IF you intend to be effective. “Good” industry members want an effective and fair agency to protect them from unscrupulous industry members. Regularly cheering on public servants by public health citizen groups is helpful — it is a depressing time to be in government when you care about the mission but we need the good ones to stay.
    5. A respected agency will have industry lobbying on their behalf in congress.I It appears we are in a 5 year window of opportunity for getting Congressional attention on food safety– but with this congress, that may empower the industry lobbyists to win more for the self-interested industry members than on behalf of public health so timing and strategy are called for.
    6. I only disagree with your apparent push to have agencies publicize to the max — not that your digging up Taco Bell as the chain involved in the latest non disclosure was not a good thing given their record as you present it — but public interest digging for facts vs. agency tactics for publicity must be different.

  • It is a shame to see our public health cannot be fully shown to the public.