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McDonald’s is standing its ground after being sued Wednesday in California for marketing its Happy Meals to children.

The plaintiff in the class action lawsuit is Monet Parham, mother of two from Sacramento.   She is represented by the Washington, D.C.-based Center for Science in the Public Interest (CSPI), which has been threatening such a lawsuit for months.

In the suit, McDonald’s is apparently not being accused of contributing to the Parham children’s obesity, but rather of having more control over them through Happy Meal marketing than the influence of their mother saying “no.”

“I object to the fact that McDonald’s is getting into my kids’ heads without my permission and actually changing what my kids want to eat,” Parham said in a news release.

Parham is the mother of Maya and Lauryn, ages 6 and 2, respectively.  The girls do not appear to have a weight problem.

McDonald’s spokeswoman Bridget Coffing said of the lawsuit, “We are proud of our Happy Meals and intend to vigorously defend our brand, our reputation, and our food.”

CSPI has been threatening McDonald’s since June, but the 32,000-outlet chain, which has restaurants ini 117 countries, has refused to play.  

Instead, McDonald’s CEO Jim Skinner wrote to Michael F. Jacobson, CSPI’s executive director, telling him: “CSPI is wrong in its assertions, and frivolous in its legal threats.”

Skinner said McDonald’s menu has more choice and variety than ever before.  It also makes in-depth nutritional information available to parents.

In announcing the lawsuit, Jacobson said McDonald’s is still mostly in the business of selling “burgers or chicken nuggets, fries and sodas to very young children.”  

“In other words,” Jacobson said, “McDonald’s offerings consist mostly of fatty meat, fatty cheese, French fries, white flour, and sugar—a narrow combination of foods that promote weight gain, obesity, diabetes, and heart diseases—and may lead to a lifetime of poor diets.”

Still, the lawsuit is apparently about whether McDonald’s “high tech” marketing is exploitive and strong enough to interfere with a family’s decisions.

“What kids see as a fun toy,” says Parham, “I now realize is a sophisticated, high-tech marketing scheme that was designed to put McDonald’s between me and my daughters.”

CSPI filed the lawsuit in California Superior Court in San Francisco, the only city in America that has essentially banned Happy Meals, setting nutritional standards for meals that use toys or other gimmicks to promote food for sale to children.  Joining in representing Parham is Richard Baker of Baker Law, P.C. in Birmingham.

McDonald’s Corp. and the U.S. Consumer Product Safety Commission announced that McDonald’s was recalling all Shrek Forever After 3D collectable drinking glasses late last week.  The designs on the glasses contain cadmium, which can cause adverse health effects with long-term exposure.

shrek-glasses-iphone.jpgApproximately 12 million of the 16 ounce Shrek Forever After 3D collectible drinking glasses which featured Shrek, Fiona, Puss n’ Boots, and Donkey characters, were sold at McDonald’s restaurants nationwide in May and June.

According to the McDonald’s Website, “The CPSC has said the glassware is not toxic and that they have far less cadmium than the children’s metal jewelry that CPSC has previously recalled.

“In addition, an independent third-party laboratory, accredited by the CPSC, evaluated the glassware and determined them to be in compliance with all applicable federal and state safety requirements at the time of manufacture and distribution.  However, in light of the CPSC’s evolving assessment of standards for cadmium in consumer products, McDonald’s determined in an abundance of caution that a voluntary recall of the Shrek Forever After™ glassware is appropriate.”

McDonald’s is asking consumers to stop using the Shrek Forever After 3D glasses.  Beginning June 8th, customers may access instructions to return the glassware and how to request a refund by visiting the McDonald’s Website or calling the company at 1-800-244-6227.

Getting a Presidential appointment and Senate confirmation turned out to be no easy task for Jose Emilio Esteban, the new Undersecretary for Food Safety. Yet he’s turned in his first couple of months on the job with apparent ease.

Between the time Esteban’s predecessor, Mindy Brashears, exited the USDA building ahead of Joe Biden becoming President and his Senate confirmation last Dec. 22, the office stood vacant for almost two years. And that’s not unusual for the Undersecretary for Food Safety, the official Congress created 30 years ago is as often empty as it is filled.

This time, it was 10 months passed before Biden appointed Esteban and another 10 months before the Senate Committee on Agriculture, Nutrition, and Forestry managed to give the nominee a hearing and favorable report to the full Senate. Then Esteban had to wait three more months for the Senate voice vote that confirmed his appointment.

That last-minute confirmation vote did mean Esteban could go to work just as the new year was about to start. And with the public calendars out for January and February, it’s possible to see what Esteban has been up to in his first weeks as Undersecretary for Food Safety.

These public calendars are issued by the Food Safety and Inspection Service (FSIS), listing meetings held by the Under Secretary and Deputy Under Secretary, Office of Food Safety (OFS) and the Administrator and Deputy Administrator for FSIS with persons outside the Federal Government. 

When Esteban arrived in the building, he was no stranger.

Prior to becoming Undersecretary for Food Safety, Esteban worked since 2001 in several roles at the USDA’s Food Safety and Inspection Service (FSIS). Most recently he was chief scientist at the FSIS from 2018 to 2022. Before joining the USDA, Esteban was at the Centers for Disease Control and Prevention as an epidemic intelligence service officer, staff epidemiologist, and assistant director of the food safety office.

Esteban trained as a veterinarian in Mexico. He holds an MBA, a master’s degree in Preventive Veterinary Medicine, and a Ph.D. in Epidemiology from the University of California-Davis.

Ashley Peterson of the National Chicken Council; and attorney Brian Eyink of the firm Hogan Lovells were the first from outside the federal government to meet with the new Undersecretary for Food Safety That meeting occurred on Jan. 19, 2023, and was about the “Salmonella framework.”

On the Hogan Lovells website, there is a quote saying: “Brian Eyink helps clients find practical solutions to regulatory problems. Brian is particularly sensitive to risk management issues as companies adapt to a regulatory and political environment increasingly focused on inspections, enforcement, and investigations.”

FSIS’s “Salmonella framework” at that time was about the possibility of making Salmonella an adulterant in some poultry products, which in late April came to pass.

On the same day, Esteban with backup from Sandra Eskin, Deputy Under Secretary, OFS, Paul Kiecker, Administrator, FSIS; Terri Nintemann, Deputy Administrator, FSIS; Jeremy Todd Reed, Chief Operating Officer, FSIS; Atiya Khan, Chief of Staff, OFS; Karen Hunter, Chief of Staff, FSIS; Mark Williams, Deputy Chief of Staff, FSIS; Robert Witte, Deputy Chief of Staff, FSIS; and FSIS Assistant Administrators, met in separate virtual gatherings with both consumer and industry representatives.

The Undersecretary for Food Safety’s final outside meeting during his first month on the job was with Bruce Stewart-Brown of Perdue Farms. The Jan. 31 telephonic hookup was about the National Poultry Improvement Plan. Stewart-Brown is Senior Vice President of Technical Services and Innovation at Perdue Farms.

The next day, Feb. 1, Patricia Lopez, a reporter with Universidad Nacional Autonoma de Mexico, was granted an interview with Esteban that was accomplished over a virtual hook-up.

Salmonella and poultry were the topics of another virtual meeting, this one on Feb. 2 with Michael R. Taylor, STOP Foodborne Illness; Craig Wilson, Costco; Sarah George, Costco; Mansour Samadpour, IEH Laboratories, and Consulting Group. Joining Esteban were Sandra Eskin, Deputy Under Secretary, OFS; Dr. Denise Eblen, OPHS Assistant Administrator, FSIS; Dr. Kis Robertson Hale, OPHS Deputy Assistant Administrator, FSIS; Dr. Amber Pasko, Veterinary Medical Officer, FSIS; Kristal Southern, Biological Science Information Specialist, FSIS; Iva Bilanovic, Mathematician-Statistician, FSIS; and Dr. Peter Evans, Consumer Safety Officer, FSIS.

Esteban next participated with the Coalition for Poultry Safety Reform in a Feb.13 meeting. Included were: Sarah Sorscher, Center for Science in the Public Interest; Thomas Gremillion, Consumer Federation of America; Brian Ronholm, Consumer Reports;  Scott Faber, Environmental Working Group; Mitzi Baum, Stop Foodborne Illness; Amanda Craten, Consumer Federation of America; Vanessa Coffman, STOP Foodborne Illness; Shrinidhi (Nidhi) Joshi, STOP Foodborne Illness; Craig Hedberg, University of Minnesota; John Glenn Morris, University of Florida; Martin Wiedmann, Cornell University; Dr. Alice Johnson, Butterball; Bruce Stewart-Brown, Perdue; Bryan Miller, Wayne Farms; Michael Robach, The Robach Group, LLC;  Steven Mandernach, Association of Food and Drug Officials; Jerold Mande, Harvard University; Michael Taylor, Global Food Safety Initiative; Alexa Cohn, Cornell University; Craig Wilson, Costco; Barbara Masters, Tyson; Matthew Stasiewicz, University of Illinois; Hyo Jin Lee, Temple University; Miller, Bryan; Angie Siemens, Cargill; Katie Stolte-Carroll, Ohio State University; Barbara Kowalcyk, Ohio State University; and John Glenn Morris, University of Florida

On Feb. 14, Dr. Luke Minion, Chris Venteicher, and Sean Simpson, all with Wholestone Farms; along with Ashlee Johnson and Andrew Harker, both with the Russell Group had a virtual meeting with the Undersecretary for Food Safety on “Time-Limited Trial.”

Also on Feb. 14, Drs. Francisco J Zagmutt, and Jane Pouzou, both of EpiX Analytics”  met virtually with Esteban and many others from FSIS headquarters about salmonella virulence.

On Feb. 15, Esteban led an FSIS session for “USDA-regulated Establishments and Industry Representatives” on updates. And on Feb. 16, the Undersecretary did another round of separate meetings for consumer and industry representatives.

On Feb. 21, Esteban did an in-person “meet and greet” with United Food and Commercial Workers Union members. It’s the union representing the meat and poultry plants regulated by FSIS.

Jeremy Wilson-Simerman, Laura McElroy, Janet Helms, and Sarah Kipp, all from McDonald’s with Adam Tarr, and Kevin Diestelow, both of Invariant, LLC met virtually with Esteban on Feb. 21 about McDonald’s Beef Supply Chain Antibiotic Policy.

And that closes out Esteban’s public calendar for his second month in office.

He is the sixth Senate-confirmed Undersecretary for Food Safety.

In addition to his predecessor, Mindy Brashears, the four others who have held the office are: Dr. Elisabeth Hagen from August 2010-December 2013; Dr. Richard Allen Raymond from July 2003-January 2009; Elsa A. Murano from October 2001 -December 2004; and Catherine Woteki from July 1997-January 2001.

Calendars do not have to include meetings already announced to the public.

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Food Safety News last year referred to Prairie Star National Trust as a “sovereign citizens” organization after a court used the term in the Amos Miller case, which states that Miller has illegally sold meat without government inspection.

Star National has reached out to Food Safety News to opine that it has nothing negative to say about our coverage of the Miller case.

However, the organization had plenty to say about some of the terminologies that Food Safety News used after the group got involved with the Miller case. “We are in fact a ‘Law Advocate’ for Americans, probably more vested in ‘law’ than most law firms,” it said in taking exception to being referred to as a “sovereign citizens” organization.

“First of all, you of all people should know that calling someone or a group a ‘sovereign citizen’ is an oxymoron. No one can be ‘sovereign’ and a ‘citizen/Citizen’ at the same time,” Star National said on Food Safety News comment line. “You don’t even have to be a journalist to get it right — all you need to do is get a dictionary and LOOK UP THE DEFINITION OF THE WORDS.”

“A sovereign answers to no one. A citizen/Citizen answers to someone or something ALWAYS,” it continued. The Star National view is that most of us in the United States are corporate citizens that must answer to the “Admiralty Courts” and our obligation is to the State. “You are not and cannot be a “sovereign” and an “American,” according to Star National.

“You are a Municipal United States ‘Corporate’ Citizen, a citizen/Citizen of the Foreign (British) United States Service Corporation, you can only be one or the other,” it adds.

Star National claims its short involvement in the Miller case established Amos and his wife Rachel as Americans by birth. It says the U.S. Department of Agriculture is not the government, but a non-governmental organization with a DUNSS number. It is an agency of the British Services Corporation providing services to the American people, according to the organization. Star National says USDA is not sovereign and carries no more authority than McDonald’s.

The USDA, since 2016, has filed civil actions to force Miller’s compliance with federal meat and poultry food safety laws and regulations. Miller and his Miller’s Organic Farm were found distributing meat and poultry that was not USDA inspected. The most recent civil action to bring him into compliance dates back to 2019.

Miller is from Bird-In-Hand, PA. All the litigation has been in U.S. District Court for Eastern Pennsylvania. Star National views the District Court as “not part of an agency of the United States of America.” But instead as a “foreign corporation” acting through America’s court system.

The District Court in the Star National view is nothing more than a non-governmental organization and they cite the very real, but very complicated Clearfield Doctrine as their source, which the Supreme Court decided in 1943. It concerns when government entities function as corporations and lose their sovereign status and then must be governed as a mere corporate entity

Star National sees Miller Organic Farm LLC as the only legitimate defendant in the current civil action. “Amos Blank Miller is not a corporation; he is an ‘American’ and NOT A U.S. CITIZEN, not a citizen of the United States government,” it says.

It says Miller does not have a contract with the Court or USDA. Star National does not recognize any automatic jurisdiction by the District Court. Depending on the outcome of the Miller case, Star National still could “challenge the jurisdiction of the Court.” It has asked USDA to produce its contract with the United States of America.

About a year ago, Miller wanted to fire his Dallas attorney Steven LaFuente and bring in Prairie Star National. Non-attorneys are not allowed to represent others in Federal Court and Star National was not allowed into the case. And LaFuente was not dismissed as Miller’s counsel until late in 2022 when attorney Robert E. Barnes Esq. of Los Angeles took over.

As 2023 opened, Barnes has had his client on a compliance track not seen since right before Miller first tried to fire LaFuente. If Miller follows through, he will avoid civil imprisonment and reduce fines now pegged at $300,000.

But the U.S. District Court for Eastern Pennsylvania at Easton before federal Judge Edward G. Smith has outlined what Miller needs to do. It’s found in the “second consent decree” filed by Barnes, and government attorneys.

It is an alternative to enforce the Court’s permanent injunction against Miller and Miller’s Organic Farm. That first injunction prohibits violations of the federal Meat and Poultry Acts and was entered on April 26, 2020

The new Court documents now call for Miller to pay $30,000 into the Court’s registry within 10 days after the “Second Consent Decree” was signed. It says:

“This sum will be used to reimburse: a) Mr. Lapsley’s fees and expenses to date; b) the U.S. Marshall’s Service’s fees/expenses for accompanying Mr. Lapsley on his March 17, 2022 farm site visit; and c) Mr. Lapsley’s ongoing fees and expenses in reporting on compliance with certain terms of this Second Consent Decree and the Second Contempt Sanctions Order.”

Lapsley is an agriculture expert the Court has assigned to the case.

Another $55,065 Miller owes USDA’s Food Safety and Inspection Service (FSIS) for the agency investigative work must be paid in two installments. The first $27,543 is due Jan. 15, 2023; and the second payment of $27,543 must be turned in at the U.S. Attorney’s office by April 15, 2023.

There are also some non-monetary details that Miller needs to follow.

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Several months before this date 30 years ago, a Black Swan event occurred in Japan.

The 67-year-old president of the United States, George H.W. Bush while at a state dinner in his honor hosted by the Prime Minister of Japan, leaned forward and then fell on to his side hurling projectile vomit into the lap of PM Kiichi Miyazawa.

Black Swan events are said to be unpredictable with severe and widespread consequences, usually negative.

Thirty years ago today, six-year-old Lauren Beth Rudolph died in southern California from complications from an E. coli O157:H7 infection. She was the first fatality in the Jack-in-the-Box outbreak. We mark the 30th anniversary of that tragic event today that also took the young lives of two-year-olds Michael Nole of Tacoma, and Celina Shribbs of Mount Lake Terrace, WA; and 17-month-old Riley Detwiler of Bellingham.

While the president’s bout with foodborne illness, might have been foretelling in a Black Swan sort of way, his embarrassing bout of gastroenteritis soon passed. Those stricken later the same year by E. coli O157:H7 from Jack-in-the-Box hamburgers would experience more severe and lasting illnesses, and deaths.

This strain of E. coli did not have a public profile before the Jack-in-the-Box outbreak. Hamburgers contaminated with the previously unknown O157:H7 bacteria would sicken 732 Jack-in-the-Box customers before the outbreak was over, causing 178 severe illnesses and those four deaths. The poisoned beef patties were purchased at 73 Jack-in-the-Box restaurants in California, Idaho, Washington State, and Nevada.

Most of the victims were less than 10 years old and in addition to four deaths, another 178 were left with permanent injuries including brain and kidney damage. It was the severity of those outcomes that made Jack-in-the-Box the most infamous food-borne outbreak in contemporary history.

Brianne Kiner, 9 years old at the time, survived the Jack-in-the-Box outbreak, but with its most severe and permanent damages. Seattle attorney Bill Marler sued on her behalf, winning a $15.8 million settlement for Kiner. Her story includes diabetes, asthma, and brain and kidney damage from Hemolytic Uremic Syndrome (HUS), which caused the need for a transplant.

During the past 30 years, Marler has become the nation’s best-known attorney for victims of foodborne illness. He is also the publisher of Food Safety News.

The public may never have heard of it before, but the meat industry knew about E. coli O157:H7. Undercooked hamburgers sold by McDonald’s in Oregon and Michigan were contaminated with O157:H7 in 1982, causing an outbreak that did not get the attention it deserved. Before 1992, O157:H7 had indeed caused 35 deaths in 22 scattered outbreaks.

The Jack-in-the-Box outbreak, however, would have sweeping ramifications, including:

  • USDA’s reclassification of E. coli O157:H7 as an adulterant in ground beef, making it illegal to sell ground beef contaminated with it.
  • USDA’s Food Safety and Inspection Service began testing for E. coli O157:H7 in ground meat.
  • Infection by E. coli O157H7 was made a reportable disease by all state health departments.
  • FDA increased the recommended internal cooking temperature for hamburgers to 155 degrees Fahrenheit, up from 140.
  • USDA adopted Pathogen Reduction and Hazard Analysis and Critical Control Point programs originally created for NASA.

As it happened, Jack-in-the-Box restaurants were in the middle of a promotion for “Monster Burger” sold under the slogan “So good, it’s scary!” And the promotion was keeping demand high, overwhelming the outlets. The promotion was so popular that it contributed to problems by speeding the line and not keeping the hamburgers at high enough temperatures to kill the bacteria.

Jack-in-the-Box was named as the source of the E. coli O157:H7 outbreak on Jan. 18, 1993. Through Foodmaker, its parent company, the burger chain agreed to stop serving hamburgers and quarantine beef. The San Diego-based company blamed Vons Companies, it’s beef supplier, for the outbreak.

Jack-in-the-Box knew about, but choose to ignore, Washington State’s higher cooking temperature for hamburgers. The state’s 155-degree Fahrenheit requirement was 15 degrees higher than FDA’s 140. Had Jack-in-the-Box adhered to the Washington State Health Department regulation, it’s unlikely the outbreak would have occurred.

With an expanding probe by President Bill Clinton’s new administration, five slaughterhouses in the United States and another one in Canada were found to be the likely sources of the contaminated beef. Foodmaker agreed to a $58.5 million settlement from Vons and eight other beef suppliers.

Later in 1993, Jack-in-the-Box hired food safety expert Dave Theno, who implemented “test and hold” to clear before use, higher cooking temperatures, and numerous other food safety measures. Theno carried a picture of outbreak victim Lauren Beth Rudolph until his own death in 2017.

The Jack-in-the-Box outbreak was the first time Dr. Phillip Tarr, then pediatric gastroenterologist at the University of Washington and Seattle’s Children’s Hospital had seen E. coli-caused HUS with bloody diarrhea in a cluster of children. When he told Dr. John Kobayashi, Washington State Epidemiologist about it, Kobayashi knew immediately that he had a “big red flag” on his hands.

The Jack-in-the-Box outbreak is now seen as only second to the Upton Sinclair book, The Jungle, for its effect on the beef industry and its regulators. To be a Black Swan event, it could not have been predicted. But probably was inevitable.

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Sometime during the pandemic, I found myself at the Apple store in Austin. I needed a replacement for my MacBook Air and a nice lady helping me suggested I add a $400 Apple watch to my purchase.

“Why would I need a watch,” I asked. Little did I know then about the watch that I’ve come to rely on for checking my heart, logging my exercise and sending my calls to voice mail. How did I live without an Apple watch?

What I never saw before that day in Austin was any hype about the Apple watch. I am both pretty immune and pretty resistant to hype. All those Apple projects in the Steve Jobs era were not sold to us on hype but on their actual performance in the marketplace. They filled needs we did not know we had.

Food Safety News gets a constant stream of new product pitches. I won’t say that we don’t occasionally stray into a topic involving a new product, but our policy is to avoid them. If Food Safety News is writing about a new product, the implication is that the new product is going to be safe.

There is no way we can know that without there being some significant market exposure

We watch for signs. We were surprised two years ago when PA-based Beyond Meat bet its “future of food” on safety-challenged China for the production of its plant-based offerings. Nor were we surprised this past week when Bloomberg ran photos of Beyond Meat’s home plant that appeared to show evidence of mold, listeria and other food safety uses.

Multiple positive tests for listeria were said to have occurred during the past year and a half. And wood, metal and plastic reportedly were found in the product. Beyond Food was able to point to their continued good standing with the Pennsylvania Department of Agriculture.

The company that puts out a plant-based meat substitute clearly is not having a good year, Its roll-out deal with McDonald’s went bust, its net loss for the year is $97.1 million, and it laid off 19 percent of its workforce.

There was lots of hype from others when Beyond Meat got the deal to put its “McPlant” burger in 600 McDonald’s for a six-month pilot program. But either not enough McD customers tried the “McPlant” burger or more troubling those who tried it were put off by the taste. Either way, the pilot failed.

There’s also speculation that people stuck at home during the pandemic tried the meat substitutes purchased at their grocery store, and were not satisfied. Those reactions may be why sales of Beyond Meat are stalling. It’s not a good sign for the young company.

Beyond Meat is but one of numerous plant-based start-ups out there. Lab-grown meat and poultry from animal cells is another new product area. The Food and Drug Administration (FDA) earlier this month approved UPSIDE FOODs’ plan to produce chicken in the lab from animal cells. USDA’s Food Safety and Inspection Service (FSIS) has yet to sign off.

While there’s been hype about plant-based alternatives, the growth of meat and poultry in labs is likely larger if measured by venture capital and public relations firms under contract. Investors in UPSIDE FOODs, for example, include SoftBank Group, the Temasek, Norwest, Threshold Ventures, Tyson Foods, Bill Gates, Sir Richard Branson, Kimbal Musk, Whole Foods and others.

When you are downstream to all the new product pitches that flow from campaigns where billions are at risk, it can seem like the wind never stops blowing. But it’s all the more reason why we have to be careful not to get sucked in. We need to constantly look for the food safety angle that these plant-based and lab-based offerings must either overcome or they will die.

The key, I think, to the safety of these lab-grown offerings will turn out to be the laboratories themselves. Only a little memory is required to recall billion-dollar laboratory scandals.

That’s why we are going to stay focused on food safety and not the type of these new product offerings. It would be silly to do otherwise.

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A local court in Seoul has convicted three people for supplying contaminated food to McDonald’s in South Korea.

Seoul Central District Court imposed suspended jail sentences on the three employees of the former supplier, named as McKey Korea, by United Press International (UPI). They were indicted without detention in 2018 for allegedly distributing 63 tons of beef patties that tested positive for E. coli. Suspended jail terms ranged from two to three years and were suspended for four years.

The Korea Herald cited judicial sources who said the prosecution has appealed the court’s ruling.

The supplier was fined 40 million won (U.S. $36,000), according to the Yonhap News Agency. McDonald’s Korea terminated its relationship with the company in 2017.

Yonhap reported a group of local consumers filed complaints with the prosecution alleging they or their families had suffered hemolytic uremic syndrome (HUS), after eating McDonald’s burgers. HUS is a type of kidney failure associated with E. coli infections.

About 5 percent to 10 percent of those who are diagnosed with E. coli infections develop HUS. Symptoms include fever, abdominal pain, feeling very tired, decreased frequency of urination, small unexplained bruises or bleeding, and pallor. The condition can occur in people of any age but is most common in children under 5-years old, older adults and people with compromised immune systems.

In November 2020, prosecutors from Seoul searched McDonald’s Korea headquarters and seized documents as part of an investigation into illness caused by burgers served at the fast food chain.

The raid came almost two years after nine groups lodged a complaint with prosecutors against McDonald’s Korea, the food supplier and government officials.

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Opinion

Editor’s note: Each Spring, attorneys Bill Marler and Denis Stearns teach a Food Safety Litigation course in the LL.M. Program in Agricultural and Food Law at the University of Arkansas School of Law. This specialized program for attorneys brings together those who are interested in our food system, from farm to table. As a final assignment, students are asked to write an op-ed or essay on food safety, with the best to be selected for publication in Food Safety News. The following is one of the essays for 2020.

By Ksenia Epanchina

After WHO declared the COVID-19 pandemic, people all over the world were told to stay at home under quarantine in order to reduce the spread of the virus. Stress, associated with cardinal change of lifestyle and daily activities has emotional consequences, and reactions to it can be different depending on numerous factors. One of the most common stress reactions is overeating, and particularly craving foods rich in processed carbohydrates and fats, to put it simple – junk food. Weight gain, as a logical consequence to increased food consumption may not be a significant problem for people with healthy body mass index (BMI), what can’t be said about those, who have already faced obesity and diseases, associated with it, such as type-2 diabetes and heart disease. Gaining weight for obese people can be life-threatening under normal circumstances, but experts found that obesity also increases the risk for more serious complications of COVID-19, and excess body weight significantly raises the risk of hospitalization for young COVID-19  patients. 

Shift from healthy to “safe” foods.

The group of researchers from Columbia University Mailman School of Public Health noted that “As households stock up on shelf-stable foods, they appear to be purchasing ultra-processed, calorie-dense comfort foods. Our own experiences in supermarkets show that along with the shelves that held flour, rice and beans, the shelves that held crackers, chips, ramen noodles, soda, sugary cereals, and processed ready to eat meals are quite empty”.  The researchers’ personal experience is confirmed by the data on sales increases of the foods they mentioned. Bloomberg reported, that by the middle of May 2020 the popcorn and pretzel sales rose almost 50%, the rise of potato chip sales was 30% compared to the same period in 2019.  Breakfast food, cookies and crackers are also in demand, according to Mondelez International Inc. Those who tried to choose fresh healthy foods before pandemic, are now buying the food that makes them feel safe, such as potato that had been ignored because of low-carb diets and red meat, that, together with the processed meat, had been linked to cardiovascular disease. 

Commenting on these numbers, Lisa Young, a New York dietitian, said that performing self-control is much harder when people are stressed, and eating comfort foods makes people feel good during stressful times, so she thinks that dieting is not a good idea right now. Dr. Quanta Ahmend believes on the contrary that “Now more than ever, getting into shape has become a matter of urgent national public health security”, because according to the recent data from NYU Langone, “body mass consistent with even early obesity in the setting of coronavirus infection makes a patient three times more likely to need intensive care medicine, suggesting a more severe clinical course”. Though the U.S. has been struggling with overweight and obesity epidemic for a long time before COVID-19, now its consequences are devastating, because “it is one of the biggest risk factors related to COVID-19 hospitalizations and critical illness,” researchers say.

Healthcare workers have to be careful. 

Cousins Subs, LaRosa’s Pizzerias, Fired Pie, Jersey Mike’s and many other fast food restaurants have announced that they are offering free meals or special offers to help medical workers get through the crisis. Every Monday from March 30 through May 11, all Krispy Kreme drive-thrus will give a free dozen (!) of doughnuts to everyone in the medical community; McDonald’s was offering free Thank You Meals through May 5 to health-care workers; Subway will donate 6-inch subs to health-care workers at participating hospitals.  It’s clear that COVID-19  crisis requires immediate response, and the community, including the fast food industry wants to thank and support healthcare workers, but donating junk food to hospitals in the middle of an obesity crisis can make the situation even worse.

Children are also in danger.

 Experts warn that due to schools closures the number of obese children may go up, as they will no longer receive school meals and will have to stay indoors, deprived of school activities.  Previously it had been noticed that children usually gain weight during summer recess, and extra pounds remain with them during the whole school year until the next summer when they gain even more weight. Now under quarantine kids will spend most of the time in front of the TV with its aggressive fast-food advertising or playing computer games, followed by snacking.  It has been proven that an obese child will most likely be an obese adult: according to the Bogalusa Heart Study, 77 % participants, who were obese as children, remain obese as adults, while only 7%, who were at healthy weight as children, became obese adults. So, the government is now facing new challenges, because adequate response is required to continue to support healthy eating patterns and active lifestyle of children, who are under quarantine.

What has been done by far.

After it was discovered that the death rate from obesity is 80 times higher than from foodborne illnesses per year (400,000 v. 5,000 respectively), it became clear that ultra-processed foods and foods, rich in sugar and saturated fats threaten our lives even more than foodborne parasites, disease-caused bacteria, toxins, unapproved additives or allergens, traditionally associated with food safety, and that FDA’s policy in that area should include initiatives addressing the quality of the food we eat and its calorie content.

Voluntary initiatives.

US policies and programs responding to obesity began in late 1990-s and addressed clinical, behavioral, or educational aspects, rather than environmental: the “Clinical Guidelines on the Identification, Evaluation and Treatment of Overweight and Obesity in Adults” by the National Heart, Lung and Blood Institute (1998), the Weight-Control Information Network by the National Institute of Diabetes and Digestive and Kidney Diseases (1994). The goal of these initiatives were to educate public on the obesity and weight control, using scientific, evidence-based research papers. In 2002 President George Bush launched the HealthierUS Initiative to stimulate the nation to start exercising and make healthy food choices through “President’s Challenge”, then USDA set up “Team Nutrition Program” to teach students to differentiate between healthy foods and foods making them obese. 

Mandatory rues.

The Nutrition Labeling and Education Act of 1990 (NLEA) required that labels on food packages bear nutrition information, including calorie information, but didn’t cover food, served in the restaurants “for immediate human consumption’’. In  2014 FDA published the final rule for menu labeling, that required restaurants provide in the menu calorie information of the food they serve, and the Vending Machine Final Rule, requiring that vending machines declare calories in a manner, that would allow consumers read calories before purchasing it. FDA explained, that the goal of the rules is “to provide consumers with nutrition information in a clear and consistent manner to enable them to make informed and healthy dietary choices for themselves and their families when eating foods away from home”. 

The problem of child obesity was acknowledged by the government long ago, and several initiatives have been taken to protect children from the decease. In 2009 Interagency Working Group on Food Marketed to Children, established by Congress, developed a set of voluntary standards, according to which all foods marketed to children of 2 to 17 years old should contribute to a healthy diet and have minimal levels of added sugar, saturated and trans fat and sodium. So, the goal was to reduce unhealthy food and beverage marketing to children. Because of the food industry opposition standards were released by the Federal Trade Commission in October 2011 in a significantly weakened version, applying only to children who are 12 years old or younger.

In 2010 Congress passed the Healthy Hunger-Free Kids Act, developed by M. Obama,  according to which fruit intake should have been 2 times increased, 50% of grains must have been whole grains, gradually turning into 100%, fries must have been served at schools no more than 2 times a week. Later, however, the USDA under the Trump administration published the final rule that rolled back Obama’s heathy food initiatives: the 2018 rule “Child Nutrition Program Flexibilities for Milk, Whole Grains, and Sodium requirements” allowed flavored milk, lowered the required amount of whole grains to 50% per week, provided more time to reduce sodium levels in school meals. 

In January 2020 the Trump administration proposed new rule that alter provisions from the Healthy, Hunger-Free Kids Act: aimed at reducing food waste the proposal will allow schools to offer lunches for a la carte purchase, adjust fruit servings and offer more vegetable varieties. So, under the new rule schools will be able to purchase less healthy vegetables, and kids, having a la carte choice will obviously order burgers, french fries and other foods, high in saturated fats and refined carbohydrates.

Did the efforts work? 

According to the National Center for Health Statistics, in 1999-2000 30.5% among adults and 9.2% and 4.7 among children were obese in the United States. In 2015-2016 the numbers grew to 39.8% and 18.5% respectively, and they keep growing – in 2017–2018 the numbers were 42.4% among adults and 9.2 % among youth. It seems that whatever the government is doing, obesity lives its own life. Experts say that because the food environment is a key factor leading to overeating and obesity, without radical changing it – stop mass marketing, selling ultra-processed foods, all other efforts will not work. Dr. Aseem Malthora, a London-base cardiologist, believes that failure to tell the public to change its diet and reduce the availability, affordability and acceptability of ultra-processed food now during COVID-19  crisis, when we have evidence that  people with obesity are more likely to become severely ill, “would represent an act of negligence and ignorance”.

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To celebrate this year’s World Food Safety Day, June 7, Inside Sharing Knowledge group is hosting a special online event. The event will include interviews and workshops from some of the world’s top food safety professionals. 

Nuno F. Soares, food safety expert and host of the event, said, “I have to confess; planning, developing and hosting this FREE event is also my way to honor thousands and thousands of Food Safety Professionals that haven’t stop working during this pandemic crisis holding tight to their mission of providing safe food to consumers.”

The event is totally free. You can register to attend the event here.

The food safety professional lineup includes:

  • Barbara VanRenterghem (Editorial Director, Food Safety Magazine)
  • Marie-Claude Quentin (Senior Technical Manager, GFSI)
  • Bill Marler (Managing Partner at Marler Clark LLP)
  • Erica Sheward (Director Global Food Safety Initiative, GFSI)
  • Bizhan Pourkomailian (Global Restaurant and Distribution Food Safety Director, McDonald’s)

Workshops:

  • ISO 22000:2018 — Get to know the new version of this Food Safety Management System
  • Food Fraud Workshop — Soares’s framework to develop food safety programs.
  • FSSC 22000 Version 5 — An opportunity to get to know the new version of this Food Safety Program.
  • The Why of Food Safety – Soares’s advice on how you can lead people to do what they should because it is the right thing to do.
  • Managing Organizational Risks — Soares shares the framework he uses to support Food Safety Professionals developing Organizational Risks.

 More information can be found on Nuno F. Soares’s website.

You can also hear describe the event himself in the video below.

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Last week the Washington State Department of Health declared an outbreak of hepatitis A in multiple counties in people who are living homeless or who use drugs. The outbreak includes 13 confirmed cases: nine in Spokane County, two in King County, one in Snohomish County and one in Pend Oreille County. Nationwide, since this outbreak began in 2016, 23,978 people have been sickened, with 14,330 hospitalized and 236 deaths.

Yesterday, a food service worker positive for the hepatitis A virus was discovered at a Lynnwood restaurant prompting public health official to urge restaurant patrons to be vaccinated and shuttering the restaurant.  Hundreds of customers have been exposed in the days that ill worker may have handled food and are now at risk of contracting hepatitis A.  Patrons exposed in the last two weeks have been urged to receive a hepatitis A vaccine.

The hepatitis A virus travels in feces, and can spread from person to person, or can be contracted from food or water. In cases of contaminated food, it is usually the person preparing the food who contaminates it. The food handler will probably not know they have the virus, since the virus is most likely to be passed on in the first two weeks of illness, before a person begins to show symptoms.

Symptoms of hepatitis A infection usually appear around 28 days after infection but can start as early as two weeks after exposure to the virus. Only 30 percent of children with hepatitis A actually develop symptoms. Early symptoms of hepatitis A infection include muscle aches, headache, jaundice, fever, loss of appetite, weakness, and fatigue. After a few days of experiencing these symptoms, 70 percent of patients develop jaundice, a yellowing of the skin, eyes, and mucous membranes. Jaundice also causes dark urine and light, clay-colored feces.

Symptoms usually last less than two months, although they sometimes last up to six months, and jaundice can linger for up to eight months. Patients can also experience severely itchy skin for a few months after symptoms first appear.

An acute hepatitis A case can develop into Fulminant Hepatitis A. This is a rare but severe complication of Hepatitis A, in which the toxins from the hepatitis virus kill an abnormally high number of liver cells (around ¾ of the liver’s total cells), and the liver begins to die.  Fifty percent of patients with this condition require an immediate liver transplant to avoid death. Fulminant hepatitis A can also cause further complications, including muscular dysfunction and multiple organ failure.

Hepatitis A is the only common foodborne disease preventable by a vaccine.

As a lawyer, I have seen first-hand the impacts on consumers exposed.  Here are a few examples of cases involving ill workers and the impact on customers and restaurants:

McDonalds in Skagit County in 1998 was implicated in a cluster of Hepatitis A illnesses linked to an exposure by a Hepatitis A positive assistant manager.

In 1999 nearly 40 became ill after being exposed to a Hepatitis A positive working at two Subway locations in the Seattle area.  Several of the patrons were hospitalized with one young boy suffering acute liver failure requiring a liver transplant.

A Carl’s Jr. was hit in Spokane in 2000 with a Hepatitis A cluster that sickened over a dozen after being exposed to an ill worker.

In 2001 a Massachusetts D’Angelo’s Hepatitis A ill employee was linked to several customers who became ill after being exposed to contaminated food served at the restaurant.

A Hepatitis A positive employee at Maple Lawn Dairy in New York sickened at least six customers in 2004, including one patron who suffered acute liver failure and died.

In July and August of 2009, public health officials in the Quad-City region of Illinois identified at least 32 confirmed cases of hepatitis A among residents of Rock Island, Henry, Mercer, Warren, and Woodford Counties. People became ill after eating food purchased from the Milan McDonald’s restaurant and then developing a Hepatitis A infection.

In 2017 Bartaco in New York at least 5 people sickened with Hepatitis A many of who were hospitalized with hundreds of thousands in medical bills and wage loss.

In 2017 a McDonald’s in Waterloo, New York was linked to the death of one woman who was exposed to a hepatitis A ill worker.

And, just last week, the New Jersey Department of Health announced that 23 people contacted hepatitis A after being exposed to an ill worker at the Mendham Golf & Tennis Club.

The restaurants above have collectively paid (or will pay) millions in damages to customers either exposed or who became ill. Many governments paid thousands of dollars for vaccines.

No doubt each restaurant and the local health authorities – after the fact – wish that worker had been previously vaccinated.

And, it is not just those that contract the potentially deadly virus.  At times, hundreds, and at times thousands, of customers are required to receive the vaccine to prevent the illness and to prevent the further spread of the disease.

In 2000, I wrote this:

In light of the recent, large-scale Hepatitis A exposure in the San Francisco Bay Area, food safety attorneys of the Seattle-based law firm of Marler Clark, are asking restaurants and food manufacturers to voluntarily vaccinate all workers against Hepatitis A. “In the last six months Hepatitis A exposures have been linked to two Seattle-area Subways, a Carl’s Jr. in Spokane, WA, Hoggsbreath, a Minnesota restaurant, and three restaurants in Northwest Arkansas, IHOP, U.S. Pizza, and Belvedeers…” Marler continued, “Restaurants and food manufacturers must take action and voluntarily vaccinate all of their employees.”

Usually, after an ill food worker is recognized, restaurants rush to vaccinate their other employees and to clean the restaurant.  Generally, this is too little, too late.  Few restaurants ever consider proactively offering hepatitis A vaccinations, and just as many governments consider ordering the vaccinations of food workers as a way to prevent the spread of the disease.

A few weeks ago, I challenged a large restaurant chain to offer vaccinations to all food service workers and I would never sue them again – an offer that has yet gone unaccepted.  And, since then, that restaurant in fact was linked to a hepatitis A positive ill worker.  That same scenario has repeated itself nearly daily over that last few weeks at restaurants across the country.

However, there are some spots of hope.  A local government in Missouri that is seeing a spike in hepatitis A cases, and has experienced three recent exposure events at restaurants, has now ordered all food service workers to be vaccinated.  And, a restaurant in Florida – which is experiencing its own increase in disease – offered vaccination to all employees before there was a problem in that restaurant.

So, hey, Washington State health authorities and restaurants, make me proud and lets vaccinate food service workers against Hepatitis A – before the problem gets any worse.