by Marion Nestle
Aug 30 2011

Don’t like bothering with food safety rules? Sue the FDA!

In an astonishing display of what can only be described as chutzpah* Del Monte sued the FDA for insisting on a recall last March of its cantaloupes likely to be contaminated with a toxic form of Salmonella Panama. Now Del Monte is also suing the State of Oregon.

On what grounds?

Notably, “[t]he FDA investigation ultimately found no connection between Del Monte Fresh cantaloupes and any cases of Salmonella Panama, including in Oregon,” the company says. “FDA issued a notice ending the recall on July 29, 2011.”

The CDC thinks otherwise.  Its investigations pointed to imported Del Monte cantaloupes as the source of an outbreak that affected 20 people in several states:

Twelve of 16 ill people reported eating cantaloupe in the week before illness. Eleven of these 12 ill people ate cantaloupes purchased at eight different locations of a national warehouse club. Information gathered with patient permission from membership card records helped determine that ill persons purchased cantaloupes sourced from a single farm. Product traceback information indicated these cantaloupes were harvested from single farm in Guatemala.

FoodSafetyNews reviews the history of this particular recall.  It agrees with Del Monte that tests performed in April on cantaloupe samples from the Guatemala farm came out negative for Salmonella and that the FDA has now ended the recall.  But:

Del Monte had announced the recall in March, after the suspect melons had passed their shelf-life date. It is not clear whether any of the cantaloupes tested were actually the suspect melons. In foodborne illness investigations, samples of the food from the same batch eaten may no longer available by the time the connection to an outbreak is made. Epidemiology, rather than a contaminated sample, is the evidence that points to a likely source.

For these reasons, attorney Bill Marler terms the lawsuit “frivolous.”  He is suing Del Monte on behalf of a sick client.

Public health agencies doing their jobs to protect the public now have to defend against lawsuits like this?  Putative cause is no longer enough to order recalls?

U.S. courts are not famous for understanding epidemiology or other aspects of public health and I’m wondering what effect this suit will have on public protection against foodborne illness.  What standard of proof will the courts require?

Lawsuits are chilling.  Congress has just granted the FDA the authority to order recalls.  Food producers were not happy about that provision.  This is one way to get around Congress and the FDA.

It is worth asking who gains and who loses from lawsuits like this.

*Hence: chutzpah, which if you aren’t familiar with the term, is the Yiddish word for outrageous audacity.

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  • Walter

    Vote for Perry or Bachmann and there will be no more recalls just a few deaths each months and the “free market.”

  • Claudia

    RE: Walter’s comment:
    That is a ridiculous comment. This issue is a two pronged problem: a mass-produced food system that by nature cannot be deemed safe until someone gets sick, and, a CDC and FDA that do not apply strict scientific measures to assessing the cause of the illnesses they respond to.
    Frequently, they (FDA, CDC & others) defy common logic and assess a cause to something that has absolutely NO basis in facts.
    Look at what the FDA is spending huge manpower and money on currently–raiding (with automatic weapon armed FDA officers) multiple SAFE, local farms that raise pasture-raised milk cows for raw milk. I know, it sounds dangerous to the uninformed reader, but look it up (www.realmilk.com) and read the FACTS. I’ve been drinking it for over 18 mos. now, and I have Lyme disease and a compromised immune system. Rather than get sick from raw milk, it has re-built my intestinal flora markedly improving my immune system and overall health.
    DON’T TAKE ANYONE’S WORD on your health. Do the research. Find out the truth.

  • http://amillionconnections.blogspot.com Eden Balfour

    This relates nicely to Barry Estabrook’s blog post about a lawyer who is suing Cargill on behalf of those sickened by the recent salmonella-contaminated turkey: http://politicsoftheplate.com/?p=1019

  • Kim M.

    Go Bill Marler!!!

    Claudia said:

    “DON’T TAKE ANYONE’S WORD on your health….”

    Aren’t you doing exactly that, Claudia, by consuming raw milk? A couple of years ago, I was thinking about switching to raw milk. I watched some marketing films that showed several farmers milking their cows and bottling raw milk. Those films were supposed to be in favor of consuming raw milk but they made me completely uncomfortable with the farmers’ practices. The milking device that attaches to the udder touched the floor (where cows sometimes poop) before milking in more than one instance and some of those devices were put on the cows’ teats without being disinfected. One farmer smacked several cows on their hind ends, picked up a piece of equipment that fell on the milking floor, and then proceeded to fill milk bottles without washing his hands. He carried the milk from the milking room into the bottling room in an open plastic 5-gallon bucket with no precautions taken to prevent who knows what from flying or falling into that milk. I don’t care what any dairy farmer says or how trustworthy they might seem, I don’t trust anyone’s raw milk. Period. One of the dairies I would have bought raw milk from was closed in 2009 after 7 confirmed cases of E. coli, 2 of whom ended up on dialysis. An additional victim, a toddler who never drank that milk, contracted E. coli from another child who did drink it. That scares the hell out of me.

  • Kat

    Yes, in the land of lawsuits, this is no surprise. Didn’t the Tobacco Industry sue the American Cancer Society? — hahaha

    Kim M. thank you for trying to talk some common sense into Claudia. Unfortunately, all the common sense, or science, in the world doesn’t seem to change the mind of any readers like Claudia.

    I’m shocked Claudia, that you failed to promote the Weston A. Price foundation more directly. All his other “fans” seem to do this without hesitation around here. It never surprises me though — the number of people around here who believe their health is attributable to one thing. And the placebo effect is undeniably powerful :)

    The CDC and FDA actually do a pretty good job considering their constraints, their budgets, and the mass numbers of the public that honestly believe they seek to harm American citizens. They are just people like everyone else, trying to do a good job, not trying to poison us with pasteurization, or fluoridation, or stifle economic growth with food safety regulations.

  • Jon

    Claudia: Dr. Price was a bit out of his field, being a dentist and all. But if they would focus more on stuff like why it was that these peoples didn’t have these diseases, they might have a point. (The old “not living long enough” excuse doesn’t work anymore, with children developing type 2 diabetes before middle school.) Promoting things like coconut oil and other superfoods doesn’t.

    Kim: How exactly do you contract E. coli O157:H7 from someone else? Oh, please, don’t explain. I’ve got an image in my head, and I can’t un-imagine it.

    As for this, yes, pure chutzpah to sue somebody for prosecuting you for breaking the law. That’s like if somebody honestly told the police force they consumed child pornography, and then was surprised when the handcuffs came on.

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