Top food safety stories include regs, recalls, respects this year
Looking back on 2017
foodsafetynews.com, by Dan Flynn, Dec. 22, 2017
Editor’s Note: The Food Safety News list of the year’s most significant news is compiled annually by our writers and editors. The list for 2017 is not led by any one or two blockbuster food safety stories, but it also won’t be quickly forgotten.
It was a year when there was finally a climax to several food safety sagas that stretched back over several years. And 2017 was a year of transition and turning the pages, though much of that remains incomplete.
Food Safety News will remain on the case in 2018, bringing closure to food safety stories, whether it’s wringing the last truth out of an outbreak; waiting for a court to render a final ruling; or catching the food industry doing something it will soon regret.
But for now, we pause to review of 2017. In about a week, we will return with a preview of what lies ahead for food safety in 2018.
1. Beef Products Inc. wins reported $177 million from ABC in a sudden end “pink slime” trial
After five years of preliminary legal wrangling, a trial in Union County, SD, got underway in June over BPI’s claims against ABC News for financial damages under the state’s agricultural disparagement act. BPI closed three of its four plants and lay off 700 workers when demand for its lean finely textured beef fell off after numerous media reports, including a series of ABC News reports in March 2012,that referred to the product as “pink slime.” BPI’s lawyers said ABC used the phrase more than 350 times across six different media platforms including television and online.
Because BPI was claiming as much as $1.9 billion in actual damages, ABC was potentially on the hook for almost $5.7 billion because South Dakota law provides for triple damages. Before BPI finished putting on its case, the two parties settled for an undisclosed amount and called off the rest of the trial.
The undisclosed settlement, however, did not remain undisclosed. When the Walt Disney Co., which owns ABC, later reported financial information to the Securities and Exchange Commission (SEC). The report included $177 million that financial analysts say was likely the payoff to BPI.
While the settlement amount officially remains confidential, its likely to attract renewed interest into agricultural disparagement laws on the books in 13 states. In addition to South Dakota, they are: Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Louisiana, Mississippi, North Dakota, Ohio, Oklahoma, and Texas.
BPI’s status as the first plaintiff to come away as a winner in such a disparagement case is obvious. Since the settlement, BPI is investing in plant and new product development, and a new $10 million fund to help workers it had to lay off five years ago.
That’s an outcome not experienced by Washington State apple growers who sued CBS in 1989, or Texas cattlemen who sued Oprah in 1996. In those cases, the media won.
2. A pesky parasite causes year’s most massive outbreak, but the source remains a mystery
During 2017, the federal Centers for Disease Control and Prevention reported 1,065 laboratory-confirmed cases of cyclosporiasis from U.S infections. The cause of the intestinal infection is a single-celled parasite called Cyclospora cayetanensis.
Imported fresh produce, usually from Mexico, was linked to previous U.S. outbreaks of cyclosporiasis. Fresh basil, cilantro, mesclun lettuce, raspberries and snow peas transported the parasite to the United States in past outbreaks.
How the parasites spread in 2017 remains unknown. In addition to contaminated fresh produce sources, some people in the U.S. contract Cyclospora parasites during foreign travel. However, for 2017, the CDC found 587, or 56 percent, of those infected in the U.S. did not report any international travel.
Cyclospora cases involving people who reported no foreign travel touched 36 states in 2017.
3. Rogue wave takes life of food safety leader Dave Theno
Nothing feels more like a gut-punch than the sudden and unexpected death of a friend and colleague. And that’s exactly how many in the food safety community were feeling after hearing about the death in Hawaii this past June 19 of Dave Theno at age 66.
He is best known as the food safety expert that saved Jack-in-the-Box after the San Diego fast-food chain brought him in to manage its way back from the deadly 1993 E. coli O157:H7 outbreak.
Theno was hit and killed by a massive wave while swimming with his grandson near Hulopo’e Beach, fronting the Four Seasons Resort on Lana’i. The family kept a vacation residence on the island not far from the resort and often swam in the area.
His leadership not only saved Jack. In many ways, the impact he had on the beef industry saved the American hamburger, which in recent years has been experiencing a renaissance.
After 16 years, Theno left Jack for Gray Dog Partners, his Del Mar, CA-based food safety consulting business where he was CEO from 2009 until his untimely death.
Theno had complete authority over food safety at Jack, and he did not hesitate to use it. The meat industry howled when he first implemented “test and hold” to make sure the beef sold to consumers was free of E. coli O157, but all soon followed along.
A food safety leader on many fronts, Theno was known for always keeping with him a picture of Lauren Beth Rudolph, one of four children killed in the 1993 E. coli outbreak.
4. Egg men finally do their jail time after Supreme Court declines to hear their case
Doing three months in jail at two of the better prison hospitals on the planet may not seem like much in the way of punishment. However, the fact that Austin “Jack” DeCoster is spending his holidays in a federal prison hospital outside Boston and that his son Peter already did his 90 days at a similar prison facility at Rochester, MN, is significant.
It all dates back to 2010 when then FDA Commissioner Margaret Hamburg wrote a letter to U.S. Sen. Charles Grassley, R-IA, suggesting that incarceration of “responsible corporate officials” could be a useful enforcement tool for her agency.
The issue the DeCosters wanted the U.S. Supreme Court to review was whether a “responsible corporate official” (ROC) can see their liberty denied for the illegal acts of underlings of which they have no personal knowledge or intent.
Jailing “Jack” DeCoster is popular with many who’ve followed his career. Now 83 years old and under the care of prison cardiologists, DeCoster was a “habitual violator” of environmental laws, paid millions for fostering conditions involving harassment and assault and pleaded guilty to hiring illegal aliens.
But for the charge that sent he and his son to jail — shipping adulterated eggs into interstate commerce — they knew nothing, according to the official record. They got jail time for being “RCOs.”
Their appellate attorneys said circuit courts do not agree on whether the U.S. Constitution permits such incarcerations, and that’s why the issue will eventually have to be decided by the Supreme Court.
But that decision did not happen in time for the DeCosters.
5. I.M. Healthy products implicated in outbreak sold online months after recalls
Months after a product recalled for sickening people with E. coli O157:H7 and causing acute kidney failure in several young children, you don’t expect to find one of the world’s largest retailers selling it online,
But we did. And then, we did again.
Probably the most shocking was finding the Jeff Bezos-owned Amazon.com was till selling I.M. Healthy brand soy nut butter in September when it had been recalled in March. But, the fact that the recalled soy nut butter was still available in October on Shop.com seemed even more peculiar.
Worth noting are two pretty simple facts. The first is that the obligation to round up the recalled product from the marketplace falls on the party doing the recalling. It cannot be resold, contributed to charities like food banks or even sold at yard sales.
Likewise, it cannot be sold by others.
We learned about this from readers who bought recalled products online. the Food and Drug Administration heard about it from us, and they did their thing. And, the offending websites finally removed the recalled food.
A mystery remains, however. A dangerous outbreak was traced directly to these products with multiple laboratory confirmations. The products caused serious injuries. There should have been some urgency about their removal. Why all the yawns?
The media mostly slept through this one, but Food Safety News did not, thanks to our readers.
6. U.S. bans Brazilian beef as JBS works to calm the chaos after Bautista brothers’ exit
Brazilian billionaire brothers Joesley and Wesley Batista created enough chaos for the world’s largest meat-packing company in 2017 to bring down most businesses. But Sao Paulo-based JBS S.A., which owns Greeley, CO-based JBS USA, is not just any company.
Joesley and Wesley were, respectively, JBS’s chairman and CEO when the series of tumultuous events began. It would take a 12-part mini-series to depict all the twists and turns going back to 2016.
Suffice to say the Batistas were involved in charges involving bribes paid to the former president of the Brazilian parliament and later Michel Temer, the current president of Brazil. By May 19, 2017, JBS S.A. was admitting to paying bribes to Temer and the two previous presidents of Brazil. Later testimony revealed JBS had bribed 1,829 Brazilian politicians including food safety inspectors.
Bribes of government officials were said to be part of a strategy for the brothers and JBS to obtain reduced market funding from government sources. It appeared for some time the brothers would stay out of jail through so-called leniency deals with prosecutors that involved an agreement to pay hefty fines.
The U.S. halted imports of fresh Brazilian beef on June 22, and the ban remains in place as the year comes to a close. Secretary of Agriculture Sonny Purdue initially implemented safety checks on all Brazilian imports in March but went to the ban when far too many samples tested were failing.
At year-end, fixes were underway at JBS. Irish expatriot Jeremiah O’Callaghan is the new board chairman and a new global compliance department, governance committee and “Always Do It Right” compliance program was set up. Alfred “Al” Almanza, who formerly headed USDA’s Food Safety and Inspection Program, was hired to lead global food safety and quality assurance for JBS. And an advisory board for JBS USA was recently created.
Finally, there will be no fire sale. JBS is divesting specific assets, but not all assets, in the divestiture program, which is expected to raise about 6 billion Brazilian Reals. R$1.00 equals about 30 U.S. cents. The most prominent asset on the block is the Five Rivers Cattle Feeding operation in Colorado.
7. Produce rule’s water quality requirements put on hold
The Food Safety Modernization Act (FSMA) was signed into law on Jan. 4, 2011, by President Barack Obama. After five years of rule writing, comment reviews, revisions and final adoptions, many of the specific safety requirements started going into effect in 2017.
But growers of fresh produce, which is responsible for an increasing number of foodborne illness outbreaks, are getting more time.
It’s going to be at least 11 to 13 years after the FSMA became law before water quality standards will take effect for fresh fruits and vegetables. Credit goes to produce lobbyists.
The FDA made the delay official on Sept. 12. Compliance dates for agricultural water requirements were formally extended for another two to four years for fresh produce other than sprouts. Food safety advocates say the water rules, which include testing for pathogens, are critical for fresh produce because it is often consumed raw, without a cooking step to kill pathogens.
The new agricultural water compliance date for large farms is Jan. 26, 2022. Small farms and very small farms will have until Jan. 26, 2023, and Jan. 26, 2024, respectively. The smallest of growing operations, which often supply local farmers markets and retailers, are exempt from the food safety requirements.
· Compliance dates for covered activities, except for those involving fresh sprouts, are to be:
Very small businesses, those with more than $25,000 but no more than $250,000 in average annual produce sales during the previous three year period: four years
· Small businesses, those with during the previous three years more than $250,000 but no more than $500,000 in average annual produce sales: three years
· All other farms: two years
The compliance dates for certain aspects of the water quality standards, and related testing and recordkeeping provisions, allow an additional two years beyond each of these compliance dates.
8. Food freedom movement begins to get traction with state legislatures
Law professor and author Baylen J. Linnekin says Maine’s Food Sovereignty Act has “faced its first test and survived.” Maine’s food freedom law cleared several hurdles in 2017. It had to escape Gov. Paul LePage’s often used veto pen, and it needed a special session amendment to keep the U.S. Department of Agrucilture from ceasing to recognize state-inspected slaughter facilities.
When local officials at those quaint town meetings began declaring their little jurisdictions free from food licensing, inspection and other food safety regulations a few years ago, it was sort of charming. But 2017 showed that when enough cities and towns pass food freedom laws, the state legislature probably won’t be far behind.
Maine, North Dakota and Wyoming have now all adopted some version of food freedom laws. Maine’s Food Sovereignty Act allows farmers and other food producers to engage local consumers in direct sales if there is a local food freedom ordinance in effect.
Gov. LePage asked the Maine Legislature to amend the new law in special session to make it clear that the act does not repeal other state or federal food safety provisions. USDA had threatened Maine’s jurisdiction over five meat processing facilities unless the food freedom law was amended.
Linnekin, author of “Biting the Hands that Feed Us: How Fewer, Smarter Laws would Make Our Food System More Sustainable,” is an advocate of outcome-based approaches for food safety.
9. Appeals heard on Peanut Corporation of American criminal convictions, sentences
This year the 11th U.S. Circuit Court of Appeals accepted all written documents and heard oral arguments in its review of the convictions and sentencing of executives formerly associated with Peanut Corporation of America (PCA).
All that remains is for the appellate judges to render an opinion on whether to overturn any part of the convictions and sentences of brothers Stewart and Michael Parnell along with Mary Wilkerson.
The most recent activity were oral arguments on Nov. 7 in Atlanta. All written briefs were submitted earlier in the year. It’s not known when the court will rule.
A jury convicted brothers Steward and Michael Parnell along with former PCA employee Mary Wilkerson in 2014. They were sentenced in 2015. Their appeals, which were combined, involved multiple issues.
The trio remains incarcerated. Both Stewart Parnell, 63, and Michael Parnell, 58, are in federal minimum security prisons at Estill, SC, and Milan, MI, respectively. The jury convicted the brothers on a series of fraud and conspiracy charges.
Unless their appeals are successful, Stewart is not due for release until 2040, and Michael won’t be free until 2033.
Wilkerson was convicted of one count of obstruction of justice, and is due for release on March 10, 2020, from a minimum-security federal women’s prison camp at Marianna, FL.
10. Federal food safety sees new leadership during year of transition
Al Almanza retired from the federal government on July 31.
This past spring, Dr. Stephen Ostroff arrived in Chicago to headline a food safety conference as acting FDA Commissioner. By the time he left town, he was again FDA’s deputy commissioner for foods and veterinary medicine.
Dr. Scott Gottlieb became the 21st FDA Commissioner on May 11. He stepped in with apparent ease from his days as a deputy commissioner. The new Commish has kept Ostroff on board to run food safety.
At the CDC, Dr. Brenda Fitzgerald took over as director in July. She succeeded Dr. Tom Frieden, who headed CDC for the eight years of the Obama administration.
Fitzgerald is an obstetrician-gynochologist and was Georgia’s public health commissioner. Her first months on the job at CDC have been reportedly low key. CDC is about to make history as the City of Atlanta annexes the federal campus on Jan. 1, 2018.
On July 31, Alfred “Al” Almanza retired from the federal government after almost four decades of service. He ended up with two titles: Deputy Under Secretary of Food Safety and administrator of USDA’s Food Safety and Inspection Service (FSIS).
Secretary of Agriculture Perdue named two FSIS veterans to replace Almanza on an acting basis. Carmen Rottenberg was named interim Deputy Under Secretary for the Office of Food Safety, and Paul Kiecker became FSIS’s acting administrator.
President Donald J. Trump has yet to appoint a USDA Under Secretary for Food Safety as required by law. That appointment will require confirmation by the U.S. Senate.
The Under Secretary for Food Safety is the highest food safety job in the federal government. It’s been vacant for the past four years.