Bill Marler Speaks to WSU on Food Safety and the Law

Last Wednesday, Bill Marler, a Personal Injury Lawyer focusing on Food Safety issues gave his Common Reading lecture at Washington State University. The talk was entitled “Chasing the Ambulance Away: Reshaping the Role of the Personal Injury Lawyer in Society and the Law”, which I couldn’t help but chuckle at since the first time I was exposed to Mr. Marler, I went on to accuse him of being an ambulance chaser.

That was, as I’ve said since, a grossly unfair characterization, as Bill’s history, which I’ll be discussing some later, has tended toward cases where the injury sustained by the people he’s represented has typically involved enormous consequences, typically requiring lifelong medical treatment. More importantly, from my perspective, is that in far too many of the cases Bill’s worked on, compelling evidence has been found that the defendants either knowingly disregarded the potential health risks, or willfully remained ignorant of the potential for damage existing within their own facilities.

At the heart of the matter is the fact that in the State of Washington, since 1913, after the Mazetti v. Armour & Co. case (75 Wash. 622) (for which I can find several references online, but no transcript or anything), there has been a legally binding implication that anyone manufacturing food (which includes growing or processing) is providing a warranty that the food product is safe. So, for Food Safety, there isn’t even a question of guilt. If you can prove a food product is responsible for sickening someone (or rather, many someones, since usually you need that to find a pattern), they are unquestionably at fault. Their intent has nothing to do with the fact that they’re responsible, though certainly damages can be modified by the reasonableness of their efforts to do the right thing.

The good part about this system is that it protects retailers (grocers, not always restaurateurs), who often are unable to know a product might be contain an infection, though of course, visible signs of problems that a grocer does nothing about are still their liability, and a restaurant that handles their food properly might not be liable if a shipment they get in is infected, provided their handling practices don’t make the problem worse (more on that later).

I could do a recap of Bill’s cases, but I’ll just touch on the big ones and some of what i found interesting about the sort of repeating links of them. First, was the Jack in the Box case from 1993, which sort of made Bill famous. A case where there was proof that Jack in the Box’s executives were more concerned about hitting a two minute preparation time, instead of cooking their meat all the way through. Saving thirty seconds per burger killed 4 people.

In 1996, Odwalla, after being told by the US Army that their plants were too filthy for the Army to buy their Juice for sale to Army personnel and families, continued to ship Apple juice that they knew was possibly bad, all because they were trying to pad their profit margins to look good to Wall Street. E-mails from inside the company showed that they considered doing more stringent testing, but chose not to so that they could claim ignorance of the extent of the problem (and possibly even it’s existence).

Or a 2003 case where a restaurant was storing their scallion’s in the same container for months at a time, which eventually became described as a ‘Hepatitis Soup’. In this case, it happened to be an import product, but nearly all cases Bill has tried over the last 17 years have been from domestic products.

Food Poisoning is a difficult thing to prove. Many food-borne illnesses take days, if not weeks, to incubate. So tracking down the cause of the illness is very difficult. The food production industry does virtually no self-policing. Bill described a peanut-butter plant in Georgia as being so filthy that you’d think twice about taking your car to an auto repair garage that was that messy. And that plant hadn’t been inspected in seven years, because the FDA doesn’t have the resources necessary to enforce it’s own standards.

Things are certainly bad. But are they any worse than they’ve ever been? Or are we simply better at tracking and identifying the problems such that they just seem worse? I think it’s a combination. Surely we’re better at tracing problems, but unlike Bill, I think a strong claim can be made that overuse of low-levels of antibiotics will apply an artificial selection force for strains of the bacteria that are more resistant to a given antibiotic, the so-called ‘superbug’. I feel the biggest change, and the most damaging issue, is the centralization of the food system. Even fifty years ago, the thought of a farm in California producing contaminated spinach that was going to sicken people in New York was practically laughable. The idea that a state like California would grow the majority of the nation’s tomato crop, which are shipped nationwide, was also laughable. The attractiveness of this system from an industrial standpoint is obvious, but it is likely the reason our food is less safe.

When asked what he eats, Bill replied that he tries to eat local food as much as he can. Shorter distance between field to plate means fewer handlers, which means fewer opportunities for mishandling. But also, it tends to have a shorter time to consumption, which can prevent an infection from taking hold. For instance, a Spinach-caused outbreak of Salmonella in 2007 would likely have been a non-issue, if the spinach had been picked and sold at a Farmer’s Market instead of bagged and shipped clear across the country.

Solving this is a major problem. The Free Market is weakened by the fact that most consumers never hear about the causes of these problems, or that they can be convinced via advertising or familiarity that the product is trustworthy. Hell, I don’t know how many people I know who’ve blamed Taco Bell for some kind of food-related distress, only to continue eating there. What about Regulation? We live in a time right now where the general public doesn’t trust Congress to do something that doesn’t in some way benefit corporate interest more than the general public, and then the issue with the current house-passed bill languishing for attention in the Senate because the senators are too busy with health-care reform.

Litigation isn’t really helping because it’s reactive, and a lot of companies just view litigation as a cost of doing business. Something they just have to put up with. What’s worst in my mind, is that fact that there is no criminal liability, even in cases where executives force the shipment of goods that they are almost (or even absolutely) certain are contaminated. In China, these people have been known to be drug out into the street and shot. While that’s not an answer appropriate here, Bill says he’s only seen a very small handful actually go to jail.

Bill provided a top eleven list, of things he wants to see done to improve food safety, which I’ll repeat below. Before I do however, I wanted to just boil things down to the basics of what I think he was indicating needed to happen. We, as American’s, need to start spending more on food. We can’t expect the regulation or devotion to quality that we expect unless we’re willing to pay for it. Instead, we now have a system where food producers are forced to cut corners because retailers will squeeze them and threaten to pull their business unless they drop wholesale rates, a major problem when you’re in a business that already operates at razor-thin margins.

Bill’s Top 11 Food Safety Changes:

  1. Improve Surveillance - Track food from farm to plate
  2. Better cooperation by government
  3. Train, Certify and Vaccinate food handlers
  4. Stiffen license requirements (but please do it in a way that is still fair to small producers)
  5. Increase food inspections
  6. Reform agencies to be proactive, not reactive
  7. Criminalize knowingly shipping tainted product
  8. Use technology to make food more traceable
  9. Promote research (particularly research not funded by Industry)
  10. Provide tax breaks to improve producer profitability
  11. Improve Customer Understanding

I’ve added a bit of commentary to the above points (anything in parentheses) on where I see potential problems with the regulation that would be approved by a Department of Agriculture whose policy has led to the centralized agricultural system which is at least partially responsible for the problems we have today.

What I felt was the most important takeaways from the talk were that we need to find a way to make the food industry more accountable, hopefully from within, since as it stands they can willfully ship infected goods and not face much in the way of consequences. For now, the best way to be safe seems to be eating locally grown food, which has received a minimal amount of handling. It may not be fool-proof, but it’s the best we have, and with luck, we’ll all be able to eat this way in the near future.