In August 2010, thousands of people across the United States were poisoned by eating eggs unknowingly tainted with Salmonella enteritidis bacteria. Following a lengthy investigation, the owners of the facility where the outbreak began, Jack and Peter DeCoster of Quality Eggs, LLC, were sentenced to three months in prison. This is not a one-off case: Poor food safety practices are responsible for several outbreaks and often end in incarceration. Filthy hen houses, diseased fruit storage, and negligent food processing may be the last thing we want to imagine, but these practices have much to teach today’s food producers.
In an article originally published in the Fall 2018 Journal of Food Law & Policy, “A Meticulous Food Safety Plan Today Avoids Handcuffs Tomorrow,” partner Kim Bousquet examined how poor food production practices have led to environments ripe for contamination and what companies can do to avoid them. Here are some tips from the article.
- Create a food-safety-first culture. This can make all the difference in preventing or lessening the severity of an outbreak. In the notorious case of Peanut Corporation of America (PCA) and its officers Stewart and Michael Parnell, food safety was not part of the company’s culture. Employees were routinely instructed to ship contaminated product and to “just ship” product without receiving test results because the Parnells did not want to lose a customer. The Parnells maintained a company-wide culture of indifference and indignation to food safety measures.
In contrast to the Parnells, food companies should ensure the company culture has a strong, primary focus on food safety which includes ensuring all employees feel comfortable reporting potential food safety violations, no matter how trivial they may appear. Companies should consider incentives and rewards for employees who identify and fix food safety errors. Moreover, company policy should instruct that each employee is responsible for, and must take ownership of, the safety of all food products under his or her control. Management should likewise take responsibility for, and ownership of, food safety for products under control of his or her subordinates. Food safety should be a source of company and employee pride.
- Do not ignore your own internal food safety research. The 1993 Jack-in-the-Box E. coli outbreak could have been prevented if the company had simply followed the advice and research of its own employees. In that case, internal studies showed that increasing cooking time by a couple of minutes would have reduced the E. coli colonies in burgers sufficient to ensure they could be safely consumed. Jack-in-the-Box management ignored one employee’s suggestion to increase cook time and, instead, reminded the employee of the obligation to follow the existing company cooking-time policies. Had they taken up the suggestion instead, the outbreak could have been prevented.
- Have measurable and meaningful pathogen-reduction goals. In ready-to-eat foods, the goal for positive pathogen testing should, of course, be zero. Likewise, for per-se adulterants (e.g., E. coli 0157:H7), zero tolerance is the measure. However, where the USDA or FDA has not declared a pathogen a per se adulterant, companies should set strict and challenging microbial level goals. For example, Walmart has undertaken significant efforts to reduce the presence of Salmonella in its raw chicken by placing strict pathogen requirements on its chicken parts suppliers. Walmart has also implemented a testing regime for the raw chicken it purchases. As a result, the company has had a significant decrease in Salmonella presence in its raw chicken.
- Know where your skeletons are. That is, understand the risks most likely associated with your product and create — then follow — an individual risk mitigation plan for those specific risks. There are some food products that commonly carry pathogens: Poultry is known to carry Salmonella bacteria, beef is known to carry E. coli bacteria, and ready-to-eat deli meat is known to carry Listeria bacteria. Companies selling these products, therefore, should test for these pathogens and create a pathogen-reduction and control program specific to those risks as a part of FSMA compliance.
For example, given the 2017 widespread outbreak of E. coli illness from romaine lettuce grown near Yuma, Arizona, food companies planning to source produce from that region should take caution to protect against contamination. The outbreak was traced to an irrigation ditch downstream from a concentrated cattle feeding operation and upstream from the romaine fields; the source of the E. coli, therefore, may still be lingering upstream from the produce fields.
- Invest in traceability measures and consider blockchain technology. Food giants like Walmart view blockchain technology as the answer to stopping or slowing down food-related pathogen outbreaks. Regulations require a one-forward, one-back traceability system, but as we saw in a recent E. coli outbreak, this approach may not be sufficient to initiate a product recall or swiftly trace the source of the pathogen. It took months for the CDC and FDA to trace the tainted romaine lettuce back to a grower. In the meantime, grocery stores were pulling all romaine products off their shelves and consumers were avoiding consumption of any and all romaine lettuce. The outbreak could have ended sooner and companies could have wasted fewer resources had the supply chain been better documented through blockchain or other technology.
Blockchain technology can assist with more than traceability, it can also help companies identify any weakness in their supply chain since it can be used to automatically track temperatures, shipment dates, delivery dates, currency of safety certificates, and other information critical to maintaining a safe and secure supply chain. As part of your traceability program, conduct mock recalls and audits to ensure your traceability system will function if necessary.
- Take immediate action to notify customers of a recall. In other words, don’t wait until the close of markets on a Friday afternoon to notify your retailers of a recall. This common practice is a dead giveaway you are putting profits ahead of food safety and may ruin your relationships with business partners.
- Overtrain employees on food safety and do it in their native language. Research shows people only retain 20% of what they hear. Repetition can significantly increase this number, so employees must be trained and trained again (critically, in their native language) on proper food safety measures.
In sum, following a food safety plan is essential to achieve food safety goals, prevent widespread and lingering outbreaks, ensure regulatory compliance, and avoid incarceration. Going one step further and engaging employees, creating a healthy food safety culture, and installing numerous check points can create brand loyalty, customer loyalty, and hopefully prevent any illness from occurring at all. Simply put, if food companies put food safety first, the results will follow.
Kim Bousquet is a partner in the Firm’s business litigation practice area.