If cookie dough adulterated with E. coli O157:H7 was so rare, how could consumers have been at fault for the E. coli outbreak linked to Nestles Cookie Dough?
A logical disconnection (Non sequitur, if you will) is an argument in which its conclusion does not follow from its premises.
In March 2009 there was an E. coli O157:H7 outbreak associated with Nestle Cookie Dough involving 77 confirmed E coli infections in 30 states, including 35 hospitalizations and 10 cases of hemolytic uremic syndrome. I represented several of the survivors from that outbreak.
In a medical journal article published online on December 8, 2011,1 the authors concluded that raw flour used to make the cookie dough was the “prime suspect” in the outbreak although there was no conclusive evidence that the flour was, in fact, adulterated. The authors concluded:
This is the first reported STEC outbreak associated with consuming ready-to-bake commercial prepackaged cookie dough. Despite instructions to bake brand A cookie dough before eating, case patients consumed the product uncooked. Manufacturers should consider formulating ready-to-bake commercial prepackaged cookie dough to be as safe as a ready-to-eat product. More effective consumer education about the risks of eating unbaked cookie dough is needed. (emphasis added)
Within a few months of the outbreak (by July 1, 2009 according to press reports), FDA investigators were focusing on flour as the source of the E. coli O157:H7. However, officials and food safety pundits stressed how novel it was for an E. coli O157:H7 outbreak to be associated with either raw flour or cookie dough. Evidently it was so novel that most cookie dough producers were not treating their flour to kill off the deadly pathogen (and presumably were not testing for it either).
There appears to be a logical disconnection here. If cookie dough adulterated with E. coli O157:H7 was so rare that even producers did nothing to prevent it, how can it be suggested that consumers (who are known to eat raw cookie dough) are implicitly at fault because they failed to take precautions against the E. coli O157:H7 threat?
I can already hear the response: Everyone knows cookie dough contains raw eggs and everyone knows raw eggs carry Salmonella, so if consumers used common sense and refrained from eating cookie dough to avoid salmonellosis, they could have also avoided E. coli O157:H7 poisoning.
But you know what? Most consumers are not food safety experts. They may not know about the dangers associated with raw cookie dough and certainly could not know it was capable of harboring deadly E. coli O157:H7. They also don’t know that the infective dose of E. coli O157:H7 is so incredibly low (which means that you don’t even have to eat raw cookie dough to become poisoned by it).
I agree that consumers need to take reasonable precautions. But if producers – especially multi-national companies like Nestle – don’t consider a danger or prevent it from occurring, it’s illogical and unfair to blame consumers for not doing so.
Food is a product and therefore subject to product liability law and the requirements of safe product design. Those requirements establish a three-tier safe design process: design out the defect; if you cannot design out the defect, add guards that prevent contact with the danger; and if you cannot design out or guard against the danger, then (and only then) are you allowed to warn users to avoid the danger (and when you do issue warnings, they have to be explicit).
In this case, as in so many others involving unsafe food products, producers don’t design out the dangers; they simply bypass the principles of safe design and jump to innocuous and ill-conceived warnings that do not convey sufficient information to constitute an effective warning (Why? Because if the warnings were truly effective, people would not buy the product).
1. Karen Neil, et al., A Novel Vehicle for Transmission of Escherichia coli O157:H7 to Humans: Multistate Outbreak of E. coli O157:H7 Infections Associated With Consumption of Ready-to-Bake Commercial Prepackaged Cookie Dough—United States, 2009 , Clin Infect Dis. (2011) doi: 10.1093/cid/cir831. First published online: December 8, 2011.
Food Safety Lawyer Fred Pritzker to Bourdain: Love Your Show But Medium Rare Hamburger Is Dangerous
I live in Minnesota. That means that for four or five months of the year, my exercise regimen is relegated to the basement of our St. Paul home.
Since using an elliptical trainer or riding an exercise bicycle is mind-numbingly dull, I distract myself with television. One of my favorite work-out programs is Anthony Bourdain’s “No Reservations” (and his new show, “The Layover”). I like Bourdain because he’s wry, mordant and cynical: the perfect companion for a visit to places I may never see on my own.
I also like the fact that he’s a dick. His persona is that of a self-absorbed and highly opinionated guy – traits you probably don’t want in your father or best friend but quite enjoyable as a travel guide (provided you have separate rooms and a lot of time apart).
Bourdain is also the quintessential (and disdainful) foodie. In a recent episode, “The Layover: New York,” Bourdain samples some of New York’s best burgers, including the $26 offering at Minetta Tavern (a blend of inexpressibly choice cuts of cow capable of exciting the salivary glands of any carnivore, me included).
Bourdain, of course, orders his burger medium rare and eats it with a verbal dollop of sanctimony about the virtues of less-cooked food. On some level, I think “good for him.” If he drinks too much or has no antipathy toward pathogenetic microorganisms, who am I to judge?
And yet…I wonder if Bourdain has ever cared about someone dying from foodborne illness or watched a child undergoing dialysis? I doubt it. The pleasure of food well-eaten pales in comparison to a young life lost to foodborne illness.
We tout the virtue of personal freedom and rebel against the sanctimonies of dictated behaviors. That tension will always exist and the line separating the extremes is, by necessity, ever shifting. But Bourdain is still a dick, albeit an entertaining one, and hamburger, even the priciest, is still a danger at less than 160°.
Raw Milk is Inherently Unsafe and Responsible for Repeated Outbreaks
In my line of work representing victims of foodborne illness, I have frequent contact with food safety experts including microbiologists, epidemiologists, sanitarians and infectious disease physicians. Not once have any of these experts ever recommended consumption of raw milk.
Why? Because EXPERTS, the people who have studied, trained, conducted experiments, treated patients and written peer-reviewed articles (not pseudo-scientists who BELIEVE something to be true), know that raw milk is inherently unsafe. Raw milk is responsible for repeated outbreaks and will continue to cause injury and death no matter what its proponents claim to the contrary.
Need proof? Look no further than this month’s raw milk outbreak involving fourth graders at a public school in Wisconsin.
In Racine County, Wisconsin a parent (!) brought raw milk to a school event. Sixteen people, including at least nine children, were poisoned with Campylobactor jejuni bacteria after consuming the donated milk.
According to Wisconsin officials, this incredibly stupid action on the parent’s part was not illegal. Apparently, any person who lawfully purchases raw milk can give it away to anyone with impunity.
Proponents claim that consumption of raw milk is healthful, nutritious and a matter of personal choice. Their argument is that if a person knows of the risk (which they claim is de minimis) and chooses to encounter it, it is that person’s choice and the state should not intrude.
Fair enough. Except, that a) there is no proof raw milk is healthier than pasteurized milk; b) the risks associated with raw milk are not de minimis; c) when people become ill from raw milk, as some inevitably will, we all (not just the victim) have to pay for it, and d) as this case tragically illustrates, “freedom of choice” does not prevent innocent children from being harmed.
According to a Wisconsin newspaper, “bills to legalize the sale of unpasteurized milk have been introduced in the Legislature in the past. One passed last year, but former Gov. Jim Doyle vetoed it citing the danger to public health.” Enough said.
Attorney Fred Pritzker represents campylobacteriosis victims and their families nationwide. He is currently representing a man who consumed raw milk contaminated with Campylobacter, developed Guillain-Barré syndrome (GBS) and is now paralyzed. Mr. Pritzker can be reached at 1-888-377-8900 (toll free) or by submitting our contact form.
E. coli O157:H7 Contamination of Plants
In order to prevent E. coli O157:H7 contamination of plants, we have to understand how the plants become contaminated in the first place.
We know that E. coli O157:H7 survives in soil. We also know that plant surfaces become contaminated with E. coli O157:H7 as a result of direct contact with the pathogen – either in the soil, as deposited by animals, from dust and from irrigation or run-off water.
Scientists have also speculated that ground-based E. coli O157:H7 gets taken up through the roots of growing plants and thus contaminates the interior of the plant as well as its exterior.
As reported by Doug Powell in his blog: http://barfblog.foodsafety.ksu.edu/blog/147517/11/04/01/can-e-coli-get-inside-plant-vascular-system-2009-research-says-unlikely
A study by the USDA’s Agricultural Research Service appears to show that such internal contamination does not occur.
The significance of this? While it does not mean there is any less E. coli O157:H7 adulteration of produce, at least we may not have to worry about the insides of plants.
Sale of Raw Milk Should be Banned in U.S.
Last week I was invited to Vancouver, British Columbia to speak to a group of Environmental Health Officers from the Fraser Health Authority. They were interested in how we select and prove foodborne illness cases (and how their work as sanitarians impacts on what we do).
As often happens in such presentations, the conversation turned to raw milk. Under Canadian law, it is apparently illegal to sell or purvey raw milk in any fashion (unlike in the US where many states allow some commercial raw milk sales). One of the officers of the Department raised an interesting question about raw milk in the context of personal freedom vs. governmental regulation of a potentially dangerous commodity. He asked me whether it is appropriate to regulate a commodity like raw milk if a consumer, knowledgeable about its risks and dangers, nevertheless chooses to drink it. In other words, treat it like “informed consent” in the context of a medical procedure: there is utility with attendant risk. If the risks are fully explained and the consumer/patient judges there to be sufficient utility to justify the risk, why should the government intrude?
So let’s assume a consumer goes to a dairy intending to purchase raw milk and is handed a form that fully and fairly sets out all the risks associated with raw milk. The consumer reads the form, signs the waiver and purchases raw milk. If s/he later gets sick, no one can complain (and no lawyer can sue on their behalf) because the consumer made an intelligent choice and is now fully responsible for the harms and losses that occurred.
Okay. But like most anti-government conceptual bullshit, the execution of the concept and the real-world implications of it are something else altogether.
So what happens, for example, when the bottle of raw milk that was “intelligently and knowingly” purchased ends up in the consumer’s refrigerator and is then poured on two bowls of corn flakes, one eaten by the 10-year-old child of the purchaser and the other by his neighbor/friend who was at the house on a sleep-over and later developed Hemolytic Uremic Syndrome and has life-long medical problems as a result(these facts are virtually the same as a real case, by the way)? Or what about another raw milk proponent who is sickened despite his knowing and intelligent waiver and then proceeds to incur over $1 Million in medical expenses (which we as a society end up paying directly or indirectly)?
Here’s my take: Until we can guarantee no innocent party will ever be harmed by raw milk and no one other than the person who chooses to drink it will have to subsidize the harm resulting from it, we should follow the wisdom of our friends north of the border and not allow anyone to buy it.
Food safety attorney Fred Pritzker can be reached at 1-888-377-8900 (toll free) or via our online contact form.
Food Safety Inspectors Learn about Food Litigation
Last week I spoke to food safety inspectors (aka Environmental Health Officers) employed by the Fraser Health Authority (which is basically the equivalent of a county health department)in British Columbia, Canada. The day-long meeting of over 100 EHOs was the Fraser Health Authority’s Annual Environmental Health Officer Educational Day.
My presentation was about how lawyers prove food safety cases. This picture of my keynote address was taken with an Iphone.
Fred Pritzker On Newsmakers
