First, a confession: I’m a pro-union guy. I believe unions were instrumental in securing many of the health and safety rights we take for granted.  I believe unions continue to have relevance and remain necessary for a just and benevolent society.

The essence of that society is balance through strength. It is the logic that underpins all of our democratic institutions. For justice, we need government authority tempered by individual rights. For democracy, we need co-equal branches of government each to check the power of the others. For international diplomacy, we need military strength to prevent over reaching by expansionist nations.

How then can we, as a just society, ever accept a lack of balance when it comes to workers’ rights? History and our own experience shows that corporatism unchecked is a threat to us all (and not just the workers most directly affected).

A good example of this is playing out in a battle over organizing rights involving a Twin Cities Jimmy John’s franchisee that fired six employees after they publically protested the restaurants’ sick leave policy. See http://www.startribune.com/business/148530485.html.

Like many fast food restaurants, these Jimmy John’s shops don’t pay employees on days when they’re too sick to work. It doesn’t take a food scientist or an economist to figure out that such policies create a strong incentive for employees to continue working when they have infectious and highly contagious illnesses likely to result in contamination of work surfaces, utensils and food sold to the public.

This is not a hypothetical threat. Our firm, one of only a handful in the United States that specializes in food safety law, has represented hundreds of people harmed in foodborne illness outbreaks caused by infected food handlers.  Many of those cases involved workers sickened by hepatitis A, Salmonella, norovirus or Shigella who continued working despite their illnesses.

The mode of transmission is as unpleasant as the illnesses are dangerous:  fecal matter or aerosolized vomit in food.  This pathogenic chain reaction is the direct result of employment policies and sanitation violations that are so often inextricably linked. Put another way, restaurants that are unwilling to pay their employees for sick time may have the same laissez-faire attitude toward restaurant hygiene.

Not all workers are saints and not all restaurant owners are villains. Personal responsibility applies to food safety as it does to every other human action. However, when we know by direct experience and common sense that certain policies ineluctably lead to foodborne illness, those policies must change.

A federal administrative law judge has ruled that a Twin Cities Jimmy John’s franchisee violated the union organizing rights of six employees by firing them last year after they publicly protested the restaurants’ sick leave policy.

The workers, who were all active in an attempt to unionize 10 local Jimmy John’s, must be reinstated to their jobs and given back pay, according to an order late Friday by the Washington, D.C.,-based judge, Arthur Amchan

The debate starts at 7:00 at Harvard Law School, Langdell South Room, Boston, Massachusetts, 1563 Massachusetts Avenue, Cambridge, MA.  There will be a livestream of the event and it will be archived on YouTube.

The debate comes during the largest outbreak of illness linked to raw milk in the last ten years. There are now 76 confirmed cases in an outbreak of Campylobacter jejuni infections linked to raw milk produced by Shankstead EcoFarm in Pennsylvania and sold under the Your Family Cow brand at The Family Cow dairy in Chambersburg, Franklin County, Pennsylvania. The most recent information from the Pennsylvania Department of Health is as follows:

76 total cases: 66 in PA (increase by 4 from yesterday), 5 in MD (increase by 1 from yesterday), 2 in NJ, and 3 in WV.

 

Onset dates range from January 17 to February 1, 2012.

 

PA County breakdown: Franklin 18, Adams 1, Wyoming 1, Chester 6 (increase by 1 from yesterday), Dauphin 2, Cumberland 6, York 7 (increase by 2 from yesterday), Lancaster 8, Delaware 6 (increase by 1 from yesterday), Bucks 6, Allegheny 1, Montgomery 3, and Northampton 1.

The Maryland Department of Health and Mental Hygiene Laboratories Administration confirmed the presence of Campylobacter jejuni in two unopened raw milk samples purchased from The Family Cow dairy.

Victims of this outbreak can contact me at 1-888-377-8900 (toll free) or by submitting the free consultation form.

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.

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°.

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.

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.

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.

My presentation was about how lawyers prove food safety cases. This picture of my keynote address was taken with an Iphone.

I don’t frankly care if raw milk advocates drink it at their peril. But I do care, passionately, when they harm people who are simply curious about raw milk, don’t realize their milk and dairy products are unpasteurized, are too young to protect themselves, or didn’t even consume any raw milk products (but were infected by someone who did). Since it is impossible to indulge the former and protect the latter, raw milk will remain a public health hazard. It is therefore, critical that sellers of raw milk be required by law to post information about the risks of consuming raw milk, including the risks of kidney failure, paralysis and death. This warning should be posted on every bottle of raw milk sold and on every raw milk product.

In addition, before raw milk can be distributed, sold, or in any way provided to a consumer (this includes consumers who buy a “share” in a cow), the following information from the Centers for Disease Control and Prevention (CDC) should have to be provided to the consumer:

Raw (Unpasteurized) Milk

Raw milk can carry harmful germs that can make you very sick or kill you. If you’re thinking about drinking raw milk because you believe it has health benefits, consider other options.

Trying to decide about raw milk?

Developing a healthy lifestyle is a process with many decisions and steps. One step you might be thinking about is adding raw milk to your diet. Raw milk is milk that has not been pasteurized to kill harmful germs. Germs include bacteria, viruses, and parasites. It’s important to understand the risks of drinking raw milk, especially because you may be hearing claims about the supposed “benefits” of raw milk.

Raw milk contains bacteria, and some of them can be harmful. So, if you’re thinking about consuming raw milk because you believe that it is a good source of beneficial bacteria, you need to know that it isn’t and you may instead get sick from the harmful bacteria. If you think that certain types of bacteria may be beneficial to your health, consider getting them from foods that don’t involve such a high risk. For example, so-called probiotic bacteria are sometimes added to pasteurized fermented foods, such as yogurt and kefir.

Milk and products made from milk need minimal processing, called pasteurization, which can be done by heating the milk briefly (for example, heating it to 161°F for about 20 seconds). When milk is pasteurized, some bacteria remain in it, but the disease-causing ones are killed. Harmful germs usually don’t change the look, taste, or smell of milk, so only when milk has been pasteurized can you be confident that these germs are not present. To ensure that milk is safe, processors rapidly cool it after pasteurization, practice sanitary handling, and store milk in clean, closed containers at 45°F or below.

Remember, you can’t look at, smell, or taste a bottle of raw milk and tell if it’s safe to drink. Make the best decision for the health of your family. If you want to keep milk in your family’s diet, protect them by not giving them raw milk. Even healthy adults can get sick from drinking raw milk. If you’re thinking about drinking raw milk because you believe it has health benefits, consider other options.

Who is at greatest risk of getting sick from drinking raw milk?

The risk of getting sick from drinking raw milk is greater for infants and young children, the elderly, pregnant women, and people with weakened immune systems, such as people with cancer, an organ transplant, or HIV/AIDS, than it is for healthy school-aged children and adults. But, it is important to remember that healthy people of any age can get very sick or even die if they drink raw milk contaminated with harmful germs.

What are the risks associated with drinking raw milk?

Raw milk can carry harmful bacteria and other germs that can make you very sick or kill you. While it is possible to get foodborne illnesses from many different foods, raw milk is one of the riskiest of all.

Getting sick from raw milk can mean many days of diarrhea, stomach cramping, and vomiting. Less commonly, it can mean kidney failure, paralysis, chronic disorders, and even death.

Many people who chose raw milk thinking they would improve their health instead found themselves (or their loved ones) sick in a hospital for several weeks fighting for their lives from infections caused by germs in raw milk. For example, a person can develop severe or even life-threatening diseases, such as Guillain-Barré syndrome, which can cause paralysis, and hemolytic uremic syndrome, which can result in kidney failure and stroke.

Aren’t raw or natural foods better than processed foods?

Many people believe that foods with no or minimal processing are better for their health. Many people also believe that small, local farms are better sources of healthy food. However, some types of processing are needed to protect health. For example, consumers process raw meat, poultry, and fish for safety by cooking. Similarly, when milk is pasteurized, it is heated just long enough to kill disease-causing germs. Most nutrients remain after milk is pasteurized. There are many local, small farms that offer pasteurized organic milk and cheese products.

I’ve heard that many organic and raw milk producers are creating sanitary and humane conditions for raising animals and producing “safe” raw milk and raw milk products (like cheeses and yogurts). Does this help reduce milk contamination?

Adherence to good hygienic practices during milking can reduce, but not eliminate, the risk of milk contamination. The dairy farm environment is a reservoir for illness-causing germs. No matter what precautions farmers take, and even if their raw milk tests come back negative, they cannot guarantee that their milk, or the products made from their milk, are free of harmful germs.

• Germs such as Escherichia coli O157, Campylobacter, and Salmonella can contaminate milk during the process of milking dairy animals, including cows and goats. Animals that carry these germs are usually healthy.

How does milk get contaminated?

Milk contamination may occur from:

• Cow feces coming into direct contact with the milk
• Infection of the cow’s udder (mastitis)
• Cow diseases (e.g., bovine tuberculosis)
• Bacteria that live on the skin of cows
• Environment (e.g., feces, dirt, processing equipment)
• Insects, rodents, and other animal vectors
• Humans, for example, by cross-contamination from soiled clothing and boots

Pasteurization is the only way to kill many of the bacteria in milk that can make people very sick.

Information about raw milk-related outbreaks

States that allow the legal sale of raw milk for human consumption have more raw milk-related outbreaks of illness than states that do not allow raw milk to be sold legally.

Among dairy product-associated outbreaks reported to CDC between 1973 and 2008 in which the investigators reported whether the product was pasteurized or raw, 82% were due to raw milk or cheese. From 1998 through 2008, 86 outbreaks due to consumption of raw milk or raw milk products were reported to CDC. These resulted in 1,676 illnesses, 191 hospitalizations, and 2 deaths. Most of these illnesses were caused by Escherichia coli O157, Campylobacter, or Salmonella. It is important to note that a substantial proportion of the raw milk-associated disease burden falls on children; among the 86 raw dairy product outbreaks from 1998 to 2008, 79% involved at least one person less than 20 years old.

Reported outbreaks represent the tip of the iceberg. For every outbreak and every illness reported, many others occur, and most illnesses are not part of recognized outbreaks.



What the new law does not guarantee, however, is funding to implement these important safety requirements.  And without proper funding, the food safety mandates in the new law may become empty promises.

In a recent Smart Money article by Sarah Morgan,  David Plunkett, a senior staff attorney in the food safety department of the Center for Science in the Public Interest, was quoted  as saying  the FDA’s “budget right now is not adequate, and it’s certainly not adequate to implement this law.”

Before a bill is passed into law, the United Sates Congressional Budget Office (CBO) is required, with some exceptions, to conduct a cost estimate of implementing it. The CBO report on the Food Safety and Modernization Act concludes that after deducting fees earned pursuant to the new law, the net cost will be approximately $1.1 billion over five years beginning in 2011. According to the CBO report:

CBO estimates the fees collected would not offset all of the costs of the new requirements in S. 510. The additional inspections and administrative activities not covered by fees would increase discretionary outlays by $1.1 billion over five years beginning in 2011. That amount incorporates savings to the FDA for food safety activities conducted under current law that would henceforth be funded by fees in the bill. The spending total also reflects the cost of authorized grants to states and certain other entities to enhance food safety.

A significant cost? Sure it is, but not compared to the cost of medical care, lost wages, pain, suffering and death associated with the thousands of cases of foodborne illness that occur each  year in the United States.

And that’s the problem with the short-sighted Tea Party-Republican mentality that has infected Congress like a case of diarrhea-inducing salmonellosis. To improve health and safety, to create new jobs and to decrease the cost of human misery, you have to spend money. Far from being a net loss, this added expense actually saves money and lives. Let’s hope our representatives realize that.