In an unpublished opinion, the Fifth Circuit Court of Appeals has upheld the dismissal of a biscuit maker’s claim that the Food and Drug Administration’s (FDA’s) negligent testing of its product for Listeria monocytogenes resulted in a false positive report that caused it to lose its contract with a company that supplied 7-Eleven convenience stores with biscuit sandwiches. Lone Star Bakery, Inc. v. U.S., No. 09-50374 (5th Cir., decided November 17, 2009). The litigation arose under the Federal Tort Claims Act following a 2002 Listeria contamination incident for which the biscuit maker was initially blamed, but later cleared of any responsibility. The company sought $2.9 million in damages from the FDA. According to the court, which affirmed a grant of the FDA’s summary judgment motion, while the company submitted evidence showing “several instances where the FDA inspectors failed to follow agency collection and testing protocol,” its evidence was “devoid of…
Tag Archives Listeria
The Canadian Food Inspection Agency has issued a warning and reported the voluntary recall of frankfurters and wieners manufactured by Maple Leaf Foods, the company whose Listeria-tainted meat products in 2008 purportedly sickened thousands across Canada and were apparently ruled a “contributing cause” in the deaths of 22. According to the agency, the processed meat products now at issue “may be contaminated with Listeria monocytogenes.” While no reported illnesses have been associated with the products’ consumption, the “potential problem” was identified “as a result of the new mandatory testing and reporting requirements placed on industry in February 2009.” Details about the settlement Maple Leaf reached in litigation arising from the 2008 outbreak appear in issue 303 of this Update. See Canadian Food Inspection Agency Health Hazard Alert, August 3, 3009.
A new report by an independent investigator is harshly critical of Canada’s food safety system with respect to the 2008 Listeria outbreak linked to the deaths of 22 people. Sheila Weatherill, a nurse and health executive who led the federally appointed investigation, said the system was caught unprepared and acted without urgency, citing a void in leadership, a raft of systematic flaws, a shortage of inspectors, and evidence of contamination on meat-production lines months before last summer’s outbreak that was not effectively monitored. While Listeria is difficult to detect, “more could have been done to prevent it happening in the first place . . . and more must be done to make sure it doesn’t happen again,” Weatherill asserts. Her 57 recommendations include (i) providing better training for food inspectors, (ii) assigning Canada’s public health agency the lead role in responding to national foodborne emergencies and (iii) performing an external…
The Department of Justice (DOJ) is seeking to enjoin the operation of a cheese-processing facility in New York due to the Listeria monocytogene (L. mono) contamination of its Queso Hebra, Queso Fresco and Queso Cotija Molido cheeses. U.S. v. Peregrina Cheese, Inc., No. 09-2888 (E.D.N.Y., filed July 7, 2009). According to DOJ, state and federal inspections of the facility since at least 2004 have revealed serious sanitation problems. Because product samples and equipment surfaces tested positive for the same L. mono strain, Food and Drug Administration (FDA) analysts concluded that “the strain has formed a niche at Peregrina Cheese’s facility.” The owners have apparently refused to shut down the plant to properly sanitize it, claiming that the state food safety agency approved the “use of an antimicrobial agent as an additive in Peregrina Cheese’s Queso Fresco product.” The owners did not, however, provide “any information as to the level of use”…
During a recent week-long meeting in Rome, Italy, the Codex Alimentarius Commission (CAC) adopted more than 30 standards and guidelines designed to protect consumers’ health, such as cutting the levels of potential cancer-causing chemicals and bacteria in foods. Among the rules adopted by the joint body of the United Nation’s Food and Agriculture Organization (FAO) and the World Health Organization were measures to reduce acrylamide, a chemical by-product of high-temperature cooking processes that has allegedly been linked to cancer. “Applying Codex standards and guidelines are an important part of ensuring that consumers in every part of the world can be protected from unsafe food,” an FAO spokesperson was quoted as saying. CAC also adopted criteria for Salmonella and other bacteria in powdered formula for children ages 6 months and older and microbiological testing parameters aimed at helping producers control and prevent contamination of ready-to-eat foods with Listeria. See Reuters; FoodNavigator-USA.com, July…
The Food and Drug Administration (FDA) has announced a June 23, 2009, public meeting to present the background, approach, scope, and data needed for a recently initiated interagency risk assessment of Listeria in some ready-to-eat foods that are sliced, prepared or packaged in retail facilities. Several agencies, including the Food Safety and Inspection Service (FSIS) and the Center for Food Safety and Applied Nutrition (CFSAN), are conducting the risk assessment to determine the effects that current practices and potential interventions to prevent Listeria have on public health. See Federal Register, June 9, 2009.
Courts in Saskatchewan, Ontario and Quebec have approved a nationwide settlement of claims filed by those allegedly affected by consuming Listeria-tainted meat products produced by Maple Leaf Foods. The 2008 outbreak reportedly sickened 57 people in seven Canadian provinces, and the Listeria strain was purportedly ruled to be the “underlying or contributing cause” in the death of 22 of them. Anyone who consumed the products, estimated at 5,200, may submit a claim for compensation. With symptoms lasting no longer than 48 hours and with no medical proof, claimants can recover $750. With physical symptoms lasting longer than 48 hours and with medical proof, claimants are eligible to recover $3,000 to $125,000. Psychological trauma, with medical proof, will be compensated at $2,000 to $17,500. Those who wish to recover under the compensation scheme must submit their claims no later than November 2, 2009. Those who plan to pursue other legal claims against…
Pilgrim’s Pride Corp. settled claims that its insurance carrier unjustifiably refused to pay a significant portion of coverage owed to the food company arising out of a Listeria outbreak. The insurance company that agreed to provide coverage to Pilgrim’s insurer for any bad faith claims successfully mounted against it has been granted a declaratory judgment of no liability. Cont’l Cas. Co. v. Ace Am. Ins. Co., No. 07-958 (S.D.N.Y., decided March 31, 2009). Apparently, Pilgrim’s insurer agreed to the essential terms of a settlement proposed by a mediator before seeking Continental’s consent to settle. Under Texas law, settlement agreements are legally enforceable when the parties have agreed on the amount of consideration to be paid and the release of claims. While Pilgrim’s insurer made minor modifications to the agreement after notifying Continental, the court found that the mediator’s proposal was a binding and enforceable settlement agreement. Because Pilgrim’s insurer did…
As the Canadian Food Inspection Agency (CFIA) unveiled tougher Listeria-testing rules for ready-to-eat meat manufacturing facilities at the end of February 2009, one of the federal government’s food safety advisors reportedly claimed that the rules do not go far enough for large operations. The tougher rules resulted from last summer’s listeriosis outbreak that purportedly led to the deaths of 20 Canadians and was traced to ready-to-eat meats produced at a Maple Leaf plant in Toronto. The company reportedly cited the build up of Listeria “deep inside” two slicing machines as the most likely source. Under the new rules, effective April 1, operators producing deli meats and hot dogs must (i) begin testing food-contact surfaces up to once a week per line; (ii) look for trends in the results to catch potential problems; (iii) report all positive tests immediately to agency inspectors, who will be required to increase the frequency of…
Maple Leaf Foods Inc. has agreed to pay $25 million to settle class claims filed after ready-to-eat meats tainted with Listeria monocytogenes allegedly sickened dozens of Canadians and caused 20 deaths in 2008. The settlement, which must be approved by courts in several provinces, would provide an additional $2 million if needed to fully compensate those filing claims by the July 31, 2009, deadline. The company’s Web site explains the settlement’s terms and notes what those objecting to it can do. Approval hearings will be conducted on March 5, 10 and 20 in Ontario, Saskatchewan and Quebec, respectively.
