The European Commission (EC) has launched a promotional campaign “to help address the difficulties faced by the fresh fruit and vegetables sector following the E. coli crisis.” Consisting of an advertorial and an audiovisual package for distribution in all European Union (EU) member states, the effort is reportedly an attempt to “win back consumer trust.” As part of the campaign, EC announced that emergency funding of €210 million has been targeted to aid EU fruit and vegetable producers. “In recent weeks, the E. coli crisis forced farmers to dispose of perfectly safe vegetables left to rot by concerned consumers,” noted the EC, adding that the “solution can only come from consumers reintroducing fruits and vegetables into their daily diet.” Initially attributed to several sources from France and Germany, an E. coli outbreak earlier this year reportedly killed 51 people. The outbreak’s source was eventually traced to Egyptian fenugreek seeds and…
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The European Union (EU) has temporarily prohibited the importation of some seeds and bean sprouts from Egypt after a European Food Safety Authority (EFSA) report linked the products to an E. coli O104:H4 outbreak that reportedly killed 51 people, including as many as six U.S. citizens. According to a July 5, 2011, EU press release, all imported seeds and beans “for sprouting” will be frozen until October 31, 2011, and all fenugreek seeds imported from one Egyptian company since 2009 will be destroyed. The ban apparently covers “seeds, fruit and spores used for sowing; leguminous vegetables, shelled or unshelled, fresh or chilled; fenugreek; dried leguminous vegetables, shelled, whether or not skinned or split; soya beans, whether or not broken; other oil seeds and oleaginous fruit, whether or not broken.” Officials apparently traced the E. coli outbreaks in France and Germany to a single importer that shipped Egyptian fenugreek seeds to both…
The U.S. Department of Agriculture’s (USDA’s) Food Safety and Inspection Service (FSIS) has announced an expansion of the Salmonella Initiative Program (SIP) to help industry reduce foodborne pathogens in raw meat and poultry products. The agency has extended the comment period to September 12, 2011. According to FSIS, the voluntary, incentive-based program allows “participating establishments to operate under certain regulatory waivers to try new procedures, equipment or processing techniques to better control Salmonella.” As a condition for participation, establishments selected for SIP must regularly collect product samples to test for Salmonella, campylobacter and generic E. coli, and then share the data with the agency. FSIS has set new deadlines for establishments currently operating with regulatory waivers to apply for SIP and has allowed a “limited number of establishments to operate with modified line speed” which will be evaluated by a National Institute for Occupational Safety and Health study. See USDA…
Another tomato grower has filed a claim for damages against the Food and Drug Administration (FDA), alleging that the agency announced a nationwide recall of all tomatoes in the United States in 2008 without having identified tomatoes as the source of a Salmonella outbreak. Williams Farms Produce Sales, Inc. v. United States, No. 11-01399 (D.S.C., filed June 8, 2011). Details about similar claims also filed in a South Carolina federal court appear in Issue 395 of this Update. According to the complaint, FDA ultimately conceded that tomatoes were not the source of the Salmonella contamination, but not before the price for tomatoes plunged. Alleging negligence, defamation, slander of title, product/ commercial disparagement, unconstitutional taking, and violation of unfair trade practices law, the plaintiff seeks actual damages in excess of $11 million, special damages, compensatory damages, treble damages, attorney’s fees, and costs.
German authorities have finally narrowed the field of suspects in an E. coli outbreak affecting Europe, where a reported 31 people have died from a rare strain of the disease. Speaking at a June 10, 2011, press conference, Robert Koch Institute President Reinhard Burger confirmed that an organic bean sprout farm is the likely epicenter, putting to rest widespread public confusion as officials worked frantically—and sometimes erroneously—to pinpoint the source. Although it lacked a set of definitive test results, the institute apparently based its conclusion on evidence showing that people who consumed the bean sprouts at one restaurant were nine times more likely to contract the illness, which has been linked to renal and neurological complications in approximately 700 out of 3,000 total cases. Authorities have since quarantined the Lower Saxony farm, but tomato, cucumber and lettuce farmers implicated at the outset are already seeking compensation for plummeting prices and…
The Center for Science in the Public Interest (CSPI) has filed a citizen petition “requesting that the administrator of the Food Safety and Inspection Service (FSIS) . . . issue an interpretive rule declaring certain delineated strains of antibiotic-resistant [ABR] Salmonella, when found in ground meat and ground poultry, to be adulterants” under federal law. In re: CSPI Petition, No. __ (USDA FSIS, filed May 25, 2011). Noting that FSIS declared E. coli an adulterant in 1994, the petition contends, “Scientific and medical research demonstrates that contamination of meat and poultry by ABR strains of Salmonella poses grave public health dangers that are comparable to those posed by E. coli 0157:H7 in 1994.” According to the petition, several ABR strains in ground meat and poultry products have resulted in recalls, outbreaks and deaths. Seeking expedited review, CSPI claims that 36 documented outbreaks, causing thousands of illnesses and some deaths, were…
A South Carolina-based family farming operation has filed a complaint seeking damages that it alleges were sustained in 2008 when the Food and Drug Administration (FDA) issued a nationwide recall of round tomatoes due to a purported Salmonella outbreak. Seaside Farm, Inc. v. United States, No. 11-1199 (D.S.C., filed May 18, 2011). The plaintiff claims that independent audits before the recall was announced verified that its produce and practices were safe. Still, according to the complaint, “At the time of the recall, the FDA had not positively identified a single tomato as a current source of the salmonella outbreak in the United States” and “The FDA never identified any contaminated tomatoes and ultimately conceded that tomatoes were not the source of the salmonella contamination.” Claiming that the recall “decimated the market price for fresh tomatoes,” the plaintiff seeks unspecified general and special compensatory damages and interest under the Federal Tort Claims Act.…
Taco Bell has requested that the Ninth Circuit Court of Appeals review a district court determination that three insurance companies are not required to provide coverage under commercial liability policies for economic loss allegedly arising from decreased patronage in the wake of a 2006 E. coli outbreak. Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Ready Pac Foods, Inc., No. 09-3220 (C.D. Cal., appeal filed May 11, 2011). The district court reportedly issued an order granting a request for certification of the economic loss claim and stayed its adjudication of other unresolved matters to allow Taco Bell to take an interlocutory appeal to the Ninth Circuit. According to the lower court, “The lost patronage claim presents a legal issue that is unique and distinct from the other types of loss for which Taco Bell seeks a declaration of coverage . . . such as claims for bodily injury, claims for…
A divided Delaware Supreme Court has determined that ConAgra’s insurance 0contract is ambiguous and therefore might provide broader coverage, with a lower “retained limit” or deductible, for claims arising out of an alleged Salmonella outbreak involving the company’s peanut butter. ConAgra Foods, Inc. v. Lexington Ins. Co., No. 227, 2010 (Del., decided April 28, 2011). The court reversed a lower court ruling that granted, in part, the insurer’s motion for summary judgment and remanded for consideration of extrinsic evidence about what the parties intended when they agreed to a “lot or batch” endorsement; if that intent cannot be ascertained, the lower court was instructed to interpret the contract in ConAgra’s favor. The court also determined that because ConAgra exceeded the retained limit, the insurer’s duty to defend was triggered on the date the food maker’s liabilities exceeded that limit. The policy at issue included two definitions for “occurrence,” one of which was in…
A federal multidistrict litigation (MDL) court in Georgia has denied ConAgra Foods’ motion for summary judgment in a case involving claims that tainted peanut butter caused a man’s salmonellosis. In re: ConAgra Peanut Butter Prods. Liab. Litig. (Kidd) v. ConAgra Foods, Inc., MDL No. 1845, No. 07-1415 (N.D. Ga., decided May 4, 2011). Bobby Joe Kidd claimed that after he ate Peter Pan® peanut butter he was hospitalized with abdominal pain and nausea. Blood and urine samples taken during his stay apparently tested negative for Salmonella and other infectious agents. ConAgra relied on the negative tests to argue that Kidd would be unable to show that it was more likely than not that contaminated peanut butter caused his illness. The court disagreed, finding sufficient evidence “to allow a reasonable jury to infer that contaminated peanut butter caused his symptoms.” Kidd’s records “indicate that he ate recalled peanut butter and experienced Salmonella-like…
