Ruling that the jury instructions were misleading, the U.S. Court of Appeals for the Eleventh Circuit has reversed a jury verdict finding for a seafood restaurant in a lawsuit involving allegations of foodborne illness. Rhodes v. Lazy Flamingo 2 Inc., No. 17-11338 (M.D. Fla., entered March 29, 2018). The plaintiffs alleged negligence per se after one ate Lazy Flamingo's oysters, which were contaminated with Vibrio vulnificus and caused an illness requiring five days of hospitalization. A Florida regulation requires foodservice establishments serving raw oysters to display a health-risk warning on menus or table placards; the jury was instructed that it could consider the text of the regulation as well as a Florida foodservice industry bulletin indicating the warning “may be on menus, table placards, or elsewhere in plain view of all customers.” The appeals court found no evidence that the bulletin offered a "reasonable interpretation” of the regulation, reversed the verdict…
Tag Archives Vibrio
The Center for Science in the Public Interest (CSPI) has petitioned the Food and Drug Administration (FDA) to establish performance standards for the shellfish industry to reduce the threat of a “naturally occurring but deadly contaminant” found primarily in raw or undercooked oysters. According to a CSPI letter to FDA Commissioner Margaret Hamburg, Vibrio vulnificus (V-vulnificus) bacteria in contaminated shellfish is responsible for sickening approximately 30 people and killing 15 annually. Claiming that an annual “outbreak” occurs between April and November when Gulf Coast water temperatures create an ideal environment for the contaminant to grow, CSPI has urged FDA to “act now” to enforce regulations in 2011’s Food Safety Modernization Act requiring performance standards for significant contaminants such as V-vulnificus. “If we knew a serial killer were going to kill a dozen people like clockwork each year, the police would spring into action to stop it,” said David Plunkett ,…
The Food and Drug Administration (FDA) has denied requests to delay a final rule amending food additive regulations “to provide for the safe use of ionizing radiation for the control of Vibrio species and other foodborne pathogens in fresh or frozen molluscan shellfish.” According to FDA, it has reviewed opposition to the final rule and requests for a hearing, but concluded that objections filed by groups such as Public Citizen and the Center for Food Safety did not “justify a hearing or otherwise provide a basis for revoking the regulation.” In particular, the agency’s latest decision dismisses allegations that (i) FDA failed to consider evidence indicating “harmful effects from consumption of irradiated molluscan shellfish”; (ii) the final rule does not ensure a product “that is microbiologically safe”; (iii) there is no reasonable certainty of no harm; (iv) FDA failed to consider “several factors that could make irradiated molluscan shellfish unsafe”;…
The Food and Drug Administration (FDA) has announced its intention to delay a 2011 ban on raw oysters harvested from the Gulf of Mexico during warm weather months. FDA heard from “Gulf Coast oyster harvesters, state officials, and elected representatives from across the region about the feasibility of implementing post-harvest processing or other equivalent controls” designed to reduce illnesses from bacteria like Vibrio vulnificus. “It is clear to FDA from our discussions to date that there is a need to further examine both the process and timing for large and small oyster harvesters to gain access to processing facilities or equivalent controls in order to address this important public health goal,” stated the agency, which will conduct an independent study to assess how bacteria controls can be “feasibly implemented in the fastest, safest and most economical way.” FDA specifically noted that it will (i) continue to collaborate with the Interstate…
U.S. Senators Bill Nelson (D-Fla.) and Mary Landrieu (D-La.) have introduced legislation seeking to block a Food and Drug Administration (FDA) proposal that would prohibit the distribution of raw oysters from the Gulf of Mexico during warm-weather months. “Specifically, the legislation, which was co-sponsored by Senator David Vitter (R-La.), would prevent [FDA] from using funds to implement a ban on sales of oysters that don’t undergo a sterilization process,” according to a November, 5, 2009, press release issued by Landrieu. Slated to take effect in 2011, the FDA plan would apparently require processing for Gulf oysters harvested between April and October. The agency has pointed to the risk that raw oysters can cause fatal Vibrio vulnificus infections in people with compromised immune systems, resulting in approximately 15 deaths per year. California has already enacted similar measures that bar the sale of untreated raw Gulf oysters in the state, which has…
