Full Disclosure

By Thomas Brom
     
      Hold the Lettuce
      On a bitterly cold day in mid-January the California Department of Food and Agriculture convened a public hearing, requested by produce industry groups, at the Monterey County Fairgrounds. The venue was appropriate for the topic: leafy greens contaminated by Shiga E. coli O157:H7, a nasty little pathogen found in cow manure that had just killed four people and sickened 200 other consumers of Salinas Valley spinach.
      The meeting had been called to build support for a proposed California Leafy Green Products Handler Marketing Agreement?a voluntary best-practices and trace-back program that would permit handlers to put a certification sticker on crates of lettuce, endive, spinach, cabbage, kale, arugula, and chard. But the sticker would not guarantee the safety of Salinas Valley leafy greens, which provide salads for much of the nation.
      About 250 people showed up, mostly to dicker about representation on the program's board and whether consumers should have a seat. "No one asked, 'Why not a mandatory program?' " says William Marler, a food pathogens attorney from the Seattle firm of Marler Clark, who attended. "Doing it this way, it just puts California growers at a competitive disadvantage."
      But after the deadly E. coli spinach outbreaks last September and October?which were eventually traced to the Salinas Valley?something had to be done. A small army of investigators, using DNA-matching techniques, had traced the pathogen to a specific San Juan Bautista distributor, and then to a specific field on a specific ranch. The ranch had been flooded with water contaminated by range cattle in the surrounding hills that was tracked into the spinach fields by wild pigs.
      Outbreaks of O157:H7 have become increasingly common in the Salinas Valley. According to figures compiled by the Center for Science in the Public Interest (CSPI) in Washington, D.C., there were 31 outbreaks traced to produce between 1998 and 2004, with an average of approximately 43 cases of illness per outbreak-an average far greater than in recent beef, poultry, or seafood outbreaks. Concerned by the statistics, the Food and Drug Administration?which has responsibility for national food safety but a meager budget?sent a letter to California lettuce growers in November 2005 outlining voluntary guidelines.
      The agency has never invoked its authority under section 402(a) of the Food, Drug, and Cosmetic Act to protect consumers from adulterants in food that "ordinarily render it injurious to health." So in October the CSPI petitioned Gov. Arnold Schwarzenegger and the state Department of Health Services to issue mandatory regulations governing the control and use of raw manure, irrigation water, employee hygiene, sanitation, and trace-back procedures.
      A month later, according to Caroline Smith DeWaal, the CSPI's director of food safety, Schwarzenegger rejected the petition as being overly vague. In December, state Senator Dean Florez (D-Shafter) proposed hearings for mandatory controls by the state Department of Food and Agriculture. DeWaal, who predicts "more of the same" in the Salinas Valley without stricter measures, then petitioned the FDA for mandatory federal regulations.
      The regulation debate, however, was quickly hijacked by ideologues. One camp focused on a series of scientific studies associating high levels of O157:H7 with manure from grain-fed cattle held in feedlots. Cattle cannot fully digest the grain, which produces an acidic environment in their colons?in case you wondered?that is hospitable to the bacteria strain. A Washington State University agricultural newsletter published last November stated simply: "Pounds of beef and E. coli O157 are joint products in the feedlot industry." In December, food writer Nina Planck concluded in the New York Times, "It's the infected manure from these grain-fed cattle that contaminates the groundwater and spreads the bacteria to produce, like spinach, growing on neighboring farms."
      In the Salinas Valley there are plenty of cattle, and tons of manure are used to fertilize the produce fields. But there are no cattle feedlots. And a 2003 study on the prevalence of O157:H7 in livestock at 29 county fairs and three state fairs found that the pathogen could be isolated from 13.8 percent of beef cattle, 5.9 percent of dairy cattle, 5.2 percent of sheep, 3.6 percent of pigs, and 2.8 percent of goats. So targeting feedlots isn't a cure-all.
      The opposing camp preferred a high-tech solution. In a December editorial, the Wall Street Journal blamed "E. coli's enablers" for preventing the use of gamma rays to kill bacteria on meat and produce, allegedly by using "a fright campaign to persuade Americans that irradiation causes cancer and disease."
      Amid the posturing, plaintiffs lawyers took up the slack. Marler, who first brought O157:H7 suits in 1993 after an outbreak at Jack in the Box outlets, represents 93 people sickened during last year's spinach outbreak. He refuses to be drawn into speculation about the origin or spread of the toxic E. coli strain. "I have no dog in that fight," he says. "E. coli O157:H7 is a mutating pathogen that has become ubiquitous in animals, including deer. But in every single outbreak, there is always a cow nearby." His website asks the rhetorical question, "And cows are next to spinach fields because?"
      Though Marler says production controls must be mandatory, he compliments the meat industry for adopting so-called hazard analysis and critical control point plans that have all but eliminated E. coli outbreaks from hamburger. And since the fall-off of hamburger litigation in 2003, he says, spinach cases have filled in nicely. "It's not a good idea to have your produce kill an old lady," he says.
      "Safe practices are a question of will," adds Fred Pritzker, a rival food pathogens attorney at Pritzker Ruohonen & Associates in Minneapolis. "The FDA and the California Department of Food and Agriculture wrote letters to the produce industry before the latest spinach outbreak, and not a damn thing was done."
      Neither Marler nor Pritzker oppose technological fixes to problems in industrial food production. "Irradiation doesn't make you glow in the dark or give you cancer," Marler says. "Flour and rice are already irradiated. But when the industry touted it in 1994 for hamburger, the public opposed it."
      The CSPI's DeWaal, however, says there are other drawbacks to zapping fresh produce. "Irradiation wouldn't kill the norovirus, which is an even more prevalent food pathogen than E. coli O157:H7," she says. "And irradiation turns lettuce into mush. What leafy greens look like, in the end, is still an important consideration."
     

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