Civil Law

— OPINION —

With but a few hours remaining, it’s time to look back at the important food safety events and trends of 2022. While Food Safety News stories are the source of much of what was important during the year, we like to think our approach is more meaningful than the “top stories” approach. So, with time being short, let’s get started with a look at some of the news from the past year.

No. 1 – Chaos theory
This was the year that seem to prove what many have long suspected. Food safety is not organized and it isn’t getting much respect. Dr. Robert Califf had to go hat in hand to Senate Republicans to come up with the votes he needed for confirmation as FDA Commissioner. The infant formula shortage hit as he took over with FDA seemingly clueless about what was happening at the critical Sturgis, MI, plant operated by Abbott Nutrition. If media questions about all of that were not enough, it quickly widened out to investigative reports and consumer groups raising questions about the FDA’s repeated failures of its food safety duties. The FDA commissioner then brought in an outside-inside foundation to study issues. That review basically found the critics are right about the “F” in the Food and Drug Administration problem and left Califf with potential fixes. He ended the year mostly silent about his options and at the moment, nothing has changed.

No. 2- Failure to Launch
The Senate Committee on Agriculture, Nutrition, and Forestry was assigned to review the nomination of Jose Emilio Esteban as USDA’s Under Secretary for Food Safety on Nov. 11, 2021, but did give him a hearing until Sept. 22, 2022.

That 311-day delay is inexcusable and it was the primary reason that Under Secretary Esteban barely received confirmation before the Senate adjourned for the year. As the Senate-confirmed Under Secretary for Food Safety, Esteban is the top food safety official in the federal government.

And the job was left vacant for far too long because of the irresponsible Senate Agriculture Committee, where food safety is not a priority.

No. 3- Outbreaks Continue
The Centers for Disease Control and Prevention investigated 12 multi-state foodborne illness outbreaks (with No. 12 being logged in yesterday), ranging from ground beef to strawberries, and the Food and Drug Administration’s Coordinated Outbreak Response and Evaluation Network (CORE) investigated 28 outbreaks.

Three of those FDA investigations remain open as of Dec. 30. For 14 of the FDA investigations a specific food source was not determined. The difference between the numbers from CDC and FDA is likely because the CDC generally only posts outbreak notices after a specific food source has been identified.

The CDC also serves as the lead investigative entity on only multi-state outbreaks. For single-state outbreaks, state and local agencies are the investigators, with the CDC sometimes providing secondary assistance, which does not result in the federal agency posting an outbreak notice.

Also possibly responsible for the different number of outbreaks being reported by the FDA and CDC is that the FDA does not publicly report where outbreak patients live, so it is not possible for the public to tell whether an outbreak involves more than one state. Presumably, the FDA shares such information with the CDC’s outbreak investigators.

More details on 2022 outbreaks are here.

No. 4 – Concern calming
The 31st annual report on pesticide residues in food by USDA’s Agricultural Marketing Service eased some concerns.

“In 2021, over 99 percent of the samples tested had residues below the tolerances established by the EPA with 24.0 percent having no detectable residue,” according to the report released on Dec. 26.

Referred to as the Pesticide Data Program (PDP), the testing program checked 10,127 samples in 2021. Of those samples, 94 percent were fresh and processed fruit and vegetables. Fresh and processed fruit and vegetables tested during 2021 were: blueberries (fresh and frozen), broccoli, cantaloupe, carrots, cauliflower, celery, eggplant, grape juice, green beans, peaches (fresh and frozen), pears, plums, summer squash, sweet bell peppers, tangerines, watermelon, and winter squash. 

Corn grain and butter were also tested during 2021, accounting for 4.1 and 1.7 percent of the samples collected in 2021, respectively. 

Domestic samples accounted for 67.8 percent of the samples, while 30.8 percent were imported, 0.9 percent were of mixed national origin, and 0.5 percent were of unknown origin. 

Residues exceeding the tolerance were detected in less than 1 percent (0.53) percent, or 54, samples of the 10,127 total samples tested. Of these 54 samples, 29 were domestic, 24 were imported, and 1 was of unknown origin. Residues with no established tolerance were found in 3.7 percent, or 374 samples, of the 10,127 samples tested. Of these 374 samples, 220 were domestic, 150 were imported, and 4 were of unknown origin.

More complete details here.

No. 5 -Blue Bell blues
A hung Texas jury means 68-year-old Paul Kruse, the retired president of Blue Bell Creameries will face a new jury this April in Austin.

A mistrial was declared this past summer after the jury voted 10-to-2 to acquit Krusee on all six counts. The Department of Justice has opted for a second trial with Kruse still charged with one count of conspiracy and five counts of wire fraud.

The charges all stem from Kruse’s action in the 2015 Listeria outbreak. At the first jury trial, the government called as witnesses a number of Blue Bell’s institutional customers who said Kruse was less than transparent during the outbreak. However, they also testified that none of their constituents were sicked and they were fully compensated for the recalled product.

The Blue Bell corporation settled its criminal liability with the government with monetary payments, leaving Kruse as the only individual to face criminal charges over the 2015 outbreak. The company agreed to pay criminal penalties totaling $ 17.5 million and $ 2.1 million to resolve False Claims Act allegations regarding ice cream products manufactured under unsanitary conditions and sold to federal facilities, including the military.

Ten people were sickened and three died in the outbreak that stretched back several years before Blue Bell found out about it. In the crisis for Blue Bell of about 60 days in 2015, Kruse ultimately recalled all of his company’s products and temporarily closed all production facilities in Texas, Oklahoma, and Alabama.

No 6 -Habeas corpus
The ancient common law writ may be used to correct violations of personal liberty by directing judicial inquiry into the legality of detention.

Stewart and Michael Parnell during the past couple of years have pursued federal Habeas Corpus proceedings, challenging their federal imprisonment largely on grounds of ineffective counsel at their 2014 jury trial.

The most recent action is by Stewart Parnell who has appealed the denial of his writ by Judge W. Louis Sands to the U.S. Court of Appeals in Atlanta (11th Circuit). Sands was the trial judge, who sentenced the Parnell brothers, and he is currently a senior status judge in the U.S. District Court for the Middle District of Georgia.

Parnell, the 68-year former peanut industry executive who 13 years ago was caught shipping peanut butter and pastes that he knew were contaminated, won’t be getting out of prison until 2038 when he’ll be 84 years old. He is serving his time at the high-security federal lockup at Hazelton, WV, which inmates call “Misery Mountain.”

Sands has upheld the major findings of Magistrate Judge Thomas Q. Langstaff, denying Stewart Parnell’s “Motion to Vacate, Set Aside, or Correct his sentence Under (Motion 2255).”

Parnell, once president of the now-defunct Peanut Corporation of America, was indicted in 2013 for numerous federal felonies. All charges involved the 2008-09 multistate Salmonella Typhimurium outbreak that sickened thousands in at least 46 states and may have contributed to nine deaths in Idaho (1), Minnesota (3), North Carolina (1), Ohio (2), and Virginia (2).

Michael Parnell’s petition was also denied by Langstaff, but Sands has not issued his opinion on it.

No. 7 – Baby Baby
Media reports during 2022 often depicted the infant formula shortage as “temporary,” but if it continues into 2023 that might be mistaken. With the major supplier Abbott Laboratories planning to add major production out three and four years, the build back may be taking longer. Abbott makes Similac and other popular brands.

The government, which has hardly solved the emergency, could make things worse. Dairy lobbyists want tariffs restored and priority is given to domestic producers. Rickett’s North America, a major formula producer, is already warning of shortages through spring.

Kroger Company reports that shelving formula remains a struggle. Parents on Facebook still report finding the product is a struggle. Parents report still using rationing and adjusting feedings as among their shortage strategies.

No. 8 – Chicken
The war on salmonella in Chicken took positions on the battlefield during 2022. USDA’s Food Safety and Inspection Service said it will be declaring all strains of Salmonella an adulterant in breaded and stuffed raw chicken products.

“It is an important step because for the first time we have declared Salmonella to be an adulterant,” Sandra Eskin, deputy undersecretary for food safety for FSIS, told Food Safety News. “But we are not stopping there. We are developing a comprehensive strategy.”

That strategy will eventually look at all chicken in the United States, which is under the jurisdiction of FSIS. The proposed control for raw breaded and stuffed chicken is expected to lead to Salmonella controls for many chicken products as they enter the domain of slaughterhouses.

The USDA does not have jurisdiction over the production of poultry before that point.

Seattle food safety attorney Bill Marler said the step with the raw, breaded, and stuffed chicken products is a start, but one he believes should have been undertaken faster and broader.

Many food safety advocates including Marler want all chicken to be required to be free of the 31 types of Salmonella that most commonly cause human illnesses.

The question now is whether the USDA and FSIS will continue to move toward declaring salmonella an adulterant in more and more types of chicken.

Np 9 Bird-in-Hand
Amos Miller got a late-in-the-year offer that could allow him to avoid civil imprisonment and fines upward of $ 300,000.

A “second consent decree” filed by Miller’s new attorney, Robert E. Barnes, and government attorneys working on the case outlines the deal. It’s the latest attempt to enforce the Court’s permanent injunction against Miller and Miller’s Organic Farm. The 2019 injunction prohibits violations of the federal Meat and Poultry Acts.

The first consent decree was entered on April 26, 2020

The new Court documents now call for Miller to pay $ 30,000 into the Court’s registry within ten days after the “Second Consent Decree” is signed. It says: his sum will be used to reimburse: a) Mr. Lapsley’s fees and expenses to date; b) the U.S. Marshall’s Service’s fees/expenses for accompanying Mr. Lapsley on his March 17, 2022, farm site visit; and c) Mr. Lapsley’s ongoing fees and expenses in reporting on compliance with certain terms of this Second Consent Decree and the Second Contempt Sanctions Order.”

Lapsley is an agriculture expert the Court has assigned to the case.

Another $ 55,065 Miller owes USDA’s Food Safety and Inspection Service (FSIS) for the agency investigative work must be paid in two installments. The first $ 27,543 is due Jan. 15, 2023; and the second payment of $ 27,543 must be turned in at the U.S. Attorney’s office by April 15, 2022.

Miiller is being given “an opportunity to show compliance” under his new attorney. “This agreement of the parties on such payment amounts is without prejudice to the United States’ ability, in the event of future non-compliance, to ask the Court to enforce the coercive civil contempt fine amounts held in abeyance and to seek additional compensatory civil contempt sanction,” according to the draft Decree.

Miller, often depicted as a small Amish farmer, has been the target of USDA enforcement actions for several years. He has farming operations in multiple states and his sales club distributes meat and poultry products across state lines. His products are not inspected as required by law.

Miller is based in Bird-in-Hand, an unincorporated community in Pennsylvania’s Lancaster County. The community has a large Amish and Mennonite population.

No. 10 -The Anniversary
On Dec. 28, 1992, six-year-old Lauren Beth Rudolph died in southern California from complications from an E. coli O157:H7 infection. Her death marks the date of the 30th anniversary of the Jack-in-the-Box outbreak of the deadly and dangerous E. coli O157:H7.

Lauren Beth Rudolph was the first fatality in the Jack-in-the-Box outbreak. The tragic event also took the young lives of two-year-olds Michael Nole of Tacoma, Celina Shribbs of Mount Lake Terrace, WA; and 17-month-old Riley Detwiler of Bellingham.

Hundreds of children were sickened by undercooked burgers that were contaminated with the E. coli. For a longer look back, go here.

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