I’m scheduled to meet with Boar’s Head management in New Jersey tomorrow morning. Then it’s off to Michigan State to speak to Frank’s class. Flying from Seattle to Newark today gave me time to reflect on the next few days, and certainly about life in general since I had a bit of a heart scare in February.
I have spent more than 30 years on one side of the food safety fight since the Jack in the Box E. coli outbreak in 1993. At that time, I sat across the testimony table from many food company executives and testified in front of quite a few members of Congress.
The same questions keep coming up. Some were skeptical, some were genuinely curious, and some just wanted me to say something that would make me want to leave. Here are the most common questions I hear and what I actually answer:
Q. If you could force one operational change across the industry that would have the biggest impact on your workload, what would it be? And why aren’t we doing that yet?
A. After testing your product, if it comes back positive, do not ship it. That’s it. Now, 30 years later, cases of employees paying their mortgages can almost always be traced back to someone who had the information (a positive swab, a supplier red flag, a rough lot) and decided to keep selling the product. Whole genome sequencing can now link a sick child in Indiana to a specific lot at the plant. You can’t hide it anymore. So the change is not technical. “We found it and we maintained it” is a top management decision that makes it a good day, not a bad day.
Q. Does rapid transparency during a pandemic actually reduce the amount we can recover against us, or does it help us sleep at night?
A. It really reduces it. A company that calls the victim, pays the medical bills, remembers quickly, and doesn’t ask for a fight to find me – these cases are resolved quietly and are only a few of the alternatives. Implementing the bill is a cover-up. Punitive damages do not come from bacteria. They came from an email that said, “Let’s not say anything and see what happens.” Doing the right thing and doing the cheap thing are the same thing more often than legal counsel would like to admit.
Q. Is there food safety spending that you think we’re overspending on compared to the actual risk?
A. Third Party Audit. I’ve seen plants get an “excellent” rating just days before they kill a person. Peanut Corporation, Jensen Farms melons lined up. Too much of that industry is a paid gold star that provides supply chain plausible deniability to everyone. A clean audit becomes a liability shield rather than a safety tool. Use that money to test things yourself and fix what you find, without warning.
Q. You’ve been saying for years that you want to go out of business and file a lawsuit. Can you reach it?
A. In theory, absolutely, the pathogens are known, the methods of intervention are known, and none of this is a mystery. Actually I won’t live to see it and now we are going backwards. Reducing FDA inspectors and eliminating CDC surveillance alone will not create a safer food system. The Jack in the Box kids from ’93 are now middle aged and I’m still here. Goals keep me honest even if I don’t reach them.
Q. How important are prior actions relative to the severity of the injuries when evaluating a case?
A. I worry about the severity and causality. You have to prove that your product caused harm to this specific person. But your prior knowledge and actions determine whether I will settle quietly or go to war. A company that has been doing everything right experiences its first strange contamination? I will be reasonable. Did any company know about the recall in advance and ignore the consequences? That’s where the punitive people live, and I’ll ask the jury if that’s the case.
question. If I were to give you one more budget to direct between FDA, FSIS, and CDC, where would that marginal dollar save the most lives?
A. Surveillance and Testing – Separated from FDA testing capabilities and CDC’s PulseNet and genomic sequencing. The inconvenient truth is that the FDA inspects most facilities on a schedule measured in years. And you can’t do anything about an outbreak you can’t see. The reason we’re seeing outbreaks in multiple states is because of the tedious federal lab work of matching variants in Oregon with variants in Florida. Stopping it will not stop the outbreak. It just stops detection. This is politically expedient and morally indefensible.
Q. Salmonella is still not an impurity in most poultry. What’s the cleanest way to change that?
A. We petitioned for this. FSIS denied this and withdrew the framework. What a missed opportunity. The cleanest path is for FSIS to declare a high-burden Salmonella scenario impurity associated with an outbreak in raw poultry. This is exactly how we designated Big Six non-O157 STEC for beef in 2012. If the agency does not, Congress can do so directly. The counter-argument is always, “Salmonella occurs naturally.” The same was true for E. coli O157 in beef. Dead children outweighed the inconvenience until we decided to do so.
Q. Reports of adverse events received attention due to the Buy Heart incident. What are the specific gaps where these families are failing and what is the narrowest solution?
A. The system is spontaneous, slow, and structurally blind. By the time the signal reaches the FDA, the infant is already in the intensive care unit. We saw this at Abbott’s Sturgis plant in 2022 and again with ByHeart botulism cases in 17 states. The narrow modifications are mandatory, time-limited reporting of serious adverse events on real teeth and the FDA’s authority to act on early signals instead of waiting for bodies to fall in line. These are babies. The reporting system should be their voice, but now it is a whisper.
Q. Is meaningful labeling enough for raw milk, or is more needed? And how do you answer the claim of individual freedom?
A. Labeling alone is not enough. However, we will default to strong plain language warnings. That’s what RealRawMilkFacts.com (updates required) exists to support. The freedom argument falls apart the moment you remember who ended up on dialysis for hemolytic uremic syndrome. It’s a toddler and the toddler didn’t choose anything. Your freedom to take risks ends where your child’s height begins. “My body, my choices” is a good slogan until you pour it into a cup.
Q. The agency continues to insist on exemption from review procedures in order to withhold group outbreak records. Where is the line?
A. True pre-decision deliberation (the process by which an agency discusses internally before making a decision) is legally protected, and I really don’t want incomplete drafts from everyone. But the facts are not for deliberation. There’s who got sick, what the agency knows and when, test results, test results, science, and more. It belongs to the public and is increasingly being imprinted to avoid embarrassment rather than to protect real deliberation. Take out the facts and put in opinions. Agencies blur that line precisely because the facts are part of what makes them look bad.
Q. Companies are also hiding behind FOIA Exemption 4 (“Confidential Commercial Information”) to keep their factory records out of public hands. Where does that come from?
A. Exemption number 4 is something that really gets under my skin. There is a world of difference between a true trade secret (a proprietary formula, a secret process) and the test results, inspection results, and supplier records of a factory that has put so many people in harm’s way. The first deserves protection. The second is to feign exclusivity so that the public does not know who is sick and why. If your company’s product puts a child in the hospital, saying “That’s confidential business information” is not an acceptable answer for the family. Commercial secret claims must end where the public health record begins.
Do you have any other questions?
