Without Clear Proof, Industry Suffers From Mango Recall And Is Left To Defend Itself
Jim Prevor’s Perishable Pundit, September 6, 2012
We’ve heard from Dave Westendorf before:
Pundit’s Mailbag — Produce Pricing Strategies… Does Stater Bros. Do It Better Than Safeway?
Now he weighs on a subject he is, unfortunately, very close to:
We appreciate Dave’s note, partly because it is heart-felt and thoughtful and partly because it gives us an opportunity to review many attitudes commonly shared in the produce industry — attitudes that although “true” may still require reexamination. Let us look at four specific points Dave makes:
1) “If Daniella mangos were the source, the blame goes to the grower, not Splendid, who was only acting as sales agent.”
Where “blame” or, more precisely, “liability” rests in the supply chain is actually a public policy choice. Perhaps in some metaphysical sense, one could claim that blame always belongs with the producer for foodborne illness that has its roots at the farm — although a caveat here is that just as we don’t know for certain the Daniella Mango was at fault, we also don’t know where in the supply chain any contamination occurred if, in fact, it did occur.
In the US, we have a liability scheme that holds the producer of food primarily responsible. Others in the supply chain can be held responsible but typically only secondarily, if, say, the grower/shipper is insolvent and can’t pay its bills. The practical consequence of a liability regime such as this is that the primary focus of food safety policies at retail is to make sure that one’s vendors have sufficient liability insurance.
A retailer can demand audits, inspect fields, etc. It typically has zero impact on the retailer’s liability because, typically, the retailer is not liable at all. This contrasts with other jurisdictions, such as the United Kingdom, where liability is shared and the retailer is expected to exercise due diligence.
The big advantage of the American system is that it facilitates commerce. If any organization or any person can buy and resell any legal product, the barrier to entry in business is low. It facilitates a kind of entrepreneurial economy that produces wealth and innovation. One could argue that, long term, such wealth and innovation is more important to food safety than anything else.
In the short term, however, the argument for laying liability with the producer is less certain. The obvious call is to say that the producer has the most control over food safety, so laying liability here makes sense. A more sophisticated assessment, however, might say that buyers, with the power to prioritize demands and the power to determine what they are willing to pay for, and what they are not willing to pay for, may establish the parameters under which producers operate.
For example in our initial piece on the Jensen Farms cantaloupe situation, titled, THE CANTALOUPE CRISIS — The Truth That Dare Not Speak Its Name: The Priority Can Be Safe or The Priority Can Be Local, But It Cannot Be Both, we raised the question of whether retailers weren’t prioritizing “local” above food safety, a possibility that seems to be reinforced by more recent food safety issues among locally grown cantaloupes.
In a piece we ran way back in the Spinach crisis, which we titled Tale of Two Buyers,we pointed out that buyers were not, in fact, paid to buy safer food. This situation has not changed.
Now we doubt that focusing liability on sales agents would make much sense. After all, they work under the same strictures that producers do, but we have written about the issue of shifting liability in the supply chain in a piece for The New Atlantis titled, How to Improve Food Safety.
Food safety experts generally agree that the top foodservice chains do a better job on food safety than the top retailers. Of course, under the law, restaurants are the “producer” of the food they sell to customers, so they have primary liability. That may explain a lot.
2) “Every warehouse facility that Daniella mangos passed through in the distribution channel is third-party certified.”
As we wrote in our piece analyzing the reaction to the news that the Jensen Farms facility was, in fact, audited — a piece we titled When It Comes To Audits…Retailers Get What They Specify — this type of talk tends to obscure as much as it reveals.
Audited by whom? Audited for what? Audited to which standard? Obtaining what score? What was in the comments?
And why the focus on “warehouse facilities”?
In fact, most of these audits are not designed as failsafe mechanisms; they are more designed as tools for continuous improvement.
On the one hand, this story is a story of another challenge for traceability. It is not enough to know what supply chain the product traveled through; one also needs to know a lot about each step. In other words, the reason this letter didn’t claim that every facility the product touched was GFSI-certified is that such a claim is difficult to verify — even for someone integral to the supply chain. For an outsider to have confidence to this level is almost impossible.
On the other hand, this idea that a third-party audit is some kind of badge that participants in the supply chain can use to prove themselves exceptional is belied by the fact that third-party audits are so common. In other words, one of the things that the Jensen Farms situation brought front-and-center was that being audited does not mean one is world-class, following best practices, etc. — it often just means that one is in conformity with industry standards, which may, or may not, be optimal food safety practices.
3) “Statistically, some 125 incidents of infection out of perhaps two million Daniella mangos consumed during the recall time period is insignificant, obviously except for the people sickened.”
One useful bit of research for the Center For Produce Safety to pursue would be to support research trying to better define the true scope of outbreaks. There are all kinds of numbers out there, and we need to better understand the relationship between the published number of verified cases of illness with the total number of people impacted by the pathogen. We also need to distinguish qualitatively between people who get identified and those who do not .
We know that of the many people who come into contact with a pathogen, only a smaller subset becomes ill and, of those who fall ill, only a subset are seriously ill. Understanding the scope and effect of foodborne illness could help make better public policy.
On the other hand, the numbers may not really matter at all. It is one thing to sell a product that, if improperly used, can cause injury. Every car can do that. Consumers have the right to assume that a product — when used as intended — is safe. The produce industry is complicit in raising consumer expectations for safety because the trade is hesitant to raise doubts about safety and so tries to avoid warning labels etc., that would change what “used as intended” means.
We put expiration dates on some products, but don’t want to say: DO NOT CONSUME AFTER THIS DATE — PRODUCT MAY CAUSE ILLNESS OR DEATH. Even admonitions to wash, though supported by the industry through separate programs such as Fight BAC, are rarely included on labels or stickers for fear of alienating consumers.
Indeed, the government approaches the whole issue from the perspective of statistical food-safety benefit rather than individual responsibility. So, for example, the government does not endorse a recommendation that a consumer wash pre-washed salad mixes. This is not necessarily because it wouldn’t, if done properly, enhance safety. It is because, given the reality that many consumers will not properly sanitize their kitchen before starting, there is more likelihood that consumers will cross contaminate the lettuce with salmonella from the raw chicken they just washed than they will eliminate a food safety problem on the salad.
The big issue may not actually be a food safety one, but, once again, a public policy and legal liability one. Public policy may pay lip service to zero tolerance for food safety problems, but, in reality, the priority for making inexpensive and healthy food available for the population is such that public policy efforts are not likely to support the enormously expensive measures that would be required to eliminate food safety concerns entirely — if that is even possible.
So there will always be food safety outbreaks… the question thus becomes how damages should be calculated. It is one thing to hold companies responsible for actual damages caused by their actions — loss of wages, medical care, etc. When one starts to go beyond that — punitive damages, etc. — in cases where there is no negligence or mens rea, the “social contract” with farmers — whereby food is produced in accordance with reasonable industry standards and consumers understand that an unfortunate side effect of our societal desire for inexpensive food is that there will be occasional food safety outbreaks — breaks down.
4) “The public needs to know that food safety is viewed by the produce industry as the single most important factor in conducting business.”
Anyone involved in the produce industry knows that there is a much higher level of consciousness regarding food safety than existed 15 years ago. Among the larger producers, this is a sea change. It is a consequence of a series of food safety battles that the industry has weathered. We have covered many topics on this matter, ranging from…
Botulism And Carrot Juice Summary
Buyer-led Food Safety Initiative Recap
Cantaloupe Listeria Outbreak
FDA Import Alert: Honduran Cantaloupe
Food Safety Roundup
Foodservice Discussion On Food Safety Round-up
NRA Food Safety Round-up
Sprouts Round Up
But food safety is always just one of many values that are constantly being weighed and measured against each other. It is interesting to follow the aftermath of the Jensen Farms outbreak and note how little has come of it despite its serious nature and 33 fatalities.
On a legal and regulatory basis, the government-issued report clearly states that a failure to pre-cool cantaloupes is likely to contribute to food safety problems. Yet no law has been passed or regulation released forbidding the sale of non-pre-cooled cantaloupes. In other words, the government is saying that from a public policy perspective, the interest in food safety is outweighed by the need to protect small scale, local and geographically diverse deals.
And we know of no retailer who has, subsequent to the outbreak, issued a ban on receiving non-pre-cooled cantaloupes. This means that providing local or being price-competitive is, in fact, more important than food safety.
This is all far afield from mangos, but despite the fact that food safety is always front-and-center as an issue and no one in the industry wants to get customers sick, there are many issues and concerns — safety just one of them —and it is in some ways not being forthright with the public to fail to point out these competing interests.
One final question yet to be fully addressed is that the industry has to be cautious about denigrating epidemiology. Although finding a “smoking gun” in the form of a pathogen on the produce and in the packing plant that matches what was consumed by consumers is desirable, as it removes all doubt, epidemiologist are able to make connections much as detectives could solve crimes long before we had DNA evidence. More effective than simply dismissing epidemiology would be having access to better epidemiologists that are capable of seeing the flaws in the government’s epidemiological case — when such flaws exist.
Although a few large companies have top epidemiologists on retainer, most famously, Chiquita/Fresh Express who retains Dr. Michael T. Osterholm, who we interviewed during the salmonella St. Paul crisis for a piece titled Dr. Michael Osterholm, Esteemed Authority On Public Health, Speaks Frankly About The FDA, The CDC And The Incompetent Management of the Salmonella Saintpaul Tomato Outbreak Investigation, most produce companies do not. As a result, they haven’t the foggiest idea if the government’s epidemiological case is strong or weak.
One of the most valuable things our trade associations could do for their members would be to get a prominent and respected epidemiologist on retainer and make him available to produce firms having a need. Effective analysis of the government’s epidemiological case would be more influential than simply pointing out a lack of physical evidence.
We thank Dave for this letter. It is a cri de couer, and we too feel the pain and anger that good people have their businesses and lives destroyed when they have done nothing wrong — just sort of randomly being victims themselves to a pathogen.