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Public Health Or Power To Destroy?

Jim Prevor’s Perishable Pundit, October 21, 2008

We ran a piece, Perishable Thoughts — Produce Industry On Trial, that portrayed the Kafkaesque nature of the dilemma the produce industry finds itself in when a food safety issue arises. An authority appears and declares the industry or a company guilty and is not obligated to produce ANY EVIDENCE at all to support these claims. The accused do not get an opportunity to cross-examine any experts or to review the charges against them for accuracy or to suggest alternative interpretations of the evidence.

Most recently, we profiled this type of situation in our piece, Disputed Link To Aunt Mid’s Cut Lettuce Reveals Need For Industry firms To have Easy Access To Top Epidemiologists, in which Aunt Mid’s was accused of causing a food safety outbreak, but ABSOLUTELY NO evidence has been promulgated by the public health authorities.

To us this seems so obviously unacceptable, so positively un-American, that we find it hard to believe this state of affairs is allowed to continue. To see if we could learn more about why more information isn’t being released, at least in the Aunt Mid’s case, we asked Pundit Investigator and Special Projects Editor Mira Slott to probe deeper:

James McCurtis
Spokesperson
Michigan Department of Community Health

Q: Why is the Michigan Department of Community Health holding back on releasing the epidemiology report linking the E. coli 0157 outbreak to iceberg lettuce distributed by Aunt Mid’s?

A: Aunt Mid’s can file a Freedom of Information Act with our FIA coordinator with legal affairs.

Q: How long will that process take before the report is in the company’s hands?

A: We can’t share any documents when we have an open case. It’s still an ongoing investigation. It’s our policy and the law that anytime there is an ongoing case, the files and documents related to that case can’t be released. Aunt Mid’s will have to wait till the case is closed.

This is the policy with anything our department deals with — in the same way a doctor or hospital is being investigated, it all falls under the same law. If the case is still open, all relevant documents remain internal.

Q: What if the case is never solved? What if there is never a definitive conclusion to the source of the outbreak. This is not an unlikely scenario due to the perishable nature and short production and distribution lifecycle of fresh fruits and vegetables. In many instances, where produce is linked to an outbreak, the investigation into the exact cause comes up short.

A: It falls under the discretion of our public health coordinator. If our director of communicable diseases makes a determination this case is complete, we’ve done everything we can do — then it’s complete. If we cease any other type of investigation, we say we’re done with this case. Sometimes we might never find out the source of contamination.

Q: When will that determination be made?

A: We are close in this investigation only because A) no newer cases are coming in, and B) the California Department of Public Health is working on analyzing some samples from growers in California. They’re zeroing in on this issue as well.

Q: Is it acceptable to say the outbreak is linked to Aunt Mid’s or lettuce, or California, incriminating companies, entire commodities or states, without providing the epidemiology or other supporting evidence, so people can make independent evaluations?

Couldn’t industry experts analyzing the reports provide additional perspective and quite possibly uncover a clue to expedite the investigation into the source of the problem? In the name of public health, why not use all avenues available to crack the case?

A: We’re confident in our epidemiological work we’re doing here. We were very careful not to say it was lettuce and later learn it turned out it wasn’t. We wanted to avoid the situation that occurred with the Salmonella Saintpaul outbreak and tomatoes. We are very confident in this case it was lettuce, relying on our case/control studies and various tests we ran; not only the epidemiology but the work done by the Michigan Department of Agriculture doing the food testing.

Q: I don’t understand how the testing done by the Michigan Department of Agriculture bolsters your confidence in determining it was lettuce from Aunt Mid’s. Didn’t all the testing, both product and environmental, come back negative?

A: When Aunt Mid’s put out a release that testing came back negative, some media outlets picked up on the news, reporting that Aunt Mid’s was vindicated. We didn’t clear Aunt Mid’s, and want to set the record straight on that.

Q: Jennifer Holton, spokesperson at the Michigan Department of Health, emphasized that the negative tests were on current products, not products from the outbreak timeframe. Of course, testing that comes up negative will never prove anything. If Aunt Mid’s had retained samples of product related to the outbreak that could be tested, would that give a better indication?

A: Possibly. I don’t know what policies we have on sample retention from each batch that goes out into the market. I don’t think we have regulations that different companies must keep certain product in commercial refrigeration for certain amounts of time. We’re doing the best we can under the laws we have set in Michigan.

The reason we know it is linked to Aunt Mid’s is from our case control studies. We had a total of 38 cases in Michigan. In terms of clusters, we had 9 cases at Michigan State University and 5 cases at the Lenawee County Jail. The rest are outside these locations, some restaurants and one was a nursing home. It’s easier to do a case/control study in a cluster and environment where everyone is in the same place. That’s what led us to conduct the case/control study at Michigan State University. In terms of the cases at the county jail, a study was done by the local health department. Because they only get Aunt Mid’s iceberg lettuce, it was determined it was Aunt Mid’s. The same scenario occurred in Illinois. At the Ponderosa Restaurant, where there were six cases, the restaurant got all its iceberg lettuce from Aunt Mid’s.

Q: Melanie Arnold, a spokesperson for the Illinois Department of Public Health, said, “Our case/control study implicated a lettuce mix supplied by Aunt Mid’s, and combined with information from Michigan, it supports the hypothesis that illness is associated with eating the mixed lettuce from Aunt Mid’s.” She wouldn’t elaborate any further.

A: Michigan is saying the source is iceberg lettuce in big industrialized packaging from Aunt Mid’s. In plain black and white, this is strictly iceberg, no other lettuce varieties or produce items. From the limited communication I had with Illinois, they conducted their own case studies and came to the same conclusion.

We’re still trying to find the origin of the contamination. We’re expecting more answers. We don’t know if contamination occurred at Aunt Mid’s or California.

Q: How do you know it isn’t someplace in between or further along in the distribution process, maybe cross contamination, etc.?

A: Lettuce comes straight from farms on to growers’ trucks to Michigan and directly to Aunt Mid’s. There is not much middle room from I-80 highway California to Michigan. Produce gets contaminated from E. coli in places like the field water source or other things like animal intrusion at the grower level, or at the processing stages. It could be cross-contamination, but our studies showed the common source was lettuce.

Q: Why identify and implicate product from California when you don’t know the origin of contamination?

A: This is the complexity of this whole problem. It’s a mystery, especially when dealing with produce. We’ll always have loose ends until we find an answer. In our profession alerting the public is a mandate. There will always be an upset party; we can’t control that. All we can say is it came from this product.

Q: Ken August, spokesperson at the California Department of Public Health, said, “The source of the contamination is unknown at this point. The specific product and where it may have come from have not been determined. There is no conclusion that it is iceberg lettuce as of yet.”

A: After we did our trace-back work, we traced it back to California. All we’re trying to do is peel an onion here, layer after layer. If we feel we have information that is valuable for public knowledge, then we’re going to put it out there. California is investigating four different growers. That gives us enough to say this lettuce came from California. Now we have to narrow down where from California.

[Editors note: In a separate interview, Ken August said, “I can’t speak to Michigan’s threshold of releasing information. All I can do is share information we feel comfortable releasing, and we don’t have any more information to report at this time. It’s an active, ongoing investigation. We receive information at one stage that leads us in one direction, and then new information may lead us in another direction. It does seem like there was a rush to judgment in news reports linking the E. coli contamination to California lettuce. As of this moment, I have nothing additional to share.”]

Q: How is the information that lettuce is from California valuable to the public from a food safety standpoint?

A: The public wants to know where it comes from. Lettuce comes from many different places. Aunt Mid’s got their lettuce from California. We’ve been asked time and time again from the media, restaurants, and people from the general public, where did Aunt Mid’s get their lettuce from. That question has to be answered. If we know the answer we need to say. We’re not going to lie and pretend we don’t know.

Q: But you hold back on sharing your knowledge related to the epidemiology, where industry experts could actually help in cracking the case. This logic seems hypocritical at the very least.

A: There are some things you talk about for public consumption, and some where you don’t want to hurt the investigation. If we released the epidemiology and the questions asked, it could spoil the potential answers in other related case studies being conducted. Some information if released could prejudice the results of the investigation.

When we have a problem, we have to be as transparent as possible in terms of providing answers to the problem, but we have to do this without messing up an ongoing investigation. But meanwhile we have to let consumers know where the problem is coming from. If not, we wouldn’t be doing our job protecting consumers from poisoning associated with this outbreak.

Q: It seems like the system is broken when potentially innocent companies and industries can be destroyed in the process. And if the investigation inadvertently heads down the wrong path, it could actually slow down or muddle discovery of the real problem.

A: No industry, no public health department, no physician and certainly no consumers want a problem to occur. When it does, we have to be as open as possible. Say we sit on the information; we know lettuce is infecting people and then someone dies from it. Then we do a real disservice. We can’t sit on this information because lives are at stake.

Tax-payer dollars are put towards insuring we are doing our best to protect public health.

Before we released information that it was iceberg lettuce from Aunt Mid’s, we wanted to be absolutely sure. Do we say iceberg lettuce in general? Do we name Aunt Mid’s? Saying it you know there will be some backlash. Do you want to mess things up for the entire iceberg lettuce industry or get as specific as you can? We believe we’re taking the best protocol.

We appreciate that James McCurtis and the Michigan Department of Community Health took the time to help explain their position and the constraints within which they work to the industry. We also appreciate that Jennifer Holton, spokesperson at the Michigan Department of Health, Melanie Arnold, a spokesperson for the Illinois Department of Public Health and Ken August, spokesperson at the California Department of Public Health, were so generous with their time in helping the industry to analyze this important matter.

We read all this and it comes down to ten assertions:

  1. That giving out the epidemiology is not necessary because a company can file a Freedom of Information Act request.

    This is almost useless as an alternative, though, as it can take weeks, months, sometimes years to get responses and require high legal expenses, even court orders if the Department or agency is not forthcoming. None of this will happen quickly enough to save the reputation or business of a company or industry unjustly accused.
  2. Things can only be released after the case is closed.

    Once again, this is obviously unacceptable. By that time, a business or an industry could be destroyed.
  3. That a law and/or a policy requires this secrecy.

    Fair enough, we need to know the number of the statute that requires such secrecy so we can approach the Michigan Legislature with an alternative. If it is an administrative policy, we need to know which policy, made by whom, so that we can propose a change.
  4. That many things are done at the “discretion” of an administrator such as public health coordinator.

    This sounds like a recipe for abuse. What is the check on the discretion of that administrator?
  5. Quote: “We’re confident in our epidemiological work we’re doing here. We were very careful not to say it was lettuce and later learn it turned out it wasn’t. We wanted to avoid the situation that occurred with the Salmonella Saintpaul outbreak and tomatoes.”

    Is it possible that the authorities in Michigan don’t realize what a ridiculous thing this is to say — and how insulting to the Centers for Disease Control. Surely all the executives at the Michigan Department of Public Health would acknowledge that the CDC is also “very careful” and “confident” in its public pronouncements.

    This does not, of course, guarantee that a mistake wasn’t made. The reason we have checks and balances in our system is precisely because errors can happen.

    The issue is not if the executives at the Department believe it is “careful” or “confident” or not — the issue is the right of others to determine the accuracy of the department’s determination for themselves.li>
  6. Quote: “I don’t know what policies we have on sample retention from each batch that goes out into the market. … We’re doing the best we can under the laws we have set in Michigan.”

    We don’t doubt that, but our interest here is how the laws of the State of Michigan — and by reference other jurisdictions — can be improved.

    One of the problems here is that a completely predictable situation: Public Health accusing a company or an industry and the company or the industry claiming innocence is left without any possible solution. Public Health won’t reveal its epidemiology so that can’t be challenged. All the negative testing in the world won’t exonerate a company because those tests are being done weeks after the problem.

    We do think Good Manufacturing Practices should require sample retentions from every lot. Once again, you really can’t prove a negative, so even negative test results won’t exonerate a produce company, but at least sample retention allows a test on something relevant.
  7. Quote: “Lettuce comes straight from farms on to growers’ trucks to Michigan and directly to Aunt Mid’s. There is not much middle room from I80 highway California to Michigan.”

    Actually this makes us think that a lack of industry knowledge may contribute to errors made by Public Health. We doubt “growers’ trucks” are bringing in all the lettuce and, even if they were, that doesn’t preclude a problem either in the truck or during the time the truck was stopped. What if a terrorist wanted to do something at a truck stop or motel? We also wonder if it is true that all of Aunt Mid’s lettuce comes directly from the farm. Not one box ever was bought in from a terminal market? Nobody ever used a packing house? What about pre-cooling? What about warehousing product until it is shipped?

    A lack of understanding of the industry can easily lead to an unjustified assumption as to what the problem is.
  8. Quote: “In our profession alerting the public is a mandate. There will always be an upset party; we can’t control that. All we can say is it came from this product.”

    This is an evasion of the issue. We know that there have been occasions in which public health authorities walked into companies and demanded a recall, yet when their epidemiology was analyzed by world-class experts, the public health authorities backed off. We later learned that the public health authorities had been in error.

    Nobody is arguing that public health authorities should try to avoid upsetting interested parties. The argument is that the power to bankrupt a company or an industry is too great to allow it to be wielded in a discretionary manner.
  9. Quote: “The public wants to know where it comes from. Lettuce comes from many different places. Aunt Mid’s got their lettuce from California. We’ve been asked time and time again from the media, restaurants, and people from the general public, where did Aunt Mid’s get their lettuce from. That question has to be answered. If we know the answer we need to say. We’re not going to lie and pretend we don’t know. “

    The problem here is that when the State speaks, the assumption is that what is says is relevant and meaningful. If, for example, the state issued a truthful statement pointing out that the truck that brought the lettuce was driven by a card-carrying member of Al-Quaeda, the assumption of the public would be that the public health authorities are not just announcing things to play to the prurient interests of the public, but are announcing things because such information is relevant and meaningful.

    So when public health authorities announce that the lettuce came from California, the presumption is that this is meaningful and important information for consumers. Yet nobody has made a finding that lettuce that was contaminated in California has caused a problem.
  10. Quote: “There are some things you talk about for public consumption, and some where you don’t want to hurt the investigation. If we released the epidemiology and the questions asked, it could spoil the potential answers in other related case studies being conducted. Some information if released could prejudice the results of the investigation.”

    This is a red herring. There are so many options. Just to name one: The information could be shared on a confidential basis with an epidemiologist retained by the company or industry, no public announcement of questions need be made.

We can certainly debate what a reasonable standard of evidence is for implicating a company or crop in a food safety outbreak. But whatever that standard is, basic American principles of fairness compel us to demand a right to challenge the evidence gathered against oneself, one’s company or one’s industry.

Errors in analysis are made, test results suffer from lab contamination, individuals can become corrupt — so simply saying “trust us” is not an option. So what might be some options:

Uncontroversially, the first step could be public health authorities announcing publicly what they have done to protect against errors. For example, we suggested here a Team B approach in which each public health agency would give an internal group, which had complete access to all information, the job of arguing the strongest possible case against the assessment that a particular company or industry was implicated. Then a panel of internal “judges” would have to hear both sides before allowing a public announcement.

A more controversial approach would be to require public health authorities to go to some outside organization to make a case, in much the way a police detective has to persuade a district attorney to pursue a case. Another model would be police persuading a judge to grant a warrant. Some kind of outside check has to be made to reassure the public that decisions were not made in an arbitrary or capricious or corrupt manner.

A third option would be to make the case directly to the company or industry about to be implicated and give them an opportunity to point out mistakes, errors in judgment, alternative explanations.

We recognize that laws and regulations may have to be changed to facilitate these approaches. So be it. We will fight hard to make sure public health gets the authority and resources it needs to do an effective job, but the power to regulate should not be the power to destroy — at least not while this Pundit writes.

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