Farm Progress

CDC’s warning will cause “a massive loss” for growers and suppliers, industry attorney says.

Tim Hearden, Western Farm Press

November 27, 2018

6 Min Read
Romaine lettuce is harvested. Federal health officials have urged consumers not to eat romaine while a foodborne illness outbreak is being investigated.

Growers and suppliers are just beginning to grapple with the fallout from an E. coli outbreak related to romaine lettuce that has sickened 32 people in 11 states.

The U.S. Centers for Disease Control and Prevention last week urged Americans not to eat any romaine lettuce because no common grower, supplier, distributor or brand had been identified. Food and Drug Administration commissioner Scott Gottlieb has since said the tainted lettuce likely originated in California.

The advisory issued Nov. 20 -- two days before Thanksgiving -- will likely cause “a massive loss” for the industry, says Michael Droke, a Seattle, Wash.-based partner in the international law firm Dorsey and Whitney LLP who works in the areas of agriculture and cooperative law.

“This comes at a difficult time for the industry generally because it happened right before a big holiday weekend,” Droke tells Western Farm Press. “It is categorical, meaning it affects the entire category of romaine and is not narrowed to a farm or region. And third, it comes on the heels of a similar warning and mass recall last summer.

“It’s particularly hard on farmers and suppliers given the timing,” he says. “At this time of year, there’s an increase in demand for produce, so this is really terrible. It’s terrible for consumers who are ill as well.”

Middle of harvest

Romaine lettuce is harvested year-round in various regions of California and Arizona, which together produce 98 percent of the U.S. supply. The lettuce is typically harvested in the Salinas Valley during the summer, then harvests move to the Imperial Valley and the Yuma, Ariz., region in the fall and winter, Droke notes.

In similar past instances, suppliers have told growers to keep the produce on their farms because they didn’t have the capacity to hold it, he says.

“Romaine obviously is a quickly perishable product,” he says. “The best-by date is assigned when it’s cut, so it’s not something that’s storable. So the issue is what happens and who’s left holding the bag. Whether the supplier or retailer is ultimately going to be the one responsible depnds on the contract the parties have signed, whether there are exclusionary clauses in this kind of situation, and the relative bargaining power of the parties.”

Western Growers president and chief executive officer Tom Nassif says growers and handlers have been “cooperating fully” with state and federal health agencies to identify the source of the contamination, adding that farms in California and Arizona are governed by the nation’s most stringent food safety requirements.

“In the meantime, it is important to acknowledge that a number of regions in current production were not harvesting or shipping romaine at the onset of the outbreak and, consequently, could not be the source of the specific E. coli strain identified in the illnesses,” Nassif says.

“In light of this evidence, we urge the government’s health agencies to work with stakeholders to quickly narrow the scope of the investigation, and to remove those regions from the comprehensive advisory as soon as the safety of the public can be ensured,” he says.

Narrowing the scope

A produce industry group says it expects U.S. health officials to scale back their public health alert, according to the Associated Press. Jennifer McEntire of the United Fresh Produce Association tells the wire service the FDA informed the group that a narrower alert would be announced soon. She says special labeling would be required for the romaine given clearance to go on the market, the AP reports.

“New romaine from different growing regions, including Florida and Arizona, will soon be harvested,” the FDA’s Gottlieb tweeted on Nov. 23. “We’re working with growers and distributors on labeling produce for location and harvest date and possibly other ways of informing consumers that the product is ‘post-purge.’”

Illnesses related to this outbreak started on dates ranging from Oct. 8 to Oct. 31, according to the CDC. The agency hasn’t ruled out later infections because it can take two to three weeks for E. coli-related illnesses to be reported.

Thirteen people were hospitalized, including one person who developed a type of kidney failure, the CDC reports. In addition, the Public Health Agency of Canada has identified 18 ill people with the same DNA fingerprint of E. coli O157:H7 bacteria in two provinces, Ontario and Quebec. No deaths have been reported.

This strain of E. coli produces Shiga toxin, which can cause a type of kidney failure called hemolytic uremic syndrome and potentially lead to complications such as neurological problems and heart failure. Shiga toxin “is very, very dangerous, so one can understand why they take it so seriously,” Droke says.

The latest outbreak follows E. coli-related illnesses traced to the Yuma growing region this spring that infected 210 people in 36 states, hospitalizing 96 and causing five deaths. CDC officials say the two outbreaks are not related.

“That can increase consumer fear, because if it’s not one thing it’s another,” Droke says.

A swift response

Throughout his career, a substantial part of Droke’s practice has been representing agriculture and food-based companies. He acts as outside general counsel in that industry, handles corporate governance, and manages complicated domestic and international transactions, according to his law firm. He says he has not yet been retained in relation to the current outbreak.

Droke says the response to the CDC’s advisory last week was swift. Large retailers pulled raw romaine lettuce from the shelves almost immediately, and products containing raw romaine were identified within about an hour. Even small resellers such as airport sandwich shops removed romaine-related products within the day, he says.

While the recall was voluntary, the FDA was recently given mandatory recall authority under the Food Safety Modernization Act, providing an additional nudge for retailers to move quickly on their own, he says.

A recall of this magnitude – particularly during a holiday week – will impact not only romaine but other leafy green vegetables such as spinach, Droke says. It’ll not only decrease sales through the remainder of the holiday season, but similar incidents in the past have shown it can take 6 to 12 months for demand to return, he says.

“This is a real wake-up call to growers and shippers to make sure that they understand the scope of their risk and know in advance these questions of, ‘What’s my risk of loss in a major recall event?’” he says. “We’ve definitely seen a dramatic increase in the frequency of recall events over the last several years, which is partly caused by FSMA in addition to an increase in organic customer demand and customer demand for farm-to-table.

“I get notices of almost three recalls a day,” he says, “so that’s where we’ve seen a dramatic rise.”

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