Over the past year, more than two dozen people in the U.S. have died and hundreds have fallen ill after eating contaminated cantaloupes. Early in 2011, President Barack Obama signed a food safety bill aimed at preventing these kinds of deaths and illnesses. The legislation is considered the biggest overhaul to food safety in decades, yet many months later, the rules are still being hammered out and the law has not taken effect. The delay has both consumer advocates and industry groups concerned and pushing for faster implementation. Diane and her guests discuss the holdup over new food safety rules.

Guests

  • Ray Gilmer senior vice president of communications for United Fresh Produce Association.
  • Bill Tomson reporter for Dow Jones Newswire.
  • Bill Marler lawyer at Marler Clark, The Food Safety Law Firm.
  • Richard Williams director of policy research at the Mercatus Center at George Mason University. Previously, he worked for 27 years at the Food and Drug Administration.
  • Erik Olson director of food programs at Pew Health Group.

Transcript

  • 10:06:56

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Every year, 3,000 Americans die from foodborne illness. A new law aims to control the sources of food contamination, but it has yet to go into effect. Here to discuss the delay and challenges in preventing food contamination: Erik Olson, director of food programs at the Pew Health Group, Richard Williams, director of policy research at the Mercatus Center at George Mason University, Bill Tomson, a reporter at Dow Jones Newswire, and, joining us from a studio at KUOW in Seattle, Bill Marler.

  • 10:07:44

    MS. DIANE REHMHe's an attorney with Marler Clark and a food safety specialist. You're welcome to join the conversation. You can call us on 800-433-8850. Send us an email to drshow@wamu.org. Join us on Facebook or send us a tweet. Good morning to all of you.

  • 10:08:12

    MR. BILL MARLERGood morning, Diane.

  • 10:08:12

    MR. ERIK OLSONGood morning.

  • 10:08:13

    REHMGood to have you...

  • 10:08:14

    MR. BILL TOMSONGood morning.

  • 10:08:14

    REHM...all with us. Erik Olson, I'll start with you. In January 2011, Barack Obama signed the Food Safety Modernization Act. Talk about why this was considered such a landmark piece of legislation.

  • 10:08:38

    OLSONWell, this was a very important piece of legislation because for the first time in over 70 years, the food safety law for FDA was being overhauled. So it made a fundamental change. In the past, FDA basically had been a detective agency who'd figure out why people got ill from food and then tried to resolve it after the fact.

  • 10:09:02

    OLSONThe new law is intended to be prevention based so that, rather than tracking illnesses afterwards, it's supposed to set it up so that rules will prevent the contamination before the food gets on the grocery shelves so that, for example, with this cantaloupe outbreak, that there would have been rules to prevent the contamination of the cantaloupe before it got to our grocery stores and before we got sick.

  • 10:09:26

    REHMAnd, Bill Tomson of Dow Jones Newswire, you've got USDA dealing with meat. You've got FDA dealing with everything else?

  • 10:09:41

    TOMSONYes. There's been criticism for a long time, especially in Congress. A lot of lawmakers and food health advocates argue for a single food safety agency. You have -- and they point to some of the more ridiculous situations when it comes to pizza. Well, FDA has the authority for frozen pizza if there's no meat on it. If there's meat on it, then the USDA has the authority. And there are other examples like this.

  • 10:10:15

    REHMAnd, Erik Olson, the law has yet to go into effect. How come?

  • 10:10:21

    OLSONWell, officially the law kicked in in January when the president signed it, but the real problem is that, to make any law like this work, you have to have an agency that have -- that has rules to implement it. And that's where we've gotten stuck. We basically, for the last year-and-a-half, have been waiting and waiting for these rules to come out, and, frankly, they've been over at the White House's Office of Management and Budget for over eight months, the major rules to actually give this law some teeth. So what we have now is essentially a paper tiger.

  • 10:10:51

    REHMRichard Williams, a paper tiger.

  • 10:10:55

    MR. RICHARD WILLIAMSNo, FDA is hardly a paper tiger. In fact, FDA has been passing regulations to try to anticipate problems for over 100 years. I was at FDA for 27 years and worked on many of those regulations, and we did have things like good manufacturing practices, things like hazard analysis and critical control point rules. And we've been trying to pass these regulations and make food safe for a long, long time.

  • 10:11:20

    REHMI think the original law goes back to 1906 -- isn't that correct? -- then amended in 1936. I think my concern would be how much preventive investigation there is actually going on. You've got hundreds of growers out there. The question is, how many inspectors does the FDA have? And, by the way, just let me point out, we did invite the FDA on the program. We also invited the Office of Management and Budget, and neither decided to come on. So how do you cover that range of growers, for example, with just a very few inspectors?

  • 10:12:21

    WILLIAMSI actually think it's extremely difficult to cover a number -- that large number of growers not only in this country but we have a number of countries that export fruits and vegetables to us, for example. And we have, you know, thousands and thousands and thousands of manufacturers. We will never have enough inspectors to adequately inspect people.

  • 10:12:41

    WILLIAMSAnd I don't think, in the long run, that's going to be the solution, that we add more and more inspectors to FDA trying to get the plans at some sort of a reasonable time so that we have an incentive -- we create this incentive for them to have safer food. The answer, I think, lies in making sure that when, in fact, they do have a problem, that we're able to trace back that problem to the farm or to the manufacturer that caused it. And that creates the incentive for them to start inspecting each other and to exercise due diligence.

  • 10:13:14

    REHMAnd turning to you, Bill Marler, I know you have represented individuals whose family members may have died because of food contamination. What can you tell us about the after the fact occurrences when you find that contamination has taken place?

  • 10:13:45

    MARLERWell, I think there's a couple of things, Diane. I mean, this cantaloupe outbreak, especially this recent one, the salmonella one, has really impacted a lot of the families who just a year ago lost, you know, over 30 family members to listeria cantaloupe. And you can imagine how they're feeling, you know, one year later seeing almost the identical thing happening again. And, you know, some of these people that died in the listeria outbreak were in their 80s.

  • 10:14:20

    MARLERSeveral of them, you know, fought in World War II. Three of my clients share four Purple Hearts between them, but they died from eating cantaloupe. And you can imagine how frustrating it is for those family members. To answer your question specifically, you know, most instances of foodborne illnesses that have occurred when the outbreak happens and, you know, when I get a court order to go into that plant, you know, I'm usually closely on the heels of the FDA investigators. And the reality is is that most of those plants have never, ever, ever been inspected by an FDA.

  • 10:15:02

    REHMHow come? How come?

  • 10:15:04

    MARLERWell, I think your -- the reality is is that there simply not enough inspectors at the FDA to even do a marginal job. And I'm not -- certainly not a blame game on the FDA. I mean, the reality is is you get what you paid for. If the public is unwilling to pay for even a modest level of inspection, you know, you get uninspected facilities.

  • 10:15:32

    REHMAnd the same is probably true with the USDA, that they don't have enough to inspect every single meat plant out there. What do you think, Erik Olson?

  • 10:15:45

    MARLERWell, you know, well, yeah.

  • 10:15:48

    REHMGo ahead, Bill.

  • 10:15:50

    MARLERNo. I was just going to say that the USDA has an inspector in nearly every plant. I mean, that's the rule. And that's how that agency grew up with an inspector in every plant, a public employee. And, you know, one interesting fact is I've been doing these kinds of cases for 20 years, and most of the cases that I did in the first, you know, decade-and-a-half were E. coli cases linked to hamburger meat. That has virtually disappeared.

  • 10:16:20

    MARLERAnd now most of the cases that I do are cases where they're E. coli, salmonella, listeria linked to FDA-regulated products, fruits and vegetables. So the USDA, in my view, it's not perfect. But they are doing a far better job of regulating that industry than the FDA is. With their limited budget and their limited inspectors, USDA is doing a far better job, you know, looking at that agency than the FDA is doing on their regulated products.

  • 10:16:55

    REHMErik Olson, what's the problem here? Is it that the growing the sites have changed? They used to be out in California where it was dry. Now they have gone to other parts of the country where water becomes a contaminant.

  • 10:17:16

    OLSONWell, I think the problem is several-fold. One is what we've just been talking about, which is that FDA does not have the resources to go out and inspect. It doesn't have the resources to ensure full safety. For example, most people are surprised to hear that, on average, FDA inspects once every 10 years for these plants. So a lot can happen between those times. And as Bill Marler just said, in many cases, these plants were never inspected before a major outbreak occurred. The second problem is that we don't have standards.

  • 10:17:45

    OLSONI mean, again, people are stunned to hear that there are no national standards for produce safety. So, today, there are no enforceable standards for cantaloupe or for spinach or for leafy greens or for any other fresh produce. And the problem is that these rules have been bottled up now for eight months, sitting at the Office of Management and Budget in the White House, though (word?) was supposed to remedy that problem. So we really need two things. We need the rules to come out, and we need the resources of FDA to carry out the law.

  • 10:18:16

    REHMErik Olson, he is director of food programs at the Pew Health Group. We're going to take a short break here. When we come back, we'll talk further about food contamination, what's happening around the country and perhaps in your own backyard. Stay with us.

  • 10:20:04

    REHMWe're talking about food safety in this country. I want to go back for a moment to the issue of cantaloupes. Bill Tomson, what has the problem been specifically with cantaloupes?

  • 10:20:21

    TOMSONWell, the expansion of where they're grown. Traditionally, they were grown in places like California where it's very dry. And the California producers will tell you the way that they do it is much safer, and they're used to it. They have what they call mobile platforms. They go out, they grab the melons, they box them right there in the field, whereas when you produce them in places like Colorado, where we had the big outbreak last year, the melons get muddy. And you can't sell muddy melons, so you have to wash them off.

  • 10:20:57

    TOMSONThis adds a whole new dimension to processing. And when you involve water and washing -- bacteria likes water, and it grows in water. And big investigation found out the smallest thing can cause a huge contamination. They found that there is water with the bacteria in it, and it got on to all these melons that were going through the washing shed and out to the public. So a small, little violation can have huge effects. That's why these USDA rules, or -- excuse me, the...

  • 10:21:32

    REHMFDA.

  • 10:21:33

    TOMSON...the FDA proposed rules are believed to be so important, so you can have these guidelines for how they wash them, how you produce them. And, you know, people are just still waiting for these.

  • 10:21:45

    REHMErik.

  • 10:21:46

    OLSONYes. So this is exactly the point that what we have now is no standards, so that -- except of voluntary standards from the industry, which are great to have, but unfortunately not everybody is complying with them. So these new FDA rules would, in theory, protect the water supply that's used to wash the melons and the ways that these are grown to make sure that we don't have this kind of contamination. Without rules, you really don't have the protection you need.

  • 10:22:13

    REHMRichard Williams.

  • 10:22:14

    WILLIAMSI think Erik's statement is right. It's in theory. FDA has been working on produce safety now for at least six years, and the problem is is that every farm, every area of not just this country but the countries that export to us have different problems. So there's not going to be one set of standards that's going to solve all of these problems. And the reason -- one of the reasons I think that it's so difficult is to write these standards -- how do you write a standard that fixes every problem everywhere?

  • 10:22:42

    WILLIAMSIn fact, the reality is the solutions are likely to be local. They're likely to be at each farm and in each area. And so that's one of the reasons I think FDA has had such a difficult time trying to write these standards.

  • 10:22:53

    REHMBut who's going to oversee this if you have no standards?

  • 10:22:59

    WILLIAMSI think there are standards. There are -- industry is writing their own standards. They oversee them. And certainly what we're seeing now in industry not just in produce but in all industries is that if you want to sell your product to a supermarket or you want to sell your product to an upstream producer, they're inspecting you because when you have an outbreak, if it's traced back, the cost to you now are enormously -- enormous, and they're tracing them back.

  • 10:23:23

    REHMBut by then, somebody may be dead.

  • 10:23:26

    WILLIAMSThat's exactly right. But the problem is if you can't write standards that actually work, what you end up doing is you end up writing standards that people will follow. We can get regulations. We can get them out. People will follow. But if they don't work, all that's going to happen is people are following the standards. But if they don't work, they may not actually be trying to find real solutions.

  • 10:23:47

    REHMBill Marler, you're representing families from the Jensen Farm outbreak from last September. This was the country's deadliest foodborne outbreak in more than 25 years. Tell us about it.

  • 10:24:06

    MARLERWell, you know, it is like almost every other outbreak that I deal with. There are mistakes that are made in production. In this instance, there was not chlorinization (sic) of the water, which is -- you know, frankly, I think under anybody sets of rules, under anybody sets of regulations, those would've been, you know, put out by the FDA. And, in fact, you know, the regulations or the voluntary regulations the FDA has has those in them, and they just chose not to do it.

  • 10:24:39

    MARLERAnd, you know, frankly, it would've been safer to eat the cantaloupe off the ground outside the facility than it was after it went into the facility. So you had 147 people sickened. You know, the official death toll is 33. It's likely 37. It was a horrible, horrible, horrible experience. And, again, you know, we're seeing the same thing happening, you know, hopefully on a much smaller scale of deaths. But we're seeing the same thing happening again.

  • 10:25:09

    REHMTell me about listeria, which apparently gets into the bloodstream, Bill Marler.

  • 10:25:18

    MARLERWell, what happens -- listeria is a very ubiquitous bug. It's really sort of grown up with our refrigeration system. And it's a very deadly bug, especially for the elderly, for pregnant women or people with immune compromise. And it does get into the bloodstream, gets into the -- and can get into the spinal column. It's a bacterial meningitis, and that's what kills people. Or if it doesn't kill you, it'll leave you with severe brain damage. And some -- even some of the survivors of that listeria outbreak, you know, are -- have severe compromised systems now that they've even survived that.

  • 10:26:08

    REHMSo tell me what recourse those individuals who've survived it have and what recourse the families of the individuals who've died have.

  • 10:26:24

    MARLERWell, you know, there's -- you know, there are always some -- somewhere is lurking a lawyer like me, you know, in these disasters. And -- but I can tell you that every single one of my clients -- and I represent 42 of those families. Every single one of them would rather have their family member whole or their family member back. And so money is really, you know, never a way of dealing with things. But it's the only method that we have.

  • 10:26:53

    MARLERAnd so we have a situation where we're basically going through the chain of distribution from the retail outlets to the farmer and seeking compensation. We have bankrupted two companies. There is presently a criminal investigation pending against Jensen Farms. And, you know, we are, you know, dealing directly with Wal-Mart, Kroger and other major retailers who sold these cantaloupe that poisoned and sickened and killed their customers.

  • 10:27:25

    REHMErik Olson, is that the only recourse we have at this point without these regulations?

  • 10:27:34

    OLSONThat's the problem. You just can't have a system that's only reacting to people getting sick or dying. You've got to have a prevention-based system, and this is why the food industry strongly supported the passage of this new food safety law that the president signed in January. And, in fact, the food industry has written to the White House, to the Office of Management and Budget and urged that rules come out in order to implement the law. So they understand that you can't set up a whole system just on reaction. You've got to have a prevention-based system, which is what we need to move to.

  • 10:28:05

    REHMWhat do you make of that, Richard Williams?

  • 10:28:07

    WILLIAMSWell, I think that's right. The Office of Management and Budget has a very small office, the Office of Information and Regulatory Affairs, and their job is to take a dispassionate look at the regulations. And they answer...

  • 10:28:17

    REHMTo the cost benefit?

  • 10:28:19

    WILLIAMSThey -- yeah, they answer essentially -- they have two missions. One is to say, do these regulations actually work? Are they likely to work? Has the FDA presented evidence that they're likely to work? And the second is to make sure that they're consistent with the policies of the elected president. And it could be that there's a combination of those things that the Office of Management and Budget is going back, the FDA saying, you know what, you haven't demonstrated that they'll work.

  • 10:28:42

    WILLIAMSAnd we need to do that before we go out particularly on such an important issue as when as we've said, there is -- we have had such a long-standing problem of food safety, and it's time we fixed it.

  • 10:28:53

    REHMBill Tomson, what's the hold up?

  • 10:28:57

    TOMSONWell, they do have a point. I mean, it is a huge bill, and to write all of these rules, it's very complicated. And yet, there is speculation. There is a lot of talk. There is a lot suspicion that -- this is an election year. One of the main criticisms, especially on the Republican side, is that this administration over-regulates. And so there are some suspicion that they are holding off on this because it's regulation, and it's a lot of regulation. A lot of people see this as, you know, inspectors going on to the farms, snooping around. I mean, there's -- and this has been a criticism.

  • 10:29:42

    REHMHow many inspectors would these new rules add, Erik?

  • 10:29:49

    OLSONWell, the rules themselves don't actually add inspectors, so FDA is going to have to ask Congress to fund some additional inspectors.

  • 10:29:56

    REHMI see.

  • 10:29:57

    OLSONBut you -- until you've got some rules to enforce, there's no real huge point in having more inspectors.

  • 10:30:04

    REHMAnd what do you think the hold-up is? Is it politics? Is it waiting until after November has so much passed?

  • 10:30:15

    OLSONWell, it's been radio silence, honestly. We don't know exactly what the hold-up has been. But what's important is that this has been eight going on nine months. Under the executive order that the White House issued, the Office of Management and Budget is supposed to complete their review within 90 days. So it's been well over that, and they keep extending it, and there's been no real explanation.

  • 10:30:39

    REHMAll right. I'm going to open the phones at this point. First, we'll go to Louisville, Ky. Good morning, Ron. You're on the air.

  • 10:30:50

    RONOh, good morning. My comment is that I think a lot of the problems that we have with food safety nowaday are due to industrial-size food production. A lot of these things, including the worst form of E. coli, did not exist until we had factory farms. They've put in rules in effect, for example, that make very large production of cows. They have to tag them by lot number, and a small farmer has to tag them by individual cow.

  • 10:31:22

    RONAnd just a lot of these rules oftentimes are meant to, I think, harm the smaller farmers who are not the cause of a lot of these problems because the disease is formed in the very large plots. I mean -- and also things like irradiation are not necessarily an answer because, you know, things that are heavily processed also get a lot of the nutrients processed out of them, you know?

  • 10:31:49

    REHMAll right. And, Erik Olson.

  • 10:31:52

    OLSONWell, I think the caller has a point that some of the big factory farms have contributed to this problem -- for example, the overuse of antibiotics in these farms. In fact, most people don't know this, but four times more antibiotics are used on factory farms than are used in human medicine. So what's happening with that is it creates these new super bugs that are very resistant to antibiotics. That can become a food safety issue.

  • 10:32:16

    OLSONSo I think that there certainly are issues with these big factory farms that are generating the new super bugs. And we've got to address -- and maybe it's a separate discussion, but we need to address the antibiotic use.

  • 10:32:26

    REHMAbsolutely. Richard.

  • 10:32:28

    WILLIAMSIf you go back to the early part of the 20th century, food safety problems were much, much worse than they are now. One of the things that's really helped is pasteurization. Milk was responsible for about a quarter of all foodborne diseases back in the 1920s before we required pasteurization. What's happened recently since then is we focused on chemicals in the food supply. It wasn't really until the 1990s that we've begun to focus on foodborne disease and pathogens. And so there's a lot more attention paid to it now, but it's not as though the problem has gotten worse.

  • 10:32:59

    REHMRichard Williams, he's at George Mason University. And you're listening to "The Diane Rehm Show." Joining us now is Ray Gilmer. He's senior vice president for communications at the United Fresh Produce Association. Good morning to you, sir.

  • 10:33:23

    MR. RAY GILMERGood morning, Diane.

  • 10:33:24

    REHMI know we've seen this fatal outbreak of cantaloupe contamination. Do you believe, and does the United Fresh Produce Association believe, that the Food Safety Modernization Act is the best way to prevent these deaths and illnesses?

  • 10:33:49

    GILMERIt's certainly a bold, big step in the right direction. As we've discussed already this morning, this was really the first advancement in food safety law in our country in more than 70 years. Our industry supported it wholeheartedly. We realize that advancing food safety and boosting consumer confidence is a way that our industry can continue to grow and help consumers meet the recommended, you know, dietary allowance of fruits and vegetables every day.

  • 10:34:18

    REHMSure. How do you feel about what Richard Williams has said, namely that these new regulations simply will not take care of the problem?

  • 10:34:32

    GILMERIt's a question of trying to work towards advancing the science of food safety as far as possible, but there's never going to be an absolute silver bullet. But we believe that the guidance that's in existence already that the industry has been following, issued by the FDA -- it's also developed by the industry -- as well as these new mandatory regs that when the rules come out and are finalized are going to be a tremendous step in the right direction.

  • 10:35:01

    REHMSo what does the delay in the law mean for you?

  • 10:35:07

    GILMERIt probably means that the industry is holding off on making any serious investment, perhaps, in anticipated new equipment, new personnel, new procedures. We're working with the current guidance, which we've already discussed this morning already that's been in effect for many years. There is FDA-issued specific guidance just for melons back in 2009 to try to address the problems that we've been talking about today.

  • 10:35:33

    GILMERAnd the industry follows those as closely as they possibly can. But the inspections, the mandatory enforcement that would come with the FSMA enactment is really the ultimate step to make that all possible.

  • 10:35:47

    REHMAnd where is the cost of the new regulations likely to fall?

  • 10:35:54

    GILMERWell, the cost of the regulation falls on FDA primarily, and FDA's budget has been increased. We've been happy to see that increase over the past few years. Their fiscal year -- budget for this year was $2.5 billion, and the Center for Food Safety had a budget increase to $350 million over the past four years. We're happy to see that, and we've encouraged FDA to go after any resources necessary to help them have the power and resources to make the intent of this law possible.

  • 10:36:27

    REHMBut what about the cost to your industry? Is that going to be passed on then to consumers?

  • 10:36:35

    GILMERWell, the industry already has made a tremendous investment and will likely make significant investments as the rules are enacted. It involves new equipment, new training, new inspections, you know, sanitation procedures. All of that has a cost, obviously. And we have to keep in mind that our industry domestically is working in an environment where there's a lot of international competition as well.

  • 10:37:00

    GILMEROur -- you know, the produce industry is an international, global market. And you go to the supermarket. You're going to see products from all over the world. We have to ensure that whatever costs that are passed on to the local producers in this country don't put them at a competitive disadvantage to where we don't allow farmers to produce food for America.

  • 10:37:19

    REHMRay Gilmer, he's with the United Fresh Produce Association. Thank you so much for joining us. And we'll take a short break here. When we come back, more of your calls, comments. Stay with us.

  • 10:40:04

    REHMAnd let's go right back to the phones to St. Louis, Mo. Good morning, Betty.

  • 10:40:12

    BETTYGood morning. One of your guests said that if the public doesn't want to supply the money for more inspectors, then what can you do? But it's not the public. The public wants the protection. But it's the Congress that appropriates, and we have little control over Congress. So it's not the public that doesn't want to supply the money.

  • 10:40:38

    REHMRichard Williams.

  • 10:40:41

    WILLIAMSYeah. First of all, I want to clarify. I'm not saying the regulations won't help. I think they will, but I don't think that's the long-run answer. What we're trying to do here is we're trying to create incentives for producers to be responsible, to take due diligence, to make sure they're not the ones that have the outbreak. And the question is, what's the best way to do that? We can -- we now -- as Erik has said, we now inspect plants possibly once every 10 years. Even if we double or triple or quadruple the size of inspectors and we're inspecting once every five years, that's not likely to create the incentive.

  • 10:41:14

    REHMBill Marler, were the Jensen Farms inspected prior to the deaths that took place?

  • 10:41:24

    MARLERWell, that's a good question. The short answer is they were not inspected by any federal or state officials. They had been inspected by a third-party auditor, which they paid for that inspection, and that's one of the, you know, things that has happened. When you don't have federal inspectors, you don't have state inspectors, the industry creates their own -- in a sense, own inspecting pool. But the problem is that the incentives are wrong.

  • 10:41:56

    MARLERThe inspectors are paid for by the people they're inspecting, and the Jensen Farms got a 98 percent inspection. And the inspector was in the plant while the contamination was occurring, so it's...

  • 10:42:10

    REHMBill -- I'm sorry.

  • 10:42:12

    MARLERNo, go ahead.

  • 10:42:13

    REHMBill Tomson.

  • 10:42:15

    TOMSONOne of the arguments -- what really went in the situations that brought about this bill was the peanut butter recall. They're -- the company, they had their -- they did their own inspections, and the FDA later said that they just ignored these inspections. They paid for it, and they ignored it. And they shipped out the peanut butter with the salmonella in it. Lots of people got sick. Nine people died, I think.

  • 10:42:48

    TOMSONAnd shortly, you know, this was what led to the famous -- well, when President Obama said, my daughter eats peanut butter, and she shouldn't be in danger by having a peanut butter and jelly sandwich. And when government inspectors finally did go in after the people died, after they got sick, they found birds' nests in there. They found a lot of problems. So that is one of the big arguments behind the bill and for more inspection.

  • 10:43:17

    REHMAll right. To Twin Cities, Minneapolis, Minn. Good morning, Jeff.

  • 10:43:23

    JEFFGood morning, Diane. I'd like to say hi to Erik Olson and Bill Marler, a couple friends of mine.

  • 10:43:28

    REHMGood.

  • 10:43:29

    JEFFReason I'm calling in, my mother died from that PCA peanut butter outbreak after surviving cancer.

  • 10:43:36

    REHMOh, I'm so sorry.

  • 10:43:37

    JEFFThank you. And I've worked on this issue and followed it closely, and I really believe in my heart that regulations can help. But also what can help is to have our government make the person who caused that accountable. It's been under federal investigation for almost four years now with another year left, and we need to make a splashy federal charge against the guy who knowingly shipped his product out. And he's been living his life for four years now since then.

  • 10:44:12

    REHMErik Olson.

  • 10:44:13

    OLSONAbsolutely. I mean, you have to have accountability, and you've got to respond. But again that's not a full solution. You've got to do that. You've got to take action after the fact. But what we wanted to have is a system that prevents that contamination before it gets onto our grocery shelves so that when I'm rolling my cart down the grocery store aisle, I'm not worried about, whether I'm taking lettuce or whether I'm taking spinach or whether I'm taking a packaged peanut butter, that it might have contamination.

  • 10:44:43

    OLSONWe've got to fix the problem. And as to inspectors, I mean, if you knew that a cop was only going to be checking your speed once every 10 years, how many people would be speeding on a highway? This is where we are.

  • 10:44:55

    REHMWell, but that's exactly Richard Williams' point. It seems to me that if you don't have enough inspectors, if you're only inspecting once every 10 years, you're not going to do much good.

  • 10:45:13

    OLSONThis is exactly the point. Unless you've got enough -- you've got to have the rules in the first place, and the responsible companies will comply with the rules. But you also need to have enough inspectors to make sure that the rules are being complied with.

  • 10:45:24

    REHMBill Marler, would the new safety laws address the contamination sources of the Jensen Farms?

  • 10:45:38

    MARLERAbsolutely. And, you know...

  • 10:45:40

    REHMHow so? How so?

  • 10:45:41

    MARLERWell, I mean, had there been these rules in place and had there been even some level of inspection and it was being done by the FDA, the FDA simply would not have allowed non-chlorinated water to be used in that facility. And, in my opinion and the opinion of the experts at the FDA and experts that we've retained, had there been chlorine in that water, the outbreak likely would not have happened whatsoever.

  • 10:46:16

    WILLIAMSI think we need a reality check here. We have hundreds of thousands of plants producing food in this country. We have something like 600,000 retail outbreaks who are -- outlets that are also responsible for food safety. We have hundreds of thousands of plants from other countries, plants in farms that are sending us produce. We are never going to have the number of inspectors that you're talking about to create these incentives, never.

  • 10:46:42

    REHMSo if you don't have enough, are you saying don't do it at all?

  • 10:46:49

    WILLIAMSI'm not saying that at all. I'm saying that they need to inspect, but what you need to do is you need to look at -- there is -- in the private system there are -- there is a tremendous system that's grown up only recently since we've been tracing foods back to the source. We now have millions of food safety contracts. In many cases, they're much more strict than what the FDA puts out. These plants -- and some of them get inspected monthly, not every 10 years.

  • 10:47:13

    REHMBy whom?

  • 10:47:14

    WILLIAMSThey get inspected by the plant -- whoever the upstream plant is or the insurance companies, they will hire inspectors to go in and make sure that these things are -- that the plants are in compliance. But this is only something recent. It's just beginning to work itself out. FDA needs to find out what they're doing, find out what's working and what's not. They need to send their inspectors to places where it's not working.

  • 10:47:38

    REHMErik Olson.

  • 10:47:39

    OLSONWell, the fundamental problem with these so-called third-party inspections is that they're usually paid for by people that have an economic interest. And obviously, nobody is saying it's a bad idea to do that. We should have those. But in both the Jensen Farms case that Bill Marler was talking about, with the third-party inspection that was done in the cantaloupe case and also in the Peanut Corporation case, there were third party inspectors there that gave glowing reviews and said, oh, they're doing a great job. So you can't have just third-party inspectors. You need to have government inspectors in there.

  • 10:48:12

    REHMAnd to you, Bill Tomson, what about imported foods? What do we do there?

  • 10:48:20

    TOMSONWell, that's a good question. We had a big recall last year of outbreak of salmonella in the sushi tuna. Turned out all of that was produced in India. And we buy 80 percent of our seafood from overseas, and it's -- the USDA and FDA do things very differently. And this is one of the criticisms, is that the FDA waits until after the problem, whereas USDA does things preventively. If a country like country X wants to export pork to the United States, the USDA sends people over. They go to the facilities.

  • 10:49:12

    TOMSONThey talk to the government. They get the whole things set up so that it's equivalent standards. Then they say, OK, now you can export. With the tuna, what happened is we had -- a lot of people got sick. And about a year later, FDA sends some people over to India. And they inspected the place. They found multiple sanitary violations and...

  • 10:49:36

    REHMLike what?

  • 10:49:39

    TOMSONLike the -- if I remember it correctly, there were problems with the bathrooms its employees use. There were no soap and towels for the people that cut up the tuna, that the knives were dirty. And this is a problem because of the globalization. Higher-skilled restaurants will get their tuna, and they'll cut them up. But a lot of places, the sushi industry has expanded rapidly. And tuna is very expensive, so they order these -- that's tuna already pre-cut, these little packages that have no label on it.

  • 10:50:12

    TOMSONThey don't know where it came from. And then there's this big recall as people are getting sick and the small restaurants that served the sushi say, well, we don't know we have this bag. And we're going to stop serving it because it's very expensive.

  • 10:50:25

    REHMSo what's the answer there, Erik?

  • 10:50:28

    OLSONWell, I think obviously part of it is you've got to have some kind of inspection system for imports. That's one of the rules actually that's sitting at the White House Office of Management and Budget is doing -- start to set up a new import system where we can be better at doing the inspections and insuring safety. Although, you know, in the seafood arena, we already have some rules, but the problem is for a lot of things. We don't even have rules, much less inspections.

  • 10:50:55

    REHMAll right. To Providence, R.I. Good morning, Steve.

  • 10:51:00

    STEVEGood morning, Diane. And good morning to your guests. I'm calling because my mother is currently battling listeria, in fact, right at the moment. She was diagnosed a little bit less than a week ago. And she has gotten out of the hospital. She is currently in rehab and is going through the many days of antibiotic...

  • 10:51:22

    REHMOh, Steve, I'm so sorry. How did she get that infection?

  • 10:51:28

    STEVEWell, that's, I guess, where I'm headed. That's unknown. And at this point, my suggestion -- and I'll take the comments off the air -- is when she was -- when we learned she had listeria infection, we, of course, begin to do our research on the Internet and realized how serious the situation that it was. And so several days after she was diagnosed, my sister and I decided we were going to clean out everything in her apartment and trying, you know, get rid of it to make sure there was no source of contamination. And so we did that.

  • 10:52:06

    STEVEAnd then a couple of additional days went by and we received the call from a local health authorities wanting to know, you know, if they could get access to the food source. And we had already cleaned everything out. And I guess my suggestion in a situation like this would be if there'll be some way of speeding up the contact to people like myself when it was diagnosed in the hospital, we would have been able to have that food source readily available rather than sort of clean it all out...

  • 10:52:42

    REHMSure, sure.

  • 10:52:43

    STEVE...and be (word?) with that. So...

  • 10:52:45

    REHMI'm so sorry about your mother, Steve. I hope she gets well and gets out of rehab very soon. You're listening to "The Diane Rehm Show." Bill Marler, do you want to comment?

  • 10:53:05

    MARLERWell, the one thing about listeria is that it's -- the incubation period is three to 70 days. And so trying to figure out what you ate 70 days ago or even two days ago is very difficult. And then if you also look at the population, you know, the vast majority of the people in the last listeria outbreak involving cantaloupe, I think the average age is almost 65, so...

  • 10:53:31

    REHMSo you're saying they're far more vulnerable.

  • 10:53:35

    MARLERFar more vulnerable, and then also, frankly, they're just, you know, many people are just very bad historians as to, you know, what they ate yesterday and trying to remember what they ate 70 days ago is impossible.

  • 10:53:47

    REHMAll right. And let's go to Cary, N.C. Good morning, Lauren. You're on the air.

  • 10:53:53

    LAURENGood morning. Good morning, Diane. I have a question regarding farmers' market.

  • 10:53:57

    REHMSure.

  • 10:53:58

    LAURENI think a lot of us are turning to farmers' markets to get our fresh produce. And I was just wondering if they sell under the same FDA regulations as the corporate farms 'cause where would the accountability be if there was to be some type of contamination and would be really difficult to track where the contamination came from. Could be...

  • 10:54:14

    REHMErik.

  • 10:54:15

    OLSONThat's a very good question. There was quite a fight over whether food produced by very small producers would be covered by this law. And there is something of a compromise, something -- a provision called the Tester amendment that Sen. Tester included in the final legislation that basically says that if you're a very small producer, you are not going to be covered by certain other protections that are in the law. And that was pretty controversial.

  • 10:54:38

    OLSONThere were some folks that thought that didn't make a lot of sense. And, in fact, some in the produce industry, for example, opposed that provision 'cause they wanted to level the playing field. So in some cases, if a farmer goes to the trouble applying for that exemption and so on, there can be exemptions for the smaller guys.

  • 10:54:55

    REHMInteresting. All right. And finally to Mobile, Ala. Good morning, Steve.

  • 10:55:02

    STEVEGood morning, Diane. Great show as always.

  • 10:55:04

    REHMThanks.

  • 10:55:04

    STEVEFull disclosure. I am a conservative fourth-generation Southern Republican. I'm not a (word?) liberal that actually reads books and believes in science and things like that. But I'm also a lawyer in (unintelligible) involved in some of these (unintelligible) . And one of the things that alarms me is, as you do the show, you look across the country as, you know, this is another example of deregulation gone too far.

  • 10:55:29

    STEVEMay I be so bold to suggest that your guest lawyer, Bill, is being somewhat politically correct and -- 'cause he has to work with the FDA. You know, the FDA, as well as the U.S. Product Safety Commission, all these agencies, they have not only been -- their regulations are weak. And they've basically been defunded and demoralized over the years, particularly during the Bush administration, and just like the use of the Chinese drywall situation. We go to SEC, and you see what happened in Wall Street.

  • 10:55:55

    STEVEAnd they've learned -- the people that are still there have learned that you don't get ahead in these agencies by making noise or complaining about some business or enterprises' business practices. And, you know, just -- as a result of that, what we're dealing is with the social cost, and this deregulation and the lack of regulation had a social cost.

  • 10:56:13

    REHMAll right. Thanks for your call. Richard Williams.

  • 10:56:17

    WILLIAMSThere has been zero deregulation in food safety. Everybody wants to say food -- there have never been any regulations taken off the books. They are enforced. And I want to go back just briefly about seafood. Seafood, we have the model regulation for seafood in the mid-1990s. It had everything that you're going to see in the coming regulations, and so there are still problems in seafood.

  • 10:56:37

    REHMWell, that is the last word. It seems to me we're going to have to wait until after the elections for these rules, as well as so many other things. Erik Olson, Richard Williams, Bill Tomson, Bill Marler, and you heard earlier from Ray Gilmer. Just be careful of what you eat. Thanks for listening, all. I'm Diane Rehm.

  • 10:57:08

    ANNOUNCER"The Diane Rehm Show" is produced by Sandra Pinkard, Nancy Robertson, Denise Couture, Susan Nabors, Megan Merritt, Lisa Dunn and Rebecca Kaufman. The engineer is Tobey Schreiner. Natalie Yuravlivker answers the phones. Visit drshow.org for audio archives, transcripts, podcasts and CD sales. Call 202-885-1200 for more information. Our email address is drshow@wamu.org, and we're on Facebook and Twitter.

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