Saturday, February 14, 2009

Anatomy of a Peanut Butter Outbreak: The Aftermath

February 14, 2009

One month after Peanut Corporation of America issued the first in a series of four recall notices, and three months after CDC detected the first hint that a multi-state Salmonella outbreak was underway, the fallout from this incident is still expanding in ever-widening ripples across the United States and around the world.

The Victims
As of 9PM (EST) Wednesday, February 11th, CDC reports that nine victims of the Salmonella Typhimurium outbreak have died.

At least 637 cases of salmonellosis have been confirmed to be part of the outbreak. The most recent victim became ill on January 28th. Twenty-three percent of the confirmed outbreak victims have been hospitalized, and the outbreak strain has been recovered from patients in 44 states. One Canadian who traveled to the United States also has been infected.

Ohio has been the hardest hit state in this outbreak with 92 victims, two of whom have died. Both of the dead victims were elderly women. California has reported the second highest total – 76 victims, all of whom have survived. Other states reporting large numbers of outbreak victims include Massachusetts (48 victims), Minnesota (39 victims; 3 deaths), Michigan (35 victims), New York (28 victims) and Virginia (21 victims; 2 deaths). Idaho and North Carolina each have reported one death linked to the outbreak.

The Recalls
Peanut Corporation of America, the source of the contamination, issued a total of three "voluntary" product recalls – on January 13th, January 18th and January 28th  – after FDA and state investigators documented numerous deficiencies at the company's Blakely, Georgia production facility. PCA also was instructed by the State of Texas to recall all products that were shipped from the company's Plainview, Texas facility after numerous sanitary violations were discovered at that location.

Each recall notice that PCA issued prompted a wave of recalls on the part of the company's many customers – not to mention other companies and distributors supplied by those customers.  The recalls have extended beyond the borders of the United States to include Canada, Mexico and New Zealand, as well as countries in Asia and Europe. Even pet treats have been recalled.

The Legal Fallout
At least four victims or their families already have filed lawsuits against Peanut Corporation of America. But the company won't be paying a penny. Yesterday, PCA declared itself insolvent and filed a petition for Chapter 7 bankruptcy. 

Victims seeking compensation for their suffering will have to turn to PCA's insurer, Hartford Casualty Insurance Company. The insurer, however, has filed its own lawsuit in federal court seeking a Declaratory Judgement from the court as to whether or not claims arising out of this outbreak are covered under the liability and umbrella insurance policies that Hartford issued to PCA. Hartford asserts in its petition that,

"An actual controversy exists between Hartford and PCA with respect to one or more issues regarding the coverage afforded to PCA under the Policies with respect to the Salmonella Claims."

While the petition has not mentioned the specific grounds for dispute, logic dictates that Hartford will contend that PCA's own negligence was the source of the contamination and that this outbreak, therefore, is not an insurable incident.

Where can outbreak victims go for relief? The list is shrinking rapidly. The outbreak strain was isolated from samples of King Nut peanut butter and from at least one Kellogg product. Victims who consumed those products may be able to obtain compensation from King Nut or Kellogg – or their insurers. But outbreak victims who became infected as a result of eating some other contaminated peanut product will be out of luck.

The Regulatory Fallout
Certain members of Congress have been trying for many years to push for reforms of FDA, USDA and the country's food safety system. The last serious effort to reform the food safety system occurred during the Clinton era. That efforts foundered in the sea of deregulatory sentiment that prevailed in Washington during the Bush administration. 

President Obama has said that food safety will be a priority in his administration, and Tom Vilsack, the new Secretary of Agriculture, has pronounced his support for a single food agency. It would be nice to see some progress in this area, but any changes must be carefully thought out. 

What Next?
Further increases in the number of confirmed outbreak victims, possibly including more deaths. This outbreak is far from over.

More recalls, as a result of the mandated recall of peanut products from PCA's Plainview, Texas facility.

More calls from regulators, food safety activists – and even from the food industry – for a review of the country's food safety system.

Depressed sales of all peanut butter and peanut butter products until the memory of this outbreak fades.

More outbreaks. Summer – peak season for hamburgers and fresh salads – is around the corner.

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