Weasel Words (AKA Disclaimer)

One humorous disclaimer I saw on a legal blog:

“this is not legal advice, this is a general information blog post on the internet. (And if it's on the internet, it's gotta be true, right? Uh ... no.) If you haven't paid me a retainer, you are not (yet) my client and should not rely on any of this information to make any decisions. The law is complicated. The facts even more so. If I could have learned the law by reading blogs, I'd ask for money back from those three plus years of hell I paid for in law school.”

You can catch F. Bennett Callicoat’s blog and disclaimers at the Tulsa Bankruptcy and Consumer Law blog.

Raw Milk Legal Implications

Bill Marler recently gave a short overview of the legal implications of raw milk. A copy of slides is available here as well additional materials on the topic. Hat tip to Bill Marler for this service.

How to Prepare for an FDA Inspection and Recall

Jim Prevor, the Perishable Pundit, recently posted a valuable article on dealing with recalls and FDA. No company wants to be involved in a recall so prevention is the first strategy, but every company should think through how they would perform in a recall. In particular, how would the firm handle the intense regulatory and media scrutiny. Smart companies will be prepared with a contingency plan. Jim’s article provides a nice sketch of the basic steps involved in putting together such a plan. The full article is available here.

FDA Serious About Food Allergen GMPs

Ricardo Carvajal calls our attention to FDA’s seriousness about food allergen GMPs, “the government is asking a federal district court to enjoin certain manufacturers of protein powder mixes and dietary supplements from further marketing of products alleged to be adulterated under FDC Act section 402(a)(4) due to the manufacturers’ failure to minimize cross-contact with a major food allergen. The complaint makes clear that FDA interprets section 402(a)(4) and 21 C.F.R. Part 110 to require manufacturers to take “all reasonable precautions. . . to ensure that production procedures do not contribute to contamination from any source, including food allergens.”

Hat tip to Ricardo Carvajal for another great blog.

Wal-Mart's Environmental Labeling Changes the Game

Wal-Mart is planning a new environmental labeling requirement for its suppliers. The future label information may provide the product’s carbon footprint, the gallons of water used to create it, and the air pollution left in its wake. Rosabeth Moss Kanter, professor at the Harvard Business School wrote,

Wal-Mart's unilateral decision to put its purchasing and communication power behind going green also shows that a single company using its unique clout can accelerate public action to reduce greenhouse gases and reverse climate change. By rolling out an environmental labelling program disclosing to consumers the environmental costs of making products sold at Wal-Mart, the $401 billion retail behemoth has transformed green standards from nice-to-have to must-have.

The beauty of the Wal-Mart innovation is that it doesn't ask anyone to change anything except the information that is provided and received. If polluters want to keep polluting, they are free to do so as long as they provide that data on their Wal-Mart labels. And if consumers choose to buy from polluters whose labels they can read, they are free to do so. In theory. In practice, of course, we know that suppliers will change their practices to avoid embarrassing disclosures.

Read Rosabeth Moss Kanter whole article, Wal-Mart's Environmental Game-Changer, here.

Kanter is the author of SuperCorp: How Vanguard Companies Create Innovation, Profits, Growth, and Social Good.

Dave Theno had it right - Bill Marler Guest Blog

Secretaries Vilsack and Sebelius should pay attention

Lauren Beth Rudolph died on December 28, 1992 in her mother’s arms due to complications of an E. coli O157:H7 infection - Hemolytic Uremic Syndrome. She was only 6 years, 10 months, and 10 days old when she died. Her death, the deaths of three other children, and the sicknesses of 600 others, were eventually linked to E. coli O157:H7 tainted hamburger produced by Von’s and served at Jack in the Box restaurants on the West Coast during late 1992 and January 1993. Roni Rudolph, Lauren’s mom, I have known for 16 years.

Dave Theno became head of Jack in the Box’s food safety shortly after the outbreak. I too have known Dave for 16 years. However, I only learned recently a significant fact about Dave – one that made me admire him even more – one that I think, not only that all leaders in corporate food safety should emulate, but one that both Secretaries Vilsack and Sebelius should pay attention too.

Dave and I shared the stage at the Nation Meat Association annual convention a few months ago. The NMA is an association representing meat processors, suppliers, and exporters. Dave, spoke just before I did and was rightly lauded as someone who takes food safety to heart. However, it was his story about Lauren Rudolph and his relationship with Roni that struck me. Dave told the quiet audience about Lauren’s death. Dave also told us that the death of Lauren and his friendship with Roni had changed him. He told us all that he had carried a picture of Lauren in his brief case everyday since he had taken the job at Jack in the Box. He told us that every time he needed to make a food safety decision – who to pick as a supplier, what certain specifications should be – he took out Lauren’s picture and asked, “What would Lauren want me to do?”

I thought how powerful that image was. The thought of a senior executive holding the picture of a dead child seeking guidance to avoid the next possible illness or death is stunning, but completely appropriate. I wonder if Secretaries Vilsack and Sebelius do anything similar when they do their work on President Obama’s Food Safety Working Group? If they do not, perhaps they should?

Secretaries Vilsack and Sebelius right now there are hundreds of families struggling right now due to illnesses and death related to food that you oversee that has been tainted with E. coli O157:H7.

Yesterday, I spent time with a family in South Carolina whose 4 year old ate cookie dough and suffered months of hospitalizations, weeks of dialysis and seizures. She faces a lifetime of complications. And, there is a woman in Nevada who is still hospitalized, who has lost a portion of her large intestine, was on dialysis until a few days ago. She faces months if not years of rehabilitation. Both ate cookie dough that was watch over by Secretary Sebelius’s FDA.

Today I sat across the kitchen table with a family who lost their only daughter because she died from an E. coli O157:H7 infection from meat inspected by Secretary Vilsack’s USDA/FSIS. I then visited families in a Cleveland hospital whose children are struggling in their battle against Hemolytic Uremic Syndrome – again E. coli O157:H7 tainted hamburger is to blame.

Secretaries Vilsack and Sebelius you should be like Dave Theno. Run your departments like Dave ran food safety at Jack in the Box. Go meet these families. Sit across their kitchen tables. Go to their child’s hospital room and see more tubes and wires than you can count. Understand what these people have lived though. Take their stories into your heart. It is hard, very hard, but it will give you a real reason to do your jobs.

William D. Marler, Esq.
Marler Clark LLP PS
6600 Columbia Center
701 Fifth Avenue
Seattle, Washington 98104
P: 1-206-346-1890
F: 1-206-346-1898
C: 1-206-794-5043
E: bmarler@marlerclark.com
W: www.marlerclark.com
B: www.marlerblog.com

Team Diarrhea to the Rescue!

Minnesota Senator Amy Klobuchar introduced the Food Safety Rapid Response Act of 2009, S 1269. The bill is intended to enhance foodborne illness surveillance and improve food safety by through more rapid and coordinated response to foodborne disease outbreaks. The bill would direct the Centers for Disease Control (CDC) to promote best practices for foodborne illness surveillance and improve the surveillance capacities of the states.

Like the Emperor’s New Clothes, no one wants to talk about the lack of capacity at many state and local health departments. However, this is not just a state and local issue. Our federal food safety system stands (or falls) on the shoulders of the ability and capacity of the states.

Contrast a few states, like Minnesota, known for fine foodborne disease surveillance. Minnesota has a group of investigators, known as Team Diarrhea, that race into action when there is a suspected foodborne disease outbreak. Minnesota was the first to trace the source of the recent Salmonella disease outbreak to peanut butter from Georgia. Essentially, our federal food safety system depended on people in Minnesota getting sick or dying to detect a national food safety problem that started in Georgia?

S 1269 would help create a more rapid and coordinated response to foodborne illness outbreaks. The bill could possibly lead to the institution of Team Diarrhea nationally.

Senator Klobuchar’s press release.

Hat tip to Cynthia Dizikes in MinnPost.com.