Produce Safety
OOIDA shines light in dark places as FDA food safety conflict continues
Association invited to testify at FDA hearing

Clarissa Kell-Holland
staff writer

Little did OOIDA member G.W. Monday know that his phone call to Land Line Magazine in September 2006 would send the magazine and the Association on a seven-month quest to find the answers to his questions – resulting in the Association testifying before the U.S. Food and Drug Administration about produce transportation and food-borne contamination.

“I am so glad OOIDA is still trying to get something done about this. I do not want something like this happening to me again,” Monday told Land Line in late March.

At seven months and counting following the E. coli outbreak, many drivers still had not been paid for their loads of recalled and suspect spinach, but some had been reimbursed for their dumping costs.

More questions than answers
On Sept. 14, 2006, during an E. coli outbreak linked to bagged spinach, Monday of Queens City, TX, called Land Line to find out what federal regulations exist for produce truckers hauling the potentially contaminated loads.

The surprising answer – there are none – left produce haulers “holding the bag” and wondering what to do with the potentially tainted produce on their trailers once the product was recalled.
After the initial recall, Land Line received several phone calls from worried truckers asking questions including:

  • “Where do I take the contaminated product when receivers refuse to unload it?”
  • “How do I properly wash out my trailer if I hauled this stuff?”
  • “Are there any regulations that prohibit me from selling my other pallets of produce that were loaded in the same trailer as the recalled bags of spinach?”

Repeated phone calls to the FDA and produce industry resulted in more questions than answers, with the most important one being, “Who’s in charge here – FDA or the produce industry?”

Shining light in dark places
Produce haulers are all too aware of the fact there is a gaping hole in the food supply chain that excludes truckers, who are an integral link in that chain.

Joe Rajkovacz, OOIDA’s regulatory affairs specialist, personally delivered that message on April 13 to the FDA at a public hearing in College Park, MD. He said his mission was to make the agency aware of the conditions truckers face when hauling fresh produce. Rajkovacz knows personally about those challenges, having been a produce hauler for 20 years.

“Focusing fresh produce safety narrowly on E. coli contamination clearly misses other significant entry points of food-borne pathogens that intuitively are implicated in fresh produce safety,” Rajkovacz told the FDA.

After the spinach recall was announced in September 2006, many receivers simply refused any and all spinach trucks that showed up to deliver at their docks. Without any regulations in place to make shippers and receivers financially accountable when a recall is issued, produce truckers facing large financial losses are under economic pressure to “find the quickest dumping solution,” Rajkovacz said in his testimony at the FDA hearing.

Land Line reported that one trucker in Texas was arrested after simply dumping boxes of recalled spinach on the side of the road after the company he drove for told him to get rid of it. Other drivers looked for landfills or dumps where they could pitch the spinach because many had other perishable produce on their trucks that they had to deliver.

Rajkovacz also addressed potential entry points for food-borne pathogens, including the lack of regulations regarding sanitary conditions at loading and unloading facilities that produce truckers face on a daily basis. After using filthy bathrooms or portable facilities with no running water, soap or towels, many drivers are then forced to start stacking pallets of fresh produce.

“The lack of sanitary bathroom facilities and hygienic conditions in which to work is all too common in the fresh produce industry,” he said. “We’ve been forced to work in that filthy world for decades.”

Most fresh produce is intended to be eaten in its raw form. Minimal human handling is important to reduce potential contamination before reaching consumers since there is no “kill” step like there is for cooking meat. In the produce industry, it is common practice for truck drivers or lumpers to manually restack palletized produce onto other pallets.

“We call this ‘fingerprinting’ a load, and coupled with unsanitary toilet and working conditions it without a doubt introduces disease-causing pathogens into the food supply,” Rajkovacz said. “This practice is purely economic in origin, transferring warehouse costs to the trucker and compromising food safety.”

Pallet exchange is another commonplace practice in the produce industry that is based on economics. It not only transfers shipping costs to the trucker, but it can introduce contaminants.

Often, in order to be loaded, truckers are forced to procure pallets from a pallet yard to exchange with a shipper. It is not unusual for produce haulers to be forced to load produce on pallets that are stained with animal blood, contain residue from chemical shipments or have been left outside and have bird or rodent droppings on them.

“This is another practice that compromises food safety,” Rajkovacz said.

In his closing statement, Rajkovacz told the FDA that “the produce industry has exhibited a historical lack of responsibility when dealing with the men and women charged with safely and efficiently hauling America’s fresh produce.”

“It is hard to imagine a solution to fresh produce safety without intervention at the highest level of government,” he said.

Produce industry misses the point

Power struggle continues on whether mandatory regulation or self-regulation is best route

Clarissa Kell-Holland
staff writer

While there appears to be an agreement in the produce industry that new food safety standards for produce are needed, the debate is ongoing about whether a market-based approach or government oversight is the best route to prevent future food-borne illnesses.

Ever since an E. coli outbreak in September 2006 that sickened more than 200 and killed three people was traced back to bad spinach in California, the produce industry and state and federal regulators have been under intense scrutiny.

The scrutiny continues, and in April, another E. coli outbreak was reported in California after seven people who ate at a Souplantation restaurant in Orange County got sick after eating at the chain’s soup and salad buffet in Lake Forest.

Such problems are not uncommon – the FDA’s own Web site states that about 75 million Americans become ill and 5,000 die from food-borne illnesses each year.

Foxes watching themselves
Before any new state or federal rules could be discussed, produce industry leaders said the industry could police itself and they rolled out the voluntary Leafy Green Products Handler Marketing Agreement in California. The voluntary regs quickly got the nod from the California Department of Food and Agriculture and the industry-backed Western Growers Association.

In exchange for voluntary participation in the marketing agreement, companies would pay money to use a certification mark on their produce in exchange for following suggested best practices adopted by the industry-led Leafy Green Handler Advisory Board.

But not everyone in California state government bought into the voluntary regs. State Sen. Dean Florez, D-Shafter, introduced the California Produce Safety Action Plan, consisting of three bills to address problems in the food supply chain, which would have mandatory regulations and enforcement actions. Another round of Senate hearings on his food safety bills was scheduled for late April.

OOIDA, Consumers Union and the United Farm Workers all oppose the CDFA’s voluntary marketing agreement system, which calls for participants to “adhere to specific food safety practices as a condition of sale or purchase under the law,” according to the Leafy Greens Best Practices.

“Industry got what it wanted and it is not a transparent process that adequately addresses all issues related to possible sources of microbial contamination of food,” said Joe Rajkovacz, OOIDA regulatory affairs specialist and a 20-year veteran of produce hauling.

“You can’t let an industry regulate itself – that’s like putting the fox in charge of the hen house.”

Along with OOIDA, Consumers Union and the United Farm Workers have expressed similar concerns about the lack of inclusion and transparency in the CDFA’s self-regulating industry approach.

“A process was utilized that was intended to appear inclusive, but actually excluded all relevant participants in the food supply chain such as field workers, truckers, and consumers,” Rajkovacz said.

“They are excluding organizations and people who handle produce every day that have such insight and knowledge in the area of food safety, and this is a shame. Without field workers who pick the produce, without truckers who transport the produce across the country, and without the consumers who buy the produce, the produce industry would come to a complete standstill.”

The foxes refuse to listen
OOIDA filed comments with the California Department of Food and Agriculture in January related to an industry-led voluntary marketing agreement and marketing order for leafy greens in the state, but those comments went ignored by the CDFA and by the appointed industry-led “leafy greens” board of directors.

Elisa Odabashian, director of the West Coast office of Consumers Union, a nonprofit consumer advocacy group, told Land Line in March she agrees that the produce industry is missing the point by not asking for outside input to develop safer food safety standards that will affect everybody involved in the food chain, not just the growers.

“This marketing agreement that is being pushed through by the industry and by the CDFA is totally being developed behind closed doors without any input from the public or from any outside folks, and this is wrong,” Odabashian said.

“We are interested in making sure there are standards for sanitation and for safety in general, for these products from the field in which these products are grown to the table, and that includes, obviously, drivers.”

The UFW – which was founded in 1962 by Cesar Chavez and represents thousands of farm workers – has also entered the food safety debate. Its president, Arturo S. Rodriguez, is urging its members to speak out and contact their lawmakers on food safety issues.

“To date, farm worker input has been left out of the equation,” Rodriguez said in a letter on the UFW Web site. “Consumer safety is of topmost importance to us.”

James Gorny, vice president of food safety and technology for United Fresh Produce Association, told Land Line he agrees with OOIDA’s position that federal oversight and mandatory regulation are the only ways to deal with improving food safety standards.

“We had a discussion at our board of directors’ meeting in January and basically felt strong regulatory oversight was called for on a national level,” he said. “We feel strong regulatory oversight is needed to make sure it provides confidence to consumers.”

While he said he believes the CDFA’s marketing order and agreement is a “good start” to improving food safety standards, he said it isn’t a long-term solution to the food safety issue.

“Federal regulation is where we want to go with this in making sure all produce is safe,” Gorny said.

Food fight!

‘E. coli attorney’ Bill Marler joins battle for federal oversight of produce industry

Clarissa Kell-Holland
staff writer

Defending victims of food-borne illnesses has been attorney Bill Marler’s primary focus since the 1993 Jack-in-the-Box hamburger E. coli outbreak. Now the food safety advocate has a new perspective on the problems truckers face when they haul potentially contaminated produce.

How long can the produce industry continue to dance around mandatory regulation?

That’s the question Marler posed after reading a news story about the plight of produce haulers on

“To be honest with you, I never realized how wide of a swath has been impacted by the E. coli outbreak,” Marler told Land Line Magazine. “I didn’t even think of the impact on truckers.”

The E. coli outbreak in September 2006 piqued the interest of the Owner-Operator Independent Drivers Association because many produce haulers were stuck with the financial and logistical responsibilities of disposing of potentially contaminated spinach. Some were not paid for their loads that weren’t even part of the recall because no regulations are in place to protect truckers in such situations.

Marler’s law firm, Marler Clark, based in Seattle, has become one of the nation’s foremost law firms representing victims of food-borne illnesses. Marler has been fighting against allowing the produce industry to regulate itself and he has been very vocal on the need for a single federal agency to be in charge of implementing mandatory agricultural and food handling practices.

His firm is representing 93 victims of the 2006 E. coli outbreak, who were sickened after eating bagged spinach. Both Dole Food Co. and Natural Selection Foods, which does business as Earthbound Farm in San Juan Bautista, CA, have been named in the federal lawsuits.

Marler agrees with OOIDA leaders who say the FDA isn’t doing enough to ensure consumer confidence in food safety, and that federal oversight is needed to protect public health.

“Without some uniform standards that are applicable to everybody and more rigorous oversight, this is going to happen again,” Marler said. “It still kind of perplexes me when I go to these hearings and I listen to shippers and growers and hear them say they want a voluntary marketing agreement – basically dancing around regulation.

“But, they never really articulate a clear reason why they don’t want (a mandatory agreement). They are basically telling everybody publicly that they want it strictly enforced, but they want to enforce it themselves, and I think it’s kind of gone past that.”

Marler began litigating food-borne illness cases in 1993, when he represented victims of the highly publicized Jack-in-the-Box hamburger E. coli O157:H7 outbreak. His litigation helped change the U.S. Department of Food and Agriculture’s meat-inspection procedures.

The USDA now has a mandatory Hazard Analysis and Critical Control Point system in place for inspecting meat, and E. coli contamination in meat is down almost 80 percent. But, Marler said, the same stringent procedures must be applied to the produce industry.

In February, Marler was the featured speaker at a luncheon with lettuce and spinach growers. His message to the leafy green growers: “Put me out of business, please.”

“Until the produce industry realizes they must change their practices … I am going to continue to take money from them,” Marler said. “All I have to do is prove their products make people sick.”