An Opposing View

One of the top experts on the Food Safety Modernization Act is a man whose very name evokes fear and quite possibly hatred in the hearts of food company executives across the country. Bill Marler unquestionably has become the top food safety lawyer in the nation. His Seattle, WA, firm, Marler Clark, handles literally thousands of cases per year.

In fact, after being retained to represent people sickened in the headline-grabbing Jack in the Box and Odwalla juice cases, he decided to found Marler Clark in 1998 to deal with nothing but food safety cases. His firm is usually working on 75 to 100 outbreaks at any one time, he says, and is currently handling a total of 150 cases right now involving by far the leading crops when it comes to food safety problems — leafy greens and sprouts — predominately sprouts.

His firm represented 100 people who sued for damages in the 2006 spinach outbreak, or 95% of the people sickened. Of the five people who died, his firm represented four of them. The only family he didn’t represent elected not to sue, he says.

In the 18 years since he embarked on the infamous Jack in the Box case, for which he won a judgment of $12.5 million for one family, his firm has collected nearly $600 million from defendants. He even has an epidemiologist on the payroll. He has eight attorneys on staff, and two of the original four worked against him on the Jack in the Box case. “By the end of that case they knew more about E. coli than anyone else,” he says.

Marler’s Involvement

These days Marler says he spends half his time as a lawyer and the other half as a food safety advocate. He says he is very familiar with the history of the Food Safety Modernization Act, having worked on the bill for a decade. In fact, he says he was in the offices of Congresswoman Nancy Pelosi (D-CA) and Senator Harry Reid (D-NV) on the Friday before Christmas when it looked like the bill was dead. He says it almost died because of a variety of reasons, but it all came down to politics. Of course, politics is also the reason the bill eventually passed, because the House flipped Democrat when President Obama was elected in 2008, and there were also a lot of high-profile food recalls. Besides spinach, there was the pepper recall that was originally thought to be tomatoes, as well as peanut butter, a case involving Taco Bell, etc.

Marler says all the victims who testified at the Congressional and Senate hearings were his firm’s clients. The reason was simple. “When they wanted a victim, it was easy to call me,” he says. “I flew back (to Washington, DC) two dozen clients in 2009 and 2010 who were either sickened or family members of people who died. We even had a party for those who testified.”

Marler himself testified in 2008. In 2009, the House voted overwhelmingly in favor of the act. Several industry groups joined with consumer groups to push that House bill, which passed in July. But things slowed down because the Senate bill had differences. And in the Senate, health care discussions stopped everything else. After that was resolved, and the Tester-Hagen Amendment was added to placate some of the bill’s opponents, passage quickly followed.

Blameless Growers Benefit

Marler obviously favors the law because of its benefits to consumers. However, he also believes it could be good for growers, pointing to the spinach recall as an example. In the late summer of 2006 his office started getting calls from consumers, and two mentioned they had consumed a certain brand of baby spinach to Marler Clark’s epidemiologist. The firm started calling health departments around the country, and after investigation filed the first lawsuit against the company. Six hours later, says Marler, the FDA issued a recall of all spinach in the U.S. “They threw the whole spinach industry under the bus,” he says. “It makes more sense to tag the guy who caused the problem, not the entire industry.”

Marler notes that there’s a portion of the Food Safety Modernization Act that’s intended to get the Centers For Disease Control and Prevention and FDA to work together to try and avoid recalling the wrong product. That is a boon to growers who happen to grow the same crop fingered in a foodborne illness outbreak, but didn’t personally grow the produce in question. That portion of the act will help growers, but they still need to get out in front of potential problems.

“That would be my biggest suggestion: Do it now and get prepared, because eventually it will be required of you by government,” he says. “People who know what they’re doing are better off doing it themselves than someone from the outside, such as the government.”

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