Doug Powell

About Doug Powell

A former professor of food safety and the publisher of barfblog.com, Powell is passionate about food, has five daughters, and is an OK goaltender in pickup hockey. Download Doug’s CV here. Download C.V. »

Faith-based food safety sucks

In a decision issued [June 19, 2019] in Marchand v. Barnhill et al., No. 533, 2018 (Del. June 19, 2019), the Delaware Supreme Court reversed the dismissal of a stockholder derivative lawsuit against the members of the board of directors and two officers of Blue Bell Creameries USA, Inc.

The lawsuit arose out of a serious food contamination incident in 2015 that resulted in widespread product recalls and was linked to three deaths. The Delaware Supreme Court, applying the “duty to monitor” doctrine enunciated in In re Caremark International, Inc. Derivative Litigation, 698 A.2d 959 (Del. Ch. 1996), and noting the very high hurdle to claims under it, nonetheless ruled that the plaintiff had adequately alleged the requisite bad faith by the members of the Blue Bell board.

Plaintiff did so by using information obtained in a Section 220 books and records demand to show facts supporting their contention that the Company did not have in place “a reasonable board-level system of monitoring and reporting” with respect to food safety, which the Court deemed to be “a compliance issue intrinsically critical to the company’s business.”

After concluding that “food safety was essential and mission critical” to Blue Bell’s business, the Supreme Court ruled that bad faith was adequately pled by alleging “that no board-level system of monitoring or reporting on food safety existed.” The Court thus declined to dismiss a claim that the directors breached their duty of loyalty, potentially exposing directors to non-exculpated (and potentially not indemnifiable) monetary damages.

In light of the Blue Bell decision, boards of directors should review carefully their board processes and procedures to ensure that “reasonable compliance system and protocols” are in place with respect to “safety and legal compliance” and other regulatory and business threats that may pose significant risks for their particular company.

Equally important, boards should document the procedures followed to identify significant risks, including advice from management, counsel and other advisors, as well as the processes and procedures implemented to provide for board reporting and appropriate supervision of these risks, and maintain written records of the implementation of these processes and procedures in practice. The principal basis upon which the Court in Blue Bell found the record to support the complete failure to impose any board-level “system of controls” with respect to food safety was the absence of any written board procedures or documented discussion on the topic, and the lack of any mention of food safety in board minutes in periods before the food contamination outbreak, despite previous food safety issues that allegedly had arisen in previous years, including positive tests for listeria in Company facilities beginning in 2013.

The Blue Bell decision makes clear that oversight with respect to these kinds of issues is a board-level responsibility, and goes beyond mere compliance with laws. The Delaware court opined that “the fact that Blue Bell nominally complied with FDA regulations does not imply that the board implemented a system to monitor food safety at the board level.”

“In short,” the Delaware Supreme Court ruled, “to satisfy their duty of loyalty, directors must make a good faith effort to implement an oversight system and then monitor it.” While “routine regulatory requirements, although important, are not typically directed at the board,” companies should ensure that they have written processes and procedures in place for the board to be timely informed about, and to monitor regularly, compliance, safety and business developments that are important to the company, or may be viewed as critical to the company in hindsight. [1]

This decision, while only on a motion to dismiss, illustrates the continued importance of the Caremar kdoctrine as a strand of Delaware law governing the conduct of directors. While the burden for withstanding a motion to dismiss a Caremark claim is high, and the theory remains “possibly the most difficult theory in corporation law upon which a plaintiff might hope to win a judgment,” [2] it can be met. Caremark is an important tool in the Delaware jurisprudential arsenal for enforcing what Delaware courts view as reasonable director conduct, and when applied sends a powerful message because of the potential it creates for personal director liability.

11.jul.19

Harvard Law School Forum on Corporate Governance and Financial Regulation

Brian Frawley, Joseph Frumkin and Krishna Veeraraghavan

https://corpgov.law.harvard.edu/2019/07/11/bad-faith-monitoring-on-food-safety-issues/

Indian takeaway which had no sink and served raw chicken ordered to pay £42K in UK

Latifa Yedroudj of the Mirror reports an Indian takeaway boss has been ordered to pay £42,000 in fines after food hygiene inspectors found his restaurant did not have a sink.

Mr Biryani restaurant in Slough, Berkshire has been slammed for breaching food hygiene requirements 10 times over the past two years since the eatery opened for business.

Owner Santosh Ragalpavi Balasubramaniam, 37, from Maidenhead, Berks has been slapped with staggering fines after inspectors found his chefs did not have a sink to wash their hands and served undercooked chicken.

The restaurant was also ordered to dispose of all of its food and disinfect the premises after sewage water flooded the basement.

Norovirus sucks

Introduction Norovirus outbreaks frequently occur in communities and institutional settings acquiring a particular significance in armed forces where prompt reporting is critical. Here we describe the epidemiological, clinical and laboratorial investigation of a multicentre gastroenteritis outbreak that was detected simultaneously in three Portuguese army units with a common food supplier, Lisbon region, between 5 and 6 December 2017.

Methods Questionnaires were distributed to all soldiers stationed in the three affected army units, and stool specimens were collected from soldiers with acute gastrointestinal illness. Stool specimens were tested for common enteropathogenic bacteria by standard methods and screened for a panel of enteric viruses using a multiplex real-time PCR assay. Food samples were also collected for microbiological analysis. Positive stool specimens for norovirus were further genotyped.

Results The three simultaneous acute gastroenteritis outbreaks affected a 31 (3.5%) soldiers from a total of 874 stationed at the three units and lasted for 2 days. No secondary cases were reported. Stool specimens (N=11) were negative for all studied enteropathogenic agents but tested positive for norovirus. The recombinant norovirus GII.P16-GII.4 Sydney was identified in all positive samples with 100% identity.

Conclusions The results are suggestive of a common source of infection plausibly related to the food supplying chain. Although centralisation of food supplying in the army has economic advantages, it may contribute to the multifocal occurrence of outbreaks. A rapid intervention is key in the mitigation of outbreak consequences and in reducing secondary transmission.

Simultaneous norovirus outbreak in three Portuguese bases in the Lisbon region, December 2017

Journal of the Royal Army Medical Corps

António Lopes-João1, J R Mesquita2,3, R de Sousa4, M Oleastro4, C Penha-Gonçalves1and M S J Nascimento3,5

http://dx.doi.org/10.1136/jramc-2019-001242

https://jramc.bmj.com/content/early/2019/07/04/jramc-2019-001242

11 sick: New York state investigating Cyclospora outbreak

Bethany Bump of the Times Union writes that New York state and local health departments are investigating an outbreak of cyclosporiasis in the Capital Region.

The gastrointestinal illness, which can spread through contaminated food and water, has been confirmed in 11 people so far.

Symptoms began around mid-June, and several of the patients reported eating at the Italian American Community Center in Albany, Prime Life Restaurant at the Beltrone Senior Living Community Center in Colonie, and a private buffet held at Union College in Schenectady, state health officials said.

While cyclosporiasis is endemic in some areas of the world, outbreaks in the U.S. are often associated with imported fresh produce that have been contaminated with a fecal parasite known as Cyclospora cayetanensis.

State health officials say there is no indication that the parasite was spread by poor food handling or preparation at local establishments, which are cooperating with the investigation. Instead, contamination often occurs prior to arrival at food distribution centers and restaurants, they said, and is not easily removed by standard rinsing.

Additional dining establishments may be identified as the investigation continues, they added.

Mr. Poop: Mystery serial pooper strikes in Japan

Jackie Salo of the NY Post writes that Tokyo authorities are searching for a mystery pooper who repeatedly has left feces in the same shopping district.

The male perpetrator known as “Mr. Poop” has reportedly relieved himself on the streets of the Akihabra district on at least 10 occasions over the last three months, according to the Tokyo Reporter.

In one incident, the mystery pooper, who is believed to be in his 30s, was caught with his pants down as he fled. His dropped trousers were black and he was carrying a blue backpack, witnesses said.

Nearby business owners are sick of his crap.

Gassy suspect caught by police after letting out loud fart in Missouri

I never tire of fart stories.

KXAN reports law enforcement in Missouri are sharing the unlikely way they managed to capture a suspect wanted for possession of a controlled substance.

The Clay County Sheriff’s Office says the man was hiding but passed gas loudly enough that it gave away his location.

The sheriff tweeted about the incident, saying “if you’ve got a felony warrant for your arrest, the cops are looking for you and you pass gas so loud it gives up your hiding spot, you’re definitely having a (poop emoji) day.”

The City of Liberty thanked the sheriff’s office for “airing out a wanted person’s dirty laundry.”

FDA investigating contaminated pig ear treats connected to Salmonella

One of daughter Sorenne’s chores is to feed our two cats every night, with their special anti-neurotic food.

And every night I say, wash your hands.

Same with Ted the Wonder Dog and treats.

With the recent announcements of the Food and Drug Administration (FDA) and the Centers for Disease Control and Prevention (CDC) investigating contaminated Pig Ear Treats connecting to Salmonella, Pet Supplies Plus is advising consumers it is recalling bulk pig ear product supplied to all locations by several different vendors due to the potential of Salmonella contamination. Salmonella can affect animals eating the products and there is risk to humans from handling contaminated pet products, especially if they have not thoroughly washed their hands after having contact with the products or any surfaces exposed to these products.

Testing by the Michigan Department of Agriculture and Rural Development revealed that aging bulk pig ear product in one of our stores tested positive for Salmonella. We have pulled bulk pig ear product from the shelves at all of our stores and have stopped shipping bulk pig ears from our Distribution Center. We are working with the FDA as they continue their investigation as to what caused the reported Salmonella related illnesses.

Dozens of Swiss soldiers hit by vomiting bug, 4 in critical condition

The Straits Times reports more than 40 military staff and recruits at an academy in central Switzerland were taken to hospital on Thursday (July 4) after they suddenly fell violently ill, the government said.

In a statement, the Swiss defence department said that on Thursday afternoon, 43 recruits and members of the Jassbach academy in Linden, in Bern Canton, suddenly suffered from acute gastrointestinal problems, with diarrhoea and vomiting.

Iceland reports 4 STEC infections in Arnessysla county children

Outbreak News Today reports Iceland health officials have reported four pediatric Shiga-toxin-producing E. coli (STEC) cases. Officials say all the children are from the capital of Reykjavik; however, all have probably been infected in Árnessýsla county or, more specifically, in Bláskógabyggð.

The source of the infection is unknown at this time. The Icelandic Food and Veterinary Authority and the South Iceland Health Inspectorate are now working to analyze the origin of the infections and stop further spread.

My brain hurts

It’s a strange thing having your brain disappear.

Amy has encouraged me to write about it.

I’m not sure I can.

I was crying on the phone with my parents the other day, talking about how my grandfather started showing signs of Alzheimer’s at 56 (my age).

It’s emotionally complex and I’m not sure how to handle it.

But it’s happening.

I watched it in my grandfather, I know it’s happening to me.

And my 77-year old mother is going to be here in a couple of days after making a 30-hour flight half-way around the world to see her sick son.