Last Tuesday a 90-year-old woman passed away, becoming the second death in Spain’s burgeoning listeria outbreak linked to La Mecha branded ‘carne mechada.’
The outbreak has been traced to utensils (slicers? Something lost in translation) used in the preparation of the food products.
Now experts say the bacteria may be present in other products from the Magrudis factory in Sevilla. All its production has been recalled with experts saying at least two other products are at high risk of having been infected.
Medical authorities say this strain of the bacterium is particularly virulent, taking three days to incubate. Normally the incubation period is up to 70 days.
Pathogenic bacteria that stubbornly lurk in some apple-packing facilities may be sheltered and protected by harmless bacteria that are known for their ability to form biofilms, according to Penn State researchers, who suggest the discovery could lead to development of alternative foodborne-pathogen-control strategies.
That was the key finding that emerged from a study of three tree-fruit-packing facilities in the Northeast where contamination with Listeria monocytogenes was a concern. The research, done in collaboration with the apple industry, was an effort to better understand the microbial ecology of food-processing facilities. The ultimate goal is to identify ways to improve pathogen control in the apple supply chain to avoid foodborne disease outbreaks and recalls of apples and apple products.
“This work is part of Penn State’s efforts to help producers comply with standards set forth in the federal Food Safety Modernization Act, often referred to as FSMA,” said researcher Jasna Kovac, assistant professor of food science, College of Agricultural Sciences. “The Department of Food Science at Penn State, through research and extension activities, has an ongoing collaboration with the apple industry, led by Luke LaBorde, professor of food science.”
The research was done in collaboration with the apple industry, in an effort to better understand the microbial ecology of food-processing facilities. The ultimate goal is to identify ways to improve pathogen control in the apple supply chain to avoid foodborne disease outbreaks and recalls of apples and apple products.
In the study, researchers sought to understand the composition of microbiota in apple-packing environments and its association with the occurrence of the foodborne pathogen Listeria monocytogenes. Their testing revealed that a packing plant with a significantly higher Listeria monocytogenes occurrence was uniquely dominated by the bacterial family Pseudomonadaceae and the fungal family Dipodascaceae.
“As we investigated the properties of these microorganisms, we learned that they are known to be very good biofilm formers,” said lead researcher Xiaoqing Tan (upper left), a recently graduated master’s degree student in food science and a member of the Penn State Microbiome Center, housed in the Huck Institutes of the Life Sciences. “Based on our findings, we hypothesize that these harmless microorganisms are supporting the persistence of Listeria monocytogenes because they protect the harmful bacteria by enclosing them in biofilms. We are testing this hypothesis in a follow-up study.”
The findings of the research, published today (Aug. 21) in Microbiome, provide insight into the Listeria contamination problem and may lead to researchers and the apple industry getting closer to solving it, Kovac believes. Equipment in fruit-processing plants — such as brush conveyors — have a poor sanitary design that makes them difficult to clean and sanitize, she pointed out. She and LaBorde plan to work with the apple industry to devise more effective cleaning and sanitizing strategies.
Researchers collected samples in apple-packing facilities in which Listeria monocytogenes has been persistent. They discovered that harmless bacteria may be sheltering the pathogens.
“Following up on these findings, we are experimenting with some of the nonpathogenic strains of bacteria that are not harmful to humans to see whether they can be used as biocontrols,” she said. “Once applied on the surfaces of the equipment in these environments, they may be able to outcompete and suppress Listeria, thus reducing food-safety risks and potential regulatory action. We are still exploring that approach in a controlled laboratory environment. If it proves to be feasible, we would like to test it in apple-packing and processing facilities.”
The challenge presented by microbiota possibly sheltering Listeria monocytogenes is not limited to fruit-processing facilities or produce, Penn State researchers suspect. They will soon begin analyzing microbial communities in dairy-processing facilities to determine the microbial composition and ecology of these environments.
The collaborative outbreak investigation was initiated because of an increase of Listeria illnesses that were reported in June 2019. Through the use of whole genome sequencing, two Listeria illnesses from November 2017 were identified to have the same genetic strain as the illnesses that occurred between April and June 2019.
It is possible that more recent illnesses may be reported in the outbreak because of the delay between when a person becomes ill and when the illness is reported to public health officials. In national Listeria monocytogenes outbreak investigations, the case reporting delay is usually between 4 and 6 weeks.
If you have Rosemount brand cooked diced chicken meat 13mm – ½” (#16305), packdate – 01/21/2019 in your food establishment, do not eat the product or serve it to others
Secure the product and any foods made with the product in a plastic bag, throw it out and wash your hands with soapy water.
We investigated an outbreak of listeriosis detected by whole-genome multilocus sequence typing and associated with packaged leafy green salads. Nineteen cases were identified in the United States during July 5, 2015–January 31, 2016; isolates from case-patients were closely related (median difference 3 alleles, range 0–16 alleles). Of 16 case-patients interviewed, all reported salad consumption. Of 9 case-patients who recalled brand information, all reported brands processed at a common US facility.
The Public Health Agency of Canada simultaneously investigated 14 cases of listeriosis associated with this outbreak. Isolates from the processing facility, packaged leafy green salads, and 9 case-patients from Canada were closely related to US clinical isolates (median difference 3 alleles, range 0–16 alleles). This investigation led to a recall of packaged leafy green salads made at the processing facility. Additional research is needed to identify best practices and effective policies to reduce the likelihood of Listeria monocytogenes contamination of fresh produce.
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. 
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,”  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.
Harvard Law School Forum on Corporate Governance and Financial Regulation
Brian Frawley, Joseph Frumkin and Krishna Veeraraghavan