The recent supreme court decision on the deadliest foodborne disease outbreak in Canadian history

Gladys Osien and Ron Doering from Gowling WLG write in the latest Food in Canada that the listeriosis outbreak linked to cold cuts from a Maple Leaf Foods plant in Toronto in 2008 resulted in 57 confirmed cases and 22 deaths. It was the deadliest foodborne disease outbreak in Canadian history. The recall reportedly cost the company $20 million.

A class action lawsuit from affected consumers and their families was settled quickly by Maple Leaf and its insurance company. But that was not the end of the matter. To carry out extensive sanitation, the plant was closed for several weeks with the result that retail customers and distributors did not obtain their usual supply. 424 Mr. Sub franchise operators sued Maple Leaf for lost sales and damage to reputation. In November 2020, the Supreme Court of Canada in a 5-4 majority decision dismissed the case against Maple Leaf with important implications for Canadian food companies.

The question before the Court boiled down to whether Maple Leaf owed the requisite duty of care to the franchisees, a necessary step in establishing whether the franchisees have the right to recover damages in the tort of negligence. The Court held that Maple Leaf did not owe such a duty, especially for the protection of purely economic interest.

A duty of care must establish above all else what the law calls proximity. The Court held that the Mr. Sub franchisees failed to establish the requisite qualities of closeness and directness between the parties. (You can see there is a lot of discretion here.) The Court instead determined that the proximity, established by the responsibility and undertaking to supply meat fit for human consumption, and the rights to receive a supply of safe goods was between Maple Leaf and consumers, not the franchisees. The court reinforced the need for proximity to establish duty of care.

A key factor in the Court’s ruling was the fact that the franchisees could have protected themselves in contract law. There were multipartite arrangements but these did not specifically address the liability for economic loss in the event of a failure to supply product. The Court was reluctant to impose a duty of care in circumstances where the parties could have protected themselves through contracts.

The decision in 8871682 Ontario Inc v. Maple Leaf Foods Inc 2020 SCC 35 has some important lessons for Canadian food companies.

Review supplier warranty agreements: The older of the authors remembers being quite surprised 20 years ago to learn that many large Canadian food companies didn’t even have such agreements. They had longstanding handshake or simple purchase arrangements but did not have legally-drafted contracts to clarify rights and responsibilities in the case of a recall, for example.

One company did not even realize that its main product had 22 ingredients and any one of them could cause a huge recall with serious economic cost. And suppliers too have to be careful; a manufacturer may insist that a supplier undertake to compensate for any and all losses from a voluntary recall, a liability that might far exceed the value of the sale.

Review insurance coverage: Over the years several of our clients have been surprised by wording in their policies. In one case, a claim for losses from a large recall was denied because the client had failed to fully meet Good Manufacturing Practices (GMPs) as the policy required even though another negligent party was the principal cause of the product contamination.

Review sourcing practices: Many supplier warranty agreements rely on audits to ensure compliance with the agreement. However, audits are notoriously unreliable, particularly if the product or ingredient is sourced outside Canada. A supplier may be meeting all GMPs on the Tuesday when the auditor is there but not on the Wednesday after he’s gone. After learning this the hard way, some companies source from domestic suppliers even if it would be cheaper to get the ingredient from abroad.

Food companies should not expect to recover certain economic losses from manufacturer recalls, unless they are protected by contract: A negligence action against a manufacturer for economic losses that are unconnected to a physical or mental injury, or to physical damage to property (ie. purely economic) are rarely rewarded in court. Courts do not accept that manufacturers owe a broad duty of care to distributors.

Every Canadian food company should review this case with its lawyer.

Ron Doering BA, LLB, MA, LLD is counsel and Gladys Osien BSc, MSc, JD is an associate in the Ottawa offices of Gowling WLG.

Test and ye shall find: Listeria in Blue Bell ice cream, again

A supplier of cookie dough that Blue Bell Creameries blamed for a possible listeria contamination of some of its ice cream products said Thursday that its product tested negative for the pathogen before it was sent to the Texas-based company.

listeria-blue-bellBlue Bell announced Wednesday it was recalling select flavors of ice cream distributed across the South and made at its Sylacauga, Alabama, plant after finding chocolate chip cookie dough from a third-party supplier — Iowa-based Aspen Hills Inc. — that was potentially contaminated with listeria.

Blue Bell halted sales, issued a voluntarily recall of all its products in April 2015 and shut down its three plants due to bacteria contamination that was linked to 10 listeria cases in four states, including three deaths in Kansas. The company, headquartered in Brenham, about 70 miles outside Houston, resumed selling its products about four months later. Before resuming production, the company said it had implemented new cleaning and sanitizing procedures at its facilities, as well as new testing programs and new employee training.

The iconic ice cream brand is beloved in Texas, where people impatiently awaited its return to store shelves after the recall.

No illnesses have been reported from the latest recall of ice cream distributed in Alabama, Florida, Georgia, Kentucky, Louisiana, Mississippi, North and South Carolina, Tennessee and Virginia, Blue Bell said.

Blue Bell said on Thursday in an email to The Associated Press that it found listeria contamination in packages of cookie dough ingredient received from Aspen Hills.

But a statement from Aspen Hills said its cookie dough product tested negative for listeria before it was shipped to Blue Bell and that the “positive listeria results were obtained by Blue Bell only after our product had been in their control for almost two months.”

Aspen Hills said that Blue Bell is the only customer who received the cookie dough product “included in our voluntary recall.” Blue Bell has been a customer of Aspen Hills since January.

Know what suppliers do for food safety; poaching on the rise in UK

Last Thursday I spent my morning with some really passionate folks who run emergency food agencies like church food pantries, soup kitchens and transitional homes. These agencies do really important work to help folks in need – especially those who can’t access food.

During the workshop we talked about the risks of receiving food donations from people who want to help but may not be great at food safety. Knowing your suppliers and what they do to address hazards (whether they are commercial producers, well-meaning amateurs, or poachers) is good food safety management.MDH_Deer_4031490_860x466

According to the Western Gazette, meat from poachers in the UK is making it’s way to dinner tables.

Police have asked residents to be on the lookout for meat acquired through illegal poaching and have warned that eating such meat can result in diseases such as Tuberculosis and E.coli.

In an effort to curb illegal poaching, police have joined forces with a number of agencies including South Somerset District Council to combat poaching in the region head on.

The South West Anti-Poaching Group now has agencies working hard together to share information and identify those catch poaching.

The group’s Stop Poaching campaign encourages the public to report poaching and report where the meat is going, where it is being butchered and where it is being sold.

Portfolio holder for environmental health at the district council Carol Goodall said: “The last few years have shown that poaching is not about the lone rural rouge taking one for his larder, there are those who are taking deer, fish and livestock which inevitably end up in the food chain be it via restaurants, hotels or via a meat supplier.

We trusted suppliers? California caterer faces lawsuits

Six people have filed lawsuits against Coconut Joe’s, a Bakersfield, California, restaurant and catering company, after 36 people became ill days after consuming its food. Most of them had attended a birthday party it had catered.

coconut.joesThe lawsuits were filed last fall and early this year following a Sept. 14, 2014, 90th birthday party for a member of Crossover Church of Rosedale, where the party took place. The hosts served mesquite grilled chicken from Coconut Joe’s, whose restaurant is at 4158 California Ave.

All of the civil cases are pending in Kern County Superior Court. A case management conference is scheduled for May 5. No trial date has been set.

Owner Joe Coughlin blamed the illness on Jordano’s, a wholesale food and beverage supplier based in Santa Barbara County that the restaurant was trying out for the first time the weekend of the party.

That was a “test run” of Jordano’s, which was trying to woo the restaurant’s business from a competitor, Coughlin said. He had not purchased chicken from Jordano’s previously and had already decided not to use the company again when word reached the restaurant that some party guests were getting sick, he said.

“In 28 years, we hadn’t had any problems … and we haven’t had any problems since,” Coughlin said, adding that he felt “caught in the middle” by a food safety gap that was beyond his control.

“That industry is heavily regulated,” he said. “We trusted them.”

Jordano’s, which Coconut Joe’s named in cross complaints dated April 17, did not return several telephone calls requesting an interview. In the court filing, Coconut Joe’s asked the court to make Jordano’s pay for any sum awarded to plaintiffs.

Jordano’s does not raise chickens. The company sells chicken raised elsewhere.

The California Department of Public Health tried to trace the chicken to its source and said based on records and coded packaging, it “most likely” came from Holmes Foods Inc.

Donna Fenton, director of Kern County Public Health Services’ Environmental Health Division, said “It was a little complicated because there was food brought in, too, like a pot luck, but there were people who had consumed food at Coconut Joe’s who had not been at the party, so while we can’t say with 100 percent certainty it was Coconut Joe’s chicken, because of the number of cases we can presume that that was the source of contamination.”

Ten restaurant inspections were conducted between Sept. 22, 2014, and Oct. 27, 2014. The county also questioned 36 customers who reported illness and tested stool samples from six of them.

Five samples came back positive for two different strains of the disease: four for salmonella serogroup B and one for salmonella serogroup A-1, according to the health department.

Some supply chain: Organic café in Australia closed after reports of insect contamination, food from unlicensed suppliers

Health inspectors have ordered the closure of the cafe at Petty’s Orchard after complaints of something a little too natural in its baked goods.

yarraorganics1Manningham Council demanded an immediate shutdown of the rustic Yarra Organics cafe, run by John and Nancy Mustafa, in response to a complaint about insect contamination in food.

Council officers visited the heritage cafe, which sold organic pies, pasties, cakes, biscuits and coffees, and found that food sold there had been bought from unregistered businesses and was in breach of food safety standards.

Council chief executive Joe Carbone said officers were only recently made aware of the cafe, which according to reviews online, has been open since at least June 2012.

The family, which has run the apple orchard for more than 15 years, said no food was prepared on site — and there wasn’t even a kitchen.

“We have been forced to close the cafe when we do not even operate an oven or stove on the premises,” Mrs Mustafa said.

“It’s affected our reputation and it’s been a great loss.’’

The Petty’s Orchard Templestowe Facebook page has called on the public to complain to the council about the closure.

Petty’s Orchard Templestowe

“Petty’s organic apple farm has just been closed down by Manningham city council templestowe because of having a café on premises. Please help by sending a complaint to PLEASE SHARE AND HELP THE FIGHT!!”

Petty’s is one of Melbourne’s oldest commercial orchards and is on land owned by Parks Victoria.

Sushi eaters rejoice; slime from India; 141 sick

The sushi slime, or tuna backmeat that has now been linked to 141 confirmed Salmonella illnesses, up from 116, originated at a tuna processing facility in India.

Sushi eaters, you thought you were eating what? The U.S. Food and Drug Administration (FDA) has conducted a traceback of tuna from four of the outbreak clusters, in Connecticut, Rhode Island, Texas, and Wisconsin, and found that all four received the same imported frozen raw Nakaochi Scrape tuna product from a single tuna processing facility in India.

Chapman and I chatted today – with his kids, extended family, burgeoning home canning career – he had to escape the Food Safety Summit in D.C. to catch up. He told me one of the industry types said everyone uses this stuff, which has helped propel the popularity of sushi eating.

The U.S. Centers for Disease Control reported today the number of confirmed Salmonella Bareilly linked to this outbreak has increased to 141 from 20 states and the District of Columbia.

The number of ill persons identified in each state is as follows: Alabama (2), Arkansas (1), Connecticut (6), District of Columbia (2), Florida (1), Georgia (6), Illinois (13), Louisiana (3), Maryland (14), Massachusetts (9), Mississippi (2), Missouri (4), New Jersey (8), New York (28), North Carolina (2), Pennsylvania (6), Rhode Island (5), South Carolina (3), Texas (4), Virginia (8), and Wisconsin (14). 21 ill persons have been hospitalized, and no deaths have been reported.

Big or small, if you sell food, know what you’re selling, even organic

Nancy Shute of NPR describes the Jones’ Mock Salt recall as a collision of two distressing trends: contamination of herbs and spices, and safety issues with organic products.

It’s made by June Jones, a hairdresser in Tacoma, Wash., who invented the seasoning a few years ago, after one of customers complained that the salt-free seasonings in the supermarket tasted terrible. Her little start-up has been a success.

But one of the ingredients in Jones’s secret recipe is organic celery seed. And that’s the source of the trouble.

Over the past few months Safeway and other big retailers have recalled organic celery seed because a batch of the seeds positive for salmonella, which can cause fatal infections. No illnesses have been reported, but the suspect seeds were distributed from last May through December.

Recalls and outbreaks caused by contaminated herbs and spices are not uncommon. Hundreds of people in 44 states fell ill with salmonella in 2009 and 2010 after eating Italian-style sausage. The culprit was red and black pepper used to season the meat.

We called up June Jones to find out what went wrong. "My supplier actually sent to me a recall letter," she said. "I pulled everything off the shelves in December, and recalled online orders. It’s very hard."

Her business will survive, she says, but she has taken a big hit financially. And she’s worried because most of her customers use salt substitute because they have health problems.

"It was very disturbing to me. I supply to a heart transplant patient in Minnesota," Jones says. "I take every precaution myself as a manufacturer to make sure my product is totally safe, and I expect other people do to that, too."

Because spices can be contaminated with bacteria and insects, big retailers routinely irradiate spices to kill pathogens.

We asked Jones if the celery seed she bought was irradiated. "Irradiated? I didn’t ask about that. I made my product from products that are supposed to be safe."

So we called up her supplier, Starwest Botanicals of Rancho Cordova, Calif. Lisa O’Keeley, the customer service supervisor, told us that the firm had found out about the contamination after a manufacturer using their seeds tested a batch and found salmonella.

"Typically all of our products get run through a full gamut of testing by our quality assurance department," O’Keeley told The Salt. "When that product was approved, there was no evidence of salmonella at the time."

The seeds in question came from Egypt, which also happens to be the source of the tainted fenugreek sprouts that were linked to the E. coli outbreak in Germany last year.

O’Keeley says her Egyptian seeds were given an organic certification by an outside inspector. "We have very strict guidelines on what we can call certified organic. "

Were the seeds irradiated? "We won’t purvey irradiated herbs," Keeley said. "Even if it’s not organic we don’t."

But organic certification doesn’t measure food safety; it’s only about how a food was grown. Recalls of organic tomatoes, lettuce, and other produce for contamination with salmonella and other deadly pathogens are, alas, common.
Organic foods have even spread botulism — like the Italian stuffed olives we covered last year.

"Consumers think organic is safer," says Doug Powell, a professor of food safety at Kansas State University. "But it doesn’t. It’s just a word. It really doesn’t mean much aside from how it was grown."

He should know; he researches outbreaks, and covers them on barfblog, a go-to source on all things icky in food safety.

He doesn’t have much sympathy for June Jones’s situation, particularly since there’s been an explosion of small food producers like her in recent years.

"If you’re going to sell to the public, you’d better know what you’re selling. Whether she thinks she’s part of the industry or just a small little producer, it doesn’t matter. You make people barf, they’re doing to come after you."

E. coli outbreak linked to Costco cheese samplers; 25 sick

In 2004, I spent a week at a cottage with a couple of my children in Eastern Ontario near Sandbanks Provincial Park on Lake Ontario. Lovely spot.

One rainy day, we toured around and ended up at a cheese shop. They produced the cheese in the factory at the back, and had a charming market outlet that seemed to trap tourists like bees on sap.

Upon entering the store, a sign declared, “HACCP – A food safety program; Hazard Analysis Critical Control Pont.” Cool. I asked one of the staff what it meant. She said she didn’t know. ??But beside the HACCP proclamation was a sign that read, “Public bathroom is out of order; for your convenience there is a blue Johnny on the spot behind the building.”?

No handwashing facilities or sanitizer. I watched people go to the porta potty and then come into the cheese shop and do what people do at quaint cheese shops: stick their unwashed hands into shared samples of curds (that’s one of my daughters looking disgusted in the middle, right, not because of the practice, but because I have to take pictures and be a food safety geek everywhere we go). HACCP really doesn’t mean much unless there is a culture of food safety amongst the employees and everyone involved in making a product, like cheese or deli meat.??

These public sampling stations can be cross-contamination nightmares. But the best hygiene won’t prevent food safety foul-ups when the product itself is contaminated.

Multiple sources are reporting tonight that Arizona and four other states reported cases of E. coli O157 in cheese products sold in Costco stores in October.

Twenty-five cases of Escherichia coli were confirmed by officials, 11 in Arizona lone, according to a statement issued Thursday by the Arizona Department of Health Services.

The outbreak appears to have been associated with cheese available for purchase at Costco "Cheese Road Shows," and Costco was working with state officials to remove the tainted product from its stores.

Early data from health officials suggests that Dutch-style Gouda cheese is the culprit. Costco is cooperating with the investigation: they have removed all suspect products from shelves and are notifying customers who purchased cheese from the road show.

A U.S. Food and Drug Administration press release states:]

• Bravo Farms Dutch Style Gouda cheese, (Costco item 40654) offered for sale and in cheese sampling events at Costco Wholesale Corporation (Costco) locations is preliminarily linked with an outbreak of E.coli O157:H7 infections.

• Consumers who have any of this cheese should not eat it. They should return the cheese to the place of purchase or dispose of it in a closed plastic bag and place in a sealed trash can to prevent people or animals, including wild animals, from eating it.

• Most people infected with E. coli O157:H7 develop diarrhea and abdominal cramps, but some illnesses may last longer and can be more severe. While most people recover within a week, some may develop a severe infection. Rarely, as symptoms of diarrhea improve, a type of kidney failure called hemolytic uremic syndrome (HUS) can occur; this can happen at any age but is most common in children under 5 years old and in older adults. People with HUS should be hospitalized immediately, as their kidneys may stop working and they may be at risk for other serious health problems.

• As of Thursday, November 4, 2010, 25 persons infected with the outbreak strain of E. coli O157:H7have been reported from five states since mid-October. The number of ill persons identified in each state with this strain is as follows: AZ (11), CA (1), CO (8), NM (3) and NV (2). There have been 9 reported hospitalizations, 1 possible case of hemolytic uremic syndrome (HUS), and no deaths.

Costco may need to check its suppliers. Again.

Control of contamination of fresh produce in guacamole and salsa starts on the farm

I was with this girl once in my younger days and we were driving north somewhere in Ontario. She had previously consumed a bunch of guacamole and a few beverages, and it wasn’t long before she was vomiting the most vile smelling guacamole barf.

I’ve never eaten the stuff again (although people in the current household like it, as seen in this nearly empty bowl of guacamole photographed in the most attractive manner I could, last night).

Sol noted yesterday the U.S. Centers for Disease Control reported nearly 1 out of every 25 restaurant-associated foodborne outbreaks with identified food sources between 1998 and 2008 can be traced back to contaminated salsa or guacamole, more than double the rate during the previous decade.

Improper storage and worker contamination accounted for half the outbreaks, but, as noted by one of the researchers,

"Salsa and guacamole often contain diced raw produce including hot peppers, tomatoes and cilantro, each of which has been implicated in past outbreaks."

That part was sorta downplayed in the press release, but it shouldn’t be. The great salmonella outbreak of 2008 involved jalapeno peppers arriving contaminated at restaurants.

Food safety starts on the farm.

Backyard gardens supplying fancy restaurants in L.A.

During a visit to a large, international city, I was hanging out with a public health type, who pointed out some row housing visible from the building we were in, and each one seemed to have a decent-sized garden. He said those gardens supply a lot of the produce to the high-end restaurants in the city. And they all use night soil.

Human poop.

I wonder what kind of controls those fancy restaurants in Los Angeles are employing as the availability of backyard entrepreneurs for meat and produce increases.

As reported by the Los Angeles Times,

Locking up his station wagon, the one with the scratched paint and unpaid bills covering the floor mats, Cam Slocum crossed the parking lot and stepped into the kitchen of the swanky French restaurant Mélissein Santa Monica.

A cook set down his knife and walked over to greet the stranger. Slocum held out a Ziploc bag filled with lettuce.

"Hi," said Slocum, 50, his deep voice straining to be heard. "I grow Italian mache in my backyard. It’s really good, only $8 a pound. Would you like to buy some?"

A few feet away, chef de cuisine Ken Takayama glanced curiously at the lanky stranger in jeans and a worn plaid shirt. He’s heard this sort of pitch before (Takayama didn’t buy any).

"Every day, every week, it’s something new," Takayama said. "You name it, they have it."

Since the economy took a dive three years ago, Takayama and others say they’ve seen more and more people showing up unannounced at restaurants, local markets and small retailers, looking to sell what they’ve foraged or grown in their backyards.

No one keeps track of the number of people selling their homegrown bounty, but scores of ads have cropped up on Craigslist across the country, hawking local produce, home-filtered honey and backyard eggs.

Laura Lawson, an associate professor of landscape architecture at the University of Illinois at Urbana-Champaign says the trend harkens back to the U.S. depression of 1893, when cities encouraged owners of empty lots to let unemployed people farm them and sell the excess produce.

She said that changed during the Great Depression of the 1930s, when civic leaders, reluctant to create competition for struggling farmers, advocated gardening for food — not profit.

In Los Angeles, it’s unclear whether such entrepreneurship is legal: A 1946 zoning ordinance allowed "truck gardening" but didn’t define what that meant or identify what could be grown for sale in residential areas. Because of the ambiguity, the city has shut down some backyard enterprises, but not others.

An outcry by urban farming advocates last summer prompted Los Angeles City Council President Eric Garcetti to introduce a motion dubbed the Food and Flowers Freedom Act, which would allow people to grow "berries, flowers, fruits, greens, herbs, ornamental plants, mushrooms, nuts, seedlings or vegetables for use on-site or sale or distribution off-site."

The city’s building and safety department has stopped enforcing the old ordinance for now. The City Council is expected to vote on the proposed ordinance Friday.

No mention of microbial food safety.