In light of numerous foodborne illness outbreaks, government regulators are taking every measure possible and utilizing every technology at their disposal to prevent and respond to product contamination exposures in food facilities. New technologies allow regulators (and others) to quickly detect and trace harmful pathogens “hiding” in food facilities, raw materials or finished products.
Historically, detected pathogens oftentimes were never directly “linked” to sick consumers or foodborne illness outbreaks, but now these outbreaks are getting solved more frequently due to advances in detection/traceability technology, “enthusiastic” swabbing by regulators during inspections, and advances in communications among consumers (social media) and among regulators (PulseNet, GenomeTrakr). The fact that outbreaks and illnesses are now more easily solved is driving up the costs of recall losses and foodborne illness litigation costs.

While this is a procedural change that prioritizes maintaining public health, this should also cause food facility owners, executives, risk managers and lawyers to take necessary precautions, given that the financial viability of their company could soon be at stake.

When a pathogen is discovered in a facility during an inspection or through product testing, its unique genetic makeup is recorded like a DNA fingerprint. Local, state, federal or even international regulators could potentially use this to “connect” a facility to previously documented foodborne illnesses occurring during the past twenty years or more. The ability to make those connections is enhanced by PulseNet, a network/database run by the CDC/ FDA for purposes of sharing the unique fingerprints of foodborne pathogens like E. coli, Listeria, Salmonella, Campylobacter, etc., gathered from victims of foodborne illnesses.

If a pathogen fingerprint cannot be connected to a previous foodborne illness via PulseNet, it is catalogued and stored in the GenomeTrakr database. GenomeTrakr is a database of the DNA fingerprints of foodborne pathogens that have been recorded and stored by a network of laboratories in the United States and abroad since 2012. Essentially, this is a database of fingerprints “waiting” to be connected to the fingerprints of future foodborne illness or outbreak.

While technological advances in pathogen detection and traceability and data-sharing among regulators are critical advances towards securing public health, this translates into an expensive game of “connect the dots” for food facilities. In a 2017 case of a listeria outbreak linked to frozen vegetables, the recall was “solved” through the use of genome sequencing and data sharing available in GenomeTrakr, which implicated hundreds of frozen fruit and vegetable products sold under more than 40 brands and involved tens of millions of dollars in losses. Food safety incidents like this one are becoming a fairly typical scenario.

Given these developments in technology, and the increased use by regulators and plaintiff’s attorneys, we encourage organizations with food contamination exposures—food manufacturers, packers, distributors, grocery store chains, restaurant chains, etc.—to work with a member of Gallagher’s Product Recall Team to comprehensively examine their risk management program, including their insurance, to ensure that they have appropriate risk coverages relating to their Product Liability, Product Contamination and Product Recall.

About the author
Steve Kluting is a national director of Gallagher’s Food and Agribusiness specialty practice. Prior to Gallagher, he counseled food industry clients as an attorney for 13+ years and led his firm’s Food Industry practice group. Immediately prior to joining Gallagher, he was an executive at a family-owned food wholesaler and retailer. Using his experience as a “food lawyer,” a certified HACCP manager and an industry executive, he now advises Gallagher’s food industry clients, helping them to better manage their industry-specific risks and to plan for and navigate through food safety incidents and product recalls.