“It's a surprising move, given what Blue Bell has been through and the fact that they are still under criminal investigation, to even consider ratcheting back any portion of their testing protocol, even if it arguably made some sense,” said Marler, who got his start representing clients against Jack in the Box in the 1990s, says.
Since then he's represented countless clients against companies that have sold contaminated food, and also acted as a consultant to producers dealing with outbreaks, including creameries that have also grappled with listeria in their products.
Testing product and throwing out anything that initially appears to be contaminated with listeria can add up — Blue Bell reportedly has lost thousands of cartons of ice cream and millions of dollars doing this kind of testing since it was forced to yank all of its products off the shelves in April 2015 because of listeria monocytogenes contamination. But Marler said Blue Bell may be making a mistake by asking the feds for lenience.
“It's not smart. And it's not that expensive to be doing this testing, compared to facing criminal sanctions, or jail time, or worse, another outbreak or another recall that causes them to be publicly embarrassed and to lose more business,” he says.
Dealing with listeria monocytogenes is particularly tricky because the bacteria thrives in damp, cool places like ice cream factories. Once it's in a facility, the bacteria can get into cracks in the floor, the drains and all kinds of places. If it happens to spread to a surface that has contact with the food being produced, the listeria can end up in the product again and the company is back at square one.
Because of this, cleaning these facilities thoroughly is one of the most important tasks for a company dealing with a listeria outbreak, Marler says, because this is how you actually get rid of listeria and other pathogens. The thing is, the best way to confirm that you're doing a good job of cleaning is by testing the surfaces and the product.
What Blue Bell wants to do, though, is to stop destroying the products if they have shown any possible indications of listeria contamination. Marler says he understands Blue Bell's concern, because the process of testing ice cream, destroying it if there's even a chance of listeria contamination, and then going through it all over again would be frustrating for anyone. “Testing in a Blue Bell situation is a real pain,” he says. “You're constantly testing and waiting for the results to come back, and it's day-in-day-out worry. I get it. But if you don't like making ice cream and worrying about listeria getting into it, then maybe you should do something else with your life.”
However, testing is a huge help when you're dealing with a situation like the stream of E coli outbreaks that started in the 1990s. After the mess with Jack in the Box, the government forced hamburger producers to start stringently testing their products.
“They would throw out a lot of product whenever something registered, but then they would trace it back and try to figure out what happened, what went wrong, and if they could figure it out – and they couldn't always – they would deal with it. It was a slow, expensive process of testing and destroying lots of the hamburger product, and it was embarrassing and expensive every time they had a recall, but that process forced the companies to work out how the contamination was getting in and to actually fix the problem,” Marler says. “It's not 100 percent today, but E coli cases are rare now and they used to have weekly recalls.”
All things considered, Marler points out that Blue Bell is fortunate the listeria outbreak wasn't worse, but that the company should not push its luck. “Until the federal attorney's office has shut the case closed, I'd be careful not to let word get out or have it appear in any way that I'm backing off of anything. The biggest risk they face right now isn't even another outbreak so much as criminal sanctions or even jail time. This stuff is annoying and costly, but there are a lot of reasons for Blue Bell to do it and to do it willingly and without complaint.”