The ‘Guess Who Inspects It Game”: Nestle E. coli Cookie Dough Edition

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Posted on June 29, 2009 by Denis Stearns

The recent (and still unfolding) E. coli O157:H7 outbreak linked to contaminated Toll House cookie dough manufactured by Nestle has no shortage of lessons to teach, including the reminder that this deadly pathogen can find its way into nearly any food product if sufficient care is not taken during its manufacture. But this sad outbreak is also a case study in the ridiculously complicated, and too-often ineffective, state of food safety inspection in the United States. What makes the outbreak such an excellent case-study is the fact that the Nestle plant located in Danville, Virginia was not only manufacturing Toll House cookie dough products, but also a variety of Buitoni flat and stuffed pastas, and pasta sauces. This made the plant what is called a “dual jurisdiction establishment” that fell under the regulatory authority of both the FDA and the USDA. And to make things even more interesting, Virginia Department of Agriculture and Consumer Services (VDACS) was performing routine plant inspections under contract with the FDA. So how come with all these agencies involved no one prevented the outbreak?

By way of background, the FDA has jurisdiction over all domestic and imported food products, except meat, poultry, or processed egg products, which fall under the jurisdiction of the USDA. But not all food products fall neatly on one side of the jurisdiction line or the other. For example, the products that Nestle manufactured for its Buitoni-brand fell on both sides of the line, with a few falling almost on the line. Meat-flavored pasta sauce would be inspected by the FDA, while meat sauce containing 3% or more of meat would be inspected by the USDA. The ravioli stuffed with cheese would be the responsibility of the FDA, while those stuffed with pork or prosciutto would be the responsibility of the USDA. Thus, if you look at the FDA Inspection Report from September 11 and 12, 2006, you will see that the inspector takes note of fettuccini and linguine being manufactured (FDA products), and chicken tortellini being manufactured (USDA product). Only the Toll House cookie dough products feel solely within the jurisdiction of the FDA. Nonetheless, the FDA plainly took note of all products being manufactured, without, however, making mention of whether or how what was found would be communicated to the USDA. Of course, since the USDA had an inspector onsite, and the FDA showed up in the plant only every year or so, it is the USDA that presumably knew much more about the plant.

Given the presence of the USDA in the plant on a daily basis, the obvious question then is what did the USDA know, and when did it know it? Another obvious question is: Could the USDA have prevented this outbreak from occurring? And, indeed, was it potentially in a better position to prevent this outbreak. (NOTE: As part of my firm’s investigation into this outbreak we are currently attempting to obtain the USDA inspection records for this plant.)

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The ineffectiveness of the FDA and USDA in these dual jurisdiction establishments was noted years ago. According to a March 2005 report by the General Accounting Office, there are 1,451 dual jurisdiction establishments in the United States—that is, plants that product food regulated by both the USDA and the FDA. (Other agencies that can have overlapping authority include the Environmental Protection Agency and the National Marine Fisheries Services.)

In analyzing how such dual jurisdiction work in practice, the GAO found that it imposes significant and unjustified burdens on the plants, failed to adequately coordinate inspection activities, and wasted large amounts of money through duplicative training programs for inspectors, and overlapping efforts that could and should be reduced. See GAO Report,  Indeed, the GAO specifically noted that the 2002 Bioterrorism Act granted the FDA authority to allow USDA inspectors to alone inspect the dual jurisdiction establishments, but that the FDA has never taken any action in this regard. Finally, the GAO reminded that it had for quite some time promoted the creation of a single food safety agency with jurisdiction over all food production in the United States, stating “that improvements short of reorganizing the food safety system can be made to reduce overlaps and duplication, and to leverage existing resources.” GAO Report at 7.

Plainly effective coordination did not occur at the Nestle plant. The FDA personnel inspected the Nestle plant only every year or so (on 9/06, 9/05, and 7/04). The VDACS had inspected the plant on March 12, 2009, finding “no unsanitary conditions,” but noting “observed GMP deficiencies” on a state inspection report. (This is another report we are attempting to obtain.) The VDACS also inspected the plant twice in 2007, again under contract to the FDA. Whether the state of Virginia also had jurisdiction over the plant is right now unclear, but it appears to have also been inspecting the plant pursuant to its own jurisdiction.

Finally, as already noted, the USDA had an inspector onsite in the plant, but presumably the inspector stayed away from the part of the plant where the cookie dough was manufactured. This presumption is based on an USDA-FSIS Directive that states:

A. FSIS inspection program personnel are not to routinely enter or inspect an area of the establishment in which nothing that is subject to FSIS jurisdiction occurs. Inspection program personnel are to focus inspection toward the USDA regulated products. There may be situations where an FDA product is processed in close proximity to or on the same line as a FSIS regulated product, and, therefore, inspection personnel may be in the same area. In meat and poultry establishments the inspected facility is defined in the grant of inspection, and in egg products establishments the entire premises includes all buildings on the property.
B. If conditions in the area of the establishment that is only under FDA’s jurisdiction may lead to, or are creating, insanitary conditions in the FSIS inspected areas of the establishment as described in 9 CFR 416.2, Establishment grounds and facilities, or in 9 CFR 590,
1. Inspection program personnel in meat and poultry establishments are to:

a. take the appropriate action with respect to FSIS regulated products as set forth in FSIS Directive 5000.1, Revision 1, Chapter I, Sanitation and Chapter IV, Enforcement , and
b. notify the District Office of the situation through supervisory channels.

See FSIS Directive 5730.1, The Directive also makes clear that the agencies are supposed to communicate with each other when “foods produced in a DJE are implicated in outbreaks of foodborne illness,” but so far there has been no word yet whether such communication has taken place with regard to the Nestle Toll House cookie dough outbreak. It is also unclear what FDA policy is with regard to inter-agency communications related to an outbreak like this one.

In light of the foregoing, it is hard not to think of the story of the blind men and the elephant, with each inspecting only a part of the elephant, but none of them able to determine what it was they were inspecting, or reach any other conclusions. See “Blind Men and an Elephant, Wikipedia, Because each blind man knew only part of the truth, none of them were able to come to agreement as to the whole truth, even after they compared notes.

In thinking about our current story, the one where cookie dough made by Nestle poisoned dozens, I can’t help but think of the FDA, USDA, and VDACS as three blind men inspecting an elephant. And perhaps the moral of our story is that it is long past time to have our food plants inspected by a single person, and one who is not blind.



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