The Columbia Center in downtown Seattle is a tall building, rising 937 feet and 76 stories above ground level, although another seven stories are sunk into the earth below the pavement. It is the tallest building in the Pacific Northwest; including its subterranean holdings, it is the building with the most total stories (83) west of the Mississippi. It is not where I would have expected my quest to parse America’s food-safety landscape to take me, but it is nonetheless where I ended up on a warm, over-cast morning in the second week of June 2010.
I should preface this by mentioning that during my early reporting, one name kept popping up: Bill Marler. “Have you heard of Bill Marler?” people would say. Or: “You should really talk to Bill Marler.” Or: “Bill Marler is a crook.” (To be honest, this happened only once.) My interest was piqued; clearly, I needed to know more about this fellow.
As it turned out, this wasn’t hard to do, because William Marler, Esq., is a man in possession of a substantial Internet presence. The law firm he founded with Bruce Clark in 1998 is known as (appropriately enough) Marler Clark, and it maintains no fewer than 32 Web sites and blogs relating to foodborne illness and food safety in general. Actually, by now there are probably more, but at the time I visited the Marler Clark offices on the 66th floor of the Columbia Center, 32 was the number, a number that seems to me entirely adequate to make the point that, at least in regards to the foodborne-illness Internet landscape, Marler Clark rules the roost.
Of course, this is not an entirely altruistic pursuit. It is safe to say that Marler Clark is the most prominent and successful foodborne-illness litigation firm in the world, and it is safe to say that Bill Marler is the most experienced and knowledgeable foodborne-illness attorney at his firm. Ergo, and no one I’ve spoken with disputes this, Bill Marler is the leading foodborne-illness litigator on earth. If you are sickened by pathogenic bacteria in food, believe that you can prove your case, and furthermore would like to be handsomely compensated for your suffering, you should probably give Bill a call.
Given his prominence in his field, I’d expected some difficulty reaching Marler by phone and a greater challenge arranging a face-to-face meeting. As it turned out, the former was exceedingly simple; only a few hours after I left a message on his voice mail, Bill Marler called me back.
Over my years of journalistic reporting, I’ve come to be somewhat leery of using lawyers, and in particular trial lawyers, as sources. They are typically not unbiased and, just as typically, are quite skilled at spinning a story in whichever direction best suits their professional pursuits. Many would say Bill Marler is no different, and that may well be true. Actually, I’m certain that it is true. But it is hard to deny that the man knows more about the issues of food safety and foodborne illness from more viewpoints than perhaps anyone, anywhere. He is a walking, talking encyclopedia of the history, symptoms, causes, and possible solutions to our nation’s food-safety and foodborne-illness crisis. For a time, he was on the short list to fill the position of undersecretary of food safety in the Obama administration but was passed over because, according to him, he’s “not controllable enough.” “I don’t have the need to burnish my résumé so I can get a job at ConAgra after my term,” Marler told me, looking exceedingly proud.
Despite my early reluctance to use a trial lawyer as a source and my enduring suspicion that his occupation can’t help but color his view of food-safety landscape (but then, couldn’t that be said about anyone?), I began to enjoy talking with Marler. I came to value his perspective on the workings of our food system. He is extremely charming, maintaining a direct, folksy tone that rarely comes off as preachy, a combination that gives an impression of candidness. He peppers his speech with curses, though I have little doubt that he knows exactly when and where to exchange the vulgarity for more formal language. Marler does not come across as arrogant or combative, although he can surely be both. He exudes a high level of energy in general and, more specifically, exceptional passion for the subject of food safety—passion he does not let get in the way of a finely honed sense of humor. When I asked him what he does to protect himself from foodborne pathogens, he said, “I drink a lot of scotch.”
Bill Marler’s path to a corner office on the 66th floor of the Columbia Center and a professional life that has provided him with the qualifications for such a position was circuitous and marked by the sort of progress that only seems like progress in hindsight. For instance (and bear with me here), one significant turning point hinged on a $900 Ford Pinto.
This was in 1992, when Marler was an ambitious but largely unknown lawyer working at a huge Seattle firm. He’d caught a nice break (or more likely worked his way into one) and was assigned a high-profile case representing two families whose kids had been murdered by a state parolee named Westley Allan Dodd. Dodd was a savage and twisted fellow, having killed three children following his early release from prison and tucked one of the bodies in his closet for long-term storage. Apparently, this wasn’t enough to satisfy Dodd’s bloodlust, so he slunk into a movie theater, snatched another child, and fled in his Pinto, for which he’d paid—you guessed it—900 bucks.
Now, any Ford Pinto is subject to fits of unreliability, and Dodd’s was no different. With kidnapped child in transit and pursuers close on Dodd’s heels, it promptly broke down, leaving him at the mercy of the law. Dodd was captured, his victim was released, and Marler’s case against the state for gross negligence in releasing the murderer early was a lock. “I went from hardworking obscurity to people knowing I had this big case in my pocket,” recalled Marler, and I sensed a twinge of nostalgia in his tone.
After his success with the Dodd trial, Bill Marler was perfectly positioned within his firm for the assignment of another high-profile case, and that case just happened to be the 1993 E. coli outbreak at the Jack in the Box restaurant chain. It was, Marler told me, a “perfect storm” of foodborne-illness awareness and suffering. For starters, the pathogen in question wasn’t merely E. coli but that particularly deadly variant, O157:H7. Jack in the Box wasn’t the first O157:H7 outbreak in the United States; that dubious honor belongs to a 1982 incident that sickened people in Oregon and Michigan who’d eaten at “restaurant A” (commonly known to be McDonald’s). But it was the largest outbreak thus far, and it came at a time when numerous strategies, technologies, and media outlets were converging to drive awareness of food-borne pathogens and the manner in which they are disseminated throughout our food system.
“This happened just as molecular technology was coming up,” Marler explained to me. “We were beginning to be able to identify and trace these pathogens with some accuracy and efficiency.” He was talking about pulsed field gel electrophoresis (PFGE), the pathogen-fingerprinting technology that had been invented less than a decade earlier. Another factor: an evolving business model that increasingly depended on mass-produced food being distributed in multiple franchises, in multiple jurisdictions, often with disparate rules and regulations. Indeed, the Jack in the Box outbreak came shortly after the state of Washington, following a small O157:H7 incident at a nursing home in Walla Walla, had mandated that the internal temperature of hamburgers be 155°F, an increase of 15 degrees from the previous mandate of 140°F (E. coli O157:H7 can’t survive temperatures higher than 155°F).
But Jack in the Box chose to ignore the new law. “Here’s the dilemma: You’re a national food chain working under a code that tells you you’ve got to cook your hamburgers to 140 degrees. And then some wild-ass state up near Canada decides it’s gotta be 155.” Marler chuckled, and I wondered if it wasn’t because this very dilemma—and how Jack in the Box chose to resolve it—had played a large role in making him a wealthy man. He continued: “Long story short, Jack in the Box decides it’s too difficult to hit 155 with a 2-minute cook time. And so they decided to stick with a 2-minute cook time.” In other words, the Jack in the Box operating practices meant O157:H7 would emerge uncomfortably toasty but largely unscathed from the restaurant chain’s griddles nationwide.
In any event, Marler, with his post-Wesley Alan Dodd cache as rising star, was awarded the Jack-in-the-Box case, and embarked on a quest to become an instant expert in all things E. Coli. At the time, there simply weren’t that many experts on the issue of pathogenic bacteria in food, and Marler soon rose to the fore of the issue. “The harder you work, the more you know, and the better you do. I’ve found that to be a fairly easy way to get ahead in life,” he told me. Also, he says, the birth of his first daughter in 1992 strongly impacted his worldview as it relates to food borne illness (after all, many of the Jack-in-the-Box victims were children, and youngsters continue to be among those most afflicted by pathogenic bacteria, owing to their nascent immune systems). “It didn’t take much for me to go home and say ‘oh my goodness, this could happen to us.’ ”
Of course, Marler is well aware that some people will view his motivations through the stereotypical lens of the ambulance-chasing lawyer, a view that is arguably brought into sharper focus by the nature of foodborne illness outbreaks. Given the scale and scope of our modern, industrialized food system, a serious event can be spread across multiple states, and affect dozens, if not tens of thousands of consumers, each of which might stand to collect millions of dollars. While most personal injury lawyers chase their income one car crash at a time, an attorney specializing in foodborne illness can realize the earning power of dozens, if not hundreds, of car crashes with a single outbreak. With a typical contingency fee (the amount a lawyer collects if the judgment is favorable to his client) for a trial lawyer running 33 1/3%, it’s not hard to see how the money can add up.
Marler doesn’t deny this, and admits to no small amount of internal turmoil regarding his chosen profession. “There’s a big chunk of me that thinks ‘wow, I’m making so much money off these horribly sick people.’ So do I feel conflicted? Absolutely. I feel very conflicted, and I deal with it the way anybody would: by feeling guilty and then trying to do something good.” In Marler’s case, this means almost constant lobbying in favor of greater governmental oversight, as well as a seemingly unending string of pro-bono appearances before trade groups and non-profit organizations to share his encyclopedic knowledge and experience.
Marler wrapped up his Jack in the Box work in 1996 and again began taking standard trial lawyer fare: car crashes, crane collapses, train wrecks—basically any unfortunate episode where a plausible line could be drawn between negligence and misery. “I’d made a name for myself as one of the go-to trial lawyers in the Northwest,” Marler told me. “I had no shortage of work. It wasn’t like I was sitting around thinking, ‘Oh, I guess I’ll be a foodborne-illness lawyer.’ ” Still, Marler’s no fool, and he kept a keen eye on the foodborne-illness landscape.
It didn’t take long for that landscape to bear fruit, and I mean that almost literally, because the next big foodborne-illness case Marler tackled was an outbreak of E. coli O157:H7–contaminated apple juice distributed by Odwalla. Marler successfully represented several children who contracted HUS and suffered permanent kidney damage after drinking the contaminated juice. This was a turning point for Marler, who rather presciently recognized that the issue of foodborne illness was not going away and, in fact, was likely to grow like metastatic cancer. “After Odwalla, I went to my partners and said, ‘I want to focus on foodborne illness.’ And they were like, ‘That’s a dumb idea.’ ” Marler guffawed, and who could blame him for relishing their shortsightedness? His guffaw was simply a small piece of the last laugh, which has been going on for over a decade and shows no signs of abating.
Given the recalcitrance of his former partners, Marler struck out on his own, forming Marler Clark with Bruce Clark and Denis Stearns in 1998. The latter had represented Jack in the Box during Marler’s pursuit of fiscal justice, and Marler had gained a wily adversary’s respect for Stearns’s talents. Still, it was a risky move. “They had no business, and I only had a handful. We were definitely out on a limb.” But pretty soon, some kids at a local grade school got sick and tested positive for E. coli O157:H7, and Marler Clark was no longer out on a limb.
These days, Marler Clark maintains a workforce of eight attorneys and 25 supporting staffers, including a full-time epidemiologist. The firm’s grasp on the foodborne-illness litigation landscape is nothing short of dominant: During the 2006 E. coli spinach outbreak, Marler Clark represented 105 of 110 total claimants. Bill Marler has proven exceptionally adept at promoting his firm and himself; his primary blog, marlerblog.com, is often updated multiple times daily and receives over one million hits annually. It features heartrending and keenly produced video clips, mostly of clients whose lives have been permanently altered by foodborne illness. He has also proven a quick study in guerilla marketing: In October 2009, Marler Clark sent all 100 US senators a press release urging them to “pass meaningful food-safety legislation by Thanksgiving.” The press release was wrapped in a T-shirt that featured a photo of Marler with a thick red line struck across his face. The tagline: Put a Trial Lawyer out of Business.
Marler seems to be an indiscriminate thorn in the side of food producers big and small, with a particular affinity for jockeying with the raw milk crowd, which he views as naive regarding the dangers of their favorite beverage. (Marler actually grew up on a farm, where he butchered pigs, chickens, and rabbits and on occasion drank raw milk.) He travels almost constantly, addressing the Grocery Manufacturers Association or lecturing at a law school or attending a hearing in Washington, DC. His renown and affluence have afforded him a position of power in both his firm and the broader panorama of food safety, and he uses that position to its full advantage.
I met Bill Marler in the lobby of the Columbia Center. I recognized him immediately from his Web site photos but was surprised at his attire, which was casual in the extreme. He wore an untucked button-down short-sleeve shirt, topped by a fleece vest. Below, his bare legs emerged from a pair of khaki-colored shorts, and his feet were clad in running shoes. It wasn’t terribly warm outside, nor had he just completed an athletic endeavor; it’s just that Bill Marler likes to dress casually, and, therefore, he does. “It’s good to be the boss,” he told me, with a good-natured chuckle. He struck me as the sort of fellow who’d just parked a big Mercedes; imagine my disappointment to learn that he drives a VW Beetle, disappointment that was mitigated somewhat when I learned he’d fitted it with a vanity plate that reads: ECOLI.
We rode a wood-paneled elevator to the headquarters of Marler Clark, where Marler keeps an office that boasts expansive views of downtown Seattle and Elliott Bay, and of Bain-bridge Island, where he lives with his wife and three children. From Marler’s office looking north, I could see the Space Needle. I rather enjoyed realizing that I was observing it from a perspective that not many visitors to Seattle are afforded: I was looking down on it.
Marler settled in behind his desk, a table of rough-hewn barn board that was both rustic and classy. He is not a particularly large man, but he is tending toward fleshy in a way that suggests an ample supply of good food and an appetite to match (he is a regular at Bainbridge farmers’ markets and keeps a vegetable garden as well as a small flock of laying hens). Behind him and slightly to his right, a gift from a client: a wild boar’s head mounted to an interior wall. There were three computers in the office, although the desktop was neat and uncluttered. Sitting across from Marler, I had the best view in the room, although the sight of Marler’s head protruding into the sky behind him (naturally, the exterior walls were glass) lent a disembodied feel to his presence that was slightly unsettling. It was almost as if he were a celestial being, and I couldn’t help but wonder if he was perfectly aware of this effect.
At the time of my visit, Marler was in the throes of battle with the “raw milkers” (his term). Over the preceding months, I’d kept a bemused eye on the exchanges between Marler and regular commentators at thecompletepatient.com, a blog run by David Gumpert, author of The Raw Milk Revolution. Not surprisingly, Gumpert is a proponent and consumer of raw milk, and the regular commentators to his blog are passionate supporters of raw milk and food rights in general. In spite of this (or perhaps because of it), Marler had waded into the fray and become a frequent commenter on Gumpert’s blog. This was a little surprising, given that Marler had represented the families of the children whose illnesses had been epidemiologically linked to raw milk. In other words, to Gumpert’s followers, he was the enemy, intent on bringing down raw milk dairymen and -women and grinding American’s food rights into the dust of an industrial dairy barnyard.
This dynamic had spawned reams of colorful commentary on both the part of Marler (“your mind must be so small that a thimble hat falls around your ears”) and a variety of commentators (“you whine and cry to Gumpert when I refer to you and your ambulance-chasing cronies as what you are . . . Bottom Feeding Pond Scum”) and eventually led Marler to launch his own Web site, realrawmilkfacts.com. The home page features numerous videos of Marler Clark clients explaining how and to what extent raw milk had sickened them. The heading above the videos reads: real life dangers of raw milk.
It seemed apparent to me that Marler’s site was as much about getting the last word as it was about disseminating the gospel truth regarding raw milk, but either way, it couldn’t be denied that the months immediately preceding my trip to Seattle had been particularly bad for raw milk and, therefore, if one were keeping score, particularly good for Bill Marler. A flurry of outbreaks connected to different dairies in multiple states had resulted in numerous illnesses, including one that hospitalized a young Minnesota child sickened by E. coli O157:H7. Meanwhile, the Organic Valley Family of Farms cooperative, one of the nation’s largest purchasers of fluid organic milk intended for pasteurization and mass market, announced it would terminate the contract of any of its members found to be selling raw milk direct to consumers. With the dairy industry reeling from the recession, many small-scale dairy farms had taken to selling raw milk directly off the farm, collecting anywhere from $5 to $15 per gallon, rather than the approximate $3 per gallon they received from Organic Valley. And, in March 2010, Whole Foods Market had pulled raw milk from the shelves of its stores in the states of California, Connecticut, Pennsylvania, and Washington.
To me, it all added up to a sense that 2010 had the potential to be something of a tipping point for raw milk and, therefore, food rights in general. And as of my visit to Bill Marler’s office, it looked to be tipping in a direction that wasn’t particularly favorable to the raw milkers. For his part, Marler wasn’t quite gloating, but he wasn’t far from it. “They’ve had nine fuckin’ outbreaks since January,” he told me, waving his arms in the air for emphasis. “Hell, even the meat industry on its worst day doesn’t have that.”
Despite his disdain for raw milk (which he believes should be legal, but only under strict regulation) and his online quarreling with its devotees, Marler is actually a strident advocate of small-scale, decentralized food systems and believes that the greatest risk factor for the cultivation and distribution of pathogenic bacteria is the sheer enormity of the corporatized, industrial food system. “If you look at the major outbreaks over the years, all of it was mass-produced food. In 16 years of doing this work, I’ve never sued a local farmer.” He paused a moment and then, unable to leave a good dig undug, added, “Well, except for raw milk.”
In Marler’s view, the industrial model, while being very effective at cranking out large quantities of food for relatively little money, suffers from a perilous side effect. “The scale is so big, every little problem becomes amplified. You don’t have two people getting sick; you have 200. Or 2,000.” Or, in the case of the Peanut Corporation of America, 22,000. And, because a lot of modern food products—even basic ingredients, such as hamburger—are amalgamated from dozens, if not hundreds, of sources, the potential for cross-contamination is extremely high.
Consider the hamburger that sickened and ultimately paralyzed Stephanie Smith (yes, Smith is a Marler Clark client), who was 22 and a children’s dance instructor when she ate the fateful beef patty in the fall of 2007. A front-page investigation in the October 4, 2009, New York Times revealed that Smith’s frozen, preformed burger, which was processed and distributed by Cargill under the label “American Chef’s Selection Beef Patties,” had numerous points of origin, including Nebraska, Texas, South Dakota, and Uruguay. Without realizing it—indeed, surely without wanting to—Ms. Smith was partaking of international fare. And given that each of the facilities that supplied the components of her burger processes thousands of animals per day, by eating a single hamburger she was consuming the flesh of countless bovine.
She was also dining on a product that was far more complex than its list of ingredients, which included only the word “beef,” suggested. In fact, most mass-produced hamburgers in this country contain much more than simple ground beef. In addition to fillers and flavorings like bread crumbs and spices, Ms. Smith’s burger was constructed in part from a product its supplier, Beef Products, terms “fine lean textured beef.” Which sounds pretty good, until you realize that fine lean textured beef is rendered from the fatty trimmings that remain after a carcass is processed. As reported by the New York Times story, which was awarded a 2010 Pulitzer Prize, the trimmings are heated, run through a centrifuge, and treated with ammonia to kill E. coli. The company reportedly cranks out seven million pounds per week of the mashlike substance, which is sold in frozen blocks. I’m not sure about you, but that’s not exactly what I picture when I hear the term “fine lean textured beef.” Though I suppose the word textured should be something of a tip-off; after all, when’s the last time your local butcher tried to sell you “textured” beef?
The outbreak that struck down Stephanie Smith was estimated to have sickened 940 people, though none so profoundly as her, and it underscores Marler’s points about the dangers inherent to a food system run chiefly on the tenets of cost cutting and efficiency of scale (by using various trimmings products from disparate sources, Cargill managed to save approximately 25 percent in comparison to the cost of burger ground from whole pieces of beef). The meat industry is particularly susceptible, given that the very nature of the product demands that it be raised in proximity to feces. This is compounded by the conditions at the CAFOs that dominate the meat industry, where animals are kept in extremely close quarters, in constant and direct contact with the manure of hundreds, if not thousands, of feedlot mates. “Somewhere, somehow, the wheels just came off the meat industry,” Marler told me. “It’s degrading to our bodies, to our environment, and to the animals. It’s degrading to our morals.” I straightened a little in my chair: Had he just said that the way we raise our food is degrading to our morals? By gum, he had.
Contracting E. coli O157:H7 was obviously a turning point (and not for the better) in Stephanie Smith’s life. But as dramatic and tragic as its ramifications have been and will continue to be, in at least one regard—albeit a morbid one—Smith was lucky: Her case was relatively easy to litigate.
This is not usually the case. Indeed, the factors that determine whether or not Marler Clark will represent a client constitute a list that is both wide reaching and long. I’d sort of assumed that a person with Bill Marler’s exceptional knowledge and skills relating to foodborne-illness litigation would be able to spin gold out of practically any gastric disturbance that walked through his door. Heck, on the day I visited him, I was experiencing a bit of travel-related indigestion, and I couldn’t help but wonder if perhaps Marler could help me lay the blame for my discomfort at the door of some ginormous food conglomerate. I’d been emitting embarrassing belches all morning, which I’d been uncomfortably suppressing in Marler’s office. It seemed only reasonable that I demand compensation for my pain and suffering.
Turns out, it’s not quite that simple. First, Marler must consider the incubation period of pathogenic bacteria—the time that passes between its entry into your digestive tract and the moment it starts kicking down your door (so to speak). Now, for most food-borne illness, there’s a pretty broad range of incubation; E. coli O157:H7 can range from 1 to 10 days, while salmonella poisoning typically rears its ugly head within 48 hours. But Marler regularly hears tales of illness that came on within a few minutes or hours of eating a particular food. He invariably turns down these claims, because none of the bacteria that have garnered favorable settlements for his clients have incubation periods that can be measured in a handful of hours. One of the ironies—and arguably the greatest challenge—of drawing a straight line between a particular illness and a particular meal is that the food that seems most logically guilty simply by its proximity to the onset of symptoms will almost never be the food that actually made you sick.
The lack of straight-line logic extends into the area of smell and taste, because most bacteria do neither, which means that just because you ate a funky-smelling taco salad and got sick 3 days later, it was not necessarily the salad that made you ill. Which is not to say that either Bill Marler or I recommend consuming funky-smelling taco salads; only that smell and taste are poor predictors of your success in regards to compensation.
What gets Marler excited about an individual claim isn’t so much the gritty details of that claim (though they are important) but the backdrop against which it is brought to his attention. Marler is much more likely to consider a claim that happens in the context of an investigation by a regional health department. That’s because in most cases, a human sample that tests positive for a common foodborne illness will trigger a report to the local health authorities, who will then follow up with an investigation. There are all sorts of factors that determine how vigorous this investigation will be, but for the purposes of litigation, it doesn’t matter so much that it is particularly vigorous, only that it is documented.
The beauty of these investigations is that in a sphere where guilt is difficult to prove, the conclusions of a health department are about as close to a smoking gun as exists. Epidemiologists typically require 95-percent proof before signing their name to a particular conclusion; Marler likes to point out that this is a significantly higher degree of certainty than is required of a jury (51 percent), and that it’s really only possible due to the advent of technologies like PFGE. Of course, this standard can just as easily work against a client: If, after conducting an investigation, the health department cannot confirm the source of an outbreak, the case is pretty much dead in the water.
Actually, there is an exception to this rule: A history of accusations, violations, or other health-related incidents against a particular producer can turn the tide in favor of Marler and his client. This history is sometimes the only “evidence,” because by the time the investigation has run its course, the offending food has already been disseminated, leaving nothing to trace the bacteria back to. It’s sort of like following the rainbow to its end and not finding the pot of gold. But if Marler can generate enough circumstantial evidence, either historical or in the form of improper handling techniques, he stands a good chance of earning a favorable settlement. In one hamburger-based O157:H7 case from 2001, health officials weren’t able to find even a trace of the bacterium at the suspected restaurant. But the joint had a record of warnings from the health department and, as it turned out, a flawed cooking method that could allow E. coli to survive. Marler dug up this information and bingo: settlement reached.
Of course, meat is not the only point of entry for pathogenic bacteria in our food system. The past few years have seen widespread outbreaks associated with peanuts, spinach, strawberries, and bean sprouts. The irony is that foods that have been heavily processed—in other words, foods that are typically the least nutritious—are least likely to harbor pathogenic bacteria. The processing itself, which usually involves the application of extreme heat, often kills the bacterium that can cause acute illness. The long-term chronic disease that is so often the result of eating these foods is another matter. Still, given the nature of many of the foods implicated in recent widespread recalls, one can only wonder what’s next. Tofu and bran flakes, perhaps?
Despite the disparate sources of foodborne illness, most outbreaks share a commonality: They’re enormously difficult to trace. PFGE can tell us if disease clusters are related, but the test can’t tell us precisely where that disease originated or where the ingredients from that source point are headed. And this brings us to another problematic aspect inherent to our globalized, multiple-source-point food system. The supply chain is simply too convoluted to follow with any certainty. This does two things: First, it makes it very, very difficult to determine with absolute confidence where an outbreak began. Tracing the origin can take weeks or even months; in the meantime, the contaminated product is fanning out across the country, in trucks and trailers and trains, to outlets that can range from local deli to supermarket to burger franchise. Couple the traceability issue with the fact that the incubation period for many foodborne illnesses can be measured in weeks, and you’ve got a real puzzle on your hands. I mean, can you tell me everything you ate 2 weeks ago and where it came from? No? How about 2 days ago? Me, neither.
As Marler explains it, the best way to understand the system is to visualize a funnel. Up at the top, at the wide end, you’ve got trillions and trillions of pathogenic bacteria attaching themselves to the foodstuff of their choosing. We’ll call this the “outbreak.” From there, the outbreak spreads across the supply chain associated with the given food; in modern America, this almost always means crossing numerous state boundaries. And here is a very important point: Each state has its own protocol for tracking and tracing disease outbreaks. There is little to no cooperation between states, and there is no such thing as standardized pathogen tracking. “If you look at it historically, you’d say, ‘Shit, there’s an awful lot of foodborne illness in Minnesota, and not much in Texas,’ ” Marler told me. “But it’s just that Texas is a red state, and red states don’t place a priority on public health.” Marler is an unapologetic Democrat and huge Obama supporter, so we’ll ignore the political dig. Which is fine, because that’s not the point anyway. The point is this: Texas and Minnesota take very different approaches to tracking and investigating outbreaks of foodborne illness. And because the CDC relies on individual states to identify patterns of disease, protocol discrepancies between states are a huge barrier to accurate and timely tracking.
Back to our funnel analogy. By now, our pathogen has spread and is finding its way into the retail food system, perhaps at restaurants, perhaps at supermarkets; very possibly at both. Some folks who purchase the contaminated products will get sick; some won’t, either because their immune systems are strong enough to fend off the invader or because they’ve cooked the product to a high enough temperature to kill the offending bacteria. Some who get sick will become only slightly ill and never associate their discomfort with their food; some will get sicker than that but recover and move on, having not sought treatment. Finally, nearing the narrow end of the funnel will be those who get sick enough (or are fretful enough) to seek medical assistance. And of these, some will be dismissed without being tested for pathogenic bacteria. Of those that are tested, some might receive false assurances (remember the six non-O157 pathogenic strains of E. coli?). The ones that do return positive results are the cases emerging from the funnel. These are the cases that are ultimately uploaded to PulseNet, the CDC’s outbreak-tracking database. These are the cases that will define the geographical parameters for the ensuing investigation. These are the cases that have a chance of making it to Bill Marler’s desk.
The problem (well, not the only problem, but certainly one of the major ones) is that the funnel gets rid of an awful lot of accountability. So much happens between the actual contamination and the positive tests that emerge from the narrow end that it’s difficult to figure out where the bacteria entered the system. Which means it’s pretty darn difficult to assign blame. Accountability can be thrown off by the wildly disparate ways in which local and state health departments monitor potential outbreaks. Or it can be thrown off by the complexity of the food system itself. Or the lab’s ability (or inability) to test for certain pathogens. Or the fact that animals don’t always shed the bacteria that make people sick, so that a cow that might test positive for O157:H7 one day, might test negative the next. The more you look, the more you become aware just how circuitous a journey it is through the funnel, with all sorts of blind corners, blocked exits, and shuttered views.
“One of the things the locavore people really have right is the accountability issue,” noted Marler, when I commented on the challenge of assigning blame. “I mean, just because you can shake the hand of the guy who sold you your dinner doesn’t mean he’s not going to poison you. But it does mean you’ll know where to find him if he does.”
As Marler and I talked, and I began to better understand how outbreaks happen and how they are resolved, I found myself becoming more and more discouraged. It was beginning to sound as if there were no real solutions to this morass of a food system we’ve created and the risks that seem to simply be a part of the puzzle. Perhaps, I thought, we just need to learn to accept a certain amount of disease and illness. Perhaps we simply need to accept the fact that we don’t have the right to eat as we wish. After all, more than 40,000 people die in car crashes every year in the United States, and we’re still zooming up and down the highways. Maybe pathogenic bacteria in our food are an unfortunate reality that can’t be escaped; maybe the thousands of people who die every year from eating contaminated food are the sad-but-inescapable collateral damage of a food system that must feed more than 300 million Americans every day while meeting their expectations regarding cost and convenience.
Even Marler seemed almost to acknowledge as much. “No one has convinced me that with the population we have, we can go back to a nonindustrial food system. And yet the biggest problem we have is the huge scale of it and the motives behind it. It’s a capitalist model, and we’ve not really figured out how to infuse the system with a good, strong dose of morality.”
The issue of morality in the context of our food system is one that fascinates Marler. It informs much of his thinking on the subject of food safety, which often revolves around human nature and how to either counter or encourage it, depending on the circumstances. “We have immediate gratification ingrained in our culture,” Marler told me, his face seeming to float in the gray Seattle sky, where a plane was ascending from Seattle–Tacoma International Airport. It bisected his head and disappeared behind a bank of clouds.
Frankly, I was a little stunned by the parallels Marler was drawing between the issue of pathogenic bacteria in our food and systemic arrangements not only in our food system but throughout our society. And by the ways in which these arrangements could be framed in the language of ethics. What Marler seemed to be saying is that the root cause of foodborne illness isn’t pathogenic bacteria: It is immorality. It is cutting corners in pursuit of profit. It is viewing someone’s kidney failure as a line item in a cost-benefit analysis. It is arguing against more strident testing protocols for fear they’ll cut into profits.
Despite his inclination to view pathogenic bacteria in our food as the most visible symptom of a broader malaise, Marler is not a starry-eyed idealist. “It is really hard to get people to understand that our long-term best interests are served by creating food-safety issues that deal with the more structural, systemic problems. But pathogenic outbreaks are something everyone can relate to. Sure, it’s only a Band-Aid, but at least it’s a Band-Aid that people understand.”
Even that may be difficult to apply in a food system that is pulled in disparate and not particularly symbiotic directions: the cost of inputs, highly volatile and entirely beyond the control of producers; the expectations of shareholders, whose motives are primarily financial; and the pressures exerted by retailers and consumers, who want safe food, sure, but not at all costs. Or perhaps any costs. All of which is not to suggest that the producers themselves do not bear responsibility or should not be held accountable; only that the forces and structure of the market and the corporatized nature of the 21st-century food system do not create a fertile environment for addressing the issue of pathogenic bacteria in our food.
Which is why Marler is a firm believer in government intervention. “If we’re going to clean things up, it’s going to require reengineering the economics of it, and I don’t see how you do that without government intervention. The reality is that the only way a society as large and complex as ours is going to work is through government policy.”
I began to protest, but Marler raised a hand to interrupt me. “People don’t like to hear about government intervention, but they don’t seem to mind government intervention that benefits them. It’s like all those Tea Party health care protests: ‘Keep government out of my Medicare.’ The problem isn’t government intervention; it’s that too often the government intervenes in a way that big businesses like. The job of FSIS is supposed to be ensuring public health; it isn’t supposed to be finding a balance between Cargill making an extra 2 cents per pound of hamburger and ensuring public health. But that’s what it has become. If those people would just visit the victims, it would totally shift their priorities. The president visits wounded vets; he visits businesses. But no one goes and sits across the table from a 23-year-old kid who ate a hamburger and will never walk again because of it.” He paused, as if considering the implications of what might transpire from just such a scenario. “It might make them think, ‘You know, maybe I need to up my game a little.’”
At this, I closed my notebook and prepared to take leave. The hour Marler had promised was almost up, and a few minutes prior, an assistant had announced the arrival of his next visitor, an FDA official who, Marler told me, had “something big” to share with him.
But he wasn’t quite finished. “I’ve often wondered what part of the human genetic makeup makes it impossible to put ourselves in other people’s positions or to think too far ahead. Because frankly, the way we’re heading isn’t going to end very well. I mean, what’s the world going to look like in 50 years under our current system of incentives?” It was clear to me that he wasn’t merely talking about food safety, or even necessarily food at all, but our entire culture, with all its complex, convoluted, and interconnected systems that, at the outset of the 21st century, have begun to reveal their tremendous vulnerabilities. “I think the biggest problem is that we’ve lost control of our food system.”
He leaned back in his chair, just as another plane arced across the steel-colored sky. “It’s really hard to imagine sitting back in a half century and saying, ‘Wow, this really worked out well, this looks really great.’ ”