Here's a fun fact about me: My grandfather co-invented Cheez-Whiz. And McDonalds french fries.

(Seriously. This is his 2007 obituary.)

So when I saw that the Center for Food Safety and the Center for Environmental Health jointly sued the U.S. Food and Drug Administration demanding that the agency identify “high risk” foods, I thought immediately of Grandpa Ed's legacy.

It turns out, the foods they're talking about aren't the ones that will kill you slowly (i.e. a steady diet of french fries and Cheez Whiz) but rather those most associated with foodborne illnesses.

According to The Centers for Disease Control and Prevention, 48 million people—that's one in six Americans—get sick every year from food poisoning, 128,000 are hospitalized and 3,000 die.

Under the Food Safety Modernization Act of 2010, the FDA was supposed to designate foods with a high risk of carrying foodborne illnesses by January 2012, and to propose record-keeping requirements for facilities that handle those foods by January 2013. 

It strikes me as a basic good government move to protect public health. I don't know about you, but I'd like to do everything I can to avoid vomiting, bloody diarrhea or perhaps cascading organ failure.

But five years after the deadline, the FDA has yet to identify a single high-risk food.

“As the continued foodborne illness epidemic in our country shows, there is an urgent need to designate high-risk foods and establish their reporting requirements so that our government can rapidly and effectively respond to outbreaks,” said Ryan Talbott, a Center for Food Safety staff attorney. ”Congress required this done years ago, with good reason. As we have in the past, we will continue to hold FDA accountable to protect public health.”

The 24-page complaint filed in U.S. District Court for the Northern District of California claims the agency has violated the Administrative Procedure Act by failing to act, and seeks declaratory and injunctive relief.

“Without a list of designated high-risk foods that is accessible to the public through FDA's website and the additional reporting requirements to 'rapidly and effectively' track and trace these foods … Congress's will is thwarted and plaintiffs' members are deprived of information that they otherwise would have,” the complaint states.

So far, the FDA has only managed to solicit public comments on its “draft approach for the review and evaluation of data to designate high-risk foods” in 2014. That involved explaining the methods under consideration and asking for feedback—a step which wasn't even required by the statute.

The complaint doesn't speculate why the FDA under both Democrat and Republican administrations has dragged its feet about naming high-risk foods.

Presumably it's not that the agency is pro-food poisoning. But it's easy to imagine that there has been fierce lobbying around the designation. After all, if you were a cantaloupe grower or a company that produced packaged salads, would you want your product to be labeled “high-risk”? And to assume more burdensome tracking and reporting obligations?

I'm pretty sure the answer is somewhere between no and hell no.

An obvious way to identify candidates for the high-risk designation is to look at recent food poisoning outbreaks.

Among the examples cited in the complaint are chicken (Salmonella Heidelberg); pomegranates (Hepatitis-A); cucumbers (Salmonella Newport); cilantro (Cyclospora); prepackaged caramel apples (Listeriosis); ice cream (Listeriosis); frozen vegetables (Listeriosis); papaya (Salmonella); chicken salad (Salmonella Typhimurium) and romaine lettuce (E. coli).

Yikes.

So what's safe to eat? Besides Cheez Whiz and french fries, that is?

One of my favorite sources is Bill Marler, a name partner at food poisoning boutique Marler Clark in Seattle. He does nothing but litigate food poisoning cases—and as a result, he says he avoids sprouts, raw milk, unpasteurized juices, raw oysters and bagged salads, and is leery of ground beef and chicken.

But here's what he once told me he does eat: “I'll bend towards ordering a pizza at a restaurant. The chances of a pizza killing you—pretty low.”

News you can use. You're welcome.

 

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