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JOHANNESBURG — The world’s most prominent food safety lawyer, Seattle-bassed Bill Marler, has some interesting advice for any food company (but particularly Tiger Brands) on how it should handle a listeria outbreak. Tiger Brands’ listeria outbreak in South Africa is the biggest the world’s ever seen. It’s resulted in the deaths of over 180 people and the infection of around 1000 people. Meanwhile, Marler is teaming up with prominent South African lawyer Richard Spoor in taking on Tiger Brands in a class-action lawsuit. In the below post, Marler dishes out some advice for Tiger Brands CEO Lawrence MacDougall on how he should have dealt with the crisis. I’ve also interviewed both Marler and Spoor – you can read and listen to these podcasts by clicking here and here. – Gareth van Zyl
Imagine that the phone call comes or an email pops into your inbox – “Sir, we have been contacted by the health authorities and they say our product (polony) has been linked to illnesses and deaths. What do we do?”
So, what do you do? Lawrence MacDougall received that call. Now, what has he done and what will he do?
After being involved in every major (and a few minor) food poisoning outbreaks since the Jack in the Box E. coli Outbreak of 1993, I have seen it all. I have seen good CEOs act badly and make their and their company’s problems worse and I have seen bad CEOs handle the outbreak with such aplomb that they become associated with both food safety and good PR.
So, what do you do?
Of course, it is always best to avoid the outbreak to begin with. When I have spoken to CEOs or their Boards–generally, pre-outbreak and pre-lawsuit–I always pitch them on “why it is a bad idea to poison your customers.” Putting safe food as the primary goal–yes, alas, even before profits–will (absent an error) give you a very, very good chance of never seeing me on the other side of a courtroom.
But, what if despite your best efforts, or what if you simply did not care, and an outbreak happens.
So, what do you do?
First, have a pre-existing relationship with the folks that regulate you. If someone holds your business in the palm of his or her hand, you should at least be on a first name basis. No, I am not suggesting that you can influence your way out of the outbreak but knowing who is telling you that your company has a problem allows you the ability to get and understand the facts. Do regulators and their investigators make mistakes? Perhaps, but not very often and not often enough to waste time arguing that your company did not poison customers.
Second, stop production of the implicated product and initiate a recall of all products at risk immediately. This procedure should have been practiced, and practiced, and practiced before. All possibly implicated suppliers should be alerted and all retailers should be offered assistance. Consumers need to be engaged too. The goal now is to get poisoned product out of the marketplace and certainly out of the homes of consumers.
Third, launch your own investigation with two approaches, and at the same time. Are the regulators correct? And, what went wrong? Tell everyone to save all documents and electronic data. The goal here is to get things right. If it really is not your product, what has happened is bad, but survivable. If it really was your product, then learning what happened helps make sure it is likely to never happen again. More than anything, be transparent. Tell everyone what you find–good or bad.
According to the South African Minister of Public Health, Minister of Health Dr. Aaron Motsoaledi:
Listeria monocytogenes was isolated from stool collected from one of the ill children, and from both of the polony specimens collected from the crèche. These isolates were sent to the NICD Centre for Enteric Diseases and underwent whole genome sequencing and genomic analysis. The ST6 sequence type was confirmed on all three isolates on Saturday 27th January. Remember that in the last press conference I informed you that from clinical isolates obtained from patients (patient blood), 9 sequence types of Listeria monocytogenes were isolated and 91% were of sequence type 6 (ST6). We had then concluded that time that this outbreak is driven by ST6.
Following the lead from the tests performed on these children from Soweto and the food they had ingested, the EHPs (Environmental Health Practitioners), together with the NICD and DAFF representatives, accompanied by 3 technical advisors from the World Health Organization in Geneva, visited a food-production site in Polokwane and conducted an extensive food product and environmental sampling.
Listeria monocytogenes was isolated from over 30% of the environmental samples collected from this site, which happens to be the Enterprise factory in Polokwane.
To conclude the investigation, whole genome sequencing analysis was performed from this Enterprise factory and the results became available midnight or last night. The outbreak strain, ST6, was confirmed in at least 16 environmental samples collected from this Enterprise facility.
THE CONCLUSION FROM THIS IS THAT THE SOURCE OF THE PRESENT OUTBREAK CAN BE CONFIRMED TO BE THE ENTERPRISE FOOD-PRODUCTION FACILITY IN POLOKWANE
As of the March 14, 2018 update of Listeria monocytogenes Outbreak from the Centre for Enteric Diseases (CED) and Division of Public Health Surveillance and Response, Outbreak Response Unit (ORU), National Institute for Communicable Diseases (NICD)/National Health Laboratory Service (NHLS), a total of 978 cases has been reported since 2017. Since the last situational update (8 March 2018), 11 additional cases have been reported to the NICD. The death total remained at 183.Given the above work by NICD and the fact that the number of ill is failing post-recall, Tiger Brands – Enterprise has nothing to argue about the source of the outbreak.
Fourth, assuming that the outbreak is in fact your fault, publicly admit it. If it is not your fault, then fight it. However, pretending that you are innocent when you are actually at fault will get you nowhere. Asking for forgiveness is not a bad thing when you have something to be forgiven for. Saying you are sorry is not wrong when you are in fact wrong.
Mr. MacDougall, given the facts saying this was both heartless and stupid: “There is no direct link with the deaths to our products that we are aware of at this point. Nothing.”
Fifth, do not blame your customers. If your food has a pathogen it is not your customers responsibility to handle it like it will likely kill them or a member of their family. Hoping that the consumer will fix your mistake takes your eye off of avoiding the mistake in the first place.
Sixth, reach out to your customers and consumers who have been harmed. Offering to pay legitimate losses will save money and your company’s reputation in the long run. The public with give you credit and it will be a reduction from the future award during litigation.
Finished drafting the Tiger Brands Listeriosis class action papers today. Now it’s about doing the final tweaks, assembling the documents, doing the final tweaks and getting the affidavits of all the class representatives and experts attested. Well done team!
— Richard Spoor (@Richard_Spoor) March 21, 2018
Seventh, teach all what you have learned. Do not hide what you have learned. Make your knowledge freely available so we all limit the risk that something similar will happen again.
Mr. MacDougall, I will match you personally 1,000,000 Rand to donate to an Organization or University in South Africa to lead a review of both food processing standards and governmental regulations and oversight. I will help find experts from around the world to assist.
Yes, you can do all of the above and still get sued. And, I might be the one to sue you, and in Mr. MacDougall’s case I am. Yet, companies who have followed the above find their passage through an outbreak, recall, and litigation temporary. The companies that struggle for unfounded reasons will seldom exist in the long run, or they will simply pay my clients more money.