Nestle’s Culpability in Cookie Dough Outbreak
By Fred Pritzker
The Nestle recall of cookie dough — some 300,000 cases of its Toll House brand in all varieties — occurred on June 19. That same day, the U.S. Food and Drug Administration (FDA) and Centers for Disease Control and Prevention (CDC) warned consumers not to eat the product due to the risk of contamination with E. coli O157:H7, a bacterium that causes foodborne illness.
Ten days later, the FDA announced that E. coli O157:H7 was found in an unopened packaged of Toll House chocolate chip cookie bar dough. A finding of a potentially lethal adulterant in an unopened package is usually proof positive that the adulteration occurred before the product left the manufacturing plant — not “downstream” contamination caused by a distributor or retailer or end user. This means the contamination occurred at the point of production at the Nestle plant in Danville, Virginia, or in ingredients puchased by Nestle to make the dough.
Here’s where it gets interesting: On July 9, the FDA announced that the postive E. coli test on the unopened package did not match the strain of E. coli O157:H7 common in victims of the Nestle cookie dough outbreak. In short, Nestle was making cookie dough with at least two separate strains of E. coli O157:H7.
And here’s where it gets even more interesting: When FDA inspectors descended on the Nestle plant after the outbreak was announced, no traces of E. coli were found in a week of swabbing more than 1,000 plant environmental surfaces.
The failure to find E. coli at Nestle’s cookie dough plant in Danville doesn’t exonerate the firm from a legal standpoint. It’s entirely possible — even likely — that the plant received a top-to-bottom cleaning before FDA inspectors arrived at the scene. What’s more, the product implicated in this outbreak was produced in early February, long before the inspection. In short, the inspection merely captures a moment in time and not the critical moment when the contaminated product was made.
It is also entirely possible that the contamination was introduced to the plant via ingredients. In that case, the outbreak was caused by “upstream” contamination due to the negligence of a Nestle supplier. That, too, hardly exonerates Nestle.
That’s because a food producer has a non-delegable duty to guarantee the safety of its ingredients as well as its finished product. This is accomplished in a number of ways, including rigorous inspection of all suppliers and testing of raw constituent product.
Pritzker Olsen is representing several people sickened in the Nestle cookie dough outbreak and is continuing to accept new cases from the outbreak, which has sickened at least 72 individuals in 30 states. Ten of the patients have developed HUS, or hemolytic uremic syndrome, a severe complication that can develop in anyone but is most common in children under five and the elderly. ly
To contact the writer, Fred Pritzker, call 1-888-377-8900 (Toll Free), or write to him online for a free case consultation using our consultation form.
Tags: cookie dough e coli
