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From: TSS ()
Subject: Public Meeting Proposed Rule on the Availability of Lists of Retail Consignees During Meat or Poultry Product Recalls [Docket No. FSIS-2006-0009]
Date: April 21, 2006 at 12:03 pm PST

[Federal Register: April 6, 2006 (Volume 71, Number 66)]
[Proposed Rules]
[Page 17384-17385]
From the Federal Register Online via GPO Access []

Proposed Rules
Federal Register

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.


[[Page 17384]]


Food Safety and Inspection Service

9 CFR Part 390

[Docket No. FSIS-2006-0009]

Public Meeting To Discuss the Proposed Rule on the Availability
of Lists of Retail Consignees During Meat or Poultry Product Recalls

AGENCY: Food Safety and Inspection Service, USDA.

ACTION: Notice of public meeting; request for comments.


SUMMARY: The Food Safety and Inspection Service (FSIS) will hold a
public meeting to solicit comments on its proposal to make available to
the public lists of the retail consignees of meat and poultry products
that have voluntarily been recalled by a federally inspected meat or
poultry establishment if product has been distributed to the retail
level. FSIS has proposed to routinely post these retail consignee lists
on its Web site as they are developed by the Agency during its recall
verification activities.
There will be a five-minute time limit for each commenter who
presents at the meeting.

DATES: The public meeting will be held on April 24, 2006, from 9:30
a.m. to 12 p.m. Registration for the meeting will begin at 9 a.m.

ADDRESSES: The public meeting will take place in the conference room at
the south end of the U.S. Department of Agriculture cafeteria located
in the South Building, 1400 Independence Avenue, SW., Washington, DC,
20250. Meeting attendees must enter the South Building at Wing 2, C
Street, SW.
FSIS will finalize an agenda on or before the meeting date and will
post it on the FSIS Internet Web page
Interested persons may submit comments on this

notice. Comments may be submitted by any of the following methods:
Federal eRulemaking Portal: This Web site provides the
ability to type short comments directly into the comment field on this
Web page or attach a file for lengthier comments. Go to
and, in the ``Search for Open Regulations'' box,

select ``Food Safety and Inspection Service'' from the agency drop-down
menu, and then click on ``Submit.'' In the Docket ID column, select
FDMS Docket Number FSIS-2006-0009 to submit or view public comments and
to view supporting and related materials available electronically. This
docket can be viewed using the ``Advanced Search'' function in
Mail, including floppy disks or CD-ROM's, and hand- or
courier-delivered items: Send to Docket Clerk, U.S. Department of
Agriculture, Food Safety and Inspection Service, 300 12th Street, SW.,
Room 102 Cotton Annex, Washington, DC 20250.
Electronic mail:
All submissions received by mail and electronic mail must include
the Agency name and docket number FSIS-2006-0009. All comments
submitted in response to this notice will be available for public
inspection in the FSIS Docket Room at the address listed above between
8:30 a.m. and 4:30 p.m., Monday through Friday. The comments also will
be posted to the Web site and on the Agency's Web site

FOR FURTHER INFORMATION CONTACT: Victoria A. Levine, Program Analyst,
Regulations and Petitions Policy Staff, Office of Policy, Program, and
Employee Development, Room 112, Cotton Annex, 300 12th Street, SW.,
Washington, DC 20250-3700; Telephone (202) 720-5627, e-mail Pre-registration for this meeting is

required. To pre-register, please contact Diane Jones at (202) 720-9692
or by e-mail at Persons requiring a sign
language interpreter or special accommodations should contact Ms. Jones
as soon as possible.

SUPPLEMENTARY INFORMATION: On March 7, 2006, FSIS published in the
Federal Register a proposed rule titled Availability of Lists of Retail
Consignees During Meat or Poultry Product Recalls (71 FR 11326). In the
preamble to the proposed rule, FSIS indicated that it would hold a
public meeting to solicit comments on the issue raised in the proposal.
Therefore, FSIS is holding this public meeting to solicit comment on
FSIS' proposal to amend the federal meat and poultry products
inspection regulations to provide that the Agency will make available
to the public lists of the retail consignees of meat and poultry
products that have been voluntarily recalled by a federally inspected
meat or poultry products establishment if product has been distributed
to the retail level. FSIS has proposed to routinely post these retail
consignee lists on its website as they are developed by the Agency
during its recall verification activities.
FSIS proposed this action because it believes that the efficiency
of recalls will be improved if there is more information available as
to where products that have been recalled were sold. By providing
consumers this information, FSIS believes that consumers will be more
likely to identify and return such products to those locations or to
dispose of them. This action will apply only to meat and poultry

Additional Public Notification

Public awareness of all segments of rulemaking and policy
development is important. Consequently, in an effort to ensure that the
public and in particular minorities, women, and persons with
disabilities, are aware of this notice, FSIS will announce it on-line
through the FSIS Web page located at

The website is the central online rulemaking portal
of the United States government. It is being offered as a public
service to increase participation in the Federal government's
regulatory activities. FSIS participates in and will
accept comments on documents published on the site. The site allows
visitors to search by keyword or Department or Agency for rulemakings
that allow for public comment. Each entry provides a quick link to a
comment form so that visitors can type in their comments and submit
them to FSIS. The website is located at

[[Page 17385]]

FSIS also will make copies of this Federal Register publication
available through the FSIS Constituent Update, which is used to provide
information regarding FSIS policies, procedures, regulations, Federal
Register notices, FSIS public meetings, recalls, and other types of
information that could affect or would be of interest to our
constituents and stakeholders. The update is communicated via Listserv,
a free e-mail subscription service consisting of industry, trade, and
farm groups, consumer interest groups, allied health professionals,
scientific professionals, and other individuals who have requested to
be included. The update also is available on the FSIS web page. Through
Listserv and the web page, FSIS is able to provide information to a
much broader, more diverse audience.
In addition, FSIS offers an email subscription service which
provides an automatic and customized notification when popular pages
are updated, including Federal Register publications and related
documents. This service is available at
and allows FSIS customers to sign up

for subscription options across eight categories. Options range from
recalls to export information to regulations, directives and notices.
Customers can add or delete subscriptions themselves and have the
option to password protect their account.

Done in Washington, DC: April 3, 2006.
Barbara J. Masters,
[FR Doc. E6-5013 Filed 4-5-06; 8:45 am]



I would kindly like to comment on the Availability of Lists of Retail Consignees During Meat or Poultry Product Recalls (71 FR 11326). I am in full support of this, and more, i.e. COOL. It all should have been mandatory long ago. you have consumers that are suspicious, and rightly so. just look what happened in California and Washington, with that mad cow and it's cohorts. i am talking total open honesty from farm to fork, mandatory traceability from the time that calf hits the ground to the time it hits the fork and all feed/drug records to go with it, recorded properly, and should be mandatory. WE have humans dying from human TSE, and we have ample animal TSE in the food production line to account for some of those human TSE. The USA has the most documented animal TSE in the world. WE must not flounder any longer. THE BSE MRR policy the Bush Administration, along with Mexico and Canada, with the grace from the OIE to go ahead, set back the eradication of BSE, set it back to the stone ages, pre-90. The BSE GBR risk assessments must be adhered to, and strengthened to include all animal TSE. WHEN the OIE chose to ignore the BSE GBR risk assessments, to go with the more industry friendly BSE MRR policy, they sold there soul to the devil as far as i am concerned, (never did much good anyway, all one has to do is look at all the documented BSE countries now that went by the OIE very weak BSE surveillance guidelines to begin with),

* GAO-05-51 October 2004 FOOD SAFETY (over 500 customers receiving
potentially BSE contaminated beef) - TSS 10/20/04

October 2004 FOOD SAFETY
USDA and FDA Need
to Better Ensure
Prompt and Complete
Recalls of Potentially
Unsafe Food


Page 38 GAO-05-51 Food Recall Programs
To examine the voluntary recall of beef products associated with the
December 2003 discovery of an animal infected with BSE, we analyzed the
distribution lists USDA collected from companies and the verification
checks it conducted to develop a diagram illustrating the location and
volume of recalled beef that reached different levels of the distribution
chain. We compared the distribution lists and verification checks to
identify how many customers listed on the distribution lists did not
the recalled beef and the number of customers not listed on distribution
lists that received the recalled beef. We interviewed USDA and FDA staff
involved with the recall to understand the timing of recall actions and the
challenges encountered during the recall.
To develop information on the 2002 recall of ground beef by a ConAgra
plant in Greeley, Colorado, we reviewed USDA s recall file and other
documents on the recall. We also met with the department s Office of
Inspector General and reviewed the Inspector General s September 2003
We conducted our review from May 2003 through August 2004 in
accordance with generally accepted government auditing standards.
1U.S. Department of Agriculture, Office of Inspector General, Great
Plains Region Audit
Report: Food Safety and Inspection Service: Oversight of Production
Process and Recall at
ConAgra Plant (Establishment 969), Report No. 24601-2-KC (September 2003).
Page 39 GAO-05-51 Food Recall Programs
Appendix II
Federal Actions Associated with the
Discovery of an Animal in the United States
Infected with BSE Appendix II
On December 23, 2003, USDA announced that a cow in the state of
Washington had tested positive for BSE commonly referred to as mad
cow disease. This appendix describes the actions USDA took to recall the
meat and the actions FDA took with respect to FDA-regulated products,
such as animal feed and cosmetics, made from rendered parts of the
Beef Recall Was
Triggered by a BSEPositive
Sample from
One Cow
On December 9, 2003, the recalling company slaughtered 23 cows. USDA,
in accordance with its BSE surveillance policy at the time, took a
sample of
1 cow that was unable to walk, although the condition of the tested cow is
now disputed. USDA did not process the sample in its Ames, Iowa National
Veterinary Services Laboratory in an expedited manner because the cow
did not show symptoms of neurological disorder. USDA test results
indicated a presumptive positive for BSE on December 23, 2003.
Recall Begun in
December 2003 Was
Completed in March
On December 23, 2003, after learning about the positive BSE test, USDA
headquarters notified the Boulder District Office, which is the field
with jurisdiction over the recalling firm. The Boulder District began
gathering information about the recalling company s product distribution.
Field staff telephoned the recalling company and were on-site at 7:00 p.m.
The Boulder District initially thought 3 days of the recalling company s
production would have to be recalled, but further examination of facility
cleanup and shipping records revealed that it was only necessary to
recall 1
day of production. USDA recall staff convened at 9:15 p.m. and discussed
the science related to BSE and whether the recalling company s cleanup
practices were sufficient to limit the recall to 1 day of production.
Following USDA s determination to conduct a Class II recall that is, the
beef posed a remote possibility of adverse health consequences USDA
contacted the recalling company to discuss recall details and the press
release. The press release and Recall Notification Report were released
that evening.
On December 24, 2003, USDA s Food Safety and Inspection Service (FSIS)
sent inspectors to the recalling company s primary customers to obtain
secondary customer distribution lists and product shipping records. USDA
conducted 100 percent verification checks for this recall it contacted
every customer that received the recalled meat. This level of verification
checks is well above the percentage of checks conducted by USDA district
offices for the Class I recalls we reviewed.
Appendix II
Federal Actions Associated with the
Discovery of an Animal in the United States
Infected with BSE
Page 40 GAO-05-51 Food Recall Programs
On December 26, 2003, USDA began checking the primary and secondary
customers of the recalling company that it was aware of, although the
entire product distribution chain was unknown. During the checks, USDA
tried to determine if the product was further distributed, and it used
verification checks to acquire distribution lists for secondary and
customers of the recalling company.
Verification checks continued until February 25, 2004. Three USDA
districts conducted these verification checks. The Boulder District
coordinated the checks and assigned checks to the Minneapolis District
Office for customers in Montana and to the Alameda District Office for
customers in California. USDA required that 100 percent of the primary
checks, 50 percent of the secondary checks, and 20 percent of the tertiary
checks be conducted on-site. According to USDA, more than 50 percent of
the secondary checks were actually conducted on-site. FDA officials
helped conduct verification checks. According to USDA, the recall took a
long time to complete because USDA contacted each customer at least
twice. USDA first contacted each customer to conduct the check and again
to verify product disposition.
On February 25, 2004, the Boulder District concluded that the recall was
conducted in an effective manner. On March 1, 2004, USDA s Recall
Management Division recommended that the agency terminate the recall,
and USDA sent a letter to the recalling company to document that USDA
considered the recall to be complete.
Recall Was
Complicated by
Inaccurate Distribution
Lists and Mixing of
Contaminated and
Noncontaminated Beef
USDA used distribution lists and shipping records to piece together where
the recalled product was distributed. According to USDA, one of the
recalling company s three primary customers was slow in providing its
customer list. USDA could not begin verification activities for that
customer without this list. Furthermore, some customers of the recalling
company provided USDA with imprecise lists that did not specify which
customers received the recalled product. As a consequence, USDA could
not quickly determine the scope of product distribution and had to take
time conducting extra research using shipping invoices to determine which
specific customers received the product.
Even when USDA determined the amount and location of beef, the agency
still had trouble tracking the beef in certain types of establishments,
as grocery store distributors. USDA could not easily track the individual
stores where those distributors sent the beef because of product mixing
Appendix II
Federal Actions Associated with the
Discovery of an Animal in the United States
Infected with BSE
Page 41 GAO-05-51 Food Recall Programs
and the distributors record-keeping practices. Generally, distributors
purchase beef from multiple sources, mix it in their inventory, and lose
track of the source of the beef they send to the stores that they
supply. To
deal with this problem, USDA first identified the dates when recalled beef
was shipped to the distributors and then asked for a list of the stores
were shipped any beef after those dates. Consequently, some stores were
included in the recall that may never have received recalled beef.
The recall was also complicated by repeated mixing of recalled beef with
nonrecalled beef, thereby increasing the amount of meat involved in the
recall. The recalling company slaughtered 23 cows on December 9, 2003,
and shipped those and 20 other carcasses to a primary customer on
December 10, 2003. The recalling company s carcasses were tagged to
identify the slaughter date and the individual cow. The primary customer
removed the identification tags and mixed the 23 recalled carcasses with
the 20 nonrecalled carcasses. Because the carcasses could not be
distinguished, the recall included all 43 carcasses at the primary
After one round of processing at the primary customer, the meat from the
carcasses was shipped to two other processing facilities. Both
establishments further mixed the recalled meat from the 43 carcasses with
meat from other sources. In all, the mixing of beef from 1 BSE-positive cow
resulted in over 500 customers receiving potentially contaminated beef.
Imprecise distribution lists and the mixing of recalled beef combined to
complicate USDA s identification of where the product went. Specifically,
on December 23, 2003, USDA s initial press release stated that the
company was located in Washington State. Three days later, on December
26, 2003, USDA announced that the recalled beef was distributed within
Washington and Oregon. On December 27, 2003, USDA determined that one
of the primary customers of the recalling firm distributed beef to
in California and Nevada, in addition to Washington and Oregon, for a total
of four states. On December 28, 2003, USDA announced that some of the
secondary customers of the recalling company may also have distributed
the product to Alaska, Montana, Hawaii, Idaho, and Guam, for a total of
eight states and one territory.
On January 6, 2004, over 2 weeks from recall initiation, USDA determined
that the beef went to only six states Washington, Oregon, California,
Nevada, Idaho, and Montana and that no beef went to Alaska, Hawaii, or
Guam. To reach that conclusion, USDA used the distribution lists, shipping
records, and sales invoices that it received from companies to piece
together exactly where the recalled beef may have been sent. The lists
Appendix II
Federal Actions Associated with the
Discovery of an Animal in the United States
Infected with BSE
Page 42 GAO-05-51 Food Recall Programs
showed that 713 customers may have received the recalled beef; 6 of those
may have received beef from more than one source. USDA determined that
176 customers on the lists did not actually receive recalled beef,
the customers in Guam and Hawaii. USDA s review also indicated that
recalled beef was probably not shipped to Alaska or Utah, and USDA
checked 2 retailers in Alaska and 3 retailers in Utah to confirm that
was the
case. In total, USDA conducted verification checks on 537 of the 713
customers on the lists. USDA s initial checks identified an additional 45
customers that may have received the recalled beef that were not included
on the distribution lists, for a total of 582 verification checks. Figure 4
summarizes USDA s verification efforts during the recall.
Appendix II
Federal Actions Associated with the
Discovery of an Animal in the United States
Infected with BSE
Page 43 GAO-05-51 Food Recall Programs
Figure 4: USDA s Recall Verification Checks by Location and Customer
Type for Meat Associated with the Animal Infected with
Note: USDA checked 15 primary, 40 secondary, and 526 tertiary customers
plus the recalling
company, for a total of 582 verification checks.
USDA s press release stated that the recall involved 10,410 pounds of beef
products, and the USDA recall coordinator for this recall told us that
downstream processors mixed the recalled beef with nonrecalled beef, for
a total of more than 38,000 pounds of beef that was distributed at the
secondary customer level. According to USDA officials involved with the
D = Distributor
R = Retailer
SF = Storage facility
P = Processor
Primary customers
(15 total)
(WA) 1 R
1 P
(WA) 1 P
1 P
11 R
Secondary customers
(40 total)
Tertiary customers
(526 total)
1 R
1 SF
3 D
3 D
2 dual D
59 R
79 R
5 R
3 R
4 R
161 R
8 R
15 R
2 R
31 R
(OR) 8 R
10 R
5 R
10 R
2 R
17 R
5 R
1 D
11 R
85 R
3 D
(OR) 11 R
2 D
(CA) 26 R
2 R
( ) Acronyms in parentheses are postal abbreviations for each state.
Source: GAO analysis of USDA verification check documents.
Appendix II
Federal Actions Associated with the
Discovery of an Animal in the United States
Infected with BSE
Page 44 GAO-05-51 Food Recall Programs
recall, the precise amount of meat that was sold at the retail level is
unknown because retailers at the tertiary level further mixed nonrecalled
meat with potentially contaminated meat. USDA told us that more than
64,000 pounds of beef was ultimately returned or destroyed by customers,
and that, because of the mixing, it was not able to determine how much of
the original 10,410 pounds of recalled beef was contained in the 64,000
pounds that were recovered.
FDA s Role in USDA s
Parts of the BSE-infected animal slaughtered on December 9, 2003, were
not used for food, but they were sent to renderers to be separated into raw
materials, such as proteins and blood. Rendered materials are used for
many purposes, including cosmetics and vaccines. FDA has jurisdiction
over renderers.
When USDA learned of the BSE-infected cow on December 23, 2003, the
agency immediately notified FDA. On December 24, 2003, FDA sent an
inspection team to a renderer that handled materials from the BSE cow.
Inspectors confirmed that the parts of the slaughtered BSE positive cow
were on the premises. FDA later identified a second company that
potentially rendered material from the slaughtered BSE cow. Both
renderers agreed to voluntarily hold all product processed from the
diseased cow and dispose of the product as directed by FDA and local
On January 7, 2004, 15 containers of potentially contaminated, rendered
material (meat and bone meal) were inadvertently loaded on a ship, and on
January 8, 2004, the ship left Seattle, Washington, for Asia. The renderer
initiated steps to recover the shipped material, so it could be disposed
of as
directed by FDA and local authorities. The ship carrying the material
returned to the United States on February 24, 2004, and the material was
disposed of in a landfill on March 2, 2004.
On January 12, 2004, FDA asked both renderers to expand their voluntary
holds to rendered materials processed from December 23, 2003, through
January 9, 2004, because they may have rendered some recalled meat or
trim that was recovered from retail establishments. Both renderers agreed
to the expanded product hold. In total, FDA requested that renderers
voluntarily hold approximately 2,000 tons of rendered material. FDA
confirmed that none of the potentially contaminated, rendered material
entered commerce, because FDA accounted for all rendered material. FDA
Appendix II
Federal Actions Associated with the
Discovery of an Animal in the United States
Infected with BSE
Page 45 GAO-05-51 Food Recall Programs
reported that no recall was necessary because no product was distributed
commercially by the rendering companies.
Worked Together on
the Recall
USDA and FDA worked together in two ways. First, both agencies notified
each other if their investigations yielded any information about products
within the jurisdiction of the other agency. For instance, when conducting
the second round of verification checks, USDA tracked the disposition of
the product to renderers and landfills and notified FDA when the product
went to renderers. Second, FDA officials helped conduct verification
checks. FDA conducted 32 of the 582 verification checks (approximately 5
percent) for the USDA recall. Officials from both agencies indicated they
regularly interacted and shared information. Table 3 outlines the agencies
Table 3: Detailed Timeline of USDA, FDA, and Company Actions Related to
the Discovery of an Animal Infected with BSE
Date USDA recall actions FDA actions Company actions
12/9/03 " USDA samples cow for BSE. " BSE cow is slaughtered.
12/11/03 " Sample is sent to Ames, Iowa, for BSE
" Recalling company sends
carcasses to primary customer for
12/12/03 " Primary customer sends meat
products to two other primary
customers for further processing.
12/12 -
" Other primary customers distribute
recalled product to secondary
" Secondary customers distribute
recalled product to tertiary
12/23/03 " BSE test results are presumptively
" Recall meeting.
" Initiation of voluntary recall.
" Press release.
" FDA notified of BSE test results.
" FDA dispatches investigation teams.
12/24/03 " FDA inspects Renderer 1.
" FDA determines some rendered
material from Renderer 1 is intended
for Indonesia.
" FDA discovers some material may
have been sent to Renderer 2.
" Renderer 1 agrees to hold remaining
rendered material.
" Recalling company contacts
primary customers.
" Primary customers contact their
Appendix II
Federal Actions Associated with the
Discovery of an Animal in the United States
Infected with BSE
Page 46 GAO-05-51 Food Recall Programs
12/25/03 " USDA receives confirmation from
reference lab in England that cow in
question is BSE positive.
12/26/03 " Verification checks begin
" USDA announces recalled product in
Washington State and Oregon.
" FDA begins process of comparing
records to ensure all products from
Renderers 1 and 2 are accounted for.
" Renderer 2 agrees to hold all material
that may have been derived from
BSE cow. None of the rendered
material has been distributed.
12/27/03 " USDA announces recalled product was
distributed in Washington State,
Oregon, California, and Nevada.
" FDA issues statement confirming that
the rendering plants that processed
all of the nonedible material from the
BSE cow have placed a voluntary
hold on all of the potentially infectious
product, none of which had left the
control of the companies and entered
commercial distribution.
12/28/03 " USDA announces recalled product was
distributed in Washington State,
Oregon, California, Nevada, Montana,
Idaho, Alaska, Hawaii, and Guam.
12/29/03 " Food Safety and Inspection Service
determines that the recalled meat
products were distributed to 42
locations, with 80 percent of the
products distributed to stores in
Oregon and Washington State.
12/31/03 " FDA offers assistance to USDA to
complete recall verification checks.
1/6/04 " USDA determines recalled product
was only distributed in Washington
State, Oregon, California, Nevada,
Montana, and Idaho.
1/8/04 " FDA is notified by the renderer that
some of the rendered material on
hold from Renderer 1 was
inadvertently shipped to Asia.
Renderer 1 commits to isolate and
return the rendered material.
" Rendering company notifies FDA of
shipment of product on hold.
(Continued From Previous Page)
Date USDA recall actions FDA actions Company actions
Appendix II
Federal Actions Associated with the
Discovery of an Animal in the United States
Infected with BSE
Page 47 GAO-05-51 Food Recall Programs
Source: GAO analysis of USDA and FDA information.
1/12/04 " FDA advises Renderers 1 and 2 that
they may have rendered meat or trim
subject to recall from retail stores.
" FDA requests Renderers 1 and 2 to
place all rendered material from
December 23 to January 9 on hold.
" FDA determines neither renderer had
shipped rendered material
manufactured after December 23,
2/9/04 " All rendered material was disposed of
in landfill, except material shipped to
2/24/04 " Ship carrying rendered material
returns to U.S. port.
2/25/04 " Verification checks complete.
" USDA Boulder District Office
concludes recall is effective.
3/1/04 " Recall is closed.
3/2/04 " FDA observes disposal in landfill of
remaining rendered material...



1. Food Safety: USDA and FDA Need to Better Ensure Prompt and Complete
Recalls of Potentially Unsafe Food. GAO-05-51, October 7.tss
Highlights -

Appendix C. Agents that require specific government approval for scientific investigations within the USA.a

Select agents, U.S. Department of Health and Human Services onlyb
High consequence pathogens and agents, U.S. Department of Agriculture onlyc
HIgh consequence livestock pathogens and toxins, overlap agents and toxinsd

(NO HUMAN TSE LISTED ???...tss) BSE agent

QFC sued over mad cow case

Grocer negligently exposed them to beef, family claims

Friday, March 5, 2004


An Eastside family who says they ate beef linked to the nation's only
known case of mad cow disease yesterday filed a class-action lawsuit
against QFC, claiming the grocery store chain negligently exposed them
and others to "highly hazardous" meat and did not properly notify them
that they had bought it.

Attorneys for Jill Crowson, a 52-year-old interior designer from Clyde
Hill, filed the lawsuit in King County Superior Court on behalf of her
family and possibly hundreds of other customers who unwittingly bought
and consumed beef potentially exposed to mad cow disease.

"I was pretty upset about it," Crowson said. "I've spent all of my kids'
lives trying to be a responsible parent for them to keep them safe. I
felt badly that the food I served could be harmful to their health."

The lawsuit is believed to be the first stemming from this country's
only confirmed case of mad cow disease, or bovine spongiform
encephalopathy, which was detected in a slaughtered Holstein from a
Yakima Valley ranch on Dec. 23.

Neither officials at Quality Food Centers' Bellevue headquarters, or
Kroger -- the company's Ohio-based corporate parent -- could be reached
for comment about the lawsuit yesterday.

The suit contends the family bought and later ate ground beef from their
local QFC that was part of a batch processed at Vern's Moses Lake Meats
on Dec. 9 and included meat from the diseased Holstein.

The beef was later shipped to wholesalers and retailers in Washington,
Oregon, California, Idaho, Montana and Nevada.

On Dec. 23 -- after government scientists confirmed the Holstein was
infected with BSE -- businesses began pulling potentially affected beef
from store shelves under a voluntary recall.

But the family's suit claims that, although QFC was aware of the recall
on Dec. 23, the store did not begin pulling the recalled beef from about
40 of its stores that carried it until Dec. 24.

The company also did not try to warn customers about the recalled beef
until Dec. 27 -- and only then with small, inconspicuous signs inside
the stores, the suit claims.

Steve Berman, the family's attorney, said the company had "a duty to
warn" consumers who bought the beef under terms of the Washington
Product Liability Act.

QFC could've easily notified customers by taking out TV, radio or
newspaper ads, or by tracking and notifying those who bought the beef
through customers' QFC Advantage Cards, Berman said.

At Berman's downtown Seattle firm yesterday, Crowson described how on
Dec. 22 and Dec. 23 -- the day of the recall -- she bought single
packages of "9 percent leanest ground beef" from her local QFC store at
Bellevue Village.

Crowson took the beef home, cooked it and made tacos one night and
spaghetti the next -- serving the dinners to herself; her daughter,
Laura, 22; son, Nicholas, 19; and her niece, Claire De Winter, 23.
Members of the family also ate leftovers from those meals for the next
several days, Crowson said.

"When the news about mad cow came out, I instantly became concerned,"
Crowson said. "But the initial stories didn't mention anything about
QFC, so I thought we were OK."

While shopping at the grocery store a few days later, Crowson said she
asked a store butcher whether QFC stores had sold any of the recalled
beef. The butcher assured her they had not, she said.

The family only learned QFC had sold any of the beef in question after
reading a news story Jan. 10 about a Mercer Island man who discovered
his family had eaten affected beef that he bought at a local QFC store,
Crowson said.

Crowson later called QFC and faxed the company a signed letter asking
that it track purchases made on her QFC Advantage Card -- a store
discount card issued to customers. On Jan. 12, the company notified
Crowson that the beef she bought and served to her family was, in fact,
part of the recalled batch, she said.

Scientists believe people who eat beef from infected cows can contract a
fatal form of the disease.

The family is "now burdened with the possibility that they presently
carry (the disease) that may have an incubation period of up to 30
years," the lawsuit says.

Lawyers for the family say they believe hundreds, if not thousands, of
QFC customers, and those of other stores, likely ate beef from the
recalled batch -- the reason why Berman filed their legal claim as a
class-action lawsuit. A USDA official this week said that up to 17,000
pounds of meat affected by the recall likely was eaten or thrown out by

Berman added that an investigator from his firm learned that QFC buys
beef for its "9 percent leanest ground beef" products in large tubs that
can weigh several hundred pounds, and then regrinds and packages the
meat for sale.

Because QFC stores regrind the beef before selling it, Berman contends
that makes the store a manufacturer responsible under the Washington
Product Liability Act for not selling any unsafe product.

Scientists believe people who eat beef from cows infected with BSE can
contract variant Creutzfeldt-Jakob, a fatal brain-wasting disease that
has been detected in about 150 people worldwide.

However, officials with the U.S. Agriculture Department have repeatedly
said the risk from eating muscle cuts from an infected cow -- the likely
cut of meat processed and sold for hamburger in the recalled batch -- is
extremely low.

Although Crowson said she tries not to "obsess over it," she is fearful
that her family could one day become sick.

"It's pretty scary," she said.

Because no medical test is available to determine whether a living
person is infected with the disease, the couple's "stress and fear
cannot be allayed," the lawsuit said.

The family seeks unspecified damages for emotional distress and medical
monitoring costs.

Crowson said her reason for bringing the lawsuit isn't about money. "The
more I've thought about this, the angrier I've gotten," she said.


QFC s Delayed Mad Cow Response Draws Lawsuit
Family claims QFC should have used customer database to warn those at
risk sooner

March 05, 2004

SEATTLE A Bellevue, Wash. family today filed a proposed class-action
lawsuit against Quality Food Centers (QFC), a subsidiary of Kroger
(NYSE: KR), claiming the grocery store chain should have used
information gathered through its customer loyalty program to warn those
who purchased beef potentially tainted with mad cow disease.

The suit, filed in King County Superior Court, seeks to represent all
Washington residents who purchased the potentially tainted meat, and
asks the court to establish a medical monitoring fund.

Jill Crowson purchased the potentially tainted beef from a Bellevue QFC
on Dec. 22 and 23, and used her Advantage Card, QFC s customer loyalty
program. She served the meat to her husband over Dec. 25 and 26, and
later heard of the recall in the newspaper.

Steve Berman, the attorney representing the Crowsons, asserts that since
the company tracks purchases, it should have warned the Crowsons and
many other customers who purchased the beef at approximately 40 stores
across Washington.

If you lose your keys with an Advantage Card attached, QFC will return
them to you free of charge, said Berman. If they can contact you over
a lost set of car keys, why couldn t they contact you and tell you that
the beef you purchased could kill you?

QFC is among the large number of grocers that track customer purchases
through loyalty cards like the Advantage Card. Once a customer shares
contact information including name, address and phone number they
are given discounts on certain items.

Regardless of any discounts offered, the loyalty card tracks customers
every purchase and stores them in a central database, the complaint states.

We contend that QFC knew which Advantage Card customers purchased the
suspect meat, and could have easily called to warn them, said Berman.
Instead, QFC used a series of spurious excuses to hide their failure to

On Dec. 23, the U.S. Department of Agriculture ordered the recall of
approximately 10,410 pounds of raw beef that may have been infected with
bovine spongiform encephalopathy (BSE), which if consumed by humans can
lead to the always-fatal Cruetzfeldt-Jakobs Disease (vCJD).

According to the complaint, QFC at first mistakenly believed it did not
have any of the affected beef and took no action to remove the product
from its shelves. The store later removed the beef on Dec. 24, but then
did little to warn those who earlier purchased the meat, the suit claims.

It wasn t until Dec. 27 that the grocery chain posted small signs with
information about the recall, the complaint alleges.

The Crowsons contacted QFC when they suspected they had purchased the
potentially tainted meat, but QFC would not confirm their suspicions for
two more weeks, the suit states. According to Berman, the family had to
file a written request before QFC would confirm their fears.

According to health experts, Cruetzfeldt-Jakobs Disease can have an
incubation period of as long as 30 years. There is no test to determine
if infection took place after possible exposure, nor is there any
treatment once one is infected. The condition is always fatal.

If the court grants the suit class-action status, QFC would likely be
compelled to turn over the names of those who purchased the potentially
tainted beef.

The proposed class-action claims QFC violated provisions of the
Washington Product Liability Act by failing to give adequate warning to
consumers about the potentially dangerous meat.

The suit seeks unspecified damages for the plaintiffs, as well as the
establishment of a medical monitoring fund.

QFC's Delayed Mad Cow Response Draws Lawsuit

... subsidiary of Kroger , claiming the grocery store chain should ...
beef potentially tainted with "mad cow disease ... beef at approximately
40 stores across Washington. ... sff005.P2.03042004214558.03634.html - 9k -

040307 Woman Sues QFC Over Mad-Cow Recall
... Jakob disease, the
human form of mad-cow, from eating ... QFC is subject to the Washington
Product Liability ... been found in a slaughtered Yakima County dairy
cow. ... - 6k

Date: October 1, 2004 at 2:22 pm PST


Schwarzenegger Vetoes Meat Recall Disclosure Bill

Legislation Would Have Identified Stores that Received Contaminated Meat
and Poultry

Governor Arnold Schwarzenegger (R-CA) vetoed a bill yesterday that would
have let Californians know whether they ve purchased contaminated meat
or poultry. The bill, SB 1585, would have ended a secrecy agreement
between the U.S. Department of Agriculture (USDA) and California that
prevents the state from disclosing the names and locations of stores
that receive shipments of recalled meat.

Consumers have a right to know if they purchased recalled meat or
poultry, said Ken Kelly, Staff Attorney at the Center for Science in
the Public Interest (CSPI). Why force families to roll the dice when
they put food on the table? Governor Schwarzenegger prefers a
get-sick-first, ask-questions-later policy.

Earlier this year, California was one of several states that received
meat from the Washington State cow that tested positive for mad cow
disease. But because California is one of 12 states that have signed a
secrecy agreement with USDA, state health officials were prohibited from
identifying stores or restaurants that may have received beef from the
infected cow. Even recalled meat tainted with deadly E. coli 0157:H7
bacteria would be subject to the secrecy agreement, leaving consumers
uncertain as to whether the ground beef in their refrigerator were safe
to eat.

In his veto message, Governor Schwarzenegger indicated he would instruct
the state s health department to renegotiate an agreement that would
allow USDA to share recall information with local public health
officials. But according to CSPI, even if USDA agreed to share recall
information with local officials, the local officials would be similarly
prohibited from disclosing names of retail outlets with consumers. In
August, CSPI urged USDA not to force states to sign any such secrecy
Federal and state government should be more concerned with protecting
consumers from unnecessary hospitalizations and deaths associated with
food-borne illness, and less concerned with protecting grocers and meat
producers from bad publicity, Kelly said.




QUALITY FOOD CENTERS, INC., an Ohio corporation Defendent

NO. 04-2-05608-0 SEA


The Court hereby GRANTS the defendant's motion to dismiss the plaintiff's
claims based on a manufacturer's strict liability (Counts I and II) and
DENIES the defendant's motion to dismiss the plaintiff's claim of negligence
by a product seller (Count III).

DATED this 14th day of June, 2004


Date Filed: March 5, 2004
Court: King County Superior Court (Washington)
Location: Seattle
Ticker Symbol: NYSE:KR

Join This Suit
Tell a Friend

Consumers filed a proposed class-action lawsuit against Quality Food Centers
(QFC), a subsidiary of Kroger (NYSE: KR), claiming the grocery store chain
should have used information gathered through its customer loyalty program
to warn those who purchased beef potentially tainted with �mad cow disease.�
The USDA issued a recall notice for the meat on December 23, 2003. QFC sold
the meat through its approximately 40 stores across Washington.

The suit claims that even though QFC had the ability to quickly warn every
customer who purchased the potentially deadly meat if they used the QFC
Advantage Card at the time of purchase, the grocery store neglected to do

The suit seeks to represent every consumer in Washington state who purchased
the recalled meat from QFC.

Recent Updates

June 14, 2004 - the King County Superior Court gave the green light to a
suit claiming QFC didn't do enough to warn customers about beef potentially
tainted with 'mad cow disease,' finding enough questions about the beef and
QFC's responsibility to explore in the courtroom.

Read the court order.

QFC - 'Mad Cow' Frequently Asked Questions

The Suit

What is the key issue in this suit?
On December 23, 2003, the United States Department of Agriculture (USDA)
recalled more than 10,000 pounds of raw beef that could have been exposed to
bovine spongiform encephalopathy (BSE). Humans consuming BSE-tainted meat
can contract Creutzfeldt-Jakob Disease (vCJD), an always-fatal condition.

QFC sold this meat throughout its stores in Washington. Even though QFC had
the ability to quickly warn every customer who purchased the potentially
deadly meat if they used the QFC advantage card at the time of purchase, the
grocery store neglected to do so, the suit alleges.

Who does the suit seek to represent?
The suit seeks to represent all persons who purchased recalled meat from any
QFC store in the state of Washington.

Who are the defendants?
Quality Food Centers, or QFC. Once a local, Northwest company, QFC is now a
wholly owned subsidiary of the grocery chain giant, Kroger.

What does the suit seek?
The suit asks the court to order QFC to establish a medical monitoring fund
which would allow those who purchased and consumed the meat to seek medical
care, checking for � and if necessary, treating --- the infection of vCJD.
The suit also seeks the creation of a medical notification system, allowing
those who may have been exposed to the disease to receive periodic updates
on research and treatment of vCJD. The suit also seeks unspecified damages
for the plaintiffs.

Does the suit claim QFC violated specific laws?
Yes. The lawsuit claims QFC violated the Washington Product Liability Act.
In addition, the suit claims QFC was negligent by not warning consumers of
the dangers associated with the affected meat.

Where was the lawsuit filed?
The suit was filed in King County Superior Court on March 4, 2004.

How do I determine if I qualify to join the lawsuit?
If you have a QFC Advantage card and believe that you bought recalled meat
from a QFC store, you may be eligible to join the lawsuit. Click here to
fill out the sign-up request form, or you can contact Hagens Berman


What is the QFC Advantage Card?
The Advantage Card is known in the grocery industry as a Customer Loyalty
Card. Customers who sign up for QFC�s Advantage Card receive special
discounts on selected items, but gives the grocery store chain the ability
to track consumers� purchases in order to enhance their marketing efforts.
In addition, grocery chains which offer affinity card programs often use the
database and shopping pattern data to send users coupons and other marketing
material. According to the complaint, QFC tracks every purchase made by
consumers presenting the Advantage Card, including product description, date
of purchase, store of purchase and the price, and saves that data with
customer contact information.

What was QFC�s response to the meat recall?
On Dec. 23, 2003, QFC received notice from the U.S. Department of
Agriculture (USDA) of a recall of approximately 10,410 lbs. of raw meat that
may have been contaminated with the infectious agent that causes �mad cow�
disease. QFC did not act immediately on the recall notice but initially
responded by denying that it had any of the tainted meat. On December 24 QFC
pulled the meat from its shelves, but the company took no steps to directly
warn consumers. It was not until Dec. 27 that QFC posted small signs in its
stores recalling the tainted beef, according to the complaint. During that
four day period when QFC was silent hundreds of consumers may have eaten the

Can QFC determine if an Advantage Card holder purchased the potentially
dangerous meat?
Yes. In fact, consumers can now contact QFC directly and the company will
provide information about meat purchases � but only if you ask. Hundreds of
other consumers who purchased the meat and are unaware of the situation have
not heard from QFC, the complaint states.

Why was QFC sued even though they pulled the meat?
Under Washington law since QFC ground the meat it is deemed a manufacturer
and is strictly liable for any unsafe product. In addition QFC possessed
specific and easily obtainable information on which customers purchased the
recalled meat, but did not act to inform customers, the suit states.
Considering the potential danger and risk of worry for consumers, and the
ease of contacting consumers using database information, simply pulling the
meat from the shelves and belatedly posting small signs was not an adequate
response, according to the complaint.

What information on customer purchases does QFC track with the Advantage
QFC tracks every purchase that a customer with an Advantage Card makes,
regardless of whether discounts are offered or not, according to the

Does the recently announced larger-than-expected recall of beef affect the
No. Regardless of the size of the beef recall, attorneys believe the facts
in the case remain the same.

How can I find out if I bought recalled meat from QFC?
If you believe that you may have purchased recalled meat from a QFC store,
and you have an Advantage Card, you can contact QFC and ask if your record
shows you purchased recalled beef. You can contact QFC at 866-221-4141.

Isn�t QFC prohibited by privacy laws from contacting consumers with warnings
like this?
No � the suit notes that the company will return car keys returned to the
store if the keys have an Advantage Card attached. According the complaint,
If QFC can return car keys by mail, why can�t they send a notice saying the
meat a customer purchased in their store could cause an incurable, fatal
disease? Further privacy laws would prevent QFC from disclosing information
to third parties, disclosing the information to the customer whose card it
is does not violate privacy laws. For example, if a trade group wanted to
know the names of consumers who purchased a given drug sold at QFC,
disclosure of that private information might be a privacy concern. However,
disclosure to a consumer of his own records is not.

�Mad Cow� Disease

What is Mad Cow disease?
In cows, mad cow disease is defined as bovine spongiform encephalopathy
(BSE), and is a progressive neurological disease. The human disease variant
is know as Creutzfeldt-Jakob Disease (vCJD), which is a rare brain disorder
that causes a rapid, progressive dementia and is always fatal, according to
the complaint.

Where can I get more information on Mad Cow disease?
The USDA provides information on the disease at

What should I do if I believe that I�ve eaten recalled meat?
According to the complaint, no screening tests or treatments have been found
for Creutzfeldt-Jakob disease. Those who suspect they�ve eaten recalled meat
should contact their physician for more information.

Do Stores That Offer Loyalty Cards Have a Duty to Notify Customers of
Product Safety Recalls?
A Recent Suit Raises This Novel Question

Thursday, Aug. 05, 2004

An interesting new Washington state court suit raises an important question:
If a retailer benefits from collecting personally identifiable information
about its customers, does it have a corresponding duty to use such data to
alert its customers that products they've bought have been recalled for
health or safety reasons? And if so, could turning over private data to
companies actually create benefits, as well as privacy risks, for the

In the suit, consumer Jill Crowson is suing her grocery store -- Quality
Food Center (QFC), a subsidiary of Kroger -- for negligent infliction of
emotional distress and disregard of a "duty to warn" under the Washington
Product Liability Act. Crowson alleges in her complaint that QFC failed to
alert her family that ground beef it had sold them had been recalled in
December's mad-cow scare.

Yet, Crowson says, QFC easily could have done so through information it
maintained connected with her Advantage card - a "loyalty card" that meant
QFC had Crowson's name, address and purchasing information. According to her
complaint, QFC tracks every purchase made by consumers presenting the
Advantage Card, including product description, date of purchase, store of
purchase and the price, and saves that data alongside customer contact

Now, Crowson says, her family members "feel like walking time bombs" knowing
they may be infected with the human form of mad-cow disease which the
complaint states may have an up-to-30-year incubation period. And they are
not the only ones: Crowson is seeking class action status for herself and
what she believes are "hundreds" of similarly-situated Washington customers
at QFC's approximately 40 stores in the state.

Some lawyers think Crowson's suit is a stretch. Federal law does not impose
on companies a specific duty to notify consumers when tainted meat is
recalled under the direction of the U.S. Department of Agriculture (USDA),
as was the case here. Also, Crowson and her family, and the class she seeks
to represent, are suing based on fear (and possible future harm), not
current illness. Moreover, the chance they will actually get Mad Cow Disease
some time in the future are apparently remote.

Nevertheless, the lawsuit has strong intuitive appeal: QFC could have saved
the Crowsons and others like them a lot of worry, and perhaps sleepless
nights, with what appears would have been minimal effort, using information
at its digital fingertips. And the court has already once refused to dismiss
it - finding that there were sufficient factual questions about the beef and
about QFC's responsibility to the Crowsons, to merit further exploration of
the evidence, through discovery and in the courtroom.

Regardless of the outcome of Crowson's suit, it underscores the need for
retailers and policymakers to examine what sort of responsibilities come
with private data gathering under loyalty card schemes.

The Lawsuit: The Chronology of Facts Alleged, and the Loyalty Card at Issue

On December 22 and 23, 2003, Crowson bought ground beef from a QFC store.
Also on December 23, 2003, the USDA recalled Washington beef after it
confirmed that a cow slaughtered in Washington had been infected with Mad
Cow Disease. But Crowson says QFC did not pull the affected meat from its
shelves until December 24, and did not post signs in its stores announcing
the recall until December 27. By then, the Crowson family had eaten the

Crowson states that she only learned of the recall by reading an article in
her local newspaper. She said she subsequently called the supermarket chain,
then faxed QFC a letter asking that her purchase be traced through her QFC
Advantage card. On January 10, she was notified that her ground beef
purchase was indeed from the recalled batch.

Crowson says that what QFC allegedly did in response to the recall - pulling
the beef from shelves the next day, and posting signs three days after
that -- was far from enough. She says it should have immediately warned
customers who had bought possibly tainted meat through newspaper, radio and
television advertising -- and by contacting individually those who, like
her, had Advantage cards. Its failure to do so, she says, is what makes the
company liable to her and other shoppers.

The Advantage Card is known in the retail industry as a customer "loyalty
card" - providing discounts on specific items, in exchange for consumer
information that will aid in better tailoring the company's marketing
efforts. Combining the data from one's loyalty card application with data
from other commercial databases or public records (for examples, mortgage
records, or court filings) can often allow a very specific profile of each

Some states limit the types of information that a grocery store can collect
from you when you register for a loyalty card. For example, California state
law prohibits a grocery store from requiring that you turn over your social
security or your driver's license number.

Companies, of course, stress the potential savings that might result from
use of a loyalty card. Consider, for instance, the sales pitch on the QFC
website it reads: "If you don't have a QFC Advantage Card, you're missing
out! The Advantage Card is a powerful new way to save on the groceries you
buy every day. It gives you the best of all possible worlds: premium
quality, superb service and lower prices. That's something no other grocery
store can match. So make sure you take advantage of the big savings."

Privacy advocates complain that loyalty cards result in the improper use -
and, often, sale to third parties - of customers' private information. QFC
apparently doesn't sell customers' data to third parties, however. Its
website promises that "QFC will not release your name to any list service or
manufacturer, and that such information will be held in the strictest of
confidence-even within our company."

Privacy advocates also warn, however, that even if third-party sales of data
are not allowed, the data compiled can always be accessed with a subpoena or
warrant and used against the customer in court proceedings. Meanwhile,
consumer advocates claim that certain loyalty cards don't really offer the
savings they promise. Nevertheless, numerous stores employ loyalty cards.

Turning the Privacy Debate on Its Head: With Great Information, Comes Great

The Crowson lawsuit turns the privacy debate on its head. Typically, privacy
advocates ask retailers to safeguard the personal information they collect
about their shoppers. In this case, in contrast, plaintiff is asking that
QFC delve into its database to notify her about a meat recall.

QFC does this very thing if a consumer loses his or her keys with an
Advantage Card attached to them - returning the keys free of charge. So
Crowson's attorney, Steve Berman, asks: "If they can contact you over a lost
set of car keys, why couldn't they contact you and tell you that the beef
you purchased could kill you?"

According to some news reports, QFC was reluctant to call customers
regarding the recall based on privacy concerns. But in this case, the
concerns seem misplaced. No privacy law is violated when a consumer
communicates with the customer herself regarding private information -
indeed, every offer the customer receives is, in a sense, this kind of
communication. When the customer is receiving personalized discounts based
on her purchase history, why can't she receive personalized health and
safety warnings based on that history, too?

Was There a Duty to Warn Here?

From the law's perspective, the question will be not whether QFC ideally
should have warned the Crowsons - of course it should have. The question
will be if it had a legal duty to do so. Such a duty would come from either
the common law of torts, which allows claims where there is a duty to behave
reasonably to prevent foreseeable harm to others. . Or it might come from
the Washington product liability statute - which, as noted above, creates a
"duty to warn" in certain situations.

And of course, if there is no current duty, the legislature may see fit to
pass a statute creating such a duty. :It may seem more prudent, however, for
retailers to voluntarily assume such a responsibility. When companies
benefit from collecting customer information, shouldn't they also assume a
duty to protect customers from known risks associated with that very
information? Some risks, of course, may be a matter of opinion. But this one
was not: The fact of the risk was acknowledged by the USDA recall of the
meat. With this kind of clear notice of the risk, it seems that QFC either
does - or ought to - have a duty to protect customers from this risk.

Of course, should a retailer not wish to take on this responsibility, it can
also change its loyalty program. QFC and other retailers could still track
consumer purchases without asking them for personally identifiable

FindLaw's Writ - Ramasastry: Mad Cow in the USA


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