New Law Helps DSHS Track Bad Food Sources

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Public Health Feature – November 2011

Tex Med. 2011;107(11):25-29.

By Crystal Conde
Associate Editor

In 2008, more than 500 Texans became ill in an outbreak of Salmonella Saintpaul traced to peppers. In the midst of the food-borne illness eruption that infected 1,442 people in 43 states, the District of Columbia, and Canada, the Texas Department of State Health Services (DSHS) had to rely on restaurants to tell them where they purchased their peppers.

DSHS Commissioner David Lakey, MD, says that's because the department didn't have the authority to license produce-only distributors.

"Once we were able to find some of these distributors and meet with them, we found many that didn't know safe food-handling practices," Dr. Lakey said.

During their four-month investigation, public health officials in Texas and other states probed clusters of sick people who had eaten at the same restaurants. The Food and Drug Administration (FDA) traced jalapeño peppers back to distributors in the United States that received produce grown and packed in Mexico. McAllen produce importer and distributor Agricola Zaragoza voluntarily recalled jalapeño peppers in July 2008 with the oversight of the FDA.

But now, legislation that passed during this year's legislative session will help DSHS identify the source of food-borne illness outbreaks, Dr. Lakey says. Senate Bill 81 by Senator Jane Nelson (R-Flower Mound), chair of the Senate Committee on Health and Human Services, increases the number of food wholesalers and warehouse operators that must obtain licenses from DSHS.

"Licensing helps DSHS know where the establishments are. If we don't license facilities, then we don't know where to look when something goes wrong," Dr. Lakey said.

Starting Sept. 1, 2012, distributors of fresh fruits and vegetables must have a DSHS license. The Texas Health and Human Services Commission (HHSC) will release licensing rules in the summer of 2012. The remainder of the statute took effect Sept. 1, 2011.

Senator Nelson says DSHS's inability to license produce-only distributors "made it impossible for state and local health officials to track food-borne illness outbreaks to any of these companies and also meant that there was no way to reach these companies with education and best practices on safe food handling."

She says requiring them to be licensed will allow public health officials to "respond more quickly and more efficiently to better protect the public." 

SB 81 combines several bills that also addressed food safety regulations at farmers' markets and in cottage food operations. (See "New Regulations Affect Farmers' Markets, Cottage Foods.")

Texas Medical Association physician leaders testified on food safety legislation as it evolved throughout the session. Senator Nelson says physician input on food safety during the session was invaluable. (See "Medicine Opposes Raw Milk Sales Expansion.")

"Physicians are often the very first point of contact for those who have been inflicted with food-borne illnesses. We need their input on how Texas can best respond to outbreaks," she said.

Dr. Lakey adds, "Physicians are a very important link for us to find and eliminate food-borne illnesses before an outbreak grows."

New Law Steps Up Licensing

The new regulations in SB 81 should improve DSHS's ability to improve food safety.

DSHS enforcement activities include follow-up inspections at establishments that have problems, sending warning letters, holding management meetings with the firms, and providing technical assistance.

When a food-borne illness outbreak involves a Texas manufacturer, wholesaler, or warehouse, DSHS can recall contaminated products, close establishments temporarily until they can ensure their food is safe or close them permanently, and levy fines.

The Texas Health and Safety Code requires the department to consider:  

  • Any previous violations,
  • The seriousness of the violation,
  • Any hazard to the health and safety of the public,
  • The entity's demonstrated good faith, and
  • Other related issues that may arise.   

DSHS can levy administrative penalties up to $25,000 per day per violation. According to Dr. Lakey, the agency normally doesn't assess maximum penalties. It typically negotiates administrative penalties with establishments during an informal enforcement conference, Dr. Lakey says. The agreed-to penalties generally are an amount necessary to make the offender comply with regulations. If an establishment can't comply and if the violation threatens the public's health or has caused injuries or illnesses, he says, DSHS seeks maximum penalties.

Texas law also allows DSHS, through the Attorney General's Office or a district, county, or city attorney, to seek civil penalties of up to $25,000 per day per violation of the regulations.

The legislature didn't appropriate more funding to DSHS for 2012-13 to conduct additional inspections, issue additional licenses, and oversee compliance and enforcement activities related to food safety. In fact, the appropriation to the department's food and drug strategy decreased by about $4 million per year. The budget reserves $24.2 million each year to fund all food and drug programs within DSHS.

Dr. Lakey says the legislature passed a rider that instructs DSHS to work with HHSC to address food safety. The Legislative Budget Board estimates that approximately $500,000 in additional revenue will result from DSHS issuing more licenses.

Dr. Lakey explains DSHS will inspect licensed establishments and determine how often follow-up inspections are needed.

"Establishments that have good documentation, that use appropriate food safety techniques, and that have well-trained staff generally need fewer inspections as they adhere to sanitation and food safety practices," he said. "Those establishments that fail to meet the proper standards, that don't document their practices well, or that have areas of concern will generally be inspected more frequently."

DSHS inspections focus on sanitation and food safety. While on site, inspectors provide food safety education, Dr. Lakey says.

Physicians Vital

The Centers for Disease Control and Prevention (CDC) estimates that one out of six Americans gets sick from a food-borne illness every year. Most cases go unreported, either because the victim doesn't see a doctor or there is no specific diagnosis, according to Charles Lerner, MD, epidemiologist for Methodist Healthcare System in San Antonio and past chair of the TMA Committee on Infectious Diseases. Food-borne infections, however, can cause serious illness and death.

Dr. Lerner says prompt reporting by health care professionals to their local health departments is necessary to halt the spread of food-borne illness.

He testified before the House Committee on Public Health in August 2010 when it conducted a hearing on the safety of the food supply in Texas. During his presentation, Dr. Lerner described physicians as "the eyes and ears of the community" in relation to food-borne illness. Physicians, he said, are responsible for treating ill patients and fulfilling the duty to report notifiable conditions to their local health departments.

DSHS says physicians must report these food-borne illnesses:   

  • Salmonellosis,
  • Shigellosis,
  • Shiga toxin-producing Escherichia coli infections,
  • Vibriosis,
  • Listeriosis,
  • Campylobacteriosis,
  • Typhoid fever, and
  • Botulism.  

A list of disease-reporting contacts by county is available on the DSHS website

According to CDC, foods most commonly associated with food-borne illness include raw meat and poultry, raw eggs, unpasteurized milk, and raw shellfish. The agency notes that raw fruits and vegetables, especially those processed under less-than-sanitary conditions, are of particular concern.

Raw celery was the culprit in a South Texas Listeria outbreak last year. Last October, DSHS ordered Sangar Fresh Cut Produce in San Antonio to stop processing food and recall all products shipped from the plant since January 2010. Laboratory tests of chopped celery from the plant indicated the presence of Listeria monocytogenes, a bacterium that can cause severe illness. The testing was part of a DSHS investigation into 10 listeriosis cases, including five deaths, reported to the department in eight months.

DSHS inspectors found sanitation problems at the plant, including a condensation leak above a food product area, soil on a preparation table, and hand-washing issues.

"Listeria isn't a common organism," Dr. Lerner said. "It was caught and solved with a low number of infected people because our reporting and investigative capabilities are much better than they were years ago."

Symptoms of listeriosis can include fever, muscle aches, diarrhea, and vomiting. The disease affects primarily older people, pregnant women, newborns, and people with weakened immune systems.

According to Dr. Lakey, physicians can report food-borne diseases to their local health departments from their offices. In addition, laboratories can report, as can anyone with knowledge of food-borne illnesses.

"The most important thing physicians can do to help us reduce the burden of food-borne illness is to test specimens of ill patients and report lab-confirmed cases," Dr. Lakey said.

Once DSHS receives lab confirmation of the cause of a food-borne illness, the department can identify outbreaks by genetic fingerprinting, which enables public health officials to establish links between illnesses and trace them to mass-marketed products.

"Physicians' clinical assessments and reporting can help us identify an outbreak early so that we can get epidemiological information from the patients and find out what the common cause of the illnesses might be," Dr. Lakey said. "Physicians are great partners in our work to protect the public health."

Crystal Conde can be reached by telephone at (800) 880-1300, ext. 1385, or (512) 370-1385; by fax at (512) 370-1629; or by email.


Medicine Opposes Raw Milk Sales Expansion

When raw milk producers wanted to start selling their product in farmers' markets across the state, physicians mobilized to stop them. Their efforts paid off when two bills that would have granted raw milk producers the authority to expand their sales never made it out of the legislature.

House Bill 75 by Rep. Dan Flynn (RVan) and its companion, Senate Bill 237 by Sen. Bob Deuell, MD (R-Greenville), would have increased access to unpasteurized, raw milk. Neither bill made it out of committee.

Kim Avila Edwards, MD, medical director of the Texas Center for the Prevention and Treatment of Childhood Obesity at Dell Children's Medical Center in Austin, testified against HB 75 before the House Committee on Public Health on behalf of TMA, the Texas Pediatric Society, and the Texas Academy of Family Physicians.

TMA's public health committees reviewed the legislation. Had either bill passed, Dr. Avila Edwards says, the consequences would have been significantly detrimental to Texans' health.

"Unpasteurized milk can contain bacteria that cause serious illness in pregnant women, infants, children, and anyone with a weakened immune system," she said.

Senator Deuell says he felt compelled to file legislation that would have expanded access to unpasteurized, raw milk because "raw milk is safe and healthy." He adds that a group of his constituents who produce raw milk asked him to file SB 237. He explains many of the family farmers in his district want to sell raw milk at farmers' markets and have a vested interest in providing a safe product.

"I was disappointed that there was so much misinformation and lack of support [for the bill] from the medical community," he said. "I do plan to file the legislation again in the future."

For now, Texans who want raw milk can purchase it directly from farms that produce it.

Dr. Avila Edwards says expanding access to raw milk to a commonly visited locale is contrary to the goal of public health.

"Pasteurization is one of the hallmark lifesaving achievements in the history of public health. Expanding the sales of raw milk and raw milk products would have resulted in greater costs to an already burdened health care system," Dr. Avila Edwards said.

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New Regulations Affect Farmers' Markets, Cottage Foods

Senate Bill 81 by Senator Jane Nelson (R-Flower Mound), chair of the Senate Committee on Health and Human Services, addresses food safety in cottage food operations and at farmers' markets.

The new statute allows the Texas Department of State Health Services (DSHS) or a local health department to issue a temporary food establishment permit – valid for up to one year – to a person selling food at a farmers' market. The Texas Health and Human Services Commission can set temperature requirements for food prepared, sold, or distributed on site at a farmers' market, but can't mandate the specific method for complying with temperature control. Cities with farmers' markets may adopt rules specifying the method used to comply with the temperature control requirements.

The temporary permit regulation doesn't apply to farmers' markets in counties with fewer than 50,000 people and that have no local health department.

The statute also defines a cottage food production operation to include people who operate out of their homes and produce and sell baked goods, canned jams or jellies, or dried herbs or herb mixes. SB 81 applies to cottage food operators who sell directly to consumers from their homes and who have annual gross incomes of $50,000 or less from the sale of food.

Local health departments don't have authority to regulate the production of food at a cottage food operation, but they will maintain records of complaints made against a cottage food production operation.

The new regulations prohibit cottage food operations from selling their products through the Internet and require them to label foods sold to consumers with the name and address of the operation and a statement that neither  DSHS nor the local health department inspected the food.

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