I spent four hours Sunday morning taking the deposition of an expert retained by the defense in the E. coli O157:H7 outbreak of November 2024 – the one traced to romaine lettuce that sickened 89 people in 15 states, hospitalized 36, put seven into kidney failure and killed one, and that FDA closed in January 2025 without a word to the public and without naming the grower or the processor. Four of the seven with HUS are my clients; two are children who each spent about two weeks on dialysis. The expert’s opinion was that children dialyzed that long have a less than fifty percent chance of needing a kidney transplant. That is the defense: the odds are better than a coin flip. It is little solace to a child who has already had a catheter in a vein, or to the parents who sat beside the machine. It may explain why I am less patient than usual today with the leafy greens industry, and with one grower and processor in particular. The company my clients are suing over that romaine, which denies its product was the source, is the company whose outgoing wastewater FDA reported positive for Cyclospora on Friday.
A disclosure, as always: Marler Clark represents people sickened in this summer’s outbreak and in the 2024 romaine outbreak and has filed suits against the Taylor Farms companies in both. Read accordingly.
On October 2, FDA closed its investigation of the largest Cyclospora outbreak in American history – 12,883 sick, 570 hospitalized and two dead in 21 states – and reported the parasite in outgoing wastewater at the Taylor Farms de Mexico plant and in a drainage ditch at a traceback grower. Taylor Farms rewrote its outbreak page the same day. Mexico’s Secretaría de Salud and its regulator, Cofepris, answered on October 3. Guanajuato’s Secretaría del Campo issued a bulletin that afternoon. Side by side, the first two could have come from one outline.
The argument, in two voices
Taylor Farms says no product sample tested positive, that its own roughly 2,000 samples in central Mexico since May were all negative, and that epidemiology cannot confirm a product caused illness without a positive lab test of the product. Cofepris says its National Reference Laboratory tested raw material, finished product and water from the plant and found nothing, and that FDA’s environmental findings do not, by themselves, constitute evidence that agricultural products were the source.
Half of FDA’s sentence. Both quote FDA’s line that there is not enough evidence to conclusively determine how contamination occurred; Taylor Farms repeats it twice, Cofepris builds on it, and neither finishes the sentence.
The samples prove nothing. Taylor Farms says the wastewater sample was discharged sewer water outside the facility, taken more than three weeks after production stopped, and that the grower with the positive ditch is no longer a supplier. Cofepris says finding organisms in waste drains does not by itself show that vegetables bound for export were contaminated.
Each draws the same conclusion. Taylor Farms: FDA has no confirmed positive for any Taylor Farms product. Cofepris: the available information does not establish, through conclusive analytical evidence, that Mexican products were the origin of the outbreak – and said the same of the jalapeño Salmonella Javiana outbreak closed the same day.
What the argument leaves out
The other half of FDA’s sentence. FDA’s October 2 update reads in full:
“While there is currently not enough evidence to conclusively determine how contamination occurred in this outbreak, the positive samples show that Cyclospora was present in the environment where lettuce was grown and processed. This adds to the strong epidemiological data and traceback convergence supporting the link between this outbreak and recalled shredded iceberg lettuce from Taylor Farms de Mexico.”
The same update says the traceback identified several farms and a processing facility and that FDA remains confident the recalled lettuce is off the market. That is an agency standing behind its conclusion. The half-sentence traveled to Salinas and Mexico City; the whole one did not.
Mexico’s negatives have a date. Cofepris collected ten iceberg samples and four water samples on July 18 through 20. The recalled lettuce shipped from June 29 to July 16, and the plant suspended production on July 18. IFPA’s own page explains why that matters: implicated product is often gone by the time testing becomes possible. A negative on July 20 says nothing about June 29.
Taylor Farms’ 2,000 samples have a question attached. The company told the New York Times in August that its fecal indicator testing covered all its water sources and every test was negative. Indicator tests look for bacteria; FDA’s validated method looks for the parasite and found it. The company has not said what its 2,000 samples tested for.
The genotype answer has two halves. Taylor Farms’ FAQ asks whether the environmental positives match the outbreak genotype and answers No, then concedes that FDA is still analyzing the results and had not confirmed a match as of October 2. Not yet confirmed and No are different answers.
The industry already answered this argument, in writing
IFPA’s consumer page, frozen on September 14, answers the question Was a specific food identified? with Yes. It says the recall and the outbreak findings rested on epidemiology and traceback, not a positive laboratory test, and that the absence of a positive sample did not mean the epidemiological and traceback findings were wrong. Western Growers told its members in July that testing for Cyclospora is not recommended, because sampling and technological limits make it of little value and may provide a false sense of security. The California LGMA’s statement accepted Mexican-grown lettuce as the likely source.
Those are the industry’s words, and they describe what two thousand-odd negatives are being used for now. On Friday I asked the industry to retire the water story; the replacement is the no-product-positive story, now with a government behind it. Since October 2, I can find nothing from IFPA, Western Growers or the leafy greens marketing agreements on FDA’s findings. Taylor Farms co-founded the Center for Produce Safety, helped create the LGMAs and hosts the Western Growers Center for Innovation and Technology. No association wants to referee between a founding member and the FDA.
But the silence has a cost. In Mexico, the only argument readers have seen is Cofepris’s. In Washington, a standard is hardening – no product positive, no case – that will be used against the next investigation, including the next one that clears California growers.
A request to eight people
Yesterday, I published a list of what would fix this and offered the industry three draft citizen petitions. Today I am asking eight people, by name, to answer. Max Teplitski and Eric Stevens at the International Fresh Produce Association. De Ann Davis and Joelle Mosso at Western Growers. Tim York at the California Leafy Greens Marketing Agreement. Hilary Thesmar at FMI. Greg Ferrara at the National Grocers Association. Lance Jungmeyer at the Fresh Produce Association of the Americas, which represents Mexican produce importers.
Two things.
First, go down the list and say, item by item, what you support, what you oppose, and why. The items are short: repeal the traceability delay and comply with FSMA 204 now; numeric standards and routine testing for pre-harvest water on high-risk produce; parasite testing of growing and processing water where outbreaks have happened; processor wastewater kept away from fields, canals and product; a kill step that works on parasites; feedlot setbacks and watershed monitoring; the same standards for imports under FSVP; Cyclospora back in FoodNet; a produce testing trip wire like the Microbiological Data Program; one genotyping standard; data shared with CDC and FDA in hours; verified worker sanitation at supplier farms; published root cause analyses, Taylor Farms’ water results included; and no more support for FSMA rollbacks. If an item is wrong, say why; if it works only in another form, say which.
Second, ask me for the three petition drafts: FDA sampling at feedlots implicated in outbreaks, naming the firms implicated in outbreaks, and consignee lists with ten-day classification for every Class I recall. Tell me what is wrong with them; I would rather hear it from you than from FDA.
I will publish every response in full, unedited and under the author’s name, here, and I will say where it changed my mind.
The Global Produce & Floral Show opens in Orlando on October 13. An answer before then would let the industry walk in with a position on the record. My email is bmarler@marlerclark.com.
One plant, one grower
FDA’s finding is narrow: one plant and one grower in Guanajuato. An argument that says that finding proves nothing is an argument that no finding will ever prove anything about this parasite, because no product will ever test positive in time. The industry can say that, or it can say what its own page said on September 14. It cannot say both. I would like to know which.
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