ThePopTort

Attack of the Caffeinated Monster

Monster Beverage, which is “among scores” of caffeine-laden energy drinks “like Red Bull and Rock Star … that companies are aggressively marketing to teenagers and young people,” has been in the news recently. In fact today, Monster made the front page of the New York Times today. Seems like after being sued by the mother of a teenager who died after drinking lots of Monster Energy, reports surfacing of more deaths that occurred after people drank it, and a group of doctors and public health officials now urging the FDA to protect kids from “serious potential health risks” posed by these dangerous energy drinks, Monster has decided to do what any responsible corporate citizen would do: it is remarketing itself. Specifically, Monster has decided to remarket itself as a beverage (rather than a dietary supplement) so it will “no longer be required to tell federal regulators about reports potentially linking its products to deaths and injuries.”

And unfortunately, the law right now lets them do that! The New York Times notes, “the changes by [Monster] demonstrate the degree to which energy drink manufacturers can decide which rules to follow.” Not that there is much regulation of the dietary supplement industry anyway, but apparently even some of those rules were just too hard for Monster to follow.

But think about that for a moment. A company that’s currently under scrutiny for – and is now being sued for - causing deaths and injuries, is re-marketing itself so that it won’t have to tell anyone if it learns that its products may have killed someone. And no doubt, it will learn such things. Since October, when the FDA disclosed that five deaths occurred after people drank Monster, the FDA has received three more death reports and 14 injury reports. What’s worse is that this product is being specifically targeted at young people.

The doctors and public health officials note that in addition to being potentially linked to deaths, drinks like Monster can cause cardiovascular complications, seizures, and neurological problems in young people. Indeed, the autopsy and medical examiner reports of the teen whose mom is suing Monster say she died of “’cardiac arrhythmia due to caffeine toxicity’ that had exacerbated an existing heart problem.”

Monster is denying any legal responsibility and is fighting this grieving mom in court.  But incredibly, she isn’t Monster’s only legal target. Also on the list is a nutritionist who writes a newsletter for elementary schoolers, who has criticized the energy drink industry – not even Monster Energy or any other product, by name. According to the Times, Monster is now threatening legal action against her, for what they call defamatory statements in a newsletter meant for kindergarteners through fifth graders.  “They are going after me for reaching that segment, and it boggles my mind,” she said.”

Energy drink related emergency room visits have skyrocketed from 1,128 in 2005 to 20,783 in 2011. And children are drinking a lot of energy drinks. In a survey nearly 20% of eighth graders said they use one or more energy drinks every day. Now, Monster won’t have to come forward when it learns its drinks may be linked to injuries and deaths. And at the same time, the company is using the legal system to fight parents and intimidate critics. Let’s hope somebody does something soon. 

Salmonella’s Silly Season

For awhile there, we couldn’t get enough of the Peanut Corporate of America.  The company behind 2009’s deadly Salmonella outbreak even boggled our minds, and that’s saying something!  Here’s a taste, ‘er example, of what was going on at their Georgia plant: 

[A] former plant employee has come forward saying that he once opened a container of peanuts and discovered several baby mice.  He also said he witnessed coworkers put “new” stickers on buckets of old peanut paste, and seeing bags of nuts with holes in them, apparently caused by burrowing rats. Even worse, said the former employee, “they would put tape on them or sew them up and send them out.”

Here's more: 

On March 21, 2007, the owner of Virginia-based Peanut Corp. of America seemed impatient. Informed that a customer's shipment might be delayed because the results of a salmonella test were not yet available, Stewart Parnell decided not to wait. "S---, just ship it," he wrote in an e-mail, according to a newly released federal indictment. "I can't afford to loose [sic] another customer."

Well finally, four executives: Stewart and Michael Parnell, (former PCA president and vice president); Samuel Lightsey, (plant operations manager); and Mary Wilkerson, (plant quality assurance manager) were charged by a federal grand jury with 76 criminal counts including lying, fabricating lab results, mail fraud, wire fraud and the introduction of adulterated and misbranded food into interstate commerce with the intent to defraud or mislead.

Bill Marler, an attorney who represented many of the victims in the peanut case, has specialized in food safety law for 20 years. He says this is the first time he can remember such a scathing indictment on a food poisoning case … If I were an executive of a company, today I'd be asking my lawyers, "How does this not happen to me?"

In yet other Salmonella news,

A Denver pet treat maker is recalling dozens of different products - from chicken jerky and pig ears to buffalo hearts - because they might be contaminated with salmonella. It's the third recall since the fall by Kasel Associated Industries and covers all products manufactured at the Colorado facility from April 20 through Sept. 19, 2012. The firm previously declined to recall its treats, despite urging from the federal Food and Drug Administration.

First of all, pig ears and buffalo hearts?  Anyway, continuing down the road of unpleasant truths about pet treats, we’ve also learned that Giant Foods is recalling its Kaytee Parakeet Honey Stick due to possible Salmonella in its parsley flake ingredients.

So basically what we’re saying here is that no creature on earth is safe from Salmonella.  Discuss.

Eating and Drinking in the USA

As we return from our very extended summer holiday, we’re sad to learn of the passing of the great actor Michael Clarke Duncan, who sadly never recovered from a heart attack he suffered a few weeks ago. 6 foot, four inches. Large, muscular guy. Dead at only 54-years-old. You’re probably wondering, what was that guy eating? Well, he was eating vegetables. He was also eating fruit and drinking water. Michael Clarke Duncan was a vegetarian (and if you read this disgusting story about abused cows, you might become one too.) 

Now we're not saying the veggies killed Mr. Duncan (obviously).  But they actually have killed others.  In fact, the news is once again replete with stories about our country’s rash of killer fruit, vegetables and water.

First of all, you may have heard that Stanford scientists have announced a new study finding “little evidence that going organic is much healthier, citing only a few differences involving pesticides and antibiotics,” like “a notable difference with antibiotic-resistant germs, a public health concern because they are harder to treat if they cause food poisoning.”  That is not exactly a minor point. If you haven’t read this Center for Justice & Democracy study or visted Bill Marler's blog, you should. 

As more evidence of this nation’s lethal fruit and veggie epidemic, “Manna Organics has just recalled various soybean sprouts and tofu products” because of possible listeria contamination. On Saturday, “a New Jersey produce company recalled a number of products distributed in the Northeast that contained fresh-cut mangoes …because of potential salmonella contamination."  Also, Dole recently voluntarily recalled "1,039 cases of bagged salad after a random sample tested positive for the Listeria bacteria.” Meanwhile, just as the CDC “raised its official tally of deaths from Colorado's 2011 cantaloupe listeria outbreak to 33  (see our earlier coverage here), DNA confirms that "cantaloupe from Chamberlain Farms in Owensville, Indiana is the source of at least some of the salmonella responsible for an outbreak that sickened people in 21 states and killed two Kentucky residents.”  This just never ends!

Now, water.  We would like to bring to your attention an incredibly moving anti-fracking op ed, which appeared in the New York Times while we were gone – penned by John and Yoko’s son, Sean Lennon. Turns out the family has had a farm in upstate New York. Who knew? This piece was written just as New York officials have begun seriously considering lifting New York State's fracking ban and that means, "watch out water."  (See our earlier coverage here.)  Writes Sean,

A few months ago I was asked by a neighbor near our farm to attend a town meeting at the local high school. Some gas companies at the meeting were trying very hard to sell us on a plan to tear through our wilderness and make room for a new pipeline: infrastructure for hydraulic fracturing. Most of the residents at the meeting, many of them organic farmers, were openly defiant. The gas companies didn’t seem to care. They gave us the feeling that whether we liked it or not, they were going to fracture our little town. …

Though my father died when I was 5, I have always felt lucky to live on land he loved dearly; land in an area that is now on the verge of being destroyed. When the gas companies showed up in our backyard, I felt I needed to do some research.

I looked into Pennsylvania, where hundreds of families have been left with ruined drinking water, toxic fumes in the air, industrialized landscapes, thousands of trucks and new roads crosshatching the wilderness, and a devastating and irreversible decline in property value. Natural gas has been sold as clean energy. But when the gas comes from fracturing bedrock with about five million gallons of toxic water per well, the word “clean” takes on a disturbingly Orwellian tone. Don’t be fooled. Fracking for shale gas is in truth dirty energy. It inevitably leaks toxic chemicals into the air and water. Industry studies show that 5 percent of wells can leak immediately, and 60 percent over 30 years.

There is no such thing as pipes and concrete that won’t eventually break down. It releases a cocktail of chemicals from a menu of more than 600 toxic substances, climate-changing methane, radium and, of course, uranium. New York is lucky enough to have some of the best drinking water in the world. The well water on my family’s farm comes from the same watersheds that supply all the reservoirs in New York State. That means if our tap water gets dirty, so does New York City’s.

In case you're wondering, that's drinking water for eight million residents and 50 million annual tourists.  Learn more about fracking and the efforts of artists like Sean and Yoko here.

The Scary Scary World of Eating

Forget The Hunger Games.  Today in America, we're all playing The Eating Games and here’s how it’s played: eat something and hope it doesn't kill you.  Let’s review some of the different ways this game is being played this week.

First came news on Monday that Jensen Farms in Colorado, which was identified as the source of a deadly listeria outbreak last fall involving cantaloupes, killing 30 and sickening 146, may be close to settling.  “Bill Marler, a lawyer for 39 of the plaintiffs, said the settlement also could include a company that manufactures and imports food-processing equipment and a firm that did a safety audit of the farm.” That’s good news (assuming the bankruptcy judge approves it now that Jensen has filed for Chapter 11).  For more on Jensen, the listeria outbreak and the failure of safety audits, see the Center for Justice & Democracy’s recent report, Our Fatal Food Attraction; Regulatory Failures and the Civil Justice System.

Next came news Wednesday that the House Appropriations Subcommittee on Agriculture, "approved funding for the U.S. Department of Agriculture and the U.S. Food and Drug Administration for fiscal year 2013 with no new funding for food safety.”  (emphasis added)  At least the subcommittee didn’t cut the budget, as threatened.  But given the distressing state of food safety - especially when it comes to the FDA, charged with regulating everything besides meat, poultry, processed egg products and catfish while only inspecting facilities every 5-10 years (learn more here), this isn’t great news.  Plus, the FDA is trying to obtain “substantially more resources to help implement the Food Safety Modernization Act," signed into law in 2011, which is supposed to improve things except there’s never been funding to implement it. 

Then we learned,

As part of President Obama's push to streamline regulations on businesses, the U.S. Department of Agriculture plans to let chicken slaughterhouses run production lines faster and with fewer federal inspectors, angering food safety advocates and poultry plant workers.

Under the proposal, production lines would be allowed to move 25% faster, while the government would cut by as much as 75% the number of line inspectors eyeing chicken bodies for defects before the carcasses are packaged for consumption.…

Tony Corbo, at the health advocacy group Food and Water Watch, calls it "a privatization of poultry inspection" because plant employees would be responsible for spotting and removing defective chickens. Consumer advocates said the rising rates of salmonella infection in recent years should give pause to any plans to cut the number of federal inspectors at poultry plants.

Yuck.  On the other hand, “the National Chicken Council” and its $45-billion-a-year poultry industry client loves the idea.

Interestingly, writes the LA Times, “Most poultry plants are located in the South.”  Speaking of which, we also learned this week that federal and state health officials in the South are trying to figure out the source of “what appears to be a multistate E. coli outbreak that recently took the life of a 21-month-old child in Louisiana.”  Ironically, as ABC News points out, “The largest cluster of five sickened people, ranging in age from 18 to 52, is centered in Atlanta [Georgia], home to the Centers for Disease Control and Prevention.” 

My first thought after reading all this was to jump on the vegan bandwagon with President Clinton and Michelle Pfeiffer.   But what good will that do, with lethal cantaloupes roaming around out there?  I’m open to suggestions.

 

Food, Drugs and the FDA Breakdown

Today, the U.S. House of Representatives is debating whether to impose its contaminated political judgment on every local judge and jury in America.  Well, not every local judge and jury, but certainly any deciding a lawsuit against the health care industry.  And not just medical malpractice cases, mind you.  The bill they are debating today, H.R. 5, would limit the liability of the pharmaceutical and medical device industries, nursing homes, and even insurance companies and HMOs that refuse to pay legitimate claims.

Singled out for extra special protection are drug companies with FDA-approved drugs. Proponents of this bill - generally the "anti-federal government" crowd - apparently trust the federal government to get it right every time when it comes to the safety of drugs and medical devices. Does this strike anyone as odd?

Well, there are four stories out today that highlight big problems with this notion.  What they show is that the FDA continues to fall down on the job, and when left to their own devices, manufacturers will cut safety corners and often harm the public.  When it comes to some of our country’s most dangerous products, lawsuits are often the only way to prevent the wholesale destruction of public safety.

First, there’s a front page New York Times story about how a U.S. Supreme Court decision last year has blocked thousands of injury lawsuits against generic drug companies.  This is an issue that could be fixed by either Congress or the FDA.  Given what’s happening on the House floor today, no sane person could possibly expect this Congress to restore rights to drug injury victims.  However, the FDA could.  But so far, it won’t.  As the Times writes:

Public Citizen, a consumer advocacy group, has petitioned the Food and Drug Administration to give generic companies greater control over their labels, a rule change that could allow users of generic drugs to sue, but the agency said earlier this month that it needed more time to decide. “Congress can make this problem go away, and the F.D.A. could, too,” said Allison Zieve, the director of Public Citizen Litigation Group. “But we haven’t seen signs that either of them is paying much attention.” A spokeswoman for the F.D.A. declined to comment.

Moving on.  The FDA has a special rule –510(k) of the Federal Food, Drug, and Cosmetic Act – whereby drugs and devices that are “substantially equivalent” to a device already on the market are not required to go through more rigorous FDA approval.  This allows companies to market dangerous products for uses never really "approved" by the FDA, yet with the stamp of FDA approval!  This is just what Johnson & Johnson did according to a story from Bloomberg today about vaginal meshes.  The FDA approved surgical meshes for procedures like abdominal surgery.  But J&J began marketing them for use in a women’s vaginal area, treating problems like incontinence.  Subsequently, hundreds of women became severely injured and some died as the meshes began disintegrating, growing into tissue and becoming impossible to remove.  Over 500 women have now sued and finally, after J&J marketed the device for three years, the FDA is saying that the company should not have used 510(k) to fastrack these.  Not exactly quick work by the agency.  And had H.R. 5 been on the books, J&J might be immune from any punitive damages for what they did.

If you are still not convinced that when given the choice to help patients or make money, the drug industry’s priorities are completely screwed up, consider another article in the New York Times today.  This article is about a generic drug called tranexamic acid, which slows bleeding and could be saving lives.  And it’s cheap!  But, writes the Times,

[I]ts very inexpensiveness has slowed its entry into American emergency rooms, where it might save the lives of bleeding victims of car crashes, shootings and stabbings — up to 4,000 Americans a year, according to a recent study.  Because there is so little profit in it, the companies that make it do not champion it. …

The slowness of American hospitals is due to “inertia,” said Dr. Ian Roberts, clinical trials director for the London School of Hygiene and Tropical Medicine and leader of the 2010 trial, which was called Crash-2. “The people who do the urging and the talking about new drugs are the pharmaceutical companies, and if they’re not interested, it’s not done.”

Finally, we certainly don’t want to ignore the FDA’s other main regulatory area - food.  While food lawsuits may not be covered by the drug and device industry protections in H.R. 5, the FDA’s failures to regulate in both these areas are quite similar.  Today, the Center for Justice & Democracy at New York Law School is releasing a new study called Our Fatal Food Attraction:  Regulatory Failures and the Civil Justice System.  This study,

[F]inds that the regulation of food safety, particularly by the Food and Drug Administration (FDA), is inadequate to keep Americans safe and properly informed of foodborne illness dangers.  The study explores the dangerous impact of both privatization of key government functions and the lack of transparency by government agencies.  It also recognizes the important role that lawsuits play in protecting Americans, providing both a critical layer of food industry oversight and disseminating key public safety information to the public.

There’s some wild stuff in here that everyone should know.  And as they say, everything’s connected.  So don’t forget to call your member of Congress today (1-888-291-9824 to reach the U.S. Capitol switchboard), and ask them to oppose H.R. 5.  Today’s the day.  Speak up, loud and strong. 

Drink to Your Health But Watch Out for Water

News broke over the weekend about the new Environmental Working Group (EWG) study, released today, showing that, “Tap water from 31 of 35 U.S. cities tested contains hexavalent chromium (or chromium-6), the carcinogenic ‘Erin Brockovich chemical,’ with the 'highest levels were detected in Norman, Okla.; Honolulu, Hawaii; and Riverside, Calif.'"  That’s about 74 million Americans in 42 states – at least.  This nasty chemical “is commonly discharged from steel and pulp mills as well as metal-plating and leather-tanning facilities. It can also pollute water through erosion of soil and rock.”  Yum.

Add this to the atrazine crisis we coverd earlier this year and it seems to me that drinking water has lately become pretty deadly in America.  Or at least, we are just now finding out about it thanks to the good work of environmental groups.

As the Washington Post reported over the weekend, the EWG study “comes as the Environmental Protection Agency is considering whether to set a limit for hexavalent chromium in tap water. The agency is reviewing the chemical after the National Toxicology Program, part of the National Institutes of Health, deemed it a ‘probable carcinogen’ in 2008.”

Erin Brockovich told the paper, "This chemical has been so widely used by so many industries across the U.S. that this doesn't surprise me. … Our municipal water supplies are in danger all over the U.S.  This is a chemical that should be regulated."

Here’s the science: “Hexavalent chromium has long been known to cause lung cancer when inhaled, but scientists only recently found evidence that it causes cancer in laboratory animals when ingested. It has been linked in animals to liver and kidney damage as well as leukemia, stomach cancer and other cancers.”

So, 2008.  Why is regulation taking so long?  Well, probably some of this is due to the industry disinformation compaign.  As EWG reported,

PG&E [the company responsible in the Brockovich case] hired consultants to publish a fraudulent analysis of cancer mortality in Chinese villagers exposed to hexavalent chromium, in an attempt to disprove the link between the chemical and cancer. The study was published in the respected Journal of Occupational and Environmental Medicine, and scientists and regulators — including the EPA — cited the fraudulent article in research and safety assessments. The journal retracted the paper in 2006 in response to EWG’s request for corrective action.

Speaking of 2008, that’s actually the last time we covered hexavalent chromium, after 60 Mintues reported that soldiers in Iraq, tasked with protecting KBR contractors at a water plant contaminted with hexavalent chromium, were dying from lung cancer.  Hexavalent chromium.  The gift that keeps on giving.

The Land of Milk And Mess Ups

Dallas-based national dairy processor Dean Foods was forcing farmers in Vermont and other northeastern states to work with them.  Now they are going to pay - $30 million, that is - to settle a class-action suit for this violation of federal antitrust laws.  (The deal awaits court approval.)  Also today, Dean “announced plans to issue $400 million in new debt to pay down old debt and named a new chief accounting officer.”

Take note, dairy farms. Just cause you’re “getting squeezed by big-box stores and supermarket chains looking for price concessions” so that your stock “is off 53 percent this year, making it the worst performer in the Standard & Poor’s 500 Index” does not mean you get to violate the law.

And by the way, that also includes producing raw milk with E. Coli.

In Minnesota,

State Agriculture Department investigators Tuesday seized hundreds of gallons raw milk and other food produced by a Gibbon dairy farm that has kept churning out product despite a state order to stop.  Raw milk produced by Mike Hartmann's farm was fingered by the state for eight cases of E. coli O157:H7 in May, and seven instances in July and August of other stomach bugs that cause diarrhea and abdonimal pain.…

Seized were 'hundreds of gallons of raw milk', along with cream, yogurt, cheese and meat. … Raw milk isn't pasteurized -- treated with heat to kill pathogens -- and public health authorities widely decry it as dangerous. But some natural food advocates see it as a healthful tonic of sorts, superior in taste and nutrients.

Hhmm … nah.

Congressional Stalls

The last time we remember anyone talking about Congress and stalls in the same sentence, the topic was the men’s room at the Minneapolis-St. Paul International Airport and a certain "wide stance" Senator.   

Ah, those were the days.  Now, the headlines go something like “Senate Bill on Food Safety Is Stalled.”  This is lot more serious.  

Seems like despite numerous food safety scandals (some of which we’re covered here, here, here,) Tea Party fav Senator Tom Coburn (R-OK) has decided to single-handedly block a food safety bill that “has broad bipartisan support, is a priority for the Obama administration and has the backing of both industry and consumer groups.”  

Meanwhile, the New York Times' editorial yesterday blasted similar politicking that has kept the Senate from passing critical mine safety legislation following the many mine tragedies, most prominent the Upper Big Branch mine explosion in West Virginia that killed 29 (here, here).  The Times also mentions that Congress is stalling passing legislation to help the families of 11 workers killed in the explosion, which we wrote about last week, not to mention raising the total liability cap from $75 million, . 

But that’s not to say everyone in Congress is stalling.  For example, last week the U.S. House Energy and Commerce Committee’s Health Subcommittee passed a bill to fix something we’ve covered here: “the growing concerns about concussions and other serious head injuries among school-aged children.”  This bill passed the sub-committee after a hearing with “student athletes, trainers, sports doctors and brain injury specialists at the home of the New Jersey Devils.” (There’s a full Committee hearing this week.)

Then it goes over to the Senate.  There go those flushing sounds in my head again! 

How Do You Solve a Problem Like John Stossel?

Remember in the Sound of Music, when the nuns sing, “How do you solve a problem like Maria?” … “How do you find a word that means Maria?  A flibbertijibbet! A will-o'-the wisp! A clown”? 

I’m not quite sure what a flibbertijibbet exactly is, but I do know a will-o'-the wisp clown when I see one.  That would be the Fox Business Network's new Thursday night start, John Stossel.  John Stossel is a problem that clearly needs solving.

Take his latest weird diatribe last night (“Parasitic Tort Lawyers”) and accompanying column, which he begins with the words, “Tort lawyers lie.”  And he then goes on to trash the entire profession of attorneys who try to hold corporate wrongdoers accountable in court on behalf of injured people.  I suppose that might be believable coming from a guy who once said “Enron is an example of how well the market worked for people.”  Except well, turns out, like all good hypocrites, he has no problem running to court himself when he feels like it, like when he once sued a pro wrestler who hit him after Stossel implied pro wrestling was fake, and he got $200,000 for his pain and suffering.

So I guess Stossel’s problem isn’t himself.  It’s everybody else who uses the court - and their attorneys who “say their product liability suits are good for us. But their lawsuits rarely make our lives better.” OK let’s see. 

How about lawsuits that have saved thousands of womens’ lives?  How about just children?  Communities living around toxic pollution?  Food safety?  (Even CNN’s Sanjay Gupta came through on this one.)  Cars, airplanes, cleaning products, we could go on – and on – and on.  And actually we did, a few years ago, here.

When he says all the fun of playgrounds and such were “taken away” because of lawsuits – that’s a lie. 

And when he says lawsuits are stifling innovation, that’s a lie.

And when he suggests that without lawsuits, savings due to “defensive medicine” would be anything more than 0.2% of health care costs, that’s a lie.

I know we keep using the term "tone deaf" to describe these people, but really now? 

Sanjay Gupta, Lawsuits and Food Safety

We know that CNN’s resident neurosurgeon, Sanjay Gupta, is one busy guy.  Understandably, he doesn’t always have a lot of time to make sure everything he says on the air is actually correct.  Like the pretty deficient work he did leading up to a live on the air attack of Michael Moore’s health care film, Sicko. 

Or perhaps more relevant to ThePopTort, supporting his complaints about medical malpractice litigation by mistakenly saying that the Congressional Budget Office did not factor in the cost of so-called “defensive medicine” when deciding on a tiny 0.5% figure to reflect what would be saved had the health care bill included severe “tort reform.”  Defensive medicine was indeed part of that miniscule CBO figure.

So we were more than pleased to see Gupta’s show this weekend featuring food safety activist and advocate Bill Marler – a fantastic trial lawyer. We’ve written before about attorney Marler and his important work on behalf of poisoned consumers, most recently around that disgusting peanut butter salmonella outbreak that killed at least six people and injured many more.  We're glad Dr. Gupta likes Mr. Marler too, especially his important work as a trial lawyer, getting to the bottom of the most recent E. coli lettuce outbreak and making sure people are compensated.

He seems like such a nice guy so we’re not going to put the label “hypocrite” on Dr. Gupta today.  So no ticket this time.  This one’s just a warning.