Hepatitis Outbreak Litigation Targets Imported Foods

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By Steven M. Sellers

Aug. 30 — New suits over recent Hepatitis A outbreaks in Hawaii and Virginia are raising questions about foods from nations where the virus is prevalent.

The outbreaks involve tainted foods from two different countries: raw scallops from the Philippines and frozen strawberries from Egypt.

But they raise a common concern over how the food industry culls tainted imported products before they enter the U.S. food supply.

“All of the Hepatitis A outbreaks I can recall have been from imported foods,” attorney William Marler, of Marler Clark in Seattle, told Bloomberg BNA Aug. 30.

Marler, a prominent food safety advocate and litigator, represents plaintiffs sickened in the Hawaii and Virginia outbreaks.

Hepatitis A is a highly contagious liver disease usually transmitted by ingestion of fecal matter, even in microscopic amounts; by contact with an infected person; or by consumption of contaminated objects, food or drinks, according to the U.S. Centers for Disease Control and Prevention.

Testing imported food products for the virus isn't the answer, defense attorney Sarah Brew, of Faegre Baker Daniels in Minneapolis, told Bloomberg BNA Aug. 30.

“This isn't about testing, it's about supplier verification,” said Brew, who has represented food industry clients in other high-profile outbreak cases.

“We're talking about contaminated fields and field worker hygiene,” she said.

Scallops and Strawberries

The newest suits were filed Aug. 25 over a Hepatitis A outbreak traced to Egyptian strawberries in smoothies served by Tropical Smoothie Cafe restaurants this summer ( Pyka v. TLC Tropical Smoothie, LLC, Va. Cir. Ct., docket number pending 8/25/16 ; Raptis v. TLC Tropical Smoothie, LLC, Va. Cir. Ct., docket number pending, 8/25/16 ).

Approximately 44 people have been sickened in the outbreak so far, according to the Virginia Department of Health.

But more instances of illness may arise, Atlanta-based Tropical Smoothie Cafe said.

“Since the incubation period for Hepatitis A is 15-50 days, there remains the possibility that additional cases may arise from people that consumed potentially tainted strawberries prior to Aug. 8,” the companysaid in a statement e-mailed to Bloomberg BNA Aug. 30.

“We continue to work closely with health authorities in their investigation, and encourage anyone in Virginia who consumed smoothies from early July through Aug. 8 to watch for symptoms of the illness and seek medical attention if they experience any.”

The company added that “this is not a food handling issue” and that “our system adheres to strict and strong food safety practices.”

In Hawaii, raw scallops imported from the Philippines sickened patrons of Genki Sushi restaurants this spring and summer (44 PSLR 877, 8/22/16)

That outbreak has resulted 228 confirmed Hepatitis A infections so far, according the Hawaii Department of Health.

At least two suits have been filed in Hawaii state courts. One complaint was filed by a Honolulu man hospitalized with an inflamed liver. Another proposed class action seekscompensation for vaccinations for those exposed to the virus.

Verifying Suppliers

“The best distributors require good agricultural practices by their suppliers,” Brew, the defense attorney, said.

That verification is also something the FDA Food Safety Modernization Act, a federal law designed to shift the national focus from responding to food contamination to preventing it, now requires of U.S. food manufacturers (44 PSLR 573, 6/13/16).

The depth of the recent outbreaks may also be linked to the higher incidence of Hepatitis A in some parts of the world, including Africa and Asia, where residents develop immunity to the virus early on, according to the World Health Organization's website on the disease.

But consumers in nations with a low incidence of the virus, such as the U.S., are more susceptible to the debilitating illness when tainted food originates in a nation with a higher Hepatitis A risk, Marler said.

“It's a pretty good vehicle to sicken a lot of people” compared to person-to-person transmissions that generally have a less broad impact,” he said.

The risks can be compounded by Hepatitis A's ability to withstand food processing methods that typically inactivate bacterial pathogens, including freezing, according to the WHO.

Modern food distribution systems may be another contributor to the problem, Brew said.

“They can spread the virus more widely, but the bigger the outbreak, the easier it is to detect the source,” she said.

To contact the reporter on this story: Steven M. Sellers in Washington at ssellers@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

For More Information

The Virginia complaints are available at http://src.bna.com/h81 and http://src.bna.com/h83.

The Hawaii complaints are available at http://src.bna.com/hZq and http://src.bna.com/hNW.

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