FRENCH FOOD COPS INVESTIGATE BURGER MAKER IMPLICATED IN E. COLI OUTBREAK

Recent dramatic developments in France have their origins in an outbreak of E. coli O157:H7 which occurred in June of this year when eight children living in and around the city of Lille were hospitalized with haemolytic uraemic syndrome (HUS) after consuming contaminated hamburgers.

The children were between 18 months and 8 years old and the gravity of their conditions varied widely, with the worst affected being a two-year-old boy who went into a coma as a result of renal complications.

Arising out of interviews with the children’s parents, epidemiologists implicated a specific brand of hamburger patties as the source of the infections, namely frozen Steak Country chez Lidl hamburger patties which were sold at outlets of the Lidl supermarket chain in the north of France.

This in turn prompted the manufacturer of the implicated patties, SEB, to recall three separate lots of the product, giving rise to the withdrawal of 14.7 tonnes of frozen meat from the market.  The carcases from which the burgers were made originated from France, Germany and the Netherlands.

Any serious food poisoning event (particularly one which has serious health consequences for young children) is of course regrettable.  But it has been observed that the manner in which this outbreak was handled was commendable, with the number of foodborne illnesses being minimized due to speedy initial reporting by local authorities and the definitive actions which followed once the implicated foodstuffs had been identified.

In this regard, the incident may constructively be contrasted with the German E. coli O104:H4 outbreak which happened a few months previously.  Had the pace of reporting in that outbreak between similar to the French hamburger incident it is arguable that the casualty count might have been much smaller in the German case.

While the swift recall announced by SEB and Lidl France had been lauded for forestalling a larger outbreak, SEB is back in the news again, but this time for less gratifying reasons.

Three directors of the company, comprising its CEO Guy Lamorlette, its director of quality control, and its quality technician, were taken into custody on the morning of Tuesday 11 October 2011 by Lille police investigators for detention and questioning in the course of a criminal investigation.  During this time police personnel are also reported to have searched the business’s premises.

The three directors were released late on Tuesday evening and a decision as to whether or not to commence a judicial inquiry is awaited, with nine families having filed complaints.  If prosecuted, the three men could face penalties of three years’ imprisonment and fines of up to €45,000 for inflicting involuntary injuries.

The commercial fallout from the outbreak had already been felt by SEB, with Lidl – which accounted for 60% of SEB’s orders – having terminated its contract with the manufacturer in August resulting in the company, which employs 140, being placed in receivership.

It is being speculated that the recent detention and questioning arises out of suspicions that SEB was sacrificing its quality control systems in pursuit of greater profit.  If the investigations ultimately yield evidence to confirm this, what share of the blame, if any, should be attributed to Lidl will be watched with keen interest.

In its defence, Lidl will likely point to the fact that, in pursuance of the precautionary principle, on learning of the existence of the tainted products the retailer removed all products prepared by SEB rather than those lots which were identified as containing the implicated burgers.

While the media reports do not make it clear what precise legislation the authorities are relying upon to conduct their investigations, presumably European Regulation (EC) No 178/2002 will feature prominently as it lays down the general principles and requirements of food law in the European Union, as well as establishing the European Food Safety Authority and laying down procedures in matters of food safety.

Regulation (EC) No 178/2002 is implemented in this country by the European Communities (General Food Law) Regulations 2007 and 2010.  If a case with circumstances similar to the present French SEB incident were to occur in this jurisdiction, regard would be had to Regulation 5 which provides that a food business operator is guilty of an offence if they place unsafe food on the market.

Regulation 9 goes on to provide that a food business operator is guilty of an offence if they fail to initiate procedures to withdraw a food where they have reason to believe that it is not in compliance with all relevant food safety requirements.

Regulation 25 stipulates that a person who is guilty of an offence under the said regulations is liable:

(a) on summary conviction, to a fine not exceeding €5,000, or imprisonment for a term not exceeding 3 months, or both, or,

(b) on conviction on indictment, to a fine not exceeding €500,000, or imprisonment for a term not exceeding 3 years, or both.

The Regulations go on to provide that where a person is convicted of such an offence the trial court shall, unless it is satisfied that there are special and substantial reasons for not so doing, order the convicted party to pay to the FSAI the costs and expenses in relation to the investigation, detection and prosecution of the offence.

Whether the recent investigations surrounding SEB’s operations lead to a judicial inquiry remains to be seen.  Either way, the case is a salutary warning of the stark consequences that a food producer may face if is perceived that they’ve taken any short cuts when it comes to food safety.