E. coli study by Seattle law firm leads to recall of ground beef

These days, food recalls are commonplace. But when the supermarket chain WinCo Foods announced last Friday it was recalling thousands of pounds of ground beef for potential E. coli contamination, there was a twist.

The E. coli came to light not because of testing by the government or by WinCo or its suppliers. Instead, it was because a Seattle lawyer is conducting a private study, testing ground beef from retailers all over the country.

"I've spent about a half-million dollars on this project," attorney Bill Marler said. Clients represented by Marler's firm have won more than $500 million in settlements from companies whose food sickened them.

Marler set out, in 2008, to prove a point: that certain pathogens could be in your burgers because of a loophole in government regulations.

Most of the time, when you hear about E. coli, it's a strain known as O157:H7. Under government regulations, O157 is an "adulterant" in ground beef, which means processors have to test for it. If the meat tests positive, it can't be sold.

But there are other potentially harmful strains of E. coli, too — O26, O111, O103 — and they can cause illness just as serious as O157, including diarrhea, kidney failure, and even death. (Cooking meat well-done should kill the pathogens.)

For a number of reasons, however, these bugs aren't labeled as "adulterants" under government regulations so processors don't have to test for them. The bottom line is, since processors aren't testing for them, you could be eating them.

Last October, Marler petitioned the government to include these bugs in its list of "adulterants." If he succeeds, beef processors will have to conduct additional testing. But if pathogens do slip through and people get sick, it also could make it easier for Marler to sue.

Waiting for a decision, he took an unprecedented step: private testing.

"This is clearly something the government should be doing," he said. "This is stuff, frankly, I think retail stores should be doing. They're the ones that could put the pressure on the manufacturers."

He hired a well-regarded local scientist to test grocery-store ground beef around the country. So far, they've tested 4,700 samples and found about 1.9 percent contain the non-O157 E. coli strains they were looking for, Marler said.

To him, that argues for regulation.

Periodically, he'd also been testing for the more well-known E. coli O157. That's when Marler said they found two contaminated packages at a WinCo store in Modesto, Calif. Because O157 is regulated, they felt they should report it to WinCo.

"It was a call out of the blue from a lab that we hadn't hired and wasn't connected with a government study," said Michael Read of WinCo. The company voluntarily recalled all ground beef sold over a 13-day period, ending April 9.

WinCo has stores in six Western states, including Washington. No human illness has been linked to the recalled ground beef.

Meanwhile, Marler has been hammering government regulators, and is impatient for a decision.

J. Glenn Morris, director of the Emerging Pathogens Institute at the University of Florida, says that while Marler has a valid point — government should address this issue — it's not quite so simple. Not all of these non-0157 E. coli bacteria carry the genes that make them harmful to humans, he said.

"This is, in part, why the regulatory process has been going somewhat slowly," he said. "Because there are uncertainties."

Maureen O'Hagan: 206-464-2562 or mohagan@seattletimes.com