Well that was close. Chipotle Mexican Grill almost made it through a month without another food poisoning outbreak, when news broke the Sunday before last that Chipotle was temporarily closing 43 locations in Oregon and Washington. For those of you who missed it, this is the fourth mass food poisoning attributed to Chipotle in the past four months. For a quick recap:
- July: An unreported e. coli outbreak at a Seattle Chipotle may have sickened six and led to two people being hospitalized. The local authorities did not report the outbreak to the press, apparently because by the time they had figured out that it had taken place, it was over.
- August: A norovirus outbreak at a Simi Valley, CA Chipotle reportedly sickened 80 people. Since norovirus can be transmitted from person to person as well as through infected surfaces and infected food, the origin of this outbreak has yet to be determined according to published reports.
- September: Dozens of people were infected with salmonella that originated in contaminated tomatoes at restaurants in the Minneapolis area. As a result of the outbreak, Chipotle apparently switched tomato suppliers.
- October: At least 30 people have reportedly been infected with e. coli bacteria, which seems to have come from 6 of the 43 Oregon and Washington locations. Those infected reportedly ate at the restaurants between October 14th and October 23rd. By Sunday, November 1st, Chipotle reached the decision to close down all 43 restaurants until the source of the outbreak has been determined.
That's a lot of bad burritos. Not to make light of food-borne illnesses, which can be particularly dangerous for the young, the elderly and the immunocompromised, but four outbreaks in as many months is simply shocking. The question that has not been asked yet in the media is whether Chipotle's business model potentially contributes to these outbreaks?
Chipotle goes to great lengths to tout the benefits of its locally sourced meats and produce. It appears that whenever possible, Chipotle contracts with local producers, who share a similar agricultural philosophy to Chipotle. On their website, Chipotle claims that it avoids a long list of agricultural practices such as monoculture (farms that plant a single crop without rotating to another) and genetically modified organisms (GMOs), as well as farms that use excessive fertilizers, herbicides, and pesticides. Conspicuously absent from that list are farms that use manure as their primary fertilizer.
Let me preface by saying, that I do not know if manure has contributed to any of the food poisoning outbreaks that have occurred at Chipotle over the last four months. I only ask the question because once you know that the salmonella outbreak was traced to food contamination, and not improper hygiene, the only way that ever really happens is if the food is contaminated by fecal matter. For e. coli, the only means of transmission is when food comes into contact with fecal matter. For outbreaks that reach into the dozens of people, the likelihood that the fecal matter was introduced into the food by someone simply not practicing good hygiene is pretty remote. More likely, somewhere along the long, fecal matter was introduced to the food at the processing plant, or through the use of too much natural fertilizer, or manure. If you are a farmer and you are not using chemical fertilizers, your only other option is animal feces. Increases in manure use is already suspected as causing one deadly e. coli outbreak. It may sound far-fetched until you realize that e. coli can survive for up to a year on the ground.
"Natural" is perhaps one of the most mis-used words in advertising. It seems if you slap the term on packaging, people just are not as skeptical about the ingredients or farming practices as they are of things described as "chemical" or "industrial." This has always struck me as odd, because it does not get anymore natural than mercury, atomic number 80, as pure a substance as you will find in the universe, and among the most deadly. This is not to pick on people who are concerned about what is in their food. Informed consumers are what makes the marketplace work at its best. However, when people substitute an advertising slogan for information, problems ensue.
This is not to blame anyone who ate at Chipotle for bringing their illnesses on themselves. Quite the contrary, it is restaurants, especially large chain restaurants who bear the burden for ensuring the safety of the food they serve. It seems hardly worth debating that on at least four occasions in the last four months, Chipotle has seemingly failed in that duty. One does have to wonder though, just as consumers sometimes can mistake a marketing slogan for real information, is it possible that companies can be seduced by their own hype? Might a company be so committed to its own vision of how things should be in the world, that they lose track of how things actually are, endangering their customers in the process? I am not implying that Chipotle, or most companies, are deranged, James Bond-style super-villains, just that their commitment to how agriculture should be practiced, plastered all over their website, might obscure the very real need of ensuring that the food they server is safe to consume as priority number one.
While we can't know for sure if local sourcing increases the risk of food related illnesses, it is certainly a topic that deserves further investigation. In defense of Chipotle, and local-sourcing, even between the four outbreaks of the past four months, the total number of people affected appears to be between 175 and 225. This pales in comparison to the close to 750 people who were infected by salmonella tainted cucumbers in September and October, in a story that made national headlines. The Chipotle outbreaks also seems localized to 4 states as opposed to the 36, which were caught up in the cucumber contamination. Even if local sourcing increases the number of food poisoning incidents (hypothetically, since there is not an extensive body of literature on the subject), perhaps it reduces their severity and scope.
To bring things back to earth a bit, it is important to know how food-borne illness cases work as far as the law is concerned. Injuries resulting from food-borne illnesses are generally pursued under a doctrine of strict liability. There are other legal strategies, of course, but strict liability is the most common. The three elements of a strict liability claim are:
- I was injured by a product.
- The product was defective.
- The product's defect caused my injury.
In the case of contracting e. coli directly from properly prepared food (as opposed to something the customer requested to be cooked at a lower temperature) the strict liability of the restaurant seems pretty open and shut. E. coli, obviously, injures people, should not be in food served to humans, and it is the e. coli that injures people. Restaurants who serve e. coli tainted food are therefore usually liable for the damages that the tainted food inflicts on their customers.
There are defenses that restaurants can mount in other situations. If you contract e. coli from a medium rare steak, that was prepared how you ordered it, then the restaurant would be in a better condition to defend against your claim, since cooking the meat all the way through most likely would have killed the bacteria. That is why on most restaurant menus these days you see the warning about consuming raw or under-cooked seafood, poultry, meat, or eggs. Of course, none of this applies to a restaurant like Chipotle where none of the food is cooked to order.
In the end, anytime someone is injured by food poisoning we sympathize with them, especially for at risk groups like children and the elderly, for whom food poisoning can be fatal. You might ask what this has to do with a legal blog? The answer is simple. It's not that we're telling people that they need to rush out and hire a lawyer who handles cases against Chipotle to file a lawsuit, or anything like that. Rather, when we see a pattern of abuse, incompetence, or maybe even just plain old bad luck, which endangers our neighbors, it's something we feel obligated to comment on. Hopefully, all of those who have been stricken with various viruses and bacteria over the past couple of months recover and the only long-term consequences of their ordeal will be an unpleasant memory. While they may not answer the questions that we are asking, we are also hopeful that Chipotle answers the questions that need answering, sorts out their supply chains issues so that their customers are safe and we do not have to write about another outbreak next month.