Roadkill On The Dinner Menu: The Bye-Bye Bambi Burger

The ABA Journal (November 2013) reported that Montana has legalized the consumption of roadkill.  According to Leslie A. Gordon, the article’s author, starting in time for Thanksgiving, anyone who comes across a dead animal in Montana now can legally toss the roadkill on the grill or stick it on the freezer for later provided a free permit from state peace officer is obtained within 24 hours of finding the carcass.

An earlier version of the law would have allowed consumption of fur-bearing animals such as bobcats, sheep and bears, as well as upland game and migratory birds. However, this notion was scrapped after concerns were raised that Montanans might just run after these animals in their trucks, track them down, and kill them, rather than merely scrape the already-deceased carcasses off the roadway.

Even so, not everyone is overjoyed with some of the restrictions in the new legislation.  For example, lawmakers insist that the whole carcass has to be taken, not just the choice bits with the rest left on the roadway for scavengers.  Worse, a carcass cannot be taken for bait; it must be used for human consumption. And, to the dismay of serial strikers, one permit per animal is required.

In an overt slap to grocery store owners in Big Sky Country, proponents of the act argue that roadkill is fresher than meat at their local markets.  But there is no "fresh until" date on a dead deer you find lying on the side of the road and there is just no means of determining when that deer last had a heart beat.  This has some public health advocates concerned. 

According to Fred Pritzker, a food safety lawyer, "Eating an animal killed by blunt-force trauma, with no information about its pre-existing health or provenance and with no information about how long its been dead or the conditions in which its been held since death, is a prescription for danger" due to the presence of ubiquitous pathogens including e-coli, listeria and salmonella.  Prtizer urges that the law is discriminatory to the poor because it is likely that people dependent on food banks and soup kitchens are at the greatest risk. 

Despite such health concerns, Montanans’ love affair with edible hoofed hood ornaments will likely only serve to challenge local chefs to greater heights.  Reportedly, Bozeman diners will soon be treated to new entrees such as "Long Gone Fawn Found Dead on Your Lawn", "Beer-basted Steer Hit From the Rear", "Too Slow Doe Had One Lane to Go", "Pavement Possum" and the classic "No-Luck Buck Just Can’t Duck a Truck". 

An article in the Lawrence Journal-World reported on the Roadkill Cafe in Greenville, ME that "makes no bones about cooking what gets left behind".  If the Roadkill Cafe in Maine is any indication, culinary treats that may soon be available  from Missoula to Bozeman will also  include, "Chicken That Didn’t Make It Across the Road" and your basic "Bye-Bye Bambi Burger". The menu boasts "You Kill It…..We Grill It’. 

Montana’s new law will give fresh meaning to the "I Brake for Animals" bumper sticker.   














FDA Reports 12% of U.S. Spice Imports Contaminated With Insect Parts And Rodent Hairs…What’s In Your Salad?

New York Times reporter Gardiner Harris reported on October 30, 2013 that an FDA study found that about 12 percent of spices brought to the United States are contaminated with insect parts, whole insects, rodent hairs and other things, based upon an analysis of spice imports.

According to FDA officials, it is unclear what share of the nearly 1.2 million annual salmonella illnesses in the United States result from consuming contaminated spices.  Less  than 2,000 people had their illnesses definitively tied to contaminated spices from 1973 to 2010, and most people eat spices in small quantities.   But because people often fail to remember eating spices when asked what foods might have sickened them, FDA officials speculated that problems related to spices may be under-reported.  The Scientific literature has associated foodborne illness outbreaks from microbial contaminants in spices.

According to the FDA, spice imports from Mexico and India have been found to have the highest rate of contamination. Nearly one-quarter of the spices, oils and food colorings used in the United States comes from India. However, reports have associated salmonella outbreaks with spices associated with other spice exporters as well, including Italy. The spices under scrutiny include widely sold, everyday spices, including oregano and basil, among many others. 

"The American Spice Trade Association, which is dedicated to ensuring the supply of clean, safe spice to the American public, had not yet seen the FDA report and therefore could not comment.  However, spice manufacturers have argued in the past that food manufacturers often treat imported spices before marketing them. Therefore,  findings of contamination levels in FDA’s import screening program do not necessarily mean that spices sold to consumers are dangerous.

The adverse publicity facing the spice industry is endemic of much greater litigation risks to the food industry as a whole.  “The New Lawsuit Ecosystem” (10/13), a report issued by the U.S. Chamber Institute for Legal Reform, identifies food class action litigation as an emerging liability threat to American business.

The Executive Summary states that the report describes the "lawsuit ‘ecosystem’  for the areas of litigation abuse of most concern to the business community….Defending these lawsuits drains millions of dollars from businesses that could be spent spurring business expansion and creating new jobs with few countervailing benefits.”  Although the emphasis of the discussion concerns class action litigation alleging trivial violations of federal regulations, there is no question that food poisoning claims have riveted media and public attention as well.  Some plaintiff lawyers have devoted their entire practice to the prosecution of food poisoning claims.  

Food poisoning litigation has also become big business for companies that host legal conferences.  An upcoming conference in San Francisco, sponsored by the American Conference Institute, is titled "Food Borne Illness Litigation: Advanced strategies for Defending and Managing High Profile Food Contamination Claims".  An advertisement for the conference leads with the following:

Each year roughly 1 in 6 Americans (or 48 million people) get sick, 128,000 are hospitalized, and 3,000 die of foodborne diseases.”

– 2011 Estimates from the Center for Disease Control and Prevention

There is no question – as the food supply becomes more global, the chance of contamination increases. The latest food outbreaks come from non-traditional pathogens and foods that came from overseas – the number of affected people is still unknown. In addition, the increasing reliance on international suppliers has led to a host of supply chain food safety issues that are increasingly difficult to monitor and combat.

The defense bar is also mobilizing considerable resources and effort to assist companies targeted by plaintiff lawyers. One prominent defense firm is urging its clients to be prepared by assembling a litigation response team to develop a "thorough traceback program through which food items can be traced back to their origins".  This firm cautions that defending these cases is not for amateurs, but requires the "coordination of expedited investigation and documentation, evidence location and preservation, supplier agreements and indemnification commitments, selection of and consultation with (often) a constellation of experts…."  

Any litigation arising from Mr. Harris’ story in the New York Times about contaminated imported spices should be recognized for what it really is…..the tip of an enormous iceberg that has been heading toward the food industry for some time.