Nebraska and Iowa health officials said they have traced an outbreak of cyclospora to prepackaged salads but can't yet tell consumers which brands were involved. And even though 397 people have fallen ill and 22 have been hospitalized, the Food and Drug Administration hasn't announced a recall.
State and federal laws protect the companies' identities until investigators are absolutely sure of the source of an outbreak. Even then, a public health risk still must be present for the states to reveal brand names, and a recall must be necessary for the FDA to reveal them.
"This isn't a unique situation, but that still doesn't mean it's an acceptable situation," said Christopher Waldrop, who directs the Food Policy Institute at the Consumer Federation of America. "The longer it takes to provide information, the more it seems like they're protecting the needs of the company versus the needs of the public."
The states are usually right, he said, but the FDA has jumped to conclusions in the past. In 2008, for example, FDA officials announced that tomatoes were the source of a salmonella outbreak, but they later learned it was peppers. Waldrop said the tomato industry took a big hit, and the experience made FDA officials more "gun shy."
"It's a fine line that you need to walk when you're doing epidemiological investigations," said Barbara Kowalcyk, founder of the Center for Foodborne Illness Research and Prevention. "If you implicate a particular product too soon, then there's a negative impact not just on that product or company but on the entire industry. On the other hand, if you wait too long, there's a potential for people to unnecessarily get sick.
"You want to get that information out there as quickly as possible, but misinformation isn't helpful either," Kowalcyk said. "It's not helpful to the public because it creates a false sense of security."
Cyclospora, the one-celled parasite that can cause diarrhea, stomach cramps and other symptoms normally associated with a viral stomach bug, is common in tropical regions such as Latin America but isn't typically seen in the United States, according to the Centers for Disease Control and Prevention. Unlike a regular stomach bug, however, it can last more than a month.
Two of the 16 states affected by this summer's cyclospora outbreak announced that a salad mix containing iceberg and romaine lettuce, cabbage and carrots was behind it, but state and federal investigators still needed to track the parasite to a specific ingredient in the salad and then to a specific grower, officials said.
Since salad mixes come from several farms and those farms serve multiple brands, the process is tricky, said Iowa's state epidemiologist Dr. Patricia Quinlisk.
"It's not like there's one brand here," she said.
Until the FDA deems there's sufficient evidence "to implicate a specific food," federal confidentiality laws prevent the agency from releasing suspected brand names unless doing so is necessary for a recall, according to an FDA spokeswoman.
"FDA has not yet determined that the evidence is sufficient to implicate a particular product," said FDA spokeswoman Theresa Eisenman. "The investigation into this outbreak continues, in order to identify possible sources of the outbreak. FDA is following the strongest leads provided by the states, but is following other leads as well."
Food safety lawyer Tony Coveny, whose law firm Simon and Luke will represent 11 of the confirmed cyclospora victims once a company is named, said it's typical of the FDA to hold off on revealing company names associated with outbreaks because it helps foster better cooperation during their investigations. Once the FDA has enough evidence, it presents that information to companies to encourage voluntary recalls.
If a company continues to sell poisonous food once it has been presented evidence that it's caused an outbreak, that company can be sued for punitive damages in the "hundreds of millions of dollars" for willfully distributing unsafe food, Coveny said. To save themselves from that, companies usually issue recalls on their own.
Even though Iowa officials have linked the cyclospora to prepackaged salads, the state has a law that prevents it from naming brands or companies associated with outbreaks. The law protects people and businesses associated with outbreaks unless there's a public health concern, Quinlisk said.
Nebraska has a similar state law.
Since Iowa health officials tied the salad to the cyclospora outbreak several weeks after people stopped getting infected, it's no longer a public health issue, she said. Even though case counts appear to be going up, the new patients reported that their symptoms actually started in June.
"I can no more tell you Joe Blow has salmonella than Brand X has cyclospora," Quinlisk said. "There's no indication that there's any continued threat to the public."
Waldrop, from the Consumer Federation of America, called that "ridiculous."
"Companies who are making people sick shouldn't be kept anonymous," he said. "They should be held accountable. One way to do that is to provide the name of company so people know what company was responsible for making people sick -- even if number of illnesses is starting to decline."