On October 26, 2026, the Department of Justice’s Office of Legal Counsel issued an opinion to the Acting General Counsel of the Department of Health and Human Services titled Public Disclosure of Supply Chain Information in Foodborne Illness Outbreaks and Recalls. HHS asked a simple question: is FDA authorized by law to tell the public who is in the supply chain of a food that is making people sick?

The answer, in eight pages, is the argument I have been making for years. FDA’s current regulations mostly say no. The statute says FDA can change that. And FDA has not.

That matters right now. Fifty people are sick in the chicken wrap E. coli O157:H7 outbreak, reference #1421, that FDA and FSIS are investigating together. The public learned the wraps were Trader Joe’s Tarragon Chicken Salad Wraps from a lawsuit my firm filed and from a newspaper, not from either agency. In July, FDA told Stop Foodborne Illness that its pending petition on this exact question raised “complex issues.” The government’s own lawyers have now answered the hardest of them.

What the opinion says

First, the problem is FDA’s regulations, not the law. The Trade Secrets Act bars federal employees from disclosing confidential business information only when the disclosure is not “authorized by law,” and a properly issued regulation is enough authorization. FDA’s regulations treat the names and locations of firms in a supply chain as confidential commercial information under 21 CFR 20.61, and they wall that information off. The opinion concludes that, given those regulations, the Trade Secrets Act “largely prevents” FDA from disclosing supply chain information.

Second, the exception FDA leans on barely works. 21 CFR 20.91 lets FDA disclose information to the extent necessary to carry out an enforcement action like a recall. The opinion calls that authority “exceedingly narrow in practice.” It applies only when there is an actual enforcement action. In the opinion’s words, “FDA’s hands are tied before a recall is officially initiated.” And by the time FDA collects the information, it is often no longer “necessary.” The opinion also says the statute “nowhere requires” the case-by-case analysis in FDA’s 2020 consignee guidance, which it calls “arduous.” That is the chicken wrap outbreak in a sentence. The wraps were “proactively removed,” no recall was ever announced, and so nothing was ever disclosed.

Third, FDA can fix it. Section 705(b) of the Food, Drug, and Cosmetic Act lets FDA disseminate information regarding food in situations involving, in the Commissioner’s opinion, “imminent danger to health or gross deception of the consumer.” Combined with FDA’s general rulemaking authority, the opinion concludes, that provision lets FDA amend its regulations to authorize disclosure of supply chain information. Disclosure under such a rule would be “authorized by law” and would not violate the Trade Secrets Act. The opinion adds that this would hardly be a “transformative expansion” of FDA’s power, and that neither the FOIA exemption for commercial information nor the Act’s own trade secret provision stands in the way.

Fourth, in a footnote, the opinion questions whether the identity of a supply chain partner is even the kind of information the Trade Secrets Act protects. Every item the Act lists concerns a company’s internal processes, and who a company buys from or sells to is different in kind. The opinion assumes coverage for purposes of its analysis and notes, fairly, that some appellate courts would likely see it the other way.

Fifth, there is a limit, and I want to be honest about it. The opinion says a regulation “purporting to authorize disclosure after a foodborne illness outbreak has already ended would likely be inconsistent” with section 705(b). The imminent-danger authority is a tool for an open outbreak.

Where disclosure should have happened, and why

The opinion is not an abstraction. Run the outbreaks in my petitions through it and you see exactly where the public was left in the dark, and on what basis it should not have been. FDA, CDC and their partners have named farms, processors and brands at least eight times since 2006 after the product was gone. Here is what happens when they choose not to.

Romaine, fall 2024 (reference #1280). Eighty-nine people sick in fifteen states, thirty-six hospitalized, seven with kidney failure, one dead. FDA closed the investigation with one word: romaine. When the traceback summary was first released, the processor, the grower and the ranch were blacked out. It came out unredacted more than a year later, in stages, and only after three firms in the supply chain signed consents to release their own information. The document showed traceback had converged on a single processor and a single grower. Why it should have been disclosed: while people were getting sick that fall, this was imminent danger by any measure, and a section 705(b) rule would have authorized naming the firms then. Instead, as the opinion confirms, the only route left was the firms’ own consent. The public’s right to know depended on the permission of the companies being named.

Romaine, summer 2026 (reference #1382). Fourteen people sick. For ten weeks the only public record was a single row reading “Not Yet Identified.” On September 10, FDA closed the file, said romaine for the first time, and named no grower and no processor because the lettuce was past shelf life. It never said how many states had cases, how many people were hospitalized, whether anyone developed HUS, or whether traceback converged. Why it should have been disclosed: case counts are not anyone’s trade secret, and FDA published exactly those numbers for a closed romaine outbreak in 2019. Naming the firm after closure is where the opinion’s limit bites, which is precisely why the petition asks FDA to define by rule that an implicated firm’s name is not confidential to begin with.

Salmonella Newport (reference #1403). Posted August 26 with eighty-four cases and the food “not yet identified.” Traceback and sampling began. The count rose to ninety-seven, then 111. On October 21, FDA closed it at 119 cases without ever naming a food. No inspection, no advisory, no CDC notice. Why it should have been disclosed: the name of a food is not confidential commercial information at all. While the count was climbing for two months, this was the textbook open outbreak the opinion says section 705(b) covers. The petition asks FDA to name the suspect food once traceback begins. One hundred nineteen people deserved at least that.

Cantaloupe (reference #1366). Seventy people sick in twenty-five states. FDA said the fruit was likely past shelf life. Yet the importer, Ayco Farms of Pompano Beach, recalled a lot on March 24, 2026, FDA put two Guatemalan growers on import alert, and all three were named. Why this one is the tell: the same year, past-shelf-life romaine got no name. The difference was not the danger. It was whether a recall or an enforcement action happened to attach, which is exactly the narrow 20.91 trigger the opinion describes. And even here, FDA’s executive summary still redacts the states with cases and the other firms in the traceback.

Packaged organic salads (reference #1339). FDA’s own executive summary says traceback converged on a supplier and processor of packaged organic salads, then redacts the name and even the number of traceback legs. Why it should have been disclosed: the work was done and the conclusion reached. All that is missing is a name, and the rule that would require it.

Happy Hens eggs, San Diego County. California named the forty-one stores that received the implicated eggs this September. The federal record named none, and the recalled date codes were packed in August, after nearly every illness. Why FDA could have said the same thing: once a state lawfully publishes the stores, that information has “previously been disclosed in a lawful manner to any member of the public,” one of the exceptions the opinion confirms is authorization by law. FDA did not need a new rule to repeat it. It needed to want to.

Beef kofta, May 2026, and the chicken wraps now. When product is gone, FSIS’s routine is to issue a public health alert naming the establishment. In May it named The Kebab Shop and the producer of beef made four months earlier. In the joint chicken wrap investigation, with fifty sick and the product identified, it has issued nothing. One government, two defaults, and the only difference is who happens to be making the call.

What I am changing in the Outbreak Firm Disclosure petition

A new disclosure rule, exactly as the opinion describes. The petition already asked FDA to declare by rule that an implicated firm’s name is not confidential commercial information, and to make distribution information disclosable whenever an outbreak food is pulled, whatever the company calls the removal. It now also asks for a new regulation under sections 705(b) and 701(a). That regulation would authorize disclosure of the firm’s name, location and distribution information whenever the Commissioner finds an outbreak presents imminent danger. It would also require conforming changes to the three regulations the opinion identifies as the current bars. Each of these three changes is an independent ground. If a court set one aside, the others would still authorize disclosure.

Drawing the line where the opinion draws it, at the outbreak and not the package. The new 705(b) rule applies while an outbreak is open. That means while people are still getting sick or cases are still being found, or while the food or an ingredient may still be in commerce, in homes or in other products. Past its shelf-life date or not. When an investigation closes, naming the firms rests instead on the rule defining what counts as confidential, on the case law holding that a business’s name is not commercial information in itself, and on FDA’s existing exceptions. I took out language that said section 705(b) carries no requirement that an investigation still be open. The petition now cites the opinion’s limit against itself, because a petition that hides the hard part is not worth filing.

“Use the authority you already have” now means the authority the opinion confirms. Until a rule is final, the petition asks FDA to name firms whenever one of four existing authorizations applies. The opinion confirms each counts as authorization by law: information already lawfully disclosed to the public, a court order, the firm’s consent, and an enforcement action under 20.91. The first one is bigger than it sounds. When a retailer tells a national newspaper which product it pulled and in how many states, that information is public. Once Trader Joe’s did exactly that, FDA’s own regulation let it post the same facts on its outbreak table. It still has not.

Two smaller changes. Because the opinion reads 20.91 as requiring an actual enforcement action, the petition no longer asks FDA to treat a whole genome sequencing match as one by interpretation. That request moves into the rule. And because the legal question is now answered, the petition asks FDA to respond with a proposed rule, not another interim letter.

What I am changing in the Recall Consignee List petition

The petition still asks FDA to do by rule what USDA has done since 2008: publish the stores, restaurants, schools, hospitals and other places that received food in every Class I recall, when the recall is announced. It now rests that rule on two authorities instead of one: 20.91, and section 705(b) as the opinion reads it. A Class I recall already means there is a reasonable probability the food will cause serious harm or death. So the petition asks that, when FDA classifies a food recall as Class I, it also state whether the Commissioner finds imminent danger. That way publishing the store list no longer turns on a case-by-case finding that it is “necessary.”

It also uses the opinion to support two requests already in the petition. One is dropping the guidance’s packaging test, the analysis the opinion called “arduous.” The other is confirming that pulling an outbreak food is a recall no matter what the company calls it, because the opinion confirms 20.91 does nothing until a recall is “officially initiated.” And it explains why the rule fits within the opinion’s limit. The list is published when the recall is announced and updated while it is underway, which is when consumers can still use it and health departments are still finding cases.

What is not changing

Both petitions still ask for the same core things. They ask for a written standard with the exemption closed and the burden on the firm. They ask for one business day for a firm to correct errors and a prominent correction if a named firm is cleared. They reach the whole supply chain, from grower to retailer. They ask for case counts and the suspect food while an investigation is open, and an honest account of the traceback when it closes. They still go in together, on the same day. Both now also copy the HHS Acting General Counsel, who asked for the opinion. I still support the Stop Foodborne Illness petition. And S. 4974, passed by the Senate in September, is now less a precondition than a supplement. FDA does not need to wait for Congress.

Read them. Tell me what you think.

If you would like the revised drafts, email me at bmarler@marlerclark.com and ask for the petitions. Please get comments back to me before October 30, 2026.

For years FDA has said its hands were tied. The Justice Department has now said who tied them. FDA did, in its own regulations, and it can untie them by rule. Fifty people are sick from a wrap whose maker the government will not name. The law no longer gives FDA an excuse. Let’s see whether it will act.

This Wednesday, October 28, the China International Food Safety & Quality Conference (CIFSQ) opens in Shanghai for its twentieth year. On Sunday morning I got a note from Cary Sun, the conference’s Global Event Manager, telling me that as part of the 20th anniversary ceremony the conference will recognize me as a Distinguished Contributor. I will not be there to take the plaque – my day job, and a docket full of outbreaks, is keeping me on Bainbridge Island – so someone will accept it on my behalf and send it home. I wanted to say thank you here, where more people will see it.

Good company

I share the Distinguished Contributor award with two people who have done far more for this conference than I have. Wu Yongning is chief scientist at the China National Center for Food Safety Risk Assessment (CFSA) and director of the National Health Commission’s Key Laboratory of Food Safety Risk Assessment. Cindy Jiang is a global food safety ambassador and the former senior director of global food safety at McDonald’s. A plaintiffs’ lawyer and the woman who ran food safety for the world’s largest hamburger chain on the same slide. My career started with a hamburger in 1993, so I am not sure which of us should be more surprised.

The ceremony also honors Ge Zhirong, the conference’s honorary chairman and a former deputy director of China’s General Administration of Quality Supervision, Inspection and Quarantine, and Chen Junshi, an academician of the Chinese Academy of Engineering and chief advisor to CFSA, for distinguished leadership. The International Association for Food Protection is recognized as the conference’s distinguished global host. FDA, USDA, the European Food Safety Authority, Germany’s Federal Institute for Risk Assessment (BfR), the UN Food and Agriculture Organization and the Shanghai JS Life Sciences Institute are named distinguished supporters. And the ceremony closes with Cindy Jiang performing a song she wrote and composed for the occasion, “Food Safety Starts With You and Me.” I am sorry to miss that one in particular.

How a lawyer from Seattle ended up at a food safety conference in Beijing

It started with pets. During the 2007 melamine pet food recalls, someone told me about a new conference China’s quality and quarantine agency, AQSIQ, was launching in Beijing. I called the organizers. They offered me a keynote slot – if Marler Clark would become the Platinum sponsor. We did, and we kept doing it.

That September, at the first CIFSQ, I gave a keynote titled “The Legal Costs of Foodborne Illness,” and my colleague Suzanne Schreck led a breakout on what a company should do when it is identified as the source of an outbreak. A year later I was back in Beijing with “How US Consumers Hold Producers Accountable: A Civil Litigation Lesson in the US Market,” delivered just as the melamine-tainted infant formula scandal was exploding. I gave Former Washington Governor Gary Locke my keynote that year too (he went on to be Commerce Secretary and Ambassador to China under Obama). I said then that Chinese food safety officials were doing exactly the right thing by inviting people from around the world to come and share what they knew. I still think so. It was also the year Beijing hosted the Olympics, and my daughter, Sydney, made the trip with me. My friend Dave Ernst, a defense lawyer, now passed, spoke at the conference too.

In 2009 the conference slipped from September to November, and I gave two talks, the second on how American product liability law reaches Chinese producers who sell food in the United States. In 2010 CIFSQ moved to Shanghai, and my keynote was titled “Food Manufacturers: Why It Is a Bad Idea to Poison Your Customers.” I would not change a word of that title today. Getting there was its own story. I flew from Seattle to Los Angeles for a court hearing, then to Dallas and on to Fayetteville to teach at the University of Arkansas law school, then to Detroit, where I missed my flight. I still made it to Shanghai, where my wife, Julie, met me. After the conference I flew to Chicago for a deposition, and only then home to Seattle. I also missed the World Series in person that year, and I wrote at the time that food safety had become more than a law practice; it had become a mission. That has not changed either.

In 2020, COVID put me in front of a camera instead of a podium, and in 2021 I could not make the trip. In 2023 I was back for the opening session, on a panel about the challenges of foodborne disease moderated by Yuki Minato of the World Health Organization, alongside CDC’s Laura Gieraltowski, Martyn Kirk of the Australian National University, Markus Lipp of the FAO and Mohammad Alwetaid of the Saudi FDA.

I did not make the flight every year. Some years I sent a donation instead of myself, because the conference mattered whether or not I was in the room.

Why a food safety conference in Shanghai matters to people in Seattle

Food does not stay home. An ingredient that leaves a plant in one country can make people sick in another before anyone has a name for it, and the regulators, scientists and companies who have to find it rarely sit in the same room. For twenty years, CIFSQ has put them there. Look at the first morning’s program: CFSA’s Fan Yongxiang on risk assessment in China; FDA China Office Director Sarah McMullen on U.S. regulatory priorities, with a video greeting from Donald Prater, FDA’s acting deputy commissioner for food; Todd Reed, FSIS deputy administrator for science and policy, on meat, poultry and eggs; BfR President Andreas Hensel on Europe; and China’s State Administration for Market Regulation on enforcement. That is not a lineup you see often, and it is not one you get by accident.

What is on the program

Day one includes a countdown to China’s GB 7718 and GB 28050 labeling transition in March 2027, a panel moderated by Cindy Jiang on moving food safety culture “from compliance checkbox to measurable organizational behavior,” and a long afternoon on biomanufactured foods and new approach methodologies (NAMs) for chemical safety assessment, with speakers from WHO, FAO, FDA and EFSA.

Day two splits into fourteen breakouts: novel foods and alternative proteins, risk communication, AI, food contact materials, environmental monitoring for Listeria (including FDA’s Benjamin Warren on the revised Codex recommendations), PFAS and microplastics, omics-enabled risk assessment, food fraud, biotoxins, and two sessions on food safety culture. Vanessa Coffman of the Alliance to Stop Foodborne Illness speaks in both of the culture sessions, which is exactly right. Every room that talks about food safety culture needs someone in it who speaks for the people who got sick.

The sessions I would have sat in on

Two of them. In the omics session, FDA’s James Pettengill and Ruth Timme will talk about the surveillance and computing infrastructure behind whole genome sequencing. Sequencing is the reason we now know, with near certainty, which sick people belong to the same outbreak – it is how I was able to show this week that my two clients in the Trader Joe’s chicken wrap outbreak sit in the same tight cluster on a public tree. In the hot topics session, FDA’s Melinda Hayman will walk through the Food Traceability Final Rule, a rule that has been law since 2022 and that, as I wrote for Food Safety News on Friday, nobody has to follow until July 2028.

Sequencing finds the cluster. Traceability finds the food. And then there is the risk communication session down the hall, which asks the question I keep asking: once you know, who do you tell? The best genomics and the best traceback records in the world do not protect anyone if the public never hears the result. That is true in Washington, D.C., and it is true in Beijing.

Thank you

Thank you to Cary Sun, Kenny Sun and the CIFSQ Secretariat, to Dr. Chen Junshi, and to IAFP for twenty years of building this bridge, and for thinking of me. Congratulations to Dr. Wu, to Cindy, and to everyone recognized on Wednesday. I hope the conference has a great twentieth year, and I hope to be back in Shanghai or Bejing for the twenty-first.

Outbreaks are preventable. That has always been the message, whether it is said in Seattle or in Shanghai.

Bill

A month ago, I posted drafts of two citizen petitions I intend to file with the FDA – one asking for a warning statement on cheese made from unpasteurized milk, the other on raw and lightly cooked sprouts – and asked you to tell me what I got wrong. On October 3 I thanked you and asked for more. You kept sending it. Thank you, again.

Many of you waded through tens of thousands of words of regulatory prose and sent back corrections, sources and arguments. Some of you agreed with me and some of you did not, and both kinds of comments made the petitions better. A few of the changes since the first drafts:

  • The cheese warning now says the bacteria “can cause serious illness or death.” The record – two deaths in the 2017 Vulto Creamery listeriosis outbreak, and hemolytic uremic syndrome in at least six people in the four recent cheese outbreaks – supports saying so, and FDA already uses those exact words in the same regulation for very low-calorie protein products.
  • A reader asked what “uncontroversial” means in the First Amendment test that applies to required label disclosures. It was a fair question, and the cheese petition now answers it, including the case least favorable to me.
  • A restaurant culinary director with twenty-one years in professional kitchens showed me how the FDA Food Code already requires a menu advisory for a hamburger cooked to order but not for the raw sprouts on the same plate. The sprout petition now asks FDA to close that gap.
  • Each petition now has an Appendix A showing the statement on a retail package, on a placard at a deli or sandwich counter, and on an online product page, so you can see what the warnings would look like.

Why the cheese petition matters more today than it did a month ago

The petitions were never about one outbreak, but the outbreaks keep making the case. In late September, CDC and FDA linked Graziers raw milk cheese from Sierra Nevada Cheese Company to an E. coli O26:H11 outbreak: 13 people in nine states, eight hospitalized, three with hemolytic uremic syndrome, and a median age of five. The first person got sick on July 7. FDA contacted the company on September 24 – eleven weeks later. The package told parents that the cheese was aged at least 60 days, which is what federal law requires. It did not tell them what FDA wrote in 2015: that E. coli O157:H7 can survive 60 days of aging in cheddar.

That is the fourth outbreak in thirty-one months linked to raw milk cheese that complied with the 60-day rule – Raw Farm in February 2024 and again in March 2026, and Twin Sisters Creamery in 2025 – for a total of 43 people sickened, 17 hospitalized and at least six with hemolytic uremic syndrome, many of them young children. And on October 5 the American Academy of Pediatrics issued a policy statement saying that aged raw milk cheese still poses an infection risk and naming warning labels as a measure pediatricians should support.

In the interest of full disclosure, and as both petitions state, I represent people sickened in the Graziers, Twin Sisters Creamery and Evergreen Fresh Sprouts outbreaks, and I have represented people hospitalized in both Raw Farm outbreaks. On October 6 I filed suit for the family of a child with hemolytic uremic syndrome in the Graziers outbreak.

Neither petition asks FDA to ban anything. Adults who want raw milk cheese or raw sprouts would remain free to buy them. The petitions ask for one sentence on the label, so that what the government already tells people in press releases and on web pages is in front of them when they make the choice.

The revised drafts

One more week – here is what I would most like to hear about

  • Type size. Both petitions ask for the warning in type no smaller than 8 point, the size FDA requires in the Nutrition Facts panel. Look at the label renderings in the appendices. Is that big enough to be read in a grocery aisle, or should it be larger?
  • Cheesemakers and retailers: Is the placard at the cheese case and the deli counter workable? What would it cost you?
  • Sprout growers and seed sellers: Does the requirement for seed sold for home sprouting reach the right products, and does the exemption for validated treatment give you a real path off the warning?
  • Physicians and public health officials: Have I named the right groups, in the right words?
  • Everyone: What information unfavorable to these petitions have I missed? The certification FDA requires obliges me to include it.

Email me at bmarler@marlerclark.com or call 1-800-884-9840 by Friday, October 30, 2026. If you would like the Word version to mark up, ask and I will send it. After I file, FDA will assign each petition a docket number on regulations.gov, where anyone can comment formally, and the agency has 180 days to respond. Pointing out an error now is a lot more useful than pointing it out then.

Thanks again.

Bill

Earlier this month I posted that I had drafted two citizen petitions to the FDA and asked anyone who wanted a copy to email me. The first asks the agency to establish by rule that the identity of a firm implicated in a foodborne illness outbreak is not confidential commercial information, and to name implicated growers, processors and distributors whether there is a recall. The second asks the agency to publish retail consignee lists in every Class I food recall, as the USDA has done for meat and poultry since 2008, and to classify every food recall promptly.

Many of you asked for copies, read dozens of pages of footnotes, and sent back thoughtful, sometimes pointed, suggestions. Thank you. The drafts are sharper, fairer to the firms that would be named, and harder to dodge because of it.

The Trader Joe’s wraps, in one paragraph

On September 23, the FDA posted an E. coli O157:H7 outbreak on its investigations table with 25 sick and the vehicle listed as a “multi-ingredient wrap with chicken (suspect).” No brand, no retailer, no manufacturer, no states, no recall. By then the FDA had already told Trader Joe’s there might be a “possible issue,” and Trader Joe’s had already pulled its Tarragon Chicken Salad Wraps from shelves in nine states. On October 15, with 50 sick, we filed Gottlieb and Bright v. Trader Joe’s Company, and the name entered the public record for the first time – in a court filing. On October 23, FSIS confirmed the link – in an email to USA TODAY. As of Friday evening, neither agency’s own website named the brand, the maker, the nine states, the hospitalizations or the HUS cases, and there was still no recall and no list of stores.

That is the problem these petitions are written to fix. And it is not unique to Trader Joe’s. Two days before FSIS answered USA TODAY, the FDA closed a 119-person Salmonella Newport outbreak without ever naming a food. In 2013, when Glass Onion Catering’s chicken salads and wraps sickened people who shopped at Trader Joe’s and elsewhere, the agencies named the maker and the products within days.

What the drafts now ask for

The outbreak firm disclosure petition now asks the FDA to write the rule with the confidentiality exemption closed, so that a firm that wants its name withheld has to prove, on the record, that its name is a genuine trade secret or competitively sensitive for some reason other than the outbreak itself. It reaches the whole supply chain – grower, cooler, processor, manufacturer, distributor and retailer – because in many produce outbreaks there is no brand to name. It gives a firm named in error a short notice-and-correction period before publication and a correction published with the same prominence afterward. For open investigations, it asks the agency to publish the case counts, states, onset dates, hospitalizations and HUS cases it already compiles, and once traceback begins, to name the suspect food and, for a multi-ingredient product like a wrap, the ingredient under investigation. And it makes disclosure turn on what happened, not on what the firm calls it: a “proactive removal” of an outbreak food is treated the same as a recall.

The recall consignee petition asks the FDA to turn its 2020 guidance into a binding rule on the FSIS model, to reach restaurants, schools, hospitals and other institutions as well as grocery stores, to classify every recall within ten days, and to confirm that pulling a food identified as the suspected vehicle of an outbreak is a recall, whatever the firm calls it, so that it is classified and its store list is published.

Had those rules been on the books in September, the people who bought Tarragon Chicken Salad Wraps would have learned which product, which retailer and which states from the government, not from a complaint and a newspaper a month later.

One more week

I plan to file both petitions after Friday, October 30. Until then, I would welcome another round. If you have not seen the current drafts, email me at bmarler@marlerclark.com and I will send them. I am especially interested in hearing:

From growers, processors and retailers: is a one-business-day correction window workable, and what would make it fair? How quickly can you produce a consignee list in a Class I recall?

From public health officials: does publishing case counts, states and onset dates during an open investigation help or hinder your interviews and case finding?

From lawyers and academics: what is the strongest Exemption 4 or Trade Secrets Act argument against these requests, and have I answered it?

From everyone: once the petitions are filed and docketed, a short supportive comment does more than you might think. I will post the docket numbers here.

Public health information should not depend on whether someone files a lawsuit, or a reporter has the time to ask. Thank you again for making these petitions better. Let’s make them better still this week.

On October 19, CDC announced a multistate outbreak of Salmonella Telelkebir infections linked to raw oysters harvested by the Little Wicomico Oyster Company (VA-1421-SP) from the Little Wicomico River on Virginia’s Northern Neck: 27 sick, five hospitalized, no deaths, 12 states. FDA issued its own safety alert the same day. The company had already recalled shellstock oysters harvested September 18 through October 8, and the Virginia Department of Health had closed the river to harvesting under Emergency Condemnation 010A, effective October 9 through November 7.

Two questions keep coming up. How does a bacterium we associate with chicken and eggs end up inside an oyster? And has this happened before? The answers are “the water” and “yes.”

The most important fact so far: the river itself tested positive

Virginia’s October 23 update reports that on October 13 its Division of Shellfish Safety and Waterborne Hazards pulled 400 Little Wicomico Oyster Company oysters from cages in the river, processed them into eight meat samples, and sent them to the state lab. All eight tested positive for Salmonella. Genetic results to determine whether that is the outbreak strain are expected next week. A second round of 400 oysters was collected October 21, and on October 22 the state collected samples to test for fecal contamination.

That matters. Those oysters were still sitting in the river four days after the closure. They never went through a cooler, a truck, a distributor, or a raw bar. VDH also says that, to its knowledge, its inspections of the company’s dealer facilities have not turned up deficiencies linking its operations to the illnesses. If the sequencing matches, this points squarely at the growing water, not at post-harvest handling.

How oysters pick up Salmonella

Oysters are filter feeders. An adult oyster pumps dozens of gallons of water through its gills every day, straining out plankton and, along with it, whatever bacteria and viruses are suspended in the water column. Those microbes concentrate in the oyster’s tissue and gut. And we eat the whole animal, gut and all, raw.

Unlike Vibrio, which lives naturally in warm coastal water, Salmonella is not native to estuaries. It gets there in feces. The usual suspects are:

Human sewage: failing or overloaded septic systems along a rural shoreline, wastewater treatment plant bypasses or overflows, and discharges from boats and marinas.

Animal waste: wildlife, waterfowl and other birds, livestock and poultry operations, and pets, all of which can shed Salmonella without looking sick.

Stormwater runoff: heavy rain flushes all of the above off fields, yards, and roads into small tidal creeks, which may not flush out quickly.

Once in the water, Salmonella can persist in sediment and be stirred back up, and oysters held in shallow, near-shore cages sit right where runoff enters. The regulatory system, the National Shellfish Sanitation Program, classifies growing waters largely by fecal coliform counts. Those are indicators, not pathogen tests; water can meet the standard on sampling days and still carry Salmonella on others, especially after rain.

Post-harvest temperature abuse can let bacteria multiply, and cross-contamination in a shucking house is possible, but the cage results make those secondary questions here. Officials have not identified a pollution source, and VDH’s fecal contamination sampling may be the first real clue.

Reopening the area will require three consecutive rounds of negative product testing, according to VDH.

A rare strain, a familiar pattern

Salmonella Telelkebir is, in VDH’s words, a rare strain. That is what makes the history so striking. Last December, CDC reported a multistate Salmonella Telelkebir outbreak linked to raw oysters: 64 people in 22 states, illness onsets from June 21 to November 28, 2025. Of 44 people with information, 20 were hospitalized. Of 27 people interviewed, 20 (74%) reported eating raw oysters. CDC and FDA said they were working to find the source of the oysters. I am not aware that one was ever publicly named.

Look at where people got sick in 2025: Pennsylvania (10), New York (7), Virginia (6), and New Jersey (6) led the list. In 2026, Pennsylvania, New York and Virginia again top the CDC map. Same rare serotype, same season, largely the same states, two years running. And Virginia’s own broader case count included illness onsets going back to late May, months before the September 18 start of the recall window.

That pattern is what you would expect from a persistent environmental source rather than a one-time spill. The obvious questions for CDC, FDA and Virginia: Is the 2026 outbreak strain genetically related to the 2025 strain? Where did the 2025 outbreak oysters come from? And if the answer to the first question is yes, why was the source not found a year ago?

Is there a history of Salmonella outbreaks linked to oysters?

Yes, though it is not the pathogen most people think of. Raw oysters are best known for norovirus, hepatitis A and Vibrio. But Salmonella is there too. An FDA market survey cited by VDH found that about 1.5% of oysters nationally tested positive for Salmonella. That sounds small until you consider how many oysters are slurped raw by the dozen.

The recent record:

2026: Little Wicomico River, Virginia, Salmonella Telelkebir, 27 cases in CDC’s count, more in Virginia’s (see below).

2025: Multistate Salmonella Telelkebir outbreak linked to raw oysters, 64 cases in 22 states, 20 hospitalizations, source not publicly identified.

2023: The Canadian Food Inspection Agency found Salmonella and unacceptable levels of generic E. coli in oysters from Future Seafoods in Prince Edward Island, prompting an FDA advisory for product shipped to Florida, Massachusetts, Maryland, Maine, Pennsylvania and Virginia.

2022: A Canadian recall of several oyster brands from Oyster Kings over Salmonella, posted with the Interstate Shellfish Sanitation Conference’s running list of notices.

The ISSC list is worth a scroll. It is a decade-plus record of closures and recalls, including Virginia closures and recalls in 2019, 2020 and 2023, and a reminder of how often growing waters go bad.

Wait, weren’t the Virginia numbers higher?

Yes. As I wrote on October 20, Virginia’s outbreak page then reported 53 cases in 18 states as of October 14, and described CDC’s 27 as a genomic subgroup within that total. By October 21 the Virginia count had grown to 55 in 19 states, with the most recent illness beginning October 6.

The page Virginia posted on October 23 no longer gives that larger total. It now says three Virginia residents are among the cases, that CDC is focusing on a subcluster of 27 highly related cases from 12 states, and that, based on conversations with CDC, there are additional Salmonella Telelkebir cases beyond the 27 that are still under investigation to determine their source.

In other words, the 28 or so other people did not get better or disappear. They were moved off the page and into the “still investigating” column. Of the 27 in the subcluster, only 10 reported eating raw oysters, and tag and traceback records exist for seven. The company’s Little Wicomico River oysters were the only oysters all seven had in common.

If you got sick with Salmonella after eating raw oysters this summer or fall, you may be in one of those numbers, or in neither.

What to do

Do not eat, sell or serve recalled oysters. Check shellstock tags for harvest area (Little Wicomico River or Little Wicomico River Lower) and harvest dates of September 18 through October 8, 2026. Recalled oysters went to Colorado, Connecticut, D.C., Florida, Georgia, Illinois, Maryland, Missouri, North Carolina, New Jersey, Nevada, New York, Pennsylvania, Texas and Virginia. Hot sauce and lemon do not kill Salmonella; cooking does. Read VDH’s fact sheet on the risks of eating raw oysters and clams, and if you are sick, see a doctor and ask for a stool test.

Saturday, October 24, 2026

Last Saturday’s Weekend Wrap-Up was about the wrong door: a chicken wrap outbreak at 50 sick whose first brand name came from a courthouse, an Oregon Salmonella advisory that reached doctors and no one else, and three FDA explanations posted weeks to months after the illnesses ended. This week the government did say the names — in an email to a reporter, in a line of an enforcement database, in a state’s own tally — and in every case the page the public is told to read still says less than the record behind it. USDA confirmed Trader Joe’s wraps to USA TODAY on Friday while its outbreak table still calls the product a suspect. FDA’s enforcement report carries the name of the seed company its sprout advisory still calls the seed supplier. Virginia counts 55 oyster illnesses in 19 states where CDC counts 27 in 12, and every one of the eight oyster samples Virginia pulled from the river on October 13 came back positive. FDA closed a 119-person SalmonellaNewport outbreak that never got a food, an inspection or a CDC notice. The through-line is two sets of books: the record the agencies keep, and the one they publish.

The government finally named Trader Joe’s wraps — by email, to a reporter, on a Friday afternoon. USA TODAY asked the Food Safety and Inspection Service about the E. coli O157:H7 outbreak FDA carries as ref 1421 and FSIS as 2026-04, and on October 23 an FSIS spokesperson answered by email that the investigation had identified chicken wraps from certain Trader Joe’s stores as a common exposure, that the wraps had been removed from the market before the link was established, that extensive product testing has been negative and that the chicken is unlikely to be the source (the USA TODAY report, as republished by the Spokesman-Review). Trader Joe’s had told the same paper on October 20 that it pulled its Tarragon Chicken Salad Wraps from shelves in nine states after FDA flagged a possible issue in September. None of that is on an agency page. FDA’s table, re-stamped October 21, still reads multi-ingredient wrap with chicken, suspect, 50 sick, traceback, inspection and sampling checked, no recall, no advisory, no brand, no states, no hospitalizations; FSIS’s own outbreak page links back to FDA’s. I wrote up the email and what it means Friday.

Massachusetts, North Carolina and a quality department in New Jersey supplied the rest of the record. Health department records obtained for the two women in Gottlieb and Bright v. Trader Joe’s (No. 2:26-cv-12017, C.D. Cal., filed October 15) show CDC counting 39 cases in 13 states by mid-September, 20 of 21 interviewed shopping at Trader Joe’s and 12 of 16 naming the Tarragon Chicken Salad Wrap; the case work names F&S Fresh Foods of Vineland, New Jersey, as the maker, and that firm’s quality systems coordinator had already contacted one of the sick before any agency named a product. North Carolina listed the Pembroke plaintiff’s exposure as a wrap from Trader Joe’s (WRAL). The NCBI cluster that corresponds to this outbreak held about 40 clinical isolates through October 20. Fifty people, two federal agencies, a retailer, a manufacturer and a state — and the only official sentence naming any of them went to a newspaper. The fix is the one in my two draft citizen petitions, open for comment through October 30, which Food Safety News ran Friday as a Publisher’s Platform.

A new multistate outbreak arrived with two counts, and the public was handed the smaller one.CDC posted its first notice October 19: 27 people sick with Salmonella in 12 states, five of 21 with information hospitalized, no deaths, illnesses beginning May 29 through September 14, ten reporting raw oysters, and traceback for seven of ten running to Little Wicomico Oyster Company on Virginia’s Little Wicomico River. FDA’s safety alert the same day named the serotype, Telelkebir, the dealer certification VA-1421-SP and a harvest window of September 18 to October 8, with distribution to 15 states and the District of Columbia. Virginia had been counting since before either page existed: its own tally, posted October 21, was 55 sick in 19 states with the newest illness beginning October 6 — inside the recalled harvest window, where every one of CDC’s 27 began before it. Friday the Virginia Department of Health added the result that matters most: all eight oyster meat samples from the 400 oysters it pulled from river cages October 13 tested positive for Salmonella. A second 400-oyster round came out October 21, fecal-contamination samples October 22, and the genetic results are promised next week. The river closed October 9 for an initial 30 days and reopens only after three consecutive negative rounds. Georgia’s agriculture department lists the oysters as sold at Publix under the James River Oysters name through October 14, five days after the recall. Marler Clark was retained this week by a Colorado resident sickened in this outbreak. I covered the two counts and why every illness began before the recall window as they happened, with the recall detail on Food Poison Journal.

The seed company behind the Evergreen sprout outbreak has a name in FDA’s enforcement database and none on FDA’s advisory. Event 99985 in the enforcement report, surfaced by Phyllis Entis at eFoodAlert October 22 and Food Safety News October 23, lists Wild West Seed Inc. of Albany, Oregon, recalling 9,476 pounds of broccoli sprouting seed in 50-pound bags — Green Sprouting Calabrese lot 4105 and Waltham 29 lot 4475, which the report describes as the same seed relabeled at a consignee’s request — for Salmonella, shipped to consignees in eleven states and the United Kingdom, customers notified by letter, no press release, no class and no date reported. Lot 4105 is the supplier lot W4105 named on the EAK Distribution, Eden Brothers and Gardeners Basics retail notices earlier this month. FDA’s sprout advisory, still stamped October 9, says a seed sample from the supplier tested positive and matched the outbreak strain by whole genome sequencing, and still does not say who the supplier is. The outbreak itself is unchanged since September 24: 32 sick in six states, 24 of them in Washington, three hospitalized. FDA has not stated the connection in words. The record states it in a lot number.

FDA closed a 119-person Newport outbreak this week without ever naming a food, and the ledger of the unnamed went up, not down. The table re-stamped October 21 moved ref 1403 — posted August 26 at 84 sick, then 97, 109, 111 and 116 with sampling, never inspected, no advisory, no CDC notice — to 119 and ended. A second no-food file, ref 1379, Listeria, 11 sick since July 22, ended the same day. The Listeriafile at ref 1417 grew to 46 and got an on-site inspection and sampling; the Cyclospora file at ref 1392 ticked to 241. Fifteen active rows now carry nine with no food named and 630 people in them, up from 626 last Saturday; seven of those nine rows are marked ended, 573 people whose outbreak is over and whose food was never posted. Add the 50 in the wrap row FDA labels a suspect and 680 of the people on FDA’s active page are sick from something the page will not say. CDC’s dashboard, re-stamped the same day, works 29 multistate investigations — 18 Salmonella, seven E. coli, three Listeria, one Campylobacter — down from 30; FSIS lists one. I ran the arithmetic on the closure and on the three tables separately.

The named outbreaks held still, which in late October is its own kind of news. Alfalfa sprouts: 76 sick in 16 states, six hospitalized, unchanged since October 1, with that seed supplier also unnamed on FDA’s advisory. Graziers raw milk cheese: 13 sick in nine states, eight hospitalized, three with hemolytic uremic syndrome, unchanged since September 25. The Deschutes County clinician advisory on a multistate Salmonella Enteritidis outbreak produced no public notice, count or food in its second week, and Monongalia County, West Virginia, has not updated its Salmonella cluster since September 30.

A pumpkin farm petting zoo in Illinois closed Friday with five Shiga toxin infections under investigation. The Will County Health Department said October 23 that five laboratory-confirmed Shiga toxin-producing E. coli infections may be connected to visits to Bengtson’s Pumpkin Farm in Homer Glen on or after September 29; the department contacted the farm Wednesday, the farm closed its petting zoo until further notice and arranged for a veterinarian to sample its animals, and no serotype, ages, hospitalizations or HUS have been released (ABC7 Chicago, Herald-News). I put the questions the Compendium says investigators should be asking in a post Friday, with the consumer version on Food Poison Journal. In Overland Park, Kansas, the Johnson County health department declared the Bentwood Elementary norovirus outbreak over at 97 sick, 95 of them students and staff, two lab-confirmed.

The week’s biggest recall had no pathogen in it, and the week’s most dangerous product had no recall at all. Kayem Foods of Chelsea, Massachusetts, recalled about 1,584,361 pounds of ready-to-eat bacon, hot dogs, sausage, turkey breast and ham October 17 — more than a hundred products under the Kayem, Al Fresco, McKenzie and other labels, produced March 31 through October 7, sold nationwide and in Hong Kong — for possible temperature abuse in a warehouse cooler, found after a customer complained of warm product on delivery; Class I, no confirmed illnesses (Food Safety News). FSIS’s website would not load all week; that link is FSIS’s own GovDelivery bulletin. At the other end, FDA advised consumers Friday not to eat cold-smoked sprats from D&M Smoked Fish, doing business as Haifa Smoked Fish of Jamaica, New York, sold in bulk boxes to restaurants and seafood counters in New York, New Jersey, Pennsylvania and Connecticut, after an inspection found the fish made without the controls that keep Clostridium botulinum from growing — and after the firm declined FDA’s request to recall. In between, Lidl US recalled Gelatelli coffee and vanilla gelato in nine states and the District of Columbia for Listeria found in routine testing, no illnesses. Phyllis Entis’s daily ledger at eFoodAlert carried all of it, plus Ireland’s SuperValu and Centra smoked-fish Listeria recalls and a 930-case festival Salmonella outbreak in South Korea.

Nobody has to follow the 2022 traceability rule until 2028, and FDA is holding a meeting about who should be excused from it. FDA’s November 6 virtual public meeting on lot-level traceability takes speaker registrations through Monday, October 26, and docket comments through December 6, against a compliance date Congress pushed to July 20, 2028; the enforcement-discretion draft on the table would excuse retailers and restaurants with food sales between $250,000 and $1 million. I wrote how the delay happened and what FDA is doing with the time for Food Safety News Friday. Also this week: FDA proposed cadmium action levels for baby foods — 10 parts per billion for fruits and vegetables, 45 for dry infant cereal — with a webinar November 16; Judge Vince Chhabria’s stay of USDA’s reorganization, which would move FSIS to a National Food Safety Center in Urbandale, Iowa, holds on appropriations riders that expire in December; Congress is out until November 9 on a continuing resolution that runs to December 11; and Consumer Reports’ Cyclospora letter to FDA asks for answers by November 6. The produce industry’s incoming board chair told the Global Produce and Floral Show the industry should reclaim its story and speak with one voice; I wrote what that voice should say. Two writers put the summer in print — Gina Shaw’s Invaders From Planet Lettuce in Infectious Disease Special Edition and Kalmia Kniel’s five-question editorial in ASM Food Microbiology — and I answered the first and the second with a list of what has to change before the 2027 season.

That’s the week — fifty sick and a brand name delivered by email, a seed company named by lot number, a river where eight of eight oyster samples carried Salmonella while two governments published two counts, 119 people closed out without a food, a petting zoo shut on five E. coli cases, and 1.58 million pounds of meat recalled for a warm cooler. The names exist. The pages are what need fixing. Check back next Saturday.

About Bill Marler

William “Bill” Marler has spent more than thirty years as a food safety lawyer and advocate—work that began with the 1993 Jack in the Box E. coli outbreak and has never really stopped since. In the years that followed, he has represented victims in nearly every major foodborne illness outbreak in the United States. That case, and the movement it launched, is the subject of the book “Poisoned” and the Emmy Award–winning Netflix documentary of the same name.

Bill’s work has been profiled in The New Yorker (“A Bug in the System”), the Seattle Times (“30 years after the deadly E. coli outbreak, a Seattle attorney still fights for food safety”), the Washington Post (“He helped make burgers safer. Now he’s fighting food poisoning again”), and many others.

Dozens of times a year, Bill speaks to industry, regulators, and universities across the United States, Canada, Europe, Africa, China, and Australia about a simple idea: outbreaks are preventable. He has testified before Congress on the Food Safety Modernization Act and teaches food safety at institutions including the Harvard T.H. Chan School of Public Health. He writes regularly about food litigation and food safety at Marler Blog, and in 2009 he founded Food Safety News, which he continues to publish.

On Friday, October 23, 2026, the USDA’s Food Safety and Inspection Service confirmed that Trader Joe’s Tarragon Chicken Salad Wraps are the source of the E. coli O157:H7 outbreak that has sickened at least 50 people. FSIS did not say it in a press release, a recall notice, a public health alert or an update to its own outbreak page, because it does not have one. It said it in an email to USA TODAY, after USA TODAY reported on our lawsuit and on state investigation records the paper had reviewed. USA TODAY is public health’s new press office. Tip of the pen to Mary Walrath-Holdridge and the editors who kept asking.

USA TODAY also got something the public had never been told. Trader Joe’s said in an October 20 email to the paper that it pulled the wraps from shelves in nine states after the FDA notified the company in September of a “possible issue.” So, Trader Joe’s knew in September. The FDA knew in September. FSIS, the agency with jurisdiction over a product made with chicken, knew. The people who bought and ate the wraps found out a month later, and only because a lawyer filed a complaint and a reporter asked a question.

The timeline

Late August. Gayle Gottlieb of Pembroke, North Carolina, buys three Tarragon Chicken Salad Wraps at the Trader Joe’s in Myrtle Beach on August 23, eats the first on August 27 and is in the emergency department by August 30. Meaghan Egan Bright of Somerville, Massachusetts, buys one at the Trader Joe’s in Allston on August 24, falls ill on August 27 and is hospitalized at Massachusetts General from August 31 through September 6.

September. The FDA tells Trader Joe’s there may be a “possible issue” with the wraps, and Trader Joe’s pulls them in nine states. Massachusetts records describe a call with federal partners, the pull, a halt in production, a commonly identified contract manufacturer, and a focused questionnaire built around Trader Joe’s wraps and sandwiches that went to every state.

September 23. The FDA opens reference 1421 (USDA-FSIS 2026-04) on its table of active outbreak investigations with 25 sick. The vehicle: “Multi-ingredient wrap with chicken (suspect).” No brand, no retailer, no manufacturer, no states, no recall.

October 15. The count reaches 50. Marler Clark files Gottlieb and Bright v. Trader Joe’s Company, No. 2:26-cv-12017, in the Central District of California. The name enters the public record for the first time, in a court filing, not a government notice.

October 15 to 22. The name spreads through local and trade press, including Patch, WPDE, Hoodline, Yahoo and Quality Assurance & Food Safety. The FDA’s table does not change.

October 23. FSIS confirms the link to USA TODAY.

What the timeline tells us

Nothing about the science changed between September 23 and October 23. The traceback was done. The product was pulled. Production was halted. A questionnaire built around Trader Joe’s products was in the hands of every state health department. What changed is that a lawsuit put the name in a public court file and a national newspaper asked a direct question. Faced with that, FSIS confirmed it in one email. Naming the product cost the government nothing on October 23. It would have cost nothing on September 23.

The harder question is what happens in the outbreak with no lawsuit, no receipt and no reporter. We saw the answer this week: on October 21, the FDA closed a 119-person Salmonella Newport outbreak without ever naming a food. That is the default, and the Trader Joe’s wraps were headed for the same ending.

What still has not been said

FSIS’s email answered one question. It left the rest. Who made the wraps? Based on what I have learned in this case, I believe it was F&S Fresh Foods of Vineland, New Jersey; neither agency has said a word about F&S. Which nine states? How many people were hospitalized, and how many developed hemolytic uremic syndrome? Which ingredient is under investigation, and did it go into other products made for other retailers? The CDC still has not posted an investigation notice, and FSIS still has no 2026-04 page of its own.

This is the argument for the outbreak firm disclosure petition

The outbreak firm disclosure petition I have circulated in draft asks the FDA to treat the identity of a firm implicated in an outbreak as information the public is entitled to, not a confidential business secret. Until a rule is final, it asks the agency to use the authority it already has under section 705(b) of the Food, Drug, and Cosmetic Act to name firms now, to publish case counts, states, onset dates, hospitalizations and HUS cases for open investigations, and to name the suspect food – and, for a multi-ingredient product like a wrap, the ingredient under investigation – once traceback begins.

Public health information should not depend on whether a newspaper has the staff to chase it. If you want a copy of the draft, email me. Comments are welcome through Friday, October 30, before I file.

What should happen now

FSIS and the FDA should put on their own websites what FSIS told USA TODAY in an email, and then finish the job: name the manufacturer, publish the states, the hospitalizations and the HUS count, and say whether the suspect ingredient went anywhere else. The CDC should post an investigation notice. Trader Joe’s should tell its customers who made the Tarragon Chicken Salad Wraps and which stores sold them. In 2013, when Glass Onion Catering’s chicken salads and wraps sickened 33 people who shopped at Trader Joe’s and elsewhere, the agencies named the maker and the products within days. Thirteen years later, it took a reporter.

Petting zoos and E. coli. Here we go again. But instead of just reporting the case count, let’s walk through what we actually know, what we don’t, and the questions that public health officials – and parents – should be asking, using the playbook that has existed for two decades.

What We Know

On Friday, October 23, the Will County Health Department announced it is investigating five laboratory-confirmed cases of Shiga toxin-producing E. coli (STEC) that may be connected to visits to Bengtson’s Pumpkin Farm, 13341 W. 151st St. in Homer Glen, Illinois. The department says it is working to determine how the infections occurred and whether there is a common source.

According to owner Scott Bengtson, the health department first contacted the farm on Wednesday, October 21. The farm voluntarily closed its petting zoo and is arranging for animal testing; the rest of the farm remains open. In its statement, the farm said health officials inspected its food service areas and food vendors on October 21 and found no problems, and that a veterinarian will collect samples from the animals. ABC7 Chicago reports that health department personnel will be at the petting zoo Monday to collect samples.

Health officials believe the exposures occurred on or after September 29 and are asking anyone who became ill after visiting the farm since then to fill out a confidential online survey. Anyone who develops symptoms – especially bloody diarrhea or severe stomach cramps – should contact a healthcare provider, and signs of dehydration, decreased urination or unusual tiredness require immediate medical attention.

The farm has described its precautions. It says the petting zoo has staff on-site at all times, handwashing stations at the entrance and exit, and pens that are cleaned daily. Speaking to ABC7, Bengtson emphasized hand sanitizers and signage about the importance of handwashing.

Sean Conners, the department’s Director of Environmental Health, has been careful not to prejudge the source: animals can carry E. coli even when they appear healthy, but animal contact is not the only route – E. coli can also spread through contaminated food, water or surfaces. He also noted that this strain is especially hard on young children.

Kudos to Bengtson’s for closing the petting zoo and cooperating. I wrote about the initial announcement here.

What We Do Not Know

  • Who is sick. No ages, hospitalizations or cases of hemolytic uremic syndrome (HUS) have been released.
  • What is making them sick. We do not know whether this is E. coli O157:H7 or a non-O157 STEC, or whether whole genome sequencing shows the five cases are genetically linked to each other.
  • What the sick people did at the farm. Did all five visit the petting zoo? Did they feed animals, eat at the farm, attend the pig races, or visit on the same days?
  • Which animals. We do not know what species are in the petting zoo, how old they are, whether the farm owns them or leases them from an exhibitor, or where else they have been.
  • What “handwashing stations” means. Soap, running water and paper towels at child height – or sanitizer dispensers? The farm’s written statement and the owner’s interview leave that open.
  • The water source. Municipal water or a well, and whether hoses or water lines near the animals are connected to anything the public uses.
  • How big this gets. The survey just launched, STEC symptoms can begin one to ten days after exposure, and secondary (person-to-person) cases are common in households with small children. Five is a starting number, not a final one.
  • The sampling results. Animal and environmental results will likely take a week or more, and – as discussed below – a negative animal test does not end the inquiry.

The Questions to Ask – Straight from the Compendium

Since 2005, the National Association of State Public Health Veterinarians (NASPHV), with CDC, has published the Compendium of Measures to Prevent Disease Associated with Animals in Public Settings. The current 2023 edition appeared in the Journal of the American Veterinary Medical Association (also available from CDC Stacks). It applies by name to agritourism venues, farms open to the public and petting zoos. It also says it plainly: there is no federal law addressing these risks, and some states regulate practices like handwashing stations. That makes the Compendium the standard of care investigators will measure Bengtson’s against.

Here is what they should be asking, section by section:

1. Handwashing (Compendium §§ III.A.3.a, IV.D.2.a(2), Appendix 3)

  • Was there soap and running water at the petting zoo exit, or only sanitizer? The Compendium says soap and water is preferred because sanitizers do not work equally well on all pathogens or on heavily soiled hands.
  • Were the stations accessible to small children and people with disabilities? In a British Columbia pumpkin patch outbreak the Compendium cites, there was no running water, and the sanitizer was mounted too high for some children to reach.
  • Was a staff member stationed at the exit to remind visitors to wash? The Compendium cites studies showing staff presence and verbal reminders improve compliance.
  • Were paper towels provided? Drying hands on clothing increased the risk of illness in outbreak studies.
  • Were there handwashing stations and signs where food was sold and eaten?

2. Education and Signage (§ IV.D.1)

  • Were visitors warned before entering that animals can carry pathogens that cause serious illness – and told who is at highest risk, including children under five?
  • Did signs tell visitors not to eat, drink, or use bottles or pacifiers in the animal area? Were they in plain language, multiple formats and languages?
  • Did school or daycare groups visit, and were the organizers given prevention information before the trip?

3. Layout and Traffic Flow (§ IV.D.2.a)

  • Was the farm divided into animal areas, transition areas and non-animal areas, as the Compendium recommends?
  • Was there one-way flow with a separate entrance and exit, and was crowding controlled?
  • Were food, drinks, strollers, toys, pacifiers and sippy cups kept out of the petting zoo, with stroller parking outside?
  • Were children kept from sitting or playing on the ground? Were there double barriers?
  • How far is the petting zoo from food service, the pig races and play areas – and was manure or bedding ever carried through areas where visitors walk?

4. Animal Feeding (§ IV.D.2.a(1))

  • Online reviews mention buying carrots to feed the goats. How was feed sold and handed out? The Compendium says the public should feed animals only where contact is controlled, such as by barriers, and never from containers people might eat. It also notes that people who fed animals and did not wash before eating were more likely to become ill.

5. Manure, Cleaning and Pests (§ IV.D.2.a–b)

  • How quickly was manure removed, where was it stored, and were waste tools kept away from the public?
  • What disinfectant was used on railings and surfaces, and for how long? Most compounds need more than ten minutes of contact time, after organic matter is cleaned off.
  • Did the farm have a fly and pest control program? The Compendium notes house flies can carry pathogens to surfaces.

6. Water and Unpasteurized Products (§ IV.D.2.c–d)

  • Was the drinking water inspected? Were backflow devices installed between livestock water outlets and other lines? Were hoses left on the ground or unlabeled?
  • Was any unpasteurized cider, juice or dairy sold? The Compendium says it should not be.

7. The Animals (§ IV.D.3; § III.A.1.a)

  • What species and ages? Young animals shed STEC at higher rates than mature animals, and transport, crowding and commingling increase shedding.
  • Did the farm retain a licensed veterinarian? Were animals checked daily, and were any from herds with recent diarrhea?
  • Are the animals owned or contracted? Are there USDA Animal Welfare Act licenses and current Certificates of Veterinary Inspection? Do records show where the animals came from and where else they have been exhibited?

8. The Investigation Itself (§ IV.C.2)

  • Will samples from people, animals and the environment be tested and sequenced? The Compendium calls for exactly that kind of One Health investigation, with reporting to CDC’s National Outbreak Reporting System.
  • Will they sample fences, bedding, hay and soil – not just animal feces? STEC can survive in soil for months, and outbreaks have followed exposure to environments after the animals were gone.
  • How will negative animal results be read? The Compendium warns that shedding is intermittent, so a negative test does not mean an animal was not shedding earlier.

This Should Not Keep Happening

Pumpkin patches and petting zoos have a long history together: Willow Grove Gardens in Longview, Washington in 2012; Dehn’s Pumpkins in Dayton, Minnesota in 2013; and the fair outbreaks in North Carolina, Florida and Arizona in 2004–2005 and Cleveland County, North Carolina in 2012, which killed a two-year-old boy. Marler Clark tracks these outbreaks at Fair-Safety.com, including a running list of outbreaks linked to fairs and petting zoos. Tips for families are here, and guidance for owners and operators is here.

Prevention is not complicated, and it is not new. The Compendium has laid it out for twenty years. The question in Homer Glen – as always – is whether it was followed.

We will be watching for the animal and environmental test results and whether the case count grows.

The FDA updated its CORE Investigations of Foodborne Illness Outbreaks table on October 21, 2026. The CDC updated its Current Outbreaks page the same day. Here is where things stand.

What’s new at FDA this week

For the Listeria monocytogenes outbreak (ref #1417), FDA has now initiated an on-site inspection and sampling. Forty-six people are sick. The food has not been identified.

For the Salmonella Newport outbreak (ref #1403), the case count rose from 116 to 119 and the outbreak has been declared over. No food has been identified.

For the Cyclospora outbreak (ref #1392), the case count was adjusted from 240 to 241. No food has been identified.

For the Listeria monocytogenes outbreak (ref #1379), the outbreak has ended with 11 sick. No food has been identified.

Six outbreaks are still ongoing

Listeria monocytogenes (ref #1415), posted September 30: 11 sick, food not yet identified. Traceback, inspection and sampling have all been initiated.

E. coli O26:H11 (ref #1419), posted September 25: raw milk cheese. See the FDA advisory for the case count and recall information. Traceback, inspection and sampling initiated.

E. coli O157:H7 (ref #1421, USDA 2026-04), posted September 23: “multi-ingredient wrap with chicken (suspect).” Fifty sick. Traceback, inspection and sampling initiated. Still no recall, no brand, no manufacturer, no states, and no hospitalization or HUS numbers.

Listeria monocytogenes (ref #1417), posted September 23: 46 sick, food not yet identified. Traceback, inspection and sampling initiated.

Salmonella Bovismorbificans (ref #1411), posted September 10: sprouts. See the FDA advisory. Traceback and sampling initiated.

E. coli (multiple strains) and Salmonella Agona (ref #1394), posted August 19: alfalfa sprouts. See the FDA advisory. Traceback, inspection and sampling initiated.

Nine outbreaks are over, but the investigations remain open

Salmonella Newport (ref #1403): 119 sick, food not identified. Salmonella I 4,[5],12:i:- (ref #1402): 43 sick, food not identified. Cyclospora (ref #1398): 22 sick, food not identified. Cyclospora (ref #1392): 241 sick, food not identified. Salmonella Javiana (ref #1395): jalapeño peppers, see the FDA advisory. Listeria monocytogenes (ref #1379): 11 sick, food not identified. Cyclospora (ref #1390): iceberg lettuce, see the FDA advisory. Cyclospora (ref #1385): 38 sick, food not identified. Salmonella Oranienburg (ref #1387): 99 sick, food not identified.

The scorecard

Of the 15 investigations on FDA’s active list, a food has been linked in six – and one of those, the chicken wrap, is still only “suspect” – but, we know better. In the other nine, no food has been named. Those nine outbreaks alone account for 630 sick people.

Cyclospora stands out. Three of this summer’s Cyclospora outbreaks – 22, 38 and 241 sick, 301 people in all – have ended with no food identified, on top of the outbreak linked to Taylor Farms iceberg lettuce.

And there are two sprout outbreaks on the table at the same time, plus another raw milk cheese outbreak. None of this should surprise anyone. It is exactly why I have been pushing FDA for warning labels on raw sprouts and raw milk cheese.

CDC: 29 active multistate investigations

As of October 21, CDC reports 29 active multistate investigations: 18 Salmonella, 7 Shiga toxin-producing E. coli, 3 Listeria and 1 Campylobacter. CDC notes that it typically coordinates between 17 and 40 of these each week – and that not every investigation results in a public outbreak notice. Most do not. CDC’s count also does not include Cyclospora, which FDA tracks on its own table.

FSIS: one active outbreak, and no name

The FSIS outbreak table lists one active investigation: 2026-04, the E. coli O157:H7 outbreak tied to a “Ready-To-Eat Multi-ingredient wrap with chicken (suspect)” – the same outbreak as FDA #1421. FSIS’s entry says the wrap is past shelf-life and no longer for sale, and that FSIS is working with FDA to identify the contaminated ingredient and whether it was used in other products. There is no recall, no public health alert, no establishment name and no establishment number – and, we know better.

Compare that with FSIS’s other 2026 outbreaks, all now closed. For the E. coli O157:H7 outbreak linked to beef kofta (2026-02), FSIS issued a public health alert naming The Kebab Shop restaurant locations. For the Listeria outbreak linked to retail-sliced headcheese (2026-01), FSIS issued a public health alert for the headcheese deli meat products. For the Salmonella Enteritidis outbreak tied to chicken (suspect) at the Broome County Correctional Facility (2026-03), the table points to the local sheriff’s and health department’s update.

So, FSIS knows how to name names. FSIS says it posts outbreak data “prior to a specific product being identified” in the name of transparency. But 50 people are sick from a product containing chicken, and if you want to know more, FSIS’s own FAQ tells you to file a FOIA request.

Why names matter

FDA’s table says the agency will not publicly name a specific product “until there is sufficient evidence.” In practice, that means the firms involved in unsolved outbreaks are never named at all, and the companies, retailers and consumers downstream are left guessing.

That is why I have drafted citizen petitions asking FDA to stop treating the identity of outbreak-implicated firms as confidential and to publish retail consignee lists in Class I recalls. I am still taking comments before I file. If you would like a copy, email me – I’d like to hear from you before October 30.

Fifty people have been sickened with E. coli O157:H7 in a multistate outbreak that FDA and USDA’s Food Safety and Inspection Service are investigating together as reference #1421 (USDA 2026-04). The government knows the product. It knows the retailer. It knows who made it. Federal investigators have been inside the supply chain. Receipts have been collected. Genetic sequencing ties the sick together.

And the public investigation table still reads, in its entirety: “Multi-ingredient wrap with chicken (suspect).”

No brand. No retailer. No manufacturer. No states. No hospitalization count. No ingredient. No recall, no advisory, no public health alert. The public learned these were Trader Joe’s Tarragon Chicken Salad Wraps from a federal lawsuit my firm filed on October 15, Gottlieb v. Trader Joe’s Co., not from either agency charged with protecting us. 

Based on what I have learned in this case, the wraps were made for Trader Joe’s by F&S Fresh Foods of Vineland, New Jersey. F&S’s quality staff reached out directly to one of my clients. Neither FDA nor FSIS has said a word about F&S. Neither agency has said whether the contaminated ingredient went into other products F&S makes for other retailers.

Let me be blunt. The public’s right to know who made fifty people sick should not be left up to a lawyer on an island off the coast of Seattle filing a lawsuit. That is the government’s job.

The stated reason: the wraps were “proactively removed from the market” and are past shelf life (assuming none were frozen). Because the removal was never called a recall, it was never classified. Because it was never classified, no list of stores was ever published. A disclosure rule that attaches only to the word “recall” can be avoided simply by not using the word.

This is simply wrong. And it is not new.

The government has named names before – when it wanted to

FDA’s position is that the name of a company linked to an outbreak is confidential commercial information unless a recall attaches to it. Its own history says otherwise. In at least eight investigations since 2006, FDA, CDC or a partner agency named the farm, the processor or the brand after the product was already out of commerce or past shelf life:

In 2006, after the Dole spinach outbreak sickened at least 205 and killed at least three, the government named the processor, the ranch, the farming company, the growers of other fields and even the fertilizer maker, six months after the recall. In 2013 it named Taylor Farms de Mexico in a Cyclospora outbreak after the salad mix was likely gone. In April 2018 FDA named Harrison Farms of Yuma when the romaine was past its 21-day shelf life, and the field was in grass. In July 2018 it named Fresh Express when the package dates had passed. In December 2018 it named Adam Bros. Farming, which had not shipped romaine in weeks. In 2021 it named Josie’s Organics spinach and Simple Truth and Nature’s Basket salads after their best-by dates. In 2022 it named FreshKampo and HEB strawberries while saying they were past shelf life.

And here is the one that should sting most. In 2013, 33 people were sickened by E. coli O157:H7 in chicken salads made by Glass Onion Catering and sold at Trader Joe’s. CDC named both companies. FSIS published a recall listing the Trader Joe’s products by name. Same retailer. Same kind of product. Same pathogen. Same agencies. Thirteen years later: silence.

FSIS still names when it wants to. In May 2026 it issued a public health alert naming The Kebab Shop restaurants and the producer of beef kofta that had been made four months earlier and was no longer available. That is FSIS’s routine: when product is gone, issue an alert and name the establishment. In the chicken wrap investigation, it has issued nothing.

Meanwhile, silence has become the default on the produce side. In fall 2024, a romaine E. coli outbreak (#1280) sickened 89, hospitalized 36, put seven into kidney failure and killed one. FDA closed it with one word: romaine. The traceback documents, when finally released, showed it converged on a single processor and a single grower. The public got those names more than a year later, through records requests. In September 2026 FDA closed another romaine outbreak (#1382), 14 sick, past shelf life, no recall, no name. Yet the same year, in a Salmonella cantaloupe outbreak (#1366), FDA named the importer and two Guatemalan growers. The difference was not shelf life. It was whether a recall happened to attach.

When the decision whether to tell the public depends on the mood of the day and not a written rule, no one can predict it, no one can review it, and the public loses.

Two petitions to fix it

I have prepared two companion citizen petitions to FDA. They are not yet filed. I want more eyes and fingers on them first.

Petition One: Outbreak Firm Disclosure. This petition asks FDA to establish, by notice-and-comment rule, that the name and location of a firm implicated in a foodborne illness outbreak is not confidential commercial information when epidemiology implicates the food and traceback or lab evidence, including whole genome sequencing, points to the firm. In the same rule, it asks FDA to make a firm’s identity and distribution information disclosable whenever an outbreak food is pulled from commerce, whether the company calls it a recall, a market withdrawal, a stock recovery or a “proactive removal,” and whether it is past shelf life. It asks that the rule put the burden on a firm seeking secrecy to prove a real trade secret, in writing and on the record, while giving a firm one business day to correct factual errors and requiring a prominent public correction if a named firm is later cleared. It reaches the whole supply chain – grower, harvester, cooler, processor, manufacturer, distributor, importer and retailer – because lettuce in a restaurant salad has no brand on it. Until the rule is final, it asks FDA to use the authority it already has under section 705(b) of the Food, Drug, and Cosmetic Act to name firms now. It asks FDA to publish case counts, states, onset dates, hospitalizations and HUS cases for open investigations, and to name the suspect food – and, for a multi-ingredient product like a wrap, the ingredient under investigation – once traceback begins. And at closure, it asks FDA to say whether traceback converged and on whom, and to publish its outbreak summaries without redacting the names.

Petition Two: Recall Consignee Lists and Classification. Since a 2008 rule, USDA has published the names and locations of stores that received meat and poultry in Class I recalls. If you bought recalled ground beef, you could find out whether your store got it. If you bought recalled cheese, sprouts, cantaloupe or bagged salad, you usually cannot. Congress told FDA in 2011 to consider following USDA. FDA wrote guidance that binds no one and applies mainly to foods you cannot identify from the package. This petition asks FDA to require, by rule, publication of retail consignee lists in every Class I food recall, at the time of the announcement and updated as stores are identified; to extend those lists to restaurants, caterers, schools, hospitals, nursing homes and prisons; to classify every recall within ten days and publish the date; and to connect each recall record to the outbreak it is tied to. Critically, it asks FDA to confirm that pulling a food identified as the suspected vehicle of an outbreak is a recall under FDA’s own regulations, no matter what the company calls it. That closes the exact door Trader Joe’s wraps walked through.

States are already doing this. California named the forty-one San Diego County stores that received Happy Hens eggs this year. Washington named an implicated creamery and its cheeses during an open investigation. Federal silence protects no one. It just leaves a record that is incomplete and useless to a national buyer.

There is a pending petition from Stop Foodborne Illness on the same core question, and I support it. FDA’s July interim response said only that the issues were “complex.” The Senate has passed S. 4974, which would authorize disclosure but would not require it or say when. These petitions supply the written standard either way.

Why this matters to everyone, including industry

When the government names a commodity and stops, consumers avoid the whole commodity. Every grower and processor who did nothing wrong pays for the one who did. A firm-specific disclosure is the only thing that separates them. Disclosure is not punishment; it is prevention. It lets a buyer weigh a supplier’s history, an insurer price it, a doctor ask the right question, and a company find its problem before the next season. Withhold the name, and every outbreak looks like the first one anyone has ever had.

Read them. Tell me what you think.

I want comments from public health officials, the produce and retail industry, consumer advocates, lawyers, academics and anyone who has ever been sick and wanted to know why. If you would like to review either or both petitions before they are filed, email me at bmarler@marlerclark.com and ask for the petitions. I will send them to you. Please get your comments back to me before October 30, 2026, so I can incorporate them before filing.

Fifty people are sick. The government knows who made the wraps. The only people kept in the dark are the rest of us, unless a lawyer on Bainbridge Island happens to file suit. That is no way to run a food safety system. Let’s fix it.