Motsoaledi backs class action over listeriosis outbreak

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Listeriosis

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Victims of the world’s worst listeriosis outbreak, which has killed at least 183 people, are being invited to join a class action — supported by the South African Health Department — against Tiger Brands, owners of the factory named as the source, reports MedicalBrief. Namibia has reported its first listeriorisis case and along with Botswana, Kenya, Malawi, Mozambique, Swaziland, Zambia and Zimbabwe, has restricted SA meat product sales.

News24 reports that attorney Richard Spoor confirmed that his firm would file a class action suit against Tiger Brands whose facility was last weekend officially revealed to be the origin of the listeria epidemic, identified by the World Health Organisation as the worst in history, which has claimed at least 183 lives. He predicted that, if the litigation is successful, damages of tens of millions of dollars could be awarded to victims and the families of those killed.

The report says since January 2017, 948 people in the country have contracted listeriosis, a disease caused by bacteria which can contaminate fresh food, notably meat. Several countries across Africa have imposed restrictions on South African meat imports in response to the crisis.

Health officials say the source of the outbreak was an Enterprise Food plant, owned by Tiger Brands, in Limpopo. The factory produced a popular range of ready-to-eat chilled meats including polony and vienna sausages.

“(We will) put together a class action on behalf of the victims,” Spoor is quoted in the report as saying.

In class actions, groups of people with a common grievance, or their surviving relatives, can come together to bring a single lawsuit. Not all of those affected are compelled to participate and some victims are expected to bring their own legal action against Tiger Brands. “The reasons for doing that are that the overwhelming majority of those affected by this epidemic are poor people, they’re widely distributed and there’s an enormous range of damages that people have suffered,” Spoor added.

Tiger Brands CEO Lawrence MacDougall is quoted as saying that that “we’ll have to deal with (litigation) when we get to it, right now our focus is on food safety”. MacDougall has previously claimed that “there is no direct link with the deaths to our products”.

Spoor said in the report that attorneys will work in partnership with US-based food safety law firm Marler Clark to file an application in the coming weeks.

He said that the strain blamed by health officials for the lethal outbreak, ST6, was common to nearly all of the victims tested and tied to contamination found at the Tiger Brands-owned factory. “That looks to us to be an overwhelmingly strong case, it’s like a fingerprint – or the marks on a bullet fired from a gun,” he said. “You’re certainly talking about (a settlement) of several hundred million rand (tens of millions of dollars),” he claimed.

 

Spoor, known in South Africa for his work for mineworkers seeking compensation for lung damage, said: “We have instructions from a large enough group of victims and a representative group of victims” to file a suit. We hope to file it this week or next.”

But, says a Bloomberg report, according to Nevashnee Naicker, a company, Tiger Brands hasn’t received notification of any class action.

The Department of Health said last week it would support anyone intending legal action. While the department showed Tiger Brands confirmation that the ST6 strain of listeria, which has been linked to the deaths, was found at the facility, tests haven’t shown the strain in the company’s products, Naicker said.

Consumer protection rules state that harm caused by a defective product can hold the distributor strictly liable, Spoor said. “I can’t see how it would be in Tiger Brands’ interest to contest this aggressively,” he said.

 

Meanwhile, two top consumer lawyers – who last week publicly warned about class action by listeriosis victims against Tiger Brands – are no longer giving interviews to the media, notes a Times Select report. One of them has confirmed being hired by Tiger Brands while the other did not say that specifically but cited a ‘conflict of interest’.

The report says consumer lawyer Janusz Luterek previously spoke about the need for environmental health practitioners to be employed by the national department, but by the end of last week he said he could no longer comment on the case. ‘I have since been retained by Tiger so I can’t speak about their matter specifically. I can talk generally about food law enforcement and the Consumer Protection Act and class actions but not their case,’ he is quoted in the report as saying.

Rosalind Lake, from Norton Rose Fulbright, who had spoken on radio about the CPA and Tiger Brands last week, has now said she, too, couldn’t comment due to a conflict of interest. Earlier she had warned: ‘Listeriosis may lead to one of SA’s biggest class action lawsuits.’

Another consumer protection lawyer, Elizabeth de Stadler, when asked yesterday about the CPA and a class action suit against Tiger Brands, said: ‘Unfortunately, I am one of those lawyers who does work for Tiger Brands.’

 

“Enterprise Foods received a report from the Department of Health on 8 March which confirms the presence of the listeria monocytogenes ST6 (LST6) strain in our Polokwane factory,” Tiger Brands is quoted in a Business Day report as saying. “This follows environmental swabs taken at the factory on 2 February. We are directing all our efforts, energy and time to determine how this could have occurred.”

Tiger Brands said its Polokwane and Germiston factories remained closed while it conducted “deep cleaning processes”. “We acknowledge and recognise that we are dealing with a national crisis that has impacted customers, consumers and the industry,” MacDougall said.

“Together with our staff, business partners and the relevant authorities we are working to mitigate any further risks to consumers. We are well advanced in the national recall of all ready-to-eat, chilled processed meat products, which we initiated on Sunday. We will leave no stone unturned to get to the bottom of this to ensure it does not happen again.”

 

South Africans may have been eating contaminated polony from the Enterprise factory in Polokwane for more than a year before the deadly listeria bacteria was finally identified by health authorities. And, The Times reports, even after being warned last month that listeria was rampant at its Polokwane factory, the Tiger Brands operation continued to churn out tons of potentially dangerous products, choosing to do only a “silent recall” of one brand, Mielie Kip, on 14 February.

The report says that these unsettling facts have prompted international and local health experts to warn that South Africa is sitting on a food safety time bomb.

 

The listeriosis outbreak has shone a light on the gaps and complexity of food safety regulations in South Africa. According to a Mail & Guardian report, a range of government role-players – the Departments of Health, Agriculture, Forestry and Fisheries and Trade and Industry – manage food safety.

But, the report notes, according to the Health Department, local government is responsible for municipal health services such as enforcing food safety legislation. “The South African food control system is quite fragmented,” said Dr Lucia Anelich, a food microbiology and safety specialist who heads up Anelich Consulting. “The system as it stands is not ideal and needs to be revisited completely.”

Apart from the hygiene regulations in place at the Health and Agriculture Departments, which require premises and personnel to operate under hygienic conditions and handle foods in a specific manner, there are a number of food safety management standards applied by South African food businesses, she said. These standards are based on what is referred to as a hazard analysis and critical control points (HACCP) system. But unlike in many other parts of the world, these are not required by law in South Africa, Anelich said. Nevertheless, many local food companies adopt HACCP-based systems, said Anelich, simply because their customers want them in place before they will buy the ingredients or products that a manufacturer sells.

The report says there is one exception to this, however: regulation 908 under the Foodstuffs, Cosmetics and Disinfectants Act, which falls under the Health Department. But this regulation is only mandatory for peanut sorting and peanut butter manufacturing facilities, Anelich noted.

There are also no regulated maximum permitted levels for Listeria monocytogenes in food, notably ready-to-eat meats in South Africa, she said. Despite long-running efforts to overhaul regulation 692 to include testing for microbiological limits in food, the process has run aground, she noted.

Nevertheless, many of the food safety management system standards that the industry applied voluntarily were very strict, said Anelich in the report. “But there obviously are some businesses that may not operate at this high level of food safety, which is also a problem.”

Listeria grows well in refrigeration temperatures and is adept at hiding in the cracks and crevices of machinery on factory floors. To control for such organisms, many companies try to emulate European regulations, said Anelich. European law generally makes a distinction between foods that support the growth of Listeria during their shelf life and foods that do not, she said. A ready-to-eat food without any preservative to prevent the growth of listeria would, for example, have a far stricter limit for the bacterium.

According to Penny Campbell, director for food control at the Health Department, the delay in addressing the regulatory gaps is a result of a lack of resources and prioritisation. Efforts to overhaul regulation 692 and regulate for microbiological limits in South Africa began in 2015, she said. But the department only has one technical expert.

Health spokesperson Popo Maja said that existing legislation allows for the adoption of HACCP by a food sector but that this is typically based on a request from industry. However, the director-general can recommend a representative industry body be listed on the basis of food safety and the health of the consumer. “… the situation emanating from the current outbreak indicates that a recommendation by the director-general must be made,” he said “The process for this recommendation is underway.”

The HACCP certification is also not a panacea and lapses do occur due to human behaviours, it said. The EU has made HACCP mandatory across all food production sectors, yet investigation is currently underway of a multi-country listeriosis outbreak that started in 2015 in Austria, Denmark, Finland, Sweden and the UK.

Meanwhile, the report says, there are ways for consumers harmed by the listeriosis outbreak to get some justice but it may not be a swift process. According to Rosalind Lake, a director at law firm Norton Rose Fulbright, under the Consumer Protection Act the entire supply chain is responsible for getting safe products to the market. The Act allows for no-fault liability, which means a litigant bringing a claim is not required to prove that someone acted negligently or with intent, only that a product caused them harm. “The liability arises from supplying unsafe products,” she said.

An affected individual could seek compensation under the Act, she said, for harm such as illness or death, and any economic loss flowing from that. For example, if a breadwinner were to die, there would be a potential loss of support claim. The Act also allows the National Consumer Tribunal to impose penalties for contraventions. These can be quite significant, said Lake in the report – up to 10% of a company’s turnover, or R1m.

Additional protections for consumers are found in the Foodstuffs, Cosmetics and Disinfectants Act, which makes it a criminal offence to knowingly manufacture and sell contaminated products. But a crime has to be proved beyond a reasonable doubt, said Lake, and it would have to be proven that a person acted with intent and knowingly sold a harmful product.

The power to bring such a case lies with municipalities, which are in charge of enforcing food safety. And although individuals can be held criminally liable under this Act, it would require proving intent, said Lake in the report, and it would not generate compensation for consumers.

Consumers can also bring a class action suit if the Act has been contravened or if their rights have been infringed. Janusz Luterek, a partner at Hahn & Hahn attorneys said in a recent presentation, given the number of listeriosis cases, this could constitute a class. The damages claimed and legal costs incurred could be huge, he said.

There are international funders who fund this type of litigation, said Lake.

 

Health Minister Aaron Motsoaledi blasted private laboratories for delaying providing data about the listeriosis outbreak. And, eNCA reports, he said that government would support any community intending court action over the outbreak. Almost a thousand cases of listeriosis were reported in the country. “Those members of the community who want to litigate, we will give them all the information… all the data, we’ll give all the expertise to litigate,” Motsoaledi told Parliament.

The minister said companies in the food value chain, who failed to adhere to South African and international food safety standards and are found culpable in the world’s largest listeriosis outbreak, will be punished. “Laws are available to take people to account and they are going to be punished in terms of the available legislation,” Motsoaledi said in a debate in the National Assembly.

The report says he was responding to calls from MPs in opposition benches that companies be prosecuted for selling foods containing listeriosis.

 

Meanwhile, the EFF said it plans to launch a class action against companies involved in the spread of the deadly bacteria. EFF leader Julius Malema blamed the government and the National Consumer Commission for the “slow pace” of containing the spread of the bacteria.

EFF MP Natasha Ntlangwini said in a report on the IoL site: “Both Rainbow chicken and Enterprise must come here and account on why they did not follow South African government and international food safety regulations. We need to hold them accountable, they need to be prosecuted”. Ntlangwini called on the Health and Agriculture Departments, as a matter of urgency, to strengthen inspection services to detect quality control transgression timeously.

IFP MP Narend Singh backed the EFF on their call to bring both RCL Foods and Tiger Brands to account for the loss of lives, the report says. “The corporates entities that are involved in the spread of this bacteria into South Africa must be bare the legal responsibilities and consequences of their actions. No amount of false legal poetry can absolve them from bearing prime responsibility for the deaths and continued ill health of those affected by consuming these contaminated products,” said Singh.

 

A whopping 4‚000 tons of polony and viennas is the initial estimate of how much recalled cold meat will be sent to dump sites. The Times reports that this is according to EnviroServ Waste Management’s Dr Johan Schoonrad‚ a treatment and disposal specialist.

EnviroServe is one of the waste companies that has made a bit to Tiger Brands and Rainbow Chicken Ltd to help dispose of recalled cold meats. The report says this was after the Environmental Affairs Department gave an exemption to waste management companies to dispose the meat in hazardous waste landfills rather than in medical waste sites.

“Usually infectious products are classified as medical waste‚” said Schoonrad. However‚ Schoonrad said‚ medical waste facilities in South Africa are not designed to deal with so much waste. He said waste companies had been waiting for permission to dispose of the polony without classifying it as a medical waste product.

The report says the department’s letter to waste companies reads: “The receiving waste site must undertake a risk assessment and submit a risk management plan to the department demonstrating that the proposed management option will ensure that the waste is managed in such a way that it no longer poses a risk to human and animal health or the environment.”

“Four thousand tons is not substantial for a hazardous site‚” said Schoonrad‚ saying a disposal would only take a few days. A hazardous site has strict access control unlike a municipal landfill‚ he said.

Schoonrad said EnviroServ’s proposed plan was to collect the meat‚ cover it with lime and then bury it. “Lime is caustic and will break down the bacteria’s cell wall”. Schoonrad said the listeria would be far easier to treat with lime than fungi that had spores and could send germs back into the environment.

The report says it is not clear which waste management company will be chosen to dispose of the cold meats.

Consumers have been advised by microbiologists not to throw away cold meats but to return them to retailers‚ even without a till slip. Those who cannot reach retailers should burn the polony to avoid the listeria bacteria spreading from the dustbin into the environment.

 

Experts have said that the listeriosis outbreak is just the tip of the iceberg of diseases being caused by poor quality food consumed by millions of South Africans every day. “There are two things that make South Africans vulnerable to something like a listeriosis outbreak. Our cultural context and the way the food processing and retail industry is structured,” says Florian Kroll from the Institute for Poverty Land and Agrarian Studies (PLAAS), who’s written extensively on food consumption patterns in South Africa.

“In South Africa’s cultural context it’s important for people to eat meat. It’s a status thing to be able to show that you’ve arrived and can afford meat. But, in the context of poverty, people choose meat products they can afford. Most of the time that means cheap, processed meat.”

News24 reports that with a beef fillet costing you R194 per kg in August 2017, according to Stats SA, and the average price of beef mince rising by 13.2% (from R68 to R77 per kg) between 2016 and 2017, and in a country where 30.4m people live in poverty, it’s no wonder the consumption of dodgy meat products are the order of the day.

“The food industry is killing thousands of people every year with ultra-processed foods that are made with multiple additives and derivatives and formulated to hit the sweet spot to make it really tasty. It’s usually packaged to last long and a lot of these foods cause hypertension and obesity, which kills a lot of people,” says Kroll.

The report quotes Dr Jane Battersby-Lennard from the African Centre for Cities, at the University of Cape Town, as saying that at least 60% of Cape Town’s population cannot afford what the Bureau for Food and Agricultural Policy (BFAP) has calculated to be a balanced plate of food – according to the Pacsa Food Price Barometer, the actual cost of feeding a child a basic, but nutritionally complete, diet is between R540 and R682 per month. With the child support grant (R380 per month) currently set below the adjusted food poverty line of R531 per month, there’s simply no way parents can serve their children proper meat.

“The urban poor are very dependent on processed meats as a source of protein, not only on the basis of their relatively cheap price, but also their convenience in the contexts of time poverty and energy poverty,” says Battersby-Lennard. “The kota is a major street food in all our cities, and polony, russians are a core element of these. These highly processed meat products are, therefore, central to the diets of the urban poor.”

The report says at the same time, the food processing and retail industry is structured in a way to make maximum profit off poor people, with the major processing companies having been targeting entry into “Bottom of the Pyramid” markets. “Tiger Brands have been particularly active in marketing to the informal sector market,” she says.

According to Kroll, the industry is structured in such a way that there’s a high concentration and consolidation of ownership, which means it is dominated by only a handful of big players. “Most food outlets are interested in maximising profit, and that means they’re sourcing their products from global markets. In the listeriosis case, it’s been linked to cheap derivatives from other countries. We’re seeing more and more of this due to trade agreements South Africa has signed, and we’re getting a whole lot of cheap products imported from countries like the US and Brazil. Because the industry is so small, when there is a contamination, it’s likely to be distributed very widely and so it’s very difficult to maintain consumer safety.”

So how do we prevent more illnesses from breaking out and the erosion of long-term health? The report quotes experts as saying it is a combination of stricter industry regulation and the promotion of sustainable and just food consumption. “Policy makers, change agents and researchers need to be aware of the factors that influence the way people consume food: both the economic factors, but also the values, identities and aspirations people in their behaviour,” reads a policy brief by PLAAS on the food-ways of poor people.

“While Big Food reaps big profits, it is the poor who shoulder the growing burden of poor health, stunted development, reduced educational attainment and productivity, and ultimately it is they and the state who foot the bill for cheap food.”

 

The National Regulator for Compulsory Specifications (NRCS) has told Parliament that it did not have the mandate to proactively review the standards of meat processing facilities and factories in the country but could check them against legislated standards if delegated to do so, reports Fin24.

Acting CEO of the NRCS, Edward Mamadise, told Parliament’s portfolio committee on trade and industry that the process of harmonising food checks under the regulator was still ongoing and, as such, it could only conduct checks if delegated to. “As things currently stand the mandate of inspecting food is fragmented. There was talk of harmonisation but that has not happened. In the food space we act only upon delegation. It is not currently within our direct mandate,” said Mamadise.

Mamadise said the NRCS regulates the canned meat as well as the processing facilities of these products. He said these products are not currently affected by the listeriosis outbreak. “We check to see if canned meat products are packed in hermetically sealed containers which are subjected to a heat process to render a commercially sterilised product. This is a product that is processed to reduce the number or activity of microorganisms so that none are detectable in the final product,” he said.

He said the heat process also ensured that there was no spoilage of toxic exposure for the product. He said processed meats are only subjected to pasteurisation and are stored and transported under strict refrigeration.

He said canned meat regulated by the NRCS is not allowed to be sold or distributed before it is physically inspected. Mamadise told the committee that the regulator was working to clear backlogs where it came to letters of approval in sectors including the electro-technical and automative sectors.

The report says committee chair Joan Fubbs raised concerns that if clarity is not provided in the regulation of processed meats, it could cause a similar fallout to the catastrophic circumstance South Africa currently faces. “This is at the heart of something serious and if you are going to adopt this with a cavalier attitude then we are going to have a problem. If people approve casually and tick the wrong boxes in the process then we as a committee will not accept it,” said Fubbs.

Committee member for the Democratic Alliance Dean Macpherson described the hurdles in finalising the NCRS’s role as processed meat regulator “a bombshell”, adding that the regulator was being “stonewalled”.

 

The National Institute for Communicable Diseases (NICD) has released the latest listeriosis update – it said that data collection was ongoing‚ so the numbers change daily.

The Times reports that the NICD has asked doctors and nurses “to continue with vigilance for new cases as persons who have consumed implicated processed meat products over the past few weeks may continue to present with listeriosis”.

 

Namibia has reported its first case of listeriosis since an outbreak in South Africa erupted at the beginning of last year, killing 183 people so far. The Times reports a 41-year-old Namibian man was diagnosed with the disease and is being treated in a hospital in the capital Windhoek, Health Minister Bernard Haufiku said.

Namibia has banned South African imports of processed meat products, and Haufiku warned Namibians not to eat any items still for sale in the country. “This is the first case of listeriosis reported in Namibia since the outbreak in neighbouring South Africa,” Haufiku is quoted in the report as saying. “Our surveillance and monitoring systems are in full force.”

The victim, whose medical condition was described as stable, bought so-called vienna sausages in his hometown of Tsumeb, in the north of Namibia.

Since January 2017, more than 900 people in South Africa have contracted listeriosis, which is caused by bacteria which can contaminate fresh food, notably meat. Earlier this month, the source of the outbreak was finally traced to a food factory owned by Tiger Brands.

The report says other countries that have imposed restrictions on South African meat imports are Botswana, Kenya, Malawi, Mozambique, Swaziland, Zambia and Zimbabwe.

News24 report
Bloomberg report
Times Select report (subscription needed)
Business Day report
The Times report
Mail & Guardian report
eNCA report
IoL report
The Times report
News24 report
Fin24 report
The Times report
NICD Listeriosis Situation Report
The Times report

 


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