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Attorney Bill Marler Contrasts the “Blue Bell Licker” with Blue Bell Management Over Listeriosis


EGG-NEWS strongly supports the opinion of Attorney Bill Marler, an experienced legal practitioner with a practice concentrating on litigating food safety claims. Marler entered the field in 1993 following a series of Jack-in-the-Box STEC cases involving as many as 750 children, many of whom developed hemolytic uremic syndrome.

At issue is the disparity in potential penalties facing a juvenile in Lufkin, TX. and the management of Blue Bell Creameries responsible for a listeriosis outbreak in 2015. The Lufkin case involves a juvenile licking the top of a container of Blue Bell ice cream taken from a supermarket freezer. Unfortunately for the perpetrator, the posted video went viral and resulted in a police inquiry. In the interest of public health, the store was forced to remove all containers of Blue Bell ice cream from the freezer at relatively high expense.

If the perpetrator were an adult, penalties for deliberate "adulteration" of a food could run to twenty years of incarceration. In the present case, the perpetrator and a number of copycat successors will probably face less severe penalties under the Texas juvenile justice system.

The principal contention advanced by Marler is that a prank might result in a multi-year prison term if the accused were to be found guilty of a felony. Marler contrasts the Lufkin case to the Listeria outbreak precipitated by contaminated Blue Bell ice cream in 2015. The investigation of the outbreak was documented in both EGG-NEWS and CHICK-NEWS. (Retrieve by entering Blue Bell in the Search block). A total of ten consumers were diagnosed with listeriosis in four states resulting in all being hospitalized and including three fatalities in Kansas. In April 2015, Blue Bell Creameries recalled all products on the market and effectively ceased operation in three locations in Texas, Oklahoma and Alabama. The financial impact on the family-owned company was extreme and subsequently ownership and management were replaced.

The CDC and FDA investigations disclosed grievous deviations from acceptable production standards in all three plants. These included

  • inadequate microbial testing to detect Listeria which could be reasonably expected to be a contaminant of dairy products

  • failure to train employees in appropriate food handling procedures

  • deficiencies in design of buildings and equipment contributing to condensation and environmental contamination

  • insufficient cleaning and sanitizing of equipment and work areas including food-contact surfaces

There was evidence that management was aware of the presence of Listeria in plants, but neglected to apply appropriate corrective measures. These deficiencies rise to the level of deprived indifference to public health. The outbreak of listeriosis with consequential fatalities was inevitable given the violations in all three of the Blue Bell Creamery plants. The extent of infection was either known or should have been known to quality control personnel, their supervisors and extending upwards to the top management of the enterprise.

Marler clearly points out the inconsistency of police action following a stupid prank staged for social media and the far more serious implication of a company knowingly or negligently distributing a product contaminated with a potentially lethal bacterial infection.

To date, no Blue Bell manager or officer has been charged with any crime although there are parallels to the DeCoster-precipitated outbreak of egg-borne Salmonella Enteritidis in 2010. The Blue Bell Creamery listeriosis case also has parallels with the 2009 Peanut Corporation of America Salmonella outbreak that resulted in prolonged prison terms for the owners and also for production and QC personnel since fraud and falsification of assay results were involved.

Bill Marler might be regarded as an irritant by food processors, but his professional endeavors have created a higher concern for food-borne infection His legal activities have raised the standard of prevention in plants and stimulated more forceful responses by regulatory agencies to protect consumers.