More food regulations not needed in light of Calgary E. coli outbreak: law professors
Kate Maxwell wants to know why, despite multiple inspections of a kitchen thought to be the source of the Calgary daycare E. coli outbreak, it was allowed to continue operating. Maxwell’s son was part of that outbreak.
“I just don’t understand what has to happen for someone to lose their (operating) license. Like, at what point do we need to harm the children to have a license revoked? It just doesn’t make sense to me,” Maxwell told Global News.
“What needs to happen is the government actually needs to intervene and follow their own guidelines.”
Maxwell’s sentiment mirrors one penned by a pair of law professors in Calgary: new regulations aren’t needed in light of the Calgary daycare E. coli outbreak that infected hundreds of children.
Instead, they say the laws already on the books need to be better enforced, efforts that were hamstrung by an “obsession… with cutting ‘red tape’ (aka regulations).”
But one professor who studies food safety says another option could be a better use of resources.
In a Monday post on the University of Calgary’s faculty of law ABlawg, Shaun Fluker and Lorian Hardcastle argue the existing food safety regulations in the province, as well as the powers under the Public Health Act, are sufficient to prevent outbreaks like the one declared in Calgary that saw 349 people infected by Shiga toxin-producing E. coli.
“This is not a case of missing regulations, as the premier has suggested,” Fluker and Hardcastle wrote. “Rather, this is more likely to be an implementation problem – as has been observed by public health experts who say more rigorous inspections of these establishments are needed.”
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Premier Danielle Smith said the government is reviewing all shared kitchens that serve child-care facilities, with a possible result in changes or additions to legislation.
“We will explore regulations and make changes if needed,” Smith said on Sept. 15, when announcing ministers Adriana LaGrange and Searle Turton would lead a review of food safety for facilities serving daycares and similar facilities.
The next day, Smith said that could include the need for everyone in a kitchen to complete food safety certification. She also said the regulatory changes could come from the review of the Public Health Act being conducted by Preston Manning, in relation to the early phases of the COVID-19 pandemic.
The authors note an E. coli outbreak, like the one declared by Alberta Health Services on Sept. 4 immediately affecting 11 daycares, meets definitions within the Public Health Act that allows medical officers of health to do what’s necessary to help those who are already infected, protect those who haven’t been exposed yet, break the chains of transmission to prevent the disease’s spread and remove the infection’s source.
“Given the legislation’s breadth, the question becomes then: Was this a problem of how the law was operationalized? What do the policy manuals look like? Do we have enough enforcement staff?” Hardcastle told Global News.
“While I think the government should certainly review the legislation not just because of (the E. coli outbreak), but because of COVID-19, the Public Health Act deserves a look.
“I think that they shouldn’t be too quick to find regulatory problems where the problems may lie elsewhere.”
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According to the AHS 2021-22 annual report, there were 33,728 inspections — down from 65,560 in 2018-19.
There were 48,247 inspections in 2019-20 and 26,171 in 2020-21 when there were public health restrictions in place during the height of the COVID-19 pandemic.
Dr. Franco Rizzuti, chief medical officer of health for the Calgary region, said AHS continues to have a “robust public health team in place.”
He said there are 250 inspectors across the province, up from 237 in 2019.
“Thirteen new positions were added provincially to ensure that critical violations were identified and corrected,” he said. “In Calgary zone, there are currently 64 public health inspectors and this is compared to 60 before the pandemic.”
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On Wednesday, Alberta’s chief medical officer of health Dr. Mark Joffe outlined the process food inspectors follow when conducting surprise inspections.
“They do go through a (25-item) checklist… But beyond the checklist, what they are performing is a detailed risk assessment in the facility, and they’re looking for physical, chemical or biological hazards that may exist and and looking for ways to mitigate any risks that they do pick up on,” he said, noting items like temperatures maintained during transport are self-reported by a kitchen.
A more robust monitoring and enforcement program that public health experts have advocated for “depends on having a government that is not obsessed with cutting ‘red tape’ and also provides the regulatory system with adequate resources to function properly,” Fluker and Hardcastle wrote.
Fluker said “red tape” — a colloquial term for regulations especially in a business context — is an “odd term” for regulations.
“When it comes to regimes like the food regulation and ensuring that food establishments like kitchens follow certain standards, it’s regulations that make that happen. It’s regulations that give compliance and enforcement officials the tools that they need to to ensure that these facilities are following standards on sanitation and other health- and safety-related matters,” he told Global News. “At some point, the cutting of regulations is going to have or create risks to the public.
“It’s not always a good idea to be obsessed with cutting red tape. There are consequences for that and we need to be mindful of that, particularly when tragedies like this one come to the forefront.”
One food science professor and former chef said there’s a balance that needs to be struck between regulations, enforcement and education.
“Regulators are not teachers, they’re enforcers,” Keith Warriner said.
“Essentially, what you have is a very complex food safety system that those who (are) on the ground, preparing foods, have to have a consultant in order just to interpret a regulation.”
The University of Guelph food science professor said there is a place for regulations that are tailored to childcare facilities – like as is the case for hospitals and the armed forces – but simply increasing the number of food inspectors is not a guaranteed way to improve food safety.
Warriner pointed to the 2012 XL Foods E. coli outbreak in Brooks and an apparent hesitance for the inspectors to shut down meat plant operations under the Safe Foods for Canadians Act.
“They had a full complement of inspectors, but they kind of went blind to the situation that didn’t want to rock the boat — because it’s a big thing,” he said.
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Warriner also said relaxed food-related regulations played a role in the 2008 Maple Leaf Foods Listeria outbreak, where a newly-implemented self-reporting system was in place.
“Give full marks to Maple Leaf in that, after that outbreak, they suddenly realized, saying, ‘Oh yeah, you don’t just depend on regulations. You actually got to go above regulation,’” he said.
Warriner said while food safety conditions are often corrected during an inspector’s visit, there’s one consistent solution for long-lasting adherence to regulations.
“What increases food safety is getting the people to do the right thing and untangling all these regulations.”
Warriner’s team worked with the Food and Agricultural Organization of the United Nations to develop a food safety toolkit, “which essentially enables users to go in there and say, ‘Oh, yes, so this is what the regulations are based on, this is what I have to do.’”
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Warriner said the U.S. Food and Drug Administration is providing similar educational toolkits for state and local regulators south of the border.
“It’s literally getting people to do the right thing, which, when you don’t empower them or don’t give them ownership – which basically the regulators have taken it away saying, ‘We write the rules, you apply them and you’ve got to interpret it. We’re not going to tell you directly,’” Warriner said.
On Wednesday, Smith announced former Calgary police chief Rick Hanson was going to lead a “comprehensive review” of government food safety policies in Alberta, including inspection and training, with a forthcoming report expected at a to-be-determined date.
A Ministry of Health spokesperson confirmed “the panel will consider things like minimum staff capacity and training requirements, including increased and more rigorous mandatory food safety training and record keeping.”
The panel is also expected to recommend how processes for inspections and violations could be strengthened in kitchens that serve child-care facilities.
The City of Calgary also announced 12 bylaw charges laid against the central kitchen thought to have served tainted meatloaf and vegan loaf for operating without a business license.
Warriner said the repeated sanitation-related violations indicated a possible problem with the food safety culture in that kitchen.
Sanitation is one of four pillars of food safety. The others are proper temperature treatments, safe storage and separation of foods.
While Warriner hasn’t seen the detailed inspector reports of the central kitchen, but he said the conditions outlined in the latest inspection stood out.
“The average inspector even coming straight out of school would have said, ‘No, this isn’t right. We’ve got to close it down.’ But there’s such a reluctance to do it.”
Maxwell said she would like to hear directly from the province why the existing regulations weren’t apparently being enforced, given the health of children was at risk in this outbreak.
“I want the government to answer the question, what does it take to to revoke a license? What is that answer?” Maxwell said.
“Because if we’re not going to follow guidelines, if we’re not going to have consequences, then what’s the point of having any at all? It just means that they’re obsolete. And that’s not very reassuring as a parent.”
— with files from The Canadian Press