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How an industry dodged a strategy proven to prevent deaths caused by raw oysters

Ken McLeese visiting from Atlanta eats a plate of Apalachicola oysters on the half shell at Up The Creek Raw Bar Restaurant on May 26, 2016, in Apalachicola, Fla.
Ken McLeese visiting from Atlanta eats a plate of Apalachicola oysters on the half shell at Up The Creek Raw Bar Restaurant on May 26, 2016, in Apalachicola, Fla. Sun Sentinel/TNS

Gulf Coast lawmakers derailed efforts to curtail a deadly disease with a public relations campaign built on exaggerated claims.

Congressmen stood firmly with the Gulf oyster industry in 2009 to defeat federal regulation that would require treatment of raw oysters to eliminate Vibrio vulnificus, vicious bacteria that thrive in warm coastal waters.

They offered dire predictions for the impact on oyster harvesters, dealers and restaurants in their states and misrepresented the U.S. Food and Drug Administration’s plan.

The industry stopped the FDA, and then went further — it successfully pushed legislation barring future regulation without notifying Congress or getting approval from the oyster industry.

Gulf lawmakers cheered it as a “tremendous victory.”

For Virginia Barineau, it was a death sentence. The North Florida woman was one of at least 150 people who died, lost limbs or became seriously ill after the oyster industry and its supporters in Congress blocked the FDA.

“If these regulations were kept … my mother would still be here,” said Barineau’s daughter, Kimberly Bliss. “As far as I’m concerned, they have blood on their hands.”

Overblown claims

By the time the FDA announced it would mandate processing of oysters to kill the bacteria, it had given the industry more than a decade to reduce illness. Despite warnings on menus and education aimed at at-risk consumers, about 30 people a year in the U.S. continued to get seriously ill or die.

The FDA plan would have applied to oysters sold across state lines, leaving it up to the Legislatures in Florida and other states to decide whether oysters harvested and sold within their borders should be treated. The FDA called treatment “the right approach for all raw oysters harvested in the Gulf in the warm weather months.”

Three weeks after the announcement, Florida Sen. Bill Nelson and colleagues from Louisiana filed a bill titled the “Gulf Oyster Protection Act.”

“We are going to stand up for the people, businesses and communities whose livelihoods depend on the oyster industry,” Nelson said.

He joined lawmakers from other Gulf states in news conferences, speeches and congressional hearings, predicting financial ruin for the oyster industry.

The lawmakers accepted the industry’s argument that the relatively small number of illnesses did not justify the cost to the industry, later estimated to be $13 million a year. Along the way, they misstated critical facts:

▪ Nelson said on the Senate floor that the policy would “basically eliminate raw oysters from the Gulf of Mexico.” But the FDA was calling for treatment only in the warmest months of the year. Untreated raw Gulf oysters would remain available in the winter, and oysters treated in the summer still would be served raw.

▪ Mary Landrieu, then a senator from Louisiana, implied 90 percent of Gulf oysters could be impacted. The actual figure, according to the FDA, was about 25 percent because other Gulf oysters were sold for cooking, harvested in cooler months or already treated.

▪ The politicians said the problem could better be solved with education. But education had already proven ineffective.

▪ They claimed the proposal came “out of left field.” In fact, an industry-government consortium had agreed eight years earlier that if it could not significantly reduce serious illnesses, treatment would be a solution. When that deadline arrived, the FDA briefly agreed to an alternative refrigeration plan, then announced it would enforce mandatory treatment.

▪ A congressman from Louisiana, Charles W. Boustany Jr., called it a “proposal to ban the summer harvesting of oysters along the Gulf Coast.” Oysters would continue to be harvested year-round; only those harvested in the warmest months would be treated.

While the impact on jobs and oyster prices may never be known because the policy was not adopted, economic data indicated many of the politicians’ claims were overstated.

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Louisiana’s governor at the time, Bobby Jindal, said the cost of oysters would nearly triple. An FDA-commissioned study found the price would rise by up to 15 percent.

Landrieu said the treatment regulations would put “our entire oyster industry at risk and could force thousands of Louisianans out of work.” The FDA study concluded that 40 percent of oyster processors could close, affecting up to 800 workers across the Gulf. But that number would go down if, as expected, the dealers raised their prices, or workers found newly created jobs in the regional treatment plants that would be built.

“People would turn to other things. They’re going to harvest other fish, they’re going to harvest for the pasteurized industry,” said David Plunkett of the Washington-based Center for Science in the Public Interest, which supported the FDA. “They really created this picture that this is going to destroy the economy of the south.”

John Tesvich, an oyster dealer who developed a technology to kill Vibrio vulnificus and became a villain in his own industry, said the claims were overblown.

“It wouldn’t have been thousands of jobs,” said Tesvich, owner of AmeriPure in Franklin, La. “It would change things. Things change all the time. … That’s normal in business.”

‘We only kill 12’

The debate featured the cold calculus of an acceptable number of fatalities. Then-U.S. Rep. Charlie Melancon of Louisiana said 15 deaths a year was “minuscule” and called the FDA regulation a “silly rule.”

“Five times as many Americans die each year from being struck by lightning than by consuming raw oysters,” Landrieu’s office said.

Nelson said the victims had pre-existing conditions and were “already subject to coming down with an illness.”

“In a sweeping administrative executive branch decision trying to correct a problem,” Nelson said, “they are suddenly proposing that they are going to stop the rest of America (from) eating raw oysters from the Gulf of Mexico.”

In a statement to the Sun Sentinel last month, Nelson’s spokesman said the cost would have been prohibitive to many oyster dealers. And given “the relatively small scope of Vibrio vulnificus infections each year,” Nelson thought the FDA should work with the industry to “protect public health without shutting down the Gulf Coast oyster industry.”

Bliss wondered if lawmakers would think the same if they lost a loved one this way. Her mother, 68, died after a lunch of raw Gulf oysters.

“Wait until it’s your mother, wait ‘til it’s your sister or your brother that simply goes out to happy hour, eats some oysters and is dead in six days,” said Bliss, of Sacramento, Calif. “Then they might open their eyes and care.”

Even many oyster regulators in the Gulf states opposed the regulation and agreed that some deaths were acceptable, but the industry knew that would sound bad, as an insider speaking to an industry group in 2010 explained.

Bob Rheault, executive director of the East Coast Shellfish Growers Association, cautioned against comparing Vibrio vulnificus to more common food illnesses that sicken many more. Rheault explained to colleagues how pointing out a lower annual death toll might sound: “We only kill 12. Well, that’s great.”

Rheault told the Sun Sentinel last month he was urging oystermen to take the Vibrio threat seriously.

“My industry tends to spout off and use that as an excuse,” he said. “It doesn’t sound good.”

He said mandatory treatment would have devastated the Gulf industry. While the public may not be able to taste the difference in treated oysters, chefs and restaurant owners can, Rheault said, and they would have started buying oysters from elsewhere in the U.S. or other countries.

Fighting the FDA

Politicians in the Gulf states are protective of the industry, one that’s been around for two centuries and is the main employer in small coastal towns they represent. The industry has easy access to the lawmakers, cultivated through annual events such as a Walk on the Hill and D.C. Oyster Week, where politicians and their staffs mingle over bushels of Gulf oysters.

Rheault gave a behind-the-scenes look in that 2010 presentation at how the industry used that political clout to defeat the FDA.

“We established a huge press blitz, a lot of web sites, petitions, got a lot of publicity,” he said. “We sent them a pretty clear message … and they backed down.”

A month after announcing oysters would have to be treated in the warmest months of the year to eliminate Vibrio vulnificus, the FDA retreated, saying it looked “forward to working with Gulf Coast officials and industry” to protect consumers “in a manner that is feasible and minimizes impacts on the oyster industry.”

The industry went one step further. “We managed to get an amendment through to the Food Safety Act,” Rheault said in his presentation.

That act, ironically, was hailed as the most sweeping improvement to food safety in 70 years. It emphasizes preventing foodborne illnesses, but the amendment makes it harder for the FDA to do that with oysters.

The FDA now must give Congress a detailed analysis that includes the cost and impact on the industry if it ever tries to require treatment of raw Gulf oysters again. The FDA can bypass that requirement only if the industry agrees to treatment, the Senate sponsors said.

“This amendment,” Landrieu declared, “ensures that the FDA’s overreaching approach is abandoned for good.”

The FDA hasn’t tried again since. The agency’s “mission and foremost concern is public health,” a spokeswoman told the Sun Sentinel, but Vibrio vulnificus in oysters is “especially challenging.”

The agency also has limited authority when it comes to oyster safety. Under an unusual arrangement, the FDA must consult with the Interstate Shellfish Sanitation Conference, which includes state regulators and industry representatives.

Each time the FDA has tried to ban or treat raw summer oysters, the conference has rejected it.

Andy DePaola, who retired last year as the FDA’s lead seafood microbiologist, said the agency would have prevailed had it not been for this unusual arrangement.

“If this had been anything else other than shellfish,” he said, “this would have changed years ago.”

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