The Daily Harvest Food Poisoning Scandal

“Herpes is basically living the dream” — Aubrey Gordon.

Support us:

•  Subscribe on Patreon
• Donate on PayPal
• Get Maintenance Phase shirts, stickers and more
• Check out Mike's other podcast, If Books Could Kill
• Pre-order Aubrey's book!

Links!

• Marion Nestle's "Safe Food"
• The vomiting, diarrhea, and gallbladder surgeries were bad enough. Daily Harvest’s alleged food poisoning victims say the startup’s response made things worse
• For Now, Skip Eating Products That Contain Tara Flour, CR's Food Experts Say
• Bill Marler’s Daily Harvest posts
• The original Reddit post
• The History, Politics & Perils Of The Current Food Safety Controversy
• Food poisoning and unsafe temperatures: Many meal kit companies aren’t FDA regulated
• Public Health and Food Safety: a Historical Association
• Investigating Food Safety Implications Of Meal-Kit Delivery Subscription Services In Toronto
• Vitamin retention in eight fruits and vegetables: a comparison of refrigerated and frozen storage
• Ten years post-GAO assessment, FDA remains uninformed of potentially harmful GRAS substances in foods
• Daily Harvest updates
• Rachel Drori interview
• Antioxidants in Fresh and Frozen Fruit and Vegetables: Impact Study of Varying Storage Conditions
• Generally recognized as safe (GRAS): history and description

Thanks to Doctor Dreamchip for our lovely theme song!

Transcript

Copy Transcript Copied

[Maintenance Phase podcast theme]

Michael: Okay, tagline. Tagline time. And we have, "don't describe symptoms." Don't make it a downstairs tagline.

Aubrey: There's no poop talk. I'm not going to say anything about poop.

Michael: You know the rules on the show.

Aubrey: Hi, everybody, and welcome to Maintenance Phase, the podcast that starts out as a bonus episode, sometimes- 

Michael: Oh, yeah. [laughs] 

Aubrey: -and then turns into a main feed episode. Look at that.

Michael: [laughs] I am Michael Hobbes, and I'm incapable of not researching. 

[laughter]

Michael:  I'm sorry.

Aubrey: I am Aubrey Gordon and I'm just along for the ride. [laughs] If you would like to support the show, you can do that at patreon.com/maintenancephase. Or you can buy t-shirts, mugs, tote bags, whatever you want at TeePublic. Both of those are linked for you in the show notes along with a link to preorder my next book, “You Just Need to Lose Weight”: And 19 Other Myths About Fat People. And, Michael Hobbes, today, we are talking about something that I suggested to you in a offhanded way for a bonus episode and then you were like, "Hang on, I just need like a month." [laughs] 

Michael: This is your fault for suggesting an episode that has themes. [crosstalk] 

Aubrey: [laughs] 

Michael: So, let's start out with what you know about this.

Aubrey: Here's what I know. And this is from genuinely just headlines and tweets. What I think I've gleaned about this story is that Daily Harvest, which is like a podcast advertised wellness foods company has these lentil sausage crumbles to-- They're supposed to be like mimicking sausage, yeah?

Michael: Yes. 

Aubrey: But apparently those lentils gave people liver failure or something. People were going to the hospital. I don't know. It was a whole situation. 

Michael: Yeah.

Aubrey: That's about it. That's all I really know. 

Michael: Yes. It turns out they were mimicking the texture of sausage with bacteria. 

Aubrey: Ooh. 

Michael: Not a good idea. 

Aubrey: Got it. 

Michael: This is as far as right now the largest outbreak of foodborne illness in the US this year that we know of. 

Aubrey: Whoa, what? 

Michael: So, according to the FDA, there are 386 adverse illness events, which is what they call it. There were 130 hospitalizations. So, think about how bad food poisoning would have to be for you to go to the fucking hospital. 

Aubrey: Yeah, totally. 

Michael: According to the lawyer who is representing the plaintiffs, 20 people had their gallbladders removed.

Aubrey: What the hell, man? 

Michael: We're talking about a very serious situation for the people who this happened to.

Aubrey: Absolutely. 

Michael: What do about the company Daily Harvest, actually? I had not heard of them before all this.

Aubrey: Oh, I had heard of them because of podcast advertising. 

Michael: Oh.

Aubrey: Yeah, they're big podcast advertisers. They started selling these frozen little cups of produce. And you can either add those to blender with some milk of your choice and make it into a smoothie or some of them were like more savory ones and you could add-- I don't know if you add water or broth, or if it comes with broth in it, or whatever. They come in these individually portioned little cups. It's like convenience marketed kind of thing.

Michael: I stopped listening to all that after you admitted that you actually listened to podcast ads. [crosstalk] 

Aubrey: [laughs] 

Michael: The only person.

Aubrey: Sure do.

Michael: Yes, the company was founded in 2015 by a woman named Rachel Drori, who was previously a marketing executive for Four Seasons, the company that runs hotels and then for American Express. The founding lore of the company is that she was working at this company Jetsetter, she's overworked and she said, she was grabbing trail mix for lunch and calling it a meal. What she started doing is portioning out these little smoothies for herself. On Sundays, she would caught up a bunch of melon and chia seeds and whatever, and then put them in cups and have them in her freezer, so that throughout the week, she could pull them out and put them in the blender and blend them up, and then bang, she's got a smoothie. 

Aubrey: She's doing meal prep. 

Michael: She's doing meal prep.

Aubrey: Gotcha. 

Michael: And so, eventually, she starts telling other people about this and she realizes that a lot of other, especially working women have the same problem. So, she finds a commercial kitchen, she starts working with farmers, she finds customers and sets up a website, where people can start ordering these little smoothies for themselves. I read a lot of old coverage of this company. And something that I always think is really funny about business media is they let CEOs just like lie to them. In all these interviews that Rachel Drori has given about the origins of the company, she talks about how-- At first, she was just focused on the smoothies and getting the product right. And then eventually, after roughly a year, she's like, "Then I thought I should expand into the branding that I wanted and the customer segment." It's like, "Rachel, you're a marketing executive. That's your entire career. Are you telling me that you never thought about how to market this company?" 

Aubrey: Yeah. 

Michael: I think it's very funny that founders of companies have to do this theatrical thing of like, "Oh, I was thinking about was the smoothies for a year?" And it's like, "No, you probably looked at the market and you saw a gap and you were like, there's a lot of affluent women who want to have convenient meals and no one is specifically marketing to them." That actually seems fine to me. [laughs] 

Aubrey: Yeah, I feel I got no beef with that particular and also, I don't know, man, frozen produce, it's at the grocery store in different bags as different things. 

Michael: Right.

Aubrey: This lady's put them in cups altogether. 

Michael: Yeah, exactly. 

Aubrey: Okay.

Michael: In some ways, it's extremely innovative and in some ways, it's not remotely innovative. [crosstalk] It's like you can go to the store and get frozen blueberries.

Aubrey: Everything's fine, everybody.

Michael: By 2017, this company is like exploding. She says that she's got 100,000 subscribers. She has 128,000 followers on Instagram. She gets a huge infusion of cash from some private equity, something-something, and investors who include Gwyneth Paltrow, obviously. 

Aubrey: [laughs] 

Michael: Bobby Flay-

Aubrey: What?

Michael: [crosstalk] celebrity chef guy. Haylie Duff-

Aubrey: Uh-huh.

Michael: -who does something with the youths.

Aubrey: No, no, does not do anything with the youths now. [laughs] 

Michael: I read two books for this episode. I did not bother to google who Haylie Duff was. [laughs] 

Aubrey: Ah, she's Blake Lively's Sister. Don't worry about it. 

Michael: There's also the Olympian Shaun White, I think the snowboarding guy, and then also Serena Williams. 

Aubrey: Oh.

Michael: Her first cameo on our show. I did not know this, but she calls herself a chegan, because she's a vegan, but she sometimes cheats with meat and fish. 

Aubrey: Ah, gotcha. 

Michael: I want to do an overview of just the vibe of this company and what this company is doing before we get into all of the events. So, I want us to go to their website together. 

Aubrey: [sighs] Okay. Is it just daily-harvest.com? 

Michael: Yeah, just google Daily Harvest and it should come up.

Aubrey: Oh, my God, it's one of those websites that has like clippy, "Hi, I'm your Daily Harvest digital care guide." 

Michael: I know it.

Aubrey: No, clippy.

Michael: Enjoy the newsletter that you're going to get for the rest of your life, probably.

Aubrey: The website says, "Daily Harvest, NEVER NOT IN SEASON in very large bold letters. "Our chef crafted food is delicious, easy to prep, and built on sustainably sourced fruits and veggies. But that's just the beginning. Daily Harvest is on a mission to make it really easy to eat more fruits and vegetables every day. From seed to plate, we're committed to a better food system, one that prioritizes human and planetary health. We are transforming what we eat, what we grow, and how we grow it, one crop and box at a time." And then it has pictures of a little veggie flatbread pizza kind of thing, but I don't think it's a pizza, because there's lettuce on it. I don't know what's going on there. 

Michael: Yes, I don't know how to make that.

Aubrey: It's some kind of yogurt-y ice creamy thing, a garbanzo bean, tomato, basil, arugula a little bowl thing that actually looks pretty good. I would eat that. 

Michael: Yeah, that's pretty good. 

Aubrey: And then it shows you all these little smoothie cups where they have extremely artfully arranged bisected produce. So, you get big slices of peach and that kind of thing, so that you're seeing everything, whole almonds, whatever.

Michael: It is also very funny to me that all the smoothie bowls and banana have the peels on the banana. You're obviously not showing me what's going to come to my house, because that will be deranged at peeling these tiny little slivers.

Aubrey: I think at this point, a pretty well-worn tactic, particularly amongst companies that have targeted millennials over time, which is collapsing in this idea that you can buy things that you want and also that somehow contributes to a more just world, which turns your recreational activity, the thing you want to do anyway, buying shit into some kind of social activism is what they seem to be implying with this school of marketing. 

Michael: Right. You are participating in the construction of a better system by buying smoothies that cost $8.49 each. 

Aubrey: Yes. 

Michael: The last detour we're going to make before we get to the outbreak is a very large component of the marketing of this company is about frozen food, is about the fact that frozen food actually has more nutrients in it than fresh food. And so, this is something that Rachel Drori says in almost every interview. She says, "Frozen is what people associate with dinosaur shaped chicken nuggets. But Frozen is actually nutritionally better than what people are buying fresh in the grocery store."

Aubrey: Oh Lord.

Michael: And later in the interview, this is an interview with Fortune. She says, "According to the Environmental Quality and Food Safety Research Unit, blueberries contain 200% more vitamin C when farmed frozen versus fresh after three days." 

Aubrey: Yeah.

Michael: You know that I am fascinated by this distinction between technically true and meaningfully true. 

Aubrey: Yes.

Michael: She says, "Blueberries contain 200% more vitamin C when they're frozen than when you buy them at the store." If you click on the link, first of all that number is wrong. What she means is that they contain twice as much vitamin C, but she said 200%, which actually means three times. 

Aubrey: Yeah.

Michael: I make mistakes like that on the show all the time, right? You're talking fast-, 

Aubrey: Sure.

Michael: -a number gets by, it's not that big of a deal. 

Aubrey: Yeah, so this study does in fact find that after three days, blueberries have twice as much vitamin C as fresh blueberries. Although it is worth noting that this is a study performed on behalf of and paid for by the British Frozen Food Federation [Aubrey laughs] and finds the thing that they wanted it to find. I looked at other studies of this thing between frozen food versus fresh food. Another one I found that blueberries have a tiny bit more vitamin C when they're frozen than when they're fresh. It was like 480 milligrams versus 505 milligrams. So, nowhere close to double. But then the same study did actually find that fresh blueberries at the store, the longer they sit there, the vitamin C does actually go down. So, after I think it was 10 days, and that study, it's down to 300 milligrams versus 505 milligrams in the frozen blueberries.

Aubrey: The thing that I appreciate is, there has been such demonization and dismissal of frozen and canned foods-, 

Michael: Exactly.

Aubrey: -I would say like-

Michael: Totally.

Aubrey: -shelf stable foods, which are cheaper, they're more accessible, you can get them in parts of the country or parts of the world where you couldn't get those foods fresh.

Michael: Yes.

Aubrey: Straightforwardly, that seems good, destigmatize frozen foods. The thing that I don't care for is this weird gamesmanship of like, "Actually, there's more vitamin C or there's blah, blah, blah in this delivery method than in this delivery method," where it's just like, "Just eat your blueberries. It's fine. If you want to have them fresh, having fresh. If you want than frozen, have them frozen."

Michael: This is the thing. Also, blueberries are pretty low in vitamin C.

Aubrey: You want your vitamin C, you go get some strawberries. Come on, man. 

Michael: Yeah, exactly. I thought I was going to say.

Aubrey: Way the fuck more than oranges too. Ooh, strawberries. 

Michael: They're using this as a shorthand for vitamin content, but it depends on the vegetable, it depends on how long it's stored and where you're buying it, and when it's frozen, and all kinds of other things. And also, if you're the kind of person who can afford an $8.49 cent smoothie, the chances that you have a vitamin C deficiency, basically minuscule. This is not really something that you need to worry about if you're eating just a varied diet. 

Aubrey: Yep. 

Michael: So, I just find this to be such a fascinating metaphor for all of the debates that we're having around internet misinformation and fact checking right now, because if you look at the actual claim that she's making, it's false. Frozen blueberries do not have three times more vitamin C than fresh blueberries. But then, if you look at the underlying claim that basically frozen fruits and vegetables have roughly the same or even more nutrients than fresh fruits and vegetables, that's true. But then the under underlying claim that you as an individual need to be worried about the specific nutrient levels in the specific fruits and vegetables that you're eating, that's false. [Aubrey giggles] So, it's the same claim is either false, or true, or false depending on what level you're looking at it.

Aubrey: I was about to make a joke about-- not a lot of scurvy outbreaks happening. And I'm like, "I don't know, man, the way things are going." 

Michael: Yeah.

Aubrey: Like, "Next week, there's going to be scurvy."

Michael: So, to finally get to the events of summer of 2022, the outbreak.

Aubrey: Here we go.

Michael: On April 28th, the company launches the French lentil and leek crumbles. Crumbles are like a product category that I was not previously aware of. The idea is that you sauté them and then you put them on other things. So, you put them on pasta, you put them on tacos, not quite a seasoning, but it's like a little helper for other recipes that need a little bit more protein or just a little bit more oomph taste wise.

Aubrey: Sure, sure, sure.

Michael: The French lentil and leek crumbles have a huge number of ingredients. This is something that makes it very difficult to trace later. So, I'm going to read you this ingredient list. All of these are organic-- I cut out the word organic, because it just said like organic flour, organic salt, organic-- like it would just give me really annoying to read. 

Aubrey: Sure, sure, sure.

Michael: So, just pretend that I'm saying organic before each of these ingredients. The crumbles contain butternut squash, hemp seeds, cauliflower rice, extra virgin olive oil, French lentils, red lentils, tri colored quinoa, cremini mushrooms, Tara flour, leeks, parsley, water cassava root flour, flax seeds, Sacha Inchi powder, chia seeds, porcini powder, Himalayan sea salt, apple cider vinegar, onion powder, nutritional yeast, garlic powder, tomato powder, white pepper, coriander seeds, mustard powder, thyme.

Aubrey: It feels really tricky because on the one hand that is word salad of wellness foods of the last ten years in the US. And on the other hand, I'm also like, "Man, I would eat that."

Michael: I know. It's probably decent. 

Aubrey: That was part of what really caught me off guard about this story was I was like, "Oh, no, it's so rare that one of these stories comes out," and I'm like, "It sounds good though."'

Michael: You're like, "Not my Sacha Inchi powder. [Aubrey laughs] Leave me this." 

Aubrey: Uh-huh. 

Michael: So, for this episode to research this, I was trying to put together the timeline. And so, I scrolled all the way back through the Daily Harvest subreddit. Basically, two and a half years, it's just like the most anodyne stuff. It's like people post a smoothie. They're like, "Lunch today, love it." People ask like, "Oh, hey, are there any recipes or do you add anything to these smoothies to make them better?" Two years ago, the first sign of trouble is a post titled "metal ball found in Daily Harvest food bowl." 

Aubrey: What?

Michael: Somebody says, they found a golf ball sized metal ball in their frozen food.

Aubrey: What are you talking about? Like a gigantic ball bearing? 

Michael: Yeah. And I should say, this is fucking reddit.

Aubrey: Sure, sure, sure.

Michael: We have no idea if any of this is true."

Aubrey: The shrimp tails in Cinnamon Toast Crunch, etcetera, etcetera. 

Michael: Yeah.

Aubrey: Yes.

Michael: And then on June 15th of 2022, we get this fateful post, which I am about to send to you.

Aubrey: Okay. "Extreme stomach pains/sickness from lentil and leek crumbles. Two weeks ago, I tried the crumbles for the first time. That night I had debilitating stomach pain, like nothing I had ever felt before. It was so bad I had to go to the ER as a last-ditch effort to alleviate and manage the pain. After a CT scan, IV, meds, and a week on a bland diet, I thought perhaps it was some sort of bug. Fast forward to yesterday, I decided to try the crumbles again. Lo and behold, I am awake with the exact same horrible stomach pain. Luckily, I have prescription meds from the last time this happened and do not need to go back to the ER. The crumbles were the only common denominator between the last stomachache and this one. I believe this product has caused me debilitating stomach pain that has taken days to go away. Has anyone ever experienced something like this with the crumbles? And new buyers, maybe beware."

Michael: The are crumbles have now been on the market for two months. They came out at the end of April and this is now mid-June. 28,000 bags of the crumbles have been sold. And so, as soon as this post goes up, the post start getting flooded with other people with the same experience. One of them says, "I have the same story as most of you. ER visit with stomach pains and then acute elevated liver enzymes with tons of tests and doctors baffled." Another one says, "FDA is coming to my house tomorrow to pick up my open and unopen bag for testing. I've contacted a local lawyer as my medical bills are over $1,000 so far and I'd like to be reimbursed."

Aubrey: Wow.

Michael: "My lingering symptom is pretty intense fatigue. I've been sleeping 9.5 hours a night and could easily sleep more, if I didn't have to work." Another one says, "My wife and I also got sick. She was supposed to undergo IVF and now missed her cycle and the expensive medications were wasted." Another one says, "Hi, I'm wondering if anyone else has experienced intense headaches after they eat. I ate the crumbles on 6:15, still can't eat normally." Another one, "Has anyone else noticed a metallic taste in their mouth?" And then one says, "Has anyone else started saying, I was daily harvested when telling people why you were sick?" [Aubrey laughs] I feel like saying food poisoning seems to minimize it. 

[laughter] 

Michael: It's amazing that this post and then eventually the subreddit becomes an organizing space for people all over the country to talk about their symptoms. There's very consistent reports of what people are experiencing. It's mostly very intense stomach pain and then just super, duper, duper elevated liver enzymes. The liver is just going into overdrive. So many people are spending days in the hospital just because the doctors have no idea what's actually going on. So, this gets very expensive for people very fast.

Aubrey: It's also really fascinating, because I think foods like this and companies like this market their foods as solutions to symptoms-

Michael: Exactly.

Aubrey: -like these, but usually significantly milder, frankly than these, right? 

Michael: Right. 

Aubrey: Usually, it's like, "Hey, do you feel sluggish? Try our food. You'll have more energy." "Hey, do you feel sad sometimes, if you're having a hard time sleeping, try our food. You'll sleep better," or whatever. So, it's fascinating to have this like, not only go in the opposite direction, but for the pendulum to swing so much further in the opposite direction like pain, like going to the doctor because you have pain.

Michael: Right.

Aubrey: Yeah.

Michael: This is the next thing that I wanted to talk about is that there's now been a bunch of news articles about this, there's been a huge number of further posts on the subreddit of lingering symptoms and what tests should I have. And one of the themes that you see is this profound lack of trust. So, this is an excerpt from the LA Times article. It says, "They were organic, vegan sustainably packaged all these supposedly great things. So, I just trusted that it was healthy," said Alisa Mira, 29, a commercial real estate agent in San Diego, who was hospitalized with excruciating abdominal pain after eating the lentil crumbles twice. Another person, Carol Ready who's also profiled in the LA Times says, "I didn't even suspect Daily Harvest." She says, "It markets itself as really healthy. I trusted them."

Aubrey: Yeah. 

Michael: And so, what emerges from these accounts is this huge disparity between the clean inviting marketing that this company is doing and this just fucking awful to think about symptoms of this food poisoning.

Aubrey: It is about as far away as you could get from the physical experience that people expect when they're eating right "wellness foods," right?

Michael: I think this is going to be the first of a two part series, because-

Aubrey: Oh.

Michael: -the FDA is investigating. And so, we don't actually know what happened. Eventually, the FDA will put out a report. This could be soon, this could be in a couple of months, nobody really knows. And we'll find out behind the scenes, they'll trace what happened, they'll get the ingredients. We'll know eventually. Right now, all we know is, what the company is saying, what is posted on Reddit, and the structural incentives that have led to increasing risks of foodborne illness in our food system. This outbreak represents a really interesting shift in the food system. To get there, we had to talk a bit about the history of food safety. So, Marion Nestle wrote a book called Safe Food: The Politics of Food Safety where I'm getting a lot of this from.

Aubrey: Sure. 

Michael: She says, "Most of the food safety system in America is built up around meat." When you think about your risks for food poisoning, it's mostly undercooked meat or maybe shellfish.

Aubrey: You don't think of a lot of vegan cases of food poisoning. That's for sure.

Michael: Exactly. That's the thing. 

Aubrey: Yeah. 

Michael: Before we had any FDA or any of these laws regulating food safety, it was basically just the complete Wild West. And so, in the late 1800s and early 1900s as you can imagine, foodborne illness was fucking everywhere. The risk was way higher than it is now. And then after we had a bunch of newspaper exposés and eventually The Jungle, the really famous book by Upton Sinclair, we finally got the 1910 Pure Food and Drug Act and Meat Inspection Act. So, they put in place this system in 1910 [chuckles] that is later derogatorily called poke-and-sniff.

Aubrey: What?

Michael: It basically means the USDA puts inspectors in meatpacking facilities, who would just watch what's going on. And essentially, if they see a piece of meat that is super fucking gnarly or a cow that is very obviously tripping balls, they will stop the line and be like, "That's gross." That was the system that they put in place. And compared to the previous system which was literally nothing, this is a massive improvement. 

Aubrey: Yeah, totally.

Michael: It's like, "Oh, there's someone seeing if this is crawling with fucking rats or something, right?

Aubrey: Right. It's a huge leap forward and also, it's not going to catch everything.

Michael: Exactly. Or, really very much at all. 

Aubrey: There's just watching the conveyor belt looking for the Mucinex guy. 

Michael: Yeah. [laughs] 

Aubrey: [laughs] 

Michael: Exactly. There's a huge number of problems that this just is not designed to catch. Throughout the 1950s, 1960s, 1970s, there's all kinds of debates and attempts to modernize the system. Everyone knows that the system needs to be reformed, but they can't come up with a system that's going to reform it effectively. But then what finally breaks through the morass is, I had such a flashback reading about this. Do you remember the 1993 E. coli outbreak at Jack in the Box?

Aubrey: I have heard of this, the one that I remember better and I don't know why. I think maybe it was a little later and I might have been a little older was the Sizzler one. 

Michael: There was a Sizzler one?

Aubrey: Yeah. 1993, Sizzler hit by food poisoning outbreak. But yes, broadly, I totally have heard tell of the Jack in the Box E. coli outbreak.

Michael: I think the reason it's so indelible for me is that four kids died and I think all four were in Washington State. Most of the victims were in Washington State. So, I remember this being like a huge deal. I think we stopped eating fast food for a year, my whole family.

Aubrey: Sure. The Pacific Northwest rolls deep when it comes to cases of food poisoning and also serial killers.

Michael: And serial killers, I know.

Aubrey: Just a plentiful supplies of both, historically.

Michael: Mary Nestle has a good description of the debates after the Jack in the Box E. coli outbreak, because of course, consumers, government, everybody wanted to do something about this. And of course, the meat industry pushback. This is from her book. She says, "Instead of taking safety steps, industry groups employ damage control. They pointed out that E. coli infections were due to undercooking, not to the meat itself and that consumers needed better education about food safety. They said the recent outbreak sheds light on a nationwide problem inconsistent information about proper cooking temperatures for hamburger."

Aubrey: What?

Michael: It's like people went to a fast-food restaurant and then their children died.

Aubrey: And they're straight up like, "People just need to know more, it's because these uninformed people didn't know how to properly cook a burger." That's their explanation?

Michael: Exactly. All of this should have like, consumer information solving problems is basically bullshit wherever it comes up, but this is the most bullshit place to use that argument.

Aubrey: Good Lord.

Michael: But then the only silver lining of this massive scandal in 1983 is that meatpacking, supermarket, and fast-food industries actually really improved their practices. So, this is an excerpt from the excellent food safety blog of Bill Marler, who's the guy who represented the families in the class action suit against Jack in the Box.

Aubrey: Great. "From the 1993 Jack in the Box E. coli outbreak to the mid-2000s, nearly 90% of my law firm revenue came from E. coli cases linked to hamburger. In the 1990s, the CDC focused on E coli like a laser. Consumer lawsuits were frequent and costly. These costs prompted the government and industry to begin testing meat before it shipped and destroying tainted meat before it could be eaten. Industry to its credit devised interventions to prevent contamination. And guess what? How many E coli cases linked to hamburger do I have in my office today? One." 

Michael: Yay. 

Aubrey: Yay. Regulation works.

Michael: I don't want to give the meat industry too much credit. I'm not going to be like, "Wow, thanks meat industry." But there's reputational risk for the meat industry. This was really devastating to Jack in the Box's profits. And then there was regulation, like a whole raft of updated USDA stuff happened as a result of this that basically, dramatically reduced the risk of food poisoning in meats. But at the same time, much of the risk of food poisoning has now shifted to vegetables and other types of foods. So, in 1984, there's a huge salmonella outbreak in ice cream. In 1999, there's a county fair in upstate New York where 921 people get infected with E. coli, because the water that they were using for all of the drinks and ice cubes and stuff at this county fair was infected with E. Coli. It came from a well that was infected with E. Coli. 

Aubrey: Whoa.

Michael: There was a huge outbreak in 2006. Remember the E. coli outbreak in spinach?

Aubrey: Yes, abso-fucking-lutely I remember that. 

Michael: Hugh deal. 

Aubrey: I was on a real spinach tear at the time.

Michael: Apparently, California farmers still refer to it as 9/14, because it happened on September 14th and it completely transformed the industry. It's a huge deal. There's another outbreak in 2006 at Taco Bell and something called Taco John that's traced back to lettuce. 

Aubrey: Wow.

Michael: There's the 2009 outbreak in peanut butter that killed nine people. 

Aubrey: Boy, oh boy. 

Michael: The worst one is there's a listeria outbreak in 2011 in cantaloupes that killed 33 people.

Aubrey: Jesus Christ.

Michael: There's outbreaks of E. coli from cake batter, from flour, from cheese. There's just a much wider range of places that you can get foodborne pathogens now than there used to be. And another super fucked up thing is that the strains of pathogens are much more virulent than they used to be. We've all become junior epidemiologists in the last two years and we have these variants of COVID. 

Aubrey: Yeah, as witnessed by all of us suddenly know how to say the word "Omicron."

Michael: And they skipped new, because it would have been annoying. I love it. 

Aubrey: Yeah. 

Michael: When we say the E. coli outbreak, what we're actually talking about is a variant of E. coli, the 0157h7 variant, which did not exist before the 1980s. 

Aubrey: Oh.

Michael: It's evolved to be able to withstand higher temperatures and it can also withstand more acidic conditions. So, there's now strains of listeria that are scarier, there are strains of salmonella that are scarier. It's just like, everything is getting worse. 

Aubrey: Yeah, I will say I have a friend who is a physician assistant who is very into virology. That's her whole thing. She loves talking about viruses. And her favorite virus is herpes, because she's like, "Look, man, herpes is basically living the dream. They're doing what every virus is built to do, which is keep your host alive for forever and therefore keep yourself alive for forever." 

Michael: Yeah.

Aubrey: When she and I have talked about the viruses that I think are scariest to most of us like, "COVID, HIV, whatever." She's like, "Oh, man, they're just bumbling around. They don't know what they're doing." 

Michael: Yeah.

Aubrey: It's very funny to me to think about that. 

Michael: Yeah. 

Aubrey: This is what you're talking about in her terms would be like, "The E. coli is getting more sophisticated, they're becoming more resistant to treatment, they're figuring out ways to survive longer." That's fascinating.

Michael: The reason for all of this dovetails with the rise of the meal kit companies.

Aubrey: Hmm. 

Michael: What they found in a lot of these outbreaks over the last 20 years is a lot of them begin with prepared vegetables. In the early 2000s, as Americans, like we just said, want more convenient food. We want our fruit to be cut up, we want to get vegetable platters, prepared foods, people are eating out more.

Aubrey: Yep.

Michael: It's increased our reliance on preprepared foods, and cutting vegetables and fruits often exposes their flesh to the elements. You cut off the peel, one of the purposes of which is to protect it from infections. You know there's trays at the grocery store like cut up melons.

Aubrey: Sure, or prechopped onion.

Michael: Right. And especially those like bags of salad that you get that'll be like this Caesar mix. I'll have three kinds of lettuce and maybe a couple of croutons like some sliced up, like radishes in there, something like that. Things are being cut up, and remixed, and then put into these prepackaged servings. At the same time, the industry has also been concentrating. So, the places where this kind of processing is taking place are oftentimes these extremely large processing facilities. Sometimes, you have animals and agricultural products being processed on the same lots. 

The 2006 spinach E. coli outbreak was traced to one field that had been a cow grazing area, but was transitioning to growing crops. There was just a little bit of cow poo leftover and that was enough. You have this increasing intersection between animals and agriculture. And then you also just have a scale that would have been totally unimaginable 50 years ago. So, the example I keep thinking of is, if you have water that is infected with salmonella-,

Aubrey: Sure.

Michael: -one of these processing plants washes a hundred apples with salmonella infested water. And now, you've got apples that have salmonella on them. 50 years ago, you would have sent these a hundred apples to a grocery store or maybe to a restaurant. People would have started getting sick, you could trace the outbreak back to one store, and eventually to one farm and you could figure out what was going on. Whereas now, if you think about the same hundred apples, they get sent to some processing facility and they get sliced up. And three slices of each apple end up in a bag of salad that ends up going to 500 grocery stores in 25 states. 

Aubrey: Yeah.

Michael: Now, you've got thousand bags of potentially infected salads in all these different states, where if people get sick and they report their symptoms, which is pretty rare to begin with, but if you're reporting them, those go to state agencies. So, you wouldn't necessarily know that the outbreak in Utah and the outbreak in Oregon are actually related to each other and it's the same fucking apples. 

Aubrey: Yeah.

Michael: One of the interesting things about the Daily Harvest outbreak was the way that Reddit and other forms of social media became places for other people to realize that they had the same thing that other people had.

Aubrey: Right. In the absence of an interagency task force or something, this becomes the way that information flows and the way that stuff gets surfaced, which feels [sighs] real ass backwards.

Michael: Right. And then, of course, also a lot of these processing facilities have miserable working conditions. 

Aubrey: Yeah. 

Michael: Also in the 2006 Spinach outbreak, that was the week that the processing facility had the most orders, so the workers were just super busy. A lot of the workers at these facilities are undocumented immigrants. Meaning, they might not feel comfortable speaking up about a safety issue.

Aubrey: Yeah, they're under such great pressure to produce a certain amount on a certain timeline. It's all those stories about Amazon warehouses, and how many seconds they have to deliver an order and blah, blah, blah. It's all of that getting so focused on optimizing that productivity that you don't give people fucking breaks to go to the bathroom and you don't give people time to do their job actually well.

Michael: That shift is something that long predates the meal kit companies, that's just fresh cut, preprepared produce, but the meal kit companies are a particular problem. So, I'm going to send you an excerpt from a very good LA Times article. 

Aubrey: Mm.

Michael: Oh, wait, skip-- shit. Skip the first line, because that was my notes. 

Aubrey: [laughs] 

Michael: Oh, that was just my little reminder.

Aubrey: Wait, can I read it into the microphone, because it is very funny?

Michael: Okay, fine. 

Aubrey: The first bullet boy just says, "It's the Wild West-"

Michael: Yeah. 

Aubrey: [laughs] -which now makes me very excited in a different way for whatever this quote is going to be.

Michael: That's how I do my notes. Yeah.

Aubrey: Delightful. Okay. "Of the hundreds of companies that ship ready to heat meals or recipe kits to US consumers, very few are required to register with the FDA. The firms are also not required to follow a slew of FDA safety requirements that aim to limit the spread of foodborne illness, ensure sanitary conditions during shipping, and improve supply chain transparency. There's little consistency in how the firms are inspected and regulated at the state and local level experts say. They warned that rapid changes in the meal delivery industry combined with the slow pace of federal regulation and the inherent uncertainty of mailing perishable food have in effect made it impossible for US health officials to understand the scope of foodborne illnesses among meal delivery customers." [blows raspberry]

Michael: The meal kit companies fall into this weird nether region between large scale food processors, which can be inspected by federal agencies, and restaurants, which are inspected by local agencies.

Aubrey: So, we're basically having a jurisdiction face off, because this industry is so new.

Michael: Right. And also, these meal kits are being shipped with these refrigerator packs. They're in these astronaut bags that keep the food cold. But there's been numerous studies now that have checked the food. After it sits on your doorstep for eight hours and some of them have found listeria, some of them have found E. coli, a lot of them have found that it doesn't stay that cold for that long. 

Aubrey: Oh, man. 

Michael: A lot of people, again, think that your risk is eating out and they think it's about meat. But actually your risk at this point, it's literally fucking everything, right? 

Aubrey: Yeah. 

Michael: Also, I don't want to go overboard. I don't think the meal kit companies are uniquely dangerous, but it's just basically that the risk is everywhere. 

Aubrey: Yeah. 

Michael: There's not actually that much you can do to protect yourself from the risk. Would you ever think that you could die of listeria from eating fucking cantaloupes? 

Aubrey: Yeah, good Lord. 

Michael: To me, it's like, "I don't think you should never sign up for a meal kit company or whatever." That's not the goal here. The goal is to say that this is a very obvious place for decent regulation by the government. This is the such the job for the government. This is not my fucking job.

Aubrey: Well, and the problem is upstream, so the solution needs to be upstream, right?

Michael: Exactly. Yeah.

Aubrey: There's not anything you could reasonably do on the consumer end aside from wash your food.

Michael: Yeah, wash your food, cook your food. If you're listening to the show, you already know that.

Aubrey: Yeah, totally. 

Michael: This is not something that individuals can solve. I don't want to make people paranoid. I was reading all this stuff and I was like, "I'm never going to eat again." [chuckles] 

Aubrey: Yeah, totally.

Michael: But also like, I don't want to ruin food for people or ruin fresh cut convenience vegetables for people, because obviously, sometimes you don't want to cut mushrooms for 20 minutes and you want to buy the precut mushrooms. I'm going to continue doing that. It's fine. 

Aubrey: Yeah, absolutely. This isn't a like, "Hey, get a different brand of apple cider vinegar" moment. 

Michael: Yeah.

Aubrey: This is a like, "Oh, uh-oh, the whole system needs an overhaul to figure out how to deal with this thing."

Michael: It's like a write your senator issue. [chuckles] 

Aubrey: Yeah. 

Michael: It's not like, "Sign up for this meal kit and not this one." 

Aubrey: Totally.

Michael: Okay. So, we are going to return to the Daily Harvest story-, 

Aubrey: Ooh.

Michael: [crosstalk] -a TikTok-- Have you ever watched a TikTok together before?

Aubrey: We've never watched a TikTok together and now that we keep talking about like, "We're going to return to Daily Harvest," I'm like, "Man, now I want a bowl of soup."

Michael: I know.

Aubrey: The smoothie, I want to eat a smoothie right now. That sounds all right to me.

Michael: This is the thing that basically brought the Daily Harvest outbreak to everyone's attention, because earlier it had been bouncing around on Reddit, but unless you're in that subreddit, you're not really paying attention. So, this is the thing that made the outbreak blow up.

[video starts]

Abby: I'm literally shaking right now. Please just stay and listen to this, because it's really, really important. About a month ago, I received a PR package from Daily Harvest. So, I ate the French bundle leek crumbles and you're going to understand in a minute why there's this fucking weird packaging thrown away in my trash. The following day, I started having extreme stomach and gastro pain and went to the hospital, the ER in the middle of the night. When I was in the ER, they couldn't figure out what was wrong with me. I had an elevated liver levels and then there was some bacteria in my ear and they thought I had a UTI, gave me antibiotics for five days, I went home. The five days of antibiotics go by and then immediately I started getting these pain again, but it was even worse and I had 101.8 fever. 

I went to the ER a second time. They literally tested me for everything hepatitis, mono, gallstone. I had to stay overnight in the ER and I literally had a CAT scan, a ultrasound, a vaginal ultrasound, and so much bloodwork done. They literally couldn't figure it out, but I still had extremely elevated liver level. For the last month, I still haven't drank, I'm seeing a liver specialist this week, because we need to make sure that everything's okay. Before I went to the hospital, the first time I've taken a photo of the food packaging, because that was the only thing that I had done different in my routine. 

Fast forward, I just got this email from their PR, but there is now an investigation going on into this product. And this was the one I ate. And just wait, I just started googling the product to see if anybody else was talking about this. People have the same exact symptoms as when I was having, elevated liver levels with no explanation. This person below, "Bloodwork, a CT scan, and ultrasound and still elevated liver levels, it's so fucked up." 

[video ends]

Aubrey: Dang.

Michael: Right?

Aubrey: The fact that this person got their lentil leek crumbles in PR?

Michael: In PR. I know. 

Aubrey: Argh.

Michael: So, this is a woman named Abby Silverman. I was not familiar with her before all this, but apparently, she's a lifestyle influencer. And according to this LA Times article, she's not political or doing call out posts. And so, the fact that she was talking about this extremely serious issue and calling the company out and warning other people, I guess it just hit like a bomb. And by now there are 4,000 comments on this. A huge number of people are like, "Oh, my God, I got this too." And this ends up sending a bunch more people to the Reddit. 

Aubrey: Yeah, I'm just looking at Abby's main TikTok feed and the TikToks that are up most recently are things like "Get Ready With Me For My Job at Cosmo," and "bombshell hair tutorial."

Michael: So, what really stuck out to me about this TikTok is that she references an email that she got from Daily Harvest. 

Aubrey: Huh.

Michael: So, it turns out that within days of the first subreddit post about this going up, Daily Harvest did actually send out an email. I'm going to send you the text. 

Aubrey: Oh.

Michael: This is what Daily Harvest sent people on June 17th of this year.

Aubrey: "At Daily Harvest, we are committed to our customers and we take quality and safety seriously. A small number of customers have reported gastrointestinal discomfort after consuming our French lentil and leek crumbles. As included in our cooking instructions, lentils must be thoroughly cooked to an internal temperature of 165 degrees Fahrenheit. Like some other legumes, raw lentils contain a type of protein that can cause gastrointestinal symptoms, unless thoroughly cooked. 

While cooking lentils thoroughly is always recommended, out of an abundance of caution, please dispose of any French lentil and leek crumbles you have received and do not eat them. You are a valued customer and we deeply appreciate your trust in us. It is one of our core values to go above and beyond for our customers, which goes hand in hand with our culture of continuous improvement. For the trouble, we have placed a $10 credit in your account for every bag of French lentil and leek crumbles in your last box. Thank you for being a loyal customer."

Michael: This was not marked with urgent? This was not sent out with, "Alert: Health Warning."

Aubrey: As someone who has been in part of these meal baskets and whatever, I've done these before, part of joining one of these programs is that you get seven million emails from the company. about all manner of fucking things. So, of course, the default is to notch it out.

Michael: What's amazing to me is reading between the lines of this email, it sounds like a couple people were dumb and didn't cook their lentils all the way through. 

Aubrey: Yes. 

Michael: And the company is patting itself on the back and going up, "Oh, you know, some doofuses didn't know. You're supposed to cook the food. But anyway, just in case, if you have this product, probably don't eat it." I feel I would probably keep eating a product if I got an email like this. 

Aubrey: Yeah.

Michael: A couple of people got a tummy ache, because they didn't cook it enough. One of the people quoted in the LA Times article says, "I have been hit by a car and this was worse." 

Aubrey: Whoa.

Michael: What people are reporting is not gastrointestinal discomfort. "Oh, my tummy hurts." That's not what we're talking about. People are getting their gallbladder taken out, people are in the fucking ER. 

Aubrey: Yeah.

Michael: There is no way anybody would have considered this remotely serious and you got this email, if you saw it at all.

Aubrey: Right. It's a very classic control the narrative move, right?

Michael: Yeah.

Aubrey: Respond to it in a very small way on your own terms and then you can point to it and be like "We responded." 

Michael: "We responded. We talked about it. We said this." And then this is the most obnoxious thing. The couple of days after this, after Abby's TikTok, other people start posting on TikTok. This starts going viral all over the place. So, every single thing that Daily Harvest posts on Instagram just gets flooded with comments like, "Why haven't you responded to this?" People are pissed. And so, finally, this is five days after this initial email, the company posts again that like, "We hear you, notes up," sort of that thing. I'm not going to read the whole thing. One of the slides says, "Here are the steps we're taking. As soon as we received report suggesting a possible link between the French lentil and leek crumbles and an adverse reaction, we immediately took action and launched a voluntary recall."

Aubrey: But that's not what you did. 

Michael: Yeah, exactly. It doesn't use the word recall and there's no way you would get from that email like, "Oh, shit, they're recalling a product." You remembered in 2006 was like, "Don't eat spinach."

Aubrey: Yes. 

Michael: In subsequent communications, they keep referring to this as a recall. And technically, it's a recall, because they're like, "Throw away the product if you have it," But it's like, it literally says out of an abundance of caution. 

Aubrey: Yeah. 

Michael: Before they tell you to dispose of it, meaning, you probably don't really have to do it. This is how words work.

Aubrey: How much do we know about this cooking lentils thing? Is that the likely cause? It seems there wouldn't be like a whole fucking FDA investigation if it was a known thing, right? 

Michael: Well, this is what the company then start saying, so that the framing shifts. So, on June 22nd, they put out this subsequent post being like, "We've already recalled them, but we're investigating all the causes." On June 23rd, they put out a much more formal recall announcement like in partnership with the FDA. The line from Daily Harvest then becomes, "We're looking into it, we're checking out--" Again, this thing has 50 fucking ingredients. But because they send up so many emails, because this was never given the seriousness, the last, the most recent illness report received by the FDA is in September. So, their "voluntary recall" is in June, but people are still getting sick from this in September. 

Aubrey: Oh, man. 

Michael: At the same time that all of this social media firestorm is going on, the company is getting all this criticism. Have you heard of a company called Revive? It's like another meal kit company.

Aubrey: Not that I can recall.

Michael: Is that a voluntary recall, Aubrey?

Aubrey: [laughs] 

Michael: No, I'm sorry. So, that company also has a subreddit. And over the same summer, there is a post on their subreddit called Revive Superfoods smoothies liver issues, sickness, extreme stomach pain. This didn't get as much attention as the Daily Harvest thing, but these Revive mango and pineapple smoothies has also created a community of people with the same symptoms. And so people who get into this and get googling around, start to put two and two together that Revive and Daily Harvest seem to have people with the same symptoms. They look through the ingredients and the only ingredient that they share is from a plant called Tara.

Aubrey: Hmm. So, not taro or not taro root.

Michael: not taro. This is Tara like Reid. 

Aubrey: [laughs] 

Michael: The Revive smoothie has something called Tara protein in it and the Daily Harvest crumbles have something called Tara flour in them. So, there is a plant called Terra, which is an eight-foot-tall tree that only grows in the Andes above 9,000 feet of elevation and it has large pea pods and apparently, if you take the peas and grind them up, you can make various food additives, and it's also used as tanning in leather. Tara gum is something that's used is like a stabilizer and thickener, like soups and stuff. And Tara protein is like a powder that they add to various smoothies and foods to-- It just another way of adding protein, basically. It doesn't really have a taste. And then Tara flour appears to be totally new and the only products that people can find with Tara flour appears to be the French lentil and leek crumbles from Daily Harvest.

Aubrey: So, totally new to food regulators in the US, yeah?

Michael: Exactly. 

Aubrey: Gotcha, gotcha, gotcha. 

Michael: So, speaking of which, this is an excerpt from a Consumer Reports article that comes out after the Daily Harvest outbreak.

Aubrey: "Outside experts that Consumer Reports consulted were unable to locate Tara flour listed as a food additive at the FDA." "I can find no evidence that FDA ever reviewed Tara flour for safety," says Tom Keltner, Senior Director for Safer Chemicals at the nonprofit Environmental Defense Fund. "We ask the FDA whether Tara flour is an approved ingredient for use in food or whether it's listed as a GRASs ingredient and whether it has undergone any FDA safety testing. After multiple requests, the FDA would not directly answer those questions."

Michael: Ooh.

Aubrey: Christ on a cracker.

Michael: Not great. 

Aubrey: That's bad, dude.

Michael: I don't think we've talked about GRASs on the show yet, have we?

Aubrey: This is my first time that I remember seeing it in a quote for the show. 

Michael: Okay.

Aubrey: Yeah. 

Michael: So, this excerpt says, "We ask the FDA whether Tara flour is an approved ingredient or whether it's listed as GRASs. So, that means generally regarded as safe. 

Aubrey: Huh.

Michael: This can comes out of an attempt by the FDA in the 1950s to deal with a bunch of scandals around food additives. It became clear at the time just like it had been with meatpacking that there wasn't really any regulatory system to check food additives before companies start putting them in food. All these dyes, various spices, ingredients from other countries, all kinds of stuff was in the US food supply that no one had really checked and companies were adding new stuff all the time and there was no process.

Aubrey: Man, when you're talking about this and you're like, "It was the 1950s and they were trying to figure out what they could consider to be generally regarded as safe." The first place my brain went is like, "Man, that's how we got Dragées."

Michael: It is. It's also how we got those snap on wrist bracelets that killed so many in the 1980s.

Aubrey: [laughs] Tricky business. Anyway, I was just like, "Man, that's how we got tiny metal balls on cakes. Sure, man, safe enough. Why not?" 

Michael: [laughs] So, throughout the 1950s under huge public pressure, the FDA started working with food companies to come up with some a system, because the food companies were afraid that they were going to come up with a requirement to prove that every single thing that they had already been putting in their food was safe. It's like, "Okay, your product has pomegranate seeds in it. Prove to us that pomegranate seeds are safe. Prove that apples are safe." And the companies were like, "You got to be kidding me. We can't start over and build the entire US food system from scratch." 

The FDA basically sets up two tracks for companies to go down. The first of course is FDA approval and it's like, "There's a 90-day comment period. And there's this thing and you have to submit these documents." It's a whole long, very difficult process. Separately, there's a process that doesn't require FDA approval, where you can say, "No, no, we don't need to get approved, because this ingredient is generally regarded as safe." The idea is that it's something like, "Apple slices." Basically, give me a fucking break, we're not going to go through a whole FDA process for something that everybody knows is safe."

Aubrey: Yeah. 

Michael: But, of course, what they've basically constructed is one extremely difficult process and one extremely easy process. 

Aubrey: Yeah.

Michael: Over the course of the subsequent 70 years, companies have increasingly used generally regarded as safe to self-approve new food additives. Every fucking time, I have looked this up, because this has come up in various other episodes. Every time I look this up, I think I'm misreading something. I'm like, "It can't really work like this, can it?"

Aubrey: Yeah.

Michael: So, there's a million studies on this. One of the studies I read says, "Many food companies self-determine their products as GRASs without voluntary notification to FDA leading some to call the process secret GRASs." [laughs] 

Aubrey: Oh, my God, they just get to decide, they just go, "Mars is safe."

Michael: Yes. In 2011, there's an analysis of around 4,200 food additives. They go through one by one and test how they got into the US food supply. 14% of them were approved by the FDA. They went through this onerous FDA approval process. 63% were determined as safe by an industry panel of the flavor and Extract Manufacturers Association, unbiased opinion. And 23% were estimated to result from a secret GRASs self-determination by food manufacturers.

Aubrey: Come on. 

Michael: One of the real problems with this is that because companies are basically able to do this themselves and they don't have to register all these food additives with the FDA is when there's an outbreak linked to a particular ingredient, the FDA can't say which products it's in. If there's a product with Tara flour, it would be nice if the FDA could just say, "Oh, okay, there's actually 13 other companies that are using this in 25 other products. Let's go look at them and see if they're getting any adverse illness reports."

Aubrey: Sure.

Michael: But because these things aren't even registered with the FDA, it is like we can't even say where else this is in the US food supply. So, we don't know exactly what happened with Tara flour. Again, we're going on very incomplete information, because the FDA hasn't completed its investigation yet. But a Fortune article says, "Tara flour does not show up in the FDA is GRAS database, but a source close to Daily Harvest told Fortune that their supplier had confirmed the flour's use was GRAS's indicating that the supplier made a self-declaration."

Aubrey: This is a legitimately complex problem of like how do you regulate new ingredients and additives and whatever as they come onto the market without bringing everything to a grinding halt. But the answer can't be like, "The company is selling it get to design."

Michael: They mentioned in this study that no other country does it this way. 

Aubrey: Yeah. 

Michael: But then another really weird thing about this is that all of this might actually be fucking moot. 

Aubrey: Oh.

Michael: The only evidence that it all goes back to this Tara flour stuff is what the company says. If I have learned anything from working on private sector human rights violations for my entire NGO career, you should never trust what companies say in situations like this.

Aubrey: Genuinely.

Michael: I'm not saying they're lying. I have no evidence of any other scenario. I'm not saying the Tara flour thing isn't it. Maybe it'll be in the FDA report., we'll find out that is the source of all of this. But the information we have is coming from the company.

Aubrey: Mike, the way that you have set this up is like the food safety version of an Agatha Christie book. 

Michael: I know.

Aubrey: They all stabbed them. They all did it together. 

Michael: Yeah. [laughs] 

Aubrey: It was Tara flour and Tara gum. They were in cahoots.

Michael: Well, another conundrum of this is that they sold 28,000 copies of the crumbles. We have roughly 500 people who have reported symptoms to the company. So, that's obviously under reporting. But if 28,000 people bought it, it seems not everybody has gotten sick from this, right?

Aubrey: Yeah. 

Michael: So, Marion Nestle has a blog post about this specific case, where she lays out four scenarios for what actually happened here. The first is some toxic ingredient accidentally or deliberately got into the Tara flour. Toxic tannins from other parts of the Tara plant got into the endosperm flour. Some people have unusual sensitivities to Tara proteins or digestive products of Tara proteins, similar to what happens when people with celiac disease eat gluten. 

Aubrey: Sure.

Michael: Or, some people have inborn errors of metabolism that cause acute reactions to Tara proteins. So, basically, either there's something about all Tara flour that people are reacting to, but we're getting underreporting of cases, or something went wrong with one of the batches of Tara flour, whatever was in these crumbles, or some people might have allergy to something in these Tara plants like they just don't know about. All of us can be allergic to all kinds of things that we're just not exposed to. Or, of course, the company is fucking wrong and it's something completely different and we'll find out when the FDA report comes out. 

Aubrey: What do you think? Let's treat it like an Agatha Christie novel? [laughs] 

Michael: I know. Yeah.

Aubrey: Who do you think who done it? Butler?

Michael: Well, the thing is, one of the things that I think is totally under addressed in most of the discourse around meal kit companies is they're all outsourcing a lot of their production. I am not remotely mounting a defense of Daily Harvest in this episode. But there is not as of now evidence that Daily Harvest did anything worse than other meal kit companies. Maybe we'll have that in the FDA report, but right now, it seems they're using suppliers that a lot of other meal kit companies are using. When we have a regulatory system like this and when we have this extreme widening of foodborne pathogen risk to, basically, the entire food supply, it was going to be somebody. It was going to be one of the meal kit companies eventually.

Aubrey: So, you think essentially like Daily Harvest drew the short straw and came up first, potentially?

Michael: I'm going to wait until the FDA report comes out. 

Aubrey: Sure.

Michael: But it is plausible that this company did what everybody else was doing. 

Aubrey: Gotcha. 

Michael: It's also plausible that they did something uniquely negligent. We don't have any behind the scenes, emails from them. We don't know what they knew when, et cetera. You would have to look at were Daily Harvest processes different than other companies doing the same thing. Right now, we don't know that the processes were any different. We know that their reaction was bad, but right now, we don't know that this is the exclusive fault of Daily Harvest. 

Aubrey: Yeah.

Michael: But do you want to know the super grim epilogue to this? 

Aubrey: Oh, no. What is it?

Michael: For months now, people have been trying to put together a class action lawsuit for this. People have medical bills, people have pain and suffering, people have been really, really materially harmed by this. And so, eventually, they collect all of their claims under Bill Marler, the guy who represented the Jack in the Box victims. This is an excerpt from the Fortune article that was a roundup of this entire story. This is about the woman, Carol Ready, who was one of the victims of the leeks. 

Aubrey: Gotcha. 

Michael: It says, "Marler voluntarily dismissed the case last week after Daily Harvest filed to move the suit to arbitration. The company argued that when Ready signed up for its products, she agreed to its terms of service, including waiving her right to go to court and have a trial in front of a judge or jury." 

Aubrey: Ugh.

Michael: So, if you fill out the terms of service, which we all fucking do constantly throughout the day, you're just like, "You know, whatever. I agree." 

Aubrey: Oh, my God.

Michael: You're waiving your ability to file a class action lawsuit. 

Aubrey: Ugh.

Michael: It's bad. So, this is now in arbitration who knows what's going to happen. Bill Marler is still pursuing a case, but the case is on behalf of children who ate the leeks who obviously can't consent to these terms and conditions and people who got them in PR packs.

Aubrey: Boy, oh, boy, oh, fucking boy. 

Michael: These are like the avenues that are available if this happens to you. Again, because there's not good regulation about this, it seems really fucked up to me that you can just sign away your rights.

Aubrey: I, for sure thought this was going to be like Agatha Christie novel and what it's turning out to be is a fucking, especially bleak episode of Black Mirror. 

Michael: Yeah, I know.  [laughs] 

Aubrey: Argh. 

Michael: Eventually, we will find out what happened, we will keep you updated, but right now, this is what we have based on publicly available information. We're not going to tell you any individual changes. Again, this is not what we want to do with the show at all. And so, if you'd like your meal kit, keep your meal kit, but we need to have a better system of regulating companies that are selling you stuff that you put in your body.

Aubrey: Here's what I'll say. We're not going to tell you to change meal kit companies or to stop using your meal kit. We are going to tell you to peel bananas before you toss them into the blender. 

Michael: [laughs]

[Transcript provided by SpeechDocs Podcast Transcription]