Another ice cream company has recalled all of its products over listeria.
Jeni's Splendid Ice Creams recalled all of its ice creams, frozen yogurts and other products today after a random sample tested positive for listeria as part of a Nebraska Department of Agriculture inspection. The news comes three days after Blue Bell Ice Cream issued an expansion of its recall to include all its products.
Three people who consumed Blue Bell Ice Cream died, and seven more were hospitalized in four states, according to the Centers for Disease Control and Prevention.
"If you test for it, you will find it," food safety lawyer Bill Marler said. "I think that's what you're seeing. People assume that pasteurized milk products -- which ice cream is -- don't have to worry about pathogens.
“I think the situation is we've got companies not paying attention to basic microbiology as it relates to listeria in these plants."
Listeria is a bacterium that can cause an illness called listeriosis when consumed by humans. It sickens about 1,600 people each year and kills about 260 people, according to the CDC.
Marler is representing the family of Shirlee Frey, who died in December of listeria found in tainted caramel apples, according to the wrongful death lawsuit he filed on their behalf. Although he said he has been contacted by the family of a Blue Bell listeria victim and several suspected Blue Bell listeria cases, he said it is unclear whether he will pursue legal action with any of them.
"I think all these [ice cream] companies are going to have to start thinking about it," he said of better testing.
Jeni's Splendid, which is based in Columbus, Ohio, was not immediately available for comment, but stressed in its recall announcement that the action was voluntary and no one had become ill.
"Our top priority is guaranteeing the safety of all consumers by taking every possible precaution," Jeni's CEO John Lowe said.
Sandra Eskin, a food safety expert at the Pew Charitable Trusts, said the Food and Drug Administration has a "zero tolerance" policy for listeria, but companies are not required to test for it.
"If there's no requirement to test, I'm not quite sure how you figure out whether you have listeria or not," she said, adding that many companies probably do test for it, and local inspections vary by state. In Nebraska, it's routine, state Department of Agriculture spokeswoman Christin Kamm told ABC News.
It is unclear where the Nebraska Department of Agriculture requested the sample because the company does not appear to have any shops or plants in the state.
When the 2011 Food Safety Modernization Act is implemented later this year, it will require more frequent plant inspections and give the FDA authority to be proactive rather than reactive when it comes to food safety, Eskin of Pew Charitable Trusts said. Right now, plants are only inspected once every 10 years and the FDA mostly takes action when someone has gotten sick after eating a tainted product, she said.
"At this time, the FDA does not believe that the finding of Listeria in one sample of Jeni’s Splendid Ice Creams is related to the outbreak and recall associated with Blue Bell Ice Cream," the FDA said in a statement today. "We are continuing to investigate both situations and will provide updated information to consumers as we learn more."