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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

“Thank you for suing us” – Taco Bell takes on the Trial Lawyers

I had a nice chat Friday with Gergana Koleva for her article “Taco Bell Has a Beef with Lawyers, Runs Nationwide Ads to Fight Back,” for AOL. Here were my thoughts:

taco-bell.gifBill Marler, a foodborne illness and product liability attorney who has represented clients in at least three previous food-related lawsuits against Taco Bell, said the company has made a clever move by counterattacking its accusers.

“Taco Bell has done an effective job of taking on the lawyers, [regardless] of whether or not they were selling the definition of the meat,” Marler told Consumer Ally. “Lawyers are such an easy target to take on.”

However, Marler noted, the legal roots of the controversy lie just as much with Taco Bell. “It’s inconceivable to me that a company as sophisticated as Yum! Brands didn’t vet with their lawyers the words that they use to advertise their food,” he said of the claims that landed the company in trouble, namely that it uses “ground beef” or “seasoned ground beef” in its products.

The class action suit alleges the company only uses about 35% real beef, with the remaining 65% made up of various fillers, binders, and extenders. Such percentages do not meet USDA’s minimum requirements for the food mixture to be labeled and advertised as “beef,” according to the suit.

“Just because the food is cheap doesn’t mean they should be able to tell you that it’s something it is not,” Marler said. “But my strong suspicion is that their aggressive behavior in the ads is likely justified.”

  • Gabrielle Meunier

    Where’s the Beef? If it’s not in there (or not much) don’t label it as such! I, for one, always thought I was eating ground beef in their Taco’s. This sheds a new light! Consumers need to know this. Thank goodness for labeling laws.

  • Carl Custer

    Ah, found the “Seasoned . . . Beef” in the Labeling Policy Book. (A must read to discover what yuk you may be eating)
    Looks like Seasoned ground beef needs to be modified with “patty” or “cooked”
    COOKED RED MEAT PRODUCTS CONTAINING ADDED SUBSTANCES:
    “Uncured red meat products that weigh more than the weight of the fresh article after cooking should be labeled with a qualifying statement indicating the amount of solution remaining after cooking, e.g., —After cooking, contains X percent of a seasoning solution of . . . .“
    “If cooked, uncured red meat products that contain added solutions/substances prior to cooking are cooked back to or below the weight of the fresh (green weight) article, words, such as —seasoned“ and —flavored,“ are to be used to reflect the addition of the added substances, e.g., —Seasoned Cooked Beef.“
    “Seasoned Ground Beef Patty” is acceptable:
    Sec. 319.15 Miscellaneous beef products.
    (c) Beef patties. “Beef Patties” shall consist of chopped fresh and/or frozen beef with or without the addition of beef fat as such and/or seasonings. Binders or extenders, Mechanically Separated (Species) used in accordance with Sec. 319.6, and/or partially defatted beef fatty tissue may be used without added water or with added water only in amounts such that the product characteristics are essentially that of a meat pattie (sic).

  • Minkpuppy

    To my knowledge, Taco Bell’s taco meat is cooked at the processing facility that prepares the meat for the restaraunts. This would account for the discrepancies in the the amounts being described in the lawsuit.
    FSIS inspectors determine compliance with this regulation by determining the percentages of “green weight” or the amount of raw product put into the formulation, minus the weight of finished product to determine % shrinkage due to cooking. The percentage of seasoning solutions must not exceed the statement on the label and it has to be labeled in the manner that Mr. Custer describes. I’ll just about bet the bulk packages that are sent to the restaraunt are labelled properly and accordingly but since I don’t inspect this product personally, I can’t vouch for that myself. There are certain steps we have to follow to determine compliance and some inspectors are better at it than others.
    IMO, these lawyers are barking up the wrong tree due to a lack of knowledge about how compliance with labeling requirements is determined.

  • The labeling of the Taco Meat Filling under USDA FSIS terminology incorporates the word FRESH
    TACO FILLING: USDA FSIS Labeling policy book
    Product must contain at least 40 percent fresh meat. The label must show true product name, e.g., -Taco Filling with Meat,” -Beef Taco Filling,” or -Taco Meat Filling.”
    See: Policy Memo 027 dated June 15, 1981
    FRESH,” “NOT FROZEN” AND SIMILAR TERMS WHEN LABELING MEAT AND POULTRY PRODUCTS:
    The word -fresh” may not be used to describe:
    1. Any cured product, e.g., corned beef, smoked cured turkey, or prosciutto.
    2. Any canned, hermetically sealed shelf stable, dried, or chemically preserved product.
    3. Any raw poultry, poultry part, or any edible portion thereof whose internal temperature has ever been below 26 degrees Fahrenheit.
    4. Any injected, basted, marinated poultry, poultry part or any edible portion thereof whose internal temperature has ever been below 26 degrees Fahrenheit.
    5. Any other finished processed poultry product (including cooked poultry products) where its temperature has ever been below 26 degrees Fahrenheit, e.g., turkey sausage, chicken meatballs, cooked breaded chicken nuggets, etc.
    6. Any uncured red meat product permitted to be treated with a substance that delays discoloration, such as, ascorbic acid, erythorbic acid, or citric acid.
    7. Any product treated with an antimicrobial substance or irradiated.
    8. The phrase -never frozen” or similar verbiage is not permitted on an unprocessed or processed poultry product where the internal temperature of the product has ever been below 0 degrees Fahrenheit or on any red meat product that has ever been frozen.
    9.
    [lactic acid is an antimicrobial and most carcass meat (beef) is treated with that as a lethality step (in many HACCP plans it is considered and antimicrobial] It would be interesting to see the source of the product used in the Taco Meat Filling with the “bug” USDA stamp circulating on the web- where it came from. Was it an establishment that uses Lactic Acid carcass wash. IF so Taco Bell and perhaps the plant making the mix are in violation of labeling.
    Lactic acid (IUPAC systematic name
    Systematic name
    The existence of non-standard common names in different languages for entities studied by the scientific communities and the overloading of a single name to describe different entities from a same field of study makes scientific communication harder and causes unproductive name disputes…
    : 2-hydroxypropanoic acid), Lactic Acid
    Products: Livestock carcasses prior to fabrication (i.e., pre-and post-chill), offal, and variety meats
    Amount Approved for Use: Up to 5 percent lactic acid solution Labeling: None under the accepted conditions of use (1)
    Scientific references:
    King et al., 2005 * 2% lactic acid was applied to beef carcass surfaces to control E. coli O157:H7
    and S. Typhimurium. * This treatment reduced counts of these microorganisms entering the chilling cooler and prevented growth during the chilling period.
    * 2% lactic acid is effective as a carcass wash. Castillo, et al., 2001 * 4% L-lactic acid was applied to chilled beef ca
    Although the meat industry has new tools to fight bacteria at all levels from farm to table, contamination of carcasses can still occur. With the implementation of United States regulations requiring plant operation under the HACCP system, meat processing plants employ various technologies for improving the microbiological quality of carcasses. Antimicrobial intervention methods are designed to reduce microbial contamination on the carcasses. Carcass decontamination utilizing organic acids is a sanitation process that is widely used in the industry, and has been studied deeply. Spraying with organic acid solutions and/or hot or cold water is increasingly applied as sequential interventions for meat decontamination (Stopforth et al, 2003).
    Taco Bell’s Greg Creed President and Chief Concept Officer Taco Bell Corp in his ad campaign indicated citric acid was used in their product. One could argue that is a violation of the labeling; AS FRESH Meat, which is within the definition of Taco Meat Filling cannot be exposed to citric acid.
    Source:
    Food Safety And Inspection Service Office of Policy, Program and Employee Development August 2005

  • Minkpuppy

    My hubby used to work for a company that produced taco meat for Taco Bell and from what he described, it sounded like they were using mechanically seperated beef to make it. That also has to be labeled. After the meat went through it’s process, it was mixed with the spices, etc and cooked then rapidly frozen and bagged. All the restaraunts have to do is warm it up to 160 Degrees F and serve. This was several years ago, so it’s likely the formulation has changed at some point. If it’s cooked, I don’t think they can label it as taco meat filling as the standard states “fresh”.

    Is the citric acid labeled? The establishment might be arguing it’s a “processing aid” and that allows them to get away with not listing it in the ingredients. The lactic acid treatment is becoming standard on carcasses these days and due to our requirements for E. coli interventions on letters of guarantees from ground beef and beef trimming suppliers, it would be dang hard for someone producing this product to be in compliance. Most of the suppliers I deal with provide ground beef and trimmings that are from lactic acid treated carcasses or parts. The labeling regs are no longer syncing up with what we require from beef suppliers that are producing product for grinding or needle-tenderization. They aren’t required to put lactic acid on the label (re: “processing aid”) but there’s no label standard for products from lactic acid treated product. What are they supposed to do?

    I’m wondering if the inspection bug/label circulating on the internet is the actual label or not. It may be something the reporter pulled off a website somewhere and its use is misleading. I hate to be such a skeptic but it’s been known to happen.

    At any rate, I wouldn’t want to be in the shoes of the inspector’s responsible for overseeing Taco Bell’s taco meat production. This looks really bad for the agency AGAIN but then, the agency labelling policy hasn’t addressed the use of antimicrobials on the carcass effectively in developing new labeling standards either.

    I think the proper label should have read “Cooked ground beef with taco flavor and blah blah blah…”

  • excellent information keep up your good work thanx

  • Nice! Thank you