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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Cattle Feces and Hamburger do not mix

Let me first say that the meat industry had been doing something right. E. coli illnesses and outbreaks were down, and down substantially, from 2003 to a few weeks ago.  From Jack in the Box outbreak of 1993 through the Summer of the ConAgra outbreak of in 2002, most of the work we did at Marler Clark consisted of E. coli cases tied to the consumption of contaminated hamburger.  In 2002, nineteen million pounds of meat was recalled and 40 people were sickened – one died. In the last two months, nearly 40 people have been sickened in a dozen or more states, some severely, and nearly six million pounds of meat has been recalled. I do not yet know the answer to this new and ominous trend, but I expect a few lawsuits will shake out an answer or two. Those concerning issues aside, I expect to get the following email (I always do when outbreaks happen) from someone upset that I had the audacity to sue a poor supplier of meat contaminated with E. coli O157:H7 (a.k.a “cattle feces”):

"It is not the failure of the Meat Industry in not keeping cattle feces out of hamburger that sickened the child, it is the fault of the parent who handled and cooked the hamburger that was fed to the child."

At first I will calmly try to respond that the Meat Industry that makes a profit off of selling "USDA Inspected Meat" can not blame the consumer if the product actually contains a pathogen that can severely sicken or kill a child. What other product in the United States would a manufacturer expect consumers to fix themselves before they used it for “gawds” sake? The reply to my calm response will be:

"The consumer should know that meat may contain bacteria and they are told to cook it."

My calmness will now fade. Think about the little labels on meat that you buy in the store – the ones that tell you to cook the meat to “thoroughly” – of course they also say USDA inspected too. However, the labels do not say "THE USDA INSPECTION MEANS NOTHING. THIS PRODUCT MAY CONTAIN A PATHOGENIC BACTERIA THAT CAN SEVERELY SICKEN OR KILL YOU AND/OR YOUR CHILD. HANDLE THIS PRODUCT WITH EXTREME CARE." I wonder why the Meat Industry does not want a label like that on your pound of hamburger. It knows that the label would be truthful. Do you think it might be concerned that Moms and Dads would stop buying it?

The day the industry puts a similar label on hamburger is the day that I will go work for them.

The reality is that the Meat Industry seems to be back at the point where it cannot assure the public that the meat we buy is not contaminated. So, instead of finding a way to get cattle feces out of our meat, they blame parents (and presumably all the teenagers that work at all the burger joints in America) when children get sick.

Consumers can always do better. However, study after study shows that, despite the CDC estimated 76 million people getting sick every year from food borne illnesses, the American public still has misconceptions and overconfidence in our Nation’s food supply. According to a study by the Partnership for Food Safety Education, fewer than half of the respondents knew that fresh vegetables and fruits could contain harmful bacteria, and only 25% thought that eggs and dairy products could be contaminated. Most consumers believe that food safety hazards can be seen or smelled. Only 25% of consumers surveyed knew that cooking temperatures were critical to food safety, and even fewer knew that foods should be refrigerated promptly after cooking. Consumers do not expect that things that you cannot see in your food can kill you.

Consumers are being blamed, but most lack the knowledge or tools to properly protect themselves and their children. The FDA has stated, "Unlike other pathogens, E. coli O157:H7 has no margin for error. It takes only a microscopic amount to cause serious illness or even death." Over the last few years our Government and the Meat Industry have repeatedly told the consumer to cook hamburger until there is no pink. Yet, recent university and USDA studies show meat can turn brown before it is actually "done." Now the consumer is urged to use a thermometer to test the internal temperature of the meat. However, how do you use one, and who really has one?

Many consumers wrongly believe the Government is protecting the food supply. How many times have we heard our Government officials spout, "The US food supply is the safest in the world.” Remember, however, that just in the last year we have had E. coli outbreaks in spinach and lettuce, Salmonella outbreaks in tomatoes and peanut butter, poisoned animal feed, and now E. coli in meat is back on the front page.

Where is the multi-million dollar ad campaign to convince us of the dangers of hamburger, like we do for tobacco? The USDA’s FightBAC and Thermy education programs are limited, and there are no studies to suggest that they are effective. Most consumers learn about food safety from TV and family members – If your TV viewing habits and family are like mine, these are highly suspect sources of good information – I’ve never heard Simon on American Idol talk about this topic with Paula.

The bottom line is that you cannot leave the last bacteria "Kill Step" to a parent or to a kid in a fast food joint. The industry that makes billions off of selling meat must step up and figure out why outbreaks and illnesses are happening again, and clean up their mess. They can, and someday will, if I have anything to say about it – again. That day will come much faster if they start working on it now, and stop blaming the victims.

  • John Munsell

    Bill Marler made several points which deserve further discussion. Number one: the value of the USDA Mark of Inspection has been diminished under the current HACCP-style brand of meat inspection, which USDA introduced in a knee-jerk reaction to the Jack-In-The-Box outbreak. The agency admitted that its role under HACCP would be “Hands Off”, and that USDA would no longer police the industry, but the industry must police themselves. USDA’s role under HACCP has degenerated to monitoring of plant-generated paperwork, rather than inspecting meat. I would suggest that the USDA Mark of Inspection should be rescinded, and replaced by a Mark which states “Produced at HACCP plant # 1234. Since the agency no longer inspects meat, application of the existing mark which states “USDA Inspected and Passed Est. 1234” constitutes misleading labeling. It has been several years now since the agency has shown the audacity to publicly state that its Mark of Inspection has any relationship to product wholesomeness. Why? Because USDA knows that if the label guarantees wholesomeness, then the agency itself is liable when contaminated meat is detected in commerce. The current label is a shameless sham, but has effectively insulated the agency from costly litigation. How can the agency share responsibility for the presence of contaminated meat which it never inspected in the first place?
    Having owned and managed a USDA-inspected plant for seven years since HACCP’s inception, and enduring a recall myself, I’ve heard numerous agency officials make the blame-shifting remark that consumers are responsible for sicknesses, caused by their inappropriate cooking methods, constituting self-infliction of pathogens. To a much lesser degree, I’ve heard industry representatives make the same comment. I’ve made few friends when I’ve suggested to the agency and industry that both should instead be proactively involved in improving production/inspection methods whereby we detect the true ORIGIN of contamination, implement unilateral corrective actions to prevent recurrences, and discontinue blaming consumers. If our primary goals are safe food and public health, we won’t attempt to shift the blame onto these allegedly negligent consumers. Instead, we will place the blame on those portions of the industry where E.coli bacteria are INTRODUCED, which by definition is the slaughter plants since E.coli bacteria are enteric. When the Great Lakes were greatly contaminated decades ago, primary emphasis was not on municipalities to clean up someone else’s contaminants, which admittedly was useful in the short term. Instead, the long term emphasis was to detect the SOURCES of pollution and require them to discontinue illegal discharges. While downstream consumers need to take actions to protect themselves, such as municipal water plants, future long term corrective actions which will guarantee improvements in public health imperatives require going back to the SOURCE of harmful discharges. The same is true of the meat industry, and especially with USDA which has been given a legislative mandate to protect the public from food-borne outbreaks. For the agency and the industry to place the ultimate responsibility on consumers is the height of irresponsible arrogance. HACCP’s insulation of the large slaughter plants from accountability, while allowing USDA to embrace a semi-retired stance of meat non-inspection, circumvents the Federal Meat Inspection Act which initially mandated federal inspection. If for no other reason than public image, both USDA and the industry should totally blame themselves for the presence of contaminated meat in commerce.
    Mr. Marler commented on meat thermometers. I’ve never used one when grilling ground beef, because instructions state the need to insert into the middle of the patties when cooking to ensure that the middle reaches an internal temperature of at least 160 degrees. I’m not confident that the tip of the thermometer would always reside in the middle of the thin patties (would work in a thick steak), and that the tip would occasionally go entirely through the patty and be exposed to direct heat from the gas grille, producing an inaccurate reading. Today (Fathers’ Day), extended family joined us for a hamburger barbecue, and I cooked eleven patties on our grille. What is the chance I would have correctly implanted the thermometer exactly into the middle of those eleven patties and obtained precisely correct readings? Also: my grille is blasted hot, minimizing the time I have available for personal research on the wholesomeness of those eleven patties which I purchased in a box which was proudly emblazoned with the official USDA Mark of Inspection? Yup, some folks conclude that I am personally responsible for contamination which the slaughter plants INTRODUCED into meat I cooked for my family. Thermometers should not be required, nor is their use practical. Previously, I enjoyed rare ground beef. I no longer have the confidence to cook ground beef in this fashion: not because I have failed as a consumer, but because the slaughter plants have been failing……….as is being proven by these multiple recurring recalls thus far in 2007. As of June 3 this year, the number of E.coli recalls have already matched the total number compiled in all of 2006. This isn’t progress.
    One last thought: the NCBA published “America’s Favorite Beef Recipes” cookbook in 1998. The following statements are found on page 6. “First, the wholesomeness of our meat supply is ENSURED (emphasis added) by meat inspection conducted by the U.S. Department of Agriculture (USDA). All meat that is sold must, by law, pass inspection. INSPECTION PROVIDES ASSURANCE THAT ALL MEAT SOLD IS WHOLESOME AND ACCURATELY LABELED”. (Emphasis added). I challenge everyone to find a similar guarantee, either by the agency, industry, or industry association like NCBA since 1998. I don’t think it exists, because the statement would now be correctly construed as blatant misrepresentation.
    While my personal perception is that we will never force ground beef labeling to state that its consumption could be hazardous to one’s health, I nevertheless acknowledge that labeling meat with the official USDA Mark of Inspection is not justified, and should be discontinued. Instead, all meat should merely be labeled as having been produced under the HACCP umbrella, which is at least one galaxy away from ensuring wholesomeness.
    John W. Munsell
    Manager, Foundation for Accountability in Regulatory Enforcement (FARE)
    Miles City, MT
    June 17, 2007 Fathers’ Day

  • Walt Hill

    Saying the USDA mark of inspection is meaningless is a little unfair. It does mean, supposedly, that the carcass has been macroscopically looked at to attempt to find gross physical defects. But USDA is forced to operate under a law that is 101 years old, decades before the realization that most meat-borne hazards are microbial. We need new laws and perhaps a new food safety agency to coordinate efforts to protect the public health from contaminated foods.
    With regard to labeling, the alcohol industry was forced to put an ominous label on their products. Why shouldn’t the meat (or the food) industry have to do the same? I haven’t checked the sales figures but this label doesn’t seem to have affect alcohol sales much and people have to eat but consuming alcohol is optional.

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