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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

FSIS – It is past time to start recalling Salmonella-tainted Chicken

This week the U.S. Department of Agriculture’s (USDA) Food Safety and Inspection Service (FSIS) issued a public health alert (NOT A RECALL) due to concerns that illness caused by strains of Salmonella Heidelberg are associated with raw chicken products (presumably not ground meat, but whole or cut chicken) produced by Foster Farms at three facilities in California.  Raw products from the facilities in question bear one of the establishment numbers inside a USDA mark of inspection or elsewhere on the package: “P6137,” “P6137A,” “P7632.”  The products were mainly distributed to retail outlets in California, Oregon and Washington State.

This public health alert is being issued after an estimated 278 illnesses were recently reported in 18 states, predominantly in California.  The outbreak is continuing. The investigations indicate that consumption of Foster Farms brand chicken and other brand chicken produced at Foster Farms plants are the likely source of this outbreak of Salmonella Heidelberg infections. Illnesses were linked to Foster Farms brand chicken through epidemiologic, laboratory and traceback investigations conducted by local, state, and federal officials.

This is the second – NOT A RECALL for Foster Farms chicken in less than a year.  The CDC announced in May total of 134 persons infected with the outbreak strain of Salmonella Heidelberg reported from 13 states.  Collaborative investigative efforts of local, state, and federal public health and regulatory agencies indicated that Foster Farms brand chicken was the most likely source of this outbreak.  Testing conducted by the Washington State Public Health Laboratories identified the outbreak strain of Salmonella Heidelberg in four intact samples of chicken collected from three ill persons’ homes in Washington, which were traced back to two Foster Farms slaughter establishments.

Lots of sick people linked to a particular product and NOT A RECALL.  – Why?

OK, a bit of history.

In August 2011 the USDA Food Safety and Inspection Service (FSIS) announced a recall of ground beef products due to “possible” Salmonella contamination. According to the press release, “Cargill Meat Solutions Corporation, a Springdale, Ark. establishment, is recalling approximately 36 million pounds of ground turkey products that may be contaminated with a multi-drug resistant strain of Salmonella Heidelberg.” The release goes on: “This recall follows a July 29, 2011 FSIS Public Health Alert that was initiated due to concerns about illnesses caused by Salmonella Heidelberg that may be associated with use and consumption of ground turkey. A total of 79 persons infected with the outbreak strain of Salmonella Heidelberg have been reported from 26 states between March 1 and August 3, 2011. The outbreak strain of Salmonella Heidelberg was resistant to several commonly prescribed antibiotics.

This recall was, for me, continues to be surprising, but positive, news—and also inexplicable given the USDA’s long-held position that Salmonella is not an adulterant per se in raw meat, and the meat industry’s prior success in getting a court to invalidate Salmonella performance standards that the USDA had tried to implement as part of its Pathogen Reduction, HACCP regulations adopted in 1996. So when I read about this recall, my first thought was to wonder why Cargill agreed to the recall. (Remember: FSIS lacks the statutory authority to compel a recall.) And my second thought was: I wonder if the meat industry is going to sue the USDA to try and prevent the Agency from seeking a recall in the future based on possible Salmonella contamination.

I obviously cannot answer either of these questions. But I can provide some useful background information about why this particular recall is so surprising, and so inexplicable. (And, by the way, by inexplicable I mean that it is nearly impossible to explain how FSIS could take this action in light of 25 years worth of policy and court decisions that would appear to suggest that the Agency has no authority to do what it did. The recall is certainly NOT inexplicable from a public health and safety perspective, which is certainly ironic given the fact that the FSIS has the term “safety” in its name, and doing something in favor of safety should not be inexplicable.)

And so now onto some deeper history:

In 1971 the American Public Health Association (APHA) sued the USDA on the grounds that its mark of inspection (“USDA inspected for wholesomeness”) was misleading because, even though the USDA had put its stamp of approval on meat—literally—it did not, for example, test the meat for bacteria. Moreover, APHA argued that raw meat was commonly contaminated with Salmonella, which posed a risk to the public health. According to APHA, the USDA should instead require that meat carry both a warning label and cooking instructions. The USDA opposed the APHA, helped ably (and predictably) by the meat industry. As quoted by Marion Nestle in her great book, Safe Food, the USDA’s position was that, given how many foods are contaminated with Salmonella, “it would be unjustified to single out the meat industry and ask that the [USDA] require it to identify its raw products as being hazardous to health.” Nestle at 66. (Note to Reader: No, I am really not making this up.)

In 1974, the DC Circuit Court of Appeals upheld the position of the USDA and the meat industry, doing so in a way that was as nonsensical as it was sexist. The court stated that: “The presence of salmonellae on meat does not constitute adulteration within this definition [of ‘adulterated,’ provided in 21 U.S.C. § 601 (m)]…. As it said in its letter of August 18, 1971 ‘the American consumer knows that raw meat and poultry are not sterile and, if handled improperly, perhaps could cause illness.” In other words, American housewives and cooks normally are not ignorant or stupid and their methods of preparing and cooking of food do not ordinarily result in salmonellosis.’” APHA v. Butz, 511 F.2d 331, 334 (1974).

This remained the position of the USDA and the meat industry until 1994 when, in an act of both common sense and bravado, Michael Taylor, then FSIS Administrator announced that E. coli O157:H7 would be deemed an adulterant in raw ground beef. The Agency did not, however, change its tune with regard to any other pathogens, especially Salmonella. Indeed, in 1999, when FSIS announced it inane distinction between E. coli O157:H7 in “intact” meat versus “non-intact” meat, the Agency continued to focus on how a given meat was “customarily cooked” as a chief determinant of whether it must be treated as an adulterant. Thus, for example, because it decided, “intact steaks and roasts are customarily cooked in a manner that ensures that these products are not contaminated with E. coli O157:H7,” there was no need to treat this deadly pathogen as an adulterant on intact cuts of meat. Of course, this FSIS policy is also one that appears to have been silently jettisoned by the Agency of late.

The Agency’s position on Salmonella and meat came back to haunt it in a big way when FSIS tried to shut down Supreme Beef Processors, Inc. for repeatedly failing Salmonella performance standards that, according to the Agency, was proof that the ground beef being made there was being processed under “insanitary conditions.” Supreme Beef sued the USDA and not only won an injunction, but it succeeded in having the Salmonella regulations struck down as being “beyond the authority granted the Secretary [of the USDA] by the Federal Meat Inspection Act.” Supreme Beef v. USDA, 275 F.3d 432, 434 (5th Cir. 2001). Explaining it’s holding, the Court wrote:

The difficulty in this case arises, in part, because Salmonella, present in a substantial proportion of meat and poultry products, is not an adulterant per se, 21 meaning its presence does not require the USDA to refuse to stamp such meat “inspected and passed.” 22 This is because normal cooking practices for meat and poultry destroy the Salmonella organism, 23 and therefore the presence of Salmonella in meat products does not render them “injurious to health” 24 for purposes of § 601(m)(1). Salmonella-infected beef is thus routinely labeled “inspected and passed” by USDA inspectors and is legal to sell to the consumer.

Supreme Beef, 275 F.2d at 438-39. And, of course, not surprisingly, the court in this case was quick to cite the decision in APHA v. Butz, and to note that even now the “USDA agrees that Salmonella is not an adulterant per se.” Id. at 439 n. 21.

In my view the Supreme Beef decision is poorly reasoned and ill informed. (For example, could not someone at the Court figure out that it is impossible for meat to be “infected” with Salmonella, and the proper term here is “contaminated”?) But the real lesson of Supreme Beef is that the USDA was, and continues to be, an Agency that is unable to decide whose side it is on. Sometimes it puts on its public safety hat, and sometimes—actually, most often—it puts on its pro-meat industry hat. And, unfortunately, these roles are too often contradictory. That is why USDA policy when it comes to meat safety is also too often contradictory.

So how does the USDA square this week’s recall of Salmonella-contaminated meat with the last 25 years of Agency policy on meat adulteration standards? It cannot. But let us hope that if the meat industry decides to sue to scuttle what appears to be a new and better policy on Salmonella in meat that this time the USDA decides to stand with the public on the side of meat safety.

Or, perhaps it is just time for the FSIS to that the position that all pathogens that can kill you in meat are adulterants.  Let the meat industry sue you.  I know a good lawyer to defend you.