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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

FSIS’s and Foster Farms’ Reason for NOT Recalling Salmonella Chicken: “Shit Happens!”

I had lunch with an old friend (now days, all my friends are) yesterday who asked me why Foster Farms and the United States Department of Agriculture’s Food Safety Inspection Services (FSIS) have not recalled chicken – presumably whole or cut and not ground – even after 124 have been sickened (at least 30 hospitalized) by antibiotic-resistant Salmonella Heidelberg?  I tried to explain, but I do not think I was very convincing.  Let me try again.

Here is the Food and Drug Administration’s (FDA’s) legal charge on food Safety:  21 USC §342:  A food shall be deemed to be adulterated:

(a) Poisonous, insanitary, or deleterious ingredients.

(1) If it bears or contains any poisonous or deleterious substance which may render it injurious to health;

FDA seems to have historically taken the position that if food (everything not meat – except fish) has made it into the market, and it includes a pathogen that can kill you, it needs to be recalled.  Seems simple.

Interestingly, the FSIS has a remarkably similar legal charge in 21 USC §601:

(m) The term ”adulterated” shall apply to any carcass, part thereof, meat or meat food product under one or more of the following circumstances:

(1) if it bears or contains any poisonous or deleterious substance which may render it injurious to health;

Yet, FSIS deems only seven pathogens – E. coli O157:H7, O26, O45, 0103, O111, O121, and O145 – as adulterants – meaning, if found in meat (well, only ground meat, trim and other non-intact meat) it cannot be sold, and if in the market, would need to be recalled.

Seriously, the FSIS’s position is that meat – Beef, Lamb or Chicken is perfectly fine with Salmonella (and several other pathogens) – even antibiotic-resistant varieties – is fine until people start getting sick.  Well, at least that is what I thought until there was no recall of Foster Farms’ Salmonella chicken.

Perhaps there has been no recall because the chicken is not ground?  Perhaps not enough epidemiological evidence to support the link between sick people and tainted chicken?  Or, perhaps not enough people sick – yet?

Given FSIS’s Mission Statement waiting on a recall makes little sense:

The Food Safety and Inspection Service (FSIS) is the public health agency in the U.S. Department of Agriculture responsible for ensuring that the nation’s commercial supply of meat, poultry, and egg products is safe, wholesome, and correctly labeled and packaged.

Salmonella is a fecal bacterium.  I guess FSIS’s and Foster Farms’ explanation of no recall is “Shit happens!”