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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

It is against the law to have E. coli O157:H7 (a.k.a cow shit) in hamburger – Period

This morning’s papers across the United States are covered with paralyzed, former dancer, Stephanie Smith’s battle against food giant, Cargill. Cargill’s hamburger, sold at Wal-Mart, nearly killed Stephanie with Hemolytic Uremic Syndrome, and has left her, with brain damage, with failing kidneys, with no bowel or bladder control, and facing a life confined to a bed or a wheel chair. Despite her hard work, Stephanie will not dance again. As I type this in my kitchen, my three daughters are helping my wife decorate the Christmas tree. Like you, I cannot imagine seeing one of them in Stephanie’s condition – from eating a hamburger.

What makes E. coli O157:H7 truly and decidedly deadly is its very low infectious dose and how relatively difficult it is to kill these bacteria. Unlike Salmonella, for example, which usually requires something approximating an “egregious food handling error, E. coli O157:H7 in ground beef that is only slightly undercooked can result in infection.” In fact, in recent studies, cooking per the directions on the boxes of the type of hamburger that Stephanie ate, simply do not guarantee that the cook has cooked the E. coli O157:H7 (a.k.a., cow shit) out of the burger.

As few as twenty organisms have been said to be sufficient to infect a person and, as a result, possibly kill them. And unlike generic E. coli, the O157:H7 serotype multiplies at temperatures up to 44° Fahrenheit, survives freezing and thawing, is heat resistant, grows at temperatures up to 111° Fahrenheit, resists drying, and can survive exposure to acidic environments.

And, finally, to make it even more of a dangerous threat, E. coli O157:H7 bacteria are easily transmitted by person-to-person contact. There is also the serious risk of cross- contamination between raw meat and other food items intended to be eaten without cooking.

Indeed, a principle and consistent criticism of the USDA E. coli O157:H7 policy is the fact that it has failed to focus on the risks of cross-contamination versus that posed by so-called improper cooking. With this pathogen, there is ultimately no real margin of error, and the cost of error can be death. It is for this precise reason that the USDA has repeatedly rejected calls from the meat industry to hold consumers primarily responsible for E. coli O157:H7 infections caused, in part, by mistakes in food-handling or cooking. See Federal Register and FSIS Directive.

In an outbreak involving Cargill subsidiary, Excel Meats, The Wisconsin Supreme Court in Kriefall v Excel called it as it saw it:

“The E. coli strain that killed Brianna and made the others sick is a “deleterious substance which may render [meat] injurious to health.” There is no dispute about this. Thus, under the first part of 21 U.S.C. § 601(m)(1), meat that either “bears or contains” E. coli O157:H7 (the “deleterious substance”) is “adulterated.” That E. coli O157:H7 contamination can be rendered non-“injurious to health” by cooking thoroughly, as discussed below, does not negate this; Congress used the phrase “may render,” not “in every circumstance renders.” Moreover, if the E. coli bacteria is not considered to be “an added substance,” because it comes from some of the animals themselves and is not either applied or supplied during the slaughtering process (although we do not decide this), it cannot be said that the E. coli strain “does not ordinarily render [the meat on or in which it appears] injurious to health.” Accordingly, meat contaminated by E. coli O157:H7 is also “adulterated” under the second part of § 601(m)(1).

It is time for Cargill, the Meat Industry and the USDA/FSIS to step it up. It is time to prevent the next Stephanie. It is also time for me to help with Christmas.