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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

Who Does the USDA Really Protect When It Comes to Deadly E. coli?

Guest Blog by Denis W. Stearns:

On October 3, 2002 I submitted a petition to the USDA in which I asked the agency to explicitly clarify whether a USDA policy that appeared to allow the deadly pathogen E. coli O157:H7 on so-called “intact meat” applied to meat sold to retail outlets like grocery stores and restaurants. Even now it is a near-universal practice for retail outlets to use this meat—commonly called “boxed beef” because the cuts of meat are individually shrink-wrapped and then boxed—to make ground beef. Sometimes the meat is directly used to make ground beef, and sometimes only trimmings are used—that is, the pieces left over after roasts and steak are cut and trimmed. Either way, there has never been any doubt that tens of thousands of grocery stores and restaurants use tons of intact meat every day to make ground beef. To my mind it makes absolutely no sense that the USDA would allow meat companies to sell intact meat contaminated with E. coli O157:H7. Why allow a loophole so large that it essentially moots USDA policy on this deadly pathogen?

Interestingly, the USDA responded to my petition with a letter from Philip Derfler, Deputy Administrator of the Food Safety and Inspection Service. In the letter, Mr. Derfler acknowledged that USDA policy was unclear, and stated that my petition would be treated as a public comment and referred to the Regulations and Directives Development Staff. That was six years ago, and USDA policy is less clear today than it was back then, and just as indefensible.

We are now in the midst of yet another outbreak of heartbreaking illnesses and likely deaths caused by contaminated meat that the beef industry claims the USDA authorizes it to sell. This claim is hardly new either. In 2004, the American Meat Institute and other meat industry trade groups fought all the way to the United States Supreme Court trying to overturn a Wisconsin Court of Appeals decision. The decision held that USDA policy on intact meat did not immunize meat companies from lawsuits based on allegations that E. coli-contaminated meat was unreasonably dangerous as a matter of state law. In other words, the meat industry was fighting for the right to sell E. coli-contaminated meat, claiming that USDA policy said that it could. It lost, but that did not prompt the USDA to change or clarify its policy.

Putting legal arguments aside, common sense alone clearly demonstrates why an exception for intact meat makes no sense. While the meat industry can cleverly argue that its intact meat is not intended for ground beef, and that cooking always makes it safe, neither statement is true. As the recent Nebraska Beef outbreaks make tragically clear, most intact meat does not reach consumers still intact. Furthermore, if each shrink-wrapped cut of meat had “DO NOT USE FOR GROUND BEEF; E. COLI O157:H7 PRESENT” printed in bold letters on it, there is not a grocery store in the country that would buy it. Indeed, commenting on the current outbreak, a representative of Whole Foods explained that it was using intact meat to make its own ground beef “in an attempt to assure quality and safety.” I guess the joke was on them then.

The current USDA policy on E. coli and intact meat is indefensible because it protects the interests of the meat industry instead of the public health. A policy that is based on the demonstrably false assumption that intact meat is not being used to make ground beef at a retail level is a policy that has no basis in fact or reason. It also entirely ignores the incredible risk of cross-contamination, which is what caused the 2000 outbreak at a Milwaukee-area Sizzler restaurant that killed one child and sickened scores of others. The Sizzler outbreak also recently resulted in a $7.1 million verdict against the same meat company that fought to the Supreme Court (with industry trade groups) for the right to sell the deadly stuff. Meanwhile, all these years later, the USDA says it is continuing to consider its options. Well, I have a suggestion: How about putting the interests of the public first for a change and sticking to a real zero-tolerance policy for this deadly pathogen?

  • Bill, did you ever think about approaching the large independent franchisee associations for their support on this entire issue?
    If you think it would be worthwhile, shoot me an email and I can put you in touch with some executive directors.