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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

USDA should immediately grant CSPI’s Petition on Salmonella Heidelberg, Salmonella Newport, Salmonella Hadar, and Salmonella Typhimurium

It is time for the United States Department of Agriculture’s Food Safety Inspection Service (USDA-FSIS) to fulfill its public health mission and get antibiotic-resistant Salmonella out of the American meat supply.

In May 2011, as the number of illnesses were mounting without public knowledge in the recent Cargill ground turkey Salmonella Heildelberg outbreak and recall, the Center for Science in the Public Interest (CSPI) filed a regulatory petition asking the USDA to declare antibiotic-resistant Salmonella Heidelberg, Salmonella Newport, Salmonella Hadar, and Salmonella Typhimurium “adulterants” under federal law, making products that contain them illegal to sell.

“We’ve had many calls from concerned people, many of them victims in this Cargill Salmonella outbreak, who are wondering how this type of pathogen got in their food,” said William Marler, whose firm Marler Clark has been retained by a number of ground turkey Salmonella outbreak victims. “It’s a real shock for them to hear that the government doesn’t currently ban this sort of bug.”

USDA already recalls products contaminated with antibiotic-resistant Salmonella—but only after those products have made people sick, according to CSPI. The group’s petition asks the agency to establish a testing regime for these pathogens in ground meat and poultry in the same way that it has for E. coli O157:H7. USDA declared that particularly dangerous strain of E. coli an adulterant in 1994.

“USDA should take action before people get sick, and require controls and testing for these pathogens before they reach consumers,” said CSPI food safety director Caroline Smith DeWaal. “The research shows that antibiotic-resistant Salmonella in ground meat and poultry is a hazard and it’s time to move to a more preventive system of controlling the risks at the plant and on the farm.”

In 2009, an outbreak of antibiotic-resistant Salmonella Newport linked to Cargill beef resulted in at least 40 illnesses in four states. And this year, the USDA oversaw a recall of frozen turkey burgers contaminated with antibiotic-resistant Salmonella Hadar.

The danger of antibiotic-resistant pathogens in the food supply is well-documented and has been recognized by the Centers for Disease Control and Prevention, the Food and Drug Administration, and by USDA itself. Those agencies are working together to address the issue and recently produced a document stating that “drug resistant pathogens are a growing menace to all people,” and that “drug resistance threatens to reverse the medical advances of the last half century.”

In 2009, Marler Clark petitioned FSIS to declare all Shiga toxin-producing strains of E. coli adulterants.  “It’s time the USDA put public health first,” said Marler.  “It is shameful that after so many outbreaks – so many hospitalizations and deaths– that the agency responsible for ensuring our food is safe still drags its feet time and time again on public health.”

  • John Munsell

    The second paragraph above states that CSPI has requested that USDA name 4 types of Salmonella as adulterants, making products that contain them illegal to sell. This means that the other types of salmonella are legal to sell & ship into commerce. Just like the big 6 non-O157:H7 STECs which are not yet classified as “adulterants”, although recent history proves they are lethal killers.
    This blog recently defined the word “adulterant”, and my memory says that any product which is injurious to health is adulterated. Therefore, aren’t we really saying that numerous types of salmonella and e.coli are technically “adulterants”, although we’re not calling them such.
    CDC statistics reveal that ten times as many Americans are killed from Salmonella every year than killed by E.coli. Yet, USDA has stated since 1995 that E.coli O157:H7 is an adulterant, but none of the other E.coli nor Salmonella, even though Salmonella kills ten times as many of us. What gives?
    Also, USDA/FSIS allows a much higher incidence of salmonella in poultry than it does in beef! Yup, because Salmonella has historically been found in higher numbers in poultry than in beef, therefore, the agency endorses the right of the poultry industry to produce salmonella-contaminated products in higher %’s. I’ve gotta believe that FSIS concludes that salmonella in poultry is less harmful than salmonella in beef?
    Would classifying these 4 salmonella as adulterants, as well as the big 6 non-O157:H7 STEC’s as adulterants solve this mushrooming public health problem? I’m not convinced. On this blog a month or so ago, both Bill Marler and Dr. Richard Raymond stated that since FSIS declared O157:H7 to be an adulterant, the incidence of H7 in tests has diminished, a fact which in itself reveals that the classification paid dividends to consumers, an undeniable fact backed by test results. (Ironically, many in the industry claim we can’t TEST our way to safe food).
    My point is this: regardless of what classification we place on these pathogens, these lethal bugs will persist in our food chain until FSIS develops the courage to trace back contaminated meat to the SOURCE, and initiate meaningful enforcement actions at the SOURCE. To Cargill’s credit, it stated on Wed that it has discontinued production of ground turkey products at its Springdale, AK plant until the company can find the SOURCE, and take corrective actions. Cargill’s bold, pro-consumer stance stands out in stark contrast to the agency’s historical intentional obfuscation of SOURCE evidence during its sampling/testing methodology. Don’t accept this from me: survey retired FSIS personnel, who will divulge how FSIS has surreptitiously prevented its field force from documenting source information at the time of FSIS sample collection. For what reason? If the agency were to possess incontravertible source data for all meat tested, the agency would then be forced to go back to the SOURCE and then force the source to clean up its act, or as the agency says, to implement corrective actions to prevent recurrences. Why doesn’t the agency want to do this?
    FSIS is paralyzed with fear of litigation, if the agency were bold and stupid enough to tell one of the major packers (many are multinational) that they must implement corrective actions or face withdrawal of the agency’s inspection team. The major packers have deep pockets (enabling legal threats), and enjoy political clout via campaign contributions. (1) Small downstream plants, (2) retail meat markets, and (3) the HRI industry is much easier prey, and remain in FSIS cross hairs (although #’s 2 & 3 are outside FSIS authority).
    However, a much more sinister (& legal) reason exists to explain why FSIS adroitly avoids tracebacks to the SOURCE.
    While introducing HACCP to the industry in the mid-90’s, FSIS promised the industry that the following changes would accompany the implementation of HACCP:
    1. Under HACCP, FSIS would embrace a “Hands Off” role in the industry.
    2. Under HACCP, the industry would police itself, and the agency would no longer police the industry.
    3. Under HACCP, FSIS would surrender its previous command and control authority.
    4. Under HACCP, each company would write their own individualized HACCP Plan, and FSIS could not tell a company what must be in its HACCP Plan.
    History has shown that after HACCP’s advent, FSIS truly deregulated the BIG PACKERS, fully compliant with its 4 promises above. Simultaneously, the agency hyperregulated the small plants, many out of business, all by intentional agency design.
    I seriously ask you now, realizing that FSIS made the 4 promises above to the industry in exchange for the industry to implement the HACCP ideal, how can the agency possibly initiate enforcement actions against the largest meat plants? FSIS publicly told us that it would not police the industry, that the agency would surrender its command and control authority, would maintain a “Hands Off” non-involvement role (retirement), and could not mandate changes to HACCP Plans. Well, what can the agency legally and ethically do now that it willingly acquiesced its previous authority over to the industry? If FSIS would be fully compliant with its four promises, it can do practically nothing.
    Did we learn nothing from Upton Sinclair? In less than a 100 years since the FMIA act was passed, USDA gave its authority back to the industry.
    Perhaps this is the precise reason why the agency is paralyzed with fear of litigation emanating from the industry’s largest players. All the industry needs to do is rub the agency’s nose in its 4 pre-HACCP promises, and tell the agency to bug off. The industry would be precisely correct in doing so. FSIS unwittingly painted itself into a regulatory corner via its 4 promises above. FSIS hoped against hope that deregulation would liberate the industry to unilaterally improve food safety. In spite of the industry’s expenditure of countless millions to develop new interventions, we still experience recurring recalls and ongoing outbreaks, while FSIS forced itself into a spectator position. When faced with ugly outbreaks like this, the industry, via FSIS policy, remains relatively insulated from meaningful gov oversight.
    AMI has appropriately reminded the agency to bug off. At the agency’s March, 2010 public hearing on tracebacks, one statement in AMI’s comments was something like this: “AMI is not aware of any scientific evidence that changes in agency traceback protocol would improve public health”. Not verbatim. AMI doesn’t want its members to be subjected to changes in agency policies which might reveal the true SOURCE of fecal contamination, which is what Salmonella & E.coli is.
    Folks, classification of Salmonella and E.coli is not our primary enemy here! The primary enemy consumers face is an agency which revels in its semi-retirement role, basking in the comfort of not being forced to actively engage the SOURCE when faced with evidence which could have been prevented. FSIS bureaucrats conveniently ignore the fact that the Federal Meat Inspection Act was created to protect consumers, not promote agency COMFORT.
    HACCP needs to be repealed, or dramatically changed, which will NEVER happen as long as current FSIS bureaucrats remain enthroned. True Pillsbury-style HACCP was intended for ready-to-eat products, not raw products such as ground turkey and ground beef, or lettuce and sprouts. Fully cooked, ready-to-eat meat qualifies for HACCP and the 4 promises above, while all other meat products must be highly inspected (sorry, FSIS) and do not qualify for the 4 promises. Raw products require intensive FSIS scrutiny, which would force FSIS policy makers off of their recliners.
    Don’t think the “Adulterant” classification is the panacea we are being led to believe. As long as FSIS demands semi-retirement, no classification will resolve this debacle.
    John Munsell

  • Sam

    Cargill is too big to fail.

  • Bix

    John, nice write-up. Very convincing.