Official PortraitNew York Senator Gillibrand has once again proposed a law that would give the United States Department of Agriculture’s (USDA) Food Safety Inspection Service (FSIS) the ability that it does not believe it already has to recall meat tainted with the pathogenic Salmonella bacteria. The law in essence would prompt the FSIS to label Salmonella for what it really is – an adulterant that should not be on the meat on our tables.

In our convoluted food safety system, FSIS generally oversees beef, chicken, pork and lamb production and the Food and Drug Administration (FDA) regulates all other manufactured food products. FDA already bans Salmonella from all food, FSIS not at all.

Salmonella is a fecal bacteria that the Centers for Disease Control and Prevention (CDC) estimates sickens 1.4 million annually in the United States, hospitalizing 15,000 and killing 400. The economic loss is as staggering. The USDA’s own Economic Research Service reports Salmonella illnesses and deaths cost $3.6 billion yearly in medical costs, wage loss and premature death.

The Junior Senator from New York properly recognizes the long-standing dysfunction at the FSIS. This supposed public health agency, despite an 18 month Salmonella outbreak during 2013 and 2014, which sickened over 600 people – 40% who were hospitalized – and linked to one chicken supplier, felt powerless to close the plants or recall the chicken because, notwithstanding the illnesses linked to the chicken, FSIS presently does not consider Salmonella an adulterant – regardless of what commonsense might otherwise tell you.

As long as FSIS maintains that Salmonella is not an adulterant, it will continue to claim it lacks authority to protect public safety by recalling the tainted meat and shuttering the offending plants. This is why the Senator’s proposal has merit.

FSIS’s decades long position is as perplexing as it is wrong-headed – especially in light of a history of its own success with another fecal bacterial pathogen – E. coli O157:H7.

In 1993 as a new President was being inaugurated, a deadly E. coli outbreak was being linked to hamburgers. Four kids were dead, dozens suffered kidney failure, and hundreds were hospitalized – hamburger sales dropped.

The beef industry was on its knees and the public wanted answers. Haltingly at first, the Clinton administration found its backbone when FSIS Administrator Michael Taylor (now FDA’s Deputy Commissioner for Foods) stood before the American Meat Institute and proclaimed that the deadly E. coli bacteria would no longer be tolerated in hamburger – it would now be considered an adulterant – a so called: “Zero Tolerance Rule.”

At first, the beef industry balked – even litigated against the new rule – arguing that consumers should just cook the bacteria out of the meat. However, over time, industry and government found that with E. coli banned, the numbers of outbreaks and recalls linked to hamburger fell from commonplace to infrequent. And as a lawyer whose firm benefited from the commonplace, I was pleasantly stunned to see the flow of new clients – mainly children – slow to a trickle.

It is hard to underestimate what the success that setting the E. coli bar low – with ongoing plant inspections by FSIS inspectors – has meant for consumers and the industry. All the fears of hamburger being regulated out of existence, or that the cost of production would be so high that hamburger would no longer be an American staple, never came to be. And it had the added success of less sickened by E. coli – tainted hamburger and resulting in fewer lawsuits.

The Senator’s proposal gives us a great opportunity to learn from the hamburger/E. coli experience. We can do more to move the needle down on the 48 million sickened, 125,000 hospitalized, and 3,000 deaths per year by food, which costs our economy over $15 billion annually.

I once penned an op-ed during the middle of an E. coli outbreak linked to hamburger centered in Colorado that sickened fifty, killed one, and caused a half-a-dozen children to suffer acute kidney failure urging action. Banking on the reality that trial lawyers are only slightly more popular than members of Congress, I suggested that something be done to “put me out of business.”

As it relates to hamburger, the plea has worked. And a few months ago I had my first hamburger in twenty-two years.

The Senator’s proposal gives FSIS the tools it feels it needs to keep the public a bit safer. Safer food should be non-partisan. Republicans and Democrats eat and drink, and they have parents, kids, grandkids, and constituents who are some of the most vulnerable to foodborne illness. We can do something to make our food just a bit safer. The Senator’s proposal is a step in the right direction.