Salmonella Lawyer

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Summary

In a new report, the Consumer Federation of America examines the legal and scientific foundations for USDA policy on Salmonella in raw meat and poultry. The report explains why the law authorizes federal regulators to treat Salmonella as an adulterant in raw meat and poultry, and it describes five policy options for harnessing new research and technology to protect public health.

Findings

The report shows that reforms to reduce Salmonella in raw meat and poultry are not only long overdue, but also legally and economically feasible. In particular, the report finds that:

  • Lack of enforcement has led to widespread incompliance with Salmonella standards introduced in response to recent outbreaks.
  • Progress on reducing Salmonella infections in the U.S. has stagnated for over a decade, with five large outbreaks associated with meat and poultry occurring in just the last year.
  • Many Salmonella reduction strategies with proven effectiveness, particularly on-farm, are not applied by major U.S. companies.
  • Federal regulators have refused to adopt common sense policies on the basis of legal precedent that is woefully outdated and scientifically wrong.Conclusion and Recommendations

    The report urges USDA’s Food Safety and Inspection Service to announce an interpretiverule under which the agency will consider raw meat and poultry “adulterated” if it iscontaminated with Salmonella. The report describes the pros and cons associated with five policy options for implementing such a rule, namely:

  • A zero tolerance approach to all Salmonella
  • Prohibiting particular Salmonella serotypes associated with human illness on rawfoods
  • Prohibiting Salmonella strains associated with an ongoing outbreak
  • Prohibiting Salmonella resistant to certain medically important antibiotics

• Prohibiting high loads of Salmonella bacteria

The report explains why any of these policies would protect public health better than the status quo.

Foodborne Illness Statistics

Each year 48 million Americans are sickened, 128,000 are hospitalized and 3,000 die from foodborne disease. (CDC, 2011)

Between 2009 and 2015, 35% of outbreak associated illnesses were attributable to meat and poultry products. (CDC, 2018)

The medical costs of treating Salmonella infection in the U.S. is estimated to exceed $3.7 billion each year. (USDA ERS 2014)

Timeline

1905 – Upton Sinclair publishes The Jungle. Six months later, Congress passes the Federal Meat Inspection Act (FMIA).

1974 – The D.C. Circuit rules in American Public Health Association v. Butz that Salmonella is not an adulterant under the FMIA or PPIA because “American housewives and cooks normally are not ignorant or stupid and their methods of preparing and cooking of food do not ordinarily resultin salmonellosis.”

1993 – E. coli O157:H7 outbreak in the Pacific Northwest linked to Jack-in-the-Box causes 400 illnesses and four deaths. A year later, Administrator Michael Taylor announces that FSIS considers “raw ground beef that is contaminated with E. coli O157:H7 to be adulterated”under the FMIA.

July 25, 1996 – FSIS issues landmark Pathogen Reduction/HACCP Systems rule.

December 6, 2001 – Fifth Circuit Court of Appeals rules in Supreme Beef Processors, Inc. v. USDA that FSIS cannot take enforcement action against meat processors on the basis of Salmonella testing results alone.

November 17, 2003 – European Commission issues Salmonella control rule that targets certain serotypes in livestock.

August 3, 2011 – Cargill Meat Solutions, Inc. recalls 36 million pounds of turkey for suspected contamination with Salmonella Heidelberg implicated in 136 illnesses and one death.

July 12, 2014 – Foster Farms recalls an “undetermined amount” of chicken products for suspected contamination with Salmonella Heidelberg implicated in 634 illnesses.

February 11, 2016 – FSIS finalizes updated standards for Salmonella and Campylobacter in ground poultry and poultry parts.

November 23, 2018 – FSIS publishes data indicating nearly all major poultry companies are operating plants that fail to comply with the new rules.

As of November 5, 2018, 164 people infected with the outbreak strain of Salmonella Reading have been reported from 35 states.

Tonight Jennie-O Turkey Store Sales, LLC, a Barron, Wis. establishment, is recalling approximately 91,388 pounds of raw ground turkey products that may be associated with an illness outbreak of Salmonella Reading, the U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) announced.

The Washington Post’s reporters, Kimberly Kindy and Brady Dennis jumped into FSIS’s “what’s an adulterant” thicket with their story posted yesterday “Salmonella outbreaks expose weakness in USDA oversight.”  The article is worth the read.

Regarding FSIS allowing the meat industry – chicken, beef, etc., to ship us all food tainted with Salmonella, what happened to my client and reported by the post says it all:

The Agriculture Department inspector showed up at Rick Schiller’s home in November to collect potential evidence from his freezer: three pounds of chicken thighs, wrapped in plastic and stamped with a Foster Farms label.

Schiller, a 51-year-old California advertising executive, had recently returned from a five-day stay in the hospital prompted by severe vomiting, diarrhea and an infection that left his joints throbbing and his right leg purple and twice its normal size.

“I’ve been around the block. I’ve had some painful things,” he said. “But nothing like this.”

He takes drops for his right eye, which is constantly congested, red and itchy. On cold nights, he carries firewood in his left arm because his right still feels weak.

“I don’t know what the long-term prognosis is going to be,” he said. “I’m just thankful that I’m alive.”

Mr. Schiller was part of one of two 2013 Foster Farm chicken Salmonella outbreaks that sickened over 500, putting 40% of those in the hospital.  And, guess what?  No recalls because Salmonella is not considered an adulterant despite what it does to Foster Farm’s customers. But, what if FSIS and the industry considered Salmonella an adulterate – like common sense tells most of us?  As the post reports, there is a history of success with calling pathogens what they are:

The agency declared a zero-tolerance policy for the strain in many beef products after hundreds of Americans fell ill and four children died in 1993 after eating tainted hamburger meat from fast-food chain Jack in the Box.

As researchers eventually identified other types of E. coli that were particularly virulent and resistant to antibiotics, those likewise got labeled “adulterants” by the USDA, meaning the agency considers them dangerous substances that should be banned from commerce. A ban gives the USDA legal authority to order recalls, something it does not have with Salmonella.

The result: Over time, deaths and infections from E. coli have decreased significantly.

“It worked,” said Seattle lawyer Bill Marler, who specializes in food poisoning cases and is representing Schiller. “Ninety-five percent of my cases used to be E. coli. Today it is nearly zero. The industry will kick and scream, but they can fix it.”

Go figure.

I have received a few emails and calls about what to do for Thanksgiving when there appears to be an ongoing outbreak and recall.  FSIS has some of the best advice – see below:

The Thanksgiving meal is the largest many cooks prepare each year. Getting it just right, especially the turkey, brings a fair amount of pressure whether or not a host is experienced with roasting one. The United States Department of Agriculture’s (USDA) Food Safety and Inspection Service (FSIS) is issuing food safety recommendations on how to properly prepare a turkey to make sure yours is both delicious and safe to serve.

“Unsafe handling and undercooking of your turkey can lead to serious foodborne illness, explains Maria Malagon, Director of Food Safety Education with USDA FSIS. “Turkeys may contain Salmonella and Campylobacter, harmful pathogens that are only destroyed by properly preparing and cooking a turkey.”

Consumers should follow certain steps to reduce the risk of foodborne illness. According to Ms. Malagon, “those handling and cooking Thanksgiving meals should be aware of the resources available to them and the measures they can take to keep food safe.”

Steps to follow before cooking a turkey:

  • Read labels carefully. Temperature labels show if the bird is fresh or frozen. If you plan to serve a fresh turkey, purchase it no more than two days before Thanksgiving.
  • Purchase two thermometers: a refrigerator thermometer to ensure the turkey is stored at 40 °F or slightly below and a food thermometer to make sure the cooked turkey reaches a safe 165 °F.
  • Thaw the turkey by using the microwave, the cold water method, or the refrigerator. The refrigerator method is USDA recommended.

Steps to follow when cooking a turkey:

  • Wash hands with warm water and soap for 20 seconds before touching any food to prevent the spread of many types of infection and illness.
  • Do not wash the turkey. This only spreads pathogens onto kitchen surfaces. The only way to kill bacteria that causes foodborne illness is to fully cook the turkey.
  • Keep raw turkey separated from all other foods at all times.
  • Use separate cutting boards, plates, and utensils when handling raw turkey to avoid cross-contamination. Wash items that have touched raw meat with warm soap and water, or place them in a dishwasher.
  • Cook the turkey until it reaches 165 °F, as measured by a food thermometer. Check the turkey’s temperature by inserting the thermometer in three places: the thickest part of the breast, the innermost part of the thigh, and the innermost part of the wing.

Steps to follow when consuming leftover Thanksgiving food:

  • Refrigerate leftovers within two hours to prevent bacteria from growing on the food.
  • Store leftovers in shallow pans or containers to decrease cooling time. This prevents the food from spending too much time at unsafe temperatures (between 40 °F to 140 °F).
  • Do not store stuffing inside a leftover turkey. Remove the stuffing from the turkey, and refrigerate the stuffing and the meat separately.
  • Avoid consuming leftovers that have been left in the refrigerator for longer than 3 or 4 days (next Tuesday to be exact). Use the freezer to store leftovers for longer periods of time.
  • Keep leftovers in a cooler with ice or frozen gel packs if the food is traveling home with a guest who lives more than two hours away.

As of November 5, 2018, 164 people infected with the outbreak strain of Salmonella Reading have been reported from 35 states.

Tonight Jennie-O Turkey Store Sales, LLC, a Barron, Wis. establishment, is recalling approximately 91,388 pounds of raw ground turkey products that may be associated with an illness outbreak of Salmonella Reading, the U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) announced.

The raw ground turkey products items were produced on September 11, 2018. The following products are subject to recall:

  • 1-lb. packages of “Jennie-O GROUND TURKEY 93% LEAN | 7% FAT” with “Use by” dates of 10/01/2018 and 10/02/2018.
  • 1-lb. packages of “Jennie-O TACO SEASONED GROUND TURKEY” with a “Use by” date of 10/02/2018.
  • 1-lb. packages of “Jennie-O GROUND TURKEY 85% LEAN | 15% FAT” with a “Use by” date of 10/02/2018.
  • 1-lb. packages of “Jennie-O ITALIAN SEASONED GROUND TURKEY” with a “Use by” date of 10/02/2018.

The products subject to recall bear establishment number “P-190” inside the USDA mark of inspection. These items were shipped to retail locations nationwide.

FSIS, and its public health partners, including the Centers for Disease Control and Prevention (CDC) and the Arizona Department of Health Services, have been conducting traceback activities for a sample of Jennie-O brand ground turkey in an intact, unopened package from a case-patient’s home. The patient tested positive for Salmonella Reading and the sample from the ground turkey matches the outbreak strain.

Consumption of food contaminated with Salmonella can cause salmonellosis, one of the most common bacterial foodborne illnesses. The most common symptoms of salmonellosis are diarrhea, abdominal cramps, and fever within 12 to 72 hours after eating the contaminated product. The illness usually lasts 4 to 7 days. Most people recover without treatment. In some persons, however, the diarrhea may be so severe that the patient needs to be hospitalized. Older adults, infants, and persons with weakened immune systems are more likely to develop a severe illness. Individuals concerned about an illness should contact their health care provider.

FSIS is concerned that some product may be frozen and in consumers’ freezers. Consumers who have purchased these products are urged not to consume them.

Most ill in – Arizona 42, California 66, Colorado 50, Texas 13 and Utah 9.

According to the CDC, as of November 15, 2018, 246 people infected with the outbreak strain of Salmonella Newport have been reported from 25 states. Arizona 42, California 66, Colorado 50, Connecticut 1, Hawaii 4, Idaho 3, Iowa 1, Illinois 1, Indiana 1, Kansas 1, Kentucky 1, Massachusetts 1, Minnesota 2, Missouri 3, Montana 8, New, Mexico 9, Nevada 3, Ohio 9, Oklahoma 4, Oregon 1, South Dakota 6, Texas 13, Utah 9, Washington 3 and Wyoming 4.

Illnesses started on dates ranging from August 5, 2018 to October 16, 2018. Ill people range in age from less than one year to 88, with a median age of 38. Fifty-six percent are male. Of 168 people with information available, 59 (35%) have been hospitalized. No deaths have been reported.

Illnesses might not yet be reported due to the time it takes between when a person becomes ill and when the illness is reported. This takes an average of 2 to 4 weeks.

Whole genome sequencing analysis did not identify predicted antibiotic resistance in 180 Salmonella bacteria isolates from 176 ill people and four food samples.

State and local health departments continue to ask ill people questions about the foods they ate and other exposures in the week before they became ill. Of 137 people interviewed, 123 (90%) reported eating ground beef at home. This percentage is significantly higher than results from a survey of healthy people in which 40% of respondents reported eating any ground beef at home in the week before they were interviewed.

Epidemiologic, laboratory, and traceback evidence indicates that ground beef produced by JBS Tolleson, Inc. is a likely source of this outbreak.

On October 4, 2018, JBS Tolleson, Inc. recalled approximately 6.9 million pounds of beef products that may be contaminated with Salmonella Newport.

Officials in Arizona collected an unopened package of ground beef from an ill person’s home. The outbreak strain of Salmonella Newport was identified in the ground beef. Whole genome sequencing showed that the Salmonella identified in the ground beef was closely related genetically to the Salmonella in samples from ill people. The ground beef was one of the products recalled on October 4, 2018.

Conagra Brands is collaborating with health officials in connection with a positive finding of Salmonella in a retail sample of Duncan Hines Classic White cake mix that may be linked to a Salmonella outbreak that is currently being investigated by CDC and FDA. While it has not been definitively concluded that this product is linked to the outbreak and the investigation is still ongoing, Conagra has decided to voluntarily recall the specific Duncan Hines variety identified (Classic White) and three other varieties (Classic Butter Golden, Signature Confetti and Classic Yellow) made during the same time period out of an abundance of caution.

Recalled Duncan Hines cake mixes

Five occurrences of illnesses due to Salmonella are being researched by CDC and FDA as part of this investigation. Salmonella is an organism which can cause serious and sometimes fatal infections in young children, frail or elderly people, and others with weakened immune systems. Healthy persons infected with Salmonella often experience fever, diarrhea (which may be bloody), nausea, vomiting and abdominal pain. In rare circumstances, infection with Salmonella can result in the organism getting into the bloodstream and producing more severe illnesses such as arterial infections (i.e., infected aneurysms), endocarditis and arthritis.

Several of the individuals reported consuming a cake mix at some point prior to becoming ill, and some may have also consumed these products raw and not baked. Consumers are reminded not to consume any raw batter. Cake mixes and batter can be made with ingredients such as eggs or flour which can carry risks of bacteria that are rendered harmless by baking, frying or boiling. Consumers are reminded to wash their hands, work surfaces, and utensils thoroughly after contact with raw batter products, to follow baking instructions, and to never eat raw batter.

The products covered by this recall were distributed for retail sale in the U.S. and limited international exports; the specific product information is listed below.

Sixty-three more ill people from 14 states were added to this investigation since the last update on October 4, 2018. Six more states reported ill people: Hawaii, Kansas, New Mexico, Oklahoma, Texas, and Washington.

As of October 23, 2018, 120 people infected with the outbreak strain of Salmonella Newport have been reported from 22 states.  Thirty-three people have been hospitalized. No deaths have been reported.

Illnesses started on dates ranging from August 5, 2018 to September 28, 2018. Ill people range in age from less than one year to 88, with a median age of 42. Fifty-nine percent are male. Of 95 people with information available, 33 (35%) have been hospitalized. No deaths have been reported.

State and local health departments continue to ask ill people questions about the foods they ate and other exposures in the week before they became ill. Sixty-six (93%) of 71 people interviewed reported eating ground beef at home.

Epidemiologic and traceback evidence indicates that ground beef produced by JBS Tolleson, Inc. is a likely source of this outbreak. On October 4, 2018, JBS Tolleson, Inc. recalled approximately 6.5 million pounds of beef products that may be contaminated with Salmonella Newport.

As of October 4, 2018, 57 people infected with the outbreak strain of Salmonella Newport have been reported from 16 states. A list of the states and the number of cases in each can be found on the Map of Reported Cases page.

Illnesses started on dates ranging from August 5, 2018, to September 6, 2018. Ill people range in age from less than one year to 88, with a median age of 33. Sixty-one percent are male. Of 45 people with information available, 14 (31%) have been hospitalized. No deaths have been reported.

Illnesses might not yet be reported due to the time it takes between when a person becomes ill and when the illness is reported. This takes an average of 2 to 4 weeks. Please see the Timeline for Reporting Cases of Salmonella Infection for more details.

Epidemiologic and traceback evidence indicates that ground beef produced by JBS Tolleson, Inc. of Tolleson, Arizona, is a likely source of this outbreak.

In interviews, ill people answered questions about the foods they ate and other exposures in the week before they became ill. Thirty-six (92%) of 39 people interviewed reported eating ground beef at home. This percentage is significantly higher than results from a survey[PDF – 787 KB] of healthy people in which 40% of respondents reported eating any ground beef at home in the week before they were interviewed.  Also, several ill people ate ground beef at the same events or purchased ground beef at the same grocery store chains. When several unrelated ill people ate at the same event or shopped at the same store within several days of each other, it suggests that the contaminated food item was served or sold there.

USDA-FSIS and state partners traced the source of the ground beef eaten by ill people in this outbreak to JBS Tolleson, Inc. On October 4, 2018, JBS Tolleson, Inc. recalled approximately 6.5 million pounds of beef products that may be contaminated with Salmonella Newport.

I took the time to fully read FDA Warning Letter sent to Kerry, Inc., that manufactured Honey Smacks for Kellogg’s.  Here is the somewhat redacted beginning:

The United States Food & Drug Administration (FDA) inspected your Kerry, Inc. facility, located at 320 West Gridley Road, Gridley, IL 61744-8723 from June 14 to 29, 2018. The inspection was initiated as (b)(4) in three environmental swabs taken from your (b)(4) cereal (“cereal”) production rooms during FDA’s inspection. Further, FDA’s Whole Genome Sequencing (WGS) analysis of the three isolates of (b)(4).

Here are the highlights/lowlights of the Warning Letter:

Between September 29, 2016 and May 16, 2018, you repeatedly found Salmonella throughout your facility, including in cereal production rooms. During this time period, you had 81 positive Salmonella environmental samples and 32 positive Salmonella vector samples (samples taken in response to finding a positive on routine testing), including four Salmonella (b)(4) samples in the cereal coating room (Line (b)(4)) and one Salmonella (b)(4) sample in the cereal (b)(4) room (Line (b)(4)). Further, you had repeated findings of other Salmonella species in some production lines and rooms used for the manufacture of cereal. These repeated findings of Salmonella in your environment should have resulted in a reanalysis of your food safety plan as required by 21 CFR § 117.170(b)(4) and the identification of contamination of RTE cereal with environmental pathogens as a hazard requiring a preventive control (i.e., sanitation preventive control).

So, in the coming days, as I explain to clients how a company, like Kerry, can seem to ignore 113 positive Salmonella samples and continue to manufacture and ship the Sugar Smacks. The Kerry, the FDA and Kellogg’s will need to explain this to the general public.  My clients and a part of the public is included in:

Total Salmonella Illnesses: 135
Hospitalizations: 34
Last illness onset: 8/29/2018

Today the CDC reported that it, public health and regulatory officials in several states, and the U.S. Food and Drug Administration (FDA) are investigating a multistate outbreak of Salmonella Enteritidis infections.

As of September 7, 2018, 14 people infected with the outbreak strain of Salmonella Enteritidis have been reported from Alabama and Tennessee.

Illnesses started on dates ranging from July 10, 2018 to August 7, 2018 Ill people range in age from 1 year to 94, with a median age of 31. Fifty percent are female. Of 9 people with information available, 2 (22%) have been hospitalized. No deaths have been reported.

Epidemiologic and traceback evidence indicates that shell eggs from Gravel Ridge Farms in Cullman, Alabama are a likely source of the outbreak.

On September 8, 2018, Gravel Ridge Farms recalled cage-free large eggs because they might be contaminated with Salmonella Enteritidis bacteria. Recalled eggs were sold in grocery stores and to restaurants in Alabama, Georgia, and Tennessee. The FDA website has a list of the grocery stores where recalled eggs were sold. Consumers who have any Gravel Ridge Farms cage-free large eggs in their homes should not eat them. Return them to the store for a refund or throw them away. Restaurants and retailers should not serve or sell recalled Gravel Ridge Farms cage-free large eggs.