Cross-posted from Food Safety News.
As a lawyer who writes about food policy, one of my biggest frustrations is how reporters often get the law wrong, or omit critical pieces of information.
Last week, the latest massive food safety recall hit the news — 36 million pounds of ground turkey possibly tainted with salmonella, courtesy of meat giant Cargill.
While some media outlets were asking good questions about why it took the federal government so long to release such vital information (problems began in March), others reported that it’s currently legal to sell salmonella-tainted meat.
While the meat industry might like it that way, that’s not the entire story.
For example, the Associated Press reported incorrectly: “Because salmonella is so common in poultry, it is not illegal for meat to be tainted with the pathogen.” And The New York Times reported that “it is not illegal to sell meat contaminated with salmonella,” but didn’t go into any detail.
Over at Wired, outbreak expert Maryn McKenna wrote a very good article, “Resistant Salmonella: Deadly Yet Somehow Not Illegal,” that described the importance of the federal government declaring a bug such as salmonella an “adulterant” — the legal term for a substance that is unsafe, making the food illegal to sell: “Declaring an organism an adulterant doesn’t only make it illegal for food producers to distribute. It also imposes a duty on federal food-safety agencies to detect its presence in food so as to prevent its distribution.”
This explains why the meat industry hates the very idea of having its products declared adulterated, and why it’s done everything it can to stop the federal government from doing so. That part of the story the media left out.
What can’t USDA just follow the law?
Back in 1994, in the wake of the Jack in the Box outbreak, USDA showed some backbone by declaring the 0157:H7 strain of E. coli an adulterant, thus putting into motion mandatory testing, which has likely saved countless lives.
While that was certainly the right thing to do at the time, it now seems an unintended consequence was to set up the expectation that each bug must be declared an adulterant one at a time. But this cannot be what Congress intended when it drafted the inspection laws that USDA operates under. Indeed, the plain language of the two relevant statutes suggests otherwise.
Both the Federal Meat Inspection Act and the Poultry Products Inspection Act define meat or poultry as adulterated “if it bears or contains any poisonous or deleterious substance which may render it injurious to health.” Sounds pretty straightforward: salmonella a poisonous substance? Check. Salmonella injurious to health? Check again. But somehow in the tangled web of Washington D.C., clearly written laws are never that simple. Enter meat industry lawyers.
Legal maneuvering to block USDA
As Food Safety News publisher Bill Marler explained in his recent post, it’s important to know your legal history to give these outbreaks their proper context.
In 1999, the U.S. Department of Agriculture attempted to shut down a meat plant (Supreme Beef Processors) that failed numerous tests for salmonella in ground beef. Instead of cleaning up its act, Supreme Beef sued USDA, claiming the agency overstepped its legal authority. The appeals court, in a twisted decision, agreed with industry, finding that because the meat came into the plant already contaminated as “raw material,” USDA had no jurisdiction to declare it adulterated, thereby invalidating the agency’s performance standards.
As former head of food safety at USDA Richard Raymond told me earlier, this court decision, “set food safety back decades,” and helps explain why USDA to this day is so cautious when it comes to expanding its authority.
Cautious is what just got us at least one death and 78 illnesses in 26 states. Of course, these figures are much lower than the reality as most food-borne illnesses go unreported. The U.S. Centers for Disease Control and Prevention estimates that salmonella illnesses occur on the order of 30 times the number reported, which for this outbreak means potentially more than 2,200 cases.
Meanwhile, even before this outbreak, the most recent CDC data showed that while E. coli 0157 illnesses are in decline (remember, this is the only organism officially declared an adulterant by USDA – -no coincidence there), salmonella cases have actually increased. Last year’s incidence of salmonella infections was nearly three times the federal government’s health target — causing a whopping 1.2 million illnesses annually.
Making matters even worse, this Cargill brand of salmonella is showing resistance to antibiotics, demonstrating once again the insanity of routine treatment of farm animals with antibiotics. (For that angle see the Wired piece.)
How did the meat industry get so powerful that it can keep USDA from doing its job? Now, instead of preventing illnesses from occurring by requiring testing with teeth, we have USDA regulations that are so lax they allow almost half the samples tested at ground turkey plants to be contaminated with salmonella — a pretty easy standard to meet. And one that allowed this outbreak to occur.
Cargill’s pathetic response — consumer education
So what does Cargill have to say for itself? From a press release: “It is regrettable that people may have become ill from eating one of our ground turkey products and, for anyone who did, we are truly sorry.”
Sounds like defense-lawyer speak. Using the passive voice, “it is regrettable,” but not taking responsibility with the more direct “we regret.” And “may have become ill” — to be sure not to admit any fault despite ample evidence it was their meat. Worst of all, the dismissive, “for anyone who did, we are truly sorry,” is offensive to families whose loved ones have real names, and aren’t just “anyone.”
But wait, there’s more. Cargill also helpfully tells us:
We all need to remember bacteria is everywhere, and we must properly handle and prepare fresh foods wherever they are served. USDA food safety gu
idelines for safely handling and preparing food can be found on the USDA Internet website and serve as helpful food safety reminders.
Saying “bacteria is everywhere” is the meat industry’s usual way to deflect responsibility and place the entire burden on the consumer. (Ironically, most of the recalled products [PDF] were labeled “All Natural,” showing how meaningless that term is.)
Fittingly, the industry that is busy leading consumers to USDA’s website is also the one we have to thank for reducing the agency to little more than a lame information resource.
Indeed, at the end of its own press release on the recall, USDA pointed consumers to “Ask Karen” — the agency’s “virtual representative” — an automated response system available 24/7.
I am sure Karen’s wisdom is reassuring to the hundreds and perhaps thousands of victims of this latest colossal food safety regulatory failure.