Today the USDA Food Safety and Inspection Service (FSIS) announced a recall of ground beef products due to possible Salmonella contamination. According to the press release, "Beef Packers, Inc. [BPI]...is recalling approximately 825,769 pounds of ground beef products that may be linked to an outbreak of salmonellosis." The link between confirmed Salmonella infections and consumption of BPI ground beef products was first discovered by the Colorado Department of Public Health, and a subsequent traceback investigation conducted by FSIS. See Recall Notice,http://www.fsis.usda.gov/...
This recall was, for me, surprising news—and also inexplicable given the USDA’s long-held position that Salmonella is not an adulterant per se in raw meat, and also given the meat industry’s prior success in getting a court to invalidate Salmonella performance standards that the USDA had tried to implement as part of its 1996 Pathogen Reduction, HACCP regulations.
So when I read about this recall, my first thought was to wonder why BPI agreed to the recall. (Remember: FSIS lacks the statutory authority to compel a recall, and so all recalls are more voluntary than not.) And my second thought was: I wonder if the meat industry is going to sue the USDA to try and prevent the Agency from seeking a second recall in the future based on possible Salmonella contamination.
I obviously cannot answer either of these questions, since I do not have personal knowledge of BPI’s thought processes, and I cannot predict the future. Nonetheless, I can provide some useful background information about why this particular recall is so surprising, and so inexplicable. (And, by the way, by my use of the term "inexplicable" I mean that it is nearly impossible for me to explain how FSIS could take this action in light of 25 years worth of policy and court decisions that would appear to suggest that the Agency has no authority to do what it did. The recall is certainly NOT inexplicable from a public health and safety perspective, which is certainly ironic given the fact that the FSIS has the term "safety" in its name, and doing something in favor of safety should not be inexplicable.)
And so, some history: In 1971 the American Public Health Association (APHA) sued the USDA on the grounds that its mark of inspection ("USDA inspected for wholesomeness") was misleading because, even though the USDA had put its stamp of approval on meat—literally—it did not, for example, test the meat for bacterial. Moreover, APHA argued that raw meat was commonly contaminated with Salmonella, which posed a risk to the public health. According to APHA, the USDA should instead require that meat carry both a warning label and cooking instructions. The USDA opposed the APHA, helped ably (and predictably) by the meat industry. As quoted by Marion Nestle in her great book, Safe Food, the USDA’s position was that, given how many foods are contaminated with Salmonella, "it would be unjustified to single out the meat industry and ask that the [USDA] require it to identify its raw products as being hazardous to health." Nestle at 66. (Note to Reader: No, I am not making this up.) Thus, instead of testing meat for the presence of pathogens, and requiring a warning label and cooking instructions on meat products, the USDA instead asserted that consumers should be the ones responsible for preventing illness and injury related to contaminated meat products, and that a campaign of consumer education would suffice to address the problem of unsafe meat.
In 1974, the DC Circuit Court of Appeals upheld the position of the USDA and the meat industry, doing so in a way that was as nonsensical as it was sexist. The court stated that: "The presence of salmonellae on meat does not constitute adulteration within this definition [of ‘adulerated,’ provided in 21 U.S.C. § 601 (m)]....As it said in its letter of August 18, 1971 ‘the American consumer knows that raw meat and poultry are not sterile and, if handled improperly, perhaps could cause illness." In other words, American housewives and cooks normally are not ignorant or stupid and their methods of preparing and cooking of food do not ordinarily result in salmonellosis.’" APHA v. Butz, 511 F.2d 331, 334 (1974). Even more disturbing, however, was the Court’s holding that USDA inspection of meat did not even encompass the detection (or the prevention) of bacterial contamination. Specifically, the court stated:
In construing both the Wholesome Meat Act and the Wholesome Poultry Products Act we are mindful that the presence of salmonellae can be detected only by microscopic examination. No one contends that Congress meant that inspections should include such examinations. We think it follows therefore that Congress did not intend the prescribed official legends to import a finding that meat and poultry products were free from salmonellae.
Id. at 335. Criticizing this reasoning (or the lack thereof), Dr. Nestle correctly points out that the Court notably failed to "consider what Congress might have done had its members known about microbial contaminated in 1906 [when the Wholesome Meat Act was enacted]." Nestle at 66. Such a failure is akin to U.S. Supreme Court ruling that the First Amendment was not intended to apply to the Internet because none of the Founding Fathers meant speech to include that transmitted electronically.
The result of the Butz decision was that the USDA felt vindicated in its position that pathogens are inherent to raw meat, and that the Federal Meat Inspection had granted the Agency no power to regulate (or prevent) such contamination. This remained the position of the USDA and the meat industry until 1994 when, in an act of both common-sense and bravado, Michael Taylor, then FSIS Administrator, announced that E. coli O157:H7 would be deemed an adulterant in raw ground beef, and he did so in a speech to the American Meat Institute (AMI) at its annual convention. I don’t expect that he got much in the way of applause. But he soon did get sued, at least the USDA did, by the AMI, and a host of other food industry trade associations. Twice.
The first lawsuit prevented the USDA from requiring safe-handling instructions, and thus was a success for the meat industry’s attempt to hold everyone but itself responsible for the presence of pathogens in meat. (For a relatively brief, but more detailed explication of Mike Taylor’s moves, and the resulting uproar and litigation, see Nestle at 80-84.) But the second lawsuit, surprisingly enough, upheld the USDA’s authority to conduct a sampling plan intended to determine the prevalence of E. coli O157:H7 in ground beef. See Texas Food Industry et al. v. Espy, 870 F. Supp. 143 (W.D. Tex. 1994). The court also upheld the USDA’s decision to treat E. coli O157:H7 as an adulterant, treating the decision as an "interpretive rule." As the Court stated: "The FMIA does not require the USDA to engage in substantive rulemaking as a predicate to considering a particular substance an adulterant." Id. at 147. Nonetheless, the decision to treat E. coli O157:H7 as an adulterant still had to overcome the barrier imposed by the Butz decision. The Agency managed this, unfortunately, by embracing again the notion that Salmonella was not an adulterant because "proper cooking" makes meat contaminated with this pathogen safe to eat. Accepting this distinction, the court thus held that E. coli O157:H7 could be deemed an adulterant under the FMIA because, "unlike other pathogens, it is not ‘proper’ cooking but ‘thorough cooking’ that is necessary to protect consumers from E. coli." Id. at 148-49. (If this sort of reasoning reminds you of the Red Queen in Through the Looking Glass, you are most definitely not alone in thinking that.)
Over the next 15 years, the USDA did not change its tune with regard to any other pathogens, especially Salmonella. Indeed, in 1999, when FSIS announced the inane policy-distinction between E. coli O157:H7 in "intact" meat versus "non-intact" meat, the Agency continued to focus on how a given meat was "customarily cooked" as a chief determinant of whether it must be treated as an adulterant. Thus, for example, because it decided that "intact steaks and roasts are customarily cooked in a manner that ensures that these products are not contaminated with E. coli O157:H7," there was no need to treat this deadly pathogen as an adulterant on intact cuts of meat. Of course, this FSIS policy is also one that appears to have been silently jettisoned by the Agency of late. (For more on this, see my prior post "More Doubletalk from the USDA on E. coli and Swift Meat Recall," at http://www.foodpoisonjournal.com/...)
The Agency’s position on Salmonella and meat came back to haunt it in a big way when FSIS tried to shut down Supreme Beef Processors, Inc. for repeatedly failing Salmonella performance standards that, according to the Agency, was proof that the ground beef being made there was being processed under "insanitary conditions." Supreme Beef sued the USDA and not only won an injunction, but it succeeded in having the Salmonella regulations struck down as being "beyond the authority granted the Secretary [of the USDA] by the Federal Meat Inspection Act." Supreme Beef v. USDA, 275 F.3d 432, 434 (5th Cir. 2001). Explaining its holding, the Court wrote:
The difficulty in this case arises, in part, because Salmonella, present in a substantial proportion of meat and poultry products, is not an adulterant per se, 21 meaning its presence does not require the USDA to refuse to stamp such meat "inspected and passed." 22 This is because normal cooking practices for meat and poultry destroy the Salmonella organism, 23 and therefore the presence of Salmonella in meat products does not render them "injurious to health" 24 for purposes of § 601(m)(1). Salmonella-infected beef is thus routinely labeled "inspected and passed" by USDA inspectors and is legal to sell to the consumer.
Supreme Beef, 275 F.2d at 438-39. And, of course, not surprisingly, the court in this case was quick to cite the decision in APHA v. Butz, and to note that even now the "USDA agrees that Salmonella is not an adulterant per se." Id. at 439 n. 21.
In my view the Supreme Beef decision is poorly reasoned and ill-informed. (For example, could not someone at the Court figure out that it is impossible for meat to be "infected" with Salmonella, and the proper term here is "contaminated"?) But the real lesson of Supreme Beef is that the USDA was, and continues to be, an Agency that is unable to decide whose side it is on. Sometimes it puts on its public safety hat, and sometimes—actually, most often—it puts on its pro-meat industry hat. And, unfortunately, these roles are too often contradictory. That is why USDA policy when it comes to meat safety is also too often contradictory. Furthermore, it is time for the Agency to once and for all jettison cooking, proper or improper, thorough or not, as the primary determinant for deciding whether a pathogen is "injurious to health" and thus an adulterant within the meaning of the FMIA. Cooking mistakes, including cross-contamination are so ubiquitous, and largely unstudied by scientific means, that notions of what a non-ignorant "American housewives" do in the kitchen are an absurd basis for making policy decisions.
So how does the USDA square today’s recall of Salmonella-contaminated meat with the last 25 years of Agency policy on meat adulteration standards? It cannot. But let us hope that if the meat industry decides to sue to scuttle what appears to be a new and better policy on Salmonella in meat that this time the USDA decides to stand with the public on the side of meat safety.