Safe Food: The Politics of Food Safety (19 page)

By mid-1996, the HACCP schedule was in place. The
E. coli
O157:H7
testing of ground meat proposed in 1994 was due to start in January 1997. Large companies were to install Pathogen Reduction: HACCP plans by January 1998, and smaller companies by January 2000. From then on, all meat and poultry companies were to follow such plans and test for generic
E. coli
, endure USDA testing of ground meat for
E. coli
O157:H7 and spot-checking for
Salmonella
, and meet performance standards for pathogen reduction. Food safety would depend on how carefully they designed and implemented the plans, and how well the USDA enforced them. For most foods regulated by the FDA, however, HACCP remained voluntary. As we will now see, events soon revealed serious gaps in the regulations, and indicated additional needs: for extension of HACCP rules to all food products at all stages of production, for federal authority to recall contaminated products, and for ways of countering the culture of entrenched resistance to government oversight so prevalent in the meat industry.

In October 1996, an outbreak of
E. coli
O157:H7 made it clear that
all
foods needed to be produced under Pathogen Reduction: HACCP because lapses could be catastrophic, not only for the victims, but also—temporarily, if not permanently—for the companies responsible for them. This outbreak put about 70 people in hospitals, made 14 children dreadfully ill, and resulted in the death of one child.
²³

The unexpected feature of the outbreak was its source: apple juice. Investigators used genetic techniques and diet histories to trace the infections to freshly bottled apple juice produced by Odwalla, a California company specializing in “natural” foods. The company included windfall apples, those that had fallen off the trees onto the ground, among the lots pressed to make the juice, and investigators suspected that the fallen apples must have come in contact with animal manure containing
E. coli
O157:H7. Although apple juice is naturally acidic, its acids are not strong enough to kill this hardy microbe. Odwalla did not pasteurize its juices; its managers believed that temperatures high enough to kill most bacteria would alter the flavor of the juice and reduce vitamin content (which pasteurization does, but only slightly). The managers also believed—gravely in error—that the acidity of the solutions used to wash the apples and of the juice itself would kill harmful bacteria.
²⁴

Investigators made other disheartening observations. Just before the
outbreak, the company had relaxed its standards for accepting blemished fruit. It overruled warnings from its own in-house inspector not to use the batch of apples responsible for the outbreak without special precautions. At the time, Odwalla was expanding rapidly and having difficulty meeting production demands. Its stock price was declining. These pressures also contributed to the company’s failure to follow its own established procedures.
²⁵

To their great credit, Odwalla officials quickly took full responsibility for the failure of their safety systems and issued a recall. They paid medical expenses for the people who had become ill and an indemnity of about $250,000 to the family that had lost a child. Eventually, they settled more than a dozen civil suits at a cost of more than $12 million—just for the families of the five children who had been most injured. They also paid in other ways. In the first criminal conviction recorded in a large-scale outbreak of foodborne illness, Odwalla officials pleaded guilty to violating federal food safety laws, paid a $1.5 million fine, and were placed on probation for five years.
²⁶

Odwalla’s corporate policy includes an explicit statement of social responsibility to employees and customers. Its officials immediately admitted wrongdoing and wrote checks. They also took action to improve production practices. Odwalla now flash-pasteurizes its juices (high temperature, short time), uses a HACCP plan, and actively promotes its quality-control efforts. These actions restored consumer confidence. By 1999, sales had almost returned to former levels, and by 2001 the company was comfortably profitable. The actions also restored investor confidence. In 2000, Odwalla merged with Fresh Samantha, another fresh juice company. A year later, ironically, this producer of fresh, “healthy” juices was purchased by Coca-Cola, the world’s largest soft drink company, in a deal said to be worth $181 million.
²⁷

Among the many lessons of the Odwalla outbreak is the vulnerability of the nation’s supply of fruit and vegetables to cross-contamination from infected animals, pointing even more forcefully to the need to prevent foodborne illness at its source. The Odwalla incident induced the FDA to demand a warning label on unpasteurized juices. Manufacturers would have to prove that their production practices achieved a “5-log” (100,000-fold) reduction in the number of dangerous contaminants in their juice products. Otherwise, juice labels would have to display this statement: “WARNING: This product has not been pasteurized and, therefore, may contain harmful bacteria that can cause serious illness in children, the elderly, and persons with weakened immune systems.”
²⁸

Makers of unpasteurized juices, however, objected to the warning requirement. They argued that health risks posed by apple cider are too low to need a warning label: such labels are discriminatory (the FDA requires no such warnings for fruit, eggs, melons, or seafood); and the statement is frightening, confusing, and misleading. As the chairman of Odwalla explained: “The regulation issue is a ‘very sensitive’ one for the natural-food industry. Fresh food, and especially fresh produce, is very hard to regulate.”
²⁹
Despite industry complaints, the FDA required the warning statement, and also issued HACCP regulations for domestic and imported juices in 2001.
³⁰

The Odwalla outbreak provided convincing proof that unpasteurized and uncooked “natural” foods could contain the same pathogens as meat and poultry if they had the bad luck to come in contact with contaminated animal manure or meat. For the industry, the lessons were mixed. If food companies failed to reduce pathogens, their liability costs could be substantial—in money, time, legal penalties, and reputation—but these problems could be temporary and soon overcome. From a regulatory perspective, the Odwalla outbreak illustrated the universal need for Pathogen Reduction: HACCP, but an additional lesson was that the FDA was only likely to require such plans for the foods it regulated when confronted with disaster.

The Odwalla outbreak also had implications for the livestock industry. Although beef industry officials were relieved to learn that fruit and vegetables could also be sources of
E. coli
O157:H7, meat products continued to cause outbreaks and unfavorable press. The USDA responded to the Odwalla outbreak by extending its generic
E. coli
testing requirements to include meat from goats, ducks, geese, and other animals but, in accordance with provisions of the old laws governing such matters, only after the animals had arrived at slaughterhouses.
³¹

Limitations on USDA authority became even more evident as a result of yet another
E. coli
O157:H7 outbreak, this one beginning in July 1997 as a case of bloody diarrhea in a supermarket employee who brought ground meat home from his store. The employee remembered eating a lightly cooked hamburger from a lot that was still stored in his freezer. Investigators quickly traced other patties from that lot to a Nebraska plant owned by Hudson Foods. Eventually, 16 people became ill as a result of eating meat processed at the Hudson plant.
³²

At first, Hudson Foods officials told investigators that the contaminated lot included 3,400 pounds of meat that had been “reworked” into 20,000 pounds of hamburger the next day. They explained that their usual practice was to mix any meat left over from one day’s production into the next day’s batch of hamburger. This meant that if leftover meat contained harmful bacteria, the contaminated meat could get mixed into the next day’s production. Plant officials neglected to tell USDA investigators that meat continued to be reworked from one day to the next, meaning that once a contaminated lot of meat got into the system, it would be mixed sequentially into all subsequent lots. Thus, the plant could not guarantee that
any
subsequent lot would be free of harmful bacteria. Because the Meat Inspection Act does not authorize the USDA to recall contaminated products, the department’s only recourse was to withdraw inspectors, thereby forcing the plant to close. Faced with this possibility, Hudson began a “voluntary” recall that eventually included 25 million pounds of potentially contaminated meat.
³³

Meat industry officials complained that the forced recall was excessive in relation to the actual problem, as none of the 16 victims had died. Instead, they thought the USDA should pay more attention to practices in slaughterhouses and retail stores. A Nebraska Chamber of Commerce official defended Hudson Foods: “There’s always somebody out there trying to downgrade the meat industry. . . . I’m sure the people—veggies, is that what they call them—I bet they’re rejoicing right now.”
³⁴

At the end of August, Burger King placed full-page ads in major newspapers announcing that its franchises would no longer use Hudson’s meat: “Although there was absolutely no indication that any of the beef Hudson Foods supplied to us was unsafe, we issued the recall anyway, because the trust and confidence you need to have in us every time you visit one of our restaurants is more important than any loss of business.” Because Burger King flame-broils its hamburgers to temperatures much higher than those needed to kill bacteria, the business press criticized its action as “impossible to explain in scientific terms. . . . The company’s fulminations about
E. coli
are thus pure public relations.”
³⁵

Hudson’s bad luck was to receive a shipment of contaminated meat from one of its seven supplier slaughterhouses. Any other processing plant could have had the same problem, as
all
of them typically rework leftover ground meat or poultry into the next day’s production, and do so day after day. On this basis, an American Meat Institute official blamed the USDA for the problem because its on-site inspectors did not challenge the reworking: “To my knowledge . . . the USDA doesn’t consider
that to be an unsafe practice or against any regulations.”
³⁶
This critique may have been accurate under the circumstances, but it did not speak to the need to prevent contamination at an earlier stage of production or to give USDA the authority to recall contaminated products.

In September, the USDA reported that hamburger meat from the Hudson plant was contaminated on more dates than previously thought but the company had failed to disclose that information: “The department was originally told by Hudson that only 20,000 pounds of meat was involved and had to find out from other sources that far more was at stake.” For misleading the USDA, a federal grand jury indicted Hudson and two of its employees, a decision considered unfair by Hudson Foods officials. The former chairman of the company told a reporter: “The overreaction of the U.S.D.A. in Washington in this incident destroyed my company’s good name.” Late in 1999, a federal jury in Nebraska agreed, and found Hudson officials
not guilty
of lying to government inspectors. Hudson closed the plant after the outbreak, but it was soon bought by Tyson Foods and reopened. As noted earlier, Tyson Foods was then the largest producer of chickens in the world and was soon to become the largest producer of beef as well. Of the 25 million pounds of hamburger recalled, 10 million pounds were recovered, an amount significantly
higher
than for most recalls. For example, a late 1990s recall of
E. coli
O157:H7-contaminated hamburger from Beef America recovered only 400 of 443,656 pounds. Furthermore, the average percentage of product recovered in recalls fell from 40% in 1997 to 17% in 2000.
³⁷

In 2002, ConAgra “voluntarily” recalled 19 million pounds of ground beef after 19 people became ill with
E. coli
O157:H7 infections. The company produced the meat over a period of three months at a plant cited frequently for violations of safety codes. This incident provided further evidence that the USDA enforcement program was not working. A leaked GAO investigation of such matters was said to conclude that the USDA was taking more than a year (average: 566 days) to enforce standards in plants with high rates of
Salmonella
contamination, and some members of Congress complained about the USDA’s “sluggish” pace of investigating deadly outbreaks.
³⁸

For food safety advocates, the contamination at the Hudson and ConAgra plants, and the USDA’s inability to recall unsafe meat, illustrated the “linked failure of federal food safety programs and mismanagement by [the] food industry.”
³⁹
For USDA officials, it provided further evidence of the need for recall authority. As one official told a reporter during the Hudson controversy:

This enforcement gap gets downright absurd. . . . We can use fines to protect farmers and ranchers from unfair trading practices. Abuse a circus elephant, sell a cat without a license, market a potato that’s too small, keep bad records on watermelons, fail to report to the union committee—fine, fine, fine, fine, fine. Yet if you produce unsafe food—the only one of these items that puts people’s lives at stake—there is no civil penalty.
⁴⁰

On the other hand, the meat industry interpreted the Hudson recall as a further example of excessively intrusive federal rules: “The statutory authority sought by the USDA is not necessary and would be contrary to sound public policy. . . . Frankly, to take away a company’s limited right to discuss with the agency the scope and depth of its recall would likely lead to less co-ordination and more litigation.”
¹⁹
And Rosemary Mucklow of the National Meat Association charged that the ConAgra recall “may be an effort that is not justified” because the meat had already been in circulation for three months.
³⁸
For the industry, the Hudson recall provided another opportunity for finger-pointing. Retailers such as Burger King blamed Hudson, while Hudson blamed the slaughterhouses and USDA inspectors. Everyone blamed the unregulated cattlemen, and not without reason. Investigations of cattle-rearing practices found
E. coli
O157:H7 in feeding troughs, where the bacteria can survive in sediments for four months or more; in one instance, 40% of the troughs had not been cleaned in a year.
⁴¹
The bacteria also survive in manure for months, and many animals are found to be shedding them at the time of slaughter.
⁴²
Despite these and other safety concerns, nobody in Congress or the administration wants to take on the cattlemen, leaving food safety advocates in the USDA without much in the way of political support for controlling pathogens on farms and feedlots, let alone in slaughterhouses, packing plants, or grocery stores.