Safe Food: The Politics of Food Safety (20 page)

Chapter 2
described how, as a result of the Jack in the Box outbreak, the USDA identified ground beef contaminated with
E. coli
O157:H7 as a public health risk, declared such beef “adulterated” under the terms of the Meat Inspection Act, and required the industry to reprocess or destroy it. It also described how the meat industry went to court to oppose—unsuccessfully, in that case—the USDA’s 1994 imposition of a sampling and testing program for just this one pathogen (
E. coli
O157:H7) in just this one product (ground meat). Five years later, the USDA said it wanted to extend the definition of “adulterated” beyond just ground beef to include
other forms of “nonintact” meat—meat that has been pounded, tenderized, or injected. Such procedures can introduce bacteria into the interior of the meat where they are unlikely to be cooked to as high a temperature as bacteria that contaminate outer surfaces. The USDA, however, continued to restrict its definition of “adulterated” to
E. coli
O157:H7. It excluded
Listeria
or
Salmonella
from this definition because these organisms are more easily killed during cooking. The department was not concerned about intact meat such as steak or chops because cooking or searing raises their surface temperatures high enough to kill bacteria.
⁴³
Although USDA officials said they would not test nonintact meat other than ground beef and veal, industry officials did not believe them and reacted with “shock, disbelief, and anger,” viewing the new policy as nothing more than an attempt to divert public attention from current political concerns. According to Rosemary Mucklow, who by then had become executive director of the National Meat Association: “This will be an extraordinarily confusing issue. . . . This is just another step in this administration’s obfuscation of the impeachment activities.”
⁴⁴

Ms. Mucklow’s connection of
E. coli
O157:H7 testing to the then-current scandal involving President Clinton and a young White House intern, Monica Lewinsky, might seem a stretch for any group less relentless and self-serving than the beef industry. USDA Secretary Dan Glickman said he was “deeply and personally offended by this statement. USDA’s efforts to improve food safety are grounded in science and a steadfast commitment to protecting public health.”
⁴⁵
The industry, however, continued to oppose the USDA’s plans to test for
E. coli
O157:H7. Indeed, some thought that extending the testing requirements might backfire because companies would have an even stronger disincentive to do their own testing: “Given the serious financial ramifications of a positive test—the product would have to be recalled and then cooked or destroyed—it could be in the industry’s best interest not to know.”
³⁸

Over the next year or so, the USDA opened the nonintact beef policy for public comment, held a public meeting, issued a position paper on
E. coli
O157:H7 testing, and dealt with opposing opinions in
Federal Register
notices. The meat industry’s position on pathogen testing remained fixed: microbes are inherent in raw meat, testing would put companies out of business, and testing is ineffective. Instead, meat officials argued, the USDA should gather more data on risk before taking action, and consumers and farmers should take more responsibility for food safety. Furthermore, they said, the policy discriminates against beef because pork and poultry are similarly contaminated.
⁴⁶
Overall, the reactions to this
proposal demonstrated that the beef industry was determined to oppose any expansion of pathogen testing, no matter how limited or beneficial to the public.

As the consequences of Pathogen Reduction: HACCP for recall or destruction of contaminated products became increasingly evident, the beef industry went to court to force the USDA to adhere to the intent of the 1906 Meat Inspection Act: protect the public against sick animals, not bacteria. Two cases in the late 1990s illustrate the degree to which the industry would invoke that law, leaving to consumers the responsibility for avoiding bacterial contaminants.

The lawsuit brought by Supreme Beef Processors in Dallas illustrates how the industry used the courts to block the USDA’s imposition of
Salmonella
testing. When HACCP regulations for small meat-processing firms went into effect in 1999, companies had to meet this performance standard: testing must find no more than 7.5% of sample products to contain (give “positive” results for)
Salmonella
. During that first year, 20% or so of Supreme Beef’s ground beef tested positive on two occasions. When a third round of testing also showed that the company’s meat exceeded the 7.5% standard, the USDA withdrew its inspectors and forced the plant to close. The USDA must have been especially concerned because this company supplied nearly half the ground beef distributed to schools participating in the national school lunch program. Supreme Beef immediately sued the USDA. The department, it charged, had acted in an “arbitrary and capricious” manner because it did not have legal authority to regulate
Salmonella
. The suit also charged that because cooking kills
Salmonella
, these bacteria do not threaten public safety and cannot be considered adulterants.

Four meat trade associations supported the suit for the usual finger-pointing reasons. Rosemary Mucklow of the National Meat Association told reporters: “Supreme Beef . . . is experiencing the consequences of a requirement that we think has some serious problems. It would have been better if U.S.D.A. had tried to work it out” and “Poor sanitation at ground-beef plants is seldom to blame for salmonella contamination. . . .
It would be more effective to enforce performance standards at packing plants or feedlots and farms.”
⁴⁷
The USDA, as Ms. Mucklow surely must have known, has no enforcement authority over feedlots and farms.

At this point, a U.S. District Court judge in Dallas, A. Joe Fish, ruled that the USDA did not have the authority to close the Supreme Beef plant since doing so could irreparably harm the company. Instead, he issued an injunction against the USDA, forcing its inspectors to continue stamping the meat “USDA Inspected and Passed.” The USDA dealt with this frustrating setback in its ability to enforce Pathogen Reduction: HACCP by canceling the department’s school lunch contract with Supreme Beef.
⁴⁸

Furthermore, the USDA continued to test Supreme Beef’s ground meat for
E. coli
O157:H7. Just two weeks after the Dallas court decision, USDA tests identified this pathogen in one sample of ground beef and again forced a “voluntary” recall, this time of 180,000 pounds. To the USDA, this finding proved that Supreme Beef’s safety procedures were faulty and its lawsuit unjustified. The company, however, maintained that this recall was unrelated to the previous one because
Salmonella
“has nothing to do with the safety of the meat we produce.”
⁴⁹
In May 2000, the same Dallas judge (A. Joe Fish) who had supported Supreme Beef’s position on
Salmonella
testing, extended his ruling to other plants in northern Texas; they also would not need to test for
Salmonella
. The
New York Times
found this ruling startling:

Under the judge’s strange reasoning, a plant that produces Supreme Beef’s dismal salmonella test results might still be perfectly clean. The judge was troubled by the idea of penalizing a plant when the meat may already have been contaminated when it arrived there. . . . As a matter of logic and science, the excessive presence of dangerous salmonella in any meat turned out by a plant should be deemed evidence that conditions at the plant are unsanitary.
⁵⁰

In the months following those decisions, Supreme Beef again failed its
Salmonella
tests but could not be forced to close because of the court ruling. The president of the company, Steve Spiritas, characterized USDA’s actions as an “all-out assault by the federal government on our small business.” He charged USDA with “manipulating the testing results, suppressing critical information, . . . [and] using bullying tactics to support a position that a federal court has told it has no legal, logical, or scientific basis.”
⁵¹
He also pointed out that meat supplied to Supreme Beef bore the stamp “USDA Inspected and Passed,” meaning that USDA had certified its safety.

Some legislators attempted to introduce bills granting USDA the authority to impose limits on
Salmonella
, but these bills failed to pass. The USDA tried other approaches; it cited Supreme Beef for violating sanitation standards and initiated
daily
testing of ground meat for
E. coli
O157:H7. These actions caused Mr. Spiritas to complain that his small business was being held to unreasonable, discriminatory, and retaliatory standards. Eventually, he gave up, declared bankruptcy, and threatened to sue the USDA for its harassing tactics. The USDA tried to have the case declared moot because of the bankruptcy, but the courts denied this request. Supreme Beef, with the support of the National Meat Association and other meat industry groups, continued to pursue the case, as so much was at stake. If the USDA could shut down plants producing meat contaminated with
Salmonella
, as much as
half
the meat supply would be considered adulterated and subject to recall or destruction.
⁵²

In December 2001, a three-judge federal appeals court in New Orleans ruled that the USDA’s
Salmonella
performance standards conflicted with the “plain language” of the 1906 law, which defined adulterated meat as “prepared, packed, or held under insanitary [
sic
] conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health.” The court referred to the 1974 decision in
APHA
v.
Butz
to argue that “
Salmonella
, present in a substantial proportion of meat and poultry products, is not an adulterant
per se
. . . . This is because normal cooking practices for meat and poultry destroy the
Salmonella
organism.”
⁵³
This ruling essentially overturned the pathogen reduction portion of HACCP. The beef industry welcomed the decision: “Using a relatively infrequently encountered pathogen such as salmonella as an indicator organism that can objectively measure a processing plant’s performance is not scientifically warranted. . . . Supreme’s brave lawsuit and the court’s ruling against imposition of these flawed standards stands as a shining moment for the meat industry, a momentary triumph of reason over regulation.”
⁵⁴

Less self-interested observers, however, did not see it that way. The
New York Times
called the court’s decision “misguided” and its logic “seriously flawed,” saying, “It ignores both the government’s broad discretion under the law to police unsanitary conditions in meat plants and the serious danger, unresolved by proper cooking, that arises when contaminated raw meat and poultry come in contact with cutting boards, utensils and other foods, such as fruits and vegetables.”
⁵⁵

The USDA’s response to the decision was to announce that it planned to

continue to conduct microbial testing to ensure food safety. The court’s ruling eliminated our ability to take enforcement action based solely on salmonella standards. The ruling doesn’t prevent the department from using salmonella standards to verify a plant’s ability to address food safety hazards. Salmonella standards alert us that there may be a problem in a plant and that the whole plant needs to be examined, not just one piece of meat.
⁵⁶

Food safety–conscious senators and representatives introduced bills to give the USDA greater authority to regulate meat safety but, as noted by the
New York Times
, “These proposals have so far attracted no Republican co-sponsors. Even more troubling, the noises from the Agriculture Department suggest that the administration is more interested in satisfying industry’s wish for lax regulation than in restoring the government’s power to shut unsanitary plants. The Supreme Beef Processors decision has left a hole in the inspection system, putting consumers everywhere at increased risk.”
⁵⁷

Lending further support to this charge, the USDA announced that it would not appeal the ruling, enforce
Salmonella
standards, or ask Congress to intervene. Under the administration of President George W. Bush, USDA officials appeared to be withdrawing support of HACCP, despite its evident effectiveness. Instead, the USDA would continue to test for
Salmonella
, but would use the results only as a basis for further inspections—not for closing plants or recalling products. These decisions “disappointed consumer advocates and [drew] praise from industry.”
⁵⁸
In response, Senator Tom Harkin (Dem-IA) introduced legislation that in effect would
order
USDA to follow its own rules for microbial contaminants. He said that he hoped the USDA had “not ceded the fight for safer food to the meat and poultry industry. . . . We must make it clear, once and for all, that the U.S.D.A. has the authority to set and enforce standards to reduce pathogens.”
⁵⁹
Whatever the outcome of such cases or legislation, they thoroughly expose the politics of food safety and the glaring gaps in federal regulatory authority.

In June 1997, the USDA asked for comments on how the department might develop new ways of inspecting meat in slaughterhouses and processing plants “in a HACCP environment.” Inspectors were still examining every carcass, but the department thought they would be better employed checking for fecal contamination, sampling for microbial
pathogens, and monitoring meat that left the plant. The department proposed to try out a HACCP-Based Inspection Models Project (HIMP) that would substitute such activities for examination of every meat and poultry carcass coming off the production line.
⁶⁰
This time, the objections came from federal meat and poultry inspectors. The inspectors, their union (the American Federation of Government Employees), and a consumer advocacy group, the Community Nutrition Institute (CNI), sued the USDA to prevent the department from trying to do anything other than the carcass-by-carcass inspection required by the 1906 law. The inspectors’ motivation is best expressed by the mission statement given on the union’s Web site: “The-Inspector.com has been established in support of the thousands of dedicated Food & Consumer Safety Inspectors, working on the front lines of the meat, poultry & egg products industries, usually under miserable conditions, safeguarding the American food supply.” At the time (it has since been sold), the Community Nutrition Institute published
Nutrition Week
, a newsletter that tracked current events in food and nutrition. Both were run by Rodney Leonard, long an outspoken advocate of improved food safety. Mr. Leonard’s otherwise inexplicable role as a plaintiff in this anti-HACCP lawsuit reflected his view that the meat industry could not be trusted to conduct its own inspections or testing and that this responsibility properly belonged to government. A U.S. appeals court agreed. It chided the USDA for attempting to reinterpret the Meat Inspection Act.