Today (April 25), the USDA proposed a new food safety rule that could revolutionize the American poultry industry. The rule will affect just a sliver of products — breaded and stuffed raw chicken products. But despite its narrow scope, the rule represents a sea change in how USDA inspects poultry, one that could end up sparing millions of consumers from suffering a foodborne illness. 

Chicken makes a lot of people sick, more than any other category of food products. This dubious distinction partly reflects the fact that Americans eat a lot of chicken, with chicken pulling ahead of beef as the country’s most popular protein in 2010. But the USDA inspection system deserves a good chunk of the blame as well. 

For years, consumer groups like mine have cried foul over the disconnect between how USDA protects consumers from “adulterants” like E. coli O157:H7 in beef, versus what it does about pathogens in chicken, particularly Salmonella. Salmonella contaminates about 1 in every 25 packages of chicken at the grocery store. The current rules do not stop a company from knowingly selling chicken contaminated with even high levels of the most virulent, antibiotic resistant Salmonella, so long as weekly testing at the plant does not reveal too many positive samples. 

This “performance standard” system has failed to effectively manage foodborne illness risk from chicken. There are a couple big reasons. For one, the amount of Salmonella bacteria on a piece of food is a big factor in how dangerous that food is. USDA sampling may detect low levels of Salmonella contamination on lots of samples at a company, but the company that causes the outbreak may be the one that fails to prevent just a few batches of heavily contaminated chicken from going out the door. 

Another big reason is that not all Salmonella are created equal. The most prevalent strain, or serotype, of the bacteria in chicken is Salmonella Kentucky. It rarely makes people sick. But Salmonella Kentucky causes chicken companies to fail the performance standards, and so they have developed vaccines against this relatively innocuous bacterium. Ironically, while vaccines that knock out Salmonella Kentucky make the inspection process go more smoothly, they make chicken less safe because other, more dangerous Salmonella strains are more likely to colonize the vaccinated birds. In other words, USDA poultry inspection rules are causing companies to spend money to make food less safe. 

Today’s rule marks an important step towards aligning poultry inspection with public health. It is the first time that USDA has considered Salmonella to be an adulterant in a raw chicken product. Rather than regulating company “performance,” the rule introduces a “product standard.” If some frozen chicken cordon bleu harbors more than one colony forming unit (CFU) of Salmonella per gram, USDA will force a recall. For these products at least, the USDA mark of inspection will really mean something. 

Breaded and stuffed raw chicken products present a low hanging fruit for food safety regulators. Because these products appear to be cooked, many consumers mishandle them, despite labels that feature pictures of crossed out microwaves and the words “raw” in bright yellow script. After the Canadian government adopted a similar policy for these products in 2019, Salmonella infections dropped 16%, an astounding result given what a tiny share of the retail poultry market these products represent. The grim track record of outbreaks linked to raw breaded poultry products in the U.S. suggests that USDA’s proposal may produce similar public health gains. Still, at least one industry trade group has balked, suggesting that USDA’s proposal is “not science-based.” This resistance speaks volumes about the potential for what may come. 

Eventually, USDA could, and should, adopt product standards for Salmonella in other raw poultry products. In fact, a coalition of leading poultry companies, consumer advocates, and food safety experts have come together in support of enforceable product standards for poultry. But the road to reform will be rough. Meeting product standards will require significant investments in the poultry production chain, all the way up to the two companies that produce almost all of the breeding stock for the industry, where some of the nastiest Salmonella strains in recent memory appear to have originated. The cost of these investments will likely pale in comparison to the cost of Salmonella illness caused by poultry now. However, the industry can now externalize those costs on to consumers, who are rarely able to connect the dots and discern the cause of a foodborne illness. Consider that for every reported Salmonella infection, another 29 are estimated to go unreported. 

 Consumer health should not subsidize any industry. Enforceable product standards like the ones proposed today can significantly reduce the 1.35 million estimated Salmonella infections that Americans suffer each year. And they can do so in a highly cost-effective manner. Secretary Vilsack and the staff at USDA deserve credit for taking action, and they deserve public support for going further. 

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Today the public comment period will close on a USDA Agricultural Marketing Service (AMS) rulemaking that, if all goes as planned, should increase the price of organic eggs. With food prices up 8.2 percent since September of last year, why would AMS do such a thing? And why would a group that represents consumers like mine, the Consumer Federation of America, urge it to act as quickly as possible even though acting quickly will, in all likelihood, cause prices to increase even more? The reasons have to do with what consumers expect from USDA certified organic products, and food safety. 

This rulemaking has attracted a lot of attention. The AMS had received more than 38,000 comments as of this writing. The proposed rule updates several regulations related to livestock production under USDA’s National Organic Program (NOP), but the most controversial provision concerns laying hens. Eggs.

Full disclosure: I buy organic eggs. I am also very, very cheap. I am so cheap that I struggle with visceral reactions to price tags at the grocery store: $3.49 a pound for cabbage? Outrageous! $3 off a six pack of sardines? Truly providence shines upon us! 

This has made for some tense moments with my wife over the years. 

Anyway, you may be thinking now, if he’s so cheap, why does he waste his money on organic eggs? The answer is complicated. Despite my acute price consciousness, I accept that I should pay more for food that reduces some of the “externalities” that modern industrial agriculture foists upon the environment, farmers, workers, animals, rural communities, you name it. Organic production has its problems, but overall, it helps. The biggest factor driving my purchase of organic eggs, however, is my family’s exposure to pesticides.

In this respect, I am not alone. In his book, “Resetting the Table,” Harvard professor Robert Paarlberg traces back the creation of the NOP to pesticide scares amplified by popular TV programs like 60 Minutes. In surveys today, consumers continue to cite health concerns as the main motivation driving their purchase of organic products. And as one group of commentators puts it, “the presence of pesticide residues in conventional food is the main difference between organic and conventional food.” Critics like Paarlberg point out that the pesticide residues on conventional crops are miniscule, and pose no health risk. Even proponents of organic food shy away from characterizing organic food as safer, partly because the NOP allows some pesticide use. 

Even so, pesticides are scary. Measuring the risk associated with chronic exposure is rife with uncertainty. And because pesticide residues on food crops bioaccumulate in animal tissue, including chicken eggs, many consumers have heightened concerns about pesticide exposure from animal products. 

What does this have to do with the AMS rulemaking? Good question. The AMS rule is nominally about animal welfare. In 2002, a large egg producer called “The Country Hen” sought to certify its Massachusetts facility as organic. As far as we know, chickens at The Country Hen were fed an exclusively organic diet and otherwise enjoyed all of the other benefits of living in an organic production facility. But they did not have outdoor access. Rather, they had access to a porch, like the one pictured here. The NOP rules require that organic producers provide “year-round access for all animals to the outdoors, shade, shelter, exercise areas, fresh air, clean water for drinking, and direct sunlight, suitable to the species, its stage of life, the climate, and the environment.” 7 C.F.R. 205.239. The auditor at The Country Hen did not agree that the porch met those criteria. But the owner of The Country Hen appealed to higher authorities at USDA, and he won!

Twenty years later, according to USDA’s proposed rule, 35 percent of hens have outdoor access via a porch system or covered area. According to a more recent report, over half of certified organic eggs come from porch facilities where the hens never go outside. 

Without a doubt, these operations have lowered the cost of “organic” eggs. Miserly, pesticide paranoid consumers like me should thank The Country Hen and its imitators, right? Wrong! Just because I am cheap does not mean that I do not value institutional integrity. The NOP regulations are clear. The 15-member National Organic Standards Board has been clear, recommending way back in 2002 that “outdoor access” should mean access to open air and sunshine and exclude porches. And the popular conception of what organic eggs entail is clear. It’s not just feeding the chickens organic feed. According to a Consumer Reports survey, 83 percent of consumers who buy organic products say it is “extremely” or “very” important that eggs labeled “organic” come from hens that were able to go outdoors and move freely outdoors. 

This is a classic case of market failure, where a few sneaky companies are taking advantage of consumers’ incomplete information. AMS needs to fix the situation, and thankfully, the proposed rule will fix it. Except that it will provide an extremely slow fix. In its cost-benefit analysis, AMS has evaluated two options — implementing the rule over five years, and implementing the rule over 15 years. At the risk of pointing out the obvious, the fact that AMS would even entertain the idea that large, sophisticated companies should have 15 years to continue duping consumers while they figure out a contingency plan smacks of corporate capture. 

Consumer advocates and other proponents of the rule, which was first introduced during the Obama administration and then withdrawn, have endorsed a three-year implementation timeline. But what about food inflation you ask? It’s true. Closing this loophole will make the price of organic eggs go up. However, a new label can help with that. 

Currently, the burden is on consumers to investigate whether eggs labeled “organic” comply with the NOP regulations. The market has responded with claims like “pasture raised” and “regenerative organic certified,” but for many consumers, spending more on these lesser known certifications is a bridge too far. A “100 percent organic diet” or “produced with organic feed” labeling claim would segment the market without undermining consumer confidence in the organic label. For consumers with concerns about pesticide residues in conventional eggs, who may care less about animal welfare and find themselves struggling to afford USDA certified organic eggs, a “100 percent organic diet” claim could present real value, and command a premium. 

For their part, companies could take advantage of USDA’s Process Verified Program (PVP) to add an air of legitimacy to a “100 percent organic diet” claim. The PVP provides independent verification of production practices and allows companies to use the USDA PVP shield on their products. Already, many egg companies participate in the PVP to make the claim that their hens eat a “100 percent vegetarian diet.” Why not a “100 percent organic diet”? 

One objection may be that this claim could undermine organic, but that seems farfetched. Organic is an economic juggernaut at this point, with annual sales projected to exceed $125 billion by 2026,  and nearly a quarter of consumers reporting that they always or often buy organic food. Demand for organic products will hold up, as long as USDA resists efforts to weaken the standards. 

Another objection is that a “100 percent organic diet” claim on eggs will not make money for companies like The Country Hen. But we will only find out if that is true once USDA restores integrity to the NOP. Let’s hope that we do not have to wait 15 years for that to happen. 

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This past week, USDA’s Food Safety and Inspection Service (FSIS) announced that it will begin publishing genetic data on the pathogens that federal inspectors find in poultry slaughterhouses. The policy is long overdue. While a relatively modest reform, the disclosures will make the industry more accountable for food safety by shining a light on the supply chains that feed into slaughterhouses. Incredibly, these supply chains fall outside of food safety regulators’ jurisdiction, in contrast to those of most other foods, from seafood to celery. This regulatory void puts a premium on transparency. 

Until now, FSIS has only released genetic data on pathogens in response to requests filed under the Freedom of Information Act. Typically those responses entail years-long delays. Under the new policy, the agency will disclose its data on a quarterly basis. 

Why does the data matter? Because it reveals which companies have been selling product contaminated with dangerous bacteria, such as the multi-drug resistant Salmonella infantis strain that has sickened thousands of people each year since 2017. Public health authorities have found the infantis strain in dozens of chicken processing plants. How it got there remains shrouded in mystery, but the most plausible theory lays the blame at the feet of the poultry breeding industry. 

Just two companies, Aviagen and Cobb-Vantress, a wholly owned subsidiary of Tyson Foods dominate the poultry breeding industry. These two firms provide virtually all of the breeding stock to the otherwise vertically integrated chicken companies, or “integrators,” the largest 10 of which accounted for 79 percent of the chicken produced in the United States in 2015. Because Salmonella bacteria is vertically transmitted from breeding stock to the “broilers” raised for food, even the most rigorous food safety program at the integrator level may prove ineffective. In other words, chicken companies may be failing to prevent the spread of virulent Salmonella, linked to ongoing foodborne illness outbreaks, in part because these pathogens originate “from centralized origins at the pinnacle of poultry production.”

Disclosing genetic data will illuminate this dynamic. And although it may not provide a quick fix, it will add support to the mounting calls for reform, from both civil society and industry. 

The problem is not complicated. Current law does not prevent a poultry company from selling meat contaminated with high loads of the most virulent, antibiotic-resistant superbug. Instead, USDA sets standards for how often a plant’s product can test positive for any strain of Salmonella. Thanks to a 2001 federal appellate court decision, even these “performance standards” are voluntary; USDA simply discloses on its website which plants are in compliance. But even plants following the rules are free to knowingly ship out product contaminated with dangerous Salmonella. Rather than performance standards, consumers need a product standard that provides an assurance that every package of meat and poultry they buy is reasonably safe. Not sterile, just safe. 

Defenders of the status quo tend to blame the consumer for persistent rates of foodborne illness. We should continue to invest in food safety education, and collaborations like the Partnership for Food Safety Education deserve credit for innovating new approaches to change food handling behaviors. But consumers should not be expected to follow safe handling and cooking instructions with the precision of a NASA scientist. Despite considerable resources and efforts dedicated to food safety education, for the past two decades, Americans have fallen ill from Salmonella-contaminated food at a depressingly constant rate. 

Consumers deserve better, and FSIS’s new policy of disclosing genetic data is a needed step in the right direction. To be sure, much work remains to be done at the agency. FSIS has only just begun studying how it can move to product-based pathogen standards for poultry. Recently proposed pathogen standards for pork parts — the second most important food source of salmonellosis, behind chicken — continue to treat all Salmonella serotypes equally. The agency’s pathogen disclosure policy could be improved as well. Under the current plan, genetic sequencing data will not be available until at least four months after an FSIS inspector collects a sample, even though the information is produced in a matter of days. 

But the new policy gives hope for optimism. Since the days of Upton Sinclair, greater transparency has increased consumers’ demand for better food safety protections. With a little luck, stories will emerge from the data disclosed by FSIS that serve as a catalyst for reforms, reforms that finally bring down the rate of foodborne Salmonella illness. With an estimated one million Americans sickened by Salmonella each year — many of whom, like 18-month old Noah Craten, suffer permanent injuries— that progress cannot come soon enough. 

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We also ate a lot of meat from the grill. Fortunately, no one ever became seriously ill. But we could have. One brother, in particular, took to insisting on a burger cooked “rare.” To my dismay, he still prefers his burgers cooked this way, or at least he did the last time we went out to a restaurant together. 

He’s not alone. Recent survey data indicates that more than one in four adults do not adequately cook ground beef, serving hamburgers “rare,” “medium rare,” or “medium.” This leads to a lot of avoidable foodborne illness. 

Ground beef is not like steak. Pathogenic bacteria — mainly E. coli and Salmonella — are prevalent in the digestive tracts of cows. As the cows are taken apart in the slaughterhouse, some of that bacteria ends up on the surface of the muscle tissues destined for human consumption. When those muscle tissues are ground up, the bacteria gets dispersed throughout. As a result, USDA recommends cooking ground beef to a much higher internal temperature than (non-mechanically tenderized) whole cuts of beef like a filet mignon or ribeye. 

This all seems pretty straightforward, so why do people continue to eat rare hamburgers, and worse, publish recipes for rare hamburgers on the internet? Two rationales seem to apply. First, people fail to appreciate the risk posed by bacteria like E. coli and Salmonella. They think the “USDA Inspected” label means that the meat is sterile, or close to it, and that if they do get sick, it won’t be a big deal. Second, like the waiter in the restaurant where I ate with my brother, people think their ground beef is somehow “special,” making it impervious to pathogenic contamination.

Both of these lines of thinking have some big flaws. First, foodborne illness is a big deal. Consider E. coli O157:H7. The bacteria poses a particularly deadly risk to children under 5 years old and the elderly, with 5 percent to 10 percent of victims developing hemolytic uremic syndrome, a life threatening condition that can result in chronic illness if it does not kill you outright. Back when we went to Aunt Debbie’s beach condo, eating raw beef entailed a pretty terrific risk of getting infected with this pathogen. Fortunately, that risk is lower now, in no small part because organizations like Consumer Federation of America— with the help of advocates like Nancy Donley, whose 6-year-old son Alex died from eating E. coli contaminated meat — convinced USDA in the mid-1990s to stop letting companies knowingly sell a deadly product. But E. coli O157:H7 hasn’t gone away. 

Earlier this year, USDA officials identified ground beef as the “likely source” of a multi-state outbreak. And the bacteria sickens many more people each year who are not linked to large outbreaks. States reported 2,323 E. coli O157:H7 infections in 2016, the most recent year for which CDC has posted data. In a country of 300 million, that might not seem like a lot, but keep in mind that only a tiny fraction of foodborne illness cases ever get reported, if they are diagnosed at all. Seriously, when’s the last time you provided a stool sample to your doctor? CDC estimates that beef continues to account for more than 25 percent of O157 infections each year, with leafy greens and other fresh produce accounting for the bulk of the remainder.

Side note: Why is so much fresh produce contaminated with dangerous E. coli? Cows in neighboring fields and feedlots are the most likely culprit. They really should be vaccinated, but that’s a topic for another article. This is about eating rare burgers on Fourth of July. 

Don’t do it! Consider that E. coli O157:H7 is not the only E. coli that can make you sick (and kill you). There are several other “shiga toxin producing E. coli” or “STEC” variants —  like E. coli O103 and E. coli O26 — that have caused recent outbreaks linked to ground beef. Infections from these so-called “non-O157 STECs” have been rising in recent years. Why? Perhaps because federal inspectors do not test most beef products for non-O157 STECs, nor require companies to do so, even though USDA classifies them as adulterants.

And then there’s Salmonella.

Currently, USDA encourages beef processors to reduce Salmonella contamination so that no more than 5 of 53 samples collected by government inspectors test positive. But ground beef lots that test positive for Salmonella still go to grocery shelves. And thanks to a 2001 federal appellate court ruling, USDA will not take any enforcement action against a company that fails to meet the standards. Not surprisingly, a great deal of ground beef is contaminated with Salmonella — about 3.89 percent according to a 2018 USDA survey. That’s less prevalent than in chicken, but Salmonella in beef appears to sicken a disproportionate number of consumers, in part because of popular cooking practices, like eating rare hamburgers (don’t do it). According to one recent USDA estimate, beef accounts for 80,000 cases of salmonellosis each year in the United States.

Is salmonellosis really that bad? It can be, particularly if you are a young child, elderly, or otherwise immunocompromised. Each year Salmonella causes an estimated 26,500 hospitalizations in the United States, and 420 deaths. The associated medical bills alone exceed $3.7 billion, in part because of antibiotic resistance. In 2019, ground beef was linked to an outbreak of multidrug-resistant Salmonella Newport infections, which caused 255 reported illnesses and 60 hospitalizations. More generally, government surveillance has documented a growing number of Salmonella samples that are resistant to critical antibiotics like ceftriaxone and ciprofloxacin.

There are other pathogens that can make you sick in a raw hamburger too. Beef sometimes harbors Campylobacter, which is present in up to a third of chicken products, and has also been acquiring resistance to antibiotics. There’s also Clostridium perfringens, commonly found in raw meat and poultry, which causes an estimated 1 million illnesses each year. And let’s not forget the extraintestinal pathogenic E. coli, or “ExPECs,” which appear to link a significant number of antibiotic resistant urinary tract infections to contaminated meat and poultry. Do you really want to deal with any of this? 

But wait, what about organic, grass-fed, locally slaughtered, or otherwise “special” ground beef? Isn’t that safe to eat rare? 

I wouldn’t bet on it. Researchers have found a similar prevalence of E. coli O157:H7 on organic as compared to “conventional” beef, and a recent study revealed a significant amount of pathogenic contamination in beef purchased at farmers’ markets. There are lots of good reasons to buy organic and local products, but avoiding foodborne illness is not one of them. 

So what can you do? Cook ground beef to an internal temperature of 160 degrees Fahrenheit to avoid foodborne illness. That’s pretty well done, but remember that color is not a reliable indicator. You should use a meat thermometer to be sure. If you are in a restaurant, don’t take any chances: ask for your burger well done. If you’re at home, be careful not to cross-contaminate by following the four core food safety practices. 

Times change. Back when we first started going to my Aunt Debbie’s beach house, it wasn’t uncommon to play with liquid mercury, and public health authorities were just discovering E. coli O157:H7 and antibiotic resistant Salmonella. Now, we strap our kids into cars as if we’re driving in the Daytona 500, and the mere suggestion of giving an  8-year-old bottle rockets will get you excommunicated from the playdate group. It’s not that we’ve all turned neurotic. It’s that we understand the risks better, including for food. So this Fourth of July, do yourself a favor and ask for your burger well done, or better yet, have a veggie burger.

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Recently, I did something I had not done in a long time. I ate in a restaurant with my family. Actually, we ate on the outdoor patio, since my kids are too young to be vaccinated and we are somewhat more squeamish than average about COVID, but it was nevertheless a refreshing return to normality and a welcome rest from battling traffic on the way to the Delaware seashore. 

I ordered a salad with blackened salmon. If we make the trip again, I will make a different choice. 

That’s because last week, biotech company AquaBounty Technologies Inc. announced that it is harvesting several tons of genetically modified salmon, which will soon be sold at restaurants and other “away-from-home” dining retailers around the country. So far just one distributor — Philadelphia-based Samuels and Son Seafood—has reportedly said that it will be selling the novel salmon. But AquaBounty has announced plans to sell its salmon via “food service channels” across the Midwest and East Coast.  

By selling to restaurants and cafeterias, rather than retailers, AquaBounty can avoid the federal GMO labeling law. And this sets a troubling precedent. Consumers who do not want to eat GMO fish will have to avoid salmon altogether when dining out.  

There are many reasons why someone might not wish to consume meat from genetically engineered animals. They may not trust the U.S. Food and Drug Administration’s (FDA’s) safety assessment of the food. FDA conducted a lengthy review process of AquaBounty’s salmon, and concluded that it was no different in its nutrition profile and levels of hormones than conventional farm-raised salmon. But the salmon is a novel food, and some consumers may justifiably want to take a “wait and see” approach. 

Other consumers may have concerns about the environmental risks associated with bioengineering animals, including the risk of “transgenic contamination,” whereby escaped GMO species crossbreed with native fish. Last year, a federal court ruled in favor of the advocacy group Center for Food Safety, ordering FDA to conduct an environmental assessment of its AquaBounty approval that takes the risk of fish escaping and reproducing in the environment into account. However, the judge allowed FDA’s approval to stand pending completion of that assessment, because he deemed the near-term risk of such environmental harm to be low. 

A consumer may worry that genetically engineering animals could harm animal welfare, just as conventional breeding has in some cases, or even that genetic engineering is fundamentally incompatible with the increasing recognition that livestock animals (and all sentient animals) deserve some moral standing, independent of their value as a commodity. 

A consumer may see genetically engineered animals as synonymous with a corporate takeover of the food system, or as an affront to indigenous communities who have traditionally depended on wild salmon. This concern features prominently in Aramark’s statement explaining its decision not to serve GMO salmon.

Aramark is not alone. Compass Group, Sodexo, Costco, Kroger, Walmart and Whole Foods have all pledged not to sell GMO salmon, at the behest of groups like the Center for Food Safety. But plenty of other outlets have made no such commitment, including (as far as I can tell) the restaurant where my family ate the other day.  

AquaBounty and its supporters have a lot of good responses to concerns about GMO salmon, and ultimately, their arguments may win out in the court of public opinion. Personally, while I might aspire to one day eat an exclusively vegan, locavore diet that makes the world a better place with every bite, I might try the GMO salmon myself at some point. 

But not like this. Consumers deserve to know whether the salmon on the menu comes from the first ever genetically engineered animal approved for human consumption. Food safety aside, consumers deserve the opportunity to consider the ethical and political issues enmeshed in genetically engineered animals before chowing down. At the very least, they should have the chance to notice whether this novel food tastes any different than its conventional counterpart. Pretending like this information is not important is an insult to the public, and creates the risk of a backlash that could erode confidence in both genetic engineering technology and the food system as a whole.

From what I know about FDA’s food safety assessment, AquaBounty’s salmon seems safe to eat. But food safety concerns will nevertheless lead me to abstain from salmon of questionable origin for the foreseeable future. I want what I eat to contribute to a safer food system. And all else equal, a safer food system is a more transparent food system. How much transparency do we need? Reasonable people will disagree. But for me, secretly serving unsuspecting restaurant patrons genetically engineered salmon—or pork or whatever else gets approved by FDA—deserves protest.         

That’s a shame because a lot of difficult problems—from climate change to antibiotic resistance to invasive species—might conceivably get easier with the help of genetic engineering. But without public support, or trust, the technology is more likely to just serve the bottom line of a few unscrupulous companies. 

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Earlier this week, Tyson Foods indicated that it will soon replace over a dozen federal food safety inspectors in its Holcomb, Kansas beef plant with company employees, pursuant to regulatory waivers that will also allow the company to raise line speeds. However you feel about the current beef inspection system, this is the wrong way to reform it.

USDA has issued its waivers pursuant to a rule whose purpose is “to permit experimentation so that new procedures, equipment, and/or processing techniques may be tested to facilitate definite improvements.” 9 CFR s. 303.1(h). The waivers apply to the Holcomb plant’s regulatory obligations in areas including inspection staffing, handling of bruised parts, line speed, and microbiological testing. In news reports, Tyson has indicated that it intends to employ “vision systems and machine learning in beef carcass inspection” at the Holcomb plant. Tyson’s waiver application, however, makes no mention of such technologies, at least not in portions of that document available to the public. Rather, it argues that waivers should be available to allow cattle slaughter establishments to operate under an inspection system pilot—“HIMP”—that USDA developed for poultry and swine slaughter establishments in 1997.

“HIMP” stands for HAACP-Based Inspection Models Project; HAACP for Hazard Analysis Critical Control Point.

USDA has expanded this acronym within an acronym pilot inspection program for poultry and, under the Trump Administration, it has sought to do the same for swine slaughter inspection, although its rulemaking has been challenged in court. Labor advocates have opposed the HIMP program because increased line speeds make workers unsafe. Unsafe workers tend to make unsafe food.

Food safety advocacy groups like mine have also opposed HIMP expansions because USDA has failed to set up a scientifically valid experiment to evaluate how the inspection reforms will actually affect food safety. In the case of swine slaughter, because USDA has no applicable Salmonella performance standards, it has lacked a critical yardstick by which to make an apples-to-apples comparison of HIMP versus traditionally inspected plants.

This measurement problem is even more exacerbated in the case of the Holcomb plant’s regulatory waivers. Intuitively, removing government inspectors and line speed caps will negatively affect food safety, all else equal; USDA has conceded as much. But Tyson and USDA have done little to assure consumers that the waivers will yield the “definite improvement” required by USDA regulations. Indeed, Tyson’s waiver application claims only that the “requested waivers will not adversely affect product safety.”

Unfortunately, this has become a common refrain at USDA. The agency justified its recent swine slaughter inspection rule not as an improvement to food safety, but as a way to boost efficiency without a “significant” impact on food safety. The same rationale has motivated line speed waivers for poultry plants, with Under Secretary Mindy Brashears recently heralding in this publication a study that found “the presence of Salmonella or other indicators of process control, such as non-compliance records for regulations associated with process control and food safety, are not significantly increased in establishments with higher line speeds.” (emphasis added)

This past week, FDA and USDA issued a Memorandum of Understanding Regarding the Potential Use of the Defense Production Act with Regard to FDA-Regulated Food During the COVID-19 Pandemic. The MOU refers to “potential use” because USDA has not yet invoked its DPA authority. Nor will it, in any likelihood. Messaging matters, however, and so the MOU may still operate to significantly influence the food system. What message does it send exactly?  

That depends on the “potential use” of the DPA that might conceivably come into play. The MOU is tied to President Trump’s April 28 Executive Order delegating authority to USDA to  “take all appropriate action under [section 101 of the of the DPA] to ensure that meat and poultry processors continue operations.” Popular media described this action in bold terms along the lines of ‘Trump Orders Meat Plants to Stay Open.’ And President Trump himself framed the Order as a solution to “certain liability problems.” But the actual reach of the order is much more modest.

As University of Texas law professor Steve Vladeck explained the day the order issued, “Nothing in the text of the Order claims any power to force plants to ‘stay open,’ and nothing in the statutory sections on which the Order purports to rely delegates such authority.” Rather, the April 28 order directs the USDA Secretary to use the authority under section 101 of the DPA “to determine the proper nationwide priorities and allocation of all the materials, services, and facilities necessary to ensure the continued supply of meat and poultry, consistent with the guidance for the operations of meat and poultry processing facilities jointly issued by the CDC and OSHA.” Section 101 of the DPA is quite limited in scope. It gives the president authority to “require performance” of government orders or contracts over private ones, and “to allocate materials, services, and facilities … as he shall deem necessary or appropriate to promote the national defense.” 

What do these authorities mean in practical terms? The government might put in an order with a meatpacking plant for product to supply a federal hunger relief program, and forbid the plant from fulfilling private orders, including to export markets, before fulfilling the government’s order. Or conceivably the government might act as a liaison to food companies seeking personal protective equipment for their workers, and order PPE manufacturers to prioritize orders that go towards protecting food workers. The legal ground for the latter example is less certain but regardless, does anyone expect the Trump Administration to assume this level of involvement in its pandemic response? If so, it might first use its DPA authority to make more testing available.

Critically, the April 28 Order does not give USDA or any other federal agency the authority to overrule a local public health department’s decision to close a meatpacking plant. The Tenth Amendment of the Constitution reserves such ‘police powers’ to the states. Even attempting to accomplish such an end through indirect means—by say, withholding federal financial aid—would represent an unconstitutional encroachment on state sovereignty. 

As a side note, the Order also says nothing about liability for companies that unreasonably expose their workers to infection risk. Here, the federal government has acted in the past to override state tort law, perhaps most notoriously in defense of gun manufacturers. But Congress must act to provide that sort of immunity, which explains some politicians’ insistence on such provisions in the next corona virus relief package.

All of this is to say that the April 28 Executive Order is a paper tiger. But to the extent that the Administration sought to cow state and local public health officials, it may have succeeded. According to recent reporting, “As of May 19, nearly all of the once-closed meatpacking plants have started back up.” Large meatpackers have declined to disclose data on how many of their workers have fallen ill or died, but according to an analysis by Johns Hopkins University researchers, the rate of COVID-19 infections for counties with very large meatpacking plants was twice the rate in counties without for the week following the Trump executive order. 

Now, FDA is joining forces with USDA in “carrying out Executive Order 13917.” Pursuant to the MOU, FDA will “as appropriate, educate domestic stakeholders about . . . the potential use of DPA authority,” and consult with USDA to “issue orders related to or utilize other delegated USDA DPA authorities with regard to food resources and food resource facilities.” 

Again, the prospect of any such “orders” or other use of “delegated authorities” is farfetched, if not downright farcical. So what is the point of this document? The same as EO 13917, to send a message: namely, keep the grocery shelves packed, or else! 

One might argue that industry needs to keep workers safe to avoid supply disruptions, and this simply gives FDA more of a stick to motivate companies to adhere to the voluntary worker protection standards issued by the Centers for Disease Control and the Occupational Safety and Health Administration. The MOU contemplates that FDA will “direct FDA-regulated entities” to this “applicable guidance.” But if worker protection is the objective, a much better tool would be an enforceable temporary standard to protect workers.  

In the absence of such a standard, putting pressure on food companies and public health officials to keep plants open poses a danger to workers, and ultimately, to consumers. A safe workplace is the most basic prerequisite for creating a culture of food safety. As we know from recent reporting, the food industry faces significant challenges that will increase food safety risk, including widespread absenteeism and the suspension of visits from outsiders, including from food safety auditors. At the same time, CDC officials have said in recent stakeholder calls that foodborne illness reporting from the states has sharply declined. No surprise there given that under the best of circumstances, getting a stool sample from a foodborne illness victim faced a lot of hurdles. 

In this crisis environment, federal food regulators should take a more active role to protect the food supply. But if that role undermines public health officials and workers, we will all suffer.  More than ever, consumers need effective federal oversight of the food system. Baseless threats of using the Defense Production Act are not helping. 

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About the author:

Thomas Gremillion is the director of food policy at the Consumer Federation of America.

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Tomorrow, the Senate will finally hold a nomination hearing for Dr. Mindy Brashears to become the highest ranking food safety official in the federal government, a post that has remained vacant for nearly five years. Dr. àBrashears’ scientific credentials are solid, but she should face some tough questions about how she will address longstanding challenges at USDA’s Food Safety Inspection Service (FSIS).

Just Friday, the day after Thanksgiving, FSIS began web-posting new data on Salmonella contamination in poultry parts — legs, breasts, and wings — and in ground turkey and chicken. The data are not encouraging. Across the industry, over a quarter of the plants processing chicken parts are failing to meet FSIS’s Salmonella performance standards. At the country’s fifth largest chicken producer, 75 percent of the plants are failing the standard. The widespread noncompliance calls into question whether the proper incentives are in place to protect consumers from Salmonella in meat and poultry.

The data released Friday adds to a mounting body of evidence that the U.S. regulatory approach to Salmonella is outdated. Some in the industry have taken the position that all raw meat and poultry is safe, even when contaminated with a Salmonella strain associated with an ongoing outbreak, so long as consumers act responsibly in the kitchen. Readers of this publication know otherwise. Virulent strains of Salmonella cause outbreaks precisely because the bacteria overcome what are otherwise “safe” handling and cooking practices.

Consumers should not have to wear a hazmat suit to prepare dinner.

That might seem hyperbolic but ask yourself, how would you handle raw chicken that you knew to be contaminated with the multi-drug resistant Salmonella Infantis strain that has resulted in 92 confirmed illnesses and 21 hospitalizations, according to CDC’s latest count? Or raw turkey contaminated with the Salmonella Reading strain that has, so far, been linked to 164 confirmed illnesses, 63 hospitalizations, and one death? Most consumers are familiar with the basics of sound food safety practices—clean, cook, separate, chill—but slip-ups are common. A recent FSIS observational study actually simulated pathogen contamination with a tracer microorganism and found that 6 percent of participants preparing a meal in a test kitchen failed to wash their hands with sufficient rigor to avoid cross-contaminating a salad after handling turkey burgers. These were people that knew they were being observed!

The upshot is that food safety education, while critical, can only go so far. Consumers deserve protection against dangerous Salmonella, particularly when it is linked to an outbreak. Yet under the current rules, companies may knowingly sell raw meat and poultry that harbors outbreak Salmonella strains. What’s worse, while FSIS has sometimes discovered through its testing that a company’s products are contaminated with an outbreak strain, it refuses to make that information public.

A better approach to Salmonella is possible.

For over a decade, Salmonella infections in the U.S. have remained more or less constant, causing more economic damage than any other foodborne pathogen — an estimated $3.7 billion each year in medical costs alone, according to USDA researchers. By contrast, the incidence of salmonellosis in European Union countries has declined dramatically during the same period, from approximately 200,000 cases reported in 2004 to less than half of that number in recent years.

The U.S. can similarly reduce foodborne illness with common sense rules that recognize the role of Salmonella as an adulterant in raw meat and poultry. A new report from my organization, Consumer Federation of America, examines five different ways that FSIS could regulate Salmonella as an adulterant. As Carl Custer wrote in Food Safety News earlier this month, such a classification is warranted for the same reasons that FSIS has treated E. coli O157: H7 as an adulterant in ground beef since 1994, namely, foods contaminated with Salmonella cause severe illness when subject to normal cooking and handling practices. Not all Salmonella contamination poses an equal threat, however, and so some divergence from the strategy to contain E. coli O157: H7 may be appropriate.

The CFA report considers the costs and benefits of federal regulators treating a meat and poultry product as “adulterated” if it is contaminated with:

1) Any Salmonella at all, the approach taken by Sweden and a small number of other Northern European countries;

2) Particular Salmonella serotypes, such as those most associated with human illness, an approach similar to that taken by the European Union;

3) Salmonella with a specific genetic profile that matches that of an ongoing outbreak, such as the Salmonella Reading and Salmonella Infantis strains causing the current outbreaks linked to turkey and chicken, respectively;

4) Salmonella resistant to certain medically important antibiotics, an approach championed by some U.S. lawmakers; or

5) High loads of Salmonella bacteria, an enumeration focus that has some support among the industry.

The U.S. may not transition anytime soon to a full out blanket prohibition of Salmonella in raw meat and poultry, à la Sweden, but policymakers should explore the available options, and weigh the costs of industry compliance against the expected public health benefits. CFA’s report is meant to facilitate that discussion.

In the meantime, FSIS can make a significant contribution to public health by simply sharing the results of its regulatory testing data. Thus far, the agency has offered only incendiary rhetoric in response to calls for increased transparency. Hopefully, Dr. Brashears will offer consumers more assurance in her testimony tomorrow. (WC 886)

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Literally losers. When it comes to country-of-origin labeling (COOL) on meat, American consumers are in the dark, and we have Canada and Mexico to blame.

Until 2015, the U.S. Department of Agriculture required retailers to label fresh beef and pork “muscle-cuts” — think steaks and pork chops — with country-of-origin information, specifically where the cow or pig was born, raised and slaughtered. Canada and Mexico sued, however, and an international tribunal at the World Trade Organization (WTO) ruled that the labeling regulations were an unlawful trade barrier. Faced with sanctions, Congress folded, and consumers lost their right to country-of-origin labeling on beef and pork.

A new NAFTA could undo the effect of the WTO’s decision. Yet remarkably, the office of the U.S. Trade Representative has no plans to salvage Americans’ right to decide for ourselves how meat is labeled in this country. Is this what “America First” is supposed to look like?

Never before has there been such an explicit example of an international trade body nullifying a U.S. law, and a popular law to boot. Poll after poll has shown that the vast majority of Americans — 89 percent in a survey commissioned by Consumer Federation of America last month — want labels telling them were their meat comes from. Why should trade rules prevent Americans from knowing where their food comes from?

President Trump owes American consumers an explanation. This comes at the same time that his Administration is working to open U.S. borders to more foreign-origin meat, including a proposal to authorize chicken imports from China, where health officials are scrambling to contain the latest bird flu strain and rampant overuse of antibiotics has created superbugs resistant to drugs once thought of as a last resort.

More than ever before, consumers are right to demand country-of-origin labeling. If members of Congress think consumers don’t have a right to this labeling, or that it’s too expensive for big meat processing corporations to have to keep track of where animals are from, they can explain that to the voters. But Americans’ elected officials, not an international trade tribunal, should make that decision.

This is not the trade policy that Trump promised in his campaign. He pledged to withdraw the U.S. from the Trans-Pacific Partnership because the deal “will undermine our independence.” He opposed that deal because it “creates a new international commission that makes decisions the American people can’t veto, making it easier for our trading competitors to ship cheap subsidized goods into U.S. markets.”

But our trade deals already let international commissions make decisions the American people can’t veto, and consumers are paying the price.

Country-of-origin labeling on meat isn’t about protectionism. Giving consumers origin information supports many different, legitimate goals, from sustainability to food safety. That’s why a federal appeals court threw out a lawsuit that the big meatpackers filed to get rid of the regulations. Among the reasons that swayed the court was the fact that the federal government has required country-of-origin labeling on all kinds of foods for more than a hundred years.

As the Administration renegotiates NAFTA, it should require a fix to country-of-origin labeling. Americans want to know “Where’s the beef — from!”  And they have every right to know.

About the author: Thomas Gremillion oversees the research, analysis and advocacy for the Consumer Federation of America’s food policy activities. He also monitors food safety activities at USDA, FDA and in Congress, where he advocates for strong food safety protections for consumers. Prior to joining CFA in 2015, Gremillion practiced environmental law at Georgetown University Law Center’s Institute for Public Representation, where he represented community groups and advocacy organizations in litigation against polluters and government regulators. He also served as an associate attorney at the Southern Environmental Law Center in Chapel Hill, NC, where he specialized in transportation and land use issues. Gremillion is a graduate of Harvard Law School. He graduated magna cum laude from the University of South Carolina with a bachelor’s degree in mathematics.

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