In an article that will soon be published in the Seattle Law Review, I take a look at food safety through the lens of the “pink slime” controversy and question whether the lack of real transparency that characterizes food safety regulation, especially with regard to meat and poultry, is more intentional strategy of agencies and industry than by-product of the public not simply wanting to think about just how unsafe food can be.[1] In the article, I compare the USDA and the meat industry to the Wizard of Oz, an entity that Dorothy, her traveling companions, and those living in Oz all thought was “great and powerful”—that is, until he was revealed to be a huckster who was fooling everyone through trickery and special effects. But in reading some recent remarks by Brian Ronholm, Deputy Under Secretary at the U.S. Department of Agriculture’s Food Safety and Inspection Service, another comparison for the USDA and its regulation of meat and poultry quickly came to mind: the Cowardly Lion.

As reported by Food Safety News, Ronholm was appearing at the 2015 National Food Policy Conference in Washington, D.C. when asked about the agency’s policy on declaring Salmonella an “adulterant” under the Federal Meat Inspection Act. According to the article:

Ronholm explained that the interpretation of why E. coli is an adulterant in ground beef but Salmonella isn’t adulterating poultry stems from past court cases.

“There are several ways to cook a burger: rare, medium, well-done. In the court’s mind, because there are several ways, it’s possible to not cook E. coli out of a burger,” Ronholm said. “Now look at poultry. In the court’s mind, there’s only one way to cook a chicken. You cook it to 165 degrees and it kills the Salmonella.”

“Because ordinary cooking is able to kill Salmonella, in the court’s mind, it cannot be declared an adulterant,” he added.

The court (and court case) he is referring to is one with which I am exceedingly familiar, not only because I have been an attorney handling food-related cases for over twenty years, but because I also a professor of food law and policy, and this semester my students and I spent several hours of class time both unpacking this particular case and also the historical evolution of USDA policy on adulterants in meat. And although I readily admit that there are grounds for reasonable disagreement when interpreting a court case, I am nonetheless one-hundred percent confident in asserting that Ronholm is either telling a big fat lie, or the attorneys at USDA are telling their bosses what they want to hear to justify continuing and cowardly inaction on the Salmonella front.

Like so much that USDA does, it wants to appear busily in action, convincing the public that “We are on it!” and “No need to worry!” At the same time, they repeatedly trot out this line of defense with regard to Salmonella in meat, claiming that “Our hands are tied!” and blaming it on the courts. But all of this is clearly subterfuge, and I would be shocked if the Ronholm and other higher-ups at the USDA were unaware of the real duplicity at work here. Because the no court has tied the USDA’s hands. Instead, USDA is sitting on its hands while millions are infected with Salmonella and injured each year.

So let’s look at this case that Ronholm cites—American Public Health Association v. Butz, a 1974 decision of the D.C. Circuit Court of Appeals. This stemmed from a lawsuit that APHA, one of the leading public health associations in the United States, had filed against the USDA. In the lawsuit that APHA accused the USDA of “misbranding,” a violation of the FMIA, because the agency was placing the mark-of-inspection (“USDA inspected and passed”) on meat and poultry in a way that was false and misleading, and by failing to warn against the dangers of Salmonella. The APHA further argued that the USDA had abused its discretion in refusing to add a warning and instructions for proper preparation and storage to the mark-of-inspection.

The warning that APHA sought read as follows: “Caution: Improper handling and inadequate cooking of this product may be hazardous to your health. Despite careful government inspection, some disease-producing organisms may be present. Consult your local health department for information on the safe handling and preparation of this product.” Of course, a similar warning now DOES appear on all meat and poultry products, an indication of just how much has changed since 1974. And it is that change that matters so much when seeking to understand just how disingenuous the USDA is being now when it points to APHA v. Butz decision as evidence that the Court over forty years ago tied its hands, and that its hand remain tied today, preventing it from taking more effective action against the illness and death caused by Salmonella-contaminated meat and poultry.

At the time of the APHA lawsuit, the USDA did not consider pathogens in raw meat to be adulterants—any pathogens, including E. coli O157:H7. The USDA was still in the “poke and sniff” era of meat inspection that had commenced with the passage of the FMIA in 1906. But plainly the USDA position changed in the wake of the 1993 Jack in the Box E. coli outbreak, and today we have both warning and instruction labels on meat, but we have USDA declarations that certain pathogens are “adulterants” within the meaning of the FMIA when present on raw meat. And recall, the USDA was sued when it made these declarations, and the USDA fought in court and won. That is the nature of the beast when it comes to the USDA imposing stricter regulations. A lawsuit is like the sun rising in the morning and setting in the evening: inevitable. And while there was a time when the USDA appeared to have the courage of its convictions, that time has seemed to have passed in a decision way.

But back to the APHA decision and the USDA’s present dissembling. Ronholm claims that the court in its decision affirming the dismissal of the APHA’s lawsuit, the court specifically decided that “Because ordinary cooking is able to kill Salmonella,…it cannot be declared an adulterant.” That claim is untrue.

First, note that the position of the USDA in front of both the trial court  and on appeal was that “since ‘there are numerous sources of contamination which might contribute to the overall problem’ it would be ‘unjustified to single out the meat industry and ask that the Department require it to identify its raw products as being hazardous to health. Such an act would have to apply to any and all sources of salmonellae in order to be fairly administered.’” The USDA was defending the meat industry’s interests here, and the USDA inspection policy overall, which was, as noted above, premised on the notion that there was no such thing as an “adulterant” in raw meat, and that meat was, as a by-product of how it was slaughtered, inevitably going to be contaminated, thus making such contamination “inherent” to meat. But the USDA no longer accepts this premise as true. The agency’s position has changed. If it had not changed, then E. coli O157:H7 could not be declared an adulterant either.

Second, the observation about “ordinary cooking” is not an observation that the court made; it is an observation that the USDA made. Here is what the court decision actually says (emphasis added):

As the Department 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.

Of course, the somewhat sexist  “in other words” rephrasing of the USDA’s position is the court speaking, but most first-year law students could easily explain, that is not the court’s holding in the case and, as a result, it has no precedential or binding power. Thus, Ronholm was plainly wrong when he asserted ”in the court’s mind, [Salmonella] cannot be declared an adulterant.” No—in 1974, that was in the USDA’s mind; and, apparently, it still is. But please don’t blame it on the court.

Third, and also apropos the “customary methods of preparing food for the table,” which is the phrase that end’s majority opinion in this case, the issue before the court with regard to consumer knowledge of the risk of salmonella related to APHA’s attempt to require a warning label on meat and poultry, not about whether Salmonella could be declared an adulterant, an issue not before the court. In ruling on the issue of the warning label, the court did nothing more than defer to the agency’s discretion. As the court explained,

After carefully considering the appellants’ proposals the Secretary concluded that warning labels were not the answer to the problem and that the solution was a consumer education program which the Department proposed to undertake. We cannot say that this conclusion was unreasonable; certainly we may not substitute our judgment for that of the Secretary.

Finally, on the question of whether the court decided anything with regard to Salmonella’s presence being an adulterant, it must be remembered that the issue before the court was whether the USDA mark-of-inspection was “false and misleading” for stating that the meat was “passed and inspected” even though Salmonella might be presence. On that central issue, what the court decided was about the method of USDA inspection, a method that, as the court noted, APHA had conceded was reasonable.

As alleged in the complaint, and established by the record, “The inspection procedures now required by the Wholesome Meat Act and the Wholesome Poultry Products Act do not include any investigation to detect the presence of salmonella in meat or poultry, because no such microscopic examination is considered feasible as a routine matter.” The reason for this situation is apparent: a poultry inspector, for example, may conduct post mortem examinations of more than 10,000 birds in one day. Microscopic examination of each bird would obviously be impractical. Recognizing and accepting this fact the appellants do not seek revision of inspection techniques.

Accordingly, against the backdrop of the APHA concession, which the court accepts, the court then confronted the issue of whether, despite this conception, the mark-of-inspection constituted “misbranding” for the USDA having placed it on meat that was contaminated with Salmonella. The court said no, and here is why.

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.

In other words, because the FMIA does not require “microscopic examination” of meat as the method of inspection, and because only such examination can reveal the presence of Salmonella, the mark of inspection is not “false and misleading” as a result of there being the possibility that Salmonella might be present on the meat sold. And who can really quibble with such logic? Not me.

But here is the problem. The USDA now tests for the presence of Salmonella, and USDA inspection is built upon the foundation of the microscopic examination of meat and poultry.  So let me ask you this: Flash forward the APHA v. Butz case to the present. Do you think the court would now reach the same decision?  For a clue, let’s look at what the dissenting judge in the case wrote:

My colleagues try to support their holding by the claim that Congress “did not intend the prescribed official legends to import a finding that meat and poultry products were free from salmonellae.” That observation, I submit, is wide of the mark. Congressional intent is not helpful in determining whether the labels are misleading; the relevant inquiry is the understanding of consumers. Appellants proffer evidence tending to show that consumers in large numbers understand the challenged labels to mean that the Federal Government has inspected the labeled food products for the presence of salmonellae. That indication is false, for no such inspections are ever made, and labeled products are “passed” even if they contain salmonellae.

In the end, what is so untenable and troubling about the USDA’s position on all of this, is how much it rests on a view of meat and meat inspection that was supposed to have gone away after the tragedy of the Jack in the Box outbreak. There was a time when it seemed that the USDA was going to embrace its public health mission and choose to fight for safer meat, even if the face of threatened lawsuits. But, alas, it seems to now be back to its old ways, a Cowardly Lion, afraid of its own self-made shadows.

[1]              See Denis Stearns, PAY NO ATTENTION TO THAT MAN BEHIND THE CURTAIN: Concealment and Revelation and the Question of Food Safety; OR, How “Pink Slime” Tells You All That You Need to Know about Food in the United States, 38 Seattle L. Rev. Vol. 4, 1399-1435 (Summer 2015).

“Ah, but a man’s reach should exceed his grasp, Or what’s a heaven for?”

— from Robert Browning’s “Andrea del Sarto”

Part 2: Does case law support FDA’s expansive position on jurisdiction? According to published policy, the Food and Drug Administration claims to have “jurisdiction over all products made from interstate components regardless of the amount present, even though the finished product has not moved in interstate commerce.” The agency presumably used this policy as the basis for enforcement actions against the Chipotle Mexican Grill restaurant linked to a norovirus outbreak in California. Federal officials cited six court cases in support of the FDA policy. All of the cases are relatively old, with the most recent one being from 1974. While court decisions don’t lose precedential value by virtue of age alone, decisions by U.S. District Courts — the federal version of trial courts — don’t have much precedential value to begin with because they are not binding on other courts. Only decisions from U.S. Circuit Courts of Appeal are binding on all of the district courts in a given circuit. Consequently, to cite to a district court case in support of a legal argument is to cite to a case that has no power to bind the court to which it is cited. Five of the six cases cited by FDA relate to drugs made with interstate components. The sixth case was about cooking oil made from multiple interstate components. The cases are detailed here in chronological order, along with a critical analysis of the extent to which they provide solid support for the FDA’s position on its jurisdiction over individual restaurants. United States v. 39 Cases, 192 F. Supp. 51 (E. D. Mich. 1961) This case involved drugs that the FDA had seized based on allegations they were misbranded in violation of the Food, Drug and Cosmetic Act (FDCA). The tablets had been manufactured in Michigan for sale in that state alone, but component ingredients had been shipped in interstate commerce, similar to multi-ingredient foods sold in restaurants. The manufacturer argued the finished product must itself have been shipped or held for shipment in interstate commerce. The provision in the Act in question gives the FDA authority to seize misbranded or adulterated food or drugs “when introduced into or while in interstate commerce or while held for sale (whether or not the first sale) after shipment in interstate commerce.” Consequently, the dispute was over whether a drug made with components shipped in interstate commerce satisfies the “held for sale…after shipment” part of the provision. The manufacturer argued that it did not because the component ingredients shipped in interstate commerce “lose their identity as individual components when combined to form” the pills, putting the pills beyond FDA jurisdiction. In its decision upholding the seizure, the court rejected the manufacturer’s argument, but not as categorically as the FDA’s current policy would seem to suggest. First, the court observed that “it is evident” that pills would be subject to seizure if manufactured from a single ingredient that had been shipped in interstate commerce. The court thought it would be “incongruous” to hold that a single ingredient formed into pills would be subject to FDA jurisdiction, but pills that were made from several ingredients would not be. Second, the court addressed two cases that the manufacturer had cited in support of its argument. Specifically, the court wrote: “In both cases, the courts held that an article or device is not subject to jurisdiction of the Act where the only components shipped in interstate commerce were either a minor ingredient of the final product or several commonly used components which lost their identity within the newly manufacture device.” Notably, the court did not dispute or limit these rules, accepting that not all ingredients or components in interstate commerce suffice to create jurisdiction. Instead, the court found that “the ‘drugs comprising the (seized pills) are the very heart of the manufactured and tableted ‘drug’ and were proclaimed as such to the public.” Thus, far from approving a broad rule that affirmed the FDA’s jurisdiction “over all products made from interstate components regardless of the amount present,” as the FDA claims, the court made a much more conservative ruling, doing so to avoid creating what it deemed to be a loophole, which is something the prior Supreme Court decisions had warned against creating. The enforcement power affirmed here was the power to seize misbranded or adulterated products. It does not necessarily follow that the FDA has jurisdiction over the manufacturing operation itself, or could seek penalties for violations of the Act based on manufacturing activities that occurred solely within a state for finished products to be sold and consumed or used within that same state. Consequently, if there had been boxes of burritos that Chipotle had planned to sell, despite having been manufactured in the Simi Valley, Calif., restaurant and contaminated with norovirus, it seems beyond reasonable dispute that the FDA could seize the adulterated food products to protect the public. But nothing in this cited case seems to answer the broader question of the FDA’s jurisdiction over the restaurant operation itself. For example, could the FDA file a lawsuit to close a restaurant, or to demand other changes to its operations? Given that local health departments already have direct regulatory authority over restaurants, it seems like a stretch to consider the FDA directly asserting its own authority, too. United States v. 40 Cases, 289 F.2d 343 (2^nd Cir. 1961) This Court of Appeals decision reversed one of the two cases that the Michigan drug manufacturer had cited in its defense, and did so in a way that was substantially consistent with the approach of the Michigan court in the decision discussed above. Like the pills in the Michigan case, the products here had been manufactured using ingredients shipped in interstate commerce and then deemed to have been misbranded. The government challenged cans of blended oil labeled as containing 25 percent olive oil, but actually containing little or none. The oils from which the blend was made had all been shipped in interstate commerce, although the blending and subsequent sale occurred only in New York. Much like the drug manufacturer, the oil manufacturer argued “that the process of the oils… created a new product… which was not the same as the (oils) transported in interstate commerce.” In disagreeing, the court here explained: “In this case all the components of the oil blend had been transported in interstate commerce, and the completed mixture was being held for sale as ‘oil’ — the very same type of food which had traveled across the state line. This is not a case in which oil that was transported interstate was used as one of many ingredients in a finished product which in no way resembled the food which had crossed state lines. “Oil may come in many varieties, but to the unsophisticated consumer one oil blend is much like another. We would be undermining the remedial legislative purpose of consumer protection were we to deny the power to seize misbranded articles on the ground that such foods as corn oil, peanut oil, soya bean oil and olive oil when mixed constitute a ‘different product’ from a blend of less than all or from a pure measure of any one of them.” Even though the court upheld the seizure of the misbranded oil, it did so in a way that plainly acknowledged not all combinations of interstate ingredients would automatically be subject to FDA jurisdiction. There would be no other reason for the court to point out that the facts of the case were not such that the “finished product… in no way resembled the food which had crossed state lines.” Consequently, one could reasonably interpret the court’s ruling here to leave open the possibility that, with a different set of facts, there might be a different conclusion. For example, if the sole interstate ingredient was oil, and that oil was used make cookies from many non-interstate ingredients, the resulting cookies might be beyond FDA jurisdiction. In any case, there is no question that the rules announced by this court’s decision still applied only to the question of FDA jurisdiction over the product being seized, and nothing else. Palmer v. United States, 340 F.2d 48 (5^th Cir. 1964) This decision of the Fifth Circuit Court of Appeals appears to have been cited solely because of a single rule-sentence included in the case: “Shipment of the active ingredient of a drug is the equivalent of shipping the drug.” This rule is supported by citations to the two cases above, with indicators that the cited cases are supportive of the rule by analogy only, and not directly. The question before this court was whether a criminal conviction for the “dispensing of drugs that had moved in interstate commerce” could be upheld despite the lack of direct evidence that the illegal drug sale in Texas had involved amphetamine manufactured in South Carolina (as an expert had testified).” In upholding the conviction, the court also pointed out that there had been evidence that the active ingredient in the drugs must have come from out of state, because there was no in-state source for the ingredient. That is apparently why the court included the rule about the shipment of active ingredients. This was not a case, however, that involved a question about FDA jurisdiction, or about enforcement of the FDCA regarding misbranded or adulterated food. It is, at most, a case where a limited rule established in previous cases was cited again, but by analogy only. Consequently, this case offers no support for the FDA policy position. In short, if one of my former legal writing students had asked me whether to cite this case to support the FDA position, I would have definitely told them no. United States v. Dianovin Pharmaceuticals, Inc., 324 F. Supp. 724 (Dist. P.R. 1972) affirmed by 475 F.2d 100 (1^st Cir. 19373) These two cases, like the Michigan District Court case, U.S. v. 39 Cases, discussed above, involve a district court decision that was then affirmed by a Circuit Court of Appeals. The facts of this case are relatively complicated, but the crux of the two court decisions are quite straightforward. The drugs in question were ampules of an injectable form of vitamin K that, based on FDA inspections, had previously been manufactured under insanitary conditions. After the threat of seizure, the FDA sought a permanent injunction from the district court in 1969, “generally prohibiting defendants from manufacturing or introducing into interstate commerce drugs manufactured by the defendants in violation of the (FDCA).” A little over a year later, the FDA and the defendants requested that the court suspend the injunction, based on the agreement of the parties that it “would revert to its full force and effect if the defendants were to commit any of the (acts listed in the agreement).” Several months later, an FDA inspection found multiple violations of the agreement and the agency sought reinstatement of the permanent injunction, along with several new requirements regarding the operation of the manufacturing facility. The district court reinstated the injunction along with the additional requirements and noted that it possessed jurisdiction based on its previous orders. The court also noted the defendant’s jurisdictional argument that the drugs were sold only locally and the company was thus “not engaged in interstate commerce.” Responding to this argument, the court pointed out that “it is enough that the active ingredient in the drug be shipped in interstate commerce to satisfy the interstate commerce requirement of the (FDCA).” But it was not on that basis that the court reinstated the injunction and imposed new requirements on the defendant’s manufacturing operation; it was on the basis that there had been violations of the prior agreement. The defendants agreed to comply with the new order of the court to continue operating, but reserved the right to appeal the jurisdictional issue. The appeal court decision is interesting, and a bit frustrating, because the basis for the court’s rejection of the defendants’ jurisdictional argument fails to support the FDA position. In other words, the court did not need to address the defendant’s argument at all. But as commonly occurs, the court could not resist the urge to discuss and reject the arguments, making this part of the decision into something called “dictum.” Dictum is short for the Latin legal phrase “obiter dictum,” which refers to a court’s expression of an opinion that is not necessary, and thus not considered as precedent. Even though a given part of a court decision may be accurately described as dictum, attorneys do not hesitate to cite to these portions, being careful to not mischaracterize what the court said as a decision’s holding or reasoning. But before getting to the dictum portion of the ruling, here is the true basis for the court’s decision to uphold the injunction: The defendant never challenged the district court’s jurisdiction when the first injunction and then the suspension order had been entered. The appellate court thus ruled “jurisdiction had long before been settled” because the defendant had neither objected to jurisdiction nor filed an appeal from the entry of the originals. According to the court, the “government, on its reinstatement motion, had no duty whatever to reestablish the interstate connection of the drugs; at the very most, at this late date, had (defendants) wished to raise a jurisdictional defense, the burden of proving the necessary facts was theirs.” The court then turned to the defendants’ jurisdictional argument, even though it was not necessary to the ruling. The court wrote that the “jurisdictional argument fails.” Citing an Act provision regarding drugs “held for sale… after shipment in interstate commerce,” the court pointed to the fact that the “component raw materials” of the defendants’ drugs were shipped in interstate commerce. Therefore, according to the court, the “use of components shipped in interstate commerce to make vitamin K for injection brought their activities with § 331(k), and conferred jurisdiction to restrain violations thereof upon the district court.” The court also rejected the “new” drug argument, explaining that “all drugs whether older or new are subject to the prohibition against adulteration or misbranding” and that the “evidence of seriously deficient conditions and practices at the plant, coupled with a history of unsuccessful efforts to obtain compliance…, more than warranted injunctive relief.” Although arguably not binding precedent, the court of appeal not only rejected all of the defendants’ jurisdictional arguments, it did so in a way that affirmed the FDA’s ability to enforce the FDCA’s provision with regard to plant operations. The other cases upon which the FDA has relied for support of its position on jurisdiction all dealt with enforcement efforts taken against misbranded or adulterated products. Those efforts clearly have stronger support in the case law in situations where the agency is seeking to seize or otherwise prevent the sale of food or drugs that are deemed to be unsafe. For that reason, the decision in this case would appear to provide the best support among any of the cases that the FDA cited in its Policy Guidance Manual. It is thus interesting to ponder why the FDA did not also cite the appellate decision upon which the court here expressly relied, U.S. v. Cassaro, 443 F.2d 153 (1^st Cir. 1971). In Cassaro, the question was whether the owners of a commercial bakery that made and sold product solely within Massachusetts could be found to have violated the FDCA for allowing flour to become adulterated during the manufacturing process as a result of insect infestation and other insanitary conditions at the facility. The defendants argued that the flour was not being held for sale, as the Act required, because the flour was solely intended for use in baking products. It is important to note, though, that the food that the defendants was deemed to have adulterated is the flour, and not the resulting baked goods. In holding that the defendants had violated the Act, the court was really only called upon to decide whether the situation presented by this case was different from the one the Supreme Court had faced in the Wiesenfeld Warehouse case (See Part 1 of this series), where the owner of a warehouse was found to have violated the Act by allowing food to become adulterated while held for intrastate sale after interstate shipment. The court in Cassaro decided that there was no difference because a key purpose of the Act was to protect interstate commerce from the inevitable negative effects on sales that occur when the public learns of food being made with adulterated ingredients. Thus, in passing the Act “Congress reasoned that the adulteration of goods that had been shipped in interstate commerce would lead to consumer dissatisfaction and lack of confidence in those goods, thereby depressing the demand for out-of-state products and making it difficult for out-of-state manufacturers to market them. The knowledge that local bread and rolls have been made with contaminated interstate flour would presumably depress the demand for interstate flour in a similar manner.” The court held that causing the adulteration of previously unadulterated ingredients shipped in interstate commerce is a violation of the Act even if the ingredient is to be used in the making of food to be sold solely within the state in which the food was made. In other words, the court treated the commercial bakery as if it was a warehouse, upholding the enforcement action based on the failure to keep the flour — an ingredient — safe from adulteration. And even though it was not going be sold — only used in baking products that were then going to be sold —t hat made no legal difference here, according to this court, applying Supreme Court precedent. Whether the Supreme Court would agree is not something we know, although an educated guess is possible. What the Cassaro court does not hold, though, is that a punishable violation of the Act occurs when the adulteration did not occur within the plant because of some alleged regulatory failing there. It therefore is an open question whether a restaurant or any other wholly in-state facility would be subject to FDA enforcement authority under the Act for manufacturing food that is adulterated, but only because an ingredient that was already adulterated was used. That the already adulterated ingredient arrived via interstate commerce would not seem to be enough, at least not without some demonstrated prior knowledge of the adulteration. United States v. 14 Cases, 374 F. Supp. 922 (W.D. Miss. 1974) This case also involves a drug manufactured for in-state sale using an interstate ingredient. There was no question that the ingredient was an “active ingredient,” but it made up less than 1 percent of the finished drug. Citing cases discussed above, the defendants argued that the requirement of interstate commerce was not satisfied by “minor ingredients of the final product or components which lost their identity in the final product.” The court rejected this argument, holding that it is enough so long as the ingredient shipped in interstate commerce was an active ingredient. But because this holding is specific to drug products only, this case does not shed light on the jurisdictional question in food product cases. There might be an analogy to an “active ingredient” in food, but it is not readily apparent what that might be. The closer analogy is probably an ingredient that, even if present in small amounts, is somehow definitive of the final product, such as a mint extract in mint ice cream, or sesame seeds on sesame bagels. But even if so interpreted, like many of the other cases cited, this case similarly acknowledges that not all interstate ingredients will always be enough to give the FDA enforcement authority. The FDA’s position that “interstate components regardless of amounts” does not have any clear support in the existing case law, leaving much to argue about for both sides. Editor’s note: Part 3 of this opinion series by Denis Stearns will look at whether some more recent court cases shed additional light on the jurisdictional question. He will also explore the best argument each side might have with regard to whether FDA has enforcement authority under the Food, Drug and Cosmetic Act against Chipotle for the norovirus outbreak. Denis Stearns is a partner in Seattle’s Marler Clark law firm. Food Safety attorney Bill Marler is also publisher of Food Safety News.   (To sign up for a free subscription to Food Safety News, click here.)

“Ah, but a man’s reach should exceed his grasp, Or what’s a heaven for?”

— from Robert Browning’s “Andrea del Sarto”     

  Part 1: FDA’s position on its jurisdiction over in-state food producers When the news broke on Jan. 6 that Chipotle Mexican Grill had been served with a federal grand jury subpoena as part of a criminal investigation into a norovirus outbreak at one of its California restaurants, Bill Marler walked into my office and asked the obvious question: How does a federal agency — here the FDA — have jurisdiction over what happened at a restaurant if none of the food made there is ever sold in interstate commerce? Bill had been quoted that same day in the New York Times, stating that, “It’s perplexing, because I’ve never seen this before.” Times reporter Rachel Abrams also wrote: “The move could represent a highly unusual step by the federal authorities, which generally have tended to focus on manufacturers or farmers, rather than restaurants, in investigations of food-borne illnesses, food safety experts said. In the past, the authorities have intervened when contaminated food crosses state lines, they said.” But this norovirus outbreak at a California Chipotle was plainly localized, and caused by contaminated food that never crossed a state line. Indeed, a majority of the food involved probably did not even cross the street, given how commonly customers purchase their food and eat it right there in the restaurant. Consequently, there is no question that the food that caused the outbreak did not enter “interstate commerce,” a requirement that is widely understood to be a precondition for the FDA to take enforcement action under the Federal Food, Drug, and Cosmetic Act. That understanding is based on the fact that the Act, which is the sole source of the FDA’s authority, prohibits only the “introduction or delivery for introduction into interstate commerce of any food … that is adulterated or misbranded.” Thus, presumably, food that did not enter into interstate commerce would be beyond the FDA’s authority. So, how then could FDA take action against Chipotle for the California norovirus outbreak? Courts have historically given FDA significant leeway in enforcing the Act, given its broadly intended public health purpose. For example, in a case that reversed the dismissal of six criminal charges against the owner of a food storage warehouse overrun with vermin, the U.S. Supreme Court explained that that the purpose of the Act was “to safeguard the consumer from the time the food is introduced into the channels of interstate commerce to the point that it is delivered to the ultimate consumer.” The court also recognized that in enacting food and drug legislation, Congress had been concerned “with protecting the lives and health of human beings, under circumstances in which they might be unable to protect themselves.” The broad protective purpose of the Act was discussed in similarly expansive terms, and also quite eloquently, in an earlier case where the Supreme Court first affirmed that executives of a corporation —  and not just a corporation itself — could be found guilty of misdemeanor violations of the Act, even if completely unaware of the wrongdoing. “The purposes of this legislation thus touch phases of the lives and health of people which, in the circumstances of modern industrialism, are largely beyond self-protection,” Justice Felix Frankfurter wrote in that case. “Regard for these purposes should infuse construction of the legislation if it is to be treated as a working instrument of government and not merely as a collection of English words.” The court held that the Act “dispenses with the conventional requirement for criminal conduct — awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger.” Given the crucial public health purposes of the Food, Drug, and Cosmetic Act, it would be difficult to question the logic of imposing its criminal penalties on a restaurant that caused a significant outbreak of foodborne illness through the sale of adulterated food. But given that the Act was enacted to prohibit the sale of adulterated food in interstate commerce, there remains the question whether the FDA possesses the authority or jurisdiction to enforce the Act against an individual restaurant where the adulterated food was manufactured, sold and consumed entirely with a state. Logic would appear to say that the answer to this question must be no. Not so, says the FDA. In a position first articulated on Nov. 10, 1978, and twice revised, most recently on Aug. 31, 1989, the FDA addressed the argument that it lacks jurisdiction over any “finished product (that) has not itself been shipped in interstate commerce” as defined by the Act. The agency’s policy, as set forth in the FDA Compliance Policy Guidance is: “The Food & Drug Administration has jurisdiction over all products made from interstate components regardless of the amount present, even though the finished product has not moved in interstate commerce. Action may be taken against the product or the responsible firm when violative finished products are encountered, or when conditions of manufacture result in nonviolative interstate ingredients becoming adulterated or misbranded. The importance and the amount of the ingredient in the product, as well as the seriousness of the violation, will be considered in arriving at the decision to take action.” In short, so long as finished products are composed in any respect or amount with an ingredient that has been shipped in interstate commerce, the FDA claims by its policy to have jurisdiction over both finished products and the manufacturer of those products. That would then be the basis for the FDA claiming to have enforcement authority over the Chipotle restaurant in Simi Valley, Calif. In support of this policy, the FDA identifies five court cases “involving this question (that) establish that FDA clearly has jurisdiction over finished products made from interstate components.” If the FDA position is legally solid, one avenue of defense for Chipotle will clearly not be available. On the other hand, if the FDA position is subject to a successful legal challenge, then Chipotle might be in a position to avoid criminal penalties, or successfully defend against them. Editor’s note: Part 2 of this opinion series by Denis Stearns will weigh the strength of FDA’s position — and the cited cases supporting it — against the arguments that might be marshaled against efforts to charge Chipotle with crimes based on alleged violations of the federal Food, Drug, and Cosmetic Act. Denis Stearns is a partner in Seattle’s Marler Clark law firm. Food Safety attorney Bill Marler is also publisher of Food Safety News.

Dorothy: “Don’t you know the Wizard’s going to give you some courage?” Cowardly Lion: “I’d be too scared to ask him for it.”

In an article that will soon be published in the Seattle Law Review, I take a look at food safety through the lens of the “pink slime” controversy and question whether the lack of real transparency that characterizes food safety regulation, especially with regard to meat and poultry, is more intentional strategy of agencies and industry than byproduct of the public not simply wanting to think about just how unsafe food can be.¹ In the article, I compare the U.S. Department of Agriculture (USDA) and the meat industry to the Wizard of Oz, an entity that Dorothy, her traveling companions, and those living in Oz all thought was “great and powerful” — that is, until he was revealed to be a huckster who was fooling everyone through trickery and special effects. But, in reading some recent remarks by Brian Ronholm, Deputy Under Secretary at USDA’s Food Safety and Inspection Service, another comparison for USDA and its regulation of meat and poultry quickly came to mind: the Cowardly Lion. As reported by Food Safety News, Ronholm was appearing last week at the 2015 National Food Policy Conference in Washington, D.C., when asked about the agency’s policy on declaring Salmonella an “adulterant” under the Federal Meat Inspection Act (FMIA). According to the article:

Ronholm explained that the interpretation of why E. coli is an adulterant in ground beef but Salmonella isn’t adulterating poultry stems from past court cases. “There are several ways to cook a burger: rare, medium, well-done. In the court’s mind, because there are several ways, it’s possible to not cook E. coli out of a burger,” Ronholm said. “Now look at poultry. In the court’s mind, there’s only one way to cook a chicken. You cook it to 165 degrees and it kills the Salmonella.” “Because ordinary cooking is able to kill Salmonella, in the court’s mind, it cannot be declared an adulterant,” he added.

The court (and court case) he is referring to is one with which I am exceedingly familiar, not only because I have been an attorney handling food-related cases for more than 20 years, but because I also a professor of food law and policy, and this semester my students and I spent several hours of class time both unpacking this particular case and also the historical evolution of USDA policy on adulterants in meat. And although I readily admit that there are grounds for reasonable disagreement when interpreting any court case, I am nonetheless 100-percent confident in asserting that Ronholm is either telling a big fat lie or the attorneys at USDA are telling their bosses what they want to hear to justify continuing and cowardly inaction on the Salmonella front. Like so much that USDA does, it wants to appear busily in action, convincing the public that, “We are on it!” and, “No need to worry!” At the same time, they repeatedly trot out this line of defense with regard to Salmonella in meat, claiming that, “Our hands are tied!” and blaming it on the courts. But all of this is clearly subterfuge, and I would be shocked if Ronholm and other higher-ups at USDA were unaware of the real duplicity at work here. Because no court has tied USDA’s hands. Instead, USDA is sitting on its hands while millions are infected with Salmonella and injured each year. So, let’s look at this case that Ronholm cites — American Public Health Association v. Butz, a 1974 decision of the D.C. Circuit Court of Appeals. This decision stemmed from a lawsuit that APHA, one of the leading public health associations in the United States, had filed against USDA. In the lawsuit, APHA accused USDA of “misbranding,” a violation of the FMIA because the agency was placing the mark of inspection (“USDA inspected and passed”) on meat and poultry in a way that was false and misleading and by failing to warn against the dangers of Salmonella. APHA further argued that USDA had abused its discretion in refusing to add a warning and instructions for proper preparation and storage to the mark of inspection. The warning that APHA sought read as follows: “Caution: Improper handling and inadequate cooking of this product may be hazardous to your health. Despite careful government inspection, some disease-producing organisms may be present. Consult your local health department for information on the safe handling and preparation of this product.” Of course, a similar warning now does appear on all meat and poultry products, an indication of just how much has changed since 1974. And it is that change that matters so much when seeking to understand just how disingenuous USDA is being now when it points to the APHA v. Butz decision as evidence that the court more than 40 years ago tied its hands, and that its hands remain tied today, preventing it from taking more effective action against the illnesses and death caused by Salmonella-contaminated meat and poultry. At the time of the APHA lawsuit, USDA did not consider pathogens in raw meat to be adulterants — any pathogens, including E. coli O157:H7. USDA was still in the “poke-and-sniff” era of meat inspection that had commenced with the passage of the FMIA in 1906. But plainly the USDA position changed in the wake of the 1993 Jack in the Box E. coli outbreak, and today we have both warning and instruction labels on meat, but we also have USDA declarations that certain pathogens are “adulterants” within the meaning of the FMIA when present on raw meat. And recall, USDA was sued when it made these declarations, and USDA fought in court and won. That is the nature of the beast when it comes to USDA imposing stricter regulations. A lawsuit is like the sun rising in the morning and setting in the evening: inevitable. And, while there was a time when USDA appeared to have the courage of its convictions, that time seems to have passed in a decision way. But back to the APHA decision and USDA’s present dissembling. Ronholm claims that, in its decision affirming dismissal of the APHA’s lawsuit, the court specifically decided that, “Because ordinary cooking is able to kill Salmonella, … it cannot be declared an adulterant.” That claim is untrue. First, note that the position of USDA in front of both the trial court and on appeal was that “since ‘there are numerous sources of contamination which might contribute to the overall problem’ it would be ‘unjustified to single out the meat industry and ask that the Department require it to identify its raw products as being hazardous to health. Such an act would have to apply to any and all sources of salmonellae in order to be fairly administered.’” USDA was defending the meat industry’s interests here and the USDA inspection policy overall, which was, as noted above, premised on the notion that there was no such thing as an “adulterant” in raw meat, and that meat was, as a byproduct of how it was slaughtered, inevitably going to be contaminated, thus making such contamination “inherent” to meat. But USDA no longer accepts this premise as true. The agency’s position has changed. If it had not changed, then E. coli O157:H7 could not be declared an adulterant either. Second, the observation about “ordinary cooking” is not an observation that the court made; it is an observation that USDA made. Here is what the court decision actually states (emphasis added):

As the Department 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.

Of course, the somewhat sexist “in other words” rephrasing of USDA’s position is the court speaking, but most first-year law students could easily explain that is not the court’s holding in the case and, as a result, it has no precedential or binding power. Thus, Ronholm was plainly wrong when he asserted ”in the court’s mind, [Salmonella] cannot be declared an adulterant.” No — in 1974, that was in USDA’s mind and, apparently, it still is. But please don’t blame it on the court. Third, and also apropos of the “customary methods of preparing food for the table,” which is the phrase that ends the majority opinion in this case, the issue before the court with regard to consumer knowledge of the risk of Salmonella related to APHA’s attempt to require a warning label on meat and poultry. Whether Salmonella could be declared an adulterant was an issue not before the court. In ruling on the issue of the warning label, the court did nothing more than defer to the agency’s discretion. As the court explained:

After carefully considering the appellants’ proposals the Secretary concluded that warning labels were not the answer to the problem and that the solution was a consumer education program which the Department proposed to undertake. We cannot say that this conclusion was unreasonable; certainly we may not substitute our judgment for that of the Secretary.

Finally, on the question of whether the court decided anything with regard to Salmonella’s presence being an adulterant, it must be remembered that the issue before the court was whether the USDA mark of inspection was “false and misleading” for stating that the meat was “passed and inspected” even though Salmonella might be present. On that central issue, what the court decided was about the method of USDA inspection, a method that, as the court noted, APHA had conceded was reasonable:

As alleged in the complaint, and established by the record, “The inspection procedures now required by the Wholesome Meat Act and the Wholesome Poultry Products Act do not include any investigation to detect the presence of salmonella in meat or poultry, because no such microscopic examination is considered feasible as a routine matter.” The reason for this situation is apparent: a poultry inspector, for example, may conduct post mortem examinations of more than 10,000 birds in one day. Microscopic examination of each bird would obviously be impractical. Recognizing and accepting this fact the appellants do not seek revision of inspection techniques.

Accordingly, against the backdrop of the APHA concession, which the court accepts, the court then confronted the issue of whether, despite this conception, the mark of inspection constituted “misbranding” for the USDA having placed it on meat that was contaminated with Salmonella. The court said no, and here is why:

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.

In other words, because the FMIA does not require “microscopic examination” of meat as the method of inspection, and because only such examination can reveal the presence of Salmonella, the mark of inspection is not “false and misleading” as a result of there being the possibility that Salmonella might be present on the meat sold. And who can really quibble with such logic? Not me. But here is the problem. USDA now tests for the presence of Salmonella, and USDA inspection is built upon the foundation of the microscopic examination of meat and poultry. So, let me ask you this: Flash forward the APHA v. Butz case to the present. Do you think the court would now reach the same decision? For a clue, let’s look at what the dissenting judge in the case wrote:

My colleagues try to support their holding by the claim that Congress “did not intend the prescribed official legends to import a finding that meat and poultry products were free from salmonellae.” That observation, I submit, is wide of the mark. Congressional intent is not helpful in determining whether the labels are misleading; the relevant inquiry is the understanding of consumers. Appellants proffer evidence tending to show that consumers in large numbers understand the challenged labels to mean that the Federal Government has inspected the labeled food products for the presence of salmonellae. That indication is false, for no such inspections are ever made, and labeled products are “passed” even if they contain salmonellae.

In the end, what is so untenable and troubling about USDA’s position on all of this, is how much it rests on a view of meat and meat inspection that was supposed to have gone away after the tragedy of the Jack in the Box outbreak. There was a time when it seemed that USDA was going to embrace its public health mission and choose to fight for safer meat, even in the face of threatened lawsuits. But, alas, it seems to now be back to its old ways — a Cowardly Lion, afraid of its own self-made shadows. ¹ See Denis Stearns, PAY NO ATTENTION TO THAT MAN BEHIND THE CURTAIN: Concealment and Revelation and the Question of Food Safety; OR, How “Pink Slime” Tells You All That You Need to Know about Food in the United States, 38 Seattle L. Rev. ___ (2015) (publication pending).

Now, if you think the metaphor employed in that last sentence was me merely being fanciful, that is not the case. In particular, I have been thinking lately about an issue that I addressed before in an article here on Food Safety News. In that article I observed (and I am paraphrasing myself now) that cultivation of any kind requires a suitable place, a locale, and amenable conditions. This thinking of mine had been renewed by, among other things, a Brownbag lecture that I recently gave during Social Justice Week at the law school.

During an energetic discussion that I more listened to than led, students took turns questioning whether local agriculture in an urban setting was realistic. “Where is the land to grow the food?” one student asked. Another student pointed out that the Seattle P-Patch Community Gardening Program had been around a long time, but that the amount food produced was not significant. And more than one student pointed out that too many people lack the time or money to, for example, shop at a farmer’s market, or to use fresh, raw ingredients to create a meal. In response to all of this I posed a simple-seeming question that, I freely admit, was not simple at all.

How do we make these issues the start of a conversation, not the end? Too often, it seems, almost regardless of the topic, saying that something “costs too much” is the best way to shoot down an idea. Similarly, saying that “there’s not enough time,” or “the conditions are not right,” is an answer that becomes an excuse for inaction and silence. Again and again, over the years, I have seen these kinds of responses not only stop progress from being made, but stop any discussion of the possibility of progress. And, again and again, the only thing that restarts the discussion is crisis and death.

Take the recent tragedy of the Jensen Farms cantaloupe outbreak, for example. It is not as if the danger of cantaloupe contamination is new or surprising. Marler Clark handled one of its first cantaloupe-related death cases about a decade ago,  and outbreaks linked to contaminated cantaloupes have occurred with regularity since then. But in light of this most recent outbreak, in which at least 25 people have died, the cries for food safety reform are as loud as they are predictable.

For example, the Colorado Agriculture Commissioner, John Salazar, was on October 27 quoted as saying that Colorado (where Jensen Farms is based) will take a “bigger role” in the oversight of the cantaloupe industry following a Listeria outbreak, including some sort of safety-certification program. Of course, Salazar added that the “state does not have resources to pay for a certification program and farmers might have to pay for it.”   On the retail side of things, the head of food safety for Costco is quoted in the New York Times as saying, “I don’t think the cantaloupe industry can continue on doing the very same thing and expecting a different result. It’s time for companies to get more aggressive. If they know this is going to happen, let’s step up and not let it happen.” 

How much do you want to bet that someone has said this before about an outbreak linked to contaminated fruit or produce?  (Hint: Many, many people have, and will again.)

In other words, the more things change, the more things stay the same. Which brings me back to my most recent conversation about food safety that I had on campus. This was a conversation with a law student who is working on an article about the Food Safety Modernization Act. The student wanted to get my thoughts on the Act, whether I thought it a good or bad thing and, in particular, what about the impact of the Act on small and local agriculture. The conversation lasted almost an hour, and together we covered lots of ground. But when asked to sum up my thoughts, based on what we had discussed so far, I closed by saying this: “Well, the Act won’t really matter at all, for good or bad, if the FDA never finds the time to draft the necessary regulations, and if Congress does not appropriate the necessary funds to implement the Act.”

And there you have it–the need for time and money. Again. 

       “I am no longer eating steamed buns, a 65-year-old Shanghai man who gave his last name as Chen, declared in front of a supermarket window emblazoned with the motto “No fake goods in Hualian.”

“None of them are reliable,” he spat. “They really have no morals. They will do anything for money.”[1]  — New York Times, May 7, 2011

Today Bill Marler forwarded a link to me that led to an article in the People Daily’s Online on the ongoing food quality and safety challenges in the Chinese market for food.[2]   Reading the article, one section quickly stood out for me, particularly in its use of an interesting metaphor for unsafe food:

        Tainted melamine milk powder, salted duck eggs containing cancer-  causing dyes, artificial honey, fake wine, donkey-hide gelatin, waste oil, sulfur steamed ginseng, plaster tofu, dyed bread … the list goes on. 

         Sadly, many people estimate that the list will get longer. Every day we worry about the next food time bomb exploding, we just do not know where the site of the blast will be.

I had never before imagined adulterated food as a kind of bomb waiting to explode as soon as someone buys the food and eats it, and consumers as casualties of a kind of economic warfare in which profit motives are controlling. But what an apt metaphor it is, especially in describing the vulnerability of the consumer to the financial motives of food sellers who, as the article puts it, “have individual rationalizations, if the illegal gains exceed the costs, it will be worth it.” The article continues, concluding as follows:

         As food safety affects the interests of each person, and may threaten social stability, it should arouse the attention of the government. The problem that exists for ordinary people is simply: what can we safely eat today?

Of course, the problem is that, with food, one never really knows whether the food about to be eaten will cause illness, injury, or death. It is not as if it is feasible to drag a microbiologist around with us every time we go food shopping so that we can test for pathogens before putting that package of ground beef in our shopping cart. Ultimately, buying food and eating it is, and always will be, a matter of trust — or strategic denial.  Indeed, when we are no longer able to trust the food available in the marketplace, then buying food becomes a matter of insecurity and fear. When will the next time bomb go off? And who will be the next casualty?

Coincidentally — or perhaps not — was the article published in the May 7 New York Times on food safety in China in which much the same points about profit motives and consumer vulnerability and fear were made:

         Scandals are proliferating, in part, because producers operate in a cutthroat environment in which illegal additives are everywhere and cost-effective. Manufacturers calculate correctly that the odds of profiting from unsafe practices far exceed the odds of getting caught, experts say. China’s explosive growth has spawned nearly half a million food producers, the authorities say, and four-fifths of them employ 10 or fewer workers, making oversight difficult.

         China’s iron political controls ensure that no powerful consumer lobby exists to agitate for reform, press lawsuits that punish wayward producers or lobby the government to pay as much attention to consumer safety as it does to controlling threats to its own power. Instead, like Alice after falling through the rabbit hole, consumers must guess what their food and drink contain.

          “Basically, people now feel nothing is safe to eat,” said Sang Liwei, who directs the Beijing office of the Global Food Safety Forum, a private agency. “They don’t know what choices to make. They are really feeling very helpless.”[3]

According to this article’s author, this feeling of helplessness by Chinese consumers, the feeling of having “their hands tied,” can be contrasted with that of “their Western counterparts.” And I suppose some amount of contrast does in fact exist, but only as a matter of degree, not kind. Certainly, consumers in the United States can and do “press lawsuits” against culpable food sellers, and consumers can and do “lobby the government to pay as much attention to food safety as it does to its own power.” But if you listen closely to the ongoing political debates, there is more than one political faction that would have the United States more closely resemble China, with significantly less (or no) regulation and government oversight, and a robust trust in the economic forces of a “free” market to provide consumers with food that is as safe and wholesome as they are able to demand and pay for.  

The only problem with this conception of a free market in food is that, just as with Alice and Wonderland, it is nothing but fiction. Recall Alice’s response to reading the Jabberwocky poem, and ask yourself to what extent it works as a response to ardent free market proposals.

         “It seems very pretty,” she said when she had finished it, “but it’s rather hard to understand!” (You see she didn’t like to confess, even to herself, that she couldn’t make it out at all.) “Somehow it seems to fill my head with ideas–only I don’t exactly know what they are! However, somebody killed something: that’s clear, at any rate.”

Although I would not go so far as to describe all defenses of free market (or laissez-faire) economics as a nonsense poem, at least with regard to the market for food, will do so. A truly free market in food makes about as much sense as Bandersnatch, snicker-snack, and mimsy.

I offered a detailed critique of this fictional “free market” in food in an article I published last year in the Stanford Law and Policy Review[4],  and I will not repeat my arguments here. I do, however, want to mention my notion of “(cr)edibility,” a term I coined to describe and define the element both most lacking, and most needed, for a market for food to satisfy the safety and quality desires of consumers.  Summarizing the definition, I explained, 

         the term (cr)edibility is intended to reveal food exchange as an essentially (and unavoidably) intimate act that can never be fully commercialized. The exchange of food, whether by gift or sale, is founded and made possible by trust of the most extreme and significant kind. There are few things that make one more vulnerable than eating. Accordingly, (cr)edibility is the sine qua non of food exchange.[5]

Without (cr)edibility in the market for food, or an understanding of its necessity to any market model, we are left with a political debate dominated by competing caricatures, between the laissez-faire of the Wild West, and Stalinist state-control and the utter failure of five-year-plans. In this competition, government-imposed regulation is inevitably and inherently a bad idea, never resulting in anything but inefficiency and failure. Instead of government control or supervision of the marketplace, the “invisible hand” of profit motives should be allowed to work its magic, producing the most efficient results in satisfying consumer demands. Like in China.

Which brings me to my final point. In the debate over food safety,
the
example of China provides the means of escaping the intractable either-or of the political debate over regulations.  If we can agree that laissez-faire in China is not a model to follow, we are then better able to appreciate the significance of fake eggs and “recycled” buns in China.  But if we merely see China as foreign and undeveloped, as the “other” to our more developed approaches to food safety in the United States, we will miss out on recognizing that many politicians in our country are holding up China as a model for us to follow — they just will not admitting doing so. And that is a real problem, because it is not as if the words of Mr. Chen are not just as aptly applied to some food companies in the United States — “They will do anything for money.”

–———————————–

[1]Sharon LaFraniere, In China, Fear of Fake Eggs and ‘Recycled’ Buns, N.Y. Times, May 7, 2011, http://www.nytimes.com/2011/05/08/world/asia/08food.html

 [2]See Huang Shuo, The Recipe of China’s Food Safety Crisis, People’s Daily Online, May 10, 2011, http://english.peopledaily.com.cn/90001/90780/91345/7375031.html#

 [3]LaFraniere, supra at note 1.

 [4]Stearns, Denis, On (Cr)edibility: Why Food in the United States May Never be Safe (2010). Stanford Law & Policy Review, Vol. 21, No. 2, 2010; Seattle University School of Law Research Paper No. 11-06. Available at SSRN: http://ssrn.com/abstract=1763422 

 [5]Id. at 102.

Ahead was a mounted policeman in khaki directing traffic. He raised his baton. The car slowed suddenly pressing Brett against me.

“Yes,” I said. “Isn’t it pretty to think so?”

–last lines of “The Sun Also Rises,” by Ernest Hemingway

Although for those preferring to believe in the romance of it all–that is, those taking the stated view of Lady Brett Ashley, I have always loved the entirely non-ironic summing-up of things delivered by Jake Barnes in the last line of the novel, “The Sun Also Rises:”  Isn’t it pretty to think so?   In six simple words, Jake shrugs away the empty, calculated optimism that is the necessary ingredient, the sine qua non, of all those who feign to see world as it perhaps should be, instead of how it is.  Isn’t it pretty to think that the world could be perfect, and that anything we can imagine can indeed be. 

Jake Barnes’s pithy indictment of self-serving wishful-thinking came to mind when I read a press release from the National Meat Association (NMA), a leading trade association representing the interests of the meat industry.  In the press release, the NMA calls attention to a National Academies National Research Council report titled, “An Evaluation of the Food Safety Requirements of the Federal Purchase Ground Beef Program,”  which was released Dec. 9, 2010.  In its press release, the NMA emphasizes one main point, stating as follows:

In its assessment, the Research Council concluded that validated cooking processes provide greater assurance of ground beef’s safety than would additional testing for pathogens.  

The Research Council also recommended that AMS assess the usefulness of its microbiological data as a scientific basis for testing for indicators and base its requirements on standards supported by the International Commission on Microbiological Safety of Foods, the Codex Alimentarius Commission, and the Research Council itself.

National Meat Association supports the concept that safety requirements should be strengthened using scientific methods.  Through scientifically sound production practices and by ensuring meat is properly cooked before it is served, we can better prevent future illnesses.

  (Emphases mine. For a somewhat more balanced take on the report, see Bryan Salvage, “More stringent testing doesn’t equal safer meat: study,” Dec. 9, 2010 on the Meat & Poultry website.)

Of course, the take-home message from this report, as far as the meat industry is concerned, is that stricter testing cannot guarantee safe meat, but “validated cooking processes” can provide such a guarantee.  (Circular logic alert!)  In other words, a process that finds and identifies the presence of pathogens in large quantities of ground beef cannot guarantee that the meat is safe to eat as compared to a process that has the potential to eliminate pathogens from ground beef, if the process is done correctly.  Did they really need to hire scientists to come to this conclusion?  Seems obvious to me.

What is not obvious, however, is why no one thought to ask the question of whether stricter testing would create an incentive for meat companies to manufacture ground beef that did not contain pathogens in the first place.  As the USDA has (in one of its  occasional moments of lucid objectivity) stated more than once before:

Several industry commentators stated that consumers should assume more responsibility for their safety and expressed the need for consumer awareness programs regarding the importance of cooking beef products thoroughly.

Industry can reduce or eliminate risk associated with [E. coli] O157:H7 through various controls and interventions . . . that can be incorporated into HACCP systems.  Because industry has the means to reduce or eliminate the hazard, consumers should not be expected to assume all the responsibility for preventing foodborne illness associated with [E. coli] O157:H7.*

The USDA has also admitted that if the “presence [of E. coli O157:H7] can be prevented, no amount of temperature abuse, mishandling, or undercooking can lead to foodborne illness.” (See HACCP Final Rule, 62 Fed. Reg. at 38,962.)

But, to the meat industry, it is beyond heretical to suggest that pathogens need not make it into meat in the first place.  Instead, the meat industry’s mantra has long been, and still remains, that the only real solution to making meat safe to eat is proper cooking. That is why the meat industry has, as predictably as the sun rising in the morning, leapt at and embraced with such fervor the seeming conclusion of the just-released report on the USDA’s ground beef purchase program for school lunches.  In doing so, however, the meat industry yet again defiantly ignores the obvious.  Although the meat industry can reasonably be expected to prevent meat from being contaminated as part of the manufacturing process, the average consumer cannot be expected to make contaminated ground beef safe to eat in each and every instance of cooking.  Indeed, one of the leading experts on behalf of the meat industry has conceded as much, saying:

It is not realistic to expect that all consumers will apply perfect cooking methods when preparing frozen ground beef patties. The risk of E. coli contamination in these products has to be reduced upstream.

But perfection is nonetheless what the meat industry expects of consumers, all the while insisting that perfection is an irresponsible standard to apply to the meat industry.  That is why the NMA’s press release called to mind Lady Brett Ashley for me.  Like Lady Ashley, the meat industry prefers to dream of a perfect world that does not, and cannot, exist, rather than to face the reality of making hard and difficult decisions in the real world, decisions that would force a confrontation with the less pretty things of life.

In a perfect world, every driver would unceasingly use the utmost care and no automobile accidents would occur.  In a perfect world, every sidewalk would be quickly shoveled of snow and ice, and the folks who run the local grocery store would make sure there was nothing on the floor that would make someone slip and fall.  In a perfect world, every machine would work precisely as designed, planes would not crash, and poisons would stay out of the hands of small children.  Indeed, in a perfect world, accidental injuries would not occur because accidents would not happen.  Alas, we do not live in such a perfect world.  But try telling that to the NMA.

——-

*See “Recent Developments Regarding Beef Products Contaminated With Escherichia coli O157:H7,” 65 Fed. Reg. 6881, 6884 (announcing that the agency would hold a public meeting “to discuss FSIS’ policy re
garding [E. coli] O157:H7 and new information concerning the pathogen and its relation to human health.”)

Since Rain Shadow Meats opened I have become a regular customer, usually dropping by early Sunday afternoon, or sometimes mid-week as I walk home from work.  And, I must say, I really enjoy my visits.  A large part of this enjoyment is derived from the face-to-face of buying meat from someone whom I trust to provide high-quality meat at a price that I know is fairly set.  I know that Russell has taken the time to know from where the meat he sells comes, and that getting the meat cheaper or easier is not given consideration.  Much of this is clearly set forth in the shop’s mission statement, which reads in large part as follows:

“Our mission is to bring back the local neighborhood butcher with an emphasis on whole animal butchery, education, and the creation of community. We work with local farms to provide farmers with a means to reach the public through our customers and to guarantee the highest quality products.” (emphasis mine)

So, instead of facing a glaring meat case in a grocery store, with meat from who-knows-where anonymously peddled, buying from Rain Shadow Meats gives me an opportunity to be a member of a community.  Moreover, being a part of this community gives me the opportunity to support the values of ethical, local, and small-scale meat production, which is to say, NON-industrialized meat production.  Thus, not only am I able to buy what, to me, represents an excellent value because of its high quality, but I am able to buy from a butcher shop that shares and represents my values.

Certainly, the meat that I buy from my butcher costs more than what I could get at the local Safeway or Wal-Mart; however, what I am buying is more valuable.  To my mind, I am getting more than what I pay for.  I am contributing to the economic success (I hope) of a small business in my neighborhood, and I am offering support for local agriculture, something that the commoditization and industrialization of our food supply has done its level best to obliterate.  And, on top of all that, the meat that I buy from “my butcher” tastes incredible.

Of course, I can already hear the naysayers beginning to accuse me of elitism, sneering–“Oh, sure, listen to the well-paid attorney sing the praises of pricey meat. Tell that to the struggling family of four who could never afford ground chuck selling for $6.49 a pound.”  But this point (which is a classic red-herring argument, in any case) is nicely addressed in the MSNBC article about Rain Shadow Meat:

“Although he was nervous at first that customers would get sticker shock, so far [Russell] said the higher prices have not seemed to scare away customers who believe in the type of meat he sells.

“On a recent weekday morning, preschool teacher Michael Washington biked up to Rain Shadow Meats to buy a couple pounds of beef chuck — at $6.49 a pound — which he was planning to use to make goulash. The same cut was selling for $3 less per pound at a nearby chain grocery store.

“Washington, 30, said he can’t afford to buy high-end meat all the time. But he said his girlfriend has persuaded him that it’s worth it to at least occasionally invest in meat that is grown locally on small farms and with fewer additives. It’s not just because it might be healthier or taste better.

“(She says), ‘Shouldn’t you be paying more? This is the life of an animal that you’re using,’ ” Washington said.” (emphases added)

What an interesting–and correct, I think–way to look at the value of the meat being sold at Rain Shadow Meats.  Buying the type of meat you can believe in is not just a purchase, but also an investment.  Moreover, if you focus on the notable quality of the meat that is being purchased, it is suddenly easier to appreciate the real value of paying more, but also getting and giving more.  For as my grandmother, who grew up during the Great Depression, was heard often to say, “Just because something is cheaper does not mean it’s a good value.” Why else would the term “cheap” have become mostly a pejorative term–as in, “a job done on the cheap.”

For this and other reasons, I continue to think it bizarre that large numbers of U.S. consumers still uncritically accept the notion that cheap–or should I say, less expensive–meat is necessary so that it can be eaten with every meal of every day.  When I was growing up, in a home of exceedingly modest means, the Sunday roast was a near-celebratory thing. There was simply no expectation that you were going to have a big chunk of meat with every meal.  And, as a result, the meat our family did enjoy, not infrequently but not everyday, was valued that much more.

This reminds me of an episode of the cable-television show, “The Fabulous Beekman Boys.”   In this episode, called “Bringing Home the Bacon,” Josh and Brent prepare the two pigs they have raised (and given names to) for slaughter.  (They had hired two experts from a nearby university to do the slaughter, but Josh and Brent intended to be present.) As the episode unfolds, there is quite some suspense built around whether they will really go through with the slaughter, and quite a few tears are shed along the way–including by me.  I will not spoil the ending for those who may want to watch the episode (which I highly recommend).

One of the many things truly notable about the “teaching moment” that this episode made possible is the lovely blog post that Brent and Josh authored afterwards, titled “An Extra Value Meal.”  (Notice that word value again?) In the blog-post, among the several points made, is an explanation of the efforts that the boys make to “be sure that all of our animals are cared for in the most comfortable, happy, and safe environment possible. We do not take that job lightly.” (For a video of the boys reflecting on what occurred, go here.)

Nowadays, people mindlessly shove 99 cent hamburgers down their throats, barely stopping to taste them (which might, in fact, be a good thing, now that I think about it).  But, as Adele Douglass, the found of Humane Farm Animal Care (HFAC*),  said when asked why she thought it important for people to understand where their food comes from:

“I think because they’ll value it more.  I think what they were saying, when Brent says he won’t eat a 99 cent burger again, it’s true. It costs more to raise animals right, treat them right. It’s important for people to appreciate that there’s a sacrifice involved for their food. I think that most of us have an idea of
where food comes from, but the idea we have isn’t a reality.

Neither is it a reality to pretend that bacon can arrive on our plate without there being a death involved–namely, the death of the pig from which the bacon came.  In watching the episode of the Beekman Boys mentioned above, my partner Tom said, “I could never kill an animal that I had raised myself.”  And I have to say that I agree with Tom; I could not do so either.  But neither will I ignore the fact that, but for the death of a pig, lamb, or steer, there would be no meat for me to purchase or eat. Thus, unless I choose to become a vegetarian or vegan, I feel that it is incumbent upon me to make ethical choices–or, as ethical as I can try to be–when purchasing meat. And if that means paying more, that is an investment that I am more than willing to make.

In the end, being mindful about where my food comes from, especially meat, and how it was produced, is the way I choose to eat.  I want to think about all of the costs associated with the meat I purchase, and not just its purchase price.  That’s one big reason why I am so happy to have Rain Shadow Meats in my neighborhood, and why I don’t think I will ever get tired of telling people to give “my butcher” a try.

*HFAC is, according to its website, a “national non-profit 501(c)3 organization created to improve the lives of farm animals by setting rigorous standards, conducting annual inspections, and certifying their humane treatment.”  Its website can be found here.

Rain Shadow Meats is located inside the Melrose Market building, 1531 Melrose Ave., Seattle. They are open from 10 a.m. to 7 p.m. daily. Their phone number is 206-467-MEAT (6328).  And, for those of you who are of a more cynical bent–no, I have no economic interest in Rain Shadow Meats. I’m just a big fan.

This Labor Day we’re pleased to introduce our new managing editor, Mary Rothschild, who is bringing one main course–crab cakes.  We’re thrilled to have Mary join us.

In addition to Mary’s crab cakes, Suzanne is bringing another main course–pork chops. For sides, Michelle is bringing a roasted beet and goat cheese salad and Denis is bringing deviled eggs.  Helena is bringing a fruit crumble for dessert.  Dan is bringing the beverage, or in his words, “The best whiskey on Earth.”

We’re sharing our recipes here, so you can join in our virtual potluck or use them at your next one. 

Have a Safe Labor Day Weekend!

The Food Safety News team.

According to the entry on deviled eggs at Wikipedia, the deviled egg originated in ancient Rome, and they are still quite popular in Europe.[1]  “In France they are called œuf mimosa; in Hungary, töltött tojás vagy kaszinó tojás; in Romania, ouă umplute (“stuffed eggs”); in Belgium, The Netherlands and Germany, where they are usually filled with caviar and served in rémoulade sauce, they are known as “Russian Eggs” (a title that comes from the presence of the caviar).”  And, of course, in the United States, Deviled Eggs are a staple of summer picnics and backyard barbecues.

I adore deviled eggs, even mediocre ones.  Although it is possible to make a bad batch of deviled eggs, I can only imagine that this would be because the maker didn’t care or didn’t even try.  I mean, come on, this is not a difficult dish to make.  Even better, though, there is practically no limit to the possible variations.  To prove this point, I last night boiled a dozen eggs, and made eeviled eggs two ways, based just on what I happened to have in my refrigerator.  Both kinds turned out to be delicious, thus I highly recommend that you give my recipes a try, both of which require that you first hard-boil and peel some eggs,[2] and then cut them in half and put the yolks into a bowl–or in the case of making Deviled Eggs Two Ways, two bowls.

“Oooh, spicy!” Eggs

Add the following to your egg-yolks, adjusting for your preferences with regard to both taste and desired consistency.

– 4-5 Tablespoons of crema (Mexican sour cream) [3]
– 3-4 Tablespoons of salsa (the non-chunky kind)
– salt to taste
– chipotle chili powder (for garnish)
– cilantro leaves

When you have the taste and consistency you want, place the egg-yolk mixture into the egg-white halves. Garnish with a hearty dash of chipotle chili powder, and one cilantro leaf (which I did not have, so it’s not in the photo).

Deviled Eggs with Tuna

When I was growing up, one of my favorite sandwiches was egg salad with tuna mixed in.  And since I still love this combination of flavors, I thought–why not use it for deviled eggs.  Here’s how:

Add the following to your egg yolks, adjusting for your preferences with regard to both taste and desired consistency.

-3-4 Tablespoons of well-drained tuna (the kind in olive oil is best)
-4-5 Tablespoons of mayonnaise
-1-2 Tablespoons of hot dog relish (the yellow kind) [4]
-salt and pepper (to taste)
-cornichons, or small sweet pickles (for garnish)

When you have the taste and consistency you want, place the egg-yolk mixture into the egg-white halves. Garnish with a slice of cornichon.

References

1.  http://en.wikipedia.org/wiki/Deviled_egg

2.  To learn how to make perfectly boiled eggs from the master, watch Jacques Pepin (my hero!) explain the hows and whys of boiling eggs, here: http://www.youtube.com/watch?v=idAUo_fyHW4 His explanation starts at about the two-minute mark.

3.  Crème fraiche will work too.  Or, just take regular sour cream, add a little milk, and stir until creamy and just slightly runny.

4.  If you don’t have hot dog relish, use sweet pickle relish and add a tablespoon of mustard.

To put it mildly, Ozersky’s piece is so silly it almost seems like intentional satire, along the lines of Jonathan Swift’s A Modest Proposal.[3] To put it less mildly, it is brain-numbingly asinine.  Take, for example, the assertion that “New York and L.A. have become downright draconian in their urge to oversee the inner workings of small businesses like restaurants.” But what has really changed here about how restaurants are overseen? Why, nothing at all. The regulations remain essentially the same, based as they are on the FDA Model Food Code, and the Food Establishment Inspection Report, which have existed in their current format since 1993.[4] Moreover, residents of New York City have for quite some time been able to look online for copies of a restaurant’s recent inspection reports.[5] So, really, the only thing that is changing is that the results of the inspection are translated into a letter-grade, and restaurants must now prominently post the grade in the front window.

But with this one change, Ozersky has been prompted to announce that he “hate[s] to see regulation enforced in such an arbitrary and imperious way.” Even worse, according to Ozersky, the “new letter-grading system will only further encourage the big chain restaurants that are serving crappy food zapped by microwaves.” Yes, I can see it now.  Mario Batali will be forced to close Babbo, only to have it replaced by an Applebee’s restaurant.  To say that Ozersky is being just a little hysterical in his hyperbole is quite the understatement.

Hyperbole is not all that Ozersky relies upon for his rant. He also trots out a few false analogies, like the one where he equates restaurant inspectors (or, in his words, “health department functionaries”) with “the stone-faced meter matron” who is utterly indifferent to his “explanation of why I was about to move my car.” Of course, Ozersky’s analogy might be somewhat less inapt (and less inept) if the failure to move one’s car had the potential cause an outbreak of foodborne illness.  But since it does not, perhaps the “indifference to cooking” of which he accuses restaurant inspectors might not be such a bad thing–that is, when it saves lives.  Ozersky is, however, much too busy complaining about the imagined absence of “tender mozzarella and piquant salami” to give much weight to the presence of Salmonella or E. coli O157:H7.

Perhaps sensing that his rant against restaurant letter-grades has devolved into a plea to abolish all food safety regulations, and to leave the poor chefs alone, Ozersky feigns recognition of the necessity of some regulation as he ends his essay, writing:

“Still, as imperious and ill-advised as many of the city’s health-department rules may be, no one would argue that there shouldn’t be any oversight of what we’re fed in restaurants. Chefs left to themselves won’t take the time to keep pork from rubbing up against chicken, despite the manifest hazards of [S]almonella. But to grade restaurants using a system that rewards nuked food over slow cooking? That seems merely mean. Is it some thwarted, fugitive Tea Party impulse that I feel kicking inside me? Or simple well-earned skepticism, as I wonder, Who grades the graders? I need the health department to watch out for me. I know that. But I don’t need them to publicly humiliate small businesses in order to do so.”

So, apparently Ozersky prefers that the humiliation of a near-failed inspection be kept private, and the results of such an inspection safeguarded from the prying eyes of potential customers.  I mean, otherwise, customers might just reward restaurants who pass their inspections with flying colors, and avoid dining in restaurants that do not. And, otherwise, a customer who sees a restaurant with a C-grade might pull out her smart-phone and check for herself what the inspection reports says, and then make her dining decision according. And, otherwise, market forces would reward restaurants who invest in safety and training while punishing those that do not. And, otherwise, the safety and cleanliness of restaurants would increase as a result of great transparency and accountability in the market place.

But never mind about all of that. Ozersky is worried about the health department hassling the a few chefs who want to cook sous vide without being bothered with the “need to draw up a hazard plan worthy of Three Mile Island.” I mean, come on, what’s a little botulism among friends? Because that is the significant food safety risk that the health department is attempting to protect the public from by requiring the chefs who use this low-temperature cooking process to think carefully about before using the public as unwitting guinea pigs.[6] Thus, far from being indifferent to cooking, as Ozersky accuses, health inspectors are simply putting the priority straight. No matter how delicious and innovative the food, if it is contaminated with a deadly pathogen, I guarantee that you would rather not eat it.

Bon Appétit!

1.  https://www.foodsafetynews.com/2010/06/the-perils-of-punditry-everyone-has-an-opinion/

2.  http://www.time.com/time/nation/article/0,8599,2005191,00.html

3.  The complete title of Swift’s famous (or infamous) essay is A Modest Proposal For Preventing the Children of Poor People in Ireland from Being a Burden to Their Parents or Country, and for Making Them Beneficial to the Publick. See Wikipedia at http://en.wikipedia.org/wiki/A_Modest_Proposal Written in 1729,  Swift mocks the authority of British officials by suggesting that the Irish could solve their economic problems by selling their children as food for the rich, writing “A young healthy child well nursed, is, at a year old, a most delicious nourishing and wholesome food, whether stewed, roasted, baked, or boiled; and I make no doubt that it will equally serve in a fricassee, or a ragout.”

4.  http://www.fda.gov/Food/FoodSafety/RetailFoodProtection/FoodCode/default.htm With the input of the Association of Food and Drug Officials (AFD), the Food Code is updated regularly. Since being issued in 1993, 49 of 50 states have adopted a version of the Code, covering 95.5% of US population. http://www.fda.gov/Food/FoodSafety/RetailFoodProtection/FederalStateCooperativePrograms/ucm108156.htm   The current version of the model Food Establishment Inspection Report can be found here: http://www.foodprotect.org/me
dia/guide/CFPFoodEstabInspFormCommFormAppxA.pdf And the NYC version is here: www.nyc.gov/

5.  The website is maintained by the New York City Department of Health and Mental Hygiene.

6.  Here is the risk posed by sous vide cooking, when done improperly, as described by one talented New York chef who somehow managed to survive the bother of getting his restaurant’s hazard plan approved by the health department. According to Chef Daniel Angerer, Dangerous bacteria such as botulism can thrive and grow in an oxygen free environment as in sous-vide cooked foods – hence the HACCP plan. “If food does not get handled properly a contamination of botulism can occur which leads to violent illness and death could even result.” See Chef Angerer’s complete blog-post about sous vide here: http://chefdanielangerer.typepad.com/chef_daniel_angerers_blog/2010/05/my-love-affair-with-the-department-of-health-.html

Our first virtual potluck was held on Memorial day this year and was a huge success so we’re hoping for a nice follow-up today.

Michelle is bringing lobster, Dan is bringing ribs, Denis is bringing his mom’s Jell-O salad, Suzanne is bringing banana bread and mud pie, and Helena is bringing an arugula and goat cheese salad.  We’re sharing our recipes here, so you can join in our virtual potluck or use them at your next one.  

Note:  Food Safety News is observing Independence Day on July 5.  We will return to our regular publishing schedule Tuesday.

Have a safe 4th of July!  

The Food Safety News team.

Denis’s Mom’s Famous Frosted Jell-O Salad

When I was growing up, the backyard of my parents’ house was where the people in my extended family–aunts, uncles, cousins, and my grandmother–usually came to celebrate the 4 of July.  As I recall, this was partly due to the fact that we had a covered patio and a big backyard with ample room for setting off fireworks.  And, of course, there was always lots to eat, with everyone bringing their “famous” dish, which is to say, the dish that everyone loved, and would complain mightily if it was not present. For my mom, it was her frosted Jell-O salad, a dish of such familial renown, that I asked an aunt to make it last year to serve at the reception after my mom’s memorial service.  It just wouldn’t have been right for it not to be there.

The recipe is relatively easy, but it does require several steps.  As Jell-O salads go, however, this one is delicious–almost a dessert, but not too sweet.

Ingredients:

3-oz. can crushed pineapple
2 c. (2 to 3) diced bananas (not too ripe)
2 3-oz. packages lemon Jell-O
2 c. boiling water
2 c. 7-Up or other carbonated lemon-line soda

1/2 c. sugar
2 T flour
1 c. pineapple juice
1 large, well-beaten egg

1 pint heavy whipping cream

STEP ONE:

Drain pineapple, reserving the juice.

Using a large mixing bowl, dissolve the Jell-O in the boiling water.

Once the Jell-O is dissolved, add the 7-Up.

Pour Jell-O mixture into a 9″ X 13″ pan, and add the drained pineapple and diced banana. (My mom always used clear Pyrex pan.) Then put pan into the refrigerator until the Jell-O is completely set.  

STEP TWO:

In a double-boiler (or a good saucier pan), over medium-low heat, combine the sugar, flour, reserved pineapple juice, and well-beaten egg.
        
Heat the resulting mixture gently until thickened, stirring often (or, near-constantly, because you don’t want this to scorch).  Once thickened, chill well, either in the pan, or after removing mixture to a bowl.

STEP THREE:

Whip the heavy cream until thick enough to hold peaks.  Gently fold chilled pineapple mixture into the whipped cream, and then frost your Jell-O salad. 

For best results, wait to do this last step until just before serving.  Steps one and two can be done a day ahead, however.

A good example of what has come to be called the “Socratic method”–which is, not coincidentally, the cornerstone of legal education–can be found in a famous bit of dialogue from the movie, The Paper Chase, in which the terrifying Professor Kingsfield explains the rules of the game (so to speak) to his new students:
 
“We use the Socratic method here. I call on you, ask you a question, and you answer it….  Through this method of questioning, answering, questioning, answering, we seek to develop in you the ability to analyze that vast complex of facts that constitute the relationships of members within a given society . . . You teach yourselves the law, but I train your mind. You come in here with a skull full of mush, and you leave thinking like a lawyer.“

Thinking like a lawyer–and all because of the so-called Socratic method.  I think not.

If you want to understand what I believe to be the essence of the Socratic method, I respectfully suggest that you read some Plato, especially the early dialogues, which most experts agree are an accurate representation of Socrates’ approach.  (Plato was a student of Socrates.)  Take, for example, this following section of dialogue from the Meno (trans. Benjamin Jowett) in which Socrates has just lead his partner in dialogue, Meno, to the realization that a speaker with regard to a certain question of geometry is in fact wholly incorrect in his assertions, a fact of which the speaker has just been made aware:

S: So [the speaker] is better off now with regard to this matter he does not understand?

M: I have to agree with that.

S: Have we done him any harm by making him perplexed and paralyzed, like a couple of stingrays?

M: I don’t think so.

S: In fact, we have probably achieved something relevant to the discovery of the way things really are. For now, not knowing, he would be glad to find out, whereas before he thought he could easily make many fine speeches to large audiences concerning the square of double area, and how it must have a base twice as long.

M: So it seems.

S: Do you think that before now he would have tried to find out that which he thought he knew, but did not – before he descended into perplexity and realized he did not know but wanted to know?

M: I do not think so, Socrates.

S: Has he then benefited from his paralysis?

M: I think so.

S: Look, then, at how he will emerge from his perplexity while searching together with me.  I will do nothing but ask questions, not instruct. Watch whether you find me instructing and explaining instead of asking for his opinion.

Id. 84 (a-c) (emphasis added).

And so the method of Socrates is to “do nothing but ask questions, not instruct.” Which is why the question posed by my essay over twenty years ago was so interesting–to me, at least.  Can one instruct without knowing?  Is it possible to be an instructor by asking genuinely open-ended questions that do not presuppose a particular answer?  For now, I will leave these questions open–or, at least at an impasse, which is another meaning of the term aporia.  I do this because I want to now pivot to another, related topic, the one raised by the title of this article: The Perils of Punditry.

If you have read this far, you are probably a more patient reader than most, especially of articles posted online.  But I thought it important to first raise the issue of knowing and not knowing, and, more importantly, knowing whether you do not know something, before I offered a more general critique of the kinds of arguments that get made about food safety, and good (or bad) public policy.  I inadvertently set off just such an argument recently when I, in a much too off-handed way, call Jim Prevor a “tool of the produce industry.”  I did this in a spontaneous (which is to say, too-quickly dashed off) counterpoint to what I took to be a kind of attack on Marion Nestle, levied in response to a post that she had made on her excellent blog, Food Politics.[1]

In her post, Nestle quoted from a piece of mine,[2] published on Food Safety News, which is sponsored by my law firm.  She also referred to an article written by Jim Prevor, which was published by the conservative Ethics and Public Policy Center,[3] on its website The New Atlantis.[4] The title of Prevor’s article is How to Improve Food Safety: Aggrandizing the FDA Only Distracts from Real Solutions.[5] In this article, Prevor makes several recommendations, including this one: “Switch to a Negligence Standard from a Strict Liability Standard, and Switch Primary Liability to the Trade Buyer.” And in doing so, he cites the California Supreme Court case, Greenman v. Yuba Power Products, which was authored by Justice Roger Traynor, one of the greatest legal minds of the twentieth century.

Interestingly, Prevor quotes from the Greenman decision, but omits an important sentence.  Here is pertinent quote in full, with the emphasis mine:

“A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. Recognized first in the case of unwholesome food products, such liability has now been extended to a variety of other products that create as great or greater hazards if defective.”

Greenman v. Yuba Power Products, 59 Cal.2d 57, 377 P.2d 897 (1963).  By pointing out this omission, I do not mean to suggest that Prevor is trying to trick his readers; I am merely pointing out that, as with anyone making a political argument, it is often the case that important things have been missed, and usually not intentionally.  It goes back to that issue that Socrates raises of the speaker not knowing that they do not know.

There also seems to be a failure to recognize–that is, of not knowing–the true importance that the Greenman decision involves a defective design claim, which is an area of product liability law that is about as complicated and controversial as an area of the law can be.  And it is in this area of product liability law that scholars like Professor Schwartz, one of the reporters for the Restatement (Third) of Torts: Product Liability, has argued that the strict liability standard, as applied by most courts, is actually a negligence standard in disguise.[6] But when it comes to a product that is unreasonably unsafe as a result of a “manufacturing defect,” there is nearly no controversy at all about the appropriateness of applying a strict liability standard, especially as it applies to food products.  Indeed, as Professor Owens well explains:

“From early times, people have relied on the skill and care of others to catch, grow, gather, preserve, prepare, and provide much of the food and drink indispensable to survival.  Whether paid for with
a beaver pelt, a copper coin, or a modern dollar, food has always been the single most important product bought and sold by human beings.  Both king and pauper live by food and drink, just as both may die by food or drink gone bad. And this essential fact of human life is as true today as it was a thousand years ago.  Because pure food is necessary to survival, rendering most persons extraordinarily dependent for their health, safety, and very lives on the care and skill of food providers, the rules that govern liability for selling defective food and drink have long stood apart from those concerning other types of products.”[7]

The history of how and why strict product liability developed is decidedly interesting, and worthy of much debate.  Indeed, when I teach this subject, as I will at Seattle University School of Law this next Spring, I emphasize the complex historical development of the doctrine, as well as its competing economic underpinnings.  But I will not go into any of that here.  My main point to make here–and I apologize for being so long in making it–is that the subject of product liability law is fascinating, but it is also complex.  It is not a subject for off-hand opining and online punditry.  And, in my humble opinion, the subject of product liability merits a lifetime of investigation and careful thought, which, if done genuinely, will result in the constant development and change of opinions.  Sure, you can scour a few sources and build an argument in support of a pre-conceived opinion, especially when your argument is meant to play to a particular audience, and wants to curry its support. (It is not by accident that Socrates built his own method in large part as a continuing critique of the sophists, and sophistry.)  But, in the end, I think that the subjects of food safety and product liability law deserves better than off-the-cuff opinion-making and online sophistry, even when I sometimes fail to live up this standard.  Too much is at stake.

That is why I am proud to say that, in addition to my punditry, I have also published pieces in which months of work and thought were invested, and that have been published in peer-reviewed books and scholarly journals.[8] I am also proud to say that I readily admit to not having all (or even many) of the answers, making me one who is always glad to “find out that which he thought he knew, but did not.”
     

References:

1.  Marion’s post, and my comment, are here: http://www.foodpolitics.com/2010/06/thinking-about-food-safety/#comments 

2.  “What the Oil Spill Can Teach Us About Food Safety,” June 1, 2010, available online at https://www.foodsafetynews.com/2010/06/what-the-oil-spill-can-teach-us-about-food-safety/

3.  According to Wikipedia, the Ethics and Public Policy Center is “a Washington, D.C.-based socially-conservative advocacy group. Formed in 1976 by Ernest W. Lefever, who was its president until 1989, the group describes itself as “dedicated to applying the Judeo-Christian moral tradition to critical issues of public policy.” See http://en.wikipedia.org/wiki/Ethics_and_Public_Policy_Center

4.  http://www.thenewatlantis.com/

5.  http://www.thenewatlantis.com/publications/article_detail.asp?id=567&css=print

6.  Note the important difference here between arguing that negligence should be the standard that applies (Prevor’s argument), and arguing that the negligence is the standard that already applies, but that courts erroneously insist on continuing to call it strict liability. Personally, I am quite sympathetic to the latter argument, but I do not really even understand the former argument.  Accordingly, another apt Socrates quotation is in order: “The beginning of wisdom is the definition of terms.”

7.  David Owen, “Manufacturing Defects,” 53 S.C.L. Rev. 851, 884 (2002).  I highly recommend this article to anyone wanting a good, historical introduction to strict liability as it applies to food cases. For those who are interested, the primary text I use for my product liability law class is also written by David Owens.  PRODUCTS LIABILITY LAW, by David G. Owen, 2nd Ed. (2008).

8.  See, e.g., “Contaminated Fresh Produce and Product Liability: A Law-in-Action Perspective,” Chapter 21, in Microbial Safety of Fresh Produce: Challenges, Perspectives, and Strategies, edited by Xuetong Fan, et al., pp. 385-98 (IFT Press 2009), and “ON (CR)EDIBILITY: Why Food in the U.S. May Never Be Safe,” 20 Stanford Law & Policy Review __ (2010).   

The article went on to note that:

“The letter, signed by the top five Democratic leaders, said inspections by the Minerals Management Service of the Deepwater Horizon oil rig were inadequate. The inspections failed to reveal problems with the so-called blowout preventer, among other problems, the letter said.

“The lawmakers called for Obama and Interior Secretary Ken Salazar to conduct an “immediate top-to-bottom review of all inspection and testing procedures used to evaluate all offshore drilling equipment,” including on offshore rigs and production platforms.

“‘We need foolproof testing procedures to guarantee equipment integrity, particularly when it comes to equipment like a (blowout preventer) that must act as the last line of defense against disaster,’ they said.”

The fact of politicians bemoaning the lack of strict enforcement, or otherwise criticizing an agency performance, is as predictable as the sun rising in the morning. Indeed, as politics and PR goes, this is a song and dance that we have all seen many, many times before.  Take for example, the huge Peanut Corporation of America (PCA) Salmonella outbreak, in which, as of early February 2009, eight people were reported to have died, and over 575 people had been sickened in 43 states.[1]  Much like the current furor over the oil spill, politicians and many others lined up to castigate the FDA’s myriad shortcomings in having failed to inspect the PCA plant and discover the awful unsafe conditions there.

As reported in an article published in the New York Times, “The conditions at the plant, more circa 1955 than 2009, would have been enough to cause alarm in an industry where sanitation can be a matter of life and death, food experts said.”

The article continued:

“But its yellow-brick walls hid the array of poor work conditions and safety flaws, said employees, who lost their jobs when the plant closed on Jan. 16.

“Many of the hourly workers earned only minimum wage and had gone years without a raise. Frederic McClendon, 31, a shift supervisor, reached $12 an hour last year but still could not afford health insurance for his two boys, who live in a weather-beaten trailer. “If you pay your workers, you get the best out of them,” Mr. McClendon said. “If you don’t, you don’t.”

“Using temporary workers also saved money, said Mr. Hardrick, the assistant manager, ‘but there was a lot of retraining going on.'”[2]

And–no surprise–there was the requisite sound-bite from a member of Congress in which he expressed shock that PCA’s internal records showed that it “was more concerned with its bottom line than the safety of its customers.”  This expression of shock cannot help but bring to mind the famous line from Casablanca in which the character, Captain Renault, loudly says “I’m shocked, shocked to find that gambling is going on in here!” And, of course, Captain Renault says this while being handed his winnings at the roulette table.

Nonetheless, with the oil spill, as with the PCA outbreak, one could hardly pick up a newspaper, or watch the news on television, without seeing some politician expressing outrage over the fact that a corporation had the gall to put profits above safety, and to cut corners as a result.  To my mind though, the sheer ubiquity of such outrage not only renders it utterly banal, it calls into question–or calls more into question–both the sincerity of expression, and the genuineness of the stated desire to address the problems that make tragedies like this oil spill possible in the first place.

Missing among the cries for “enhanced inspections” and “foolproof testing” is any real questioning of why inspection regimes so often fail to deliver expected levels of safety.  While outrage is easy, devising real solutions is not.  I think that is why policy-makers so often call for crackdowns while never following through by making the kinds of systemic changes needed for achieving real improvements in safety. While politicians are quick to express outrage over putatively evil corporations that have the heartlessness and gall to put profits over safety, those same politicians are not shy in accepting a share of those profits in the form of campaign contributions.  No one should thus be surprised when some of the same politicians expressing outrage quickly step in to protect the financial interests of the oil companies–like Senator Mary Landrieu, for example, who criticized BP out of one side of her mouth, while describing the spill as only “as thick as a couple strands of hair” out of the other side of her mouth, while arguing “Retreat is not an option. … We must continue to drill.”

There was one bright spot, however, among the reactions to the oil spill, and that was the announcement, by Secretary of the Interior Ken Salazar, that “the federal agency at the center of the Gulf spill disaster will be split into three groups to avoid conflicts of interest.”[3]  As Salazar explained: “The Minerals Management Service has three distinct and conflicting missions that–for the benefit of effective enforcement, energy development, and revenue collection–must be divided.” He was also quoted as saying at this new conference that: “It is essential we have a government that avoids even the perception of a conflict of interest.”[4]

Such quick government action reminds me–and not in a good way–of the lack of action that followed the expressions of outrage, and calls for action, that occurred in the wake of the PCA outbreak. For example, in that instance, the Secretary of Agriculture called for the creation of a single food safety agency.  As reported by an Associated Press article:

“The peanut recall offers a prime opportunity to merge all federal food safety oversight into one agency, Agriculture Secretary Tom Vilsack said Friday.”

“‘You can’t have two systems and be able to reassure people you’ve got the job covered,’ Vilsack said. ‘This is a grand opportunity for us to take a step back and rethink our approach.'”[5]

Sadly, this was not the first time that someone had pointed out the need for systemic revision to food safety regulation and inspection in the United States. And neither was it the first time that expressions of outrage over people dying from foodborne illness were followed by no real changes at all. And all I can say about that is: I’m shocked! No, really, I’m shocked!

References

[1]  By the time the investigation of the PCA outbreak was mostly over, on or around April 20, 2009, the CDC was reporting that the number injured by confirmed infection had exceeded 700 people, and 9 people had died. See http://www.cdc.gov/salmonella/typhimurium/update.html

[2]  Michael Moss, Peanut Case Shows Holes in Safety Net, N.Y. Times, Feb. 9, 2009.

[3]  MSNBC, “Offshore oil agency being split into 3,” May 19, 2010 (no longer available online).

[4]  Mark Jaffe, “Drilling agency MMS split into 3,” Denver Post, May 20, 2010,  available online at http://www.denverpost.com/news/ci_15121932?source=rss

[5]  AP, “Official: Food safety must be under one agency,” Feb. 6, 2009, available online at http://www.msnbc.msn.com/id/29060603/

I do not recall exactly what prompted me to ponder the resurgence of interest in small-scale poultry-keeping (or, backyard chickens), and the media-attention being paid to it.[2] Like so many trains of thoughts–at least, those that end up leading somewhere worthwhile, it was probably several things over a relatively short time-period that got me thinking about the meaning of raising and keeping chickens in the backyard, to ask myself whether and why backyard chickens matter. 

Perhaps the first such thing to get me thinking was learning, by way of a Facebook posting, that a University of Wisconsin law professor I know (and admire) raised chickens in her backyard.  I believe that this was followed by my reading a post on Marion Nestle’s marvelous blog, Food Politics, titled: “Backyard Chickens: an art, a science, a social movement.”[3] In the post, Nestle alerted readers to a “delightful exhibit on the history of backyard chickens in the lobby of Cornell’s Mann Library.”  The exhibit was called “Backyard Revival: American Heritage Poultry,” and Nestle noted that, among the things on display, were “early 20th century books on backyard poultry raising [that] look just like the ones being produced today.  In between, of course, came massive industrial chicken production, as the curator’s notes explained.”

From Nestle’s blog post I followed two links that she provided for context–one to the website for a new magazine, Backyard Poultry,[4] and the other to the “Chicken Revolution” website.[5] The folks behind Chicken Revolution are fighting, according to their mission statement, “to legalize backyard chicken-keeping in the city of Salem, Oregon, and help others do the same in cities around the country.” This group calls itself “Chickens in the Yard” (or “C.I.T.Y.”), and the logo for their efforts is amusingly, and appropriately, Che Chicken.
 
As explained on their Website, the Che Chicken logo:

is meant to make you smile. A chicken wearing the beret of a revolutionary? There is tremendous irony in our use of this symbol. What could be more conservative than having a few chickens in your yard? Yet we have to battle for the same rights our parents and grandparents had as Americans – the right to a have few hens. No, that’s not in the Constitution…but America was founded on the principals of life, liberty and the pursuit of happiness…and chickens make us happy. Viva la Urban Chicken Revolution!

Sadly, for C.I.T.Y., the Chicken Revolution has not brought change to Salem, Oregon, since the city council voted to continue its ban on chickens roosting within city limits, retaining the classification of chickens as “livestock” that can only be kept outside the city limits.[6]
         
This banishment of agricultural production to beyond the city limits is something that I have thought much about over the last several years.  To me such banishment is part and parcel of the industrialization of food production that has, fortunately, come to be increasingly questioned, and criticized–especially since the publication of Michael Pollan’s Omnivore’s Dilemma, and Eric Schlosser’s Fast Food Nation.  In my own law practice, which is devoted to the representation of victims of foodborne illness outbreaks, I am particularly well-positioned to attest to the significant costs that society pays–both economic and non-economic–as a result of a system of food production that prioritizes quantity, price, and profit above all else. 

I have also been long interested in the different paths that other countries have taken in response to the rise of more industrialized food production.  For example, I have before written about the Label Rouge poultry that has captured not only public support in France, but profits and market share, based on the idea that it is better to raise poultry in a manner that is the antithesis of industrialized.[7]  Such an approach emphasizes openness, a smaller scale, and humane practices that produces a tastier, safer, and more ethically defensible chicken, instead of–in the words of an article published in Backyard Poultry— “concentration-camp chicken from the supermarket.”[8] Or, as one proponent of backyard chicken was quoted as saying (in a less inflammatory manner): “Small flocks are the wave of the future….Chickens were never meant to be raised in factory farms.”[9]

One significant benefit, then, of backyard chickens is how they reverse, even if only to a small or symbolic degree, the banishment of agriculture from our cities and suburbs. And in recognizing this, it becomes, I think, much less difficult to imagine a much more substantial and widespread reintegration of agriculture into our daily lives.  Whereas this reintegration is right now sporadic and ad hoc, depending on individual decisions and the efforts of small groups, like Chicken Revolution, the process can be made as much a part of urban planning as any other goal or priority might be.  For example, we currently require real estate developers to build sidewalks and install streetlamps as a condition of approving their construction of a subdivision.  Such things are not considered a dispensable amenity, but as something necessary for a community to work as something more than a collection of isolated fortresses, bereft of meaningful interaction.  Without streetlamps and sidewalks, and space for parks and school buildings, no one would expect a subdivision what was nothing more than a widespread collection of houses to develop into something that we would call (or recognize as) a neighborhood, village, or community.

Take for example, Columbia, Maryland, one of the first planned communities that, according to its developers, The Rouse Company, was designed and built “in terms of human values, not just in terms of economics and engineering.”[10] According to the Wikipedia entry that discusses it, Columbia’s design was:

aimed to provide Columbia a small-town feel….Each village comprises several neighborhoods. The village center may contain middle and high schools. All villages have a shopping center, recreational facilities, a community center, a system of bike/walking paths, and homes. Four of the villages have interfaith centers, common worship facilities which are owned and jointly operated by a variety of religious congregations working together.

Most of Columbia’s neighborhoods contain single-family homes, townhomes, condominiums and apartments (though some are more exclusive than others). The original plan, following the neighborhood concept of Clarence Perry, would have had all the children of a neighborhood attend the same school, melding neighborhoods into a community and ensuring that all of Columbia’s children get the same high-quality education.

In short, the design for Columbia was intended to bring people together into a larger family-like unit, not homogenous, but at least coherent.

In light of the widespread acceptance and acknowledged success of the Columbia planned development, is it such a stretch then to consider a
lso requiring developers to build community agricultural spaces with a community?  Such spaces could (and would) be used for raising fruits and vegetables, and there could also be facilities for keeping chickens for eggs.  Instead of the ad hoc creation of community gardens–like the “Pea Patches” in Seattle that were first created to fill in dirty vacant lots–space would be set aside for agricultural activity from the start.  Residents could participate in their community through working in the gardens, regularly or just during planting or harvest.  And they could raise chickens in their own backyards too, or in a designated area, using the eggs produced, and sharing the overflow with neighbors.  But however localized agriculture is accomplished, there would be the recognition that such activity–civic agriculture, to use the term coined by Thomas Lyson–was not just about food production; it is about creating community too, by feeding interaction, and sustaining it.

Such community is not coerced, however; it is not some latter-day version of totalitarian collectivism.  Instead, community is given a chance–and a place–to grow.  As envisioned by the late Lyson, civic agriculture accomplishes “a re-localizing of production.” Perhaps even more importantly, it “represent[s] a broad-based movement to democratize the agriculture and food system.”[11] This democratization is an inevitable by-product of civic agriculture because it only “flourishes in a democratic environment.” And this is because: 

Community problem-solving around agriculture and food issues requires that all citizens have a say in how, when, and by whom their food is produced, processed, and distributed. Food and agriculture are an integral part of community life and recognized as such. Indeed, citizen participation in agriculture and food-related organizations and associations stands as a cornerstone of civic agriculture.

And we are, as a result, reminded that food can be “more than mere sustenance.”

If we are to accomplish the creation of civic agriculture, this re-localizing food production from the fringes to the “living center” (as Martin Buber described “true community”[12]), then we must create the infrastructure necessary to its viability.  This means that we will need to mandate the creation of agricultural space in urban and suburban settings–like the parks and pathways and other public spaces in Columbia, Maryland.  By doing this, we will also reverse the trend begun decades ago when suburbs were built by expanding into agricultural areas, thus pushing food production further to the fringes of community-activity, and then banishing it altogether as food production became concentrated in far-away factory farms. 

When we somehow have a hand in its creation, and locate food production within our cities and suburbs, food can bind us together. This is what Lyson meant by describing civic agriculture as being in large part about “a re-localizing of production,” something that has certainly started to happen. Signs of the ongoing re-localization are easily found in such things as the increasing popularity of farmers markets, and the locavore movement.  But even these signs, although positive, prove the need for further effort; most who sell at farmers markets drive miles to get there.  And while real communal bonds form between food producers and their customers at the local market, at the end of the day, farmers return to their own community rather than being a part of the one where they sold their goods.  The locavore movement has therefore moved the locus of food production closer for many, but not made it truly local, not put it at the center of where we live.  Nor have food movements currently underway spurred true participation in the production process–like, for example, the raising of chickens in the backyard. 

With civic agriculture, growing fruits and vegetables within communities, and keeping chickens, can come to be seen as something vital–a way to build bonds between neighbors, like my own mother would in walking around her neighborhood, handing out the overflow of her tomato-production, and freshly baked loaves of zucchini bread and carrot cake.  The one story told at her memorial service that I will never forget is a joyful reminiscence, shared by a former neighbor, telling of how my mother taught them how to grow bountiful crops of tomatoes, how to prune for maximum fruit production, and what other vegetables grew well in the micro-climate of their neighborhood.  He also recalled, again with great joy, all the cookies and cakes that my mother would bake and share with anyone who wanted one or two or three or more. “She fed the whole neighborhood, and loved doing it,” he said.

I thought about my mother reading a recent essay in the New York Times magazine that discussed the growing phenomena of stay-at-home mothers taking up gardening, tomato-canning, and the raising of backyard chickens.  The title of the essay is The Femivore’s Dilemma, and I definitely recommend the essay in its entirety.[13] But the following long quotation from it will give you a sense of the point the author is making in noticing the conjunction of feminism with the locavore movement.

Femivorism is grounded in the very principles of self-sufficiency, autonomy and personal fulfillment that drove women into the work force in the first place. Given how conscious (not to say obsessive) everyone has become about the source of their food–who these days can’t wax poetic about compost?–it also confers instant legitimacy. Rather than embodying the limits of one movement, femivores expand those of another: feeding their families clean, flavorful food; reducing their carbon footprints; producing sustainably instead of consuming rampantly. What could be more vital, more gratifying, more morally defensible?

There is even an economic argument for choosing a literal nest egg over a figurative one. Conventional feminist wisdom held that two incomes were necessary to provide a family’s basic needs–not to mention to guard against job loss, catastrophic illness, divorce or the death of a spouse. Femivores suggest that knowing how to feed and clothe yourself regardless of circumstance, to turn paucity into plenty, is an equal–possibly greater–safety net. After all, who is better equipped to weather this economy, the high-earning woman who loses her job or the frugal homemaker who can count her chickens?

I am not sure that my mother (or I) would agree with the idea that a woman growing her own vegetables is a source of “legitimacy”–as if not doing so would make one illegitimate, at least in the eyes of some.  But there is no question that there is value in growing your own vegetables, a value that extends beyond the gardener, and the family, to the greater community.  There is also a value in recognizing that it was not that long ago that families had no choice but to raise their own vegetables, and keep chickens for eggs and meat, and raise other livestock too.  As Lyson helpfully reminds us about our country:

Less than 100 years ago most rural households in the United States sustained themselves by farming.  While some agricultural products were sold for money on the open market, others were produced solely for household consumption or for bartering with neighbors.[14]

Thus, it was not for gaining a sense of legitimacy or personal fulfillment that households produced their own food; it was so as to not starve to death; it was to survive.  Still, even in battling starvation, food was not “mere sustenance”–which is what the food is that lines the shelves of supermarkets, and the fast food we purchase at the drive-thru and gulp down on our way to whatever our next destination happens to be. 

When people raise and make food to eat, and bart
er it in exchange for that which others made, true community ends up being built.  To barter means also to share, and to interact with neighbors in a way that generates meaning and trust.  You do not cheat someone with whom you will need to barter again.  Such barter-exchange cannot be treated as a zero-sum game, it is something that requires that all participants benefit, and that no one lose.  This is the sometimes overlooked moral of William Faulkner’s Snopes novels and short stories, which chart the rise and fall of the Snopes family, a rise and fall both caused by cheating their neighbors.  Such cheating variously harmed and helped many; however, its ultimate consequence was the destruction of a community, Frenchman’s Bend.  Where the exchange of goods does not engender trust, where you are as apt to be cheated by your neighbor as helped, there can be no bonds of loyalty, and thus no sense of community at all.

Well into the modern era, communities and villages throughout Europe were centered around not only local agriculture, but such things as community hearths where once a week or so local residents would bring bread to bake.  One of the most memorable scenes in Jacques Pepin’s excellent autobiography, The Apprentice: My Life in the Kitchen, was one that involved him being “loaned” by his mother during the summer to a farmer and his family to assist the area’s communal efforts to keep everyone fed during World War II. Here is how he describes it:

Like every other household in Montvernier, the Merciers lacked an oven large enough to bake the dough Mme. Mercier had laboriously prepared. Instead, the people of the town share a massive common baking oven with the residents of a nearby village called Montbrunal. Bread-baking day had all the excitement of a carnival. Villagers greeted each other loudly and gossiped in small clusters. Kids ran about and played….

The oven seemed as large as a house, and…I watched the baker-farmer feed it with the pile of wood needed to bring it to the proper temperature. The smell of so much baking bread was enthralling.  We stood there for hours. One after the other, farmers arrived with their loaves, two dozen or so each, and the baker would take over.  At the end of the day, some farmers brought casserole dishes, containing anything from beans to cabbage, to be cooked overnight in the heat retained by the oven.
   
* * * *

Montvernier offered plenty of experiences for a young city boy…But for me the most impressive thing…was that wood-fired bread oven and the way it not only nourished but also brought together the people of two remote mountain communities.[15]

I think Chef Pepin’s story illustrates as well as any story could both what is missing in a society defined by industrialized food production, and how much there is to be gained by a rebirth of civic agriculture. In a time when the divisions among people are so many and deep, it is perhaps beyond naïve to think that something as seemingly simple as a neighborhood garden and backyard chickens could knit together a community, and turn strangers into friends.  But then I think again of my mother sharing her home-grown tomatoes, and find myself a little surprised that she did not keep chickens too.  I guess the shared tomatoes, cakes, and cookies were enough.  But, in any case, in my longwinded way, that is why I think that backyard chickens matter.

References

1.  From:  THE APPRENTICE: MY LIFE IN THE KITCHEN, 4 (2003).

2.  See, e.g. Hara Estroff Marano, A Flock of One’s Own, Psychology Today, 50-51, January/February 2010.  Near the beginning, this article notes: “For a large and rapidly growing number of people–especially those in urban and suburban areas of the country–eating healthy, eating local, reducing environmental costs of consumption, and knowing where your food comes from boils down to one thing: raising chickens in your backyard. Or on your roof. Or even balcony.” Id. at 50.

3.  To read the entire blog post, go to: http://www.foodpolitics.com/2010/02/backyard-chickens-an-art-a-science-a-social-movement/

4.  To check out this fascinating magazine, and its Website, go to: http://www.backyardpoultrymag.com/ The image that is found at the beginning of this essay comes from the most recent issue of the magazine.  Also worth seeing is the BackyardChickens.com, which was, according to the Website, established in 1999, and has since “become the #1 destination for the information you need to raise, keep, and appreciate chickens.”

5.  Go to: http://www.salemchickens.com/

6.  To read the article reporting on the council vote, and the controversy surrounding it, go to: http://www.salemchickens.com/SJArticle-910270339_1_.pdf For other news article related to the “Chicken Revolution,” go here: http://www.salemchickens.com/news.html

7.  For one such essay on this topic, please see Chicken in America: A Lesson in Irony (and Bad Taste), found at: http://www.marlerblog.com/2008/12/articles/lawyer-oped/chicken-in-america-a-lesson-in-irony-and-bad-taste-guest-blogger-denis-w-stearns-jd/

8.  See Harvey Ussery, Stepping Up to Production for a Small Broiler Market, Thinking It Through, available online at http://www.backyardpoultrymag.com/issues/3/3-1/Harvey_Ussery.html

9.  Marana, supra note 2, at 51.

10.  See http://en.wikipedia.org/wiki/Columbia,_Maryland

11.  Thomas Lyson, CIVIC AGRICULTURE: RECONNECTING FARM, FOOD, AND COMMUNITY, 19, 25 (Tufts University Press 2004).  Lyson was Liberty Hyde Bailey Professor in the Department of Development Sociology at Cornell University. He passed away in 2006.

12.  According to Buber: “True community does not come into being because people have feelings for each other (that is  required too), but rather on two accounts: all of them have to stand in a living, reciprocal relationship to a single living center, and they have to stand in a living, reciprocal relationship to one another….” Martin Buber, I AND THOU, 94, (trans. W. Kaufmann, 1970).

13.  Peggy Orenstein, The Femivore’s Dilemma, N.Y. Times Magazine, March 11, 2010, available online at http://www.nytimes.com/2010/03/14/magazine/14fob-wwln-t.html

14.  Lyson, supra note 11, at 8.

15.  Pepin, supra note 1, at 13-14.

And that is the funny thing about tradition.  When something is done a certain way for a long period of time, and doing it that way always seems to work, there will always be strong resistance to change.  Indeed, the response–We’ve always done it this way–is typically accepted as a sufficient justification for just about anything, including a decades-old cooking procedure for the ground beef used in Maid-Rite sandwiches.  Over the protests of many, including public health professionals, physicians, and my law partner, Bill Marler, it appears that the Iowa Legislature is about to grant a legal waiver that would allow certain Maid-Rite franchises to continue cooking ground beef as originally done by the creators of this Midwestern classic, loose-meat sandwich.[1] This is how the ongoing dispute was described in the Des Moines Register:

“The Iowa Department of Inspections and Appeals has told Taylor’s Maid-Rite restaurant that it must alter its process for cooking the company’s loose-meat sandwiches.  The process at Taylor’s involves cooked hamburger being placed in the same heated receptacle that’s used to cook raw meat. It’s a practice that state and federal officials, as well as the Maid-Rite Corp. and the Iowa Environmental Health Association, say is unsafe and could lead to cross-contamination.

“The restaurant’s owners, Don and Sandy Short, are refusing to change the process. They say their cooking methods represent a tradition that dates back 80 years.

“Last week, they handed out Maid-Rites to lawmakers and asked them to intervene. On Tuesday, Sen. Steven Sodders, D-State Center, did just that. Sodders introduced an amendment to a bill that provides funding for the entire inspections department. The amendment would enable Maid-Rite restaurants that still use the old method of cooking to continue to do so.”[2]

Defending the proposed waiver, Senator Sodders framed the tradition-versus-safety question well.  “I think we have to look at tradition,” he said. “I’m representing my district, and the people there, far and away, would like Taylor’s to continue to prepare their Maid-Rites in the traditional way.”  Such protection of a “traditional way” also encompasses a political argument that is decidedly libertarian in its approach.  For example, the creator of a Facebook fan page intended to drum up support for Taylor’s Maid-Rite is quoted as saying: “It’s not about loose-meat sandwiches.  It’s about this family….It’s time for the government to leave this family alone.”[3] Thus, apparently some see the attempt to uniformly enforce food safety rules on all restaurants as an attack not only on tradition, but on a family too.
 
Such hyperbole in defense of family and tradition is neither surprising nor terribly troubling.  But when hyperbole becomes winning argument there is much about which we should be concerned.  For one thing, the defenders of “tradition” too conveniently overlook that “tradition” is a decidedly fluid thing.  As pointed out in the Des Moines Register article: “By all accounts, the cooking method used by Taylor’s was abandoned years ago by most other Maid-Rites.  Those restaurants place their cooked meat in a container that’s segregated from meat still being cooked.”  Secondly, we should be cautious about the weight that we grant the label of “tradition” in justifying a practice that, in its absence, few if any would defend.  

This latter point was well made in the editorial published in the Des Moines Register, in which it criticized the idea that “siding with tradition” was defense enough to a practice that could put the public health in danger.  The editorial ends, stating:

“[Supporters of Taylor’s Maid-Rite] apparently think a practice is OK just because it’s been around for many years. But that’s a fallacy. It’s why people wear seat belts and doctors don’t ‘bleed’ patients to cure diseases and employees aren’t smoking in the office now. When we realize there are safer ways of doing things to protect lives, we do them.

“When Iowa lawmakers cook at home, they can do whatever they want. They don’t have to wash their hands. They can lick the spatula or eat hamburger raw, if they so desire.

“But Iowa businesses serving customers need to implement basic practices to ensure food is safe. That should be this state’s ‘tradition.'”[4]

This distinction–between food-traditions followed at home, versus those marketed for commercial purposes to the public–is an important one to keep in mind. Although our instinct is no doubt to protect tradition from the in-roads of technology and modern ways, tradition cannot always be protected solely for the sake of tradition itself.  In making her delicious twice-baked potatoes, my mother would have never put her family knowingly at risk, and, I am sure, never did.  There was nothing used to make those potatoes that could not, for the most part, be safely kept in the cool-but-not-below-40-degrees of the garage.  And, in any case, the potatoes were cooked in a hot oven to crispy perfection, reaching temperatures more than sufficient to kill whatever pathogens could have been present.  Even so, I am certain that if I had told her of a specific safety risk, she would have happily changed tradition to keep her family safe.  I wonder then, why it’s so hard for Taylor’s Maid-Rite to agree to such a change. 

Could it be that the reluctance to change is really about the cost of new and safer equipment, and the restaurant’s bottom-line?  Would a business actually put profits above safety?  Now there’s an American “tradition” that’s easy to recognize!

Footnotes

1.  Coincidentally, I have actually eaten a Maid-Rite loose-meat sandwich.  While working on a case arising from an E. coli O157:H7 outbreak in Northern Minnesota, an outbreak linked to meatballs served as part of a smorgasbord at the Salem Lutheran Church in Longville.  At least 17 people became ill as part of this outbreak, and, tragically, one woman died.  (You can read about this outbreak, and the resulting litigation, here: http://www.nytimes.com/2008/06/08/business/08feed.html) In my travels “up north,” on several occasions I flew into Brainerd and stayed overnight there.  Because my father, also recently passed, was born there, I decided to try to find some “authentic” place to eat, since I have always thought that the way to get a feel for a place is to eat where the locals have been eating for decades.  The place that I found to eat was The Barn, which opened in 1945 by a family from Iowa.  It was part of the original Maid-Rite franchise, and so it has been serving Maid-Rite loose-meat sandwiches for a long time.  From all reports, The Barn is also well known for its home-made pies, which excited me to no end, because I love good pie.  I ended up stopping at The Barn on my way to the airport, having an hour or so to kill before I had to catch my flight to Minneapolis, from where I would fly home to Seattle.  Once settled in at the counter, I ordered a Maid-Rite Sandwich with mustard and pickle
s, having learned somehow (I can’t remember where) that it is sacrilege to put ketchup on a Maid-Rite sandwich.  I also ordered a slice of peach pie.  The verdict?  I found the Maid-Rite Sandwich on the dry side, and not terribly flavorful, despite the hefty squirt of mustard, and the pickles.  This is no doubt the result of the fat being cooked away, leaving behind crumbly, dry bits of ground beef. So I was not terribly impressed, although I must admit that I’m a big fan of sloppy joes, so I was probably biased against a dry loose-meat sandwich from the start.  As for the pie?  It was dreadful. So sweet that it made my teeth hurt.  The crust was excellent, however, which is really what matters most with pie.      

2.  Clark Kaufman, “Is Marshalltown Maid-Rite’s process safe or not?” Des Moines Register, Mar. 10, 2010, online at http://www.desmoinesregister.com/article/20100310/NEWS10/3100359/Is-Marshalltown-Maid-Rite-s-process-safe-or-not See also Dave DeWitte, “State Examines Safety of Marshalltown Maid-Rite’s Loose Meat,” at http://www.kcrg.com/news/business/87114227.html

3.  Ken Black, “Rally draws support for Taylor’s Made-Rite,” Times Republican, March 13, 2010, at http://www.kcrg.com/news/business/87114227.html

4.  “Make sure Maid-Rites aren’t made wrong,” Des Moines Register, March 15, 2010, available at http://www.desmoinesregister.com/article/20100315/OPINION03/3150303/Make-sure-Maid-Rites-aren-t-made-wrong 

Recently, however, a seemingly heretical voice has suggested that perhaps some meat products–pre-made frozen hamburger patties, to be exact–pose a risk to consumers of such a greater kind and degree that the meat industry must take extra steps to make this commonly-purchased product much safer than it currently is.  The source of this heresy was James Marsden, PhD, writing in the MeatingPlace.com blog, a forum that more often than not adheres to the meat industry “party-line” (like the over-the-top Yvonne Vizzier Thaxton who on a regular basis causes me to cough-spit coffee onto my computer screen by offering opinions so ludicrously pro-industry (and illogical) that that not even the AMI at its most strident can compare[2]).

In his excellent opinion piece, titled “Retail Frozen Ground Beef Patties and Risks of E. coli O157:H7,” Dr. Marsden asserts that: “It’s time to recognize that retail frozen ground beef patties pose an increased risk to consumers and take steps to reduce that risk.”[3] Supporting this assertion, Dr. Marsden points out that frozen patties have “been implicated in an inordinate number of infection-cases, outbreaks, and recalls,” the vast majority of which have not involved a fast food restaurant. The significant drop in the number of restaurant-related hamburger E. coli outbreak happened because, after the 1993 Jack in the Box outbreak, chain fast food restaurants took “steps to assure the safety of frozen beef patties, including raw material and finished product testing, the implementation of validated cooking processes that fully inactivate E. coli O157:H7 and process control measures that guarantee proper cooking every time.” In contrast,  the reason that there are still so many outbreaks linked to hamburgers is because consumers are ill-equipped to cook frozen ground beef patties in a way that makes them consistently safe to eat.  And this is because, according to Dr. Marsden, “frozen patties are inherently difficult to cook uniformly and sufficiently to control pathogens.”  

Such heresy!  I think I can almost hear J. Patrick Boyle screaming for Dr. Marsden’s excommunication from all dealings with the meat industry.  How dare someone suggest that cooking by the average consumer is not the safety-panacea that the meat industry has long insisted it is.  How dare someone suggest that a consumer who is being reasonably careful in the cooking of a frozen ground beef patty on his or her backyard grill might not, by definition, be negligent simply because a few E. coli O157:H7 happen to survive the cooking process, which is something that can and does happen with even the most cautious of cooks.  Indeed, Dr. Marsden doubles-down on his heresy by going on to make the same point that I have been making for years, in representing injured consumers, and in my writings and speeches:

it is not realistic to expect that all consumers will apply perfect cooking methods when preparing frozen ground beef patties. The risk of E. coli contamination in these products has to be reduced upstream. (emphasis added)

And that is really what it comes down to, in my view.  Although the meat industry expects all consumers to be perfect in the cooking of every single hamburger, every single time, it wants to be excused from all responsibility for its contamination of meat with deadly pathogens.   
 
As I have said on numerous occasions before, the reality of meat production in the United States is that it is done as quickly and as cheaply as possible.  All possible care is not used in the slaughter and processing of meat, and that is why it gets contaminated with pathogens.  Arguing consumer responsibility, while suggesting that eliminating E. coli O157:H7 from ground beef by cooking is as easy as snapping your fingers, has long been the meat industry’s attempt to divert attention from its own culpability. Like the “Wizard of Oz” insisting that we “pay no attention to the man behind the curtain,” the meat industry wants the consuming public to pay no attention to the reality of how meat–and especially ground beef–is manufactured in this country.  I mean, how many consumers knew a year ago that frozen ground beef patties, like the one that nearly killed Stephanie Smith, among others, contained ammonia-treated “fatty trimmings the industry once relegated to pet food and cooking oil” as a primary ingredient.[4]

Of course, consumers have been more than a little complicit in the success of the meat industry’s diversionary tactics with their tendency to demand safer meat, but still purchase the cheapest hamburger patties available. This consumer behavior rewards the companies that cut costs the most, which is to say, cut corners the most.  Ammonia-treated fatty trimmings are not used because ammonia-treated meat is a superior ingredient; they are used because it is a cheaper ingredient.  As such, it is not that raw ground beef is inevitably contaminated with pathogens; it is that cheap ground beef is inevitably contaminated with pathogens.  And packages of mass-produced frozen ground beef patties, like those sold under the American Chef’s Selection brand at Walmart, are about as cheap a ground beef product as you can find on the market today.    

That is why Dr. Marsden’s point–and the fact that he announced it on a meat-industry sponsored website–is so important.  Although it is difficult and costly to prevent contamination in a meat processing plant, it is just as difficult to perfectly cook a frozen ground beef patty every single time it is done.  Moreover, the cost of the consumer not being perfect is very often the serious injury or death of a loved one.

And so, ask yourself: Which cost is too high to pay?  Is paying 25 cents more per pound for a box of frozen hamburger patties too expensive when compared to the cost of losing a son or daughter, or a mother or father, to a horrifyingly painful E. coli O157:H7 infection?   Consider also, that when the USDA implemented the HACCP/Pathogen Reduction Rule in 1996, a subsequent economic analysis estimated that compliance with the regulations raised a plant’s costs of production less than one cent per pound.[5] Keep in mind too that a primary rationale of the HACCP/Pathogen Reduction Rule is that E. coli O157:H7 be reduced to an “undetectable level.” This so-called zero-tolerance policy is based on the irrefutable fact that if the “presence [of E. coli O157:H7] can be prevented, no amount of temperature abuse, mishandling, or undercooking can lead to foodborne illness.” See HACCP Final Rule, 62 Fed. Reg. at 38,962.  In other words, when a pathoge
n is not present in ground b
eef, a consumer need not be perfect–or even terribly careful–in its preparation and cooking. 

For these and other reasons, the USDA-FSIS has more than once rejected the meat industry’s suggestion that consumers should be primarily responsible for making ground beef safe to eat through cooking.  And, interestingly, the Agency’s rejection of the meat industry’s “blame-the-consumer” approach was done using language remarkably similar to that used by Dr. Marsden in his opinion piece. Over ten years ago, on February 11, 2000, FSIS stated:

Several industry commentators stated that consumers should assume more responsibility for their safety and expressed the need for consumer awareness programs regarding the importance of cooking beef products thoroughly.

Industry can reduce or eliminate risk associated with [E. coli] O157:H7 through various controls and interventions . . . that can be incorporated into HACCP systems.  Because industry has the means to reduce or eliminate the hazard, consumers should not be expected to assume all the responsibility for preventing foodborne illness associated with [E. coli] O157:H7.[6]

Noting that the USDA in the above quoted statement asserted that consumers should not be expected to assume all the responsibility for preventing foodborne illness, let me then concede that I believe that consumers do bear some responsibility for preventing foodborne illness.  There are plainly situations in which egregious food-handling errors might provide the basis for arguing, as both a legal and practical matter, that the manufacturer or the contaminated meat is not solely to blame for the resulting illness. This assumes, however, that the consumer has the information and skills necessary for them to act in a reasonably safe manner.  As such, Dr. Marsden makes a similar point in favor of consumer education when he states that: “If all consumers were educated about the risks associated with frozen beef patties, and took the same steps that have been successful in restaurant preparation, the problem would be solved.”

The problem here is that, despite the suggestions of the USDA and the meat industry to the contrary, consumers mostly lack the skills and information necessary for the reasonably safe preparation of ground beef, let alone the perfectly safe preparation of frozen ground beef patties. One reason for this is the meat industry’s decade-long effort to keep effective warning labels off of meat products.  In 1971, the American Public Health Association (APHA) sued the USDA in an attempt to force the USDA to place a warning label with cooking instructions on all packages of raw meat and poultry. Among other things, the APHA argued that the USDA “stamp-of-approval” misled the public into thinking that the meat was free of pathogens, like Salmonella, when, in fact, it was not.[7] In this case, the USDA sided with the meat industry in opposing the warning labels.  The USDA’s position changed, however, in the wake of the 1993 Jack in the Box E. coli outbreak, and the Agency announced its intention to require warnings and cooking instructions on all meat and poultry products.  And, not surprisingly, the meat industry sued to stop this new policy, winning a delay on largely technical grounds.[8]

Explaining its opposition to the warning labels and cooking instructions, a spokeswoman for the American Meat Institute said: “Warning labels really frighten the public…If consumers follow safe handling procedures, there’s no need to scare people about what is really a very wholesome and nutritious product.”[9] And so, the meat industry wanted the public to be responsible for making meat safe to eat, and to in every instance cook meat perfectly so that no pathogens might survive, but, above all else, they did not want to “scare people.”  Talk about wanting to have it both ways!  The meat industry wanted the public to think that meat was perfectly safe–that is, so long as it was perfectly cooked first.

Of course, no one has been telling the public that perfection is required if safety is to be expected.  Instead, the instructions that finally found their way onto meat packages advises only: Cook thoroughly. And what, pray tell, does “thoroughly” mean?  Would it have been so hard to say something like: Cook to an internal temperature of 160 degrees Fahrenheit, as measured by an electronic thermometer in at least five locations?  Apparently, though, providing consumers with complete and accurate information was simply too much to expect.

To make matters worse, as late as 1997, the USDA was encouraging consumers to cook ground beef until “brown” in the middle to assure that a safe temperature had been reached.  The only problem with this approach, however, is that it does not guarantee that the ground beef will in fact reach a temperature sufficiently high to kill all the bacteria that might be present.  Once this problem was belatedly recognized, the USDA began its efforts to encourage the use of food thermometers. “Yet, the 2006 FDA/USDA Food Safety Survey of consumers indicated that only 13% of consumers always or often use a thermometer when cooking or grilling hamburgers.”[10] And as if there was not enough confusion out there about how to safely cook a hamburger, the companies who manufacture and sell frozen ground beef patties have put a mind-boggling variety of different of cooking instructions on their respective packages. As one study concluded:

Since most consumers do not use a food thermometer to determine the doneness of ground beef patties, accurate cooking instructions are also needed. The wide range of recommended cooking times, 1.5 to 8 minutes per side for 113 g. patties, and conflicting information about the use of color to predict doneness of cooked meat and about avoiding both overcooking and undercooking, provide an array of confusing instructions for consumers who may buy a variety of package types when selecting frozen ground beef patties over time.[11]

This means that, even if a consumer follows the cooking instructions printed on the package, and does so to the letter, the cooked ground beef patty still might not be safe to eat. 

Ultimately, then, I think what we need is a little realism here. If the manufacturer of frozen ground beefs patties is not willing to exercise the care necessary to prevent E. coli O157:H7 from contaminating its product, and is not willing to provide starkly clear warnings and accurate cooking instructions on its packages, it is time for the meat industry to shut up about so-called consumer responsibility.  Like Lady Macbeth, the responsibility of the meat industry for the death and injury caused by contaminated meat is not something that can be easily washed away.

1.  For a more detailed critique of Mr. Boyle’s assertions, which are there quoted at greater length, please see my essay, Lies, Damn Lies and Statistics (Oct. 21, 2009).

2.  To provide an example, there is her opinion piece entitled “Increasing Hunger and Regulation” in which she argues that regulations cause hunger by increasing the costs of production, explaining, by way of example, that “the movement to put restrictions on the use of land for farming can easily result in less land under cultivation and down the road a shortage of food.”  She continues this line of argument in “Why Do You Think We Have Factory Farms,” in which she proclaims “I’m getting more and more frustrated with the idea that small farms can feed the world.”  To which I reply–Well, of course, small farms cannot feed the world, if “feeding the world” is defined as providing each person on the face of the earth a daily allotment of cheap industrially-raised chicken or beef.  Oh, and by the way, we already are not feeding the whole world, at least not very well. But
I digress.

3.  Dr. Marsden’s opinion piece can be found online here (although free membership sign-up is required for access): http://www.meatingplace.com/MembersOnly/blog/BlogDetail.aspx?blogID=11&topicID=5683 

4.  See Michael Moss, “Safety of Beef Processing Method is Questioned,” New York Times, Dec. 30, 2009.

5.  Michael Ollinger, et al., Meat and Poultry Plants’ Food Safety Investments: Survey Findings, USDA/ERS Technical Bulletin No. 1911 (May 2004) at p. 37 (noting that “ERS survey data suggest that the PR/HACCP rule has raised beef and poultry slaughter plant costs by about one-third of 1 cent per pound.”)

6.  See “Recent Developments Regarding Beef Products Contaminated With Escherichia coli O157:H7,” 65 Fed. Reg. 6881, 6884 (announcing that the agency would hold a public meeting “to discuss FSIS’ policy regarding [E. coli] O157:H7 and new information concerning the pathogen and its relation to human health.”)

7.  For a more detailed discussion of the APHA lawsuit, and the court ruling that allowed meat to remain warning-free, see my essay, BPI Ground Beef Salmonella Recall: Will the Meat Industry Sue, and Who Will the USDA stand up for?, at http://www.foodpoisonjournal.com/2009/08/articles/food-poisoning-watch/bpi-ground-beef-salmonella-recall-will-the-meat-industry-sue-and-who-will-the-usda-stand-up-for/

8.  See Texas Food Industry Assoc., et al. v. Espy, 842 F. Supp. 254 (Dist. Tex. 1993) (granting a preliminary injunction on the grounds that the USDA had not followed the required procedures to adopt the new rule).

9.  This quotation is taken from Marion Nestle’s excellent book, SAFE FOOD, at p. 77.  There you can also find a succinct and enlightening description of the meat industry’s efforts to block the regulatory reforms that the USDA tried to put into place in response to the 1993 Jack in the Box outbreak. See Safe Food, pp. 62-97.

10.  See Sandra McCurdy, et al., Label Instructions and Cooking Times for Retail Frozen Ground Beef, Food Protection Trends, p. 336, June 2009.

11.  Id. at 339. [Full disclosure: My law firm contributed funding toward the completion of this study, which was done independently and subject to peer-review prior to publication.]

By now, most people have come to understand that a lot of industrially produced, mass-manufactured ground beef sold in the United States can be deadly.  One need only look at the recent reminder provided by the tragic story of Stephanie Smith, and the Cargill-manufactured ground beef patty that she had the misfortune to eat.[1]  But what is most certainly not understood, is that steaks can be nearly as deadly as ground beef if mechanically tenderized, a process that can drive deadly E. coli O157:H7 bacteria inside the meat, making it much harder to eliminate by customary cooking practices.  As a result, thousands upon thousands of people every day feel free to order a steak in a restaurant cooked to medium-rare even though doing so could be deadly.

The serious safety risks posed by E. coli-contaminated steaks was once again made clear by the December 24 recall of 124 tons of beef products manufactured and sold by National Steak and Poultry, a meat company based in Owasso, Oklahoma.  According to the FSIS Recall Notice:

FSIS became aware of the problem during the course of an investigation of a cluster of E. coli O157:H7 illnesses. Working with the Centers for Disease Control and Prevention (CDC) and state health and agriculture departments, FSIS determined that there is an association between non-intact steaks (blade tenderized prior to further processing) and illnesses in Colorado, Iowa, Kansas, Michigan, South Dakota and Washington.[2]

To date, however, FSIS has not announced the names of the restaurants that received the steaks subject to recall, and thus consumers so far have no way of knowing whether they may have been put at risk by their choice of eating establishment.  Editor’s Note:  This contributed article was submitted before yesterday’s announcement that the recalled steaks were sold to Moe’s Southwest Grill, Carino’s Italian Grill, and KRM restaurants.

What makes this recent outbreak and recall particularly noteworthy is the fact that the risks posed by mechanically tenderized steaks have long been well-known by FSIS and the meat industry.  Indeed, it was nearly ten years ago that the FSIS first explicitly distinguished the safety risks posed by intact versus non-intact meat.[3]  Explaining its position, the Agency stated:

In 1994, FSIS notified the public that raw ground beef products contaminated with E. coli O157:H7 are adulterated within the meaning of the FMIA unless the ground beef is further processed to destroy this pathogen….Raw ground beef products present a significant public health risk because they are frequently consumed after preparation (e.g., cooking hamburger to a rare or medium rare state) that does not destroy E. coli O157:H7 organisms that have been introduced below the product’s surface by chopping or grinding (e.g., ground beef, veal patties, and beef pattie mix). The public health risk presented by beef products contaminated with E. coli O157:H7 is not limited, however, to raw ground beef products. Given the low infectious dose of E. coli O157:H7 associated with foodborne disease outbreaks and the very severe consequences of an E. coli O157:H7 infection, the Agency believes that the status under the FMIA of beef products contaminated with E. coli O157:H7 must depend on whether there is adequate assurance that subsequent handling of the product will result in food that is not contaminated when consumed.[4]

In explicitly expanding its E. coli O157:H7 enforcement policy to include all non-intact beef products, the Agency relied on the deliberations of the National Advisory Committee on Microbiological Criteria for Foods (NACMCF) and the work it had done for Agencies in their joint development of the 1999 Food Code.  One such task was to determine the “appropriate cooking temperatures for, among other things, intact beef steaks for the control of vegetative enteric pathogens.”  As stated in the Policy Statement regarding so-called “intact” meat products:

Due to a low probability of pathogenic bacteria being present in or migrating from the external surface to the interior of beef muscle, cuts of intact muscle (steaks) should be safe if external surfaces are exposed to temperatures sufficient to effect a cooked color change.  In addition, the cut (exposed) surfaces must receive heat to effect a complete sear across the cut surfaces . . . .  The Committee’s definition of “Intact Beef Steak” limited the applicability of this conclusion to “[a] cut of whole muscle[s] that has not been injected, mechanically tenderized, or reconstructed.”

Intact Meat Policy Statement at 2803-04.[5]

Concerned by what it deemed an unnecessary expansion of FSIS policy on E. coli O157:H7, the meat industry soon began to press the Agency to exclude mechanically tenderized meat from the policy.  The meat industry sponsored research intended to show the safety of this second category of meat products.[6]  In response to meat industry lobbying, the Agency asked NACMCF to “answer several questions with regard to E. coli O157:H7 in blade-tenderized, non-intact beef.”[7]  For its part, “NACMCF concluded that non-intact, blade tenderized beef steaks could potentially contain an infective dose of E. coli O157:H7 in their interior.” [Id.]  As a result, on October 7, 2002, USDA announced in a policy statement that:

FSIS is reviewing the NACMCF report and its draft risk assessment for E. coli O157:H7 in intact and non-intact (blade tenderized) steaks and will consider NACMCF’s conclusions and the conclusions from the risk assessment with regard to the policy announced for non-intact products in the January 19, 1999 Federal Register . . . .  At this time, FSIS believes that the public health hazard presented by E. coli O157:H7 and the prevalence of E. coli O157:H7 in these products continues to support application of the policy announced in the January 19, 1999, Federal Register.  There is a lack of data on industry and consumer practices for cooking pinned, needled, and blade tenderized steaks (e.g., grilling, oven broiling, or frying) and a lack of data on the proportion of [meat] industry outlets and consumers that prepare these products according to each of these different methods.  If FSIS obtains substantial and reliable data showing that [meat] industry and consumers customarily cook pinned, needled, and blade tenderized products in a manner that destroys E. coli O157:H7, FSIS would consider modifications to its policy . . . in these products.

[Id. at 62,334].

Two years after announcing its openness to considering a change of policy, yet another outbreak of E. coli O157:H7 infections was linked to mechanically tenderized meat–this one being the third in approximately three years.[8]  Accordingly–and, predictably, I think–the Agency was forced to take some action, because, as usual, enough people had been severely injured to make it impossible not to act.  And so the Agency issued a new policy statement, and required manufacturers of the implicated products to reassess their HACCP plans.  As FSIS explained:

The Food Safety and Inspection Service (FSIS) is publishing this notice to inform establishments that produce mechanically tenderized beef products that their next annual HACCP plan reassessment for these products must take into account the fact that there have been three relatively recent Escherichia coli (E. coli) O157:H7 outbreaks associated with consumption of mechanically tenderized beef. This requirement applies to HACCP plan reassessments for raw and cooked mechanically tenderized beef products, including such products that are injected with marinade (or ”enhanced” products). One outbreak that was associated with consumption of mechanically tenderized beef occurred in August 2000, one in June 2003, and one in August 2004.

The occurrence of these outbreaks represents a change that would affect the hazard analysis and could alter the HACCP plans of establishments that produce mechanically tenderized beef products. Therefore, establishments that produce such products should consider the significance of the outbreaks and ensure that their HACCP plans adequately address relevant biological hazards, particularly E. coli O157:H7.[9]

But beyond the required reassessment of HACCP plans, FSIS took no further steps with regard to this dangerous category of beef products, including testing.  Indeed, in its usual we’re-still-thinking approach to such hazards, FSIS explained the lack of testing this way:

[Although]FSIS does not test the mechanically tenderized beef for E. coli O157:H7 at this time. Such raw products are non-intact beef products, however, and thus would be adulterated if contaminated with E. coli O157:H7…[and] FSIS intends to sample non-intact beef products other than ground beef in the future.[10]

In other words, not enough people had yet been killed or made seriously ill to motivate FSIS to do anything more than, in essence, ask the meat industry to try a little harder.

And so four more years pass, and the risks posed by mechanically tenderized beef products go largely unaddressed by FSIS, despite some relatively recent warnings by consumer advocacy organizations, like the Consumer Federation of America.[11]  It was not until July 31, 2009, that FSIS decided to expand the scope of its testing for E. coli O157:H7, announcing the expansion in FSIS Notice 51.09.  Specifically, the Agency stated its intent to start testing bench trim, i.e., the trim generated post-slaughter in cutting the carcasses into primals and subprimals.[12]  This change was prompted by the Nebraska Beef and other recalls involving intact cuts from which trimmings had been generated and that ended up in ground beef, thus adulterating it.   To its credit, this was the first time that the agency ever started to connect (duh!) that if trimmings tested positive, the “intact” cuts from which the trimmings came might be positive for E. coli O157:H7 too.  Nonetheless, the Agency was still taking no action at all with regard to mechanically tenderized beef products.

The same cannot be said for the FDA, because in 2009 that Agency issued an extensively updated Model Food Code that for the first time specifically required that mechanically tenderized meat be cooked to the same internal temperature as ground beef.[13]  In the last fully-edited version of the Code, which had been issued in 2005, mechanically tenderized meat was not explicitly subject to the higher cooking temperature requirements, this being restricted instead to “comminuted” meat.  Neither was there any definition for “mechanically tenderized.” Still, the 2005 Code is explicit in only allowing “whole muscle, intact beef steak” to be served or offered for sale in a raw or undercooked condition.[14]  Thus, even if not explicit, one would need to stretch considerably to argue that the 2005 Food Code authorized the sale of mechanically tenderized steaks that the restaurant has not first thoroughly cooked.  So plainly the FDA, via the Food Code, has been active in attempting to eliminate the serious health risks posed by possible contamination of mechanically tenderized steaks.

But what if a restaurant does not know that the steaks it purchases are non-intact because of mechanical tenderization.  (I think this would be unlikely, but let us assume otherwise.)  Well, first, both the 2005 and 2009 Food Codes impose on the restaurant an obligation to know that its steaks are in fact intact.  Specifically, both versions of the Code state:

Whole-muscle, intact beef steaks that are intended for consumption in an undercooked form without a consumer advisory…shall be [o]btained from a food processing plant that, upon request, packages and labels them, to indicate that the steaks meat the definition[.][15]

For this to work, however, it would require FSIS to cooperate in ordering meat processing plants to label beef products according to whether they are intact or non-intact, and this is something that the Agency does not currently do.[16]  As a result, when a customer orders that his or her steak be cooked to medium-rare, the customer does so without any knowledge or understanding of the risk such an order imposes.  The customer may assume (to the extent they understand the distinction at all) that his or her steak was an intact, whole muscle cut of beef that is unlikely to harbor any bacteria within its interior.  This assumption will be proven wrong, however, when the customer falls ill with a deadly E. coli O157:H7 infection, and that infection is linked to other illness caused by the consumption of mechanically tenderized steaks.

Sound familiar?

References

[1]  See Michael Moss, E. coli Path Shows Flaws in Meat Inspection, New York Times, at A 1.  Among the many things noted in the story was the fact that Cargill manufactured the contaminated patties with a “a mix of slaughterhouse trimmings and a mash-like product derived from scraps that were ground together at a plant in Wisconsin.”  To read my article on meat-industry reaction to the Stephanie Smith story, and the serious issues of ground beef safety it raised, see https://www.foodsafetynews.com/2009/10/lies-damn-lies-and-statistics/

[2]  The Recall Notice can be found here: http://www.fsis.usda.gov/News/Recall_067_2009_Release/index.asp

[3]  For the record, I have long been on record that this distinction is, even if based in fact, makes no sense in terms of policy. Although the theoretical risk posed by surface-contaminated intact steaks is less than the risk posed by, for example, a contaminated ground beef patty, when focused on cooking alone as a safety measure, allowing any E. coli O157:H7-contaminated meat to be distributed in interstate commerce is indefensible. To read more about my thoughts on this topic, see http://www.foodpoisonjournal.com/2009/07/articles/food-policy-regulation/more-doubletalk-from-usda-on-e-coli-and-swift-meat-recall/   As far as I am concerned, the only defensible policy is one that the USDA at times has actually seemed to have adopted, but never enforced–that is, a true zero tolerance policy for the presence of E. coli O157:H7 in or on meat.   To read more about my thoughts on this subject, see my two blog-posts here: http://www.foodpoisonjournal.com/tags/zero-tolerance/

[4]  See 64 Fed. Reg. No. 11, 2803-05 (emphases added) (hereinafter “Intact Meat Policy Statement”).  For a detailed discussion of the evolution of the Agency’s E. coli O157:H7 policy, and the meat industry’s attempt through litigation to use the intact meat policy statement as a means of immunizing meat companies from product liability lawsuits, see my law review article, Preempting Food Safety: An Examination of USDA Rulemaking and Its E. coli 0157:H7 Policy in Light of Estate of Kriefall ex. rel. Kreifall v. Excell Corpor

ation, JOURNAL OF FOOD LAW & POLICY 1 J. FOOD L. & POL’Y 375 (2005) available online at www.nationalaglawcenter.org/assets/bibarticles/stearns_preempting.pdf

[5]  See also 1999 Model Food Code, 3-201.11(E), at http://www.fda.gov/Food/FoodSafety/RetailFoodProtection/FoodCode/FoodCode1999/default.htm (defining “whole-muscle intact beef steaks” as those “that are intended for consumption in an undercooked form without a consumer advisory”).

[6]  Wendy Warren, Characterization of E. coli O157:H7 on Subprimal Beef Cuts Prior to Mechanical Tenderization: Project Summary (Aug. 2002), at http://www.beef.org/uDocs/E.%20coli%20Mech%20Tenderization_Warren_6_6_03.pdf (stating on title page “Funded by America’s Beef Producers”).

[7]  E. coli O157:H7 Contamination of Beef Products, 67 Fed. Reg. 62,325, 62,333 (Oct. 7, 2002).

[8]  Ellen Swanson Laine et al., Outbreak of Escherichia coli O157:H7 Infections Associated with Nonintact Blade-Tenderized Frozen Steaks Sold by Door-to-Door Vendors, 68 J. Food Protection (No. 6) 1198, 1200, 1202 (2005) (describing an outbreak in which one 52 year-old HUS victim was hospitalized for 25 days and suffered permanent brain injury, and concluding that the “USDA should consider reevaluating the microbiologic hazards of technologies used in the production of nonintact steaks”).

[9]  HACCP Plan Reassessment for Mechanically Tenderized Beef Products, 70 Fed. Reg. No. 101, at 30331 (May26, 2005), at http://www.fsis.usda.gov/OPPDE/rdad/FRPubs/04-042N.pdf   The policy statement was followed days later by FSIS Notice 32-05, informing inspection personnel that each establishment’s annual HACCP plan reassessment must now include a look at the risks posed by E. coli O157:H7 contamination of mechanically tenderized beef products. See Notice here: http://www.aamp.com/news/documents/FSISNotice32-05.pdf

[10]  See FSIS Q&A at http://origin-www.fsis.usda.gov/HELP/FAQs_TSC_Notice32_05/index.asp

[11]  My law partner, Bill Marler, colorfully details all such warnings in his blog-post, which can be found here: http://www.marlerblog.com/2009/12/articles/case-news/usda-had-been-warned-of-e-coli-risk-of-mechanically-tenderized-steak/#pings

[12]  FSIS Notice is here: http://www.fsis.usda.gov/OPPDE/rdad/FSISNotices/51-09.pdf

[13]  2009 Food Code, Sec. 3-401.11(A)(2); see also Sec. 1-202.10 (defining “mechanically tenderized”).  The 2009 Code is at: http://www.fda.gov/Food/FoodSafety/RetailFoodProtection/FoodCode/FoodCode2009/default.htm.  Technically-speaking, the Food Code is jointly issued by FDA, CDC, and USDA, but it is the FDA, working with these other two agencies, that has primary responsibility for drafting and issuing the Code.

[14]  2005 Food Code, Sec. 3-401.11(C).  This provision remained unchanged in the 2009 Food Code.  Notably, this provision goes so far as to prohibit the sale of even intact steaks to “highly susceptible populations” unless the steaks are thoroughly cooked.  Further, the Code goes to great length to state that intact steaks may be served in an undercooked (e.g.., medium-rare) condition only if the “steak is cooked on both the top and bottom to a surface temperature of 63º C (145º F) or above and a cooked color change is achieved on all external surfaces.”

[15]  2005 and 2009 Food Code, 3-401(E).

[16]  Not coincidentally, in the wake of this latest recall of mechanically tenderized steaks, a Congresswoman known for her attention to food safety issues, called on the USDA to require labels on all tenderized meat, not only that which goes to restaurants, but all tenderized beef products. As reported in blog Meatingplace:

Congresswoman Rosa DeLauro (D-Conn.) on Monday called for labels identifying mechanically tenderized beef and pork products in the wake of National Steak and Poultry’s recent recall….

The recall followed USDA’s determination of an association between non-intact steaks (blade-tenderized prior to further processing) and illnesses in Colorado, Iowa, Kansas, Michigan, South Dakota and Washington.

“USDA has been aware of the E. coli risks associated with mechanically tenderized steaks as early as 1999, but has refused to act,” DeLauro said in statement. “The USDA should move immediately to require labeling that clearly identifies mechanically tenderized beef and pork products for all processing facilities, retailers and consumers. Restaurants, grocery stores, and consumers should be made fully aware of the products they are receiving so they can assure that they are cooked at the appropriate temperature.

See Rita Jane Gabbett, “Congresswoman calls for tenderized meat labels,” (Dec. 28, 2009), available online at http://www.meatingplace.com/MembersOnly/webNews/details.aspx?item=14991 (sign-in required).

Smith’s case has drawn widespread media attention, and she has become the most vivid and horrifying face of the rising number of food-borne illness outbreaks. Her story has helped bring reforms to the food-safety system inside the U.S. Department of Agriculture, and nudged along a food-safety bill in Congress.

At a family barbeque in 2007, Smith ate a hamburger sold at Sam’s Club, and processed by Cargill, which was tainted with a deadly strain of E. coli. Her health quickly deteriorated, and she suffered so many seizures that doctors put her into a drug-induced coma to save her life, and transported her to St. Mary’s Hospital in Rochester. She was in a coma for three months.

Two months ago, the New York Times cited confidential trace back information that showed the beef originated from four different Cargill suppliers — three plants scattered around the United States, and one in Uruguay.

And according to another article, this one published in the Star Tribune, efforts to settle Stephanie’s case without the need for litigation “collapsed” because Cargill took the position that it was not its fault–or not entirely–because it was actually one of its suppliers, Greater Omaha Packing Company, that had sold Cargill the raw materials that ended up contaminating the ground beef patties that were sold to Sam’s Club, and then to dozens of subsequently poisoned consumers.  As explained by my law partner, Bill Marler, who attended the two-day mediation at which settlement negotiations occurred:  “What it comes down to is Cargill really believes it’s not their fault….They believe that it’s one of their suppliers’ faults, but there’s no evidence to suggest which one of their suppliers is at fault.”[2]

The previously-cited Pioneer Press article expands upon this point, explaining why we sued only Cargill, and not the raw material supplier that Cargill had fingered:

Marler was asked why he only named Cargill Meat Solutions in the lawsuit, not any of the four outside suppliers or Wal-Mart.

“The grinding records of Cargill make it impossible to say where Cargill sourced its meat from,” Marler said. “Cargill is the manufacturer, and they’re ultimately responsible for the meat that was sold to Sam’s Club.”

Marler later added, “Ultimately what I think Cargill’s problem is, they want to point the finger at one of their suppliers…But I have looked at all the documents, and have seen all the grinding records, and there’s just no adequate evidence in my opinion to link this E. coli outbreak with any supplier.”

(To have a look at the grinding record that purports to be the “smoking gun,” look here: http://documents.nytimes.com/food-safety-documents#p=1)

The practice of pointing the finger at an upstream supplier is hardly a new maneuver.  But decades ago–prior to the nationwide “tort reform” push that occurred in the 80’s–a plaintiff was mostly entitled to sue the defendant of its choosing, and to collect the entire judgment from that one defendant.  This was called joint liability, whereby a single entity could be held 100% liable for the damages that the plaintiff suffered, even if multiple other entities contributed to causing the injury.  This is where we got the term “deep-pocket” defendant–that is, the defendant that was deemed most able to pay the entirety of a damage award, the one with the deepest pockets.  But because retailers–the entity that did nothing more fault-worthy than sell the defective product–were most often sued, the cry for tort reform arose as a response to surging (supposedly) insurance premiums.  And the most common reform enacted was to replace joint liability, with several liability–that is, a defendant need only pay for the portion of the fault allocated to it by the jury.  This meant, among other things, that a plaintiff needed, in most cases, to sue everyone potentially at fault so as to not risk being only partly compensated.  (In most states, including Minnesota, the jury gets to allocate fault to entities not made a party to the lawsuit too.)

The basic rationale behind joint liability was that the plaintiff was entitled to full compensation in the most expeditious manner possible.  Moreover, any injustice that arose from a company having to pay more than its “fair-share” could be alleviated by the filing of a contribution action–a lawsuit that sought to force other at-fault entities to contribute to the judgment paid by the entity that the plaintiff sued.  The fact that this sorting-out of fault occurred later–that is, after the plaintiff has been compensated, was not seen as too much of a burden for the at-fault entities to bear, since, of course, they were at-fault, and so it was their presumed negligence that had created the situation in the first place.  Of course, this assumes that the plaintiff was not herself at fault for the fact of injury, an assumption that was necessarily true when the rule of contributory negligence applied, a rule that prevented a plaintiff from recovering at all if she was even 1% at fault for her injuries. [3]

Because the plant where Cargill manufactured contaminated hamburger patties is a grinding operation that does not slaughter cattle or process carcasses, contaminated raw materials are almost certainly the source of the E. coli O157:H7 that caused such severe and widespread suffering–not just with Stephanie, but the dozens of others injured as part of the 2007 Cargill outbreak.  So it is not surprising that Cargill would, on some level, blame its suppliers.  Neither is it surprising that the USDA would attempt to identify (or “traceback”) the source of the raw materials to determine if the huge recall related to Cargill meat products might need to be expanded even further to include products manufactured by others.  What is surprising, however, at least at first glance, is that the USDA could not conclusively identify the source of the contaminated raw materials, despite having complete access to Cargill’s records.  

Of course, the failure of the USDA to determine the source of the contaminated raw materials will not stop Cargill from claiming to have made such identification itself, but such a claim needs to be understood as argument, not fact.  Plainly, Cargill is not an uninterested or unbiased party in this blame-game.  And just as plainly, if the USDA-folks–who are not only unbiased, but also highly motivated to determine the source of contaminated raw materials as a means of preventing future outbreaks–could not, based on all of the records available to them, identify the contamination-source, then why should Cargill’s self-serving analysis be accepted as credible?  It should not.  That does not mean, however, that anyone should be surprised by the attempt.

Given this after-the-fact attempt at blame, Cargill merely joins a long line of manufacturers who try to shift the blame for the fact th
at they made and sold an uns
afe product as a result of their use of unsafe raw materials.  In legal terms, this stratagem is call “allocation of fault,” and it is task that ultimately falls upon a jury to perform.  In fact, lawsuits arising from a well-investigated outbreak of foodborne illnesses, the issue of fault-allocation is the most likely to be vigorously contested, and, as evidenced by the failed attempt to settle the Stephanie Smith case without the need for litigation, also the most likely to scuttle settlement efforts.  Although all involved agree that Ms. Smith is entitled to full compensation for her grievous injuries, there is no similar agreement as to who should do the compensating, and in what percentages of relative responsibility.  

Commenting on this issue of relative responsibility, and the New York Times article on Stephanie Smith, an article in the Lincoln Star Journal observed:

Smith was victimized by ground meat that was tainted – nobody knows where or when in the processing chain – sold at a Sam’s Club and packed at a Cargill meat plant in Wisconsin, supplied in part with meat trimmings from Greater Omaha Packing Co.

At a plant the size of four football fields at 30th and L in Omaha, the company slaughters and processes 2,600 cattle daily, the Times reported.

Others in the Cargill supply chain were slaughterhouses in Texas and Uruguay, and Beef Products Inc., a South Dakota company with a plant in South Sioux City, Neb.

Using a combination of sources of meat and trimmings allowed Cargill to spend about 25 percent less than it would have otherwise, according to the Times.

In a response to questions from the Journal Star, Angelo Fili, executive vice president of Greater Omaha Packing, expressed sympathy for victims of tainted food. But he also said the Times story was biased and unfair because it neglected to report that Greater Omaha’s product has never been recalled, and its contribution to the Cargill product that crippled Smith had been cleared by a lab.

“Copies of the Certificate of Analysis test results of Greater Omaha’s product used by Cargill are available at our Website: www.greateromaha.com,” Fili said in an e-mail. “All product tests were performed by IEH Laboratories, the same lab that the New York Times used for their E. coli tests as referenced in the article. [4]

And so here you have a situation where Cargill selected its suppliers, and (one presumes) did its due diligence with regard to knowing that the suppliers were to be trusted.  Furthermore, as point out by the executive vice-president of Greater Omaha, Cargill also required that its suppliers test raw materials prior to their being shipped to its processing plant, and copies of the test results were made available to Cargill.  This means, presumably, raw materials that were not tested could be rejected by Cargill, and thus not used to make its ground beef patties.  Finally, there was also the option of Cargill testing the raw materials itself, as a sort of double-check on quality control.  But despite these facts, it remains Cargill’s stated position that it is not at fault, at least not entirely so, for the injuries that Stephanie suffered as a result of her E. coli O157:H7 infection.  Litigation thus commenced, and the resolution of Stephanie’s claims must await another day, a day that just may be one in which a jury decides whether to follow the path of Cargill’s finger, and make another entity pay for all or part of the millions of dollars of damages to be awarded.

[1] Tom Webb, “Minnesota woman sues Cargill for $100 million in E. coli case,” Pioneer Press, December 4, 2009, at http://www.twincities.com/ci_13926396

[2] See Matt McKinney, “Family of E. coli victim sues Cargill for $100 million, at http://www.startribune.com/local/78529222.html  

[3] This rule is still followed in four states (Alabama, Maryland, North Carolina, and Virginia), and the District of Columbia.  Twelve states bar the plaintiff from recovering anything if she is 50% at fault, whereas twenty-one states require the plaintiff to be 51% at fault before recovery is barred.  Thirteen states follow the pure-comparative fault rule, which allows the plaintiff to recover even if found to be 99% at fault, but the recovery is reduced by the percentage of the plaintiff’s fault–e.g., if she is awarded $100, she would only recover $1.  In Stephanie Smith’s case it remains to be seen whether Cargill will decide allocate fault to her or her mother based on the accusation that the ground beef was negligently “undercooked.”  This is certainly a position that Cargill has taken before.

[4] See Richard Piersol, “Beef Industry under fire after N.Y. Times article, Lincoln Journal Star, October 17, 2009, at http://www.journalstar.com/news/local/article_8b7de410-bb7f-11de-8369-001cc4c03286.html

For the speech, I decided to do an expanded version of a presentation that I had made earlier in the year at the 2009 Joint Annual Meeting of the Agriculture, Food and Human Values Society (AFHVS)‚Ä® and the Association for the Study of Food and Society (ASFS).   The title of the presentation–both the original one, and the one given this week–is  “On Faceless Transactions: How Tort Law Evolved to Manage the Sale of Food Between Strangers.”  It is my hope to this year finish work on a long article based on this presentation, which can then be published in a scholarly journal (and perhaps eventually in a book I plan to write).  What follows, however, is a summary of the main theses, provided in the form of an abstract, followed by a video presentation of the PowerPoint slides I used when delivering my presentations.

By examining the history of food regulation, beginning with Mosaic law through passage of “modern” U.S. food regulations at the beginnings of the 20th Century, it becomes apparent that as food production moved outside and then away from concentrated centers of human community–or, in Martin Buber’s terminology, the “living center”–the obligation to produce food that was honest, safe, and wholesome moved from the ethical realm to the instrumental realms of economics and politics.  

The increasing distancing of food-making from the “living center” radically disconnected food from place (terroir) and local flavor (gout du terroir).  This disconnection coincided with the increasing industrialization of food production, the loss of all traces of human activity, of the personal. Food-making was no longer artisanal (of specific hand and home); it was artifice and artifact, evidence of a prior authenticity that was used to (try to) legitimize its own loss, like in the irony-free claim–“Tastes just like homemade!”

 Also lost with the industrialization of food, and the increasing distance between its making and its sale, was the face-to-face transaction necessary for the buyer to be able to make an ethical claim–in the sense of what Buber’s I ask of Thou, or what Levinas’ “face” demands of the “self” of the “other.”  Anonymity increasingly came to define the food marketplace, along with a complete loss of transparency. The buyer and sellers were strangers to each other, and food products generic.  Consequently, the sole source of obligation became law, which is to say, the power to enforce a claim.  

As regulatory law increasingly served economic interests in favor of a national market for food, at the expense of local community-based production, food (as product) became the subject and source of a transformation in the law of torts–namely, the downfall of the “rule of privity”–which had denied legal remedy to only those party to a contract for goods, and the rise of the doctrine of strict product liability as a kind of social insurance intended to protect the public from danger of defective products. The doctrine of strict liability, which had its origins as a judicial response to the manufacturing of food “under modern conditions,” quickly came to be adopted nationwide and applied to all products.

During the last decade, as foodborne illness outbreaks grew larger and more frequent, and gained increasing media attention, a backlash finally began against the industrialization of food-production, against “factory” farms, and the global marketplace. The “local food” movement is arguably the evidence of such a backlash.  It is also implicitly a critique of the industrialization of food, and its banishment from the ethical realm.  By seeking face-to-face transactions in places closer to the “living center,” like in farmers-markets, and wanting to know where their food came from and  who made it, consumers in the United States may be in the early processes of a rejecting the industrial food-production model.     

I hope you enjoy looking at the PowerPoint slides that form the basis of the presentation.  Feel free to email any questions or comments that you may have.

For more information on the conference, go here: http://www.foodhaccp.com/conference09/

On October 3, 2009, the New York Times published a lengthy and compelling story about Stephanie Smith and the E. coli O157:H7 infection, and resulting permanent injuries, that she suffered as a result of eating a tainted hamburger patty–specifically, one from a box of  “American Chef’s Selection Angus Beef Patties” that had been purchased at a local Wal-Mart store.  See, Michael Moss, E. coli Path Shows Flaws in Meat Inspection, New York Times, at A 1.  These patties had been manufactured for Wal-Mart by the food giant Cargill, using, according to the story:

a mix of slaughterhouse trimmings and a mash-like product derived from scraps that were ground together at a plant in Wisconsin. The ingredients came from slaughterhouses in Nebraska, Texas and Uruguay, and from a South Dakota company that processes fatty trimmings and treats them with ammonia to kill bacteria.

The story also notes that “[u]sing a combination of sources — a practice followed by most large producers of fresh and packaged hamburger — allowed Cargill to spend about 25 percent less than it would have for cuts of whole meat.”  And so–surprise, surprise–the increased safety risk posed by such ingredients was motivated purely by cost-concerns, which is to say, profit-motives.

Not surprisingly, the meat industry was not pleased with the bad publicity generated by a front-page New York Times article that detailed the less-than-savory facts about how ground beef is manufactured today, and the significant public health risks that are created as a result.  To counteract this bad publicity, J. Patrick Boyle, President and CEO of the American Meat Institute (AMI), sent a letter to the editor, with the title, The Safety of Beef: The Meat Industry Responds.  The letter is worth quoting in its entirety.

The meat industry has made great strides in improving the safety of our products: according to the Department of Agriculture, despite changes in the government’s program that have made E. coli testing much more sensitive, the incidence of E. coli O157:H7 in ground beef declined 45 percent since 2000 and now occurs at a rate of less than one half of 1 percent. According to the Centers for Disease Control and Prevention, E. coli O157:H7 infections in people have decreased by 44 percent since 2000.

The American Meat Institute and its members have worked aggressively to develop new technologies and processes to enhance meat and poultry safety. Using them requires prior approval by the Department of Agriculture.

For example, A.M.I. submitted a petition five years ago to use carcass irradiation — a process to reduce or eliminate pathogens like E. coli — but we are still waiting for the department to initiate a rulemaking on its efficacy.

The meat industry has a single-mindedness when it comes to E. coli O157:H7 — we want to eliminate it. But like other facts of nature — from floods to the flu — even when there is a will, there may not always be a way to do it 100 percent of the time. Be assured that the industry will not stop trying.

So do you feel assured?  I certainly do not–and here’s why.
   
The statistics that Mr. Boyle so casually tosses around as proof of the great job that the USDA and the meat industry is doing are misleading at best, and a blatant sleight-of-hand at worst.  Note how the date of so-called decline in the incidence of E. coli O157:H7 in ground beef and of infections uses the year 2000 as its starting point.  This is significant, because the biggest decreases in the incidence-rates occurred in 2002 and 2003, a fact that Mr. Boyle utterly fails to mention.  Indeed, he also fails to mention that the incidence of ground beef in 2008 almost DOUBLED in 2008.  Here is what the most recent CDC study states:

Despite numerous activities aimed at preventing foodborne human infections, including the initiation of new control measures after the identification of new vehicles of transmission (e.g., peanut butter-containing products), progress toward the national health objectives has plateaued, suggesting that fundamental problems with bacterial and parasitic contamination are not being resolved. Although significant declines in the incidence of certain pathogens have occurred since establishment of FoodNet, these all occurred before 2004….The lack of recent progress toward the national health objective targets and the occurrence of large multistate outbreaks point to gaps in the current food safety system and the need to continue to develop and evaluate food safety practices as food moves from the farm to the table.

Efforts to reduce contamination of meat, poultry, produce, and other foods are ongoing….[T]he percentage of ground beef samples yielding STEC O157 increased from 0.24% in 2007 to 0.47% in 2008; whether the increase was related to focused sampling of higher risk facilities or improved laboratory detection, or whether the microbial load was actually higher, is unknown.

See Preliminary FoodNet Data on the Incidence of Infection With Pathogens Transmitted Commonly Through Food–10 States, 2008, 301 JAMA, 2088-2090 (2009) (emphases added), (For the raw date on which these O157-incidence rates are based, see USDA, Testing of raw ground beef and raw ground beef component samples for E. coli O157:H7: year-to-date totals can be found at the FSIS website.
   
So like the so-called Wizard of Oz who told Dorothy and her compatriots to “ignore the man behind the curtain,” Mr. Boyle asks the American public to ignore the fact that meat safety has been getting significantly worse since 2004.  Less obviously, he also asks us to believe that the decreases that occurred early in the decade were both real, and primarily attributable to USDA and industry efforts.  But if you believe that, then I have a bridge in New York that I would love to sell you.

After analyzing five years of data from 1998 to 2005, the CDC concluded in a published study that: “Despite regulatory efforts to improve the safety of the U.S. food supply, E. coli O157:H7 outbreaks remain common.  Ground beef remains the most frequently identified vehicle.” Josefa M. Rangel, et al., Epidemiology of Escherichia coli O157:H7 Outbreaks, United States, 1982-2002, 11 Emerging Infect. Dis. (No. 4) 603, 606 (April 2005).  But notwithstanding this utterly-fact-based and non-biased conclusion, having come from the CDC, the USDA Food Safety and Inspection Service for several years attempted to paint a much rosier picture, one especially designed to make the meat industry and the agency look as good as possible.  The only problem was that the USDA was offering up a sleight of hand nearly as egregious as the one performed by Mr. Boyle in his letter to the editor on behalf of the meat industry.
   
A study published by USDA agency personnel in 2005 is a perfect example of the self-serving data-analysis that is relied upon to make it appear that FSIS-implemented regulatory changes resulted in a decrease in E. coli O157:H7 infections.  See Alecia Larew Naugle, et al., Food Safety and Inspection Service Regulatory Testing Program for Escherichia coli O157:H7 in Raw Ground Beef, 68 J. Food. Protect. No. 3, 462-68 (2005) (hereinafter FSIS Study).  This study, among other things, claims that a decline in the reported and confirmed E. coli O157:H7 infections from 2002 to 2003 “coincides with the reduction of E. coli O157:H7 in raw ground beef we report here.” Id. at 465 (emphasis added).  The agency apparently does not recogn

ize the fact that coincides
does not mean causes, and that something that coincides is, in fact, a coincidence, not a cause.  The agency also seems to think that if a “decrease occurred follow[s] specific regulatory changes by FSIS and actions by industry that were implemented with the goal of reducing E. coli O157:H7 adulteration of raw ground beef,” then that this is by itself proof of a cause and effect relationship.  Of course, those of us who studied logic know that one of the biggest logical fallacies that exists is post hoc, ergo propter hoc–after the fact, thus because of the fact. Sorry USDA–it does not work that way.  

In the study, FSIS was also disturbingly untroubled by its own admission that the testing data on which it relied “does not provide an ideal estimate of the prevalence of E. coli O157:H7 in raw ground beef in the United States.”FSIS Study at 464.  What some might call “less than ideal,” others might call misleading–or perhaps even a “damn lie.”  It should also be note that for over the relevant three year period, from 2000 to 2003, the FSIS collected and tested 19,628 samples from federally inspected establishments, and only 4,389 from retail. Id.  And as FSIS also admits, “the selection of retail outlets was neither completely random nor weighted according to production or sales volume.” But none of that stopped FSIS from claiming that the so-called “decrease” in the rate of positive raw ground beef samples “reflects a real change resulting in measurable public health improvements.” Id. at 467.
   
Sadly for the USDA, and even more for the public, the touted change was not long-lived (if it lived at all). About two years later, in the wake of several large outbreaks of illness linked to ground beef contaminated with E. coli O157:H7, the agency was backtracking fast about its claims of measurable public health improvements attributable to FSIS and industry actions.  Instead, in FSIS Notice 65-07, FSIS stated:

The purpose of this notice is to make inspection program personnel aware of a number of significant developments involving Escherichia coli O157:H7 (E. coli O157:H7) in beef products that occurred since the beginning of the high prevalence season for this pathogen in April. These developments raise questions about the adequacy of the interventions and controls that beef operations (i.e., official establishments that slaughter, fabricate, grind, mechanically tenderize, or enhance by tumbling, massaging, or injecting beef products such as with marinades) are employing to address this pathogen.

*    *     *

Beginning at least with the high prevalence season for E. coli O157:H7 in April 2007, some control measures for E. coli O157:H7 implemented by beef operations have proven to be inadequate. During this period, there has been an increased number of positives in Agency sampling for E. coli O157:H7, compared to the preceding three years, a couple of outbreaks attributed to this pathogen and beef products, and a number of large recalls. This situation requires a broad reassessment of how beef operations and FSIS are assessing this pathogen.

Notice at 1, 2.  And so, among other things, FSIS required all federal establishments to reassess their HACCP plans, and complete a detailed E. coli O157:H7 checklist. And this was just the beginnings of multiple agency responses to a significant surge in not only the prevalence of this pathogen in ground beef, but also on intact cuts of meat, both of which caused significant injury and death in the ensuing years.

Of course, all of this Mr. Boyle ignores when he touts the “great strides” the meat industry has made in improving safety of meat products.  But perhaps his most egregious bit of irrationality is the notably false analogy he trots out at the end of his letter to the editor.  In this, Mr. Boyle calls the presence of E. coli O157:H7 in ground beef a “fact of nature,” analogizing this deadly pathogen to “floods [and] the flu.”  By this analogy, Mr. Boyle plainly intends to suggest that the presence of E. coli O157:H7 in or on meat is simply inevitable, and so not the meat industry’s responsibility.  He re-emphasized this point in a press release issued not long after his letter to the editor in which he states: “We are selling a raw product,…and raw products by their nature may contain harmful bacteria. That’s why we are committed to providing consumers the information that they need to handle and cook ground beef safely.”  The public must thus take responsibility for making meat safe to eat, because meat products, “by their nature” can contain E. coli O157:H7.  And so just as it is not the meat industry’s fault when it rains on a day that you forgot to carry your umbrella, it is not the meat industry’s fault if you are infected with E. coli O157:H7 as a result of buying and eating adulterated ground beef. 

Boyle’s patently absurd statement about E. coli O157:H7 being somehow “natural” to raw meat reminds me of something that my Grandmother used to say when teaching me how to cook. She’d say: “Remember–You can’t unsalt the soup.” And just as you can’t unsalt the soup, you can’t reasonably expect to remove “E. coli O157:H7 and other invisible germs” from a carcass once you put it there.  Just like the too-salty soup didn’t appear naturally in the pot that way, deadly pathogens do not naturally occur on meat.  Instead, E. coli O157:H7 contaminates a carcass only when insufficient care is used during the slaughtering process  That is why it is so equally absurd that Boyle bemoans the fact that the USDA has been slow to act on a meat industry petition that seeks agency approval “to use carcass irradiation–a process to eliminate pathogens like E. coli.” So, according to Boyle, the meat industry should be allowed to continue to carelessly contaminate carcasses with feces, but then be allowed to sufficiently zap each carcass with irradiation to kill the pathogens just put there.  Talk about closing the barn doors after the cattle have already left. Or trying to unsalt the soup.   

In the end, the meat industry wants credit when fewer people get sick and die from E. coli O157:H7 infections, but they want none of the responsibility when more do.  According to the meat industry, the public must simply come to accept sickness and death as part of life, something altogether natural, and, in any case, the fault of the public anyway for not cooking the ground beef to a temperature high enough to sterilize it.  I just wonder if Mr. Boyle would like to explain that to Stephanie Smith in person.  I am guessing that he would rather not.

Twenty years ago, when I was in college and studying for a BA in Philosophy, one of the courses required for my major was Logic.  I do not really recall that I enjoyed the subject all that much, especially learning Aristotelian truth tables (see, e.g. http://aristotle.tamu.edu/~rasmith/Courses/Logic/Exercises/2.0.html), but I did earn an A in the class.  I also obtained the ability to quickly identify logical fallacies, failures of reason, and irrationality.  Indeed, to this day, when I hear someone making a poorly reasoned argument, or one that is based on no reasoning at all, I cringe.  For me, it is like seeing someone write 2 + 2 = 5 on a chalkboard.  I know immediately that it does not add up.  And no matter how many times someone writes that equation on the board, or attaches to it an appeal to fear (or, in logical terms, an argumentum in terrorem), 2 + 2 = 5 is still not a true statement, and it never can be. 

Logic can teach us to objectively evaluate an argument, and to recognize logical fallacies and statements that are not true. And as just mentioned, logic can teach those who take the time to learn it, to reject appeals to fear as a logical fallacy.  These appeals take the following form (which will also tell you a little bit about logic and truth tables).

Either P or Q is true.
P is terrifying and awful.
Therefore, Q is true.  

The conclusion of this argument is false because the manner in which is reached rests upon a logical fallacy–actually, more than one.  First, even if the prospect of P is terrifying and awful, or appears to be so, the fact of it coming to pass might not be so. Second, even if the first statement in this argument is true (as it must be under the rules of logic), this argument assumes the truth of the second statement–also called the minor premise.  And thus this argument is a form of circular reasoning, also known as begging the question (or Petitio Principii), since if you are just going to assume the truth of that which you are supposed to be attempting to prove, by attempt the proof at all?  Finally, this argument also refutes a proposition that is irrelevant, most often because it is not a position held by the person being criticized or attacked.  The position refuted thus acts as the “straw man,” which is the name of this particular logical fallacy, and part of the larger category of fallacies referred to as “red herrings.”  Indeed, all three of the fallacies just discussed fall into this category, a favorite of sloppy thinkers and the intellectually dishonest.  Tyrants love this kind of “reasoning” too. 

The power of logic is like the power of arithmetic; its premises cannot reasonably be disputed without rejecting the validity of the system as a whole.  The validity of the system, along with its premises can, however, be ignored.  Just as someone can continue to insist that 2 + 2 = 5 by ignoring the arithmetic impossibility of such an assertion, one can also continue to insist on validity of an otherwise utterly invalid argument.  Which brings me to what inspired the above disposition in the first place: Michele Bachmann, and her most recent lunacy, this one about the food supply in the United States, and the impact of the food safety bill now pending in Congress.

During a floor speech in the House of Representatives on Monday, September 14, 2009, Congresswoman Bachman made the following argument–or “argument.”

Then-candidate Obama, Senator Obama, made the statement during the course of his campaign. He said, Americans can’t think that they can drive SUVs, set their thermostats at 72 degrees, or eat as much as food as they want, and think the rest the world will be okay with that.

Well, let’s take a look at the report card since President Obama has come into office. By taking over GM and Chrysler, what we’re seeing is the diminution of the SUV. We’re seeing a lot of these high-end vehicles now being phased out, and instead we’re seeing the new cars that the President wants to have put in place by Government Motors. That’s the SUV portion.

What about setting our house temperature at 72 degrees and buildings like this one at 72 degrees? Well, once we have the government effectively nationalizing energy, people won’t be able to afford to set their thermostats at 72 degrees. They will be sitting at home shivering at 55 degrees in winter, and in summer most likely won’t even be able to turn on the air-conditioning.
 
And what about food?  President Obama said we can’t eat as much food as we want and think the rest of the world will be okay about that–as if that matters to freedom-loving Americans. Well, we just heard last week that the Federal Government now under the Obama administration is calling for a re-ordering of America’s food supply. What’s that going to mean? Now will the White House decide how many calories we consume, or what types of food we consume?…My farmers are very concerned about this.

(Note: The italics above are my own, and were added for emphasis.  The video of Bachmann’s speech, if you dare watch it, can be found at YouTube.)
   
Now, I will not attempt to unwind this Gordian knot of a speech so as to find (or try to find) how many threads it contains; I will, however, make a couple of points that are illustrative of my discussion of logical fallacies.  First, Bachmann plainly delights in quoting President Obama out of context, which is — no surprise here — a form of straw man argument.  When he made the statement to which Bachmann points, and on which she bases her entire argument, President Obama was discussing global warming, and the importance of “lead[ing] by example.” He was also arguing that it was crucial for our country’s global competitiveness that we develop and become leaders in green technology that the U.S. could be profitably exported to developing countries.  But, to Bachmann, that is all beside the point, which is to say, beside the different point that she wants to make based on her distortion of what the President actually said.  This is because she has a second logical fallacy to construct — that is, an in terrorem argument to make.  According to Bachmann, Obama is going to nationalize energy, just like he did with “government motors” in his quest to abolish SUV’s.  And even worse, Obama is go to exert control over every thermostat in the U.S. and force us all to sit at home in the winter and shiver!
   
Oh, and as if all that was not horrible and terrifying enough: President Obama will soon “decide how many calories we consume, or what types of food we consume,” all under the guise of making food safer.  I mean, imagine that–trying to rid the U.S. food supply of deadly pathogens like E. coli O157:H7, all as a means of lowering the caloric intake of “freedom loving Americans” everywhere.  If this plan were not so diabolical, it just might be funny–hysterically funny.  Or perhaps, considering the source of the warning,  just hysterical.  Of course, if I decided to accuse Congresswoman Bachmann of being hysterical, as a way of attacking her argument, I would then be guilty of a logical fallacy too–an ad hominem argument (also a form of red herring), in which I attack the person of my opponent rather her position.  Let me thus take a moment to attack Bachmann’s position, and not her person (as tempting at that may be).

According to Bachmann, any government effort that attempts to limit what, or how much, “freedom lovi
ng Americans” eat is, for lack of an even more generic, or neutral term, bad (or not good).  If we accept, for the sake of argument, that this is true, then we must also accept as true that all Americans must be free to eat anything they want, in any quantity they want.  Similarly, it must be accepted as true that any limitation on this freedom, direct or indirect, which is caused by government action (or inaction) is bad, and would be harshly criticized by Bachmann.  It therefore follows that she must be in favor of food subsidies for all Americans, given that all Americans are not free to eat anything they want, in any quantity, if they lack the money to do so. 

So does Bachmann actually support the freedom of all Americans to eat what and how much they want, without federal restriction of any kind?  Of course not.  And that of course means that the premise of her argument is false.  All restrictions on what Americans eat are not bad.  Consequently, it is necessarily true that some restrictions on what Americans can eat are good.  (See how much fun logic is?)  But faced with such logic, I suspect that Bachmann would disagree, and clarify that “freedom loving Americans” only need (or want) to be free to eat what they can afford to eat based on their own hard work and freely-earned earnings.  In other words, government has no business subsidizing the food supply such that Americans have more of certain things to eat than others, and some food items are cheaper than they would otherwise be in the absence of federal subsidies.

But wait!  What about the farmers for which Bachmann expressed such concern?  Does not the government provide them subsidies, and provide price support for their crops, thereby increasing the cost of food, and, as a direct result, limiting the quantity and kinds of food that “freedom loving Americans” can afford to buy and consume?  And what about the subsidies that apply to only a few kinds of crops, like corn, wheat, and soybeans, thereby causing surpluses of these items that prevent “freedom-loving” farmers from being free to grow whatever they want, instead of what the government tells them to grow?  What about that Congresswoman Bachmann?

(Side-note: Bachmann collected $47,128 in federal farm subsidies between 2004-2005 for part ownership of a farm in Wisconsin, according to the Environmental Working Group.  She has also consistently voted against restrictions of wealthy “urban farmers”–i.e., non-farmers who have only an ownership interest in a farming operation as an investment.)

Of course, I doubt very much that I would get an answer to these questions from the honorable Congresswoman from Minnesota, not ones that addressed the questions themselves.  Instead, were Bachmann to follow her typical strategy, I would likely be accused of being a non-freedom loving American — or, worse yet, a crazy socialist (and probably a gay one to boot).  And this is the sad fact of so much political argument in the United States today; when confronted by their own illogic, few speakers already certain of their rightness are going to be dissuaded by evidence or “mere” logic.  And that, in the end, is the essence of sophistry: the effort is not to convince, but to deceive.  Whereas logic seeks truth, sophistry (and its close cousin eristic argument) aims only to win an argument, by any means possible, especially by shouting down all those who deign to disagree by, for example, pointing out that the food safety law now under consideration in Congress is intended to keep “freedom-loving Americans” from dying of food poisoning, not dictating what and how much they eat.    

But don’t tell that to Congresswoman Bachmann, she’ll call you a commie.

Gourmet was born in 1940, the brainchild of Earle R. MacAusland, who conceived of the magazine, ironically enough, in the depths of the great Depression, when a surfeit of food well-prepared was likely but a dream to the ever-hungry majority of Americans.  Nonetheless, in December of 1940, the first issue of Gourmet came out with an illustration on its cover of a roast boar’s head.  (For more about the first ten years of the magazine, see Gourmet’s First Decade.)

From that point on, the magazine was undeniably elitist, which is to say that it imagined that its readers all ate French food on a regular basis and had wine cellars of considerable proportions.  The trick here, though, was that Gourmet was one of the first magazines that are now referred to as “aspirational lifestyle magazines.”  Perhaps its readers did not actually live the Gourmet lifestyle–which was described in its first editorial as that of “the honest seeker of the summum bonum [highest good] of living” -but they certainly aspired to such, or at least enjoyed reading about it.  That was certainly the case during the outbreak of World War II and the onset of food rationing. But what was the magazine’s solution?  Readers were told to save the magazines so that the recipes could be used once the war was over.  One can almost hear the echo of Scarlet O’Hara saying, “Tomorrow is another day.”

What has truly set Gourmet magazine apart over the years is its continuing commitment to not just a lifestyle, but to food writing of the highest order, writing that can be rightly described as being literature.  Take the example of M.F.K. Fisher’s, An Alphabet for Gourmets, something that I have more than once read in its entirety in a single sitting.  Indeed, in an article that I am preparing for publication in the Stanford Law & Policy Review, the epigram that I decided to use is taken from the chapter, “A is for Alone.”  It reads:  “sharing food with another human being is an intimate act, which should not be indulged in lightly.” (To read this and other chapters, please go here: http://www.gourmet.com/magazine/1940s/1948/12/mfkfisheranalphabetforgourmets?currentPage=1).

In recent years, Gourmet magazine has plunged more deeply into the politics of food, publishing amazing essays by Michael Pollan, like Sustaining Vision, which appeared in the September 2002 issue, and described a fascinating organic farm that was self-sustaining in every good sense of the word.  Here is a fine passage from it:

On a farm, complexity sounds an awful lot like work, and some of Salatin’s neighbors think he’s out of his mind, moving his cows every day and towing chicken coops hither and yon. “When they hear ‘moving the cattle,’ they picture a miserable day of hollering, pickup trucks, and cans of Skoal,” Salatin told me as we prepared to do just that. “But when I open the gate, the cows come running because they know there’s ice cream waiting for them on the other side.” Looking more like a maître d’ than a rancher, Salatin holds open a section of electric fencing, and 80 exceptionally amiable cows–they nuzzle him like big cats–saunter into the next pasture, looking for their favorite grasses: bovine ice cream.

And while the list of articles could go on, I must also mention one by Barry Estabrook that really opened my eyes, Politics of the Plate: Florida’s Slave Labor.  Read this article and I promise you will never look at the tomato on your fast-food hamburger the same way again.  And that is a very, very good thing.

So I agree with Anthony Bourdain (also first published in Gourmet), when he describes the magazine as “the center of gravity,” and its loss as “a major planet that’s just disappearing.” And while we will still have its nearly seventy year history of being the summum bonum of food writing and reporting, that does not much lessen the sting of this sad loss.  Rest in peace Gourmet, you will be greatly missed.

You may or may not know this, but this month, September 2009, is the 15th annual National Food Safety Education Month (NFSEM).  According to its creator, the National Restaurant Association Educational Foundation (NRAEF), NFSEM “is an annual campaign to heighten the awareness about the importance of food safety education.” NFSEM was:

Created in 1994 to heighten the awareness about the importance of food safety education. Each year a new theme and free training activities and posters are created for the restaurant and foodservice industry to help reinforce proper food safety practices and procedures.

This year’s theme is “Food Safety Thrives When You Focus on Five.”

Although laudable, the five areas of proposed focus are about as basic as food safety principles can be.  They are: (1) avoid purchasing food from unsafe sources; (2) clean and sanitize correctly; (3) prevent cross-contamination; (4) avoid time-temperature abuse; and (5) practice personal hygiene. (To review the training materials produced by NRAEF, see: http://www.servsafe.com/nfsem/default.aspx)  Not much to quibble with here.  But while laudable, is any of this enough?  Hardly.

For many years, I have been a strong proponent of something that would be truly innovative–even revolutionary–if it was to be adopted by the restaurant industry.  Something that would achieve significant and measurable improvements in food safety, especially as it relates to the thousands upon millions of non-outbreak (or “sporadic”) illnesses caused by contaminated restaurant food each year.  And what would this revolutionary innovation be?  Affordable health insurance and paid sick-days for all food-service employees.  (Note the interesting intersection here between food safety and health care reform, something that my law partner, Bill Marler, has also noticed.)

The fifth lesson in this month’s education campaign emphasizes the importance of personal hygiene, mostly focusing on hand washing.  But the lesson also mentions an item of equal importance: “coming to work sick can cause foodborne illness.”  It also reminds that employees should tell their “manager if you have any of the following symptoms: vomiting, diarrhea, jaundice (yellowing of the skin and eyes), or sore throat with fever.” What the lesson does not explain, however, is how an employee will be able to pay their rent if they miss three days of work because of diarrhea.  Nor does it explain how or why an employee should go to the doctor for a stool culture to see if the symptoms are due to a Salmonella infection when the cost of the doctor visit will not be covered by health insurance and thus will come out of the employee’s pocket.

There is also the issue of how easy it is to get a shift covered when you work in a restaurant.  When I was a waiter, back a few years longer than I care to remember, one of the biggest challenges was to get someone to cover your shift, something that you were expected to do on your own.  So when deciding whether the bout of diarrhea is serious enough to call in sick to work, a worker’s economic concerns will be buttressed by practical ones.  With restaurants running as lean a staff as possible to keep labor costs down, there are, as a result, not enough workers available to cover shifts when a person needs or wants to call in sick.  And, believe me, whatever a manager might say on the record, the employees that are willing to work no matter what are the ones that get the praise, and the better shifts.  Few things will get someone relegated to shifts that no one else wants faster than a reputation for calling in sick. Or it will get you fired.

The reality of working as a food service worker is economically rather grim.  According the U.S. Bureau of Labor Statistics, and its Occupational Outlook Handbook, 2008-2009 Edition:

In May 2006, median hourly wage-and-salary earnings (including tips) of waiters and waitresses were $7.14. The middle 50 percent earned between $6.42 and $9.14. The lowest 10 percent earned less than $5.78, and the highest 10 percent earned more than $12.46 an hour.

* * *

Median hourly wage-and-salary earnings of combined food preparation and serving workers, including fast food, were $7.24. The middle 50 percent earned between $6.47 and $8.46. The lowest 10 percent earned less than $5.79, and the highest 10 percent earned more than $10.16 an hour.

* * *

Median annual wage-and-salary earnings of restaurant cooks were $20,340 in May 2006. The middle 50 percent earned between $16,860 and $24,260. The lowest 10 percent earned less than $14,370, and the highest 10 percent earned more than $28,850.

And so, despite the meager pay and lack of benefits that food servers and cooks earn each year, the food safety precaution that the restaurant industry relies on to protect customers from much of foodborne illness is the expectation that these employees will decide on their own to stay home.  In other words, the restaurant industry expects its employees to act counter to their own economic interests by staying home each and every time they have a bout of diarrhea, or any other illness that is not so severe that it keeps them involuntarily bedridden. 

Such naïveté would be incomprehensible but for the profit motive that so clearly stands behind it.  While the restaurant industry expects us to uncritically accept the cost-benefit analysis that concludes that it is too expensive to provide paid sick-days and affordable health insurance, why does it turn a blind eye to the cost-benefit analysis that its employees do when deciding whether to work while sick? If it is acceptable for a restaurant to put its bottom-line ahead of food safety, then why is it not also acceptable for food service workers to do the same thing?  A bit of a double standard, I’d say.  If the industry does not want its employees to work while sick, then it should be willing to compensate them for the time lost.  And if a doctor’s visit is required to confirm the illness (or, better yet, find out if it is a communicable disease), then the restaurant must be willing, at minimum, to pay for the doctor visit.  Fair is fair.

Finally, what makes the industry position particularly hard to defend is the fact that its economic argument seems to be more an assumption than a fact.  Take a look at the experience of the 39-restaurant Burgerville chain, as reported in the Wall Street Journal:

Four years ago, executives of Burgerville, a regional restaurant chain, agreed to pay at least 90% of health-care premiums for hourly employees who work at least 20 hours a week. Today, the executives say the unusual move has saved money by cutting turnover, boosting sales and improving productivity.

Burgerville’s experience is notable for the food-service industry, where turnover is high and fewer than half of chains offer health insurance for part-time hourly employees, according to People Report, a research firm. The chains that do offer benefits pay on average 49% of the cost for employees working at least 30 hours a week, People Report says.

Burgerville’s initiative “not only improves quality of service but it saves money by not having to replace staff as frequently,” said Darren Tristano, executive vice president at Technomic Inc., a Chicago consulting and research firm for the food

industry.

And then there is Dick’s Drive-In Restaurants, in Seattle, and Costco, also based there. Both companies pay their employees well, offer full benefits, and, according to a story in the Seattle Times Magazine, “still make money, goo-gobs of money.” See “Good Business, Two Local Companies Are Proving It Pays To Do Well By Workers.” 

The just-mentioned companies provide only anecdotal evidence, but evidence it nonetheless is.  The bottom-line is not necessarily harmed by providing foodservice workers with health insurance, including paid sick-days.  In fact, as these companies have shown, doing the right thing by your employees can actually be more profitable than not doing so.  Even better, there is simply no question that foodservice workers are less likely to work while sick if they can take the day off, and get medical care, without putting themselves at risk of being evicted for unpaid rent.  So maybe the theme for next year’s National Food Safety Education Month should be one that is directed at the nation’s restaurant industry–Insure Your Employees to Insure Food Safety.

A quote from the article: “Insurance can be purchased to cover the risk of litigation, to hire attorneys, and to pay the cost of settlements and verdict. But there is no insurance against lost sales and a battered public perception–that is, except, to prevent the outbreak from occurring in the first place.”