Safe Food
Bacteria, Biotechnology, and Bioterrorism
Marion Nestle
Preface
Food safety is a matter of huge public interest. Hardly a day goes by without a front-page account of some new and increasingly alarming hazard in our food supply. As an academic nutritionist with a long-standing interest in how food affects health, I cannot help but deal with issues of food safety, daily. Students, colleagues, and friends often ask me whether it is safe to eat one or another food or ingredient. My department at New York University offers degree programs in the new field of food studies as well as in nutrition, and many instructors and colleagues associated with these programs work in restaurant or specialty food businesses. They also ask safety questions, as their livelihoods depend on serving safe food.
Nevertheless, I did not set out to write a book about food safety. My academic training is in science (molecular biology, but long lapsed) as well as in public health nutrition, and for many years my research has focused on the ways in which science and politics interact to influence government policies that affect nutrition and health. In that context, I have been speaking and writing about food biotechnology since the early 1990s. From the beginning, I viewed genetically engineered foods as raising questions about politics as much as about safety. Indeed, the safety questions seemed overshadowed by issues related to the implications of such foods for society and democratic values.
I originally intended to include several chapters on such issues in a book about the ways in which food companies use the political system to achieve commercial goals. That book, Food Politics: How the Food Industry Influences Nutrition and Health, came out in 2002 from the University of California Press. In the course of events, however, it became clear that the subject of food safety deserved a book in its own right. To begin with, during the years I worked on Food Politics (1999 to 2001), food safety crises popped up one after another, especially in Europe. Mysteriously contaminated soft drinks, cows sick with mad cow and foot-and-mouth disease, and outbreaks of what my friend and colleague Claude Fischler calls "Listeria bacteria hysteria" were eliciting headlines and destroying economies as well as confidence in the food supply. On the domestic front, one food after another—hamburger and such unlikely suspects as raspberries, apple juice, and bean sprouts—appeared as sources of bacterial infections. Because some of the contaminating bacteria resisted antibiotics, the illnesses were difficult to treat. Product recalls because of microbial contamination also seemed to be growing both in size and public attention.
Furthermore, I was receiving increasingly urgent queries from purveyors of small-scale, artisanal cheeses who wanted to know: can cheeses in general, and raw milk cheeses in particular, transmit bacterial diseases, mad cow disease, or foot-and-mouth disease? The answers to such questions were not easy to find, and I was soon engaged in reading veterinary reports and badgering experts and federal officials for information. Eventually, I could provide a scientific answer: cheese has a low probability of transmitting these or any other diseases, but the possibility cannot be excluded. This answer is either satisfactory or not depending on whether one is an optimist or a pessimist, and it raises its own set of questions. Does a low probability of harm mean that a risk is negligible and can be ignored? Or is it unreasonable to take the chance? Would pasteurization (heating milk briefly to a temperature high enough to kill most bacteria) make cheeses safer? Should the federal government require cheese makers to pasteurize milk or to follow other special safety procedures? Is the benefit of eating prized specialty cheeses worth any risk, no matter how small? The answers to such questions involve judgments based in part on science, but also on more personal considerations—how much one values the taste of cheeses made from raw milk, for example, or the social contribution of artisanal cheese making. Because such judgments are based on opinion and point of view, and sometimes on commercial considerations, and because they affect the regulation, marketing, and financial viability of food products, they bring food safety into the realm of politics.
I have been a minor participant in making such judgments. As a member of the Food Advisory Committee to the Food and Drug Administration (FDA) in the mid-1990s, I learned about other special safety procedures, particularly a scientific method for reducing the risk of harmful bacteria in food called, obscurely, Hazard Analysis and Critical Control Point, or by its equally obscure acronym, HACCP (pronounced "hass-ip"). Despite its name, HACCP seemed to me to make a lot of sense, and I wondered why food companies—especially those that produce and process beef and chicken—seemed so reluctant to apply HACCP rules along with methods to reduce pathogens, and test for microbial contaminants to make sure that infected meat stayed out of the food supply. Instead, food companies appeared to be to be using every political means at their disposal to resist having such rules imposed. Here, too, food safety issues seemed to be mired in politics.
On the morning of September 11, 2001, I was at home working on the index to Food Politics when terrorists attacked the World Trade Center, just a mile away from my New York City apartment. Among the many consequences of that event were some otherwise insignificant ones having to do with this book. My cheese purveyor colleagues added anthrax to their list of safety questions (answer: another situation of very low probability), and I realized that a book on this subject would also have to deal with food bioterrorism—an extreme example of food safety politics in action.
In some ways, this book extends the arguments set forth in Food Politics. There, I discussed the ways in which the food industry (the collective term for companies that produce, process, market, sell, and serve food and beverages) influences what people eat and, therefore, their health. To encourage people to eat more of their products, or to substitute their products for those of competitors, food companies spend extraordinary amounts of money on advertising and marketing. More important, they use politics to influence government officials, scientists, and food and nutrition professionals to make decisions in the interests of business—whether or not such decisions are good for public health. In doing so, food companies operate just like any other businesses devoted to increasing sales and satisfying stockholders. One difference is that the food industry is unique in its universality: everyone eats.
To pick just one example: food companies donate campaign funds where they are most likely to buy influence. According to the Center for Responsive Politics, a group that tracks campaign contributions on its Web site, www.opensecrets.org, several food companies and trade associations discussed in this book ranked among the top 20 agribusiness donors in 2001, with contributions ranging from $100,000 to nearly $1 million. The skewed distribution of these donations to Republican rather than to Democratic members of Congress is especially noteworthy. For example, the giant cigarette company Philip Morris, which owns Kraft Foods, donated 89% of more than $900,000 to Republicans. Other companies involved in food safety disputes of one kind or another also donated heavily to Republicans: Archer Daniels Midland (70%), the National Cattleman's Beef Association (82%), the Food Marketing Institute (90%), the National Food Processors Association (96%), and the United Dairy Farmers (100%). With the Republican administration of George W. Bush in power, these groups expect to receive especially favorable attention to their views on food safety issues, and they usually do.
Underlying discussions of such matters of influence in Food Politics and in this present volume are several recurrent themes:
- The increasing concentration of food producers and distributors into larger and larger units
- The overproduction and overabundance of food in the United States
- The competitiveness among food companies to encourage people to eat more food or to substitute their products for those of competing companies
- The relentless pressures exerted by food companies on government agencies to make favorable regulatory decisions
- The invocation of science by food companies as a means to achieve commercial goals
- The clash in values among stakeholders in the food system: industry, government, and consumers
- The ways in which such themes demonstrate that food is political
Food safety, however, would seem to be the least political of food issues. Who could possibly not want food to be safe? Consumers do not want to worry about unsafe food and do not like getting sick. Unsafe food is bad for business (recalls are expensive, and negative publicity hurts sales) as well as for government (through loss of trust). As this book explains, food safety is political for many of the same reasons discussed in Food Politics: economic self-interest, stakeholder differences, and collision of values. At stake are issues of risk, benefit, and control. Who bears the risk of food safety problems? Who benefits from ignoring them? Who makes the policy decisions? Who controls the food supply? For the most part, these are political—not scientific—questions, and they demand political responses. Because billions of dollars are involved, food safety issues are "hot topics" demanding attention from everyone involved in the food system: producers, distributors, regulators, and the public.
I wrote this book for everyone—from general readers to scientists—who would like to know more about the issues underlying disputes about food safety issues. How concerned should we be about the safety of the food we eat? What aspects of food safety issues should concern us? What issues really are involved? The purpose of the book is to establish a basis for a better understanding of the issues, the positions of the various stakeholders, and the ways in which the political system operates in matters as fundamental as the safety of the food we eat. I hope this book will help everyone interested in food, whether trained in science or not, to develop more considered opinions about food safety issues.
In part because I want the book to reach a wide audience, I have worked hard to make it accessible, readable, and free of jargon, and have defined terms that might be unfamiliar whenever they appear. Although nontechnical discussions of science necessarily omit crucial details, I have tried to provide enough sense of the complexity to make the political arguments understandable. Because any discussion of government policy inevitably requires abbreviations, I define them in the text and in a list. For readers who might like a quick reminder of the science underlying genetic engineering, an appendix provides a brief summary.
Although I do not try to disguise my own views on the issues discussed in this book, I attempt to present a reasonably balanced account of them. Because any book expressing a political point of view is likely to be controversial, I extensively document my sources. I refer to articles in traditional academic journals and books, of course, but also to newspaper accounts, press releases, and advertisements. These days, many previously inaccessible documents are available on the Internet, and I cite numerous Web addresses in the notes that conclude this book. The notes begin with an explanation of the citation method and the definitions of whatever abbreviations seemed most convenient to use. Because I have been a member of federal committees dealing with some of the issues considered here, and because I frequently attend conferences on these subjects, I sometimes refer to events that I witnessed personally, but I have tried to keep such undocumented observations to a minimum.
I hope that Safe Food will interest consumer advocates, students, college and university instructors, people who work for food companies, those employed in government agencies, and everyone else who is concerned about matters of food, nutrition, health, international trade, and, in these difficult times, "homeland security." If, as I argue, food safety is as much a matter of politics as it is of science, then food safety problems require political solutions. My deepest hope for the book is that it will encourage readers to become more active in the political process.
Part 1
Resisting Food Safety
Friends and colleagues, knowing that I was writing about harmful bacteria in food, wondered why anyone would care about things so invisible, tasteless, unpronounceable, and, for the most part, innocuous. Like most people, they view occasional episodes of food "poisoning" as uncomfortable (sometimes very uncomfortable), but certainly more a matter of random bad luck than of decades of industry and government indifference, dithering, and outright obstructionism. They accept at face value the endlessly intoned mantra of industry and government: the United States has the safest food supply in the world.
Whether this assertion is true is a matter of some debate. Safety is relative. The most authoritative estimate of the yearly number of cases of foodborne disease in the United States defies credulity: 76 million illnesses, 325,000 hospitalizations, 5,000 deaths. As the chapters in part 1 explain, such numbers undoubtedly underestimate the extent of the problem. Although the most frequently diagnosed causes of these illnesses are species of bacteria—Campylobacter, Salmonella, Shigella, and Escherichia coli (E. coli)—most episodes are never reported to health authorities and their cause is unknown. From a science-based perspective, the risks and costs of foodborne illness are extremely high.
Furthermore, although outbreaks of foodborne illness have become more dangerous over the years, food producers resist the attempts of government agencies to institute control measures, and major food industries oppose pathogen control measures by every means at their disposal. They lobby Congress and federal agencies, challenge regulations in court, and encourage local obstruction of safety enforcement. We will see, for example, that the culture of opposition to food safety measures so permeates the beef industry that it led, in one shocking instance, to the assassination of federal and state meat inspectors.
To explain this culture of resistance, we need to understand that current problems of food safety are not new but are different. A century ago, the main sources of foodborne illness were milk from infected cows and spoiled meat from sick animals. Public health measures that we now take for granted—water chlorination and milk pasteurization, for example—eliminated typhoid fever, cholera, and most lethal diarrheal diseases. The food supply depended on local production and was largely decentralized. Fish, for example, were caught wild from the sea. Even though cattle were transported to common areas for slaughter and kept in close quarters—conditions ripe for spreading infections—federal inspection and veterinary care kept most sick animals from entering the food supply.
Today, centralized food production has created even more favorable conditions for dissemination of bacteria, protozoa, and viruses. We call these organisms by collective terms: microbes, microorganisms, or "bugs." If harmful, they are pathogens. Many pathogens infect the animals we use for food without causing any visible signs of illness. Infected animals excrete pathogenic microbes in feces, however, and pass them along to other food animals, to food plants, and to us. If the pathogens survive cooking, stomach acid, and digestive enzymes, they can multiply, produce toxins, upset digestive systems, and do worse. Their effects are especially harmful to people with immature or weakened immune systems—infants, young children, the elderly, and those ill from other causes. Even from this brief description, it should be evident that people involved with every stage of food production, from farm to fork, must take responsibility for food safety to prevent animal infections (producers), avoid fecal contamination (processors), and destroy pathogens (food handlers and consumers).
Sharing of responsibility, however, also permits sharing of blame. As these chapters explain, producers blame processors for foodborne illness, and processors blame producers; government regulators blame both, and everyone blames consumers. The role of government in food safety demands particular notice. Current laws grant regulatory agencies only limited authority to prevent microbial contamination before food gets to consumers. Federal oversight of food safety remains unshakably rooted in policies established almost a century ago, in 1906. Congress designed those policies to ensure the health of animals, in an era long before most of the current microbial causes of foodborne illness were even suspected, let alone recognized. Although food safety experts have complained for years about the gap between hazards and oversight practices, attempts to give federal agencies the right to enforce food safety regulations have been blocked repeatedly by food producers and their supporters in Congress, sometimes joined by the agencies themselves, and more recently by the courts. Some progress has occurred, driven by the appearance in common foods of new and more deadly pathogens such as E. coli O157:H7, an exceptionally virulent strain of an otherwise normal and relatively harmless bacterial inhabitant of the human digestive tract. The multimillion-dollar costs of product recalls, legal counsel, and liability payments, and the associated costs of damaged reputation and loss of sales, have made the need for more forceful government oversight of food safety apparent to all but the staunchest protectors of food industry self-interest.
For the most part, the events described in this part of the book are political and outside the daily experience of most people in our society. Most of us do not worry much about the possibility that foods in our supermarkets might be contaminated and dangerous, and we act on the basis of what Nicols Fox calls the "unspoken contract" among food producers, government regulators, and the public to ensure that food is safe. On a daily basis, most of us think the risks are so small, so familiar, and so voluntary that we can ignore them. Microbial risks generate little dread and virtually no out rage.
I most clearly recognized the extent of our collective denial about the hazards of food pathogens in the summer of 1999 when I served as a member of an American Cancer Society committee developing dietary guidelines for cancer survivors—people diagnosed with cancer and treated for it. Because surgery, radiation, and chemotherapy can cause a temporary decline in immune function, our committee wanted to stress the importance of preventing microbial infections during periods of treatment and recovery. This advice, we realized, firmly precludes even a taste of raw cookie dough, not to mention avoidance of a host of other foods: Caesar salads, homemade ice cream, and anything else made with raw or partially cooked eggs; rare or medium-cooked hamburger and beef tartare; sushi and other raw seafood; raw milk and cheeses made from it; freshly squeezed juices; unpeeled vegetables and unwashed salad greens and berries; and raw sprouts. For people with weakened immune systems, eating uncooked and unpasteurized foods means taking a risk, and not just of minor discomfort but perhaps of hospitalization, long-term disability, or death.
But what about those of us with healthy immune systems? As these chapters explain, everyone takes a risk when eating uncooked foods, but the extent of that risk is uncertain. In the absence of better oversight of safety at the production end, federal agencies now advise us to follow safety guidelines that used to be reserved for travelers to developing countries. Such advice converts the act of eating to a matter of risk management rather than of nourishment or pleasure, and must be understood as a political act in itself. Because federal policies cannot ensure that food is safe before people bring it home, government agencies shift the burden of responsibility to consumers. Of course all of us should learn to prepare foods properly, but the industry can and should do its share as well.
As these chapters explain, for reasons of history, inertia, turf disputes, and just plain greed, government oversight of food safety has long tended to provide far more protection to food producers than to the public. Only in recent years, when foodborne illness began to raise serious issues of liability, have food companies and federal agencies been forced to consider measures—albeit grudgingly—to prevent microbial pathogens in food.
Like the events related to the StarLink affair, those recounted in these chapters reflect certain recurrent themes. With respect to government, one theme is the fragmented, overlapping, and ultimately obstructive distribution of authority between two federal agencies: the Food and Drug Administration (FDA) and the Department of Agriculture (USDA). Another is the historic closeness of working relationships among congressional agriculture committees, federal regulatory agencies, and food producers. We will see how food producers repeatedly deny responsibility for foodborne illness, invoke science to promote self-interest and divert public attention from harm caused by their products, and express outright hostility to federal oversight. From the standpoint of consumer advocacy, an additional theme bears on the ways in which food safety relates to much broader societal concerns. As Eric Schlosser discussed so compellingly in Fast Food Nation (Houghton Mifflin, 2001), much of the actual work in the food industry—in agriculture, slaughterhouses, processing plants, and places where food is served—is carried out by immigrants, teenagers, and other groups paid the minimum wage. People can only produce safe food if they know how to do so, if they follow the rules, and if they are themselves in good health. Thus, the production of safe food also depends on the adequacy of fundamental social support systems such as public education and health care.
In this part of the book, chapter 1 sets the stage by reviewing the origins of the present system of governmental oversight of food safety. Chapters 2 and 3 review some of the landmark incidents leading to the current "crisis" over bacterial pathogens. They also explain how government agencies attempted to deal with such crises in the face of resistance by food producers and processors. In chapter 4, I discuss some political alternatives for improving oversight of our food safety system.
For the most part, these chapters focus on the actions of producers and processors of meat—in this case, beef. Unlike the producers of most other foods, the beef industry makes little attempt to hide its self-interested political activities. Beef industry pressures on Congress and federal regulators are more transparent than those of other food industries, and are better documented. Nevertheless, many of the food safety issues raised by beef production are similar to matters that affect poultry, eggs, seafood (especially the farmed variety), and pork, as well as to those that affect fruits and vegetables inadvertently contaminated as they move from farm to table, sometimes from one country to another.
Chapter 2
Resisting Meat and Poultry Regulation, 1974-1994
In chapter 1, we saw how the initial division of food safety oversight between two federal agencies led to a system poorly equipped to deal with food pathogens. In this chapter and the next, we will see how century-old laws affected government responses to incidents caused by newly emergent pathogens, and how food producers used those laws to avoid having to change their practices. Because food animals are the ultimate source of pathogens, these chapters focus on disputes over meat safety, particularly those that involve attempts by the U.S. Department of Agriculture (USDA) to require the meat and poultry industries to control pathogens. Although meat includes pork and lamb as well as beef, and poultry includes turkeys as well as chickens, this chapter uses the phrase meat and poultry as shorthand for beef and chicken, and sometimes uses meat to refer to both.
I have two additional reasons for emphasizing meat safety. First, as I discussed in Food Politics, meat and poultry producers are especially adept at using the political system to their own advantage. They generously support both political parties, form close personal relationships with members of Congress and officials of regulatory agencies, and often use the so-called revolving door to exchange their executives' positions for those in government and vice versa. When meat producers complain about policies that appear unfavorable to their interests, government officials listen. As noted earlier, meat producers make little attempt to hide their lobbying activities, and their motives are transparent and readily documented. Second, as these chapters explain, the history of attempts to regulate the beef and chicken industries illustrates issues germane to other food commodities and products.
This chapter and the next recount events in the history of meat and poultry regulation from the early 1970s to the early 2000s. These events each illustrate one or more of the issues that make food safety political: (1) the weaknesses—grounded in past and present history—of the current governmental oversight system; (2) the close personal and professional relationships of meat and poultry producers with officials of Congress and regulatory agencies, particularly the USDA; (3) the consistent and often successful efforts of these industries to block regulations that might adversely affect their commercial interests; (4) the industries' denial of responsibility for outbreaks of foodborne illness; and (5) their invocation of science as a means to prevent unwanted oversight.
This chapter describes the events leading up to federal attempts to control microbial pathogens through development of the science-based preventive measures known collectively as Pathogen Reduction: Hazard Analysis Critical Control Point (HACCP). Chapter 3 explains how the regulated industries reacted once the USDA and the Food and Drug Administration (FDA) finally required them to install and adhere to HACCP rules. We will see that HACCP systems hold great promise for protecting the food supply, especially when they require testing for microbial pathogens. To understand why meat and poultry producers—and their friends in Congress and the USDA—so resisted this approach, we must first examine the historical basis of the close working partnerships among these industries and government officials, committees, and agencies.
The USDA'S Historic Mission
Promoting Food Production
Congress created the USDA in 1862 for one principal purpose: to make sure that enough food was available at all times to feed the population. To accomplish this worthwhile goal, the department protected agricultural producers and promoted the marketing of American agricultural products. The USDA interpreted its mandate to include research and dietary advice to the public, and it established units devoted to such activities by the early 1900s. Much later, in the 1970s, Congress directed the department to provide food assistance to the poor and to take greater responsibility for issuing advice about nutrition. As I explained in Food Politics, these functions did not cause conflict as long as dietary advice encouraged people to eat more of U.S. agricultural products. When chronic diseases replaced infectious diseases among the leading causes of death, however, dietary advice shifted. Health officials began to recommend restrictions on the intake of fat, saturated fat, and cholesterol as a means to prevent heart disease. For the first time, following dietary advice meant eating less, and particularly less of foods containing fat and cholesterol: meat, dairy, eggs, and fried and processed foods. At that point, the purposes of the USDA came into sharp conflict. One branch of the department was advising the public to eat less of agricultural products promoted by other branches. Whenever such conflicts occurred, the USDA almost always chose to protect the interests of food producers.
Thus, the USDA's friendliness to food producers has a long history. Indeed, one reason for the friendliness is built into the system of governmental oversight. The USDA reports to congressional agriculture committees whose most powerful members frequently come from states and districts economically depend on food processing and production. That in itself might not be a problem, but for decades, food producers, USDA staff, and members of the House and Senate agriculture committees constituted what was universally understood to be the "agricultural establishment." These groups firmly controlled farm policy through seniority appointments to agriculture committees that appeared to grant lifetime tenure. The classic example was that of Representative Jamie Whitten (Dem-MS), who chaired House agricultural appropriations committees for so long (1949 to 1992) that he was known as the "permanent USDA Secretary." Although the overwhelming representation of industry interests on congressional agriculture committees lessened somewhat in recent years, the tradition continues. In 1991, for example, 90% of the members of the Senate agricultural committee came from states in which at least 20% of the entire labor force was employed in food production. Such percentages alone explain why congressional committees might be more concerned about the interests of food producers and processors than about protecting public health and why they insist that the USDA follow this approach.
A second reason for the friendliness is the revolving door between government and industry. Job exchanges between industry lobbyists and the USDA are especially common, not least because 500 or so department officials are political appointees selected on the basis of party affiliation. As early as 1974, reports identified numerous USDA officials who were previously employed by the meat and dairy industries or who left USDA to work for those industries. From 1980 to 1992, the secretaries of the USDA included in succession a hog farmer, a former president of a meat industry trade association, and a cattle rancher—all more likely to grant higher priority to the business concerns of meat producers than to the safety concerns of the public. The change in administration in 2001 continued this tradition. The new USDA secretary, Ann Veneman, appointed a lobbyist for the National Cattlemen's Beef Association as her chief of staff. The former USDA secretary, Dan Glickman, took a position with a law firm that lobbies for food and agriculture companies; although he may not personally represent such clients, his presence in the firm gives an impression favorable to their interests.
A third reason for the friendliness of the USDA to the industries it regulates has to do with congressional campaign contributions. The Center for Public Integrity, a group that tracks relationships between industry and Congress, provides lists of Senate and House members who receive the largest campaign contributions from various industries. From 1987 to 1996, contributions from meat and poultry groups seemed particularly well focused. Among senators, 18 of the leading 25 recipients of contributions from meat and poultry groups were members of the agriculture committee, and one was Senate majority leader. Of the 25 leading House recipients from such groups, 17 were agriculture committee members and one was the Speaker. The center reports similar patterns among contributions from grocery distributors, wholesalers, and retailers. It also notes that among 153 witnesses at House and Senate agriculture committee hearings during that decade, 59 were from industry while just 16 were from public interest groups. One reason for this imbalance may be that the committees do not enjoy hearing the complaints of consumer advocates about USDA's conflicts of interest or its failure to enforce reasonable standards of microbial safety. By one report, agricultural producers contributed nearly $25 million to presidential and congressional campaigns from 1999 to 2002.
In the incidents that follow—each a milestone in the long road to better oversight of food safety—we will see how the interactions of government officials, meat and poultry producers, and Congress delayed the institution of measures to control food pathogens.
The USDA Rejects Safe Handling Labels
APHA v. Butz, 1974
Our story begins in the early 1970s, by which time health officials were well aware of the dangers of pathogenic bacteria carried by meat. Officials of the industry, the USDA, and Congress knew that the poke-and-sniff inspection system could not identify contaminated meat, but did not seem too concerned. In 1971 the American Public Health Association (APHA) attempted to force the issue by taking the USDA to court. The APHA argued that the USDA's stamp of approval on meat—granted after inspection—was misleading. Meat, APHA said, often was contaminated with Salmonella, but because USDA inspectors did not use microscopes or analyze for bacteria, they could not possibly detect pathogens and had no right to assure the public that meat was safe. Instead, APHA argued, the USDA should place a warning label with cooking instructions on packages of raw meat and poultry.
The USDA chose to defend the industry with this rationale: because so many foods are contaminated with Salmonella, "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." Instead, the USDA countered by shifting responsibility; it argued that an education campaign for consumers would be more useful. In 1974, an appeals court ruled in favor of the USDA, but in a divided decision that causes arguments to this day. The court's majority agreed with USDA that "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." In the opinion of the majority, Congress did not intend the 1906 Meat Inspection Act or its subsequent amendments to mean that (1) the inspection stamp guaranteed meat and poultry to be free of Salmonella, (2) inspections should include microscopic examinations, or (3) bacterial contamination implied misbranding.
The USDA, according to the court, was entitled to choose consumer education over warning labels: "official inspection labels which are placed on raw meat and poultry products...and which contain the legend "U.S. Passed and Inspected"...are not false and misleading so as to constitute misbranding, notwithstanding failure to warn against dangers of food poisoning caused by salmonellae and other bacteria. . . . No one contends that Congress meant that inspections should include such [microscopic] examinations." The court did not consider what Congress might have done had its members known about microbial contaminants in 1906, nor did it suggest how consumer education might be achieved in the absence of warning labels.
Because some of the judges dissented, and because the presiding judge had his own opinion on the matter, the ruling turned out to be more ambiguous than it first appeared. The dissenting judges noted that "Congressional intent is not helpful in determining whether the labels are misleading; the relevant inquiry is the understanding of consumers." Furthermore, the presiding judge said he did "not read the Court's decision to preclude a new challenge if it develops that consumer education programs prove inadequate to provide realistic protection." USDA officials could have interpreted these comments to mean that they could warn consumers about microbial hazards and evaluate the effectiveness of the warning, but the agency chose not to pursue this interpretation. Instead, USDA officials said that the ruling in APHA v. Butz meant that because Salmonella and other pathogens are inherent properties of raw meat, the law prohibits the department from doing anything to control them. This interpretation favored the interests of the meat industry, which continued to pursue this line of reasoning in subsequent court actions, as we will see in chapter 3.
General Accounting Office Proposes HACCP
"A Radically Different Method"
In the early 1980s, investigations by the General Accounting Office (GAO) revealed that USDA inspectors were no longer able to keep up with the recently increased line speeds in meat-processing plants, but the department had failed to do anything to solve that problem.The GAO investigators thought it was high time the USDA instituted a radically different method for keeping microbial pathogens out of the meat supply: Hazard Analysis and Critical Control Point, familiarly known as HACCP (and pronounced "hassip"). Despite its singularly unhelpful name, HACCP is a thoroughly modern and sensible method for keeping pathogens out of the food supply. Before proceeding further, we need to take a look at what it is and how it works.
The origins of HACCP date to the dawn of the space age. In 1959, the National Aeronautics and Space Administration (NASA) asked the Pillsbury Company to develop a food system for astronauts in outer space consisting of total meal replacements in the form of bars for foods and tubes for liquids. NASA demanded safety as the highest priority. The agency did not want its astronauts to come down with microbial food poisoning while on space missions—a difficulty likely to be especially unpleasant under conditions of zero gravity. Pillsbury scientists examined every stage of food production, transport, preparation, and storage, "from farm to rocket ship" (translation: they conducted a hazard analysis). They identified each of the steps—critical control points—at which microbial contamination might occur. They then developed methods to eliminate those possibilities (and accomplish pathogen reduction). The company designed this decidedly science-based process to prevent contamination at every stage of production and processing. The plan required supervisors to sample for microbial contaminants only when needed to prove that control measures were working. Later, Pillsbury used this system in its flour mills and processing plants, with great success.
HACCP is simple in its basic concepts and can be highly effective when it is used correctly (we will soon see what happens when it is not). In addition to its demonstrable success in outer space, studies on earth also show that appropriate use of HACCP reduces foodborne illness. HACCP requires food companies to analyze production processes intelligently, anticipate safety hazards at appropriate critical control points, and establish effective prevention controls and standards. Table 8 [not shown] outlines the seven principles of HACCP. These principles place the burden of ensuring safe food on its producers. Under HACCP, USDA inspectors would no longer poke and sniff animals or meat products. Instead, their job would be to examine control point records to make sure that companies were adhering to the HACCP plans.
Figure 5 [not shown] illustrates a typical HACCP plan for a cooked meat product. In this plan, the company takes temperatures and records them at three critical control points, and USDA inspectors check the temperature records. Even so simple an example makes it evident that the effectiveness of any HACCP plan requires a major commitment from all parties concerned and entirely depends on (1) the diligence with which companies develop their plans, select critical control points, and monitor what happens at them, and (2) the diligence with which USDA inspectors oversee and enforce the plans.
Scientists Recommend HACCP
A Science-Based Method
With that understanding, we can now return to the history of attempts to require HACCP plans for meat production and processing. In the early 1980s when the General Accounting Office (GAO) first suggested reforms of meat inspection, the USDA agreed to study the matter. By that time, the department's Food Safety and Inspection Service (FSIS) was responsible for meat safety. In 1983, the FSIS asked the National Research Council (NRC), a private research organization often recruited to conduct studies on matters related to federal policies, to evaluate whether the poke-and-sniff inspection system had any scientific basis and, if not, to recommend ways to give it such a basis. The NRC's 1985 report pulled no punches; it said that the best way to reduce food pathogens was to require HACCP throughout the entire food chain—from production to final sale. In recommending HACCP, the NRC recognized that the USDA's underlying conflicts of interest could work against controlling what it euphemistically referred to as "aesthetic" problems in meat: "The various federal meat and poultry inspection acts clearly give USDA multiple responsibilities with respect to the food supply. While FSIS has public health objectives, the laws also require that USDA assist in the marketing of products and that FSIS be concerned with aesthetic quality....Neither law nor history provides FSIS with any good guide on which of these tasks—health protection, market assistance, or aesthetic control—should predominate, or how conflicts should be resolved." The NRC was quite correct about problems likely to be caused by USDA's conflicts of interest, as soon became evident.
Later in 1985, the NRC released a second report, this one dealing with microbial hazards in food. HACCP, it said, was remarkably successful in eliminating botulism in canned foods of low acidity, and should be extended to other food products. This report also noted food companies' lack of enthusiasm for HACCP but attributed the reluctance to "adversary attitudes and lack of cooperation between regulatory agencies and the food industry." It recommended the appointment of a multiagency commission to oversee federal food safety efforts, thus becoming one of the first groups to demand better coordination of federal food safety efforts—a call that resonates to this day. Together, the two NRC reports revealed the extent to which the USDA's approach to food safety in the mid-1980s remained tied to 1906 laws and to the interests of industry. Both reports expressed concerns about the need to break through what Carol Tucker Foreman later called "the closed society of meat inspection," in which the USDA and its inspectors viewed the industry they regulated as the group to which they owed primary allegiance.
In 1987, partly in response to the National Research Council reports, Senator Patrick Leahy (Dem-VT) proposed legislation, the Safe Food Standards Act, to provide "farm-to-fork" protection against microbial pathogens. His bill would have required microbial testing of feed and animals, but it never reached the Senate floor, largely because "the very industries that the bill aimed to regulate owned the committees that had to pass it." Industry lobbying groups such as the American Meat Institute strongly opposed the bill and continued to oppose similar bills introduced soon after.
In 1988, the USDA and the Food and Drug Administration (FDA)—in a rare moment of unity—appointed a joint committee to advise the agencies on how best to keep microbial pathogens out of the food supply. Like previous committees dealing with this problem, this one extolled the virtues of HACCP and provided detailed instructions about how to proceed with such plans. By the late 1980s, health officials understood HACCP to be the most sensible and scientifically grounded approach to reducing the risk of microbial food poisoning, but the regulated industry strongly opposed it.
USDA Tries "Discretionary" Inspections, 1986-1989
Despite the almost complete unanimity among scientists that properly developed HACCP plans could reduce pathogens, neither the industry nor federal agencies nor Congress promoted the idea. Instead, Congress passed a law in 1986 ostensibly designed to focus USDA inspection efforts where they were most needed. The law eliminated requirements for daily on-site inspections of meat-processing plants and gave USDA the discretion to decide how often plants had to be inspected. This meant that the department could reduce the frequency of certain inspections. As part of the discretionary plan, the USDA proposed to "streamline" its inspection system by delegating some of the duties to the meat processors themselves (as would be done under HACCP). The department tried out a preliminary version of this program in 1987 and 1988. Although this pilot study identified some problems, the USDA decided to expand discretionary inspection nationwide.
At this point, both consumer and industry groups charged that the USDA was deliberately choosing to ignore problems with discretionary inspection. Congress held hearings to review such complaints. At the hearings, meat inspectors raised vehement objections. With a graphic description worthy of Lafcadio Hearn or Upton Sinclair, Delmer Jones, the president of the inspectors' union, explained why his group believed that daily visual inspections of meat plants must continue. The problem, he said, is
no control by industry of product that falls on the floor....Product becomes a sponge when it falls to the floor. Many of the products are ready to eat. The problem...is because of chemical residues, fecal contamination, abscesses; the employees spit on the floor, blow their nose on the floor; they go in the bathrooms and track it back out into the plant...and whatever they tracked into the plant, that is what you eat in cold cuts when you place that meat on a sandwich.
According to Mr. Jones, meat packers have a "stronger commitment to make money than to take care of sanitation and public health concerns." For this reason, he said, more visual inspection was needed, not less.
Thomas Devine, the legal BLOCKQUOTEector of a government group that protects the rights of meat inspectors who blow the whistle on safety violations, raised yet another issue: harassment. In this early warning of the increasingly violent opposition of the meat industry to USDA safety requirements, Mr. Devine told the Congressional committee:
The political climate is such that the special interest groups supporting the meat and poultry industry have won and now they have the ears of Washington....The height of this program is an industry honor system...but I would like to tell you why we can't live with it because of what it will do to the plant employees who want to be whistle-blowers. They will be fired on the spot.…In fact, the bad news is so severe that plant management at some companies verbally and physically harass even the Federal inspectors. They have reported physical beatings that required hospitalization, death threats, letting the air out of their tires, chasing one inspector into the USDA office, trying to kick in the door, yelling, cussing, and generally keeping him a prisoner for a half hour.
Soon after, the USDA withdrew its discretionary inspection plans for "further study," an action considered a sure sign that the idea had failed. A year later, yet another National Research Council report, this time of the streamlined inspection system, concluded that such a system could not possibly protect the food supply unless "the reduced oversight by government inspectors is…compensated by a total commitment to product quality on the part of industry." Such a commitment seemed unlikely.
E. coli O157:H7 Outbreak Induces Action
Jack in the Box, 1992-1993
If a single incident forced federal agencies to recognize the need for improvements in food safety regulation, it surely must be that of the disastrous December 1992 outbreak of E. coli O157:H7. Four young children in the Pacific Northwest died early in this outbreak. All were found to have eaten hamburgers at Jack in the Box restaurants. By February 1993, when the contaminated meat had been recalled and no new cases were emerging, Washington State alone had reported 400 cases and 100 hospitalizations, and another 100 cases had occurred in other states. Jack in the Box hamburgers were implicated in more than 90% of these cases.
Despite the compelling circumstantial evidence, the source of the outbreak was not immediately apparent. The meat came from a California meat packer who said that his company had complied with federal regulations "and like other plants, has Federal inspectors who work on the premises" (translation: it's the USDA's fault). Officials suspected that the meat had been contaminated in the slaughterhouse (it's the slaughterer's fault), but could not immediately confirm that suspicion.
Further investigation revealed that Jack in the Box restaurants had been following then-current FDA guidelines to cook hamburger to 140oF, a temperature too low to completely kill E. coli O157:H7. Six months prior to the outbreak, however, Washington State issued its own rules requiring hamburger to be cooked to 155oF, but Jack in the Box officials somehow missed that notification. The chain's president, Mr. Robert J. Nugent, was forced to admit that his 60 Washington State restaurants cooked meat below the 155oF standard. In testimony before a congressional committee, he explained that the company's procedures specified an internal temperature of 140oF but that the average cooking temperature in 1992 had been 154oF—a temperature just one degree below the state standard and high enough to kill most bacteria. Federal investigators, however, disputed that statement; they had found hamburgers cooked to just 120oF. Despite such findings, Mr. Nugent also appeared to shift responsibility elsewhere—to meat processors and USDA inspectors—when he testified.
Although our cooking procedures meet all Federal standards, we have increased cooking time and cooking temperature for our hamburgers and retrained our grill chefs....We also have offered to pay the medical expenses of those who may have become ill after eating at one of our restaurants. But it is important to note that the contaminated meat that was infected by the E. coli O157:H7 bacteria before delivery to our restaurants had passed all USDA inspections. Every one of our chefs had carefully followed all Federal food preparation standards."
The consequences of the Jack in the Box outbreak were immediate. The parent company, Foodmakers, which earned two-thirds of its $1.3 billion in annual revenue from the chain, lost 30% of its stock market value. Despite attempting to shift blame elsewhere, the company offered to pay medical expenses for the victims and immediately recruited a nationally known expert to revamp its procedures. Eventually, its revised system set a food safety standard for the industry.
Perhaps as a result of the hearings, President Bill Clinton authorized the hiring of 160 more meat inspectors, although 400 positions still were left vacant as a result of budget cuts and deregulation. The president had just appointed Mike Espy, a former Democratic congressman from Mississippi, to be the new USDA Secretary. Mr. Espy soon met with meat inspector whistle-blowers to hear their complaints. In March, in a departure from the policies of previous administrations, President Clinton proposed to overhaul the meat inspection system, promised that modern biological tools would be used to evaluate pathogens in meat, and called for expanded use of irradiation for meat products (an issue discussed in chapter 4). A New York Times editorial pointed out that the USDA had long been inclined to "put meat and dairy interests before public health," had "abdicated its duty to minimize the risk from contaminated products," and could have avoided the tragic deaths if the department had "stirred itself to contain the bacterial infection problem after a 1982 outbreak disclosed it." The Times considered the new administration's proposed policy changes a "refreshing break" in USDA's "traditional laxity in consumer protection." In a further response to the Jack in the Box outbreak, the FDA recommended an increase in the minimal cooking temperature for ground beef from 140oF to 155oF (later, the FDA raised the recommended temperature to 160oF to provide an extra margin of safety for home cooks). The outbreak also stimulated calls for research to better identify microbial pathogens and find out how they get into the food supply.
The Jack in the Box outbreak was by no means the first to involve E. coli O157:H7, but it was especially difficult for the public to accept. For one thing, children had died. For another, the source was hamburger—an American food icon. From then on, food companies and USDA officials would have a harder time convincing the public of the usual line of reasoning: nothing can be done about pathogens, they are ubiquitous, and the burden of food safety rests with home cooks. The responsibility of producers, processors, and retailers was now apparent, as was that of the government to make sure they met that responsibility. Table 9 [not shown] summarizes the USDA's subsequent and ongoing vision of how food safety responsibilities are to be shared. It demonstrates that in 1998 the department still could not require farmers or transporters to institute HACCP plans, nor could it demand performance standards—maximum levels of harmful microbes allowed as verified by testing—for reducing pathogens.
Any assumption that either the industry or the USDA would willingly accept such responsibility was overly optimistic. Marian Burros of the New York Times noted that USDA officials continued to deny two obvious facts: cases of food poisoning were increasing, and the meat industry had something to do with those cases. As she explained, "Blaming the victim takes the onus off the responsible government agency and the meat and poultry industry. There are many ways the industry could lessen the risks of food poisoning, but the Government does not require any of those steps."
Instead of taking such steps, industry groups employed damage control. They pointed out that E. coli O157:H7 infections were due to undercooking, not to the meat itself, and that consumers needed better education about food safety. They said the "recent outbreak sheds light on a nationwide problem: inconsistent information about proper cooking temperatures for hamburger." They explicitly revealed their public relations objectives: "Our goal, first and foremost, is to stay out of the media spotlight. The coverage, so far, has focused on cooking procedures at the fast food outlets, not beef industry issues. Let's try to keep it that way." Although actions beyond home cooking clearly were needed to ensure meat safety, industry leaders continued to deny responsibility. After the 1992 election, when safety advocates pressed the new political appointees at USDA for HACCP regulations to reduce meat pathogens, the industry encouraged its friends in that department to give lukewarm support to such efforts, if any.
Public Pressures Overcome Industry Resistance
Safe Handling Labels, 1993
Twenty years after APHA v. Butz, at the peak of the Jack in the Box outbreak, consumer activist Jeremy Rifkin and parents of the children who died during the outbreak formed an advocacy group called Beyond Beef. In one of its earliest actions, Beyond Beef sued the USDA to require cooking and handling instructions on meat and poultry packages. This time, the outcome favored consumers. Although the new administration at USDA was already considering such labels, the court ordered the department to "mandate labels regarding the handling and cooking of meat and poultry to minimize the chance that bacterial contamination will reach the consumer."
Soon after, Secretary Espy announced that the USDA would institute "emergency rulemaking" to require safe-handling labels on all raw meat and poultry packages and, as the court required, would publish the rules by August 15, 1993. A representative from the American Meat Institute told the New York Times that its member companies had received "every indication from U.S.D.A. that these will not be warning labels. They will be care labels." USDA officials said that package labels would explain that some meat might contain bacteria. Therefore, consumers should follow proper handling procedures and should "clean, separate, cook, and chill" (table 9—not shown). Meat producers found this proposal alarming. Despite their preference for consumer education above all other methods of pathogen control, they did not want package labels to suggest that anything might be inherently wrong with their products. The American Meat Institute complained that its members had not been given enough time to comment and that the proposal was unfair since only ground meat had been implicated in most food poisonings.
In response, the USDA agreed to limit its proposal just to ground meat and poultry. It permitted the industry to delay labeling of all other uncooked meat products (except ground meat) from October 15, 1993, until April 15, 1994. Three industry groups, one of them led by John Block, a former USDA secretary in the administration of President Ronald Reagan, thought this delay not nearly long enough. They sued the USDA in a Texas federal court to block safe handling labels on a technicality—the agency's "emergency rulemaking" had not permitted the amount of time mandated by Congress for the industry to respond to regulatory proposals.
On October 14, the day before the rule for ground meat was to take effect, the federal court in Austin, Texas (Judge James Nowlin, presiding), issued an injunction that blocked the labeling plan, saying that the Jack in the Box outbreak was insufficient to justify any "departure from the normal rule-making procedures." Industry groups hailed the injunction as "a victory of fairness over bureaucracy." That very week, however, three children in Texas died from eating ground meat contaminated with E. coli O157:H7, tragically demonstrating why such labels might be essential. Nevertheless, the appeals court refused to lift the injunction and scheduled a hearing for January 1994—three months after the labeling rule for ground meat was to take effect and a full year after the onset of the Jack in the Box outbreak.
Rather than wait three more months for a hearing of uncertain outcome, the USDA chose to revise its proposals and provide the mandated period for public comment. As one indicator of how much the new administration was changing USDA policies, a spokesman for the trade group led by former USDA secretary Block, the National American Wholesale Grocers Association, told the New York Times: "Quite frankly, we are wondering if Mr. Espy is taking all this too personally....Mr. Espy is making safe handling a bit of a crusade." Janet Riley, 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." In the end, industry protests caused critical delays but failed to prevent the USDA from requiring warning labels. Figure 6 [not shown] illustrates the label that caused all this trouble, as annotated by the Center for Science in the Public Interest (CSPI). This label is now in use on meat products in the United States.
The Poultry Industry versus Performance Standards
A USDA Secretary's Downfall, 1993-1994
Whether or not Mr. Espy's support for food-handling labels indeed constituted a personal crusade, the industry's actions to oppose his efforts illustrate some of the less savory aspects of food safety politics in action. As noted earlier, President Clinton had appointed Mr. Espy, then a fourth-term member of the House of Representatives (Dem-MS), as USDA Secretary in 1993. Mr. Espy's measures to overhaul the inspection system for meat and poultry appeared quite serious, and they worried the industry. Beef producers objected and, among other complaints, accused the USDA of favoring chicken producers by holding that industry to less stringent safety standards. Perhaps in response, the USDA moved to require freshly killed poultry to be treated with sterilizing solutions of trisodium phosphate and acids before chilling the meat. The USDA was also working on rules that would require poultry companies to test for microbial pathogens. As might be expected, the poultry industry opposed both suggestions.
Soon after Mr. Espy took office, his staff warned him that federal conflict-of-interest rules applied more strictly to agency officials than to members of Congress or Mississippi legislators, and that he must be especially careful not to accept gifts or favors from people working for companies that might be affected by USDA regulations. This warning derived from interpretations of provisions of the 1906 Meat Inspection Act, designed originally to prevent corruption of meat inspectors. The law made it a federal crime to do anything to exert undue influence on an inspector. A later law, the Bribery, Graft and Conflicts of Interest Act of 1962, set penalties for anyone who offered "anything of value" with the intention of influencing a public official. Although intention was the crucial issue, federal lawyers have interpreted this law to mean that officials of government agencies should refuse any gifts—no matter how seemingly inconsequential—from representatives of companies with matters under USDA regulatory review.
Despite the warnings, Mr. Espy accepted a variety of favors from lobbyists for Tyson Foods, then the world's largest chicken-processing company (and now the largest producer of beef as well). Early in 1994, federal investigators accused Mr. Espy of violating the Meat Inspection Act by accepting—or permitting a companion to accept—airline travel, tickets to sporting events, a small scholarship, and other gifts worth about $12,000 from Tyson Foods, plus similar gifts from other meat and poultry companies. The results of that investigation forced Mr. Espy to resign from his position as USDA secretary, and a later investigation by a special prosecutor led to his indictment by a federal grand jury. Eventually, Mr. Espy was acquitted of all charges, largely because the prosecutor could not convince a jury that the gifts were intended to influence the USDA. Although it is difficult to imagine what other purpose the gifts might have served, the Supreme Court also ruled that Mr. Espy was entitled to accept them because they were not directly linked to regulatory matters.
Federal prosecutors also accused Mr. Espy's chief of staff, Ronald Blackley, of interfering with USDA attempts to regulate poultry safety. A USDA staff member told a reporter that Mr. Blackley had been surprised to learn that the agency was working on poultry rules: "He said to take [them] out of the computer....We were a little shell shocked...wondering if we had all heard what we thought we'd heard. We put a stop to all poultry activity."
At the time, the scandal made the USDA's ongoing efforts to improve poultry safety much more difficult. Some critics charged that the department's proposed rules for poultry inspection were simply "an effort to prove that...Espy was not beholden to poultry interests." When the agency decided not to go forward with the plan, officials had to deny that they had made this decision just to please the poultry industry. The Espy scandal, neither the first nor the last of its kind, was unusual only in that the favors were so visible and the issues so important. This particular USDA secretary had the opportunity and the ability to convert his department's century-old inspection system to one better equipped to deal with microbial pathogens. Tyson Foods' donation of tickets to sporting events demonstrated that even small favors produce substantial benefits if given at the right time, in this case just when the USDA was trying to get poultry producers to test for Salmonella and other pathogens. If nothing else, it worked greatly to Tyson Foods' advantage to keep Mr. Espy preoccupied with responses to legal challenges from a special prosecutor. As if the political nature of this situation were not transparent enough, one of President Clinton's last acts in office was to grant presidential pardons to Mr. Blackley and six food company executives and lobbyists who had been convicted of attempting to corrupt Mr. Espy. Reportedly, the White House invited defense lawyers to request the pardons, and granted them just hours before George W. Bush took office as president in January 2001.
USDA Requires Pathogen Testing
E. coli O157:H7 in Ground Beef, 1994
By the early 1990s, USDA officials had argued for two decades that the decision in APHA v. Butz meant that the department did not have legal authority to set limits on microbial contaminants in meat and poultry because pathogens like Salmonella were "inherent" in raw meat. As late as 1993, the administrator of USDA's Food Safety and Inspection Service (FSIS), H. Russell Cross, explained to a congressional committee: "At the present time, meat and poultry inspection laws do not define raw meat and poultry containing bacteria as adulterated." As noted earlier, the USDA could have interpreted APHA v. Butz as giving the department considerable latitude to do whatever seemed necessary to protect the public, including setting performance standards—allowance limits verified by testing—for pathogens in meat. While Mr. Espy's legal difficulties were front-page news, he chose Michael Taylor to become administrator of FSIS. Mr. Taylor, a lawyer, moved to the USDA from the FDA; there, his previous employment with Monsanto raised conflict-of-interest questions about his role in setting policy for regulation of genetically modified foods (see chapter 7). His actions at the USDA raised no such questions. In late September 1994, six weeks after assuming leadership of FSIS, Mr. Taylor gave his first public speech in his new job to an annual convention of the American Meat Institute. He said that it was high time for everyone involved in meat production and processing "to be driven as much by public health goals as by productivity concerns." FSIS intended to take advantage of "the tools of microbiology to ensure that preventive controls are in place to reduce the risk of harmful contamination and to verify that those controls are working." He announced that FSIS would soon propose regulations requiring installation of science-based HACCP systems in every meat and poultry plant. "Raw ground beef contaminated with E. coli O157:H7," he said, "poses a serious risk to public health, and contaminated lots should be excluded from commerce." The USDA intended to require the destruction or reprocessing of contaminated meat and "we expect companies who encounter contaminated lots of raw ground beef...to take similar action.
If that challenge was not enough to bring his audience to rapt attention, he explained that FSIS would be taking these actions on the basis of the department's revised interpretation of APHA v. Butz:
To clarify an important legal point, we consider raw ground beef that is contaminated with E. coli O157:H7 to be adulterated within the meaning of the Federal Meat Inspection Act. We are prepared to use the Act's enforcement tools, as necessary, to exclude adulterated product from commerce. Finally, we plan to conduct targeted sampling and testing of raw ground beef at plants and in the marketplace for possible contamination with E. coli O157:H7. This sampling program...will serve as an example and an incentive for those commercial enterprises that produce, process, and market raw ground beef to control their processes and conduct their own tests.
Furthermore, because E. coli O157:H7 is infectious at very low doses, FSIS would consider any level of contamination of ground beef with these bacteria to be unsafe, adulterated, and subject to enforcement action. The agency, however, would restrict this "sample, test, and destroy" approach to just this one pathogen, E. coli O157:H7, and to just this one product: ground beef.
Food safety advocates admire Mr. Taylor for his courage in delivering this speech to an audience expected to be unsympathetic if not downright hostile. They also appreciate his skill in shifting USDA food safety policies to those more favorable to public health, especially at a time when the department's leadership was in such deep trouble. Indeed, he needed courage. His speech caused consternation in the cattle, meatpacking, and grocery industries. Meat producers and processors understood that if the USDA considered E. coli O157:H7 an "adulterant," they would break the law if they sold foods containing this pathogen; they would be vulnerable to criminal prosecution. As a representative of the American Meat Institute told the press, "the new USDA policy has the perhaps unintended consequence of creating rampant, irresponsible, criminal litigation." Industry lawyers instructed their clients not to do their own testing of ground beef for E. coli O157:H7 because finding it would expose them to legal liability. Rosemary Mucklow, then the executive director of the Western States Meat Association, said, "How can FSIS treat E. coli in hamburger meat as an adulterant subject to enforcement strategies, while not applying the same standard to salmonella in broilers....Automated chicken lines allow birds to leave the plant as Inspected for Wholesomeness with...grossly unacceptable defects...Such gross policy interpretation favoring the poultry industry and disfavoring the beef industry is a travesty indeed." We will encounter further commentary from Ms. Mucklow later in these pages.
In the meantime, the American Meat Institute—which had opposed the safe-food-handling labels—now used them to complain that the proposed testing program would cause food safety problems. Microbial testing would "mislead consumers with promises of a safer food supply, and as a result they may relax their own cooking and handling standards." The Food Marketing Institute also shifted responsibility to consumers in its argument against the initiative: "It is essential that nothing dilute the consumer message that the proper cooking of meat eliminates food-borne pathogens." The two trade associations and five others quickly filed suit to block the pathogen testing plan, based on this wonderfully convoluted argument: because the USDA had done nothing to control E. coli O157:H7 since the first outbreak in 1982, the present situation could hardly be considered an emergency. This transparently self-serving argument prompted the New York Times to note the industry's "odd way" of promoting public health: "Trying to give their obstructionist lawsuit a respectable veneer, the plaintiffs voice concern that the spot-inspection program could mislead consumers into relaxing their own safe handling and cooking practices....It is not consumers the lawsuit seeks to protect but the industry's right to sell tainted beef."
Among the many ironic aspects of this dispute, the trade associations' lawsuit turned out to be heard by the very same Texas district court judge, James Nowlin, who had ruled against USDA's proposals to require food-handling labels on procedural grounds just a year earlier. This time, the court surprised observers by ruling in favor of the USDA. Its rationale: because ordinary cooking temperatures could not kill E. coli O157:H7, the USDA had good reason to consider these bacteria as adulterants and test for them. This decision at last permitted the USDA to redesign its ancient food inspection system and start testing for this one harmful pathogen. Industry groups, however, saw the decision as mandating a program that "fails to protect consumers, wastes tax dollars and violates the law," and they vowed to "maintain our course of legal action to stop it."
The trade associations' lawsuit had one additional—and unanticipated—consequence. It mobilized the families of children killed by E. coli O157:H7 to form their own group—Safe Tables Our Priority (STOP)—to lobby for more rigorous meat regulations. The group picketed a meeting of the American Meat Institute and held a press conference to accuse meat producers of obstructing safety efforts: "My 6-year-old son Alex deserves to be alive today....I hold the meat institute personally responsible" and "It's time to stop blaming consumers for not cooking and give them a clean product." Another consumer group, the Safe Food Coalition, proposed a "simple household solution" to the problem of the industry's intransigent refusal to test for E. coli O157:H7 and its persistent avoidance of accountability: obtain proof of responsibility. "Tired of being a victim?...Weary of subjecting your family to a game of Russian Roulette every time you buy a package of hamburger meat?...[When] unpacking groceries, tuck the supermarket receipt and a small lump of hamburger in a ziplock bag. Toss this in the freezer....In five seconds, at virtually no cost, you've got accountability....This simple act gives control back to you and tells industry loud and clearly that we're not going to take it any more."
In this instance, the political context permitted the USDA to hold its position and test one product (ground meat) for one pathogen (E. coli O157:H7). When the department attempted to extend testing requirements to other forms of meat and other pathogens, it again met with fierce resistance, as chapter 3 will reveal.
USDA Poised to Propose HACCP, 1994
By the early 1990s, the long history of collusion between meat producers, Congress, and the USDA seemed to have entered a new phase in which public interests held greater influence. Meat producers' protection of the century-old inspection system no longer seemed credible. Although the industry contended that testing for microbes is unnecessary because so few samples are contaminated, this argument ignored a key point: even a small level of contamination can do great harm when the number of animals is large. For example, if just 0.2% of cattle are contaminated with E. coli O157:H7, 74,000 beef carcasses might be infected and, therefore, hundreds of thousands of pounds of hamburger. For this reason alone, the pathogen reduction component of HACCP (which necessarily includes performance standards and testing for microbes) seems thoroughly warranted..
USDA's historical reluctance to change its inspection and pathogen control systems derives directly from the agency's conflicting mandates: to ensure the safety and quality of foods under its jurisdiction and, at the same time, to promote their marketing and consumption. The long-term collusion between the department and the meat industry impedes progress. Over the years, the breakdown of the agricultural establishment, the emergence of new food pathogens like E. coli O157:H7, and the appointment of USDA officials interested in the health effects (as well as the economic effects) of agricultural products, paved the way for more vigorous efforts to institute HACCP with performance standards for controlling pathogens.
In the 20 years between 1974 and 1994, resistance to HACCP with pathogen reduction came from many sources: federal agencies unwilling to confront powerful constituents, industry groups willing to accept HACCP only without government oversight (especially of pathogen levels), consumer groups suspicious of the industry's commitment to safety standards and the government's ability to enforce them, and inspectors unwilling to change the nature of their work. By 1994, advocates feared that more lives of children would need to be sacrificed before Congress, the USDA, and the industry would take action to keep dangerous bacteria out of meat. Even the threat of financial liability did not seem severe enough to induce industry action. The institution of HACCP rules appeared inevitable to all but the most determined segments of the meat industry, but whether the rules would include requirements for pathogen performance standards and testing remained open for debate. Chapter 3 explains how that debate developed.
[NOTE: ENDNOTES HAVE NOT BEEN INCLUDED WITH THIS ONLINE SAMPLE CHAPTER]