Safe Food_ Bacteria, Biotechnology, and Bioterrorism - Marion Nestle [44]
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.”5 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