Safe Food_ Bacteria, Biotechnology, and Bioterrorism - Marion Nestle [53]
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.37
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.38
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.”39 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 Whole-someness with . . . grossly unacceptable defects. . . . Such gross policy interpretation favoring the poultry industry and disfavoring the beef industry is a travesty indeed.”40 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.”4 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.”41 The two trade associations and five others quickly filed suit