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By Root 1255 0

young White House intern, Monica Lewinsky, might seem a stretch for any group less relentless and self-serving than the beef industry. USDA Secretary Dan Glickman said he was “deeply and personally offended by this statement. USDA’s efforts to improve food safety are grounded in science and a steadfast commitment to protecting public health.”45 The industry, however, continued to oppose the USDA’s plans to test for E. coli O157:H7. Indeed, some thought that extending the testing requirements might backfire because companies would have an even stronger disincentive to do their own testing: “Given the serious financial ramifications of a positive test—the product would have to be recalled and then cooked or destroyed—it could be in the industry’s best interest not to know.”38

Over the next year or so, the USDA opened the nonintact beef policy for public comment, held a public meeting, issued a position paper on E. coli O157:H7 testing, and dealt with opposing opinions in Federal Register notices. The meat industry’s position on pathogen testing remained fixed: microbes are inherent in raw meat, testing would put companies out of business, and testing is ineffective. Instead, meat officials argued, the USDA should gather more data on risk before taking action, and consumers and farmers should take more responsibility for food safety. Furthermore, they said, the policy discriminates against beef because pork and poultry are similarly contaminated.46 Overall, the reactions to this proposal demonstrated that the beef industry was determined to oppose any expansion of pathogen testing, no matter how limited or beneficial to the public.

THE LEGAL GAP:

LAWSUITS AGAINST PATHOGEN REDUCTION: HACCP

As the consequences of Pathogen Reduction: HACCP for recall or destruction of contaminated products became increasingly evident, the beef industry went to court to force the USDA to adhere to the intent of the 1906 Meat Inspection Act: protect the public against sick animals, not bacteria. Two cases in the late 1990s illustrate the degree to which the industry would invoke that law, leaving to consumers the responsibility for avoiding bacterial contaminants.

Supreme Beef v. USDA

The lawsuit brought by Supreme Beef Processors in Dallas illustrates how the industry used the courts to block the USDA’s imposition of Salmonella testing. When HACCP regulations for small meat-processing firms went into effect in 1999, companies had to meet this performance standard: testing must find no more than 7.5% of sample products to contain (give “positive” results for) Salmonella. During that first year, 20% or so of Supreme Beef’s ground beef tested positive on two occasions. When a third round of testing also showed that the company’s meat exceeded the 7.5% standard, the USDA withdrew its inspectors and forced the plant to close. The USDA must have been especially concerned because this company supplied nearly half the ground beef distributed to schools participating in the national school lunch program. Supreme Beef immediately sued the USDA. The department, it charged, had acted in an “arbitrary and capricious” manner because it did not have legal authority to regulate Salmonella. The suit also charged that because cooking kills Salmonella, these bacteria do not threaten public safety and cannot be considered adulterants.

Four meat trade associations supported the suit for the usual finger-pointing reasons. Rosemary Mucklow of the National Meat Association told reporters: “Supreme Beef . . . is experiencing the consequences of a requirement that we think has some serious problems. It would have been better if U.S.D.A. had tried to work it out” and “Poor sanitation at ground-beef plants is seldom to blame for salmonella contamination. . . . It would be more effective to enforce performance standards at packing plants or feedlots and farms.”47 The USDA, as Ms. Mucklow surely must have known, has no enforcement authority over feedlots and farms.

At this point, a U.S. District Court judge in Dallas, A. Joe Fish, ruled that the USDA did not have the