Foodborne pathogens have been a major news topic in recent weeks. Notably, on October 19, 2021 the Food Safety Inspection Service (FSIS), an agency housed in the United States Department of Agriculture (USDA), announced it is taking steps to reduce illness caused by the Salmonella microbe by 25%. USDA’s press release announcing these new efforts explains that “[d]espite consistent reductions in the occurrence of Salmonella in poultry products, more than 1 million consumer illnesses due to Salmonella occur annually, and it is estimated that over 23% of those illnesses are due to consumption of chicken and turkey.” Thus, FSIS is seeking input on ways to reduce rates of illness from Salmonella which has remained at a consistent level despite declining amounts of the bacteria on raw poultry products.
Although Salmonella can be found on many foods including fruits and vegetables, not all foods are regulated by the same agency. The reason FSIS announced it is taking steps to combat Salmonella particularly in poultry, and not onions or other types of produce, is because FSIS only has jurisdiction over meat, poultry, and some egg products. Therefore, FSIS’s food safety jurisdiction accounts for about 22% of the food supply. The Food and Drug Administration (FDA) has food safety jurisdiction over the other 78% of the food supply.
Although Salmonella is not the only foodborne pathogen that causes health concerns, FSIS treats other pathogens, such as Listeria Monocytogenes and E. coli in beef, as “adulterants”. FSIS has yet to identify Salmonella as an adulterant. This blog post explains what the term adulterant means as it is applied to meat, poultry, and some egg products. This blog post also outlines why Salmonella is treated differently than E. coli in beef. A later blog post will explore how the FDA defines the term adulterated and the way FDA deals with pathogen outbreaks in the rest of the food supply.
What Is the Definition of “Adulterated”?
For FSIS to take any regulatory action Congress must first delegate authority to the agency. Congress delegated FSIS the authority to inspect meat, poultry, and egg products through three main acts: the Federal Meat Inspection Act (FMIA), the Poultry Products Inspection Act (PPIA), and the Egg Products Inspection Act (EPIA). The main purpose of each of these acts is to ensure that the food supply will not cause illness or injury. For example, the first section of the PPIA, which is the Congressional statement of findings, states “it is essential in the public interest that the health and welfare of consumers be protected by assuring that poultry products distributed to them are wholesome, not adulterated, and properly marked, labeled, and packaged.” Very similar language is found in the FMIA and EPIA. Each act directs the Secretary of Agriculture to create regulations and procedures designed to detect and remove harmful meat, poultry, and egg products from the food supply.
However, there has been some debate about what exactly causes a product to become “adulterated” despite each of the three acts having almost identical definitions for the term. In each act there are eight main ways a product can become adulterated. Meat or poultry is considered adulterated if:
- It contains a poisonous or deleterious substance that when consumed ordinarily causes injury.
- It contains an unapproved pesticide, food additive, or color additive that makes the meat or poultry unfit for food.
- It is putrid or otherwise unfit for food.
- It is prepared in an insanitary facility.
- The animal dies of a disease or before arriving at a slaughter facility.
- The container or packaging of the meat or poultry is unsafe or injurious.
- The meat or poultry has been exposed to radiation.
- It is branded in a way that describes the product as being worth more than it really is.
This definition is found in the PPIA at 21 U.S.C. § 453(g), in the FMIA at 21 U.S.C. § 601(m), and in the EPIA at 21 U.S.C. § 1033(a).
Applying the Definition to Foodborne Pathogens
Originally under the FMIA, PPIA, and EPIA, courts and FSIS only considered macro-contaminants such as glass and dirt to be adulterants. Thus, foodborne pathogens such as Listeria, E. coli, and Salmonella were not considered adulterants. This was first challenged in the case, American Public Health Association v. Butz, 511 F.2d 331 (D.D.C. 1974). In this case the plaintiffs, a public health advocacy group, filed suit to stop FSIS from including the language “U.S. Passed and Inspected” or “U.S. Inspected for Wholesomeness” on meat and poultry products that contained Salmonella. Since FSIS placed this seal of inspection on products that passed inspection despite the products containing Salmonella, the plaintiffs wanted the agency to also include a warning label so consumers would understand that the seal of inspection did not mean the products are Salmonella free. The plaintiffs argued that including the seal of inspection without a warning label on meat and poultry containing Salmonella was false and misleading. As explained in the case, FSIS included the seal of inspection on products containing Salmonella because it philosophized foodborne pathogens “can be handled most effectively at the consumer level where all contributing factors converge—where the final preparation of food takes place.” Ultimately, the court agreed with FSIS and held that the seal of inspection without a warning label was not false and misleading because Salmonella is inherent in meat and poultry. As an inherent component of meat and poultry, the court determined Salmonella was not an adulterant under the statutory definition.
However, in 1987, FSIS identified Listeria Monocytogenes as an adulterant in cooked and ready to eat meat without challenge. Then in 1994, in response to an E. coli outbreak linked to ground beef sold at Jack in the Box restaurants, FSIS established an E. coli sampling program which treated E. coli as an adulterant. Shortly thereafter, in the case Texas Food Industry Association v. Espy, 870 F.Supp. 143 (W.D. Tex. 1994), supermarkets and meat industry organizations challenged FSIS’s authority to establish the sampling program. The plaintiffs argued FSIS did not have the authority to treat E. coli as an adulterant under the FMIA because E. coli contaminated ground beef “is only injurious to health if improperly cooked”. The court disagreed and found that “in light of common cooking practices of most Americans, there is at least a rational basis for treating E. coli differently than other pathogens” and that “many Americans consider ground beef to be properly cooked rare, medium rare, or medium”. However, E. coli in ground beef is usually only killed off when cooked medium-well to well done. Ultimately, the court held that because E. coli “is a substance that renders ‘injurious to health’ what many Americans believe to be properly cooked ground beef” E. coli in ground beef “fits the definition of an adulterant under the FMIA.”
In 1996, after the Espy case, FSIS published a final rule that required all meat and poultry facilities to adopt Pathogen Reduction, Hazard Analysis and Critical Control Point (HACCP) systems. This regulation, which still exists, requires meat and poultry facilities to put a plan in place to reduce harmful bacteria like E. coli and Salmonella on raw meat and poultry. To enforce HACCP, the regulation calls for FSIS to conduct performance standards and test for levels of E. coli and Salmonella on the finished products.Click here to see more...