Guest Blog: Salmonella’s Not an Adulterant?

The following Guest Blog first appeared on Food Safety News (February 2, 2013), and is reproduced here with the kind permission of its author, Bill Marler.

Salmonella’s Not an Adulterant?

– by William D. Marler

Personally, as I said to the Los Angeles Times several months ago, “I think that anything that can poison or kill a person should be listed as an adulterant [in food].”

Ignoring Salmonella in meat makes little, if any, sense. Even after the Court’s twisted opinion in Supreme Beef v. USDA, where it found Salmonella “not an adulterant per se, meaning its presence does not require the USDA to refuse to stamp such meat ‘inspected and passed,” our government’s failure to confront the reality of Salmonella, especially antibiotic-resistant Salmonella, is inexcusable. The Wisconsin Supreme Court in Kriefall v Excel called it as it saw it:

The E. coli strain that killed Brianna and made the others sick is a “deleterious substance which may render [meat] injurious to health.” There is no dispute about this. Thus, under the first part of 21 U.S.C. § 601(m)(1), meat that either “bears or contains” E. coli O157:H7 (the “deleterious substance”) is “adulterated.” That E. coli O157:H7 contamination can be rendered non-“injurious to health” by cooking thoroughly, as discussed below, does not negate this; Congress used the phrase “may render,” not “in every circumstance renders.” Moreover, if the E. coli bacteria is not considered to be “an added substance,” because it comes from some of the animals themselves and is not either applied or supplied during the slaughtering process (although we do not decide this), it cannot be said that the E. coli strain “does not ordinarily render [the meat on or in which it appears] injurious to health.” Accordingly, meat contaminated by E. coli O157:H7 is also “adulterated” under the second part of § 601(m)(1).

Now, why would Salmonella be different?

According to the CDC, it is estimated that 1.4 million cases of salmonellosis occur each year in the U.S. Of those cases, 95 percent are related to foodborne causes. Approximately 220 of each 1000 cases result in hospitalization, and 8 of every 1000 cases result in death. About 500 to 1,000 deaths – 31 percent of all food-related deaths – are caused by Salmonella infections each year.

So, where do we stand with the existing USDA/FSIS law on adulteration? Here is the law:


(m) The term “adulterated” shall apply to any carcass, part thereof, meat or meat food product under one or more of the following circumstances:

(1) if it bears or contains any poisonous or deleterious substance which may render it injurious to health; but in case the substance is not an added substance, such article shall not be considered adulterated under this clause if the quantity of such substance in or on such article does not ordinarily render it injurious to health; …

(3) if it consists in whole or in part of any filthy, putrid, or decomposed substance or is for any other reason unsound, unhealthful, unwholesome, or otherwise unfit for human food;

(4) if it has been prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health; …

Hmmm. It is hard to read the above and not think that the words in bold equate to all E. coli and Salmonella (frankly, all pathogens in food). I know, I am just a lawyer, but don’t ya think that when food with animal feces (and a dash of E. coli O157:H7) in it is considered an adulterant, that other animal feces (with dashes of other pathogens, like Salmonella) in them, should be considered adulterated too? But, hey, that is just me.

Another odd governmental fact is that the FDA does not seem to make a distinction between pathogens it considers adulterants or not. FDA’s enabling legislation – Sec. 402. [21 USC §342] of the Food, Drug & Cosmetic Act also defines “Adulterated Food” as food that is:

(a) Poisonous, insanitary, or deleterious ingredients.

(1) If it bears or contains any poisonous or deleterious substance which may render it injurious to health; but in case the substance is not an added substance such food shall not be considered adulterated under this clause if the quantity of such substance in such food does not ordinarily render it injurious to health;

(2) If it bears or contains any added poisonous or added deleterious substance … that is unsafe within the meaning of section 406;

(3) if it consists in whole or in part of any filthy, putrid, or decomposed substance, or if it is otherwise unfit for food;

(4) if it has been prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health …

It would be interesting, and perhaps entertaining, to have House and Senate hearings focusing on what should and should not be considered adulterants in our food. I can see panels of scientists from various fields, FDA, USDA and FSIS officials, beef and produce industry representatives and consumers discussing this. I would pay to watch it.

About the author: Bill Marler is a personal injury and products liability attorney, and an internationally known food safety advocate. He began litigating foodborne illness cases in 1993, when he represented Brianne Kiner, the most seriously injured survivor of the Jack in the Box E. coli O157:H7 outbreak. Bill is a graduate of the Seattle University School of Law, and the Law School’s “Lawyer in Residence.”

More Arguments For ‘Hold and Test’

On December 10th, I praised the introduction of the new ‘Hold and Test’ policy announced that day by USDA’s Food Safety and Inspection Service (FSIS) while, at the same time, lamenting its limitations. And I asked eFoodAlert readers to respond to a survey on what FSIS should do to improve food safety.

Here are the results of that survey:

  • Mandate ‘hold and test’ for all meat and poultry processors: 35%
  • Add Salmonella to the list of beef adulterants: 21%
  • Increase USDA’s sampling frequency at meat and poultry establishments: 19%
  • Test every shipment of meat or poultry imported into the USA: 22%

Three readers submitted their own suggestions, which were:

  • Publish in stores for customers to view
  • Fruits and veggies need HOLD too
  • Ensure meat and poultry used for pet food is completely safe as well.

I thank everyone who took the time to respond to the poll, especially, those who submitted their own suggestions. I have long thought that giving maximum publicity to recalls – including posting recall information in stores – would both improve the effectiveness of recalls and encourage food manufacturers to undertake preventative measures in order to avoid the adverse publicity that such recall notices would mean.

I also endorse completely the extension of ‘hold and test’ to all foods, including perishable produce. As I’ve stated in the past, current lab methods provide fast answers. And the tests continue to improve as kit manufacturers compete to develop and market the fastest possible lab tests. Finally, as the human companion of a ten-year-old Australian Labradoodle, I am always mindful of the importance of ensuring the safety of ingredients used in the manufacture of pet food.

Since my December 10th post, there have been at least two more recalls that illustrate the value of ‘hold and test’ as a fundamental food safety policy.

  • On December 14, 2012, Ocean Beauty Seafoods LLC recalled two brands of Nova Cold Smoked Salmon after “…internal testing by the company revealed the presence of Listeria monocytogenes in samples…” of the recalled products. The Nova Salmon was imported into the USA from Chile.
  • On December 28, 2012, the French cheesemaker Fromagerie de Jussac recalled nearly two months worth of cheese production after Listeria monocytogenes was found in “certain lots” of nearly twenty varieties of its cheeses. The cheeses were sold in France and were exported to a number of countries, including: Andorra, Austria, Belgium, Germany, Italy, Lebanon, Spain, United Arab Emirates, United Kingdom and Vietnam.

Although no illnesses were reported in connection with either of these recalls, there is no question whatsoever that releasing food into the retail market before test results are available places consumers at risk unnecessarily. If the food industry and its regulators make just one resolution for the New Year, it should be to ‘Hold and Test’ all batches of finished product.

USDA’s ‘Hold and Test’ Policy: Limitations and Loopholes

This morning, USDA’s Food Safety and Inspection Service (FSIS) released the details of its new ‘hold and test’ policy for meat and poultry products. While the policy marks a step forward for food safety, the details reveal several limitations and loopholes that will limit its effectiveness at reducing the number and magnitude of recalls.

1. The policy will apply to “non-intact raw beef product or intact raw beef product intended for non-intact use” that is tested by FSIS for E. coli O157:H7 and six other shigatoxin-producing E. coli (STECs) that FSIS has designated as adulterants in these products. It does not apply to “…raw meat or poultry products tested for Salmonella or other pathogens that FSIS has not determined to be adulterants in those products.”

2. The policy will apply to any ready-to-eat products tested by FSIS for pathogens, and to ready-to-eat products that passed over food-contact surfaces that have been tested by FSIS for the presence of a pathogen.

3. The policy will apply to livestock carcasses tested by FSIS for the presence of veterinary drugs. It will not apply to poultry carcasses tested for those drugs.

For those who may have missed it, THIS POLICY ONLY APPLIES TO TESTS CARRIED OUT BY FSIS. FSIS tests only a small fraction of the meat and poultry products that are released into commerce every day. Most production line and finished product testing is carried out by food establishments; some using their own in-house labs, and others by sending samples to free-standing independent testing labs. FSIS encourages, but does not mandate, ‘hold and test’ under these circumstances.

In spite of these limitations, FSIS calculates that its new policy will yield an economic benefit of between $12.8 million and $37.8 million annually, comprising:

  • Reduced cost of recalls: $12 million to $37 million
  • Actual averted illnesses: $650,000
  • Estimated averted illnesses from E. coli O157:H7, Listeria monocytogenes and Salmonella: $106,724

This benefit will more than offset the estimated costs to industry of $923,000 to $1.4 million annually, according to FSIS calculations.

It is said that every journey begins with a single step. FSIS, to its credit, has made some strides in the right direction over the last few years – releasing retail distribution lists for recalled products, expanding the list of pathogens that it considers to be adulterants, and now mandating a limited ‘hold and test’ initiative.

What do you think should be FSIS’s next step? Please take this eFoodAlert survey.