For decades, the meat industry has insisted that pathogens like E. coli O157:H7 are inherent to raw meat, that there is no way for the manufacturing process to eliminate the possible presence of pathogens, and that, as a result, consumers bear ultimate responsibility for making meat safe to eat by cooking it sufficiently to kill all pathogens that may be present.  From this position, the meat industry has spun the tautological assertion that a consumer who is injured by eating, for example, a hamburger that is contaminated with E. coli O157:H7 was not injured as a result of contamination, but, instead, as a result of undercooking. In other words, any hamburger that is not cooked in a manner such that the meat is essentially pasteurized is, by definition, not only undercooked, but negligently so.  And so, voila, it is the consumer who must be at fault for being injured, not the ground beef manufacturer, because, in the words of J. Patrick Boyle, President and CEO of the American Meat Institute (AMI), “We are selling a raw product,…and raw products by their nature may contain harmful bacteria. That’s why we are committed to providing consumers the information that they need to handle and cook ground beef safely.”[1]

Recently, however, a seemingly heretical voice has suggested that perhaps some meat products–pre-made frozen hamburger patties, to be exact–pose a risk to consumers of such a greater kind and degree that the meat industry must take extra steps to make this commonly-purchased product much safer than it currently is.  The source of this heresy was James Marsden, PhD, writing in the blog, a forum that more often than not adheres to the meat industry “party-line” (like the over-the-top Yvonne Vizzier Thaxton who on a regular basis causes me to cough-spit coffee onto my computer screen by offering opinions so ludicrously pro-industry (and illogical) that that not even the AMI at its most strident can compare[2]).

In his excellent opinion piece, titled “Retail Frozen Ground Beef Patties and Risks of E. coli O157:H7,” Dr. Marsden asserts that: “It’s time to recognize that retail frozen ground beef patties pose an increased risk to consumers and take steps to reduce that risk.”[3] Supporting this assertion, Dr. Marsden points out that frozen patties have “been implicated in an inordinate number of infection-cases, outbreaks, and recalls,” the vast majority of which have not involved a fast food restaurant. The significant drop in the number of restaurant-related hamburger E. coli outbreak happened because, after the 1993 Jack in the Box outbreak, chain fast food restaurants took “steps to assure the safety of frozen beef patties, including raw material and finished product testing, the implementation of validated cooking processes that fully inactivate E. coli O157:H7 and process control measures that guarantee proper cooking every time.” In contrast,  the reason that there are still so many outbreaks linked to hamburgers is because consumers are ill-equipped to cook frozen ground beef patties in a way that makes them consistently safe to eat.  And this is because, according to Dr. Marsden, “frozen patties are inherently difficult to cook uniformly and sufficiently to control pathogens.”  

Such heresy!  I think I can almost hear J. Patrick Boyle screaming for Dr. Marsden’s excommunication from all dealings with the meat industry.  How dare someone suggest that cooking by the average consumer is not the safety-panacea that the meat industry has long insisted it is.  How dare someone suggest that a consumer who is being reasonably careful in the cooking of a frozen ground beef patty on his or her backyard grill might not, by definition, be negligent simply because a few E. coli O157:H7 happen to survive the cooking process, which is something that can and does happen with even the most cautious of cooks.  Indeed, Dr. Marsden doubles-down on his heresy by going on to make the same point that I have been making for years, in representing injured consumers, and in my writings and speeches:

it is not realistic to expect that all consumers will apply perfect cooking methods when preparing frozen ground beef patties. The risk of E. coli contamination in these products has to be reduced upstream. (emphasis added)

And that is really what it comes down to, in my view.  Although the meat industry expects all consumers to be perfect in the cooking of every single hamburger, every single time, it wants to be excused from all responsibility for its contamination of meat with deadly pathogens.   
As I have said on numerous occasions before, the reality of meat production in the United States is that it is done as quickly and as cheaply as possible.  All possible care is not used in the slaughter and processing of meat, and that is why it gets contaminated with pathogens.  Arguing consumer responsibility, while suggesting that eliminating E. coli O157:H7 from ground beef by cooking is as easy as snapping your fingers, has long been the meat industry’s attempt to divert attention from its own culpability. Like the “Wizard of Oz” insisting that we “pay no attention to the man behind the curtain,” the meat industry wants the consuming public to pay no attention to the reality of how meat–and especially ground beef–is manufactured in this country.  I mean, how many consumers knew a year ago that frozen ground beef patties, like the one that nearly killed Stephanie Smith, among others, contained ammonia-treated “fatty trimmings the industry once relegated to pet food and cooking oil” as a primary ingredient.[4]

Of course, consumers have been more than a little complicit in the success of the meat industry’s diversionary tactics with their tendency to demand safer meat, but still purchase the cheapest hamburger patties available. This consumer behavior rewards the companies that cut costs the most, which is to say, cut corners the most.  Ammonia-treated fatty trimmings are not used because ammonia-treated meat is a superior ingredient; they are used because it is a cheaper ingredient.  As such, it is not that raw ground beef is inevitably contaminated with pathogens; it is that cheap ground beef is inevitably contaminated with pathogens.  And packages of mass-produced frozen ground beef patties, like those sold under the American Chef’s Selection brand at Walmart, are about as cheap a ground beef product as you can find on the market today.    

That is why Dr. Marsden’s point–and the fact that he announced it on a meat-industry sponsored website–is so important.  Although it is difficult and costly to prevent contamination in a meat processing plant, it is just as difficult to perfectly cook a frozen ground beef patty every single time it is done.  Moreover, the cost of the consumer not being perfect is very often the serious injury or death of a loved one.

And so, ask yourself: Which cost is too high to pay?  Is paying 25 cents more per pound for a box of frozen hamburger patties too expensive when compared to the cost of losing a son or daughter, or a mother or father, to a horrifyingly painful E. coli O157:H7 infection?   Consider also, that when the USDA implemented the HACCP/Pathogen Reduction Rule in 1996, a subsequent economic analysis estimated that compliance with the regulations raised a plant’s costs of production less than one cent per pound.[5] Keep in mind too that a primary rationale of the HACCP/Pathogen Reduction Rule is that E. coli O157:H7 be reduced to an “undetectable level.” This so-called zero-tolerance policy is based on the irrefutable fact that if the “presence [of E. coli O157:H7] can be prevented, no amount of temperature abuse, mishandling, or undercooking can lead to foodborne illness.” See HACCP Final Rule, 62 Fed. Reg. at 38,962.  In other words, when a pathoge
n is not present in ground b
eef, a consumer need not be perfect–or even terribly careful–in its preparation and cooking. 

For these and other reasons, the USDA-FSIS has more than once rejected the meat industry’s suggestion that consumers should be primarily responsible for making ground beef safe to eat through cooking.  And, interestingly, the Agency’s rejection of the meat industry’s “blame-the-consumer” approach was done using language remarkably similar to that used by Dr. Marsden in his opinion piece. Over ten years ago, on February 11, 2000, FSIS stated:

Several industry commentators stated that consumers should assume more responsibility for their safety and expressed the need for consumer awareness programs regarding the importance of cooking beef products thoroughly.

Industry can reduce or eliminate risk associated with [E. coli] O157:H7 through various controls and interventions . . . that can be incorporated into HACCP systems.  Because industry has the means to reduce or eliminate the hazard, consumers should not be expected to assume all the responsibility for preventing foodborne illness associated with [E. coli] O157:H7.[6]

Noting that the USDA in the above quoted statement asserted that consumers should not be expected to assume all the responsibility for preventing foodborne illness, let me then concede that I believe that consumers do bear some responsibility for preventing foodborne illness.  There are plainly situations in which egregious food-handling errors might provide the basis for arguing, as both a legal and practical matter, that the manufacturer or the contaminated meat is not solely to blame for the resulting illness. This assumes, however, that the consumer has the information and skills necessary for them to act in a reasonably safe manner.  As such, Dr. Marsden makes a similar point in favor of consumer education when he states that: “If all consumers were educated about the risks associated with frozen beef patties, and took the same steps that have been successful in restaurant preparation, the problem would be solved.”

The problem here is that, despite the suggestions of the USDA and the meat industry to the contrary, consumers mostly lack the skills and information necessary for the reasonably safe preparation of ground beef, let alone the perfectly safe preparation of frozen ground beef patties. One reason for this is the meat industry’s decade-long effort to keep effective warning labels off of meat products.  In 1971, the American Public Health Association (APHA) sued the USDA in an attempt to force the USDA to place a warning label with cooking instructions on all packages of raw meat and poultry. Among other things, the APHA argued that the USDA “stamp-of-approval” misled the public into thinking that the meat was free of pathogens, like Salmonella, when, in fact, it was not.[7] In this case, the USDA sided with the meat industry in opposing the warning labels.  The USDA’s position changed, however, in the wake of the 1993 Jack in the Box E. coli outbreak, and the Agency announced its intention to require warnings and cooking instructions on all meat and poultry products.  And, not surprisingly, the meat industry sued to stop this new policy, winning a delay on largely technical grounds.[8]

Explaining its opposition to the warning labels and cooking instructions, a spokeswoman for the American Meat Institute said: “Warning labels really frighten the public…If consumers follow safe handling procedures, there’s no need to scare people about what is really a very wholesome and nutritious product.”[9] And so, the meat industry wanted the public to be responsible for making meat safe to eat, and to in every instance cook meat perfectly so that no pathogens might survive, but, above all else, they did not want to “scare people.”  Talk about wanting to have it both ways!  The meat industry wanted the public to think that meat was perfectly safe–that is, so long as it was perfectly cooked first.

Of course, no one has been telling the public that perfection is required if safety is to be expected.  Instead, the instructions that finally found their way onto meat packages advises only: Cook thoroughly. And what, pray tell, does “thoroughly” mean?  Would it have been so hard to say something like: Cook to an internal temperature of 160 degrees Fahrenheit, as measured by an electronic thermometer in at least five locations?  Apparently, though, providing consumers with complete and accurate information was simply too much to expect.

To make matters worse, as late as 1997, the USDA was encouraging consumers to cook ground beef until “brown” in the middle to assure that a safe temperature had been reached.  The only problem with this approach, however, is that it does not guarantee that the ground beef will in fact reach a temperature sufficiently high to kill all the bacteria that might be present.  Once this problem was belatedly recognized, the USDA began its efforts to encourage the use of food thermometers. “Yet, the 2006 FDA/USDA Food Safety Survey of consumers indicated that only 13% of consumers always or often use a thermometer when cooking or grilling hamburgers.”[10] And as if there was not enough confusion out there about how to safely cook a hamburger, the companies who manufacture and sell frozen ground beef patties have put a mind-boggling variety of different of cooking instructions on their respective packages. As one study concluded:

Since most consumers do not use a food thermometer to determine the doneness of ground beef patties, accurate cooking instructions are also needed. The wide range of recommended cooking times, 1.5 to 8 minutes per side for 113 g. patties, and conflicting information about the use of color to predict doneness of cooked meat and about avoiding both overcooking and undercooking, provide an array of confusing instructions for consumers who may buy a variety of package types when selecting frozen ground beef patties over time.[11]

This means that, even if a consumer follows the cooking instructions printed on the package, and does so to the letter, the cooked ground beef patty still might not be safe to eat. 

Ultimately, then, I think what we need is a little realism here. If the manufacturer of frozen ground beefs patties is not willing to exercise the care necessary to prevent E. coli O157:H7 from contaminating its product, and is not willing to provide starkly clear warnings and accurate cooking instructions on its packages, it is time for the meat industry to shut up about so-called consumer responsibility.  Like Lady Macbeth, the responsibility of the meat industry for the death and injury caused by contaminated meat is not something that can be easily washed away.

1.  For a more detailed critique of Mr. Boyle’s assertions, which are there quoted at greater length, please see my essay, Lies, Damn Lies and Statistics (Oct. 21, 2009).

2.  To provide an example, there is her opinion piece entitled “Increasing Hunger and Regulation” in which she argues that regulations cause hunger by increasing the costs of production, explaining, by way of example, that “the movement to put restrictions on the use of land for farming can easily result in less land under cultivation and down the road a shortage of food.”  She continues this line of argument in “Why Do You Think We Have Factory Farms,” in which she proclaims “I’m getting more and more frustrated with the idea that small farms can feed the world.”  To which I reply–Well, of course, small farms cannot feed the world, if “feeding the world” is defined as providing each person on the face of the earth a daily allotment of cheap industrially-raised chicken or beef.  Oh, and by the way, we already are not feeding the whole world, at least not very well. But
I digress.

3.  Dr. Marsden’s opinion piece can be found online here (although free membership sign-up is required for access): 

4.  See Michael Moss, “Safety of Beef Processing Method is Questioned,” New York Times, Dec. 30, 2009.

5.  Michael Ollinger, et al., Meat and Poultry Plants’ Food Safety Investments: Survey Findings, USDA/ERS Technical Bulletin No. 1911 (May 2004) at p. 37 (noting that “ERS survey data suggest that the PR/HACCP rule has raised beef and poultry slaughter plant costs by about one-third of 1 cent per pound.”)

6.  See “Recent Developments Regarding Beef Products Contaminated With Escherichia coli O157:H7,” 65 Fed. Reg. 6881, 6884 (announcing that the agency would hold a public meeting “to discuss FSIS’ policy regarding [E. coli] O157:H7 and new information concerning the pathogen and its relation to human health.”)

7.  For a more detailed discussion of the APHA lawsuit, and the court ruling that allowed meat to remain warning-free, see my essay, BPI Ground Beef Salmonella Recall: Will the Meat Industry Sue, and Who Will the USDA stand up for?, at

8.  See Texas Food Industry Assoc., et al. v. Espy, 842 F. Supp. 254 (Dist. Tex. 1993) (granting a preliminary injunction on the grounds that the USDA had not followed the required procedures to adopt the new rule).

9.  This quotation is taken from Marion Nestle’s excellent book, SAFE FOOD, at p. 77.  There you can also find a succinct and enlightening description of the meat industry’s efforts to block the regulatory reforms that the USDA tried to put into place in response to the 1993 Jack in the Box outbreak. See Safe Food, pp. 62-97.

10.  See Sandra McCurdy, et al., Label Instructions and Cooking Times for Retail Frozen Ground Beef, Food Protection Trends, p. 336, June 2009.

11.  Id. at 339. [Full disclosure: My law firm contributed funding toward the completion of this study, which was done independently and subject to peer-review prior to publication.]