In the midst of what has tragically become the deadliest E. coli outbreak in history, serious questions are being raised about the need to step up testing here to protect the American public from a similar calamity. Food safety experts and consumer groups have for several years now recommended that USDA require testing in ground beef beyond the most commonly tested E. coli strain, 0157:H7.
As recently reported by Food Safety News, the USDA has at last drafted a notice of rulemaking (how agencies promulgate laws) to expand the definition of “adulterant” to include 6 non-0157:H7 STECs (Shiga toxin-producing Escherichia coli), which would force industry to test for these other strains. But now the White House Office of Management and Budget (OMB) appears to be holding things up.
The question is, why?
For some deeper historical context into E. coli politics, I recently spoke with Dr. Richard Raymond, who served as Under Secretary for Food Safety for the Food Safety and Inspection Service at USDA from 2005-2008. Dr. Raymond has recently written twice for Food Safety News, once in May and again this month, (along with Carol Tucker-Foreman) on why it’s time for action on this matter.
Dr. Raymond cites two likely political culprits for the federal delay. One is obvious: the meat industry. The other maybe less so: our trading partners. (More on this topic in a later article.)
Raymond believes that technically non-0157 strains are already “adulterants” under the broad language and spirit of the Federal Meat Inspection Act.
So why then can’t USDA simply declare these strains adulterants now?
To understand why USDA is still being cautious, it helps to recall previous less-than-friendly responses to government action. The meat industry has a history of resisting regulation, even when it comes to controlling life-threatening pathogens.
As Marion Nestle describes in her book, “Safe Food,” the American Meat Institute (AMI) –representing 95 percent of red meat processors — has been especially outspoken in its opposition to government food safety regulation. AMI’s strong-arm tactics over the years have included suing USDA to challenge its authority.
For example, in 1994, USDA declared E. coli 1057:H7 an adulterant in the aftermath of the Jack in the Box outbreak. With four children dead and hundreds more sickened, the agency had plenty of moral authority (not to mention scientific backing) to act swiftly.
Still, the AMI strongly objected to the decision, claiming no emergency existed (tell that to the parents who lost their children) and, along with other trade groups, sued the USDA to stop it from requiring testing. Industry lost that case, which seems especially ironic given that “frivolous litigation” is a common accusation aimed at trial lawyers by some in the food sector.
Then industry sued again, challenging the agency’s authority when, in 1999, USDA tried to shut down a beef plant over serious Salmonella contamination.
But this time, the courts ruled that USDA had overstepped its authority. That decision, (Supreme Beef v. USDA) says Dr. Raymond, “set food safety back decades,” and helps explain why USDA to this day is so cautious when it comes to expanding its authority.
It’s also why, says Raymond, it’s far better for USDA to go through rulemaking than to risk getting sued. And the process could even be faster given that a lawsuit can take years to get resolved.
“Rulemaking will help prevent a lawsuit, so it’s the more prudent way to go. Given what happened with the Salmonella case,” Raymond says, “We don’t want judges setting food safety policy.”
Raymond also notes the rulemaking process allows all stakeholders to publicly air their concerns and get on record. “It helps to give both USDA and the White House the political cover they need,” he said. But he also admits that with election season around the corner, things could get even more complicated.
How exactly do the American Meat Institute and its members exert pressure on UDSA and its decision-making? Raymond got plenty of visits from AMI lobbyists and members in his time at USDA, so he knows first hand how they operate.
“The CEOs of AMI’s member companies are well-heeled, prominent, and probably give a lot of money in campaign donations to federal and state lawmakers,” he explained, “especially in states where companies like Cargill or Tyson operate.”
Raymond says that AMI lobbyists will start by making their case to career USDA staff, then go up the chain to political appointees and, if that doesn’t work, they can always call on members of Congress.
Lobbyists and industry executives can contact key legislators at a critical decision-making time like this and say, “Hey, remember what I did for you in that tough race last election? Well, here’s what I need from you now.”
Raymond recalls that representatives of the American Meat Institute were in the room during his Senate confirmation hearing, just to see who he was. “They had no clue because I did not come from the industry or the world of meat science and academia,” he explained.
What sorts of arguments does industry make to stop or slow down attempts to improve regulatory oversight regarding non-O157 STECs to protect the public?
They have two main talking points, according to Raymond. One claim is that “current strategies are working fine” (but most plants aren’t testing for these other strains) and two, that “you can’t legislate bugs out of meat,” which he says sounds very clever. “But you can change how plants conduct their business through legislation or rulemaking,” he countered.
Raymond adds that industry can no longer make these three common scientific arguments against declaring non-O157s to be adulterants with a straight face:
1) We don’t know the prevalence of the non-0157:H7 strains (We now have data for the “Big 6” and the outbreak in Germany for another strain.)
2) We don’t have tests. (We do or can get them soon. Raymond agrees that industry’s testing strategy, for some, appears to be, “don’t test, don’t find.”)
3) Other strains are not as virulent (Reality is clearly showing otherwise.)
But that hasn’t stopped AMI from continuing to fight. As recently reported in the New York Times, lobbyists met with OMB officials in March “to make their case against a change” because “additional testing would be an unnecessary burden.”
What industry is really worried about Raymond says, is that once they test and find an E. coli strain that is declared an adulterant, they have to take the meat of out commerce. And if they don’t, they are legally liable.
I asked Raymond if it makes sense to have to add new strains to the list of legally recognized adulterants one by one. “No,” he said, “all STECs that cause human illness should be declared
adulterants.” But he admits that testing for each specific strain does pose a challenge for industry.
“Right now, it’s clear that we need the Big 6, which are the most prevalent and we have tests for all of them. And, given Germany, I would add O104:H4. Why wait?” he asks.
Despite the political challenges, Raymond is optimistic that USDA will get the job done and sees Germany as a wake-up call: “While there is no sense of urgency in the U.S. right now, we don’t want to see another Jack in the Box-type outbreak again. Now is the time to act. In crisis comes opportunity.”