Co-authored by Michael Kowalcyk
Ten years ago Thursday, our 2½-year-old son Kevin died from complications due to an E. coli O157:H7 infection. We later learned that Kevin’s strain of E. coli O157:H7 matched that of a meat recall issued 16 days after he died. Unfortunately, we were never able to conclusively prove that Kevin consumed the recalled meat, which was the requirement to show liability in the state where he died. As many of you know from Food, Inc., Kevin’s death and the challenges we encountered following his death propelled our family to advocate for Kevin’s Law and eventually establish a new non-profit, the Center for Foodborne Illness Research & Prevention.
Kevin’s Law was first introduced in Congress as the Meat and Poultry Pathogen Reduction and Enforcement Act of 2002 by Senators Tom Harkin, Dick Durbin and Hillary Clinton. It was later re-named Kevin’s Law in honor of Kevin and our family’s work to pass the legislation. Kevin’s Law was a response to a court of appeals ruling that USDA did not have the authority to shut down plants that repeatedly produced meat and poultry products that were contaminated with Salmonella (the Supreme Beef case of December 2001). Kevin’s Law required USDA to work with CDC to identify foodborne pathogens that impact human health, set limits for those pathogens in meat and poultry products, and then shut down plants that repeatedly fail to meet those limits. Despite being introduced in Congress three times, Kevin’s Law never passed. Key elements of Kevin’s Law were included in the recently enacted Food Safety Modernization Act, but that legislation applies only to FDA (with food safety oversight of dairy and produce), not USDA (with food safety oversight of meat and poultry).
Last week, Cargill announced a 36 million pound recall of ground turkey for an antibiotic resistant strain of Salmonella that has caused 107 illnesses and one death. Every day, new light is being shed upon the details of this recall and the associated outbreak investigation. According to published reports, USDA testing found this strain of Salmonella four times over the past year but did not take action. In fact, five months passed from the first reported illness to the recall. During that time period, many families — and particularly children — were unnecessarily put at risk of serious foodborne illness and even death. That is completely unacceptable. Government authorities should have acted sooner.
Unfortunately, the reality is that, due to the Supreme Beef ruling, USDA’s hands are tied. Unless a pathogen is considered an adulterant, USDA cannot take action — even if they find these pathogens during routine testing. Right now, E. coli O157:H7 is the only pathogen that is considered an adulterant. In January, USDA submitted a proposal to the White House Office of Management and Budget to declare six other E. coli strains as adulterants, but OMB has not responded. There is growing concern among public health officials in the United States about antibiotic resistant strains of Salmonella, but these are not considered adulterants either. Yet, in Europe, initiatives have already been introduced to reduce risks from antibiotic-resistant Salmonella.
Currently, USDA tests meat and poultry products for Salmonella and has limits in place for how much Salmonella can be in any particular testing sample of meat. The limits are woefully inadequate, and thanks to the Court of Appeals, they aren’t enforceable anyway. USDA can’t take action against a meat or poultry producer even if the limits are repeatedly exceeded.
For example, take ground turkey. When USDA tests for Salmonella, they take individual 1-pound samples on 52 consecutive days of production. Sometimes it takes a year to complete a set — and the establishment gets a heads up that a sample is going to be taken! In addition, if 26 or fewer are positive, the sample set passes. If more than 26 are positive, the sample set fails. Basically, these are like open book exams — not pop quizzes — where a 50% is still passing! And even when a sample set fails, USDA does another set of testing. And they keep doing testing until a set passes.
Under Kevin’s Law, USDA would have the authority to shut down a plant if it repeatedly exceeds acceptable limits. Right now, the testing continues until illnesses are actually linked to the product. As discussed in a previous blog, foodborne illness investigation is not easy and usually takes a lot of time, which is one of the reasons it took five months to issue this recall. Inter-agency communication problems also contributed to the delay in this situation.
The reality is that, if Kevin’s Law had been passed, this outbreak may have been avoided or, at the very least, USDA would have been able to take action sooner. USDA needs the authority to take action when contaminated products are causing human illness. They need to be able to set limits for foodborne pathogens. They need to reduce those limits over time to prevent fewer pathogens from entering the food supply. And, they need the authority to shut down producers that repeatedly fail to meet those standards.
We find it a bit ironic that this issue would arise again on the 10th anniversary of Kevin’s death. Our family has never given up on passing Kevin’s Law. It is clear that USDA needs these authorities before more American families suffer. I urge Congress to consider re-introducing Kevin’s Law, to pass Kevin’s Law, and we ask that you join us in making this a reality.
Kevin, we love you and miss you. You changed our lives forever, and we will continue to honor your life and your memory by working to make our food safer.
Kevin’s Mom and Dad,
Barbara and Michael Kowalcyk
Barbara Kowalcyk is the CEO of the Center for Foodborne Illness Research & Prevention. Michael Kowalcyk is an economist. He has advocated extensively for the passage of Kevin’s Law. This piece was first published August 11, 2011 in the Huffington Post. Reposted with permission.