2013 was a standout year for Foster Farms, though not for the right reasons. The West Coast poultry giant was tied to two multi-state Salmonella outbreaks this past year, each making national headlines and together causing more than 550 confirmed illnesses and nearly 200 hospitalizations. The estimated number ill approached 20,000. The outbreaks highlighted the prevalence of Salmonella on grocery store chicken parts, which a recent nationwide survey found to be present at a rate of 24 percent. When Foster Farms announced that it would not recall any of its chicken after either of the outbreaks, a question arose: Why are some meats recalled when they cause outbreaks, while others are not? Salmonella outbreaks involving ground beef have almost universally resulted in recalls. Recalls of poultry products for Salmonella are less common, but they happen: In 2011, Cargill recalled 36 million pounds of ground turkey after it sickened at least 136 people across the U.S. Even as the second Foster Farms outbreak racked up more cases, Tyson Foods recalled shipments of mechanically separated chicken after they were tied to an outbreak that sickened at least nine Tennessee prison inmates. So, again, why did Cargill and Tyson recall their contaminated poultry, while Foster Farms did not? Unsurprisingly, answering that question involves careful examination of a complicated intersection between microbiology, legal history and public perception. To Be or Not to Be (an Adulterant) Truth is, there are no hard-and-fast rules when it comes to recalls with Salmonella-contaminated poultry. Recalls are considered voluntary, although they’re encouraged in some cases by the U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS). Though they cannot enforce a recall due to Salmonella contamination, FSIS will sometimes even threaten to detain product if the company doesn’t initiate the suggested recall. But FSIS likely did not recommend a recall or threaten Foster Farms with product detainment because health investigators could not trace the illnesses back to a specific production lot or day of production, said Christopher Waldrop, director of the Food Policy Institute at the Consumer Federation of America. While USDA had evidence linking Foster Farms chicken to illnesses, “they couldn’t make that final link, so they had to figure out how else to get at the problem,” Waldrop told Food Safety News. Instead, FSIS sent in inspectors and threatened to close three plants unless the company could demonstrate a plan to improve conditions. USDA said Foster Farms did that, and so they left the plants open and instead warned customers to cook their chicken to an internal temperature of 165 degrees F. (Months later, USDA temporarily shut down one plant for a cockroach infestation.) FSIS can only require pathogen-related recalls in the case of certain strains of Escherichia coli found in ground beef. In 1994, E. coli O157:H7 in ground beef was the first microbe to be declared an adulterant by USDA, meaning that it became illegal to sell ground beef containing it. (More recently, another six E. coli strains officially became adulterants in ground beef, while Salmonella and Listeria monocytogenes are considered adulterants in ready-to-eat products such as deli meat.) Though the beef industry lost a lawsuit against USDA to reverse the rule on adulteration, beef producers buckled down and began developing strategies to prevent E. coli from contaminating ground beef during processing. After 20 years, E. coli contamination rates in ground beef have slowed to a trickle. By comparison, Salmonella contamination rates have stagnated over that same amount of time, though rates have fallen in chicken. While many Salmonella illnesses today come from fresh produce and beef, poultry accounted for 17 percent of Salmonella illnesses in the U.S. between 1996 and 2008, according to estimates from the U.S. Centers for Disease Control and Prevention (CDC). That has prompted consumers and stakeholders within the food industry to ask whether Salmonella should be declared an adulterant in some foods, namely poultry and ground beef. In May 2011, consumer advocacy organization Center for Science in the Public Interest, with support from a range of consumer advocates, filed a petition for USDA to consider antibiotic-resistant Salmonella an adulterant in poultry and ground meats. Two-and-a-half years later, USDA has yet to formally address the petition, although the agency is still developing a response, a spokesperson told Food Safety News. But what stands in the way of such a move is a combination of physical hurdles on the microscopic scale and two prominent court cases. Butz, Supreme Beef and the Innate Knowledge of Housewives In 1974, 20 years before E. coli became an adulterant, a federal appeals court ruled that Salmonella was, in fact, not an adulterant – because microbes couldn’t be adulterants. The case pitted the American Public Health Association v. Earl Butz, who was then USDA Secretary. The main charge brought forth by APHA was that USDA’s mark of approval on raw meats was misleading because the agency did not test for harmful pathogens such as Salmonella and could therefore not guarantee that the products were safe for consumers. APHA wanted raw meat from the grocery store to come with a warning label and cooking instructions to inform consumers of the associated risks. But the courts sided with Butz and USDA, who said that a warning label would do unfair damage to meat companies. In essence, they placed responsibility for meat safety in the hands of those perceived to be doing the cooking, famously nominating housewives as the line of defense for families. “American housewives and cooks normally are not ignorant or stupid and their methods of preparing and cooking of food do not ordinarily result in salmonellosis,” the ruling read. So, the courts had decided that Salmonella was not an adulterant in meat. Fast-forward to 2001, when the courts further decided USDA could not close a meat-processing plant for repeatedly failing Salmonella tests. That was the year Supreme Beef Processors – a beef supplier to the school lunch program – sued USDA to prevent the shutdown of their facilities after they failed enough Salmonella tests to qualify as operating under “insanitary conditions.” The courts again determined that normal cooking practices should eliminate Salmonella from meat, and therefore Salmonella should not be considered an adulterant. Important to keep in context, however, was the time period of the Butz case, which preceded the game-changing Jack in the Box E. coli outbreak of 1993, said Denis Stearns, law professor at Seattle University School of Law (and former partner at food-safety law firm Marler Clark, which underwrites Food Safety News.) Old Era, New Era The Butz case isn’t as relevant to the adulterant argument today, Stearns said, because it was determined in an era when USDA and industry agreed that microbes could not be adulterants in meat, period. “That helps you understand that when [then-FSIS Administrator] Mike Taylor declared E. coli an adulterant, that was revolutionary,” Stearns said. “Everyone freaked. The idea that raw meat could be adulterated was kind of like the Copernican revolution.” And a similar revolution could happen with antibiotic-resistant Salmonella in the near future, Stearns said. “I would be shocked if in the next year they don’t declare antibiotic-resistant Salmonella an adulterant, at least in ground beef,” he said. Despite that, Stearns added that he would not anticipate any sort of moves from the government when it came to naming more run-of-the-mill Salmonella an adulterant. The severity of future outbreaks involving resistant Salmonella could sway public opinion enough for FSIS to take action, much like how the Jack in the Box outbreak of ’93 led to E. coli’s adulterant status, Stearns said. Resistant Salmonella strains cropping up in recent outbreaks appear to be more virulent than their conventional counterparts, hospitalizing nearly twice as many cases. Today, FSIS gives incentives to producers for lower Salmonella counts by inspecting their facilities less frequently, Stearns noted. Producers can escape intensive regulation if they demonstrate better control of Salmonella. And the poultry industry is using the best science and technology available to drive down contamination rates, said Tom Super, vice president of communications for the National Chicken Council. The poultry industry is currently collecting data from processing plants nationwide in an attempt to better understand how Salmonella contamination on chicken pieces could be reduced during second processing, the stage where the chicken is cut into parts. The industry spends tens of millions of dollars each year on food-safety research, Super added, which has led to decreased rates of Salmonella on chicken. Rates of Salmonella in chicken have fallen by as much as 55 percent in the past five years, Super said, adding that declaring the microbe an adulterant would not help the situation. “Passing a law or regulation to fight bacteria will not magically make it go away,” Super said. “What will make Salmonella disappear is science, research and breaking the chain of Salmonella at every stage of production from the breeder farm to the processing plant.” Still, others, such as the Consumer Federation of America’s Waldrop, said that adulteration status for Salmonella in chicken would likely drive those contamination rates even lower and prevent something like the Foster Farms outbreaks from happening again – much like how E. coli O157:H7 has virtually been eliminated from ground beef. “I think declaring Salmonella an adulterant makes life easier for FSIS,” Waldrop said. “Making that sort of declaration provides them with an easier path to keeping contaminated food off the market instead of having to take an indirect route to address problems at plants.” FSIS is expected to respond this year to the petition regarding declaring antibiotic-resistant Salmonella an adulterant in some meats. Despite several attempts to arrange an interview, FSIS could not coordinate a legal expert to speak on the issue by press time.