Editor’s note: This essay is a 2017 runner up for the “Publisher’s Award” and was written as part of a food safety litigation class at the University of Arkansas Law School taught by Bill Marler and Denis Stearns of the Seattle law firm MarlerClark LLP.

“And how would you like your steak cooked?” the waiter asked. “Well done, please,” I replied with a pause waiting for the inevitable response back.

illustration are you sure you want that well done“Are you sure?” the waiter questioned. “Yes, well done, please,” I said looking at him to let him know that I fully understand the consequences of getting back a beautifully aged and marble cut of meat cooked to a second death on the grill.

This interaction is commonplace for me. In fact, “well done” is how I have ordered almost every cut of meat, especially burgers, my entire life. For the sake of full disclosure, I do live “dangerously” now and order most steaks “medium,” but I am typically happy when it comes back closer to medium well on the cooking spectrum.

Truthfully, I never questioned or thought about it until I was older than I would care to admit. I was used to the questions from wait staff, comments and jokes from my friends, and strange looks from dining companions with whom I was sharing a meal with for the first time. I was even aware and sometimes self-conscious about my order because I knew my cooking request would delay everyone’s meals. But to me, it was just the way I preferred my steaks and burgers because I had always eaten them that way.

One day I decided to ask my mom why I ordered meat cooked “well done” my whole life. She went on to tell me that is always how she ordered it for me during my adolescence — the mid- to late 1980s through the early 1990s — because at the time a lot of people, especially children, were getting extremely sick from under cooked meat, and she did not want to risk me getting sick — or worse — from a foodborne illness.

My mom was referring to the infamous Jack in the Box Escherichia coli O157:H7  outbreak in 1993 which encompassed 73 stores in the states of California, Idaho, Washington and Nevada, causing four deaths and sickening over 700 people. The cause of the contamination was traced to five United States-based slaughter plants and one Canadian-based plant, and was exacerbated by poor meat handling and undercooked burgers.

However, neither the Jack in the Box case nor any of the other smaller cases of foodborne illness that occurred during my youth took place near where I grew up in Connecticut. In fact, most of them did not even impact my region or, for the most part, restaurants that were even in our area.

My mom’s concerns really drove home the reality that, when there is a foodborne illness outbreak, the specific details — outside of the immediately impacted product — do not really matter. Regardless of whether it was contaminated by the end user, was the result of an in-store food preparation issue limited to a few individuals not adhering to best practices, or the food was contaminated by the shipper, packer or processor, at the end of the day all that matters is that it made people sick.

jackintheboxsign-406The Jack in the Box outbreak affected how my mom — and parents across the country — ordered food for their children, the restaurants they went to, and how they prepared and cooked food at home. It is undeniable that foodborne illness outbreaks have had long lasting impacts and changed how I, and millions of people, eat to this day.

Not only did this cause self-regulation among individual consumers, it completely changed how the meat industry was regulated.

In direct response to the Jack in the Box outbreak, the U.S. Department of Agriculture promulgated an interim final rule in August 1993 requiring labeling for uncooked and partially cooked meat and poultry consumer products, something that consumer protection groups had been asking for since the 1970s.

However, USDA did not go through the normal agency procedure prescribed under the Administrative Procedure Act (APA) of issuing a notice of a proposed rulemaking with a public comment period, and then issuing a final rule based on agency research and public input. Instead, it accelerated the rulemaking process because, “[t]he gravity of many cases of illness resulting from E.coli 0157:H7 and the continuing evidence of consumers undercooking hamburgers creates a public health emergency” requiring the agency to act quickly.

USDA’s rushed rule was successfully challenged by grocery store associations who would bear the $35 to $75 million cost of the labeling requirement. In its ruling, the court stated that the interim final rule did not actually address the cause of the E. coli outbreak in the Jack in the Box case as it “resulted from mishandling and undercooking by a fast food chain” and was “not the result of consumer mishandling or undercooking.” The court further pointed out that the Jack in the Box outbreak occurred “over 8 months before this rule was promulgated[,]” and USDA could have followed APA procedures under this timeframe. Ultimately, USDA was stopped from enforcing its new rule.

While the interim final rule was an overreach by USDA, its newly announced inspection program in October 1994, which would take 5,000 samples of raw ground beef and test it for E. coli, was not an overstep of its regulatory authority. The new policy also declared that raw ground beef testing positive for E. coli would now be considered adulterated — meaning it contains a poisonous or deleterious substance causing it to potentially sicken a consumer.

Prior to this, meat with E. coli on it was not considered adulterated, despite the fact that it would make you sick if ingested, and USDA noted that “thorough cooking” of meat, especially raw ground beef, is essential for ensuring it is safe to eat. This is important because it recognized that not everyone cooked, for example, raw ground beef thoroughly, and when it was not cooked thoroughly and you got sick, there was no recourse or regulatory action through USDA’s Food Safety and Inspection Service (FSIS).

This decision also acknowledged the reality of how consumers prefer to consume their ground beef products and that the consumer should have some further reassurances to continue to cook and eat it in the manner to which they were accustom to, as long as they understand the risk. Further, declaring E. coli an adulterant allows FSIS to take regulatory action to stop contaminated meat from reaching consumers, and potentially criminally prosecute the producer.

The October 1994 inspection program and decision was also challenged by a similar group of plaintiffs making a parallel claim — USDA did not follow the APA notice and comment requirement for new rules. This time around, the court declared that USDA made an “interpretative rule” change and the agency is granted the authority to change its interpretation at any time under the Federal Meat Inspection Act without having to go through APA procedures.

It may have taken two tries, but this decision, albeit it a unilateral one from USDA, finally created the necessary regulatory shift to address the direct concerns of consumers in light of the Jack in the Box outbreak.

http://www.dreamstime.com/stock-image-rules-regulations-rubber-stamps-marked-image30981801Regulation can be a dirty word. It costs money, it creates burdens, it forces change, and it enforces conduct. However, regulation is essential to ensuring not only consumer confidence, but producer confidence. In order to effectively regulate, the concerns of all impacted parties must be openly and adequately addressed. Regulation must meet the realities of businesses and consumers. All groups need to work together to find common place solutions that are cost effective and supportive.

While both decisions were essentially unilateral agency actions aimed at regulating industry conduct, I think these two cases really highlight the struggle between effective agency regulation and potential overstepping.

While USDA overstepped with its “well done” approach by creating a labeling requirement which regulated something that ultimately would not have prevented the Jack in the Box E. coli outbreak, it ultimately came to the right decision in its re-interpretation of E. coli as an adulterant without including any public discussion from industry or consumers — that is not to say that some did not happen, just not within the typical APA notice and comment procedures.

Balance is truly the key to good regulatory planning. There has to be a give and take on each side in order to have not only safe food, but affordable food. That does not mean that regulators should tip the scales in favor of cost effectiveness over safety, but they should provide reasonable assurances to consumers — and, yes, to my mom and parents everywhere — that the food they are buying in the store or ordering in a restaurant is safe to consume.

Food producers also must have the same assurances that the standards and laws they are required to follow allow for them not only to generate a living and feed people, but will also protect them from liability and litigation by reducing the risk to the customer.

I have been fortunate to work in food and agriculture law for a good part of my professional career, allowing me to see what farmers and food producers have to go through to comply with federal laws and regulations. I also have been lucky to have a mom who wanted to ensure my health and wellbeing by ordering me well done burgers and steaks during my childhood.

So, after having experience on both sides of the food safety coin, you are probably asking if I have changed how I order and cook my meat? I will just say that some habits die hard, regardless of the knowledge you process.

About the author: Colby Duren is a Washington D.C.-based attorney with nearly 10 years of experience in federal Indian law and policy, with a specific focus on food, agriculture and natural resources issues. Currently he is policy director and staff attorney for the Indigenous Food and Agriculture Initiative at the University of Arkansas School of Law, where he is also an LL.M. candidate in the Agricultural and Food Law Program. 

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