Bill Marler is getting the last word on the petition he filed with USDA’s Food Safety and Inspection Service (FSIS) in January, which is on behalf of Rick Schiller, Steven Romes, the Porter Family, Food & Water Watch, Consumer Federation of America, and Consumer Reports.
He’s waited for the formal comment period to end. Major meat and poultry industry comments were not made until late in the comment period. Marler explains why the law is not a barrier to getting dangerous Salmonella out of the nation’s meat and poultry. He points to the success the meat and poultry industry had in removing Shiga toxin-producing E. coli from meat, which came after their extended initial opposition.
The Marler petition requests that the FSIS declare several “outbreak serotypes” as adulterants in meat and poultry products. Listing these specific Salmonella serotypes as adulterants would prevent their presence in meat and poultry just as certain E. coli serotypes are banned today.
Marler is the managing partner of Marler Clark, the Seattle-based food safety law firm. The FSIS received 377 comments on the Salmonella petition by the May 25 deadline. About 15 percent of those comments were made anonymously.
Marler is getting the “last word” in a June 5 letter to Mindy Brashears, USDA’s Under Secretary for Food Safety. In it, he provides a “supplement” to the original petition “with additional and updated” information.
The Salmonella serotypes the Marler petition wants to ban from meat and poultry are Salmonella Agona, Anatum, Berta, Blockley, Braenderup, Derby, Dublin, Enteritidis, Hadar, Heidelberg, I 4,,12: i:-, Infantis, Javiana, Litchfield, Mbandaka, Mississippi, Montevideo, Muenchen, Newport, Oranienburg, Panama, Poona, Reading, Saintpaul, Sandiego, Schwarzengrund, Senftenberg, and Stanley,
“Salmonella is the leading bacterial cause of foodborne illness in the United States, resulting in an estimated 1.35 million illnesses, 26,500 hospitalizations, 420 deaths, and 130 outbreaks each year.” Marler’s letter to the Brashears says.
Low doses of Salmonella can make people sick and most of these illnesses and deaths are attributed to eggs, poultry, beef, and pork with the resulting cots falling on the public and annually running from $2.7 billion to $6.5 billion, according to Marler.
He acknowledges “significant efforts” by USDA to stem the number of Salmonella infections, but without decline, instead the trend line in recent years shows “substantial” growth.
“Each of the above-referenced outbreak serotypes has a demonstrable history associated with either an illness outbreak or a product recall and has been proven to be injurious to human health,” Marler writes.
Since it was filed, the Marler petition has picked up endorsements from nationally known food safety advocates, including Stop Foodborne Illness, the Center for Science in the Public Interest, and the Center for Foodborne Illness Research and Prevention. With the petitioning organizations including Food & Water Watch, Consumer Reports, and the Consumer Federation of American, the vast majority of foodborne illness victims and consumers who want food safety favor banning the listed Salmonella serotypes in meat and poultry.
Unlike many of the comments, Marler advised the Brashears that “just cook it” does not “cut it.” He says most people know there are germs in meat and poultry and undercooking adds to the problem. However, he says studies show ‘time and time again” that too many consumers, restaurant managers, and chefs do not know how to handle and cook meat safely.
The meat and poultry industries greatly advanced food safety after E. coli O157: H7 was banned from their products more than a quarter-century ago. Marler at that time supported declaring O157 as an adulterant in meat and poultry while the meat and poultry lobby vigorously opposed the listing.
Few in those industries today would go back to E. coli days, however. Keeping O157 and six other E. coli serotypes out of meat and poultry cost about one penny per pound. Costs associated with civil lawsuits and recalls for E. coli were drastically cut.
But before Marler’s “last word,” major meat and poultry industries’ voices let FSIS know they oppose banning Salmonella in the 21st century. Here’s some of what they said in extended excerpts from the comments they filed in May.
Mark Dopp, North American Meat Institue
“The petition wrongly contends Salmonella is an “added substance” in meat and poultry products.
The backbone of the petition is its misplaced assertion that meat is “sterile” and therefore Salmonella is an “added substance.” The definition of “adulterated” in the Federal Meat Inspection Act (FMIA) and Poultry Products Inspection Act (PPIA) (collectively the Acts) provides a meat or poultry product is adulterated if it bears or contains any poisonous or deleterious substance which may render it injurious to health; but in case the substance is not an added substance, such article shall not be considered adulterated under this clause if the quantity of such substance in or on such article does not ordinarily render it injurious to health.3 (Emphasis added)
This definition establishes different standards for whether a meat or poultry product is adulterated depending on whether the substance is “added.”4 If the substance is “added” the easier to satisfy “may render … injurious to health” standard applies. Conversely, if the substance is not added, or what many consider naturally occurring, the more difficult to meet “does not ordinarily render it injurious to health” standard applies.
The petition wrongly seizes upon this distinction and argues that, because muscle tissue is sterile, Salmonella is an added substance and the “may render injurious” standard is applicable.5 For example, the petition states
Salmonella’s presence on muscle tissue, whether by spoilage or pathogenic, is a result of contamination because these parts have been shown to be sterile prior to their exposure to processing and reprocessing methods.6
This theme is reiterated throughout the petition, but it is wrong…”
Nelson J. Gaydos, American Association of Meat Processors
“AAMP is North America’s largest meat trade association. Our members include meat and poultry processors, slaughterers, caterers, food service companies, wholesalers, retailers, suppliers, and consultants to the industry…
..testing is not a preventative measure for food safety. It is merely a tool used to assess the current system. Focusing efforts on increased testing is not the way to decrease foodborne illness, that can only be done through good antemortem, slaughtering and post-mortem practices, processors following and executing their HACCP plans and educating the public.
This petition spent a considerable amount of time highlighting the lack of knowledge that chefs, restaurant workers, and consumers have about foodborne illness and proper food handling and safety, yet does not feel the need to correct this problem since, according to them, it has not worked in the past. Time and resources would be better spent on education rather than on more stringent testing and regulations for processors. The already occurring preventative measures done by processors are being negated by poor handling and cooking of chefs, restaurant workers, and consumers further down the line. These new measures suggested in the petition will not change that. We suggest that as an alternative to this petition, more efforts be put into educating the public including those who cook and prepare food for others, consumers who cook at home, and especially children in school (middle school, high school, and college).
If FSIS approves this petition, it will be extremely difficult to answer this question from our members: “Does FSIS want to put us out of business?” When we look at this petition and think about the requirements it will be asking of meat processors and of the economic impact it could have on the meat industry, it is hard not to wonder the same thing ourselves. We realize the intention behind this is to protect the public from unintentional contamination of meat and poultry products and agree on its importance; however, we do not agree on how to go about carrying out the goal of the petition.
AAMP believes that FSIS should not approve this petition and take a step back and work with the industry to create sensible recommendations based on sound scientific studies so that they are the most realistic…
Dr. Ashley B. Peterson, National Chicken Council
“The Petition requests a procedurally improper change to longstanding and unequivocal Agency policy that would contradict court cases dating back decades.
FSIS has for years expressly and consistently articulated its policy that Salmonella is not an adulterant in raw meat or poultry. This policy has been articulated in numerous Agency actions on which FSIS sought and responded to public comment through dockets announced in the Federal Register.
A few recent examples underscore just how established FSIS’s position is: In a 2016 Federal Register Notice announcing it would begin assessing whether establishments met the pathogen reduction performance standards in raw chicken parts and not-ready-to-eat (NRTE) chicken and turkey products, FSIS stated, “Salmonella is not an adulterant in NRTE poultry products. Therefore, a positive test result for Salmonella in imported (not-ready to-eat) poultry products sampled by FSIS import inspection personnel would not result in regulatory control actions at port-of-entry (i.e., refused entry of the product).”14 In FSIS Notice 21-19 on actions to take in raw poultry establishments exceeding Salmonella performance standards, FSIS stated it “does not consider raw poultry containing Salmonella to be adulterated as defined by 21 USC 453(g)(1) unless other circumstances make the product adulterated. Establishments are not required to segregate or hold product when the establishment exceeds a Salmonella performance standard.”15 In a 2012 FSIS final policy statement on not applying the mark of inspection pending certain test results,
FSIS stated that “the policy would not cover raw meat or poultry products tested for Salmonella or other pathogens that FSIS has not designated as adulterants in those products.” In its response to comments on changes to the Salmonella verification sampling program, FSIS stated unequivocally that “Salmonella is not an adulterant in raw meat products.”17 And in FSIS Notice 46-19 on analysis for Salmonella of all imported beef, FSIS stated it “does not consider Salmonella an adulterant in raw meat products. Therefore, a positive test result for Salmonella in imported raw beef and veal products, sampled by FSIS inspection program personnel (IPP), does not require a regulatory control action to be taken…”
The Last Word
Marler apparently does not think the meat lobby is going to get far making its legal arguments against the petition. To be sure, he’s provided Brashears with a legal lesson.
“As nearly every knowledgeable person would readily concede, the decision to declare a substance an adulterant under 21 U.S.C. § 601(m)(1) and 21 U.S.C. § 453(g)(1) involves a need to decide whether, legally speaking, the substance in question is ‘added.’ The commenters that argued (or simply asserted) that Salmonella is not, and cannot be, an ‘added substance’ did so on two grounds: one supposedly factual and the other primarily legal. But the arguments offered are misinformed at best and intentionally misleading at worst.
“The factual argument rests entirely on the assertion that some Salmonella that ends up as a contaminant of meat and poultry originates in the lymph nodes and thus is not added. But even if this were true (and it is only partly), there is no support for the idea that a substance cannot be declared an adulterant unless one hundred percent of contamination is attributable to an additive process.
“Those making the lymph node argument concede that nearly all such contamination is a result of an additive process. It also remains indisputably a fact that process controls, regulatory interventions, and other mechanisms can eliminate the presence of Salmonella in poultry. In sum, if the lymph node argument was to be dispositive here, then there is no reason that the USDA was also incorrect in declaring E. coli O157: H7 as an adulterant.”
One More Thing
Marler says plenty more in the letter about the law, but he also points out that comments were soiled by one opponent with a copy machine.
“Upon inspection of the comments to the Petition, we quickly noticed a troubling pattern — certain phrases and sentences were used repeatedly in many of the comments. Using the ‘search’ tool, we determined that 197 of the 377 comments (52 percent) contained the phrase ‘USDA should reject this petition;’ 201 of 377 (53%) contained ‘consolidating our meat supply in the hands of large-scale operations;’ 179 of 377 (47 percent) contained the sentence ‘While salmonella [sic] is a serious problem, this very broad, zero-tolerance approach is not the answer;’ and 191 of 377 (51 percent) contained the sentence ‘Many of these strains pose only slight risks, yet the testing requirements that would result from classifying them as adulterants could put small-scale processors out of business.’
“We ultimately determined that these recurring phrases stemmed from a template posted online and sent around by the Weston A. Price Foundation. Thus, it is likely that many of the commenters using this template did not read the petition in its entirety, but instead, merely copied and pasted Weston Price’s template to comment in objection of our petition.”
Petition here: https://www.fsis.usda.gov/wps/portal/fsis/topics/regulations/petitions – scroll down to “Petition Submitted by Marler Clark LLP, PS (Jan 19, 2020)”
Comments and submission site here: https://beta.regulations.gov/document/FSIS-2020-0007-0001
Editor’s Note: Bill Marler is the publisher of Food Safety News.
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