We did it with E. coli in hamburger. The sky didn’t fall. Here’s why we must do it again — and finish the job.
I have spent more than thirty years suing food companies on behalf of people who got sick — and died — from contaminated food. I started in 1993, representing Brianne Kiner, the most critically injured survivor of the Jack in the Box E. coli O157:H7 outbreak that changed American food safety forever. That disaster killed four children and hospitalized hundreds. It also, eventually, produced a precedent that has saved tens of thousands of lives. In 1994, USDA’s Food Safety and Inspection Service (FSIS) did something bold: it declared E. coli O157:H7 an adulterant[1] in raw ground beef. Zero tolerance. No E. coli in hamburger. Period.
The meat industry howled. They said the sky would fall, that beef prices would skyrocket, that the rule was legally indefensible and practically impossible. None of that happened. From about 1993 to 2002, roughly 95 percent of my law firm’s revenue came from E. coli cases linked to hamburger. Today, it is near zero. The adulterant designation worked. Science, law, and industry ingenuity came together and made hamburger safer. It is one of the genuine success stories of American food safety regulation.
The Numbers Are Staggering — and They Haven’t Moved
The Centers for Disease Control and Prevention estimates that Salmonella causes approximately 1.35 million illnesses, 26,500 hospitalizations, and 420 deaths in the United States every year. Over 23 percent of those illnesses are attributed to poultry consumption — nearly 17 percent from chicken alone. Chicken is, right now, the single leading source of Salmonella illness in America. And the incidence of salmonellosis — at roughly 15.3 cases per 100,000 people — sits well above the CDC’s Healthy People 2030 target of 11.5 cases per 100,000. We have not made substantial progress in two decades. Two decades.
Think about that.
In 1994, FSIS declared E. coli O157:H7 an adulterant, and we bent the curve of foodborne illness. Today, despite decades of performance standards and HACCP requirements and industry pledges, Salmonella in chicken keeps hospitalizing and killing Americans at a rate we would never tolerate in any other context. There is no zero-tolerance standard. There is no adulterant designation for the serotypes of Salmonella that cause the most harm. A poultry processing plant can have up to 24 percent of its ground chicken test positive for Salmonella and still be following federal standards. In what universe is that acceptable?
The Petition: Following the E. coli Playbook
On January 19, 2020, Marler Clark filed a formal petition with USDA-FSIS on behalf of Rick Schiller, Steven Romes, the Porter family, Food & Water Watch, Consumer Federation of America, and Consumer Reports. The petition asked FSIS to declare 31 Salmonella serotypes — specifically the outbreak serotypes that scientific data and epidemiology have linked again and again, to illness, hospitalizations, recalls, and death — as per se adulterants in meat and poultry products.
Those serotypes include Salmonella Enteritidis, Typhimurium, Newport, Heidelberg, Infantis, Javiana, and 25 others with a documented track record of harming people. Each one has a demonstrable history associated with either a foodborne illness outbreak or a product recall. Each one is proven to be injurious to human health.
We were not asking FSIS to invent new law. We were asking FSIS to do exactly what it did with E. coli in 1994 — and what it did again in 2012, when it expanded the adulterant designation to cover the “Big Six” non-O157 Shiga toxin-producing E. coli strains, after a petition from this firm.
The legal framework is clear and has been upheld in court. The Federal Meat Inspection Act gives FSIS the authority to declare substances adulterants through interpretive rule making — no notice-and-comment rule making required. The U.S. District Court upheld exactly this power when the beef industry sued to block the 1994 E. coli O157:H7 declaration. USDA won that case. The authority exists. It just needs to be used.
The E. coli Precedent: A Blueprint That Works
The E. coli story is the best argument for declaring Salmonella an adulterant in chicken, and it comes from my own career. I have watched, over thirty years, what happens when the government takes a pathogen seriously enough to call it an adulterant. It happens in stages — and it works.
In 1994, Michael Taylor, then FSIS Administrator, had the courage to say that ground beef contaminated with E. coliO157:H7 is adulterated under the Federal Meat Inspection Act. The industry sued and lost. Testing programs followed. HACCP systems were overhauled. Cooking temperatures were revised — for restaurants, for consumers. Interventions were developed at slaughter. The whole system, over time, reoriented around the goal of keeping O157:H7 out of hamburger. By the mid-2000s, major E. coli outbreaks linked to ground beef had become rare.
Then, in 2009, Marler Clark petitioned FSIS again — this time to extend the adulterant designation to non-O157 Shiga toxin-producing E. coli strains. Non-O157 STECs were causing more illnesses than O157:H7 itself, and FSIS was doing nothing about them. We filed on behalf of three seriously injured victims and documented the science. FSIS resisted for years. Then, in 2012, they acted: six additional non-O157 strains — O26, O45, O103, O111, O121, and O145 — were declared adulterants. The same industry warnings about economic catastrophe followed. And the same thing happened: the system adapted, illnesses declined, and the sky did not fall.
The adulterant designation is not a magic wand. It does not instantly eliminate a pathogen. What it does is force the industry to treat the pathogen as something that must not be in the final product, rather than something to be managed and tolerated at some acceptable level of contamination. That shift in framing — from “how much is too much” to “none” — is what drives real reductions in illness.
The Chicken Industry’s Arguments Are Recycled — and Already Defeated
The National Chicken Council and its allies have raised the same objections to declaring Salmonella an adulterant that the beef industry raised about E. coli in 1994. I have heard them in regulatory comments, in press statements, and in courtroom arguments. Let me address them directly.
They say Salmonella is naturally occurring in chickens and therefore cannot be an “added substance” under the FMIA. The FMIA, however, has two adulteration standards: one for added substances and one for naturally occurring ones. The naturally occurring standard asks whether the substance, at the levels found, “ordinarily renders” the product injurious to health. When a Salmonella strain has caused documented outbreaks, hospitalizations, and deaths — when it is present in quantities sufficient to cause illness under normal handling and preparation conditions — the answer is yes. The USDA itself has repeatedly rejected the inherency argument, and its own court victory in the E. coli context was built on precisely this analysis.
They say consumers should just cook their chicken properly. But we already know that this approach has failed. The breaded stuffed raw chicken products that FSIS finally moved on in 2022 and 2023 — products like chicken Kiev and chicken cordon bleu — were linked to 14 outbreaks and approximately 200 illnesses since 1998, despite decades of labeling improvements and public education campaigns. Telling people to cook their food more carefully is not food safety policy. It is an excuse to do nothing.
They say the economics are prohibitive. They said that in 1994, too. As USDA Deputy Under Secretary for Food Safety Sandra Eskin noted, the scientific and economic arguments being made against a Salmonella adulterant designation today are “exactly the same language that was used in 1994 when FSIS declared O157 an adulterant.” The sky was going to fall. Meat prices were going to skyrocket. None of it happened. The National Chicken Council does not exist to protect public health. It exists to protect the poultry industry. Those are different missions.
A Baby Step Is Not Enough
I was pleased when FSIS, in August 2022, proposed to declare Salmonella an adulterant in breaded stuffed raw chicken products and then finalized the determination in April 2024. I said at the time: it is a baby step, but it is a step. I meant it. After years of inaction, movement matters.
And, the current Administration killed it.
But even if it had not, breaded stuffed chicken products represents a tiny fraction of the chicken Americans eat. They account for a small slice of the 1.35 million annual Salmonella illnesses.
The FSIS petition we filed in January 2020 was not an all-or-nothing demand for perfection. It was a carefully documented, serotype-specific request grounded in outbreak data and legal precedent. It named 31 Salmonella serotypes. FSIS, in its response, addressed three. The agency offered a “laundry list of reasons not to regulate,” in the words of our subsequent filings, without engaging the merits of the other 28 serotypes. That is not a response. That is a delay.
Five Salmonella serotypes alone account for 60 percent of illnesses linked to USDA-regulated products, according to FSIS’s own data. Five serotypes. Sixty percent of the harm. And FSIS has not declared a single one of them an adulterant in raw chicken.
The Faces Behind the Numbers
I do not litigate abstractions. I represent people. People like Amanda Craten, whose 18-month-old son was seriously injured and permanently disabled after eating Salmonella-contaminated chicken. Like Rick Schiller, Steven Romes, and the Porter family — the petitioners who put their names on our 2020 FSIS filing because they believe no one else should go through what they went through.
When I sued Jack in the Box in 1993 on behalf of Brianne Kiner, food safety was not a concept that most Americans associated with a fast-food hamburger. It is now. That change came because government, industry, advocates, and lawyers forced a reckoning with what was in the food. We need that same reckoning with chicken and Salmonella. It is long overdue.
The Ask Is Simple
FSIS has the legal authority to declare outbreak-linked Salmonella serotypes adulterants in chicken right now. It does not need new legislation. It does not need years of additional study. The science is there. The epidemiology is there. The legal precedent — upheld in federal court, extended by FSIS itself in 2012 — is there.
Anything that can poison or kill a person, like Salmonella in chicken, should be an adulterant. FSIS has the authority. It just needs to use it.
The E. coli story proves the model works. The Salmonella story proves that without it, nothing changes. One and a half million Americans get sick every year. Four hundred and twenty die.
The numbers have not moved in twenty years.
Get the S*%! out of chicken. FSIS — finish the job.
Bill Marler is the managing partner of Marler Clark, Inc., PS the nation’s leading food safety law firm. He began litigating foodborne illness cases in 1993 when he represented Brianne Kiner, the most seriously injured survivor of the Jack in the Box E. coli O157:H7 outbreak. Marler Clark filed petitions with USDA-FSIS to declare non-O157 STECs as adulterants (2009, granted 2012) and to declare 31 Salmonella outbreak serotypes as adulterants in meat and poultry (January 19, 2020, denied without prejudice). Marler is also the publisher of Food Safety News.
[1] The Federal Meat Inspection Act’s (FMIA's) definition of "adulterated" is broad and covers harmful substances, unsanitary conditions, diseased animals, and improper additives or packaging.
