USDA Skating on Slippery Slope With Adulteration Provision
by Gary Jay Kushner
Lawyers often talk about the slippery slope of the law-the dangers that lie ahead when new law is made by a court's decision. But the courts are not the only players in the public policy arena that issue proclamations that-at times inadvertently-begin an uncontrollable, downhill slide with ramifications that may not have been considered or anticipated.
And for what some cynics believe to be primarily a public relations objective, USDA might have just begun such a process.
At the recent AMI Convention and Innovation Showcase in San Francisco, FSIS Administrator Michael R. Taylor announced that USDA will consider any raw ground beef found to be contaminated with E. coli 0157:H7 to be adulterated under the Federal Meat Inspection Act.
When USDA discovers a lot of E. coli-tainted ground beef, it will require the product's destruction or reprocessing to ensure destruction of the organism, Taylor explained.
In addition, USDA expects all companies encountering contaminated lots to take the same steps, and to notify the department of their findings. This expectation is not limited to inspected establishments, it also includes retail and wholesale operations.
USDA will also test raw ground beef in plants, as well as in the marketplace, to determine the extent of E. coli contamination.
Currently, a meat or poultry product is adulterated if it bears or contains any added poisonous or deleterious substance that could cause injury.
But the law also says that if a substance is not an added substance, the product will not be considered adulterated if the quantity of the substance does not ordinarily cause injury.
This provision establishes two different standards for determining whether a product is adulterated: one standard for added substances, and another for naturally occurring or other substances that are not added.
It is an important distinction. If a substance is added, product is adulterated if the presence of the substance could cause injury.
In contrast, if a substance is not added, its presence will not make the product adulterated unless it ordinarily poses a health risk. This is a more difficult standard of proof to meet.
USDA's current position is that the presence of food-borne pathogens on raw meat and poultry products do not render them adulterated.
In fact, USDA was sued several years ago by a consumer advocacy group, which argued that meat and poultry should not be identified as "Inspected and Passed," and should be required to bear a warning label because of the presence of salmonella on raw products.
USDA won the lawsuit by asserting that consumers know that raw meat and poultry products are not sterile and, if handled improperly, could cause illness.
Ironically, Taylor repeated this view during his speech, stating that consumers "know very well that the safety of their food is not an absolute."
Taylor said the presence of less than 100 E. coli organisms is enough to cause serious illness and even death, and that USDA will continue to enforce a strict zero-tolerance policy so that the presence of any E. coli renders the product adulterated.
Is his argument that E coli is not naturally found in muscle tissue, so it is an added substance subject to the lesser adulteration standard? That would be a creative application of existing legal precedent.
USDA's new policy represents a significant departure from its historical direction.
As such, it is on a shaky legal foundation. If USDA successfully establishes the principle that a raw product with a food-borne pathogen is adulterated, other pathogens could also become the subject of scrutiny.
Taylor's assertion that ground beef is unique in the fact that it is often consumed in rare or even raw form, not properly cooked to destroy pathogens, might have merit.
But to draw the conclusion that all ground beef bearing any level of E coli is adulterated, no matter how the product is handled, is arbitrary.
How USDA's new policy will evolve is still unclear. What is clear, however, is that the department's novel interpretation of the law's adulteration provisions might well have opened both the department-and the meat industry-to burdens that have not been considered.
If USDA's new policy withstands challenge, it could well find itself on the proverbial slippery slope.
Mark. D. Dopp, an attorney specializing in food and agricultural law, contributed to this column.