Personal Injury Law

So, why is E. coli O157:H7 considered an adulterant, but other shiga-toxin E. coli not? Why is Salmonella not considered an adulterant, even when the Salmonella is antibiotic-resistant Salmonella Newport?

By Bill Marler, Esq.

Personally, as I said to the Los Angeles Times a few days ago, 'I think that anything that can poison or kill a person should be listed as an adulterant' [in food].

According to the CDC, E. coli O157:H7 is the source of an estimated 73,000 illnesses, 2,000 hospitalizations, and 60 deaths in the United States every year.  Correctly so, USDA/FSIS has considered this nasty pathogen an adulterant on and in beef (at least hamburger) since 1994.

However, despite causing serious injury and death, other shiga-toxin producing E. coli, such as E. coli O111 and E. coli O21:H19 have not.  In fact, we have found pathogenic E. coli in retail hamburger in private lab tests - so, we know it is there and USDA/FSIS does too.  Ignoring this makes no sense.

Ignoring Salmonella in meat also makes little, if any, sense.   Even after a Court's twisted opinion in Supreme Beef v. USDA, where it found Salmonella to be 'not an adulterant per se, meaning its presence does not require the USDA to refuse to stamp such meat 'inspected and passed," our government's failure to confront the reality of Salmonella, especially, antibiotic-resistant Salmonella, is inexcusable.  The Wisconsin Supreme Court in Kriefall v Excel called it as it saw it:

'The E. coli strain that killed Brianna and made the others sick is a 'deleterious substance which may render [meat] injurious to health.' There is no dispute about this. Thus, under the first part of 21 U.S.C. § 601(m)(1), meat that either 'bears or contains' E. coli O157:H7 (the 'deleterious substance') is 'adulterated.' That E. coli O157:H7 contamination can be rendered non-'injurious to health' by cooking thoroughly, as discussed below, does not negate this; Congress used the phrase 'may render,' not 'in every circumstance renders.' Moreover, if the E. coli bacteria is not considered to be 'an added substance,' because it comes from some of the animals themselves and is not either applied or supplied during the slaughtering process (although we do not decide this), it cannot be said that the E. coli strain 'does not ordinarily render [the meat on or in which it appears] injurious to health.' Accordingly, meat contaminated by E. coli O157:H7 is also 'adulterated' under the second part of § 601(m)(1).

Now, why would Salmonella be different?

According to the CDC, it is estimated that 1.4 million cases of salmonellosis occur each year in the U.S.  95 percent of those cases are related to foodborne causes.  Approximately 220 of each 1000 cases result in hospitalization and eight of every 1000 cases result in death.  About 500 to 1,000 deaths - 31 percent of all food-related deaths - are caused by Salmonella infections each year.

Just in the last week, the reality (again) of antibiotic-resistant Salmonella Newport has surfaced (again), this time sickening dozens so far in several states, and leading to the recall of nearly a million pounds of tainted hamburger.  This follows a recall of nearly a half a million pounds of Salmonella-tainted burger in Colorado after sickening several a month ago.

Of course, this is not the first time that antibiotic-resistant Salmonella has hitched a ride in hamburger – there were illnesses reported by the CDC in 2002 and a WARNING issued by FSIS in 2007. The New Hampshire Department of Health and Human Services has urged a strategy to combat multidrug-resistant (MDR) Salmonella in ground beef.  The CDC, through NARMS has continued to raise concerns about the over-use of antibiotics in our food supply.  And, there is clearly no question that these bugs are in the cows we get our milk and the meat that we eat.

So, where do we stand with the existing law on adulteration?  Here is the law:

21 U.S.C. § 601(m)(4) - SUBCHAPTER I - INSPECTION REQUIREMENTS; ADULTERATION AND MISBRANDING - CHAPTER 12 - MEAT INSPECTION - TITLE 21—FOOD AND DRUGS

(m) The term 'adulterated' shall apply to any carcass, part thereof, meat or meat food product under one or more of the following circumstances:

(1) 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) if it consists in whole or in part of any filthy, putrid, or decomposed substance or is for any other reason unsound, unhealthful, unwholesome, or otherwise unfit for human food;

(4) if it has been prepared, packed, or held under insanitary conditions whereby it may have become contaminated with filth, or whereby it may have been rendered injurious to health; …

Hmmm, it is hard to read the above and not think that the words in BOLD equate to all E. coli and Salmonella (frankly, all pathogens in food).  I know, I am just a lawyer, but don't ya think that when food with animal feces (and a dash of E. coli O157:H7) in it is considered an adulterant, that other animal feces (with dashes of other pathogens) in them, should be considered adulterated too?  But, hey, that is just me.

It would be interesting, and perhaps entertaining, to have House and Senate hearings focusing on what should and should not be considered adulterants in our food.  I can see panels of scientists from various fileds, FDA, USDA and FSIS officials, beef Industry represenatatives and consumers disscussing this.  Readers, what are your thoughts?

Full post as published by Marler Blog on August 08, 2009 (boomark / email).