Loyola University Chicago School of Law, JD 2023
In October 2021, ProPublica published an article about a rare and virulent strain of salmonella infantis outbreak that occurred in May 2018, afflicting at least a dozen people across the country. Many who reported being sick reported that they ate chicken, and federal food safety inspectors found the infantis strain in packaged chicken breasts, sausages, and wings during routine inspections at poultry plants.
Those afflicted by the infantis strain were landing in the hospital with symptoms including stomach pain, uncontrollable diarrhea, and violent vomiting. The infantis strain is also multi-drug resistant, rendering nearly many routine antibiotics useless to treat the patients’ food poisoning. Alarmingly, federal regulators did not act to recall the contaminated poultry and compel changes at the outbreak’s origin source—instead, the Centers for Disease Control and Prevention (CDC) closed the investigation while people continued to get sick and said nothing to consumers while supermarkets and restaurants continued to sell tainted poultry.
The 2018 infantis outbreak is not a novel occurrence— reports of poultry and meat contamination resulting in severe illness have been persistent through the last two decades, suggesting that current practices concerning poultry contamination are largely ineffective in promoting public safety and disease prevention.
Federal regulatory authority over… chicken?
In the United States, the US Department of Agriculture (USDA) manages regulation of food processing and distribution, and acts through the Food Safety and Inspection Services (FSIS) to ensure that meat and poultry supplies are wholesome, safe and properly labeled. However, this regulatory power does not allow FSIS to control outbreaks on poultry farms or suspend operations despite evidence of recurrent contaminations. Instead, the agency can conduct a general review of the plant, but critics argue the process rarely leads to a shutdown of problem sites. In fact, FSIS still operates its food safety provisions through the Meat Inspection Act of 1906, which prohibited the sale of adulterated or misbranded livestock and derived food products, and created standards for sanitary slaughter and processing of livestock. This 1906 legislation, however, did not account for invisible foodborne pathogens like salmonella or E. coli, which were not linked to meat or poultry consumption at the time.
Following an outbreak of E. coli in 1993, the USDA attempted to extend its regulatory authority after 73 Jack in the Box locations were linked to the poisoning of over 700 people across four states, causing four deaths. As a result of the E.coli outbreak, FSIS declared E.coli (strain O157:H7) an adulterant when found in processed meat, thus requiring meat packers to perform additional food safety testing. However, the response by the meat industry was to sue the USDA, arguing that the USDA lacked authority to determine that E.coli was an adulterant, because E.coli naturally occurs in meat and poultry products, and further argued that the additional sampling program was an arbitrary use of its power. Ultimately, the FSIS’ new contaminant regulation was short lived after a 2001ruling found that the Federal Meat Inspection Act cannot be used to regulate characteristics of the raw materials that exist before the meat is packed, prepared or held. The court further ruled that salmonella cross contamination within a plant does not make the meat unsafe because the bacteria naturally occurs in a “substantial proportion” of meat and can be destroyed by proper cooking and handling.
The CDC estimates that 48 million people every year become sick from foodborne illness, of which 128,000 are hospitalized, and 3,000 die. Yet, neither the CDC nor FSIS can extend their regulatory authority as far as shutting down poultry plants posing a recurrent risk, despite the CDC labeling foodborne illness an epidemic. In fact, FSIS’ current authority only extends as far as telling companies to issue a voluntary recall of tainted food products, but that too only occurs when ‘smoking gun’ evidence exists. Specifically, regulators must find a patient with an unopened package of meat which tests positive for the same strain making people afflicted with food poisoning sick to have a concrete case.
FSIS’ new efforts
As of October 2021, the USDA announced a new initiative to control foodborne pathogens, particularly salmonella outbreaks in poultry to reduce illness transmission to consumers related to the consumption of processed meat products. Specifically, the agency is taking a three prong approach, starting with consulting the National Advisory Committee for Microbiological Criteria in Foods (NACMCF), then moving on to stakeholder roundtables and pilot projects in poultry processing centers. However, ProPublica also reported that previous roundtables conducted in October 2017 yielded no meaningful results because of meat industry stakeholders’ concern about making the regulatory reforms palatable to the industry, namely how heightened restrictions could inaccurately connect companies to contamination outbreaks. For now, consumers will need to wait and see whether the new regulatory efforts will yield meaningful results for food safety, or whether FSIS and the USDA will maintain the existing status quo.