Josh Long

The Food Law Blogger explores food litigation, including cases involving foodborne illness and labeling disputes, as well as key regulatory developments at the U.S. Food and Drug Administration and U.S. Department of Agriculture. Ping Josh Long with story ideas at jlong@vpico.com.

Lawmakers Move to Expand USDA’s Authority to Recall Contaminated Food
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Two Democrats in the U.S. House of Representatives this week introduced legislation that would require the U.S. Department of Agriculture (USDA) to recall egg products, meat or poultry that are contaminated with bacteria linked to “serious illness or death."

The Pathogens Reduction and Testing Reform Act of 2014 also would require a recall if the food products contained a pathogen such as Salmonella or Campylobacter that was resistant to at least two antibiotics that are considered “critically important" for “human medicine" based on the World Health Organization’s list of Critically Important Antimicrobials.

According to USDA’s interpretation of the law, the agency only has authority to issue a recall if the food is considered “adulterated." Salmonella, a common cause of foodborne illness, is not considered an adulterant, prompting the Center for Science in the Public Interest (CSPI) to petition USDA to classify it as such and even sue the agency for failing to respond to the request in a timely manner. 

"We appreciate the Congresswomen's ongoing efforts on our shared goal of ensuring food-safety standards continue to be stringent, effective, and constantly improving," said a spokesperson for the Food Safety and Inspection Service (FSIS), an agency within USDA. "FSIS will continue to work aggressively in preventing foodborne illness, including implementing the first ever performance standards for Salmonella in chicken parts and ground poultry later this year."

Commenting on the legislation in a blog, food-safety lawyer Bill Marler said several strains of E. coli have been declared adulterants, as well as Salmonella and Listeria monocytogenes in ready-to-eat products; however, USDA hasn’t declared Salmonella an adulterant in such cases as raw poultry, he pointed out.

USDA would be required under the legislation to establish protocols and procedures to test for contaminants.  

“The USDA has failed to recall meat contaminated with antibiotic-resistant pathogens because they do not believe they have the legal authority to do so. This bill would ensure there is no confusion," said Reps. Rosa DeLauro of Connecticut and Louise Slaughter of New York, who introduced the legislation on June 25. “We urge Congress to pass this legislation before more Americans are sickened by contaminated meat, poultry, or egg products. We need federal agencies that will protect public health, not bend to the threats of deep-pocketed food producers seeking to escape regulation."

A number of consumer advocacy groups expressed support for the bill, including CSPI, Food & Water Watch, and the Consumer Federation of America.

“When E. coli O157:H7 sickened hundreds of consumers in the 1990s, USDA decided that we cannot tolerate E. coli in ground beef. Yet we are still allowing Salmonella in chicken, even after an outbreak that has sickened over 600 people," said Chris Waldrop, director of the Food Policy Institute at Consumer Federation of America. “This legislation would change that and provide USDA with clear authority to protect consumers from contaminated food."

At least one trade organization representing the poultry industry disagrees. The National Chicken Council argued the legislation would not help FSIS in its investigation of foodborne illness.

"Rather, the bill would redefine long-agreed upon standards for determining whether product is adulterated to include ambiguous and scientifically unsound criteria," said Ashley Peterson, National Chicken Council vice president of scientific and regulatory affairs. "Under the bill, certain microorganisms sometimes would or sometimes would not be considered adulterants, depending on whether they fit vague, undefined criteria that have nothing to do with actual public health risks. The bill would waste valuable public resources chasing constantly changing microorganism strains, and processors would never know what standards they are supposed to meet."

Peterson added "the industry cooperates closely with FSIS before and during a recall situation, and more often than not, a company will initiate a recall prior to any involvement by FSIS."

But food-safety advocates like CSPI argue FSIS should do more to protect the public from foodborne illness. Last month, CSPI alleged in a lawsuit that the agency has been unlawfully sitting on a petition that requests it classify certain strains of Salmonella as an adulterant. FSIS has declined to comment. In the wake of the May 25, 2011 petition, two separate outbreaks of antibiotic-resistant Salmonella from 2012 to 2014 were linked to Foster Farms chicken, leaving more than 650 individuals sick, CSPI noted.

 

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