USDA does not characterize Salmonella as an "adulterant."
"You knowingly can ship Salmonella-contaminated meat out the door," said Bill Marler, a renowned food-safety attorney in Seattle. "And the government can't and won't do anything about it."
By contrast, USDA-regulated products contaminated with E. coli 0157: H7, for instance, cannot be sold to consumers, Marler said.
The first Foster Farms outbreak that began last year led to 33 hospitalizations, with the Centers for Disease Control and Prevention (CDC) reporting that 134 people in 13 states fell ill from Salmonella Heidelberg. In the current outbreak, CDC has reported 338 illnesses in 20 states and Puerto Rico.
The number of Americans who have fallen ill from Foster Farms chicken is likely a great deal higher. Citing the CDC, Marler noted in his blog that every documented person who tests positive for Salmonella correlates to 38.5 individuals who also have become sick but are not counted. He concluded Foster Farms chicken likely has sickened more than 18,000 people in 2012 and 2013.
The current Foster Farms outbreak is particularly alarming to food-safety advocates because several strains of Salmonella are resistant to antibiotics, leading to prolonged illnesses and making it more challenging for doctors to treat patients.
"Right now Foster Farms has been pumping out antibiotic-resistant Salmonella chicken for a year. You are looking at an outbreak that sickened some 10,000 to 12,000 people and that's just not acceptable," Marler told Food Product Design.
Marler said USDA should at least classify as an adulterant certain strands of antibiotic-resistant Salmonella.
"And I think they are failing their public health mission by doing anything but that," he said.
The non-profit Center for Science in the Public Interest (CSPI) petitioned USDA's Food Safety and Inspection Service (FSIS) in 2011 to classify certain antibiotic-resistant strains of Salmonella found in ground meat and ground poultry as an adulterant. FSIS has yet to rule on the petition, and a spokesperson for the agency said she could not forecast when the agency would respond.
"Scientific and medical research demonstrates that contamination of meat and poultry by ABR [antibiotic-resistant] strains of Salmonella poses grave public health dangers that are comparable to those posed by E.coli 0157:H7 in 1994," David Plunkett and Sarah Klein of CSPI wrote.
CSPI cited deaths, recalls and outbreaks associated with antibiotic-resistant strains of Salmonella.
"While it is always the goal, a zero-tolerance level on any raw agricultural product is not feasible. And passing a law or regulation will not make naturally occurring bacteria go away," said Tom Super, a spokesman for the National Chicken Council, the trade association representing the U.S. chicken industry. "That’s because all raw agricultural products—whether it is beans, beef, peppers or poultry—could contain bacteria that might make someone sick if improperly handled or cooked."
The poultry industry maintains ample food-safety standards are in place to protect consumers, such as the Hazard Analysis Critical Control Point (HACCP) plans that are intended to identify food-safety risks. Super and others also point out consumers can kill Salmonella and other pathogens by properly cooking chicken. Health officials say poultry should be cooked at 165º Fahrenheit.
Some consumer-safety advocates aren't thrilled that USDA is allowing Foster Farms to continue selling chicken despite a second outbreak of Salmonella in recent times.
According to Tony Corbo of the non-profit Food & Watch Water, Foster Farms is a powerful company that exerts political influence.
"They have a lot of political sway. It's like the Tysons of California. This is a big operation. They have 12,000 employees," said Corbo, who is senior lobbyist for the food campaign at Food & Water Watch. Foster Farms "owns everything from the hatcheries to the grow houses to the processing facilities. It's quite a company, but they have a lot of political sway so I have a feeling that are calling in all their political chicks."
USDA's reticence to close plants that report high levels of Salmonella may be partly due to court decisions. Marc Sanchez, a food lawyer in Atlanta, cites "longstanding case law holding the USDA lacks the authority to shut down a plant for repeated Salmonella tests."
USDA may believe classifying Salmonella as an adulterant would conflict with previous court decisions dating back as far as 1974 when a federal appeals court in Washington, D.C. found that "the presence of salmonellae in meat does not constitute adulteration".
Earlier this month, Foster Farms faced the prospect of having to close operations. In an Oct. 7 letter to Foster Farms, USDA threatened to withhold inspectors, citing food-safety concerns.
After Foster Farms responded to the letter, USDA announced it would allow the business to continue operating while stepping up sampling over the next three months and verifying Foster Farms would continue to implement changes to its slaughter and processing.
In a note to consumers on Foster Farms' website, the company's president Ron Foster announced the company has installed six new processes in its California facilities to lower the rate of Salmonella.
"We are breaking the chain of Salmonella at every stage of production—from the ranch where the birds live, to the plant where the chicken is processed, to the product packaging line. We are implementing these processes in all of our facilities, including our plant in Farmerville, La," Foster states. "With these measures in place, we are confident that Foster Farms will come out stronger and with the safest, cleanest and most vigilant poultry plants in the country. We are holding ourselves to a higher standard."
Dr. Scott Hurd, Ph.D., former Deputy Undersecretary for Food Safety at USDA, cited "multiple layers of protections" to ensure that chicken is safe, including inspections to verify chickens aren't contaminated with feces.
USDA regulations currently allow a facility to have Salmonella in 7.5% of whole chickens that are tested, said Hurd, who is associate professor and director of graduate education with the College of Veterinary Medicine at Iowa State University. That figure is down from 20% in 2010. According to the National Chicken Council, for calendar year 2012, an average of 4.3% of chicken carcasses at processing plants across the country tested positive for Salmonella.
"USDA found that really Foster Farms had about the same level of positive parts as all the other poultry plants in the country It was no higher than anybody else," Hurd said.
However, Foster Farms chicken had higher levels of Salmonella when inspectors checked chicken parts; but that's common, Hurd said. Once parts, such as thighs and legs, are disassembled, "we tend to find higher levels of Salmonella across the board, across the country in all plants," he noted.
If Salmonella was treated as an adulterant in chicken, any birds that were found tainted with the pathogen could not be sold, he said.
Such a classification places "the entire onus for food safety on the plant and expects the plant to do what I believe for Salmonella is a virtualy impossible task," Hurd said. "It then gives the consumer no personal responsibility to handle their product correctly."
But Corbo of Food & Watch said the Scandinavians have figured out a way to eliminate Salmonella by putting the onus on the farmer.
"They cannot sell their chickens to a slaughter facility in Sweden, for example, if they test positive for Salmonella," Corbo said. "They have been able to control Salmonella even before the birds get to slaughter."