An impressive sounding name — Physicians Committee for Responsible Medicine — is not likely to make up for the advocacy group’s lack of scientific evidence for a new petition it has filed with USDA’s Food Safety and Inspection Service (FSIS).

A statement from the FSIS said the Physicians Committee request for testing meat and poultry for the presence of SARS-CoV-2 is being considered as a rulemaking petition without providing any scientific studies or other supportive information to show that it can be transmitted by food or food packaging. SARS-CoV-2 is a virus that causes COVID-19.

The five-page “emergency petition” was filed by the Washington D..C.-based group that advocates for plant-based food and animal rights. Its members were recently marching in the streets to demand the closing of meat plants.

In the petition, the Physicians Committee contends meat and poultry might contain coronavirus because some employees involved in the production were infected

In addition to asking FSIS to require testing of meat and poultry for the presence of SARS-CoV-2 “and immediately make the findings publicly available,” the petition demands that meat and poultry facilities weekly report “the number of workers or worker family members with presumptive or confirmed SARS-CoV-2 and those dying of COVID-19.”

It wants USDA to weekly report the same information for meat and poultry inspectors. Finally, it wants warning labels on meat and poultry, saying the products have not “been certified as virus-free” It also wants the warnings placed in retail meat and check-out counters.

The Physicians Committee claims that since the COVID-19 pandemic got underway, 14,259 employees of meat and poultry plants were infected with the virus and 59 have died. If true, the number of infections would amount to less than 8 percent of the 170,000 to 180,000 employees that normally staff these plants, and a fatality rate of 0.4 percent of those infected.

The World Health Organization (WHO) and the U.S. Food and Drug Administration (FDA) say testing meat and poultry is not necessary because food has not been implicated in the transmission of COVID-19.
The WHO specifically says “testing of food or food surfaces for this virus is not recommended.”

The non-profit Physicians Committee previously petitioned FSIS, asking for feces to be declared an adulterant in meat and poultry. The organization has come in for criticism for its financial support from People for the Ethical Treatment of Animals, also known as PETA. It claims 12,000 physicians among 150,000 members in the United States.

The activist group also campaigns against the nation’s medical schools with live animal laboratories and for plant-based diets in schools that avoid the use of dairy products. It also supported the Chemical Safety for the 21st Century Act, signed into law by President Barack Obama on June 22, 2015.

It is currently lobbying the U.S. Dietary Guidelines Advisory Committee to “ditch” dairy as a food group.

The group’s most recent petition asking FSIS to declare and regulate feces as an adulterant was filed on March 14, 2013, but was largely ignored by the agency until June 21, 2019, when it was denied.

“We have decided to deny your petition because we disagree with the petition’s underlying assumption that meat and poultry products bearing the mark of inspection are likely to be contaminated with feces,” said the FSIS ruling.

The agency said existing regulations and policies comprehensively address the disposition of adulterated meat and poultry products from various sources, including carcasses with fecal contamination. It said fecal contamination is a “visible food safety defect that can be removed by trimming or reprocessing” under existing regulations.

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A follow-up study on Salmonella prevalence among dairy cattle on a Swedish Island has found much lower levels.

In late 2019, the National Veterinary Institute (SVA) and Swedish Board of Agriculture (Jordbruksverket), did an anonymous national milk tank survey for antibodies against Salmonella.

Milk samples from all the dairy herds tested showed a generally low prevalence of Salmonella, except for Gotland and Öland. Gotland saw a change from 5.5 percent positive tank milk samples in 2013 to almost 22 percent in October 2019.

Lower levels detected
The follow-up study in these regions in the spring revealed a low prevalence in Gotland as antibodies to Salmonella were detected in only 3 percent of the dairy herds. In total, milk tank samples from 263 herds were examined — 132 on Gotland and 131 on Öland.

Possible explanations for the large variation in Gotland could be a temporary introduction of infection that has now stopped circulating or it is a type of Salmonella with greater seasonal variation than is normally seen for Salmonella Dublin.

A high proportion of positive milk samples from Öland was established before and is caused by a recognized higher occurrence of Salmonella Dublin in the region. However, the area still saw the proportion of positive tank milk samples decreasing, from 24 percent in late 2019 to 16 percent in the spring.

The work will help create the basis for an assessment of seasonal differences and to observe developments in Gotland. In Öland, it can monitor impact of ongoing efforts against Salmonella in the region, if the screening is regularly repeated in future.

The National Veterinary Institute has recommended continuing follow-up tank milk screenings at six month intervals, beginning in September or October 2020.

Official controls and wild boar meat
Meanwhile, the Swedish government has agreed to a request from the country’s food agency (Livsmedelsverket) for more time to look at food control across the country.

The assignment must be submitted no later than May 31 and a final report is due by Dec. 31, 2022.

In 2017, Livsmedelsverket was commissioned by the government to evaluate work on developing food controls and make them more equal across the country. A plan was presented to the government in April 2017 and a partial report submitted in May 2018. According to the brief, the authority was due to file the final report to the government in May 2020. To highlight the impact of efforts to improve food controls in the final report, Livsmedelsverket requested the extension.

Livsmedelsverket is also one of four authorities helping more wild boar meat reach consumers.

Under current legislation, all wild boars must go through a game management facility before the meat gets to the consumer. Only a small part, about 15 percent, of meat from wild boars shot in Sweden reaches the market.

Together with SVA, Jordbruksverket and local authorities in Kronoberg County, the agencies will prepare proposals for new legislation, develop a register for hunters who want to sell meat themselves and investigate creation of a digital system for traceability.

Livsmedelsverket will simplify the rules regarding slaughter and sales without compromising the requirements on food hygiene or safety around Trichinella.

To increase demand, there are also plans for funding investments in marketing and to disseminate information on the potential of wild boar meat to the public.

Work is expected to lead to increased production opportunities for Swedish food companies and make it easier for consumers to get wild boar meat in stores.

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Belgium has recorded the highest number of foodborne outbreaks in a year since recordkeeping began.

This past year, 571 outbreaks were reported to the National Reference Laboratory for Foodborne Outbreaks (LNR-TIA). A total of 2,457 people fell ill and 28 were hospitalized.

Data on outbreaks have been collected by Sciensano, the Belgian Institute for Health, since 1999. From 1999 to 2010, 39 to 116 outbreaks were reported each year, but this number doubled in 2011 to 281. There were an average of 336 outbreaks per year between 2011 and 2016. Almost 400 outbreaks were recorded in 2018.

The number of patients varied from 531 to 2,457 between 1999 and 2019, with a peak of more than 4,000 in 2010 following a water-related outbreak. Despite the amount of patients going up, the hospitalizations figure has gone down, indicating milder outbreaks are being detected.

Unknowns in most outbreaks
Salmonella was the most commonly reported agent causing an outbreak of foodborne illness in 2019 and made at least 216 people sick. Norovirus was second and made at least 41 people sick. Clostridium perfringens, Listeria monocytogenes, Campylobacter, Bacillus cereus and E. coli are among other germs identified.

No samples were received in 1,500 of the 2,457 illnesses and the agent was unknown for 600 cases. The cause behind 19 of the hospitalizations was also unknown. An unidentified agent caused 85 of the 571 outbreaks and no sample was received for 469 of them.

The report also covered Belgian infections as part of multi-country outbreaks such as Salmonella Poona linked to infant formula made at the Industrias Lacteas Asturianas SA (ILAS) factory in Anleo, Spain, and marketed by Sodilac under the Modilac brand, and Listeria from meat made by Offerman, a Ter Beke subsidiary in the Netherlands.

More than two thirds of the 571 outbreaks were caused by mixed foods. Meat products such as beef, pork, mutton and poultry were responsible for almost 13 percent of outbreaks. Fish products and crustaceans, shellfish and mollusks caused around 4 percent each of outbreaks.

The majority of outbreaks occurred in commercial establishments, such as restaurants, cafés or hotels and fast food chains or takeaways. Food delivered by catering companies to the workplace, establishments or at events was responsible for 0.9 percent, 1.2 percent and 0.7 percent of outbreaks, respectively. The number of incidents occurring at home was 15.6 percent.

Salmonella, Campylobacter, Listeria and E. coli
Five outbreaks of Salmonella were reported in 2019, and for two there was strong evidence contaminated food was the cause of infection. A total of 216 patients were reported and six had to be hospitalized.

One of these incidents led to 203 infections. The outbreak at a Belgian school was likely caused by eggs used to make a tartar sauce. Salmonella Enteritidis 3-12-5-5-1 was detected in human cases and food. Eggs came from a Spanish farm. France also identified 13 cases with isolation dates between May and October 2019.

Since 2005, Campylobacter has been the most reported intestinal pathogen and 7,051 cases were recorded in 2019. One outbreak involved two people with ice cream as the possible cause but food samples were negative.

In 2019, 67 listeriosis cases were reported compared with 74 in 2018. This past year Listeria monocytogenes was responsible for two outbreaks involving four people, and half of them had to be hospitalized. In the first outbreak, Listeria monocytogenes 1/2a was isolated from beef. In the second event, cheese was reported as a potential source of infection, but the pathogen was only detected in patients.

One outbreak of Enterohemorrhagic E. coli (EHEC), a subgroup of Shiga-toxin producing E. coli (STEC), was recorded with three cases and one person needed hospital treatment. A child developed hemolytic uremic syndrome (HUS). E. coli O26 stx2a eae was detected in the other child. The food source was likely raw beef consumed as carpaccio.

Bacillus cereus, norovirus, Clostridium perfringens and histamine
Arcobacter butzleri, considered an emerging pathogen in the food chain, was isolated from one of 40 sick wedding guests but not found in chicken legs, which were the suspected source of illness.

An outbreak of Bacillus cereus was associated with prepared spaghetti. In total, four people fell ill mainly suffering from nausea and vomiting. Two outbreaks were caused by Clostridium perfringens with 36 patients. The causative agent was detected in human samples but not in suspected foods.

In 2019, there were three norovirus outbreaks with detection of the virus in food and/or samples from patients and/or people who prepared the food, transmission having probably occurred via food.

One outbreak affected 26 people after eating sushi and oysters at a staff party. Norovirus GII was detected in the remaining oysters. In the other two incidents, involving 21 people, norovirus was only detected in patients or those who prepared the food.

Histamine was the source of one outbreak affecting nine people. Histamine concentrations of 52.9 and 80.5 milligrams per kilogram were detected in tuna leftovers.

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Blue Bell’s former chief executive has waived physical appearance for his initial appearance in federal court on felony charges stemming from a 2015 Listeria outbreak.

The defendant, Paul Kruse, has posted bail and accepted conditions of his continued freedom.

U.S. Magistrate Judge Mark Lane cited the current coronavirus pandemic for accepting the waiver of a physical appearance in the U.S. District Court for the Western District of Texas.  

“COVID-19 poses a potential health risk to the court, the court’s staff, Mr. Kruse, counsel for Mr. Kruse, counsel for the United States, and the general public,” Lane ruled. “This risk is mitigated by limiting in-person interactions and appearances when possible. All parties have agreed that the initial appearance can be accomplished either telephonically or virtually and that Mr. Kruse’s physical appearance at the initial appearance is unnecessary.”

Neither the bail amount nor the conditions of Kruse’s release have yet been made public. He was charged May 1 with federal felonies of conspiracy and wire fraud. The charges are related to the 2015 multi-state outbreak of Listeria associated with Blue Bell Creamery’s ice cream production.

Kruse retains his rights to counsel and to a preliminary hearing. He has engaged defense attorneys Chris Flood of Houston and John D. Cline of San Francisco. In addition to his career as an ice cream maker, Kruse is also an attorney.

According to his congressional testimony in 2014, Cline is a critic of “the practical effect of our bloated federal criminal code.” He says it causes the tendency of federal prosecutors to “overcharge.”

When Kruse was charged, the Department of Justice (DOJ) said Blue Bell as a company was separately pleading guilty to two misdemeanor charges of shipping contaminated products across state lines. In conjunction with the plea, Blue Bell agreed to pay $19.33 million to settle with the U.S. government.

As an individual, Kruse is accused of the federal felony charges of conspiracy with other “known and unknown” Blue Bell employees and six counts of wire fraud regarding email statements others made during the outbreak crisis.

Each count for which he might be convicted puts Krause in jeopardy of 20 years in prison and a $250,000 fine.

The DOJ has sent two Washington D.C.-based attorneys to Austin to prosecute Kruse. 

Matthew J. Lash and Patrick Hearn are both listed as lead attorneys for the government.

Hearn’s appearance in Austin is no surprise. It was widely reported when the federal investigation got underway in 2015, that Hearn was in the lead from the DOJ’s Consumer Protection Branch.

He was a key member of the 2014 federal prosecution team that sent Stewart Parnell and other managers of the now-defunct Peanut Corporation of America to prison for 62 years. In addition to that trial work, the government has won all appeals to date in the PCA criminal case with help from Hearn’s bat.

The 2015 Blue Bell outbreak involved illnesses of 10 people in four states. They all required hospitalization and three died.

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Whole genome sequencing helped identify concurrent outbreaks of a rare Salmonella serotype in Germany in 2017, according to a study.

Whole genome sequencing (WGS) of Salmonella Kottbus isolates revealed three co-circulating clusters in the country between June and August 2017. A total of 69 infections were identified in 13 German states. Median age was 55 years with a range of 0 to 91 and 55 percent were female. Salmonella Kottbus is a rare serotype with usually three to four reports of patients per month.

Researchers investigated the outbreak with WGS and a case-control study. Findings were published in the journal Epidemiology and Infection. Forty-six isolates from 69 cases were subtyped. Three WGS clusters were identified as cluster 1, cluster 2 and cluster 3. Compared to controls, cluster 1 cases more frequently ate raw smoked ham bought at a supermarket chain. All four cluster 2 cases interviewed had eaten quail eggs.

Large outbreak linked to ham
Thirty-six patients belonged to the largest outbreak cluster, called cluster 1. Patients were also identified in Denmark and the U.K. In Germany, this strain had not previously been detected in humans.

Of all interviewed confirmed patients, 82 percent of infections could be explained by raw smoked ham. A brand of ham bought from one supermarket chain was identified by nine of 10 cases asked.

One patient from the U.K. with symptom onset in May 2017 without travel history had handled and consumed raw pork. Of four patients from Denmark with symptom onset in April to September, three were interviewed and had bought food in German supermarkets in Denmark. Two travelled to Germany in the week before symptom onset and one consumed ham bought in Northern Germany from the supermarket chain.

The matching isolate from pork for animal feed in April 2017 before the outbreak supports ham as the likely vehicle, according to the report, even if a link between the isolate and ham could not be established. Salmonella Kottbus was not detected in food samples, but they were collected late during the outbreak investigation. By September 2017, the number of reports fell to the usual number.

The ham producer presented negative microbiological results from internal controls at the beginning of August 2017.

Small outbreak traced to quail eggs
Researchers said it was possible that other pork products, especially if consumed raw, contributed to the outbreak. Two of the three cases with no or uncertain ham consumption in the case-control study had eaten raw ground meat, potentially containing pork.

Although consumption of raw minced meat may explain additional cases and was more commonly reported by cases than controls in the case-control study, it was not statistically significant and the exposure only explained 29 percent of cases. As both products came from the same food source, it remains unclear if raw minced meat additionally contributed to the cluster 1 outbreak.

Quail eggs were the likely source for the smaller second cluster of five cases, called cluster 2. All four people interviewed reported having them. This was disproportionately high, especially as only 1 percent of German adults in a survey in 2017 reported quail egg consumption in the past week.

Two cases reported eating the eggs raw or soft-boiled. Quail eggs were bought at two different supermarket chains but a common origin could not be excluded. Cases said they ate quail eggs for health reasons, as a nourishing food or because of chicken egg allergies.

Of five confirmed cluster 2 cases, four were female with a median age of 58 and were exposed in five states. All three confirmed cluster 3 cases were male, aged 31 to 71 and lived in Hesse. No common food was identified for two interviewed cluster 3 cases.

Food consumption data in outbreaks
Meanwhile, another study in the same journal, presents a food consumption survey in those older than 18 years in Germany to get data on the frequency of consuming items that caused foodborne outbreaks in the past, such as unheated sprouts and unpasteurized milk.

A total of 1,010 telephone interviews in autumn 2017 asked about the consumption of 95 food items in thevseven-day period before the interview. The study’s purpose was to have food consumption data available for future foodborne disease outbreak investigations to speed them up.

Six high risk items were consumed by 6 to 16 percent of the general population, despite publicly available recommendations on health risks. These were raw ground pork; Teewurst (a spreadable sausage-containing raw pork); unpasteurized milk without heating; items prepared with raw eggs; unheated sprouts or seedlings, and frozen berries with no heating prior to eating.

About 370 foodborne outbreaks in Germany were reported annually to the Robert Koch Institute between 2014 and 2018 through the routine surveillance system. They caused about 1,700 recorded gastrointestinal infections per year. On average, about 85 percent of foodborne outbreaks in Germany were small, at less than five cases, and about 50 percent were in private homes.

Researchers used past outbreak investigations to see if the food consumption data would have been helpful. In these outbreaks, results from the survey would have shown consumption of the item that caused the outbreak was lower in the general population than the group of case-patients. This information would have helped direct the investigation toward the causative food vehicle earlier, according to the report.

Data may not be helpful in investigations of outbreaks among certain groups such as young children or the elderly, if it is in a certain region of Germany, where consumption patterns may differ or an investigation of outbreaks caused by pathogens with a much longer or shorter incubation period than seven days, which was the timeframe interviewees were asked about.

Results from the food consumption survey were comparable to data from control persons in case-control studies conducted during past disease outbreak investigations.

“We consider our survey an additional helpful tool that will allow comparison with food consumption data from case-patients obtained in exploratory, hypothesis-generating interviews early on in outbreak investigations, and which may assist in forming hypotheses regarding associations of illnesses with suspected food vehicles,” said researchers.

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Editor’s note: We want to hear from our readers. Letters to the Editor can be submitted via the Contact Us link on our website.

Dear Editor,

I am responding to Brianna Leach’s article released by Food Safety News on May 26. She includes comments on the USDA’s implementation of its HACCP rule in 1995. For those who are unfamiliar with the term HACCP, it means Hazard Analysis Critical Control Point. What does that mean?  The HA in HACCP stands for Hazard Analysis, and the CCP in HACCP stands for Critical Control Point, a dynamic duo.  Each plant must initially perform a hazard analysis of their specific operations:  slaughter plants have hazards dramatically different than a jerky plant.  

HACCP is a preventative system designed to control significant identified hazards by means of validated process control measures. One way to “validate” process control measures, also known as “interventions”, is via microbial testing for pathogens.  

What is meant by the term “Critical Control Point”, aka as CCP?  A CCP is a point in the production process where controls can be utilized to Prevent, Eliminate, or Reduce (PER) pathogens to a less-than-detectable level. Thus, CCP’s such as cooking or irradiation will PER pathogens, thus qualifying the product and its production line for HACCP designation. Products such as fully-cooked hams, jerky and beef sticks conform to true HACCP requirements.

HACCP was developed by the Pillsbury Company in the 60’s in a joint effort with NASA and the Dept of Defense, both of which required consistently safe food for soldiers on the front line, and for astronauts in outer space. HACCP is science-based, in stark contrast with the USDA’s traditional inspection system which utilized an organoleptic inspection which relied upon sensory inspection of carcasses and finished product, utilizing visual, smell, and touching senses to detect unsafe meat.  The Jack in the Box outbreak caused by E.coli O157:H7, an invisible pathogen, revealed that pathogens cannot be detected organoleptically. Embarrassed by the JITB outbreak, USDA eagerly embraced the HACCP concept, and required all federally inspected plants to implement HACCP in a staggered order:  the largest plants (500+ employees) had an implementation deadline of January 26, 1998.  Small plants a year later, and very small plants another year later.

As long as USDA’s version of HACCP complied with true science, and remained true to Pillsbury’s initial scientific protocol, HACCP would be a remarkable addition to the agency’s reason for existence in the industry, promising safer meat.  Herein lies the rub.

USDA/FSIS required all meat plants to write their own customized HACCP Plans, specific to their unique operations. Plants producing Ready-To-Eat Jerky would have HACCP Plans dramatically different than plants producing raw ground beef. Nevertheless, all FSIS-inspected plants, regardless of their product line, were required to implement HACCP utilizing various HACCP categories.  In this example, plants producing raw ground beef must have a HACCP Plan called a “Raw, Ground HACCP Plan”. RTE jerky would require a plan with titles such as “Ready-To-Eat, Shelf Stable HACCP Plan”.  

Please remember that a Critical Control Point must utilize interventions to Prevent, Eliminate or Reduce pathogens to a less-than-detectable level. Let’s be honest here! Raw Meat & Poultry will never be consistently safe unless it is subjected to a “Valid” intervention, such as irradiation and full cooking. Which is precisely why NASA and the Dept of Defense require consistently safe products which had been subjected to what is called a “Kill Step,” such as full cooking or irradiation.  

Pillsbury developed HACCP specifically for products subjected to a Kill Step.  FSIS changed HACCP, requiring even raw meat & poultry to have HACCP Plans, full well knowing in advance that production of raw meat & poultry lacks a kill step. Thus, raw meat and poultry lacks a valid CCP.  Any HACCP Plan without a legitimate CCP is not HACCP! FSIS was fully cognizant of this fact, but still chose to require all meat plants to implement its bastardized version of HACCP.  

Prior to FSIS implementation of its HACCP rule, the agency relied heavily on its prestigious National Advisory Council on Microbiological Criteria for Food (NACMCF) for scientific input, ensuring that the agency’s HACCP Rule would be scientifically valid.  At least two members of the NACMCF vigorously opposed certain aspects of the agency’s rule as non-scientific.  They were microbiologists Gary Acuff and William Sperber.  Acuff is the Director of the Center for Food Safety and Professor of Microbiology within the Department of Animal Science at Texas A&M. A member of the NACMCF from 1992 – 1997, Acuff is currently a member of FDA’s Food Advisory Committee.  Sperber was and remains an international expert on HACCP, as he worked for Pillsbury from 1972 – 1995, helping refine true HACCP.  His unquestioned reputation is exemplified by the fact he served on the NACMCF for five terms.  No one on this globe was more closely familiar with true HACCP, for over two decades, than Sperber, who is now retired.  In his career, he worked for three major food companies: Best Foods, Pillsbury, and Cargill.  In 2000, he was appointed to the FAO/WHO roster of experts for microbiological risk assessments.  

Another point of major contention for some NACMCF members was FSIS’ misguided protocol for microbial testing on finished products.  My comments will focus merely on the agency’s abuse of true HACCP protocol.

Nevertheless, FSIS ignored scientific input from some members of the NACMCF, blindly forging ahead in its promotion of its faulty HACCP protocol. When questioned by Sperber, then-FSIS Administrator Tom Billy replied “We’ve changed HACCP, and there’s nothing you can do about it”. Rare candor! It also set the stage for future outbreaks emanating from raw meat & poultry, which was somehow produced without a kill step.  How could FSIS implement enforcement actions against raw meat & poultry plants which had alleged “failures” in their HACCP Plans? This awkward scenario was the result of the agency allowing such plants to author HACCP Plans which included CCP’s which the agency was fully cognizant of not complying with PER requirements. Welcome to FSIS-style HACCP!

More recently, FSIS has found a solution to this conundrum, changing the definition of a CCP.  In addition to the original requirements to Prevent, Eliminate or Reduce (PER) pathogens to a less-than-detectable level, the agency has conveniently added the term “Control.” An example would be temperature control.  Maintaining low temperatures will indeed control the environment, denying pathogens the opportunity to explode in numbers, merely by ensuring low temps. While temperature control is an immensely important tool in the plant’s portfolio of interventions, it is woefully inadequate and fully incapable of Preventing, Eliminating and Reducing pathogens! Folks, this is not science.

After I sold my plant in 2005, I established a foundation based on (1) representing the interests of legitimate small plants in their dealings with FSIS, and (2) communicating ideas to FSIS for common sense policy changes. During this time, I received numerous unsolicited communications from total strangers across America, including not only plant owners, but also disenchanted FSIS field personnel. They all related the same story, namely, FSIS intentional mistreatment of small plants.  Most criticism was centered on constantly changing agency HACCP requirements, not based in science, but on subjective, ephemeral personal opinions mandated by District Office (DO) personnel. In many cases, FSIS officials (CSO’s, EIAO’s, Compliance Officers and a plethora of DO HACCP technicians) were engaged in turf battles, all vying for ultimate authority while targeting small plants. One such official would visit a plant and mandate HACCP Plan changes, cautioning that failure to do so would guarantee a noncompliance report (NR), sometimes resulting in a Notice of Intended Enforcement (NOIE). Plant management dutifully make all mandated changes. Subsequently, yet another agency “expert” would arrive at the plant, and mandate that the recent changes be reversed, while mandating a new set of requirements, contradicting demands made by the previous agency expert. Unfortunately, this well describes FSIS style HACCP.

Exacerbating this dilemma is the fact that when a plant owner justifiably disagrees with inane requirements from the newest FSIS, the agency “rewards” the plant with a Food Safety Assessment (FSA), the results of which are guaranteed to harass the plant with subjective and frequently non-scientific mandates. Like the IRS auditor arriving at a business, stating “I’m from the IRS, and am here to help you.”

When FSIS targeted my plant in 2002, I had frequent communications with Rosemary Mucklow, executive director at the National Meat Association (NMA). A frequent topic we discussed was my ability to appeal agency decisions, including NOIE’s, and withdrawal of inspection personnel. Rosemary reminded me that during my appeal, my “lights would be out”. Rather than close my doors for an extended period, I acquiesced to agency demands merely to stay alive.

FSIS has free rein at small plants, knowing that such plants lack the deep pockets required to engage the agency with costly litigation, while lacking political clout. Thus, the agency plays with small plants like a cat plays with a captured mouse, enjoying the opportunity to abuse its power. In stark contrast, FSIS is paralyzed with fear of litigation emanating from the largest plants and their national organizations.  

The hypocrisy of this entire FSIS HACCP imposter is brought to light when we remember what HACCP and industry experts stated in official HACCP training sessions in 1996 and thereafter. I attended such sessions in Salt Lake City in February 1996 and again in Kansas City in March 1996, each time taking different employees for training. The primary speakers were from academia, all familiar with the HACCP concept. Interesting that at both sessions, a FSIS spokesman also gave a presentation describing the agency’s role under the HACCP rule. I well remember four statements from the FSIS representatives, who stated that under the HACCP rule, FSIS’ role would be:

1.  FSIS would no longer police the industry, but the industry must police itself.

2.  FSIS would jettison its previous command and control authority.

3.  Each plant must author its own HACCP Plan(s), reflecting on the unique conditions at each plant.  And, FSIS had no authority to tell a plant what must be in its HACCP Plans.

4.  FSIS would implement a “Hands Off” role at meat plants. 

All plant owners were incredulous at these agency publicly-revealed promises, ostensibly showing the agency’s desire to embrace deregulation. Only time would reveal the agency’s willingness to comply with any of their four promises.

Since 2000, when very small plants introduced HACCP, history has proven time and again that FSIS has aggressively  deep sixed all four promises above, at least at small plants. To argue otherwise would be sticking one’s head in the sand. FSIS forbids plants to engage in “Bait and Switch” marketing tactics.  Yet, FSIS has successfully baited the industry with its four public promises above in order to obtain industry “voluntary” compliance with FSIS-style HACCP, and then switched the agency’s operations back to its pre-HACCP authority. Few people grasp the agency’s deliberate misdeeds here.

Conversely, my contacts within the industry, and especially with FSIS personnel (many of whom are now retired) consistently state that for the most part, the agency has complied, to varying degrees, with all four promises with the largest packers. These transnational behemoths cannot be treated like the mouse by the cat, but constitute veritable powerhouses, not to be toyed with. I don’t criticize them for this.  Each large plant has invested considerable time and money over the years to attain the level they now enjoy.  The safety of their product has indeed improved since the JITB outbreak. They are sincerely committed to food safety, as failure to do otherwise would sicken and/or kill their own customers. My perception is that Brianna Leach has improperly portrayed the industry as being focused exclusively on profits.  I respectfully disagree.  

Another major failure in the FSIS bastardized version of HACCP is its microbial sampling protocol, which artificially targets its enforcement actions against downstream further processing plants, while insulating the large source packers from meaningful enforcement actions and agency monitoring oversight, and thus, for product liability. I will address this issue in subsequent comments. I doubt that Brianna Leach is personally familiar with problems inherent in the agency’s faulty sampling protocol.  She and Food Safety News readers need to know, as Paul Harvey used to say, “The Rest of the Story.”

— John Munsell

About the author: John Munsell ran a USDA-inspected meat plant for 34 years, which had been in the family for 59 years. Raised in Miles City, Montana and educated at Montana State University in Bozeman, MT, John returned to the family business subsequent to employment at Continental Oil and Target Stores. Having sold the business in 2005, John subsequently opened a deli/bakery at a local retail grocery store, and is currently employed by Miles Community College as a Biofuels/Renewable Energy Coordinator.

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This year in the lead up to World Food Safety Day, June 7 2020, the Partnership for Food Safety Education is recognizing the people who keep us fed during the COVID-19 pandemic and every other day of the year. They are asking for help as they try to shine a light on Food Safety Heroes. 

This is a chance to recognize someone you know that has been working on the front line to ensure people are getting healthy and safe meals.

This is the second World Food Safety Day.  It is an annual observance supported by the World Health Organization (WHO) and the United Nations Food and Agriculture Organization (FAO). The Codex Alimentarius Commission first raised the idea in 2016, with last year’s 2019 World Food Safety Day being the first observance.

How to participate and recognize a Food Safety Hero

To recognize a Food Safety Hero,  the Partnership for Food Safety Education asks you to make a 1-2 minute video, following this DIY guide. 

Use this form to nominate your Food Safety Hero and upload a short video. 

The Partnership for Food Safety Education will contact you to build out the story of that person. 

You can also recognize a Food Safety Hero on social media, using the hashtags #foodsafetyhero #BACFighter and #worldfoodsafetyday so the Partnership for Food Safety Education can share your post and recognize that person.

Send your video as soon as possible as the Partnership for Food Safety Education wants to feature them online leading up to World Food Safety Day on June 7.

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The USDA’s Food Safety and Inspection Service and the state of Iowa have finalized a Cooperative Interstate Shipment (CIS) agreement.  It allows state-inspected meat and poultry products to be shipped across state lines.

The agreement was reviewed and approved by the Food Safety Inspection Service (FSIS) during an 11-month period and will allow the the state to operate a CIS program that permits certain Iowa-inspected meat and poultry processors to ship their products to other states.

Traditionally only federally-inspected meat and poultry is allowed into interstate commerce,  but the CIS program allows state-inspected products to be shipped across state lines if they’ve followed certain federal protocols.

The CIS program promotes the expansion of business opportunities for state-inspected meat and poultry establishments. Under CIS, state-inspected plants can operate as federally inspected facilities, under specific conditions, and ship their product beyond their state’s borders.

The CIS program is limited to plants located in the 27 states that have established a Meat and Poultry Inspection Program (MPI) and maintain “at least equal to” FSIS regulatory standards. The assigned state inspectors under the “at least equal to” program will remain as the plants’ onsite inspectors, provided they have the same training, and inspect the plant under “the same” regulatory standards as their federal counterparts in FSIS-inspected plants.

The FSIS provides ongoing oversight of the CIS program to ensure that participating states maintain and operate their “same as” programs in a manner that complies with all applicable federal statutes and regulations and follows FSIS directives and notices. FSIS also verifies that selected establishments in the CIS participating state remain eligible to participate in the CIS program.

The CIS program was created by the 2008 Farm Bill and since then, FSIS also has signed agreements with Indiana, Maine, Missouri, North Dakota, Ohio, and Wisconsin.

According to FSIS, the Cooperative Interstate Shipment (CIS) program promotes the expansion of business opportunities for state-inspected meat and poultry establishments.

Under CIS, state-inspected plants can operate as federally-inspected facilities, under specific conditions, and ship their product in interstate commerce and internationally. Without CIS, a state-inspected plant is limited to sales within its own borders even if an adjoining state is just across the highway or river.

The CIS program is limited to plants located in the 27 states that have established a Meat and Poultry Inspection Program (MPI) and maintain “at least equal to” FSIS regulatory standards.

One major CIS benefit is that a state plant’s day-to-day operations do not drastically or materially change.  The assigned state inspectors under the “at least equal to” program will remain as the plant’s onsite inspectors, provided they have the same training and inspect the plant under the same regulatory standards as their federal counterparts in FSIS-inspected plants.

Another economic benefit is that CIS plants, in addition to selling products across state lines and via online mail order outside of the state, are eligible to export.  States without a CIS program cannot participate in export opportunities.

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On May 26, Food Safety News published an article written by law student Brianna Leach titled “The meat industry’s grip on government—time for an overhaul?”

If this essay by a law student is “the best to be selected for publication in FSN” then I feel sorry for those who have to plow through those that don’t meet the mark.

In the essay Ms. Leach not only attacks the protein industry, but the three branches of the federal government of which she must know little about.

Legislative
She bemoans the fact that the meat industry employs lobbyists to build relationships with Congress. She implies that they control the Chairs of the Ag Appropriations Committees so nothing gets by them that they don’t want.

She obviously has never met Congresswoman Rosa DeLauro, D-CT, who was chair of the House Ag Appropriations Committee while I was Undersecretary for Food Safety at the USDA. She took her marching orders from consumer groups like Food and Water Watch, Consumer Federation of America, CSPI and the Consumer Union, not to mention the union representing USDA’s food inspectors.

She single handedly shot down my proposed Risk Based Inspection System that would have put more inspector hours in plants with bad food safety records and plants making riskier foods.   

She seems to be in favor of plants paying for inspection, a plan riddled with problems.

First of all, if the inspector is being paid by the plant vs. the government, is it not likely that favors will follow? Like; “clean up that mess before I get back and you won’t get a citation.”

Secondly, she would likely shutter many small plants already hanging by a thread and just compound the problem of monoliths producing even a higher percentage of products. 

Executive branch: USDA’s puppet master
She says industry workers will “learn the trade of identifying diseased and contaminated meat.”

Excuse me Ms. Leach, but even the best trained FSIS inspector cannot identify Salmonella or E coli on meat.  What the plant workers are doing is sorting out blemishes and broken bones, quality concerns to protect the brand. 

Remember, Ms. Leach, these are basically young, healthy animals. Old cull cows, steers and bulls still get FSIS inspection on the lines.

She mentions that FSIS employees are required to be in the facilities and some have contracted COVID. She does not clarify if they contracted the virus in the community or in the plant, but here is where her true agenda begins to shed some light.

If the inspectors don’t go to work because of COVID, we can’t kill animals.

She further sheds light on her agenda when she says instead of focusing on keeping meat producing plants open, the president singles out meat “without regard for the many alternative sources of protein including dairy and produce. . . .”

When I had the authority, I took away the authority for JBS Swift’s beef plant in Greeley, CO, to ship to Japan. 

I also shut down Tyson’s “raised without antibiotics” label because it was just not true. That was after they spent millions promoting and developing it. 

Ms. Leach, I was nobody’s puppet, and I take personal offense in your implying that I, along with the entire USD, was. 

Animal rights groups have claimed COVID came about because of inhumane handling of animals and because of factory farms. They are using the pandemic to line their pockets.

Ms. Leach suggests the pandemic “originated from a processing facility in China. . . .”

Once more with the anti-meat, not so subtle, agenda.

That is truly news to me. I have heard maybe wet fish markets, bats and even a contaminated worker from the virology lab located there; but a processing plant? 

That is a pretty big stretch for a law student to suggest as the source when experts, loaded with data, still cannot 100 percent identify the true source.

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Official controls of milk and meat production in Norway must be improved so they are in line with the law, according to an audit report.

The assessment found the overall system was good but Norwegian authorities needed to ensure controls target businesses most likely to present a risk to food safety.

The EFTA Surveillance Authority (ESA) is responsible for monitoring how Iceland and Norway implement EEA rules on food and feed safety and animal health and welfare. Iceland, Norway and Liechtenstein form the European Economic Area (EEA). The European Free Trade Association (EFTA) consists of Iceland, Liechtenstein, Norway, and Switzerland.

An audit in late November through early December 2019 evaluated the official control system implemented by Mattilsynet (Norwegian Food Safety Authority) for the hygienic production of meat, milk and products made from them. Two dairy farms, milk processing sites and meat product factories, three slaughterhouses and one laboratory were visited as part of the review.

Lack of risk-based controls
For approved meat and milk plants, the same minimum frequency of control is set based on general categories of production rather than considering all relevant risk factors. For primary production, a list of potential risks has been established centrally but no weighting is given to them regarding significance. Local departments use these to determine the frequency and scope of official controls.

This approach may result in official controls not being targeted at businesses most likely to present a risk to food safety in a uniform way throughout the country, according to the audit report.

A new system is under development to classify the risk firms present to public health. It is expected to be finished during 2020 with full implementation in 2021. In the meantime, objectives of the hygiene legislation are not being fully met in all establishments as not all deficiencies are detected.

Official controls related to post-mortem inspection in cattle, where several of the EEA inspection tasks are not carried out, weaken the system. Auditors found these issues increase the possibility of unsafe food entering the supply chain and animal diseases not being detected.

Issues found by audit team but not official controls
In the slaughterhouses and cutting factories visited, issues with the design and maintenance of premises were identified which had not been detected by official controls. These included flaking paint on ceilings directly above exposed meat, unclear labelling or identification of animal byproducts (ABP) containers, damaged floors in production areas and in one slaughterhouse, carcasses touching prior to official inspection.

A number of operational hygiene issues were found by the audit team which had not been noted by officials. These included knives not placed in sterilizers during breaks, no cleaning of meat conveyor belts during the working day, and poor cleaning above food production areas.

Authorities have approved alternative sampling procedures and testing against different microorganisms in slaughterhouses. However, this approval was granted in 2007 for now repealed legislation and has not been re-assessed against current microbiological requirements to ensure it still applies.

In most sites visited using alternative analytical methods, Mattilsynet staff do not have confirmation that alternative methods have been validated against the specific reference methods.

Tofu warning
Meanwhile, Mattilsynet has revealed suspicions about organized illegal tofu production and sale in the Oslo area.

The tofu is sold in shops, restaurants and to individuals via closed Facebook pages. Such tofu could be potentially hazardous because it is not known where or how it was produced, who made it, where the raw materials come from or their quality, according to the agency.

Mattilsynet suspects organized large-scale production because as soon as they seize products in one place, a new supply appears, sometimes as quick as the day after.

Previous operations on illegal home production of tofu have found it is often done in unhygienic conditions, posing a risk to public health. Pre-packaged products appear to be professionally manufactured which can mislead the consumer on product quality.

Illegally produced tofu usually has no labeling or traceability, while tofu made by approved companies is labeled and can be traced back to the manufacturer.

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A fundraising page set up to help a woman who contracted listeriosis has passed NZ$20,000 (U.S. $12,400).

Petra Donnison, a family friend, created the Give a Little page for donations to help Grace Archer, her family and partner Theodore Warrick.

Grace is currently being treated in the intensive care unit of Auckland Hospital in New Zealand. She contracted Listeria meningitis which has led to Encephalitis while working in the Cook Islands. She is in a coma and receiving antibiotics to treat the infection, according to the donation page.

“We would like to raise money to support her ongoing recovery and rehabilitation. And also to support her immediate family as they in turn support her,” the page says. “Most of her immediate family live and work distanced from Auckland.”

The Cook Island News reported she is the country’s first Listeria infection patient in more than 10 years. The Health Ministry and Auckland Regional Public Health Service are investigating the source of illness.

Donations and best wishes flood in
Grace was medically evacuated from Rarotonga, the largest island in the southern group of the Cook Islands, where she and her partner Theo work as teachers.

Nearly 300 people have given money so far since the appeal was launched in mid-May.

“The money will initially be used to cover expenses regarding accommodation and travel to Auckland for Grace’s family. This will be re-evaluated as Grace begins her long term recovery and the ongoing financial needs for that,” according to the donation page.

Grace and Theo taught at Apii Te Uki Ou, a Ministry of Education and privately funded school on the main island of Rarotonga. “We love and miss you guys. Sending you and Miss Archer loads of love, hugs and strength,” said a post on the school’s Facebook page.

Listeriosis is an infectious disease caused by the bacterium Listeria monocytogenes. Symptoms include fever, muscle pain, septicemia (blood poisoning) and meningitis. The incubation period is usually one to two weeks but can vary between a few and 70 days.

High risk foods include pre-packed sandwiches, deli and ready-to-eat meat products such as cooked, cured and/or fermented meats and sausages, soft cheeses and cold smoked fishery products.

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The COVID-19 pandemic has all but eliminated the role of communal menus in restaurants. Here are four menu alternatives for restaurants looking to safely reopen.

Menus are often the most germ-riddled part of an entire restaurant, according to WebMD. Customers come in, pick them up, handle them, pass them around, and leave them for the next patron. For restaurants looking to reopen, menu safety will be a top priority, and many state governments have zeroed in on it as a necessity. 

In light of this, restaurants need to rethink their menus. The days of passing around a paper menu are over, and restaurants need to adapt. Here are new ways restaurants can approach their menu to help keep their customers and employees safe.

Disposable menus
Gov. Gavin Newsom cautioned that disposable menus may be the new norm for California restaurants. The state of Georgia has also “strongly encouraged” restaurants to recycle their menus after every customer to ensure there’s no point of contact between customers. Moving forward, paper menus will be treated like leftover food, cleared and disposed of before the next patron sits down.

Single-use menus can be ordered in high volumes and recycled after each use. Since disposable menus are limited to a single sheet, restaurants may need to adapt their menu to fit in the limited space.

Single-use menus are the safest option for restaurants, but they come with three major downsides. One, printing costs can quickly mount. Two, restaurants will need to manage their menu count like they would any food inventory. And three, disposable menus carry an environmental cost since they can only be used once. 

Laminated menus
Restaurants have been moving away from laminated menus for years, mainly because of concerns about sanitation. While flu and cold pathogens do in fact live longer on plastic than on paper, plastic menus can be cleaned. Paper menus need to be disposed of because they can’t be washed and disinfected. The plastic film on a laminated menu can safely be reused if  proper sanitation procedures are executed between customers. 

The CDC has shown that both mild detergents and common disinfectants work to sanitize menus, so restaurants can either wash the menus with soapy water, or wipe them clean with a disinfectant. Either way, they can be safely recirculated without the waste of having to dispose of them after each customer.

Here are some best practices for cleaning laminated menus:

• Thoroughly clean and disinfect after each use.
• Use a soft cloth without abrasions
• Allow the menu to fully dry
• Keep menus organized into “used” and “clean” stacks
• Avoid harsh cleaning chemicals like bleach
• Don’t fully submerge the menu underwater
• Avoid putting menus through the dishwasher

Chalkboard, large signage or A-frame menus
Some restaurants are doing away with the idea of individual menus entirely, replacing them with large communal ones that can be viewed from afar. These menus generally come in three types: chalkboard, large signage, or A-frame. These are great because they can be posted in a high-traffic area, like behind your counter or at the center of your dining area, and customers can view them without have to physically touch them like they would a normal menu. That way no germs are passed between customers via the menu surface

The drawback to these menus is that they can be expensive to produce, and unless you’re working with a chalkboard one, you can’t easily make changes to your menu. Any edits or item updates will either require a whole new sign, or you’ll have to make sloppy alterations with a Sharpie.

Digital menus
Like most industries, restaurants are feeling the pull toward the digital realm. Customers increasingly interact with their favorite restaurants through their mobile devices, either by delivery apps, websites, or social media. The extended closure of dine-in services will only exacerbate this trend as consumers grow more accustomed to online ordering and food delivery.

In order to minimize contact touch points, more restaurants will keep their menus completely digital. Many already used digital menus in the form of large screen displays behind the bar or counter. They require no physical contact, and they can be updated in a second without the hassle of having to print new menus.

Not all restaurants can afford large-scale screens, though, and for others, a bulky display would not fit the rest of the restaurant’s aesthetic. Some restaurants will start relying on the customer to access the menu via their own phone. Cell phones are already being used to remove points of contact during the checkout process. Restaurant owners and managers will start using them in a similar fashion to eliminate the need for physical, communal menus.

The author, Mark Plumlee, works as Sr. Copywriter for MustHaveMenus.

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The Organic Consumers Association has sued Smithfield Foods Inc. in Superior Court for the District of Columbia over allegedly “deceptive food safety marketing representations about pork products.

Smithfield, VA-based Smithfield Foods is accused of making marketing and advertising representations to convey to consumers, including consumers in the District of Columbia, that Smithfield brand pork products are the “safest” possible U.S. pork products.

Smithfield is the world’s largest pork producer, which markets under its own and other brand names. In the United States, Smithfield is under the regulation of USDA’s Food Safety and Inspection Service (FSIS).

“In reality,” according to the complaint filed by the Organic Consumers Association (OCA), “Smithfield employs production practices that result in less-safe conditions, effects, and products, including the routine preventative use of medically important antibiotics, crowded conditions, the use of potentially carcinogenic drugs, and rapid slaughter methods.”

“Furthermore,” it continues, “Smithfield’s products are commonly contaminated with dangerous pathogens to a degree that makes them far less than the ‘safest’ possible U.S. born and bred products. The USDA frequently notifies Smithfield that pork processed product in its slaughter plants is more likely to be contaminated with Salmonella that similar products in slaughter plants of the same size.”

The complaint alleges that on “numerous occasions,” USDA testing of Smithfield pork has detected pathogens that are “commonly associated with human illness” and resistant to antibiotics. It says many disease strains detected in Smithfield products have been found resistant to antibiotics that are designated as “highly important” or even “critically important” for human health.

The OCA contends Smithfield’s marketing and advertising statements about setting the industry standard for producing the “safest” pork products are “false and misleading.”

Smithfield Foods Inc. has yet to respond to the action filed on May 20 under the D.C. Consumer Protection Procedures Act (CPPA), the equivalent to a filing in a state court.

The CPPA permits nonprofit organizations to bring actions on behalf of their members or in the public interest. The OCA is based in Finland, MN.

The company’s response to the question “Why Smithfield Pork?” on its website is cited by OCA as “false and misleading.” Here is that response:

“We are committed to setting the industry standard for providing our customers with the highest quality and safest U.S. born and bred products possible. And USDA’s certification of our management practices confirms that we are living up to our commitments.”

The OCA says that “across its advertising,” Smithfield makes representations that its food safety practices are “superlative,” leading consumers to believe that it exceeds industry standards for food safety and that its products would not be contaminated with dangerous pathogens.

“The current heightened consumer concern about safety in the meat industry is all the more reason to hold Smithfield accountable for false safety claims, OCA’s Ronnie Cummins said in a statement separate from the complaint.

Cummins said USDA “has notified Smithfield slaughter plants on multiple occasions that their pork was more likely to be contaminated with Salmonella than similar products in slaughter plants of the same size.

“Failure to report these notifications to consumers is one thing,” Cummins added. “But claiming that its products are the ‘safest’ possible pork products in the U.S. is a blatant misrepresentation of the brand’s actual safety record.”

The complaint suggests that Smithfield is using its social media accounts, including YouTube to make food safety claims. Misrepresentation of material facts is a cause of action in the  D.C. Consumer Protection Procedures Act.

The OCA also charges Smithfield with using “especially hazardous production practices” and routinely using “antibiotics for disease prevention in healthy animals.”

According to the federal Centers for Disease Control and Prevention (CDC), as cited in the complaint, there are more than 2.8 million antibiotic-resistant infections in the United States each year, resulting in 35,000 deaths.

In the lawsuit, OCA wants a trial by jury in its quest for a judgment that Smithfield is violating the CPPA. The OCA also wants to enjoin Smithfield from making any further false claims. It also wants its costs, including reasonable attorney’s fees, paid by the pork producing company.

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Editor’s note: Each Spring, attorneys Bill Marler and Denis Stearns teach a Food Safety Litigation course in the LL.M. Program in Agricultural and Food Law at the University of Arkansas School of Law. This specialized program for attorneys brings together those who are interested in our food system, from farm to table. As a final assignment, students are asked to write an op-ed or essay on food safety, with the best to be selected for publication in Food Safety News. The following is one of the essays for 2020.

As the U.S. prepares to re-open after an unprecedented moment of pause during the COVID-19 pandemic, many people across the country have used this time for personal reflection. A moment to clean house, reconnect with family and lessen the noise, the nation could confront their lives and how they were living.  The anticipation of restrictions lifting and fear dissipating, the upcoming Fourth of July holiday reveals there’s more work to be done as plans form for the celebratory barbeque.  The influence of the meat industry has been lurking, invited into our homes and waiting for us at our favorite restaurants.  It has sweet-talked the legislature and befriended the executive branch, and at times betrayed us through the judicial branch.  The federal government should take this time to revisit its priorities, sensibilities and ideologies that call into question how unchecked influence is tainting our meat.

Voltaire’s words ring true, “with great power comes great responsibility.” There are four discrete moments that reveal the meat industry’s influence runs counter to public interest across the three branches of government. 

Legislative Branch: Smooth Operator
The ability to cultivate relationships and persuade Congress is an art form that special interest groups know well. They showcase how consolidated action, unifying on a narrow set of priorities and staying vigilant can defeat any incoming threats. Lobbyists are the perfectly positioned instrument to articulate and orchestrate their message to Congress in a way that is unmatched against a conflicted and disconnected public. The lobbyists trade their effort and experience, as well as campaign contributions, to solidify their objectives and ensure they will be called to serve again and again.  The meat industry is well acquainted with the importance of lobbyists, none of this yet triggering concern. It is only in examining how actions have consequences can we evaluate their approach.  

The meat industry effectively controls the Senate and House of Representatives by stopping a bill before it even reaches the floor. All legislation related to food and agriculture crosses the desks of the respective Agriculture Committees, so effort is targeted to build relationships, tailor strategic communications, and send influential campaign contributions to stay on the pulse of new developments.  For bills that do reach the floor, swift action is taken. Over the years, proposals to have meat processors become partially or fully responsible for the cost of USDA inspections, which are currently provided without cost for routine operation, are quickly shot down as “unwise and unnecessary,” without explanation or discussion. Ironically, industry also seeks to reduce the presence of USDA inspectors by seducing the agency into allowing their workers to complete the tasks on their tab– but more on that later. USDA cautiously weighs the ability to charge for services, understanding that cost could discourage necessary inspections or testing that could impact public health.

In the aftermath of the 1993 Jack-in-the-Box outbreak caused by Escherichia coli O157:H7, the fast-food company hired a food safety expert who advanced a concept developed in the 1960’s.  It was the Hazard Analysis Critical Control Point (HACCP) system, which took a contemporary, science-based approach to assure measurable action and monitoring necessary to address the chain’s food safety protocols.  By 1995, this led to the Pathogen Reduction HACCP systems rule (HACCP rule) to modernize food safety and ensure industry adoption. Representative Jack Walsh (R-NY), introduced an amendment to delay its implementation and require further negotiations expected to weaken USDA’s authority, while accepting campaign contributions from the meat industry.  This temporarily obstructed a national response known within the meat industry and ran counter to the public interest.

Executive Branch: USDA’s Puppet Master
The meat industry has also effectively curbed the regulatory power of the USDA if not completely de-regulating.  New meat inspection regulations shift the power and responsibility for food safety inspections to industry under a waiver program.  Specifically, the presence of USDA’s on-site inspectors would decline as industry workers learn the trade of identifying diseased and contaminated meat to take over these responsibilities. Trust but verify seems an appropriate response as USDA transitions oversight responsibilities to industry. However, it remains to be seen while also raising questions about detecting fraud and deception.   This change is compounded as industry has been successful in lifting regulatory limitations on processing line speeds.  Industry is in full command over how fast carcasses fly by to meet volume and efficiency demands, with their workers assuring us everything is fine.  Pathogen testing has had mixed results as they are not publicly disclosed, not dispositive to require a shutdown of operations, and are not complete to assess pathogens that continue to pose a risk. The unstated impacts of these changes will reduce the size and role of USDA, including their budget.

Executive Branch: Friends in High Places
As nurses protest and file litigation for lack of personal protective equipment (PPE) to fulfill their essential roles on the front lines of the COVID-19 pandemic, they call on President Donald. J. Trump to use the Defense Production Act (DPA) to focus manufacturers on this task. The DPA affords the President significant emergency powers including the ability to compel production of critical supplies.  The President has refused to answer the call of medical professionals.

Meanwhile, the President quickly signed an Executive Order (EO) to force meat processing facilities to continue operations despite concerns of worker exposure to COVID-19 amid recent facility closures. State and local governments instated facilities close and industry’s influence strikes again. The basis of the EO was deemed liability, likely as the meat industry sought indemnification while maintaining the status quo and failing to address the deficiencies.  The EO comes on the heels of litigation filed by an advocacy group on behalf of Smithfield workers to force changes for safe and adequate working conditions against the processing giant.  The lawsuit does not request monetary damages, instead is more of a desperate plea to workplace safeguards for some of the most vulnerable and exploited workers during the pandemic.  And worse yet, it strikes USDA’s own employees as the inspectors required to be at the facilities have also contracted COVID-19. The Occupational Safety and Health Administration (OSHA) has regulatory and statutory authority to oversee workplace health and safety, yet is squeezed out of the close relationship between USDA and the meat industry, therefore has no role to oversee slaughter, processing and packaging facilities.  Just before the EO was signed, OSHA and the Centers for Disease Control released joint guidance on meat processing facilities to highlight concerns.  However, the guidance is a mere suggestion as there is no legal basis for enforcement.  The guidance includes a COVID-19 assessment and control plan that sounds surprisingly similar to HACCP rule requirements, yet it is absent from the EO and likely to be also overlooked by USDA despite the extenuating circumstances. Finally, the EO cites the concerns over a “continued supply of protein for Americans” by singling out meat without regard for the many alternative sources of protein including dairy and produce, especially as other producers have desperately called out for support and made difficult decisions to destroy their product as a result of the broken supply chain. While animals are being euthanized at alarming numbers due to processing facility closures, the entire food supply chain has been disrupted resulting in unprecedented waste, yet only the meat industry has the President’s ear.

Judicial Branch: Profits over Protection
The EO seems open for a challenge over if the DPA can override the authority of federal and state government seeking to close these facilities out of concerns for public health and safety. The closure of a meat processing facility has significant economic impacts locally and nationally, though they must be balanced against the potential risks to workers, consumers and the public. Similar concerns echo throughout the food supply chain for dairy, fruit and vegetable relief to ensure the food supply. The language of the EO may bring it to the court system to reconcile or result in legislative action in the future.

USDA carefully navigates their role in policing the industry and protecting public health as the court’s interpretation of that exercise of power could be seen as overreach and struck down. Litigation can be a tactic to distract, exhaust and bankrupt your opponent, and the pressure put on an administrative agency seems to translate to minimal enforcement and repercussions on industry. USDA can be reluctant to act and when it does, often takes a measured response that many argue is inadequate. The HACCP rule has incredible promise to monitor and control for pathogens.  If microbial tests repeatedly exceeded the established limits, USDA was authorized to shut down the processing facility.  However, Supreme Beef Processors wasn’t about to let failed tests for Salmonella threaten the removal of FSIS inspectors from their facility and effectively cut off their profits – so they quickly filed a lawsuit. They argued that USDA was acting outside the scope of its authority in limiting a naturally occurring bacteria in its meat when USDA could not identify a pathogen control failure and the court agreed. The failure to condemn meat at the initial processing facility meant it received USDA’s inspection approval and began flowing to the consumer. Supreme Beef Processor’s supplier was delivering meat that already exceeded the thresholds. The meat industry also understood the importance of this first challenge to the HACCP rule, and was able to intervene on behalf of Supreme Beef Processors on appeal. While exceeding allowable tolerances, even repeatedly, was held as not to be determinative for USDA to close a processing facility, it hasn’t removed the value of the HACCP rule. In the aftermath of this unfavorable resolution, continued foodborne outbreaks have occurred and the meat industry continues to seek further opportunities to self-regulate and avoid liability. This indicates a race to the bottom on a product we can’t appreciate the risk. The court and meat industry continue to hold the consumer responsible for pathogen eradication by proper cooking and food handling practices.

USDA has been challenged by advocacy groups claiming it is reverting back to sensory detections, as fecal matter is found in meat when it should be considered an adulterant thereby removing that meat from the food supply. Strains of E. coli are recognized as adulterants, and USDA is considering a petition to also include Salmonella. Science and the courts seem to be at odds. By balancing the need for clean and quality meat against high volume demands by industry, it may begin to expose novel ways to become better informed while increasing consumer awareness.  The meat industry was convinced that E. coli O157:H7’s classification as an adulterant would be too costly and complicated to administer, yet today it seems industry was calling wolf. As a result of the limitations in liability, industry remains motivated by profit and business as usual.

Conclusion
The federal government has an opportunity to overhaul food safety though it requires a united approach.  In recognizing this system developed haphazardly over time, USDA should take the lead to develop a comprehensive plan rather than continuing to plug holes and satisfy the meat industry.  Foodborne illness remains a concern as today’s meat is not recognized for what it is, and attempts to raise its quality and safety are dismissed as a threat to industry profits.  There is no greater time for USDA to be vigilant and aware of food safety and workplace conditions as a result of this pandemic.   When examining a supply chain, the choice of ignoring science, concealing information, and focusing on profits above all else further reveals why the meat supply chain is broken.  Its time to identify problems early and often, where they can become data points to drive better decisions and ensure the end product is predictably safe. Shortcuts, which industry may decide to make, should also have consequences. As we look towards the Fourth of July, it’s time to declare independence from public health threats. Afterall, if the story of COVID-19 originated from a processing facility in China, shouldn’t that encourage us to pay more attention at ours?

1. More contemporary attributions include Winston Churchill and Spiderman’s Peter Parker.
2. Safety Last: The Politics of E. coli and Other Food-Borne Killers. The Center for Public Integrity. Page 12. https://cloudfront-files-1.publicintegrity.org/legacy_projects/pdf_reports/SAFETYLAST.pdf
3. Safety Last: The Politics of E. coli and Other Food-Borne Killers. The Center for Public Integrity. Page 11. https://cloudfront-files-1.publicintegrity.org/legacy_projects/pdf_reports/SAFETYLAST.pdf
4. Modernization of Poultry Slaughter Inspection, 79 FR 49566-01, 2014 WL 4090682, 9 CFR 381, 500;
   Modernization of Swine Slaughter Inspection, 84 FR 52300-01, 2019 WL 4750800, 9 CFR 301, 309, 310;
5.  Ginsburg, Carl. NYS Nurses Association Files Three Lawsuits to Protect Nurses Health and Safety. New York State Nurses Association. April 20, 2020. https://www.nysna.org/press/2020/nys-nurses-association-files-three-lawsuits-protect-nurses-health-and-safety
6.  Chiu, Allyson. ‘We’re beyond angered’: Fed-up nurses file lawsuits, plan protest at White House over lack of coronavirus protections. The Washington Post. April 21, 2020. https://www.washingtonpost.com/nation/2020/04/21/nurse-protection-coronavirus/
7.  P.L. 81-774, 50 U.S.C. § 4501 et seq.
8.  Executive Order on Delegating Authority Under the DPA with Respect to Food Supply Chain Resources During the National Emergency Caused by the Outbreak of COVID-19. Executive Order. White House. April 28, 2020. https://www.whitehouse.gov/presidential-actions/executive-order-delegating-authority-dpa-respect-food-supply-chain-resources-national-emergency-caused-outbreak-covid-19/
9.  President Donald J. Trump Is Taking Action To Ensure The Safety Of Our Nation’s Food Supply Chain. Fact Sheet. White House. April 28, 2020. https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-taking-action-ensure-safety-nations-food-supply-chain/
10.  Chalfant, Morgan. Trump to sign order compelling meat plants to stay open during pandemic. The Hill. April 28, 2020. https://thehill.com/homenews/administration/495055-trump-order-compelling-meat-plants-stay-open-coronavirus-outbreak
11.  Rural Community Workers Alliance and Jane Doe, Plaintiffs, v. Smithfield Foods, Inc. and Smithfield Fresh Meats Corp., Defendants., 2020 WL 1969164 (W.D.Mo.)
12.  Executive Order on Delegating Authority Under the DPA with Respect to Food Supply Chain Resources During the National Emergency Caused by the Outbreak of COVID-19. Executive Order. White House. April 28, 2020. https://www.whitehouse.gov/presidential-actions/executive-order-delegating-authority-dpa-respect-food-supply-chain-resources-national-emergency-caused-outbreak-covid-19/
13.  Jiang, Weijia and Melissa Quinn. Trump invokes Defense Production Act to keep meat processing plants open amid coronavirus crisis. CBS News. April 29, 2020. https://www.cbsnews.com/news/meat-plants-defense-production-act-trump-executive-order/
14.   Supreme Beef Processors, Inc. v. United States Dep’t of Agric., 113 F.Supp.2d 1048 (N.D.Tex.2000), aff’d, 275 F.3d 432 (5th Cir.2001).

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Barriers to tackling food fraud include the cost and capability of authenticity testing, a changing mode of operation, and a complex regulatory system, according to experts.

Contributors to an overview about food fraud said evidence suggests it continues to be an issue in the global supply chain. Prevention strategies include scientific analysis to test food authenticity, supply chain risk assessment, and data-led strategies such as intelligence gathering.

The Parliamentary Office of Science and Technology (POST) is the U.K. Parliament’s in-house source of scientific information. To produce POSTnotes, advisers and fellows talk to stakeholders from industry, government and academia. The aim is to provide MPs and peers with an overview of food fraud including potential impacts in the UK.

Input into the document came from representatives of the Food Standards Agency, Fera Science, University of Manchester and Government Chemist, LGC as well as Dr. John Spink of Michigan State University and professor Chris Elliott from Queen’s University Belfast.

Tackling the issue and public health risk
Examples of high-profile cases include adding undeclared horsemeat to a variety of beef products in the U.K. and Europe in 2013, and presence of ingredients such as olive or myrtle leaves in about one in four U.K. samples of oregano in 2016.

Barriers to combatting the problem include the lack of a globally agreed definition making it difficult to assess the scale of the problem and generate statistics on its impact.

Many authenticity testing methods require specialist instrumentation and skills, which can be costly for industry and local authorities and the enforcement system for food laws is split between multiple bodies, including local authorities and regulators.

While food fraud has a financial and reputational impact on businesses, it may also pose a health risk by exposing consumers to toxic chemicals, pathogenic bacteria, or mislabeled allergens. One example cited in the briefing comes from 2016 when a restaurant owner was sent to prison after substituting almond powder with mixed nut powder containing peanuts, resulting in a customer’s death.

Detection challenges
Foods often reported to be adulterated include herbs and spices, coffee, seafood, honey and olive oil. However, there are concerns fraudsters may target foods subject to less rigorous controls, making fraud harder to detect.

Between April 2018 and March 2019, 4,996 food samples were tested for composition or labelling on behalf of local authorities in England compared with 24,855 samples tested for hygiene.

Food fraud typically involves substitution, addition, tampering, or misrepresentation of food, ingredients, or food packaging. It affects consumer choice and confidence and could lead to consumption of foods that are normally restricted for ethical or religious reasons.

It is often undetectable except by scientific analysis. Testing can be targeted, where the analysis looks for a pre-defined characteristic, such as a specific adulterant or section of DNA, or non-targeted where multiple measurements of a sample are taken using a variety of techniques to get a sample’s chemical fingerprint.

Leaving the EU and trade deals
Each food business has its own approach to testing authenticity of products. Retailers often have contractual agreements with suppliers that require them to do authenticity testing of their ingredients. Large retailers, such as supermarkets, typically have routine monitoring programs. The rise of online shopping has also made tracing food supply chains more difficult.

The FSA has said there is no evidence to suggest the U.K. will be more at risk from food crime after leaving the European Union. However, some experts have said the EU’s exit may impact the U.K.’s vulnerability to food fraud and is a risk to the safety and security of the food supply.

Concerns relate to checks on food imports, the U.K.’s food testing capacity and the extent of access to EU food fraud intelligence networks. After the transition period, foods imported into the U.K. will need to be checked and processed at the border.

Future trade deals may require adoption of new tests and standards for food and drink. Brexit may also cause sudden price increases and supply volatility, creating vulnerabilities to fraud.

The number of official laboratories for testing has declined in the U.K. during the past 10 years and stakeholders have questioned whether the U.K. would have the same level of access to EU labs for specialist testing.

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As part of its enforcement activities, the Food and Drug Administration sends warning letters to entities under its jurisdiction. Some letters are not posted for public view until weeks or months after they are sent.

Business owners have 15 days to respond to FDA warning letters. Warning letters often are not issued until a company has been given months to years to correct problems.

K D Singh Enterprises LLC, Edison, NJ
Khadag Singh/Dalbir Singh, president/vice president

In an April 8 warning letter the FDA described a Feb. 19, 2020 Foreign Supplier Verification Program inspection at K D Singh Enterprises LLC, as well as an initial inspection on Aug. 23, 2018. Inspectors found that the company was not in compliance with FSVP regulation.

FDA’s inspection resulted in issuance of an FDA Form 483a. 

The significant FSVP regulation violations are as follows:

The firm did not develop, maintain, and follow an FSVP. Specifically, they did not develop an FSVP for each of the following foods:

• Wheat flour imported from (redacted).
• Spice mix imported from (redacted).
• Paneer imported from (redacted).

The full warning letter can be viewed here.

Rajshree International Inc., Downey, CA
Shubh Prasad, owner

In a May 4 warning letter the FDA described a March 6 Foreign Supplier Verification Program inspection at Rajshree International, Inc. Inspectors found that the company was not in compliance with FSVP regulation.

FDA’s inspection resulted in issuance of an FDA Form 483a. 

The significant FSVP regulation violations are as follows:

The firm did not develop, maintain, and follow an FSVP. Specifically, they did not develop an FSVP for each of the following foods:

• Ying Yaang Hakka Noodles manufactured by Frumar Marketing Pvt. Ltd., India
• Lays Magic Masala manufactured by Pepsico India Holdings Pvt. Ltd., India

The full warning letter can be viewed here.

Smoked Salmon Unlimited dba H. Forman & Son, London
Lance P. Anisfeld

In a May 12 warning letter the FDA described a Feb. 13-14 inspection at Smoked Salmon Unlimited d. b. a. H. Forman & Son’s seafood processing facility. Inspectors found that the company was not in compliance with Hazard Analysis and Critical Control Point (HACCP) regulation.

FDA’s inspection resulted in issuance of an FDA Form 483a. 

The significant HACCP regulation violations are as follows:

1. The firm must conduct or have conducted for them a hazard analysis for each kind of fish and fishery product that they produce to determine whether there are food safety hazards that are reasonably likely to occur and have a HACCP plan that, at a minimum, lists the food safety hazards that are reasonably likely to occur. A food safety hazard is defined as “any biological, chemical, or physical property that may cause a food to be unsafe for human consumption.” However, the firm’s HACCP plan for cold smoked salmon entitled “(redacted),” dated Sept. 22, 2011, does not list the food safety hazard of pathogen growth and toxin formation at the “(redacted)” critical control point (CCP). Because cold smoked salmon products are considered a raw, ready-to-eat (RTE) food, FDA recommends that they ensure that their product is maintained below 40°F (4.4°C) throughout transit.
2. The firm must implement the monitoring procedures and frequency that they have listed in their HACCP plan. However, the firm did not implement the monitoring procedures at the “(redacted)” and “(redacted)” critical control point (CCP) to control Clostridium botulinum growth and toxin formation listed in their HACCP plan, entitled “Cold Smoking (USA),” for cold smoked salmon. Specifically, at the “(redacted)” CCP, their firm is not monitoring the “(redacted),” “(redacted),” and “(redacted)” to ensure their critical limits for (redacted) and (redacted) time are achieved.

When (redacted) and (redacted) critical limits are used to control C. botulinum, FDA recommends water phase salt (i.e., percent salt aqueous phase) of the finished product be a minimum of 3.5% to verify that the critical limits have been achieved. On at least five separate occasions between Sept. 26 and Nov. 28, 2019 their finished product testing results indicated the water phase salt levels of their cold smoked salmon products were below (redacted)% (between (redacted)% and (redacted)%). No corrective actions were taken in response to these results. FDA recommends that their firm ensures that no affected product entered commerce, the cause of the deviation was corrected and reassess the HACCP Plan.

At the “(redacted)” CCP, their firm is not conducting a “(redacted)” to ensure their critical limit of “(redacted)” is achieved. FDA recommends that a visual check of the recorded temperature is performed at least once per batch.

3. The firm did not maintain sanitation control records for the monitoring the condition and cleanliness of food contact surfaces; prevention of cross-contamination from insanitary objects; maintenance of handwashing, hand sanitizing and toilet facilities; protection of food, food packaging material, and food contact surfaces from adulteration; proper labeling, storage and use of toxic compounds; and control of employee health conditions.
4. Because they chose to include a corrective action plan in their HACCP plan, their described corrective actions must be appropriate. However, their corrective action plan for their cold smoked salmon products are not appropriate at the following critical control points:
5. At the “(redacted)” CCP the corrective action of “(redacted)” is not adequate to control pathogen growth and toxin formation. FDA recommends that affected products are chilled and held until a food safety evaluation of the cumulative ambient cooler temperature and time exposures are conducted.
6. At the “(redacted)” CCP the corrective action is not adequate to control C. botulinum because it does not ensure that the cause of the deviation has been corrected. FDA recommends that their corrective action include making repairs or adjustments to the smoker.

The full warning letter can be viewed here.

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Every year, millions of Americans commemorate Memorial Day to honor the sacrifices so many have made to protect our country. This holiday weekend might not be like past years, so while we keep public health recommendations in mind, let’s not forget food safety practices to prevent foodborne illnesses.

“Memorial Day is the unofficial start of the summer season,” says Dr. Mindy Brashears, the U.S. Department of Agriculture’s (USDA) Under Secretary for Food Safety. “This summer may look different than most, and you can protect your family from foodborne illness and other illnesses during your summer celebrations by avoiding large gatherings, practicing social distancing, and washing your hands regularly.”

For those who choose to celebrate outdoors, USDA recommends the following food safety tips to keep your outdoor activities safe and fun this Memorial Day weekend.

Remember the summer season
Summer weather can be hot and humid, which means your food won’t stay safe as long as it could indoors. When the temperature outside is above 90°F, perishable food such as meat and poultry, dips and cold salads, or cut fruits and vegetables are only safe out on the table for one hour. According to a recent USDA survey, nearly 85 percent of participants said they don’t nest cold foods in ice when they serve it. Keeping cold foods cold is an important step to keep food safe and healthy, so store them on ice, in coolers, or in your fridge and freezer.

In the same survey, 66 percent of participants indicated they did not keep their cooked foods, like burgers and hot dogs, warm after cooking. Just like cold foods, hot perishable foods should be kept warm (above 140°F) until they’re eaten. You can easily do this by moving these items to the side of your grill away from the main heat source, rather than taking them off the grill entirely. Make sure your grilled meat and poultry reach a safe internal temperature first by using a food thermometer.

Know your outdoor environment
You may have everything you need in an indoor kitchen to be food safe, but the same may not be true for your outdoor grill or other food preparation space.

“Now that summer is finally here, many are choosing to move their meals outside,” says USDA Food Safety and Inspection Service (FSIS) Administrator Paul Kiecker. “Prepare your outdoor spaces so they are food safe. If you won’t have running water, use hand sanitizer or moist towelettes to keep your hands clean before, during, and after food preparation.”

It’s most effective to use warm, soapy water to wash hands for at least 20 seconds before and after handling food. If you have to use hand sanitizer, make sure to choose one that contains at least 60 percent alcohol. Using moist towelettes and paper towels can help to clean and sanitize any cutting boards or utensils while you’re outside or away from your kitchen. Keeping hands and surfaces clean when handling food will help lessen the spread of germs and foodborne illness causing bacteria.

With these tips in mind, it’s easy to avoid foodborne illness and other illnesses during your summer celebrations. For any food safety questions this summer, call the USDA Meat and Poultry Hotline at 888-MPHotline (888-674-6854) or chat live at ask.usda.gov from 10 a.m. to 6 p.m. Eastern time, Monday through Friday. Remember food safety to have a safe and happy Memorial Day.

This past week, FDA and USDA issued a Memorandum of Understanding Regarding the Potential Use of the Defense Production Act with Regard to FDA-Regulated Food During the COVID-19 Pandemic. The MOU refers to “potential use” because USDA has not yet invoked its DPA authority. Nor will it, in any likelihood. Messaging matters, however, and so the MOU may still operate to significantly influence the food system. What message does it send exactly?  

That depends on the “potential use” of the DPA that might conceivably come into play. The MOU is tied to President Trump’s April 28 Executive Order delegating authority to USDA to  “take all appropriate action under [section 101 of the of the DPA] to ensure that meat and poultry processors continue operations.” Popular media described this action in bold terms along the lines of ‘Trump Orders Meat Plants to Stay Open.’ And President Trump himself framed the Order as a solution to “certain liability problems.” But the actual reach of the order is much more modest.

As University of Texas law professor Steve Vladeck explained the day the order issued, “Nothing in the text of the Order claims any power to force plants to ‘stay open,’ and nothing in the statutory sections on which the Order purports to rely delegates such authority.” Rather, the April 28 order directs the USDA Secretary to use the authority under section 101 of the DPA “to determine the proper nationwide priorities and allocation of all the materials, services, and facilities necessary to ensure the continued supply of meat and poultry, consistent with the guidance for the operations of meat and poultry processing facilities jointly issued by the CDC and OSHA.” Section 101 of the DPA is quite limited in scope. It gives the president authority to “require performance” of government orders or contracts over private ones, and “to allocate materials, services, and facilities … as he shall deem necessary or appropriate to promote the national defense.” 

What do these authorities mean in practical terms? The government might put in an order with a meatpacking plant for product to supply a federal hunger relief program, and forbid the plant from fulfilling private orders, including to export markets, before fulfilling the government’s order. Or conceivably the government might act as a liaison to food companies seeking personal protective equipment for their workers, and order PPE manufacturers to prioritize orders that go towards protecting food workers. The legal ground for the latter example is less certain but regardless, does anyone expect the Trump Administration to assume this level of involvement in its pandemic response? If so, it might first use its DPA authority to make more testing available.

Critically, the April 28 Order does not give USDA or any other federal agency the authority to overrule a local public health department’s decision to close a meatpacking plant. The Tenth Amendment of the Constitution reserves such ‘police powers’ to the states. Even attempting to accomplish such an end through indirect means—by say, withholding federal financial aid—would represent an unconstitutional encroachment on state sovereignty. 

As a side note, the Order also says nothing about liability for companies that unreasonably expose their workers to infection risk. Here, the federal government has acted in the past to override state tort law, perhaps most notoriously in defense of gun manufacturers. But Congress must act to provide that sort of immunity, which explains some politicians’ insistence on such provisions in the next corona virus relief package.

All of this is to say that the April 28 Executive Order is a paper tiger. But to the extent that the Administration sought to cow state and local public health officials, it may have succeeded. According to recent reporting, “As of May 19, nearly all of the once-closed meatpacking plants have started back up.” Large meatpackers have declined to disclose data on how many of their workers have fallen ill or died, but according to an analysis by Johns Hopkins University researchers, the rate of COVID-19 infections for counties with very large meatpacking plants was twice the rate in counties without for the week following the Trump executive order. 

Now, FDA is joining forces with USDA in “carrying out Executive Order 13917.” Pursuant to the MOU, FDA will “as appropriate, educate domestic stakeholders about . . . the potential use of DPA authority,” and consult with USDA to “issue orders related to or utilize other delegated USDA DPA authorities with regard to food resources and food resource facilities.” 

Again, the prospect of any such “orders” or other use of “delegated authorities” is farfetched, if not downright farcical. So what is the point of this document? The same as EO 13917, to send a message: namely, keep the grocery shelves packed, or else! 

One might argue that industry needs to keep workers safe to avoid supply disruptions, and this simply gives FDA more of a stick to motivate companies to adhere to the voluntary worker protection standards issued by the Centers for Disease Control and the Occupational Safety and Health Administration. The MOU contemplates that FDA will “direct FDA-regulated entities” to this “applicable guidance.” But if worker protection is the objective, a much better tool would be an enforceable temporary standard to protect workers.  

In the absence of such a standard, putting pressure on food companies and public health officials to keep plants open poses a danger to workers, and ultimately, to consumers. A safe workplace is the most basic prerequisite for creating a culture of food safety. As we know from recent reporting, the food industry faces significant challenges that will increase food safety risk, including widespread absenteeism and the suspension of visits from outsiders, including from food safety auditors. At the same time, CDC officials have said in recent stakeholder calls that foodborne illness reporting from the states has sharply declined. No surprise there given that under the best of circumstances, getting a stool sample from a foodborne illness victim faced a lot of hurdles. 

In this crisis environment, federal food regulators should take a more active role to protect the food supply. But if that role undermines public health officials and workers, we will all suffer.  More than ever, consumers need effective federal oversight of the food system. Baseless threats of using the Defense Production Act are not helping. 

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Authorities in Hong Kong have linked cases of food poisoning to a suspected unlicensed food factory in the country.

The Centre for Health Protection (CHP) of the Department of Health reported 27 people were sick and five needed hospital treatment after eating sandwiches bought from the same shop.

Initially, two suspected food poisoning clusters affecting seven people were reported. The first cluster involved four females aged 6 to 54. They developed gastroenteritis symptoms including abdominal pain, vomiting, diarrhea and fever about eight to 12 hours after consuming sandwiches purchased from a shop in Tsuen Wan on the same day.

The second cluster was three females aged 5 to 34, who developed similar symptoms about seven to 14 hours after eating sandwiches of the same brand. All those affected sought medical consultation but none required hospitalization and they are now in a stable condition.

CHP later identified nine more clusters of suspected food poisoning related to the sandwiches. They involved five males and 15 females aged 1 to 68. People developed gastroenteritis symptoms about four to 43 hours after consuming the sandwiches between May 18 and 21.

A total of 16 people sought medical consultation and five required hospitalization but are now in a stable condition.

The Centre for Food Safety (CFS) urged the public not to consume the sandwiches concerned, regardless of batches and types. Trade was also told to stop using or selling the products if they have it in their possession.

Suspicion of unlicensed factory
A CFS spokesman said the agency sent staff to the retail outlet in Tsuen Wan to investigate and take samples for testing.

“The retail outlet concerned has already stopped sale of the affected product according to the CFS’ advice. The CFS has also provided health education on food safety and hygiene to the person-in-charge and staff concerned, and requested them to carry out a thorough cleaning and disinfection,” he said.

“Prolonged storage of food at room temperature may allow pathogens to grow and produce toxins. Members of the public should avoid consuming cooked or ready-to-eat food that has been kept at room temperature for several hours.”

A follow-up investigation by the CFS and the Environmental Hygiene Branch of the Food and Environmental Hygiene Department (FEHD) revealed the supplier was suspected of operating an unlicensed food factory.

“Prosecution has been instituted against the person in charge of the premises by the FEHD. . . The CFS has also instructed the food premises concerned to stop production and sale of the product concerned,” said the CFS spokesman.

Under regulations, the maximum penalty for operating an unlicensed food factory is a fine of HK$50,000 (U.S. $6,500) and six months’ imprisonment upon conviction.

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The foodservice industry is remarkable for many reasons, the hard work, the long hours, the fierce competition, and the sheer number of operations. Making a go of a restaurant has many challenges; around 60 percent of new restaurants fail within the first year. And nearly 80 percent shutter before their fifth anniversary. This is unfortunately the result of the difficulties in managing labor, controlling food costs, and low profit margins, and it seems you have to be just plain lucky — or have incredible food, a very solid business model, excellent management and effective marketing.

Consider also that foodservice is a high-risk enterprise, and those that get in trouble with foodborne illness, sanitation issues, or a customer injury, face liability, as well as the loss of reputation and the confidence of customers.

With these problems as a backdrop, COVID-19 might just be the last straw for many operations, which is tragic, given that so many workers depend on the industry for a livelihood, and consumers may no longer be able to enjoy the convenience and the wide variety of choices they have come to expect.

The FDA has recently published “Best Practices for Re-Opening Retail Food Establishments During the COVID-19 Pandemic.” This is helpful, and the industry has been expecting to receive such guidance. Now it falls on the local and state health departments to promulgate these standards into regulations and start enforcement.

The USFDA Food Code, adopted by most health departments, already has numerous provisions for communicable disease controls, and the provisions for exclusion or restriction of ill workers, sanitation and personal hygiene should be familiar concepts.

The challenge will be to translate what is known to be effective against the foodborne microorganisms in the “back of the house” into COVID-19 preventive measures in the “front of the house.” Customers and their habits cannot be controlled by the operator in the same way as worker practices, so a paradigm shift needs to take place.

I do not believe anyone has at this time a perfect answer to airborne transmission of COVID-19 in a restaurant, and therefore it is likely that we are going to see localized outbreaks with restaurants as a common exposure. With that will come exposure of the business to legal liability.

There is proposed federal legislation at this time to address the potential business risk that will come from lawsuits and COVID-19; but at the same time, we have FDA informing us of the best practices to reopen a restaurant. It is very likely that the local health departments will soon be tasked with regulation, inspection and investigation of restaurant related COVID-19 clusters. The public can be expected to file complaints, especially if they have observed a breakdown in protocols; if an outbreak occurs, the results could be devastating for an entire brand. 

In light of the public health and business risks, restaurant and bar operators must establish due diligence and implement the guidance we now have. The following check list is adapted from the afore mentioned FDA best practices guidance, with some additional recommendations:    

1. Inform employees that if they have tested positive for COVID-19, or have been in contact with a known positive case, that they must disclose this information immediately to management.
2. Exclude all employees exhibiting any symptom of communicable disease while on the job.
3. Remind employees not come to work when ill for any reason, but specifically if they have coughing, shortness of breath, and/or fever, and report such symptoms in themselves, family members, and close contacts.
4. Maintain a sick-log and watch for an uptick in employees calling in ill. Contact the health department if you suspect an outbreak is occurring.
5. Provide a written policy describing return to work procedures following the FDA guidance.
6. Post the following statement at the guest entrance “DO NOT ENTER if you are known to be positive for COVID-19 or have a cough, shortness of breath or fever.
7. Maintain a 6-foot distance between guests in seating areas, waiting areas, check out areas, or between guests on lines awaiting entry.
8. Place hand sanitizer stations at the guest entrances and at bathrooms, monitor guest behavior and ensure the sanitizers are being used.
9. Remove all common items from tables, including condiments and menus. 
10. Discontinue salad bars and buffet type self-service.
11. Maintain ware-washing equipment, proper wash temperatures and sanitizer concentrations.
12. All employees in contact with guests should wear a mask or other facial covering.
13. Bussers and others handling or cleaning used utensils or guest tables should be wearing sanitary gloves. The gloves need to changed frequently, but especially between handling soiled items and serving food.
14. Perform daily temperature checks of employees at the start of each meal period. Any employees with elevated temperatures should be excluded.
15. Observe guests for excessive coughing or sneezing, it may be necessary to ask such guests to leave the premises.
16. Maintain a high level of sanitation in restrooms, with hourly cleaning and sanitizing of fixtures and common touch points.
17. Ensure bathroom hand sinks are stocked with soap, warm water, paper towels or other approved hand drying method.
18. Use approved hard surface sanitizers following label directions, and clean and sanitize guests’ tables, chairs, and cushions between guests.
19. Clean and sanitize guest area floors nightly. 

We should recognize that especially in the beginning, implementing all of the preventive measures for COVID-19 may be difficult, or even impossible for some establishments; however, survival chances are better for those that are able restore public confidence in dining at their establishment. The public is expecting to see an obvious commitment by restaurants to their health and safety, and the best of the industry will step up to the plate. 

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