In an article that will soon be published in the Seattle Law Review, I take a look at food safety through the lens of the “pink slime” controversy and question whether the lack of real transparency that characterizes food safety regulation, especially with regard to meat and poultry, is more intentional strategy of agencies and industry than by-product of the public not simply wanting to think about just how unsafe food can be.[1] In the article, I compare the USDA and the meat industry to the Wizard of Oz, an entity that Dorothy, her traveling companions, and those living in Oz all thought was “great and powerful”—that is, until he was revealed to be a huckster who was fooling everyone through trickery and special effects. But in reading some recent remarks by Brian Ronholm, Deputy Under Secretary at the U.S. Department of Agriculture’s Food Safety and Inspection Service, another comparison for the USDA and its regulation of meat and poultry quickly came to mind: the Cowardly Lion.

As reported by Food Safety News, Ronholm was appearing at the 2015 National Food Policy Conference in Washington, D.C. when asked about the agency’s policy on declaring Salmonella an “adulterant” under the Federal Meat Inspection Act. According to the article:

Ronholm explained that the interpretation of why E. coli is an adulterant in ground beef but Salmonella isn’t adulterating poultry stems from past court cases.

“There are several ways to cook a burger: rare, medium, well-done. In the court’s mind, because there are several ways, it’s possible to not cook E. coli out of a burger,” Ronholm said. “Now look at poultry. In the court’s mind, there’s only one way to cook a chicken. You cook it to 165 degrees and it kills the Salmonella.”

“Because ordinary cooking is able to kill Salmonella, in the court’s mind, it cannot be declared an adulterant,” he added.

The court (and court case) he is referring to is one with which I am exceedingly familiar, not only because I have been an attorney handling food-related cases for over twenty years, but because I also a professor of food law and policy, and this semester my students and I spent several hours of class time both unpacking this particular case and also the historical evolution of USDA policy on adulterants in meat. And although I readily admit that there are grounds for reasonable disagreement when interpreting a court case, I am nonetheless one-hundred percent confident in asserting that Ronholm is either telling a big fat lie, or the attorneys at USDA are telling their bosses what they want to hear to justify continuing and cowardly inaction on the Salmonella front.

Like so much that USDA does, it wants to appear busily in action, convincing the public that “We are on it!” and “No need to worry!” At the same time, they repeatedly trot out this line of defense with regard to Salmonella in meat, claiming that “Our hands are tied!” and blaming it on the courts. But all of this is clearly subterfuge, and I would be shocked if the Ronholm and other higher-ups at the USDA were unaware of the real duplicity at work here. Because the no court has tied the USDA’s hands. Instead, USDA is sitting on its hands while millions are infected with Salmonella and injured each year.

So let’s look at this case that Ronholm cites—American Public Health Association v. Butz, a 1974 decision of the D.C. Circuit Court of Appeals. This stemmed from a lawsuit that APHA, one of the leading public health associations in the United States, had filed against the USDA. In the lawsuit that APHA accused the USDA of “misbranding,” a violation of the FMIA, because the agency was placing the mark-of-inspection (“USDA inspected and passed”) on meat and poultry in a way that was false and misleading, and by failing to warn against the dangers of Salmonella. The APHA further argued that the USDA had abused its discretion in refusing to add a warning and instructions for proper preparation and storage to the mark-of-inspection.

The warning that APHA sought read as follows: “Caution: Improper handling and inadequate cooking of this product may be hazardous to your health. Despite careful government inspection, some disease-producing organisms may be present. Consult your local health department for information on the safe handling and preparation of this product.” Of course, a similar warning now DOES appear on all meat and poultry products, an indication of just how much has changed since 1974. And it is that change that matters so much when seeking to understand just how disingenuous the USDA is being now when it points to APHA v. Butz decision as evidence that the Court over forty years ago tied its hands, and that its hand remain tied today, preventing it from taking more effective action against the illness and death caused by Salmonella-contaminated meat and poultry.

At the time of the APHA lawsuit, the USDA did not consider pathogens in raw meat to be adulterants—any pathogens, including E. coli O157:H7. The USDA was still in the “poke and sniff” era of meat inspection that had commenced with the passage of the FMIA in 1906. But plainly the USDA position changed in the wake of the 1993 Jack in the Box E. coli outbreak, and today we have both warning and instruction labels on meat, but we have USDA declarations that certain pathogens are “adulterants” within the meaning of the FMIA when present on raw meat. And recall, the USDA was sued when it made these declarations, and the USDA fought in court and won. That is the nature of the beast when it comes to the USDA imposing stricter regulations. A lawsuit is like the sun rising in the morning and setting in the evening: inevitable. And while there was a time when the USDA appeared to have the courage of its convictions, that time has seemed to have passed in a decision way.

But back to the APHA decision and the USDA’s present dissembling. Ronholm claims that the court in its decision affirming the dismissal of the APHA’s lawsuit, the court specifically decided that “Because ordinary cooking is able to kill Salmonella,…it cannot be declared an adulterant.” That claim is untrue.

First, note that the position of the USDA in front of both the trial court  and on appeal was that “since ‘there are numerous sources of contamination which might contribute to the overall problem’ it would be ‘unjustified to single out the meat industry and ask that the Department require it to identify its raw products as being hazardous to health. Such an act would have to apply to any and all sources of salmonellae in order to be fairly administered.’” The USDA was defending the meat industry’s interests here, and the USDA inspection policy overall, which was, as noted above, premised on the notion that there was no such thing as an “adulterant” in raw meat, and that meat was, as a by-product of how it was slaughtered, inevitably going to be contaminated, thus making such contamination “inherent” to meat. But the USDA no longer accepts this premise as true. The agency’s position has changed. If it had not changed, then E. coli O157:H7 could not be declared an adulterant either.

Second, the observation about “ordinary cooking” is not an observation that the court made; it is an observation that the USDA made. Here is what the court decision actually says (emphasis added):

As the Department said in its letter of August 18, 1971 “the American consumer knows that raw meat and poultry are not sterile and, if handled improperly, perhaps could cause illness.” In other words, American housewives and cooks normally are not ignorant or stupid and their methods of preparing and cooking of food do not ordinarily result in salmonellosis.

Of course, the somewhat sexist  “in other words” rephrasing of the USDA’s position is the court speaking, but most first-year law students could easily explain, that is not the court’s holding in the case and, as a result, it has no precedential or binding power. Thus, Ronholm was plainly wrong when he asserted ”in the court’s mind, [Salmonella] cannot be declared an adulterant.” No—in 1974, that was in the USDA’s mind; and, apparently, it still is. But please don’t blame it on the court.

Third, and also apropos the “customary methods of preparing food for the table,” which is the phrase that end’s majority opinion in this case, the issue before the court with regard to consumer knowledge of the risk of salmonella related to APHA’s attempt to require a warning label on meat and poultry, not about whether Salmonella could be declared an adulterant, an issue not before the court. In ruling on the issue of the warning label, the court did nothing more than defer to the agency’s discretion. As the court explained,

After carefully considering the appellants’ proposals the Secretary concluded that warning labels were not the answer to the problem and that the solution was a consumer education program which the Department proposed to undertake. We cannot say that this conclusion was unreasonable; certainly we may not substitute our judgment for that of the Secretary.

Finally, on the question of whether the court decided anything with regard to Salmonella’s presence being an adulterant, it must be remembered that the issue before the court was whether the USDA mark-of-inspection was “false and misleading” for stating that the meat was “passed and inspected” even though Salmonella might be presence. On that central issue, what the court decided was about the method of USDA inspection, a method that, as the court noted, APHA had conceded was reasonable.

As alleged in the complaint, and established by the record, “The inspection procedures now required by the Wholesome Meat Act and the Wholesome Poultry Products Act do not include any investigation to detect the presence of salmonella in meat or poultry, because no such microscopic examination is considered feasible as a routine matter.” The reason for this situation is apparent: a poultry inspector, for example, may conduct post mortem examinations of more than 10,000 birds in one day. Microscopic examination of each bird would obviously be impractical. Recognizing and accepting this fact the appellants do not seek revision of inspection techniques.

Accordingly, against the backdro of the APHA concession, which the court accepts, the court then confronted the issue of whether, despite this conception, the mark-of-inspection constituted “misbranding” for the USDA having placed it on meat that was contaminated with Salmonella. The court said no, and here is why.

In construing both the Wholesome Meat Act and the Wholesome Poultry Products Act we are mindful that the presence of salmonellae can be detected only by microscopic examination. No one contends that Congress meant that inspections should include such examinations. We think it follows therefore that Congress did not intend the prescribed official legends to import a finding that meat and poultry products were free from salmonellae.

In other words, because the FMIA does not require “microscopic examination” of meat as the method of inspection, and because only such examination can reveal the presence of Salmonella, the mark of inspection is not “false and misleading” as a result of there being the possibility that Salmonella might be present on the meat sold. And who can really quibble with such logic? Not me.

But here is the problem. The USDA now tests for the presence of Salmonella, and USDA inspection is built upon the foundation of the microscopic examination of meat and poultry.  So let me ask you this: Flash forward the APHA v. Butz case to the present. Do you think the court would now reach the same decision?  For a clue, let’s look at what the dissenting judge in the case wrote:

My colleagues try to support their holding by the claim that Congress “did not intend the prescribed official legends to import a finding that meat and poultry products were free from salmonellae.” That observation, I submit, is wide of the mark. Congressional intent is not helpful in determining whether the labels are misleading; the relevant inquiry is the understanding of consumers. Appellants proffer evidence tending to show that consumers in large numbers understand the challenged labels to mean that the Federal Government has inspected the labeled food products for the presence of salmonellae. That indication is false, for no such inspections are ever made, and labeled products are “passed” even if they contain salmonellae.

In the end, what is so untenable and troubling about the USDA’s position on all of this, is how much it rests on a view of meat and meat inspection that was supposed to have gone away after the tragedy of the Jack in the Box outbreak. There was a time when it seemed that the USDA was going to embrace its public health mission and choose to fight for safer meat, even if the face of threatened lawsuits. But, alas, it seems to now be back to its old ways, a Cowardly Lion, afraid of its own self-made shadows.