It’s a “twofer” because Marler Clark’s new comments were submitted under two dockets — the FSIS Salmonella in Certain Not-Ready-to-Eat Stuffed (NRTE) Chicken projects and the petition the Seattle law firm previously submitted calling for “Outbreak” Salmonella serotypes to be listed as adulterants. If a food is deemed adulterated it cannot be sold.

Salmonella is so frequently found in U.S. poultry that some food scientists say it is a biological hazard in consumers’ kitchens. FSIS denied Marler Clark’s 61-page petition to address all Outbreak strains. The petition was submitted on behalf of families damaged by Salmonella and several consumer organizations.

The new Marler Clark comments support FSIS’s proposal to regulate Salmonella at levels of 1 colony forming unit (CFU) in NRTE breaded stuffed chicken. It says, “we maintain that the Agency must adopt more robust measures to tackle the Salmonella problem effectively.”

“FSIS’s proposed determination on Salmonella in breaded stuffed chicken products was supported by various factors, one being the investigation of 14 Salmonella outbreaks and 200 illnesses linked to these products since 1998. But according to CDC, Salmonella bacteria cause a staggering 1.35 million illnesses, resulting in 26,500 hospitalizations and 420 deaths in the United States every year,” Marler Clark’s Aug. 14 letter says.

The new comments clarify that the law firm wants a response, not just a denial, to its previous petition. The petition was not an “all or nothing” request but presented 31 Salmonella serotypes that scientific fact or statutory law would justify adulterant status.

FSIS responded “in a serotype-specific” way for three serotypes, but the agenda was silent about the other 28. Marler Clark says denying its petition “was insufficient as a matter of law.”

FSIS said it could not “justify issuing the broad interpretive rule” that “would declare all Salmonella” as added substances in all products.

On behalf of its clients, Marler Clark may seek judicial review of the FSIS denial.   Marler Clark’s latest comments say an agency that  is “incomplete and evasive” isn’t given deference during the review.

Marler Clark says the agency “primarily” used “straw-man” arguments in denying their petition. “Nothing in the Petition asserted that ‘grave health and safety problems’ posed by Salmonella in raw poultry or meat could not be addressed unless thirty-one serotypes were declared adulterant,” the Seattle law firm said.

It points out that FSIS’s data finds five stereotypes are responsible for 60 percent of USDA-regulated products.

USDA recognizes the Salmonella strains are “injurious to health,” but Marler Clark claims the FSIS “offered a laundry list of reasons not to regulate.”  “In the meantime, as the Agency hosts roundtables and ponders an ‘updated’ Salmonella strategy…necessary to reduce such illnesses,” the significant portion of the approximately 1.35 million cases of salmonellas that occur each year.

The incidence of salmonellosis from poultry exceeds the CDC’s Healthy People 2030 objective of 11.5 cases per 100,000 population with no substantial deductions in two decades.

The Marler Clark comments conclude by saying “no reasonable interpretation” of FSIS regulations that do not require at least some Salmonella Salmonella serotypes to be adulterants when present in specific quantities.