A Bug in the System: Why last night’s chicken made you sick

Wil S. Hylton, A Bug in the System: Why last night’s chicken made you sick. The New Yorker, 2 February 2015. “Late one night in September of 2013, Rick Schiller awoke in bed with his right leg throbbing. Schiller, who is in his fifties, lives in San Jose, California. He had been feeling ill all week, and, as he reached under the covers, he found his leg hot to the touch. He struggled to sit upright, then turned on a light and pulled back the sheet. “My leg was about twice the normal size, maybe even three times,” he told me. “And it was hard as a rock, and bright purple.”… At the hospital, five employees helped move Schiller from the car to a consulting room. When a doctor examined his leg, she warned him that it was so swollen there was a chance it might burst. She tried to remove fluid with a needle, but nothing came out. “So she goes in with a bigger needle—nothing comes out,” Schiller said. “Then she goes in with a huge needle, like the size of a pencil lead—nothing comes out.” When the doctor tugged on the plunger, the syringe filled with a chunky, meatlike substance. “And then she gasped,” Schiller said.”

That night, he drifted in and out of consciousness in his hospital room. His temperature rose to a hundred and three degrees and his right eye oozed fluid that crusted over his face. Schiller’s doctors found that he had contracted a form of the salmonella bacterium, known as Salmonella Heidelberg, which triggered a cascade of conditions, including an inflamed colon and an acute form of arthritis. The source of the infection was most likely something he had eaten, but Schiller had no idea what. He spent four days in intensive care before he could stand again and navigate the hallways. On the fifth day, he went home, but the right side of his body still felt weak, trembly, and sore, and he suffered from constant headaches. His doctors warned that he might never fully recover….

Each year, contaminated food sickens forty-eight million Americans, of whom a hundred and twenty-eight thousand are hospitalized, and three thousand die. Many of the deadliest pathogens, such as E. coli and listeria, are comparatively rare; many of the most widespread, such as norovirus, are mercifully mild. Salmonella is both common and potentially lethal. It infects more than a million Americans each year, sending nineteen thousand victims to the hospital, and killing more people than any other food-borne pathogen. A recent U.S.D.A. study found that twenty-four per cent of all cut-up chicken parts are contaminated by some form of salmonella. Another study, by Consumer Reports, found that more than a third of chicken breasts tainted with salmonella carried a drug-resistant strain….

Identifying the cause of an outbreak is much simpler than trying to stop one. Once officials have traced the contamination to a food producer, the responsibility to curb the problem falls to the U.S.D.A.’s Food Safety and Inspection Service, or F.S.I.S. In the summer of 2013, as the outbreak spread, F.S.I.S. officials shared the C.D.C.’s conclusion that Foster Farms meat was behind the outbreak, but they had no power to force a recall of the tainted chicken. Federal law permits a certain level of salmonella contamination in raw meat. But when federal limits are breached, and officials believe that a recall is necessary, their only option is to ask the producer to remove the product voluntarily. Even then, officials may only request a recall when they have proof that the meat is already making customers sick. As evidence, the F.S.I.S. typically must find a genetic match between the salmonella in a victim’s body and the salmonella in a package of meat that is still in the victim’s possession, with its label still attached. If the patient has already eaten the meat, discarded the package, or removed the label, the link becomes difficult to make, and officials can’t request a voluntary recall….

During the past twenty years, [Bill] Marler has become the most prominent and powerful food-safety attorney in the country…. His law firm, on the twenty-eighth floor of a Seattle office building, has filed hundreds of lawsuits against many of the largest food producers in the world. By his estimate, he has won more than six hundred million dollars in verdicts and settlements, of which his firm keeps about twenty per cent.

Given the struggles of his clients—victims of organ failure, sepsis, and paralysis—Marler says it can be tempting to dismiss him as a “bloodsucking ambulance chaser who exploits other people’s personal tragedies.” But many people who work in food safety believe that Marler is one of the few functioning pieces in a broken system. Food-borne illness, they point out, is pervasive but mostly preventable when simple precautions are taken in the production process. In Denmark, for instance, after a surge of salmonella cases in the nineteen-eighties, poultry workers were made to wash their hands and change clothing on entering the plant and to perform extensive microbiological testing. Sanctions—including recalls—are imposed as soon as a pathogen is found. As a result, salmonella contamination has fallen to less than two per cent. Similar results have been achieved in other European countries.

In the U.S., responsibility for food safety is divided among fifteen federal agencies. The most important, in addition to the F.S.I.S., is the Food and Drug Administration, in the Department of Health and Human Services. In theory, the line between these two should be simple: the F.S.I.S. inspects meat and poultry; the F.D.A. covers everything else. In practice, that line is hopelessly blurred. Fish are the province of the F.D.A.—except catfish, which falls under the F.S.I.S. Frozen cheese pizza is regulated by the F.D.A., but frozen pizza with slices of pepperoni is monitored by the F.S.I.S. Bagel dogs are F.D.A.; corn dogs, F.S.I.S. The skin of a link sausage is F.D.A., but the meat inside is F.S.I.S….

Privately, officials at the F.S.I.S. say that they would like to take a more aggressive stand on salmonella. But an agency ruling like the one twenty years ago on E. coli would almost certainly fail in court today. In the past forty years, federal judges have severely limited the agency’s power. That history began, by most accounts, with a 1974 lawsuit in which the American Public Health Association sued the U.S.D.A. to demand that it print bacterial warnings on raw meat. An appellate court ruled that the warnings were unnecessary, because customers already knew that meat carries bacteria. “American housewives and cooks normally are not ignorant or stupid,” the judge wrote.

When another court ruled in favor of the F.S.I.S. decision to declare E. coli an adulterant, the ruling included a passage to prevent the F.S.I.S. from applying the same label to other bacteria: “Courts have held that other pathogens, such as salmonella, are not adulterants.” In response to that decision, in 1996 the F.S.I.S. enacted a series of new rules to curb pathogens like salmonella. For whole chickens, the salmonella “performance standard” was set at twenty per cent, meaning that one in every five bird carcasses could be contaminated. That standard has since been lowered to 7.5 per cent, but the performance standard for salmonella in ground chicken is much higher—44.6 per cent—and for ground turkey it is 49.9 per cent. “Which means that almost half of all your ground chicken that goes off the line can actually test positive for salmonella,” Urvashi Rangan, the director of food safety at Consumer Reports, told me.

Some products, such as cut-up chicken parts, have no performance standard at all. A hundred per cent of the product in supermarkets may be contaminated without running afoul of federal limits. Rangan told me that she was stunned when she discovered this, just recently: “We’ve asked the U.S.D.A. point blank, ‘So does that mean there aren’t standards for lamb chops and pork ribs?’ And they said, ‘Yeah, we don’t have standards for those.’ ”…

Even when the agency sets a pathogen limit and a producer exceeds it, officials have few options. Under the terms of a 1999 lawsuit, inspectors may not shut down a facility because of a failure to meet contamination limits. Instead, officials must use indirect measures to put pressure on the company, such as posting news of the violation on the F.S.I.S. Web site, which could embarrass company executives. Derfler [deputy administrator of the F.S.I.S.] told me that the agency’s work-arounds have been effective….

In December of 2013, officials at the F.S.I.S. unveiled a new “Salmonella Action Plan.” At the heart of the plan was a “poultry-slaughter rule,” which would reduce the number of federal inspectors observing the production line at slaughterhouses. Derfler told me that this will allow the agency to place “a greater emphasis on microbiology” and added that the rule also requires plants to do their own testing. Critics of the plan wonder how it is possible to improve food safety by removing inspectors. On March 13th of last year [2014], Representative Louise Slaughter, who is the only member of Congress with a degree in microbiology, and ten other members of the House, including Rosa DeLauro, wrote a letter to the F.S.I.S., calling certain aspects of the new plan “pernicious” and asking that it be suspended. Nevertheless, the fiscal budget for 2015 assumes that it will go into effect, and cuts the funding for several hundred federal meat inspectors.

Marler opposes the new poultry rule, but he says that the real issue is the inspectors’ inability to close a plant when they detect high levels of food-borne pathogens….

In 2011, the Center for Science in the Public Interest, a nonprofit advocacy group, submitted a petition to the F.S.I.S. arguing that the four most vicious types of salmonella should be declared adulterants, like E. coli. The agency issued no response and, in May of last year [2014], Marler consulted with the center on a lawsuit demanding a reply to the petition. On July 31st, officials formally rejected the proposal, claiming that “more data are needed.”

Marler scoffed at the claim. “One part of the meat industry is just ignoring twenty years of progress on the other side,” he said. “They’re using the same words, the same press releases, the same language that they used twenty years ago, when they were saying, ‘Oh, my God, the sky will fall if you label E. coli O157 as an adulterant.’ ”…