Understanding Why Foster Farms has Not Been Required to Issue a Recall
There have been 124 reported illnesses linked to the antibiotic resistant Salmonella Heidelberg bacteria that Oregon and Washington State officials have traced many of those illnesses back to contaminated Foster Farms’ chicken.
The chicken, which was produced at the California and Washington State facilities of Foster Farms, was placed into the stream of commerce with full knowledge that it contained salmonella. And surprisingly, Foster Farms seems completely unapologetic about that fact, though it has expressed some concern for the ill persons. Foster Farms is taking a rather matter-of-fact approach, stating that all chicken has bacteria and customers know this and should make sure to properly prepare the chicken and prevent cross-contamination. In short, Foster Farms is arguing if the product makes a person sick, that person or the person preparing the meal is to blame.
Ron Simon, a national food poisoning attorney who has represented thousands of food poisoning victims, disagrees—as do many food safety pundits and consumer advocates. So the question remains, why is it that Foster Farms is not compelled to issue a recall of its infected product? Ron Simon explained the reason, noting “the Food and Drug Administration regulates most food in the United States, but not all of it. Meat is regulated by the United States Department of Agriculture’s Food Safety and Inspection Service (USDA FSIS), and they operate in a very different way than the FDA.” The FDA has a zero-tolerance policy on what is termed “adulterated foods” in the marketplace, with an adulterated food including any food that has a pathogen like salmonella, listeria, campylobacter, E. coli, botulism, etc… that has the potential to make consumers ill. The FDA mandates recalls consistently on products like peanut butter, sprouts, cantaloupe, strawberries, salmon (seafood is under the FDA regulatory scheme), and leafy greens when they contain a pathogen. In fact, there have been a number of recalls already this year, including products that tested positive for E. coli and listeria, even where there were no reported illnesses associated with the product. And just last year, the FDA even used its newly enhanced powers to strip Sunland Inc., a Portales New Mexico producer of organic Valencia-style peanut products, of its certification (it reinstated the company’s ability to produce and sell products after the company came into compliance on a list of issues).
So why is Foster Farms not issuing a recall? Simon explains “the FSIS has a similar mandate, but they are much more tolerant. The FSIS has a short list of pathogens, seven of which are variants of E. coli, for which it has a zero-tolerance policy on distribution. And salmonella is not on that list.” In fact, Foster Farms has referenced the FSIS’s policy on salmonella, stating that it meets or exceeds the requirements set by the FSIS for salmonella content in its chicken product. And because it is in compliance, Foster Farms is not mandated (at present) to issue a recall. And Foster Farms has chosen, whether due to the cost or perhaps due to the damage a recall would cause the brand, not to do so voluntarily.
Will USDA and FSIS Officials Press For Congressional Hearings?
The FSIS’s tolerant policy, however, may end soon. Ron Simon, who has seen the impact that products tainted with Salmonella Heidelberg can do to a family, states “the FSIS is only one fatality away from facing the same criticism the FDA faced after it failed to rein in the pharmaceutical industry before last year’s fungal meningitis outbreak.” Simon was referring to the strong public criticism, and Congressional hearings, that castigated the FDA for failing to prevent so many injuries and deaths by failing to employ its regulatory authority. Simon points out how the FDA’s reaction to Sunland Inc.’s salmonella outbreak, shortly following the fungal meningitis outbreak, was much more proactive. Simon anticipates that the FSIS will face the same extreme public pressure and Congressional oversight if it fails to act to prevent significant numbers of people from becoming ill through its own failure to act more aggressively. The impetus for this change may be the Foster Farms outbreak or it may be the next outbreak linked to meat products, but at some point the FSIS will be compelled to act more forcibly.
For now, there is no recall and the only recourse the victims will have is to turn to a salmonella lawyer like Ron Simon, who has stated “it is my job to help these people recover for their injuries and to hold Foster Farms liable for the damage it has caused to innocent consumers.” “If filing salmonella lawsuits is the only way to make Foster Farms behave in a more responsible manner, than that is exactly what we will do,” Simon added.