The Fiction of a Safe Meat Supply

When Oprah Winfrey announced on the air that she was going to give up hamburgers, she and her guest, Howard Lyman, were sued by the Texas Cattlemen's Association for disparaging their agricultural product. When ABC-TV's undercover cameras revealed unsafe meat handling at the Food Lion chain, they were immediately attacked by Food Lion, which did not dispute that it handled meat improperly, but objected to the network's "underhanded" tactics. A jury agreed with Food Lion."If that's the way the industry is going to react [to valid criticism], if it's going to sue anyone who disparages it or its products, then there has to be another incentive for them to provide safe food," says Sharlene W. Lassiter, professor of law at Northern Kentucky University's Salmon P. Chase College of Law. In "From Hoof to Hamburger: The Fiction of a Safe Meat Supply," her article published in the Spring 1997 issue of the Willamette Law Review, Lassiter concludes substantial criminal penalties -- including jail terms and fines hefty enough to mean something to multimillion-dollar global businesses -- are the American public's only real options if we want the people who control the nation's meat industry to take our health as seriously as we ourselves do.Unlike the average consumer, Lassiter is acutely aware of the dangers of unsafe food and its prevalence, especially when it comes to meat. She learned quite a bit from her mother, a medical technician. Later, when Lassiter herself served as a trial attorney for the US Department of Agriculture (USDA), her job entailed visiting slaughterhouses and learning "far more about the food chain that I really want to know." Now, as the mother of two preschoolers, she says she is "unwilling to trust the health of my children to a teenager who hasn't been taught how to handle meat properly." In that, she is in the distinct minority since, Lassiter notes, most Americans simply assume that the USDA, or someone out there, is inspecting our meat supply to assure its safety."The public," Lassiter writes in her law review piece, "which ingests meat, fish and poultry in forms and dishes that range from raw (e.g., steak tartare, steak cooked rare and sushi) to well-done, has a fundamental belief that existing governmental regulation of the meat supply, for the most part, has ensured a meat supply that will not cause injury or death as a consequence of ingestion."Unfortunately, she explains, that's not at all the case. For one thing, USDA meat inspectors are paid by the very industry that they are charged with policing. For another, there are far too few inspectors for far too many pounds of meat. Moreover, most meat inspection is done by the "organoleptic method," i.e., through sight and smell rather than by means of scientific methods to test for the presence of disease-causing organisms. The Clinton administration took a stab, so to speak, at correcting the inherent flaws of the USDA meat inspection process through the 1996 adoption of the Hazard Analysis Critical Control Point (HACCP) program, the nation's first regulatory effort to introduce some level of microscopic testing to the meat inspection process. Unfortunately, compliance is "assured" under HACCP guidelines by having the meat suppliers themselves supply test data to inspectors -- not exactly an iron-clad incentive to clean up their acts (or their ax, for that matter).In other words, it's another example of what many administration critics see as a long line of Clinton's people doing a brilliant job of identifying a problem, coming up with a solution, and then coping out when it comes to applying that solution. Lassiter herself does not level such criticism at the Clinton administration, but she does insist we ought to know better than to put the fox in charge of watching over the henhouse. Lassiter's article also suggests that, unless the American public is prepared to insist that its meat supply is inspected diligently, no one else is likely to do it for them. Certainly not the courts.A Few Little Maggots? You Call That Negligence?It may be the case that Joe Public presumes the meat on his table is safe and that, if something does go wrong, it is due to negligence on the part of a supplier. The American legal system, however, makes no such assumption. In assigning responsibility for the "reasonable care" necessary to ensure that Joe Public doesn't eat something that is going to make him ill or even kill him, courts in this country have almost invariably assumed everyone possesses Lassiter's level of knowledge. In suit after suit in state after state, year after year, therefore, courts have determined that those who get sick or die from eating toxic meat have only themselves to blame.In one precedent-setting 1937 decision, the supreme court of California held that "The mere presence of maggots on a link of sausage that the plaintiff purchased, cooked and consumed did not prove in itself that the meat was putrid and unwholesome when the defendant sold it."Another example cited by Lassiter of judges' tendency to let meat and fish eaters fend for themselves is the Washington supreme court's 1942 decision in Geisness v. Scow Bay Packing Co., Inc., wherein the court states that it will not be impressed "...merely by showing that the plaintiff became sick [or, in this case, actually dying after eating tainted canned salmon] after eating ... it must be shown that the food was unwholesome at the time the original package was opened ... "But it was the Illinois supreme court, all the way back in 1897, which uncorked a decision that, as Lassiter explains, "may limit liability in connection with raw meat, and underscores the importance of governmental action. In Wiedeman v. Keller, the Illinois justices decreed: "It would seem best, on the whole, to let the ordinary maxim of caveat emptor apply to all sales of specific and selected articles ultimately destined for food..."Caveat emptor -- let the buyer beware. In common parlance or as a legal doctrine, the Latin phrase signifies that a purchaser of goods has or is expected to have sufficient information to judge the quality of that purchase. According to the courts in most meat-related civil suits, American consumers know enough to protect themselves against contaminated meat -- and if they don't, according to the courts, they should . When shopping for meat, the courts assume, consumers are going to cook it themselves, as opposed to being served in a restaurant. Jane Q. Public deliberately selected this package, not that one, and so ingesting contaminated meat, or serving it to her family, the courts reason, was her choice.Choosing to Poison Your FamilyRealistically, of course, few choose to serve or eat tainted meat. For one thing, we are not all closely educated in the recent of meat production. If we were, of course, we would know about the appearance in beef, in the 1980s, of a new strain of E. coli (a naturally occurring bacteria in animals and people) that can be fatal to children and the elderly. Given the meat industry's penchant for suing people who suggest there may be something wrong with their products, the prospects are not rosy for widespread dissemination of such knowledge to the American public.Further, Lassiter points out, the economics of meat production make it almost impossible to trace contaminated meat, particularly ground beef, to a single source. Numerous slaughterhouses can send meat to a single processing house, which distributes to numerous chain stores and restaurants -- tracing it back to a single source of infection is notoriously difficult.Which is why, says Lassiter, that even in those very few cases in which a civil suit results in what may appear to be a significant financial penalty, the ultimate impact for the meat suppliers amounts to nothing more than another cost of doing business.Take, for example, the celebrated case against a Jackin-the-Box in California. Three children died after eating E. coli tainted burgers. Unlike most lawsuits, which are often settled for under $3,000 and subsequently overturned by appellate courts, this one, largely because it involved children and a fast-food chain that was concerned with limiting bad publicity insofar as it could, resulted in a $23 million settlement. In a multimillion-dollar industry, however, even that much cash amounts to chump change. And the settlement was shared among 15 defendants all the way up the "fast food chain."One Law Professor's Solution: Put Folks in Jail The past history and the current reality of court decisions in this country concerning illness resulting from bad meat, fish and poultry means that, according to Lassiter, "We've pretty much capped the liability under the adversarial system." If we're going to rely on civil suits to scare meat suppliers into producing safe meat, she says, "We have to wait until the cost-benefit analysis shifts; We've got to make the transfer to a real cost for not making change." Given the history of such civil suits, that may be a long wait indeed.Ergo, says Lassiter, incentives are needed: "The reason most people don't kill each other every day is there is a negative incentive associated with prison." And that, she says, may be the only incentive that will mean anything to meat suppliers."I'm making some assumptions about behavior," Lassiter says. Not surprisingly, they are a lawyer's assumptions. But even those of us who may be prone to assumptions that people can be taught to do the right thing because it is the right thing would have to concede that, given the penchant of American business to take what it can get away with, meaningful reform from within is not a likely option."We can pass laws, and HACCP sounds great," says Lassiter, "but it relies only on record keeping, not even the normal type of sight inspection, and all it takes is one bad-faith slaughterhouse." Furthermore, the law contains no clear definition of adulterated meat or any mechanism for tracing it back to its source. "We at the very least need some immunity for whistle-blowers who can report wrongdoing. If nobody is going to enforce it, what good is it?" We could also, she says, rely on civil suits, but experience has shown that consumers almost always lose, and even if they don't, a company usually has to pay as little as $1500-$3000 to compensate for a death. Not exactly a dent in the industry's big-time bottom line.We could also rely on our elected officials to protect us, but, says Lassiter, "The government has entirely too many interests to balance. When the interests of the individual or the public are balanced against the interests of an industry, it always tips toward the industry. Consumers are not the first priority."We could rely on education, and some steps are being taken in that direction€most packaged meat comes with instructions on how it should be cooked. This assumes, however, 1) that most people can read (20 percent of adult Americans can't), and 2) that they understand these are safety, not culinary, instructions. Lassiter's children know "if it's pink we don't touch it," but hers are the children of a highly educated attorney knowledgeable about the industry. Most public school kids don't even get Home Economics or basic hygiene classes anymore. Which brings us back to what John and Jane Q. Public think is happening: i.e., that there is in place a regulatory process that attempts to ensure the safety of meat before it shows up at the local supermarket. The only option left, Lassiter says, is making such violations as providing fraudulent HACCP records a felony, punishable by one-three year jail terms for everyone responsible and fines of at least $100,000 per offense."If," she writes, "it is true that microscopic testing of the meat supply during the production process is the desired and preferable mechanism for detecting dangerous pathogens such as E. coli or salmonella in the meat supply, then the costs associated with failing to test the meat must exceed the benefits derived from the decision not to test the meat."Such conclusions, coming from a law professor with a background as a government lawyer, could well ruin the appetites of certain big eaters in the American meat industry. On the other hand, if the pols take Lassiter's ideas seriously, a lot fewer of the rest of us may be getting sick in the future.Sidebar OneProfessor Sharlene Lassiter's "Meat Eater's Survival Guide" What can you do to be as certain as you can that the meat you and your family eats is safe? If you take Sharlene Lassiter's advice, it comes down to two kinds of proactive behavior -- be knowledgeable, and be fussy. Of course, you'll probably find you end up paying for safe meat; but that may be better than paying in other ways for meat that isn't safe.Going DutchAmericans are used to and expect to have an inexpensive food supply. Safe meat is are available but expensive. As Lassiter says, "In Holland there is no E. coli problem whatsoever. They pay about three times more for meat than Americans. We don't want to pay what the Europeans do." For those who are interested in paying, they can find sources of more safely handled meat).Spare the RareIn restaurants, don't order your meat rare or medium rare. (Not usually a problem with poultry, since most people don't like pink chicken, but beef, lamb and even pork are now a different story). If you like raw fish, go to a reputable place known for sushi and ask questions about their handling and suppliers.Take This Thermometer and Stick It!Buy a meat thermometer and use it. Guidelines for cooking temperatures are not merely about taste€they are about safety. Follow, and teach your children to follow, simple hygiene procedures€was hands after handling raw foods, between handling meat and vegetables, and after using bathroom. Keep separate utensils, including knives and cutting boards, for raw meat and other products.It All Comes Out in the Wash!Do not assume the safety of any food you purchase, including fruit and vegetables. Lassiter advises that a lot of "fresh" produce is now imported from countries with even laxer standards than ours." No matter where you buy it from, make sure produce is thoroughly washed and/or cooked before you serve it.

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