Still a Jungle

In an environment of drug-resistant pathogens and pink slime, why do the food industry and government place the onus for safety on consumers?

By Adam Sheingate

Tagged Consumer ProtectionFood Policy

In August 2011, Shelly Occhipinti-Krout, a 48-year-old mother of three from Parker, Colorado, became ill. Suffering from flu-like symptoms, Shelly collapsed at home and was taken to the hospital, where she went into cardiac arrest. By the time her doctors determined that she was suffering from listeria poisoning, Shelly was in a medically induced coma.

Although listeria, a bacterium, is most commonly found in prepared foods and meats, agents from the Centers for Disease Control and Prevention (CDC) Outbreak and Response Team determined that the source of the outbreak was cantaloupe from a farm in southeastern Colorado. The farm, along with distributors in Kansas City, Kansas, and Buffalo, New York, issued a recall, but not before listeria-tainted cantaloupe reached supermarkets across the country, sickening 146 people in 28 states. By the time CDC investigators concluded their investigation that December, Shelly and 29 others had died.

Shelly’s story is not uncommon. Each year, 48 million Americans suffer from illnesses caused by a foodborne pathogen. Most, if not all, who read this article have suffered from foodborne illness at one time or another. For the vast majority affected, food poisoning results in temporary gastrointestinal distress. For others, though, the effects are much more serious. According to CDC estimates, more than 125,000 Americans are hospitalized and 3,000 die each year from microbial pathogens including salmonella, E. coli, and listeria. Estimates of the cost of foodborne illness in terms of health care and lost productivity exceed $75 billion a year. Although the number of laboratory-confirmed cases has declined for some pathogens, cases of salmonella, the leading cause of hospitalization and death from foodborne illness, remain stubbornly high and have even increased slightly in recent years. In fact, many incidents of mild foodborne illness go undetected, making it difficult to monitor and track diseases accurately.

That eating a piece of cantaloupe could result in lifelong disability or death comes as a shock to most Americans, who believe we largely solved this problem back in Upton Sinclair’s day. In fact, the rules and regulations that we assume will protect us are inadequate and incomplete. Duplication and gaps in government responsibilities leave us vulnerable to a variety of risks associated with industrial food production. Meanwhile, a steady stream of worrying revelations belies any notion that the current system of protection is up to the task. Whether it is the decision by the U.S. Department of Agriculture (USDA) to use reconstituted meat treated with ammonia in the federal school lunch program (so-called pink slime) or the recent discovery that poultry producers are using a class of critical antibiotics banned from animal production in 2005, the federal government appears either unwilling or unable to protect us.

In order to truly improve food safety, government must have more effective tools to prevent foodborne illness. At the same time, problems of administrative overlap must be remedied so that we can manage the risks of our modern food system. However, the politics of food safety pose significant obstacles to reform. Whereas industry can exercise its influence through multiple means, from congressional lobbying to executive rulemaking to legal action, consumers and public health advocates have fewer opportunities to shape the debate or bend policies toward the goals of consumer protection.

This problem is compounded by a political culture that places much of the responsibility for food safety on consumers. Outbreaks of deadly pathogens might produce measured outrage, but rarely enough to prompt politicians to push for more stringent controls on industry practices or address the bureaucratic and legal shortcomings of our current regulatory regime. Successful reform requires that we reframe the food-safety issue so that industry and government accept greater responsibility for illness outbreaks when they occur.

In this regard, food safety is part of a larger struggle in American politics. Across a range of issues, be it health care, retirement security, or consumer finance, individuals and their families are forced to bear a greater share of the risks associated with modern life. The battles over food safety reflect this broader trend: Both industry and government, perhaps for different reasons, have a joint interest in shifting the onus on to consumers. The lesson of food safety is that a more vocal and empowered consumer movement will not only help protect us and our children from unsafe food, but could shift our politics in a progressive direction as well.

Pathogens and Pathologies

We have always lived with the risk of foodborne illness; methods of curing that date back millennia testify to human attempts to preserve and protect our food. In the United States, food safety became a national concern at the turn of the twentieth century. Spurred by the sensational horrors of Sinclair’s The Jungle, Congress passed the Pure Food and Drug Act and the Meat Inspection Act in 1906. The two laws marked an important first step in protecting American consumers: The Pure Food and Drug Act prevented the sale of adulterated or misleadingly labeled foods, while the Meat Inspection Act prevented sick or diseased animals from entering our food supply. The difference may be subtle, but the result was to divide authority for food safety among multiple agencies, a decision that would have important implications as the food system became more complex and new kinds of foodborne risks emerged. Today, a combination of more virulent pathogens and administrative pathologies leaves us at greater risk of foodborne illness.

Five pathogens account for almost 90 percent of the most serious cases of food-related illness (the CDC estimates four times as many are sickened by unknown or unspecified pathogens). Norovirus is the most common food-related cause of acute gastroenteritis; more than 20 million people are sickened each year, although only a fraction of those cases result in hospitalization or death. In terms of acute risk, salmonella is the leading cause of food-related hospitalizations and death in the United States with 40,000 cases reported annually. Because many milder cases go unreported, the actual number of infections is likely more than 1 million. In addition to poultry and eggs, contamination occurs in fruits, vegetables, and processed foods. The Campylobacter bacterium is also a very common source of food-related illness with as many as 2.4 million infections each year, most of them unreported.

The most common transmission is through uncooked poultry; even one drop of juice from raw chicken contains enough microbes to cause illness. In rare cases, Campylobacter infection can cause Guillain-Barré syndrome, an autoimmune disorder that results in temporary paralysis. The listeria bacterium that killed 30 people in 2011 is particularly dangerous to those with compromised immune systems. In addition, it can lead to miscarriage, stillbirth, premature delivery, or life-threatening infection among newborn children. Finally, several virulent strains of E. coli can cause acute illness, kidney failure, and in some cases death among those infected.

We have our industrial food system to thank for these dangers. Concentrated animal production and global networks of food distribution increase the incidence and severity of foodborne risks. Meanwhile, changing consumption patterns, such as increased demand for fruits and vegetables, many sourced from global markets, and a greater share of meals eaten outside the home increase our exposure to these risks as well. These developments challenge a creaking food-safety inspection system. Poultry production illustrates these dangers. Since 1960, production has increased from 1.5 billion to 8.6 billion birds slaughtered each year. Over the same period, average weight grew by 60 percent as the industry perfected methods to produce bigger birds faster and more cheaply. By the 1990s, chicken surpassed beef and pork in per capita pounds consumed.

To make money, producers must operate on a vast scale: Almost all chicken farms raise at least 100,000 broilers a year, and half of all sales come from farms that produce more than 600,000 birds annually. These concentrated poultry operations have become breeding grounds for dangerous bacteria, especially salmonella and Campylobacter. Moreover, the widespread use of antibiotics to promote animal growth—animals now consume 80 percent of all antibiotic drugs in the United States—has yielded new strains of these pathogens that are resistant to anti-microbial drugs. In August 2011, Cargill announced the recall of 36 million pounds of ground turkey contaminated with a drug-resistant strain of salmonella.

The development of more virulent bacteria due to concentrated animal production poses serious challenges to the system. Under the 1906 act (and additional legislation passed in 1957), every slaughterhouse in the United States must have inspectors present from the USDA to examine each animal and carcass for spoilage or disease. Historically, USDA inspectors relied on the “poke and sniff” method—using sight, touch, and smell to assess the quality and safety of meat. These techniques became woefully inadequate with the emergence of more virulent microscopic pathogens, such as E. coli O157:H7, a previously unknown strain of the bacterium that tragically sickened 700 people, killing four children, when they ate contaminated hamburger meat at a Jack in the Box fast-food restaurant in 1993. The event prompted the Clinton Administration and the USDA to require more sophisticated procedures to reduce pathogens like E. coli in the food supply. These methods, known as Hazard Analysis and Critical Control Point (HACCP), require food handlers to identify stages in the production process where the risks of contamination are highest and implement preventive measures that have the greatest effect on improving safety. The adoption of HACCP standards has led to measurable improvements in food safety as companies have invested in new technology that reduces the risk of contamination.

Big problems remain, however. There are two principal obstacles to effective food-safety control in the United States. First, food-safety regulations suffer from institutional fragmentation and administrative duplication that divide responsibility among multiple agencies in seemingly inexplicable ways. Recall that the Meat Inspection Act and the Pure Food and Drug Act split authority between the USDA, which is mainly responsible for slaughter and processing facilities, and the Food and Drug Administration (FDA), which is responsible for the overall safety of domestic and imported food products. Over the ensuing decades, authority fractured even further. In 1957, Congress passed a law expanding the authority of the Food Safety and Inspection Service (FSIS) in the USDA to oversee poultry production as well as beef, pork, and other meats. However, authority for egg inspection is governed by a different law, the Poultry Products Inspection Act of 1970, which divides authority between the USDA’s Agricultural Marketing Service and the FDA.

Similarly, responsibility for fish is divided between the FDA, which has primary responsibility, and the National Marine Fisheries Service of the Department of Commerce, which is also authorized to inspect and grade U.S. fish and shellfish. Altogether at least 12 federal departments and agencies operating under more than 30 different statutes have partial responsibility for food safety in the United States.

Some of the inefficiencies border on the absurd. Three agencies have authority over different aspects of egg production, processing, and transportation. Four agencies are responsible for monitoring and preventing “mad cow” disease. Five different agencies have responsibility for ensuring safe pizza, though which one depends on the topping: The FDA inspects facilities that produce cheese pizza, while the FSIS has responsibility for inspecting plants that make pepperoni pizza (and sausage, too). According to the Government Accountability Office (GAO), this fragmentation results in the inefficient use of resources, ineffective assessment of risk, and inconsistent inspection and enforcement. In fact, the GAO considers the need for comprehensive reform to be so great, and our food supply to be so vulnerable, that it designated food safety as a high-risk area in order to bring “needed attention to address the weaknesses caused by a fragmented system.”

Compounding the problem is the fact that responsibilities and resources are grossly mismatched. The FDA is responsible for 80 percent of the food we eat, yet the agency receives only 40 percent of the annual food-safety budget. Although federal rules require USDA inspectors to be present during the operation of slaughterhouses and meat-processing plants, no such requirement exists for other food-processing facilities that do not handle meat products. The USDA employs more than 7,000 inspectors and veterinary medical officers to staff 6,300 plants nationwide, which is good, but it is now looking to cut the number of federal poultry inspectors and to permit the industry to increase the speed at which it can process birds from 140 to 200 per minute. But at least the USDA can cover every plant. The FDA must divide its 2,500 inspectors and other field staff among 68,000 food production plants in the United States as well as monitor the rising tide of imported food. According to the Office of the Inspector General at the Department of Health and Human Services, the FDA inspects less than a quarter of facilities in any given year, and more than half of all the facilities in the United States have gone five or more years without a single inspection.

The second major obstacle to improving food safety is the limited enforcement powers among the major agencies involved. Legal maneuvering by the food industry has diminished the power of the USDA to enforce its own rules. In the case of pathogen reduction, for example, a lawsuit in 2000 by Supreme Beef Processors prevented the USDA from shutting down its plant after repeated tests indicated high levels of salmonella in its ground beef. A federal appeals court ruled that the USDA lacked enforcement authority because the new HACCP rules were outside the scope of the 1906 Meat Inspection Act, and therefore could not shut down a plant, even though it had repeatedly failed tests for salmonella contamination. Efforts to pass legislation that would give the USDA authority in such cases have repeatedly failed in Congress.

A Persistent Problem

One of the unforgettable moments in Food, Inc., the popular 2008 documentary on the food industry, is the tearful description by Barbara Kowalcyk of the painful last days of her two-year old son, Kevin, who was sickened by a hamburger contaminated with E. coli O157:H7. As he lay dying of kidney failure, Kevin begged his mother for a drink of water, unable to understand that liquids would only hasten his demise. It is impossible not to be moved by such a story, especially as a parent, and wonder how a product as seemingly harmless as a hamburger could kill a child.

More troubling still is the fact that although Barbara Kowalcyk has dedicated her life to fixing the system, her tireless work on a package of reforms dubbed “Kevin’s Law” has been stymied by our politics. In 2010, Congress sought to address our food-safety problems by passing the Food Safety Modernization Act (FSMA). The legislation gave the FDA the authority to order mandatory recalls (previously, food recalls were only voluntary), conduct more frequent inspections, and exercise greater powers over imported foods—all good things. But while the FSMA represents a real achievement, it is still inadequate to the challenges we face and, sadly, tragedies like Kevin’s are likely to happen again. This is because the FSMA fails to address some of the most severe risks of our modern food system.

Antibiotic use in animal production vividly illustrates how industry practices threaten human health, and how government action can be painfully slow in response. Animals consume 80 percent of antibiotics in the United States, mostly in low doses that increase the quantity and speed of meat production. A preponderance of scientific evidence has shown that the routine use of antibiotics in otherwise healthy animals results in drug-resistant strains of bacteria that render these lifesaving drugs less effective in treating human disease. The FDA has been slow to act on the issue despite the World Health Organization, the U.S. GAO, the Institute of Medicine, and the National Research Council each recommending stricter rules on antibiotic use, including a ban of certain antimicrobials in animal production. In fact, the FDA itself considered a ban on penicillin and tetracycline in animals as early as 1977, but abandoned its efforts without holding a single hearing due to opposition in Congress.

Until recently, the FDA remained largely on the sidelines despite mounting evidence about the dangers of antibiotic resistance. In 2005, the FDA banned fluoroquinolones, a powerful class of antibiotics that includes the drug Cipro, because of the widespread development of antibiotic-resistant Campylobacter in poultry. In early 2012, the FDA banned most uses of cephalosporin, another class of antibiotics, for similar reasons. More recently, after a lawsuit was filed by several environmental and consumer groups, a federal magistrate judge ordered the FDA to complete its review of penicillin and tetracycline begun 35 years ago. Then, in April 2012, the FDA issued final guidance to industry on what it calls the “judicious use” of antimicrobial drugs in animals.

Although the FDA now recognizes that giving antibiotics to healthy animals simply to increase production poses real threats to human health, these new rules are unlikely to have any real effect on industry practice. This is because rather than ban widespread use of antibiotics in animal production, the FDA instead provided a set of guidelines that will allow industry to continue the practice, including on healthy animals, so long as it is considered a preventive measure and is conducted under the supervision of a veterinarian. In other words, the FDA expects industry to regulate itself. Recent studies leave the wisdom of the FDA strategy very much in doubt. Researchers at Johns Hopkins University recently found traces of several banned substances in feather meal (a byproduct of the chicken industry), including the same class of antibiotics the FDA banned from use back in 2005.

Nor does the FSMA address the gaps in oversight caused by our fragmented food-safety rules. For instance, although the new act gives the FDA the power to issue a mandatory recall, it leaves the power of the USDA, which oversees food-safety activities in slaughterhouses or other meat-production facilities, untouched. Moreover, efforts to give the USDA the same recall authority now enjoyed by the FDA have met with stiff resistance by the food industry. With Republican control of at least one chamber of Congress likely to continue past the 2012 elections, these and other legislative solutions will likely remain out of reach in the near to medium term.

Even the law’s achievements are in question, given the current fiscal and political climate. In June 2011, the Republican-controlled House passed an agricultural appropriations bill that cut $87 million from the FDA food-safety budget and reduced funding for USDA food-safety programs as well. Georgia Representative Jack Kingston, who chairs the House agricultural appropriations subcommittee, justified the cuts by arguing that the U.S. food supply was “99.99 percent safe.” A Senate bill restored the cuts and in November 2011 Congress passed a conference report that increased food-safety spending by almost $50 million—still well short of the $287 million requested by the Obama Administration. Funding problems aside, full implementation of the law will require the FDA to issue more than 50 new rules and guidance documents over the next several years, a daunting task under the best of circumstances. A Republican victory in the 2012 presidential election and a changing of the guard at the FDA would likely slow or stop some of these rules from going into force.

Clearly, government policy has not kept pace with the emergence of more dangerous pathogens or the changing patterns of production and consumption that multiply and magnify our exposure to risk. The reason, not surprisingly, is political. The food industry enjoys tremendous influence over the way government regulates food safety. A revolving door allows former congressional staffers and government officials to move easily between government and industry throughout their careers. A thickened layer of presidential appointees in the executive branch provides a valuable point of re-entry for individuals with industry experience, who then oversee rules and regulations that affect their former employers. Campaign contributions keep the machine well oiled, guaranteeing industry access to Congress and the executive branch. Finally, well-financed legal teams allow the industry to initiate and, more importantly, sustain long and complicated legal challenges to policies that might improve food safety but could add costs or increase industry exposure to liability.

Bureaucrats must share some of the blame as well. Because reducing administrative duplication and overlap would take power and resources away from the many departments and agencies with a finger in the food-safety pie, the bureaucracy has been resistant to reform. In 2005, the GAO issued a report reviewing seven high-income countries (Canada, Denmark, Germany, Ireland, the Netherlands, New Zealand, and the United Kingdom) that had consolidated food-safety authority in a single agency, finding that all seven experienced improved performance, reduced gaps in oversight, and improved accountability and transparency. In their response to the report, the USDA and the Department of Health and Human Services discounted the experiences of other countries, arguing instead that food-safety goals are “better advanced through enhanced interagency coordination rather than through the development of legislation to create a single food agency.”

With so many agencies involved, holding someone accountable when things go wrong is extremely difficult. This partly explains why government and industry place so much emphasis on the role and responsibilities of American consumers in food safety. The government site FoodSafety.gov instructs consumers to “clean, separate, cook, and chill” their food “to help keep your family safe from food poisoning.” Although household hygiene is important, these simple steps cannot protect consumers from the most virulent microbial pathogens. Kevin Kowalcyk died because of an invisible killer that our system failed to stop, not because his mother failed to keep a clean kitchen. Framing the food-safety issue as one of individual behavior rather than as a systemic risk shifts responsibility away from industry and government and places it squarely on the individual.

Managing Risk

Fixing food safety in the United States requires action on two levels. On one level, we need a reform agenda that lays out the legislative and administrative changes that can solve the problems we’ve identified. But broad reform will require something bigger than a policy program. To change our food-safety system, we need to change the way we talk and think about the issue. This will require reframing food safety so that Americans insist government and industry play their proper role in managing risk.

Although many advocates and the GAO have called for the creation of a single food-safety agency with cabinet-level status, centralizing authority is not a panacea for food-safety risks. Consider the cautionary tale of the Department of Homeland Security (DHS). Consolidating agencies with multiple missions into a single entity can actually reduce the capacity of the bureaucracy to act effectively. This is one unfortunate lesson of FEMA, which experienced a loss of morale and the departure of many old hands when the mission of the agency shifted from disaster relief to anti-terrorism after being absorbed into DHS. Nothing quite so vast is being considered in the case of food safety, nor is the creation of a new, stand-alone agency in the realm of political possibility right now. Nevertheless, we can still reduce the duplication and overlap of our current system by improving the division of labor among various agencies with food-safety responsibilities.

One way to think about this challenge is by distinguishing between risk assessment and risk management. Currently we have multiple agencies doing both: The FDA and USDA each employ their own staffs of scientists to assess the risks of various pathogens, as well as separate teams of inspectors to monitor slaughterhouses and production facilities for compliance with government standards. A smarter alternative would concentrate risk-assessment and risk-management functions separately in those parts of the government that can do the job best. For instance, the USDA already has more than 7,000 inspectors and compliance officers located throughout the country whose presence on site is required for slaughterhouses and production facilities to operate. By contrast, the FDA employs only 2,500 inspectors and other field staff to monitor domestic and imported food. Even if fully funded, the FSMA would only increase FDA staff size to just over 3,000, with almost half of the growth in staff going to import inspections.

Moving all inspection functions to the Food Safety Inspection Service in USDA could eliminate some of the duplication and gaps that have plagued food safety. Meanwhile, the FDA could focus its energies on risk assessment by becoming the nation’s premier source of scientific research on foodborne pathogens and how to address them. This focus on risk assessment better accords with the historic mission of the FDA in drug regulation, where the emphasis has been on pre-market approval and evaluation rather than post-market monitoring.

Skeptics will argue that any reconfigured food-safety system will cost money that’s difficult to come by in an age of austerity. Yet the combined USDA and FDA food-safety budget is just over $2 billion a year, or less than one-tenth of 1 percent of federal outlays. Given that the human cost of foodborne illness is estimated at $75 billion a year (higher if we include the product losses to industry from recalls), even a modest increase in our commitment to food safety would appear to be a good value. Others will rightly question whether the USDA can effectively protect the nation’s health when an important mission of the department is to promote the commercial interests of agriculture, including the food industry.

This is a legitimate concern. However, a departmental reorganization in 1995 separated marketing and food-safety functions at the USDA and created a new under secretary for food safety with responsibility for FSIS alone. One consequence of this reorganization is that food-safety issues now enjoy a more prominent place within the USDA bureaucracy; by contrast, food-safety concerns in the FDA must compete for resources within an agency primarily concerned with drug regulation in one of the largest departments in the federal government, Health and Human Services.

Politics and Persuasion

However, moving inspection authority to the USDA, the FDA, or some new stand-alone agency will not by itself improve food safety. So long as the political obstacles to reform remain in place, government will suffer from inadequate resources and limited powers to meet the risks of an industrial food system. Real reform requires that food-safety advocates take their case to the public, increase awareness about the risks we face every day, and reframe the issue so that it is government and industry that bear chief responsibility for foodborne illness, not consumers.

The unfortunate fact is that few of us really want to know what we eat. However, the success of books and films like Fast Food Nation and Food, Inc. suggests that when consumers do peek behind the veil of shrink-wrapped meat, they take notice. For example, between 2004 and 2008, the percentage of respondents to a Gallup poll who said they had “a great deal” of confidence in the federal government to ensure the safety of the U.S. food supply declined from 31 percent to 15 percent. Over the same period, those who said they had “not much” confidence or “none at all” in how government handles food safety increased from 14 percent to 29 percent. This suggests an opening for advocates to reframe the food-safety issue in a manner than can mobilize consumers.

In the case of food safety, the dominant frame is that consumers are responsible for the safety of their own food. This view is reinforced in various ways, from the mundane notion that consumers can protect themselves by keeping a clean kitchen to the claims of the food industry, enshrined in legal doctrine, that naturally occurring bacteria like salmonella are beyond the reach of government regulators. Foodborne illness, in this view, is an unfortunate but unavoidable feature of the world we live in.

To challenge this outlook, advocates must highlight the contradictions between the fiction of accidental illness and the reality of a broken system. People do not become ill because they failed to take certain precautions when handling their food. People become ill because they are exposed to risks that they cannot control, risks that are multiplied by the practices of the food industry and magnified by the shortcomings of the regulatory system.

What is needed, in short, is a shift in thinking. Up until the 1960s, car accidents were generally believed to be the result of drivers’ bad behavior. The publication of Unsafe at Any Speed revealed that some fatalities were not only avoidable but that manufacturers actually resisted making safety improvements to their cars.

The resulting public outcry led to a tougher set of government standards and a shift in industry practice; driver safety came to be seen as a positive product attribute rather than a drag on the bottom line. Similarly, food-safety advocates need to galvanize the public behind the idea that foodborne illness is not the result of consumer behavior; increasingly, we get sick because of an unsafe product. Moreover, the best way to make our food system safer is not by changing the behavior of consumers, but by creating a set of rules that actually reward industries for providing safer food.

There is another important lesson to draw from the past struggles over product safety. The early 1970s witnessed a cresting movement of consumer advocacy, a time when Americans, particularly women, not only demanded that government protect them from avoidable harms but also used their financial power through boycotts and other means to make industry take notice. Since then, consumers have receded from the political scene; organizations like Consumers Union, the publisher of Consumer Reports, still exist but mostly as groups that help consumers decide what to buy rather than as a political force.

The loss of a robust consumer movement in this country has had dire consequences, and it is part of a larger shift in our politics. Today, our world is conceived in terms of atomized individuals, whether it is a voter, a consumer, or (according to the Supreme Court) even a corporation. Yet politics is a collective enterprise: The goal of public policy is to pursue a common purpose. As citizens, we must act with this common purpose in mind, whether it is in the voting booth or at the supermarket.

Read more about Consumer ProtectionFood Policy

Adam Sheingate is Professor and Chair of the Political Science Department at Johns Hopkins University. His most recent book is Building a Business of Politics: The Rise of Political Consulting and the Transformation of American Democracy (Oxford University Press, 2016).

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