Foster Farms plant.JPG

A Foster Farms plant in Fresno, Calif., is among three implicated in a nationwide Salmonella outbreak.

(The Associated Press)

Federal officials have linked Foster Farms chicken to nearly 350 cases of Salmonella infection, and yet the company has not issued a recall and the U.S. Department of Agriculture has not pressed for one.

The agency has never identified Salmonella in raw poultry as a contaminant, even though it sickens at least

.

“It is deeply concerning that you can have an ongoing outbreak with known contaminated food that’s being consumed by millions of people and yet we still don’t have a clear solution to the problem,” said Erik Olson, director of food programs at Pew Charitable Trusts. “It really highlights how the USDA’s toolbox is pretty sparse to deal with it.”

Congress has enacted legislation intended to protect consumers from unsafe poultry, starting with the Meat Inspection Act of 1907. That law prohibits manufacturers from shipping misbranded or adulterated meat or poultry. The USDA does not have mandatory recall authority, but it can ask a company to pull a product and has done so in the past. The agency, which regulates meat, poultry and eggs, can also detain adulterated food and have it seized through the courts.

It took neither step in this outbreak, announced during the government shutdown. The agency’s response, which has baffled many consumers and angered advocates, had nothing to do with furloughs, officials said. Instead, they cited complicated regulatory definitions and court decisions that date back decades.

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In 1974, Earl Butz was secretary of agriculture under President Nixon. It was well known at the time that Salmonella posed a problem in poultry. Frustrated by reoccurring outbreaks, the American Public Health Association sued Butz, arguing that the USDA mark of inspection constituted misbranding because it did not warn consumers about Salmonella. USDA lawyers responded that the bacteria were so widespread in the environment that they could not be considered an adulterant. The agency said the public realized that raw meat and poultry were not sterile.

“American housewives and cooks normally are not ignorant or stupid and their methods of preparing and cooking of food do not ordinarily result in salmonellosis,” the USDA said.

The court agreed, setting a precedent that’s held ever since. To this day, the USDA considers Salmonella a natural organism on raw poultry. Cooks just need to avoid cross-contamination and ensure thorough cooking and everything will be fine, officials say.

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The same argument was once used for E. coli contamination in ground beef. But 1993 changed that. More than 700 people, mainly children, got sick after eating Jack-in-the-Box hamburgers. Four children died and nearly 200 people suffered permanent kidney, brain or other damage. The culprit: undercooked patties contaminated with a particularly virulent strain: E. coli O157:H7.

The strain

, with an outbreak traced to McDonalds’ hamburgers in Oregon and Michigan that sickened nearly 50 people. E. coli O157:H7 had also been identified in other food poisoning illnesses and deaths. But the Jack-in-the-Box outbreak swept up so many young, vulnerable people and grabbed so many headlines that officials took notice.

“They just couldn’t ignore it,” said Bill Marler, a prominent food safety litigator in Seattle.

In 1994, Mike Taylor, head of the USDA’s Food Safety and Inspection Service, declared E. coli O157:H7 an adulterant in ground beef. In a speech to the American Meat Institute, he said the policy was “crystal clear” and that the agency would crack down. Officials started testing ground beef for the pathogen, angering the meat industry.

Meat and grocers groups sued the USDA over the testing program, arguing that it would lull consumers into ignoring safe handling labels on raw meat and poultry. E. coli bacteria, like Salmonella and most other harmful food-borne pathogens, are killed by thorough cooking. But consumers don’t always cook hamburgers until they’re well done.

A federal judge in Texas decided in favor of the USDA, saying E. coli O157:H7 was so harmful that the agency was right in declaring it an adulterant.

Last year, the agency went further, adopting a zero-tolerance policy for six other strains of E. coli -- O26, O45, O103, O111, O121 and O145 – that cause severe illness and death.

The meat industry has adjusted, said Marler, the Seattle attorney. “They finally stopped fighting the policy and started fighting the bacteria,” he said.

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These days if ground beef tests positive for one of the seven strains of E. coli, the manufacturer has to issue a recall. Not so for Salmonella, thanks in part to a court decision in 1999.

That year, Supreme Beef in Texas, which supplied ground beef to schools, failed three Salmonella tests in eight months. The USDA threatened to pull its inspectors, which would have closed the plant. Supreme Beef sued, saying the USDA could not set a limit on Salmonella because the bacteria are naturally occurring and not an adulterant under the law. The Fifth Circuit Court of Appeals agreed.

That decision has hobbled the USDA’s ability to crack down on Salmonella, said Dan Engeljohn, head of the USDA’s food safety field operations.

“We are conservative to a great extent to protect public health but we also have to be aware of our vulnerability,” Engeljohn said.

And yet, the agency has forced a recall of Salmonella-tainted poultry in the past.

In 2011, state and federal health officials tracked dozens of Salmonella infections to ground turkey produced by Cargill Meat Solutions Corp. The USDA issued a public health alert, warning consumers the poultry was contaminated. A few days later under pressure from state health departments and the USDA, Cargill pulled 36 million pounds of ground turkey in one of the biggest recalls in U.S. history.

According to the Centers for Disease Control and Prevention, more than 130 people got sick after eating Cargill turkey. This Foster Farms outbreak spans

The only formal

, which pulled rotisserie chickens and products sold by its store in South San Francisco after California health authorities linked the cooked chicken to a cluster of illnesses. The USDA does not allow Salmonella on ready-to-eat food.

It did not ask Foster Farms to order a widespread recall even though it did issue a public health alert.

So why no follow through?

Engeljohn said inspectors found nothing “out of control” at the three Foster Farms plants involved in the outbreak. By contrast, he said Cargill’s food safety procedures were “out of control.”

“We have tools to force reduction in pathogens when we have evidence that the process is out of control,” Engeljohn said.

But the agency did find serious problems at the Foster Farms plants.

Notification letters sent to the facilities on Oct. 7, threatening to shut them down, cited a “high frequency of Salmonella positives” that ranged from 25 percent and 27 percent. The letters also revealed that from January to September this year, the USDA had cited Foster Farms 10 times for noncompliance with safety standards after inspectors found "fecal material on carcasses" along with "poor sanitary dressing practices, insanitary food contact surfaces, insanitary nonfood contact surfaces and direct product contamination."

Three days after the notification letters were sent, the USDA said Foster Farms had taken “substantive” steps to fix its food safety problems. Engeljohn told The Oregonian the company added an antimicrobial treatment to chicken parts after the chill process to stem contamination. He said manufacturers also can take other steps, for example by visibly watching the chicken during processing and fine-tuning equipment.

But he said Salmonella will never be eliminated.

“Salmonella is so ubiquitous in the market that you wouldn’t have any raw poultry unless it was all irradiated,” Engeljohn said.

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The agency has a “performance standard” for rates of Salmonella contamination on whole, raw chicken, allowing a prevalence of 7.5 percent. In practice, however, inspectors consider poultry plants to be in compliance when five in 51 tests, or nearly 10 percent, are positive for Salmonella. When companies fail, they are shamed, but not closed. USDA posts a notice on its website.

The USDA is looking at developing a standard for allowable Salmonella contamination on chicken parts. But consumer groups say the agency should first crack down on strains that are resistant to antibiotics.

Health officials have identified seven strains in the Foster Farms outbreak. Three are resistant to multiple antibiotics and two are resistant to two types, said Dr. Chris Braden, head of the food-borne disease program at the CDC. He said that’s one reason for the high hospitalization rate in the outbreak of 40 percent, or double the usual rate.

Braden said in about 14 percent of the cases the infection had traveled from the intestines to the bloodstream, becoming more serious. Typically, health officials would expect a rate of 5 percent.

The CDC does not know what caused these strains to become resistant to antibiotics but Braden said the use of antibiotics to promote animal growth is generally to blame.

Worried about the emergence of antibiotic resistant bacteria, the

called on the USDA in 2011 to ban four Salmonella strains -- Hadar, Heidelberg, Newport and Typhimurium -- in ground poultry.

“The USDA has been sitting on our petition for two-and-a-half years,” said Caroline Smith DeWaal, the center’s food safety director. “During that time, we’ve had a number of outbreaks linked to antibiotic resistant pathogens in the meat supply.”

She called on the USDA to act.

“No one can claim that the USDA is regulating effectively when they can’t recall product that's made 300 people sick,” she said.

-- Lynne Terry