Raw HamburgerNever has the saying, “ignorance is bliss,” been more true than in the context of the ground beef filler known as “pink slime.”  Pink slime, which is known in the food industry as “lean finely textured beef,” or “LFTB,” has been a commonly used ingredient in ground beef for more than two decades.  It is made available to Americans as part of the ground beef they purchase at their local grocery stores and fast food restaurants, and it is fed to children in their school lunches.  Experts estimate that approximately 850 million pounds of LFTB are added to ground beef each year.  LFTB has been dubbed “pink slime,” based on its appearance.  But according to Rich Jochum, corporate administrator for Beef Products, Inc., which took out a full-page advertisement in The Wall Street Journal to defend its product,

“[t]he derogatory term [pink slime] has trumped all science, all facts, all history.”

In fact, LFTB is beef.  LFTB is comprised of beef scraps which are left over from the cow after the valuable cuts of beef are sold. A centrifuge is then used to remove the fat, and ammonium hydroxide gas is applied to kill bacteria.  The resultant product is then added as a filler to ground beef.  This allows meat processors to recover meat that might otherwise be wasted, and saves up to 1.5 million head of cattle from slaughter.  It also leads to leaner ground beef and lower beef prices for consumers.

Until recently, however, most Americans were completely unaware that the ground beef they consumed contained up to fifteen percent LFTB.  That is due to the fact that it is considered a raw material, and thus federal labeling requirements dictate that its inclusion need not be reflected on the label.  Both beef processors and the federal government regulators maintain that there was no reason to label the presence of LFTB in ground beef, and risk consumer confusion, because it is not a separate ingredient.  “It’s beef,” says a USDA official. “There are various parts of the animal that come together in ground beef.  This is just one part.” Moreover, The U.S. Department of Agriculture (USDA) and U.S. Food and Drug Administration (FDA) both deem LFTB safe for consumption.  They point to the fact that the product has never been linked to any outbreaks, nor have there been any safety related recalls.

That, however, did not stop the firestorm which quickly swept across this country, fueled by social media, over concerns about the use of ammonium hydroxide and the quality of the meat used in the filler.  The media attention, and the associated response of the American consumer, has led a number of supermarkets to phase out the sale of any ground beef which includes LFTB, and caused a number of school districts to indicate that they will no longer serve ground beef which contains LFTB. This, in turn, has led to an economic disaster for many meat processors, including AFA Foods Inc., which filed for
Continue Reading What is Pink Slime and Why is It in My Burger?

Co-authored by Brian Gross 

Foodborne IllnessThe USDA has recently announced that it will delay implementation of a controversial new program to extend its Zero Tolerance Policy for E. coli 0157:H7 to include six additional E. coli serogroups:  O26; O45; O103; O111; O121; and O145, which the USDA declared adulterants in non-intact raw beef.  The new policy, which was to take effect on March 5, would require routine testing of raw beef for these six additional serogroups, and would prohibit any beef found to carry one of these pathogens from entering the food chain.

Although more than 700 serotypes of E. coli have been identified, very of few of those are foodborne pathogens.  In fact, only Shiga Toxin producing E. coli (STEC) serotypes are considered foodborne pathogens.  While there are but a few E. coli serotypes which are considered to be foodborne pathogens, theSTECserotypes are extremely virulent and require very little human exposure to cause infection.  The CDC estimates that there are approximately 265,000STECrelated illnesses each year, 64% of which are attributable to non-0157:H7 E. coli.

Compare that figure to the numbers 700 and 4, which is the reported amount of E. coli 0157:H7 related illnesses and deaths stemming from an outbreak traced to undercooked and contaminated meat served at a Jack in the Box on the west coast in 1993 and an expanded scope under the USDA’s policy make perfect sense.

The question remains however; despite heightened scrutiny, better processes and scientific advances why are we continuing to see a persistent increase in reported outbreaks and recalls related to E. coli? It seems counterintuitive. Dr. Marc Siegel, a senior contributor to the Fox News Channel’s Medical A Team offers up some valuable insights.


I couldn’t agree more with Dr. Siegel. Fear is one of the largest pathogens and unfortunately many attorneys are capitalizing on this symptom. Not only are we seeing a staggering increase in the number of reported E. coli illnesses, so too are the number of foodborne illness claims filed each year.

The result is that many good companies are now expending more resources then ever to defend foodborne illness claims, while at the same time working tirelessly to comply with a well intentioned, yet constantly evolving governmental mandate. As National Council for the one of the largest food service providers in the world, we’ve seen first hand how proactive compliance and best practices can have a significant impact in minimizing risk and exposure. Companies who truly care about their products embrace food safety because they understand that there is more at stake than the bottom line. Closely monitoring suppliers, using scalable HACCP Plans and implementing aggressive standards for quality control not only protect a company’s brand, but its customers. This makes it easier to withstand attacks from plaintiffs counsel so you can continue to put food on everyone’s table, including your shareholders.
Continue Reading Can The Food Service Industry Navigate The USDA’s Zero Tolerance Policy on E.coli and Still Put Food On The Table?

Co-authored by Brian Gross 

A company’s interest in protecting its brand by providing a safe product to consumers, in conjunction with the increased regulatory requirements set forth under the Food Safety Modernization Act (FSMA) require that entities active in the food supply chain take appropriate measures to verify that their suppliers comply with Current Good Manufacturing Practices (cGMPs).   It is incumbent upon every business involved in the food supply chain to perform its own due diligence with respect to its suppliers, including, confirming FDA registration, making Freedom of Information Act (FOIA) requests for documentation generated or retained during FDA inspections of suppliers’ facilities, reviewing suppliers’ Food Safety Control plans, Hazard Analysis and Critical Control Point (HACCP) plans and/or Allergen Control Programs, and conducting regular audits of their facilities.  Not every business, however, has the internal expertise to personally audit their suppliers’ facilities.  Furthermore, the current market demands, in which consumers expect local, organic foods, means that many businesses must purchase their products from a larger, more diverse group of suppliers.  This creates an issue because many businesses lack the resources to perform regular audits of all their suppliers’ facilities.  Companies cannot rely upon the FDA to audit their suppliers, as it lacks the funding necessary to audit food processing companies both domestic and abroad with the regularity necessary.   In fact, the FSMA only requires that the FDA inspect domestic high-risk facilities once by 2016, and at least every three years thereafter.  Third-party audits provide a cost-efficient alternative which, if properly regulated, can ensure a high quality of food without the insurmountable costs associated with having to individually audit each supplier.  For that reason, third-party audits will inevitably play a larger role in future food safety.

The failures of the third-party audit system are well documented.

Continue Reading Food Safety: Assessing The Future Of Third-Party Auditors

Co-authored by Brian Gross


In our October 25, 2011 post, Food Safety Modernization Act: Did Congress Bite Off More Than It Can Chew? we expressed concern regarding the FDA’s ability to fully implement the Food Safety Modernization Act (“FSMA”) given its budgetary restrictions.   As outlined in our prior post, FSMA provides for increased regulation and oversight of the production of food by the FDA, both domestically and abroad, which will require significantly more resources.  Accordingly, President Obama proposed a budget of $2.75B for fiscal year 2012, an increase of $300M from 2011.  In June, however, Congress approved a 2012 budget for the FDA of less than $2.2B, a significant reduction from its 2011 budget, for a year in which the scope of its responsibilities will increase dramatically.

On Monday, November 14, 2011, Congress reversed course and it appears that Congress is prepared to approve a compromise bill which provides the FDA with a $2.5B budget for 2012, approximately $334M more than the FDA was allocated in June, and $50M more than it received for fiscal year 2011.

Although the FDA’s budgetary increase in 2012 is minimal in comparison to the expansion of its responsibilities provided under FSMA, the fact that it is receiving additional money is significant in light of the Federal deficit.  Congress’s decision to allocate additional money to the FDA during a time when Federal spending is being scaled back indicates that the government recognizes the increased importance of food safety.  Unfortunately, without continued increases in its funding, it appears unlikely that the FDA will be able to fully implement the mandates of FSMA, particularly with respect to the inspection and regulation of foods imported into the United States.  Case in point, Washington Post reporter, Brad Racino’s recent article explained that FSMA requires the FDA to inspect 600 foreign food facilities in 2011, and while the FDA expects to meet that requirement, based on current and expected future funding, it appears unlikely that the FDA can meet its requirement to double the number of foreign inspections in each of the next six years. This is likely to place a heavy burden on those companies which import food products into the United States, which, pursuant to FSMA, must now ensure that such food products meet the same safety standards as domestic food products.  The lack of inspections could certainly result in more food borne illness outbreaks, and as a result, an increase in the number of personal injury lawsuits these companies may face.

The implementation of FSMA will occur over a period of several years, and its success will hinge largely upon a number of different factors, but perhaps most importantly on the financial resources afforded the FDA.  Accordingly, this week’s development is significant and may suggest that the importance of safe food practices and prevention of food borne illness has finally entered the national consciousness.  Unfortunately, the flagging economy and increasing budget deficits may hamper the FDA’s ability to obtain the necessary funding to meet all of FSMA’s
Continue Reading Congress Boosts FDA’s Ability to Effectuate Food Safety Modernization Act

Co-authored by Brian Gross

Foodborne IllnessThe recently enacted Food Safety Modernization Act (FSMA), which was signed into law by President Obama on January 4, 2011, provides the U.S. Food and Drug Administration (FDA) with increased power.  The FSMA, which represents the culmination of more than a decade long effort to reform this country’s food safety oversight system, aims at limiting future occasions of foodborne illness by changing the FDA’s focus from reacting and responding when outbreaks occur to outright prevention.  While the FSMA certainly gives the FDA additional authority to regulate the production of food throughout the farm to table chain, the question remains whether it will have the necessary resources to do so.

The FDA is an agency of the United States Department of Health and Human Services which is responsible for overseeing an incredibly broad range of goods, including food, tobacco products, dietary supplements, prescription and over-the-counter pharmaceutical drugs, veterinary products, and cosmetics, amongst other things.   The FDA’s food-related responsibilities include regulation and oversight of roughly 80% of our country’s food supply, namely, all food products with the exception of meat and poultry.   The FSMA has given the FDA numerous new tools to perform its duties, a few of which will be discussed herein, including, mandatory recall, increased oversight and regulation of American facilities and those of foreign suppliers, and the implementation of a few small measures aimed at creating a more informed consumer.

Continue Reading Food Safety Modernization Act: Did Congress Bite Off More Than It Can Chew?