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E. Coli Loophole Leaves Consumers at Risk

Nov 12, 2007 | Parker Waichman LLP

A new term has emerged amid recent E. coli outbreaks.  The "E. coli Loophole" refers to the little-known practice by the Department of Agriculture (USDA) to allow meat companies to cook and sell meat on which E. coli is found during processing.  The E. coli loophole—a practice spelled out in USDA regulations, but not widely publicized—affects millions of pounds of beef each year that test positive for the presence of E. coli O157:H7.

E. coli 0157:H7—Escherichia coli 0157:H7—is one of hundreds of E. coli strains, the vast majority of which are harmless.  Strain 0157:H7 is quite virulent and produces a powerful toxin that can cause severe illness and even death and is the leading cause of food and waterborne illness in the United States.  According to Centers for Disease Control (CDC) estimates, there are over 70,000 cases of infection and 61 deaths occurring in the U.S. annually with most illness linked to undercooked or contaminated meat.  Although E. coli is routinely found on cattle farms and in the intestines of healthy livestock, outbreaks only occur when meat becomes tainted during slaughter, the bacteria contaminates the grounding process, and tainted meat is released and consumed by the public.

Meat testing before release to market was conducted in the past and met with success.  As a matter-of-fact, testing was likely a factor for the decrease in E. coli 0157:H7 infections in 2002 when many meat producers routinely tested ground beef and withheld the meat until a negative test result was confirmed.  As a general rule, this practice is no longer followed.

Today, the USDA allows companies to label E. coli-positive meat as “Cook Only."  Since cooking the meat thoroughly and at sufficiently high temperatures should kill the bacteria, the procedure allows for the sale of cooked meat, despite contamination, as the organisms are expected to die off in processing. Once contaminated meat is deemed “Cook Only,” it is processed and sold in less lucrative forms such as pre-cooked hamburgers, meat loaf, and crumbled taco meat.  The USDA does not track how much meat is labeled "Cook Only," but amounts are believed to be significant with some estimates in one meatpacking plant averaging 50,000 pounds per week and others as high as 500,000 pounds weekly.

And while the USDA regularly conducts tests for E. coli in slaughtering plants, they only test those meats that packing companies have deemed free of E. coli.  

Since meat labeled "Cook Only" is not reported to the USDA as E. coli-contaminated, higher-than-appropriate levels of E. coli are tolerated in packing plants.  This results in under-reporting E. coli contamination and placing clean meat in danger of infection.  Some inspectors blame this practice for this year's sudden rise in incidents of E. coli contamination.

This means that previously tainted cooked meat is not tracked, is not reported to the USDA, and can be—and is—intermingled with clean cooked meat.  And, bear this in mind, not only do pre-cooked meats show up everywhere, including in the USDA-administered National School Lunch Program, USDA records indicate that the agency purchased 2.8 million pounds of cooked beef in 2006.

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