Slaughterhouse Jive

At a preliminary injunction hearing in U.S. District Court in Dallas in December 1999, Supreme Beef argued that it had not gotten due process from the USDA. Judge A. Joe Fish ruled in Supreme Beef's favor, requiring the USDA to keep inspectors at the plant until the case was resolved legally. The decision didn't make the USDA happy, and Spiritas says the agency made sure he knew it. "They brought in their new inspection guy. He was targeted to come in here on a mission, in our opinion."

The new inspector "bragged openly about his mission to run Supreme Beef out of business," Spiritas alleges in court documents.

"They put us on E. coli testing. That is against their published policy," Spiritas says. "And if you test enough, you are certain to find H7."

The latest government reports on E. coli seem to back that up. According to the FSIS, 63 percent of cattle herds are intermittently shedding the E. coli O157:H7 pathogen in excrement. Bonnie Buntain, assistant deputy administrator for the USDA/FSIS, Office of Public Health and Science, recently estimated that up to 16 percent of feedlot cattle carry E. coli O157:H7 into processing plants. Up to 2.4 percent of cattle carcasses that have been treated in numerous ways to remove salmonella and E. coli still head to the grocery store or restaurant containing E. coli O157:H7, she estimated.

Mark Powell, a USDA risk scientist, reported earlier this month that the agency estimates that 272,000 servings of ground beef in the United States each year are contaminated with E. coli O157:H7, and that between 9,500 and 29,000 Americans are sickened annually because of it. Powell's report, which he delivered to the Society for Risk Analysis, says that most of the E. coli-tainted servings of ground beef contained less than the 10 organisms likely needed for infection and that, probably because of proper cooking, the number of illnesses related to contaminated hamburgers is down.

Powell said the reason E. coli O157:H7 is thought to be more prevalent and is showing up more in testing is not necessarily because the organism is spreading, but because ground beef is being tested more often and with much more sensitive tests.

The USDA's policy is to test plants randomly for E. coli O157:H7. If it gets a positive result, the USDA tests the plant again for 15 consecutive days. If the 15 tests are clean, the plant goes back into the random pool. But, for Supreme Beef, the USDA used one of its new tests and one that is about four times more sensitive than its previous tests, according to FSIS documents. It also tested Supreme Beef every day. After about three weeks of testing, it found a positive result and notified Spiritas, who ordered the Christmas Day recall. It was a public relations disaster for Supreme Beef.

Nonetheless, the company continued to fight. The USDA kept testing for E. coli O157:H7 after Christmas for a total of 40 days, until the agency finally accepted Supreme Beef's plan for corrective action. By then, Supreme was losing customers.

"They were out to destroy our company," Spiritas says flatly. "It literally in spades is the politics of destruction for a small, family-owned business."

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Ironically, at the same time Supreme Beef was bleeding to death from a loss of business, it was prevailing at every turn against the USDA in federal court. In May of this year, Judge Fish ruled in favor of Supreme Beef's motion for summary judgment in the case. He said that under federal law, Supreme Beef had not done anything that allowed the USDA to withdraw its inspectors. Fish pointed out that the USDA's top administrative official said in court that Supreme Beef's plant was not a problem. And, Fish said, the results of bacterial tests can't be used to prove a plant is unsanitary enough to withdraw inspectors under the Federal Meat Inspection Act. In other words, Congress never gave the USDA the legal authority to pull out inspectors and close processing plants based on the new testing program.

"As this court remarked in the preliminary injunction hearing, the issue in this case is not whether salmonella and other pathogens in meat [are] desirable or acceptable. The issue instead is whether the USDA--in creating and attempting to enforce the performance standards and salmonella tests at issue herein--was acting within the authority granted it by Congress," Fish wrote. "This court concludes that USDA's withdrawal of inspectors from Supreme Beef's production facility was not, in the circumstances presented here, an action authorized by law."

The national press seized on the ruling. Syndicated columnist Marianne Means wrote, "That judicial nitwit held that a meat-processing plant showing unacceptably high levels of contamination with salmonella bacteria could not be closed down by federal inspectors. If little kids get sick from eating diseased hamburgers, that's not the industry's fault, U.S. District Judge A. Joe Fish in effect concluded."

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As far as the USDA was concerned, the Supreme Beef case threatened to unravel its whole new testing system. If it had no authority to withdraw its inspectors, then its new system was meaningless and every beef producer in the industry would be thumbing its nose at the agency. The USDA needed to make an example of Supreme Beef, Spiritas says. His claim is inflammatory, but it is backed up by others in the beef industry.