Members of Congress wrote a letter to USDA expressing concern over the agency’s response to the Boar’s Head Listeria outbreak. And they want answers.
The general public does too. Because based on the questions asked, there were so many ways that this tragedy could have been prevented. Boar’s Head bears the bulk of the blame. But what role do the agencies trusted to enforce existing safety regulations play in this scenario?
How did things go so horribly wrong? And what can be done to fix a potentially broken system?
Here’s what we know about the congressional letter to USDA and the questions they have for the agency.
Unless you have lived under a rock for the last few months, you may know a little something about a horrible Listeria monocytogenes outbreak linked to Boar’s Head deli meats.
As of the last report, 59 people have become sick in this outbreak across 19 states. All 59 were sick enough to require hospitalization. Ten people lost their lives.
Families mourn. Livelihoods in jeopardy. People died.
While reports of new illnesses have slowed, a new death was still included in the latest update on September 25, 2024.
While the last reported illness onset was dated August 28, 2024, it can take up to 10 weeks for someone to begin having symptoms of listeriosis after consuming something contaminated with the germ. And while deli meats were recalled in a very public way, some of the products have sell by dates into October 2024 and may remain in people’s homes. Or potentially their freezers.
For now, the Centers for Disease Control and Prevention (CDC) lists the outbreak investigation status as “open.” We may see another update toward the end of the month.
A letter to USDA from 24 members of Congress and three United States Senators was published on September 30, 2024. Addressed to Under Secretary Dr. Jose Emilo Estaban and Administrator Mr. Paul Kiecker, the group expresses collective concern regarding the largest listeriosis outbreak since 2011. The deadly Listeria outbreak linked to deli meats from the Boar’s Head in Jarratt, Virginia.
“This outbreak could have and should have been prevented.”
According to their understanding of the rules and regulations that govern such a facility, oversight is expected to occur at least once per shift. If that is the case, how did such “egregious sanitation problems” occur?
The letter to USDA refers to the released records outlining 69 major violations at the Jarrett facility that were documented over the year prior to the Boar’s Head Listeria outbreak.
If the USDA’s Food Safety and Inspection Service (FSIS) is responsible for overseeing operations at the Virginia plant (and other food processing facilities like it), how did these problems continue to persist?
The letter to USDA alludes to the possible answer.
Was a federal representative actually performing these inspections? It is likely a rhetorical question. But the question was posed, nonetheless.
Likely the issue was a breakdown of the Talmadge-Aiken Cooperative Inspection Program. Under this agreement, the buck is passed to the state.
The Federal government foots the bill for 50% of the expenses and does very little of the work. The enforcement of federal codes is placed in the hands of the state’s agencies.
Now this isn’t done willy nilly.
The states must prove that they have food safety and consumer protection measures “at least equal to” federal standards.
To do this, the state agency must submit an initial self-evaluation of inspection activities. Additional evaluations and self-assessments are performed annually and submitted to FSIS.
Sounds like a great plan. Allow the states to handle their business.
But what if things go wrong?
Turns out, there was supposed to be a contingency for this. A contingency that was not called in.
According to the Program, “If the FSIS review team discovers that a State has failed to develop or is not enforcing requirements,” FSIS is supposed to notify the Director of the State program. The state has 30 days to remedy their actions or their ability to perform these activities may be in jeopardy.
Some may argue that repeat offenses and those that can cause serious health consequences potentially attributable to violations like:
The list goes on and on. The “description” column of the Noncompliance Report reads like the scene description of a horror movie. I cannot image it is terribly far off.
Congress has questions.
The letter to USDA ends with a series of eight questions. According to the demand, USDA has 30 days to respond.
According to the letter, Congress understands that FSIS had a contract with the Viginia State for inspecting the Boar’s Head Facility. Congress wants to know the scope of the contract. Who was responsible for which duties and who is responsible for Corrective Action Procedures.
As required by the Talmadge-Aiken Cooperative Inspection Program, onsite reviews of the state partner’s inspection program must be periodically conducted by USDA. Congress wants those reports for the three years prior.
Congress cites that law mandates USDA inspectors to visit meat and poultry processing facilities at least once per shift. Congress wants to know how often a USDA inspector (not a contracted state inspector) visit the Jarratt facility? They also want proof including the length of the visits, what was done during each visit, and a list of noncompliances USDA inspectors identified between August 30, 2022 and August 30, 2024.
Congress cites details from the noncompliance report and wants to know what enforcement actions are available to the USDA to address those issues. Why were actions not taken despite repeated violations?
Congress also wants to know whether all records of noncompliance observed during each inspection were addressed and remedied before operations resumed. Does FSIS have the authority to shut down a facility for being unsanitary? If so, why was this not done. If not, who has that authority?
Congress asked USDA about Listeria Rule, an aspect of a facilities sanitation program where an establishment may sample for Listeria monocytogenes to verify the effectiveness of that program. Will this rule be amended to strengthen testing requirements?
According to Congress, FSIS Directive 10300.1 “requires companies to schedule Intensified Verification Testing (IVT) for cause.” A cause, in this case was a multistate outbreak involving a type of product they produce resulting in many hospitalizations and deaths.
Congress wants to know if this testing was performed and the full reports of such testing if it took place.
FSIS has the authority to schedule a Food Safety Assessment to be sure products are being produced according to FSIS standards.
Congress wants the dates and the reports of these assessments for the period between 8/30/2022 and 8/30/2024.
Congress refers to a report published in 2015 that indicates that the agencies Listeria Rule is effective. According to that report, Listeria positive results decreased from 0.76 percent in 2003 to 0.34 percent in 2013 in ready-to-eat products. This report was meant to demonstrate the effectiveness of current regulations.
The question is, how were these statistics taken. What was the sample size. Are there any other measures to determine if the existing Rule is effective? Congress wants the data to back their stance up.
Finally, Congress wants to know if the Boar’s Head Facility performed their own testing for Listeria monocytogenes. The data, who had access to the data, and where the test results were stored were also requested.
Were issues resolved each time they were brought to the Facility’s attention? Or was there a slap on the wrist? Congress asked some very good questions. Now. We wait for answers.
If you have become sick from consuming Boar’s Head deli meat products it isn’t too late to get help. You may have a legal case for financial compensation and the justice you deserve. The Lange Law Firm, PLLC has a Listeria lawyer that can help.
The Lange Law Firm, PLLC has helped many people with cases just like yours recover millions of dollars in product contamination and product liability lawsuits.
Call (833) 330-3663 or email for a free, no obligation consultation.
By: Heather Van Tassell (contributing writer, non-lawyer)
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