Legal Alert

USDA Beefs Up Regulation of Non-O157 E. Coli

April 2, 2012

The number of microbial pathogens threatening our food supply is substantial. Among the better known is a large group of bacteria named Escherichia coli, or E. coli. While many strains of it are harmless, others can be deadly. Particularly infamous among E. coli serotypes is O157:H7, identified about 30 years ago and often linked to outbreaks from undercooked ground beef. For more than two decades it has been considered an adulterant, although, of late, the beef industry has made huge strides in combating O157.

However, while O157 may be the best-known pathogenic E. coli strain, it is far from the only one. Data recently released by FoodNet for 2010 suggested that non-O157 E. coli illnesses are, for the first time, more prevalent than those caused by O157. In fact, in 2011, one of the deadliest food borne illness outbreaks ever, which struck German consumers, involved E. coli O104:H4.

The serotypes O157 and O104, along with more than 100 other E. coli strains, are harmful because they produce shiga toxins. In recent years, the USDA has taken an increased interest in shiga toxin-producing E. coli, known as STECs. On Sept. 13, 2011, the USDA announced its plans to prohibit the sale of ground beef or its precursors containing E. coli serogroups O26, O103, O45, O111, O121 and O145. The U.S. Centers for Disease Control believes that more than 70 percent of the non-O157 E. coli illnesses are caused by these six serotypes. (Ironically, O104, the serotype that caused last summer’s deadly outbreak in Germany, is not on the USDA’s list of the “big six.”)

In September 2011, the USDA announced its intentions to assign these six serotypes the same legal status as O157 — that of an “adulterant” under the Federal Meat Inspection Act. The USDA will now require testing for and zero tolerance of these six STECs in ground beef or its predecessor products. Although the new regulation was originally scheduled to be implemented on March 5, 2012, a robust outbreak of public comments resulted in a 90-day delay, until June 5, 2012. The new policy appears likely, however, to go into effect then.

Companies affected should carefully review and, as needed, update their HACCP plans, sanitation SOPs and testing procedures. The challenges these new regulations present to the industry are substantial and require careful, advance planning. McGuireWoods LLP’s dedicated food and beverage industry team stands ready to assist. Our experienced team of professionals can assist your company to develop or just refine its Recall Plan; Inspection SOPs, HACCP review or Testing Protocol. The food safety attorneys at McGuireWoods can help in facilitating your response to the new USDA regulations and the litigation that may result.

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