Hearing of the House Energy and Commerce Committee - Regulatory Failure: Must America Live with Unsafe Food?
Statement
REP. STUPAK: This meeting will come to order.
Today we have a hearing entitled, "Regulatory Failure: Must America Live with Unsafe Food?"
Each member will be recognized for an opening statement. I will begin.
Since the 110th Congress began in January 2007, this subcommittee has been investigating the Food and Drug Administration's ability to protect Americans from unsafe food. This is the subcommittee's sixth hearing regarding the safety and security of the nation's food supply.
While the previous five hearings have focused on a variety of topics, including companies who produce contaminated food, unsafe food imports and the ability of the FDA and the USDA to protect our nation's food supply, today's hearing will focus on what steps the regulators have taken or need to take in order to ensure the safety of our food supply.
Since our investigation began 14 months ago there have been at least 163 recalls and health alerts associated with FDA-regulated products.
Despite USDA's hefty budget and large inspection force, it too is not immune from problems. Since 2007 there have been at least 67 meat recalls totaling 180 million pounds of meat.
There has also been an alarming jump in the number of recalls and illnesses associated with E. coli-contaminated meat. In 2007 alone there were 20 recalls of meat products due to being tainted with the deadly pathogen E. coli. These recall efforts affect about 33 million pounds of meat. This compares with just eight recalls and just over 155,000 pounds of meat in 2006 due to E. coli.
These numbers alone indicate that there's a serious, increasing problem with our food safety system. Still, there's greater -- there's even greater support for this assertion.
The Centers for Disease Control and Prevention now estimate that there are 76 million cases of food-borne illnesses every year in the United States. These illnesses result in an estimated 5,000 deaths and 325,000 hospitalizations. It is clear that our food safety system is broken. We must address this stark reality and remedy this dire situation.
The subcommittee has had the unfortunate experience of watching firms that have sold contaminated food falsely assure the American public that the safety problems have been solved, only to learn that yet another outbreak or recall has occurred within a few months. Cargill and Dole both are repeated offenders, and ConAgra has had three recalls this past year.
On Monday the newly reopened Castleberry plant -- whose parent company witness testified two weeks ago that Castleberry had learned its lesson from the botulism contamination -- but on Monday it was shut down by FDA and USDA food safety inspection service again. This shutdown was due to processing violations that could lead to pathogen contamination.
Today we will hear from the company responsible for perhaps the most notorious recall over the past year. Steven Mendell, the president of Westland/Hallmark Meat Company, will testify regarding his company's recall of more than 143 million pounds of raw and frozen beef products. This is the largest meat recall in the history of the United States.
The most troubling aspect of this recall is that approximately 50 million pounds of the beef were sold to the National School Lunch Program and other federal nutritional programs for the poor and elderly. Thankfully, to date, there have been no reported illnesses associated with this meat.
Mr. Mendell was invited to testify at the subcommittee's previous food safety hearing on February 26th regarding the circumstances surrounding his company's recall. Despite extensive efforts by committee staff to reach out to Mr. Mendell, he avoided contact with committee staff and chose not to appear at the February 26th hearing.
Because of Mr. Mendell's unwillingness to appear voluntarily, the subcommittee was forced to issue a subpoena to comply at Mr. Mendell's testimony here today. We look forward to finally hearing from him.
Throughout our prior five food safety hearings one thing has been evident. There are increasing concerns about the safety of the nation's food supply and it is necessary to utilize more technology to make our food supply safer. Due to the interest raised by our last hearing, today we will explore one such technology: food irradiation.
Food irradiation is a technology which destroys organisms that cause food-borne illnesses. Proponents of food irradiation believe it is safe and effective technology that can guarantee the safety of food. Some claim irradiation is the only sensible kill-step for leafy greens and meats. Others, such as the president of Dole, claimed last month that it was not workable and harmed fresh produce.
Today we will hear testimony from Dr. Dennis Olson, a professor of animal science at Iowa State University and an expert on the use of food irradiation. Dr. Olson will testify regarding the potential benefits of irradiation.
We will also hear from Mr. Daniel Wegman, the CEO of Wegmans Food Markets. As a CEO of a supermarket chain that sells irradiated meat, Mr. Wegman will discuss why his company chooses to offer irradiated products to its consumers.
While food irradiation will be the only technology discussed at this hearing, the committee is also exploring other food safety technologies. We hope to examine these as our food safety investigations continue.
We will also hear today from Target Corporation. In November Target was sent a formal -- sent a formal letter to USDA requesting approval for a label that would alert consumers that certain meat products Target sells are packaged in an atmosphere containing carbon monoxide. Amazingly, USDA did not approve the label.
I look forward to hearing why USDA would not approve such a label. And I look forward to hearing what other efforts Target Corporation has made to inform their consumers of the carbon monoxide- packaged meat they sell.
Finally, we will hear from two primary regulators of our food supply: the FDA and the USDA. Dr. Stephen Sundlof, the director of the Center for Food Safety and Applied Nutrition at FDA, and Dr. Richard Raymond, the undersecretary for food safety at USDA are here. Each will testify at about the steps their agencies have taken or need to take to ensure the safety of our nation's food supply.
As I stated previously, today's hearing is our sixth hearing regarding the safety and security of our nation's food supply, and it probably will not be our last. The American public can be assured that we will continue to hold as many hearings as necessary to fix our country's broken food safety system.
When we have companies, government agencies and individuals before this committee, we expect them to follow through on the promises they make. We will do follow-up and we will bring them back before the committee to account for any failures on promises they have made to us and the American people.
That concludes my opening statement. I would now like to turn to my friend, Ranking Member Mr. John Shimkus, for an opening statement. I would just caution everyone today, it looks like we're going to have a vote here pretty quick. And we expect a number of procedural votes on the floor today.
BREAK IN TRANSCRIPT
REP. STUPAK: Thank you, Mr. Mendell.
You have two reports you wanted to put in, and I objected. I just want to clarify a couple of things. On the first report, the audit report from Silliker -- S-I-L-L-I-K-E-R --
MR. MENDELL: Right. Okay.
REP. STUPAK: The concern I have is the report, dated November 21st, 2007, the small print, fourth paragraph, says, "The name of Silliker or its affiliates or any of its employees may not be used in conjunction with any marketing or promotion or in any publication concerning or relating to the client or its products and services without the prior written consent of Silliker."
Do you have the prior written consent of Silliker to submit this?
MR. MENDELL: I don't.
REP. STUPAK: Okay.
REP. SHIMKUS: Mr. Chairman, could yield on that for a second?
And maybe counsel can help us too on both sides. It's my understanding that you actually own this report.
You paid for it. So I'm not sure that application would apply to your ability to -- it's a service rendered. I think it's not marketing; it's not --
ASA HUTCHINSON (counsel for Mr. Mendell): Mr. Chairman, if I might.
REP. STUPAK: Yes.
MR. HUTCHINSON: The disclaimer on the front says, "The report is furnished solely for the benefit of the above-named client in connection with the auditing services." So it would be our view that this was an audit in the regular course of business that we paid for and it would be relevant to the committee's consideration and appropriate.
REP. STUPAK: Okay. So upon your advice, you're having your client then submit this report despite the disclaimer --
MR. HUTCHINSON: Yes.
REP. STUPAK: -- we don't have written notification?
MR. HUTCHINSON: That's --
REP. STUPAK: Okay. Just trying to protect the integrity of everybody here.
Okay. And then on the -- I guess the other one doesn't have that disclaimer, just some general -- would you take same advice, that it's -- your client paid for it; it's his report, therefore it would be appropriate to submit it for the record, Mr. Hutchinson?
MR. HUTCHINSON: Which one are you referring to?
REP. STUPAK: The one from -- dated -- let me get the exact date.
MR. HUTCHINSON: There's a --
REP. STUPAK: HACCP Consulting Group from Fairfax, Virginia. I don't -- November 16th, 2007.
MR. HUTCHINSON: Yes. Correct.
REP. STUPAK: So these are five days apart, these two reports. And you'd like them both submitted then for the record?
MR. HUTCHINSON: Yes, indeed.
REP. STUPAK: Okay. Without objection? Hearing no objections, they're part of the record.
MR. HUTCHINSON: There is one more letter that was attached to that package, a letter of February 1, 2008. Do you have that?
REP. STUPAK: Yes, I do.
MR. HUTCHINSON: We've asked that to be made a part of the record as well.
REP. STUPAK: This is the letter from Dr. Coneyer (ph), meat consultant. He's a doctor of veterinary medicine, is that correct?
MR. HUTCHINSON: Yes, that's correct.
REP. STUPAK: Okay, that's the one? It's dated? Okay, it's dated February 1st, 2008.
MR. HUTCHINSON: That's correct.
REP. STUPAK: Okay, that's as -- after these incidents. I didn't know if you had --
MR. HUTCHINSON: That's correct. That is after --
REP. STUPAK: But you still want it?
MR. HUTCHINSON: Yes.
REP. STUPAK: Without objection, February 1st, 2008 letter from V.E. Coneyer (ph), doctor of veterinary medicine, meat consultant will be part of the statement. Okay.
MR. HUTCHINSON: Thank you, Mr. Chairman.
REP. STUPAK: Thank you. Let's begin questioning then.
Mr. Mendell, you state your company, according to what I've seen and read, the company began -- at least you, in 1990 near Los Angeles. Correct?
MR. MENDELL: Yes, sir.
REP. STUPAK: And then you bought this slaughterhouse later?
MR. MENDELL: Yes, sir.
REP. STUPAK: Okay. Were you aware, then, in 1990 the Humane Society in neighboring Pomona found recurring problems of the plant handling cows?
MR. MENDELL: No, sir.
REP. STUPAK: Okay. Are you aware that 1993, part of the Jack in the Box where we had the E. coli and people were injured, your company settled part of that claim?
MR. MENDELL: Yes, sir. I was part of that recall.
REP. STUPAK: Okay. And then in 2003-2004, your company aggressively went after the -- I shouldn't say after -- sought the hot lunch program, providing meat to the federal government for hot lunch, right?
MR. MENDELL: Yes, sir.
REP. STUPAK: Okay. And in 2005 you had a complaint by the U.S. Department of Agriculture for noncompliance in handling of animals?
MR. MENDELL: Yes. We had had one violation written by USDA. Yes, sir.
REP. STUPAK: Okay. Do you have that report with you today?
MR. MENDELL: Yes, I believe we do.
REP. STUPAK: Can you submit it for the record so we can see it? The downer cow issue, you agree they are not supposed to be made -- put into the human food supply chain -- food chain, correct?
MR. MENDELL: Yes.
REP. STUPAK: And why is that?
MR. MENDELL: Because they changed the regulation in '04. Until '04 they were allowed in the food chain -- not school lunch but commercial trade.
REP. STUPAK: Okay.
MR. MENDELL: In '04 the regulation was changed.
REP. STUPAK: And do you know why that was?
MR. MENDELL: An abundance of caution for E. coli, salmonella and --
REP. STUPAK: And mad cow disease, right?
MR. MENDELL: -- mad cow disease.
REP. STUPAK: And it was established then, was it not, that of the 15 cases of mad cow disease in North America, U.S. and Canada, 12 of the 15 were downer cows. Eighty percent of those cows related to mad cow disease were downer cows. Is that correct?
MR. MENDELL: I don't know those exact numbers, but they sound right to me.
REP. STUPAK: Okay. Are you aware of the report -- I think everybody has it -- Canada confirmed a new case of mad cow disease on February 26th, the day you were supposed to testify -- confirmed mad cow disease still available?
MR. MENDELL: Yes, I was aware of that.
REP. STUPAK: Okay. Are you also aware that mad cow disease, including the Jack in the Box cases, all these, they don't surface until, on an average, 13 years, goes up to 20 years later before mad cow disease may surface in a human?
MR. MENDELL: Yes, sir.
REP. STUPAK: So the statement that there's been no illness because of this recall, we don't know that for at least, on an average, 13 years later, because of the incubation period. Correct?
MR. MENDELL: That would be correct.
REP. STUPAK: Okay.
MR. MENDELL: But we have safeguards in there, sir.
REP. STUPAK: Well, let's talk about safeguards.
MR. MENDELL: All right.
REP. STUPAK: You said, on the video we showed, you never saw the cow -- we call it the water-boarding cow, the last cow?
MR. MENDELL: The waterboarding cow I had seen.
REP. STUPAK: You had seen?
MR. MENDELL: Yeah.
REP. STUPAK: And that was put into the kill shoot and that was made part of the human consumption, was it not?
MR. MENDELL: No, I saw the video.
REP. STUPAK: You saw the video?
MR. MENDELL: Yes.
REP. STUPAK: So that cow that we referred to, it's at mark 435 in the video if you want to get it up, Kyle. That went into the food supply, did it not?
MR. MENDELL: I'm not sure if it did, sir.
REP. STUPAK: Well, it went into the kill when it was killed. It showed that on the tape, does it not?
MR. MENDELL: Okay, was that -- yeah, I'm not certain that was the cow, but yes.
REP. STUPAK: Okay. So that would be a direct violation. That cow was a downer cow, could not go into the food chain, correct?
MR. MENDELL: That would be a direct violation unless it was re- examined by a veterinarian.
REP. STUPAK: Was it re-examined?
MR. MENDELL: I don't know, sir.
REP. STUPAK: In that video, did you see any veterinarian there?
MR. MENDELL: It didn't look like it to me, sir.
REP. STUPAK: Okay. Kyle, you got a second clip?
Let me show this clip. This is -- you said there was a second video you never saw.
MR. MENDELL: Right.
REP. STUPAK: But you talked to the USDA about it, correct?
MR. MENDELL: I'm sorry?
REP. STUPAK: You said you talked -- in your written testimony you said there was a second video, USDA called you on it and that's when you decided to do the recall.
MR. MENDELL: That's when they decided to recall.
REP. STUPAK: And you'd never seen this -- the video?
MR. MENDELL: I haven't seen that one and I don't know if there's another one.
REP. STUPAK: Okay. Kyle, show the second one.
(Videotape is shown.)
Okay. Has your company ever illegally slaughtered, processed or sold a downer cow?
MR. MENDELL: I didn't think we had, sir.
REP. STUPAK: Okay. But the first video shows a downer cow going in the kill box, right?
MR. MENDELL: Yes.
REP. STUPAK: This last one was a cow that never made it to the kill box. It was there, not quite in, and they shot it and they dragged it in. Correct?
MR. MENDELL: That's the video that I hadn't seen that USDA had called me on.
REP. STUPAK: I'm curious -- and I know my time's up -- why haven't you seen these videos? The first video was on the Web weeks before we had our hearing. This one's been on for a couple of weeks.
MR. MENDELL: This one they just --
REP. STUPAK: Yes, the one you just saw.
MR. MENDELL: I --
REP. STUPAK: We download them off -- I mean --
MR. MENDELL: Yeah. That one I never saw, sir.
REP. STUPAK: But --
MR. MENDELL: I thought it was --
REP. STUPAK: -- wouldn't your own curiosity as president of the company, CEO, you're responsible for it, wouldn't you want to see what is being played out there, what they're saying about your company, what the videos are showing about your company?
MR. MENDELL: Yes, I would, sir.
REP. STUPAK: So the recalls of the 143 million pounds of meat based upon these two cows we know went in was a proper recall, then, because of mad cow disease, correct?
MR. MENDELL: It was a regulatory violation for sure. It was inhumane treatment for sure.
REP. STUPAK: Okay. Let me just be real clear. It is -- there is no doubt that a downer cow -- since 2004, according to your testimony -- cannot be put in the nation's food supply because of concerns of mad cow disease, which does not manifest itself in human beings at least, on an average, 13 years later. Is that correct?
MR. MENDELL: That's correct, unless you have a vet --
REP. STUPAK: Okay.
MR. MENDELL: -- there to examine it, and I did not see a vet.
REP. STUPAK: So based upon what we saw, it would be logical to conclude, then, at least two downer cows went into the nation's food supply, as we do not see a vet make a physical inspection before it was put in the kill box?
MR. MENDELL: That would be logical. Yes, sir.
REP. STUPAK: Okay. So then let me take it one step further. The cow we just saw in video two, the waterboard cow in video one, they were illegally slaughtered underneath the rules and regulations of the United States?
MR. MENDELL: Correct.
REP. STUPAK: Okay. I have more questions, but my time is up. I will turn to Mr. Shimkus for questions, please.
BREAK IN TRANSCRIPT
REP. STUPAK: Thank you, Mr. Shimkus.
Before I turn you over to Ms. DeGette for questions -- oh, I'm sorry, Mr. Dingell's there -- let me just say a word of caution on questions -- your answers to my questions.
Page 2 of your testimony, you said, I want to emphasize that through the activities shown in the video are not food safety. The cows shown in the video could not walk, were designated to be euthanized, and were not put into commerce.
I think that we established that as not true, based on your testimony.
You also state that these cows were not slaughtered, ground or sold. They were euthanized and removed.
That may not have been true. That's what your written statement said, which is supposed to be under an old, part of the record, but I believe your oral testimony contradicted that. You may want to clarify that.
MR. HUTCHINSON: It is an important point. The testimony that was submitted referred to an excerpt of a video that my client saw, and so his testimony was accurate relating to the excerpt of the video that he saw, and his testimony is correct in that regard. It has obviously been clarified today in further testimony.
REP. STUPAK: The only hesitance I have, Mr. Hutchinson, is on top of Page 2, "shocked with an electric prodder and had water hoses sprayed in their nose in an effort to get them to their feet." That was the one that was euthanized and put in the food chain, the one where Mr. Mendel said, "I was not aware of it." But that's the same one that he saw. He describes it in his testimony. That had to be video number one. It's the same. So the written testimony and oral testimony are not on the same parallel, and I just caution -- you know, the committee is under oath for reasons, and -- I mean, before I unleash Mr. Dingell, I just want to give you that caution.
MR. HUTCHINSON: (Laughs.) We appreciate the instruction of the chairman, and I think, combined with what his statement has been, for the record, both written and orally, I think he testified orally that provides a clarification and direct answers to the committee.
REP. DINGELL: Mr. Chairman, I believe that it's a custom for the committee to swear all witnesses, is that correct?
REP. STUPAK: Yes, and he was sworn in earlier with the opening.
REP. DINGELL: I would note Mr. Mendell has been sworn. The other gentleman --
REP. STUPAK: He was identified and sworn early on, yes.
REP. DINGELL: The other gentleman at the table, has he been duly sworn?
REP. STUPAK: Mr. Mendel has.
Mr. Hutchinson, have you been -- you were sworn at the beginning, were you not?
MR. HUTCHINSON: No, I was not.
REP. STUPAK: Okay, then we're going to have to do it right now then, okay?
Stand and raise your right hand.
REP. DINGELL: Mr. Chairman, it's my understanding of the practices of the committee that a witness has the privilege of being sworn and testifying. He has the privilege of having a lawyer and having the lawyer advise him during his appearance before the committee. I am not aware of any privilege that permits an individual to be sworn and to serve as a witness, and yet at the same time to serve as an attorney or lawyer or legal adviser to the witness. I think Mr. Mendell has the privilege of being duly sworn and testifying. Now, the gentleman there at the table, he's appearing here as a lawyer. It was always my practice when I ran the committee, this subcommittee, that those who appeared as lawyers functioned as lawyers, and those who functioned as lawyers could not testify.
REP. STUPAK: Point well taken, Mr. Dingell.
REP. DINGELL: That's a practice to which we should continue to adhere, and I think that Mr. Mendell should be permitted to answer the questions, and if he can't, then he should state so and we'll decide whether or not we want to hear from his lawyer under oath at a suitable and proper time.
REP. STUPAK: Point well taken, Mr. Dingell. And my sense of fairness in trying to make sure everybody's treated fairly here, I had asked Mr. Hutchinson a question or two. But you are right, he cannot be a lawyer and a witness at the same time.
Therefore, I would recommend, and I'll suggest to the committee, if no objection, that Mr. Hutchinson stays where he's at, not take the oath but can advise Mr. Mendell. If a question before you, answer a question. If you want to consult with Mr. Hutchinson, we will give you the opportunity.
I just want to make sure everybody's clear, clear on where we're going, clear on the statements, clear on the facts, because there are extenuating circumstances that may develop in this.
Mr. Shimkus?
BREAK IN TRANSCRIPT
REP. STUPAK: The other caution I had, Mr. Shimkus, and point well noted, but I had asked Mr. Mendell directly, based up on what we saw -- first video, second video -- and no veterinarian had looked at this cow -- would it have been illegal to put this cow in, and he answered, "Yes." So that sort of cleans that one up, I think. So -- but I just -- go ahead.
REP. SHIMKUS: Yeah, if the chairman would yield. I would like to pose that -- I think there's a lot of confusion. So -- and he has answered, but I'd ask it again.
REP. STUPAK: Okay.
REP. SHIMKUS: For full clarification, so we know on the first video -- food safety, kill box.
REP. STUPAK: I had asked the question, and let me take a minute and try to clarify this. Has your company ever illegally slaughtered, processed or sold a downed cow, Mr. Mendell?
MR. MENDELL: Not ever -- not that I was ever aware of.
REP. STUPAK: Correct. And that was your answer earlier. You said not that you were aware of.
MR. MENDELL: That's right.
REP. STUPAK: Then we -- I directed your attention to the video.
MR. MENDELL: Correct.
REP. STUPAK: And we discussed the fact that the waterboard cow went into the -- I called it a kill box, but I guess it's a knock box. And then once it went in that knock box, it went into the food supply.
And there was no -- and we established no veterinarian had looked at it, which is required by law.
And then I -- I think I -- and then we mentioned the second video, where that cow was shot outside the knock box and then dragged into the kill box. That one went in on the second video.
So the question, I believe, to the best of my memory, I asked, since 2004 -- since the rules changed in 2004 -- that downer cows could not go into the food supply for human consumption, because of the concern of mad cow disease, which manifests itself 13 years -- maybe as high as 20 years later -- as the reason why we do not allow downed cows in the food supply. I think you answered affirmative to that --
MR. MENDELL: Yes.
REP. STUPAK: -- correct?
MR. MENDELL: Yes.
REP. STUPAK: And then I said, so in summation, at least two of these cows then that we saw in the video -- in the two videos -- were illegally slaughtered? And I believe your response was yes.
MR. MENDELL: Okay. To clarify that, the cow -- the -- okay, the cow getting the water sprayed in its nose: That is clearly inhumane treatment. I did not see an inspector there to re-inspect that cow to allow it to go into the food chain.
REP. STUPAK: And we saw it go in the kill box. Therefore, it went into the food chain?
MR. MENDELL: Yes.
REP. STUPAK: Okay.
And the second one -- the second cow, that short video --
MR. MENDELL: Yes.
REP. STUPAK: -- where they shot it outside the kill box --
MR. MENDELL: Half in and half out
REP. STUPAK: Right.
And then it went into the kill box. That went into the food supply. It was not inspected by a veterinarian?
MR. MENDELL: Not that I saw, sir.
REP. STUPAK: So it is fair to say, then, that these two cows went into the food supply and that would be illegal, since at least 2004, to put a downer cow in the food supply for human consumption?
MR. MENDELL: I would say that it's a rules violation for not calling a USDA veterinarian to inspect that cow --
REP. STUPAK: Okay.
MR. MENDELL: -- to either let it or not let it go in.
REP. STUPAK: Okay. So it's not the veterinarian -- even though the veterinarian could have rectified the problem, the problem is we have a downer cow, according to the videos, that saw no veterinarian, that went into the food supply. That's what makes it illegal -- the downer cow being in the food supply. Is that correct?
MR. MENDELL: (Off mike consultation.)
Yeah. I'd -- I don't have all the facts. I don't know. I just see what I see on the video.
REP. STUPAK: Right.
MR. MENDELL: I -- I'm not completely sure if that cow walked all the way in the knock box, backed out of it, which is a common occurrence. There is a door that closes behind it.
REP. STUPAK: Okay. But just -- if the cow went into the food supply as -- everyone can jump to -- make their own conclusions from that video.
MR. MENDELL: Yes.
REP. STUPAK: We didn't see a veterinarian. If it went in the food supply, that would be illegal.
MR. MENDELL: Right. That would be illegal. But it did go through post mortem inspection.
REP. STUPAK: Right, but whether it went through post mortem or not, a downer can't go into the food supply.
MR. MENDELL: Okay.
REP. STUPAK: That's the law since at least 2004 in this country, according to the USDA and federal law, correct?
MR. MENDELL: Without approval of a vet.
REP. STUPAK: Correct. And we didn't have a vet in these --
MR. MENDELL: I didn't see one, sir. But it is a case-by-case basis. And, no, I did not.
REP. STUPAK: And in these two cases we didn't see a veterinarian?
MR. MENDELL: I did not.
REP. STUPAK: Okay.
All right, you're going to find this hard one to believe, but we have a error code yellow, meaning a plane is within our airspace. We need to evacuate the building.
But not yet, not yet. Okay. They're cautioning me not yet.
If we do, I'm going to give you a two-second warning. Leave calmly. Okay?
If you want to leave now, you can, but -- (laughter) -- there is a -- meaning a plane is in our airspace. We may need to evacuate. So --
Now, Ms. DeGette. She already -- no, Mr. Dingell for questions, please.
MR. HUTCHINSON: Mr. Chairman?
REP. STUPAK: Yes.
MR. HUTCHINSON: Mr. Mendell did have one clarification on that last question, if he might.
REP. STUPAK: Okay. Clarification before we go to Mr. Dingell.
REP. DINGELL: Thank you.
Mr. Mendell at --
REP. STUPAK: Mr. Dingell, one minute, please. We want to -- Mr. Mendell wants to clarify something for us before I turn it to you, sir.
Mr. Mendell?
MR. MENDELL: If that cow did not pass post mortem inspection, it would have not gone in the food supply either.
REP. STUPAK: That's fine. Okay.
Mr. Dingell.
BREAK IN TRANSCRIPT
REP. STUPAK: Thank you. We'll continue with questions in another round.
Mr. Mendell, Mr. Burgess asked you about the Humane Society. And without the work of the Humane Society we never would have known what went on in those days, correct? In November there, with the downer cows being put in -- without their work, we never would have known.
MR. MENDELL: Without the tape, would I have known? No.
REP. STUPAK: Anyone. No one would have known?
MR. MENDELL: No, sir.
REP. STUPAK: Okay. You indicated in your statement that you would've terminated these employees immediately. In your employee handbook, if they put a downer cow into the kill box, or knock box as you call it, is your discipline -- is it very clear, you're terminated?
MR. MENDELL: They would've been terminated immediately for that too.
REP. STUPAK: Is that in writing in your company policy?
MR. MENDELL: Yes, sir.
REP. STUPAK: Okay.
MR. MENDELL: I don't think we have it with us, but I can gladly get the committee a copy. It's very clear, let's put it that way.
REP. STUPAK: Mr. Burgess asked you about the health risk. The safest way to protect Americans, whether they're checked by a vet, is just not put a downer cow into the human food chain, right? That's the safest way?
MR. MENDELL: Yes.
REP. STUPAK: Okay. You indicated that about the recall that you had four or five hours. You indicated earlier in testimony you might have seen 50 different videos. But yet, the video we've seen today, you hadn't seen those. Those were in the public domain a month before the -- I shouldn't say that -- a couple weeks before the February 26th hearing and here we are March, what, 11th or 12th, so they've been out there about a month. Would there have been anything that would have prevented you from going online to look at these videos? I mean, you're the only one in America who hadn't seen it pretty much.
MR. MENDELL: Yeah, maybe not. Maybe there wasn't anything that prevented me, but I was in a crisis mode at that plant.
REP. STUPAK: Right, but if these are the --
MR. MENDELL: I mean, I had a million things going on with USDA; we were all being interviewed by USDA.
REP. STUPAK: All right, but the first video is five minutes. The other we showed you was one minute. Six minutes.
These videos were the accusations against your company, I would think you would want to say, "Man, what are they saying or what are they doing?"
MR. MENDELL: Well, I never saw the narrated video like that, not one time. I've never seen it. Like I said, I've seen --
REP. STUPAK: I just find it amazing you'd never look at it, that's all.
MR. HUTCHINSON: Mr. Chairman?
REP. STUPAK: Yes.
MR. HUTCHINSON: May I just add, perhaps we're remiss as counsel. I was not aware that the last video --
REP. STUPAK: You can't testify though, remember?
MR. HUTCHINSON: I don't mean to testify. I'm just saying we're not aware --
REP. STUPAK: It's called testimony, though. Okay, let's go -- tell Mr. Mendell and Mr. Mendell can relay your answer.
Let me ask you this: You said it was a Stage 3 recall, I think you said. And you said you didn't know what Stage 3 was.
MR. MENDELL: I didn't know the definition of a Stage 3.
REP. STUPAK: Okay. Do you know what it is today?
MR. MENDELL: No, sir.
REP. STUPAK: Okay. That's the possible highest risk, that's why it's Stage 3, that's my understanding.
Let me ask you this: What did they say if you -- that would make you do the recall? You said you had four to five hours. You've never seen the video; they said they had more video, you said you didn't see it. What convinced you then to go along with the recall? Or was this a mandated recall by USDA, you had no choice?
MR. MENDELL: Well, it's not mandatory, sir.
REP. STUPAK: Right, understand.
MR. MENDELL: In 10 days it would be. That's what they told me the next morning. We consulted --
REP. STUPAK: But didn't you ask them what is the basis of you forcing -- the USDA -- why are you forcing my company to go into recall if there's no risk and you've never seen downer cows go into the food supply?
MR. MENDELL: We did ask them. They said it was based on a video, based on testimony of an employee. We asked who the employee is. They said they couldn't tell us. We asked for a copy of the video. They said they'd see what they could do about getting it to us, period, that they thought there was enough evidence to --
REP. STUPAK: And if this video and what they represented to you was going to devastate your company as it has, as you've indicated, and you had a 10-day window period, why wouldn't you just wait to see the video to make sure that they're not blowing smoke?
MR. MENDELL: Would you think USDA would do that, sir, in this kind of an arena?
REP. STUPAK: From where I sit, absolutely.
MR. MENDELL: I didn't.
REP. STUPAK: I mean, your whole future, your whole --
MR. MENDELL: Yeah, my whole life up in smoke.
REP. STUPAK: Yeah. It seems to me, and some of us up here, it has to be something more there. I guess we're trying to -- is there something more, are we missing something? You didn't see the videos. You didn't go online.
MR. MENDELL: No, there was nothing.
REP. STUPAK: You didn't take time to even seen the videos, say at least present us the video before I make a decision?
MR. MENDELL: I'd seen clips of the video, sir. I was called at 9:00 or 10:00 at night when this recall committee -- 9:00 or 10:00 West Coast time. They acted like I didn't have a choice, and I don't think I did.
They said they'd have sanctions in 10 days, it would be an involuntary recall and it would be worse.
REP. STUPAK: How about then after you made your recall, before you come to testify here, why wouldn't you have watched the videos then that were online? I mean to get prepared for testimony?
MR. MENDELL: I had seen enough to be -- I was regrettable enough with the videos that I'd seen on the inhumane handling, I knew what the issue was.
REP. STUPAK: Let me ask you this, because it's near part of our hearing: Does your company use carbon monoxide in your packaging of meat?
MR. MENDELL: No.
REP. STUPAK: Has your company ever used irradiation for meat?
MR. MENDELL: One more time?
REP. STUPAK: Irradiation, have you used it?
MR. MENDELL: Do I know about it?
REP. STUPAK: No, have you used it in your meat?
MR. MENDELL: No, I haven't. We were about to, we never did.
REP. STUPAK: Okay.
Can a school district receive a refund? A number of the members mentioned refunds. If they had to throw out their meat, can they receive a refund from your company? I have probably about 20 school districts in my district that --
MR. MENDELL: I'm not sure if that's going to be possible.
REP. STUPAK: Okay.
In the Silliker report, this is one of these audit reports you want to put in there. On Page 2 of the Silliker report it says "Animal Welfare Audit Beef." The video indicated that the inspections took place at 6:30 in the morning and 12:30 p.m. Do you remember that?
MR. MENDELL: No.
REP. STUPAK: The narrative part of the first video.
MR. MENDELL: It said start -- (inaudible) -- a.m., end at 12.
REP. STUPAK: Right. The video, the narrative, said they start inspections at 6:30 every morning -- 6:30 was the inspection, the next one was 12:30.
MR. MENDELL: That was for ante mortem inspection, yes, sir.
REP. STUPAK: Right. But here, your audit only takes place between 8 a.m. and noon.
MR. MENDELL: Okay.
REP. STUPAK: So when the animals were going by for this inspection to see if you have downer cows, this audit, they weren't present.
MR. MENDELL: Who wasn't present?
REP. STUPAK: This audit, the animal welfare audit of beef by Silliker. This audit you paid for.
MR. MENDELL: Right.
REP. STUPAK: The critical part of this testimony -- I'm sorry, this hearing -- is these downer cows having to move from here to there. That occurs between -- at 6:30 in the morning, again at 12:30 in the afternoon. According to this audit that you're relying upon to show you good practices, they're only present between 8:00 and 12:00. They miss the critical phase we're talking about.
MR. MENDELL: Is that what time those animals got moved?
REP. STUPAK: It's right here.
MR. MENDELL: That's what time the USDA went outside.
REP. STUPAK: I'm going off the audio of the video.
MR. MENDELL: Okay.
REP. STUPAK: So what I'm saying is, if you're relying on this audit, the key times we're looking for, your auditors weren't present.
MR. MENDELL: Yeah, obviously.
REP. STUPAK: Okay. And the other one doesn't have times when they were present, just they were there in November 13, 14 --
MR. MENDELL: Right. It's just saying it's in that 8:00 to 12:00 period.
REP. STUPAK: Let me ask you this question: I indicated earlier that about 2003, 2004, you really went after -- or I shouldn't say after -- you contracted for the National School Lunch Program. And in there, because of the school lunch program, there's greater scrutiny of your operation. Is that correct?
MR. MENDELL: Yes, sir.
REP. STUPAK: Okay. So the risk of downer cows become more critical, correct?
MR. MENDELL: Absolutely.
REP. STUPAK: In The Wall Street Journal article I'm reading it says that the plant to slaughter animals are the major buying of older spent dairy cows from many dairy farms in the Inland Valley. Is that correct?
MR. MENDELL: That's correct.
REP. STUPAK: You also buy cows from a 15-state area?
MR. MENDELL: Fifteen?
REP. STUPAK: Yeah.
MR. MENDELL: No, probably six.
REP. STUPAK: Six-state area, okay.
I think that's been covered.
What happened to Mr. Salas? Another worker told police Mr. Salas only came outside, and he couldn't be reached for comment.
MR. MENDELL: When this incident occurred we suspended Pablo Salas until we reviewed all the documents that he had in place and reinstated him to provide them all for USDA, because I felt he did -- he was doing his job. I wanted to make sure that all the paperwork was in order, that this gentleman did go through orientation and two training periods in a six-week time, as well as documentation and backup for the rest of the people that work there.
(Off mike consultation.)
REP. STUPAK: I just -- I'll let you consult with counsel.
Ready for next question?
MR. MENDELL: Yes, sir.
REP. STUPAK: Okay. I had asked you earlier about Class 3, and I thought it was the serious adverse health; that's not true. Class 1 is adverse health. Class 2 is serious adverse health. Class 3 is likely (sic) to cause adverse health consequences -- not likely to cause adverse health. I'm put this is as part of record so we have it for the record, so in case any other member wish to refer to it during their questions.
Last question: These two audits -- you had these audits here in November, the two you've submitted as part of your testimony.
MR. MENDELL: Yes.
REP. STUPAK: Do you know when auditors are coming, like this Silliker?
MR. MENDELL: I personally don't, but I'm sure --
REP. STUPAK: You make arrangements with the company to come out?
MR. MENDELL: I'm sure these audits were scheduled. Yeah, I'm sure they were.
REP. STUPAK: Okay. I have no further questions for this witness.
Mr. Shimkus.
BREAK IN TRANSCRIPT
REP. STUPAK: Thank you, Professor Olson.
Yeah, we're going to try to get some questions in. We're going to have two votes on the floor, so let's start.
Let me start with you, Professor, as you're grabbing a drink of water. You say in your testimony, and you alluded to it, but in your written testimony, Page 3: "The FDA apparently believes that the 1999 WHO report considered all the studies the FDA considers relevant and had expressed no disagreement with the conclusions in that report." This is on irradiation of foods, correct?
MR. OLSON: That is correct.
REP. STUPAK: Okay. And then you go on to say: "Nonetheless, FDA continues its outdated petition-by-petition review. Perhaps in light of the evidence outlined above, it's time to consider" -- and you said you're still waiting. What is the delay? It's been 1999; we're now nine years later, almost 10 years later.
Why aren't they ruling on the petition that you all put together?
MR. OLSON: Well, there are some issues that came up with furans and there had to be some research done on that and some market basket tests. But we need to have some common sense, because we have found acrylomides in potato chips, in french fries that we have been eating for decades, but acrylomide is listed as a carcinogen. We've found furans in -- maybe slightly elevated levels in irradiated products that have high carbohydrate content -- slight elevation.
REP. STUPAK: Is that harmful? Would that be harmful?
MR. OLSON: Well, in a pure form, furans would, but the greatest content we have in our market basket study that FDA did is in baby food. And so if anybody's going to be susceptible it should be young children, and baby foods have by far the highest amount of furans as any of the other foods that have been tested. But it's still a delay that has prevented the petition from coming forward.
REP. STUPAK: Is it because the FDA doesn't have the science foundation to address the issue raised in the petition?
MR. OLSON: I think they're fully capable of the science part. I have no doubt about that. What other issues has caused that from not being issued, especially in light of what we have seen around the world, you know, it's --
REP. STUPAK: Do other countries use irradiation? Like the European Union and others, do they use it in their products?
MR. OLSON: Frankly, we have an explosion of facilities being built, especially in the Southeast Asia area, where we are going to be experiencing this spring a tremendous amount of irradiated fruits, tropical fruits coming into the United States. That is the biggest area of activity that is occurring. We have a lot of shrimps that are irradiated in that area as well.
REP. STUPAK: But your petition didn't include seafood, isn't that what you said? The WHO, World Health Organization, in the petition you guys submitted on that behalf did not include seafood?
MR. OLSON: That's correct, because there were other petitions submitted that did include seafoods. But that's --
REP. STUPAK: So there's petitions pending before the FDA on seafood?
MR. OLSON: Yeah.
REP. STUPAK: Okay.
MR. OLSON: The last one was in mollusk and shellfish, which was approved in '95.
REP. STUPAK: Okay.
MR. OLSON: Or '97, I think it was.
REP. STUPAK: Mr. Wegman, if I may, you said you began selling your irradiated ground beef when a consumer got sick, and it wasn't necessarily traced back to your beef but that's how you got interested in this.
And I have one of yours right here, Wegmans' 90/10 irradiated ground beef. Why'd you feel it was important to put "irradiated" on the product itself?
MR. WEGMAN: Thank you. We just wanted to be very clear with our customers that we weren't trying to pull a fast one on them.
REP. STUPAK: Okay, to put "irradiated" on there, did you get approval from the FDA?
MR. WEGMAN: We must have or we wouldn't have it on there, I guess.
REP. STUPAK: Okay.
MR. WEGMAN: He can answer it better.
REP. STUPAK: I'm sorry, I said FDA; it's USDA --
MR. OLSON: Yes, USDA. The USDA requires the label to say irradiated, generally "irradiated for food safety" with the little RADURA symbol on that. But that statement is to be no longer -- no larger than the ingredient statement on any package. But Wegmans took another step and put a -- billboarded it.
REP. STUPAK: Okay. As a retailer, then, Mr. Wegman, did you have to work with the supplier to get the USDA to approve your label?
MR. WEGMAN: I believe we do.
REP. STUPAK: Okay.
MR. WEGMAN: If you need a further exact yes or no, I can ask somebody behind me.
REP. STUPAK: Okay, we've been -- in this committee, we've had past hearings on carbon monoxide. (Inaudible) -- carbon monoxide packaging for any of your beef or anything? Mr. Wegman?
MR. WEGMAN: No, we don't.
REP. STUPAK: Just irradiation?
MR. WEGMAN: Yes.
REP. STUPAK: Okay.
Let me go to Ms. Lachman then. Last fall we were going to have a hearing. We had testified you -- asked you to come testify. You were going to and you said you'd used carbon monoxide -- you use carbon monoxide, right, in your beef products?
MS. LACHMAN: We use -- we use MAP-packaged products, yes.
REP. STUPAK: Yeah, carbon monoxide?
MS. LACHMAN: I believe that's the (tri-gas ?) in there.
REP. STUPAK: Okay. If Wegmans can use irradiation on their packaging and it's rather pronounced, and I looked earlier before on the spinach and all that, and there's pretty good-sized labels on there, why won't you just call it carbon monoxide as opposed to modified packaging, whatever?
MS. LACHMAN: Quite honestly, we have to -- we did submit the letter to FSIS; the language was not approved. We have worked with Hormel and Precept -- or Precept, who is our primary vendor. Precept declined to pursue our language as they already had a label approved by FSIS for that packaging.
REP. STUPAK: And what is that label that's approved by FSIS?
MS. LACHMAN: One moment, and I can read it.
REP. STUPAK: Is that the one that's in your testimony about doesn't change the color, whatever?
MS. LACHMAN: "Color is not an accurate indicator of freshness. Refer to use or freeze-by date."
REP. STUPAK: Right, and the reason why it doesn't change color is because it's been treated with the carbon monoxide, right?
MS. LACHMAN: I believe that's in the package. I'm not an expert on that part.
REP. STUPAK: Okay. I guess the part I'm trying to figure out, Wegmans have done the right thing and let the consumer know, but when it comes to carbon monoxide we get all kinds of pushback. And if Wegmans can do it successfully, why can't we just put carbon monoxide?
MS. LACHMAN: I'm sorry, I can't speak for what Wegmans has done, but we have been working with Hormel to pursue labeling -- Precept.
REP. STUPAK: But it doesn't say carbon monoxide on it. See, we still think the consumer has the ultimate right to know whatever it is, so.
I'm going to go to Mr. Shimkus. We've got a couple of votes on the floor, because -- I know I got plenty more, but go ahead.
BREAK IN TRANSCRIPT
REP. STUPAK: Yeah, we got four votes on the floor, it's probably going to take us till 3:15. I'm going to ask this panel to stay; I have questions about the tomatoes, the spinach and the mushrooms there and a number of other things that I want to ask about, because I think it's very important -- (inaudible) -- of the education process.
So if you'll stay, we're going to recess until 3:15.
REP. SHIMKUS: I'll bring the ranch dressing.
REP. STUPAK: All right.
(Recess.)
REP. STUPAK: (Sounds gavel.) Okay, committee will come to order. We're going to go a second round of questions.
As I said, I had a number of questions.
And Mr. Olson -- Professor Olson, if I can start with you. On February 26th, the CEO of Dole Foods testified that he tried irradiation and it fried their vegetables, and they said it just made them soggy; it just doesn't work. Comment on that? Because I see we have spinach, and explain what you got -- spinach, you got mushrooms, you got tomatoes.
MR. OLSON: We have -- yes, we have spinach and we have lettuce, and even when we were getting irradiated ground beef in May 2000 and past that, there was some reluctance and often quality was used as an issue of not moving forward. I know one company that we worked with almost nine months until they had a ground beef recall, all of a sudden, the quality is not an issue. So I think there is a little reluctance to move forward.
REP. STUPAK: Well, can I -- you --
MR. OLSON: You know, "I don't want to bother."
REP. STUPAK: Let's take those mushrooms there. Can I irradiate them and do I fry them? Can I put it too strong where I wreck the quality and the taste of the food?
MR. OLSON: No, I don't think we've had -- have anything deteriorated from irradiation on the table.
REP. STUPAK: Okay. Okay, the testimony was that Mr. Wegman's brought 40 cents more per pound of beef, and that's transportation costs, mostly? Would that be fair?
MR. OLSON: I would say most of it would be transportation costs.
REP. STUPAK: Mr. Wegman?
MR. WEGMAN: Eighty cents.
REP. STUPAK: Eighty cents.
MR. WEGMAN: Eighty cents.
REP. STUPAK: It's 80 cents more.
MR. WEGMAN: About -- it's a little less, it's probably 60, 70 now.
REP. STUPAK: Okay.
MR. WEGMAN: But we can fix that.
REP. STUPAK: But that's -- is that mostly transportation costs because you've got to send it one place to another place to another place?
MR. WEGMAN: It's a combined -- yes, it's the extra handling, the extra -- (off mike).
REP. STUPAK: Okay. So if we used more irradiation of meat, vegetables, that'll bring that cost down I would -- because other companies would get into irradiation, would it not?
MR. WEGMAN: Yes.
REP. STUPAK: Professor Olson, what's the downside, I mean, other than maybe consumer conception? Is there a downside to irradiation? I understand when you irradiate something with E. coli it breaks the molecule and therefore it can't manifest in humans. Explain it to us a little bit, and then what's the downside? I'm trying to get at this.
MR. OLSON: Okay. Let me just -- because you brought that one issue up. Basically while we were controlling bacteria, we're damaging DNA. Now, we can do that with electron beams; we can do that with x-ray; we can do it with gamma ray; we do it by fast-moving electrons, regardless of what source. And so they all have the same effect on that. But the downside, and I have said it many times, the only downside is cost. And --
REP. STUPAK: The cost of irradiating it or the extra handling that's involved because you put another step in it? It's my understanding -- you take that spinach right there. If Dole would send you a box of spinach and you lay it out on a belt -- and I saw your public TV special on irradiation put out by Iowa State University -- you put it on a belt and you zap it right in the bag, right?
MR. OLSON: Correct.
REP. STUPAK: And then at the end you just ship it back to Dole.
MR. OLSON: That's correct.
REP. STUPAK: So the cost then would be just that extra step you have to put in. But if we had more -- would it -- it's cost, basically, then.
MR. OLSON: That's right. And say if you had -- Dole had their own irradiation facility in their own plant --
REP. STUPAK: Right, right.
MR. OLSON: -- it's pennies.
REP. STUPAK: Let's say Salinas Valley, where we've had 21 outbreaks of E. coli in the last 10 years -- every six months we have a new outbreak in Salinas Valley, which is supposed to be America's salad bowl -- why wouldn't we -- why wouldn't those growers then get together in that area and just irradiate the fruits and vegetables and be done with this problem we have?
MR. OLSON: I think if we had our public health profession that is saying we need to ensure that we have a safe food supply and irradiation would be doing that, I think that that would help a great deal.
It's a little bit like metal detection. Every one of these bags have gone through a metal detector. Is it because we have a lot of metal? No. But occasionally, we have that metal. So to ensure that we don't have the consumer experiencing any metal in their product, we go through a metal detector.
And that's the way irradiation should be looked at. It is an insurance that we're not going to have E. coli or other pathogens in those products.
REP. STUPAK: Well, what food-borne illnesses could be prevented, specifically, besides E. coli, if we used irradiation?
MR. OLSON: Salmonella. And in fact, we can list a whole bunch of things like E. coli, salmonella, yersinia, listeria. There's a wide range of those. If we gave a product a dose that would control salmonella, just like when we have process controls for heating to control salmonella, we control everything else.
So that is the benchmark in terms of our ultimate control to make sure that we don't have any of these pathogenic bacteria survive. Salmonella is the most resistant to irradiation and the most resistant to heat.
REP. STUPAK: The opponents of irradiation argue or they sort of believe that if we were to use more irradiation -- fruits, vegetables, meat -- it would be used as an alternative to prevent food-borne illnesses such as sanitation. In other words, you wouldn't have to sanitize, you wouldn't have to worry about your sanitation.
MR. OLSON: Got a great example for you.
REP. STUPAK: Okay.
MR. OLSON: A hundred years ago, when we were talking about pasteurization of milk, let's say the opponents of that said let's clean up the farms and let's go with certified milk rather than pasteurized milk. And so a lot of attempts to do that, and one of the cheap arguments about pasteurization is we're just going to let these dairy farms be dirtier.
If you compare a dairy farm today versus a dairy farm a hundred years ago, it is a thousand times more sanitary. So there's no incentive to be dirty. That is to say, it sounds maybe logical, but there is no incentive to be dirty.
REP. STUPAK: Ms. Lachman, I'd asked you before, but let me try to rephrase the question this way. I'm still trying to get at why you're just not putting carbon monoxide on treated packages, why you don't just say carbon monoxide.
Will Target commit to write to Precept -- and we understand that Precept was sort of a stumbling block here -- will Target commit to write to Precept and request that carbon monoxide be added to labels on meat for sale at Target?
MS. LACHMAN: As I understand it, for labeling, we need governmental approval, and we have been working with Precept/Hormel to pursue language, and they already have language in place, or they have language approved by FSIS.
REP. STUPAK: But it doesn't include carbon monoxide.
MS. LACHMAN: No, it does not.
REP. STUPAK: Right, and this committee and in our legislation, we've all been saying very clear consumer has the right to know. You can use fancy words, but we like it like here -- irradiation, carbon monoxide.
So you get your -- Cargill and Hormel provides your -- supplies your meat. Wouldn't you just use your clout and say look, we want to include carbon monoxide? You're our supplier. If you don't want to do it, fine, we'll go to a supplier who'll provide us the food that we can put the label on it says carbon monoxide.
I mean, you really don't need FDA approval to put carbon monoxide labeling on your food, do you?
MS. LACHMAN: It is my understanding we need FSIS approval to put any labeling on regulated meat packaging.
REP. STUPAK: Well, how about just a sign in the store?
MS. LACHMAN: I'm not sure what is required to put a sign in the store.
REP. STUPAK: Kyle, can you give me that exhibit? Here's at one your stores, or Publix. See, we see it all the time, and it's right -- I think we have it on the table there for you. "Our fresh meat and seafood set the standard for naturally fresh. Unlike other stores that may use carbon monoxide to preserve the product's color even after it's spoiled, Publix never has and never will."
Well, you know, why don't you just put up a sign? You won't need to get FDA approval to put the sign up there saying this meat may be treated with carbon monoxide or we will not use it. I mean, that's what we've asked you to do, not use carbon monoxide.
MS. LACHMAN: I'm not sure what's required to put up a statement with content that relates to regulated product, but for a technical sign about a process or a specific product, we would certainly rely on our expert vendors to help craft language that would make sense for a consumer. But we will, of course, apply with all applicable laws.
REP. STUPAK: Okay. So basically, the only way Target's going to do it, then, is if we have Hormel or Cargill put carbon monoxide on the packaging. You're not going to use your financial leverage to get them to do it for you.
MS. LACHMAN: We continue to work with Hormel and have conversations about labeling -- excuse me. And what Hormel has told us is that they have been partnering with consumer groups to develop additional language for MAP product, and as late as when I spoke to them on Monday, I think as late as last Friday, they've submitted additional language to FSIS, and they've worked with consumer groups -- (inaudible).
REP. STUPAK: Well, they can -- excuse the pun, they can work until the cows come home. It's not going to fly with this committee until they use carbon monoxide, and I would think that Target, like Wegman, would want to inform their consumers -- not fancy words, not all this stuff. We've seen that modification that they want to put, modified atmosphere packages, MAP, as they call it. It's been rejected many times by the committee.
I would hope you'd use your influence and just say it's carbon monoxide; we either use it or we don't. Let the consumer make their decision. Wegman did it and it certainly hasn't hurt them, and I think the consumer certainly has that opportunity to know that.
Mr. Shimkus for questions.
BREAK IN TRANSCRIPT
REP. STUPAK: Well, let me follow up on that, though. But as chairperson of the Food Marketing Institute, you said -- right? -- Food Marketing Institute Safety Task Force -- are you moving toward some kind of rules or regulations you would recommend to the Congress as we move this food safety legislation for irradiation? Is your task force doing something along those lines that could give us some insight?
MR. WEGMAN: At the moment, no. And what we're working on, frankly, is trying to get the growers to adhere to an audit process that we think takes them to a higher level without irradiation.
REP. STUPAK: Sure, but the last recall we had in '06 was microorganisms; E. coli was found there. You can't just clean it up by washing it and all that; you almost need something like irradiation. I think that E. coli has developed strains where now you need more science as opposed to just the old 100-year process that we've done in the past.
MR. WEGMAN: That's my belief, and I think there are some things we can do, but that is my belief, what you say.
REP. STUPAK: Yeah.
Mr. Shimkus, you had some more? Thanks for the gourmet lunch.
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REP. STUPAK: No further questions of this panel. We excuse you and thank you again for your testimony and your products and your lunch.
Professor Olson, let me congratulate you. On Monday we actually put in 150th anniversary of the founding of Iowa State, one of the first land grant colleges.
Of course, the first one was Michigan State University -- (laughter) -- but Iowa State was right there, too. So I just -- we had that vote on Monday; we were just talking about it when you came up, so.
MR. WEGMAN: Mr. Chairman -- Chairman Stupak, could I --
REP. STUPAK: Yes, Mr. Wegman?
MR. WEGMAN: -- could I thank you and your committee for your work, please? This is very important to us, it's our life, and we are very appreciative that you're putting this effort into it. Thank you.
REP. STUPAK: Well, thank you, but as the task force I'd encourage you guys to develop something that we can look at, your task force on food safety with the food, that group you head up, okay? Because we're real interested in that. And, you know, when I mention Salinas Valley, it makes sense. Every six months we're having an E. coli recall. Why can't we put irradiation right there where they're all being processed?
It just makes sense to me, and I ask the FDA all the time did you do an epidemiology study on what's going on there? Well, it might be the winds, it might be the cow farm down there. Well, let's solve it. One way we can solve it is irradiation, sounds like.
MR. OLSON: And I just wanted to add one more statement, and that is that if we're going to deal with raw product, there's almost no kill step except for irradiation. And so I think that we need to zero in on this as a public health issue where we can have a kill step without changing the nature of the product.
REP. STUPAK: Thank you.
And thank you again to everyone on this panel.
REP. SHIMKUS: Mr. Chairman, we'd better get them to get these vegetables back, otherwise we'll have an ethics violation. (Laughter.)
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REP. STUPAK: Thank you. And the Federal Register, which had those classifications, we made a part of the record earlier, because there was some confusion on different classes, so thank you.
I said in my opening, though, that one of the things I try to do as chairman and members of this committee -- you know, we have companies, government agencies and other individuals come before the committee, we expect them to follow through on promises they make. And we'll do the follow-up and we'll bring them back if we have to.
So let me start, Mr. Raymond, with a matter last year, in November. At our hearing last November, Mr. Engeljohn, who's here today, testified about approving carbon monoxide packaging, and we pointed out that the studies, the microbials submitted as part of the approval process, were flawed.
And we were told that -- Mr. Engeljohn said he would re-examine FSIS approval and get back with us, because there was a denial and it wasn't -- whether it was true the carbon monoxide or not, the microbials were going down and the studies were flawed. We acknowledged that on the record.
So whatever happened? How come you haven't gotten back with us? Have you reviewed that study that we brought up in November?
DR. RAYMOND: I don't know why we didn't get back to you, but I commit to you and promise to you that we will very shortly. I know we have re-looked at all the data between that testimony and today, and we have found continuing evidence that the microbials do go down in number in time in products treated with the MAP program. We will get that --
REP. STUPAK: But it showed the same thing without the MAP program too, so that was the flaw we were showing up. But anyways, when will you get back to us? Give me a date. When can you get back to us on this?
DR. RAYMOND: Two weeks.
REP. STUPAK: Two weeks. Okay, we're going to hold you to that.
In early February, you mentioned Westland/Hallmark. How did you learn about this, Westland/Hallmark? Were you notified by the Humane Society? How did USDA learn of this?
DR. RAYMOND: The Washington Post informed us, sir --
REP. STUPAK: Okay.
DR. RAYMOND: -- that they had the videotapes.
REP. STUPAK: Okay. And did you see the videotapes?
DR. RAYMOND: Yes.
REP. STUPAK: Have you seen -- have all the videotapes been turned over to you, to USDA?
DR. RAYMOND: I don't know that all videotapes that they have in their possession have been turned over. I cannot say that.
REP. STUPAK: Okay. Were you here today when we showed the earlier videotapes?
DR. RAYMOND: Yes, I was, sir.
REP. STUPAK: You've seen those prior to today's hearing?
DR. RAYMOND: Yes, I have.
REP. STUPAK: They've been on the public -- in the public domain for some time, right?
DR. RAYMOND: I know the first one has. I'll be honest with you, I've not seen the second one in the public domain. That's not to say that it's not. I don't mean to be --
REP. STUPAK: Yeah, sure.
Did USDA find that Westland/Hallmark illegally slaughtered downed cattle? Have you made that finding?
DR. RAYMOND: If I might, I would also like to clarify the definition of downer. A downer cow is a cow that when it presents for ante mortem inspection cannot rise on its own and ambulate. That technically is a downer cow. Cattle that have been inspected by the veterinarian, both at rest and in ambulation, in movement, and clear to be fit for the food supply may, for whatever reason, not be able to get up later.
And as you heard earlier, if the veterinarian inspects that animal and can determine that it's due to an acute (injury ?) -- (inaudible) -- in the food supply.
REP. STUPAK: Correct.
DR. RAYMOND: That's not what we would call a downer. We would call that a non-ambulatory.
REP. STUPAK: Okay. Then during USDA's inspection, did you find Westland/Hallmark illegally slaughtered non-ambulatory cattle?
DR. RAYMOND: Yes, we did, sir.
REP. STUPAK: And that's -- since 2004, I think the record showed earlier, I think that's been U.S. law. You cannot slaughter --
DR. RAYMOND: January 2004 an interim rule was --
REP. STUPAK: Okay. Then let me ask you this: You saw the videos today; were any of the cattle that we saw, or cows in the video today, were they slaughtered illegally based on the videos you saw today?
DR. RAYMOND: They were slaughtered in noncompliance with our regulations. Yes, sir.
REP. STUPAK: Okay. At our previous hearing we heard testimony that the USDA veterinarian who conducted the ante mortem inspections at Westland/Hallmark only inspected cattle twice a day, 6:30 a.m. and 12:30 p.m. In fact it was on the first video we saw today. Further, he performed these inspections same time every day, according to the videos. What was that inspector doing the rest of the day?
DR. RAYMOND: First of all, the fact that the statement that he inspected the animals only at 6:30 and 12:30 comes from the Humane Society. We are doing our own investigation to determine the accuracy of that statement. Our inspectors, public health veterinarians and other offline inspectors are instructed to go out into the pen area periodically during the day at different times unannounced to observe handling.
But to answer your question, the public health veterinarian in this particular plant also has other duties that are offline that take him into the plant, not the least of which is examining all of the carcasses post mortem. And it wasn't mentioned this morning, but about 20 carcasses per day in that plant are condemned post mortem, because he sees things once the height is off that would pull that animal out.
REP. STUPAK: Okay.
DR. RAYMOND: So that's one of the very important things that he does, plus other -- the HACCP procedures, the SSOP procedures.
REP. STUPAK: How many inspectors did you have at Westland/Hallmark?
DR. RAYMOND: Five, sir.
REP. STUPAK: And have some of them been disciplined as a result of your investigation at Westland/Hallmark?
DR. RAYMOND: I cannot talk about personnel issues at this particular point in the investigation.
REP. STUPAK: Okay. The question was, were they disciplined? Yes or no?
DR. RAYMOND: I can't discuss personnel issues at this point in time in the investigation.
REP. STUPAK: According to the newspapers, three of them were disciplined. Any reason to say the newspaper was wrong?
DR. RAYMOND: I really can't discuss personnel issues.
REP. STUPAK: All right. What type of surveillance was there in the cattle pens when the inspector was not there? I mean, do we have any -- if an inspector isn't there, is there any USDA inspection going on in these cattle pens?
DR. RAYMOND: Not on a continual basis, no.
REP. STUPAK: Okay. You mentioned you were a public -- professional public health officer. Dr. -- I'm sorry, I keep calling him doctor -- Professor Olson mentioned that this -- before FDA; I know it's an FDA question -- but for nine years they've had this petition going, since 1999, on irradiation. As a professional health public official, wouldn't you want to see that petition acted upon, and irradiation, should it take nine years?
DR. RAYMOND: I would --
REP. STUPAK: (Inaudible) -- because the beef are USDA also.
DR. RAYMOND: Right.
REP. STUPAK: So --
DR. RAYMOND: I find a lot of things about the federal government, as a public health official, to be slow. And sometimes that's good because everybody gets a chance to have a voice and explain their thoughts and so forth. But I do find it problematically slow, as a public health official, including at the USDA.
REP. STUPAK: Right. And now you're part of the government, so --
DR. RAYMOND: Yes.
REP. STUPAK: -- couldn't you expedite and try to get that process moving forward instead of eight or nine years?
DR. RAYMOND: Yes, sir.
REP. STUPAK: Because I think, as the professor said, if it wasn't for public health officials we probably wouldn't have had pasteurization and other advances in science technology.
It's been reported that -- this is going into a personnel issue again, but let me try it -- the supervising veterinarian at Westland/Hallmark had worked on site for 20 years. It's also been reported that in the 1990s Hallmark faced scrutiny for the way it handled downer cattle. Further, in 2005, as testimony showed today, USDA cited the company for noncompliance for being overly aggressive in using electric prods to move cattle. If a veterinarian was present during these times, why wasn't he putting forth these complaints or being more diligent to make sure that downer cows or cattle were not being mistreated or illegally slaughtered?
DR. RAYMOND: If our veterinarian had seen any of these actions, that plant would've been -- the inspection would've been suspended and that plant -- as we did in 12 plants last year when our public health veterinarians or other inspectors did see egregious, inhumane handling -- we do take it serious and we did shut 12 plants last year because of it.
REP. STUPAK: Okay.
DR. RAYMOND: He evidently did not see it in this plant, but that -- again, that is part of the investigation.
REP. STUPAK: Well, I mentioned he's been there for 20 years. So, Dr. Raymond, USDA inspectors are often assigned to facilities for years on end. Do you believe that this practice can compromise their role as a regulator? In other words, does their loyalty shift from the government to the company they're supposed to regulate?
DR. RAYMOND: I understand your question and I would certainly hope that would not, because the levels of supervision that they have -- I mean, they're not out there all by themselves. They have supervisors that overlook their work. The in-plant inspector in charge is overlooking the line inspector. We have the district managers, deputy district managers all the way to the assistant administrator for the office of field ops.
REP. STUPAK: Let me ask you this -- and I'll turn it over to my friend Mr. Shimkus for questions -- there's been an alarming jump in the number of recalls and illness associated with E. coli-contaminated meat. In 2007 alone, there were 21 recalls of meat products due to being tainted with this deadly pathogen. These recalls affect about 33 million pounds of meat. And then you look back one year to 2006, with E. coli contamination we had eight recalls and just over 155,000. Why the dramatic increase?
DR. RAYMOND: I think that that's a multipart answer, sir. And it does concern me greatly and that's why we have announced several new E. coli initiatives, including several meetings with other experts, scientists, industry, consumers, et cetera.
But to try to answer your question, there are several factors: one, we have a more sensitive test done when we test for E. coli. Half of those 21 recalls were due to products tested positive that we tested and we have more sensitive tests now. I think you're going to continue to see that part of recalls increase as this test gets more widely used, number one.
Number two, we changed the way we do recalls last year. I was unhappy with some of the -- I don't know what you're going to call them -- policies that FSA has had in place, that they did not do recalls until certain things all lined up. And I said that's too long. That's -- as a public health official I can't wait that long. We're going to do them quicker. And so we did some recalls last year that would not have happened the year before.
I think we do a better job of linking seemingly unrelated illnesses together because of PulseNet, which I referenced very briefly in my opening comment. That is a -- that is a technique that allows us to take a case of E. coli food-borne illness in Minnesota and link it to one in Michigan and hopefully find the product, we do the recall. We couldn't have done that 10 years ago. That didn't all happen last year. I'll agree. I mean, I'm not saying that's why -- all last year. But we do a better job there.
I do believe the health profession is doing much more testing than it used to be when people do have signs and symptoms of food- borne illnesses. We worked hard with them for three years, telling them the more tests you do, the better attribution we can get. The better attribution we have, the better we can find where the solutions are to fix this problem. But a lot of physicians and other health care professionals are reluctant to order a stool culture for the cost if the patient didn't look that ill.
So we're seeing twice as many tests being done as we did just a couple years ago. And, quite frankly, the patients are more concerned about this. It's the victims -- the people that get the GI symptoms are thinking food-borne illnesses because of all the publicity. And they run to the health care provider more quickly and they get attention more quickly. So I think the numbers are up because of those reasons.
All that said, the product testing went up last year. Pure and simple, it went up last year. I believe personally -- and I have no science to back this up, I'll tell you right now; this is Raymond's theory -- that the E. coli load on the cattle has gone up. And I believe the interventions that we have in place in the plants are now being overwhelmed by a higher number of contaminants of E. coli on the heights and ultimately on the carcasses and the intestines of these animals. We need to get that number down or find better in-plant interventions or use irradiation, as you've already heard.
I don't believe the industry got sloppy and I sure don't believe our inspectors fell asleep at the switch. I do believe the load became higher because of changes in the feed, changes in the environment, maybe changes in the bug itself. Maybe it has developed a resistance to some of the lactic acid washes, for instance, that we use; same as staphylococcus has developed a resistance to penicillin. The bugs do do that.
REP. STUPAK: Okay. That was Raymond's theory. Answer me this one, Stupak's theory: What happened here with West -- Hallmark here? What happened? You call them up, you get four to five hours, the testimony was, and they agreed to the recall even though you had a 10- day period. And they asked for the video that you say that USDA had. And according to Mr. Mendell he never saw that video. What convinced Hallmark to do the 140 million-pound recall based on a phone call? What else did the FDA -- USDA had that would -- a company where this gentleman spent his whole life building up basically go down based on a phone call? What else is there? How are you that convincing? What are we missing?
DR. RAYMOND: There are no smoking guns, if that's what you're after. We obviously interviewed many employees and also not just employees at the plant and our employees but also the truck drivers that hauled the cattle there, the buyers that bought the cattle. We threw out a wide net and interviewed a lot of people and we found evidence of this -- allowing a plant -- an animal that became acutely non-disabled to go into the food supply without being inspected by a public health veterinarian was not an isolated incident. It was not a common incident. But it happened enough that we knew we had a problem.
We told the gentleman that. We did not show him the film that day. We had to look at it because of the investigation, but he didn't ask a second time. But I want to clear up the 10-day thing also. We didn't say, "Do it in 10 days or it'll be worse." What we said was, "You can do a voluntary recall now or tomorrow" --
REP. STUPAK: Right.
DR. RAYMOND: -- "tomorrow we will detain the product and in 10 days we'll begin the process to detain it." But we would've gone into action the next day.
REP. STUPAK: So it was based upon your investigation that it was more than just the two cows we pointed out today but --
DR. RAYMOND: Yes.
REP. STUPAK: Okay. Thank you.
Mr. Shimkus. Sorry I went over my time.
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REP. STUPAK: Thank you, Mr. Whitfield.
Mr. Raymond, if I may, in earlier testimony -- or I should say the hearing we had two weeks ago, they talked about the downer cow loophole. Some people feel -- Humane Society and others feel that once it's a downer cow it should not go into the food supply at all, even if inspected by a veterinarian. Your comment on that?
DR. RAYMOND: I believe that an animal that has passed inspection, has been seen to ambulate in motion, does not appear to have any chronic health problems that then falls and breaks its leg, there's no reason that that presents a threat to the food supply of this country. And I believe they should be allowed to enter into the food supply.
We've had this rule, as you mentioned yourself, since January of 2004. That's four years. This company violated the rule. I do not believe we should change a rule that would affect 800 companies because one company violated the rule.
REP. STUPAK: Okay. Well, I think I speak for all parents of school-age children and seniors and the elderly when I say that in light of the videos we saw today and Mr. Mendell's admissions today, I guess we feel safer knowing that meat -- the meat has been recalled. And there is some testimony -- or comments were made that mad cow disease -- that won't surface or -- the incubation period could be as high as 13 years. Is that right?
DR. RAYMOND: That's correct.
REP. STUPAK: So we may not know the outcome of all this for some time. We could have --
DR. RAYMOND: There is that remote possibility which defines a Class 2 --
REP. STUPAK: And if something -- let's say something surfaced 12 years from now, we wouldn't know if it was from Hallmark or wherever it came from, right, if someone came down with mad cow disease?
DR. RAYMOND: Let me remind you that no one in this country has ever come down with a variant CJ disease from eating cattle that came from this country. We've only had two cows test positive in the herd out of 759,000. It's extremely rare. Those cows were both born before the feed ban went in effect, which went in effect over 10 years ago. These cows were four to seven years of age. That's when a dairy cow quits producing milk -- (inaudible) --
REP. SHIMKUS: Chairman, in follow up, can we ask, when was that?
REP. STUPAK: Yeah.
REP. SHIMKUS: What year?
REP. STUPAK: What year was that?
DR. RAYMOND: What -- what year --
REP. STUPAK: Two confirmed cases.
DR. RAYMOND: The two confirmed cases have come since the cow went down in December 2003. I don't know the exact dates, but it's been since December 2003, actually since June of 2004, when APHIS began their enhanced surveillance.
REP. STUPAK: Well, we just had one in Canada -- two actually, on the day of the hearing, right?
DR. RAYMOND: I'm just talking the American herd right now.
REP. STUPAK: Pardon?
DR. RAYMOND: I'm just talking the American herd --
REP. STUPAK: Okay.
DR. RAYMOND: -- right now. The American herd has not had any cattle found that have BSE that were born after the feed ban went into effect.
REP. SHIMKUS: Mr. Chairman, can I follow --
REP. STUPAK: Sure.
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REP. STUPAK: Let me go back -- that's okay -- let me go back, Mr. Raymond. Would the USDA have discovered this problem without the Humane Society's sting operation?
DR. RAYMOND: I would like to say yes, but obviously it was going on and we had not, so I don't know.
REP. STUPAK: Prior to this, being notified or receiving these videos or notification of the sting operation by -- I think you said Washington Post, had USDA been investigating this plant for downer animals?
DR. RAYMOND: The --
REP. STUPAK: You said there were rumors and this video just verified what you had --
DR. RAYMOND: No, no. After we became aware of the video, one of the things we had to do was confirm that this action actually took place at this plant. We had to make sure that it was non -- inhumane handling at this plant before we took action, which we did on the Monday morning, the 4th. At the same time, we're interviewing -- because we feel if this happened -- if this plant had that kind of wanton disregard for our federal statutes, then how did we know they had the same -- placed the same emphasis -- SRM removals, for instance, which would be most important, or the downer rule.
So we began a very thorough investigation of this particular plant and we had interviews that indicated that this process of allowing an animal that became disabled to go to slaughter had been going on for two years. The video gave us irrefutable evidence. And that's when we did the recall.
REP. STUPAK: Okay. Thank you.
Mr. Sundlof -- Dr. Sundlof, don't want to leave you out. In your opinion, does the proposed 2009 budget for FDA provide adequate resources for the Center for Science and Applied Nutrition to protect the nation's food supply?
DR. SUNDLOF: Well, let me just say, Mr. Chairman, that we look at it as more or less a down payment. We have said last fall that we are starting on a new approach to food safety and that is really focusing on the prevention side, looking at our import programs and starting to ramp up to a different way of approaching food safety.
We receive somewhere on the order of $42 million in addition to our fiscal year '08 budget. In '09 that's what the president has requested. This is going to go to trying to get those programs to the state where we need to start to really build the programs after that.
REP. STUPAK: So it's a down payment, so it doesn't adequately address the financial needs we have for food safety?
DR. SUNDLOF: We have a lot to do under the new food safety protection -- or Food Protection Plan and the Import Safety Action Plan. And we haven't even begun to put pen to paper to determine what that budget is going to look like.
REP. STUPAK: Okay. Under the 1997 FDA Modernization Act, Congress required the FDA to implement and expedite its status for food safety petitions. In 1999 the agency stated that the top priority would be given to petitions designed to decrease the risk of food-borne illness. Is that correct?
DR. SUNDLOF: I believe that's correct, yeah.
REP. STUPAK: Okay. FDA has approved irradiation for reducing pathogens in meat and poultry and for insect control and shelf-life extension of fruits and vegetables. However, the FDA does not allow irradiation to be used for pathogen reduction in fruits and vegetables. In 1999 a petition to allow irradiation for path reduction in fruits and vegetables and other ready-to-eat foods was submitted to FDA. Eight or nine -- well, almost nine years later now, the petition is still pending. Why hasn't the FDA acted on that petition on irradiation?
DR. SUNDLOF: My understanding, Mr. Chairman, is that the original petition, the 1999 petition, involved virtually all foods. As we started -- and we took the approach that we were going to evaluate that petition and look at all foods under that petition. During the process of reviewing the information we did find that in certain foods the process of irradiation did result in the production of furans, which are cancer-causing chemicals.
So the -- what the approach is now is that we are looking at specific types of foods under that petition. Our first one -- the one of highest importance right now is leafy green vegetables. And we are working -- it is our number one priority to get that out there -- (inaudible) --
REP. STUPAK: When will that be done on leafy green vegetables? Can you give us a commitment it's going to be done here in the next few months?
DR. SUNDLOF: Well, I can tell you that we will complete the -- our review -- the center will complete its review within the next several -- I can't tell you exactly how many months, but certainly this fiscal year. Where it goes -- we'll try and do much better than that.
REP. STUPAK: Well, this fiscal year is until September 30th. You've had it for nine years.
DR. SUNDLOF: Yeah. On the leafy green -- we're talking here just about the --
REP. STUPAK: Right, leafy.
DR. SUNDLOF: Right.
REP. STUPAK: Yeah, leafy was there in 1999. It's still there.
DR. SUNDLOF: Right.
REP. STUPAK: If that's a priority --
DR. SUNDLOF: That's --
REP. STUPAK: What about the suggestion that you put an irradiation plant by Salinas Valley that you've had 21 outbreaks in 10 years? Why aren't you -- would that help solve this problem? Why couldn't we put an irradiation plant to get that leafy vegetables and the spinach crop that we seem to have an outbreak every six months -- why won't we do that?
DR. SUNDLOF: Well, we don't -- I mean, that would be up to the industry if they wanted to do that. But first, obviously they need --
REP. STUPAK: Well, you won't even --
DR. SUNDLOF: -- FDA's approval.
REP. STUPAK: FDA won't even do an "epide" -- easy for you to say -- epidemiology study to try to figure out the source. Every time we come, some thinks it's the water, some thinks it's the cows around there.
DR. SUNDLOF: Yeah, they're --
REP. STUPAK: I mean, after -- that's our salad bowl, as you guys all refer to it. After 21 outbreaks you'd think you'd be a little more aggressive in trying to figure this out and solve the problem.
DR. SUNDLOF: Actually we -- Mr. Chairman, we are doing that. We've been working with the state of California, with the academic community in California and with the industry to try and better understand how E. coli is transferring from the environment into the spinach and other leafy greens.
We're also looking at GIS systems, so we're looking at the topography using satellite imaging to determine where the outbreaks have occurred in the past so that we can have a better idea -- a better epidemiological approach to understanding what are the conditions that led to this contamination and -- so we can prevent it in the future.
REP. STUPAK: Okay. In -- let's go back to irradiation of food. It's used in over 30 countries. It's endorsed by the World Health Organization, CDC, Codex; even the FDA has stated that irradiation is safe and effective in decreasing or eliminating harmful bacteria. Did FDA in its nine years -- or eight years they've had this petition find any science to justify these delays?
DR. SUNDLOF: Again, the finding that irradiation does produce this cancer-causing substance, furan in some foods, is one of the things that has prevented us from moving forward. And I don't believe that information was available to those international organizations when they did make their decision.
REP. STUPAK: Are there furans in leafy greens?
DR. SUNDLOF: My information that I have indicates that irradiation of leafy greens at the rate that they would normally be irradiated would -- would create minimal furan. So it would be very, very small.
REP. STUPAK: So there'd be no health risk.
DR. SUNDLOF: So that's the -- where we're -- that's the direction we're proceeding, yes.
REP. STUPAK: Well, if there's no health risk, then why not approve the petition?
DR. SUNDLOF: I -- again, Mr. Chairman, we are working on it. There's a lot of administrative hurdles that we have to cross, but --
REP. STUPAK: Yeah, nine years' worth.
DR. SUNDLOF: I -- right.
REP. STUPAK: Okay. In light of the -- let me ask you this one: Canada and Japan have repeatedly found that seafood exports from Vietnam have tested positive for banned antibiotics. We've been told that every major importing country has found repeated shipments of Vietnamese shrimp tainted with banned antibiotics. It came up at our last hearing two weeks ago. We're also told that the FDA has known about the problem since at least 2003 but has yet to issue an import alert regarding Vietnamese shrimp imports. Is shrimp from Vietnam a problem? If so, why don't we have a Vietnamese shrimp import alert?
DR. SUNDLOF: Mr. Chairman, we do analyze shrimp coming from Vietnam and other Asian countries. It has not -- we -- I think we have taken action in the past on Vietnamese fish, especially catfish, I know. I'm not sure about the shrimp at this point, but --
REP. STUPAK: Will you get back with us on that?
DR. SUNDLOF: I can certainly get back with you on that.
REP. STUPAK: I mean, last testimonies -- we've got Pakistani shrimp that's rejected in Europe, it comes here. They don't export anything here, but in the last couple months they've done 165,000 pounds and it's got fungi and bacteria and that's why it's rejected in the EU. But we seem to have it here. And the same with Vietnamese shrimp. Soon as it gets pushed out of another country, it seems to be dumped here because we're not checking for it. And there's no import alert around it, even though we know the problem's existed since 2003.
DR. SUNDLOF: Yeah. I do know that we have been testing imported shrimp and other seafood products from a variety of countries. And we have not seen an increase in the residues of those drugs. There hasn't been -- you know, over the years there has not been a spike. We don't see that, so the --
REP. STUPAK: But the bacteria found there is a health concern, is it not?
DR. SUNDLOF: Bacteria?
REP. STUPAK: Yes.
DR. SUNDLOF: Well, bacteria certainly is, yes. Well, you're --
REP. STUPAK: Let me ask you this, during the last hearing February 26th, a witness testified that in June 2006, former Director of the Center for Food Safety and Applied Nutrition Dr. Robert Brackett stated that the FDA did not consider pesticide residues in food a serious manner and -- matter and it would no longer monitor them. As the new director of the Center for Food Safety and Applied Nutrition, do you believe pesticide residue in food is a serious problem, and will the FDA monitor them under your direction?
DR. SUNDLOF: Well, they certainly will monitor them. And we look at pesticide residues in light of all of the things that we consider to be risk associated with foods. And we try and prioritize. We normally analyze in the -- between 4,000 and 6,000 imported and domestic products per year for pesticides. So it's not like we're not doing it. We're doing about -- between 4(,000) and 6,000 pesticide analyses per year.
REP. STUPAK: So which ones are most harmful of the analysis you've been doing? Which ones should the American people be on the lookout for in the pesticides in the amounts that are of concern?
DR. SUNDLOF: Well, 90 -- let me just say that 93 percent of the -- of the pesticides that we're finding are not -- because they are -- we don't know if they represent a safety hazard. We think they probably are minimal. We don't have tolerances for them in the United States, so any amount that we find would be a violation of our laws. And that's 93 percent of them.
So it's difficult to say which are the most important from the hazardous point of view, but we do -- when we do a screen, we screen for over 300 different pesticides. And any one of those that is determined to be violative, we can take action. We have import alerts on, for instance, the Dominican Republic produce right now because of pesticides.
REP. STUPAK: Let me ask you this, at our last hearing, February 26th, the CEO of a private lab that tests food under the import alert told us, the committee -- told the committee that we -- and we already learned this from testimony last summer -- that labs -- private labs will discard bad results at the request of the importer. Then the same private lab will keep testing a product until a positive result is obtained or the importer will hire another lab to test a product until a positive result is obtained. You were advised by our staff to review this testimony, were you not?
DR. SUNDLOF: I don't know.
REP. STUPAK: Okay. Did you ever review that testimony?
DR. SUNDLOF: I don't know if we did or not.
REP. STUPAK: Do you realize that's a problem, that after you put an import alert, they go to the lab that will give them the results they want and then it comes in?
DR. SUNDLOF: I do recognize that -- I do recognize that that's an issue and we can get back to you on that, Mr. Chairman.
REP. STUPAK: Okay. We have legislation moving on food safety. We're going to make that a requirement. Don't you think all lab tests, if there's an import alert -- if I'm a private lab I test whether it's a positive test or a negative test -- you should have access to it? You should have --
DR. SUNDLOF: We would like to have access to that.
REP. STUPAK: So you'd like to have that authority, then?
DR. SUNDLOF: We would like to have the information, whether it requires legislation or not.
REP. STUPAK: Well --
DR. SUNDLOF: It would be nice if we had the information from --
REP. STUPAK: Having the information is one thing. Doing something about it is another thing. I mean, just giving you the information isn't going to do anything. If you get a negative test, you can't lift the import alert, right?
DR. SUNDLOF: If we get a negative -- the way the import alert works is that if a company provides us with documented evidence that they no longer have --
REP. STUPAK: Have the problem.
DR. SUNDLOF: -- then they can --
REP. STUPAK: But you don't know how many tests they take before they get one that shows that or which batch they're taking it from, correct?
DR. SUNDLOF: That I don't know.
REP. STUPAK: Wouldn't it be like in drugs -- wouldn't it be better to get all the tests so you can make a determination whether or not this batch of food is -- or shrimp from Vietnam is actually safe for human consumption, not just the ones that the private labs want to give you?
DR. SUNDLOF: We would like to have as much information as we can get.
REP. STUPAK: Thank you.
Mr. Shimkus has some questions.
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REP. STUPAK: But there was no reason why Mr. Mendell couldn't go online like the rest of America and viewed it online, right?
DR. RAYMOND: No.
REP. STUPAK: I guess not. You know, a lot of us are glad you did the recall. I mean, it was a clear violation. We don't want downer cows in our food supply, so -- I think the FDA -- USDA acted appropriate.
Let me ask you this, though, because I just want to -- just a couple quick questions, if I may, because I want to go back to carbon monoxide, Dr. Raymond.
DR. RAYMOND: Sure.
REP. STUPAK: Target sent a formal letter to USDA asking to approve a label to alert consumers that packaging certain meat products that they would sell -- Target would sell are packaged in atmosphere containing carbon monoxide. USDA did not approve this label, thereby essentially forbidding Target from selling -- from telling the truth about its products to consumers. Is that true?
DR. RAYMOND: I would -- for the record I would like to read the letter -- a portion of the letter they sent to us.
REP. STUPAK: And then can you provide it for the committee after you read that part?
DR. RAYMOND: Absolutely.
REP. STUPAK: Okay.
DR. RAYMOND: Quote, "Target requests direction as to how best to submit information required in 9CFR317.4 for the sketch labeling and for the FSIS form application for approval of labels, marking and devices." In the letter they asked us for direction twice. They start out the letter and the first sentence says, "We are sending you this letter to request direction from FSIS." They didn't send us a label.
REP. STUPAK: Oh, I see.
DR. RAYMOND: And we provided a response to them for the direction and we have not heard back from them.
REP. STUPAK: Could Target, without USDA approval, put on their meat packaging that the meat was "Packaged using carbon monoxide. Color is not an accurate indicator of freshness. Refer to use on or freeze by date"? Could they do that or do they need your approval to say this meat was packaged using carbon monoxide?
DR. RAYMOND: All labels need our approval.
REP. STUPAK: Okay.
Kyle, put up that sign, the one we showed earlier.
Were you here when we showed you that sign earlier? I think there might be a copy right there on the desk. It's leading -- see, right in front of you, Dr. Raymond, as you direct yourself toward the dais here? I think it's right there.
It says our -- could -- in the meat area, where Target sells their meat, could they put in there "Our fresh meat and seafood sets standards," and basically it says "We do not use carbon monoxide"? Can they do that, just put a sign up?
DR. RAYMOND: As long as it's truthful and not misleading, they can.
REP. STUPAK: Yeah. They don't need your permission to put a little sign up?
DR. RAYMOND: As long as it's truthful and not misleading, they don't --
REP. STUPAK: But if they put it on the label of that meat right there, then they have to have your approval?
DR. RAYMOND: That label has met our approval, yes, sir.
REP. STUPAK: Right, right. Okay. So would you approve a label, then, which would say "This meat is packaged using carbon monoxide. Color is not an accurate indicator of freshness. Refer to use or freeze by date"? Would you have -- USDA have a problem with that?
DR. RAYMOND: I'm not going to answer that today for you, sir, because I'd want to see the whole label and we're making and assumption here. And I'd be glad to have our labeling team take a look at that request and get them an answer as quickly as we can.
REP. STUPAK: Well, what I just read you is already used. Basically I think you've already approved -- USDA has used -- has approved "Color is not an accurate indicator of freshness. Refer to use or freeze by date." That's been approved by USDA.
DR. RAYMOND: That language evidently has.
REP. STUPAK: Right.
DR. RAYMOND: If you're reading it, then I'm sure it has. But if I might --
REP. STUPAK: Sure.
DR. RAYMOND: -- it could be in little teeny, tiny letters.
REP. STUPAK: No, I agree.
DR. RAYMOND: I mean, that's what --
REP. STUPAK: It's the size and things like that.
DR. RAYMOND: -- that's why we have to see the whole label to see how it --
REP. STUPAK: So it -- so you're rejection is just -- they're asking for guidance. You're saying basically show us what you want to put on your label?
DR. RAYMOND: Exactly.
REP. STUPAK: Okay. So due diligence sort of fell apart not on USDA part but on Target's part; fair to say?
DR. RAYMOND: We responded to them in January and have not heard back from them since.
REP. STUPAK: Okay. And get us a copy of that letter there that you read from -- back to Target and we'll make a copy of it.
DR. RAYMOND: Yeah.
REP. STUPAK: We -- okay, they just informed me they have a copy of it.
DR. RAYMOND: Okay.
REP. STUPAK: Mr. Shimkus, any further --
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