How the USDA’s Proposed Salmonella Framework Affects Poultry Processors
In this week's episode, James meets with Alexia of the Farm-to-Consumer Legal Defense Fund to discuss the proposed Salmonella framework from the USDA FSIS. Learn how this may affect your local poultry processor.
Make a comment by January 17th, 2025: https://www.regulations.gov/docket/FSIS-2023-0028
Learn more about the proposal: https://www.farmtoconsumer.org/actionalerts/
More Farm resources: https://www.barn2door.com/resources
Read the blog:
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Hello and welcome to the Independent Farmer Podcast, the go to podcast for do it yourself farmers who are taking control of their own business, skipping the middleman and selling direct to local consumer and wholesale buyers. This podcast is hosted by Barn2Door, the number one business tool for independent farmers to manage their business, promote their brand and sell online and in person.
Let's dive in to today's Independent Farmer Podcast.
James Maiocco: Welcome to the Independent Farmer Podcast. I'm James, the COO at Barn2Door and your host for today's episode. As many of our listeners may be aware, Barn2Door offers an all in one business solution for independent farmers who are cutting out the middleman and taking control of their business, selling under their brand and making sure their customers can [00:01:00] purchase online and in person directly from their farm.
In today's conversation, we're going to get into the USDA's proposed Salmonella framework for raw poultry products. Today, I'm happy to welcome back Alexia Kulwiec. She's the Executive Director of the Farm to Consumer Legal Defense Fund, and Alexia helps farms all across the country understand the legal framework across various operations, and now leads our Farm Legal Academy at Barn2Door.
I'm excited to dig into this topic further with Alexia about the USDA's new proposed salmonella framework and how it may affect you as an independent farmer and specifically those raising pasture poultry. Welcome back, Alexia. It's great to see you.
Alexia Kulwiec: Yeah, great to see you. Thank you so much for having me.
James Maiocco: Well, I got to tell you, you know, when this topic was brought to my attention, I was super keen on getting you on the podcast because this is a, this is a big issue that's going to affect a lot of farms. But before we get into this issue, can you tell for our listeners a little bit more about the Farm to Consumer Legal Defense Fund?
Alexia Kulwiec: Of course, I'd love to. Yeah, so Farm to Consumer Legal Defense Fund is a non profit member based [00:02:00] organization. So we encourage farms to join, at farmtoconsumer.org. And, we provide legal services, so direct legal consultation on a regular basis. We will do some agency defense work when farms have been accused of a notice of violation or that kind of thing, and we do some litigation as well, but essentially helping farms and producers, food producers, through the food regulatory process, which very often is very complicated.
Even for a very small independent producer.
James Maiocco: I can't say enough good things being a lawyer myself. I know how valuable it is to get good legal counsel. And the fact you guys have people who can represent farmers in all 50 states, right? And I think the membership, what's the annual membership cost for Farm to Consumer Legal Defense Fund?
Alexia Kulwiec: $125 a year. Sorry to cut you off there, James. Yeah.
James Maiocco: That's okay. So it's $125 a year flat fee. to be able to get, you know, pick up the phone, have a conversation with a lawyer who's going to give you real legal advice.
Alexia Kulwiec: Right.
James Maiocco: That's amazing. Thank you so much for all your work, and especially if the [00:03:00] benefactors are helping underwrite, subsidize the needs for small farmers.
Well, let's dive into our topic today, Salmonella. Specifically, before we dive into the proposed rules, let's talk about Salmonella generally. Like, what is Salmonella, number one? And why is the USDA Food Safety and Inspection Services, why do they even care about Salmonella? Because my understanding, this is pretty naturally occurring bacteria.
Is that correct?
Alexia Kulwiec: Yeah, I mean, I would say Salmonella is a bacteria and that, what I have learned is that there's a number of different serotypes or strains Salmonella, and that in fact, salmonella can cause illness.
I think the idea of USDA FSIS would be to decrease the prevalence of salmonella in a food product, and you will reduce human illness. One interesting thing I really found with this framework is though, that FSIS has admitted that in the last several years it has decreased the prevalence of [00:04:00] salmonella in poultry specifically, which has not changed the statistics on human illness. So, it's sort of like a solution to the wrong problem thing going on.
James Maiocco: Well, let me understand this a little bit more, right? Because Salmonella occurs naturally. Everybody knows you need to cook your chicken properly. And, you know, I was like, I've had a chicken, I'll never forget it, that wasn't properly cooked, rotisserie chicken. I knew it the second I ate it, but I still ate it anyways. And I remember getting food poisoning and vomiting and not feeling real well. But you know, a couple of days later, I was fine. Right? You know, I survived, you know, granted, I wasn't a person who had a particular illness or may have been highly susceptible that may have been more likely to, you know, have more adverse reactions, what have you. But isn't it common knowledge that you have to cook chicken well? And doesn't cooking chicken properly, doesn't it just kill this bacteria anyhow that occurs naturally?
Alexia Kulwiec: It does. And I've seen in some of the comments that have already been made to this framework that [00:05:00] cooking poultry thoroughly kills off any dangerous bacteria and that the USDA for at least the last 10 years and probably more, but I can't speak to it, has been advising the public to cook to cook chicken thoroughly to avoid any kind of illness.
So, my answer would be yes that if you cook it properly then that it should not be a problem.
James Maiocco: Okay. Well, let's dive back into the rulemaking process, right? Because I know regulatory agencies can be highly political, and I'm just kind of curious how this proposed rule from the USDA came to be.
I'm just kind of curious. I know we're seeing all kinds of 11th hour political stunts and movers that are happening with this current administration change. I don't know if this is a political move, or is this something that's been on the docket for some time and you were expecting it to come down the line?
Like, when was this officially proposed and put out to the public?
Alexia Kulwiec: This has sort of been bubbling for a while. And what I learned when this, when I say [00:06:00] this, this is the current framework that we're going to be talking about. When this came out, I learned, there had been a super short, broad regulatory framework published in 2022.
It didn't have any of the details of the current proposed framework, so the agency has been working on the issue for a while. Now, you know, arguably it could still be political because, the more detailed version didn't come out until last summer. So it came out, I believe, I'm sorry, I don't know the date, but it came out in, summer of 2024.
And had a comment period initially, I think, I believe of August through October, and then they continue to extend it 1st into November, then December and now January. And so, now public comments to this are going to be to the framework are due, January 17th.
James Maiocco: Well, I understand it just, again, well, I'm a lawyer.
I'm not a regulatory lawyer like you, right? [00:07:00] And looking at these types of details, but I'm really curious about the language in this proposal because if salmonella is naturally prevalent and can be eliminated by proper cooking, right? I'm kind of curious how the USDA FSIS can assert that it's injurious.
To public health, right? Like, I mean, couldn't one argue that all kinds of things are injurious to our public health in large doses, but are acceptable in small quantities? I mean, look at all the water, air, everything we breathe and eat has something that's probably not good for us. Isn't that true?
Alexia Kulwiec: I believe that's true.
So, this is how I would set up the discussion is that federal statute under the Poultry Products Inspection Act, there is a prohibition on the sale of food or food products that is quote adulterated, right? And then there is kind of a long, and you've touched on the one thing they can use, there's kind of a long laundry list of things that would make food adulterated. And the vast majority of that list [00:08:00] are things like external materials, right? So, like, if something gets into the food that's not part of your food, you know, like....
James Maiocco: Mercery, right? No one wants to eat mercury, right?
Alexia Kulwiec: No one wants to eat mercury.
I mean, although I will say that in a lot of foods that I'm not talking now under the Poultry Products Inspection Act.
James Maiocco: But it's acceptable at a small level, right?
Alexia Kulwiec: But yeah, there's like, you know, junk in our ketchup and like rat stuff and you know, whatever. But, that's not how the Poultry Products Act works, but I'm just saying we accept that as a society, or at least our government agencies do.
And so, the statute does provide that it can prohibit, the USDA could prohibit a deleterious substance rendered injurious to health, as you've said, right? So, it's this one little uber broad phrase that the USDA is utilizing to say that it can prohibit salmonella. But, I would agree with you that, there's a number of things out there that could be injurious to health, that we [00:09:00] allow, but specifically, I mean, the framework here is that the Poultry Products Inspection Act does prohibit sale of adulterated food or food products, and that an adulteration can include, a substance that may be injurious to health.
Really overly broad, in my opinion, has not been used to go after pathogens like this in the past. It's been used, you know, for like external sort of foreign objects, so to speak, right? I knew of it, again, not poultry, but I know of a legal case where like something fell from the processing ceiling into the cans of food, right?
That kind of thing is what it's really been intended to use.
James Maiocco: Well, help me understand this too. Like, why is USDA FSIS singling out poultry products versus red meat, right? Like, from my reading on this, it only applies to poultry products, right?
Alexia Kulwiec: Well, this is under the Poultry Products Act, and it's a great question because with red meat, there is a similar concern, not with salmonella, [00:10:00] but with E. Coli. There are regulations that would allow, you can sell product that's got some E. coli in it, with the same instruction that you should be cooking, right? So, I've never understood why, there's a lot of things treated differently between poultry and meat, and I cannot really speak to why we regulate this so differently, it does not make sense to me.
But, the claim, the USDA claim is that we still have a lot of illness in the country caused by Salmonella, and they want to decrease those numbers, that they have a goal of decreasing, the prevalence of Salmonella in the country. Which, frankly, sounds all good and fine, but I do not believe that this proposed framework is the solution particularly when, you know, what we want is more healthy food from the get go as opposed to having it overly processed.
I mean, we can kill bacteria in a huge processing plant, but I'd rather go to the farm and get my bird. [00:11:00] So, you know, it's not really the right solution in my opinion.
James Maiocco: Well, that gets to my next question, which is the questions about scale, right? I mean, I get this, like if I'm going into a processing plant that's processing a million birds a month, high scale processor, they're probably bleaching the chickens, like, just putting all kinds of garbage on there that you would never want to put in your body anyways in the effort of getting rid of all bacteria and all this other kind of stuff.
Right. But if I, as an adult, you know, walk over to a neighbor or drive out to a farmer whom I know, why is it the government's business to get between me and another adult? In fact, I may even go help them process the chicken myself. Why should the government have any say in this? Is there any scale exemptions at all here?
I mean, is there any common sense, you know, limitations here in terms of allowing people to assume the risk of what they're choosing to eat?
Alexia Kulwiec: Very little. And I do want to be clear that this proposed framework [00:12:00] regulates processes, which all processing facility plants have to implement, which would include, you know, certain testing requirements and certain HACCP plans and the like, it will not interfere with the on farm poultry processor who is not operating a facility that has been licensed by the USDA or state, but is operating under the exemptions.
It won't impact them. This is impacting processing facilities, but that being said, it can include small processing facilities that farmers have chosen to create on their own premises. One of my big concerns and questions is they do not make clear in the proposal whether it will include custom facilities because custom facilities are in fact, you know, do have to meet certain Federal requirements, they just don't have an inspector onsite for each and every slaughter and processing.
So, to get back to your real question, though, [00:13:00] this proposed framework does not have scale appropriate provisions. And one of the biggest concerns with this proposal is that your smallest operations will not be able to afford all of these new requirements. Not only that, but we're basically being told, we recognize some of these requirements we're putting forth in this reg may change because we're going to continue to monitor it.
So, we may improve our infrastructure today and then find out three years from now, we need to be testing for something else. Folks just aren't going to be able to afford to continue that. And so the farms that are utilizing services of local nearby smaller facilities, may lose access to those facilities, right?
The only thing that the regulation, and I just, you know, I don't want to misspeak. It does provide some alleged support for the small processors in terms of helping them find somewhere free of charge to test their samples, but there's [00:14:00] a lot more to it than that. And, that's just not going to be enough to save these facilities.
James Maiocco: Yeah, we won't dive into all the testing parameters because there's just way too much ambiguity, right, for us to get into in the distance and trying to make sure it's ready from a perishability standpoint and everything else. But let's go back to the small farm exemption, right, because this is really important, right, because we work with a lot of farmers who have pasture poultry, and process on farm underneath the small farm exemption. Not a problem. This is not going to impact them. However, we also work with lots of producers who have scaled their business and gotten beyond the small farm exemption, and to your point, have either set up a processor on their own site that's a state or custom processor, or they work with it very closely, and maybe it could be with a co op, or directly with a custom processor in their city or county.
Those processors, to your point, it sounds like this could create some undue burdensome, you know, requirements on them and costs, potentially, [00:15:00] that could either raise their costs or, worse yet, restrict their ability to conduct business, it sounds like. Is that correct?
Alexia Kulwiec: Yeah, absolutely. I mean, and I don't think it's just a matter of cost, although there is a matter of cost.
I think that in proposing the framework, FSIS doesn't address at all that these very low volume facilities, which tend to be sort of a small rural facility, maybe on farm property, that the kind of thing you're talking about, lacking access, you know, lacking access, and we won't get into it, but to the testing, lacking the resources to build the infrastructure.
I mean, one of my biggest concerns is, the rules require the establishment to maintain an infrastructure to submit microbial samples to the FSIS electronically. So that's that. I mean, right there, you're talking about a whole set of technological changes that a small facility doesn't have right now and doesn't need.
James Maiocco: Sounds like a lab to me. Like most small processors that I've ever [00:16:00] visited, don't have on farm labs that set up to do that, digitally as well, with digital testing equipment that like you said is going to send this stuff electronically. I mean, come on, that's a huge cost. This reminds me of the electronic tagging for the ears for all the cattle.
Again, again, a whole nother burdensome cost that the USDA is trying to, again, pass on to small farmers with no small scale exemption. Well, I, I'm really curious, you know, first off, a big part of this too is that, again, the U. S. government's right to regulate things often extend under constitutional law underneath the Commerce Clause, right?
So, there's a little bit of a question like, what if, what if the birds never enter commerce, right? So, is there an avenue here for some of these small production facilities to enter into arrangements. I'm thinking like how the raw milk producers have done it, where it might be like a herd share or processing share or some sort of production share agreement where they become a part owner in this to navigate around ever necessarily having the birds ever even [00:17:00] enter into commerce, like, are people thinking about some of these creative things?
Are these yet to come waiting for the rules to land?
Alexia Kulwiec: No, I mean, I think, people have been thinking about these things and there have been some folks that have done you know, as you mentioned, we do these herd shares for dairy. I've done a couple of quote flock shares for people, where you can do this kind of thing in poultry.
I think, you know, if you are exempt from the Poultry Products Inspection Act under the 1000 or 20, 000 bird exemption, you don't really need a flock share because you don't need, you can just process one bird and sell it to someone, depending on your state law.
But, the smaller facilities, I agree with you. I have a real concern about particularly custom slaughter facilities are already required to meet federal requirements. So, even though all of that product may only be sold in state, it's being regulated by the federal government whether that's been ever really sort of tested or challenged, I'm not sure. But it is certainly a concern, so I do have a [00:18:00] concern about the overbreadth of this regulatory process. I do think we can come up with more creative ways, like sharing some kind of a flock share, like maybe even a cooperative facility, something like that. I've seen some folks get a little bit creative.
So, I'm sure that there will be some creative discussions, when this gets finalized, but, for now I have just, I've just been working with folks that want to get these public comments in and challenge this. Because certainly, one of our biggest concerns is cost and expense, these facilities may close, and then your local farms may not have access to the smaller facilities. And your consumers may not have access to the product. And even the facilities that exist, for the most part, to make sure that they don't allow for the levels of Salmonella that USDA is saying they might need chemical processes.
James Maiocco: Exactly. That's what I don't like. Because now all of a sudden they're going to, you're going to compel these small processors [00:19:00] potentially to have to start to bleach all this chicken, right? I mean, it was like, come on, like, I don't want that crap on my food. That's the last thing I want to put in my body.
And I'm really curious too, you know, again, these rules are not finalized. So I am curious, is there an avenue from your perspective for the incoming administration to potentially reverse course? Because my perception is that RFK Jr., assuming he's confirmed as the USDA lead, I don't think he would look very favorably upon these type of regulatory guidelines that would, you know, burden or hamper local food processors, including pasture poultry.
I mean, do you agree with that?
Alexia Kulwiec: Yeah, I do actually. I think that there's, you know, the agency has issued a regulation, but I certainly think that the administration can step in that oversee, you know, the presidential administration oversees the agency's, its executive branch, and they could step in and say, we don't want this regulation to be passed.
I think that that's certainly possible. Or, if it passes now that they want to reverse it and remove it. I, I certainly think that's a real [00:20:00] possibility. You know, there's one other thing, I just wanted to mention whether one other way in which this really harms the small facilities, that goes back to your talking about cooking.
So, what's interesting is the framework would deem, you know, poultry products that's got certain levels of certain salmonella strains in it to be considered adulterated and therefore it's unlawful to sell, but it's unlawful to sell as a raw poultry product. But if you're a big facility and you find the salmonella, you could cook that poultry, put it in a ready to eat, put it into some kind of product instead of selling raw poultry, and make money that way. For your small, really small facility, they're just trying to do a service usually for local farms, etc. They don't have the capacity or resources to take that product, cook it, and put it into something else. So, now we're just talking about that product being wasted and thrown away.
Which...
James Maiocco: Yes. [00:21:00]
Alexia Kulwiec: Is really problematic, right? So, um.
James Maiocco: Yeah, I can think of one farmer in particular that we have a great deal of affection, we've been working with for quite some time in Washington state, who was a small pasture poultry producer, got beyond the exemption, and they, again, built out and opened up their own processor on farm and now they service and support lots of other local farms, right?
They're never going to go do all these things, right? They're not going to go build a cooking facility. They're not going to invest in computers and microbial equipment. I mean, it's just too thin margin and God forbid they don't require them to have an on site inspector. My gosh. I mean, it's just like, it just seems again, overly burdensome.
Well, from your perspective, Alexia, I'd love to hear your thoughts. I mean, you fight the good fight every day. Again, thank you so much for all the hard work at the Farm to Consumer Legal Defense Fund. What can independent farmers who are listening to this podcast today, what can they do to ensure that their concerns are heard?
Alexia Kulwiec: Yeah, so there's a couple of things. This is a proposed framework, [00:22:00] which is interesting because usually you have a proposed regulation, but okay, it's a proposed framework that's open to public comments.
Public comments are due on January 17th. So, we are getting very close. I will be providing you the link to that so that folks can, I mean and it doesn't have to be a long comment, it doesn't have to be a scientifically burdensome comment, it could just be this appears to really harm smaller processors, and I strongly object to that, I will lose my access to small processors. It could be that simple. I'll provide that link. I think as always calling a legislator of office and letting them know that you're against this is useful. But I also think that getting these comments in right now is kind of like the thing number one that people can do.
James Maiocco: Super. Well, I really appreciate, again, your efforts and everything you guys are doing to help raise awareness about this. We certainly will try to again, shout for the bullhorn as well to try and get as many people, many farmers, not just farmers, but hopefully even buyers who [00:23:00] care about local farms and care about maintaining access to local processors.
Buyers, consumers can also submit comments. Isn't that correct too, Alexia?
Alexia Kulwiec: Absolutely. Anyone can. And from my perspectives, what consumers would care about is one, I don't want bleach or chemicals used to get rid of these substances. And two, I want my local small producer to stay open. Which means he or she, or they may need access to these small processing facilities, right?
So, it's both like wanting to support this small independent production, your local producer, someone you know and trust you can see the birds, you know, how great everything is, right? Having that ability to support your local farms from the consumer standpoint, I think is so important and it's growing in importance.
And yet what this framework would do, I fear would close a lot of these small facilities and, you know, we're back where we were in 2020 when one problem happens at a processing plant, and it's a real impact on our [00:24:00] food supply.
James Maiocco: Bingo. Yep, going to drive up cost again, and just, you know, scarcity leads to higher prices, and it's just shocking that we'd be trying to, again, put more restrictions in place instead of reducing the regulatory burden upon these small farmers and processors.
Alexia Kulwiec: And what I, what, what seems to be sort of a motivation is avoiding any presence of this pathogen at any cost, even though it increases the vulnerability of our food system that, you know, will continue to decrease the ability of local farms and communities to produce and sell their own food.
Which, this decentralization is just so key to making positive change in our food system, I think. So, yeah, that's a problem.
James Maiocco: Well, it's interesting. I just did a quick Google search to see how many people died of salmonella in 2024. All up, according to Tally, who knows whether this is correct or not, but the AI summary says about 100 people have died. Roughly 90 people, for whom information [00:25:00] available, 25 people hospitalized. So, we're talking like fractional percentages. I think probably more people died from lightning strikes last year in America than they died from a salmonella outbreak. Not to say it doesn't happen.
Alexia Kulwiec: There's some serious illness like fair, but I'll also point out, you just did a quick Google search. They say that poultry is the leading cause, but it's still like 21 percent of those cases is poultry. So, it could be, we see a lot of leafy greens. We see a lot of other, right? So there's, if you were to step back and say, and what did poultry cause?
Probably, you know, just a fraction of that. And, another thing that really gets to me with this framework, they can't separate out when poultry has the Salmonella, if it's from one of these large industrial plants, or if it's from one of our more local, smaller facilities that serve in the community.
I would hasten to guess if we had that data, it wouldn't be our small folks that are doing things [00:26:00] correctly, as opposed to having to, kill pathogens. But that's me.
James Maiocco: Well, you know, I guess, I guess every regulatory agency needs to justify their jobs, right. And find something to regulate in order to preserve their purpose in life, but it seems like a really scarce problem to be going after, particularly given the potentially huge impacts it could have across consumers all across the country by restricting supply.
So, just again, unfortunate. Hopefully we'll see a reverse of course, with the coming administration. Before we sign off, is there anything else Alexia, you would like to add before we sign off?
Alexia Kulwiec: Yeah, you know, there's so many problems with this that I guess are more detailed that I will skip, but the other thing is, there's different strains of salmonella, and the framework would even prohibit the sale of some that don't fall into the strain that they think is caused by poultry, right?
Or, that can germinate in poultry. So, from allies I have spoken with from a [00:27:00] scientific basis as well, there's a lot of problems with this framework. So, yeah, I hear what you're saying in terms of an agency trying to justify its existence, but I will just say that as a general rule, seeing this, you know, killing off all pathogens at any cost, is just supporting this horribly unhealthy industrial food system.
Which everybody, well, many people are starting to recognize as really horrible, right? So, why are we regulating in a way that's going to continue that, and exacerbate the problem, right? It's just...
James Maiocco: Great feedback. I agree with you a hundred percent, Alexia. Thank you so much for, again, all your hard work. I want to extend my thanks to Alexia for joining us on this week's podcast episode.
You can check out more from the Farm to Consumer Legal Defense Fund on their website at www.farmtoconsumer.org. You can also follow them on Instagram @FarmToConsumer. You can learn more from Alexia by sending up for the Farm Legal Academy at [00:28:00] barn2door.com/academy. We'll be having our first Farm Legal Academy in February, 2025.
Thank you so much for joining us for that, Alexia. That's going to be great.
Alexia Kulwiec: Yeah, absolutely. I look forward to it.
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If you're an independent farmer who wants to learn more, go to barn2door.com/learn-more. Thank you for tuning in for today's podcast, and we look forward to joining you next time on the Independent Farmer Podcast. Cheers.
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