by Benjamin Tschirhart
No one in prison expects to eat fine cuisine. The food served is merely intended to keep prisoners alive, with no thought given to how much it is or isn’t enjoyed. Yet certain people are seeing enormous benefits from prison food — just not prisoners.
In a report published in CovertAction Magazine on December 6, 2022, investigative reporter Lauren Smith sheds light on an old conundrum: Why is prison food so awful? As it turns out, we can blame something called the “secondary food market.” That’s where perishable food goes after its expiration date passes. According to Smith, this shadowy place is where “expired food gets reprocessed, repackaged, relabeled, and resold” by “food liquidators” to institutional bulk buyers — schools, hospitals, even prisons.
There are “scant regulations” in this market, Smith says, and “purchasing specifications” for institutional buyers are “silent” in regard to it. As a result, these liquidators and their bargain prices win institutional food service contracts “nearly every time.” However, she warns, “in the secondary food market, you get what you pay for” because “the saying ‘garbage in, garbage out’ has [never] been more appropriate.”
Citing a recent estimate by the federal Centers for Disease Control (CDC), Smith notes that foodborne illness strikes 48 million people in the U.S. every year, putting 128,000 in the hospital and 3,000 in their graves. But “‘recent’ is a misnomer,” she adds; the CDC’s report, released in 2011, is “shamelessly outdated.”
Outbreaks of foodborne illness in institutional settings are usually chalked up to food handlers who didn’t adhere to U.S. Department of Agriculture (USDA) guidelines for workplace sanitation or storing and serving food. However, Smith discovered there are no inspections for facilities where expired food is repackaged, though many make “erroneous claims of USDA or FDA [U.S. Food and Drug Administration] certifications.”
An FDA spokesperson told her the agency “doesn’t oversee meat and poultry, only dairy products.” Moreover, “expiration dates are not regulated, only food safety.” Worse, expiration dates get “concealed by repackaging and relabeling” in the secondary market, Smith adds. Out- of-date meat and fish are ground into “hot dogs, beef patties, sausages, chicken nuggets and fish sticks.” Expired milk and eggs get dehydrated into powdered products.
Without government oversight, there are also no quality reports that might “expose the lethal dangers of the secondary food market.” As a result, “all food safety bets are off,” Smith says, calling this resale of expired food “a black market in broad daylight.”
How the Secondary Food Market Operates
Most secondary food market liquidators do not have websites, Smith notes. Incorporation documents may not even name principals. In a nod to Dr. Suess, a vendor to the Miami Federal Detention Center (FDC) called Wholesome Food Products LLC listed its owners as two other LLCs named Thing1 and Thing2.
Operating as an LLC allows a liquidator to dissolve quickly when crummy food gets it barred from future government bidding — only to reconstitute as a new LLC and bid again. And since the product itself offers almost unlimited opportunities for repackaging and resale, expired food items “travel a conga line,” Smith says, “until the liquidator finds a buyer so desperate, inept, or corrupt that it will purchase anything.”
Food rejected by a large grocery chain is usually offered next to restaurants and discount stores, Smith explains. Whatever they reject then gets sold to schools. Next down the line are hospitals and prisons, either federal lockups operated by the Bureau of Prisons (BOP) or state prisons run by a Department of Corrections (DOC). Last is the military.
Smith quotes a “former sailor stationed aboard the aircraft carrier Kitty Hawk in the Persian Gulf during Operation Enduring Freedom,” who was on-hand when beef arrived that had been stamped: “REJECTED DOC.” He was ordered to use it anyway.
In prisons, incarcerated kitchen workers who complain about food quality are disciplined or fired. “They told me I was trying to start a riot,” recalled a prison kitchen worker who protested moldy vegetables. “I said: ‘No, you’re serving rotten potatoes. That’s going to get to the yard.”
Risks Without Repercussions
In the procurement process for institutional food service, Smith argues that “value and shelf life need to be decision-making factors, as well as the acquisition cost.” Initial savings evaporate if school students or hospital patients get sick. Or if food must be tossed because its “shelf life was already compromised prior to delivery.”
All of these risks extend to prisons, too, just without as many repercussions. After all, prisoners are a literally captive market. But Smith cites CDC statistics to show that a foodborne illness outbreak in prison affects 60 prisoners, on average. If symptoms spread to staff, the result is costly medical care, plus increased overtime for unaffected staff covering for ill co-workers.
As Smith notes, a “complaint shared in nearly all prison riots is the quality and quantity of subsistence food.” But she interviewed only one person at BOP — the National Food Service Administrator — who was familiar with the secondary food market.
That administrator said BOP didn’t set national guidelines for use of the secondary food market because that “is left up to each facility’s discretion.” Except Smith’s research showed that’s not really true: “BOP headquarters sets bid specification standards, and these standards are replicated downstream,” she found. Her review of “multiple national BOP … bid solicitations” found specifications requiring “New Food” were “utterly absent.” Instead, directives refer only to kitchen equipment, which must be “New Equipment ONLY; NO remanufactured or ‘gray market’ items.” Too bad, Smith adds, there isn’t a similar requirement for “New Food ONLY; NO repackaged or reconditioned ‘secondary market’ food items.”
“Manufacturer’s letters will NOT be accepted in lieu of labeling,” reads another BOP specification. But as Smith argues, what value is a label “if its only purpose is to hide the fact that expired food was reconditioned and repackaged?”
When foodborne illness hits consumers who are not incarcerated, they can report it to their local health department, which will then conduct an inspection. But in federal prisons, there is no outside authority visiting kitchens. Smith got a “cornered representative from BOP’s press office” to admit that the only kitchen inspections are conducted by BOP staff.
She also found it nearly impossible to decipher BOP budget figures. In the Food Service Department at Miami FDC, for example, Smith found a budget broken down per prisoner, but it combined food and non-food items, so food costs remained a mystery. This sort of aggregation thwarted any attempt to “drill down to specific … food costs.”
That opacity is probably intentional; Smith’s requests to BOP for a line-item budget or any budgetary analysis were rejected for fear of compromising security. A representative explained that “line-item budgets and comparative facility analytics can be misinterpreted and are rightly protected” by the Freedom of Information Act (FOIA). As Smith wonders, does that mean FOIA “protects the public from learning the truth about high costs, failed programs, mismanagement, and malfeasance?”
Further muddying the waters, symptoms of food poisoning — vomiting, diarrhea and abdominal pain — are often attributed to stomach viruses or influenza when found. Perhaps a large outbreak may get reported. Eventually. The CDC maintains a Foodborne Outbreak Surveillance System, but its last report was issued in 2017.
BOP’s Food Safety Manual
Since repackaged and reprocessed food is not inspected and has an unknown shelf life, spoiled food and beverages inevitably get served — even when handling recommendations are “precisely followed,” Smith notes. However, BOP’s food safety manual has some odd recommendations.
For example, food storage is limited to a maximum of five days or “the manufacturers’ use by date.” But since secondary-market food is no longer in its original packaging, the latter requirement is meaningless. Moreover, five days is too long to store fresh poultry and seafood; the USDA says it should be cooked or frozen within two days.
Another problem with BOP’s manual: It says temperature-taking is the only way to determine if food has spoiled, but it fails to require that temperature logs be kept.
Oddly, there is no requirement in the manual for a report to food service supervisors when food is rejected. As Smith notes, tracking what happens to it is essential to thwart “an even more sinister black market” that sells rejected food like that which ended up on the Kitty Hawk.
Corruption in Prison
All of this creates “an environment ripe for kickbacks, bribes, and hush money,” Smith argues, pointing for evidence to a food-service bribery ring broken up in Oregon prisons in 2007. [See: PLN, Sep. 2010, p.24.]
“The main concern with [BOP] is that wardens at each institution decide if there’s going to be any disciplinary investigation,” Smith learned from Susan Canales, vice president of the employee union at the Federal Correctional Institution in Dublin, California. “Basically, you’re putting the fox in charge of the henhouse.”
Back at Miami FDC, where BOP spends nearly $40,000 annually to keep a prisoner, each of them also spends up to $360 per month — $4,320 per year — on commissary items. “Commissary vendors rake in $1.6 billion a year,” Smith notes, citing a 2016 study by the Prison Policy Initiative. So she wonders: Is this another example of corruption, intentionally compromising subsistence foods “to promote the use of this lucrative market?”
Beyond procurement, the use of the secondary market food provides other opportunities for corruption. Prisoners can be threatened with rotten food by guards in retaliation for real or perceived slights. It can be used by fellow prisoners to extort money or services from them. At the very least, the presence of inedible food raises the risk of violent altercations over other food that is more nutritious.
The United Nations calls “wholesome food” a human right, Smith notes, even in prisons. So what can be done to ensure it?
First, food “[unfit] for human consumption must be removed from the marketplace” by state and federal agencies. During contracting, “results for the lowest three bidders … should be posted on agency websites,” in order to “level the playing field.” Line-item budgets must be made public, along with “comparative performance metrics.” Requiring temperature logs would “more easily enable problem food liquidators to be disqualified from bidding.”
“Besides limiting corruption and upholding human rights, public scrutiny makes government, administrators and politicians accountable,” Smith concludes, resulting in “efficiency, effectiveness and cost savings.” As she notes, “Food safety and good government are not partisan issues.”
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login