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According to news sources, the South Dakota Supreme Court has denied the defendants’ petition seeking review and dismissal of a lawsuit filed by Beef Products, Inc. alleging that the ABC network and news anchor Diane Sawyer, among others, defamed the company by their coverage of the company’s lean, finely textured beef, which has been dubbed “pink slime” by critics. Beef Prods., Inc. v. Am. Broadcasting Cos., Inc., No. 12-292 (Union Cty. Cir. Ct., S.D., supreme court order entered May 22, 2014). Without discussing the case merits, the court also apparently lifted a stay that had stopped the discovery process in April 2014. Additional details about the lawsuit appear in Issues 519 and 453 of this Update. The plaintiff seeks $1.2 billion in damages. See AP, May 23, 2014.   Issue 524  

A South Dakota court has determined that most of the claims filed by the makers of lean finely textured beef (LFTB) against ABC News, certain news correspondents, including Diane Sawyer, and former U.S. Department of Agriculture (USDA) employees may proceed. Beef Prods., Inc. v. Am. Broadcasting Cos., Inc., No. 12-292 (Union Cty. Cir. Ct., S.D., order entered March 28, 2014). Information about the lawsuit appears in Issue 453 of this Update. While the court found the plaintiffs’ claims for common law disparagement preempted by a state statute addressing the elements of a disparagement cause of action, available relief and statute of limitations, it limited its dismissal with prejudice to those alleged tortious statements expressly stating or implying that the product is not safe for human consumption. As to the defamation claims, the court found that the three plaintiffs were appropriate parties because the complaint sufficiently alleged that people who heard the…

The U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) has announced that Petaluma, California-based meat processor Rancho Feeding Corp. has recalled nearly 9 million pounds of beef products—all of the beef processed by the company from January 2013 through January 2014 and shipped to California, Florida, Illinois, and Texas. According to FSIS, “the products are adulterated, because they are unsound, unwholesome or otherwise unfit for human food and must be removed from commerce”; the company purportedly processed “diseased and unsound animals and carried out these activities without the benefit or full benefit of federal inspections.” Although no reports of illness from consumption of these products have been submitted to FSIS, the recall was categorized as Class I, which means it presents “a health hazard situation where there is a reasonable probability that the use of the product will cause serious, adverse health consequences or death.” The company has…

In False Claims Act (FCA) litigation arising from the sale to the U.S. Department of Agriculture of beef processed from the alleged abuse of downer cattle, WestlandMeat Co. has reportedly agreed to pay more than $3 million, or most of its owners and investors’ remaining assets. United States ex rel. The Humane Soc’y of the U.S. v. Westland/Hallmark Meat Co., No. 08-0221 (C.D. Cal., judgment filed November 27, 2013). The Humane Society had whistleblower videos showing slaughterhouse employees kicking, beating and dragging disabled cattle to slaughter, prompting the largest recall of beef in U.S. history over bovine spongiform encephalopathy concerns. Details about the video appear in Issue 247 of this Update. The agreement apparently reduces the bankrupt company’s liability to some $155 million, from a previous treble damages judgment of nearly $500 million. According to a news source, the case involved disputed topics under FCA case law: implied certification and damages calculations. See…

The U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) has reopened the comment period on a proposed rule concerning the description designation for needle- or blade-tenderized beef. First published in the June 10, 2013, Federal Register, the proposed rule would require “the descriptive designation ‘mechanically-tenderized’ on the labels of raw or partially-cooked needle- or blade tenderized beef products, including beef products injected with marinade or solution, unless these products are to be fully cooked at an official establishment.” Because the first comment period expired during the recent partial government shutdown, the agency will now accept feedback until December 24, 2013. Additional details about the proposed rule appear in Issue 486 of this Update. See Federal Register, December 3, 2013.  

Speaking during a North American Meat Association conference in Chicago, Canada Agriculture Minister Gerry Ritz reportedly called on the United States to resolve a dispute over country-of-origin labeling (COOL) requirements for pork and beef by including provisions in the Farm Bill currently under consideration in the U.S. Congress. Ritz claimed that the rules, now before a World Trade Organization (WTO) compliance panel to decide whether provisions found in violation of WTO obligations now conform since they were revised, have cost Canada more than $1 billion annually. He also indicated that Canada has already prepared a list of retaliatory measures it will take if WTO rules in its favor. National Farmers Union President Roger Johnson reportedly bristled at the minister’s remarks, saying “Recent threats by the Canadian Agriculture Minister are unjustified and out of line. As a sovereign nation, we should not take direction from Canada. They do not dictate what…

The U.S. Department of Agriculture’s (USDA’s) Food Safety and Inspection Service (FSIS) has issued a request for comments regarding changes to its procedure for Salmonella verification sampling of raw beef products. Among other things, FSIS stated that it will (i) begin “analyzing for Salmonella all raw beef samples that it collects for Shiga toxin-producing Escherichia coli (STEC) analysis,” including all raw ground beef, beef manufacturing trimmings, bench trim, and other raw ground beef components; (ii) increase the raw ground beef sample used for Salmonella analysis from 25 grams to 325 grams; and (iii) discontinue Salmonella sampling set procedures in ground beef products, except in those establishments that exceeded the standard for Salmonella in their most recent tests. FSIS intends to use the results from its verification sampling program to develop new Salmonella performance standards for ground beef products and to estimate Salmonella prevalence in raw ground beef and trimmings. Comments will be accepted…

A federal court in the District of Columbia will consider on August 27, 2013, whether to issue a preliminary injunction to stop the U.S. Department of Agriculture (USDA) from implementing country-of-origin labeling (COOL) program changes required by a 2011 World Trade Organization (WTO) determination that, as initially drafted, the rules gave less favorable treatment to cattle and hogs imported from Canada and Mexico. Am. Meat Inst. v. USDA, No. 13-1033 (filed July 8, 2013). Information about the revised COOL rule appears in Issue 485 of this Update. A number of meat-processing interests, including the American Meat Institute, Canadian Cattlemen’s Association, Confederación Nacional de Organizaciones Ganaderas, National Cattlemen’s Beef Association, and National Pork Producers Council, challenged the new rule alleging that it violates First Amendment rights under the U.S. Constitution, exceeds USDA’s authority and violated the Administrative Procedure Act. In early August, the U.S. Cattlemen’s Association (USCA), National Farmers Union, American…

Citing a shortage of naturally raised beef due to last year’s drought, Chipotle Mexican Grill Inc. has apparently told media sources that it may allow its restaurants to begin using beef treated with antibiotics. Although Chipotle only reached its goal to use antibiotic- and hormone-free meat a few years ago, the company reportedly said that it plans to review its “never-ever” antibiotic policy and possibly allow suppliers to sell animals that have been treated with antibiotics “when necessary.” The policy change would still bar the use of beef from animals given antibiotics to prevent disease or promote weight gain. “Many experts, including some of our ranchers, believe that animals should be allowed to be treated if they are ill and remain in the herd,” Chipotle founder and co-CEO Steve Ells was quoted as saying. “We are certainly willing to consider this change, but we are continuing to evaluate what’s best…

The U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) has extended the comment period for a proposed rule that would require “mechanically tenderized” labeling for raw or partially cooked needle- or blade-tenderized beef products, “including beef products injected with marinade or solution.” According to FSIS, the rule would also require the labels of mechanically tenderized beef products destined for consumers, hotels, restaurants, or similar establishments to include “validated cooking instructions” to ensure safe handling and reduce the risk of foodborne illness. Acting at the request of two trade associations, the agency will now accept comments on the new labeling scheme until October 8, 2013. Additional details about the proposed rule appear in Issue 486 of this Update. See Federal Register, August 9, 2013.    

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