The Ninth Circuit Court of Appeals has affirmed a lower court’s decision that California cannot enforce its statute regulating the empty space between a product and its packaging against producers of meat and poultry products, finding that the Federal Meat Inspection Act (FMIA) and the Poultry Products Inspection Act (PPIA) preempt the statute. Del Real v. Harris, No. 13-16893 (9th Cir., order entered February 12, 2016). California Attorney General Kamala Harris appealed a district court’s permanent injunction barring enforcement of the slack-fill law against Del Real, which produces heat-and-serve meat and poultry products. The appeals court’s opinion cites precedent interpreting the FMIA and PPIA as creating a uniform national labeling standard. “When the FMIA and PPIA’s express preemption clauses are read in light of Congress’s concern for uniformity and a lesser level of regulation, it is unlikely that Congress intended for the states to be allowed to develop and apply…
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An Ohio appeals court has affirmed a lower court decision finding that two consumers’ mislabeling allegations against The Kroger Co. are preempted by the Poultry Products Inspection Act (PPIA). Arnold v. Kroger Co., No. C-150291 (Ohio Ct. App., 1st App. D., Hamilton Cty., order entered January 22, 2016). The consumers alleged Kroger’s chickens were not subjected to “a humane environment” as the company advertised and thus were not worth the premium the store charged. The trial court dismissed the claims as preempted by the PPIA, and the plaintiffs appealed. The appeals court was unpersuaded by the plaintiffs’ argument that the Food Safety and Inspection Service’s (FSIS’) inspection and approval of Kroger’s slaughtered chickens were insufficient to determine whether the chickens were in a humane environment while alive. “FSIS has determined that humane treatment of poultry directly implicates its fitness for human consumption because ‘under the PPIA, poultry products are more…
The U.S. Department of Agriculture (USDA) has finalized standards that seek to reduce Salmonella and Campylobacter in ground chicken and turkey products, as well as raw chicken breasts, legs and wings. Part of the Food Safety and Inspection Service’s (FSIS’) effort to revamp the poultry inspection system, the new rules require routine sampling throughout the year rather than infrequent sampling on consecutive days, and authorize the agency to publicize facility results online. “Over the past seven years, USDA has put in place tighter and more strategic food safety measures than ever before for meat and poultry products. We have made strides in modernizing every aspect of food safety inspection, from company record keeping, to labeling requirements, to the way we perform testing in our labs,” said USDA Secretary Tom Vilsack in a February 4, 2016, news release. “These new standards, in combination with greater transparency about poultry companies’ food safety…
The U.S. Court of Appeals for the D.C. Circuit has affirmed a lower court’s dismissal of Food & Water Watch’s challenge to the New Poultry Inspection System (NPIS). Food & Water Watch, Inc. v. Vilsack, No. 15-5037 (D.C., order entered December 22, 2015). The organization argued that the NPIS did not comply with the Poultry Products Inspection Act and would increase the risk of foodborne illnesses resulting from contaminated poultry. The lower court found that Food & Water Watch leaders did not have standing to sue because they could not show that the increased risk and probability of harm was substantial. The appeals court agreed, noting that the organization’s arguments ignored some provisions of the NPIS requiring more “offline” inspections, which could lower the risk of foodborne illness. Additional information about the lower court’s ruling appears in Issue 555 of this Update. Issue 589
Responding to public comments solicited in April 2014, the U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) has issued revised guidance for identifying, controlling and labeling allergens and other ingredients of public health concern through hazard analysis and critical control point (HACCP) plans, sanitation standard operating procedures (SOPs) or other prerequisite programs. Geared toward meat and poultry products, the guidance seeks to ensure “that product labels declare all ingredients, as required in the regulations, and that the product does not contain undeclared allergens or other undeclared ingredients.” See Federal Register, November 16, 2015. Issue 585
People for the Ethical Treatment of Animals Inc. (PETA) has filed a lawsuit against Whole Foods Market claiming the grocery chain’s “5-Step® Animal Welfare Rating System” is a “sham” because Whole Foods fails to enforce the program against its chicken, turkey, pork and beef suppliers. PETA v. Whole Foods Mkt., Inc., No. 15-4301 (N.D. Cal., filed September 21, 2015). The complaint asserts that “the entire audit process for Whole Foods’ animal welfare standards is a sham because it occurs infrequently and violations of the standards do not cause loss of certification. Indeed, a supplier can be out of compliance for multiple years without losing its certification.” Further, the certification standards “barely exceed common industry practices, if at all.” The complaint coincides with an investigative report from PETA that purportedly exposes several program violations at a Pennsylvania pig farm that supplies to Whole Foods. “‘Humane meat’ is a myth that dupes…
A consumer has filed a putative class action against Foster Poultry Farms, Inc. alleging that the company’s label misleads by displaying an American Humane Association (AHA) certification logo because that certification does not indicate a higher, more humane standard for raising chickens. Leining v. Foster Poultry Farms, Inc., No. BC588044 (Cal. Super. Ct., filed July 13, 2015). The complaint asserts that Foster Farms markets itself as a humane producer of chicken products and charges higher prices accordingly. The plaintiff believed that this marketing message communicated that the chickens at Foster Farms “lived a life without disease and discomfort and were afforded a quick and painless death.” She argues, however, “the AHA certification standards permit practices throughout all phases of the production process that, if known, would not be considered humane either by the reasonable consumer or even under the AHA’s own definition of humane meat production.” The complaint details each of…
Following a request from Iowa Senators Joni Ernst (R) and Chuck Grassley (R), the U.S. Senate Committee on Agriculture, Nutrition and Forestry will convene a hearing on July 7, 2015, to discuss the ongoing outbreak of highly pathogenic avian influenza (HPAI), H5N2. The outbreak has “decimated” turkey, chicken and other poultry flocks in 15 states, and an estimated 30 million birds in Iowa have been affected. “This is an important opportunity to bring leaders and key stakeholders together to review the pandemic spread of this deadly disease, identify areas for improvement within response procedures, and set the state to ensure we are better prepared in the future,” Ernst was quoted as saying. Increases in wholesale table egg prices have reportedly “begun to reverse due to buyer resistance and limited demand,” according to the agriculture department’s Agricultural Marketing Service. See Press Release of Sen. Charles Grassley, June 11, 2015; The New…
A June 9, 2015, New Yorker article warns that the latest strain of highly pathogenic avian influenza (HPAI) cut a swathe through the domestic poultry industry despite the best efforts of health officials and scientists working to contain it. Arguing that bird flu poses a greater threat than Ebola to human health, the article notes that the viruses responsible for recent global pandemics—including the H1N1 virus in 2009—started in animals before jumping to humans. “If H1N1 had been more virulent, it would have killed millions of people,” biologist Nathan Wolfe told The New Yorker’s Michael Specter. “Maybe tens of millions. Once it got out there, that thing burned right through the forest. We caught an amazingly lucky break, but let’s not kid ourselves. Luck like that doesn’t last.” In addition to describing the costs to producers, the federal government and consumers, the article also points out that the poultry farms…
The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) is convening a public meeting of the General Conference Committee of the National Poultry Improvement Plan on July 23, 2015, in Salt Lake City, Utah. The group of industry and state agency representatives will reportedly discuss (i) approved tests and (ii) updates regarding avian influenza, Salmonella and Mycoplasma. See Federal Register, May 1, 2015. Issue 564
