Nonprofit consumer advocacy organization Food & Water Watch, Inc. and two of its members have filed an action against the U.S. Department of Agriculture (USDA) and its Food Safety and Inspection Service seeking to enjoin their new National Poultry Inspection System (NPIS) rules. Food & Water Watch, Inc. v. Vilsack, No. 14-1547 (D.D.C., filed September 11, 2014). Details about the rules, which take effect October 20, 2014, appear in Issue 532 of this Update. The plaintiffs allege that the rules violate the Poultry Products Inspection Act (PPIA) and Administrative Procedure Act (APA). They interpret the PPIA as requiring “that federal inspectors critically appraise all chicken and turkey carcasses and viscera,” and set forth how increased line speeds and rules giving poultry employees, without training or certification, the authority to inspect and remove adulterated birds or parts from processing lines before inspectors see them violate this requirement. Without actual inspection of every bird,…
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Shook attorneys Ann Havelka and Ryan Farnsworth have authored an August 18, 2014, Law360 article detailing “the first major overhaul of the nation’s poultry inspection system in nearly 60 years.” Describing the voluntary and mandatory aspects of the final rule issued by the U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS), the article provides an overview of the regulations most likely to affect industry as the onus for inspection shifts from government agencies to business operators. FSIS officially published the final rule in the August 20, 2014, edition of the Federal Register. Additional information about the regulations appears in Issue 532 of this Update. Issue 535
The U.S. Department of Agriculture’s (USDA’s) Food Safety and Inspection Service (FSIS) has announced a final rule amending poultry slaughter regulations and establishing a new poultry inspection system (NPIS) for young chicken and turkey slaughter establishments. Part of USDA’s response to a presidential executive order (E.O. 13563) asking agencies to review and improve existing regulations, the final rule aims to “facilitate pathogen reduction in poultry products, improve the effectiveness of poultry slaughter inspection, make better use of the Agency’s resources, and remove unnecessary regulatory obstacles to innovation.” Optional for young chicken and turkey establishments, which can choose to retain their current inspection system, NPIS will not replace the Streamlined Inspection System (SIS), the New Line Speed Inspection System (NELS) or the New Turkey Inspection System (NTIS), as was originally proposed. FSIS has emphasized, however, that NPIS will allow inspectors “to perform more offline inspection activities that are more effective in ensuring…
Poultry manufacturer Foster Farms has filed an amended complaint in its lawsuit against its Lloyd’s of London insurers, which had rejected its $14.2 million claim for economic losses resulting from a government-mandated shutdown of one of its facilities. Foster Poultry Farms Inc. v. Certain Underwriters at Lloyd’s, London, No. 14–953 (E.D. Cal., amended complaint filed July 3, 2014). Foster Farms had paid almost $600,000 for a yearlong product contamination policy to three insurers operating on the Lloyd’s of London insurance market, and the company later filed a claim to cover losses from the forced closure, including costs from the 1.3 million pounds of product it destroyed. The insurers rejected the claim because Foster Farms did not initiate the recall of its chicken, arguing instead that the policy covered economic losses associated with a voluntary recall from customers rather than losses from the destruction of products still in its warehouse. In a…
The Center for Science in the Public Interest (CSPI) has filed a complaint against the U.S. Department of Agriculture and Food Safety and Inspection Service, seeking a declaration that the agencies have unreasonably delayed taking action on its May 2011 petition requesting that certain strains of antibiotic-resistant (ABR) Salmonella in ground meat and poultry be declared adulterants. CSPI v. Vilsack, No. 14-895 (D.D.C., filed May 28, 2014). Details about CSPI’s petition appear in Issue 396 of this Update. According to the nutrition and health advocacy organization, if these pathogens are declared adulterants, affected meat and poultry products would be barred from entering commerce, and the action “would also confirm the agency’s authority to request without evidence of illness that a company recall products containing ABR Salmonella, or—in the absence of a company’s voluntary compliance—to detain and seize those products.” The complaint refers to a number of Salmonella outbreaks, some involving…
According to a new Animal Welfare Institute (AWI) report titled “Label Confusion: How ‘Humane’ and ‘Sustainable’ Claims on Meat Packages Deceive Consumers,” the U.S. Department of Agriculture (USDA) fails to verify the accuracy of label claims on most meat and poultry products sold in the United States. The report suggests that food label claims used on millions of meat packages lack “any apparent verification, and AWI has asked USDA to require independent third-party certification. Noting that the use of animal welfare and sustainability claims has increased dramatically during the past decade as consumers become more aware of—and concerned about—the well-being of animals raised for food and the purported negative impacts of animal agriculture on the environment, AWI contends that the public’s interest in these claims makes them ripe for exploitation. During the past three years, AWI researched the USDA approval process for 25 animal welfare and environmental claims, such as…
Advocacy organizations including the Center for Food Safety and Food & Water Watch have filed an amicus brief to support an animal rights organization coalition’s challenge to a Utah law that criminalizes undercover investigations of meat and poultry processing facilities. Animal Legal Def. Fund v. Herbert, No. 13-0679 (D. Utah, brief filed December 17, 2013). Contending that the government has failed to prevent illegal animal-handling practices that ultimately threaten consumer safety and that consumers have the right to know how food is produced, the brief calls for the court to decide the challenge to Utah’s “ag-gag” law, Utah Code Ann. § 76-6-112, on the merits. Among other matters, amici refer to the undercover investigation conducted by the Humane Society of the United States in 2007 of a Hallmark/Westland facility and its conclusion in a U.S. Department of Agriculture ground-beef recall over concerns that the meat “did not receive complete and proper inspection…
The U.S. Department of Agriculture’s Food Safety and Inspection Services (FSIS) has issued a final rule amending the meat and poultry products inspection regulations “to expand the circumstances in which FSIS will generically approve the labels of meat and poultry products.” Effective January 6, 2014, the final rule will also consolidate the regulations governing meat and poultry product label approvals under a new Code of Federal Regulations part. Under the new regulations, FSIS will still require establishments to submit for evaluation certain types of labeling, “e.g., labels for temporary approval, labels for products produced under religious exemption, labels for products for export with labeling deviations, and labels with claims and special statements.” In particular, FSIS will continue to review the following special statements and claims: (i) “[c]laims relating a product’s nutrient content to a health or a disease condition”; (ii) “statements that identify a product as ‘organic’ or containing organic…
The Government Accountability Office (GAO) recently issued a report finding that the U.S. Department of Agriculture’s (USDA’s) Food Safety and Inspection Service (FSIS) did not adequately evaluate the impact of proposed poultry and hog inspection changes that would replace some USDA inspectors on slaughter lines with plant personnel tasked with ensuring quality and safety standards. According to the report, USDA implemented several pilot projects at poultry and hog processing plants over the past decade but ultimately failed to gather enough data to assess the effectiveness of these new systems. Nevertheless, the agency has since proposed an optional inspection scheme for both poultry and hog operations “based on its experience with the pilot projects at young chicken and young turkey plants.” Asked to review these pilot projects by Sen. Kirsten Gillibrand (D-N.Y.), GAO determined that the proposed changes would give production plants more flexibility and responsibility while allowing inspectors to focus…
The U.S. Food and Drug Administration (FDA) has issued a final rule that amends the regulations for “irradiation of animal feed and pet food to provide for the safe use of electron beam and x-ray sources for irradiation of poultry feed and poultry feed ingredients.” The revised rule states that ionizing radiation is limited to (i) “gamma rays from sealed units of cobalt-60 or cesium-137”; (ii) “electrons generated from machine sources at energy levels not to exceed 10 million electron volts”; (iii) “x-rays generated from machine sources at energies not to exceed 5 million electron volts”; and (iv) “x-rays generated from machine sources using tantalum or gold as the target material and using energies not to exceed 7.5 (MeV).” See Federal Register, May 10, 2013.
