In December 2001, the Fifth Circuit Court of Appeals issued a decision that some believe dealt a serious blow to the food safety reforms instituted by the USDA in the wake of
the 1993 West Coast E. coli outbreak. The appeals court upheld a lower court
ruling that the Agriculture Department does not have the authority to shut down
a meat-processing plant that repeatedly failed tests for salmonella contamination.
In 1998, the government unveiled a radically redesigned system of meat
inspection called Hazard Analysis and Critical Control Point Systems
(HACCP). Rather than relying on USDA inspectors to ensure that meat and
poultry coming out of the plants was safe to eat, the new system required meat-processing plants to develop and implement their own systems of controlling the
levels of harmful bacteria in their plants. As a way to determine whether the
companies' plans were working, HACCP regulations required microbial testing of
salmonella levels in the finished meat and poultry coming out of the plants. If
a plant's products repeatedly exceeded the salmonella limits imposed by the
regulations, the USDA could shut the plant down.
Supreme Beef Processors Inc. is a Texas-based meat processor and grinder that
at one point supplied millions of pounds of ground beef to the public school
system. In December 1999, a Supreme Beef plant failed the USDA's salmonella
tests three times in eight months; in one test 47 percent of ground beef samples in
the plant were contaminated with salmonella. Pursuant to the HACCP
regulations, the USDA notified the company that it would pull federal
inspectors out of the plant, an action tantamount to shutting it down. The
company immediately filed suit against the USDA in federal district court. The
same day, the court granted a temporary restraining order forbidding the
government to remove the inspectors.
In the lawsuit, Supreme Beef claimed that the USDA did not have the authority
to set limits on the allowable levels of salmonella bacteria in meat. They
argued that because the bacteria is naturally occurring, it is not an
"adulterant" substance subject to regulation by the government. Since beef may
contain salmonella bacteria when it arrives at the packing plant from the
slaughterhouse, the company argued, the level of salmonella in the finished,
processed meat is not an adequate indicator of the whether the pathogen control
procedures employed in the plant are being properly implemented. They also
pointed out that since salmonella bacteria is killed and rendered harmless when
meat is cooked properly, the presence of salmonella in the meat does not pose a
significant risk and struck down salmonella testing regulations.
The USDA appealed the case to the Fifth Circuit Court of Appeals, which upheld
the lower court decision. The court also allowed the National Meat Association
to intervene in the case, as representative of the interests of other meat
industry members.
The appeals court rejected the USDA's argument that the salmonella tests could
serve as a proxy measure for other contaminants because measures taken to
control salmonella would also likely reduce other pathogens. The court found
that since the presence of salmonella alone does not render the product
"injurious to health," the performance standards were not within the USDA's
enforcement authority.
The decision prompted vociferous protest from food-safety advocates who believe
that the elimination of the salmonella testing takes away an important
enforcement tool from the government. Carol Tucker Foreman of the
Consumer Federation of America says, "It is hard to overrate the importance of
the Supreme Beef decision. It could be interpreted as saying there is no amount
of disease causing bacteria in raw meat or poultry that would ... violate the
law." Without objective testing standards, she fears, the new meat-inspection
system will have no teeth. And former Agriculture Secretary Dan Glickman
told FRONTLINE that he believes the decision was "a serious blow" to food
safety.
Others disagree, however. The USDA has said that it has no plans to appeal the
decision to the U.S. Supreme Court, and USDA Undersecretary for Food Safety
Elsa Murano denies that the decision diminishes the power of USDA
inspectors to ensure clean meat factories. She points out that the USDA
continues to test for salmonella, and uses the results of the tests as
indicators that there may be a problem in the plant that needs investigation.
All that has changed is the ability to shut down a meat plant based solely on
results of the salmonella tests. "The Supreme Beef decision
is one that, when we looked at it, did not take away our authority to enforce
our regulations," Murano told FRONTLINE. "We still can shut down plants, and we have been since the
decision came out in December. ... We continue to test for salmonella. But we
use those results to point us to what we may have to do in order to see what
the plant may be missing in their implementation of HACCP."
The battle over the salmonella testing is now turned over to Congress. In
March 2002, Senator Tom Harkin (D-Iowa), chairman of the Senate Agriculture
Committee, introduced legislation he intended to undo some of the damage he
thinks the Supreme Beef decision wrought. His proposed legislation would
clarify the USDA's authority to shut down plants based on failed salmonella
tests. When introducing the legislation, he voiced his concerns that the meat
industry was trying to undercut the USDA's power: "We have an industry that
appears dead set on striking down USDA's authority to enforce meat and poultry
pathogen standards. And sadly, we are now at the point where the food-safety
reforms USDA enacted in 1996 are on life support."
The American Meat Institute will oppose the proposed legislation. "Senator
Harkin's bill is a political effort to legislate what science and the judicial
system do not support and what Congress has rejected twice before," said the
AMI's J. Patrick Boyle in a statement.
Observers on Capitol Hill think the possibility for passage of the Harkin
legislation is slim.
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