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Letter From The Editor: “Inspected By USDA”

I was standing outside a John Morrell plant waiting for my candidate, who was campaigning inside, when I first heard it.  It was such a simple and efficient food safety enforcement tool.

If USDA did not like what was going on inside the plant, its inspectors could just pick up their inspection stamps and walk out the front door.   No “Inspected by USDA” stamped on the meat meant it could not be sold.  The plant would have to shut down, clean up its act, and ask the USDA inspectors to come back.

This was a long time ago, back in the “poke and sniff” era before the 1993 E. coli O157:H7 outbreak involving Jack in the Box restaurants in multiple states.

And it was definitely before June 13, 2000, when U.S. District Court Judge A. Joe Fish signed an order saying it was “outside the statutory authority” of USDA to withdraw or suspend inspection services or withhold the market of inspection, conclude that an establishment is insanitary, or its products adulterated if it has too much Salmonella in its ground beef.

Fish, appointed by President Ronald Reagan, then “permanently enjoined” USDA from taking any of those actions against Supreme Beef Processors.

Eighteen months later, the Fifth Circuit Court of Appeals upheld Judge Fish’s order.

With poke and sniff out in the new Hazard Analysis and Critical Control Point (HACCP) era, Judge Fish was saying a privately held meat packing business, with 500 employees and more than $150 million in annual sales, could continue to do business after failing USDA’s Salmonella tests.

Supreme Beef failed to meet USDA’s Salmonella standard three times in eight months, and in one test 47 percent of its product was contaminated.  Oh, and it was selling millions of pounds of beef to the National School Lunch Program at the time.

Unlike E. coli O157:H7, bacteria like Salmonella are not defined as adulterants in meat and poultry.  USDA setting Salmonella standards in the HACCP era was part of the overall strategy to control contaminants.  The Fifth Circuit sided with Fish and the Bush Administration did not file an appeal with the Supreme Court.

For the second time in a year, however, under the management of Secretary of Agriculture Tom Vilsack and now Under Secretary for Food Safety Elisabeth Hagen, USDA is doing a little push back on that nine-year-old decision.

First in the summer of 2009, USDA brought about the recall of ground beef that was contaminated with Salmonella.  The reason?  It was Salmonella-resistant to commonly prescribed antibiotics.

Then something happened last Tuesday afternoon in Buffalo, NY.   USDA’s Food Safety and Inspection Service “suspended operations” at a Tyson’s deli plant, sidelining 480 employees.  FSIS took the action as a result of sampling conducted during one of its food safety assessments.

These situations do not line up equally, by any means.   For one thing, Tyson’s is one of the best-known and respected food companies on the planet, not an anonymous bottom dweller.

Tyson’s recall of deli meats in August for possible Listeria contamination likely tripped the food safety assessment.   Canada’s experience with a Listeria outbreak two years ago, resulting in 22 deaths, has put everyone on alert about ready-to-eat meat plants.

Nobody is yet calling Supreme Beef  v. USDA the “Dred Scott” decision of food safety, but it’s good to see that  those “Inspected by USDA” stamps are still going mean something and get some respect.

© Food Safety News
  • Thanks for the background info, Dan. The 2000 decision was before my time and knowing of it changes my interpretation of the meaning of current events.
    It, also, supports what John Munsell has said for years about how HACCP was sold (“It will get the inspectors off the work floor.”) and how under it big is allowed to largely do what it wants until an outbreak occurs. Why didn’t FSIS do to Supreme Beef Processors what it did to Montana Quality Foods? In the latter case, the FSIS required a new HACCP plan (after repeated outbreaks of O157:H7 caused by a single upstream slaughterhouse) and turned down something like 13 plans in a row over the next 4 months.
    One of the principles behind our support for the rule of law is equal treatment under the law.
    I hope that Sec. Vilsack and Undersecretary Hagen are committed to it.
    Finally, I would appreciate Food Safety News’ asking supporters of the S 510/HR 2749 approach to food safety, “How exactly S 510’s and HR 2749’s requirements for Hazard Analysis and Risk-based Preventive Control (HARPC) plans are crafted to keep the FDA’s legitimate enforcement from being boxed in by the legal arguments used successfully by Supreme Beef Processors in the 2000 case against the FSIS?”

  • Thanks for the background info, Dan. The 2000 decision was before my time and knowing of it changes my interpretation of the meaning of current events.
    It, also, supports what John Munsell has said for years about how HACCP was sold (“It will get the inspectors off the work floor.”) and how under it big is allowed to largely do what it wants until an outbreak occurs. Why didn’t FSIS do to Supreme Beef Processors what it did to Montana Quality Foods? In the latter case, the FSIS required a new HACCP plan (after repeated outbreaks of O157:H7 caused by a single upstream slaughterhouse) and turned down something like 13 plans in a row over the next 4 months.
    One of the principles behind our support for the rule of law is equal treatment under the law.
    I hope that Sec. Vilsack and Undersecretary Hagen are committed to it.
    Finally, I would appreciate Food Safety News’ asking supporters of the S 510/HR 2749 approach to food safety, “How exactly S 510’s and HR 2749’s requirements for Hazard Analysis and Risk-based Preventive Control (HARPC) plans are crafted to keep the FDA’s legitimate enforcement from being boxed in by the legal arguments used successfully by Supreme Beef Processors in the 2000 case against the FSIS?”

  • In response to Mr Hamill’s questions:
    1. Re: equal treatment under law. I agree. Big meat plants should not get favorable treatment over small plants. Both of the firms mentioned by Mr. Hamill, Supreme Beef and Montana Quality Beef, were classified by USDA as “small plants.” Further, FSIS sought, unsuccessfully, to close Supreme Beef permanently for failing salmonella performance standards. The issue in Montana Quality Beef was the presence of an adulterant, E. coli O157:H7.
    Salmonella is not always an adulterant. Federal courts have upheld USDA’s designation of E. coli O157:H7 in any amount as rendering product adulterated. Unfortunately, neither the law nor current policy law require FSIS to track adulterated meat back to its original source nor to take action.
    2. Re: why FDA’s legitimate enforcement will not be “boxed in by the legal arguments used successfully by Supreme Beef…against FSIS?” Existing law, the Federal Meat Inspection Act of 1967, says nothing about microbial testing or preventive process controls. In S510 and HR 2749, Congress grants FDA specific legal authority to establish and enforce microbial testing and preventive process controls, including HACCP.
    Congress should grant both FSIS and FDA authority to employ these modern mechanisms to reduce the presence of pathogens in food and help reduce the incidence of foodborne illness.
    Congress should grant both regulatory agencies these

  • In response to Mr Hamill’s questions:
    1. Re: equal treatment under law. I agree. Big meat plants should not get favorable treatment over small plants. Both of the firms mentioned by Mr. Hamill, Supreme Beef and Montana Quality Beef, were classified by USDA as “small plants.” Further, FSIS sought, unsuccessfully, to close Supreme Beef permanently for failing salmonella performance standards. The issue in Montana Quality Beef was the presence of an adulterant, E. coli O157:H7.
    Salmonella is not always an adulterant. Federal courts have upheld USDA’s designation of E. coli O157:H7 in any amount as rendering product adulterated. Unfortunately, neither the law nor current policy law require FSIS to track adulterated meat back to its original source nor to take action.
    2. Re: why FDA’s legitimate enforcement will not be “boxed in by the legal arguments used successfully by Supreme Beef…against FSIS?” Existing law, the Federal Meat Inspection Act of 1967, says nothing about microbial testing or preventive process controls. In S510 and HR 2749, Congress grants FDA specific legal authority to establish and enforce microbial testing and preventive process controls, including HACCP.
    Congress should grant both FSIS and FDA authority to employ these modern mechanisms to reduce the presence of pathogens in food and help reduce the incidence of foodborne illness.
    Congress should grant both regulatory agencies these

  • Further, in the FDA’s process for establishing its own guidelines for tracing outbreaks they are instructed to take public comment.
    Just brainstorming, but it’s not unreasonable to think that FDA guidelines could include language along the lines of, “In the event that a facility is found to be in possession of or having distributed adulterated or contaminated food, appropriate testing shall be done at all other facilities to which the facility was a recipient of any foods.” Sounds good and sensible to me.

  • The fact that there is no law specifically requiring the traceback of adulterated meat is no good reason for the failure of the FSIS to do so. As Sen. Tom Coburn said, if the Senate wants improved performance at the FSIS then it needs to call the FDA to account every week for the next 4 weeks.
    Though I support Sen. Jon Tester’s “Meat Safety and Accountability Act,” it is NOT enough. The FSIS has to be held accountable.
    From Ms. Tucker-Foreman’s response to my question about the need to craft S 510 and HR 2749 to account for the Supreme Beef precedent, it is clear to me that there was none. The fact that HACCP was implemented by the FSIS in the 1990’s shows that the fact that “existing law, the Federal Meat Inspection Act of 1967, says nothing about microbial testing or preventive process controls” didn’t preclude the FSIS from implementing “preventive process controls” that she so strongly advocates as if many don’t already exist.
    Her statement, “In S510 and HR 2749, Congress grants FDA specific legal authority to establish and enforce microbial testing and preventive process controls, including HACCP,” is absolutely NOT true. There is NO grant of authority. Just as the FSIS was able to require HACCP plans without any additional authority, the FDA can do so. All S 510 and HR 2749 do is provide the FDA political cover on the basic parameters of the required plans and how broadly they will be required.
    The FDA clearly asserted that it already has this authority under the Public Health Service Act in its 4-26-10 “Brief in Support of United States’ Motion to Dismiss Plaintiff’s Amended Complaint” in Farm-to-Consumer Legal Defense Fund v Sebelius which is at
    http://www.farmtoconsumer.org/litigation/ey100426–ds mtd memo in support.pdf,
    The idea that S 510/HR 2749 is needed to grant the FDA the “authority to employ these modern mechanisms to reduce the presence of pathogens in food and help reduce the incidence of foodborne illness” is one of the ways that Ms. Tucker-Foreman and other supporters of S 510/HR 2749 are falsely framing the debate on this legislation and, thereby, misleading us all.

  • The fact that there is no law specifically requiring the traceback of adulterated meat is no good reason for the failure of the FSIS to do so. As Sen. Tom Coburn said, if the Senate wants improved performance at the FSIS then it needs to call the FDA to account every week for the next 4 weeks.
    Though I support Sen. Jon Tester’s “Meat Safety and Accountability Act,” it is NOT enough. The FSIS has to be held accountable.
    From Ms. Tucker-Foreman’s response to my question about the need to craft S 510 and HR 2749 to account for the Supreme Beef precedent, it is clear to me that there was none. The fact that HACCP was implemented by the FSIS in the 1990’s shows that the fact that “existing law, the Federal Meat Inspection Act of 1967, says nothing about microbial testing or preventive process controls” didn’t preclude the FSIS from implementing “preventive process controls” that she so strongly advocates as if many don’t already exist.
    Her statement, “In S510 and HR 2749, Congress grants FDA specific legal authority to establish and enforce microbial testing and preventive process controls, including HACCP,” is absolutely NOT true. There is NO grant of authority. Just as the FSIS was able to require HACCP plans without any additional authority, the FDA can do so. All S 510 and HR 2749 do is provide the FDA political cover on the basic parameters of the required plans and how broadly they will be required.
    The FDA clearly asserted that it already has this authority under the Public Health Service Act in its 4-26-10 “Brief in Support of United States’ Motion to Dismiss Plaintiff’s Amended Complaint” in Farm-to-Consumer Legal Defense Fund v Sebelius which is at
    http://www.farmtoconsumer.org/litigation/ey100426–ds mtd memo in support.pdf,
    The idea that S 510/HR 2749 is needed to grant the FDA the “authority to employ these modern mechanisms to reduce the presence of pathogens in food and help reduce the incidence of foodborne illness” is one of the ways that Ms. Tucker-Foreman and other supporters of S 510/HR 2749 are falsely framing the debate on this legislation and, thereby, misleading us all.