When it comes to food safety transparency, how much company information can you pry out of government agencies by using the Freedom of Information Act (FOIA)?
On Wednesday, a panel of judges from the U.S. Court of Appeals for the Ninth Circuit in San Francisco will hear arguments on both sides of that question in a case on appeal since October 2013 and known as ALDF v. FDA.
The information sought by the Animal Legal Defense Fund (ALDF) from the U.S. Food and Drug Administration (FDA) dates back to 2010 when ALDF asked for certain FDA records from enforcement of the then-new Egg Rule in Texas.
“ALDF seeks to review the hen population density data this public agency generated in its inspection program,” its lawyers said in their written arguments. “But citing certain specific FOIA exemptions, FDA says it is not permitted to release proprietary business information or trade secrets it collects in the process of enforcing its regulations.”
The oral arguments being heard tomorrow will allow each side to make their case for 15 minutes to a three-judge, all-woman panel. Judges Susan B. Graber and Kim McLane Wardlaw were both named to the Ninth Circuit bench by President Bill Clinton. The third panel member is Judge Mary Murguia, who was appointed by President Barack Obama. All three held district court appointments before being elevated to appellate judges.
After the Egg Rule took effect, FDA first focused enforcement on the nation’s largest egg producers, an activity that occurred around the time of the biggest shell recall in U.S. history. That’s when two Austin “Jack” DeCoster-owned egg farms in Iowa proved to be the source of a 2010 nationwide Salmonella outbreak.
A year later, ALDF filed the FOIA request, asking FDA to provide all documents involving egg safety, egg production, and egg production facilities in Texas, including communications with state government agencies and Texas egg producers.
It sought documents for the time period from April 26, 2011, through the date the FOIA request was filed on Dec. 15, 2011. The type of documents sought included Establishment Inspection Reports (EIRs), Inspector Observations, Salmonella enteritis sampling reports, correspondence and anything with a “reasonable relationship” to the subject.
FDA responded in two batches of 357 pages and 41 pages but redacted: 1) total hen populations; (2) number of hen houses; (3) number of floors per house; (4) number of cage rows per house; (5) number of cage tiers per house, and (6) the number of birds per cage.
Texas is the fifth-largest among the states as an egg producer, according to industry statistics.
Not satisfied, ALDF sued for the redacted information in August 2012, but the district court basically found that FDA was correct to withhold the competitive information with the exception of a ruling that the agency can release the number of birds per cage. FDA has not appealed that part of the lower court’s findings.
“The district court correctly determined that the information at issue on appeal is protected from disclosure under Exemption 4 of the FOIA, “ government attorneys say. “As the court explained, release of that information would be likely to cause substantial competitive harm to the egg producers at issue. FDA’s declarants explained in detail how competitors could use the redacted information to calculate the egg producers’ production capacity and then underbid the producers by offering to provide their customers the same number of eggs at a lower price or a larger number of eggs for the same price.”
“As the evidence reflects, this practice could be especially damaging to small farms and egg producers, whose large national competitors could drive them out of business,” they added. “FDA’s declarants also showed that competitors would be able to use the specific redacted information about the structure of the egg producers’ hen houses to improve on their own production processes. ALDF made no contrary showing.”
The Cotati, CA-based ALDF then took its FOIA appeal about Texas egg production information to the U.S. District Court for Northern California, which is how the case on appeal went to the Ninth Circuit.
“There is no such thing as too much transparency when it comes to our food supply,” says ALDF Executive Director Stephen Wells. “The FDA should stop protecting the interests of the egg industry above the interests of the public. The FDA works for the American public and has an obligation to ensure the safety of the food we eat.”
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