Editor’s note: Each Spring, attorneys Bill Marler and Denis Stearns teach a Food Safety Litigation course in the LL.M. Program in Agricultural and Food Law at the University of Arkansas School of Law. This specialized program for attorneys brings together those who are interested in our food system, from farm to table. As a final assignment, students are asked to write an op-ed or essay on food safety, with the best to be selected for publication in Food Safety News. The following is one of the essays for 2020.

By Briana Leach

As the U.S. prepares to re-open after an unprecedented moment of pause during the COVID-19 pandemic, many people across the country have used this time for personal reflection. A moment to clean house, reconnect with family and lessen the noise, the nation could confront their lives and how they were living.  The anticipation of restrictions lifting and fear dissipating, the upcoming Fourth of July holiday reveals there’s more work to be done as plans form for the celebratory barbeque.  The influence of the meat industry has been lurking, invited into our homes and waiting for us at our favorite restaurants.  It has sweet-talked the legislature and befriended the executive branch, and at times betrayed us through the judicial branch.  The federal government should take this time to revisit its priorities, sensibilities and ideologies that call into question how unchecked influence is tainting our meat.

Voltaire’s words ring true, “with great power comes great responsibility.” There are four discrete moments that reveal the meat industry’s influence runs counter to public interest across the three branches of government. 

Legislative Branch: Smooth Operator
The ability to cultivate relationships and persuade Congress is an art form that special interest groups know well. They showcase how consolidated action, unifying on a narrow set of priorities and staying vigilant can defeat any incoming threats. Lobbyists are the perfectly positioned instrument to articulate and orchestrate their message to Congress in a way that is unmatched against a conflicted and disconnected public. The lobbyists trade their effort and experience, as well as campaign contributions, to solidify their objectives and ensure they will be called to serve again and again.  The meat industry is well acquainted with the importance of lobbyists, none of this yet triggering concern. It is only in examining how actions have consequences can we evaluate their approach.  

The meat industry effectively controls the Senate and House of Representatives by stopping a bill before it even reaches the floor. All legislation related to food and agriculture crosses the desks of the respective Agriculture Committees, so effort is targeted to build relationships, tailor strategic communications, and send influential campaign contributions to stay on the pulse of new developments.  For bills that do reach the floor, swift action is taken. Over the years, proposals to have meat processors become partially or fully responsible for the cost of USDA inspections, which are currently provided without cost for routine operation, are quickly shot down as “unwise and unnecessary,” without explanation or discussion. Ironically, industry also seeks to reduce the presence of USDA inspectors by seducing the agency into allowing their workers to complete the tasks on their tab– but more on that later. USDA cautiously weighs the ability to charge for services, understanding that cost could discourage necessary inspections or testing that could impact public health.

In the aftermath of the 1993 Jack-in-the-Box outbreak caused by Escherichia coli O157:H7, the fast-food company hired a food safety expert who advanced a concept developed in the 1960’s.  It was the Hazard Analysis Critical Control Point (HACCP) system, which took a contemporary, science-based approach to assure measurable action and monitoring necessary to address the chain’s food safety protocols.  By 1995, this led to the Pathogen Reduction HACCP systems rule (HACCP rule) to modernize food safety and ensure industry adoption. Representative Jack Walsh (R-NY), introduced an amendment to delay its implementation and require further negotiations expected to weaken USDA’s authority, while accepting campaign contributions from the meat industry.  This temporarily obstructed a national response known within the meat industry and ran counter to the public interest.

Executive Branch: USDA’s Puppet Master
The meat industry has also effectively curbed the regulatory power of the USDA if not completely de-regulating.  New meat inspection regulations shift the power and responsibility for food safety inspections to industry under a waiver program.  Specifically, the presence of USDA’s on-site inspectors would decline as industry workers learn the trade of identifying diseased and contaminated meat to take over these responsibilities. Trust but verify seems an appropriate response as USDA transitions oversight responsibilities to industry. However, it remains to be seen while also raising questions about detecting fraud and deception.   This change is compounded as industry has been successful in lifting regulatory limitations on processing line speeds.  Industry is in full command over how fast carcasses fly by to meet volume and efficiency demands, with their workers assuring us everything is fine.  Pathogen testing has had mixed results as they are not publicly disclosed, not dispositive to require a shutdown of operations, and are not complete to assess pathogens that continue to pose a risk. The unstated impacts of these changes will reduce the size and role of USDA, including their budget.

Executive Branch: Friends in High Places
As nurses protest and file litigation for lack of personal protective equipment (PPE) to fulfill their essential roles on the front lines of the COVID-19 pandemic, they call on President Donald. J. Trump to use the Defense Production Act (DPA) to focus manufacturers on this task. The DPA affords the President significant emergency powers including the ability to compel production of critical supplies.  The President has refused to answer the call of medical professionals.

Meanwhile, the President quickly signed an Executive Order (EO) to force meat processing facilities to continue operations despite concerns of worker exposure to COVID-19 amid recent facility closures. State and local governments instated facilities close and industry’s influence strikes again. The basis of the EO was deemed liability, likely as the meat industry sought indemnification while maintaining the status quo and failing to address the deficiencies.  The EO comes on the heels of litigation filed by an advocacy group on behalf of Smithfield workers to force changes for safe and adequate working conditions against the processing giant.  The lawsuit does not request monetary damages, instead is more of a desperate plea to workplace safeguards for some of the most vulnerable and exploited workers during the pandemic.  And worse yet, it strikes USDA’s own employees as the inspectors required to be at the facilities have also contracted COVID-19. The Occupational Safety and Health Administration (OSHA) has regulatory and statutory authority to oversee workplace health and safety, yet is squeezed out of the close relationship between USDA and the meat industry, therefore has no role to oversee slaughter, processing and packaging facilities.  Just before the EO was signed, OSHA and the Centers for Disease Control released joint guidance on meat processing facilities to highlight concerns.  However, the guidance is a mere suggestion as there is no legal basis for enforcement.  The guidance includes a COVID-19 assessment and control plan that sounds surprisingly similar to HACCP rule requirements, yet it is absent from the EO and likely to be also overlooked by USDA despite the extenuating circumstances. Finally, the EO cites the concerns over a “continued supply of protein for Americans” by singling out meat without regard for the many alternative sources of protein including dairy and produce, especially as other producers have desperately called out for support and made difficult decisions to destroy their product as a result of the broken supply chain. While animals are being euthanized at alarming numbers due to processing facility closures, the entire food supply chain has been disrupted resulting in unprecedented waste, yet only the meat industry has the President’s ear.

Judicial Branch: Profits over Protection
The EO seems open for a challenge over if the DPA can override the authority of federal and state government seeking to close these facilities out of concerns for public health and safety. The closure of a meat processing facility has significant economic impacts locally and nationally, though they must be balanced against the potential risks to workers, consumers and the public. Similar concerns echo throughout the food supply chain for dairy, fruit and vegetable relief to ensure the food supply. The language of the EO may bring it to the court system to reconcile or result in legislative action in the future.

USDA carefully navigates their role in policing the industry and protecting public health as the court’s interpretation of that exercise of power could be seen as overreach and struck down. Litigation can be a tactic to distract, exhaust and bankrupt your opponent, and the pressure put on an administrative agency seems to translate to minimal enforcement and repercussions on industry. USDA can be reluctant to act and when it does, often takes a measured response that many argue is inadequate. The HACCP rule has incredible promise to monitor and control for pathogens.  If microbial tests repeatedly exceeded the established limits, USDA was authorized to shut down the processing facility.  However, Supreme Beef Processors wasn’t about to let failed tests for Salmonella threaten the removal of FSIS inspectors from their facility and effectively cut off their profits – so they quickly filed a lawsuit. They argued that USDA was acting outside the scope of its authority in limiting a naturally occurring bacteria in its meat when USDA could not identify a pathogen control failure and the court agreed. The failure to condemn meat at the initial processing facility meant it received USDA’s inspection approval and began flowing to the consumer. Supreme Beef Processor’s supplier was delivering meat that already exceeded the thresholds. The meat industry also understood the importance of this first challenge to the HACCP rule, and was able to intervene on behalf of Supreme Beef Processors on appeal. While exceeding allowable tolerances, even repeatedly, was held as not to be determinative for USDA to close a processing facility, it hasn’t removed the value of the HACCP rule. In the aftermath of this unfavorable resolution, continued foodborne outbreaks have occurred and the meat industry continues to seek further opportunities to self-regulate and avoid liability. This indicates a race to the bottom on a product we can’t appreciate the risk. The court and meat industry continue to hold the consumer responsible for pathogen eradication by proper cooking and food handling practices.

USDA has been challenged by advocacy groups claiming it is reverting back to sensory detections, as fecal matter is found in meat when it should be considered an adulterant thereby removing that meat from the food supply. Strains of E. coli are recognized as adulterants, and USDA is considering a petition to also include Salmonella. Science and the courts seem to be at odds. By balancing the need for clean and quality meat against high volume demands by industry, it may begin to expose novel ways to become better informed while increasing consumer awareness.  The meat industry was convinced that E. coli O157:H7’s classification as an adulterant would be too costly and complicated to administer, yet today it seems industry was calling wolf. As a result of the limitations in liability, industry remains motivated by profit and business as usual.

The federal government has an opportunity to overhaul food safety though it requires a united approach.  In recognizing this system developed haphazardly over time, USDA should take the lead to develop a comprehensive plan rather than continuing to plug holes and satisfy the meat industry.  Foodborne illness remains a concern as today’s meat is not recognized for what it is, and attempts to raise its quality and safety are dismissed as a threat to industry profits.  There is no greater time for USDA to be vigilant and aware of food safety and workplace conditions as a result of this pandemic.   When examining a supply chain, the choice of ignoring science, concealing information, and focusing on profits above all else further reveals why the meat supply chain is broken.  Its time to identify problems early and often, where they can become data points to drive better decisions and ensure the end product is predictably safe. Shortcuts, which industry may decide to make, should also have consequences. As we look towards the Fourth of July, it’s time to declare independence from public health threats. Afterall, if the story of COVID-19 originated from a processing facility in China, shouldn’t that encourage us to pay more attention at ours?

  1. More contemporary attributions include Winston Churchill and Spiderman’s Peter Parker.
  2. Safety Last: The Politics of E. coli and Other Food-Borne Killers. The Center for Public Integrity. Page 12. https://cloudfront-files-1.publicintegrity.org/legacy_projects/pdf_reports/SAFETYLAST.pdf
  3. Safety Last: The Politics of E. coli and Other Food-Borne Killers. The Center for Public Integrity. Page 11. https://cloudfront-files-1.publicintegrity.org/legacy_projects/pdf_reports/SAFETYLAST.pdf
  4. Modernization of Poultry Slaughter Inspection, 79 FR 49566-01, 2014 WL 4090682, 9 CFR 381, 500;
    Modernization of Swine Slaughter Inspection, 84 FR 52300-01, 2019 WL 4750800, 9 CFR 301, 309, 310;
  5.  Ginsburg, Carl. NYS Nurses Association Files Three Lawsuits to Protect Nurses Health and Safety. New York State Nurses Association. April 20, 2020. https://www.nysna.org/press/2020/nys-nurses-association-files-three-lawsuits-protect-nurses-health-and-safety
  6.  Chiu, Allyson. ‘We’re beyond angered’: Fed-up nurses file lawsuits, plan protest at White House over lack of coronavirus protections. The Washington Post. April 21, 2020. https://www.washingtonpost.com/nation/2020/04/21/nurse-protection-coronavirus/
  7.  P.L. 81-774, 50 U.S.C. § 4501 et seq.
  8.  Executive Order on Delegating Authority Under the DPA with Respect to Food Supply Chain Resources During the National Emergency Caused by the Outbreak of COVID-19. Executive Order. White House. April 28, 2020. https://www.whitehouse.gov/presidential-actions/executive-order-delegating-authority-dpa-respect-food-supply-chain-resources-national-emergency-caused-outbreak-covid-19/
  9.  President Donald J. Trump Is Taking Action To Ensure The Safety Of Our Nation’s Food Supply Chain. Fact Sheet. White House. April 28, 2020. https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-taking-action-ensure-safety-nations-food-supply-chain/
  10.  Chalfant, Morgan. Trump to sign order compelling meat plants to stay open during pandemic. The Hill. April 28, 2020. https://thehill.com/homenews/administration/495055-trump-order-compelling-meat-plants-stay-open-coronavirus-outbreak
  11.  Rural Community Workers Alliance and Jane Doe, Plaintiffs, v. Smithfield Foods, Inc. and Smithfield Fresh Meats Corp., Defendants., 2020 WL 1969164 (W.D.Mo.)
  12.  Executive Order on Delegating Authority Under the DPA with Respect to Food Supply Chain Resources During the National Emergency Caused by the Outbreak of COVID-19. Executive Order. White House. April 28, 2020. https://www.whitehouse.gov/presidential-actions/executive-order-delegating-authority-dpa-respect-food-supply-chain-resources-national-emergency-caused-outbreak-covid-19/
  13.  Jiang, Weijia and Melissa Quinn. Trump invokes Defense Production Act to keep meat processing plants open amid coronavirus crisis. CBS News. April 29, 2020. https://www.cbsnews.com/news/meat-plants-defense-production-act-trump-executive-order/
  14.   Supreme Beef Processors, Inc. v. United States Dep’t of Agric., 113 F.Supp.2d 1048 (N.D.Tex.2000), aff’d, 275 F.3d 432 (5th Cir.2001).

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