Brooks Law Digest: Factory Farming

The USDA’s Food Safety Inspection Service has announced the recall of approximately 2,048 pounds of Espi’s Sausage and Tocino Co. chicken and pork hot dog products “that may be adulterated with Listeria monocytogenes.” FSIS discovered that the producer had confirmation from a third-party lab that a product contact surface had tested positive for listeria, after the products already had been shipped to a distributor in California and further distributed to retail locations.

Effective October 25, 2021, the USDA is eliminating the Animal and Plant Health Inspection Service’s Voluntary Trichinae Certification Program and the associated agency regulations due to low participation. The USDA established the voluntary certification program in 2008 in order to offer certification to pork producers who met specific management criteria for the reduction or elimination of swine exposure to Trichinella (round worms). The program currently has only two participants.

The USDA has announced changes to inspection requirements for “kit products,” or multi-component packaged meals that contain separately-wrapped meat or other animal products. FSIS no longer will be conducting mandatory inspection of kit product assembly provided that the included meat products already have been inspected and the manufacturer meets specified labeling requirements.

Pennsylvania House Bill 1874 would provide for regulating the meatpacking and food processing industry by creating facility health and safety committees in the workplace; establishing the industry workers' rights coordinator within the state Department of Labor and Industry; and providing for public health emergency protections for individuals working in meat packing, slaughter house, egg production, and other similar facilities. The bill has been referred to the Pennsylvania House Committee on Labor and Industry.

The 9th Circuit Court of Appeals has vacated a National Pollutant Discharge Elimination System (NPDES) Permit for Idaho CAFOs, finding that the permit issuance was “arbitrary, capricious, and in violation of law because it lacks sufficient monitoring provisions to ensure compliance with its discharge limitations.” The opinion contains substantial detail about CAFO manure pollution and EPA discharge monitoring obligations. The permit was challenged under the Clean Water Act by Food & Water Watch and Snake River Waterkeeper.

USDA’s Food Safety and Inspection Service has responded to Harvard Animal Law & Policy Program’s petition for FSIS to develop a labeling approach for “cell-based” meat and poultry products that respects First Amendment commercial speech protections by not requiring new standards of identity and not banning the use of common or usual meat or poultry terms or other product terms specified in current codified standards of identity. In its letter, FSIS “agrees that more information is necessary to develop new labeling requirements for these products,” stating that in response to the Harvard petition the agency filed an advance notice of proposed rulemaking (ANPR) on September 3, 2021, “to request comments pertaining to the labeling of meat and poultry products comprised of or containing cultured cells derived from animals subject to the Federal Meat Inspection Act or Poultry Products Inspection Act.” Conversely, FSIS has denied a February 9, 2018, petition by U.S. Cattlemen’s Association which urged the agency to exclude “cell-based” meat and plant-based meat substitutes from the definition of “beef” and “meat,” citing the FDA’s exclusive jurisdiction over plant-based products and the USDA’s September 3, 2021, ANPR regarding labeling of cultivated meat.

The USDA’s Food Safety and Inspection Service published a new directive relating to chain of custody and other evidence collection to be employed during the course of exercising the agency’s broad inspection authority under the Federal Meat Inspection Act, Poultry Products Inspection Act, Egg Products Inspection Act, and Humane Methods of Slaughter Act. The new directive provides specific new guidance on protocols for collection of photographic evidence, investigative samples, and overall evidence retention and disposal.

The District of Columbia Court of Appeals has issued a decision reversing a lower court’s ruling dismissing a lawsuit brought by the Richman Law Group, Animal Legal Defense Fund, and Public Justice alleging that the company’s “Natural Choice” advertising misleads consumers. The Court ruled that nonprofit organizations have standing to sue to enforce the D.C. Consumer Protection Procedures Act and that the lawsuit’s claims are not preempted by federal law.

The Food Safety and Inspection Service has announced a virtual meeting of the National Advisory Committee on Meat and Poultry Inspection (NACMPI). At the meeting, “FSIS will present two sets of charges to the Committee: (1) To consider how FSIS should clarify the Agency’s positions on the custom and retail exemptions to ensure that meat, poultry, and egg products produced under the exemptions are safe, wholesome, and correctly labeled and packaged and (2) to consider actions FSIS should take to prevent and reduce illnesses associated with the handling or consumption of frozen, raw, stuffed not ready-to-eat (NRTE) poultry products, which may be breaded and par-fried and may appear ready-to-eat (RTE) to consumers.” The meeting will take place on September 27 and 28.

Senate Bill 2619 and House Bill 4999 would prohibit states and local jurisdictions from prohibiting the sale of agricultural products using certain practices if the goods were produced in other jurisdictions. The bill would create a private right of action to challenge any such state prohibitions and would order courts to issue a preliminary injunction to prevent them from taking effect until final judgment is rendered in the challenge. The bill is similar to the King Amendment to the U.S. Farm Bill which targeted state laws banning the sale of products derived from animals raised using forms of extreme confinement, such as battery cages, gestation crates, or veal tethering.