Brooks Law Digest: Food Safety Inspection Service

USDA’s Food Safety Inspection Service has announced a recall of 3,140 pounds of “Nick’s FAMOUS Hickory Smoked Pork Bar-B-Q” ready-to-eat smoked pork products due to possible listeria contamination. The products originated from Nick’s Famous Bar-B-Q, a Nashville, Tennessee establishment and were distributed to several institutions, including school locations in North Carolina. FSIS discovered the problem during an inspection of the producer’s records.

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.

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.

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.

H.R. 5246, the ‘‘Expanding Markets for State-Inspected Meat Processors Act of 2021’’ would amend the Federal Meat Inspection Act in order to allow the interstate sale of meat that has been inspected by the respective state agency, rather than the U.S. Department of Agriculture. Until recently, Wyoming had no federally inspected animal agriculture facilities, precluding Wyoming-based producers from selling to out-of-state consumers. The bill has not yet been assigned to a committee. Reps. Liz Cheney and Carol Miller introduced the legislation as they did in 2020.

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 USDA’s Food Safety and Inspection Service has published an advanced notice of proposed rulemaking, soliciting comments to guide the agency’s future labeling requirements for cell-cultured animal products. The FSIS and FDA agreed in 2019 that both agencies will retain regulatory oversight of certain aspects of the production and distribution of products produced using animal cell culture technology, determining that FSIS will have authority over the labeling process. FSIS is accepting comments through November 2, 2021.

The Food Safety and Inspection Service has responded to two recommendations from the Office of Inspector General regarding the agency’s rulemaking process for the “Modernization of Swine Slaughter Inspection” proposed rule.

The Animal Welfare Institute and Farm Sanctuary, represented by the Harvard Animal Law & Policy Clinic, have filed suit against the United States Department of Agriculture, alleging that the agency has failed to require humane handling of birds at slaughter.

The United States Department of Agriculture’s Food Safety and Inspection Service will host a webinar on August 18, 2020 to discuss animal raising claims made on food labels.