The grip of the meat industry on the government – time for improvement? | Instant News


Opinion

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


As the US prepares to reopen after an unprecedented pause during the COVID-19 pandemic, many people throughout the country have used this time for personal reflection. One time to clean the house, reconnect with family and reduce noise, the nation can face their lives and how they live. Anticipating lifting restrictions and fear disappearing, the upcoming Fourth of July holiday revealed there was a lot of work to be done as a form plan for a barbecue celebration. The influence of the meat industry has lurked, invited to our home and waited for us at our favorite restaurant. It has sweetly talked about the legislature and made friends with the executive branch, and sometimes betrays us through the judicial branch. The federal government must take this time to review its priorities, sensitivities and ideologies that question how uncontrolled influences pollute our flesh.

Voltaire’s words rang true, “with great power comes great responsibility.” There are four separate moments that reveal the influence of the meat industry against the public interest in the three branches of government.

Legislative Branch: Smooth Operators
The ability to foster relationships and persuade Congress is an art form known to special interest groups. They show how consolidated actions, uniting in a narrow set of priorities and staying alert can defeat any incoming threat. Lobbyists are perfectly positioned instruments to articulate and organize their messages to Congress in an unparalleled way to a conflicted and disconnected public. Lobbyists trade their efforts and experiences, as well as campaign contributions, to strengthen their goals and ensure they will be called to serve repeatedly. The meat industry is very familiar with the importance of lobbyists, none of which have sparked fears. Only by examining how actions have consequences can we evaluate their approach.

The meat industry effectively controls the Senate and the House of Representatives by stopping bills even before reaching the limit. All laws related to food and agriculture cross the table of their respective Agriculture Committees, so that efforts are targeted at building relationships, adjusting strategic communications, and sending influential campaign contributions to keep abreast of new developments. For bills that reach the floor, quick action is taken. Over the years, proposals to have a meat processor become partially or fully responsible for the USDA inspection fee, which is currently provided at no charge for routine operations, was quickly shot down as “unwise and unnecessary,” without explanation or discussion. Ironically, the industry is also trying to reduce the presence of USDA inspectors by persuading agencies to allow their workers to complete tasks on their tabs – but more later. The USDA carefully considers the ability to charge fees for services, understanding that costs can hamper the necessary inspections or testing which can have an impact on public health.

As a result of the 1993 Jack-in-the-Box outbreak caused by Escherichia coli O157: H7, fast food companies hired a food safety expert who developed a concept developed in the 1960s. It is the Britical Control System Critical Control Point (HACCP), which takes a contemporary, science-based approach to ensuring the measurable actions and monitoring needed to address the chain’s food safety protocols. In 1995, this led to the rules of the Pathogen HACCP Reduction system (HACCP rules) to modernize food safety and ensure industry adoption. Representative Jack Walsh (R-NY), introduced an amendment to delay its implementation and requires further negotiations that are expected to weaken the authority of the USDA, while accepting campaign contributions from the meat industry. This temporarily inhibits the national response which is known in the meat industry and is against the public interest.

Executive Branch: USDA Puppet Master
The meat industry also effectively curbs the USDA’s regulatory power if it does not completely cancel regulation. New meat inspection regulations transfer the power and responsibility for food safety inspections to industry under the waiver program. In particular, the presence of inspectors at the USDA’s premises will decrease when industry workers study the trade in identifying sick and contaminated meat to take over this responsibility. Trust but verification seems the right response because the USDA transition oversees responsibility to the industry. However, that remains to be seen while also asking questions about detecting fraud and fraud. This change is exacerbated because the industry has managed to lift regulatory limits on processing line speeds. The industry has full control over how fast the carcasses fly to meet demand for volume and efficiency, with their workers assuring us everything is fine. Pathogen testing has mixed results because it is not publicly disclosed, is not dispositive to require termination of operations, and is incomplete to assess pathogens that continue to pose risks. The undisclosed impact of this change will reduce the size and role of the USDA, including their budget.

Executive Branch: Friends on High
When nurses protested and filed litigation for lack of personal protective equipment (PPE) to fulfill their important role at the forefront of the COVID-19 pandemic, they called President Donald. J. Trump to use the Defense Production Act (DPA) to focus producers on this task. DPA gave the President significant emergency power including the ability to force the production of critical supplies. The president has refused to answer the calls of medical professionals.

Meanwhile, the President quickly signed an Executive Order (EO) to force the meat processing facility to resume operations despite concerns that workers were exposed to COVID-19 amid the recent closure of the facility. State and local governments installed closed facilities and industrial influence invaded again. The EO basis is held accountable, possibly because the meat industry is seeking compensation while maintaining the status quo and failing to overcome shortcomings. The EO came at litigation demands filed by advocacy groups on behalf of Smithfield workers to force changes to safe and adequate working conditions against the processing giant. The lawsuit does not require monetary compensation, rather it is a desperate request for workplace protection for some of the most vulnerable and exploited workers during the pandemic. And worse, it attacks USDA employees themselves because the inspectors needed at the facility have also contracted COVID-19. The Occupational Safety and Health Administration (OSHA) has regulatory and legislative authority to oversee health and safety in the workplace, but is squeezed due to the close relationship between the USDA and the meat industry, therefore does not have the role to oversee slaughter, processing and packaging facilities . Right before the EO was signed, OSHA and The Centers for Disease Control released joint guidelines on meat processing facilities to highlight concerns. However, these guidelines are only suggestions because there is no legal basis for enforcement. This guide includes COVID-19 assessments and control plans that sound similar to the requirements of the HACCP rules, but are not in the EO and may also be ignored by the USDA even in increasingly difficult conditions. Finally, the EO cited concerns over “sustainable protein supply for Americans” by choosing meat without paying attention to many alternative protein sources including milk and products, especially because other producers have been desperately asking for support and making difficult decisions to destroy their products as a result of the chain damaged supply. While animals are put to bed with an alarming amount due to the closure of processing facilities, the entire food supply chain has been disrupted to produce unprecedented waste, but only the meat industry has the President’s ears.

Judicial Branch: Benefits of Protection
The EO seems open to the challenges above if DPA can override federal and state government authorities who are trying to close these facilities because of public health and safety issues. The closure of meat processing facilities has significant economic impacts locally and nationally, although they must be balanced with potential risks for workers, consumers and society. Similar concerns echoed throughout the food supply chain for the assistance of milk, fruit and vegetables to ensure food supply. The EO language can bring it to the court system to reconcile or produce legislative action in the future.

The USDA carefully navigates their role in overseeing the industry and protecting public health because the court’s interpretation of the exercise of power can be seen as outreach and destruction. Litigation can be a tactic for distracting, tiring and bankrupt your opponents, and the pressure on administrative institutions seems to translate into enforcement and minimal impact on the industry. The USDA can be reluctant to act and when it does, it often takes a measured response that many arguments are inadequate. HACCP rules have an extraordinary promise to monitor and control pathogens. If the microbial test repeatedly exceeds the limit set, the USDA is authorized to turn off processing facilities. However, the Ultimate Beef Processor will not allow a failed test for Salmonella to threaten the removal of FSIS inspectors from their facilities and effectively cut their profits – so they quickly file a lawsuit. They argue that the USDA acts outside the scope of its authority in limiting the bacteria that appear naturally in its flesh when the USDA cannot identify failure of pathogen control and the court agrees. Failure to curse meat at the initial processing facility means receiving USDA inspection approval and starting to flow to consumers. Supreme Beef Processor suppliers ship meat that has exceeded the threshold. The meat industry also understands the importance of this first challenge to HACCP rules, and is able to intervene on behalf of the Supreme Beef Processor on appeal. Although exceeding the allowable tolerance, even repeatedly, is considered not decisive for the USDA to close processing facilities, it has not eliminated the value of the HACCP rule. As a result of this unfavorable resolution, foodborne outbreaks continue to occur and the meat industry continues to look for further opportunities to regulate themselves and avoid responsibility. This shows a race to the bottom of a product for which we cannot appreciate the risk. Courts and the meat industry continue to hold consumers accountable for eradicating pathogens by correct cooking and food handling practices.

The USDA has been challenged by advocacy groups who claim it returns to sensory detection, because dirt is found in meat when it must be considered an adulterer so as to remove the meat from food supplies. The E. coli strain is recognized as an adulterer, and the USDA is considering a petition to also include Salmonella. Science and the court seem to be at odds. By balancing the need for clean, high-quality meat to high-volume demand by the industry, it may begin to expose new ways to get better information while increasing consumer awareness. The meat industry believes that the classification of E. coli O157: H7 as an adulterer will be too expensive and complicated to manage, but today it seems that the industry is calling wolves. As a result of limitations in liability, the industry remains motivated by profit and business as usual.

Conclusion
The federal government has the opportunity to examine food safety even though it requires an integrated approach. In recognizing this system which was developed haphazardly over time, the USDA must take the lead in developing a comprehensive plan rather than continuing to lay holes and satisfy the meat industry. Foodborne illnesses remain a concern because meat is currently not recognized for what it is, and efforts to improve its quality and safety are stopped as a threat to industrial profits. There is no greater time for the USDA to be alert and aware of food safety and workplace conditions as a result of this pandemic. When examining the supply chain, the choice to ignore science, hide information, and focus on profits above all else, increasingly reveals why the meat supply chain is broken. It’s time to identify problems early and often, where they can be data points to drive better decisions and ensure the final product is predictably safe. Shortcuts, which can be made by industry, must also have consequences. As we look towards the Fourth of July, it’s time to declare independence from the threat of public health. After all, if the story of COVID-19 came from processing facilities in China, wouldn’t that encourage us to pay more attention to us?

  1. More contemporary attributions include Winston Churchill and Peter Parker of Spiderman.
  2. Final salvation: E. coli politics and other food killers. Center for Public Integrity. Page 12. https://cloudfront-files-1.publicintegrity.org/legacy_projects/pdf_reports/SAFETYLAST.pdf
  3. Final salvation: E. coli politics and other food killers. Center for Public Integrity. Page 11. https://cloudfront-files-1.publicintegrity.org/legacy_projects/pdf_reports/SAFETYLAST.pdf
  4. Modernization of Inspections for Poultry Cutting, 79 FR 49566-01, 2014 WL 4090682, 9 CFR 381,500;
    Modernization of Inspection of Slaughtering Pigs, 84 FR 52300-01, 2019 WL 4750800, 9 CFR 301, 309, 310;
  5. Ginsburg, Carl. NYS Nurses’ Association Filed Three Claims to Protect Nurse 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 are very angry”: Nurses filed lawsuits, planned protests at the White House due to lack of coronavirus protection. The Washington Post. April 21, 2020. https://www.washingtonpost.com/nation/2020/04/21/nurse-protection-coronavirus/
  7. P.L. 81-774, 50 A.S.C. § 4501 and seq.
  8. Executive Order on Delegation of Authorities Under the DPA Regarding Food Supply Chain Resources During the National Emergency Caused by the COVID-19 Outbreak. 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 Takes 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 will sign an order to keep the meat factory open during the pandemic. Hill. April 28, 2020. https://thehill.com/homenews/administration/495055-trump-order-compelling-meat-plants-stay-open-coronavirus-outbreak
  11. Alliance of Rural Community Workers and Jane Doe, Plaintiff, v. Smithfield Foods, Inc. and Smithfield Fresh Meats Corp, Defendant., 2020 WL 1969164 (W.D.Mo.)
  12. Executive Order on Delegation of Authorities Under the DPA Regarding Food Supply Chain Resources During the National Emergency Caused by the COVID-19 Outbreak. 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 called for a Defense Production Act to keep meat processing plants open amid a 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. Agric., United States, 113 F. Supply.2d 1048 (N.D.Tex.2000), af, 275 F.3d 432 (5th Cir.2001).

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