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YOUR SOURCE ON FOOD LITIGATION AND REGULATION

Recent public controversy surrounding an issue many readers would probably rather not hear about—whether it is acceptable to use heart meat in products labeled as “ground beef”—has raised a series of questions involving not simply what might wind up on your grill this summer, but also how USDA’s Food Safety and Inspection Service (FSIS) goes about developing, changing, and publicly announcing policy developments and changes in the labelling of the meat and poultry products it regulates.

A bit of personal history is in order: This author, formerly in government service, signed off on the FSIS policy memo in 1981,[1] which unequivocally stated that “heart meats were not to be allowed as a constituent of [a ground beef] product so labeled.”

To the best of my knowledge, this policy had remained in effect ever since, but I and others were informed otherwise at a recent meeting sponsored by the North American Meat Institute, where the issue was publicly discussed. A bit of digging since that time indicates that such a change (if in fact it can be called that) was referenced by FSIS in an online statement published in August 2016, which in turn can be traced back to a related reference in a Federal Register announcement issued in 2015.[2] In recent days, FSIS has supplemented this record with statements to the effect that such materials do not document any policy change but rather simply reinforce applicable law.[3]

This leaves us with many more questions than answers. Collectively, these materials appear to indicate that at some point in time prior to the 2015 Federal Register publication, FSIS was convinced that perpetuation of the 1981 policy was either unwise, unenforceable, or both. But there is virtually nothing on the public record that illuminates either the basis for this decision, or when or how it occurred.

If, as the materials suggest, FSIS believed at some point that it was legally mandated to reach such a conclusion, we would respectfully disagree. Notwithstanding the obvious potential for personal bias here, perpetuation of the traditional policy, as reflected in the 1981 announcement, was and remains entirely defensible because FSIS’s longstanding interpretation of the relevant ground beef standard (9 C.F.R. 319.15) falls well within its zone of regulatory discretion. If, on the other hand, FSIS made a discretionary decision to change such a policy, the rather limited trail of bread crumbs it left for the public to learn about the decision and/or its underlying rationale appears woefully inadequate to the task.

This episode also raises issues of transparency, clarity, and accountability in the labeling area that transcend the immediate controversy. FSIS prior label approval authority is a powerful regulatory tool that can be and needs to be exercised in a manner that ensures both the proper flow of information to the public and maximum uniformity of treatment to the regulated industry. The function’s continued credibility also underpins the statutory grant of federal preemption in this area[4] that helps insulate the meat and poultry industries from much of the state and privately driven litigation that have so plagued the food labeling landscape in recent years. Hopefully, a more complete airing of the issues of law, policy, and process that surfaced here will help to further enhance the continuing utility of the FSIS labeling system.



[1] FSIS Policy Memoranda, Clarification of "Meat" Definition in Chopped Beef, Ground Beef or Hamburger, Policy Memo 027, p. 24 (June 15, 1981), https://www.fsis.usda.gov/OPPDE/larc/Policies/Policy_Memos_082005.pdf.

[3] Food Safety News, USDA says beef hearts are now OK in ground beef (Feb. 3, 2017), http://www.foodsafetynews.com/2017/02/usda-says-beef-hearts-are-now-ok-in-ground-beef/#.WJstt2eQyUk

[4] 21 U.S.C. § 678.