Well Done


Law clerk Angela M. Silva contributed to this post.

The designation of the food industry as critical infrastructure in the context of the coronavirus (COVID-19) pandemic has led to necessary and sensible efforts to realign the federal regulatory landscape to facilitate this essential activity, without compromising the public interest.

From the perspective of FDA regulated companies, this has essentially involved a changed environment, where the agency has announced its willingness to step back, physically and otherwise, from many routine inspections and the enforcement of various pending labeling requirements. However, the meat, poultry, egg product, and catfish industries, overseen by USDA’s Food Safety and Inspection Service (FSIS), confront a different reality because statutory requirements of carcass-by-carcass and continuous inspections dictate daily interaction, often in close quarters, between the inspector and the inspected.

In this context FSIS has communicated its ongoing commitment to maintaining continuity of the inspection service. While suggesting that companies can and should look for ways to moderate demand through scheduling changes, use of custom exemptions, and other techniques, FSIS has also shown a willingness to move personnel otherwise assigned to positions on the plant floor where needed.

The other critical variable at this moment is protection of the public health. In this area, FSIS is advocating and anticipating a two-way street. It expects to be notified of any incidence of COVID-19 illness among plant personnel and is willing to provide such notice regarding inspection personnel. It has also indicated that such issues do not provide an underlying basis for any restrictions upon plant operations or the movement of products in commerce.

Like FDA, FSIS is also demonstrating flexibility with labeling requirements. Its recent announcement reflects its willingness to accommodate the massive shift of product away from food service to retail without unnecessary disruption. Note, however, that given the different realities of the inspection system, such forbearance comes with a deadline of May 26, 2020.

More broadly, FSIS has communicated an openness to other types of regulatory flexibility on a case-by-case basis as new issues emerge. Companies pursuing such issues will obviously need to be in a position to assert that food safety concerns are not being compromised, ideally within the Hazard Analysis and Critical Control Point (HACCP) framework that drives the agency’s perspective.