Appeals Court Says USDA Exceeded Its Authority With Food Safety Tests

Handing a setback to food safety advocates, a federal appeals court ruled Friday that the U.S. Department of Agriculture can’t close meat-grinding facilities that repeatedly fail its food safety tests.

The U.S. 5th Circuit Court of Appeals in Texas upheld a lower court’s decision that it was beyond the authority of the USDA’s Food Safety and Inspection Service to shut down bankrupt hamburger maker Supreme Beef Processors, even though it failed the agency’s three-strike tests for salmonella contamination.

The court ruled that the agency did not have the authority to enforce the standards because salmonella did not qualify as an adulterant like the deadlier bacterial strain E. coli 0157:H7 under the language of the Federal Meat Inspection Act.

The presence of salmonella, the court decided, was not an indicator of the sanitary conditions of the plant, but rather of the condition of the beef that the processor had procured, which had passed earlier inspection.

Food safety advocates said the decision “turns back the clock” on food safety and consumer protection. “It just ensures that more contaminated ground beef will be in supermarkets,” said Caroline Smith DeWaal, food safety director of the Center for Science in the Public Interest.

The meatpacking industry praised the decision, saying the standards were arbitrary and unnecessary. Grinders “don’t add salmonella to their products,” said Rosemary Mucklow, executive director of the National Meat Assn. “These products have already been inspected [by Food Safety and Inspection Service] and passed.”

The ruling affects only meat-grinding plants, not the slaughter plants that supply them.

There are about 40,000 cases of sickness from salmonella each year and 1,000 deaths. However, even though the bacterium is commonly present in meat and poultry and can be killed in cooking, the court did not believe it was enough of a danger to public health to classify it as an adulterant.

Industrywide, the average incidence of salmonella in these tests is about 4%, DeWaal said, lower than the 7.5% required by the USDA. But when the inspection service first tested Supreme’s products for salmonella in 1998--the first year the agency began testing meat plants--47% of the samples tested positive for salmonella. Subsequent series of tests showed little improvement.

In October 1999, the inspection service threatened to close the plant if it did not comply. Supreme filed suit to block the closure. Although the company won that round, it later filed for bankruptcy.