NATIONAL MEAT
ASSOCIATION h 1970
Broadway, Suite 825, Oakland, CA 94612
(510) 763-1533 Fax (510) 763-6186 h Email Address: [email protected] h http://www.nmaonline.org
Edited by Kiran Kernellu
March 24, 2003
UNPRECEDENTED COURT DECISION IN OAKLAND
Last Friday, a 9-person jury in Oakland returned a verdict in The
Veal Connection Corp., v. Roy Thompson, et al awarding $1.75 million to the
Plaintiff to compensate it for its loss of earnings, earning capacity and
business opportunities as a result of the deprivation of its Constitutional
rights. The jury also found that two of the Defendants participated in a
conspiracy to violate the Plaintiffs’ Constitutional rights because they were
motivated by evil intent or because they acted with reckless or callous
indifference to Plaintiffs’ rights.
The three Defendants in this Bivens action are employees of the
Food Safety & Inspection Service and were carrying out enforcement actions
in 1995 and 1996 against The Veal Connection, also known as Velasam Corp., a
processor under federal inspection in Petaluma, CA. Out of respect for their professional working relationship with
National Meat Association over many years, we have chosen not to name the FSIS
Defendants here. The Plaintiff, Velasam Corp., is a member of National Meat
Association. A companion case, Velasam Corp. v. USDA, was conducted
concurrently in the same United States District Court Northern District of California
Oakland Division before Federal Judge Claudia Wilkens, and will be decided by
Judge Wilkens after she has received briefs from the parties.
The jury case closely examined the conduct of inspection activities at
Velasam. The jurors were asked very
specific questions about the withdrawal of inspection from the company,
including:
“Was … (the)
decision not to authorize reinstatement of inspection services … done in
retaliation for complaints made by Plaintiffs to government officials?”
“Would …(the
official) have taken the same action in the absence of Plaintiffs’ complaints?
“Did
(Defendant) cause the issuance of PDRs to Velasam … in retaliation for
complaints?
“Would
(Defendant) have taken the same action even in the absence of Plaintiff’s
complaints?
“Did
(Defendant) continue the suspension … in retaliation for complaints made by
Plaintiffs to government officials?
“Would
Defendant have taken the same action even in the absence of Plaintiffs’
complaints?”
And finally, the jury was asked whether the Defendants engaged in a
conspiracy to violate the company’s Constitutional rights? Answers to these
questions led to the jury verdict. In
his closing arguments, the Plaintiffs’ lawyer told the jury that the Bill of
Rights and the Constitution protect the people from the government, not the
government from the people.
This is the third time that USDA has been on the losing side in
litigation about its enforcement activities since 1999. The first instance, Supreme Beef Corp. v.
USDA, was upheld in the 5th Circuit Court of Appeals even though
the company went out of business. NMA
was an Intervenor in Supreme Beef. The second instance, Nebraska Beef
v. USDA, was settled with a Consent Decision that reconfirmed that the
company would comply with USDA regulations to which it is committed by
law. Any proposals to revise current
meat inspection statutes need to be considered in the context of these
occasional, but nevertheless significant, cases of abuse where FSIS officials
have gone beyond not only the scope of present law, but also the scope of the
Constitutional protections. NMA hopes
that the Secretary of Agriculture will make a strong commitment to putting in
place effective mechanisms to prevent and protect inspection personnel from
ever again being found by a jury to have engaged in retaliatory conduct or a
conspiracy to violate a processor’s civil rights. Food safety, and in this case, safe meat and poultry products, is
every bit as important to the meat and poultry industry as it is to the
government. The new decision in Oakland confirms that both industry and
government are required to abide by the law and the Constitution. All of us in
both the private and public sectors would be well-advised to engage in
cooperative development of food safety strategies that are fair to both
inspectors and industry. NMA is ready to participate in this process.
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A MODEL SWIFT
Swift & Company has responded to claims from five U.S. lawmakers that it acted improperly last year at the time of a 19 million pound recall involving its Greeley, CO plant. According to Cattle Buyers Weekly (CBW), the company’s “vigorous and comprehensive” response is part of its new openness regarding its business. Indeed, Swift & Company has invited media and stakeholders to view its Greeley plant. The company has also invited some lawmakers, including one of the authors of the letter criticizing the company’s conduct, to view its Greeley operations. CBW reported that observers have noted that Swift serves as a model for how all meat companies should handle food safety and other issues.
Swift & Company president John Simons detailed the model behavior of the
company before, during and after the recall of last summer in a letter to
Agriculture Secretary Ann Veneman. He pointed out that during the time of the
initial recall, there weren’t any government standards set for minimum testing
of ground beef products or beef trimmings for E. coli. Of its own
volition, ConAgra (the company that operated the Greeley plant before and
during the recall) had already been testing 30% of its trimmings to be used in
ground beef. Shortly after the recall, it tested 100%, the first major
processor to do so. This practice was extended to all of its plants. Then the
company instituted a “test and hold” procedure. All of its test results are and
have been fully documented. These results are readily available to FSIS
inspectors, as is the case in all plants. Simons also noted that neither
ConAgra nor Swift & Company ever knowingly circumvented USDA regulations,
and that no one has put forth any evidence to support the allegations that have
been made against the companies.
ELECTRONIC
NEWSLETTER
Lean Trimmings and
Herd on the Hill are offered electronically. If you’d like to receive
the newsletter via e-mail, please contact Kiran Kernellu at [email protected] or 510-763-1533.
Receive the latest news every Monday afternoon in your Inbox instead of waiting
for it in the mail!
NMA reports news items that are of special interest to
its readers, and provides information that they may want to be able to
access. Below are links to the Federal
Register, AMS, APHIS, and FSIS, respectively:
http://www.access.gpo.gov/su_docs/aces/aces140.html
ANIMAL HANDLING VIDEOS
NMA has available two
videotapes on animal handling, “Animal Stunning for Stunners,” and “Animal
Handling in Meat Plants.” NMA members may purchase theses videos at a
discounted price. Please contact Julie Ramsey at [email protected] or 510-763-1533
for more information.
ROUNDTABLE SEMINAR TAPES
Audio tapes of the interactive roundtable seminars at NMA’s 57th
Annual Convention are now available! Don’t miss out on the thought-provoking
and challenging questions and answers from experts and attendees during these
twelve sessions: Preventing H7; What Works; Making RTE Products Safe;
Sampling & Testing Methods; The Workplace Q&A; Industry Consolidation;
Security: Business & Industry; Managing the Paper Trail; Standards for
HACCP Validation; Industry-Government Working Together; COOL or NOT COOL! &
Nutrition; Telling the Meat Industry Story; and Moving Forward with Branded
Meats. Contact NMA at [email protected]
or 510-763-1533 to request an order form.
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MODERNIZING MEAT INSPECTION
Agriculture Secretary Ann Veneman announced options under consideration for modernizing meat inspection during remarks at the Washington 2003 Food Safety Summit and Expo last week. Veneman said that USDA is considering actions such as mandatory notification to USDA when a federal establishment has reason to believe that meat or poultry has been adulterated or misbranded. Additionally, the Department will consider authority to impose civil penalties after notice in writing and continued lack of compliance. The authority would involve due process before a Departmental administrative law judge, and liabilities would be limited to penalties based on continued noncompliance. Also, cease-and-desist orders and potential suspensions at earlier phases and on an expedited basis arising from HACCP violations may be considered. However, Veneman said these ideas are not the only options.
NMA’s position on efforts by certain legislators, who have introduced similar initiatives, either attached to legislation or as separate bills, during the past several years has been that USDA already has the authority it needs to carry out its responsibilities. Further, the additional authorities suggested do nothing to enhance food safety and security and will only lead to more arbitrary enforcement actions by USDA inspectors. NMA agrees with others who have said that USDA has never made a case as to why it needs civil monetary penalty authority.
NMA has supported the development of HACCP, and was a charter member of the International HACCP Alliance, which was formed in 1994, well before the development by USDA of regulatory HACCP. HACCP is designed to ensure that science drives regulatory controls and is a true effort to make product safer for consumers.
As we report elsewhere in this week’s newsletter, much remains to be done to improve the meat and poultry inspection system, and NMA is prepared to be a proactive participant in the process to identify appropriate changes. However, the perceived noncompliance with regulatory requirements based upon USDA’s bookkeeping records is not a manifesto for new and harsher legal authorities.
The Secretary said that USDA will “work with Congress and our partners to consider various ideas” on her expectations. Once again, NMA is prepared to be a proactive “partner” in such efforts, and opposes piecemeal amendments to the Federal Meat Inspection Act, such as those set forth in H.R. 3956 and similar legislation, as they do not benefit consumers, the inspection process, or industry.
COOL
The National Pork Producers Council has called for the repeal of COOL. Successful Farming recently reported that Senator Chuck Grassley (R-IA), who heads the Senate Finance Committee and is a member of the Senate Agriculture Committee, said that he has not heard of any plans to reopen the farm bill to repeal COOL.
Grassley also said he knows packers oppose COOL. He said he thinks consumers have the right to know the origin of meats. “Why shouldn’t consumers know that their meat is coming from Mexico, Canada, Australia and New Zealand as well as the United States?” he asked in the report. “People are thinking they’re eating American meat, when it’s not,” he said. That is an economic harm to American producers, he reportedly said.
Grassley also reportedly said he thought labeling should apply only to meat that’s imported, not meat raised in the U.S.
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ANNUAL AMS INDUSTRY CONFERENCE FOR CONTRACTORS &
SUPPLIERS
The Livestock and Seed Program of the Agricultural Marketing Service (AMS) has invited current and potential contractors, meat suppliers and processors, and other interested parties to participate in the annual conference for the Department of Agriculture’s commodity purchase and distribution program for meat and fish items. The conference will be held at the Hilton Kansas City Airport, 8801 N.W. 112th Street, Kansas City, MO 64153; Phone: (816) 891-8900. Activities include a Technical Documentation Workshop, Processors Forum, and the General Industry Session. Following are the dates of the conference:
Pre-registration for the conference is requested by April 11, 2003. You are encouraged to submit questions and comments in advance so that time can be allocated for discussion. NMA members contact Kiran Kernellu at 510-763-1533 or [email protected] for a registration form and related information. If you would like additional information, please call Sue Olson or Dorothy Borja at (202) 720-2650.
NATIONAL MEAT ASSOCIATION
NMA - East: 1400 - 16th St. N.W., Suite 400, Washington D.C. 20036 Ph. (202)
667-2108
NMA - West: 1970 Broadway, Suite 825, Oakland, CA 94612 Ph. (510) 763-1533 Fax (510) 763-6186
Edited by Kiran Kernellu
March 24, 2003
S. 2803 - SAFER MEAT, POULTRY, AND FOOD ACT
S. 2803, the “Safe And Fair Enforcement and Recall for Meat, Poultry, and Food Act” (SAFER Meat, Poultry, and Food Act) was introduced on July 26, 2002 by Senators Tom Harkin (D-IA) and Kent Conrad (D-ND) in the 107th Congress. The bill was referred to the Committee on Agriculture, Nutrition, and Forestry, which was then chaired by Senator Harkin. Similar legislation, namely S. 506, has now been introduced in the 108th Congress by Senator Richard Durbin (D-IL). The Committee’s Chair is now Senator Thad Cochran (R-MS).
S. 2803 would amend the three major federal statutes authorizing regulation of virtually all foods in interstate commerce to:
1) Require any person, other than the consumer, to report to the federal government any food that the person has reason to believe is adulterated or misbranded;
2) Authorize the federal government to order mandatory recall of any violative food upon receipt of such notice or by other means, if there is a reasonable probability that consumption of the food would present a threat to public health;
3) Authorize huge civil money penalties for violation of any federal rules; and
4) Authorize withdrawal of inspection for meat and poultry establishments upon a willful violation or more than one violation of even minor rules under the meat or poultry inspection acts.
Now, as in the past, NMA opposes the aforementioned additional authorities because they will not improve our current food safety system. Further, there is no data that demonstrates the need for such changes. One real consequence of legislation like this is the regulatory abuse it could invite towards the meat industry. For a more detailed analysis of this legislation call or write Shawna Thomas at (202)-518-6383 or [email protected].
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NMA/SMA
VISIT TO WASHINGTON, D.C.
Leaders of NMA
and Southwest Meat Association (SMA) will make their annual visit to
Washington, D.C. April 8-10, 2003. We invite our members to join us in meeting
with legislators and regulators and helping to educate them about the industry.
Look for more information in coming issues of Lean Trimmings or contact
us at [email protected]
or 510-763-1533. We hope to see you in Washington!
FSIS DIRECTIVE 5420.1
FSIS has published
Directive 5420.1 entitled “Homeland Security Threat Condition Response-Food
Security Monitoring Procedures.” This Directive is available online at www.fsis.usda.gov
and is summarized as follows.
In the event the Department of Homeland Security declares a threat that may or may not involve the nation’s food supply, this directive details actions to be immediately undertaken by inspection program personnel. A declaration of a Threat Condition Orange indicates a high risk of terrorist attacks while a Threat Condition Red indicates a severe risk of terrorist attacks. Note that plants are not required to develop a security action plan and inspectors should not issue a noncompliance in the absence of such a plan.
If a Threat Condition Orange or Red occurs with no threat to the food supply, inspectors will notify the establishment. The IIC will monitor the establishment for unusual activity. Further actions will be taken by the IIC if notified by the District Office.
If a Threat Condition Orange occurs with a threat to the food supply, the IIC will immediately notify the establishment and emergency food security monitoring procedures will be executed instead of Other Consumer Protection procedures.
If a Threat Condition Red occurs with a threat to the food supply, the IIC will receive specific instructions from the District Office to take in addition to the aforementioned emergency procedures. Instructions may include taking samples of specific products to protect public health and taking regulatory actions. Import inspectors will re-inspect 100% of imported product.
The District Office will communicate to the IIC the downgrading of a threat condition. The IIC will inform the establishment and normal operating procedures will resume.
Please contact Julie Ramsey ([email protected])
or Roberto Escalante ([email protected])
at (510) 763-1533 for this directive or more information.
TESTIMONY TO HOUSE APPROPRIATIONS AGRICULTURE SUBCOMMITTEE
Last Thursday the House Appropriations Agriculture Subcommittee met to hear testimony from Agriculture Department Under Secretary for Food, Nutrition and Consumer Services (FNCS) Eric Bost about the 2004 appropriations requests for programs under FNCS’ jurisdiction. Representative Henry Bonilla (R-TX) chaired the hearing, and Ranking Member Marcy Kaptur (D-OH), and Representatives Jo Ann Emerson (R-MO), Virgil Goode (I-VA), Rosa DeLauro (D-CT), Maurice Hinchey (D-NY), and Sam Farr (D-CA) were in attendance.
Under Secretary Bost spoke briefly about FNCS’ priorities in the budget, such as ensuring access for eligible recipients, improving program integrity, and battling obesity and other nutrition-related diseases. The budget request supports good health promotion through family-oriented nutrition education campaigns; breastfeeding through the Special Supplemental Nutrition Program for Women, Infants and Children (WIC); and funding farmers’ market initiatives to the senior and school age populations.
NMA members contact Kiran Kernellu at 510-763-1533 or [email protected] for a copy of the Olsson, Frank & Weeda memo on this meeting.