NATIONAL MEAT ASSOCIATION h 1970 Broadway, Suite 825, Oakland, CA 94612

(510) 763-1533 Fax (510) 763-6186 h Email Address: [email protected] h

Edited by Jeremy Russell and Kiran Kernellu

July 8, 2002




Cattleman Mike Callicrate, joined by Herman Schumacher and Roger Koch, filed a class action complaint in the federal district court of South Dakota last week against the four largest beef slaughterers, Tyson Foods (IBP, inc.), Excel Corp., ConAgra Beef and Farmland National Beef. They have sought to bring the action on behalf of a class consisting of all those persons or business associations that owned any interest in cattle intended for slaughter (but not culled dairy and beef cows and bulls) and sold to Defendants on the open spot cash cattle market or on a formula basis, between April 2, 2001 and May 11, 2001. This was the period for which USDA subsequently acknowledged it had made a mistake in its computer program design, which caused its new mandatory price reports to undervalue the choice boxed beef cutout quote.


Callicrate, Schumacher and Koch are seeking monetary damages against the defendant packers whom they allege used, without correction or disclosure, incorrect and misleading boxed beef price information generated by USDA’s mandatory price reporting regulations and thereby allegedly unfairly, deceptively, and knowingly took unlawful financial advantage of the plaintiffs in violation of the Packers and Stockyards Act. The plaintiffs are also seeking damages under the common-law theory of “unjust enrichment” for the unearned and unjust financial benefits that they allege the packers reaped at the expense of the plaintiffs.


The lawsuit makes a mockery of the legislative process. Certain livestock producers pressed hard in 1999 and used all of their Congressional clout to ride rough-shod over meat packer objections to obtain enactment of the Livestock Mandatory Reporting Act of 1999. The new law was enacted with total disregard for a voluntary system that had worked remarkably well, and could have worked even better with cooperative producer-packer efforts. No, it was all or nothing, and the federal government was expected to foot the multi-million dollar bill to design a new mandatory reporting program. In addition, these producers and certain politicians pushed for prompt enactment of the mandatory reporting system, without allowing USDA proper time to implement and test the system.


USDA made a strong effort to implement the new law, hiring third-party computer designers to develop software to receive the mandatory reports from packers and to publish within hours same day aggregate reports for a variety of cuts and products. A proposed rule was announced on March 17, 2000, with a 30-day comment time. After this comment period closed, NMA continued to have concerns and expressed those concerns in a September 25, 2000 letter from its General Counsel to OMB’s top rule-making official. The letter predicted that implementation would be a “train wreck”:


Immediate implementation of this electronic reporting requirement, using an undisclosed and untested electronic reporting format, would be a “train wreck” and would violate the notice and comment requirements of the Administrative Procedure Act (APA), 5 U.S.C.§553.


NMA went on to object that the new system’s software had not been “beta” tested with packers who would be required to use it, and who would be subject to $10,000 civil penalties for failure to follow USDA’s requirements. NMA then met with OMB officials and reviewed these concerns in great detail. However, the final rule was published December 1, 2000 and implemented on April 2, 2001 with strong political support from the legislators and their producer constituents who had pressed for the new statutory requirements in the first place.


After the train wreck, which NMA had forecast, occurred in May 2001, NMA suggested that producers and packers join together to seek emergency legislation which would have allowed anyone who lost money on account of USDA’s error to document and recover the amount of their loss in a simplified proceeding in the United States Claims Court. Unfortunately none of the producer or packer groups with whom this idea was shared expressed any support for pursuing this remedy. Now, one year after the trainwreck, plaintiffs who apparently are some of the same people who pressed legislators and USDA for immediate enactment and implementation of an untested mandatory price reporting program, are seeking class action damages against packers on account of USDA’s mistakes.


If Callicrate and co-plaintiffs were to prevail in their lawsuit, thereby punishing packers for mistakes they didn't themselves make in the implementation of a system they never wanted and was forced on them by the plaintiffs, it would be the ultimate breakdown of the balance of powers. There must be a better way to do these things!


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An article in the June/July issue of Food Safety Magazine, co-authored by NMA Executive Director Rosemary Mucklow, illustrates some of the latest advances in food safety. The article provides clear and specific “significant structural changes and technological innovations that have come to the fore during the past 30 years,” and especially in the 1990s. Data from the U.S. Centers for Disease Control and Prevention (CDC) show a 23% reduction in bacterial foodborne illness since 1996, highlighting the efficacy of the industry’s vigilance.


As observed by Mucklow and co-author H. Russell Cross, technological innovations steer modern industry. The meat industry is the example, not the exception. “Pathogen intervention technology is arguably the single largest factor in improving the safety of meat products in the last ten years.” Such technology includes, but is not limited to, thermal, non-thermal and high pressure processing (HPP), chemical interventions, irradiation, ozone, vacuum packaging, refrigeration improvements, enhanced sanitation and detection methods, steam vacuums and pasteurization, antimicrobial rinses, HACCP, improved personnel training and increased employment of scientists and experts. It was noted by one individual involved in the design and construction of food processing facilities that “in production floors in ready-to-eat (RTE) facilities the rooms are pressurized with HEPA filtered air that is cleaner than any emergency room and most surgery wards in modern hospitals.” NMA will be providing reprints to its members. We encourage members to subscribe to the magazine by contacting [email protected].




The Draft Inspection-Related Issuances are available on a new page on the FSIS website. These drafts are being made publicly available while the documents are undergoing final FSIS clearance “in an effort to provide stakeholders with a copy of current thinking regarding upcoming instructions to in-plant personnel.” FSIS will provide a 7-calendar day review period for each issuance posted. The first two of these draft policy issuances, “HACCP Verification Procedures and the 3-day Reassessment Letter” and “Advanced Meat Recovery Using Beef Vertebral Raw Materials,” are available on the site now.




NMA Executive Director Rosemary Mucklow was acknowledged by the American Meat Science Association to receive its 2002 Special Recognition Award. This annual award is bestowed on individuals who have “set the standard for excellence in the Meat Science discipline” and will be presented to her in Michigan later this month.


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Last week a consortium of consumer advocates petitioned USDA for E. coli O157:H7 testing in carcasses and trimmings, reported FSNet. While FSIS has declared E. coli O157:H7 an adulterant in ground beef, it hasn’t checked for the pathogen in carcasses and trimmings. Food Chemical News reported that consumer groups said microbial testing of carcasses and trim should be in addition to and not a substitute for the current ground beef testing program. The petition stated “government testing of carcasses and trim before they enter a grinding facility – where meat from one contaminated carcass can be mixed with and contaminate the whole batch of ground meat – is a crucial addition to increase consumer protection.” Caroline Smith DeWaal of the Center for Science in the Public Interest said that “current testing isn’t working as well as it could or should.” She added that “the USDA isn’t testing ground beef at all at some plants, relying instead on the honesty of the industry, is unacceptable.” No illnesses have been reported as a result of recalls in the last two weeks of over 400,000 pounds of ground beef from two firms.




The mail-order business is similar to the take-out business – people want to be able to eat their food in their chosen environment. But, while barbeque is a staple of take out, you wouldn’t think it would find its way to the post office. That, however, is what’s happening. According to an article in the Wall Street Journal, American consumers are expected to order 10 million pounds of mail-order barbecue this year, more than twice what was being mailed 3 years ago.


The article notes that “mail-order barbeque has its drawbacks. Shipping can cost three times as much as the meat. It can also lose tenderness in transit.” Nevertheless, the WSJ reviewers who tasted six different mail-order barbeque pork products were pretty upbeat about the experience.


The article doesn’t stress this fact, but it is important that firms making these products do so under federal inspection in order to ship interstate, or under state equal-to if they want to ship only in their own state. Otherwise, your next call may be from a USDA compliance officer and he won’t be placing an order for product.



According to a recent Reuters Health article, young vegans may be lacking certain essential nutrients. A study conducted by Swedish scientists found that vegans, who shun all animal products, may not get enough of the nutrients found in meat and dairy products. The researchers reported that “vegans had dietary intakes lower than the average requirements for some esssential nutrients, [specifically] riboflavin, vitamin B-12, vitamin D, calcium and selenium.” The authors of the study, Christel L. Larsson and Gunnar K. Johansson of Umea University concluded that “it is important for adolescents in general and vegetarians in particular to receive knowledge…about how to combine and prepare a helathy diet.”




NCBA recently conducted a study on behalf of the Cattlemen’s Beef Board. It was found that 10% of consumers have purchased irradiated ground beef, with 72% of those having purchased it several times. Beef steaks and roasts were considered safe by 74% of consumers, receiving an A or B grade. The survey also showed that consumers are concerned about pesticides, bacteria, chemical additives and BSE, each garnering concern by over half of the respondents.



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Texas Tech University researchers have found that a seaweed-based product, ascophyllum nodosum, reduced the occurrence of E. coli O157:H7 by 300%, according to FSNet. The study, begun 10 years ago, used brown seaweed most often found in the North Atlantic Basin. Tasco, its product name, is developed by a privately owned Nova Scotia company. When added to feed for 14 days before slaughter, Tasco can also improve the quality of beef, give it a redder color, and add to its shelf life. Another Texas Tech University study reported on by The National Provisioner noted that a new feed ingredient containing probiotics or “good bacteria” could help to reduce the presence of E. coli O157:H7 by nearly 50%. Mike De La Zerda, a beef quality manager with the Texas Beef Council, said, “not one intervention strategy is the silver bullet, but to have another one in the tool box is definitely a plus for our industry.”

Though not new, irradiation is another tool by which we can rid beef of E. coli O157:H7. Minnesota-based Huisken Meats in Chandler, now a division of Sara Lee, was the first processor in the nation to irradiate its products. It currently supplies thousands of stores in 35 states. Sales of irradiated products rose 35% in 2001 from 2000, and 2002 looks to show a 25% sales increase from 2001. Schwann’s also markets irradiated products nationwide. Dairy Queen is testing irradiated burgers in 13 Minnesota stores. Hospitals use irradiated products to protect patients.


“[T]he ultimate concern is consumer safety,” said Cornell University chemist, Richard Durst, creator of a handheld device that can detect the presence of E. coli O157:H7 in eight minutes. The device works by attaching antibodies to the outside of microscopic fat bubbles or liposomes on a test strip. A sample moving up the strip would attach to the antibodies and turn red if E. coli O157:H7 were present.




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 Jeremy Russell and Kiran Kernellu

July 8, 2002




Julie L. Gerberding has become the first female director of the Centers for Disease Control and Prevention. Gerberding, currently CDC’s acting deputy director for science and public health, is a specialist in infectious diseases, best known for her expertise during the anthrax attacks last fall, and her work in the battle against AIDS. Gerberding will oversee a staff of over 8,500 scientists, according to a recent San Francisco Chronicle article.




The U.S. Department of Justice filed a Notice of Appeal with the U.S. District Court, Northern Division, South Dakota on July 2nd for the June 21 decision declaring the beef checkoff program unconstitutional. A request for a stay pending appeal was filed today. The judges will have to decide whether to accept the stay or end the checkoff by Friday, July 12, 2002. (See the June 24 and last week’s editions of Lean Trimmings for more information on the beef checkoff.)





FSIS will be well funded in fiscal 2003, reported Food Chemical News. The House Agriculture Appropriations Subcommittee has approved $755.8 million for FSIS, an increase of over $40 million from last year, but $7.3 million less than President Bush requested. An additional $600,000 over last years year’s budget of $2.79 million was provided to FSIS for studies into methods for reducing E. coli O157:H7 and Listeria monocytogenes. The Agricultural Research Service (ARS), which was funded for $1.1 billion in fiscal 2003, will receive $400,000 in competitive grants, while USDA’s Cooperative State Research, Education and Extension Service will receive $200,000. USDA was allocated $4 million for a new study of animal protein industry business models, reported APHIS was funded at $740 million, $115.4 million more than last fiscal year.The committee will release more details of the bill after it is considered by the House Appropriations Committee.


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The General Accounting Office (GAO) has completed its Draft Report on HACCP. Overall, the Draft is not favorable to FSIS, especially with regard to enforcement actions against establishments, including establishments that have failed the Salmonella performance standard.


The Draft focuses on three issues – whether FSIS is: (1) ensuring that establishments are in compliance with HACCP regulatory requirements; (2) identifying establishments with repetitive noncompliances; and (3) taking prompt action when the agency identifies problems. On all three issues, GAO finds FSIS deficient.


The Draft does not mention that FSIS has embarked on a massive change in how its in-plant personnel conduct inspection activities and that such a change is not without difficulties. On the issue of linking repetitive noncompliances, this is an area where FSIS could improve by adopting an articulated decision making process on handling such situations. The Draft's conclusions on enforcement actions for repetitive noncompliance may pose concerns. Given the allegation that FSIS is failing to take “prompt and effective actions” in instances of repetitive noncompliance, the Report could be used by Congress to modify FSIS authorities, especially as regards the Salmonella performance standard.


For complete details, please send a self-addressed, stamped (37¢) envelope to Kiran Kernellu at NMA-West or e-mail mailto:[email protected] and be sure to include the newsletter date.




In an impossibly detailed article in the July 7 New York Times – titled “What if it’s all Been a Big Fat Lie?” – new research on obesity and dietary trends exposes what may be 25 years of false assumptions by dietitians. “If the members of the American medical establishment were to have a collective find-yourself-standing-naked-in-Times-Square-type nightmare, this might be it. They spend 30 years ridiculing Robert Atkins, author of the phenomenally-best-selling Dr. Atkins' Diet Revolution and Dr. Atkins' New Diet Revolution, accusing the Manhattan doctor of quackery and fraud, only to discover that the unrepentant Atkins was right all along.” Scientists are discovering that carbohydrates, the pastas and potatoes, and not fat, have contributed to the current epidemic of obesity. In fact, it may be the very food pyramid itself which created the epidemic in the first place. The grains that make up the foundation of the food pyramid “are known in the jargon as high-glycemic-index carbohydrates, which means they are absorbed quickly into the blood. As a result, they cause a spike of blood sugar and a surge of insulin within minutes. The resulting rush of insulin stores the blood sugar away and a few hours later, your blood sugar is lower than it was before you ate. …your body effectively thinks it has run out of fuel, but the insulin is still high enough to prevent you from burning your own fat. The result is hunger and a craving for more carbohydrates. It's another vicious circle, and another situation ripe for obesity.” Fat and protein, on the other hand, provide effective satiation – end hunger, end weight gain.





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