Appeals court invalidates USDA's Salmonella standard for meat

Dec 13, 2001 (CIDRAP News) – A federal appeals court has ruled that the US Department of Agriculture's (USDA's) Salmonella performance standard for meat packers is illegal, depriving USDA of authority to shut down packing plants for producing meat with Salmonella levels exceeding the standard.

A three-judge panel of the Fifth US Circuit Court of Appeals agreed with Supreme Beef Processors Inc., a Texas meatpacker, that Salmonella in its products was not a result of unsanitary conditions in Supreme's plant but was present in the meat when it arrived at the plant. The Federal Meat Inspection Act (FMIA) "cannot be used to regulate characteristics of the raw materials that exist before the meat product is 'prepared, packed, or held,'" the ruling states. "The performance standard is invalid because it regulates the procurement of raw materials."

The court also ruled that Salmonella cross-contamination of meat within a plant does not make the meat unsafe as defined in the FMIA, since Salmonella is naturally present in a "substantial proportion" of meat and is destroyed by proper cooking.

In a statement posted on the USDA's Web site yesterday, Dr. Elsa Muran, undersecretary for food safety, said the department is reviewing its options in the wake of the ruling. "The decision should not be interpreted as changing USDA's statutory and regulatory requirements that all plants must produce meat and poultry products that are safe. It does not," she said. She added that USDA's Food Safety and Inspection Service (FSIS) "will continue to test for Salmonella, since this will serve to verify that a HACCP [Hazard Analysis/Critical Control Points] plan is properly controlling foodborne hazards to the greatest extent possible."

The American Meat Institute (AMI), a trade group that helped to fund Supreme's lawsuit, praised the court's ruling. "We are gratified—but not surprised—that the court has affirmed that the Salmonella performance standard is scientifically insupportable as a measure of plant sanitation," AMI President Patrick J. Boyle stated in a report on the AMI's Web site. "It is our hope that the USDA will withdraw the standard and rely upon the advice of its National Advisory Committee for Microbiological Criteria for Foods in developing a new, meaningful scientific standard."

The Salmonella standard is part of a rule that USDA developed in 1996. As described in the court ruling, the standard says that Salmonella can be present in no more than 7.5% of product samples from a plant. The ruling explains that Supreme Beef Processors failed three rounds of Salmonella tests in 1998 and 1999, prompting the FSIS to notify the company it would suspend inspections. The company then sued USDA, arguing that the agency had exceeded its authority under the FMIA. A district court agreed last year, and USDA appealed. Oral arguments on the appeal were heard Oct 1, 2001.

The new ruling states, "The difficulty in this case arises, in part, because Salmonella, present in a substantial proportion of meat and poultry products, is not an adulterant per se, meaning its presence does not require the USDA to refuse to stamp such meat 'inspected and passed.' This is because normal cooking practices for meat and poultry destroy the Salmonella organism, and therefore the presence of Salmonella in meat products does not render them 'injurious to health'" under the FMIA.

Supreme argued that it failed to meet the Salmonella standard only because it bought beef trimmings that had higher levels of Salmonella than other cuts of meat, not because of unsafe conditions in the plant. The USDA did not dispute this, but contended that Salmonella levels in incoming meat can be regulated under the FMIA, the ruling says. The judges rejected that argument.

The panel also determined that Salmonella levels in a plant's products cannot serve as a "proxy" measure of cross-contamination in a plant, because USDA does not determine the levels in incoming meat. Further, the judges rejected what they described as the USDA's attempt to justify the performance standard on the ground that steps to eliminate Salmonella in meat will also eliminate other pathogens. The court said this reasoning does not imply—and USDA did not argue—that the presence of Salmonella indicates the presence of other pathogens that would make meat unsafe.

See also:

Statement by Dr Elsa Muran, USDA undersecretary for food safety
http://www.usda.gov/documents/NewsReleases/2001/12/0255.doc

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