WASHINGTON, Feb. 18, 2015 – U.S. District Judge Ketanji Brown Jackson not only threw out a suit seeking to block USDA from implementing its new National Poultry Inspection System (NPIS), but she suggested that critics of the system were relying on “unsupported and overblown” claims.
Some background: USDA’s Food Safety and Inspection Service (FSIS) proposed the new NPIS in January 2012 after more than a decade of research and planning. In short, it seeks to replace some of the visual inspection of birds by federal inspectors with additional microbiological testing at all processing facilities, based on HACCP (hazard analysis critical control point) planning designed to prevent invisible bacterial contamination. FSIS has consistently maintained that the new system will yield safer poultry at a lower cost.
Inspectors’ unions fearing job losses and the environmental group Food & Water Watch campaigned vigorously against the proposal. After analyzing reams of public comment, FSIS published the amended final rule last August. Food & Water Watch filed suit in September to block implementation of NPIS, asserting that it would mean greater risk of contaminated chicken and turkey. The Government Accountability Project, Consumer Federation of America, Center for Foodborne Illness, Southern Poverty Law Center and Nebraska Appleseed backed the suit. Food & Water Watch filed notice that it will appeal the dismissal of its lawsuit to the U.S. Court of Appeals for the District of Columbia.
In her Feb. 9 ruling, Jackson not only concluded that Food & Water Watch failed to show that it or its consumer members “have, or will have, an injury-in-fact that is traceable to” the new FSIS inspection regime. Thus, she said, the “case must be dismissed in its entirety.”
Even without ruling on the merits, Jackson’s 58-page opinion is a noteworthy putdown of the consumer activists’ claims. She appears to have been persuaded by the government’s argument that “there is a critical gap” in the traditional inspection program because it “does not directly target pathogenic microorganisms” or “make meat and poultry establishments legally responsible for taking systematic, preventive measures to reduce or eliminate the presence of pathogenic microorganisms in meat and poultry products.” She observed too that FSIS has spent the better part of the past two decades looking at ways to translate its new findings into practice.
Food & Water Watch and its allies “have failed to show that . . . NPIS will result in any increase in the risk of adulterated poultry products being introduced into the stream of commerce,” Jackson wrote. Although they assert “reams of evidence” that NPIS will result in a “substantially greater risk of unwholesome and adulterated product reaching the market,” she said the evidence they submitted “does little to bolster that point.”
Their “fox guarding the henhouse” assertions of increased risk “appear to be both unsupported and overblown,” the ruling said. “In short, far from providing data and information that demonstrates that there is, in fact, an increased risk” of unwholesome poultry, the consumer groups “plainly ask this court to accept sheer speculation about the bad things that might happen to the nation’s poultry supply if sorting is placed in the hands of establishment employees.” In fact, Jackson wrote, plaintiffs’ attorneys’ own data “tend to show the opposite – i.e., that processing poultry pursuant to the NPIS rules will be beneficial rather than potentially harmful.”
She also rejected Food &Water Watch arguments that adoption of NPIS would be a “drain on the organization’s resources,” saying that the result likely would be “precisely the opposite.” Rather than being “a wasteful distraction that has drained FWW of resources inappropriately, the NPIS plainly has provided FWW with a cause célèbre – one that may even have been at the heart of targeted fund-raising efforts – and it is peculiar at best for an organization to contend that it has been injured because it had to raise funds and devote resources to attack a proposed regulation when one of the organization’s foundational principles (its raison d’être, if you will) is that it will devote time and resources toward engaging in such an attack,” Jackson wrote.
Finally, the judge held that “it cannot seriously be argued that plaintiffs were harmed,” given that USDA amended its final rule to be more favorable to the consumer groups’ position than its original proposed rule. The final rule, effective last October, increased the line speed to only 140 birds per minute (compared with 170 in the proposal) and made NPIS optional, giving each company an opportunity either to retain the traditional inspection system or to convert to the NPIS.
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