— OPINION —
Editor’s note: This is Part 2 of a 4-part series.
Between 1906 and 1992, FSIS and its predecessors attracted minimal public attention as they quietly pursued their assigned mission: assure that adulterated and/or misbranded meat, poultry, or egg products are not distributed in commerce. Then in January 1993, improperly prepared raw ground beef patties at “Jack in the Box” restaurants resulted in the deaths of several small children. The primary problem was foodservice, not inspection. Had “Jack in the Box” properly handled and prepared the product, the offending bacteria, Escherichia coli O157:H7, would have been destroyed.
That became irrelevant when Secretary of Agriculture Mike Espy threw FSIS under the bus by describing the existing federal meat inspection system as “no longer adequate; . . . no longer good enough.” The 1906 BAI decision to subordinate federal meat inspection to the BAI mission priority; animal disease control, rather than microbial causes of adulteration had recoiled unfavorably upon FSIS.
Overnight, FSIS became front page, prime-time news. To distance itself from its identification with a failed “inspection system,” FSIS management declared FSIS a public health agency with a mission to “prevent foodborne illness and protect public health.” The decision may have been politically expedient, but it was the most significant strategic error in the history of federal meat inspection.
A Fundamental Truth
Federal meat inspection is part of the vast legal system which is the American government, and the U. S. Constitution delineates what government can and cannot do. The Constitution grants Congress the power to “regulate commerce . . . among the several States.” The Federal Meat Inspection Act (FMIA), Poultry Products Inspection Act, (PPIA), and Egg Products Inspection Act (EPIA) regulate meat, poultry, and egg products commerce by tasking the Secretary of Agriculture (i.e., Secretary) with inspecting meat, poultry, and egg products for the purpose of assuring that adulterated and/or misbranded meat, poultry, or egg products are not distributed in commerce. The Secretary delegates this task to the FSIS Administrator.
FSIS is neither a public health agency nor has a mission to “prevent foodborne illness and protect public health.” If FSIS were a “public health agency,” then FSIS would be an agency in the Department of Health and Human Services, not the USDA. The Constitution reserves any power not granted to the federal government, and not prohibited to the States, “to the States.” The Constitution neither grants to the federal government, nor prohibits to the States, the power to regulate “foodborne illness and public health.” Foodborne illness and public health are human conditions that take place within the individual States, not “commerce … among the several States.” The Constitution reserves the power to regulate “foodborne illness and public health” to the States, not the federal government. This fact played out clearly in the Nation’s response to the COVID-19 pandemic, as State governments, not federal agencies, regulated the response.
By Act of Congress, the FSIS mission is to assure that adulterated and/or misbranded meat, poultry, or egg products are not distributed in commerce. Meat, poultry, and egg products that are not adulterated and/or not misbranded are safe and do not cause foodborne illness. The simple fact that the absence of foodborne illness is an indirect effect of the FSIS mission does not justify FSIS’ claim that it is a public health agency preventing foodborne illness and protecting public health.
It is a point of law and a fundamental truth that the Constitution does not grant Congress the power to enact legislation tasking the Secretary with regulating “foodborne illness and public health.” The Secretary cannot delegate to the FSIS Administrator powers the Congress cannot assign to the Secretary. FSIS is not a public health agency. The FSIS mission is not “prevent foodborne illness and protect public health.” FSIS fails to operate in accordance with the rule of law.
A Renaissance?
The “Jack in the Box” incident forced FSIS to change. The “old guard” that had ruled over an animal disease-oriented, veterinarian-dominated inspection service for nine decades was ushered from the stage. A new generation of FSIS employees came to the forefront. In 1996, change came in the form of the Pathogen Reduction; Hazard Analysis and Critical Control Point (PR/HACCP) Systems: Final Rule. Twenty-five years later, FSIS describes the PR/HACCP final rule as still making a difference. I would disagree. The PR/HACCP final rule was a step in the right direction, but it failed in two important ways.
First, it promised to reduce human illness through pathogen reduction, with Salmonella being the pathogen of choice. The FSIS logic was simple. Salmonella causes human illness. Reducing Salmonella in meat, poultry, and egg products would reduce meat, poultry and egg related human illness. The cornerstone of the FSIS pathogen reduction strategy was the 9 CFR 310.25(b) and 9 CFR 381.94(b) Salmonella Performance Standards. Failure to meet the regulatory Salmonella Performance Standard defined product as adulterated and allowed FSIS to suspend inspection. The regulatory Salmonella Performance Standards went live on January 26, 1998. In May 2000, a federal district court struck down the regulatory Salmonella Performance Standard as unconstitutional [Supreme Beef Processors, Inc. v. USDA]. The regulatory Salmonella Performance Standard over-reached FSIS statutory authority. FSIS no longer had a pathogen reduction strategy.
FSIS had predicated success on pathogen (i.e., Salmonella) reduction. The loss of its regulatory Salmonella Performance Standard denied FSIS its regulatory mechanism for success. Not one to let a good court ruling stand in the way of a bad decision, FSIS doubled down and implemented its unconstitutional regulatory Salmonella Performance Standard as an FSIS policy standard. FSIS would test product for Salmonella and interpret a positive test result as a “license to hunt” for yet to be identified regulatory noncompliance.
FSIS also posted the policy-based Salmonella test results in a public forum. If FSIS could not, by regulation, force industry to reduce Salmonella on raw product, then FSIS would publicly shame industry into pursuing a course of action that FSIS lacked regulatory authority to impose by insinuating that product testing positive for Salmonella was unsafe. FSIS ignored the fact that most Salmonella are not pathogens. The strategy worked wonderfully. Industry, fearing economic loss, reduced Salmonella on raw meat and poultry. Once industry achieved the FSIS policy-based standard, FSIS lost its leverage. Not a problem. FSIS simply lowered the FSIS policy standard so that industry no longer met the standard. FSIS then resumed public shaming. FSIS will never allow industry to escape this vicious circle. To do so would be to lose power over industry. This practice may be immoral, but it is not illegal. It allows FSIS to pursue policy goals that exceed its statutory reach.
Second, the PR/HACCP final rule promised an end to institutionalized “command and control” and “greater reliance on performance standards” that afforded establishments “greater autonomy in decision-making affecting their own operations.” The promise could not overcome 87 years of bureaucratic inertia. The institutional culture and personality of federal meat inspection remain unchanged with one exception. FSIS replaced the active “command and control” of the Inspector-in-Charge with the passive aggressive “command and control” of the District Manager.
Epilogue
That FSIS declares itself a public health agency with a mission to “prevent foodborne illness and protect public health” may play well with the public, but that does not make it true. It is a point of law and a fundamental truth that FSIS is neither a public health agency nor has a mission to “prevent foodborne illness and protect public health.” The FMIA, PPIA, and EPIA task FSIS with assuring that adulterated and/or misbranded meat, poultry, or egg products are not distributed in commerce. For FSIS to claim otherwise thwarts the will of Congress and the rule of law.
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