In December 2001, the Fifth Circuit Court of Appeals issued a decision that some believe dealt a serious blow to the food safety reforms instituted by the USDA in the wake of the 1993 West Coast E. coli outbreak. The appeals court upheld a lower court ruling that the Agriculture Department does not have the authority to shut down a meat-processing plant that repeatedly failed tests for salmonella contamination. In 1998, the government unveiled a radically redesigned system of meat inspection called Hazard Analysis and Critical Control Point Systems (HACCP). Rather than relying on USDA inspectors to ensure that meat and poultry coming out of the plants was safe to eat, the new system required meat-processing plants to develop and implement their own systems of controlling the levels of harmful bacteria in their plants. As a way to determine whether the companies' plans were working, HACCP regulations required microbial testing of salmonella levels in the finished meat and poultry coming out of the plants. If a plant's products repeatedly exceeded the salmonella limits imposed by the regulations, the USDA could shut the plant down. Supreme Beef Processors Inc. is a Texas-based meat processor and grinder that at one point supplied millions of pounds of ground beef to the public school system. In December 1999, a Supreme Beef plant failed the USDA's salmonella tests three times in eight months; in one test 47 percent of ground beef samples in the plant were contaminated with salmonella. Pursuant to the HACCP regulations, the USDA notified the company that it would pull federal inspectors out of the plant, an action tantamount to shutting it down. The company immediately filed suit against the USDA in federal district court. The same day, the court granted a temporary restraining order forbidding the government to remove the inspectors. In the lawsuit, Supreme Beef claimed that the USDA did not have the authority to set limits on the allowable levels of salmonella bacteria in meat. They argued that because the bacteria is naturally occurring, it is not an "adulterant" substance subject to regulation by the government. Since beef may contain salmonella bacteria when it arrives at the packing plant from the slaughterhouse, the company argued, the level of salmonella in the finished, processed meat is not an adequate indicator of the whether the pathogen control procedures employed in the plant are being properly implemented. They also pointed out that since salmonella bacteria is killed and rendered harmless when meat is cooked properly, the presence of salmonella in the meat does not pose a significant risk and struck down salmonella testing regulations. The USDA appealed the case to the Fifth Circuit Court of Appeals, which upheld the lower court decision. The court also allowed the National Meat Association to intervene in the case, as representative of the interests of other meat industry members. The appeals court rejected the USDA's argument that the salmonella tests could serve as a proxy measure for other contaminants because measures taken to control salmonella would also likely reduce other pathogens. The court found that since the presence of salmonella alone does not render the product "injurious to health," the performance standards were not within the USDA's enforcement authority. The decision prompted vociferous protest from food-safety advocates who believe that the elimination of the salmonella testing takes away an important enforcement tool from the government. Carol Tucker Foreman of the Consumer Federation of America says, "It is hard to overrate the importance of the Supreme Beef decision. It could be interpreted as saying there is no amount of disease causing bacteria in raw meat or poultry that would ... violate the law." Without objective testing standards, she fears, the new meat-inspection system will have no teeth. And former Agriculture Secretary Dan Glickman told FRONTLINE that he believes the decision was "a serious blow" to food safety. Others disagree, however. The USDA has said that it has no plans to appeal the decision to the U.S. Supreme Court, and USDA Undersecretary for Food Safety Elsa Murano denies that the decision diminishes the power of USDA inspectors to ensure clean meat factories. She points out that the USDA continues to test for salmonella, and uses the results of the tests as indicators that there may be a problem in the plant that needs investigation. All that has changed is the ability to shut down a meat plant based solely on results of the salmonella tests. "The Supreme Beef decision is one that, when we looked at it, did not take away our authority to enforce our regulations," Murano told FRONTLINE. "We still can shut down plants, and we have been since the decision came out in December. ... We continue to test for salmonella. But we use those results to point us to what we may have to do in order to see what the plant may be missing in their implementation of HACCP." The battle over the salmonella testing is now turned over to Congress. In March 2002, Senator Tom Harkin (D-Iowa), chairman of the Senate Agriculture Committee, introduced legislation he intended to undo some of the damage he thinks the Supreme Beef decision wrought. His proposed legislation would clarify the USDA's authority to shut down plants based on failed salmonella tests. When introducing the legislation, he voiced his concerns that the meat industry was trying to undercut the USDA's power: "We have an industry that appears dead set on striking down USDA's authority to enforce meat and poultry pathogen standards. And sadly, we are now at the point where the food-safety reforms USDA enacted in 1996 are on life support." The American Meat Institute will oppose the proposed legislation. "Senator Harkin's bill is a political effort to legislate what science and the judicial system do not support and what Congress has rejected twice before," said the AMI's J. Patrick Boyle in a statement. Observers on Capitol Hill think the possibility for passage of the Harkin legislation is slim. ♦ RELATED LINKS • • •

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