Appeals Court Upholds Lower Court Ruling that USDA Salmonella Performance Standard Is Invalid

A three-judge federal appeals panel has ruled unanimously that USDA's Salmonella performance standard conflicts with the statutory language in the Federal Meat Inspection Act (FMIA) and therefore is invalid. The Salmonella performance standard is part of the 1996 HACCP/Pathogen Reduction rule. Supreme Beef Processors had challenged the validity of the FSIS ground beef performance standard in 1999, with a lower court affirming Supreme's claim that the standard was illegal. USDA appealed the district court ruling. After Supreme Beef filed for bankruptcy, USDA failed in an attempt to get the case dismissed as moot, and a three-judge panel heard oral arguments on the appeal October 1 this year.

AMI, which helped to fund the appeal, praised the 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," said AMI President J. Patrick Boyle. "It is our hope that 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." Boyle also noted that the performance standard was never published as a proposed rule, but rather was included in the final HACCP/Pathogen Reduction rule, and that it is appropriate to offer an opportunity for notice and comment on such an important issue.

Significantly, the Fifth Circuit judges ruled that the FMIA language that allows USDA to take enforcement actions against plants or regulatory actions against meat or poultry products if they are "prepared, packed, or held under insanitary conditions" cannot "be used to regulate characteristics of raw materials that exist before the meat product is 'prepared, packed, or held'." In doing so, the court effectively recognized the argument that many processors have made since the HACCP rule's implementation that they are unfairly subject to enforcement action because of the raw products they utilize, especially when those products are not adulterated.

The appellate court also recognized that, because the performance standard measures Salmonella in final product, it cannot "serve as a proxy for cross contamination because there is no determination of the incoming Salmonella baseline." In so ruling the court of appeals rejected USDA's argument that the Salmonella standard should be upheld because it serves as a measure of whether pathogens that are adulterants, such as E. coli O157:H7, are also present in products.

USDA's options for appeal are limited: The agency could ask the same three judge panel that heard the case and issued a unanimous opinion to rehear the case; USDA could ask for a rehearing en banc before all the judges of the Fifth Circuit; or USDA could file a Petition for Certiorari asking the Supreme Court to hear the case.