by Gary J. Kushner
Ask almost any food company executive to identify the most expensive cost of doing business that needs control, and excessive government regulation would be high on the list. That is why it is so confusing-no, infuriating-when a food company or producer, or a group of industry competitors, seeks government action to impose regulations upon another segment of the industry.
Usually, the reason for such an initiative is not to protect consumers or to foster a healthier marketplace (although it may be couched in these terms), but to make it more difficult for that industry segment to compete.
A factor behind the initiative may be that the petitioner is suffering from burdensome regulations and wants others to feel the same pain. Such is the case underlying two lawsuits recently filed against USDA.
In Gottsch vs. Espy, an individual representing the "largest family-owned, cattle-feeding business in the United States" seeks an order to compel USDA to promulgate formal regulations establishing a zero-tolerance policy for fecal, ingesta and milk contamination in cattle, and comparable requirements for salmonella and E. coli contamination in poultry. The lawsuit was filed in U.S District Court in Nebraska.
The plaintiff contends that the existing zero-tolerance policy enforced through an informally issued USDA memorandum is unlawful. More to the point, and revealing the plaintiff's true motivation, the complaint argues that USDA's policy has caused a reduction in plant linespeeds and, coupled with carcass trimming, resulted in millions of dollars of damages to the industry. Moreover, USDA has not (at least not yet) implemented a similarly burdensome program for poultry.
Credibility questioned
In the Gottsch case, the plaintiff seems to be looking for an opportunity to comment on a proposed zero-tolerance requirement, something that would have been afforded had USDA adopted its program in accordance with the Administrative Procedure Act. Indeed, this is the way the department is proceeding in its recently proposed Enhanced Poultry Inspection System.
The plaintiff makes the point that USDA should not mandate inspection changes without soliciting comments and predicating its actions on valid scientific data. Don't be surprised if the Nebraska court, sitting in the middle of cattle country, agrees.
The plaintiff throws in an additional allegation challenging USDA regulations permitting moisture pick-up in poultry products, complaining that this is prohibited in beef processing and anticompetitive. By turning his focus to the practices of a related industry, the thin veil covering the plaintiff's real objective-to stick another industry segment with a regulatory scheme that the plaintiff thinks is unjustified-is lifted. So the plaintiff loses credibility.
Essentially the same phenomenon is reflected in the case of Kenny, et al. vs. Espy filed in the U.S. District Court in Iowa (another livestock producer haven). This case also calls USDA's zero-tolerance policy-and the method for achieving it-arbitrary as it relates to beef. It challenges USDA's failure to adopt similar requirements for poultry.
The "misery loves company" approach is similar to the case brought by whole hog sausage manufacturers hoping to avoid USDA's regulations governing the composition and labeling of products containing mechanically separated meat. There is sentiment that USDA's requirements have hindered the utilization of an ingredient and processing technology that offers benefits.
Apparently unsuccessful at convincing USDA to change the rule, the sausage-makers are willing to settle for an order mandating similar requirements for processors utilizing mechanically deboned poultry.
USDA is reviewing comments submitted in response to a proposed regulation that would somewhat loosen the restrictions on mechanically separated meat. How USDA decides to regulate mechanically separated meat in products may dictate the sausage-makers' reaction.
If they are not satisfied, expect them to return to court to try and saddle mechanically deboned poultry with the same regulations that they find objectionable.
A need for focus
It is not only appropriate, but incumbent upon food processors and others in the industry to seek regulatory action where it is justified. There are legitimate ways to effect changes in misguided government policies, and that is the direction in which industry resources should be directed.
Meat companies should stop fighting among themselves and focus their collective efforts at improving the ways in which all industry segments are regulated. Asking a court to order the government to spread the wealth of bad regulations doesn't cut it.