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The USDA has published new rules for a proposed program, under which select State-inspected establishments (with 25 or fewer employees) will be eligible to ship meat and poultry products in interstate commerce. Click on the following link to view the Proposed Rule.

The new program was created as part of the 2008 Farm Bill to supplement the existing Federal-State cooperative inspection program to allow State-inspected plants with 25 or fewer employees to ship products across State lines. This announcement is part of the USDA's new Know Your Farmer, Know Your Food Initiative, which seeks to better connect consumers with local producers to help develop local and regional food systems to spur economic opportunity.

"This new cooperative interstate shipment program will provide new economic opportunities for many small and very small meat and poultry establishments, whose markets are currently limited," said USDA Deputy Under Secretary for Food Safety Jerold Mande. "We can provide new markets for these establishments, while maintaining the integrity of the Federal mark of inspection."

Currently, 27 states operate State Inspection Programs for meat and poultry, and FSIS verifies that the State programs are implementing requirements that are "at least equal to" those imposed under the Federal meat and poultry products inspection acts. Click on the following link to view the Current List of Qualifying States. For these programs, FSIS provides up to 50 percent of the State's operating funds and provides oversight and enforcement of the program.

Under the proposed rule, selected establishments will receive inspection services from federally trained and/or supervised State inspection personnel who will verify that the establishments meet all Federal food safety requirements. Meat and poultry products produced under the voluntary cooperative program will bear an official USDA mark of inspection, thereby enabling interstate shipment of the products.

State-inspected establishments that are not selected for the voluntary cooperative program, including state-inspected establishments with more than 25 employees, are only eligible to sell and ship their products within their State.

Comments must be received on or before Monday, November 16, 2009, through the Federal eRulemaking Portal at www.regulations.gov, by mail to: FSIS Docket Room, USDA, FSIS, OPPD, Docket Clearance Unit, 5601 Sunnyside Avenue, Stop 5272, Beltsville, MD 20705.

All comments must identify FSIS and the docket number FSIS-2008-0039. Once received and published, interested parties will be able to View All Comments Online.

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The State of California recently enacted a new criminal law, effective January 1, 2009, designed to prevent slaughterhouses from purchasing and processing non-ambulatory animals for human consumption. As enacted, Section 599f amended the California Penal Code to criminalize, without exception, the receipt and use of non-ambulatory animals by slaughter facilities.

In response, the National Meat Association (“NMA”) sought and obtained a preliminary injunction to prevent the State of California from enforcing the new law. NMA, et al. v. Brown et. al, Case No. CV-F-08-1963 (E.D. Cal. 2008). In its briefs, NMA argued that the treatment of non-ambulatory animals was already regulated extensively by the Federal Meat Inspection Act (“FMIA”), which expressly permits, subject to certain requirements, the receipt and use of non-ambulatory animals for slaughter. Under the FMIA (21 U.S.C. § 601, et seq.) and its implementing regulations, non-ambulatory animals may be processed for human consumption if the animals are first inspected for disease and then passed by a federal veterinarian inspector. Because the California law attempted to criminalize what the FMIA permits, NMA argued persuasively that the California initiative was preempted.

Indeed, the FMIA (a distant relative of the 1906 Wholesome Meat Act) regulates virtually every aspect of meat production. The Act requires continuous federal inspection in meat packing plants, often times by multiple inspectors. These federal inspectors are responsible for ensuring that all animals entering slaughter facilities are healthy and free from disease, and that all meat products subsequently produced from such animals are safe, wholesome and not adulterated. Currently, the federal statutory and regulatory scheme is enforced by the Food Safety Inspection Service (a sub-agency of the United States Department of Agriculture).

To ensure that the FMIA and its uniform national requirements are not usurped by the individual states, the FMIA contains an express preemption provision which prevents states from enacting or enforcing any laws that are “different” from the federal standards. 21 U.S.C. § 678. Thus, under the FMIA, any state laws which attempt to penalize a food producer for doing what federal law permits (whether the laws relate to production or product labeling) are strictly preempted.

In this case, the new California criminal law conflicted directly with the federal statutory and regulatory scheme. Because the FMIA permits the use of non-ambulatory animals for slaughter (assuming such animals have been declared to be free from disease by a federal FSIS veterinarian inspector), the Court granted NMA’s request for a preliminary injunction. In its February 19, 2009 Decision, the Court reasoned that the California Penal Code, Section 599f, was both expressly and implicitly preempted under the FMIA and its implementing regulations.

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