Defending Food Safety : Food Safety Defense Lawyer & Attorney : Gass Weber Mullins Law Firm : National Food Product Defense Counsel : Defending Food Safety Blog

So, here we go again. Thinking about food rather than eating it. But, that's okay.

Because helping food companies address complex federal food safety regulations, reducing their risk of potential exposure, responding to outbreaks and recalls (when they do occur), or proving decisively before trial that an alleged food safety claim lacks all merit, is well worth the small sacrifice of delaying a meal.

For nearly a decade, we have worked closely with food industry clients responding to all of their most pressing needs.   And, we look forward to working with you.

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Tom Vilsack, Secretary of the United States Department of Agriculture, announced that the final rule (74 FR 2658) for mandatory country-of-origin labeling (“COOL”) will become effective on March 16, 2009. Under the new rule, retailers will be required to notify customers of the country of origin of certain food products. Food products (or, “covered commodities”) included within the COOL program include whole muscle cuts, ground beef, lamb, chicken, goat and pork; wild and farm-raised fish and shellfish; perishable agricultural commodities (specifically fresh and frozen fruits and vegetables); and macadamia nuts, pecans, peanuts and ginseng. Additionally, for food such as fish and shellfish, the method of production, wild or farm-raised, must be specified.

Exempted from COOL, however, are various products (e.g., ingredients) used to manufacture “processed” food items. Processed foods are generally defined as: (1) any retail item derived from a covered commodity that has undergone specific processing resulting in a change in the character of the covered commodity; or (2) any retail item that has been combined with at least one other covered commodity or substantive food component. “Specific processing” that results in a change in the character of food includes cooking (e.g., frying, broiling, grilling, boiling, steaming, baking, roasting), curing (e.g., salt curing, sugar curing, drying), smoking (cold or hot), and restructuring (e.g., emulsifying and extruding). For this reason, Vilsack also expressed concerns, in an open letter to industry, that the definition of processed foods contained within the final rule "may be too broadly" drafted. Because Vilsack was also concerned about the labeling of products of mixed origins, and time allowances for labeling of certain ground meat products, he asked industry to voluntarily adhere to the following additional labeling practices:

• With respect to processed foods, Vilsack suggested that processors voluntarily use country-of-origin labeling for those products that "are subject to curing, smoking, broiling, grilling, or steaming."

• With respect to products derived from animals with multiple countries of origin, Vilsack asked processors to include labeling information identifying what production step -- born, raised and/or slaughtered -- occurred in each country.

• Finally, because final rule allows a label for a ground meat products to bear the name of a country when meat from that country was present in the processor's inventory within the last 60 days, Vilsack suggested that time allowance be reduced to 10 days.

American Meat Institute President J. Patrick Boyle stated that, despite Vilsack’s concerns, the organization was "gratified" that USDA is allowing the final rule to go into effect. Namely, this is because the new rule, in its current form, took nearly six-years (with assistance from industry) to develop. Boyle also noted that, once the rule is effective, nearly 95 percent of beef and pork products would likely be eligible to bear a "Product of the USA" label.

Nevertheless, Boyle also stated that it would ultimately be up to individual companies to decide whether to voluntarily comply with Vilsack’s recommendations. According to Boyle, "to the extent that companies are able and elect to go beyond [the] federal labeling requirements, as requested by Agriculture Secretary Vilsack, [that] is an individual company decision, which will have to be made in collaboration with a company's retail grocery customers . . .."

In any event, Vilsack confirmed that the USDA “will closely review industry compliance with the regulation and its performance in relation to these suggestions for voluntary action.” Depending upon such performance, the USDA “will [then] carefully consider whether modifications to the rule will be necessary to achieve the intent of Congress." The rule had also been under review on the orders of the new presidential administration. Ultimately, Vilsack stated that, allowing the rule to go into effect on March 16, 2009, and then monitoring implementation and compliance by industry, would likely be the most efficient way to evaluate the success of COOL, and also to determine whether additional rulemaking would be necessary.

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As we continue to comment on food safety litigation avoidance and crisis management, several food industry groups on Friday, in letters to Congress, urged House and Senate leaders to quickly enact enhanced food safety reforms.  The letters announced that, although “Americans continue to enjoy the safest food supplies in the world, . . . new challenges require Congress and the Administration to modernize our food safety net.”  In turn, industry groups urged lawmakers to move forward on the following FDA proposals, originally announced in 2007, as part of the FDA’s Food Protection Plan:

• Require Domestic Food Safety Plans:  As proposed, the initiatives would require domestic food producers to affirmatively identify potential food safety risks associated with production methods and products, identify and implement enhanced production or other controls, and prepare formalized food safety plans (for FDA review) addressing such risks;

• Require Foreign Food Safety Plans:  Adoption of the pending initiatives would also empower the FDA to assist foreign governments seeking to adopt robust food safety regulations, and require foreign food product importers to better police foreign suppliers. The initiatives would also, in part, require domestic foreign food product importers to document food safety controls being implemented by foreign suppliers, and require such records to be available for FDA review; and

• Adopt A More Robust Risk-based Approach to Inspections:  As proposed, the initiatives would also enable the FDA to increase food safety inspections for those facilities and products (both foreign and domestic) that pose, based upon science and risk-based studies, the greatest risk of potential contamination.

In addition to encouraging a more robust food safety inspection system for domestic and foreign products, the letters also urged Congress to better enhance the safety of fruits and vegetables by establishing uniform standards for high-risk products.  In addition, the letters addressed the FDA’s continuing request for mandatory recall authority, which would be available to the agency in those rare circumstances where companies refused, following FDA recommendations, to initiate recalls voluntarily.

The letters were undersigned by numerous industry organizations, including the Grocery Manufacturers Association, the Food Marketing Institute, the American Frozen Food Institute, the International Bottled Water Association, the International Dairy Foods Association, the National Fisheries Institute, the National Restaurant Association, the Retail Industry Leaders Association, the Snack Food Association and the United Fresh Produce Association.  According to Pamela Bailey, President and CEO of the Grocery Manufacturers Association, improved food safety tools would ultimately enable us to better “maintain our position of global leadership and assure consumer confidence.”

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