USDA's new poultry inspection process survives legal challenge

By Stephen Davies

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WASHINGTON, Dec. 22, 2015 - USDA's new poultry inspection rules, which place more responsibility for examining birds on the processing establishments themselves, have survived their first court challenge.

A three-judge panel of the D.C. Circuit Court of Appeals on Tuesday affirmed a lower court ruling that found the advocacy group Food and Water Watch (FWW) did not have legal standing to continue with a lawsuit over the New Poultry Inspection System (NPIS), which USDA's Food Safety Inspection Service (FSIS) put into operation last year.

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Neither the two individual plaintiffs in the case nor FWW as an organization could establish standing, the court found. Statements from current and former poultry inspectors that said the new rule would lead to more contamination are not enough, the court said.

In a statement FWW filed with its lawsuit, one inspector asserted that under the pilot program testing the new regime, one inspector would have to look at 200 or more birds per minute, compared to 30 under the old system.

But the court said that “although (the inspectors') statements may be alarming, even taken as true, they do not allege that there is a substantially increased risk of foodborne illness because they do not allege that the risk of unwholesome, adulterated poultry is higher under the NPIS as a whole” than under the previous system.

Even “taking all of FWW's allegations … as true, FWW has alleged nothing more than an abstract injury to its interests that is insufficient to support (organizational) standing,” the court said.

FWW senior lobbyist Tony Corbo said the group is disappointed with the verdict and is reviewing it to see what further steps can be taken.

“The court has established a pretty high bar for plaintiff groups to challenge agency rules, which is very concerning to us,” he said.

One of the judges appeared to agree. In a concurrence, Judge Patricia A. Millett reiterated her “continuing concerns about this court's organizational-standing doctrine and the unwarranted disparity it seems to have spawned between individuals' and organizations' ability to bring suit.” She said that “our organizational standing doctrine should be revisited in an appropriate case.”

The new poultry inspection rules are voluntary. Corbo said 49 plants have requested to opt into the new system, but only 12 of those have implemented it thus far. That's out of an FSIS-estimated 219 chicken and turkey operations that are eligible.

FSIS Public Affairs Specialist Julie Schwartz confirmed that “around 50 plants have expressed interest in implementing (NPIS). Most of the plants (that were in the pilot program) have already implemented and we're on the next wave of implementation now.”

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Under the rules, the number of government inspectors at each plant are reduced, but those who remain would focus more on food safety than line examinations, allowing more checks of the facilities for cleanliness.

The National Chicken Council did not immediately respond to requests for comment.

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