A federal judge on Friday upheld a USDA program for pork processing plants that gives employees more of a role in the inspection process.
In rejecting arguments by the plaintiffs, including Center for Food Safety, Food & Water Watch and the Humane Farming Association, U.S. District Judge Jeffrey White of the Northern District of California found that USDA’s New Swine Inspection System does not violate the Federal Meat Inspection Act.
Pre-inspection sorting of animals into pens based on their health does not violate the FMIA, White said.
“Although the [2019] final rule permits plant employees to pre-sort animals at NSIS plants, federal inspectors still inspect all hogs prior to slaughter, and the hogs that exhibit signs of disease upon that inspection are set apart and slaughtered separately” as required by FMIA, White said.
The plaintiffs contended, however, that NSIS prevents federal inspectors from providing a “critical appraisal” of the animals as required by a D.C. appellate court decision.
Specifically, they argued that a “critical appraisal” is not possible because federal inspectors are only required to observe 5-10% of the animals “in motion.”
“Observing company sorters is certainly not inspection of ‘all animals,’” the groups said in their summary judgment brief. “Nor can federal inspectors give the FMIA’s required ‘critical appraisal’ to the 90 to 95% of animals observed only at rest but not in motion.”
But White concluded that while the FMIA “requires an ‘examination and inspection of all [swine],’… it does not require all swine to be examined at rest and in motion. Under NSIS, federal inspectors do inspect all ‘normal’ [healthy] animals at rest.”
The judge also rejected claims under the Administrative Procedure Act, including that the Food Safety and Inspection Service did not adequately explain the reasoning behind significant changes in the final rule from the proposal.
“It is not disputed that FSIS did not disclose the greater range of uncertainty regarding [Salmonella] illness estimates until the final rule and did not provide the public an opportunity to comment on the January 2019 risk assessment,” the judge said. “However, FSIS’s failure to do so does not render the Final Rule arbitrary and capricious.”
The groups also had argued that “FSIS ignored evidence that plant employees do not adequately perform the inspection tasks required of them under NSIS,” the judge said, but concluded “the fact that FSIS did not address these specific instances of non-compliance is not a sufficient basis to find the final rule arbitrary and capricious.”
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In a statement, the National Pork Producers Council said it was pleased with the ruling. The NSIS "incentivizes investment in new technologies while ensuring a safe supply of wholesome American pork," the group said. "Pork producers use science-based approaches to continuously improve and modernize their practices to ensure product quality and consistency and their workforce's health and safety."
CFS, FWW and HFA expressed disappointment in the ruling.
“The Trump administration rule greatly undermines the ability of federal inspectors to protect consumers from foodborne illnesses by fully inspecting hog carcasses, and instead allows plant employees with little training to take over several steps,” they said in a news release.
"We are disappointed that the court upheld USDA's dangerous rules, allowing profit-driven meat companies to ramp up line speeds and police their own slaughterhouses,” said Tarah Heinzen, legal director of Food & Water Watch.
Amy van Saun, a senior attorney at CFS, said, “We are exploring all options and will keep fighting the corporate-controlled meat industry to protect public safety and a healthy food supply.”
The plaintiffs were backed by briefs filed by the American Federation of Government Employees, and six Democratic lawmakers, Sen. Cory Booker of New Jersey and five House members.
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This story has been updated with a statement from NPPC.
