State-Inspected Meat and Poultry: Issues for Congress
State-Inspected Meat and Poultry:
Issues for Congress
Updated May 22, 2008
Geoffrey S. Becker
Specialist in Agricultural Policy
Resources, Science, and Industry Division
State-Inspected Meat and Poultry: Issues for Congress
Federal law has prohibited state-inspected meat and poultry plants from
shipping their products across state lines. The final conference version of H.R. 2419,
the omnibus farm bill, amends the Federal Meat Inspection Act and the Poultry
Products Inspection Act to permit such interstate shipment under certain conditions.
Limiting state-inspected products to intrastate commerce is unfair, many state
agencies and state-inspected plants have long argued, because the 27 currently state-
operated programs by law already must be, and are, “at least equal” to the federal
system. Meanwhile, foreign plants operating under U.S. Department of Agriculture
(USDA)-approved foreign programs, which are to be “equivalent” to the U.S.
program, can export meat and poultry products into and sell them anywhere in the
United States. Advocates for change have contended that they should not be treated
less fairly than the foreign plants which, they say, are not as closely scrutinized as
Opponents have argued that state programs are not required to have, and do not
have, the same level of safety oversight as the federal, or even the foreign, plants.
For example, foreign meat and poultry products are subject to U.S. import
reinspection at ports of entry, and again, when most imported meat is further
processed in U.S.-inspected processing plants. Opponents also have contended that
neither the USDA Office of Inspector General in a 2006 report nor a relevant 2002
federal appeals court ruling would agree, without qualification, that state-inspected
meat and poultry were necessarily as safe as federally inspected products.
The Senate-passed farm bill — the approach ultimately adopted by conferees
— supplements the current federal-state cooperative inspection program with a
provision whereby state-inspected plants with 25 or fewer employees could opt into
a new program that subjects them to federally directed but state-operated inspection,
thus allowing them to ship interstate. The Senate version reportedly was developed
as a compromise by those on both sides of the issue.
The House-passed farm bill would have replaced (rather than supplemented) the
current federal-state cooperative inspection programs with a new program to enable
meat and poultry that is not federally inspected to be shipped across state lines, so
long as the state programs adopted standards identical to those of USDA along with
any additional changes USDA required. The House bill also would have enabled
many plants currently under federal inspection to apply for state inspection and
continue to ship interstate. Opponents of this change feared that many would seek
to opt out of the federal system if they believed that could receive more lenient
oversight by the states — an assertion that state proponents dismissed.
If the conference farm bill becomes law, as many anticipate, stakeholders will
next turn their attention to USDA, where implementation details will be determined
through the rulemaking process.
Current Federal-State Cooperative Inspection Program....................2
Proposed Inspection Changes........................................3
Allowing State-Inspected Products in Interstate Commerce.............3
Restrictions on Size of State-Inspected Plants........................4
Option to Become State-Inspected.................................5
Cooperative Agreement and Other Support Provisions.................5
Earlier Legislative Proposals.....................................5
New Markets for State-Inspected Meat and Poultry Act of 2007
(H.R. 2315/S. 1150)....................................5
H.R. 1760/S. 1149.........................................5
Selected Policy Issues..............................................5
What Is “Identical”?............................................6
Are State Inspectors More Lenient than Federal Inspectors?.............7
Does USDA Provide Adequate Oversight of State Programs?...........8
Would Federal Establishments Switch to State Inspection?............10
How Might Foreign Trade Be Affected?...........................11
Do Foodborne Illness Data or Pathogen Testing Provide Any Clues
to the Relative Safety of State-Inspected Products? .............13
State-Inspected Meat and Poultry:
Issues for Congress
Currently, U.S. meat and poultry slaughter facilities and processing plants
operate under one of two parallel inspection systems. The one familiar to most
people is the federal meat and poultry inspection system administered by the U.S.
Department of Agriculture’s (USDA’s) Food Safety and Inspection System (FSIS).
The other is made up of 27 separate state-administered inspection programs.
Federal law has prohibited state-inspected meat and poultry plants from
shipping their products across state lines, a ban that many states and small plants
have long sought to overturn. Both the House and Senate versions of the omnibus
farm bill (H.R. 2419) included amendments to the Federal Meat Inspection Act
(FMIA) and the Poultry Products Inspection Act (PPIA) that would permit interstate
shipment of these products if USDA approves and certain requirements are met.
However, the Senate approach diverged in significant ways from the House version.
The conference farm bill, cleared in May 2008, generally opted for the Senate
approach, viewed by many on both sides of the issue as an acceptable compromise.1
Proponents of ending the current ban have long argued that limiting
state-inspected products to intrastate commerce is unfair. Many state agencies and
state-inspected plants have argued that their programs by law already must be, and
are, “at least equal” to the federal system. While state-inspected plants cannot ship
interstate, foreign plants operating under USDA-approved foreign programs, which
are to be “equivalent” to the U.S. program, can export meat and poultry products into
and sell them anywhere in the United States. Advocates for change have contended
that that they should not be treated less fairly than the foreign plants, and that foreign
programs are not as closely scrutinized as state programs.
Opponents of allowing state-inspected products in interstate commerce have
argued that state programs are not required to have, and do not have, the same level
of safety oversight as the federal, or even the foreign, plants. For example, foreign
meat and poultry products are subject to U.S. import reinspection at ports of entry,
and again, when most imported meat is further processed in U.S.-inspected
1 See for example “Consumer Federation of America, Other Consumer Groups, Join Labor,
Farm Groups and State Departments of Agriculture to Assure All meat and Poultry Shipped
Across State Lines Will Remain Subject to Federal Meat and Poultry Inspection Laws,
Regulations and Policies,” October 23, 2007, at [http://www.consumerfed.org/pdfs/Interstate
_Meat_Press_Release_10_23_07.pdf]. Also, “Compromise Reached on State Meat
Inspection,” October 23, 2007, the National Association of State Departments of Agriculture
(NASDA) at [http://www.nasda.org/interstatemeatshipment/].
processing plants. Opponents also contended that neither the USDA Inspector
General (OIG) in a 2006 report nor a relevant 2002 federal appeals court ruling
would agree, without qualification, that state-inspected meat and poultry were
necessarily as safe as federally inspected products.
Cooperative Inspection Program
Approximately 2,100 meat and poultry establishments in 27 states are subject
to state-conducted rather than federal inspection programs.2 However, these state
programs are operated in accordance with cooperative agreements that USDA’s Food
Safety and Inspection Service (FSIS) has with each of the states; the federal
government also provides 50% of the cost of state programs. The “Federal and State
Cooperation” provisions of the FMIA (21 U.S.C. 661) were added by the Wholesome
Meat Act of 1967 (P.L. 90-201).3
Congressional Quarterly (CQ) at the time of the 1967 legislation observed that
the state cooperation provision was “[t]he farthest-reaching portion [of the measure]
... aimed at helping — or, if necessary, forcing — states to strengthen their own meat
inspection systems.” All plants providing meat for interstate and foreign commerce
had been subject to federal inspection regulations basically since passage of the Meat
Inspection Act of 1907. However, plants that limited their product sales within a
state were covered by what critics described as a patchwork of varying, often
inadequate laws and regulations; seven of them had no inspection at all, according
to CQ. “Revelations in the press and during committee hearings about slaughter and
packing practices at some state plants made meat inspection the most emotional
consumer issue of 1967.”4
Currently, the Secretary of Agriculture (hereafter, USDA or FSIS) is authorized
to approve a cooperative program in any state if it has enacted a “law that imposes
mandatory ante mortem and post mortem inspection, reinspection and sanitation
requirements that are at least equal to those under Title I of [the FMIA], with respect
2 Before August 2007, when USDA took over inspection in New Mexico, there were 28 state
programs. New Mexico decided to cede these responsibilities to USDA after USDA deferred
a finding of “equal to” status in a 2006 on-site review and asked the state to make a series
of corrective actions in its program. During the initial on-site review, FSIS concluded that
the state was not adequately implementing and enforcing the meat and poultry inspection
requirements, did not have an effective pathogen testing program, and that inspection
personnel lacked the education and training needed to apply the state’s inspection
methodology. The FSIS Review of State Programs, including the findings on individual
states, can be accessed at [http://www.fsis.usda.gov/PDF/Review_of_State_Programs.pdf].
3 Comparable provisions for state inspection were added to the PPIA by the Wholesome
Poultry Products Act of 1968 (P.L. 90-492). Thus, although this report primarily references
meat animals and meat products covered by the FMIA, it presumes that poultry and poultry
products are affected similarly under both current and proposed authorities.
4 Congressional Quarterly, “Nation’s Meat Inspection Requirements Tightened,” 1967 CQ
Almanac, pp. 705-713.
to all or certain classes of persons engaged in the State in slaughtering amenable
species [i.e., cattle, sheep, swine, goats, equines], or preparing the carcasses, parts
thereof, meat or meat food products, of any animals for use as human food solely for
distribution within such State” (21 U.S.C. 661(a)(1); emphasis added by CRS).
Section 661 also requires USDA to assume federal inspection of state plants
whenever a state decides to terminate its own program, or USDA determines that
FMIA requirements are not being met.
Pursuant to the FMIA as amended by the Wholesome Meat Act, USDA-FSIS
must receive a formal request for a program from the governor, and review the state’s
laws, regulations, and performance plan (including funding, staffing, training, labels
and standards, enforcement, laboratory and testing procedures, and other aspects).
To ensure continued compliance, FSIS annually certifies state programs based on a
review of materials (like performance plans and an annual report submitted by the
state); FSIS also conducts a more comprehensive review of each state every one to
Proposed Inspection Changes
Section 11103 of the House version of H.R. 2419 would have rewritten rather
than merely amended Title III of the FMIA.6 It would have entailed a number of
major departures from current authority. The Senate language was approved as
Section 11067. House-Senate conferees generally adopted the Senate language, as
Section 11015 of the final bill. Unlike the provisions in the House bill, the
conference-adopted Senate language would not replace Title III (federal-state
cooperation) in the current FMIA. Rather, it would create a new Title V —
Inspections by Federal and State Agencies.7
Allowing State-Inspected Products in Interstate Commerce
Currently, state-inspected meat cannot be sold in interstate commerce. Under
the Senate bill as endorsed by the conference committee, state programs currently
operating under the Title III “at least equal to” requirements presumably could
continue, so long as products were not shipped across state lines. The new Title V
would enable many state-inspected establishments — i.e., those already covered by
Title III — to be selected by USDA (in cooperation with the state agency) to receive
the federal mark of inspection and ship products in interstate commerce. Although
state inspectors could continue to be in these designated plants, inspection in such
plants essentially would be under federal supervision.
More specifically, under the conference (and Senate) bill, the U.S. Secretary
of Agriculture would be required to designate and directly supervise a federal
5 An FSIS summary of Cooperative Inspection Program Functions can be accessed on the
Internet, at [http://www.fsis.usda.gov/OPPDE/FSLGRS/MPI/oversight.htm].
6 As indicated, although this report generally does not reference poultry and the PPIA, the
farm bill provisions discussed here would similarly affect the poultry program.
7 As with the House-passed bill, similar provisions would apply to poultry products as well.
employee as the state coordinator for each appropriate state agency. This new
coordinator’s responsibilities would be to provide oversight and enforcement of Title
V, and to oversee state training and inspection activities by state personnel. The
coordinator would have to visit the covered establishments to ensure they are
operating consistently with the FMIA, submit quarterly reports on each
establishment’s status and compliance, and “deselect” plants or suspend their
inspection if they violate any requirement.
The House language would have explicitly allowed “the shipment in
commerce” of products (i.e., carcasses, carcass parts, meat, and meat food products)
under the newly approved Title III programs. Another House provision would have
changed Title IV of the current FMIA to further direct that “a State or local
government shall not prohibit or restrict the movement or sale of meat or meat food
products that have been inspected and passed in accordance with the Act for
Currently USDA is authorized to approve state programs that have requirements
at least equal to federal requirements. According to FSIS, “at least equal to” now
means “that the food safety and other consumer protection measures effected by a
State program address the same issues addressed by the Federal (FSIS) program, and
the results of the State’s approach are to be at least as effective as those of the Federal
program. The State program need not take exactly the same action as the Federal
The proposed House language would have authorized USDA to approve (and
then enter into cooperative agreements with) only those state programs that “adopt
(including adoption by reference) provisions identical to titles I, II, and IV (including
the regulations, directives, notices, policy memoranda, and other regulatory
requirements under those titles) ...” States would have had to ensure that their
products bear a mark of state inspection as the official mark. Titles I, II and IV
essentially are all other provisions of the FMIA, which cover such components as
inspection requirements, definitions of adulteration and misbranding, and
enforcement authorities, among other provisions.
Restrictions on Size of State-Inspected Plants
The conference (and Senate) bill would limit eligible establishments to those
with 25 or fewer employees. Also, USDA would be authorized to develop
procedures enabling state-inspected establishments with more than 25 employees to
shift to regular federal inspection. Finally, under the conference (Senate) version,
state-inspected plants with more than 25 employees but fewer than 35 employees
could be selected for the new state program, but they would have to shift to regular
federal inspection within three years of promulgation of a final rule.
The House version would have imposed a restriction limiting the size of an
establishment that could be accepted under a new state program to no more than 50
8 “State Cooperative Inspection Programs,” FSIS Directive 5720.2, Revision 3, November
employees. However, it appears that larger establishments could have continued to
participate if they became state-inspected within 90 days of enactment.
Option to Become State-Inspected
Under the conference (and Senate) bill, current, future, and previously federally
inspected establishments would be ineligible to join the new state program. Under
the House bill, certain establishments that currently are federally inspected could
have applied for inspection under the new state program if their states had one.
Cooperative Agreement and Other Support Provisions
Currently, USDA and the states with programs enter into formal cooperative
agreements that provide for, among other things, matching federal funds of 50%.
Under the conference bill, states would continue to be eligible for federal
reimbursement, but now for up to 60% of the cost of their meat and poultry
inspection programs. Conferees deleted a provision in the Senate bill that would
have reimbursed a state for 100% of eligible costs if the state provided additional
microbiological verification testing of selected establishments. The conference (and
Senate) bill also would create a new technical assistance division at FSIS to
coordinate training, education, technical assistance, and outreach for very small and
certain smaller-sized establishments.
Earlier Legislative Proposals
New Markets for State-Inspected Meat and Poultry Act of 2007 (H.R.
2315/S. 1150). The state inspection provisions of the House-passed farm bill
essentially were adapted from language found in H.R. 2315/S. 1150, introduced,
respectively, by Representative Pomeroy in May and Senator Hatch in April 2007.
H.R. 1760/S. 1149. Introduced in March 2007 by Representative Kind and
in April 2007 by Senator Kohl, H.R. 1760/S. 1149, would strike the provisions in the
FMIA and PPIA that prohibit the interstate shipment of state-inspected meat and
poultry. The bills also would set the federal reimbursement rate for state costs at no
less than 50% and no more than 60%.
Selected Policy Issues
Under the new farm bill, for the first time in 40 years, meat and poultry that is
not federally inspected could be shipped across state lines. These and other pending
changes raised a series of issues that were debated by proponents and opponents of
What Is “Identical”?
At issue have been the impacts, if any, of these changes on the safety of meat
and poultry products. Concerns about any adverse effects stem largely from the
supposition, long held by consumer advocates and other critics, that state inspection
programs do not provide the same level of safety as the federal inspection programs.
As noted, state measures now must be “at least equal to” the federal measures,
notably including mandatory ante mortem and post mortem inspection, reinspection
and sanitation requirements.
The current FSIS state review manual provides more specifics on how this is to
be achieved. For example, under FSIS rules promulgated in 1996, each federally
inspected establishment must have a HACCP (for hazard analysis and critical control
point) plan that identifies each point in its process where contamination could occur,
have a remedy to control it, implement the plan, monitor the process, and keep
detailed records. As part of the plans, all operations must have site-specific standard
operating procedures (SOPs) for sanitation. USDA inspectors check the
establishment’s records to verify a plant’s compliance.
Accordingly, the FSIS state review manual directs that “State MPI Program
officials also must verify a HACCP or equivalent system that evaluates hazards, takes
steps to address hazards, and routinely verifies that product is safe, wholesome,
unadulterated, and properly labeled.”9 FSIS must approve and regularly review the
states to ensure that they are following these types of procedures.
The House farm bill language would have gone even further by requiring that
they be identical, and making it clear that this applies to all “regulations, directives,
notices, policy memoranda, and other regulatory requirements.” Moreover, a
condition of acceptance into the new state program would have been that the state
implement, within 180 days of a USDA review of its system, all changes identified
in the review to ensure enforcement of federal requirements. A possible indication
of its more prescriptive nature was that the National Association of State
Departments of Agriculture (NASDA), which promoted interstate shipment
legislation for many years, had once suggested that it might not support a proposal
with a requirement that states adopt “identical” rules.10 Nonetheless, supporters of
the House bill had argued that it would replace the current collection of 27 separate
state programs with a single type of state program operating seamlessly with the
On the other hand, opponents of the House bill countered that it was unclear
whether or not the “identical” language would also apply to all activities associated
with inspection, some of which might fall outside of the “regulations, directives,
notices, policy memoranda and other regulatory requirements.” Would or could the
language apply, for example, to states’ certifying procedures and contractual
relationships with testing laboratories? What about staffing and training practices?
9 FSIS Manual for State Meat and Poultry Inspection Program Reviews, August 2007, at
[ h t t p : / / www.f s i s .usda.gov/ PDF/ St a t e _Pr o gr ams_Revi ew_Manual _2007.pdf ] .
10 September 11, 2007, telephone discussion with NASDA staff.
Opponents of the House farm bill language had argued that at a minimum, these
types of questions should be answered before a new program was passed that might
continue some “at least equal to” activities that, in their view, have been substandard.
They cited a September 2006 report by USDA’s Office of Inspector General (OIG)
that examined FSIS’s oversight of the state programs. Though FSIS routinely gathers
state staffing data, it does not use the data to determine if state staffing levels are
appropriate for carrying out inspection activities, so some state programs may not
have enough personnel to ensure their programs are “at least equal to” the federal
program, OIG concluded. FSIS state reviews did not include determinations of
whether laboratories used by the state to test products were providing accurate,
reliable results, OIG also concluded, adding that FSIS officials told the OIG
investigators that these were outside the scope of the FMIA and PPIA.11
One area where state and federal programs may diverge is in their sampling and
testing methodologies used to verify that HACCP plans are producing safe products.
Inspection officials have argued that regardless of which particular testing system is
used, it has to be scientifically and legally defensible; critics have asserted that
different methodologies can lead to different safety findings and therefore potentially
different levels of safety. Another area where a present state program may differ
from the federal system is in staffing and training; some states, for example, avail
themselves of at least some USDA training; others may prefer their own programs
— but all must meet basic outcomes. By requiring a federal employee to oversee
each new state program, and by creating a new FSIS training division, drafters of the
Senate bill (adopted by conferees) aimed to address concerns about these aspects of
Are State Inspectors More Lenient
than Federal Inspectors?
The Senate Agriculture Committee held a hearing in April 2000 on a proposal
(S. 1988) by Senator Daschle to permit state-inspected products in interstate
commerce, if the programs adopted all federal inspection requirements. At that
hearing, the director of the Ohio Department of Agriculture argued that state
personnel are generally more accessible and flexible in providing inspection
resources geared to the needs and time constraints of small plants; and that states
offer practical information, technical assistance, and other support to smaller plants
that lack the scientific and legal expertise needed to deal with government
regulations. Furthermore, the Ohio director characterized the federal system as a
“multilayered chain of command [with a] frequently adversarial attitude.”12 Several
meat processing companies also testified that communicating with state officials to
solve problems was far easier than with federal officials.
11 Audit Report: Food Safety and Inspection Service — State Meat and Poultry Inspection
Programs (USDA/OIG-A/24005-1-AT), September 2006. The OIG report also raised
questions about FSIS’s criteria and documentation for determining the “equal to” status of
other aspects of state programs, which is discussed elsewhere in this report.
12 Fred L. Dailey, Director, Ohio Department of Agriculture and President, National
Association of State Departments of Agriculture, April 6, 2000 testimony before the Senate
Pressed for more specifics on barriers to joining federal inspection, the Ohio
director cited three reasons. First, USDA’s plant design and engineering
requirements include elements that, he said, do not relate to food safety but would be
expensive to meet — changing 3-inch drains to 4-inch drains, for example. Second,
plants would rather communicate with the state than federal “bureaucracy,” as noted
above. Third is overtime costs (which plants pay for inspection beyond regularly
scheduled shifts); the federal government charges considerably more than states.
In a 2001 report, the University of Nebraska examined, for the state legislature,
the potential impacts of adopting a state inspection program there. It polled other
states to determine why some adopt such programs and others do not. Among those
that chose to maintain state inspection, the most frequently cited factor was “the
desire for greater responsiveness to the unique needs of producers and processors.”13
Consumer advocates interpret the communication and flexibility arguments to
mean that companies can more easily influence states to adopt less stringent safety
requirements or to enforce them less rigorously. One consumer advocate who
testified at the 2000 Senate hearing argued that the state “equal to” provision was
adopted as a compromise: The 1967 Wholesome Meat Act “was driven by the
revelation of filthy conditions and the lack of standards in state-inspected meat plants
and the need to improve physical facilities and sanitation practices. However, it
became clear that some of the smallest plants could not meet the physical facility
requirements of the proposed law.... There was no discussion in 1967 of the potential
public health risk inherent in this action, but the prohibition on sale across state lines
recognized that these products were likely not to be the same as those produced in
federally inspected plants.”14 Such advocates continue to assert that state standards
are not as strong as federal standards, regardless of the “equal to” determination.15
Does USDA Provide Adequate Oversight
of State Programs?
Neither the OIG in its 2006 report nor a relevant 2002 federal appeals court
ruling would agree, without qualification, that state-inspected meat and poultry are
13 Kara Slaughter and others, Potential Impacts of State Meat and Poultry Inspection for
the State of Nebraska, Submitted to the Agriculture Committee of the Nebraska Unicameral
by the University of Nebraska Public Policy Center, May 2001 (revised July 2001).
14 Testimony of Carol Tucker Foreman, Distinguished Fellow and Director, Food Policy
Institute, Consumer Federation of America. Recent releases and statements by Foreman and
others argue that it is untrue that very small plants cannot operate under federal inspection,
citing as evidence the nearly 3,000 (generally those with less than 10 employees) that do,
according to USDA data.
15 It should be noted that the Consumer Federation of America (CFA) and other consumer
groups had extended their support for this earlier proposal (S. 1988) to permit interstate
shipment. Their support was made contingent on retention of the introduced bill’s language
requiring not only that states adopt identical standards, but also that state-inspected plants
be subject to a pathogen reduction program as then being implemented in federally inspected
plants. For background on pathogen testing and issues, see CRS Report RL32922, Meat and
Poultry Inspection: Background and Selected Issues, by Geoffrey S. Becker.
necessarily as safe as federally inspected products. The OIG report concluded, for
example, that although FSIS had a manual with detailed procedures and checklists
for conducting onsite state reviews, “how the agency arrived at its decisions
regarding the acceptability of State MPI (meat and poultry inspection) programs are
not clearly documented in FSIS’ summary reports. In other words, while the manual
establishes clear guidelines for identifying problems in State MPI programs, how
those problems are weighed in the determination and documented in the summary
report [on a state program] was less clear. This condition was caused by the agency’s
decision to eliminate specific decision-making criteria from its comprehensive
OIG noted elsewhere in its findings: “When the agency revised its directives
for inspecting these programs, an agency official said FSIS eliminated specific
criteria for weighing violations and rendering decisions in order to avoid being overly
prescriptive and to allow reviewers to use their discretion. Officials reviewing these
programs thus lack clear, objective, and uniform guidelines for weighing the effect
of establishment deficiencies on State MPI program findings and for documenting
the relationship between these violations and the final determinations.” OIG said, for
example, that FSIS had granted “at least equal to” status to several states even though
they found HACCP and sanitation deficiencies in establishments in those states —
and the deficiencies were similar to those from a review of another state program
where “significant concerns” were cited.17
In Dailey v. Veneman, a federal appeals court in 2002 upheld a district court’s
decision to reject Ohio’s legal bid to gain interstate acceptance of its state-inspected
products. Among other arguments, Ohio had asserted that the lower court should
have accepted as true the allegation that state-inspected products were as safe as
federally and foreign-inspected meat and poultry and the current federal law lacks a
rational basis for treating state-inspected meats and poultry differently. The appeals
court responded in part: “Though the USDA does keep an eye on state inspection
programs, it keeps yet a closer eye on its own plants and on meat and poultry entering
the country, and it is possible that a state program could deteriorate for a time without
the USDA’s knowledge. This policy provides a rational basis for Congress to restrict
the interstate transport of state-inspected meat.”18
CRS informal discussions in 2007 with various state and federal inspection
experts suggest that many state inspection procedures look remarkably similar (and
often may be identical) to those in federal establishments, including all key ante-
mortem and post-mortem functions. For example, in all state programs, a
16 Audit Report: Food Safety and Inspection Service — State Meat and Poultry Inspection
Programs. The FSIS Manual for State Meat and Poultry Inspection Program Reviews,
current through August 2007, at [http://www.fsis.usda.gov/PDF/State_Programs_Review
17 Audit Report: Food Safety and Inspection Service — State Meat and Poultry Inspection
18 Fred L. Dailey, Director of the Ohio Department of Agriculture, Ohio Department of
Agriculture et al., v. Ann M. Veneman, Secretary, U.S. Department of Agriculture U.S.
Court of Appeals for the Sixth Circuit, 2002 U.S. App. LEXIS 24623, December 3, 2002.
government veterinarian examines all live animals before they are slaughtered, just
as in the federal system. Trained state inspectors observe slaughter and processing
operations and look for virtually the same problems that federal inspectors are
looking for, according to these experts. Where the inspection process may diverge
appears primarily to be in how the inspector communicates with the establishment
to correct deficiencies, those knowledgeable with the programs explain. Federal
officials, for example, might simply point out a deficiency and possibly inform the
establishment where it might look for information or assistance to correct the
situation. State officials are more likely to work directly with the plant, providing
technical assistance and other resources to remedy the problem, these inspection
A longstanding argument, that federal rules require plants to undertake costly
plant and equipment changes, may be less relevant today since all plants, including
small and very small ones, now are expected to be operating under HACCP plans,
according to those knowledgeable about federal-state inspection. Recordkeeping by
establishments and verification by inspection personnel are used to ensure that the
system is working. Since January 2000 all slaughter and processing operations,
including small and very small establishments, are required to have HACCP plans
in place under the federal inspection program — and all state programs also have
incorporated HACCP or equivalent plans, these experts state. HACCP by nature is
less prescriptive with regard to how individual establishments achieve the standards
of safety, they add.20
The president of NASDA in 2007 asserted that USDA pays much closer
attention to the state programs than to foreign programs. “State inspection programs
undergo annual audits containing more than 125 pages of compliance procedures.
By comparison, USDA’s audit document for evaluating the 38 foreign inspection
systems is a one-page checklist.”21
Would Federal Establishments Switch to State Inspection?
This question first arose out of two provisions in the House bill. First, Section
302(d), Restriction on Establishment Size, stated that after the date that is 90 days
after enactment, “establishments with more than 50 employees may not be accepted
into a State meat inspection program. Any establishment that is subject to state
inspection on such date, may remain subject to State inspection.” Second, Section
306, Federal Inspection Option, stated that “[a]n establishment that operates in a
State with an approved State meat inspection program may apply for inspection under
19 USDA claims to be devoting greater efforts now to outreach and assistance to small and
very small plants under its jurisdiction; see [http://www.fsis.usda.gov/Science/Small_Very_
20 More on HACCP can be found in CRS Report RL32922, Meat and Poultry Inspection:
Background and Selected Issues.
21 Roger Johnson, Commissioner, North Dakota Department of Agriculture, from an op-ed
piece reprinted in the October 2, 2007 edition of Pro Farmer’s Inside Washingon Today
column on AgWeb.com [http://www.agweb.com]. (Subscription required.)
the State meat inspection program or for Federal inspection.” (Such an establishment
cannot apply more than once every four years.)
There was concern that under the House bill, larger plants could have evaded
the size restriction by coming under state inspection if they did it within the initial
90 days of enactment. There was some uncertainty as to whether this 90-day window
in the House bill would have applied to larger plants that want to enter existing state
programs, or whether this would have applied to the newly authorized state program,
although it would appear that the existing programs would no longer have been
authorized under the proposal. Assuming that the House legislation implied the latter
situation, then further uncertainty arose regarding whether a state could apply for and
achieve recognition within such a short time period.
The conference-adopted Senate language, by adding a new Title V, supplements
rather than replaces the existing state programs.
Consumer advocates and employee unions had found the second House
provision — to permit federal plants to convert to state inspection — to be one of the
more controversial provisions. They cited statistics provided by USDA that there are
5,603 federally inspected meat and poultry plants. Of these, approximately 80% (or
more than 4,500) have fewer than 50 employees, creating the potential for an exodus
from the national program. “With that change, if a federal inspector pressures a meat
packer to improve sanitation, the packer could instead try to negotiate a more
understanding regulatory response from his state inspection program,” these groups
recently argued. This would have threatened not only food safety but also the jobs
of thousands of federal inspection employees, they claimed. “The provisions would
also unleash lobbying campaigns to set up state inspection programs in the 22 (now
23) states that currently do not have them so plants in those states can also seek
‘more understanding’ enforcement of food safety laws under state programs.”22 The
Senate “compromise” language adopted by conferees clarifies that current, future, or
prior federal establishments would not be eligible for the new state inspection
How Might Foreign Trade Be Affected?
Under Section 20 of the FMIA (and Section 466 of the PPIA), FSIS is
responsible for determining the equivalence of other countries’ meat and poultry
safeguards. A foreign plant cannot ship products to the United States unless FSIS has
certified that its country has a program that provides a level of protection that is at
least equivalent to the U.S. system.23 FSIS experts visit the exporting country to
review its rules and regulations, meet with foreign officials, and accompany them on
22 The Safe Food Coalition (Center for Foodborne Illness Research & Prevention, Consumer
Federation of America, Food and Water Watch, Government Accountability Project,
National Consumers League, Safe Tables Our Priority, United Food and Commercial
Workers Union) and the American Federation of Government Employees, July 25, 2007,
letter to Members of Congress.
23 A list of the current agreements can be accessed at [http://www.fsis.usda.gov/regulations
visits to slaughtering and processing plants. When a foreign program is approved,
FSIS relies on that government to certify eligibility of, and to inspect, the plants.
FSIS periodically reviews foreign government documents and conducts on-site audits
at least annually to verify continuing equivalence. In addition, FSIS operates an
extensive reinspection program at U.S. border entry points.
Food safety equivalence is a concept the United States adopted as a signatory
to the 1994 Uruguay Round (UR) trade agreements, and specifically the Agreement
on the Application of Sanitary and Phytosanitary Measures (the SPS agreement).
Article 4.1 of the SPS agreement states:
Members shall accept the sanitary or phytosanitary measures of other Members
as equivalent, even if these measures differ from their own or from those used by
other Members trading in the same product, if the exporting Member objectively
demonstrates to the importing Member that its measures achieve the importing
Member’s appropriate level of sanitary or phytosanitary protection. For this
purpose, reasonable access shall be given, upon request, to the importing
Member for inspection, testing and other relevant procedures.
According to FSIS, the burden for demonstrating equivalence rests with an
exporting country. The agency’s initial evaluation to determine foreign equivalence24
is quite extensive and detailed. As a practical matter, it would appear to be difficult
for a foreign country to demonstrate successfully that any system that is not
nationally administered (i.e., state, local) should be recognized as equivalent;
apparently, none are so recognized currently. In fact, countries that ship meat and
poultry to the United States are more likely to have dual safety regimes: one for the
plants that sell domestically, and another, certified by the United States (and possibly
other countries) as equivalent for export. If the conference bill permits products
inspected by states into commerce (and if such commerce included foreign as well
as interstate shipments), it might be reasonable to assume that other countries with
their own “state systems” could seek new equivalency determinations which
encompass such systems.
As described earlier, the new farm bill would explicitly allow the shipment in
commerce of products (i.e., carcasses, carcass parts, meat, and meat food products)
under the newly approved programs. Some have argued that the new language
should be interpreted to cover only commerce between (not outside) the states and
territories. However, Title I of the current FMIA defines commerce as “commerce
between any State, any Territory, or the District of Columbia, and any place outside
thereof; or within any Territory not organized with a legislative body, or the District
of Columbia.” Related USDA questions have included whether individual states
might be negotiating with foreign trading partners about import policies and
conducting their own audits of foreign establishments, whether trading partners
would audit all state programs, whether some states could export products to a
particular country while others could not, and whether the United States would (and
could) segregate products intended for export based upon state of origin.
24 See FSIS, Process for Evaluating the Equivalence of Foreign Meat and Poultry Food
Regulatory Systems, October 2003, at [http://www.fsis.usda.gov/OPPDE/IPS/EQ/
Do Foodborne Illness Data or Pathogen Testing
Provide Any Clues to the Relative Safety of
Food safety advocates and others frequently cite the incidences of foodborne
pathogens and of foodborne illnesses as reasons to be concerned about food safety
programs. A frequently cited estimate used by federal officials and food safety
advocacy groups alike is that each year, 76 million people become sick, 325,000 are
hospitalized, and 5,000 die from foodborne illnesses caused by contamination from
any one of a number of microbial pathogens.25
It also should be noted that these estimates reflect illnesses related to all types
of foods, not solely to meat and poultry products. The CDC does observe:
Raw foods of animal origin are the most likely to be contaminated; that is, raw
meat and poultry, raw eggs, unpasteurized milk, and raw shellfish. Because
filter-feeding shellfish strain microbes from the sea over many months, they are
particularly likely to be contaminated if there are any pathogens in the seawater.
Foods that mingle the products of many individual animals, such as bulk raw
milk, pooled raw eggs, or ground beef, are particularly hazardous because a
pathogen present in any one of the animals may contaminate the whole batch.
A single hamburger may contain meat from hundreds of animals. A single
restaurant omelet may contain eggs from hundreds of chickens. A glass of raw
milk may contain milk from hundreds of cows. A broiler chicken carcass can
be exposed to the drippings and juices of many thousands of other birds that went26
through the same cold water tank after slaughter.
In April 2007 and April 2008 reports, the CDC compared the incidence of
various foodborne infections in 2006 with baseline data from 1996-1998. The
reports observed that significant declines in the incidence of certain foodborne
pathogens have occurred since 1996, but generally the declines were before 2004.27
The April 2007 CDC report had observed that an earlier decline in Shiga toxin-
producing E. coli O157 (STEC O157) infections was “temporally associated” with
measures by FSIS and by beef processors to reduce ground beef contamination —
measures which were “accompanied by a decline in the frequency of isolation of
STEC O157 from ground beef in 2003 and 2004.” Further, although the frequency
of finding the pathogen in products in 2005 and 2006 was the same level as in 2004,
“Reasons for the increases in human STEC O157 infections in 2005 and 2006 are not
25 The source of this estimate is the U.S. Department of Health and Human Services, Centers
for Disease Control and Prevention (CDC), “Foodborne Illness: Frequently Asked
Questions,” accessed at [http://www.cdc.gov/foodsafety/]. The estimate appears to be based
primarily on 1997 and earlier data in a report by Paul S. Mead et al., “Food-related Illness
and Death in the United States,” Emerging Infectious Diseases, vol. 5., pp. 607-625, 1999.
26 CDC, “Foodborne Illness: Frequently Asked Questions.”
27 CDC, “Preliminary FoodNet Data on the Incidence of Infection with Pathogens
Transmitted Commonly Through Food — 10 States, 2006,” Morbidity and Mortality Weekly
Report, April 13, 2007, and April 11, 2008.
known.” While not attributing this to either meat and poultry or to produce, the CDC
did take note of STEC O157 outbreaks in 2006 caused by contaminated lettuce and
The CDC report explained that transmission of Salmonella to humans can occur
via many vehicles, including produce, eggs, poultry and other meat, and direct
contact with animals and their environments. (It also noted an occurrence through
tomatoes in 2006.) However, the report noted that poultry is an important source of
human Salmonella infections. It also discussed the FSIS initiative to reduce
Salmonella in poultry and other meat, and that in 2006 the lowest percentages of
chickens tested positive for the pathogen.
The FSIS pathogen testing cited by the CDC is one of the ways the agency
monitors the effectiveness of establishments’ HACCP plans.28 Consumer advocates,
industry officials, and others closely follow both FSIS testing results and the CDC
disease reports, and often speculate about their significance.
Nonetheless, neither FSIS testing results nor this CDC report appear to offer any
conclusive evidence of a causal relationship between FSIS program modifications on
the one hand, and changes in the occurrence of foodborne illnesses on the other.
Even if the difficulties in making such an attribution could be overcome, it would not
likely answer the further question regarding the distinctions, if any, between federally
inspected and state-inspected products as the cause of foodborne illnesses. Among
other potential variables, state testing programs can differ from the federal programs,
making comparisons between testing results difficult at best.
As noted, the new farm bill would amend the FMIA and PPIA in order to
modify a key element of federal food safety policy that has been in place for 40 years.
At the heart of the debate has been a seemingly simple question: do, or can, state
programs provide the same assurance of product safety as the federal program? If the
bill becomes law, stakeholders will turn their attention to USDA, which will be
required to implement the new provisions. This rulemaking process can be expected
to fill in many of the details on program operation and, ultimately, to help determine
28 Information about pathogen reduction and testing results can be found at
[http:/ / www.f s i s .us da.gov/Science/Hazard_Analysis_&_Pathogen_Reduction/index.asp].