Finding a lack of standing, a D.C. federal court has dismissed Food & Water Watch’s lawsuit alleging that the U.S. Department of Agriculture’s (USDA’s) New Poultry Inspection System (NPIS) is inconsistent with the Poultry Products Inspection Act (PPIA), which requires USDA to ensure that poultry products are wholesome, unadulterated and properly marked, labeled and packaged. Food & Water Watch v. Vilsack, No. 14-1547 (U.S. Dist. Ct., D.C., order entered February 9, 2015). The NPIS reduces the number of USDA inspectors at the slaughter line of poultry production facilities, “freeing up [USDA Food Safety and Inspection Service] resources to conduct offline inspection activities that are more important for food safety, such as verifying compliance with sanitation and [other] requirements, or conducting Food Safety Assessments.”
Food & Water Watch challenged the NPIS as consumers of poultry, arguing that the USDA inspection label indicated to them that a federal employee had inspected the poultry and that the product met federal safety and quality standards. According to the court, the complaint called NPIS “’an unprecedented elimination of inspection resources for a secret set of young chicken and turkey slaughterhouses’ that will ultimately ‘threat[en] public health and introduc[e] unwholesome poultry into interstate commerce.’”
The court found that the Food & Water Watch leaders, as individuals, did not have standing to sue because “the harm that purportedly results from the challenged conduct must be imminent (aka ‘certainly impending’), which ordinarily means that the plaintiff must show that the injury will occur as a result of the challenged act.” Acknowledging that an increased risk of harm will suffice, the court stated that the plaintiff “must do more than merely assert that there is some conceivable risk that she will be harmed on account of the defendant’s actions”; rather, the plaintiffs must show that the increased risk and the probability of the harm occurring are substantial. The plaintiffs also alleged that the NPIS would cost them money because they would seek out poultry produced at non-NPIS facilities, and this avoidance injury gave them standing to sue, but the court disagreed. “[A] plaintiff cannot transform a remote risk into a concrete injury merely by taking steps to avoid that risk; to hold otherwise would eliminate the injury-in-fact requirement entirely because plaintiff’s actions are always within plaintiff’s control.”
The court also refused to hold that by implementing a labeling scheme, the PPIA requires USDA to disclose information about poultry inspection to the public. “[I]t does not make sense to construe this particular statute to require the disclosure of certain information on the basis of its labeling provision because the PPIA broadly defines the required ‘official inspection legend’ as ‘any symbol prescribed by regulations of the Secretary showing that an article was inspected for wholesomeness in accordance with this chapter’  and does not obligate Defendants to include any particular information about the inspection process specifically or food safety in general.” Further, Food & Water Watch did not have standing to sue, the court said, because (i) the organization’s mission does not conflict with USDA’s conduct, (ii) the organization’s programmatic concerns were not injured and (iii) Food & Water Watch failed to properly assert an informational injury. Finding no standing to base the challenge upon, the court denied Food & Water Watch’s motion for a preliminary injunction and dismissed the case.