Food safety, certification programmes, animal safety and disease

Livestock legislation

List the main applicable enacted legislation for primary processors of live animals.

Primary processors in the United States are subject to legislation governing their methods of treatment and slaughter of live animals. The Humane Methods of Slaughter Act (HMSA) governs the slaughter process itself. HMSA enjoys some preemptive power over the states and is enforced by the USDA. Importantly, HMSA does not apply to poultry slaughter.

Another principal piece of legislation in this area is the Federal Meat Inspection Act of 1906 (FMIA). FMIA confers broad authority onto the FSIS, a federal agency within the USDA, to implement and enforce thorough inspection criteria for food processors. FMIA applies to slaughterhouses that transport their products across state lines. A supplemental piece of legislation, the Wholesome Meat Act of 1967, requires all states to have intrastate inspection programmes ‘equal to’ that of the federal government. These laws work in tandem to create a national scheme of health and safety governance applicable to primary processors of most live animals. Relatedly, the Poultry Products Inspection Act of 1957 imposes safe and humane slaughter and processing of poultry products.

Food safety regime

Describe food safety regulations for meat and poultry products, and all other food products in your jurisdiction.

See questions 1 and 2.

Safety enforcement

What enforcement can take place in relation to food safety? What penalties may apply?

The Food Safety Modernization Act (FSMA) imposes numerous food safety requirements on food companies, including a mandate that companies that manufacture, pack or hold food develop written food safety plans. These food safety plans include, among other things, a hazard analysis to identify reasonably foreseeable hazards to humans or animals and controls to minimise or prevent those hazards

FSMA arms the FDA with enhanced monitoring and enforcement powers, including the authority to issue a mandatory recall when there is ‘reasonable probability’ that a food is adulterated or misbranded and will cause serious adverse health consequences or death to humans or animals. The FDA rarely uses its recall power, instead using public announcements and other means to encourage a company to issue a voluntary recall. The FDA can suspend a facility’s registration, seize and detain food, and impose both civil and criminal liability for individuals or corporations that sell adulterated or misbranded products.

Regarding meat, poultry and eggs products, the FSIS has similar legal authority to take administrative, civil or criminal enforcement actions against individuals and companies for violations of the FMIA, PPIA and EPIA. These actions can include detention of products when there are insanitary conditions at a facility or inhumane slaughter or handling. Recalls are initiated by the manufacturer or distributor. At times, the FSIS recommends a company initiate a recall, but all recalls are voluntary. If a company refuses to initiate a voluntary recall, the FSIS has the legal authority to detain and seize those products in commerce. The FSIS can also stop facility production, seize product, file an injunction and seek civil or criminal penalties.

Product certification

Describe any certification programmes and regulations for genetically modified foods and organic foods.

In the US, third-party certifying organisations establish adherence to certain voluntary standards, such as organic certification and labelling and labelling products as ‘non-GMO’. Organic certification verifies that the company complies with USDA organic regulations and allows certified companies to label, market and sell products as organic.

Bioengineered foods are regulated by the USDA under the National Bioengineered Food Disclosure Standard of 2016. All bioengineered foods or foods containing bioengineered food ingredients must bear specific labelling by 1 January 2022. The bioengineering disclosure requirement does not address foods that claim to be ‘non-GMO’; this is a claim usually made with certification from a third party that the food is ‘non-GMO project verified’.

Food labelling requirements

What are the food labelling requirements, including the applicable enacted legislation, enforcement and penalties?

Federal jurisdiction over food labelling is divided between two key agencies: the Food and Drug Administration (FDA) and the US Department of Agriculture (USDA). The FDA governs most foods sold in the United States under the Federal Food, Drug, and Cosmetic Act (FDCA). The FDCA requires five mandatory label elements: (1) product name; (2) net contents; (3) nutrition fact panel; (4) ingredient list; and (5) name and place of the manufacturer or distributor. Health claims (statements regarding how foods affect the ‘structure and function’ of the human body), and claims such as ‘light’, ‘fewer calories’, ‘less fat’, ‘fresh’, ‘bioengineered’, ‘pasteurized’, ‘organic’, ‘allergens’ and others are found in FDA regulations, guidance documents and compliance policy guides. In many cases, these regulations establish minute details of how text may appear on a label, including font size and placement.

Labelling of meat, poultry and certain egg products is regulated by the USDA’s FSIS. In contrast to products regulated by the FDA, labels for these products must be preapproved by the FSIS.

Labelling compliance is important - if the label fails to meet regulatory standards the food may be characterised as ‘misbranded’ and subject to government enforcement actions ranging from warning letters to product recalls to product seizures. Misdemeanour or felony criminal penalties are also possible. But perhaps the most discussed enforcement development in the last decade has been the growing trend of consumer class action lawsuits seeking substantial damages for labelling transgressions, both real and perceived.

Food animal legislation

List the main applicable enacted legislation regarding health of food animals, including transportation and disease outbreak and management.

The FDA Food Safety Modernization Act of 2000 (FSMA) establishes robust, proactive food safety measures across the spectrum of industries that market food products to the public. FSMA imposes safety and control requirements on the production of animal food, which covers food provided to food-producing animals, such as cattle and poultry.

A framework of federal statutory, regulatory and decisional law governs the transportation of food animals. For example, food animals’ health is protected during transportation by the so-called ‘28 Hour Law’ discussed in question 17. Additionally, state negligence law often sets the standard for protecting food animals from exposure to contagions and other disease-causing stimuli.

Animal movement restrictions

What are the restrictions on the movement of animals within your country?

Transportation of animals within the US is subject to restrictions found at 49 U.S.C.A. § 80502 (West 2019). Known as the ‘28 Hour Law’, this federal statute prohibits the ‘confine[ment of] animals in a vehicle or vessel for more than 28 consecutive hours without unloading the animals for feeding, water, and rest’. The statute applies to:

  • rail carriers, express carriers and common carriers (except by air or water);
  • receivers, trustees or lessees of a carrier; and
  • owners or masters of vessels or vehicles transporting the animals.

Exceptions include:

  • the confinement period may be extended by an additional eight hours in two circumstances:
    • when the transported animal is sheep and the 28-hour maximum concludes at night; and
    • if the owner or custodian of the animals makes a separate request in writing for a time extension;
  • any animal may be confined in excess of 28 hours if unloading the animal cannot be accomplished safely in light of ‘accidental or unavoidable causes that could not have been anticipated or avoided when being careful’; and
  • the confinement period is inapplicable where the animals are transported by means which allow for food, water, space and an opportunity for rest.

Maximised confinement periods must be followed by five consecutive hours of release when food, water and rest are provided. Violations of the 28 Hour Law expose those bound by it to civil penalties ranging from US$100-US$500.

The Safe Air Travel for Animals Act governs the transportation of pets and other live animals through air travel.

Slaughter legislation

Where would one find the regulations related to livestock slaughtering?

The regulations are primarily codified under Title 9 of the Code of Federal Regulations. USDA’s virtual ‘National Agricultural Library’ houses pertinent statutory and regulatory law and explanatory secondary sources in a retrievable format. The Humane Methods of Slaughter Act, FSIS regulations and training materials and GAO enforcement reports are accessible through the USDA’s library.

Pest control requirements

Outline the regulatory regime for pesticides in your jurisdiction.

In the US, the Environmental Protection Agency (EPA) regulates pesticides, with authority derived from the Federal Insecticide, Fungicide and Rodenticide Act of 1947 (FIFRA). FIFRA operates as a registration statute and requires EPA approval and registration of pesticides prior to their sale, distribution or use in the US. A party seeking to register a pesticide must submit certain categories of testing data to the EPA. In determining whether to register a pesticide, the EPA engages in a cost-benefit analysis of the pesticide’s intended uses, weighing the potential adverse effects on human health and the environment against the benefits of the intended use. Additionally, states may regulate the sale and use of pesticides if they do not allow a sale or use that is prohibited by FIFRA. States cannot impose labelling requirements in addition to or different from those required under FIFRA.

The Federal Food, Drug and Cosmetic Act (FFDCA) will apply if pesticides are applied to food or food crops. Under the FFDCA, as amended by the Food Quality Protection Act of 1996 (FQPA), the EPA must establish a maximum safe level, or tolerance, of pesticide residue depending on the type of crop. Statutes such as the Endangered Species Act, Clean Water Act and Safe Drinking Water Act apply generally to a broader category of chemical use and storage, but certain pesticides may be addressed specifically.