Nonprofit consumer advocacy organization Food & Water Watch, Inc. and two of its members have filed an action against the U.S. Department of Agriculture (USDA) and its Food Safety and Inspection Service seeking to enjoin their new National Poultry Inspection System (NPIS) rules. Food & Water Watch, Inc. v. Vilsack, No. 14-1547 (U.S. Dist. Ct., D.D.C., filed September 11, 2014). Details about the rules, which take effect October 20, 2014, appear in Issue 532 of this Update.
The plaintiffs allege that the rules violate the Poultry Products Inspection Act (PPIA) and Administrative Procedure Act (APA). They interpret the PPIA as requiring “that federal inspectors critically appraise all chicken and turkey carcasses and viscera,” and set forth how increased line speeds and rules giving poultry employees, without training or certification, the authority to inspect and remove adulterated birds or parts from processing lines before inspectors see them violate this requirement. Without actual inspection of every bird, both internally and externally, by a federal inspector, the plaintiffs claim that the official inspection legend—“Inspected for wholesomeness by U.S. Department of Agriculture”—affixed to poultry products will mislead consumers.
They also contend that the defendants failed to provide an opportunity for oral presentation of views by refusing to allow anyone other than members of USDA’s Advisory Committee on Meat and Poultry Inspection to testify on the proposed NPIS rules and by failing to include for comment in the draft rules certain provisions that were adopted as part of the final rule. The plaintiffs claim that the NPIS is arbitrary and capricious in violation of the APA because the “Defendants relied on inappropriate factors which Congress has not intended them to consider under the PPIA, and they entirely failed to consider  important aspects related to preventing adulterated and misbranded carcasses from entering commerce, offered explanations for [their] NPIS rules counter to the evidence before the agency, and offered implausible and inadequate responses to public comments.”
The plaintiffs seek a declaration that the NPIS rules are illegal, orders temporarily and permanently enjoining the NPIS rules from taking effect, an order vacating the rules, and attorney’s fees and costs. Food & Water Watch Executive Director Wenonah Hauter said, “These rules essentially privatize poultry inspection and pave the way for others in the meat industry to police themselves. The USDA’s decision to embrace the scheme—an initiative lobbied for by the meat industry for more than a decade—flies in the face of the agency’s mandate to protect consumers. What’s more, we believe it’s illegal.” See Food & Water Watch Press Release, September 11, 2014.