The USDA’s Lack of Authority

The Ethicurean
by Marc R. aka Mental Masala

A line of 7,500 trucks stretching 85 miles. That’s what it would take to haul the nearly 300 million pounds of meat and poultry products that were recalled between January 1, 1994, and November 30, 2007, in 773 separate incidents. These eye-popping numbers come from the appendix of a Congressional Research Service (CRS) report about the recall authority of the USDA. (Note: my truck calculation is based on 60-foot-long trucks each carrying 20 tons.)

Most recalls are initiated because of contamination of the product by the microorganisms Listeria monocytogenes and E. coli O157:H7 (accounting for 48% and 32% of recalled product by weight, respectively). About one-quarter of the recalls are caused by mislabeling, foreign objects ending up in the product, or other reasons.

The chart , which was extracted from the appendix of the CRS report, shows the amount of meat and poultry products recalled each year since 1994. Note that Listeria was all the rage in the late 90s, but recently E. coli has taken top billing. The E. coli upsurge might even be reason enough for the Food Network to start running the Ethicurean’s hamburger threat index during all of their broadcasts (“Hiya burger fans! This is Rachel Ray, and today’s hamburger threat level is orange. That’s not yum-o at all!”)

Does the “A” in USDA stand for “ask nicely”?

The CRS report cited above goes into great detail about what the USDA can and cannot do, with plenty of references to federal code for those who want to look up all of the gory details. It may surprise some readers to learn that the USDA does not have the legal authority to force a recall of meat and poultry products. They have the power to ask manufacturers to conduct a recall, to temporarily detain product that has not been sold to the public, and to stop providing their approval to a production facility. But once an item is sold to the final consumer, the USDA does not have the direct power to require that the manufacturer do anything about it (there are probably indirect pressures involved, however, because manufacturers depend on USDA inspection).

A significant portion of the CRS report describes how the USDA manages recalls. Inside the agency, the Food Safety and Inspection Service (FSIS) is the lead department during a recall (their recall website is here). When FSIS learns of a potential need for a recall (e.g., from medical data indicating a food poisoning outbreak), it forms a recall committee. The committee makes a recommendation, classifies the urgency of the recall, specifies its extent, communicates it to the public, and monitors its progress. If the manufacturer refuses to comply with a recall request, FSIS has the authority to detain the product (from any location in the commerce chain upstream of the final consumer) for up to 20 days. If a detention occurs, FSIS will issue press releases informing the public of the action. After all reasonable efforts to retrieve the product have been made, the recall is deemed complete by the FSIS committee and a report is issued.

The effectiveness of USDA-managed recalls has been the subject of much criticism in recent years. For example, in 2004 the Government Accountability Office (GAO) submitted a report to Congress (PDF) pointing out numerous weaknesses in recall practices of the USDA (and the FDA). Among the problems detailed by the GAO are a failure to know how quickly and completely the affected companies were carrying out the recalls, and an inability to verify that recall requests had fully permeated the distribution chain.

The Office of the Inspector General in the USDA has also found flaws in recent recalls, like a 2002 recall of ConAgra products that recovered only about one-sixth of the recalled meat (PDF), or a 2002 recall of 27.4 million pounds of poultry products from Pilgrim’s Pride (PDF).

Reports like these have pushed the FSIS to institute reforms and new ways of distributing information to the public (these changes were implemented in 2004 and 2006). The recall of 21.7 million pounds of ground beef processed by Topps Meat Company was the first huge recall since instituting these new rules; however, since the final report hasn’t yet been issued, we can’t know if the recovery rate and other recall mechanisms have improved. (Then again, perhaps the recovery rate is not the most useful metric for food recalls – the Topps recall covered one year of production, and it is likely that much of that meat had been eaten long before the recall announcement.)

The CRS report also reviews current legislative proposals in Congress related to mandatory recall authority, raising many important questions. For example, if recall authority is legislated, will manufacturers be afforded some sort of official process, a hearing before an administrative law judge, for example, before a recall can be ordered? Does the burden of proof shift to the USDA? Will recall authority make the USDA more or less likely to order recalls? Will manufacturers use their legal teams to gum up the recall process, thus allowing dangerous food to remain in the marketplace? These questions and many others show that if USDA (or another food safety agency) is granted recall authority, the rules will need to be carefully designed.

The appendix that supplied the chart near the top of the post contains information about the cause of recalls, the type of product recalled, and summaries of some of the largest recalls between 1994 and the end of 2007. If the legalese at the beginning of the report is not your thing, be sure to read the appendix to get a glimpse of the recall landscape.

Asking more questions

The question “should the USDA have recall authority?” is certainly an important one, but perhaps a better one would be, “Have we lost our minds?” Less flippantly, shouldn’t we reevaluate the potential downside of allowing meat companies to process tens of million pounds each year and sell their product under multiple brand names across the country? The massive Topps recall, for example, covered 11 brand names that were distributed nationwide (PDF), thus allowing a single production plant in New Jersey to spread pathogens far and wide.

Recalls are probably unavoidable in any food system, but if we can break down barriers to small-scale meat processing and rebuild the local food infrastructure, future recalls won’t have such a wide-ranging impact and cause so much disruption to the nation’s food network.

    Recall statistics figure copied from Congressional Research Service Report RL34313, “The USDA’s Authority to Recall Meat and Poultry Products,” by Cynthia Brougher and Geoffrey S. Becker, which was obtained from the Open CRS Network.

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