T-Bones are Pink, too

Posted on March 30, 2012 02:11 by Shawn K. Stevens

And, pretty soon they'll cost less than a burger.

I've sat mostly quiet over the last few years, wondering how something as American as the hamburger could so easily become the focus of so much attack?  What in the world happened?

Over the last decade, we have heard story after story questioning the safety, efficacy and quality of this distinctly American product.  Whether you enjoy a burger on the grill, meatballs in the crock, hamburger (helper) on the stove, a quick burrito in the microwave or a family size helping of meatloaf in the oven, most Americans thoroughly enjoy -- if not cherish -- their ground beef.

But, we also have to pay for it.  In recent years, the cost of ground beef has increased substantially.  And, in the coming years, it now appears; the cost of this product will increase even more. This is because of the extraordinary amount of effort (and science) that is now required to process beef. 

From slaughter and processing to the kitchen table, billions of dollars have already been spent making ground beef as safe (and as perfect) as it can be. 

But perfect is relative, I suppose; and the onslaught of unfounded criticism continues. Set aside the occasional but continuing ramblings about whether ground beef is good for your heart (it is) or whether it increases your risk of cancer (it wont), additional heated debate persists regarding its overall safety and now -- it would appear -- its color.  And, thus, the industry is once again confronted with yet another unfortunate example of reactive sensationalism quickly outpacing reason and science. 

Will the madness ever stop?

Probably not.  So, I wont spend any time here repeating or expanding upon the expert explanations regarding what, exactly, LFTB really is.  It is beef.  And, that issue, I think, is settled.  What I will say, however, is that we should be careful not to expect ground beef to become something it is not. 

We are extremely lucky to have access to such a tasty, plentiful, safe and affordable product.  And, frankly, the health of our nation has in many ways been built on the same ground beef we now discount. 

So, back your burgers.  And, if you have any doubts, just ask your kids about how boring life would become without a virtually unlimited and affordable supply of burgers, meatballs, burritos and meatloaf. 

And, yes, we also need to think about those who struggle just to put food on the table.  We should be very careful, in the end, not to price ourselves out of our most basic needs -- like affordable protein.   As one of my readers aptly noted a few months back, if we don't get our act together soon,"maybe we'll all have to start grilling steaks on the barbecue instead of burgers [just] to save ourselves a few bucks."  

That'd be something.

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On January 23, 2012, the Supreme Court issued a unanimous opinion in the case of National Meat Association v. Harris, No. 10-224.  

In its decision, the Court reversed the Ninth Circuit Court of Appeals, reasoning that the Federal Meat Inspection Act (“FMIA”), 21 U.S.C 601, et seq., expressly preempts inconsistent state law. This decision is the latest in a long line of Supreme Court opinions that have historically and consistently affirmed the preemptive effect of of the FMIA. 

The FMIA governs the production and distribution of meat products in interstate commerce.  The Act is enforced by the United States Department of Agriculture’s Food Safety Inspection Service (“FSIS”), and requires continuous, on-site inspection of all slaughter and processing establishments.  The FSIS is required, among other things, to ensure that all meat products are: (1) produced under sanitary conditions; (2) not adulterated; and (3) properly labeled.  

Under the FMIA, slaughter establishments are expressly permitted, under defined circumstances, to receive, hold and slaughter nonambulatory animals.  After slaughter, but prior to being used for human food, the carcasses of such animals must first be inspected by a FSIS inspector.  

The FMIA also contains an express preemption provision, 21 U.S.C. 678, which prohibits states from adopting any different or additional requirements than those imposed by the FMIA.  

Despite the existence of a federal law governing the treatment of nonambulatory animals in slaughter establishments, and the existence of an express preemption provision within the FMIA, the state of California nevertheless amended its penal code in 2008 to prohibit slaughter facilities from receiving, holding or butchering nonambulatory animals.  Because the federal standards under the FMIA and the new state law were inconsistent, the Nation Meat Association brought suit challenging the California law.

In an opinion authored by Justice Kagan, the Supreme Court confirmed that FMIA’s preemption clause “sweeps broadly,” and prohibits states from imposing  any additional or different (even if non-conflicting) requirements concerning slaughterhouse facilities or operations.  Because the State of California was attempting to govern in an area reserved exclusively for federal regulation, the Court held that the California law was preempted.

Thus, once again, the Supreme Court has made clear that the states are strictly prohibited from legislating in those areas already occupied by the FMIA.  

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Given my experience working and consulting with a broad spectrum of companies within the food industry, I believe the impact of the 2010 Food Safety Modernization Act will be largely negligible.

The reason is that the vast majority of food processors are highly committed to food safety, and have already adopted robust food safety systems.  Moreover, most notable enhancements to food safety in recent years have been driven (and in my view will continue to be driven) by stringent customer requirements rather than by new legislation. 

One of the most talked-about changes in the bill is the expansion of the FDA's enforcement powers to mandate recalls.  Under current laws, all recalls are voluntary (even if strongly "urged" by FDA or USDA).  Even this proposed change, however, will likely have minimal effect on industry.

The overwhelming majority of companies respond rapidly and responsibly in the event of a potential problem and thus, forcing a recall is rarely necessary in the first instance. My own sense is that, notwithstanding the new law, FDA will continue to "urge" recalls before they "mandate" them.  This way, the agency can strongly recommend products be recalled without taking absolute responsibility for decisions regarding the specific products or scope in the event a mistake is made. The biggest potential pitfalls for companies lie in the risk that FDA defines recall parameters that are overly-broad in scope or, worse, compels a recall without solid epidemiologic evidence to support it.

With all that said, I am excited about the proposed improvements in national food-borne illness surveillance and traceability.  These efforts will increase our ability to quickly detect potential problems and find quick solutions.  Better surveillance and traceability will also, from a litigation standpoint, significantly enhance our confidence in outbreak investigations and our ability to respond appropriately to both meritorious and meritless foodborne illness claims.

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Categories: Food Safety

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