We are pleased to announce that Dr. Michael Fisher joins the FTCLDF website as a monthly contributor. Dr. Fisher is a retired United States Department of Agriculture (USDA) Food Safety and Inspection Services (FSIS) veterinarian, bringing decades of experience enforcing FSIS regulations during the slaughter and processing of animals for which the USDA provides inspection services. Dr. Fisher is thrilled to bring you his expertise and guidance to help you navigate the regulatory compliance. His goal is for small, USDA-inspected meat processors to succeed and to understand how to best maintain compliance and reduce regulatory issues.
Interacting and maintaining compliance with regulators is a real concern for FTCLDF members. Time and time again, our members have been harassed and subjected to inconsistencies in how regulations are delivered and enforced. For instance, Arlin Bender, a FTCLDF member, has been routinely harassed by the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP). Bender relocated to Wisconsin from New York where he had operated a custom meat processing plant. Bender continued his operations in Wisconsin and set up shop soon after he relocated. As a new resident to the state, Bender was unaware he did not have the proper licensing for his operation. The DATCP came down hard on Bender. Instead of offering education and guidance on the proper channels to become licensed, they took Bender to court.
After a year and a half of litigation, and finally enlisting the help of FTCLDF, Bender was able to settle his case. Since Bender’s first encounter with the DATCP in 2011, he continues to struggle with the agency. Most recently in November of 2017, two of Bender’s pigs were detained without further explanation or documentation of a consistent reason for the seizure.
The command and conquer approach used by the DATCP leads to unnecessary harassment, stress, and lost income for many small butcher operators in Wisconsin. This type of stress and harassment could be prevented if regulators worked with farmers to educate them about the rules, which can be confusing and difficult to understand. In some states, when an issue does arise, regulators clearly communicate their concerns, then try to reach a resolution that addresses both the compliance issues and the farmer’s concerns. Maintaining compliance can be accomplished without threats and intimidation.
Dr. Fisher hopes to provide the education and consistent communication that is desperately needed in the relationship between farmers and regulators. We are excited and grateful that Dr. Fisher is extending his hand and knowledge to the FTCLDF community.
Hello. I am Dr. Michael Fisher, the husband of one, father of three, and grandfather of six; the son of swine producers, a product of rural Iowa; a retired US Army Colonel, and a retired USDA FSIS veterinarian. I enjoy riding a bicycle, fishing, hiking, and woodworking.
My FSIS and military responsibilities were similar: the delivery of safe, wholesome food to the end user. In FSIS, I experienced the slaughter and processing of every animal species for which FSIS delivers inspection services. In the Army, I experienced the preparation of all classes of subsistence, in all kinds of environments, from the field slaughter of goats in Ethiopia to the most modern retort operations in the U.S.
Government inspection of meat and poultry products is a public good, but when the system delivering inspection services does not work as intended, the people who prepare the meat and poultry products, and the people who buy them, lose. Having achieved ample personal success and retired from full-time employment, I choose to spend part of my time using my food safety, sanitation, regulatory, and bureaucratic talents to enable the people who prepare meat and poultry products to succeed in what I believe to be an inspection delivery system in need of reform.
My goal is to educate and comment: to shine light on the difference between what the law authorizes and what FSIS wants but lacks the legal authority to compel. I wish to share what I learned, and the good folks at the Farm-to-Consumer Legal Defense Fund have agreed to host my writings on all things FSIS. I want to be sensitive to your information needs, so if you have a question, please use the Contact Us page and ask.
The Constitution empowers Congress, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” [Article 1, Section 8]. Congress exercised that power when it passed the Federal Meat Inspection Act (FMIA) [34 Stat 674, as amended], the Poultry Products Inspection Act (PPIA) [71 Stat 441, as amended], and other statutes enforced by FSIS. The Constitution also prohibits FSIS from depriving the regulated industry of “liberty, or property, without due process of law” [Fifth Amendment].
I am a retired Army officer and retired FSIS employee. Upon entering the military, I took an oath:
“I, Michael Fisher, do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
Fourteen years later, I took the same oath when I joined FSIS. In my experience, Army leadership embraces the oath; FSIS leadership does not. I found the Army willing to actively protect the due process rights of the individual when enforcing the rules. I find FSIS unwilling to do the same.
The FMIA and PPIA explain the intent of Congress when it created the legislation, defines the meaning of certain words and phrases, tasks the Secretary of Agriculture with implementing the legislation, mandates some actions, prohibits other actions, and grants permissions. After the President signed the statutes into law, the Government Printing Office (GPO) codified them in the U.S. Code. The FMIA is codified in Title 21, Chapter 12, Meat Inspection. The PPIA is codified in Title 21, Chapter 10, Poultry and Poultry Products Inspection. The chapters have similar language. The Administrator, FSIS, conducts rulemaking and issues regulations to implement the U.S. Code. The GPO publishes these regulations in the Code of Federal Regulations (CFR), Title 9, Chapter III [9 CFR 300 et seq.]. The Federal Register and FSIS notices, directives, and guidelines are, or can be, part of the rule-making process; however, they are not the rules.
According to the FMIA, the intent of Congress is to protect the health and welfare of consumers by assuring that products distributed to them are, “wholesome, not adulterated, and properly marked, labeled, and packaged.” To prevent the use of adulterated meat and poultry products in commerce, Congress mandates that the Secretary “cause to be made, by inspectors appointed for that purpose, an examination and inspection of:”
- all amenable species before they enter an official establishment;
- the carcasses and parts to be prepared;
- all prepared products brought into an official establishment;
- all prepared products issued from an official establishment; and
- sanitary conditions in establishments where products are prepared for commerce.
In FMIA, Congress mandates that, “said inspectors shall mark, stamp, tag, or label as ‘Inspected and passed’ all such products found to be not adulterated,” and that official establishments attach a label having the required information to all inspected products marked ‘‘Inspected and passed.’’ Congress also mandates that, “said inspectors shall label, mark, stamp, or tag as ‘Inspected and condemned’ all such products found adulterated,” and that official establishments destroy all such condemned products for food purposes.
- the slaughter of amenable species and the preparation of articles capable of use as human food at any establishment for commerce, without inspection; and
- the sale, transport, offer for sale or transport, or receipt for transport, in commerce, of any article capable of use as human food that is adulterated or misbranded.
Congress authorizes the Secretary to:
- remove inspectors from an establishment that does not destroy condemned products;
- withhold the use of a label the Secretary believes to be false or misleading;
- refuse to mark products ‘‘Inspected and passed’’ where sanitary conditions are such that products are rendered adulterated;
- refuse to provide, or withdraw, inspection if the Secretary determines that the applicant or recipient committed a prohibited act;
- detain, seize, and condemn adulterated or misbranded product in commerce; and
- prescribe rules and regulations to implement the mandates and prohibitions of Congress.
The Secretary delegates his/her authority to effectuate the purposes of the FMIA and PPIA to the Under Secretary for Food Safety [7 CFR 2.18], who delegates his/her authority to effectuate the purposes of the FMIA and PPIA to the Administrator, Food Safety and Inspection Service [7 CFR 2.53].
Simply said, FSIS must:
- inspect the entire process of preparing meat and poultry products, from the point an establishment presents a live animal for ante mortem inspection to the point the finished product leaves the official establishment;
- mark not adulterated products as “Inspected and passed” and mark adulterated products as “Inspected and condemned;” and
- inspect sanitary conditions in establishments where products are prepared for commerce.
Official establishments must (1) attach a proper label to all products marked ‘‘Inspected and passed,’’ (2) destroy condemned products for food purposes; and (3) not commit prohibited acts. If the establishment does not carry out these three basic tasks, then FSIS can, and for this purpose the Administrator FSIS has prescribed regulations to:
- remove its inspectors;
- withhold the use of a label;
- refuse to mark products ‘‘Inspected and passed;’’
- refuse to provide, or withdraw, inspection; and
- detain, seize, and condemn product in commerce.
Each of these actions is a deprivation of liberty or property, which the Constitution prohibits without due process of law.
Those are the basic rules. As prescribed in 9 CFR, Chapter III Food Safety Inspection Service (FSIS), the rules become more detailed, but they do not change.
Later, I will discuss enforcement actions and due process; but first, we will look at the meaning of terms found in the FMIA, PPIA, and 9 CFR Chapter III, because these terms and phrases are often the basis for an FSIS enforcement action and their meaning matters.
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Educational and policy work also provide an avenue for FTCLDF to build grassroots activism to create the most favorable regulatory climate possible. In addition to advising on bill language, FTCLDF supports favorable legislation via action alerts and social media outreach.
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