We are pleased that Dr. Michael Fisher has joined the FTCLDF website as a regular 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 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.
Definitions and Interpretations
Humpty Dumpty did not have meat and poultry inspection in mind when he told Alice, “When I use a word it means just what I choose it to mean,” but he could have. FSIS inspectors routinely cite 9 CFR 416.4(a) and 9 CFR 416.4(b) when alleging noncompliance because these regulations are not straight forward. They rest on terms with no official definition. It is FSIS inspection policy that, “If neither the Code of Federal Regulations nor the Statute defines a term, then the usage found in any Standard American English dictionary applies.”
Neither statute nor Code of Federal Regulations (CFR) define meaning for the verbs “clean” and “sanitize.” Many FSIS inspectors interpret “clean and sanitize” as requiring two separate and distinct actions. They correctly interpret “clean” to mean “make free of dirt,” but incorrectly interpret “sanitize” as synonymous with “sterilize.” Neither statute nor CFR define a microbiological sanitation standard. “Sanitize” means make clean and hygienic and within the context of 9 CFR 416.4, the words clean and sanitize are synonymous. An object is “clean and sanitized” if it looks, feels, smells, sounds, and tastes clean and sanitized.
Neither statute nor CFR define meaning for the noun “food.” Many FSIS inspectors consider “food” to be any livestock or poultry article “capable of use as human food.” A live pig or chicken is “capable of use as human food.” A live pig or chicken is not food. A standard American dictionary defines the word food as any nutritious substance that people eat or drink in order to maintain life and growth. Pork chops and drumsticks are food. At what point in the process of converting a live pig or chicken into pork chops and drumsticks does the product become food? FSIS will not answer that question.
Contact Surfaces
Neither statute nor CFR define meaning for the phrase “contact surface.” Many FSIS inspectors consider any surface that contacts a livestock or poultry article “capable of use as human food” to be a food contact surface. They do not differentiate between intentional and unintentional contact. If food falls on the floor, the floor becomes a food contact surface. A standard American dictionary defines the adjective “contact” to mean “caused by contact,” and the noun “surface” to mean “the exterior of an object.” A contact surface is a surface intentionally caused to contact. A knife blade used to cut food is a food contact surface because the blade is intentionally made to contact the food.
Neither statute nor CFR define meaning for the phrase “as frequently as necessary.” Many FSIS inspectors apply the phrase as meaning “as often as I deem necessary.” This is personal opinion. With future-looking tenses, a standard American dictionary defines the phrase as meaning “as often as the need may arise.”
Consensus exists that the verb “prevent” means “keep from happening.” Both statute and CFR define “insanitary condition” as any circumstance whereby meat food or poultry food product may become contaminated with filth or be rendered injurious to health.
Avoiding Noncompliance
It is FSIS inspection policy that (1) the official establishment is responsible for demonstrating compliance and (2) that FSIS inspectors verify compliance and only take a regulatory control action when noncompliance exists. So how does an official establishment avoid allegations of 9 CFR 416.4(a) and 9 CFR 416.4(b) noncompliance? Make it easy for FSIS to verify compliance. FSIS is records oriented. Given a choice, FSIS prefers reviewing records over performing inspection tasks.
An official establishment that develops, implements, and maintains written procedures describing what it means, in their establishment, to “clean and sanitize,” what food and non-food contact surfaces are and are not, and when action is necessary to prevent, defines compliance in their establishment. An official establishment that documents successful implementation of those procedures demonstrates that such compliance exists.
Nature abhors a vacuum, and so does FSIS. If an official establishment does not define what compliance looks like, then FSIS will. If an official establishment does not verify its concept of compliance, FSIS will. Be proactive. Do not let Humpty Dumpty choose what compliance means.
As always, if you have a question, please use the Contact Us link and ask.
Did you miss Dr. Fisher’s previous posts?
YOUR FUND AT WORK
Services provided by FTCLDF go beyond legal representation for members in court cases.
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.
You can protect access to real foods from small farms by becoming a member or donating today.