How Reliance on the Private Enforcement of Public Regulatory Programs Undermines Food Safety in the United States: The Case of Needled Meat
Maine Law Review, Vol. 65:2 (2013)
Indiana University Robert H. McKinney School of Law Research Paper No. 2013-22
19 Pages Posted: 23 Jun 2013 Last revised: 11 Jul 2013
Date Written: 2013
“Mechanical tenderization,” or “blade tenderization,” or “needling,” or “hammering,” is a process where tiny cuts are made in beef by needles or blades, which cut the connective tissue and immediately tenderize the meat. When meat is mechanically tenderized, it becomes more susceptible to contamination by pathogens that cause foodborne illness because the needles can carry bacteria, such as E. coli, into the interior of the meat, where it is harder to kill by cooking. After more than a decade of documented foodborne illness outbreaks related to mechanically tenderized meat and repeated calls by consumer advocates for the labeling of such meat, it appears that the Department of Agriculture is finally poised to begin requiring the labeling of needled meat.
The regulatory history of mechanically tenderized meat is a window into a much larger issue, that of regulatory inertia and the inadequacy of existing mechanisms to counter this stasis. This regulatory inertia is the subject of this Paper, and it does not have a simple cause, nor is it amenable to a simple solution. It cannot be reduced to a problem of agency capture, or a problem with agency incompetence.
Telling the story of the ongoing conversation on mechanically tenderized meat among the United States Department of Agriculture (USDA), the meat production industry, and interest groups representing the consuming public is important for at least two reasons. First, the focus on a food safety problem that is not well known to the public illustrates the commonplace nature of regulatory inertia, demonstrating that such cases are not confined to high-profile issues with elusive solutions.
Second, this story demonstrates the ineffectual nature of private enforcement. Private enforcement, in the form of agency-forcing suits, should act as a counterpoint to agency delay and dysfunction, by subjecting agency action to judicial review. We expect the judiciary to oversee the process of regulatory fermentation, and to ensure that an agency makes its decisions in a timely, appropriate manner. Here, however, government, industry, and advocacy groups representing the consuming public have been discussing this issue for a decade while individuals continue to get sick.
There is no simple solution to this problem, although I suggest several in the Paper. First, Congress should increase its use of statutory hammers. Hammers are legislative mechanisms that impose consequences on an agency that fails to act in compliance with a statutory mandate. Second, as suggested by other scholars, interest groups, including both regulated industry and those representing the consuming public should be able to petition the Office of Information and Regulatory Affairs (OIRA), within the Office of Management and Budget, to review agency inaction. Simply put, OIRA, which provides centralized review to certain major regulations to assess compliance with cost-benefit principles, is theoretically positioned to assume a larger role in reviewing agency inaction.
Keywords: administrative law, food and drug law, Department of Agriculture, food safety, agency inaction
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