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A Game of Chicken

The United States Department of Agriculture’s (“USDA”) Food Safety and Inspection Service (“FSIS”) recently announced new safety measures that will expand food inspection standards for poultry production establishments in response to concerns about foodborne illnesses. (See press release). Under the proposed rule, FSIS will test raw chicken and turkey parts, including chicken breasts, legs and wings for bacteria Salmonella and Campylobacter. The proposed guidelines are part of FSIS’ Salmonella Action Plan, launched in December 2013. (See action plan).

Beginning in March 2015, FSIS will replace its existing Salmonella sampling set-approach with a moving-window sampling approach for all FSIS –regulated products subject to Salmonella and Campylobacter verification testing. Previously, once a sample set began, a production establishment was on notice that it would be sampled on consecutive days that the product was produced for the set time period. FSIS identified that this knowledge “might create a bias because establishments may, intentionally or not, adhere more conscientiously to proper sanitary procedures during this time.” (See guidance at 35). Furthermore, FSIS identified that its set-approach disproportionately based sampling schedules on past performance (e.g. those establishments that continuously achieved pathogen reduction performance standard goals were not sampled routinely).

By contrast, FSIS now intends to adhere to a moving-window approach to assess the number of positive samples taken within a 52-week period. On week 53, the moving window shifts forward to exclude the week 1 sample and include the week 53 sample; this moving window approach preserves a 52-week sampling period to allow FSIS to continuously assess the process control of an establishment. If an establishment exceeds the maximum acceptable samples for the 52-week period, FSIS will automatically conduct follow-up samples independent of the moving window approach to asses if the establishment has ameliorated its food safety system.

FSIS proposed to modify its 3-category performance classifications to fit the moving-window approach as follows:

Category 1: Consistent Process Control – Establishments that have achieved 50 percent or less of the performance standard during all completed 52-week moving windows over the last six months.

Category 2: Variable Process Control – Establishments that meet the standard for all completed 52-week moving windows but have results greater than 50 percent of the standard during any completed 52-week moving window over the last six months

Category 3: Highly Variable Process Control – Establishments that have exceeded the performance standard during any completed 52-week moving window over the last six months.

According to the proposed guidelines, 63 percent of raw chicken parts producing establishments, 62 percent of not-ready-to-eat comminuted chicken producing establishments, and 58 percent of not-ready-to-eat comminuted turkey producing establishments will not meet the new Salmonella standard, (See guidance at 53-54). FSIS has announced that it expects to re-categorize establishments monthly based on their performance over the prior six-month period. The implication of this for poultry producers is that establishments can remain in Category 2 or 3 for no shorter than 26 weeks.

Beginning July 1, 2015, FSIS has stated that it will post the category status for all eligible establishments to provide greater transparency to the public. The agency previously announced its intention to web-post establishments’ process control performance in 2006; however, prior to this policy taking effect, FSIS bargained not to publish establishment names if 90 percent of the broiler or turkey industry attained Category 1 status with no establishments in Category 3—the policy never took effect.

Although FSIS’ has no mandatory recall authority, its planned web-posting may serve as a powerful enforcement tool. Poultry production establishments are likely to face heightened scrutiny from consumer advocate groups once their identities are published—especially if they are among those facilities that will not meet the new Salmonella standard from the outset.
NOTE: The author of this post, Alexis Kellert, is a first year associate but is not yet admitted to practice.