Over a century ago, the tales of squalid meat production in Upton Sinclair’s famous novel The Jungle shocked the United States, contributing to a public outcry that ultimately led to regulations requiring a government inspector to examine every single meat carcass intended for human consumption. The U.S. Department of Agriculture’s FSIS (Food Safety Inspection Service) is responsible for the inspection regime. The established assessment program requires multiple FSIS inspectors to be on-site, performing a process of continual, carcass-by-carcass inspection during slaughter. The system is far from perfect and has never been a stranger to scandal (see here, here, and here). Yet it has been seen as vital to safeguarding public health from foodborne illnesses, including e.coli and salmonella outbreaks. It is also backed by a robust legal regime designed to insulate the inspectors from bribery and other forms of improper influence.
Unfortunately, throughout its history, FSIS has faced pressure to favor in-house inspectors over government inspectors in the name of creating a “flexible, more efficient” system. The most recent experiment with limiting the role of FSIS inspectors is HIMP (Hazard Analysis and Critical Control Point-Based Inspection Management Program), a program being piloted in a handful of pork plants and set to be proposed as a final regulation soon. (The related New Poultry Inspection System is being phased in now despite legal challenges.) HIMP uses in-house staff to conduct most of the inspections, particularly early on. A limited number of FSIS personnel do paperwork oversight and spot checks at particular points on the line.
However one chooses to balance competing calls for efficiency and safety, this is a short-sighted idea. Government inspectors and regulatory personnel are not perfect, but they are covered by anti-bribery laws and whistleblower protections that in-house inspectors are not, making them a safer bet for the safety of the meat supply. Filth and disease garner headlines, but civil society should continue to fight for an active role for government inspectors for another reason—public corruption is easier to fight than private influence. Even if one agrees that government inspectors are less efficient (a questionable proposition, despite how often it’s repeated), there are a number of laws and regulations in place designed to prevent (or expose) the corruption of these inspectors by the meat industry; there is no comparable regulatory regime in place to prevent equivalent corruption, or other forms of more subtle improper influence, from distorting the decisions of in-house private inspectors. Consider a few key areas of separation:
- FSIS inspectors, but not in-house staff, are entitled to the statutory whistleblower protections of the 2012 Whistleblower Protection Enhancement Act. Courts had limited the previous whistleblower protection statute, excluding causes of action for retaliation from reporting under one’s regular job duties—like the duties of inspecting meat processing. The newer statute both allows such actions and provides more robust procedural mechanisms to enforce them. Federal employees are also systematically educated about their rights under the Act.
- In-house inspectors, by contrast, do not clearly have a cause of action for employer retaliation. Employee protections are provided under the 2010 Food Safety and Modernization Act (FSMA). However, that Act and its underlying regulations are administered by the Food and Drug Administration, rather than the UDSA. The USDA’s meat inspection provisions go much further than the FSMA, but its statutes don’t mention retaliation or employee protection.
- The punishments for bribery of a federal employee are severe—both for the bribe-giver and the bribe-taker. The Federal Meat Inspection Act directly prohibits bribery of inspectors and has since 1907. These bribery provisions have been used repeatedly and effectively—see these news articles from Boston in 1973 and Chicago in 1965. In one of the more prominent examples of the strength of these laws, in 1990 corporate officers were sentenced to jail time and millions of dollars in fines for bribing federal inspectors to allow water-injected ham; four federal inspectors pled guilty to accepting the bribes. The protections also sweep broadly: The Act has been construed to cover even the transfer of intangible benefits. Federal meat inspectors also fall within the scope of the general federal bribery and illegal gratuity statute, 18 U.S.C. § 201, which covers transfer of “anything of value” to a federal employee in improper exchange for, or recognition of, favorable treatment.
- In addition, where animal products are imported, weakening government oversight encourages foreign governments to do the same, which in turn would lessen defenses to corruption abroad. The FSIS has a stringent “equivalence” standard for imported meat, poultry, and eggs—countries entitled to import such products must have a safety regime akin to the U.S. program. One of the six equivalence components is “government oversight.” If, indeed, foreign government oversight is lessened under more HIMP-like standards, the Foreign Corrupt Practices Act (FCPA) would have reduced reach, because the FCPA is implicated only where government officials—not private inspectors—are bribed. That happened at Tyson Foods (one of the participants in the HIMP chicken pilot), which settled for $5.2 million after an investigation showed its Mexican plants had allowed and even encouraged bribery of government inspectors. If a HIMP-like model is allowed in foreign meat production plants and fewer government inspectors are involved, the FCPA cannot reach bribes or pressures placed on in-house inspectors.
Perhaps unsurprisingly, given the weaknesses of a private inspection regime, the pilot program has already garnered plenty of negative press. Most of this exposure has centered on factory conditions. In 2013, the Washington Post ran stories criticizing the efficacy of pilot programs in both chicken and pork inspection after a Government Accountability Office study turned up questionable results. An exposé conducted by an employee of one meat plant includes workers’ mentions that if USDA oversight were present, “they could shut us down.” Four FSIS whistleblowers have come forward, saying the pilot programs aren’t working. Based on these and other reports claiming the system is jeopardizing public health, 60 Members of Congress sent a letter to the USDA last January urging reconsideration of HIMP. Indeed, the USDA’s own Inspector General issued a report questioning the efficacy of the program.
In addition to the effectiveness of the system, those calling for reconsideration should demand inclusion of the protection inspectors need to be effective at all. At least one of the whistleblowers involved in the pilot program claims that employers use threats and retaliation against inspectors; employees face termination if their carcass rejection rates grow too high. Relegating FSIS employees to back rooms removes the very players who do have checks on exploitation. Plenty of civil society and advocacy groups have butchered HIMP in the press. They should emphasize the legal regime beyond HIMP to get a full picture. At the very least, if this plan can’t be killed, advocacy groups should call for a new kind of equivalence standard: private inspectors, if they replace government ones, should come with similar protections.
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This is really interesting and disturbing. As long as there are no whistleblower protections, it seems to me that explicit bribes of in-house inspectors would not be needed; instead companies could simply inflate the salaries paid to the inspectors who in turn would know that they would risk their newly lucrative jobs if they, you know, actually did their jobs. I wonder if there is a second way to get at this; significantly increasing the punitive damages for companies where anyone gets sick for eating the meat. Doing this could encourage companies to see their in house inspectors as a type of risk manager and would give the companies an incentive to want the inspectors to report honestly and to listen when they said that meat was not fit to go out. However, my plan would function better for something like ecoli or rotten meat but would be hard to be effective for something like injecting water into the products which would harm consumers in the long run, both in price and potentially in excess sodium intake if the meat is plumped with sea water. Potentially class actions with high punitive damages would serve the same effect as long as external food labs paid by class action attorneys would be able to detect the tampering with testing.
As a side note, sometimes stricter regulation could attract customers and therefore make sense for suppliers even when it is not legally required. A recent New York Times article about the new Jianbing (Chinese crepe) food trucks in NYC discussed the fact that they planned to expand from the US back into Beijing. As the NYT reported, “They will be able to market a crepe that has passed the rigors of New York City’s Health Department. That is a selling point in China, where customers can never be sure of a street food’s provenance.” http://www.nytimes.com/2016/04/21/world/asia/china-jianbing-new-york-beijing.html