TEXAS FOOD INDUSTRY ASS'N v. ESPY
870 F.Supp. 143 (1994)
TEXAS FOOD INDUSTRY ASSOCIATION, et al.
v.
Mike ESPY, et al.
Civ. No. A-94-CA-748 JN.
United States District Court, W.D. Texas, Austin Division.
December 13, 1994.
David L. Orr, Johnson & Gibbs, Austin, TX, Gary Jay Kushner, William A. Bradford, Jr., Mark D. Dopp, Pierre M. Donahue, Hogan & Hartson, Washington, DC, for plaintiffs.
Sylvia T. Kaser, Dept. of Justice, Civ. Div., FPB, Washington, DC, for defendants.
ORDERNOWLIN, District Judge.
Before the Court is Plaintiffs' Motion for Preliminary Injunction, filed November 3,
1994. Defendants' filed their Opposition to Plaintiffs' Motion for Preliminary Injunction on November 16, 1994 and Plaintiffs filed their Reply Brief in Support of their Motion for Preliminary Injunction on November 23, 1994. Additionally, several trade associations have submitted an Amici Curiae brief in support of Plaintiffs' Motion for Preliminary Injunction and several consumer groups have submitted an Amici Curiae brief in opposition. After reviewing the arguments of counsel, the applicable law, and the entire record in this case, the Court is of the opinion that Plaintiffs' Motion for Preliminary Injunction should be DENIED. I. BACKGROUND
On October 17, 1994, the United States Department of Agriculture ("USDA") announced a new Escherichia Coli 0157:H7 ("E. Coli") sampling program, to be conducted by the Food Safety and Inspection Service ("FSIS"). The notice announced that the FSIS would collect and test five thousand (5,000) samples of raw ground beef from federally-inspected establishments and retail stores. Any of these samples testing positive for the pathogen E. Coli would be treated as "adulterated" under the Federal Meat Inspection Act ("FMIA") and referred to FSIS headquarters for regulatory action.1 Prior to this announcement, the USDA had treated pathogen-contaminated2 meat as unadulterated under the FMIA. On November 1, 1994, several supermarket and meat-industry organizations3 brought this action seeking to prevent the USDA from conducting its E. Coli sampling program. Plaintiffs argue that the USDA failed to adhere to the notice-and-comment procedure required by the Administrative Procedure Act ("APA") and move this Court for a temporary and permanent injunction. Plaintiffs also contend that the sampling program is an arbitrary and capricious exercise of agency authority and that it exceeds the USDA's statutory authority under the FMIA. II. FINDINGS OF FACTS AND CONCLUSIONS OF LAW
1. Under the FMIA, the USDA is authorized to inspect meat and meat products to assure consumer that they are "wholesome, not adulterated, and properly marked, labeled, and packaged." 21 U.S.C. §§ 602-05 (emphasis added). A product is "adulterated" under the statute if "it bears or contains any poisonous or deleterious substance which may render it injurious to health; but in case the substance is not an added substance, such article shall not be considered adulterated under this clause if the quantity of such substance in or on such article does not ordinarily render it injurious to health...." Id. at § 601(m)(1). When a meat food product is found to be adulterated, it shall be marked as "inspected and condemned" and "shall be destroyed for human food purposes." Id. at § 606. The statute prohibits the sale, transportation, offer for sale of transportation, or receipt for transportation of any adulterated meat food product. Id. at § 610. Violations of this restriction could result in criminal prosecution. Additionally, adulterated products are liable to be seized and condemned in a judicial proceeding. Id. at 673.
2. Pathogens are food-borne bacteria such as E. Coli and Salmonella.
3. The Plaintiff's include the Texas Food industry Association, Texas Independent Meat Packers Association, Texas Retail Association Food Council, American Meat Institute, Food Marketing Institute, National-American Wholesale Grocers' Association/International Foodservice Distributors Association, and the National Grocers Association.
4. In categorizing the agency's action, it is important to remember that "[t]he court ... must determine the category into which the rule falls. `[T]he label that the particular agency puts upon its given exercise of administrative power is not ... conclusive; rather it is what the agency does in fact.'" Brown Express, Inc. v. United States,607 F.2d 695, 702 (5th Cir.1979). 5. For ease of discussion, the Court will address each of these parts separately. Although these actions are part of the same "rule," they are theoretically distinct and could have been promulgated independently. Therefore, if each distinct part does not require notice-and-comment, there is nothing to suggest that notice-and-comment would be required merely because they were promulgated simultaneously.
6. The Plaintiffs in this case do not challenge the USDA's decision to conduct sampling and testing for E. Coli. Indeed, the evidence indicates that such testing has been occurring for several years. Rather, Plaintiffs challenge the USDA's testing in conjunction with its treatment of E. Coli as an adulterant.
7. The Plaintiffs in this action claim that the new rule implicitly amends the Safe Handling regulations recently promulgated by the USDA. However, those regulations simply require the industry to attach warning labels. Nothing in those regulations speaks to whether a pathogen contaminated product may be shipped or sold under the FMIA.
8. Since the merits issue is determinative in this case, the Court declines to address whether Plaintiffs have satisfied the other three requirements for a preliminary injunction.