Editor’s note: The following is a letter to the editor submitted by Robert G. Hibbert, partner, and Karl M. Nobert, associate, both of the international law firm K&L Gates. The letter is in response to Tuesday’s commentary “Joke’s on American consumers.”
Despite its length, the U.S. Department of Agriculture’s long-awaited and much-delayed proposal on catfish inspection can be fairly easily summarized. First, it would bring the processing of catfish into the realm of continuous inspection, treating it in much the same way the USDA currently treats the processing of beef, pork and other meat items. Second, rather than taking a position on the controversial issue of how the term “catfish” is defined, it throws out two alternatives and seeks further public comment.
Despite the extensive scope of the proposal, three particular points bear emphasis.
First is the definitional issue itself and the USDA’s failure to provide industry with a specific definition for the term “catfish.” One can sympathize, at least up to a point, with the USDA’s dilemma. If it had proposed to adopt the narrower definition for the term, it would face an aggressive push back, both within the comment period and elsewhere, from domestic interests. If, on the other hand, had it opted for the broader definition, importers and foreign interests would have protested every bit as loudly, while also raising the specter of a trade war. Of course, this dilemma will not become any simpler in the future. The government is simply delaying its choice and the date on which it will finally have to pick its poison. And, one can reasonably ask, if the decision was reached to delay the issue, why wasn’t the document published in this form a year and a half ago?
The second major issue, definitions aside, involves the nuts and bolts of moving to a mandatory inspection program. Here those domestic interests that pursued this cause so aggressively in the past may ultimately learn to be careful what they wished for. The USDA’s approach to inspection is fundamentally different from that pursued by the U.S. Food and Drug Administration. The USDA processing facilities are supposed to be visited and reviewed on a daily basis, while an FDA regulated establishment might only see an inspector every couple of years. While mandatory HACCP (hazard analysis critical control point) has been on the books for the seafood industry for a number of years, the concept as applied and enforced by the USDA is an entirely different thing. As processors make their way into a world filled with non-compliance reports, month-long food-safety assessments, prior label approval and a host of other bureaucratic entanglements, they may find themselves, at least occasionally, looking back upon the good old days and longing for a return of FDA oversight.
Last but not least, broader issues of food safety and inspection policy are raised by the catfish proposal. “Why only catfish?” one might ask. The simple answer, because such action has been mandated by Congress. But it comes at a time when, after passage of Food Safety Modernization Act, which seeks to make the overall food supply safer, the FDA itself is straining to find the needed additional resources and fighting the headwinds of enormous pressures on the budget just to implement its requirements. And the Food Safety Modernization Act provides for an inspection presence several orders of magnitude less than that which is maintained by the USDA. If there is an overarching rational for dedicating such resources to insure the safety of catfish, then what about other species? What about spinach or peanut butter for that matter?
While the reality of the congressional mandate provides a short term answer, over a broader period of time such questions will persist. In the immediate future, interested parties will do well to participate in the comment process, as well as in other forms of outreach such as public meetings, which will take place over the next few months. This activity will provide the best and perhaps the last opportunity to influence the structure of a program that, once it is finally established, will define both the opportunities and challenges to be faced by this industry for decades to come.
Robert G. Hibbert, Partner
Karl M. Nobert, Associate
K&L Gates
Washington, D.C.
