Meat + Poultry - September 2008 - 74

FOOD SAFETY

for the commingling of product? With
today's status quo, the answers to such
questions are not forthcoming and one's
business could entirely collapse, for no
good reason, as a result.
The ﬁnal issue involves potential
indemniﬁcation. There actually is such
precedent in the area of potential animal disease. If an unfortunate grower
must sacriﬁce his herd or ﬂock when it
is exposed to brucellosis or avian inﬂuenza, his pain is mitigated by the check
he receives from the federal government in recognition of the sacriﬁce he
has made to protect animal health. It is
not entirely clear why similar sacriﬁces
made for the advancement of human
health deserve different treatment.

Moving in new directions
The industry has moved toward a system where precautionary efforts to
protect the public health are deemed

to outweigh considerations, such as
private economic hardship and the
need for a regulator to carry any
meaningful burden of proof. If it is in
the public interest to continue pursu-

What can and should
be constructed are new
structures that will allow
everyone, including meat
and poultry processors,
to more effectively
survive within it.
ing such a course, there is a reasonable case to be made for the idea that
the public should also be expected
to absorb the cost of the extra insurance it is thereby receiving.

The public's demand for protection
and the regulators' ability to provide
it, however imperfectly, by associating broad categories of food products
with public health risks, has moved in
new directions - which have slipped
outside the boundaries of traditional regulatory structures. There is no
turning back from this reality. What
can and should be constructed are
new structures that will allow everyone, including meat and poultry processors, to more effectively survive
within it.
Robert Hibbert is a Washington, D.C.-based attorney with K&L Gates L.L.P. which comprises 28
ofﬁces in three continents. His practice focuses on
federal regulation of the food and agricultural industries, specializing on issues related to the U.S.
Dept. of Agriculture. He formerly served as a senior
attorney with the USDA and also served as general
counsel to the American Meat Institute.
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