Marler Clark LLP filed a petition on behalf of several individuals and consumer groups on January 18, 2020, asking the U.S. Department of Agriculture Food Safety and Inspection Service (USDA FSIS) to issue an interpretive rule declaring 31 Salmonella strains as per se adulterants in meat and poultry products. These strains include four antibiotic-resistant serovars—Salmonella enterica Hadar, Heidelberg, Newport, and Typhimurium—as well as Dublin, Enteritidis, and Infantis. In support of its request, the petition relies heavily on its interpretation of precedent established following the 1993 Escherichia coli outbreak, when USDA declared E. coli O157:H7 a per se adulterant in raw ground beef through interpretive rulemaking.
The petition argues that FSIS has the authority to declare the 31 Salmonella serovars per se adulterants through interpretive rulemaking because the proposed rule would meet the criteria set out in Texas Food Industry Ass’n v. Espy, 870 F. Supp. 143, 147-48 (W.D. Tex. 1994). More specifically, the petition argues that because the Federal Meat Inspection Act does not require USDA to engage in substantive rulemaking to determine whether a particular substance is an adulterant, the agency has “the discretion to proceed through case-by-case adjudication and interpretive orders, rather than through the rulemaking process.” Espy, 870 F. Supp. at 147. The petition also argues that the issuance of such a rule would not be arbitrary or capricious or not in accordance with law.
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