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The latest Email Hack and the Great Soda Conspiracy

Gold finch giving camera the evil eye

I’m interested in the food industry primarily because of an interest in food safety and the environment. I’m not a Michael Pollan groupie, but when it comes to large corporations and consumers, I generally land on the side of the consumer.

My dual interest in the food industry and Clinton emails crossed recently with the release of hacked emails, these supposedly from the account of Capricia Marshall and released to a site known as DCLeaks. Marshall consulted with Coca-Cola, but has also worked on the Clinton campaign, as well as being the former US Chief of Protocol during Clinton’s tenure as Secretary of State.

A web site known as The Russels published what they felt was a close association between Hillary Clinton and Coca-Cola, as proven by one email interchange between Clinton staff workers and the company.

When Hillary Clinton supported Philadelphia’s soda tax this April, Latham and Marshall both played critical roles in Coca-Cola’s damage control. What follows is a case study in how corporations influence American politics through strings-attached donations and well-placed personnel.

First of all, we don’t know whether these emails have been modified or not, but for the sake of argument, we’ll say they’re legitimate. Do the emails imply that Clinton was influenced by a strings-attached donation by Coke?

Let’s go back into the news archives for the time in question. PhillyVoice wrote about Clinton’s support for the soda tax. It quotes a CNN article, which quoted Clinton:

It starts early with working with families, working with kids, building up community resources – I’m very supportive of the mayor’s proposal to tax soda to get universal pre-school for kids,” Clinton said. “I mean, we need universal pre-school. And if that’s a way to do it, that’s how we should do it.”

Clinton supported the tax for two reasons. One, the money was going to universal pre-school, which Clinton strongly supports. A second reason that isn’t covered in the articles is the fact that this was an important issue to Philadelphia’s mayor, Jim Kenney. She was helping a fellow Democrat get one in the win column.

Now, the Coca-Cola people can have all the tizzies it wants, but they had no influence on whether a broad support for soda taxes was going to be included in Clinton’s platform. The reason why is because soda taxes are a local issue, not a national one. Clinton’s support for this specific soda tax was for reasons unrelated to the support many of us have for soda taxes: because we want to reduce consumption of sugary drinks by the young folk. Not supporting the soda tax for the same reason doesn’t make Clinton pro-obesity, it doesn’t even make her beholden to the soda industry.

The email from Coca-Cola’s Katherine Rumbaugh, VP of Government Relations, published in a Forbes article by Nancy Fink Huehnergarth  that read:

[W]e’ve confirmed that there is no continued conversation around beverage taxes today and in future engagements – campaign is not going to drive conversation here or weigh in further,” Rumbaugh wrote. “Also, Jake Sullivan, [Clinton’s senior policy adviser], confirmed that they are not driving this from a policy POV. We’re also working on how to walk this back.

Is company executive speak for, “I earned the big bucks you pay me”.

Jake Sullivan confirmed that soda taxes were not going to be part of Clinton’s policy platform. Of course, they weren’t. As for the “walking back”, didn’t happen. Clinton stated she supported the Philadelphia soda tax, the soda tax passed, and she never once stated, “No, no, I didn’t mean it.”

I’m sorry my foodie friends, but the soda tax just isn’t that big a deal to the Clinton campaign. And I strongly suggest that you drop trying to get Clinton to pick this up because this is a local issue, not a national one.

This all just demonstrates the problem with writing news stories related to email hacks: people can cherry pick through the emails to find what they want, but whatever they choose to publicize is taken out of context, out of the bigger picture, and all they’re doing is feeding the hacking machine.

They’re also, albeit indirectly, misinforming their readers. The writers have made much more of the relationship between Clinton and Coca-Cola than probably exists, because the issue is much more important to these particular journalists, not to mention Coca-Cola, than it is to the Clinton campaign. That’s not to say that sugary soft drinks impact on a growing obesity problem isn’t significant, but it’s not significant at the national level for this particular Presidential race.

Will Coca-Cola have an inside track into the White House during a Clinton Presidency? No more than any other corporation with the big bucks to lobby Congress and the White House, regardless of who is President. And frankly, when it comes to soda, there isn’t much a President, or even a Congress, can do at the national level. Soda taxes, removing soda from schools, outreach…these are almost invariably local and state decisions.

 

 

 

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Koster’s Missouri Egg Challenge

Update: On March 20th, the plaintiffs in one of the cases (Rocky Mountain Farmers Union et al v Corey et al) referenced in this work, have petitioned the Supreme Court to hear its appeal.

Update: On March 5, Iowa, Oklahoma, Kentucky, Alabama, and Nebraska joined with Missouri in an Amended Complaint. The arguments are the same, the primary difference is the addition of other states. My arguments remain the same with a caveat that multiple states being involved does not add weight to the complaint. Well, other than the tax payers of these states should also express their curiosity as to why tax payer money is funding a legal fight benefiting one select industry.

Earlier: On February 3rd, 2014, the Attorney General for the state of Missouri, Chris Koster, filed suit in the Eastern District of California’s District Court challenging one of California’s egg laws. Some of the news stories about the lawsuit stated that Koster is challenging California’s well known Proposition 2, which ensures better living conditions for egg-laying hens. However, the Missouri AG is really challenging AB 1437, which was passed by the California legislature in 2010 in order to ensure that all shell eggs sold in California, regardless of origination, meet minimum living standards for the hens that lay them.

According to the Missouri complaint, AB 1437 violates the “dormant” Commerce Clause, by enacting a state law that discriminates against interstate or foreign commerce. But rather than go against the general context of the text, the complaint is targeting the alleged reasoning behind passing AB 1437 (to ensure all shell egg producers follow the same minimum requirements), as well as the timing (in-state producers received 2,249 days to come into compliance, while out of state producers received 1,640 days). The implication is that the law is “protectionist”, protecting California producers to the detriment of Missouri producers.

The complaint makes much of a report from the California Department of Food and Agriculture, which warned about a possible Commerce Clause challenge to AB 1437. In the report, the CDFA stated that the state might need to prove its allegations about food safety and cage size in order to avoid a constitutional challenge.

Pre-law warning aside, the case is going to be a difficult battle for the Missouri AG. The plaintiffs have to show that the law is deliberately discriminatory, or, failing this, that the out-of state producers’ pain outweighs the in-state benefits. In 2012, an in-state egg producer sued California because of Proposition 2, stating that the law was both unconstitutionally vague and in violation of the Commerce Clause. The lawsuit, William Cramer v. Edmund G. Brown, et alwas dismissed with prejudice by Judge John Walter who, in his decision, quoted from another case, Pacific Northwest Venison Producers v. Smitch:

If the regulations discriminate in favor of in-state interests, the state has the burden of establishing that a legitimate state interest unrelated to economic protectionism is served by the regulations that could not be served as well by less discriminatory alternatives…In contrast, if the regulations apply evenhandedly to in-state and out-of state interests, the party challenging the regulations must establish that the incidental burdens on interstate and foreign commerce are clearly excessive in relation to the putative local benefits.

The Cramer v. Brown lawsuit was about Proposition 2, which focuses on the animal welfare aspect of the regulations:

The purpose of this act is to prohibit the cruel confinement of farm animals in a manner that does not allow them to turn around freely, lie down, stand up, and fully extend their limbs.

Though the stated basis for both California egg laws differs, they are complementary, with an end result that’s the same: a minimum set of standards governing the environment for hens whose eggs are intended for human consumption within California. .

Throughout the Koster complaint, much is made of ancillary reports and publications related to AB 1437 and the fact that the law levels the playing field for California egg producers. This actually forms the basis for the legal challenge: that the bill only impacts on producers external to the state (since Proposition 2 impacts on producers internal to the state), and therefore places an undue burden on these out-of state producers.

The legislative history of AB 1437 suggests that bill’s true purpose was not to protect public health but rather to protect California farmers from the market effects of Prop 2 by “leveling the playing field” for out-of-state egg producers.

However, Koster’s legal challenge doesn’t demonstrate how out-of state producers are economically disadvantaged in relation to in state producers, other than the in state producers had longer to implement changes. Even then, the complaint text is breathtakingly disingenuous when it claims, “If Missouri farmers want to continue selling eggs in the California market on January 1, 2015…those farmers need to begin making the necessary capital improvements to their farms now…”

Well, yes, but then Missouri farmers have been aware of the 2015 deadline since July of 2010 in order to make those changes. That Koster didn’t decide to file the lawsuit until now is more a measure of *Missouri politics than logistical impossibilities.

What the complaint does mention is that Missouri egg producers had an advantage over California egg producers after Proposition 2 was passed, and it was the loss of this advantage that led to violation of the Commerce Clause:

63. AB1437 and 3 CA ADC § 1350(d)(1) violate the Commerce Clause because they are protectionist measures intended to benefit California egg producers at the expense of Missouri egg producers by eliminating the competitive advantage Missouri producers would enjoy once Prop 2 becomes effective.

Must states protect other state producers’ advantage? To understand whether this is a viable claim, we need to take a closer look at the Commerce Clause.

The Commerce Clause grants Congress the power to regulate commerce between states. The “dormant” Commerce Congress is an implied negative converse: states are prohibited from passing legislation that adversely or improperly impacts on interstate commerce. Interpretation of the law has been refined over time. Now, the courts first determine whether the state law discriminates against out of state interests in deference to the states own producers, either deliberately or incidentally. If the legislation is deliberate and protectionist, then the state is out of luck. However, if the discrimination is a side effect of the act then it’s up to the state to provide arguments why the ends it needs to achieve can’t be achieved any other way.

So how does AB 1437 fit into this? Interestingly, so.

If you sell shell eggs in California, you have to follow the same requirements regardless of your location. Proposition 2 started this process by requiring minimum standards for egg hens within the state, but if we took away Proposition 2, the same requirements would still exist because of AB 1437. Technically, AB 1437 seemingly does “discriminate” against out-of state producers more than in-state producers, since its focus is on the eggs sold in the state, rather than the hens within the state. However, the text of AB 1437 doesn’t differentiate based on location or producer, and neither does California statute 3 CA ADC § 1350(d)(1):

Commencing January 1, 2015, no egg handler or producer may sell or contract to sell a shelled egg for human consumption in California if it is the product of an egg laying hen that was confined in an enclosure that fails to comply with the following **standards.

Now the question becomes: does the fact that Missouri no longer has an advantage over California producers constitute “discrimination”? There is one Supreme Court case, Hunt v. Washington State Apple Advertising Commission, which seems to imply so.

North Carolina passed a law that apples had to have a USDA label. Washington State apple producers didn’t want to use the USDA label because Washington state standards actually exceed USDA standards—a fact that gives Washington apple growers an advantage over North Carolina apple growers. Washington state growers challenged the law, stating that it violated the Commerce Clause because the law degraded the Washington state growers’ advantage.

The Supreme Court agreed, which does seem to corroborate the notion that removing an out-of state producer’s advantage is discriminatory. However, there’s some subtlety to the ruling. According to the Oyez entry:

The Court voted unanimously that the North Carolina regulation was an unconstitutional exercise of the state’s power over interstate commerce. Although the regulation was facially neutral, it had a discriminatory impact on the Washington growers while shielding the local growers from the same burden. The regulation removed the competitive advantage gained by the Washington apples from stricter inspection standards. The regulation produced a leveling effect that works to the local advantage by “downgrading” apples from other states unjustly. Therefore, the regulation places an unreasonable burden on interstate commerce.

And therein lies the catch: the North Carolina apple producers were already using the USDA labels, so the new law had no impact on them. Unlike the North Carolina apple producers, the California egg producers have to follow a new law beginning in 2015—the same law that out-of state producers have to follow. Unlike the North Carolina apple producers, no one is “advantaged” on January 1, 2015 with the California laws. Or, in the egg producers’ perspective: all parties are disadvantaged, equally.

If the law isn’t deliberately discriminating, then the judge applies what is known as the “Pike balancing test” from the case, Pike v. Bruce Church, Inc..

Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.

The judge has to balance the benefits of the law against the burden imposed on out-of state producers.

Does California have a right to pass laws that support its citizens animal welfare and food safety interests? Judge Walter in Cramer v. Brown believes so.

As Plaintiff admits, the prevention of animal cruelty is a legitimate state interest. See United States v. Stevens, __ U.S. __, 130 S. Ct. 1577, 1585 (2010) (“[T]he prohibition of animal cruelty itself has a long history in American law, starting with the early settlement of the Colonies.”). In order to outweigh this legitimate state interest, Plaintiff must allege facts that demonstrate that the incidental burdens on interstate commerce are clearly excessive in relation to the local benefit and that these burdens are substantial. See National Ass’n of Optometrists & Opticians v. Harris, 682 F.3d 1144, 1148 (9th Cir. 2012) (“A critical requirement for proving a violation of the dormant Commerce Clause is that there must be a substantial burden on interstate commerce.”). Instead, Plaintiff alleges purely hypothetical and entirely speculative burdens on interstate commerce. Moreover, those hypothetical and speculative burdens, even if they are realized, are not clearly excessive in relation to the legitimate state interest in preventing cruelty to animals.

Another California court decision corroborates Judge Walter’s decision. Recently the Ninth Circuit Court of Appeals affirmed a judicial decision to deny a preliminary injunction against one of California’s foie gras ban laws. This lawsuit also contends that the law is a violation of the dormant Commerce Clause. The judges disagreed:

Plaintiffs contend that § 25982 targets wholly extraterritorial activity because it is “aimed in only one direction: at out-of-state producers.” Plaintiffs reason that § 25982 is “apparently directed at farmers who feed their ducks and geese outside [California],” because § 25981 already prohibits businesses in California from force feeding birds.

Plaintiffs misinterpret the interplay between the statutory provisions. Plaintiffs assume that § 25981 and § 25982 are functionally equivalent, with § 25981 targeting California entities and § 25982 targeting out-of-state entities. In truth, § 25981 serves an entirely different purpose than § 25982. Section 25981 prohibits entities from force feeding birds in California. But for § 25981, a California producer could force feed ducks in California, and then sell foie gras outside of California. Section 25981, however, does not prohibit the sale of products produced by force feeding birds. That is where § 25982 comes in. Section 25982 applies to both California entities and out-of-state entities and precludes sales within California of products produced by force feeding birds regardless of where the force feeding occurred. Otherwise, California entities could obtain foie gras produced out-ofstate and sell it in California. Thus, Plaintiffs’ assertion that § 25982 is directed solely at out-of-state producers is incorrect.

The case is still ongoing, but if the decision is any indication, has little chance for success.

Returning to AB 1437, contrary to the assertions in the complaint that the new regulations, “serve no legitimate state purpose because they do not protect the welfare of any animals within the State of California, and their stated purpose—to prevent salmonella contamination—is pretextual”, the new regulation does serve the legitimate interests of the citizens of the state as to the safety of the food they eat. The text of AB 1437 references both the Pew Commission on Industrial Farm Production and the World Health Organization in their findings of proportionally higher level of salmonella contamination associated with stress, and that the hen’s stress level is directly related to the environment in which it is kept. A quick Google search brings up several other studies and reports that also make a connection between environment and hen health, and hence egg safety.

The Missouri AG disagrees. The complaint, in effect, places the court in the position of having to determine the credibility of scientific findings it has neither the skill nor background to judge.

It is just this difficulty that has led the Roberts Court to cast a jaundiced eye against the Pike Balancing Test, and, indirectly, against the dormant Commerce Clause, itself. And in our court system, interpretation of law flows down hill.

The Koster complaint doesn’t rely solely on the Commerce Clause in its arguments. The complaint also claims that the Federal Egg Products Inspection Act (FEPA) implicitly preempts the California laws, and they are therefore null and void under the Constitution’s Supremacy Clause. It’s an odd argument, considering Missouri’s own frequent attempts to explicitly nullify federal law.

Regardless of the unintended irony of the claim, the FEPA focuses specifically on egg processing and processing facilities, and not on the environment housing egg hens. At most, the state and federal laws complement each other. I have to assume this argument in the complaint is the legal equivalent of throwing everything at the wall and hoping somethingsticks.

Before he filed, Koster stated the following in an interview with the Kansas City Star:

“This is not an agriculture case, and it’s not just about egg production,” Koster said. “It’s about the tendency by California to press the boundaries of intrusion into an area protected by the Commerce Clause of the U.S. Constitution.”

In another case currently under way in the California federal courts, Rocky Mountain Farmers Union v. Corey, several out-of state fuel suppliers sued the state of California regarding its Low Carbon Fuel Standard (LCFS). The groups claimed that the standard placed an undue burden on producers outside of California, and hence the regulations were in violation of the dormant Commerce Clause. A federal judge initially agreed, but the decision was overturned by the Ninth Circuit Appeals court. What stood out for me in the court’s decision, other than it being a victory for cleaner air, is the following:

Our conclusion is reinforced by the grave need in this context for state experimentation. Congress of course can act at any time to displace state laws that seek to regulate the carbon intensity of fuels, but Congress has expressly empowered California to take a leadership role as to air quality. If GHG emissions continue to increase, California may see its coastline crumble under rising seas, its labor force imperiled by rising temperatures, and its farms devastated by severe droughts. To be effective, California’s effort to combat these harms must not be so complicated and costly as to be unworkable. California’s regulatory experiment seeking to decrease GHG emissions and create a market that recognizes the harmful costs of products with a high carbon intensity does not facially discriminate against out-of-state ethanol.

While Congress hasn’t specifically anointed California to take on food safety or animal welfare issues, our country has long encouraged states to be the vanguard when it comes to change. Right now, states are taking the initiative with gay marriage and marijuana use, to mention two that are frequently in the news. These states become, in effect, laboratories where change is tested, and laws are refined. Such refinement can then be used to better craft laws that apply to all states.

In addition, changes at the state level can lead to acceptance of federal laws in today’s political environment where anything new coming from the US government is treated as suspect. An attempt to incorporate minimum requirements for egg hens at a national level has not been successful, even though it is supported by both egg producers and animal welfare groups, because there hasn’t been enough impetus for the change at the state level yet. Come January 1, 2015, the impetus will increase.

In my opinion, Chris Koster is wrong in his conclusions about the California laws, and it’s highly unlikely that his suit will prevail in court. Stories about the court case have stated that Koster expects the case to cost the state of Missouri only about $10,000 in legal fees. Legal battles of this nature are very expensive, so I have to assume Koster expects the case to be dismissed relatively quickly, and rightfully so.

Then Missouri Attorney General Chris Koster will have to explain to the citizens of the state of Missouri why he’s using tax payer money for a lawsuit that should have been filed by the egg producers, themselves, as is usual with court cases of this nature.

* Since Chris Koster is planning on a run for Governor, and since the Missouri Farm Bureau has inordinate influence in Missouri elections, I’ll leave it up to the reader to speculate as to the exact nature of the Missouri politics.

** What standards? An enclosure with 9 or more hens must provide 116 square inches of floor space per bird; less than nine, a formula is used (322 + [(n – 1) x 87.3] / n, where “n” is number of birds). Oh, and birds must have access to food and water. This is a space about 11 inches square, with access to food and water. This is not the bird equivalent of Four Seasons. It’s not even a bird equivalent of Motel 6. That egg producers consider this burdensome should give everyone pause.

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Horses in the Oven: The USDA is not the Enemy

Today, Judge Armijo will hold a status conference with all the lawyers in the Front Range Equine Rescue et al v. Vilsack et al court case.

The USDA and defendant interveners have asked for an expedited hearing on the merits of the case, rather than go through the preliminary injunction process. The plaintiffs have agreed, but have also asked the Judge to modify her Temporary Restraining Order (TRO) so that it’s impacting on the USDA only, and not the two meat processing plants who have been given a horse slaughter inspection permit. The groups have also asked for a bond reduction, as the bond amount is excessive for a NEPA action.

Several in the horse welfare movement are up in arms about the government’s request—thinking that the government is trying to ram through a court decision. That’s not happening, and I’m concerned there’s a hostility towards the USDA that isn’t warranted. At least not in this case. I think much of this hostility is due to the fact that there’s as much rumor as fact surrounding the case. I’m not a lawyer, but I have been following other, similar court cases, so I’m going to take a shot at laying out the facts in the case. If I make a mistake in my understanding, please let me know.

The plaintiffs based the lawsuit on the Administrative Procedures Act (APA) and the National Environmental Policy Act (NEPA). Basically, what’s happened is the USDA has made a decision to begin inspections at horse slaughter facilities. The plaintiffs assert this agency decision causes them harm. They have exhausted all other efforts to seek redress for this harm, and seek a remedy in court. According to the amended complaint, “The Administrative Procedure Act, 5 U.S.C. § 551 et seq. (“APA”), provides that “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”

What is the legal wrong? That’s where NEPA comes in. The legal wrong is that the USDA did not perform an environmental analysis of the possible negative consequences of its decision to issue horse slaughter inspections; did not provide a statement of such an analysis; and did not provide opportunity for the public to comment on the potentially negative consequences of the agency’s action. Returning to the amended complaint, “Under the APA, a reviewing court shall “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; . . . in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; [or] without observance of procedure required by law.”

Considering the negative environmental consequences of horse slaughter plants in the past, the plaintiffs should be able to establish standing. To sue, the plaintiffs have to establish that they have a stake in the outcome of the court case, that they have suffered a legal injury by action of the defendant, and that the court can redress this injury. Among the plaintiffs are people who live in the immediate vicinity of these plants, and who can, and most likely will, be impacted by the operation of these plants. These people are members of the Humane Society of the United States (HSUS), who is participating in the suit on their behalf.

In addition to the HSUS and other plaintiffs, the State of New Mexico has been granted leave to intervene on the side of the plaintiffs in the case. In its memorandum in support of its intervention, the Attorney General for the state writes:

New Mexico has a legal interest in its sovereign right to regulate land, air and water quality within its borders within the parameters of federal law. The impacts of Valley Meat’s
proposed horse slaughter operation, particularly its disposal of carcasses and other wastes, on the environment and public health are subject to regulation by the New Mexico Environment Department and the New Mexico Department of Health. Moreover, federal laws, such as the Clean Water Act and the Clean Air Act, allow states to regulate and enforce their own environmental quality programs, so long as such programs are approved by the federal government.

Since the meat processing plants have processed beef in the past, some may question why there’s concern about horse meat, but not about beef. Well, the major difference, as noted by the Judge in her TRO, is that horses, unlike cows, are primarily companion animals. As such, *companion animals are given drugs strictly forbidden to food animals. These drugs can not only lead to dangerously adulterated meat (which New Mexico does not want sold from the state), they can also enter into the ground, and into the waterways surrounding the plants. These drugs could impact on the health and safety of the people surrounding the plant, as well as potentially impacting negatively on other food products. The state, as guardian for land and water for New Mexico, will also incur added expense ensuring these drugs do not contaminate the land and the water. I’m actually astonished other potentially impacted states have also not sought to intervene, for this same reason.

According to Judge Armijo’s decision:

Turning to the grants of inspection, as previously stated, the grants of inspection were based, in relevant part, on the existence of the FSIS Directive to protect the public health and safety. The Court is not persuaded that the grants of inspection would have been issued in the absence of this Directive, the express purpose of which was to protect the public health and safety from the unique chemical residues possibly present in equines. Although the Court must afford deference to the FSIS’s actions, the Court does not find credible the Federal Defendants’ assertions that the grants of inspection would have been issued in the absence of the Directive given the express purpose of the Directive to protect the public health and safety and given the fact that FSIS specifically incorporated the Directive into their grants of inspection. The Court therefore concludes that Plaintiffs have established a substantial likelihood of success on the merits of their NEPA and APA claims challenging the grants of inspection.

Now, returning to the issue of an expedited hearing. The USDA did not ask for this because it’s a bad ass or meanie. It did so, because once it submitted the Administrative Record relevant to its decision to begin horse meat plant inspections, all the relevant facts pertinent to the case are now available to the judge. Some of the defendant intervenors had requests for discovery, but these really aren’t relevant for an APA case (as the plaintiffs’ lawyer, Bruce Wagman, noted).

(Note, I have a FOIA into the USDA to get a copy of the documents linked in the Administrative Record Index. When I get copies, I’ll post at my Documents web site.)

The plaintiffs concur with the request for an expedited hearing, as long as their motion for re-wording the TRO and a reconsideration of the bond amount are considered. I imagine these will be discussed in today’s Status hearing.

The point is, the facts are in, the arguments have been made, and are being made, and the Judge will have what she needs to make a decision sooner, rather than later. This is better for everyone. An expedited hearing doesn’t strengthen the USDA’s case, or undermine the animal welfare folks case. Point of fact, based on precedent and argument, it’s highly likely the plaintiffs will win this case. I would be extremely surprised if they didn’t.

So the USDA is not the bad guy in this.When Congress reinstated horse meat inspection funding, the USDA had no choice but to begin the process to issue horse meat inspection permits. When Valley Meat et al sued the USDA to begin issuing permits, it had no choice but to hasten its deliberations (and skip NEPA in the process). And the USDA has no choice when it comes to arguing this case in court to the best of its ability, or to work for an expedited decision, as responsible representatives of the citizens of the country, as well as the agency tasked with enforcing the laws passed by Congress.

If the plaintiffs succeed, then the permits will be on hold while the USDA fulfills its NEPA responsibilities. While this is happening, those of us who do not support slaughtering horses for meat, have an opportunity to permanently ban horse meat slaughter, and the transport of horses for horse meat slaughter, by supporting the SAFE Act.

Front Range Equine Rescue et al v. Vilsack et al court documents

*More on this in a companion article, Eating Flicka: A Good Idea?

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Eating Flicka: A Good Idea?

If we separate the moral argument about eating companion animals and instead focus on the safety of horse meat, the end result remains the same: starting up the horse meat industry in the United States is not a good idea. To get a good understanding why, we need to take a closer look at what’s happening with the horse meat industry where the meat is currently allowed: The European Union (EU).

The EU has had procedures in place to ensure healthy horse meat for years, yet stories this year about horse meat incorporated into beef products, and horse meat testing positive for drug residue have surfaced repeatedly.

Horses in the EU are required to get a “passport” by six months of age, and all administered medications get recorded in the passport. Yet there have been a significant number of incidents where a passport for one horse is used with another, as well as incidents of fake passports.

Equine Essentials notes the issues in The Problem with Horse Passports:

The passport system has had plenty of criticism for not functioning properly, not being enforced and being subject to a lot of abuse. In February 2013 the BBC reported that 7000 unauthorised documents have been circulating in the UK since 2008. Not to mention the fake horse passports that are being made continuously. Owners report that veterinarians often don’t use the passport to record care history and many opt for the old way of doing things and issue vaccination cards instead. Many competing grounds are also happy to just see the vaccination card and don’t check passports.

Problems aside, the supposed benefit of the Passport system is it provides traceability of the horse, ensuring that meat from horses that have received hazardous drugs doesn’t enter the food chain. There is no such system in the United States. At one time, the USDA considered implementing a system of traceability known as the National Animal ID System, or NAIS. However, because of pushback from farmers and livestock associations, the USDA dropped its plans. Instead, the USDA adopted a relatively weak rule that animals transported across border will have to be accompanied by formal identification, including a veterinarian certificate or owner statement. No passport, no electronic tracking, just paperwork.

The new rule’s purpose is to track the course of a diseased horse across state borders. However, tracking a diseased horse is only one component of ensuring the safety of the meat. It’s also important to know what drugs a horse has been given. As the USDA notes in its inspection procedure, horses are companion animals and are usually given medications forbidden a food animal like a cow. In particular, one drug, phenylbutazone or “bute” as it’s commonly called, is frequently used with companion horses. But bute can also cause a fatal disease in humans called aplastic anaemia. The drug is so dangerous that any use in the horse makes that horse ineligible for processing as meat.

To check for drugs, the USDA implemented an inspection routine that randomly samples horses, based on the number of horses within a “lot”. If the lot consists of 10 horses, the USDA inspectors will test 1 horse; between 11 and 50, 2 horses; between 51 and 100 horses, 3 horses are tested; and if the lot consists of 100 or more horses, a maximum of 4 horses are tested.

Is this random sampled testing sufficient to ensure that the horse meat is free from drug or other residue that can cause harm? Well, to answer that, we have to visit our neighbors to the north.

The Toronto Star has written a series of investigative stories about the processing of horse meat in Canadian factories. It followed a race horse named Backstreet Bully, as it left a race course only to be shot dead in a knacker’s yard. The story detailed how, through a series of deceptions widely practiced in the kill horse auction community, a horse who had been administered drugs typically given to companion horses, ends up at a horse meat slaughter auction house. The story effectively demonstrates how ineffectual Canada’s own “passport”, the Equine Information Document, is when it comes to preventing drug tainted meat from entering the human food chain.

The federal government relies heavily on the accuracy of the passports, which have been in existence since 2010 and are the first line of defence in keeping tainted horse meat from the human food chain. The government does not require owners selling a horse for meat to provide additional medical history such as veterinary records.

Dr. Martin Appelt, the Canadian Food Inspection Agency’s national veterinary program manager, acknowledged the government relies on an honour system and hopes that the documents are “a reflection of the truth.”

But it’s far from a foolproof system: last year, tainted horse meat from Canada, bound for Belgium, was found to contain traces of two controversial drugs, bute and clenbuterol, the latter on the list of drugs in Canada that are never to be given to animals sold for human food.

The Canadian Food Inspection Agency began testing horse meat for bute in 2002. In detecting prohibited veterinary drug residues in meat, there is an overall compliance rate of 96 to 98 per cent, according to an agency spokesperson. Testing is random though a horse or its carcass will be tested if there are red flags or concerns.

Though Canada has implemented it’s own passport system, it also relies on random testing, just like the USDA. Yet horse meat tainted with dangerous drugs has still managed to slip through to the European market. We, in the US, rely only on random testing—how safe do you think the meat will be?

Of course, one can always choose not to eat horse meat. We’re not going to be exposed to bute-tainted meat if we don’t eat horse meat. The problem with this approach, though, is that sometimes people are eating horse meat and aren’t even aware they’re doing so.

This year, the EU and the UK were shaken when horse DNA was found in meat labeled as 100% beef. Food Safety News put together an infographic charting the early days of the scandal, but the problem is ongoing. Just last week, authorities noted that two people involved in the horse meat contamination were arrested in Britain.

The Horse DNA tainted beef has shown up all throughout Europe and the UK: in foods ranging from fast food burgers to the famous IKEA meat balls. Recent testing has shown that over 5% of meat labeled “beef” in Europe is contaminated with horse meat DNA. This isn’t a small percentage, and demonstrates that the horse meat contamination is endemic—especially when we consider the DNA testing is more thorough in some countries, than others.

What’s more critical is that testing also discovered that one half of one percent of the horse meat tested positive for bute—a far more alarming discovery. Authorities downplayed the findings, saying the percentage is trivial, but the assertion of “no worries” doesn’t jibe with the laws restricting any presence of bute in the human food chain.

The EU may state that the issue is a matter of food fraud and not of food safety, but in the end, it’s all about food safety. Food safety is about preventing harm to people, regardless of the impetus behind the harm: human greed or human carelessness. And, as noted in the NY Times article just linked, Europeans have only been testing for bute…there are other drugs used with horses that can also potentially cause harm if consumed by humans or other animals.

If you live in the United States, you may think this isn’t a problem for any of us. After all, we don’t typically eat horse meat in this country. None of the horse meat processed in the country is targeted for human consumption within the country. The meat is intended for human consumption in other countries, or supposedly for animals in zoos. Why should we worry, then?

Leaving aside the fact that we should question our indifference about inflicting potentially dangerous meat on the rest of the world, not to mention tigers, lions, and bears in zoos, we are at risk for our own version of the European horse meat scandal by starting up horse meat processing in this country.

Horse meat is generally less expensive than beef, especially horse meat from older horses or scrawny wild mustangs. It’s going to be tempting to shove a little horse meat into the beefwhen creating cheap frozen foods, or foods served at inexpensive restaurants. In addition, horse meat is leaner than beef, which has an appeal for a different reason. Because of our insistence of shoving corn down cows’ throats, we have almighty fatty beef in the US. Yet weight conscious people want low fat meats. Access to lean meat to mix with our fatter beef in order to control fat content is an attractive proposition. Right now, we’re actually importing lean beef trim from countries like New Zealand, just to get that “98% lean” label in the supermarket. Why not toss in a little leaner horse meat rather than import lean meat scraps?

We wouldn’t need to be concerned about our own version of “food fraud” if we did DNA testing on our meat in order to ensure that “beef” is “beef”. Canada did this recently, to assure its citizens that Canadian beef is real beef (they hope, because just like testing for drugs in horse meat, the horse DNA testing samples were limited). The problem is, the US doesn’t do any DNA testing of our locally derived meat. Some folks did for our seafood, and found a whole lot of “mislabeling”. We do species testing for imported meat, but we don’t do any DNA testing of our locally derived meat.

Well, isn’t that just peachy?

Let’s be blunt, we’re right there with the folks in Canada and the EU: food safety is based on the honor system more often than not. Most of the time, it works. Sometimes, though, the honor system doesn’t work as well as we’d like. Once we start processing horse meat in the US, the only way we can guarantee we don’t get any horse meat in our hamburgers is not to eat hamburgers.

Or chicken.

I’d stay away from goat, too.