CALIFORNIA APPEALS FRESH POULTRY RULING

JONNA CRISPENS

SACRAMENTO, Calif. -- The term "fresh" used for poultry products is getting a lot of scrutiny in the state of California.

The state is appealing an April 8 decision by the U.S. District Court here that struck down a state statute aimed at regulating the use of the term "fresh" for poultry sold in California.

The appeal was filed April 15 by the state Department of Food and Agriculture in the U.S. Circuit Court of Appeals, 9th Circuit, San Francisco.

In addition to filing a notice of appeal, the state also requested a stay of the district court's judgment, which would lift all bans on the statute.

If the stay is granted, the statute, called the California Food and Agricultural Code, would be enforceable for the first time. Although the code was to go into effect Jan. 1, the district court placed a temporary injunction on it last December in response to a lawsuit filed by the National Broiler Council, Washington; the American Meat Institute, Arlington, Va., and the Arkansas Poultry Federation, Little Rock, Ark. In its 19-page opinion, the district court ruled the code invalid because it defines the term "fresh" in a way that the court found was inconsistent with the policies governing the federal Poultry Products Inspection Act.

The Act contains a pre-emptive provision that forbids states from imposing any labeling requirement that are "different from or in addition to" what's contained in the Act.

The California statute prohibits wholesalers from using the term "fresh" on any poultry product that has reached an internal temperature of 25 degrees or lower -- or has been stored at that temperature for more than 24 hours.

The lawsuit contended that the statute would interfere with interstate commerce and create an unfair disadvantage for out-of-state producers.

Although most producers try to transfer their products in temperatures ranging from 25 to 28 degrees, they often turn the thermostat slightly lower to ensure that those temperatures are maintained during long trips, according to George Watts, president of the National Broiler Council.

And the 24-hour time frame only emphasizes the fact that the statute is aimed at out-of-state producers -- who have been eating into California's market share for several years, he said.

Under the California statute, out-of-state producers would be forced to label their products "frozen" instead of "fresh" -- an obvious marketing disadvantage, he said. "The state of California will tell you they passed the statute to protect consumers, but they passed it to promote their own poultry industry," he said.

Randall Christison, deputy attorney general for the state of California, disagrees that the statute was passed for competitive reasons.

"Poultry freezes somewhere around the 25 degrees mark, and we feel that if a poultry product has been frozen and then thawed out, the consumer should know about it," he said. Christison said the statute will not place any undue hardship on out-of-state producers.

"If a producer's equipment is working properly, he should be able to target 28 degrees as a transportation temperature and still have a few degrees of cushion to keep from falling below the statute limit," he said.

As for the 24 hours, it actually protects producers against those instances when the temperature drops unnoticed for short periods of time, he said.

The state also contends that neither the federal poultry act nor the regulations governing it define the term "fresh" -- and disputes the plaintiffs' contention that such a definition is found in the policy memorandum. The court's decision was met enthusiastically by one of the attorneys involved in the suit against the state.

"It's very important for everyone in the meat and poultry food chain, because the judge wrote a very comprehensive, strong opinion supporting the PPIA's overriding jurisdiction," said Gary Kushner, general counsel for the NBC.

The decision is also considered beneficial to the meat industry, which is governed by a law that contains the same pre-emptive language, he said.