COURT WON'T HALT E. COLI TESTING

JOANNA RAMEY

WASHINGTON -- The supermarket and meat industries last week lost the first round in their legal challenge to the U.S. Department of Agriculture's new program to test for E. coli in meat at the retail level.

Judge James R. Nowlin of the U.S. District Court in Austin, Texas, ruled against issuing a preliminary injunction to halt the program, launched Oct. 17. The seven industry associations that challenged the testing said they will continue pursuing their lawsuit against USDA, and may appeal Nowlin's ruling.

In rejecting the industry's claims, Nowlin found that USDA has a legal basis for the testing and did not need to solicit public comment on the program. He called the program "a rational response to an emerging problem."

The seven industry groups that sought the injunction released a statement underlining their determination to continue pursuing the case in court. In a separate statement, the Food Marketing Institute here, one of the groups that joined in the court case, said that while the ruling was disappointing, USDA's interest in meat inspection reform and its goal of avoiding criminal prosecution of retailers are positive steps.

The seven groups that joined in the lawsuit are the American Meat Institute, FMI, National Grocers Association, National-American Wholesale Grocers' Association, Southwest Meat Association, Texas Food Industry Association and Texas Retailers Association Food Council.

The coalition maintains USDA's program to test for the E. coli 0157:H7 bacteria violates federal regulatory procedures. The groups view the program as an inefficient way of ferreting out E. coli because the problems begin higher up in the food supply process. In addition, the groups contend USDA officials misstepped in deciding to label E. coli an adulterant, which gave the agency authority under the Federal Meat Inspection Act to conduct the testing program.

The industry fears a widespread panic among consumers, and the potential sullying of stores' reputations should meat incorrectly test positive for the bacteria. To date, the testing program hasn't turned up an E. coli problem with ground beef. Nowlin took exception to the industry claim that E. coli can't be an adulterant since it only presents a problem in meat that isn't cooked thoroughly. He said part of the problem is that the public has an incorrect view of thorough cooking requirements, which makes E. coli a danger.

"The evidence submitted by [USDA] indicates that many Americans consider ground beef to be properly cooked rare, medium rare or medium. The evidence also indicated that E. coli-contaminated ground beef cooked in such a manner may cause serious physical problems, including death," Nowlin wrote in his decision. Regarding whether USDA should have followed the federal Administrative Procedure Act, which requires soliciting public comment on regulatory changes and meeting other standards, Nowlin also disagreed with industry arguments.

The judge said the agency, under the meat act, is authorized to test ground beef. He added that the E. coli program is merely a "procedural rule" that isn't costing the industry anything. Nowlin said that already the testing program "has been at least partially successful in spurring the industry to take greater preventive measures."

Michael Taylor, the Department of Agriculture's secretary for food safety and administrator of the Food Safety and Inspection Service, said in a statement the testing program will continue, coupled with the agency's ongoing plan to issue a proposal for a revamping of meat and poultry inspection in order to reduce the presence of pathogens like E. coli in the meat supply.

In a joint statement, the associations maintained that the program was a bad solution, and promised to continue efforts in court. "We all share the goal of a safer food supply," the statement read. "But we know -- and USDA admits -- that this ground beef sampling program does not make food safer. Microbial sampling can detect, but it can't protect and, more importantly, it can't prevent contamination. It is a useful tool for monitoring safe food production processes, but it is a poor excuse for a public health protection program." .

The FMI statement, from Karen Brown, senior vice president, said the judge "missed the point regarding after-the-fact recalls," which won't protect consumers because they don't take a comprehensive approach. However, Brown added, "We are pleased that USDA is going to undertake a comprehensive rulemaking process regarding meat and poultry."

Moreover, Brown said Taylor filed an affidavit saying FSIS won't seek criminal prosecution of retailers who unknowingly sell ground beef found to contain E. coli.