JUDGE IN MEAT LABEL CASE IS BACK FOR E. COLI LAWSUIT

JOANNA RAMEY

WASHINGTON (FNS) -- The judge scheduled to hear the supermarket industry challenge to the U.S. Department of Agriculture's new program to test ground beef for E. coli bacteria is the same judge who ruled in favor of the industry in a similar case last fall.

That judge -- James R. Nowlin of the U.S. District Court in Austin, Texas -- also recently ordered USDA to pay $163,083 to the National-American Wholesale Grocers' Association/International Foodservice Distributors Association to cover legal fees and expenses incurred in the lawsuit last year. NAWGA/IFDA, which funded the earlier industry challenge to a USDA plan to label meat with safe handling and cooking instructions, sought the refund of its legal expenses under a statute that allows certain prevailing parties in a lawsuit against the government to reclaim their legal expenses.

In deciding in favor of the industry last year, Nowlin found that USDA had overstepped its regulatory authority by rushing the meat labeling regulations into service. He said the agency failed to strictly follow the comment-period requirements under the federal Administrative Procedures Act. Failure to follow those requirements also is one of the complaints raised in the E. coli testing lawsuit, which will have a preliminary hearing on Wednesday in U.S. District Court in Austin. Ultimately, in the labeling case, USDA followed the comment-period requirements, releasing an almost identical labeling proposal months later, in January. The E. coli testing program, which is under challenge, involves the government's random sampling of ground meat at store level.

Just as it did when it initiated the disputed handling and cooking label program, USDA said it launched the E. coli testing program as part of its ongoing effort to eradicate the E. coli bacteria from the meat supply. The bacteria, which USDA estimates is present in 0.2% of all ground beef, occurs naturally in an animal's intestines. Ingested by humans in raw or undercooked meat, the bacteria has been blamed for thousands of illnesses each year and several deaths. As they did in the labeling case, the industry groups fighting the E. coli testing program view the program as burdensome and costly. In addition, they argue that USDA should be placing its enforcement efforts at the source of meat production, where contamination occurs.