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January 13, 1999
Docket Clerk
U.S. Department of Agriculture
Food Safety and Inspection Service
Room 102, 300 12th Street, SW
Washington, DC 20250-3700
RE: Proposed Rule on Retained Water in Raw Poultry Products;
Docket No. 97-054R
Dear Sir or Madam:
The Food Marketing Institute (FMI) is pleased to submit the following
comments on the rule proposed by the Food Safety and Inspection
Service (FSIS) on retained moisture in poultry products.
FMI is a nonprofit association that conducts programs in research,
education, industry relations and public affairs on behalf of
its 1,500 members and their subsidiaries. Our membership includes
food retailers and wholesalers, as well as their customers, in
the United States and around the world. FMI's domestic member
companies operate approximately 21,000 retail food stores with
a combined annual sales volume of $220 billion, which accounts
for more than half of all grocery store sales in the United States.
FMI's retail membership is composed of large multi-store chains,
small regional firms and independent supermarkets. Our international
membership includes 200 members from 60 countries.
The stated purpose of the proposed rule is to prevent the economic
adulteration and misbranding of poultry products by limiting the
amount of water retained by raw poultry products as a result of
post-evisceration processing and requiring disclosure of the maximum
percentage of retained water on the product label. 63 Fed.
Reg. 48961-62 (September 11, 1998).
FMI fully supports the goal of the proposed regulation with respect
to insuring that consumers receive the full value of the food
product they are purchasing; our objections, explained more fully
below, concern the proposed enforcement mechanism. As the majority
of poultry sent to the retail store is pre-packaged, reducing
the retained moisture weight will ensure that retailers obtain
the full value of the food, as well. Of ancillary benefit, we
note that poultry with less water in the package generally results
in less drippage and, thus, is more sanitary. Additionally, consumers
tend to dislike free liquid in food packages. Id. at 48974,
48980. Although consumers rightfully object to paying for food
that they are not receiving, consumers also have high expectations
regarding the quality and safety of the food products they purchase.
Thus, FMI supports the proposal to the extent that changes in
water retention for poultry will not decrease the food's quality
or, more importantly, diminish consumer health.
Our primary concern with the proposal stems from the mechanism
recommended by the Agency to enforce the water retention control
policy. Specifically, the Agency intends to implement a retail
sampling program to determine whether the water retention standards
are being met. Id. at 48964. The ostensible purpose of
the sampling program is "to identify establishments that
may be exceeding water limits and then target resources to conduct
follow-up testing to confirm compliance or noncompliance."
Id. at 48972.
To the extent that a water retention problem exists, however,
it would be better controlled by monitoring at the poultry establishment
itself, rather than at the retail level. FSIS states that those
establishments that control their processes to keep retained moisture
far below the limits "never come close to a violation."
Id. at 48971. In contrast, "a few" establishments
"appear to target the limit and frequently experience retained
product as an extra operating expense." Id. at 48971.
Thus, FSIS's data establish that the problem is a limited one
that pertains to those few establishments that appear to have
developed intentionally looser standards or procedures.
Most importantly, the problem is one that only occurs at the
establishment level. As FSIS states, water is absorbed during
the post-evisceration processes, such as carcass washing and chilling.
No further water is gained at the retail level, nor does FSIS
allege that water retention occurs at retail.
In fact, except in those few cases in which a retailer may re-package
poultry, the quantity of water in the package of chicken as a
whole remains the same at retail as it was when the food was packaged
by the processor. FSIS makes much of the fact that water retained
during washing and chilling does not completely drain from the
poultry before the food leaves the processing establishment at
which it was packaged. Indeed, the Agency points to testing that
shows that moisture is retained in poultry at the time of packaging
and that the moisture leaches from the food by the time the food
product reaches the consumer. Id. at 48976. However,
since most poultry products are packaged at processing plants
and sold in the same packages to consumers, the weight of the
packaged product as a whole does not diminish -- even if some
of the moisture leaches from the poultry - since the water will
still remain in the package.
As the problem only occurs at the establishment level, proper
remediation can only take place at the establishment. FSIS currently
has detailed procedures in place for testing poultry for moisture
retention in poultry processing plants. Id. at 48971.
The Agency attempts to justify the shift to retail inspection
by stating that the current testing program is labor and resource
intensive. Id. at 48971. However, rather than repudiate
establishment testing in its entirety, the Agency should modify
the establishment testing procedures to address the problem more
directly. As noted above, the water retention issue is a localized
one. Therefore, testing should be concentrated to ensure that
those few establishments that operate close to the margin and
are repeatedly in danger of violating the standard operate in
accordance with the law.
Testing at the retail level is both problematic and ineffective.
First, given the inherent variability in water retention rates,
detecting a few products that exceed the limit at the retail level
does not provide any information on the cause or the scope of
the problem or whether corrective action has already been taken.
Second, FSIS has provided only sketchy information regarding
the methodology proposed for use in retail sample testing. An
allusion is made to a 1980 proposal that involves measuring "drippage
from sampled products against what is considered the natural water
content of the product." Id. at 48972. Given the
substantial strides the Agency has made in overhauling its food
safety system, the reason for selecting a "command and control"
method that is nearly two decades old is not clear. Moreover,
determining the "natural water content" of the product
is likely to be an illusory goal at best, since the moisture levels
that occur naturally in poultry products vary widely by breed,
strain, and even location of production. Testing individual poultry
products by weighing them at the plant before and after processing
is the most accurate method of determining water retention rates.
Furthermore, once products that are out of compliance are located
at retail, the Agency will need to implement traceback procedures
to determine the source of the problem. Given the admittedly
localized nature of the source, this procedure is circuitous and
wasteful of valuable Agency resources. FSIS is much better advised
to continue monitoring at the establishment level, thereby, preventing
the problem at its source.
Moreover, under a retail inspection program, detection of any
problems will only occur once the product is sold at the retail
level and, therefore, after the economic adulteration has already
occurred. That is, consumers will have already purchased the
poultry products. Correction at this stage would essentially
necessitate the institution of product recall or reimbursement
procedures: both extremely costly, labor-intensive actions that
would profoundly diminish consumer confidence in the food supply
and erode consumer confidence in the efficacy of the regulatory
bodies that are charged with its protection. FMI strongly opposes
an inspection program that would lead to corrective actions of
this nature. Truly meaningful remediation can only occur at the
establishment level by testing products for water retention before
they are packaged and shipped to retail stores, thereby preventing
products from becoming misbranded or economically adulterated.
As a secondary matter, we are interested in the labeling requirements
that may apply to retailers that repackage poultry products.
The proposed regulation states that "raw meat and poultry
carcasses and parts that retain water must bear a statement on
the label in prominent letters and contiguous to the product name
indicating the maximum percentage of water that may be retained."
Proposed Section 441.10 at 63 Fed. Reg. at 48969. For instance,
the proposal states that "retail stores would have to label
their single-ingredient, raw products unless they had data showing
that the processing and repackaging they conduct removes all retained
water." Id. at 48975. The acceptable labeling statement
set forth in the proposal is "may contain up to __ percent
absorbed water." Id. at 48964.
We recommend that slightly different labeling be permitted for
retailers who sell repackaged cut-up or ground products in order
to reflect the water loss that FSIS acknowledges occurs upon further
processing at retail. For example, if a retailer cuts up a whole
chicken that was initially labeled as containing 4 percent water
content or "up to 4 percent" water, the retailer should
be able to label the resulting cut or ground product as containing
"less than 4 percent absorbed water."
We appreciate your consideration of our comments and we look
forward to continuing to work with you to ensure the safety and
wholesomeness of our food supply.
Sincerely,
George Green
Vice President and General Counsel