Mechanically tenderized meat is a relatively small, although persistent, food-safety problem in terms of the number of individuals affected by foodborne illness. However, the regulatory history of mechanically tenderized meat is a window into a much larger issue, that of regulatory inertia and the inadequacy of existing mechanisms to counter this stasis. This regulatory inertia does not have a simple cause, nor is it amendable to a simple solution. It cannot be reduced to a problem of agency capture, or a problem with agency incompetence, and although I will propose a couple of fixes, all of them have flaws. Telling the story of the ongoing conversation of mechanically tenderized meat among the United States Department of Agriculture (USDA), the meat production industry, and interest groups representing the consuming public is important for at least two reasons. First, the focus on a food safety problem that is not well known to the public illustrates the commonplace nature of regulatory inertia, demonstrating that such cases are not confined to high-profile issues with elusive solutions. It is striking that this story of delay and dysfunction takes place in the context of a politically uncontroversial issue that is amenable to a simple regulatory solution and that is particularly well suited to national regulation. Although regulatory inertia is not easily fixed, the problem with mechanically tenderized beef is. Second, this story demonstrates the ineffectual nature of private enforcement. Private enforcement, in the form of agency-forcing suits, should act as a counterpoint to agency delay and dysfunction, by subjecting agency action to judicial review. We expect the judiciary to oversee the process of regulatory fermentation, and to ensure that an agency makes its decisions in a timely, appropriate manner. If an agency acts contrary to its statutory mandate, or bows excessively to political pressure, then oversight by the neutral judiciary should get it back on track. Here, however, government, industry, and advocacy groups representing the consuming public have been discussing this issue for a decade while individuals continue to get sick. Judicial review of this, of course, unavailable until a party bring suit. No parties have done so here, although regulatory inaction has persisted for over a decade.
Diana R. Winters,
How Reliance on the Private Enforcement of Public Regulatory Programs Undermines Food Safety in the United States: The Case of Needled Meat,
Me. L. Rev.
Available at: http://digitalcommons.mainelaw.maine.edu/mlr/vol65/iss2/17