Quality Encompasses Safety (At Least If You’re an Almond)

By Ricardo Carvajal –

In a decision sure to bring joy to the U.S. Department of Agriculture (“USDA”), the D.C. District Court granted the government’s motion for summary judgment in a lawsuit challenging a USDA regulation that requires domestically produced almonds to be treated for Salmonella.  The regulation was issued in the wake of Salmonella outbreaks associated with raw almonds, and it is credited with eliminating the domestic market for raw almonds.  The regulation was issued in part under the authority of the Agricultural Marketing Agreement Act of 1937 (“AMAA”).  The AMAA authorizes the issuance of marketing orders that dictate the “grade, size, or quality” of a commodity sold in a particular region of the U.S. 

Plaintiffs alleged that USDA had exceeded its authority because the regulation was a food safety measure, and not a quality measure.   The court noted that “quality” is not defined in the AMAA, and concluded that the term is ambiguous based in part on its dictionary definition (“[a]n attribute, property; a special feature or characteristic,” or “[a] particular class, kind, or grade of something, as determined by its character, esp[ecially] its excellence”).  The court further concluded that USDA’s interpretation of the AMAA as authorizing a food safety measure was reasonable, in that the AMAA “specifically contemplates interventions relating to ‘quality’” that are needed to “respond to both general market conditions and external threats, such as the Salmonella outbreaks…, which have the potential to cause significant market disruption.”

Curiously, in concluding that “quality” encompasses “safety,” the court did not delve into the definition of “safety” – and we won’t either.  However, we note that robust discussions of the distinction between safety and quality has taken place in other food-related contexts (see, e.g., the preamble to the dietary supplement GMP final rule). 

It’s not yet clear whether plaintiffs will appeal the court’s decision.  If so, they may also have to overcome the government’s argument that plaintiffs waived their claims by not raising them during the comment period preceding issuance of USDA’s final rule.  This potential hurdle highlights the importance of submitting timely comments during agency rulemaking.