Call to Action for APHIS to Prevent HPAI


There have been 17 major outbreaks of H5N1 highly pathogenic avian influenza  (HPAI) during the current the 2022 epornitic. These have involved large in-line egg production complexes extending from February 22nd through September 20th. Outbreaks on these farms required depopulation of close to 32 million hens at great expense to federal and state budgets, to producers and ultimately consumers.


The USDA-APHIS has yet to publish data on either field or molecular epidemiology or provide preliminary guidance on risk factors associated with transmission and introduction of infection specifically for the 2022 epornitic. Presumably some cases might have been associated with defects in either structural or operational biosecurity. To date APHIS has not disclosed specific deficiencies leading to these early outbreaks that presumably were investigated.

The most recent case involved a complex with the highest level of biosecurity possible. Evaluation of the probable routes of infection disclosed that one week prior to the presumed day of infection, based on onset of mortality, acreage within 50 yards of the index house was cultivated creating a cloud of dust that was presumably entrained in air entering the house. The fact that two large complexes were infected within the same county on April 29th and June 2nd respectively suggests dissemination of HPAI virus in the area attributed to shedding by either migratory or domestic wild birds. Fresh droppings with viable virus could have been aerosolized and carried on dust particles from the disturbed soil in the field adjacent to the index house. This subjective explanation is based on a logical analysis of factors pertaining to the complex but would require both controlled and field evaluation to confirm an aerosol route of infection that has been implicated in previous outbreaks this year.


Given the circumstances of the most recent infection it is suggested that managers of farms should avoid disturbing soil within 50 yards of perimeter fences and to cease mowing between houses or within the lines of demarcation. Workers should don transit shoes or overshoes between biosecurity modules with a change to dedicated footware at the entry to each house on the complex. It stands to reason that impervious blacktop or concrete paths and parking areas should surround houses and be regarded as potentially contaminated. Enhanced biosecurity precautions with respect to footware should extend to drivers of feed delivery and service vehicles.


About 20 million hens ago EGG-NEWS urged APHIS to analyze data and provide recommendations to prevent infection based on preliminary epidemiological investigations from the first seven outbreaks extending through the beginning of April 2022 but to no avail.  APHIS needs to acquire and analyze data relating to:-


  • Prevalence of shedding in domestic wild birds and susceptible mammals since surveys have concentrated on migratory hunter-killed waterfowl
  • Persistence of HPAI virus on soil and impervious surfaces
  • Correlation of the genome sequence of isolates among outbreaks linked by locality and time with virus obtained from presumed wild bird and mammalian reservoirs
  • Using controlled trials to determine the transmissibility of virus by the aerosol route on entrained dust
  • Establish the recovery rate of virus from air exhausted from houses with infected flocks at distances under a variety of weather conditions. There is available literature on dissemination of Newcastle virus by wind during the U.K Essex outbreak in 1972. A modern multi-level aviary house with 300,000 hens can displace up to 1.8 million cubic feet per minute at maximum ventilation capacity


APHIS in collaboration with state departments of agriculture has attained proficiency in rapidly diagnosing HPAI and depopulating farms and complexes. This is a reactionary strategy although necessary. What is now required is an understanding of how HPAI is introduced into egg production complexes and turkey growing farms and why the broiler sector has been disproportionately unaffected. Persisting with the same programs that were applied in Pennsylvania in 1985, the 1995 epornitic and the current outbreak without defining and publicizing risk factors represents an inconsistency with the purpose of the Agency. The industry needs to have the findings of epidemiologic investigations to modify biosecurity and preventive modalities.


Attempting to “stamp out” what is emerging as an endemic disease is a futile and progressively unproductive and expensive exercise. At what point and at what cost do we transition to the introduction of vaccines in conjunction with depopulation? But that is the subject of a different and subsequent editorial.



USDA Assigns $400 million for “Regional Food Business Centers”


Tom Vilsack, secretary of the USDA has announced the allocation of $400 million for regional food system coordination and capacity-building through regional food business centers. In announcing the program, Vilsack stated, “The USDA Regional Food Business Centers will be a new, critical asset as we continue our work to strengthen and enhance local and regional food systems across the nation.”


It is proposed that the USDA will fund six Regional Centers located on the U.S.-Mexico border, in the Mississippi Delta, Appalachia and a Tribal Center with priorities based on persistent poverty and community need.


Undersecretary for Marketing and Regulatory Programs, Jenny Moffitt noted that, “USDA is committed to supporting smaller producers, processors and distributors to diversify economic opportunities in underserved communities.”  Apparently, throwing a vast amount of money at areas with low family income will “decrease barriers and improve supply chain linkages for producers, processors and distributors and strengthen regional food systems networks.” representing USDA gobbledygook.


This initiative is yet another example of social engineering using public funds for which there will be little accountability and no prospect of continuing support under an alternative administration.


EGG-NEWS believes in a free enterprise market economy that promotes efficiency and productivity. Secretary Vilsack and his appointees should heed the comments of the late UK Prime Minister Margaret Thatcher who averred “The problem with socialism is that it soon runs out of other people’s money.”


It is estimated that the $400 million allocated to these “Regional Food Business Centers” would have supported the education and training of over 1,600 specialists in diverse fields of agriculture including agricultural engineering, extension services, veterinary medicine, nutrition, economics, agronomy, and livestock production each with an investment of $250,000.  These specialists would have received training that would extend through an entire career allowing them to contribute to scientific and practical advances that could in theory enhance productivity over the long term and contribute to alleviation of hunger and poverty.


It is also questioned why the U.S. has pockets of poverty while the nation has to issues H-2A visas to guest workers.  Perhaps the USDA should consider programs to support relocation, providing housing, schools, childcare and directed benefits to encourage participation in agriculture by the underemployed in current “underserved communities”. Displaced sharecroppers moved westward during the Great Depression to find work in California some with assistance from the WPA New Deal after arrival. Has Grapes of Wrath been abandoned in high school English literature?  


Attempting to artificially stimulate production of food using social engineering is analogous to attempting to push a piece of string.  Only market forces determine allocation of capital, survival of enterprises and their productivity over the long term.


USDA-APHIS Soliciting Comments On Proposed Indemnity Regulations


The 2022 epornitic of highly pathogenic avian influenza (HPAI) has revived questions concerning the procedures used to establish the quantum of loss and the policies applied to award compensation for mass depopulation of flocks and herds. The USDA-APHIS is now requesting comment on a new approach to determining indemnity to be paid to owners of flocks or herds depopulated as a result of infection with an exotic disease.  The summary of the publication that appeared in the Federal Register notes differences among species and diseases.  It is the intent of APHIS to determine values of livestock and costs associated with transportation, decontamination and disposal to calculate indemnity.  The closing date for comments is November 7, 2022.


The USDA experienced difficulty in establishing values during the HPAI epornitic of 2014-2015 and problems that were not resolved emerged again in 2022.  The outstanding restraint is establishing compensation using an in-person appraisal.  Events in 2015 and again in 2022 clearly indicate the deficiencies associated with timely and complete appraisal of fair market value using this approach.


Based on policy with regard to compensation for diseases including Foot-and-Mouth disease, pleuropneumonia, HPAI, Newcastle disease, salmon anemia and other exotic diseases, the USDA-APHIS is considering alternatives.  One approach will be to use a standardized indemnity value tabulated by species but subject to appeal under extraordinary circumstances.  Values would be updated annually and would be published in the Federal Register.


USDA-APHIS is considering a consolidation of indemnity regulations that would harmonize how value is determined, including compensation for cleaning and disposal.  With regard to poultry, diseases of significance would include any H5 or H7 strain of avian influenza irrespective of pathogenicity.


The USDA-APHIS is considering removing the cap on various animals of high, individual value. Previously, USDA-APHIS introduced minimal biosecurity requirements for poultry producers to be eligible for indemnity.  This approach will be extended to other species. Post exposure biosecurity requirements are presently incorporated into regulations and specify action that the producer must take to be eligible for future indemnification.


With respect to economic considerations, APHIS is requesting comment on economic cost considerations that would accrue from adoption of new regulations.  The problem with a predetermined table of values, especially for laying hens, is that in the event of an extensive outbreak of a catastrophic disease such as highly pathogenic avian influenza the value of healthy, laying hens increases sharply consistent with the market price of eggs.  Adjusting for market realities will impose difficulties for USDA-APHIS.  Flocks are depopulated to prevent multiplication and dissemination of virus.  If this action were not taken, flocks exposed to HPAI would inevitably die and accordingly, at the time of infection, would effectively have no value.


It is hoped that producers will review the proposed changes to indemnity regulations and make appropriate comments through their respective industry associations. To date the USDA has dipped into the Commodity Credit Corporation endless piggy-bank to compensate producers. With the growing realization that HPAI is probably endemic in wild domestic bird species and given the duration of the 2022 epornitic Congress may soon balk at sub-billion dollar annual payments to the poultry industry, hence the preemptive attempt by USDA to develop new rules and values for flocks. If HPAI persists among commercial and even backyard flocks, vaccination and enhanced effective biosecurity will represent the foundation of control with extremely limited compensation offered by the USDA according to narrowly defined circumstances.


Recession or Not. Does it Matter to Egg Producers?


The status of the economy, including employment, consumer confidence and interest rates all have an impact on the egg-production industry.  Household budgets in some demographics will exclude red meat in favor of chicken and eggs as a source of protein, maintaining demand at a time when discretionary purchases of groceries and other household items will be constrained.


Economists are divided as to whether the U.S. economy has entered a recession.  Gross domestic product (GDP) fell by 1.6 percent year-over-year during the first quarter and then declined 0.6 percent in the second quarter.  Generally, two consecutive quarterly declines in gross domestic product signal a recession.  The National Bureau of Economic Research takes into account the GDP but also the gross domestic income (GDI) and other metrics, including personal income, industrial production, retail sales and employment to retrospectively determine whether our economy has entered into recession. The rise in GDI, that attained 1.8 percent in the first quarter and 1.4 percent in the second quarter, counters the sentiment that we are currently in a recession. The uncertainty using the two indicators may be due to the fact that the GDI is reported one month later than the GDP.

Economists commenting on the current economy appear to be ambivalent in the absence of definitive metrics. Jack Kleinhenz of the National Retail Federation, notes, “ongoing inflation, the volatile stock market and other issues are contributing to the debate on whether the economy is in recession”.  From his perspective, Kleinhenz stated, “While consumers have become more cautious and cooled their spending in the first half of 2022, households continue to spend and are contending with inflation by using credit cards, saving less and drawing down on savings built up during the pandemic.” 


The August non-farm payroll was up 315,000, although the unemployment rate was fractionally higher at 3.7 percent.  Hourly earnings increased by 5.2 percent from August 2021.  The major growth sectors were services, healthcare and retail.  Despite conflicting data, labor statistics and the GDI imply that the Federal Reserve could engineer a soft landing that would be beneficial to our economy and to our industry.



There will be more certainty on the status of our economy at the end of the month when the Bureau of Economic Affairs releases revisions including the GDP and GDI. This should provide data on whether the economy actually entered a recession in the first half of 2022.  Irrespective of the outcome the egg industry will have to contend with HPAI, make capital investment decisions on transition to cage-free housing and respond to fluctuating ingredient prices. On the demand side, high employment and wage rates as influenced by future interest rate decisions by the Federal Reserve should support volume and unit revenue for eggs and products.


Persistence of HPAI Requires an Understanding of Risk Factors


The report of Highly Pathogenic Avian Influenza (HPAI) H5N1 strain in a broiler parent flock in Fresno County, CA. on August 22nd was the most recent diagnosis since the cluster in commercial turkeys in three counties in Utah on July 26th.  The last outbreak in a commercial egg-production complex was on June 7th in Weld County, CO. involving two million birds. 


Notwithstanding the limited number of outbreaks among commercial egg-production complexes and broiler growing farms, there have been numerous reports of the disease in backyard flocks.  There were ten diagnosed cases in non-commercial flocks from August 2nd through August 24th in eight states ranging from California in the West, Florida in the East and from Georgia in the South to Alaska in the North, indicating widespread dissemination of the 2022 virus.


It is presumed that the outbreaks among backyard flocks are under-reported and are due to contact between non-confined, domestic poultry with free-living birds and not necessarily migratory waterfowl given cases in July and August.


Diagnoses of HPAI extending beyond what might be regarded as the “avian influenza season” that has in past epornitics ended in June, suggests that wild-bird reservoirs are shedding virus to backyard flocks that operate with little or no biosecurity.  From an epidemiologic perspective, backyard flocks serve as sentinels for the presence of virus in wild-bird reservoirs. Extensive and structured field surveys of wild domestic birds should be conducted by APHIS in conjunction with federal and state wildlife specialists. This will allow the U.S. industry to determine the extent of infection and to respond with enhanced protective measures. The limited number of outbreaks reported among broilers and egg-producing flocks suggests relatively high levels of biosecurity relative to turkey producers. 

The USDA has yet to publish results of studies on the current epornitic incorporating molecular and field epidemiology required to establish risk factors leading to infection of flocks. A long overdue report is necessary to define the modes of transmission and to guide protective measures for the various sectors of the industry.

It is highly probable that HPAI has moved from being an exotic infection with sporadic outbreaks introduced by migratory waterfowl on a seasonal basis to a current endemic status.  Clearly, experience in Europe and Asia and now in North America, predicate a different approach to prevention.  Simply playing whack-a-mole with outbreaks in commercial farms as they are diagnosed will be progressively more expensive and futile even in the short term. France has “eradicated” HPAI in their foie gras industry annually for a number of consecutive years. There is growing consumer antagonism against mass depopulation, especially applying VSD in aviary and cage housing. 


If HPAI is either seasonally or consistently endemic, the poultry industry must respond with effective immunization of flocks since as has been previously stated “HPAI is now the Newcastle disease of the 2020s”. Vaccination will require a new generation of gene-deleted or vector vaccines with broad H5 and H7 specificity. Emerging technology in vaccinology and modifying trade regulations will be the subject of an upcoming international meeting in Paris organized by leading specialists in epidemiology, molecular virology and regulatory affairs relating to avian influenza.


The quicker that the poultry industry understands the epidemiology of Avian Influenza as it has affected flocks in the E.U., Asia and North America since 2021, the quicker we will have more effective protective measures, including vaccines.  Understanding the diverse risk factors from the 2022 outbreaks that have occurred in U.S. turkey, broiler and egg production units will contribute to more effective biosecurity procedures that will be part of comprehensive future programs including vaccination.


FDA Approach to Leafy Greens Lacks Effectiveness


During the past two years, FDA has flip-flopped on establishing rules to prevent contamination of leafy greens with irrigation water contaminated with ruminant-derived E. coli.  Regular outbreaks of infection with STEC attributed to Romaine lettuce are documented by state public health agencies as collated by the CDC. 

Annual STEC Outbreaks from Lettuce reported since 2018


The latest iteration of the so-called Green Produce Rule effectively places responsibility for assessing the degree of risk of contamination of irrigation and processing water back on to the producer.  By eliminating microbial standards, the FDA has effectively granted a blank check to farmers to the detriment of consumers.  Why has the FDA neglected epidemiologic realities and bowed to pressure exerted by farmer associations and lobbyists? 


The current situation contrasts with the July 2009 Final Rule on the Prevention of Salmonella in shell eggs there was virtually no consultation in establishing the Final Rule that incorporated specifics relating to biosecurity, flock testing and action in the event of a “positive”.  The Final Rule also mandated regular inspection either as targeted or intensive audits.  The latest version of the Final Rule on green produce contains recommendations relating to the source of water and requires risk assessments that are clearly beyond the capacity of individual farmers.  The comment from the Executive Director of the Florida Organic Growers that “farmers will need some guidance, tools and even funding to comply with the rule” is a clearly an understatement.  The FDA have maintained that they will assist in implementing whatever rule is finally issued. 


If experience with the Final Rule on Salmonella in eggs is any indication, FDA auditors who had apparently received training had to be educated by farm production personnel and consultant veterinarians to function during 2011.  If the FDA had not delegated the bulk of audits to authorized state departments of agriculture, implementation of the Rule would have never become reality.


EGG-NEWS has reported on outbreaks of STEC infection associated with Romaine lettuce since 2018.  The source of the most recent outbreak involving patients in Michigan and Ohio has been traced to Romaine lettuce served on sandwiches by the Wendy’s chain in those states.  The current outbreak is consistent with the experience of food-safety attorney Bill Marler who commented, “We continue to see what are basically regular intervals of outbreaks ties to leafy greens.” In June 2018, Wendy’s transitioned to sourcing tomatoes from greenhouses based on quality, absence of pesticides and the need to eliminate STEC contamination.


The FDA clearly recognizes the source of infection as irrigation water contaminated by fecal material from ruminants.  The Leafy Greens Association has attempted to minimize risk by establishing minimal distances between CAFOs and fields cultivating leafy greens.  Essentially action taken by farmers’ associations in California and Arizona are self-serving and are intended to create a false sense of security and to placate regulatory agencies and consumer advocacy groups.


The FDA should recognize the inevitability of contamination and work with academia and industry to develop a positive kill step in processing that will absolutely eliminate the probability of contamination with E. coli, Salmonella and Cryptosporidia. Perhaps they might exercise the same commitment that was demonstrated with Salmonella through the  Final Rule introduced in 2019 after the problem of egg-borne salmonellosis was resolved by EQAPs developed by the industry.


Subscribers are encouraged to retrieve previous postings on foodborne pathogens from Romaine lettuce by entering “lettuce” in the SEARCH block.


FDA Guidance On Outside Access – An Exercise in Evading Reality


The FDA have at last issued the draft of the Guidance Document entitled, Prevention of Salmonella Enteritidis in Shell Eggs During Production, Storage, and Transportation (Layers with Access to Areas Outside the Poultry House):  Questions and Answers Regarding the Final Rule. This draft Guidance Document for the industry attempts to bridge the gap between USDA proposed Organic Rule and the FDA July 2009 Final Rule on the Prevention Of Salmonella Enteritidis (SE) in Shell Eggs.  The compilers of the draft Guidance Document were obliged to essentially fly in the face of epidemiologic realities in order to conform to the USDA-AMS document but in the process have compromised both their integrity and food safety.  The divergence of objectives between the USDA-AMS mandating outside access for hens producing certified organic eggs and the FDA objective of suppressing SE has produced a document of questionable scientific merit representing an exercise in impracticality that will encourage subjective evaluation and conflicts during audits.


At the outset, the draft Guidance Document states that it does “not have the force and effect of law and is not meant to bind the public in any way”.  The document as stated “should be viewed only as a recommendation unless specific regulatory or statutory requirements are cited”. This is a wishy-washy denial of responsibility.


The first inconsistency between the FDA and the USDA-AMS is the status of enclosed covered porches.  The FDA criterion for differentiating between “inside” and “outside” is whether flocks are protected from the elements and predation and whether temperature, humidity and lighting can be controlled.  In contrast, the proposed Organic Rule clearly disqualifies porches as outside access.  The difference between the USDA-AMS and FDA approaches reflects their diverging objectives. Implicit in the determination of the National Organic Standards Board that porches are “inside” the house is the intent to discriminate against in-line complexes with houses with enclosed porches.  The FDA is evidently motivated by the objective to reduce SE infection in flocks with possible vertical transmission to consumers.


In order to produce a guidance document that satisfies the organic mandate for outside access, FDA has attempted to thread the needle with respect to measures to prevent infection of flocks.  Section C of the draft Guidance Document contains questionable suggestions to reduce the risk of SE infection including:-

  • “Limiting layers’ access to areas outside the poultry house to hours when wild birds or other animals are not likely to be present’.  Wild birds are diurnal and raccoons, foxes, and skunks are nocturnal.  What hours can a farm operator, therefore, select to reduce the possibility of introduction of SE to a flock?
  • Steps must be taken to “ensure that there is no introduction or transfer of SE into or among poultry houses”.  Following the initial audits of laying houses in accordance with the “Egg Rule”, farm operators were cited for apertures in walls and doors larger than two inches in diameter that would allow ingress of rodents.  The organic rules mandate large openings to allow unrestricted access of the flock to the outside access.  This dilemma is all too evident in the August 2002 FDA draft Guidance Document that accepts the principle of outside access.
  • The draft Guidance Document indicates that houses must be disinfected before new laying hens are added if the previous flock yielded SE on an environmental test.  Section C14 states that, “The requirement does not apply to areas outside the poultry house.”  Given that SE can remain viable in soil for extended periods, the FDA is ignoring environmental realities.  If the previous flock was infected with SE with a high proportion of hens showing intestinal colonization, it must be presumed that infection will be present in areas outside the house and especially around the perimeter of the house where hens congregate.  Decontaminating the house but ignoring areas of outside access is obviously an exercise in futility.  Possibly in recognition of this reality, Section C15 addresses cleaning and disinfection of an area outside a poultry house.  Suggestions include tilling, that would remove vegetation required in terms of the organic rule; “Rotation of the area outside the poultry house” is clearly impractical for other than pastured flocks given the requirement of approximately two square foot per hen. The Document includes “allowing the potentially-contaminated area to lie dormant between flocks”.  Given the viability of Salmonella in excess of six months on damp soil, this is also an impractical suggestion and reflects a denial of microbiologic reality included for the purposes of issuing the document, irrespective of potential risk.


Due to lack of knowledge on the part of those responsible for compiling the 2009 Final Rule and an institutional disinclination to consider professional counsel that was offered, the FDA omitted vaccination as a requirement despite considerable evidence in the late 1990s as to the effectiveness of vaccines in suppressing SE.  It appears from Section E of the draft Guidance that the FDA is now aware that the industry might perhaps be using vaccines, but the document only considers vaccination against SE as “most effective when it is one part of a larger SE prevention plan”. Covering all bases however, FDA “encourages the use of an identified vaccination program that is effective for a particular farm”.


Section D1 of the draft Guidance mandates sampling of a house environment for the presence of SE but this “does not apply to areas outside the poultry house”.  This is a clear indication of “don’t look, don’t find” response to the risks of outside access with respect to SE.  If the draft Guidance Document required mandatory sampling of soil outside the layer house, as would be logical, the FDA guidance would be at odds with the outside access requirement of the USDA-AMS Certified Organic rule.  Clearly, there is a dissonance between the two Agencies.  The USDA-AMS is concerned over non-GMO ingredients fed to hens, the absence of pesticides and “organic” standards of welfare. In contrast the FDA is attempting to reduce vertical transmission of SE to consumers. This divergence leads to Guidance Documents framed to create inter-Departmental harmony rather than addressing real world problems.


The National Organic Program does not consider food safety and the FDA is avoiding responsibility as denoted in the discrepancies between the Organic Rule requiring outside access and the FDA “suggestions” in their draft Guidance Document.  This disharmony would be resolved by a dedicated Food Safety Agency that would have only the single objective of protecting the food supply to the benefit of consumers.


Proposed USDA-AMS Rules for Organic Certification of Egg Production


With the publication of the proposed Organic Livestock and Poultry Standards Rule to be issued under the National Organic Program, the USDA-AMS is attempting to clarify inconsistencies in housing and production practices for livestock and poultry that have existed since passage of the Organic Foods Production Act (OFPA) despite the issue of regulations dating from December 2000 onwards.


With respect to egg production, the key issues of contention have been the extent of outside access and specifically whether enclosed covered porches are regarded as providing equivalence. Other issues include rearing of pullets, stocking densities for floor and aviary systems and latitude in interpretation of rules by various certifying agencies credentialed by AMS.


At the outset, it is recognized that the rules developed and issued by the AMS to comply with the OFPA have integrated concepts of welfare with organic status. In its essentials the term “Organic” relates specifically to feeding non-GMO ingredients and eliminating the use of pesticides and drugs in production. Welfare aspects were incorporated into the conceptual foundation to establish an organic program for the U.S. There was evidently a convergence between the altruistic intentions of AMS staff and the desire by aspirant and existing egg producers, many of whom were small-scale family farmers, to maintain a level of differentiation and exclusivity from intensive production to justify high selling prices and margins.


Development of rules under which certified production occurs is guided by the National Organics Standards Board, the composition of which has been dominated by producers and has been lacking in scientific and technical expertise. Accordingly, many of the existing rules and their interpretation of what constitutes acceptable compliance with the standards of organic production has been captive to subjective interpretation. This has resulted in inequities and in some cases, selective engagement of certifying agencies. A March 2010 report by the Office of the Inspector General of the USDA highlighted inequities in providing outside access by flocks. This is evidenced by disputes over the validity of certifying enclosed porches, the subject of prolonged appeals and litigation from 2002 through 2007 (Massachusetts Independent Certification Inc. v Johanns)


The AMS is naturally concerned over consumer perceptions and the integrity of the USDA Organic seal.  Accepting housing and production practices that in the perception of AMS administrators deviate from inadequately-defined principles of what constitutes “organic” production have motivated successive cycles of rulemaking with the intent of narrower interpretation and stricter compliance.


Consumer acceptance of organic eggs is less a function of a multiplicity and rigor of rules than it is simply shelf price.  It is a matter of record that from January 2012 to the present, growth in organic production has lagged non-organic, cage-free production. Certified organic hens now represent approximately 18 percent of the pre-HPAI non-caged flock of 105 million hens. It is also accepted that a proportion of organic eggs are down-classified to cage-free during periods of decreased demand.


The emergence of non-USDA certification programs for pasture-raised eggs confirms that there is a limited demand for eggs with this desired welfare attribute selling at $7 to $9 per dozen. The potential market comprises an affluent demographic supporting less than one percent of national production.


The proposed Rule will explicitly disallow the use of enclosed covered porches as equivalent to outside access. This stipulation would effectively disqualify almost half of current organic egg production if immediately implemented.  The proposed Rule will allow noncompliant existing operations a specified period to either come into compliance or cease producing under the Certified Organic program. Existing production units certified within three years of the implementation of the Rule will have to comply with outdoor space requirements within either five or fifteen years according to the option determined. This provision, irrespective of duration avoids the potential market disruption arising from an immediate reduction in the availability of organic eggs. The delay if adopted does however question the integrity of the program or alternatively suggests that the proposed outside access requirements are unnecessary.


There is no scientific or health-related reason why genetically modified ingredients should not be fed to livestock.  None of the DNA of GMO corn or soybeans is passed to eggs, although the imposition of the non-GMO rule doubles the cost of feed.  Requirements relating to pesticides and drugs are justified in the context of organic certification.  Given the differential in price between organic and cage-free production, there is an incentive to deviate from prescribed practices.  Certification relies on audits that effectively comprise a review of documentation and physical inspection of facilities and flocks.  There is no analytical component to confirm the absence of pesticides or drugs. Cases of fraud that have been disclosed in the supply of domestic organic ingredients suggests that the AMS Certified Organic System may, in fact, be based on good intentions and rely on a paper trail of questionable value.  The organic status of imported ingredients and products are, at best, suspect and should be realistically evaluated by administrators of the program.


The five or fifteen-year grandfathering of inline aviary complexes with enclosed porches indicates a tacit acceptance that outside access on the soil is functionally unnecessary.  The AMS recognizes that summary disqualification of these facilities would reduce the availability of organic eggs.  Producers who comply with an immediate requirement for approximately two square foot of outside access per hen would raise their prices and consumers would be confronted with $7 per dozen eggs, sharply reducing demand. It is presumed that with eventual attainment of equilibrium between supply and demand, Certified Organic after the Rule would settle at below $6 per dozen.  The immediate response of the owners of highly efficient in-line complexes with porches would be to create a new category of product. This would involve certified non-GMO-feed, absence of pesticides and antibiotics and humanely managed flocks allowed adequate space. A registered logo based on defined standards and third-party auditing would then compete with a product that would sell below $4 per dozen, effectively diluting the market acceptability of eggs with the AMS Certified Organic seal.


The proposed changes in management and housing designated in the proposed rule are included in a companion article in this edition.  The USDA-AMS has scheduled a virtual listening session on August 19th over a two-hour period to receive comments regarding the proposal.  Irrespective of responses, the proposed amendments are certain to be imposed. This is notwithstanding the lack of scientific and financial justification. The proposed Rule represents a combination of altruistic concepts and perceptions of welfare coupled with a measure of producer self-interest, all inherent to the evolution of the Organic Foods Production Act of 2000.


Opposition to VSD+ Within Veterinary Profession


Animal Rights Activists within the veterinary profession led by Dr. Crystal Heath, a practitioner in Berkeley, CA. have initiated a program of opposing ventilation shut down (VSD) with or without heat or carbon dioxide as a means of mass depopulation of caged flocks infected with highly pathogenic avian influenza. Carbon dioxide foam was used for floor-housed flocks

 Based on her social media posts Dr. Heath is virulently opposed to VSD and her writing suggests a streak of zealotry.  She has connections to Direct Action Everywhere (DxE) and advocates a brand of militant veganism with implicit condemnation of intensive livestock production.

Protests against the AVMA policy on euthanasia that recognizes VSD as an extreme last resort approach to mass depopulation has resulted in resolutions to the AVMA. This is an acceptable approach but a demonstration at the home of Dr. Janet Dolin, Executive Director of the Association, is decidedly unprofessional and a distortion of First-amendment rights.


The threat of militant demonstrations has resulted in the Executive of the American Veterinary Medical Association to advise attendees at the AVMA convention to avoid confrontation, to refrain from public statements and to remove ID badges outside the convention hotel.


Regrettably direct opposition to Dr. Heath and her compatriots will only embolden her and provide the means to generate wider publicity for their cause.  Unfortunately, extreme vegans and even those opposed to intensive livestock production fail to recognize the need to depopulate flocks that have become infected with avian influenza.  If nothing were to be done, up to 99 percent of a flock would inevitably die but over a period of time.  Allowing infected flocks to proliferate and release virus will only prolong outbreaks and result in higher cost to producers, the public sector and consumers.


As veterinarians we recognize the need for euthanasia of flocks that are in any event doomed to prevent further dissemination of the disease. Characteristically opponents of VSD can offer no practical alternative to depopulate flocks more quickly or humanely. If HPAI becomes endemic or even seasonally endemic as a result of sequential introduction and spread of virus by migratory and even domestic birds, prevention based on a combination of immunization and biosecurity will be required to maintain commercial poultry production at an economically acceptable level.


To this end a conference in Paris attended by leading experts on avian influenza, immunology and epidemiology will consider scientific and regulatory aspects of infection with an emphasis on vaccines and their trade implications.


It is hoped that any protests directed against VSD at the AVMA Convention will be muted and conducted in a civilized manner. Violence will only polarize the profession and will be counterproductive to the opponents of the procedure sanctioned as a last resort.


Support for an Independent Food Safety Agency Gathers Momentum


Representative Rosa DeLauro (D-CT) and Senator Dick Durbin (D-IL) have sponsored the Food Safety Administration Act with additional co-sponsers including Senator Richard Blumenthal (D-CT) and five Representatives.  This legislation is endorsed by the Center for Food Safety, the Consumer Federation of America, Consumer Reports, the Environmental Working Group, STOP Foodborne Illness, and the Center for Environmental Health, all of which can be regarded as moderate and mission-focused.


The motivation for the Act recognizes numerous deficiencies in the FDA despite liberal funding, suggesting that lack of money is not the basic deficiency.  Recent problems include:-

  • Failure to recognize and respond proactively and aggressively to the prescription opioid crisis,
  • Tardiness in developing regulations to limit use and abuse of E-cigarette products by minors,
  • Failure to detect and respond to heavy metal contamination of baby food and juices
  • The inadequate development of the Final Rule to prevent Salmonella in Eggs with subsequent field implementation that proved to be unprofessional, inappropriate and uduly expensive. 
  • Delay in implementing the Food Safety Modernization Act
  • Failure to identify the long-term contamination of infant formula with Cronobacter resulting in illnesses, wide-scale inconvenience and political embarrassment for the Administration.
  • Failure to address the sequence of foodborne infections attributed to leafy greens and produce
  • Delay in addressing and regulating antibiotic use in livestock production


The proposed legislation would establish a single food agency separate from the current FDA with leadership appointments requiring Senate confirmation. The intent is to move the Center for Food Safety and Applied Nutrition, the Center for Veterinary Medicine and the Office of Regulatory Affairs to a separate entity apart from the FDA within the Department of Health and Human Services. This will be analogous to moving deck chairs from the port side of the Titanic to the starboard side.  The deficiency in the proposed legislation is that it fails to recognize the dual jurisdictions of the current Food and Drug Administration and the USDA Food Safety and Inspection service, responsible for red meat and poultry.  Foodborne episodes caused by either pathogens or contaminants should be prevented by a single entity. The proposed food safety agency should have complete jurisdiction as recommended by a panel of the National Academy of Sciences and by numerous commentators including EGG-NEWS and CHICK-NEWS that have advocated a single U.S. dedicated entity for over five years analagous to agencies in the E.U. and the U.K.


Establishing a U.S. food safety agency would allow for an appropriate organizational structure with staffing by competent administrators and scientists free from the current restraints in FDA that emphasize pharmaceuticals and biologics over food. Rep. DeLauro commented, “Food safety is currently a second class citizen of the Food and Drug Administration.”  Her additional statement that, “Right now there are no food policy experts in charge of food safety at the FDA” is only partly correct.  The FDA appointed Frank Yiannas to the position of Deputy Commissioner for Food Policy and Responsibility. He is an acknowledged expert in the field and has considerable commercial experience. His is a staff position without defined authority and arcording to reports is sequestered by line administrators to the detriment of the Agency.  Investigation of the Center for Food Safety and Applied Nutrition demonstrated profound deficiencies in leadership, organization and staffing, impacting effectiveness.


Admittedly, separating food safety from the existing FDA would be a step forward, but the intended action will fall short of the ultimate objective of seamless oversight of food safety. Washington abhors major jurisdictional changes.  Following the September 11th attack, the Department of Homeland Security came into existence, incorporating the functions of related agencies to the benefit of our national wellbeing.  By the same token the U.S. is facing a slow motion disaster through deterioration in food safety that could be addressed by a radical reorganization. To be other than “more of the same” would require merger of the food safety responsibilities of the current FSIS and the FDA.  Salmonella adulteration whether in ice cream,  eggs or on broiler meat is still Salmonella.  Although sources may be different, the implications for consumers are similar.  The appropriate disciplines including epidemiology, food science, analytical chemistry and microbiology are common to developing meaningful rules and guidance documents, conducting field investigations and regulating manufacturing and distribution of food irrespective of vehicles of infection.  If an administrative change is considered desirable, then a single and comprehensive restructuring of the FDA and FSIS and their merger to create an independent  agency analagous to the EPA will be required to correct existing deficiencies and establish a more secure future. But Naah, we have lobbyists!


Pressure On USDA From The Left


The Farm Action and Open Markets Institute, a think tank with a decidedly socialistic orietation, recently graded Federal Departments with respect to competition and antitrust activity.  The Department of Justice and the Federal Trade Commission were assigned B- scores but USDA received a D+.


The Institute used the Administration Executive Order on competition as the criterion noting that both the DOJ and the FTC have been aggressive in questioning mergers and advancing farmer-friendly rules, including “The Right to Repair” and “Made in the USA Labeling” as examples of progressive action. The Department of Agriculture was criticized for inactivity in a number of what the Institute regards as critical areas for apparent lack of finality in issuing rules under the Packers and Stockyards Act to protect alleged exploitation and to oppose consolidation through mergers.


The USDA has indicated that it intends to eliminate the tournament system widely used in the broiler industry.  Joe Maxwell, President of Farm Action, maintains that even if the contemplated rule is issued, it will be essentially cosmetic in that contractors will simply be provided with more information. The proposed rule will not impart any significant bargaining power to individual farmers.  The USDA has yet to restore the organizational structure of the Department to the form that existed before and during the Obama Administration.  Secretary of Agriculture, Dr. Sonny Perdue, effected a number of changes combining the Agricultural Marketing Service with the Grain Inspection, Packers and Stockyards Administration (GIPSA), diluting the effectiveness of the Agency.


It is apparent that activists from the left are pressuring the USDA and specifically a compliant Secretary of Agriculture to make changes that would have profound and unintended consequences.  A high level of efficiency in the U.S. livestock industry is exemplified by traditionally low prices to consumers.  Economies of scale, application of the mechanization and logistics in live bird production and processing have allowed egg, broiler and turkey producers to minimize cost of production and to market products in a competitive environment. 


Market forces have driven consolidation and integration to the ultimate benefit of consumers over the past five decades.  Proponents of a socialistic system abhor intensification and large-scale enterprises.  They hanker for a reversion to some form of 19th century multipurpose family-farm system selling products at farmers’ markets and grocery stores. This denies the reality of the population shift from rural areas that was evident from the First World War onwards.  In 2021 less than two percent of the U.S. population were classified as ‘farmers’ by the Census Bureau. This complement together with paid farm and plant workers feeds the U.S. and makes possible an extensive export market. Intensification can only be achieved through capital investment in advanced technology and the planning and execution that achieves high levels of productivity.


The USDA is expending public funds to create alternatives to existing red meat and poultry production that has evolved through a logical expansion in scale.  Dispersing grants and loans in small amounts will do little to increase production.  There may be some local benefits in establishing small-scale, labor-intensive meat and poultry plants, but in reality, these enterprises would not come into existence without government support.  It is questioned whether the USDA has either the responsibility or the justification to oppose economic realities and expend taxpayer funds to attempt to turn back the clock by a century.


If there are inequities in egg, broiler or turkey production, then the individual circumstances should be examined, and appropriate remediation applied.  At this time, the number of aspirant broiler contractors and applicants for expansion of their production facilities far exceeds those who are retiring or relinquishing contracts.


In their period of tenure extending to January 2025, the Administrators of the USDA will not be able to accomplish any material changes in the structure of intensive livestock production, since they will be attempting to resist economic realities. The USDA and Comrade Vilsack would be well advised to find ways to support livestock agriculture instead of attempting to restructure production according to an outdated and un-American model.  A review of E.U. agriculture illustrates the effect of hyper-regulation, government intervention and economic distortion.


It isn’t broken, so please don’t try and fix it to suit your political inclinations.


Greenwashing Lawsuits – Cause for Concern


The PETA inspired lawsuit Usler v. Vital Farms Inc. represents a new challenge to egg producers promoting either welfare or environmental attributes on labels. Ever eager to misuse the legal system to advance a vegan agenda, PETA with its vast resources and funding contrived a class to sue Vital Farms, a certified B corporation trading as VITL. Vital Farms reported revenue of $77 million for the first quarter of fiscal 2022.  The company receives eggs from as many as 250 contractors and distributes product nationally. 


According to carton labels and information posted on their website, Vital Farms claims “pasture-raised” management according to “ethical” principles. Production conforms to the standards established by Humane Farm Animal Care (HAFC) and farms are audited by Oregon Tilth. 


The class-action lawsuit against Vital Farms and three officers is based on label statements specifying “pasture-raised” and “humane treatment”. PETA disputes the claims that they consider to be misleading and representing deceptive advertising in contravention of Section 5 of the FTC Act.


Following pre-trial motions, the Court dismissed claims against officers based on the Plaintiff failing to demonstrate individual responsibility.  This aspect will be revisited in subsequent filings.  Vital Farms was however unsuccessful in attempting to have the case dismissed.  The Court rejected the defense that the HFAC seal denoting welfare certification justified the commercial claims. Applying tortured logic PETA submitted that the HFAC standards as defined were not necessarily understood by consumers, notwithstanding a website reference documenting these standards.  The Court also rejected the claims of “ethical production” since these were subjective and aspirational in concept and could be misinterpreted by consumers.


In a review of Greenwashing litigation Attorney Nathan Huff of law firm K&L Gates, LLP considered five areas of concern arising from the PETA attack on Vital Farms.  These included:


  • Label statements and claims may invite Greenwashing lawsuits


  • Since it is difficult to substantiate label claims including “sustainable”, “all natural” and “humane” producers using undefined terms are vulnerable to litigation


  • Reliance on an accepted welfare or environmental certification maybe inadequate to defend a label claim


  • Individual officers are vulnerable to litigation and may become defendants in Greenwashing lawsuits.


It is anticipated that PETA and kindred organizations will be emboldened by either a settlement or an outright win and will then scrutinize label claims across a broad section of livestock production with respect to either welfare or sustainability.


Attorney Huff recommends careful analysis of all label text and images on cartons with the need to substantiate statements with supporting evidence.  Producers should adhere to the principles defined in the Federal Trade Commission Green Guides.  The question of third-party certification for humane management or sustainability should be carefully scrutinized especially if there is any concern regarding the credentials of the certifying agency or the auditors.


It stands to reason that producers who make extreme claims for either sustainability or welfare will be most vulnerable to litigation.  Attempting to “out-welfare” competitors in promotional campaigns, labels, text or images on cartons or on websites will be an invitation to animal welfare activists.



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