Summary of a Recent
Judicial
Development in
Food Safety
Condemnation and Destruction of Illegally Imported Egg Whites
Walt McCarterNational AgLaw Center Research Associate
Summary of Decision
In United States v. 8,800 Pounds of Powdered Egg White Product, 551 F.3d 759 (8th Cir. 2008), the Eighth Circuit Court of Appeals held that 8,800 pounds of powdered egg whites that had been illegally imported from Peru were subject to condemnation and destruction by the USDA.
Background
Creative Compounds, LLC (Creative) illegally imported 8,800 pounds of powdered egg whites intended for human consumption from Peru, which mistakenly cleared U.S. Customs. Id. at 760. Creative could not obtain a pasteurization certificate from the Peruvian government that would permit use of the product as animal feed, so the United States commenced this action seeking condemnation and destruction of the powdered egg whites under 21 U.S.C. § 1049. Id. The district court granted the government's motion for summary judgment, and Creative appealed. Id.
Arguments
Creative argued that it should be allowed to export the shipment back to Peru because the Egg Products Inspection Act (EPIA), 21 U.S.C. § 1046(b)(1), provides that when eggs capable of use as human food are improperly imported, the Secretary "may prescribe the terms and conditions for the destruction of all such articles . . . unless they are exported by the consignee within the time fixed therefor by the Secretary," and because 9 C.F.R § 590.945(a) also states that, when egg products for human consumption have been designated as "U.S. Refused Entry," they shall be destroyed "unless such products are exported by the consignee within a time specified by the collector of customs." Id. at 762.
Analysis and Holdings
The Animal Health Protection Act allows the USDA to bar the importation of egg products from countries such as Peru unless the products are accompanied by an Animal and Plant Health Inspection Service permit establishing that the eggs "have been cooked or processed or will be handled in a manner that will prevent the introduction of Exotic Newcastle Disease into the United States." Id. In addition, the EPIA provides that no egg products capable of use as human food may be imported unless they were processed under "an approved continuous inspection system of the government of the foreign country of origin," and at the time of this action the USDA had approved only Canada and the Netherlands as countries that maintain a continuous inspection system equivalent to that in the United States. Id. at 761. The court held that 21 U.S.C. § 1046(b)(1) and 9 C.F.R § 590.945(a), which provide for exportation back to the country of origin, applied only when an imported egg product lacking proper inspection is refused entry before clearing U.S. Customs, and that the statutes treated an imported product that had cleared U.S. Customs and entered domestic commerce the same as a product produced in this country without the inspection and labeling required by the EPIA. Id. at 762. The court therefore affirmed the district court's grant of summary judgment because those statutes provided no relief from condemnation and destruction of the egg whites. Id. at 762.
The case was decided on December 24, 2008.