Opposition Brief — Excel Corp. v. Estate of Kriefall

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No. 03-862

Supreme Court, U.S.

FILED

FEB 13 2004

OFFICE OF THE CLERK

IN THE

Supreme Court of the Anited States

EXCEL CORPORATION,

Petitioner,

ESTATE OF BRIANNA L. KRIEFALL, £7 AL..

Respondents.

On Petition for a Writ of Certiorari

to the Court of Appeals of Wisconsin

BRIEF FOR RESPONDENTS IN OPPOSITION

RUSSELL A. KLINGAMAN

HINSHAW & CULBERTSON

100 E. Wisconsin Avenue

Milwaukee, WI 53202

(414) 276-6464

WILLIAM D. MARLER

DENIS W. STEARNS

MARLER CLARK, LLP, PS

4301 Bank of America Tower

701 Fifth Avenue

Seattle, WA 98104

(206) 346-1888

WILLIAM M. CANNON

EDWARD E. ROBINSON

CANNON & DUNPHY, S.C.

595 North Barker Road

Brookfield, WI 53008

(262) 787-2700

H. BARTOW FARR, III

FARR & TARANTO

1220 19th Street, N.W.

Suite 800

Washington, D.C. 20036

(202) 775-0184

FREDERIC L. GORDON

Counsel of Record

RHONDA J. HOLMES

GORDON & HOLMES

1230 Columbia Street

Suite 700

San Diego, CA 92101

(619) 696-0444

LLORAS LTE ARTE Se ETE AE ETT a ITE TE TT LT TT TE ITE Ta ETT ELLE LITLE! LEE AE

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 - WASHINGTON, D. C. 20001

QUESTIONS PRESENTED

1. Whether this Court has jurisdiction under 28 U.S.C.

§ 1257(a) to review a decision of a state court when reversal

on the federal issue would not benefit petitioner and when

other substantial issues would nonetheless remain to be

resolved in further state-court proceedings.

2. Whether the state court of appeals was required to defer

to a policy statement by the United States Department of

Agriculture when the policy statement was inconsistent with

the terms and purposes of the Federal Meat Inspection Act,

21 U.S.C. §§ 601 ef seg., and with other pronouncements and

directives of the Agency itself.

(i)

—— ne

RULE 29.6 STATEMENT

Respondent Sizzler USA Franchise, Inc. is a wholly owned

subsidiary of Sizzler USA, Inc., which is a wholly owned

subsidiary of Worldwide Restaurant Concepts, Inc., a

publicly held company.

TABLE OF CONTENTS

Page

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Se I Be NEE © sicsesiccsssrersssercsencesesncesenssesevres il

pe ye 82 SS ree iv

Ties ion dssonvocaicievesanionertovenes l

A. Federal Meat Inspection And The USDA

Treatment of E. coli O157:H17 ...........0ssssccscsesss l

B. TiS PROCCCTINGS BCIOW ............:.ccccssssrccsveaceoses 5

an ES 8

I THE JUDGMENT BELOW IS_' NOT

eid sen Seicsauniinonbinetvinen PE Oe 10

II. THE PETITION DOES NOT, IN ANY

EVENT, WARRANT REVIEW.................::0008 16

i iSencesalbsishsinnapseseninconinsssonesouns 25

(iii)

TABLE OF AUTHORITIES

CASES Pages

American Airlines, Inc. v. Wolens, 513 U.S. 219

Da Uicinssickciiuvekaicacecccnhneascencnsaeeeneiibaldiadmapeaianisiiatleds 15

Boulahanis v. Prevo’s Family Market, Inc., 583

N.W.2d 509 (Mich. 1998), cert. denied, 530

SF BARE CE vise ckescnnenncicnaiiaetaicadinanacaon 23

California Div. of Labor Standards Enforcement

v. Dillingham Constr. N.A., Inc., 519 U.S. 316

Cr iikccu vienteristdaidacsasieteinnentinasmanianonaiaenis 14

Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984)...... 9, 16

Christensen y. Harris County, 529 U.S. 576

(TT dscschticsinsitrnainsadeeonecaetabandialuionacuaicabinecainatns 17

Cipollone v. Liggett Group, Inc., 505 U.S. 504

ET cxscsiiscrepauacaucbiesssadeasnpbibisceascsaueiaakasieuinins 13, 15

Costarelli v. Massachusetts, 421 U.S. 193

LTB ikintisiacisinigpinlauiinideetainnaniemaaudonanin 15

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

I icisncinecaeesdietantuacstsnscauanbmnaiataesioneamalaubiiieen 9,10

Federation of Homemakers v. Schmidt, 539 F.2d

PE. Ge, PR ietieicntiiininnnon 24

Grams v. Boss, 294 N.W.2d 473 (Wisc. 1980) ..... 12

Grocery Manufacturers of Am., Inc. v. Gerace,

Pee we LE ey: | Onn eEmCT 24

Jefferson v. City of Tarrant, 522 U.S. 75

CII Ihcwicnsticinssucinsénastincindiedghudactaannhiaaiicatcdaain 10

Jones v. Rath Packing Co., 430 U.S. 519

CGF Picncuisinssnsionannceeunntavanaummnsasinielaesdiienadaapiaaiatis 23

Lambrecht vy. Estate of Kaczmarczyk, 623

PEW Be 708 CW Ds BIE ics inncnevscennassancsesnnsvvenns 12

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996)....... 14

National Pork Producers Council v. Bergland,

GFl F 2G PSSS CO Ce, FIG) vsscicesersesccsccsssssnecs 24

TABLE OF AUTHORITIES—Continued

Pages

North Dakota State Bd. of Pharmacy v. Snyder’s

Drug Stores, Inc., 414 U.S. 156 (1973)..........04. 15

Public Citizen v. Foreman, 631 F.2d 969 (D.C.

Rails 5 Tei Pivicscnnccanantsuanaismnccnesiavassinenmae Mabteneeutioiens 24

Radio Station WOW, Inc. v. Johnson, 326 U.S.

Be CONT his inniesdscenrinevieovnsiesemnaaicas 15

Rice v. Santa Fe Elevator Corp., 331 U.S. 218

CREF Miiccisensiecncieanaiaiemnismiane metas 14

Skidmore v. Swift & Co., 323 U.S. 134 (1944)...... 9, 16

Sprietsma v. Mercury Marine, 537 U.S. 51

I Piviuscsiniciapaidichsaashebessuntinataiedmastasiia a nacauiaan 14

United States v. Lexington Mill & Elevator Co.,

Sad Ws SOP ARR) ridiorncndedspae 20

United States v. Mead Corp., 533 U.S. 218

CPE tists Giseccincalehonmeniomincianaaanatealace aeons 4,9, 16,17

STATUTES AND REGULATIONS

Federal Meat Inspection Act, 21 U.S.C. § 601

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SINE iiccenicohveecasineeipaueaneicdaienadasaalinnatanens 18, 21

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Be ics tandntacsicunenhenininnusmannionn ee Ae

DEE witnisicitiiesd icaeweo dicen 17

DTP nxiasxicssizeinnesnsiaccsnindcicnsea sananeessaetencimicamaanaalias 2

EF ices: xsondcaecaceleenin uo manenaniandsinataaee 6, 13

ae Ce oes vdeaeodnan 8, 10, 15

61 Fed. Reg. 38,806 (July 25, 1996)... 2

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Oe FOR. TO, Fe tiiiicinseatwacsenien 3,8

0) FOR. Be: Fe ee cicnntnaitidainiameenians 3a

SS ae eee

TABLE OF AUTHORITIES—Continued

Pages

eR SI dorreicossuhesnsnshvoosscncanessoaininanasesniens 3, 20

64 Fed. Reg. 2803 (Jan. 19, 1999)............sc.ccscceees 1,4, 19

IE I SII os sveénscgisnstusidsnvonsaounesebiaeyenssesn’ 5, 6, 9, 11

65 Fed. Reg. 6881 (Feb. 11, 2000)..........0. ee. 5

a soso Spied acaecptlchcicthcpbn dvedieacaeaile 18

NE II vi sicaaiccuisenstesusevsvasuacasadaorediaasanuedees 5

G7 Fad. Reg. 62,325 (Oct. 7, 2002) .....cssccroscvsesvsene 3

I i seek cisatisnssétibvonsbanonksanabeuverviand 3, 8, 21

MISCELLANEOUS

USDA Rep. No. 24001-3-At (2000)... ee 3

IN THE

Supreme Court of the United States

No. 03-862

EXCEL CORPORATION,

Petitioner,

ESTATE OF BRIANNA L. KRIEFALL, ET AL..,

Respondents.

On Petition for a Writ of Certiorari

to the Court of Appeals of Wisconsin

BRIEF FOR RESPONDENTS IN OPPOSITION

STATEMENT

This case arises out of several consolidated state-law tort

suits involving persons who became ill—and, in one case,

died—after consuming food contaminated with the pathogen

E. coli O157:H7. The source of the contamination was meat

processed at a plant operated by petitioner Excel Corporation.

A. Federal Meat Inspection And The USDA Treat-

ment of E. coli O0157:H7.

The E. coli O157:H7 bacterium is a highly dangerous

source of foodborne illness. “Exposure to E. coli O0157:H7

has been linked with serious, life-threatening human illnesses

(hemorrhagic colitis and hemolytic uremic syndrome).” 64

Fed. Reg. 2803 (Jan. 19, 1999). Moreover, unlike many other

microorganisms, E. coli O157:H7 constitutes a serious threat

to public health even at relatively low levels. As _ the

Department of Agriculture (USDA) has said, “[s]ome patho-

gens, such as E. coli O157:H7, are so virulent that a small

number of organisms can pose a significant hazard.” 61 Fed

Reg. 38,806, 38,835 (July 25, 1996).' For that reason, “any

amount of E. coli O157:H7 will adulterate a meat or poultry

product.” Jd.

E. coli O157:H7 is not naturally present in beef meat.

Rather, E. coli O157:H7 is found in cattle feces and ingesta,

and then transferred to meat through “fecal contamination.”

61 Fed. Reg. 38,837. Fecal contamination, in turn, results

from improper handling of carcasses during the slaughtering

process. See id. (“without care being taken in handling and

dressing procedures during slaughter and processing, the

edible portions of the carcass can become contaminated with

bacteria capable of causing illness in humans”). The USDA

has stated that “[i]n slaughter establishments, fecal con-

tamination of carcasses is the primary avenue for con-

tamination by pathogens.” /d.

The virulent E. coli O157:H7 strain of E. coli was first dis-

covered in 1982. Thus, while the Federal Meat Inspection

Act, 21 U.S.C. §§ 601 ef. seg., has long given the Agency

authority to prevent distribution of “adulterated” meat prod-

ucts, see 21 U.S.C. § 606, the USDA for years did not

identify E. coli O157:H7 as an adulterant.2 That view

'The USDA exercises many of its responsibilities regarding meat

safety through the Food Safety and Inspection Service (FSIS). For

simplicity, we generally use the terms “USDA” or “Agency” to refer

to actions and declarations by the FSIS in the exercise of its dele-

gated authority.

> The term “adulterated” is defined at 21 U.S.C. § 601(m). See Pet.

App. 55a. Thus, a meat product is considered to be “adulterated” if, for

example, “it bears or contains any poisonous or deleterious substance

changed in the early 1990s, however, following serious

outbreaks of illness induced by E. coli O157:H7. The USDA

subsequently adopted a policy that seeks to eradicate E. coli

O157:H7 from meat and poultry products, with a current goal

of reducing E. coli O157:H7 “to an undetectable level.” See

67 Fed. Reg. 62,325, 62,329 (Oct. 7, 2002).

To achieve that goal, the Agency has enacted new rules

requiring meat processing facilities to adopt Hazard Analysis

and Critical Control Point (HACCP) plans that, among other

things, prevent “contamination with fecal material and other

intestinal contents... .” 61 Fed. Reg. 38,838. It thus has

stated that “preventing and removing fecal contamination and

associated bacteria are vital responsibilities of slaughter

establishments.” 61 Fed. Reg. 38,837. Recognizing that fecal

contamination is “largely preventable,” id., the Agency

requires slaughter establishments to adhere “to zero tolerance

for fecal contamination.” 61 Fed. Reg. 38,850.

The HACCP system altered USDA’s prior program of

organoleptic meat and poultry inspection by federal inspec-

tors. Under the pre-HACCP program, every stage of meat

production was monitored by USDA employees rather than

by in-plant personnel. See Pet. App. 21a; USDA. Rep. No.

24001-3-At, at 1 (2000). The HACCP system reversed this

arrangement by allowing—indeed requiring—a plant to

monitor itself. As a result, the new HACCP rules “gave [the

meat] industry, not Government, the primary responsibility

for ensuring the safety of meat... products.” Jd.

The USDA has also recognized that “[o]ccurence of food-

borne disease is a multi-step process.” 61 Fed Reg. 38,966.

In addressing the problem of dangerous pathogens, therefore,

which may render it injurious to health” (with an exception for harmless

amounts), 21 U.S.C. § 601(m)(1), or if it has been prepared “under

insanitary conditions . . . whereby it may have been rendered injurious to

health.” 21 U.S.C. § 601(m)(4).

Ee a. er en mRNAs camer cosecres |

it has emphasized in the new HACCP rules that “[t]he first,

and critical, step is the introduction of a pathogen into or onto

the raw product.” Jd. Once E. coli O157:H7 has contami-

nated a meat product, it follows that airy resulting illness has

its roots in the initial flawed treatment. As the USDA has de-

clared, “disease would not have occurred if the pathogen had

not been present on the raw product in the first place.” Jd.

In addition to the HACCP rules, the USDA has also

addressed the dangers of E. coli O157:H7 in a 1999 policy

statement—the statement on which petitioner places almost

total reliance in this case—indicating that since 1994 it had

generally regarded, and would continue to regard, “non-

intact” cuts of meat as “adulterated” if they were contami-

nated with E. coli 0157:H7. See 64 Fed. Reg. 2803.° The

USDA also indicated that, with one narrow exception, it

regards “intact cuts” as adulterated when they are contami-

nated with E. coli O157:H7. See 64 Fed. Reg. 2803 (“[t]he

public health risk presented by beef products contaminated

with E. coli O157:H7 is not limited . . . to raw ground beef

products”). In setting forth this policy, the Agency explicitly

recognized that, while contamination with E. coli O0157:H7

takes place on the surface of intact cuts (and thus is more

easily destroyed by cooking), many intact cuts undergo

further processing before cooking, either at separate process-

ing plants or at retail establishments. /d. That additional

processing may include certain methods of tenderizing, as

*The USDA, acting through the FSIS, stated that “[t]his notice

explains the Agency’s policy governing beef products that contain the

pathogen Escherichia coli O157:H7 (E. coli O157:H7).” 64 Fed. Reg.

2803. We thus use the terminology “policy statement” to refer to the

notice. While petitioner refers to the statement as an “interpretive rule,”

the distinction between the two terms is immaterial in this context. See

United States v. Mead Corp., 533 U.S. 218, 234 (2001) (noting that

“interpretations contained in policy statements . . . are beyond the

Chevron pale’) (internal quotation marks omitted). See pages 16-17 infra

(discussing various deference standards).

well as the conversion of leftover trimmings into ground beef

products. See 64 Fed. Reg. 2804. In those situations,

“[p]athogens may be introduced below the surface of these

products as a result of the processes by which they are made.”

Id. The Agency thus stated that it views contaminated intact

cuts in the same manner as non-intact cuts—that is, it regards

them as “adulterated”—unless they “are to be distributed for

consumption as intact cuts.” Jd.*

B. The Proceedings Below.

These consolidated cases were filed by, or on behalf of,

persons who contracted E. coli O157:H7 food poisoning in

July 2000, after eating at a Sizzler Restaurant in Milwaukee,

Wisconsin. A three-year old girl, Brianna Kriefall, died as a

result of the E. coli poisoning.”

The suits named several defendants, including respondent

Sizzler and petitioner Excel. The claims against petitioner,

all grounded in state law, included claims based on negli-

gence, negligence per se for violating provisions of state law,

and strict liability. See, e.g., Kriefall Plaintiffs’ Second

Amended Complaint §§ 100-139; Lesak Plaintiffs’ First

Amended Complaint §§ 4.1-6.9. Plaintiffs also asserted

various warranty claims against petitioner, including breach

of express warranty, contending that they were third party

* There are open questions about the extent to which the USDA has

implemented the policy statement. See 65 Fed. Reg. 6881, 6886 (Feb. 11,

2000) (noting that the Agency “delayed implementation of the policy

discussed in the January 19, 1999 policy statement because it was waiting

for the results of the risk assessment for E. coli O157:H7 in ground beef

and needed time to consider comments received concerning the policy”).

Nonetheless, for purposes of this brief, we will assume that the policy has

been implemented.

* Petitioner sought to remove the cases to federal court, basing its

argument on the pervasiveness of the federal regulatory program. The

federal district court rejected this argument and remanded the cases to

State court.

beneficiaries of those warranties. See, e.g., Kriefall

Plaintiffs’ Second Amended Complaint §§ 140-181; Lesak

Plaintiffs’ First Amended Complaint §§ 7.1-7.4.

Respondent Sizzler filed a cross-claim against petitioner.

The cross-claim alleged that, through a _ contractual

“continuing guarantee,” petitioner had agreed to provide

Sizzler with beef products that met all federal and state

standards. See, e.g., Sizzler USA Franchise, Inc. Cross-Claim

44 10, 12, 14, 16. In addition, it alleged that petitioner had

undertaken obligations, and made affirmative representations,

with respect to the quality and safety of its products. See,

e.g., id. §§ 13-17. The cross-claim asserted causes of action

based on breach of contract, fraud in the inducement, and

breach of express and implied warranties. See id. §j 51-86.

The circuit court granted summary judgment for petitioner,

finding that federal law preempted the state-law claims.

Noting that, according to the 1999 USDA policy statement,

“intact products that are to be distributed for consumption as

intact cuts are not deemed adulterated,” Pet. App. 49a

(quoting 64 Fed. Reg. 2804), the court held that the state-law

tort claims fell within the terms of the Act’s express

preemption clause, 21 U.S.C. § 678, which bars States from

imposing “[rJequirements . . . with respect to premises,

facilities and operations of any establishment . . . which are

in addition to, or different than those made under this chapter

....° Id. (The preemption clause is set forth in full at Pet.

App. 60a.) Although respondents had argued, as a matter of

fact, that the products sold by petitioner were not “intact

products that are to be distributed for consumption as intact

cuts,” the circuit court did not resolve, or even acknowledge,

this factual dispute. Nor did the court discuss whether state-

law tort suits imposed “requirements” within the meaning of

the express preemption clause, or, if they did so, whether

those “requirements” were properly considered to be “with

respect to premises, facilities and operations” of an inspected

establishment. Rather, after reviewing the extent of federal

regulation under the Act, the court simply concluded that

“(t]he federal regulatory scheme is so long-standing and so

comprehensive that . . . it preempts any state laws to the

contrary.” Pet. App. 50a.

The circuit court also granted summary judgment on the

contractual and warranty claims. See Pet. App. 50a. As to

plaintiffs’ claims, the court declared that “warranty claims

require privity, and the plaintiffs here were not in privity with

[petitioner] in the 2000 sale.” /d. More generally, the court

found that a “merger clause” in a January 2000 agreement

between petitioner and Sysco Services—which had purchased

the contaminated meat in question from petitioner and then

resold it—precluded reliance \on the terms of earlier agree-

ments containing warranties and representations made by

petitioner. It thus held that, while plaintiffs might pursue

their claims against other defendants, “they may not sue

Exce.” i

The court of appeals reversed. With respect to the express

preemption issue, the court concluded that the USDA policy

statement cited by the circuit court was not dispositive in this

case for two independent reasons. First, it observed that the

policy statement regarded as not adulterated only intact cuts

“that are to be distributed for consumption as intact cuts,” and

that the HACCP plan adopted by petitioner expressly

indicated that “intact cuts of beef [at petitioner’s plant] were

‘intended to be sold raw . . . for further processing at retail.’”

Pet. App. 18a (quoting the HACCP plan). Second, it con-

cluded that the USDA policy statement—which necessarily

viewed some intact cuts contaminated with E. coli O157:H7

as not potentially “injurious to health’—was inconsistent

with the language and purpose of the Act. See Pet. App. 19a;

21 U.S.C. § 601(m)(1), (4). The court thus held that “the

statutory definition controls.” /d.

The court of appeals also found that the state-law claims

were compatible with the scheme of federal regulation as a

whole. In so doing, the court of appeals emphasized the

numerous steps that the USDA had taken to eliminate E. coli

O157:H7 in meat processing facilities. The court observed

that, as the USDA had shifted its focus from reliance on its

own monitoring activities to reliance on HACCP plans

implemented and enforced by the establishments themselves,

see Pet. App. 21a, it had taken a rigorous stance with respect

to fecal contamination, see Pet. App. 24a-26a, imposing a

policy of “zero tolerance.” Pet. App. 26a. Likewise, it noted

declarations by the USDA that the Agency “‘considers an

acceptable reduction for E. coli 0157:H7 to be a reduction to

an undetectable level.’” /d. (quoting 67 Fed. Reg. 62,329).

Given the USDA objective of eliminating E. coli 0157:H7

‘contamination during the slaughtering process, the court of

appeals reasoned that state-law suits based on illnesses caused

by contaminated meat would reinforce, not contradict, the

provisions of federal law.°

The Supreme Court of Wisconsin denied a petition for

review. Pet. App. 44a.

ARGUMENT

This case does not warrant further review. To begin with,

the state court judgment is not final. See 28 U.S.C. § 1257(a).

Although petitioner argues that this Court may exercise

° The court pointed out that the USDA itself had recognized “the

significant limitations of the ‘organoleptic examination by inspectors,””

Pet. App. 32a (quoting 61 Fed. Reg. 38,838), especially with respect to

organisms like E. coli O157:H7. It observed that “seven-foot-long

carcasses arrive at the fabrication area after whizzing by the Service

inspection station at the rate of one side every six seconds.” /d. And,

while those carcasses are later split into “some 8,000 intact cuts of beef

weighing approximately two to four or three to five pounds each,” id.,

“[flederal inspectors do not inspect each one of these smaller cuts of

beef.” /d.

jurisdiction because reversal of the judgment would be

““preclusive of any further litigation,” Pet. 16 n.4 (quoting

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 482 (1975)),

that argument is clearly incorrect. For one thing, the Wiscon-

sin Court of Appeals found that petitioner—as a distributor of

meat cuts that may receive “further processing,” rather than

cuts sold only for “consumption as intact cuts” (64 Fed. Reg.

2804)—would not benefit from the very USDA policy

statement that it seeks to rely on, regardless of whether the

policy statement received judicial deference or not.

Furthermore, the issue of how much (if any) deieience is due

to the Agency policy statement regarding E. coli 0157:H7—

the sole issue raised by the Question Presented (Pet. i)—is

just one of many issues that would have to be resolved in

petitioner’s favor before it would be entitled to termination of

the lawsuits against it. The court of appeals, in the opinion

below, expressly left those other issues open.

Even leaving prematurity aside, the decision is correct and

of little general importance. Because the policy statement

issued by the USDA is concededly not entitled to Chevron

deference, see Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984), the only question

is whether it is entitled to Skidmore deference, see Skidmore

v. Swift & Co., 323 U.S. 134 (1944): that is, in specific terms,

whether the Agency has persuasively established that it is

acceptable to regard certain cuts of meat contaminated with

E. coli O157:H7 as not potentially “injurious to health.” See

United States v. Mead Chrp., 533 U.S. 218, 235 (2001)

(deference given to agency judgments under Skidmore in

accordance with their “power to persuade”). Looking to the

language and purpose of the statute, and to the overall USDA

objective of eliminating E. coli O157:H7 from meat process-

ing facilities, the court of appeals reasonably concluded that a

policy of regarding some E. coli O157:H7 conta:ninated meat

as harmless was not persuasive enough to warrant deference.

Furthermore, the decision below established no ground-

breaking principle of law, but merely determined that one

particular USDA policy statement, applying to a single type

of bacterium in a single situation, would not be regarded as

definitive in a state-law tort suit. Nothing in that decision

calls for review by this Court.

I. THE JUDGMENT BELOW IS NOT FINAL.

The express terms of 28 U.S.C. § 1257(a) establish that this

Court has jurisdiction to review only “final judgments or

decrees” from state courts. See Jefferson v. City of Tarrant,

522 U.S. 75 (1997). Although this requirement does not

mean that state-court proceedings must always be terminated

in their entirety, see Cox Broadcasting, 420 U.S. at 477, the

Court has agreed to review issues in the midst of ongoing

state cases in only a few narrow categories of cases.

Petitioner tries to fit within one of those categories here,

arguing in two-step fashion, first, that proper deference to the

USDA policy statement would mean that “the state-law cause

of action against Excel would be preempted,” Pet. 16 n.4,

and, second, that, as a result, “‘reversal of the state court on

the federal issue would be preclusive of any further

litigation.”” /d. (quoting Cox Broadcasting, 420 U.S. at 482-

83).’ But this chain of reasoning is demonstrably wrong. For

’ This Court in Cox noted that it had reviewed judgments from state

courts, inter alia, in “situations where the federal issue has been finally

decided in the state courts with further proceedings pending in which the

party seeking review here might prevail on the merits on nonfederal

grounds, thus rendering unnecessary review of the federal issue by this

Court, and where reversal of the state court on the federal issue would be

preclusive of any further litigation on the relevant cause of action rather

than merely controlling the nature and character of, or determining the

admissibility of evidence in, the state proceedings still to come. In these

circumstances, if a refusal immediately to review the state court decision

might seriously erode federal policy, the Court has entertained and

decided the federal issue, which itself has been finally determined by the

state courts for purposes of the state litigation.” 420 U.S. at 482-83

(emphasis added).

a number of reasons, “a reversal . . . on the federal issue”—

i.e., the extent of deference owed to the USDA policy

statement—would not come close to being “preclusive of any

further litigation” against petitioner.

A. The first problem faced by petitioner is that a reversal,

rather than precluding all litigation against it, would not help

it at all. The reason is simple: petitioner has not established

that its product falls within the narrow category of meat

products that may be deemed not adulterated, even though

they are contaminated with E. coli O157:H7. Thus, while

petitioner describes the USDA E. coli O157:H7 policy

statement as though it permitted the sale of all intact cuts, see

Pet. 2, 10, 20, that characterization is notably incomplete: in

fact, the policy statement makes an important distinction

within the category of intact cuts, explicitly treating

contaminated intact cuts as “adulterated” if they may be

subject to further processing. See 64 Fed. Reg. 2804. In

addressing petitioner’s efforts to rely on the USDA policy

statement, the court of appeals specifically recognized the

difference between various categories of intact cuts, observ-

ing that the possible use of a particular meat product was

necessarily of critical significance in determining whether it

was “adulterated” under that standard. See Pet. App. 18a.

Then, referring to petitioner's HACCP plan, the court

pointedly observed that “its intact cuts of beef were ‘intended

to be sold raw . . . for further processing at retail.’” Pet. App.

18a (emphasis added).

Petitioner candidly acknowledges this defect in its position,

conceding that the court of appeals “intimated that the meat

involved in this case therefore should be classified as non-

intact.” Pet. 14 n.3. It then goes on to argue, however, that

the court of appeals was mistaken, claiming that “the meat

products produced by Excel that ended up at the E&B Sizzler

restaurant were intact cuts of sirloin.” /d But that assertion,

even if correct as stated, is beside the point: the issue is not

whether the products received at Sizzler “were intact cuts of

sirloin,’ but whether the products were necessarily to be

consumed as intact cuts without additional processing. On

that question, as respondents argued below, a_ proper

evidentiary record would show full awareness by petitioner

that the type of cuts at issue here (so-called “tri-tips,”

weighing from three to five pounds) would routinely be

subject to further processing at other facilities or at retail

establishments (like Sizzler), including mechanical tenderiz-

ing processes that can cause E. coli O157:H7 to penetrate to

the interior of the meat. See, e.g, C.A. Brief of Lesak

Plaintiffs-Appellants 23-32. It thus was entirely appropriate

for the court of appeals to decide that, according to the terms

of its own HACCP plan, petitioner was in no position to use

the USDA policy statement to avoid liability.

In any event, with respect to petitioner’s factual conten-

tions, it seems obvious that this Court is not the forum in

which to resolve whether petitioner did, or did not, distribute

meat that might receive further processing. The case is

before the Court on reversal of a summary judgment, and

these sorts of factual questions have yet to receive a full

airing. Whatever the ultimate outcome, it is clear under

Wisconsin law that “[d]oubts as to the existence of a genuine

issue of material fact should be resolved against the party

moving for summary judgment.” Grams v. Boss, 294 N.W.2d

473, 477 (Wisc. 1980); see also Lambrecht v. Estate of

Kaczmarczyk, 623 N.W.2d 751, 759 (Wisc. 2001) (same).

Under that standard, the court of appeals rightly treated

petitioner as a distributor of intact cuts “for further processing

at retail,” not as a distributor of cuts “for consumption as

intact cuts.” As such, petitioner would not be entitled to

judgment in its favor, regardless of the deference given to the

USDA policy statement.

B. A reversal would not preclude further litigation against

petitioner for other reasons as well. Even if petitioner were to

| si eS ied NAR LD ve

prevail on the “deference” issue that it raises in the Question

Presented, and even if petitioner would actually benefit from

that deference, it still would have taken only the first of |

several required steps towards obtaining dismissal of respon-

dents’ claims. As the court of appeals made clear below,

several other important issues remain open, if necessary, in

further proceedings.

The first of those outstanding issues is whether the state-

law claims at issue would constitute “requirements” within

the meaning of the Act’s express preemption clause. See 21

U.S.C. § 678 (“[rJequirements within the scope of this chapter

with respect to premises, facilities and operations of any

[inspected] establishment . . . which are in addition to, or

different than those made under this chapter may not be

imposed by any State... .”) Although this Court has

indicated that state-law claims may constitute “requirements”

under the language of a particular preemption provision, see

Cipollone v. Liggett Group, Inc., 505 U.S. 504, 521-22 (1992)

(plurality opinion); id. at 548-49 (Scalia, J., concurring in the

judgment in part and dissenting in part), it is hardly self-

evident that they always do so, or that they would do so here.

Indeed, the language of the Federal Meat Inspection Act

preemption clause, read in context, would appear more

naturally to refer to formal state administrative requirements,

rather than to common law remedial actions arising out of

injuries suffered as a result of contaminated products.

Moreover, it is noteworthy that the Act contains no right of

action for consumers killed or made ill by contaminated meat

products, even though Congress was surely aware that,

notwithstanding the USDA inspection process, hundreds of

people are exposed each year to unsafe meat. To insist upon

preemption of all state claims arising out of “approved” meat

products thus would require an assumption that Congress

meant to bar States from affording relief to their citizens in an

area (public health) that is of traditional state concern—an

assumption that is contrary to the usual understanding of what

—

Congress intends. See Medtronic, Inc. v. Lohr, 518 U.S. 470,

485 (1996) (“[i]n all pre-emption cases, and particularly in

those in which Congress has ‘legislated . . . in a field which

the States have traditionally occupied,’ . . . we ‘start with the

assumption that the historic police powers of the States were

not to be superseded by the Federal Act unless that was the

clear and manifest purpose of Congress”) (quoting Rice v.

Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)); see also

Sprietsma v. Mercury Marine, 537 U.S. 51, 64 (2002)

(“common-law claims . . . necessarily perform an important

remedial role in compensating accident victims”). The court

of appeals, while noting the difficulties raised by this issue,

expressly declared that it was not resolving it. See Pet. App.

6a n.3.

There are also open questions regarding whether the

various claims in this case, assuming that they impose

“requirements” at all, would do so “with respect to premises,

facilities and operations” of an inspected establishment and

would be “in addition to, or different than” the relevant

federal requirements. Again, the court of appeals expressly

reserved decision on the proper application of that language.

See Pet. App. 8a n.3. The term “with respect to” has no

defined meaning in this context, and the phrase may

reasonably be read to refer to specific targeted requirements,

rather than to more general tort requirements (e.g., negligence

or strict liability) that happen to have an incidental effect on

meat processing operations. See generally California Div. of

Labor Standards Enforcement v. Dillingham Constr. N.A.,

Inc., 519 U.S. 316 (1997). Moreover, as we discuss later, the

USDA has established a policy of “zero tolerance” with

respect to fecal contamination in inspected establishments,

and it has further declared that E. coli O157:H7 should be

reduced to “undetectable levels.” See pages 20-21 infra.

The claims here, which result from meat contaminated with

E. coli O157:H7, are entirely consistent with—indeed,

affirmatively reinforce—those objectives.

Finally, there are significant remaining questions about

whether petitioner has undertaken voluntary contractual and

warranty obligations that are enforceable without regard to

any preemption defense. Given its disposition of the case, the

court of appeals once again found no need to address those

issues. See Pet. App. 36a n.8. But it is well-recognized that,

preemption law notwithstanding, companies may properly be

held accountable for failing to comply with contractual or

other representations. See American Airlines, Inc. v. Wolens,

513 U.S. 219, 232-33 (1995); Cipollone, supra, 505 U.S. at

525-27 (plurality opinion). Although the Wisconsin circuit

court held that respondents could not rely on petitioner’s

voluntary undertakings because of a lack of privity, and

because of a merger clause in a subsequent contract, there are

strong reasons to think that the court misread both the terms

of the relevant contracts and Wisconsin law. See C.A. Brief

of Defendant-Third Party Sizzler USA Franchise, Inc. 18-30.

Hence, petitioner faces liability on those grounds, regardless

of its success (or lack of it) in establishing preemption of

other claims.

The final judgment requirement is “not one of those

technicalities to be easily scorned.” Radio Station WOW, Inc.

v. Johnson, 326 U.S. 120, 124 (1945). Rather, “[i]t is an im-

portant factor in the smooth working of our federal system.”

Id. See also Costarelli v. Massachusetts, 421 U.S. 193, 196

(1975) (rule “prevent[s] our interference with state

proceedings when the underlying dispute may be otherwise

resolved”). As this Court has said: “The finality requirement

of 28 U.S.C. § 1257 . . . serves several ends: (1) it avoids

piecemeal review of state court decisions; (2) it avoids giving

advisory opinions in cases where there may be no real ‘case’

or ‘controversy’ in the sense of Art. III; (3) it limits review of

state court determinations of federal constitutional issues to

leave at a minimum federal intrusion in state affairs.” North

Dakota State Bd. of Pharmacy v. Snyder’s Drug Stores, Inc.,

414 U.S. 156, 159 (1973). Those principles are fully

applicable here. The petition is premature.

Il. THE PETITION DOES NOT, IN ANY EVENT,

WARRANT REVIEW.

Quite apart from its procedural faults, the petition raises no

issues meriting review by this Court. Although petitioner

vigorously argues that the USDA E. coli O157:H7 policy

statement is entitled to deference, and that the court of

appeals impermissibly failed to give it “any weight,” see, e.g.,

Pet. i, 16, that narrow question—involving one out of

thousands of federal rules and policy statements—is of no

general importance. And, in any event, the court below was

right to conclude that, in light of the governing statute and the

regulatory scheme as a whole, there was no reason to accord

deference to one questionable aspect of this particular USDA

policy statement.

A. At the outset, we note that petitioner does not make any

argument that the Wisconsin court was required to give

Chevron-type deference to the USDA policy statement. See

Chevron, U.S.A., Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984). This Court has held that the

more substantial Chevron deference is generally reserved for

rules adopted after notice-and-comment rulemaking. See

United States v. Mead Corp., 533 U.S. 218, 229-30 (2001).

Although the Court has recognized a few additional situations

in which Chevron deference is appropriate, see id. at 231,

nothing in the actions of the USDA with respect to the E. coli

O157:H7 policy statement—even assuming that it has

actually been implemented, see note 4 supra—brings them

within that limited class. Consequently, the court of appeals

was under no obligation to defer to the Agency pursuant to

the standards of that doctrine.

The policy here thus would be entitled to, at most,

Skidmore-type deference. See Skidmore v. Swift & Co., 323

U.S. 134 (1944); see also Mead, 533 U.S. at 234-35;

Christensen v. Harris County, 529 U.S. 576, 587 (2000). As

this Court has indicated, that kind of deference acknowledges

that government agencies may develop levels of experience

and knowledge in the course of administering federal statutes.

See Mead, 533 U.S. at 234-35. This recognition does not

mean, however, that courts must follow agency interpreta-

tions of federal law. Rather, under the standards of Skidmore

deference, the agency view is to be given respect to the extent

of, but only to the extent of, its “power to persuade.” See

Mead, 533 U.S. at 235; Christensen, 529 U.S. at 587.

Nothing in the decision below is contrary to these princi-

ples. All that the court of appeals did—and what, under

Skidmore, it was fully entitled to do—was to determine that,

insofar as the applicable USDA policy statement posited that

certain intact cuts contaminated with E. coli O157:H7 were

not potentially “injurious to health,” it lacked the “power to

persuade.” The court noted that the relevant statutory

language defined adulterated products in terms of whether

poisonous substances or insanitary conditions “may render”

meat products “injurious to health,” see, e.g., 21 U.S.C.

§ 601(m)(1), (4), and it further noted that the overriding

purpose of the statute was to safeguard public health against

the harm posed by contaminants like E. coli 0157:H7. See

Pet. App. 10a; see also 21 U.S.C. § 602 (“i]t is essential in

the public interest that the health and welfare of consumers be

protected by assuring that meat and meat food products

distributed to them are wholesome, not adulterated, and

properly marked, labeled, and packaged”). Given the Act’s

language and purpose, and the USDA’s own explanations

regarding the severe dangers arising from E. coli 0157:H7,

the court below simply concluded that the presence of E. coli

O0157:H7 on meat products posed the kind of threat to public

health targeted by the statute, at least under the circumstances

present here.®

This reasoning makes sense for several reasons. In the first

place, there is no doubt that E. coli O157:H7 is a “poisonous

or deleterious substance,” see 21 U.S.C. § 601(m)(1), and that

it may occur “under insanitary conditions.” See 21 U.S.C.

§ 601(m)(4). Moreover, E. coli O157:H7 is indisputably

capable of causing serious harm, even in small quantities.

The USDA itself has. stated: “Some pathogens, such as E. coli

O157:H7 are so virulent that a small number of organisms

can pose a significant hazard,” 61 Fed. Reg. 38,835,

concluding that “any amount of E. coli O157:H7 will

adulterate a meat or poultry product.” Jd; see also 65 Fed.

Reg. 6883 (“E. coli O157:H7 is a particularly virulent

pathogen”).’

It is also clear that “[t]he public health risk presented by

beef products contaminated with E. coli O157:H7 is not

* We note that there might be grounds for claiming more than Skidmore

deference to the views of the Secretary under 21 U.S.C. § 601 (m)(2),

which defines one kind of adulterated product and explicitly leaves the

question whether a substance makes a product “unfit for human food” up

to the “judgment of the Secretary.” See id. As the court of appeals

pointed out, however, that language is absent from the other definitional

provisions of Section 601(m). See Pet. App. 19a.

° Although petitioner compares E. coli O157:H7 to other forms of

bacteria like Salmonella and trichinae spiralis, see Pet. 24, the question

whether various pathogens may be injurious to health does not lend itself

to a one-size-fits-all answer. For example, the USDA has declared that

the threat posed by E. coli O157:H7 is greater than the threat posed by

other bacteria that are harmful only in far larger quantities. See, e.g., 61

Fed. Reg. 38,835 (noting that, in contrast to E. coli O157:H7, salmonella

“must multiply to relatively large numbers to cause illness”). Thus,

whethex a particular product can safely be sold, despite the presence of

bacteria, will necessarily depend on both the nature of the product and the

particular bacterium at issue. The decision in this case involves only E.

coli O157:H7.

limited . . . to raw ground beef products.” 64 Fed. Reg. 2803.

As the USDA policy statement recognizes, intact cuts

commonly are subjected to further processing, which can

cause the E. coli O157:H7 bacteria to penetrate below the

surface of the meat. Thus, if meat contaminated with E. coli

O157:H7 could ever sensibly be regarded as safe for

distribution to consumers, it would have to be under

circumstances where there was sufficient assurance, at the

time of inspection, that the contaminated cuts would be

consumed without further treatment. See 64 Fed. Reg. 2803

(noting importance of “adequate assurance that subsequent

handling of the product will result in food that is not

contaminated when consumed”). There is nothing even

approaching that assurance here. To the contrary, as the court

of appeals noted, it was generally understood that the intact

products at petitioner’s facility, like those at many other meat

processing facilities, were likely to receive further processing.

See Pet. App. 18a (discussing petitioner’s HACCP plan).

Indeed, an Excel official testified at his deposition that Excel

plant employees (and, presumably, USDA inspectors) typi-

cally do not know the intended use of the carcasses presented

for examination and approval. See C.A. Lesak Brief 30-31

(quoting Klingaman Aff., Ex. E., Goltry Dep. at 322-24).

Under those circumstances, it is simply not possible to

predict, with any reliable level of confidence, that a particular

carcass or large cut of meat contaminated with E. coli

O157:H7 would not be potentially “injurious to health.”

Petitioner suggests, however, that the words “may render it

injurious to health” should be given a narrow reading, in

order to exclude highly speculative or remote risks arising

from commonly-occurring bacteria. See Pet. 21, 24. But the

risks here were not remote. The court of appeals had ample

evidence—much of it contained in declarations by the USDA

itsel{—from which to conclude that the dangers posed by E.

coli O157:H7 were neither fanciful nor inconsequential, even

with respect to intact cuts. Thus, while petitioner is doubtless

correct that some levels of risk may be too slight to fall within

the statutory terms, the presence of E. coli O157:H7 gives rise

to significantly more serious concerns. °

It is also important to recognize that, under the USDA

regulatory approach, meat processors cannot simply assume

that later handling will eradicate the risk posed by highly

dangerous pathogens like E. coli O157:H7. Thus, while

petitioner seeks to rely on the fact that “the bacteria are killed

by ordinary cooking,” Pet. 20, the Agency has emphasized

the importance of eliminating potential hazards before

harmful products are distributed to the public. See Pet. App.

27a (discussing USDA approach). The USDA thus has noted

that the “first, and critical step” leading to foodborne illness is

“the introduction of a pathogen into or onto the raw product,”

61 Fed. Reg. 38,966, a step that only takes place as a result of

improper slaughtering and processing. Although it is cer-

tainly true that “ordinary cooking” may reduce the chances of |

resulting illness, the USDA found no justification for proces-

sors to ignore the problem at its source, stating that “disease

would not have occurred if the pathogen had not been present

on the raw product in the first place.” Jd.

The objective of preventing E. coli O0157:H7 contamination

at the slaughterhouse is directly reflected in the USDA

policies regarding meat processors’ HACCP plans. ‘The

USDA has stated that “preventing and removing fecal

contamination and associated bacteria are vital responsibili-

In United States v. Lexington Mill & Elevator Co., 232 U.S. 399

(1914), this Court indicated that similar language in a federal statute

(“may be injurious to health”) is properly construed to take account of

potential harm even to unusually susceptible consumers. Noting that flour

(the product there at issue) “may be consumed . . . by the old and the

young, the well and the sick,” id. at 411, the Court in Lexington Mill

concluded that “if any flour, because of any added poisonous or other

deleterious ingredient, may possibly injure the health of any of these, it

shall come within the ban of the an “al Id. (emphasis added).

ties of slaughter establishments,” 61 Fed. Reg. 38,837, which

establishments—rather than the USDA—now bear the

primary responsibility for meat safety. See page 3 supra.

Importantly, given the suggestions by petitioner that harmful

bacteria are an inevitable aspect of dealing with meat

products, Pet. 21, 24, the Agency has made a point of saying

that “such contamination is largely preventable.” Jd. Thus,

the Agency has indicated that, in HACCP plans, it will

require “a slaughter establishment’s adherence to zero

tolerance for fecal contamination.” 61 Fed. Reg. 38,850.

Taking a similarly stringent view with respect to E. coli

O157:H7 itself, the Agency has said that it “considers an

acceptable reduction for E. coli 0157:H7 to be a reduction to

an undetectable level.” 67 Fed. Reg. 62,329.

In light of this broad statutory and regulatory background,

therefore, the court of appeals was fully justified in conclud-

ing that meat contaminated with E. coli O157:H7 was, in a

very real sense, potentially “injurious to health,” within the

meaning of 21 U.S.C. § 601(m). Not only does the USDA

acknowledge the dangers posed by even a small amount of E.

coli O157:H7, it further recognizes that meat processors

cannot always depend on later handling to eliminate the

danger. It follows, therefore, that the distribution of meat

products contaminated with E. coli 0157:H7—whether they

are “intact cuts” or not—can lead to just the sort of harm to

unsuspecting consumers that occurred here. To the extent

that parts of the USDA “adulteration” policy statement can be

taken to indicate otherwise, it lacks persuasive force and need

not be given judicial deference.

B. The decision below is also of limited importance. The

Wisconsin Court of Appeals announced no novel principles

regarding whether, and when, to give deference to federal

administrative agencies. Rather, it simply declined to apply

one aspect of one policy statement addressing one particular

hazardous contaminant, solely for the purpose of adjudicating

suppenstvignemeeeeaercaessiseiiieiiieiiil

certain state-law tort claims. While the decision declines to

follow petitioner’s view of the USDA policy statement with

respect to those particular claims, nothing in the decision bars

the Agency—which, after all, was not a party to these

proceedings—from deciding for itself how to carry out its

discretionary enforcement duties. Nor does it take any

position with regard to meat products contaminated wit’:

pathogens other than E. coli O157:H7.

Although petitioner argues that the decision below will

create widespread uncertainty about the obligations of meat

processing facilities, Pet. 22-26, this concern is overstated.

As noted, the USDA already requires facilities to adopt

stringent standards in order to prevent fecal contamination,

seeking to eradicate the incidence of E. coli O157:H7.

See pages 2-4, 21 supra. Insofar as those objectives are in

question, therefore, the state court view of E. coli O157:H7 as

a potentially dangerous substance, even on most intact cuts,

poses no obstacle to the federal program. If anything, the

possibility of state liability actions provides a complementary

incentive to rid processing facilities of the threat posed by

fecal contamination.

To be sure, the ruling below does raise the prospect that

slaughterhouses and processors may face liability for injuries

or deaths caused by the sale of contaminated meat, even if

that meat has managed to pass through the federal inspection

process. But, as the court of appeals noted, petitioner cannot

expect that federal inspection will result in detection and

disapproval of all contaminated meat, given that inspectors

(relatively few in number, to begin with) are exposed to 350-

pound carcasses for approximately six seconds apiece. See

Pet. App. 32a. Indeed, petitioner has workers known as

“defect trimmers” that are assigned to remove fecal contami-

nation after the carcasses have received “approval” at the

slaughtering stage. Furthermore, it is significant that the

USDA conducts random testing and evaluation at retail

establishments, necessarily reflecting its own understanding

that pre-distribution inspection is not a foolproof system.'' It

is thus entirely appropriate to preserve the opportunity for

injured consumers to obtain relief from processors that sell

contaminated meat products.

Petitioner also asserts that the decision below raises the

prospect of disuniformity, contrary to congressional intent.

Pet. 15, 22, 26. But this argument, familiar to most preemp-

tion cases, is largely out of place here. Unlike areas like

labeling and packaging—where the need for uniformity is

typically at its highest (see, e.g., Jones v. Rath Packing Co.,

430 U.S. 519 (1977))—the operations of each processing

facility are conducted according to its own HACCP plan,

which naturally will vary according to the particular needs

and concerns of the individual facility. See Pet. App. 3la-

32a. At the same time, of course, all HACCP plans share the

common goal of eliminating fecal contamination and E. coli

O157:H7. Again, in that regard, the decision below helps to

promote uniformity, not to undermine it.

C. Finally, petitioner says that the decision below is in

conflict with Boulahanis v. Prevo’s Family Market, Inc., 583

N.W.2d 509 (Mich. 1998), cert. denied, 530 U.S. 1203

(2000), and several decades-old cases from federal courts of

appeals. The Boulahanis decision, however, involved a sale

of meat prior to the time that the USDA regarded E. coli

O157:H7 as a threat to public health. Thus, unlike the present

case, there was no regulatory history of USDA efforts to

eradicate E. coli O157:H7 in processing plants, reinforced by

''The lack of absolute certainty with respect to inspected meat

products is illustrated by the fact that, prior to 1994, the USDA did not

specifically include E. coli O157:H7 in its list of adulterants, in spite of its

highly virulent nature. During that earlier period, therefore, USDA

inspectors would have “approved” even ground beef contaminated with E.

coli O157:H7, although the Agency now acknowledges that contaminated

ground beef plainly may be “injurious to health.”

Agency recognition that it was necessary to stop E. coli

O157:H7 at the source rather than to depend upon later

handling to neutralize already-present contamination. With-

out that background, the Michigan court had no sufficient

reason to question the implicit USDA determination—which

proved mistaken, of course, and has since been abandoned—

that the sale of meat (there, ground meat) contaminated with

E. coli O157:H7 was not potentially “injurious to health.” Its

decision, therefore, does not conflict with the decision below,

which takes account of a very different regulatory record.

There is also no conflict with the cited federal cases. See

Grocery Manufacturers of Am., Inc. v. Gerace, 755 F.2d 993

(2d Cir. 1985); National Pork Producers Council vy.

Bergland, 631 F.2d 1353 (8th Cir. 1980); Public Citizen v.

Foreman, 631 F.2d 969 (D.C. Cir. 1980). In the first place,

each of the regulations at issue in those cases was

promulgated after a far more formal and extensive process.

See Gerace, 755 F.2d at 1001 (citing Federation of Home-

makers v. Schmidt, 539 F.2d 740 (D.C. Cir. 1976), which had

upheld an underlying FDA rule promulgated after notice and

comment, see id. at 742); Bergland, 631 F.2d at 1357;

Foreman, 631 F.2d at 973. Those cases thus raised questions

of Chevron-type deference, see Mead, 533 U.S. at 229-30, a

degree of deference that petitioner does not, and could not,

ask for here. Moreover, not surprisingly, none of those

federal courts held, or had any reason to hold, that USDA

policy statements (or interpretive rules, see note 3 supra)

must be treated as authoritative even if they lack the “power

to persuade,” and they certainly did not indicate that

deference must be given to pronouncements that are

inconsistent with either the import of the governing statute or

other pronouncements of the USDA itself. The claimed

conflict is thus entirely imaginary.

In short, the petition is too little, too soon. Further review

is not warranted.

CONCLUSION

The petition for a writ of certiorari should be denied.