FSIS Denies Broiler Egg Processing Exemption

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Petition for USDA-FDA Dual Jurisdiction on Eggs Denied

by: Food and Drug Law at Keller and Heckman of Keller and Heckman LLP - The Daily Intake

Monday, November 13, 2023

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In May of 2018, the National Chicken Council (NCC) requested that the U.S. Department of Agriculture (USDA) coordinate with the U.S. Food and Drug Administration (FDA) to exercise enforcement discretion to allow surplus broiler eggs to be processed into egg products under Food and Safety Inspection Service (FSIS) jurisdiction. Specifically, NCC requested FSIS and FDA collaborate to exempt surplus broiler hatching eggs intended for breaking from refrigeration requirements, and instead rely on FSIS’ egg products regulations to control for Salmonella.
NCC explained that: “Historically, the broiler industry sent surplus hatching eggs for processing at egg-breaking plants (but not into the table egg market), where they were pasteurized under FSIS jurisdiction and oversight. As you may be aware, in 2009, the FDA published a final rule requiring that shell eggs, including surplus broiler eggs sent for breaking, be refrigerated shortly after the time of lay. The problem is that the timing of refrigeration under the FDA rule is incompatible with the process broiler eggs must follow. This is because refrigerating broiler eggs prevents them from hatching – that is, they cannot be warm enough for possible hatching yet cool enough for compliance with the FDA rule.”
FDA denied the request in the petition on June 12, 2023 because the Agency determined the requested action would not maintain the same level of public health protection as its own egg safety rule.
On November 3, 2023, FSIS also denied the petition, stating that its authority to regulate egg products comes from the Egg Products Inspection Act (EPIA). The EPIA directs the Secretary of Agriculture to maintain an inspection program to assure consumers that egg products are safe, not adulterated, and properly labeled. FDA has authority to regulate shell eggs under the Federal Food, Drug, and Cosmetic Act (FD&C Act), even though USDA generally has authority over meat, poultry, and egg products. Because of this, FSIS must defer to FDA in requests regarding the use of shell eggs.