Before 'pink slime' label, BPI battled salmonella, USDA

Jonathan Ellis
Argus Leader
FILE - This March 29, 2012, file photo, shows the beef product that critics call "pink slime" during a plant tour of Beef Products Inc. in South Sioux City, Neb. An attorney for BPI on Tuesday, April 9, 2013, praised an Iowa judge's ruling that blocked the release of documents on food safety testing conducted for the Sioux Falls, S.D.-based company. Judge Dale Ruigh ruled last month that releasing the information would cause "irreparable harm" to BPI by revealing information about proprietary food-processing techniques.

ELK POINT, S.D. – The U.S. Department of Agriculture revoked an exemption that allowed a Dakota Dunes-based beef processor to skip routine safety testing after learning the company had not followed guidelines in studies used to justify the exemption.

Beef Products Inc. submitted studies to the department when it asked for the testing exemption on its suppliers of raw materials used for its Lean Finely Textured Beef product. The studies showed that elevated pH levels would kill certain illness-causing bacteria. But in December 2009 USDA revoked the exemption after an official wrote to the company saying the department learned that BPI was not using a process to raise the acidity to the levels cited in the studies.

In fact, attorney Dane Butswinkas said, BPI had never raised the pH in its products to levels cited in the studies, even at the time when the company applied for the exemption. Rich Jochum, BPI’s general counsel, conceded that the company had not met the pH standard cited in the studies, but he said USDA had always been aware of that.

Jochum was on the stand for a second day on Monday in BPI’s $1.9 billion defamation lawsuit against American Broadcasting Corp. for a series of stories that ABC reported in March 2012.

Jurors saw videos of the broadcasts Monday, as well as online versions of the stories. The network made gratuitous references to the term “pink slime” throughout its reports and headlines, and Jochum said ABC’s relentless stories effectively branded Lean Finely Textured Beef as “pink slime” in the eyes of the public, even though the term had been coined by a USDA scientist a decade earlier and used by other journalists.

ABC repeatedly made it appear as if the term “pink slime” was commonly used in the meat industry to describe LFTB, even going so far as to use “pink slime” to caption a photo that BPI supplied to the broadcaster. Next to the caption, which simply said, “pink slime,” was a credit to BPI. Nobody in the meat industry, Jochum said, used the term.

As the month of March 2012 progressed, ABC repeatedly took credit when grocers and other customers abandoned the product, eventually leading BPI to close three of four plants and lay off more than half its workforce.

The broadcaster failed to use sources that BPI supplied in its reports, Jochum said. And it relied on sources that had either never been to a BPI plant or hadn’t been in one in a decade, including a former employee that BPI successfully sued, a lawsuit ABC omitted when identifying the employee.

But under cross examination by Butswinkas, who represents ABC, Jochum said the company had already lost 60 percent of its business before the first ABC report, after McDonald’s, Burger King and Taco Bell stopped using LFTB in its hamburger in 2011. Those three restaurants alone accounted for 40 to 50 percent of BPI’s annual LFTB sales.

Internal company documents introduced by Butswinkas showed that at the same time BPI was applying with USDA for an exemption from routine testing, the company was grappling with positive salmonella tests in its product. In 2005 and 2006, food giant Cargill, one of BPI’s customers, suspended BPI three times after multiple positive tests for salmonella. In 2008, the company repeatedly refused to turn over salmonella reports to USDA inspectors, resulting in the department issuing a non-compliance report against the company.

“They asked to see your salmonella records and you wouldn’t give them to them?” Butswinkas asked.

“At this time, correct,” Jochum replied.

BPI also got into a dispute with USDA over how to describe its product. In 2002 USDA told the company to stop referring to LFTB as “Lean Beef Trimmings,” arguing that “trimmings” were classified as meat. LFTB, USDA officials said in repeated rulings, was not meat under federal standards, but a “meat food product” derived by low-temperature rendering, turning it into a light, “pink paste-like material.”

BPI negotiated unsuccessfully with USDA for months about the description of its product, but USDA would not let the company use the word “trimmings” in its label.

“It’s a distinction without a difference,” Jochum said. “It’s whether you call it meat or a meat food product. It’s beef, and that’s what it’s labeled.”

Jochum will take the stand again Tuesday morning.