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'Fresh' Chicken Label Law Ruled Invalid : Poultry: U.S. judge says federal agricultural regulations overrule California legislation. USDA reviews its policy.

April 13, 1994|DENISE GELLENE | TIMES STAFF WRITER

A federal judge has struck down a California law that would have prevented the sale of fresh, Southern-grown chicken in the state.

U.S. District Judge David Levi in Sacramento said a state law limiting use of the word "fresh" on poultry labels is preempted by federal agricultural regulations. The ruling was a victory for Southern chicken processors who stood to lose millions in fresh chicken sales under the California law.

"This decision means consumers will continue to have a choice . . . brought to them through fair competition by all those in the industry," according to George Watts, president of the National Broiler Council, the plaintiff in the suit.

However, the ruling may not end the fresh chicken scrap, pitting giant Southern companies such as Tyson and Conagra against California processors Foster Farms and Zacky Farms.

The U.S. Department of Agriculture is reviewing its freshness regulations to determine whether changes are needed. The author of the California law, Sen. Dan McCorquodale (D-Modesto) said he would push for revised legislation.

Deputy Atty. Gen. Randy Christison, representing the California Department of Food and Agriculture, the defendant in the lawsuit, said the state would probably appeal Levi's decision, which was handed down Friday. The law has not been enforced, pending outcome of the lawsuit.

"We don't appeal cases lightly, but it looks to me like we'll be taking this one" to a higher court, he said.

The California law prohibited poultry from being sold as fresh if it had ever been frozen to an internal temperature of 25 degrees, or held at 25 degrees for over 24 hours. The law had been sponsored by the California Poultry Federation, which described it as a truth-in-labeling measure.

The federation, an industry association dominated by Foster Farms and Zacky Farms, said chicken was being shipped into the state in "rock hard" condition at temperatures under 25 degrees.

But Southern chicken processors said the law was an attempt to freeze them out of the market, since chicken shipped long distances must be held close to 25 degrees to prevent spoilage. In the poultry industry, the word "fresh" is an important marketing tool, as most consumers demand fresh, not frozen, chicken.

The law was enacted amid a decline in sales of California-grown chicken. With the state's economy on the ropes, consumers had been snapping up inexpensive chicken from Texas, Louisiana and Arkansas, abandoning old loyalties to premium-priced, California-grown chicken. Today, home-grown chicken accounts for slightly more than a third of the $2.5-billion California market, down from nearly half nine years ago.

In his 19-page decision, Levi noted that a provision of the federal Poultry Products Inspection Act prohibits states from imposing poultry labeling requirements differing from federal standards. He said a 1989 USDA policy memo permits processors to label poultry fresh when it is stored below 40 degrees and has never been frozen.

The judge also invalidated other parts of the law restricting the use of the word "fresh" in poultry advertising and marketing.

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