Trump uses Defense Production Act to shield meat processing plants from COVID-19 liability

Workers process pork in a meat processing plant, May 2016. — United States Government Accountability Office

President Donald Trump signed an executive order on Tuesday evening invoking the Defense Production Act (DPA) to order all beef, pork, poultry and egg processing plants in the country to remain open and continue working.

The executive order said the recent closures of meat processing plants following outbreaks of COVID-19 “threaten the continued functioning of the national meat and poultry supply chain, undermining critical infrastructure during the national emergency.”

Three companies, Tyson, JBS and Smithfield, control approximately two-thirds of the country’s beef production, and almost as much of its pork and poultry production. The companies have temporarily closed at least 12 of their meat processing plants during the past month, as COVID-19 surges in plants where assembly-line production forces workers to typically stand shoulder-to-shoulder.

According to Bloomberg News, those closures have reduced pork processing capacity in the United States by approximately 25 percent and beef processing capacity by 10 percent.

Some food industry analysts have warned that continued closures may lead to shortages of beef, pork and chicken, or at least drive prices higher. Gov. Reynolds, who lobbied Trump to issue the executive order, has repeatedly expressed those same concerns.

“This is 100 percent a symptom of consolidation,” Christopher Leonard, author of The Meat Racket, an investigation of how a few big companies have taken over meat production in America, told Bloomberg. “We don’t have a crisis of supply right now. We have a crisis in processing. And the virus is exposing the profound fragility that comes with this kind of consolidation.”

In the European Union, where the largest 15 companies control less than one-third of meat production, there have been few disruptions to the food supply chain.

By invoking the DPA, a Korean War-era law passed to ensure the U.S. will have access to goods and materials necessary for national security, Trump’s order prevents state and local officials from either shutting down a plant to protect public health or imposing regulations that might slow production at the plants.

“No part of the joint meat processing guidance should be construed to indicate that state and local authorities may direct a meat and poultry processing facility to close, to remain closed or to operate in accordance with procedures other than those provided for in this guidance,” said a statement issued by the White House regarding the executive order.

For the most part, the companies haven’t been ordered, or even pressured, by state officials to close. The Tyson plant in Waterloo, for example, has been tied to 90 percent of the massive spike in COVID-19 cases in Black Hawk County, and for two weeks local officials asked the plant to close temporarily, but Gov. Reynolds consistently said she would not order the plant to close and was confident Tyson management was already doing everything necessary to protect workers and the community.

On April 22, Tyson announced it was temporarily closing the Waterloo plant. In a written statement, Steve Stouffer, group president of Tyson Fresh Meats, said “the combination of worker absenteeism, COVID-19 cases and community concerns has resulted in our decision to stop production.”

The workers’ absenteeism was caused by employees refusing to come to the plant, because they did feel safe or believe that the company was taking the necessary steps to protect workers.

Black Hawk County Sheriff Tony Thompson summed up the view of many in his community when he told the Des Moines Register, “I think Tyson is focused on production, period. I don’t think Tyson gives two shits about who is filling one particular spot on the production floor that day.”

Thompson made his remark after touring the plant the week before Tyson temporarily closed it.

But if there’s little threat to the large meat processors from state government, they were facing the possibility of being held civilly liable for safety failures that led to workers becoming infected, and those infections spreading through the wider community.

Trump alluded to the liability issue during a photo op several hours before he signed the executive order.

“We’re going to sign an executive order today, I believe,” Trump said. “It was a very unique circumstance because of liability.” He did not explain what he meant by that.

The executive order shields companies from legal liability through both its invocation of the NPA, requiring the plants to stay open as a matter of national security, and by overriding safety regulations other than those issued for the plants by the U.S. Labor Department and OSHA during the pandemic.

The Office of the White House General Counsel said the Trump administration will work with meat processing plants to make sure personal protective equipment is available to workers.

“The president has just undermined all efforts to stop the spread of the disease in plants,” Debbie Berkowitz, a former senior OSHA official who is an expert on meat processing plants, told the Washington Post. “He is essentially saying they must be allowed to operate and that there should be no specific requirements plants must follow to stop the spread of this disease.”

According to Berkowitz, the current outbreaks in processing plants were not inevitable.

“If OSHA had started enforcement, employers like the meatpacking industry who don’t prioritize safety voluntarily would have implemented the CDC guidance and prevented these outbreaks of death and disease in meatpacking,” Berkowitz said.

Iowa’s U.S. senators, Chuck Grassley and Joni Ernst, joined Gov. Reynolds in pushing for the president to issue the executive order forcing meat processing plants to remain open. Grassley even tweeted that allowing plants to close could lead to riots.

Reynolds was asked at her press conference on Tuesday, why she felt it was necessary for the president to use the DPA to force plants to remain open.

“This is essential, critical infrastructure,” the governor said. “It is essential to keeping the food supply chain moving. It is essential to keeping protein available to Iowans.”

Reynolds went on to say, “We have a role and an obligation from our farmers to our processors to our supply chain to continue to feed the world and keep food on the plates. And so, we have to figure out how we can do that in a responsible and safe manner.”

Rep. Abby Finkenauer, who represents Iowa’s 1st District in Congress, issued a statement after Trump said he would sign the executive order.

“We must protect our agricultural producers and food processors and keep our food supply chain strong during this unprecedented crisis,” Finkenauer said. “But nothing we do should endanger the health and wellbeing of workers who are already suffering from outbreaks and inadequate protections in the First District and across the country.”

The first-term representative added, “It must be said that we could have avoided this situation from the beginning if we had taken appropriate steps to protect our essential workers. I’ve been calling on the President for weeks to use his authority under the Defense Production Act to order the production of personal protective equipment for frontline workers. If he’s going to invoke the DPA now for food production facilities, he absolutely should do so for PPE.”

There are no accurate figures available for the number of COVID-19 cases linked to meat processing plants either in Iowa or nationwide, although even industry advocates like Gov. Reynolds admit the plants are major hotspots for the virus.

Two workers at the Tyson plant in Columbus Junction, the first plant in the state to report a COVID-19 outbreak, have died from the virus, according to company. Nationwide, at least 20 meat processing plant workers have died from COVID-19, according to the United Food and Commercial Workers International Union.

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