THE GREAT CHICKEN FRAUD

By Michael Kramer

In a famous television commercial first aired six years ago, poultry tycoon Frank Perdue uses a competitor's frozen chicken to hammer a nail into a board. Perdue's point is simple: the law is absurd. Current rules permit poultry frozen hard as a bowling ball to be thawed at market and sold as "fresh" to an unsuspecting public. From the producer's perspective, the rationale for this fraud is easily understood. Freezing increases shelf life, and chickens labeled "fresh" command as much as $2 a pound more than birds marketed as frozen. At current consumption levels, this rip-off costs Americans nearly $1 billion annually.

If ever a consumer-fleecing outrage demanded fixing, this is it. Yet, on balance, the current congressional rush to reform government regulations is actually a business-protection act that could ultimately retard rather than support change -- and the case of "fresh" chicken illustrates the problem perfectly.

The story begins with an inane definition promulgated long ago by an Agriculture Department still too cozy with the very industries it was charged with overseeing. Despite an immutable scientific fact -- the freezing point of poultry has been 26 degrees F since the beginning of time -- the USDA said birds frozen all the way down to 0 degrees could be labeled and sold as "fresh." In 1988 Perdue complained, and some courageous USDA bureaucrats tried to right matters. From then on, they proposed, only chickens whose internal temperature had never fallen below 26 degrees could be sold as fresh. It was a valiant effort -- and it died quickly. The National Broiler Council, the poultry-industry trade association dominated by Tyson Foods, "raised all kinds of hell," recalls Lester Crawford, who ran the federal food-safety service at the time. "Given their political muscle, we reverted to the idiotic, unsupportable zero-degree rule almost instantly. Twenty-six degrees wasn't the rule even for a day."

California then enacted its own 26 degree standard, but the Broiler Council went to court and won. Federal rules, said a frustrated U.S. appeals court, pre-empt state laws. "We affirm this absurdity," the judges wrote. "Congress has given federal bureaucrats the power to order that frozen chickens be labeled fresh." The Clinton Administration promised to review the issue promptly. That pledge, as an internal USDA memo reveals, was little more than a public-relations exercise designed to cover an "embarrassing" policy that "puts the USDA in the position of being anti-consumer." A press release was issued in February 1994, and the inquiry languished. But now, with the 1996 election looming (and California's 54 electoral votes vital to Bill Clinton's prospects), the USDA has again promised a new rule. "Within a week," says a usda spokesman. "Maybe in two months," Agriculture Secretary Dan Glickman told Senator Barbara Boxer last week.

But even if the USDA finally fixes this fraud by adopting a 26 degree rule, it could be undermined in three ways:

1) Embracing the G.O.P.'s call for cost-benefit analyses in rule making, the chicken industry is carping that it will lose profits if it has to start putting frozen on defrosted poultry. "There is little or no market for poultry that cannot be labeled or marketed as 'fresh,'" the Broiler Council argued in the California case. Senator Boxer responds, "Why should eliminating a fraud be called a cost?" She nevertheless concedes that Big Chicken "may prevail even if the rule's actually promulgated, since the industry would litigate for years."

2) Led by Virginia Senator John Warner, 19 Senators from the Southeast's poultry-producing states want a "temperature variance" added to the rule. With no scientific basis for their view, the Senators -- in language lifted from a Broiler Council paper -- plead the difficulty of keeping truck temperatures constant during cross-country trips. Set the standard at 24!, they say. "In our business," explains chicken producer Robert Zacky, who sells only fresh poultry, "it's sell 'em or smell 'em.'' Dropping the temperature those two degrees would extend a frozen chicken's shelf life by two weeks, a big-bucks win for the industry.

3) The nuttiest result would take advantage of the split jurisdiction between the agencies that regulate the nation's food supply. The usda may adopt the 26 degree rule and mandate the words "previously frozen" on poultry that's reached a lower temperature, but it may still allow producers, in their brand names, to call their chicken fresh. The Food and Drug Administration, which regulates fish and most food, has outlawed such confusion. Ragu, for instance, can no longer label its reconstituted product fresh Italian pasta sauce. "I don't think we'll follow the FDA's example," says Charles Edwards, the usda's top food-ingredient assessor. So the words "previously frozen" may eventually appear on poultry packages that are still named Farm Fresh. "It's completely crazy and out of hand," says Representative Gary Condit. "What's fresh is fresh; what's frozen is frozen. What's frozen shouldn't be called fresh, period."

If the 26 degree rule is set with crippling caveats, Condit and Boxer promise a fight to stall the farm bill, which is enacted only once every five years and is up for renewal right now. Given the poultry industry's clout, their chances of victory seem slim. When the fight is over, it may still be the law that "fresh" means only that a chicken is dead.