The National Chicken Council had to wait for 5 and a half years to learn that USDA’s Food Safety and Inspection Service had denied a request about using surplus broiler eggs.

The NCC petitioned FSIS on May 8, 2018, requesting that the USDA agency coordinate with the U.S. Food and Drug Administration to exercise enforcement discretion to allow surplus broiler eggs to be processed into egg products under FSIS jurisdiction. 

Specifically, the NCC wanted  FSIS and FDA to work together to exempt surplus broiler hatching eggs intended for breaking from the refrigeration requirements and instead rely on FSIS’ egg products regulations to control for Salmonella.

The NCC explained the problem: “Historically, the broiler industry sent surplus hatching eggs for processing at egg-breaking plants (but not into the table egg market), wher 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.

“Since the rule took effect, the broiler industry has been forced to discard surplus eggs instead of sending them to breakers, costing the broiler industry more than $25 million yearly and unnecessarily keeping billions of eggs out of the egg-breaking market.”

The NCC petition said that enforcement discretion is needed because of constraints on the egg supply and high prices caused by the highly pathogenic avian influenza (HPAI) outbreak and rising prices for consumer goods.

The NCC petition further stated that the requested action would “relieve pressure on the egg supply” without compromising consumer safety.  

For its part, the 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 Nov. 3, 2023, the FSIS also denied the NCC petition. The FSIS said its authority to regulate egg products comes from the Egg Products Inspection Act. The EPIA directs the Secretary of Agriculture to maintain an inspection program to assure consumers that egg products are safe, wholesome, not adulterated, and properly labeled. 

FDA’s authority is under the Federal Food, Drug, and Cosmetic Act (FFDCA),  which protects the public health by ensuring the safety of the United States’ food supply, other than meat, poultry, and egg products. 

Under the FFDCA, the FDA has the authority to regulate shell eggs. Because of this, FSIS must defer to the FDA in requests regarding the use of shell eggs.

The dual jurisdiction of eggs is often used as an example of how a single agency could improve food safety.