Tyson Foods authored draft of executive order to keep meatpacking plants open during pandemic

CHAMPAIGN, Ill. — Lawyers for Tyson Foods, one of America’s largest meatpacking companies, drafted an early version of a 2020 executive order that allowed plants to continue operating during the COVID-19 pandemic, a new congressional report based on company emails shows.

It’s been reported that the meatpacking industry wrote a draft version of President Donald Trump’s executive order, but the new congressional investigation shows that Tyson Foods — mostly in collaboration with Smithfield Foods — authored the specific language that the industry pushed to federal officials.

Similar language in Tyson’s draft would appear in the finalized executive order signed a week later.

It’s one example laid out in detail in the report that shows meatpacking CEOs petitioning their allies in the federal government to curb any safety measures that “could reduce their production and profitability.”

The report, compiled by the staff of the House Subcommittee on the Coronavirus Crisis and released May 12, reveals that the country’s largest meat companies coordinated with each other — and with political appointees at the federal agency charged with their regulation, the U.S. Department of Agriculture — to keep meatpacking plants operating at maximum capacity while thousands of workers were infected in the COVID-19 pandemic’s early months.

Meatpacking industry leaders understood the threat coronavirus posed to their employees, emails show. But rather than enforcing safety measures, such as social distancing and masking, the companies instead asked the federal government to exclude them from public health measures meant to protect employees from illness and death.

The USDA largely did as the companies asked, according to the report. In several instances where state or local officials temporarily closed down meatpacking plants due to high rates of coronavirus infections among workers, USDA leaders intervened on the companies’ behalf and pushed public health officials to reopen plants.

USDA officials led the charge to convince the White House to enact the executive order authored by Tyson.

“The shameful conduct of corporate executives pursuing profit at any cost during a crisis and government officials eager to do their bidding regardless of resulting harm to the public must never be repeated,” Subcommittee Chairman Rep. James Clyburn, D-S.C., said in a press release provided to Investigate Midwest.

In media statements, the companies named in the report defended their overall safety efforts during the pandemic, but they did not address any of the specific actions outlined in the subcommittee’s investigation.

Tyson Foods said it has worked with officials at all levels of government to navigate the pandemic’s challenges. Tyson’s fact sheet on its COVID-19 response can be read at tinyurl.com/msy3u4d4.

“This collaboration is crucial to ensuring the essential work of the U.S. food supply chain and our continued efforts to keep team members safe,” it said in a statement. “For example, last year Tyson Foods was supported by the Biden administration as we became one of the first fully vaccinated workforces in the U.S. Our efforts have also included working cooperatively and frequently with local health department officials in our plant communities.”

Smithfield Foods’ spokesman Jim Monroe said COVID-19 presented a “first-of-its-kind challenge,” and to date the company has invested “more than $900 million” supporting worker safety.

“The meat production system is a modern wonder, but it is not one that can be re-directed at the flip of a switch,” he said. “That is the challenge we faced as restaurants closed, consumption patterns changed and hogs backed-up on farms with nowhere to go. The concerns we expressed were very real and we are thankful that a true food crisis was averted and that we are starting to return to normal.”

The North American Meat Institute — the industry’s lobbying organization — said the subcommittee’s report “distorts the truth” about the industry’s effort to protect employees.

“The report ignores the rigorous and comprehensive measures companies enacted to protect employees and support their critical infrastructure workers,” NAMI’s president, Julie Ann Potts, said.

“As more became known about the spread of the virus, the meat industry spent billions of dollars to reverse the pandemic’s trajectory, protecting meat and poultry workers while keeping food on Americans’ tables and our farm economy working.”

Trump’s agricultural secretary, Sonny Perdue, who personally lobbied other government officials to keep plants open, is now the chancellor of the University System of Georgia.

In a statement, the system said, “Chancellor Perdue is focused on his new position serving the students of Georgia.”

Dulce Castañeda, co-founder of Children of Smithfield in Crete, Nebraska, a group that has advocated for meatpacking workers’ rights and protection during the pandemic, said the report is not surprising based on what she already knew about the lack of science-backed coronavirus mitigation measures in meatpacking plants.

“Drafting its own executive order was a complete overreach of the private sector in convincing government officials to put profit over people,” Castañeda said.

“The meatpacking industry disenfranchised the ability of public health departments and local governments to enforce public health measures inside plants. These companies have more than animal blood on their hands. They are also responsible for the loss of human lives as workers died on their clocks.”

Other individuals and companies denoted in this story could not immediately be reached for comment.

The report is based on more than 151,000 pages of documents collected from meatpacking companies and interest groups, as well as interviews with meatpacking workers, union representatives, former federal officials, and state and local health authorities.

The subcommittee’s investigation into meat companies’ handling of the pandemic is ongoing, as JBS is still producing documents relevant to the investigation, according to the press release.

Meatpacking workers were more likely to be exposed to the coronavirus than workers in other kinds of manufacturing jobs, primarily because employees often work shoulder-to-shoulder as they cut and package meat.

More than 400 meatpacking plant workers have died from the coronavirus, according to Investigate Midwest tracking. There have been at least 86,000 positive cases.

‘Potentially Explosive’ Executive Order

Tyson Foods and Smithfield Foods initiated the push for an executive order to keep plants operating, the emails the subcommittee obtained show. The industry’s lobbying group, NAMI, executed the plan.

On April 9, 2020, South Dakota officials temporarily shuttered a Smithfield Foods plant in Sioux Falls after hundreds of workers had tested positive for COVID-19.

Two days later, Smithfield CEO Ken Sullivan reached out to his counterpart at Tyson Foods, Noel White, with an idea — an executive order that would prevent authorities from shutting down meatpacking plants.

The next day, Sullivan shared the idea with even more CEOs of other major meatpacking companies, including National Beef, JBS and Cargill.

He called for “a Presidential Executive Order, invoking the Defense Production Act as a mechanism to manage public perception and state/local interdiction,” he wrote in an email.

The following day, Tyson produced a draft executive order that would shield companies from closure and also protect them from potential lawsuits by infected workers or their families.

Not everyone in the industry was on board with the idea of an executive order, however.

Johnsonville CEO Nick Meriggioli supported liability protection for meat companies but pushed back on Tyson and Smithfield’s approach in an email to Potts, NAMI’s president.

“Perhaps the intent should be to get federal assistance to gain priority on PPE and testing supplies,” Meriggioli wrote. “I am concerned that it could become a social/public relations nightmare if we are too aggressive in asking for an EO to make us off limits. If not handled right, it could come across as all the industry is interested in is ‘production at any cost.’”

The American Farm Bureau Federation also disapproved of the executive order, writing “the perception that there is a balance to be struck between worker safety/health and productivity is potentially explosive.”

After receiving pushback from the Farm Bureau, Potts told the CEOs of Tyson, Smithfield, JBS, Cargill, National Beef, Hormel, Seaboard and Clemens that they would “back-channel” the request for an executive order with Sonny Perdue, the Trump-appointed secretary of agriculture.

Perdue “has made his desires known on this topic to AFBF,” Potts wrote.

Instead, on April 18, 2020, NAMI signed onto a Farm Bureau-approved formal letter to President Trump asking that he allow food companies to operate “without undue disruption,” with no mention of an executive order.

But behind the scenes, lobbyists engaged with federal officials about the possibility of enacting an order.

According to the report, “Smithfield and Tyson were initially reluctant to drop the public ask for an executive order, but ultimately did in the interest of time.”

A day after sending the scaled-back letter, White, Tyson’s CEO, appeared impatient with the lack of movement. He emailed Potts and suggested an agency other than USDA might be more effective in enacting the order.

“As of my conversations with USDA this afternoon, they still think they are on it … and in better shape with POTUS than other agencies. I have said we have to see some results!”' Potts replied.

As previously reported, NAMI provided the draft version of the executive order to the USDA, which then passed it to the White House. The draft version NAMI provided to the USDA has the exact same language as the version Tyson lawyers wrote up.

Trump signed the order a week later, on April 28, 2020, after several calls among White House, USDA and meatpacking leaders.

As USDA officials suspected, the order didn’t explicitly prohibit plant closures. But it did give the federal government ammunition to intimidate public health officials who wanted to impose temporary closures.

After the executive order was issued, a national Farm Bureau official asked Little whether the executive order shielded meat companies from potential coronavirus-related lawsuits.

“It is subtle, but it does. … We are avoiding mentioning it at all costs. It is a terrible fact, but it is what it is,” Little replied.

Based on that exchange, the report’s authors wrote that the meat industry recognized “the optics of lobbying against measures intended to protect workers from a lethal virus while simultaneously seeking insulation from liability for ensuing worker illnesses and death.”

Potts said the report “has done the nation a disservice.”

“The committee could have tried to learn what the industry did to stop the spread of COVID among meat and poultry workers, reducing positive cases associated with the industry while cases were surging across the country,” she said.

“Instead, the committee uses 20/20 hindsight and cherry picks data to support a narrative that is completely unrepresentative of the early days of an unprecedented national emergency.”

Cargill said worker safety is its No. 1 priority.

“Throughout the pandemic we’ve worked hard to maintain safe and consistent operations. At the same time, we have not hesitated to temporarily idle or reduce capacity at processing plants when we determined it necessary to do so,” its statement reads. “The well-being of our plant employees is integral to our business and to the continuity of the food supply chain.”

The ‘Industry’s Go-To Fixer’

When meat company CEOs wanted the USDA to help them out, they knew who to call.

Mindy Brashears, the former under secretary of agriculture for food safety and head of the Food Safety and Inspection Service, was the top food safety official in the United States when the pandemic began.

While inspectors employed by her division — many of whom worked in meatpacking plants — risked contracting coronavirus on the job, Brashears helped meat companies skirt coronavirus mitigation measures.

The report details how Brashears, often referred to by just her first name in meatpacking CEOs’ emails, became the industry’s key ally within the federal government. The report calls her the “industry’s go-to fixer.”

On March 13, 2020, when the Trump administration was putting together its White House Task Force on coronavirus, a meatpacking lobbyist told Brashears on the phone that the industry “would certainly like (Brashears) to be involved in any discussion regarding meat.”

Brashears agreed and promised to find a way to be more involved. She often handed out her personal cell phone number and email address to meat companies, according to the emails the subcommittee obtained.

In more than one instance, companies sent “official” communication to Brashears’ work email and “presentations” to her personal email.

Brashears’ work email is subject to public records laws. Her personal email is not.

It would be a violation of federal law for Brashears to use her personal email to conduct government business, unless she copied her work email or forwarded the relevant emails to her work email address within 20 days, according to the report.

“The Select Subcommittee has not obtained evidence that she did so,” the report states.

NAMI also obtained advance copies of internal FSIS and USDA documents from “a friend” working at the USDA, though the report does not specify which USDA employee leaked the confidential documents.

Also, when USDA political appointees intervened in the decisions of local health authorities to temporarily close meatpacking plants with large coronavirus outbreaks, career staff were “sidelined,” the report states.

Current USDA officials and staff told the congressional subcommittee that Brashears and other political appointees left “no paper trail” of their interactions with state and local health authorities.

Many of these meetings did not appear on the agency’s public calendar, according to the report.

‘Pesky Health Departments’

Brashears also played a key role in convincing local health departments that they didn’t have the authority to close down meatpacking plants where large outbreaks occurred.

One industry lobbyist told a meatpacking executive that she “hasn’t lost a battle for us.”

Between March and May 2020, 42 states and territories issued stay-at-home orders. Meatpacking companies, worried that the stay-at-home orders would keep their employees home, urged USDA officials to take action.

The USDA raised the industry’s concerns all the way to Vice President Mike Pence. The Department of Homeland Security ultimately designated meatpacking workers as “critical infrastructure” employees, exempting them from stay-at-home orders and social distancing requirements.

This occurred before the industry had taken steps to address outbreaks among its employees, the report states.

“Email correspondence related to the meatpacking industry’s push to be designated as ‘critical infrastructure’ makes virtually no mention of the health risks to the meatpacking employees being forced to work,” the report states.

For example, in May 2020, Koch Foods’ chief operating officer, Mark Kaminsky, emailed National Chicken Council lobbyists to say he thought the only worker safety measure that plants should take was screening for high temperatures.

Chicken Council vice president and lobbyist Ashley Peterson agreed, then said, “Now to get rid of those pesky health departments!”

Without addressing Peterson’s comments, National Chicken Council president Mike Brown thanked the industry’s front line workers in a statement.

He said he regrets the “report failed to shine light on the momentous efforts between industry, government and state and local health officials to keep employees safe and to keep Americans fed during one of the most challenging and uncertain times in our nation’s history.”

Political appointees from the USDA, Centers for Disease Control and Prevention and the White House called local health departments on several occasions, claiming that the executive order blocked local authorities from closing meatpacking plants, no matter how severe the outbreak was.

By May 2020, companies and USDA political appointees were “regularly” intervening, the report states.

Some examples of federal interference in local public health decisions took place at Rochelle Foods in Rochelle, Illinois; JBS in Greeley, Colorado; Tyson Foods in Center, Texas; and Foster Farms in Livingston, California.

The health director in Rochelle said his understanding from meeting with Trump administration officials was he couldn’t shut the plant down over safety concerns.

The experience was echoed in what Merced County Department of Public Health officials told the subcommittee.

When the Merced County health officials issued a temporary closure order for a Foster Farms plant in California, executives reached out directly to Brashears. She, in turn, called the local health department.

Local health officials told the subcommittee they left the call with the understanding that closure was not an option and that they would need to find a solution to the coronavirus outbreak that wouldn’t involve a decrease in production at the plant.

The health department ultimately succeeded in enforcing a temporary closure, but it compromised with the USDA by giving the company a 48-hour notice, the report said.

Ultimately, at least 392 Foster Farms employees contracted coronavirus and eight died.

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