The Supreme Court’s interpretation of the definition of MSM
The Supreme Courts definition of mechanically separated meat (1) is based on three cumulative criteria which must be read in conjunction with one another, namely:
i) The use of bones from which the intact muscles have already been detached, or of poultry carcases, to which meat remains attached, and
ii) The use of methods of mechanical separation to recover that meat, and
iii) The loss or modification of the muscle fibre structure of the meat thus recovered by reason of the use of these processes.
That definition does not make any distinction as regards the degree of loss or modification of the muscle fibre structure, with the result that any loss or modification of that structure is taken into consideration within the context of that definition.
It may be useful to consider each of the 3 criteria separately:
i) The use of bones from which the intact muscles have already been detached, or of poultry carcases, to which meat remains attached
The Supreme Court stated that the way this criterion has been formulated is significant. It is a paraphrasing of the definition of MSM in point 1.14 of Annex I of Regulation (EC) 853/2004. For animals other than poultry, this criterion is only met after the carcases have been through a process of ‘boning’, which is the initial act of removing meat from the carcase.
Regarding poultry, the court ruling upheld the Court of Justice of the European Union (CJEU) view that chicken breasts which are detached from the carcase of the animal by mechanically operated cutting do not constitute mechanically separated meat.
ii) The use of methods of mechanical separation to recover that meat
The removal of the residual meat from the bones, after the removal of the prime cuts and chicken breasts, by mechanical means is done by machines that apply pressure to the bones and residual meat rather than performing a cutting action. The level of pressure used by the machines that produce this meat differs, as does the consistency and appearance of the end product.
In terms of recital (20) of Regulation (EC) 853/2004 (2), the definition of MSM is considered to be generic enough to cover all methods of mechanical separation. This recital clarifies that consideration has been given to the possibility that new production methods may be developed.
The regulation makes no other distinction between what method of mechanical means is used to recover the meat other than the one contained in Annex III, Section V, Chapter III, already referred to. This chapter sets out the different legal requirements, in relation to hygiene that a FBO must comply with depending on the production method used.
iii) The loss or modification of the muscle fibre structure of the meat thus recovered by reason of the use of these processes.
The definition of MSM in point 1.14 only considers whether there is a loss or modification of muscle fibre structure, and not the extent of the loss or modification.
During proceedings, the term ‘cutting point’ is used to help determine if a product should be classified as MSM. It is deemed to mean the original cutting of intact muscles during the de-boning phase or the removal of chicken breasts. Therefore, meat removed from the carcase during this first phase, even if it is by mechanical means, is not considered to be MSM. Any meat recovered after these original cutting operations will generally be MSM, regardless of the extent of modification.
Therefore, wishbone trims which have been obtained during the initial cutting of the poultry carcase and are then mechanically separated from the bone, will result in MSM, as there is further loss or modification of the muscle fibre structure.
Consequently, any meat product which satisfies these three criteria must be classified as MSM.