What’s the difference between hamburger and ‘hamburger’?

As more publications poked into the story, it didn’t get all that much clearer. It is true that heart meat is officially defined as meat in the Federal Code of Regulations, Title 9, Chapter III, Subchapter A, part 301, which defines meat as: “The part of the muscle of any cattle, sheep, swine, or goats which is skeletal or which is found in the tongue, diaphragm, heart, or esophagus, with or without the accompanying and overlying fat, and the portions of bone (in bone-in product such as T-bone or porterhouse steak), skin, sinew, nerve, and blood vessels which normally accompany the muscle tissue and that are not separated from it in the process of dressing.” Muscle from lips, snout, or ears is specifically excluded.

That said, USDA has long treated certain kinds of meat, especially the heart, tongue, and cheeks, differently, putting limits on how much of them can be included in specific products or requiring additional labeling. (For example, only 25 percent of the beef in a can of chili con carne can consist of head meat, cheek meat, or heart meat.)

In 1981, however, a USDA administrator named Robert Hibbert wrote Policy Memo 27, which announced, “Heart meat and tongue meat, as organ meats, are not acceptable ingredients in chopped beef, ground beef or hamburger.” His rationale: “Historically organ meats such as heart meat and tongue meat have not been permitted as ingredients in chopped beef, ground beef or hamburger. Heart meat and tongue meat have never been considered as beef or permitted to be declared as beef on labels and are not expected ingredients in chopped beef, ground beef or hamburger.”

Which is where things stood until last July, when the Food Safety and Inspection Service’s (FSIS) Ask FSIS website answered a user’s question about burger by stating, “Beef heart meat is cardiac muscle trimmed from the ventricular wall of a beef heart. It is included in the definition of meat in 9 CFR 301.2 and there is no limitation on the use of beef heart meat in the standards of identity for chopped beef, ground beef, or hamburger. Therefore, beef heart meat can be used in unlimited quantities and declared as ‘beef’ on the label.” It went on to say that Policy Memo 27 was out of compliance and would be revised or rescinded.

No change, you see. Just a clarification.

So to summarize: Nothing happened last week, it happened six months ago. But it didn’t happen then, either. In fact, nothing happened at all.

Which is good news, because if something had happened, a whole lot of consumers would be getting riled up about heart in their hamburger, and processors would be wondering how to communicate that they would never put heart in their products. (It’s tricky. What are you going to do, take out ads that read, “We’re heartless”?)

But since nothing like that happened, we can pause and ask the obvious question: What does USDA allow in burgers?

OK, I probably don’t want to know either, but there’s something mesmerizing about reading through the Standard of Identity regulations, where the Food and Drug Administration (FDA) explains exactly what various product terms do and don’t mean. Where else can you learn that a Greek sausage has to contain orange peel, or that meat that’s described as fresh can never have been frozen, but a stew, for instance, can be described as fresh even if it’s made from ingredients that once were frozen? Or that spaghetti sauce with meat has to contain at least 6 percent meat, while spaghetti with meatballs and sauce has to contain 12 percent? I’m especially taken with the revised rules on pizzas, which came out a few years ago.

So what do the rules say about ground beef? Actually, under the regs, there are at least three different kinds of burger.

First there’s “ground beef” (also called “chopped beef”) which “shall consist of chopped fresh and/or frozen beef with or without seasoning and without the addition of beef fat as such, shall not contain more than 30 percent fat, and shall not contain added water, phosphates, binders, or extenders.” No more than 25 percent of the product can consist of beef cheeks, and if the cheek percentage is above about 2 percent, it has to be mentioned specifically on the label.

“Hamburger” is roughly the same thing, but added fat is permitted.

Finally, “beef patties,” in addition to fat, can add binders, “mechanically separated beef” (which is the product of a process for scraping bones clean) and “partially defatted beef fatty tissue” (think “pink slime”), as well as water to make things easier to handle. Note that you can form hamburger or ground beef into patties, too. Beef patties are different.

Oh, and heart. You’ve gotta have heart.

I admire Talmudic subtlety as much as the next guy, but faced with distinctions like this, I have to ask: Who is this for? If the point is to make sure that consumers can readily tell what they’re buying without reading the details on the label, it hasn’t a chance of working. And if not, what’s the point?

You often hear of “regulatory capture”—the idea that over time, regulated industries come to take over the folks who are supposed to keep them in check. It always sounds creepy and malicious, and sometimes it is. But in the burger rules, we see something much more common. The industry and USDA here look less like opponents fighting for each scrap of advantage. They look like an old couple who have been together for so long that they speak a private language opaque to anyone but themselves. That may be great for a marriage, but it’s no way to provide consumers with clear, usable information about what they’re buying.

I’m not enthusiastic about President Trump’s undifferentiated attack on regulation. I’ve seen too many fat foxes and empty hen houses over the years. But it’s hard to justify a system that spends enormous efforts and vast sums to create a secret language that leaves consumers mostly in the dark. My vote: Let’s defend regulation, but if we’re going to be serious about it, that means fighting against regulation that doesn’t actually work.