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On August 29th, the U.S. Federal Appeals Court in Washington, D.C. ruled against an appeal by Creekstone Farms to allow the farm to test slaughtered cattle for Bovine Spongiform Encephalitis (BSE or Mad Cow disease). Human consumption of meat infected with BSE materials is the most likely cause of the rare but invariably fatal new variant Creutzfeld-Jacob Disease. The most likely cause of BSE is the feeding of cattle or other ruminants' remnants to cattle.

Creekstone proposed to test all its slaughtered cattle as demanded by its Japanese customers, who have indicated they would be happy to pay the test's ten cents a pound cost. Creekstone would use the same testing kit employed by the U.S. Department of Agriculture, which opposed Creekstone's appeal. IATP has written occasionally about Mad Cow over the last decade, particularly regarding the failure of U.S. government agencies to enforce rules to prevent BSE and the U.S. government rationale for testing a far smaller percentage of cattle for BSE than in other countries. IATP also has joined a friend of the court brief to require greater safety enforcement from the USDA.

In the case decided last week, the USDA argued that the Virus Serum Toxin Act (VSTA) of 1913 authorized the agency to prohibit private testing of BSE on the grounds that the test was one of the "analogous products" referred to in the Act. Former IATP intern Gregory Berlowitz disputed USDA's interpretation of the VSTA in a 2006 University of Illinois Law Review article. While agreeing with Creekstone that the VSTA language did not apply to the BSE test kit as "worthless, contaminated, dangerous or harmful," the Court nevertheless deferred to USDA's regulatory authority over BSE, sustaining USDA's contention that the post-mortem test was an animal "treatment" analogous to that of a serum. IATP has only scanned the Court's ruling but believes that there are grounds for Creekstone to appeal to the U.S. Supreme Court. As Chief Judge Sentelle's dissent suggested, there is plenty of reason for Creekstone to test whether the USDA's assertion of regulatory authority is "arbitrary and capricious."

We will analyze this ruling in greater detail, but for now, the protection of U.S. consumers with regards to mad cow disease rests on faith and hope. We hope that the General Accountability Office was wrong when it criticized the Food and Drug Administration's enforcement of feed formulation rules to prevent BSE. We hope that the USDA's Inspector General exagerrated in documenting USDA's failure to enforce slaughtering and processing regulations to prevent BSE. We likewise hope that USDA's main "scientific" justification for not testing for BSE, a Harvard University Center for Risk Analysis study, was not as riddled with error and dubious assumptions, as critics like Consumers Union maintain. We hope that USDA's argument to the Court that universal testing would be "meaningless" because of BSE's long incubation period is valid, while wondering why USDA's "targeted sampling" tests are meaningful, when the Harvard risk analysis provides weak targeting rationale. Finally, we hope that McDonald's warning to its suppliers to follow the company's more stringent feed formulation and slaughter requirements or lose their supply contracts had the desired effect of securing the compliance that FDA and USDA could not.

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