Beef exporters are banned from testing their cattle for mad cow disease without approval from the government, which has exclusive control on test kits, a divided federal appeals court panel said today.
A Kansas-based exporter, Creekstone Farms Premium Beef, seeking to test its cattle to minimize public fear, challenged Department of Agriculture regulations that block corporations from buying and using kits to test for mad cow disease. There is no cure and no treatment for the neurological disease. It’s 100 percent fatal.
The U.S. Court of Appeals for the D.C. Circuit, in a 2-1 opinion, upheld USDA control of the kits. Judges Karen LeCraft Henderson and Judith Rogers sided with the government; Chief Judge David Sentelle dissented.
“Any measures Creekstone can take to reassure foreign customers would be good for the economy,” says Creekstone’s attorney, Russell Frye, a solo practitioner in the District. Creekstone claims its business has suffered due to fears of mad cow disease around the world.
In South Korea, for example, thousands of protesters recently filled the streets challenging their government after it lifted a ban on beef imported from the United States. Creekstone sold beef to South Korea buyers.
The USDA says mad cow disease is not contagious from one cow to another. The first case in the United States was reported in 2003 and prompted a recall of more than 10,000 pounds of raw beef. There is a link between eating tainted beef and a rare, fatal brain disorder in humans called variant Creutzfeldt-Jakob Disease.
USDA regulation of testing kits falls under the Virus-Serum-Toxin Act, which Congress enacted in 1913. The law gives the USDA control over the sale of products intended for the “treatment” of domestic animals.
Testing an animal for a disease does not fall under the “treatment” language of the act, Frye argued. But the court held differently, noting that the law defines treatment to include the diagnosis of disease in animals.
Sentelle in dissent wrote that the USDA has given itself too much power. “I find unpersuasive the Department’s arguments that a product with no other use than the diagnosis of an untreatable and invariably fatal disease is a form of ‘treatment.’ ”
There is a two- to eight-year incubation period for mad cow disease. Because most cattle slaughtered in the United States are less than 24 months old, the most common mad cow disease test is unlikely to catch the disease, the appeals court noted. If the government does not control the tests, the USDA is worried about beef exporters unilaterally giving consumers false assurance.
Creekstone’s case is not entirely over. The appeals court remanded to the U.S. District Court to resolve whether the USDA’s refusal to let Creekstone test its cattle is arbitrary and capricious.