Court: Beef Exporters Can't Test for Mad Cow Disease

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.

Comments

[Kathleen in NYS]

The USDA is worried about "giving consumers false assurance". Yeah, right Mr. USDA and George Bush Dick Cheney. And I got a bridge in Alaska to sell ya too.

That aside, BLT, I am wondering where your source is for that short incubation period...I have read up to 30 years and the GAO reports are very useful to read and you can easily read them online. And I am also wondering about your source for that "fact" being widely reported that most cattle slaughtered are under 24 months of age. Spent dairy cattle are in the 36 month range to the best of my knowledge and my best friends husband is a dairy farmer, so... Just be careful repeating something that might be inaccurate please.

Hope that US District Court looks at this issue with out political influence. Factory Farming is killing us the way cigarettes used to. Heart Disease, colon cancer, high blood pressure, ED, etc. Read The China Study, everyone! Might save you from Tim Russert's fate, among millions of others taking prescription drugs while eating gobs of cholesterol. Yuck. Plants contain zero cholesterol--even nuts and seeds--zero cholesterol.

[Matthew]

Truely man is the king of beasts, for his brutality exceeds theirs. We live by the death of others: we are burial places! I have from an early age abjured the use of meat, and the time will come when men such as I will look on the murder of animals as they now look on the murder of men.

~Leonardo da Vinci

[John Doe]

Great article, I wuld like to see more details of which companies are pushing for no tests, the dirt on those two other judges, and the aftermath of case not being entirely over.

Keep up the godo work.

[Sandy Jarvlet]

Before we get too worked up about Mad Cow again, let's remember a joke and keep our lives happy and light:

So a husband and wife decide to dine out at good steak house. The waitress comes to take their order and the husband says, "I'll have the 32 oz T-bone."

The waitress glances up from writing his order down and asks, "Sir, are you sure?"

He replies, "Yep."

The waitress then says, "What about the mad cow?"

The husband, focused on placing his napkin on his lap, without hesitation and says, "Oh, she'll just have a salad."

:-)

http://cackl.com/joke/view/589/Ordering+a+Nice+Big+Steak+Post+Mad+Cow

[Carl Mundi]

So let me get this straight. The USDA, an agency of the Federal government charged with broad responsibility for the public health -- is arguably placing corporate interests above those of the beef-consuming American people? Splendid. Fire up the grill...

[Marybeth Wuerthner]

Does it make a lot of sense to ban mad cow testing?

While corporate profits look the other way, to avoid public safety?

Shame on anyone banning testing, which U.S. cows are infected with mad cow disease. Had the meat industry took responsibility first and foremost, we wouldn't have had this issue today.