Federal judge rules Creekstone can test for BSE
By High Plains Journal staff
Score one for the little guy.
Creekstone Farms Premium Beef, LLC, won its lawsuit against the U.S. Department of Agriculture in the U.S. District Court for the District of Columbia. U.S. District Judge James Robertson ruled March 29 that the Arkansas City, Kan., meatpacker must be allowed to test its cattle for bovine spongiform encephalopathy, thereby opening up the chance for private industry to test cattle for BSE.
The ruling (Creekstone Farms Premium Beef, LLC v. U.S. Dept. of Agriculture, et al., Civil Action No. 06-0544) stated that the government does have authority to regulate the use of diagnostic tests in general, but that it lacks authority to prohibit the private use of BSE test kits, which are not used in the treatment of BSE, but are used on cattle that are already dead to see if they had significant levels of BSE infection. Judge Robertson noted that many other countries test large numbers of healthy-appearing cattle for BSE at slaughter and suggested that USDA's stated concerns about the conclusions consumers might draw from private BSE testing were not within USDA's statutory areas of responsibility. However, Robertson did put his order on hold until June 1 for the government to appeal.
The case history
In December 2003, the first case of BSE was discovered in the United States. Shortly thereafter, Japan and other foreign markets stopped imports of U.S. beef, resulting in a 75 percent decline in U.S. beef exports. Creekstone, a smaller packer that specializes in branded black Angus beef programs and supplies high quality beef for domestic and export markets, announced its plans to test all of its processed cattle for BSE so that it could continue to export beef to Japan. The company repeatedly stated that while it had every confidence that U.S. beef continues to be safe, it should have the opportunity to use and access to "test kits" that the U.S. Department of Agriculture uses to perform BSE testing. It argued that its customers want beef from BSE-tested cattle and it should be able to satisfy its customers. Creekstone alleged it lost up to $200,000 of revenue per day when the bans in Japan and South Korea were in effect. Even though the bans were partially lifted in 2006, and USDA argued the issue of private testing was moot, Creekstone contended that its profits continued to suffer due to consumer fears about BSE.
In 2004, Creekstone built a state-of-the-art testing facility at its Arkansas City, Kan., processing plant with guidance from specialists at Kansas State University. It also sent employees to France for training on BSE testing procedures by Bio-Rad, Inc., the company that produces the BSE rapid screening test used by USDA, Japan and other countries. When Creekstone approached Bio-Rad about purchasing test kits from the company, it was informed that USDA only permitted BSE testing as part of USDA's official surveillance program and wouldn't permit the sale of test kits to Creekstone.
When Creekstone contacted USDA for approval, USDA responded by issuing a notice that the sale and use of BSE test kits would be restricted to laboratories approved by state and USDA animal health officials and that distribution and use of the kits would have to be under the supervision of USDA.
When Creekstone, on the suggestion of a USDA official, attempted to gain designation as a satellite lab through K-State as a BSE-testing facility, their request was rejected in August 2004.
USDA's arguments
USDA's argument has been that "allowing a company to use a BSE test in a private marketing program is inconsistent with USDA's mandate to ensure effective, scientifically sound testing for significant animal diseases and maintain domestic and international confidence in U.S. cattle and beef products."
The U.S. Department of Agriculture initially ramped up its testing for BSE after the first case of the disease was found in the United States, testing about 1,000 cattle each day. However, the department cut testing by 90 percent last July, with U.S. Secretary of Agriculture Mike Johanns saying that the reduced testing should reflect a low level of the disease in the states. Current testing screens about 40,000 cattle a year and private testing was prohibited.
USDA has cited that testing only high risk cattle, as opposed to all cattle, is the most efficient method for detecting the presence of BSE. The incubation period for BSE is two to eight years and rarely do cattle younger than 30 months show sign of the disease. The earliest point at which current testing methods can detect a positive case of BSE is two to three months before an animal would exhibit external signs. With most slaughter-age cattle less than 24 months old, USDA's position has been that testing young cattle, even infected cattle, is unlikely to identify the disease, offers "no food safety value" and is "likely to produce false negative results."
The ruling
In his ruling, Robertson said he was concerned by the possibility of false negative results, but since Creekstone would be using the same test the government uses it shouldn't matter.
Robertson's ruling further rejected the government's stance that it has the authority to regulate the tests because they are used in treatment of the disease. Testing is done on the brain tissue of suspected cows, and therefore cattle must be killed before testing. Robertson said the law as it is currently written does not give authority over these tests to USDA.
The memorandum states: "...should a reviewing court determine that BSE could be detected in slaughter-age cattle, as is suggested by evidence...and the more extensive testing conducted by other countries, let it be noted that the government cannot have it both ways: The test kits cannot be both 'used for treatment' and 'worthless.' If USDA's surveillance testing helps 'manage' the disease by providing information about the prevalence of BSE and contributing to the knowledge of the disease..., then so might the more extensive testing proposed by Creekstone...."
Officials at Creekstone released a statement March 29.
"We are very pleased with the ruling handed down by the Court and we stand ready to work with the USDA," stated Dennis Buhlke, Creekstone's President and CEO, "This decision confirms the position Creekstone has taken for over three years that the USDA should not prevent businesses from responding to their customers' demands for more information about their products, such as BSE testing."
The release added that Creekstone has built, with the advice of BSE-testing experts, a state-of-the-art laboratory and is positioned to implement its stated plans for BSE testing of some or all of the cattle it processes at its Arkansas City, Kan., plant.
No other comment was given by Creekstone as of press time.
Response from industry
R-CALF USA sent an early Friday morning, March 30, press release to media outlets. Its president, Dr. Max Thornsberry, a Missouri veterinarian, stated, "in April 2004, R-CALF USA wrote to then-Agriculture Secretary Ann Veneman in support of Creekstone's request to voluntarily test for BSE because Creekstone was responding to its customers' requests--primarily from the Japanese government. Had USDA granted Creekstone's request--which obviously was a reasonable, efficient and timely solution for resuming export trade with Japan--then perhaps our Asian export markets would've agreed to accept more U.S. product. As it stands now, it appears Japan and South Korea feel uncomfortable with the agency's obstinate tactics, and the resulting situation--age limits on beef, rejections of entire shipments of beef, and difficult trade negotiations--could have been avoided altogether."
Joe Schuele, National Cattlemen's Beef Association director of Trade Media, said NCBA stands by its assertion that experts in the international animal health community know the proper testing guidelines. The ruling was handed down as NCBA was holding its Spring Legislative Conference in Washington, D.C., and as trade talks with South Korea regarding beef exports were in the final hours.
"On this issue, we look for guidance from the experts in the international animal health community and the consensus there is that 100 percent testing of all cattle is not warranted," Schuele said. "Nor is it the best way to ensure food safety."
Schuele added that 100 percent testing of all animals for BSE is unlikely to be more conducive to re-opening beef markets with Japan this late in the game.
"In years past, Japan clung to the concept of 100 percent testing longer than most countries, but even they have moved away from it now," he said. "We think 100 percent testing is unlikely to be a magic bullet for getting more product moved into Japan."
Schuele said it's unclear what the competitive implications of this decision will be, as far as other companies beginning their own 100 percent BSE testing procedures, until the final order is handed down June 1.
"I think that depends on whether this case goes any further," he said. "It is not clear whether or not USDA will appeal the decisions or if it will go any further."
For the full text of the District Court Opinion, visit https://ecf.dcd.uscourts.gov/cgi-bin/Opinions.pl?2007 and search for "Creekstone."
High Plains Journal staff reports and AP reports contributed to this article.
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By High Plains Journal staff
Score one for the little guy.
Creekstone Farms Premium Beef, LLC, won its lawsuit against the U.S. Department of Agriculture in the U.S. District Court for the District of Columbia. U.S. District Judge James Robertson ruled March 29 that the Arkansas City, Kan., meatpacker must be allowed to test its cattle for bovine spongiform encephalopathy, thereby opening up the chance for private industry to test cattle for BSE.
The ruling (Creekstone Farms Premium Beef, LLC v. U.S. Dept. of Agriculture, et al., Civil Action No. 06-0544) stated that the government does have authority to regulate the use of diagnostic tests in general, but that it lacks authority to prohibit the private use of BSE test kits, which are not used in the treatment of BSE, but are used on cattle that are already dead to see if they had significant levels of BSE infection. Judge Robertson noted that many other countries test large numbers of healthy-appearing cattle for BSE at slaughter and suggested that USDA's stated concerns about the conclusions consumers might draw from private BSE testing were not within USDA's statutory areas of responsibility. However, Robertson did put his order on hold until June 1 for the government to appeal.
The case history
In December 2003, the first case of BSE was discovered in the United States. Shortly thereafter, Japan and other foreign markets stopped imports of U.S. beef, resulting in a 75 percent decline in U.S. beef exports. Creekstone, a smaller packer that specializes in branded black Angus beef programs and supplies high quality beef for domestic and export markets, announced its plans to test all of its processed cattle for BSE so that it could continue to export beef to Japan. The company repeatedly stated that while it had every confidence that U.S. beef continues to be safe, it should have the opportunity to use and access to "test kits" that the U.S. Department of Agriculture uses to perform BSE testing. It argued that its customers want beef from BSE-tested cattle and it should be able to satisfy its customers. Creekstone alleged it lost up to $200,000 of revenue per day when the bans in Japan and South Korea were in effect. Even though the bans were partially lifted in 2006, and USDA argued the issue of private testing was moot, Creekstone contended that its profits continued to suffer due to consumer fears about BSE.
In 2004, Creekstone built a state-of-the-art testing facility at its Arkansas City, Kan., processing plant with guidance from specialists at Kansas State University. It also sent employees to France for training on BSE testing procedures by Bio-Rad, Inc., the company that produces the BSE rapid screening test used by USDA, Japan and other countries. When Creekstone approached Bio-Rad about purchasing test kits from the company, it was informed that USDA only permitted BSE testing as part of USDA's official surveillance program and wouldn't permit the sale of test kits to Creekstone.
When Creekstone contacted USDA for approval, USDA responded by issuing a notice that the sale and use of BSE test kits would be restricted to laboratories approved by state and USDA animal health officials and that distribution and use of the kits would have to be under the supervision of USDA.
When Creekstone, on the suggestion of a USDA official, attempted to gain designation as a satellite lab through K-State as a BSE-testing facility, their request was rejected in August 2004.
USDA's arguments
USDA's argument has been that "allowing a company to use a BSE test in a private marketing program is inconsistent with USDA's mandate to ensure effective, scientifically sound testing for significant animal diseases and maintain domestic and international confidence in U.S. cattle and beef products."
The U.S. Department of Agriculture initially ramped up its testing for BSE after the first case of the disease was found in the United States, testing about 1,000 cattle each day. However, the department cut testing by 90 percent last July, with U.S. Secretary of Agriculture Mike Johanns saying that the reduced testing should reflect a low level of the disease in the states. Current testing screens about 40,000 cattle a year and private testing was prohibited.
USDA has cited that testing only high risk cattle, as opposed to all cattle, is the most efficient method for detecting the presence of BSE. The incubation period for BSE is two to eight years and rarely do cattle younger than 30 months show sign of the disease. The earliest point at which current testing methods can detect a positive case of BSE is two to three months before an animal would exhibit external signs. With most slaughter-age cattle less than 24 months old, USDA's position has been that testing young cattle, even infected cattle, is unlikely to identify the disease, offers "no food safety value" and is "likely to produce false negative results."
The ruling
In his ruling, Robertson said he was concerned by the possibility of false negative results, but since Creekstone would be using the same test the government uses it shouldn't matter.
Robertson's ruling further rejected the government's stance that it has the authority to regulate the tests because they are used in treatment of the disease. Testing is done on the brain tissue of suspected cows, and therefore cattle must be killed before testing. Robertson said the law as it is currently written does not give authority over these tests to USDA.
The memorandum states: "...should a reviewing court determine that BSE could be detected in slaughter-age cattle, as is suggested by evidence...and the more extensive testing conducted by other countries, let it be noted that the government cannot have it both ways: The test kits cannot be both 'used for treatment' and 'worthless.' If USDA's surveillance testing helps 'manage' the disease by providing information about the prevalence of BSE and contributing to the knowledge of the disease..., then so might the more extensive testing proposed by Creekstone...."
Officials at Creekstone released a statement March 29.
"We are very pleased with the ruling handed down by the Court and we stand ready to work with the USDA," stated Dennis Buhlke, Creekstone's President and CEO, "This decision confirms the position Creekstone has taken for over three years that the USDA should not prevent businesses from responding to their customers' demands for more information about their products, such as BSE testing."
The release added that Creekstone has built, with the advice of BSE-testing experts, a state-of-the-art laboratory and is positioned to implement its stated plans for BSE testing of some or all of the cattle it processes at its Arkansas City, Kan., plant.
No other comment was given by Creekstone as of press time.
Response from industry
R-CALF USA sent an early Friday morning, March 30, press release to media outlets. Its president, Dr. Max Thornsberry, a Missouri veterinarian, stated, "in April 2004, R-CALF USA wrote to then-Agriculture Secretary Ann Veneman in support of Creekstone's request to voluntarily test for BSE because Creekstone was responding to its customers' requests--primarily from the Japanese government. Had USDA granted Creekstone's request--which obviously was a reasonable, efficient and timely solution for resuming export trade with Japan--then perhaps our Asian export markets would've agreed to accept more U.S. product. As it stands now, it appears Japan and South Korea feel uncomfortable with the agency's obstinate tactics, and the resulting situation--age limits on beef, rejections of entire shipments of beef, and difficult trade negotiations--could have been avoided altogether."
Joe Schuele, National Cattlemen's Beef Association director of Trade Media, said NCBA stands by its assertion that experts in the international animal health community know the proper testing guidelines. The ruling was handed down as NCBA was holding its Spring Legislative Conference in Washington, D.C., and as trade talks with South Korea regarding beef exports were in the final hours.
"On this issue, we look for guidance from the experts in the international animal health community and the consensus there is that 100 percent testing of all cattle is not warranted," Schuele said. "Nor is it the best way to ensure food safety."
Schuele added that 100 percent testing of all animals for BSE is unlikely to be more conducive to re-opening beef markets with Japan this late in the game.
"In years past, Japan clung to the concept of 100 percent testing longer than most countries, but even they have moved away from it now," he said. "We think 100 percent testing is unlikely to be a magic bullet for getting more product moved into Japan."
Schuele said it's unclear what the competitive implications of this decision will be, as far as other companies beginning their own 100 percent BSE testing procedures, until the final order is handed down June 1.
"I think that depends on whether this case goes any further," he said. "It is not clear whether or not USDA will appeal the decisions or if it will go any further."
For the full text of the District Court Opinion, visit https://ecf.dcd.uscourts.gov/cgi-bin/Opinions.pl?2007 and search for "Creekstone."
High Plains Journal staff reports and AP reports contributed to this article.
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