Today a divided U.S. Court of Appeals for the D.C. Circuit held in Creekstone Farms Premium Beef v. USDA that the USDA may prohibit Creekstone Farms from testing its cows for bovine spongiform encephalopathy (BSE), aka "mad cow disease" with the so-called "rapid" BSE test. At issue was whether the Virus-Serum-Toxin Act (VSTA) authorized the USDA to prohibit Creekstone's use of the test. Judges Henderson and Rogers said "yes." Chief Judge Sentelle, dissenting, said "no." I am inclined to think Sentelle is correct.
The majority accepted the USDA's argument that VSTA, which covers "any . . . virus, serum, toxin, or analogous product" used for "treatment" of animals can be stretched to cover BSE test kits. It further argued that USDA's authority to "prevent the preparation, sale, barter, exchange, or shipment" of such items includes the authority to ban the use of the tests as well. I find neither persuasive. While there may be a good argument that the USDA should have such authority, that's not what VSTA does.
In his dissent, Sentelle stressed these points, but also highlighted the problem of allowing an agency to stretch the scope of its own regulatory authority. As Sentelle explained, "congressional provision of an expressed authority mandate to accomplish statutory goals does not create for the agency ‘a roving commission’ to achieve those or ‘any other laudable goal,' . . . by means beyond the authority granted in the statute." Agencies are constrained to the jurisdiction conferred upon them by Congress, and courts should not lightly defer to agency claims that they can construe the scope of their own power (as Nathan Sales and I argue here).
It is worth noting Creekstone did not maintain that such testing was necessary to ensure the safety of its beef. It was undisputed that the test they sought to use was very unlikely to detect the presence of BSE given the age of the cows at slaughter. Rather, Creekstone sought to test its beef so that it could export its meat to Japan and Korea, which have limited U.S. beef imports due to BSE fears. Again from the Sentelle dissent:
It seems that the Department’s fear is that Creekstone’s use of the test kits would enable it to provide buyers with a false assurance that the cattle from which its beef is obtained are free of Bovine Spongiform Encephalopathy. However, as I read the record, all Creekstone hopes to do is assure foreign buyers that the beef is as well-tested as would be the case with beef produced in the home countries of those buyers.To this I would add that I believe the USDA has adequate authority to prevent Creekstone and other producers from making false claims about the relative safety of their products vis-a-vis their competitors. So even if the USDA was justified in worrying that Creekstone would make false claims that their meat was somehow "safer" than others, there are other ways to address this concern.
Related Posts (on one page):
- Was Creekstone Really about Speech?
- Creekstone Farms v. USDA:
Also, does anyone know the sensitivity (ability to detect BSE infected beef) and specificity (certainty that no beef that wasn't infected was identified as being affected)?
Putting aside the legal argument as to whether VISTA does or does not pertain, is it a good or bad thing for USDA to have the power to block the use of these test kits? Scientifically, economically, or otherwise good policy?
From the synopsis here: an appellate court has ruled that the USDA may use a power that hasn't been legislatively authorized, to forbid a cattleman to use a test that may or may not work, to detect a disease that is not currently tested, to meet a test standard required by a foreign country for sales there. All this is because the USDA fears the cattleman might make false claims about his product based on the test, although he never has, and does not maintain such testing is necessary for safety.
Right away it makes me wonder what unauthorized power a government agency cannot exercise to solve a nonexistent and entirely speculative problem of which it has absolutely no evidence.
A nice example of how the freest market is also the least regulated, and how liberal Obamites' paeans to 'regulated capitalism' are just corrupt and warmed-over socialism.
Yeah, this almost seems like a prior restraint case in disguise as an administrative law case.
You correctly describe this rule as protectionism. However, I can assure you that the Obamamites formulating the next administration's regulatory policy are quite aware of the potential of a given industry's capture of its regulators. This is just one reason, for example, that Obama has pledged open, televised meetings on all health care reform action his administration takes (if you recall, this emphatically did *not* happen with Hillary Clinton's task force in 1993, and her resulting plan was an insurance and health care industry grab bag). Whatever you may think about socialism or laissez-faire capitalism, regulatory capture is not really a feature of either of those extreme (and never practiced) systems, but rather is endemic to most modern liberal democracies, which all have some kind of regulatory state.
There was a recent study done (Perdue maybe? not sure) in which patients who had been listed as dying of Alzheimers were actually autopsied. 17% of them had succumed to vCJD, NOT Alzheimers. There are currently something like 2 million people diagnosed with Alzheimers in this country. I think that rounds out to around 34,000 with vCJD if you extrapolated that 17%. Even at 10%, lots of people with vCJD going undiagnosed. And it will continue to be covered up.....think of the economy.
Makes you want to run out and get a cheeseburger, eh??
Some technical information that may be helpful to you.
Creekstone kills young cattle (below thirty months). Cattle this young have never shown any evidence of prions or the prion related lesions on the brain. Creekstones reason for testing is dealing with non-tariff trade barriers that Japan has put in place. It has nothing to do with human health or risk of contracting BSE.
The 2% USDA testing is focused on the older cattle with neurological symptoms that are associated with BSE infections. Since feeding of rendered ruminant proteins was banned in 1997 the number of cattle that could be potentially infected with BSE drops every year.
The far greater risks to human health in the food supply are bacterial contamination of food as the
tomatopepper outbreak illustrates.A good source of information on BSE is
Welcome to BSEInfo.org
The business of conditional approval of licenses as a way of extending the scope of regulation has gotten ridiculously out of hand too.
But it's not as if these are power grabs of administrative authority at the expense of unwilling legislatures. The legislators like being able to duck responsibility this way.
The instant case is the story it's been for years -- USDA leveling the field by keeping anyone from trying to raise themselves the slightest bit. All meat must be inferred as safe because they're doing their job, and they must be inferred as doing their job because all meat is safe, and it's misleading for anyone else to express any opinion on the subject.
And speaking of that, Mr. Goodman, you are absolutely correct in the "level" playing field. The economy will take care of itself? Only when government stops subsidizing the biggest farms in the country to the tune of millions would it truly be a "level" playing field.
There are many small producers who have an ethical operation, humanely raise their cattle, and provide a good product to the consumer. Unfortunately, they don't have any clout in Washington, where only the extremely wealthy with the biggest lobbyists actually have any say in the workings of government. As far as your source of info, I haven't looked into it, though I will, I'm only assuming it is propaganda generated to make the consumer feel safe and keep eating beef. BTW, were you aware that even though the feeding of ruminants to cattle was banned, they can still feed them other animals? What do you think big cities do with all their dogs, cats, ferrets, etc that end up euthanized in shelters? Think about Fido and Tabby next time you bite into a big, juicy cheeseburger.
Don't know if you noticed it, but the website you're relying on for you "fair and balanced" reporting of BSE is funded by the Beef Checkoff. Not sure if you know what that is, cattle producers put so much money into a fund for advertising and other media propaganda to make the consumer feel comfortable with their product. It is pure marketing. As I said, eat all the cheeseburgers you want with your faith in the USDA, but you might want to check the "sources" you cite as being good ones....
Do you have any technical resources or cites that contradict the information at the link I provided?
Welcome to BSEInfo.org
Since you are reduced to attacking the organizers of the site and not the information I assume the answer is no.
You raise some good points outside of the legal issues in this case.
Your points in blockquotes
The issues is complicated because the testing issue is being used as a non-tariff trade barrier against US beef. There is not a scintilla of evidence that performing bse test in young cattle does anything to improve food safety.
Producers (of all sizes) and consumers benefit when international trade policy is based on science. Because as soon as exporters respond to one pseudo science based trade barrier, other nonsensical barriers will follow.
Consumer safety is optimized by having food producers concentrate their efforts in areas that have the greatest potential to harm the consumer. Bluntly, testing young cattle for bse does nothing to improve food safety.
Furthermore, resources deployed in an area that is not a problem (bse in young cattle in the US) diverts resources from areas that are a realistic source of risk to consumers and increases the chances of damage to the consumer.
On a first glance basis bse and vCJD are very disturbing and concerning. This is because it is novel disease that has bad consequences. Humans rate novel risks very highly even if the chance of that risk impacting an individual is vanishingly small.
However, statistically, and scientifically bse is not a risk in US cattle. Again, consumer safety and food producer interests are best aligned when resources are focused on dealing with real risks to food safety and bse in young cattle is not one of those risks.
The legal issues in the case are complicated. However, there is no doubt that the tendency of all regulatory agencies to stretch regulation into areas they were not designed to cover is not wise.
The Supreme Court today asserted the USDA is within it's authority in banning the use of these kits. The unfair advantage that abortion-free meat would have in the market by niche producers and the additional cost the major producers would incur in abiding by an abortion free meat industry would .....
THE EPA, the USDA, etc continue to persue political not safety issues. What other safety testing is the governement impeding?