Creekstone Farms v. USDA:

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):

  1. Was Creekstone Really about Speech?
  2. Creekstone Farms v. USDA:
Does anyone happen to know the details of the rapid BSE test they would employ, particularly how long it takes to do and how difficult it is to run? If the test didn't take too long and wasn't too difficult, cumbersome, or otherwise problematic to perform, might Creekstone be able to do the testing in the course of a trans-Pacific ship crossing? (I assume meat is transported on ships, not planes.) The USDA's reach wouldn't extend to beef or any other product once it was outside our borders and headed to another country, would it?

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?
8.29.2008 7:25pm
I usually read the cases linked before commenting. Honest. But this time I'm making an exception. Here's why.

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.
8.29.2008 8:04pm
The quick test takes 8hrs. The other tests take up to a week or 36 Months!
8.29.2008 8:58pm
mad the swine (mail):
This is protectionism at its most basic. If Creekstone provides this additional testing, it'll have a competitive advantage (access to Japanese and Korean markets) over other beef producers who don't want to do the testing; these other beef producers have more influence with the USDA; voila, a stupid and obnoxious government policy.

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.
8.29.2008 11:20pm
Bill Poser (mail) (www):
When I first heard of this case, I wondered whether Creekstone didn't have a First Amendment argument since USDA's action is for the sole purpose of preventing lawful expression.
8.30.2008 1:28am
An obamite (mail):
to "mad the swine" -- you fool, this is the *Bush* Administration USDA pushing this ridiculous policy. And *nobody* would argue that *every* regulated market functions better than it would unregulated -- the key is the *nature* of the regulation. The regulation here that the Bush USDA has imposed is manifestly absurd and geared to benefit the bigger meat producers who contribute heavily to the GOP.
8.30.2008 8:09pm
Thales (mail) (www):
"When I first heard of this case, I wondered whether Creekstone didn't have a First Amendment argument since USDA's action is for the sole purpose of preventing lawful expression."

Yeah, this almost seems like a prior restraint case in disguise as an administrative law case.
8.30.2008 8:36pm
Thales (mail) (www):
Mad the Swine:

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.
8.30.2008 9:22pm
bush8r (mail):
Has it occurred to anyone that the USDA does not want the entire herd of cattle tested because of the obvious possibility that many more cows ARE actually infected with BSE? Currently, we test 2% of slaughtered cattle for BSE. Yes, 2%. If Creekstone is allowed to test the entire herd, the numbers may be extrapolated to the entire u.s. cattle herd and then the American people will actually know how rampant BSE actually is. How naive are consumers in this country? You can't honestly believe the USDA (or any other government agency for that matter)has your best interests at heart? Remember what they said in the U.K. when they first discovered vCJD? "Think of the economy" when the grandmother of the first victim prepared to alert the press.
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??
8.31.2008 12:38am
TJIT (mail):

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 tomato pepper outbreak illustrates.

A good source of information on BSE is

Welcome to
8.31.2008 1:18am
Bob Goodman (mail) (www):
Amazing how everywhere except that one place in the statute, "treatment", "diagnosis", and "prevention" have distinct meanings. Congress could sure have saved a lot of ink in the FFDCA, for instance, if they hadn't forgotten those words mean the same thing.

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.
9.1.2008 12:12am
TokyoTom (mail):
Here's hoping that Creekstone appeals a decision that is not only bad law, but very bad policy that baldly benefits only large cattle producers, while handicapping the smaller and more nimble, discouraging innovation and restricting improvements in consumer safety.
9.1.2008 1:29am
bush8r (mail):
So you think Japan (as well as Korea, etc.) is evil because they are putting trade barriers in place? How unfair of them to not want their populations to suffer the horrible and untimely death of vCJD!!! It is ghastly to think other countries may want to actually PROTECT their citizens from tainted products as opposed to the US, who is concerned only with increasing the profits of the rich. You can think what you will about how the USDA is looking out for your safety, it's certainly your right to do so. I, however, prefer to remain the cynic and not eat U.S. beef! Wonder what would happen if everyone wanted to protect themselves like the Japanese??? Hmmmm, think of the economy.......
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.
9.1.2008 10:01pm
bush8r (mail):
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....
9.1.2008 10:08pm
TJIT (mail):

Do you have any technical resources or cites that contradict the information at the link I provided?

Welcome to

Since you are reduced to attacking the organizers of the site and not the information I assume the answer is no.
9.2.2008 7:37am
TJIT (mail):

You raise some good points outside of the legal issues in this case.

Your points in blockquotes
Here's hoping that Creekstone appeals a decision that is not only bad law, but very bad policy that baldly benefits only large cattle producers,
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.
while handicapping the smaller and more nimble, discouraging innovation and restricting improvements in consumer safety.
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.
9.2.2008 8:31am
sftommy (mail):
USDA Bans Home Pregnancy Kits use on Slaughter Animals

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?
9.2.2008 4:03pm