Federal judge rules Creekstone can test for BSE

By Jennifer M. Latzke

It's official, Creekstone Farms can test its cattle for bovine spongiform encephalopathy.

U.S. District Judge James Robertson ruled March 29 that the Arkansas City, Kan., meatpacker must be allowed to test its cattle for BSE . The ruling stated that the government does not have the authority to regulate the test. However, Robertson did put his order on hold until June 1 for the government to appeal.

The case began when Creekstone Farms Premium Beef, LLC, began plans to test its meat for BSE so that it could continue to export beef to Japan, which had stopped importing U.S. beef after the first case of BSE was found in the states in December 2003. Creekstone Farms is a smaller packer that specializes in branded black Angus beef programs and supplies high quality beef for domestic and export markets. The company repeatedly stated that while it has every confidence that U.S. beef is 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.

Larger packers, though, were against this move on grounds that if Creekstone voluntarily underwent expensive testing, they would have to do so as well in order to compete and therefore would have to pass the costs on to their customers or to their cattle suppliers.

The U.S. Department of Agriculture ramped up its testing for BSE after the first case of the disease was found in the United States in December 2003. The agency was testing about 1,000 cattle each day. However, the department cut testing by 90 percent last July, with Secretary of Agriculture Mike Johanns saying that the reduced testing should reflect a low level of the disease in the states. USDA's argument was that widespread testing could lead to false positives, which would further harm the meat industry and cattle prices at market.

In his ruling, Robertson said he was concerned by that possibility, 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...."

The first cattle group to respond to the news was R-CALF USA, which sent an early 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."

More coverage of this breaking story will appear in the April 9 edition of High Plains Journal/Midwest Ag Journal and here online at www.hpj.com.

Jennifer M. Latzke can be reached by phone at 620-227-1807, or by e-mail at jlatzke@hpj.com.

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Date: 3/30/07

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