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New Creekstone is suing the government
Creekstone Farms is the company that wants to do the testing. The USDA barred companies from doing more testing then they do, so Creekstone sued the government. They have won the first round of the case, but the government plans to appeal.

This really is a case that should get more press. Not only is it government insanity at it's best, but it makes a mockery of Bush's claims to be in favor of free trade and less regulation.

New OTOH...
I don't know the details of this particular suit, but there could be valid reasons why one wouldn't want labeling to exceed government standards:

1) Is the testing proven valid?
2) Could it be used to drive small firms, ones that can't afford the testing, out of business in an anti-competitive way?
3) Does the government have the expertise to verify the claims of safety? (E.g. does it have enough inspectors to demonstrate that the testing is done properly, etc.).
4) Is the USDA restricted by statute in what it can and cannot do WRT this issue?

There are lots of regulations about product labeling. Remember that it used to be the case that "supplements" couldn't make claims of safety and effectiveness unless they were backed up with science. Now they can apparently make any claims they want as long as they put a disclaimer ("This product is not intended to cure, prevent, or treat any disease..." or some such thing.)

IOW, I wouldn't be surprised if there was more to this story than it appears on the surface.



The March 2007 court decision that's under appeal is [link|http://www.r-calfusa.com/BSE/03-29-07%20--%20Court%20Memorandum%20-%20Creekstone%20Can%20Test,%2018pgs.pdf|here] (18 page .pdf):

USDA\ufffds policy position is that testing only high risk cattle, as opposed to all cattle, is the most efficient method for detecting the presence of BSE. This is primarily because of the limits of existing BSE tests. The incubation period for BSE - the time from infection to outward manifestation of the disease - is two to eight years; the average period is five years. Only rarely do cattle younger than 30 months show any signs 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 any external symptoms.

Most cattle going to market in the United States are less than 24 months old. Therefore, BSE testing of slaughter-age cattle is unlikely to identify the disease, even in infected cattle, and USDA\ufffds position is that testing young cattle offers \ufffdno food safety value\ufffd and is \ufffdlikely to produce false negative results.\ufffd Decl. of Dr. Lisa Ferguson [#10-3] at \ufffd 6.


The VSTA thus gives the USDA authority to regulate the \ufffduse\ufffd of \ufffdanalogous products\ufffd including diagnostic tests. The authority only extends, however, to products that are: (1) \ufffdintended for use in the treatment of domestic animals,\ufffd and (2) \ufffdworthless, contaminated, dangerous, or harmful.\ufffd12 21 U.S.C. \ufffd 154. Count II focuses on the question whether the BSE test kit is such a product.

USDA has defined \ufffdtreatment\ufffd as \ufffdthe prevention, diagnosis, management, or cure of diseases of animals.\ufffd 9 C.F.R. \ufffd 101.2(3). Whether diagnosis should generally be considered an aspect of treatment, as opposed to something altogether separate, is a question on which the parties and their experts disagree, but the government has put forth a plausible argument in support of its interpretation, and that interpretation is entitled to deference.13

Similar deference will not be given, however, to USDA\ufffds argument that BSE test kits are used for treatment. There is no known treatment or cure for BSE, Rippke Decl. \ufffd 10, and BSE test kits are used only on animals that are dead. Even if USDA is correct that diagnosis in general is \ufffdan inherent and crucial aspect of treatment,\ufffd Rippke Decl. \ufffd 11, USDA\ufffds own pronouncements about BSE test kits establish that they have nothing to do with \ufffdtreatment\ufffd of BSE. USDA\ufffds position is that BSE testing of cattle at slaughter is not \ufffdmeaningful in the context of...animal health\ufffd and that surveillance testing for BSE \ufffdis not a [disease] mitigation measure.\ufffd USDA APHIS, \ufffdImportation of Boneless Cuts of Beef from Japan,\ufffd 70 Fed. Reg. 73,905, 73,914 (Dec. 14, 2005).

It is unnecessary to reach the question of whether BSE test kits are \ufffdworthless,\ufffd because their use may not be regulated under the VSTA unless they are both \ufffdintended for use in the treatment of animals\ufffd and \ufffdworthless.\ufffd The government may indeed be right that the tests are \ufffdineffective, misleading, and essentially worthless...when used, as proposed by plaintiff, to diagnose the disease in all slaughter-aged normal-looking cattle.\ufffd Def.\ufffds Mem. at 42. But, should a reviewing court determine that BSE could be detected in slaughter-age cattle, as
is suggested by evidence put forward by plaintiff 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 \ufffdused for treatment\ufffd and \ufffdworthless.\ufffd If USDA\ufffds surveillance testing helps \ufffdmanage\ufffd the disease by providing information about the prevalence of BSE and contributing to the knowledge of the disease, see Defs.\ufffd Reply at 19-20, citing 9 C.F.R. \ufffd 101.2(3) (defining \ufffdtreatment\ufffd to mean \ufffdthe prevention, diagnosis, management, or cure of diseases of animals\ufffd)(emphasis in original), then so might the more extensive testing proposed by Creekstone.


In any event, evaluation of \ufffdworthlessness\ufffd (vel non!) is best left to the apostles of law and economics, who might find a formula for deciding whether USDA is right, that BSE testing of seemingly healthy cattle at normal slaughter age has neither scientific value14 nor any value to consumers, because it is likely to produce false negative results that could mislead the public15 \ufffd or Creekstone is right, that USDA\ufffds decision to conduct less extensive testing than other countries has left U.S. companies at a competitive disadvantage, and thus that private testing could be valuable to a seller of cattle \ufffd or I am right, that the consumer issues at the heart of USDA\ufffds position cannot
be located within the purposes of the VSTA, and appear to lie, not with USDA, but with the Federal Trade Commission, or perhaps the Commerce Department.

As I read the decision, the judge ruled that the USDA didn't have the authority under the rules cited to prohibit the private use of the BSE kits. Other agencies, might, though.


     FDA says no to voluntary Mad Cow testing - (Silverlock) - (6)
         Say what? - (Simon_Jester) - (5)
             They should do it anyway. - (bepatient)
             Creekstone is suing the government - (JayMehaffey) - (1)
                 OTOH... - (Another Scott)
             It was in the Los Angeles Times this week, but . . . - (Andrew Grygus) - (1)
                 YA case of 'who guards the guards'. - (static)

Before such superhuman attainments of sustained triviality one stands in something like awe.
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