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Court ruled Creekstone Farms allowed to use rapid test kits to screen their cattle for BSE

May 29, 2007
Honorable Michael Johanns
Secretary of Agriculture
U.S. Department of Agriculture
1400 Independence Avenue, SW
Washington, D.C. 20250
Dear Secretary Johanns,
We are writing to ask USDA not to appeal the decision of the U.S. District Court for the District of Columbia which ruled, on March 29, 2007—in Civil Action No. 06-0544 (Creekstone Farms Premium Beef vs USDA et al.)—that USDA cannot prohibit the private use of rapid test kits to screen cattle for bovine spongiform encephalopathy (BSE). In other words, the District Court ruled that Creekstone Farms should be allowed to purchase and use rapid test kits to screen their cattle for BSE.
We agree with the court’s reasoning that USDA can’t have it both ways: USDA can’t argue that the test kits are useful for diagnosing and managing BSE when used by USDA but are “worthless” when used by a private company. We believe that the rapid test kits are useful for both parties and that there is no justification for denying a company the right to use a USDA-validated rapid test kit to screen cattle for BSE. We urge USDA to allow companies to buy and use USDA-validated rapid test kit for detecting BSE, but require the companies both to report any non-negative results to USDA and to supply USDA with brain samples from these non-negative cases for confirmation of BSE by the USDA at the National Veterinary Services Lab (in Ames, IO). USDA should also allow meat from an animal tested using a rapid test kit to be labeled as having been tested for BSE, and require any non-negative to be withheld from the food supply.
To prohibit this kind of testing appears to us to be suppression of free and open scientific inquiry and free and open exercise of free markets. These rapid tests kits are used by USDA and, indeed, by many countries throughout the world to help in the detection of BSE. Thus, these rapid test kits cannot be considered “worthless” as USDA argues. We do agree with USDA that the rapid test kits can lead to false negatives e.g. a negative result does not necessarily mean that the animal is BSE-free; the tested cow could be infected with BSE and incubating the disease during its preclinical phase. However, widespread use of the rapid test kits would allow detection of BSE in animals that have not yet exhibited clinical symptoms of BSE and so prevent them from entering the human food supply, and thereby decreasing the food safety risk. Testing could also keep otherwise unrecognized cases from entering the animal feed supply thereby decreasing the risk of transmission of BSE to other animals. We note that in the European Union, testing of healthy cattle approved for slaughter turned up over 1,100 of cases of BSE between 2001 and 2006 (http://ec.europa.eu/food/food/biosafety/bse/mthly_cml_reps_bse2001_en.pdf) Thus, these rapid tests are useful for screening cattle at slaughter and can pick up a significant number of cases of BSE that would otherwise not be detected and have gone into the food and feed chains.
According to a Consumers Union national survey carried out in January 2004, some 71% of the public supported testing of cattle for BSE and, of those, some 95% were willing to spend 10 cents more per pound of meat to buy tested meat. Thus, USDA should not only allow private companies to buy and use rapid test kits, they should also allow the companies to label meat as having been “tested for BSE,” so that consumers have a choice in the market place The label claims “BSE-free” or “No BSE” should not be permitted as they would be misleading, due to the potential of false negatives on the rapid test kits for animals in the early and mid stages of incubating BSE.
In sum, we urge USDA to not appeal the decision of the U.S. District Court for the District of Columbia and to allow the sale and use of USDA-validated rapid tests kits for the detection of BSE, under the condition that the companies report any non-negative results to USDA and submit sample from such animals for confirmation to NVSL in Ames, Iowa. USDA should also permit meat from tested animals to be labeled as “tested for BSE.”
Michael Hansen, Ph.D.
Senior Scientist
Advocacy and Public Policy
Consumers Union