USDA Can Block Testing for Mad Cow Disease

WASHINGTON (CN) - The U.S. Department of Agriculture has the authority to stop a domestic beef exporter from testing its cattle for mad cow disease, the D.C. Circuit ruled.

A three-judge panel ruled 2-1 that the Virus-Serum-Toxin Act allows the USDA to regulate the manufacturing and sale of products used to treat domestic animals, including testing kits for bovine spongiform encephalopathy (BSE), or mad cow disease.

The degenerative neurological disease damages a cow's central nervous system, resulting in a loss of coordination and, ultimately, death. Humans who eat the meat of infected cows can develop a similar disease called variant Cruetzfeldt-Jakob Disease, which has killed about 190 people since 1986.

Between 2003 and 2006, three diseased cows were discovered in the United States, leading several major beef-importing countries, including Japan and Mexico, to ban or severely restrict the importation of U.S. beef.

Creekstone Farms Premium Beef tried to allay concerns by testing its cattle for the disease, claiming the drop in exports were costing it $200,000 a day. It asked the USDA for permission to buy test kits from a California company that made the equipment in France. However, under the Virus-Serum-Toxin Act, the government can regulate the manufacturing and sale of "any virus, serum, toxin, or analogous product for use in the treatment of domestic animals."

The USDA deemed the "rapid BSE test" a "treatment" under the Act and banned Creekstone from buying test kits from Bio-Rad. The government was apparently concerned that routine testing would give foreign buyers a false sense of security, since cattle were often tested before symptoms developed.

The government said testing young cattle is "not practical," provides "no safety value" and is "likely (to) produce false negative results."

Creekstone argued that the USDA lacked regulatory authority because the test kits did not treat infected cattle, but merely diagnosed them.

The district court said the definition of treatment includes diagnosis, but ruled that BSE testing cannot be considered diagnostic because "there is no known treatment or cure for BSE ... and BSE test kits are used only on animals that are dead."

The appeals court disagreed with the second part, saying the law clearly permits the government to regulate treatments used to diagnose diseases, even after the animal has died. Testing "plays an important diagnostic role," Judge Henderson wrote.

Dissenting Judge Sentelle said the government "has gone as far as it could and, in my view, farther than it reasonably could in aggregating power to itself."

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