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Pundit’s Mailbag — Beware The Bureaucrats

I am always challenged by the Pundit, and thankful the Lord has given us people with minds as yours presenting rational arguments in an open forum challenging and willing to be challenged.

I find the USDA position on beef testing for Mad Cow interesting. “Do not test due to potential of false positives” is an intriguing rational. I know little about the reliability of the testing procedure but the USDA seeking an injunction forbidding testing compels “why?” Is testing substantially unreliable or is the commercial risk of discovery excessive?

Although this action is not in the produce industry, it surely may be occasion for a stimulating discussion applying it to the produce industry.

— John Shelford
Naples, Florida

The Good Lord giveth and the Good Lord taketh away, and John’s letter, both kind to the Pundit and inquisitive on an issue of profound importance, gives us an opportunity to go back to the very first Pundit in which we ran a piece addressing this issue entitled, U.S. Beef, Food Safety And Freedom. As we said back then:

Bottom line: the USDA is not charged with restricting consumer choice or preventing marketers from looking for niche markets or a competitive edge.

A couple of month’s ago Creekstone Farms, a Kentucky-based producer of what it calls “Natural Black Angus Beef,” announced that it has filed a lawsuit against the USDA challenging its ban on voluntary BSE testing. It is hard to imagine why it shouldn’t win.

Creekstone did win:

According to a ruling from U.S. District Judge James Robertson of the United States District Court for the District of Columbia, the USDA’s “prohibition of the private use of rapid test kits to screen cattle for bovine spongiform encephalopathy is unlawful.” (Creekstone Farms Premium Beef, LLC v. U.S. Dept. of Agriculture, et al., Civil Action No. 06-0544).

“We are very pleased with the ruling handed down by the Court and we stand ready to work with the USDA,” stated Dennis Buhlke, Creekstone’s President and CEO, “This decision confirms the position Creekstone has taken for over three years that the USDA should not prevent businesses from responding to their customers’ demands for more information about their products, such as BSE testing.”

The Court stayed the effective date of its ruling until June 1, 2007, to allow USDA time to determine whether to appeal. Creekstone already has built, with the advice of BSE-testing experts, a state-of-the-art laboratory and is positioned at this time to implement its stated plans for BSE testing of some or all of the cattle it processes at its Arkansas City, Kansas plant.

The ruling held that USDA has authority to regulate the use of diagnostic tests in general, but that it lacks authority to prohibit the private use of BSE test kits, which are not used in the treatment of BSE, but are used on cattle that are already dead to see if they had significant levels of BSE infection. Noting that many other countries test large numbers of healthy-appearing cattle for BSE at slaughter, Judge Robertson suggested that USDA’s stated concerns about the conclusions consumers might draw from private BSE testing were not within USDA’s statutory areas of responsibility.

Since the produce industry is determined to put itself under mandatory federal regulation, it is worth paying attention to how arrogant and abusive government bureaucrats can be.

USDA has decided to appeal. Meaning this issue, already over three years old, will go on some more. Look at how easily the government can bankrupt a private party.

Although the USDA says that the issue is false positives, the truth is that the USDA is serving as hand maiden for large meat packers. They don’t want to spend the money testing — even though it might open markets in places such as Japan.

These large packers are petrified that Creekstone might find Mad Cow disease, thus giving lie to the USDA’s claim that it doesn’t exist in the U.S. These large packers also don’t like the idea that another packer will promote that it has done extra testing to guarantee safer product. They fear consumers might demand that the large packers test as well.

Reasonable people can disagree on whether marketing for safety is a good idea. In the produce industry there were many battles over issues such as Nutriclean certification.

In America, however, when there is a commercial disagreement, the solution is not for the U.S. government to restrict the freedom of both producers to innovate and consumers to purchase as they will.

John asks whether the test is reliable:

A federal judge ruled in March that such tests must be allowed. U.S. District Judge James Robertson noted that Creekstone sought to use the same test the government relies on and said the government didn’t have the authority to restrict it.

The commercial risk of discovery under controlled testing conditions is far less than the commercial risk of discovery because someone gets mad cow disease. The USDA tests less than 1% of all beef for the disease. In Japan all cattle are tested. One could argue that U.S. beef producers are penny-wise and pound-foolish — losing their export markets and risking domestic confidence to save money on testing.

Yet this dispute is really not about food safety; it is really about freedom. A company wants to use a perfectly legitimate test on its products, and consumers — citizens — would like to protect themselves by paying extra for tested meat.

None of this is any business of the USDA. Let us hope the appellate court tells the USDA that in no uncertain terms.

Many thanks to John for bringing this issue to our attention.

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