USDA can prohibit meat packers from testing their animals for bovine spongiform encephalopathy, a federal appeals court said Friday.
Creekstone Farms Premium Beef filed suit in 2006 to gain access to BSE-cow test kits. It said it wanted to test every animal at its plant to assure foreign buyers that the meat was safe to eat. Larger meat packers opposed such testing.
A federal judge ruled last year that Creekstone must be allowed to conduct the test because USDA can only regulate disease "treatment." Since there is no cure for BSE and the test is performed on dead animals, the judge ruled, the test is not a treatment.
The U.S. Court of Appeals for the District of Columbia Circuit overturned that ruling Friday, saying diagnosis can be considered part of treatment. In a 25-page ruling, Appellate Judges Karen Henderson and Judith Rogers said USDA has authority under the 1913 Virus-Serum-Toxin Act to prevent sale of BSE test kits to meatpackers. USDA interprets the law to control products for "prevention, diagnosis, management or care of diseases of animals."
David Sentelle, chief judge of the District of Columbia appeals circuit, dissented from the decision. He said USDA "exceeds the bounds of reasonableness" for a law enacted to prevent the sale of ineffective animal medicine.
USDA allows the BSE test kits to be sold only to laboratories that it approves. It says the tests should not be used as a marketing tool and the cattle that comprise the bulk of the meat supply are too young to be tested reliably.