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Was Creekstone Really about Speech?

As I noted last Friday, a divided U.S. Court of Appeals for the D.C. Circuit held in Creekstone Farms Premium Beef v. USDA that the USDA may prohibit Creekstone Farms from testing its cows for bovine spongiform encephalopathy (BSE), aka "mad cow disease" with the so-called "rapid" BSE test. Why, some may wonder, would USDA bar Creekstone from testing its own beef at its own expense? The "rapid" BSE test would not be effective at determining whether Creekstone's cattle were BSE-free before slaughter, but why would the USDA stand in the way of Creekstone's decision to spend its own money in this way?

Creekstone argued it wanted to test so it could export its beef to foreign markets where such testing is required. Why would the USDA stand in the way of that? One possibility is that the Administration feared that allowing Creekstone to test would undermine the United States' argument against Japan's and Korea's limitations on U.S. beef imports. If Creekstone can test, Japan and Korea might argue, all producers can and should test, and this would increase costs for U.S. beef producers. This may have been a factor in the USDA's decision, but I doubt it was the only one.

Another possibility is that the USDA was less concerned about the testing than it was about what Creekstone might say about it. If Creekstone were allowed to test its beef for BSE, the USDA might not be able to prohibit Creekstone from promoting that fact. Under current law, Creekstone could almost certainly make the true claim that it tested its beef, but the USDA did not want Creekstone (or any other producer) to make any claims at all regarding BSE in American beef.

Were Creekstone to advertise its use of the "rapid" BSE test, the government could require that Creekstone qualify such claims. Insofar as advertising the use of the test is misleading — making consumers believe (erroneously) that Creekstone's beef is "safer" than others — the government could require additional speech to cure. So, for instance, the government could require Creekstone to acknowledge that there is no reason to believe its use of the "rapid" BSE test makes its beef any safer than beef from non-testing producers. [This is the sort of qualification the FDA requires milk producers to make if they advertise their milk is made without use of rBST.]

The USDA likely fears such curing language would be insufficient to blunt the impact of Creekstone's initial claims, however. Any mention of the potential threat of BSE in American beef could reduce beef consumption and harm the domestic beef industry. Creekstone might or might not gain market share against its competitors by noting its use of BSE tests, but the overall market would shrink if the potential for BSE contamination were highlighted. Given that the risk of BSE is infinitesimal, this is something the USDA seeks to avoid. So, in an effort to preempt Creekstone from making any claims about BSE, USDA simply barred them from using the test.

Note that I am not defending the USDA's action as much as I am trying to explain it. I think the USDA was wrong here, both because it lacked the authority to bar the use of "rapid" BSE tests under existing statutes and because I do not believe it should be the USDA's responsibility to promote the domestic beef industry. I also believe that a consequence of the USDA's position frustrates the private development of testing protocols and other innovations that could actually improve the safety of the U.S. food supply. But while I think the USDA was wrong, two judges on the D.C. Circuit felt otherwise, and I doubt this case will go upstairs or en banc.

Related Posts (on one page):

  1. Was Creekstone Really about Speech?
  2. Creekstone Farms v. USDA:
byomtov (mail):
I am not defending the USDA's action as much as I am trying to explain it.

I think that in a sense, you are defending it. That is, you are trying to suggest that the decision, even though you disagree with it, had some sort of rational basis.

But isn't it also reasonable to take the cynical view that USDA was simply bowing to pressure from other beef producers who didn't want to have to test? You address the possible concern over a shrinking beef market, but imply that this is a legitimate concern. Should the USDA really care if consumers decide to eat less beef, and more chicken, say?
9.3.2008 10:13am
krs:
But isn't it also reasonable to take the cynical view that USDA was simply bowing to pressure from other beef producers who didn't want to have to test?

bymotov, if Prof. Adler sets out the most rational, least cynical explanation of the USDA's action, that makes it much easier to think about whether the USDA's motives were honorable or not.

I don't think Prof. Adler implied that concern over a shrinking beef market is a legitimate basis for the USDA's action.
9.3.2008 10:20am
Jeff Boghosian (mail):
Jonathon:

I am curious what you think of the research of Michael Gregor. He obviously comes at it from a vegan point of view, but he's pointed to some interesting studies like this which I've always been curious about:



4) Dr. Michael Hanson, a research associate at the Consumer Policy Institute of Consumer's Union and one of the country's leading food-safety experts, has repeatedly pointed to a pair of revelatory CJD studies: "A study at the University of Pittsburgh, in which autopsies were done on 54 demented patients diagnosed as having probable or possible Alzheimer's or some other dementia (but not CJD), found three cases (or 5.5%) of CJD among the 54 studied. A Yale study found that of 46 patients diagnosed with Alzheimer's, six (or 13%) were CJD at autopsy. Since there are over two million cases of Alzheimer's disease currently in the United States, if even a small percentage of them turned out to be CJD, there could be a hidden CJD epidemic." These shocking figures [may] indicate several [...] thousand Americans are currently dying of a preventable variant of CJD. [...]

source
9.3.2008 10:35am
EconGrad:
Were I Creekstone, I think I might just be tempted to take the amount of money I was going to spend on rapid BSE testing, and spend it on an advertising campaign. "We want to BSE test our product for added safety, but the government won't let us. Isn't that strange? Call your Senators and Congressmen and ask them why the USDA stands in the way of added food safety."
9.3.2008 10:45am
byomtov (mail):
I don't think Prof. Adler implied that concern over a shrinking beef market is a legitimate basis for the USDA's action.

You're right. He didn't. My mistake. Sorry.
9.3.2008 11:12am
Granny:
Four more years!
9.3.2008 12:01pm
Fub:
Jonathan Adler wrote:
Was Creekstone Really about Speech?
...
... but the overall market would shrink if the potential for BSE contamination were highlighted. Given that the risk of BSE is infinitesimal, this is something the USDA seeks to avoid. So, in an effort to preempt Creekstone from making any claims about BSE, USDA simply barred them from using the test.
The free speech issue would be relatively easier for an independent third party (say, a consumer safety organization) to bring into play.

Hypo: Say a reasonably well funded and independent (of any ag industry) organization decided to buy a zillion "rapid" test kits, hang out around slaughterhouses, test every dead cow, and report the results publicly. Could the USDA prohibit sale of the test kits to that organization for that purpose?

The "most rational, least cynical explanation of the USDA's action" [krs at 9.3.2008 9:20am] would certainly look cynical in that circumstance. Furthermore, I think the USDA would attempt that ban, on the very grounds that if testing were permitted, "the overall market would shrink if the potential for BSE contamination were highlighted".

I agree with Sentelle, CJ, dissenting:
I think, however, that the Department exceeds the bounds of reasonableness in the interpretation assumed in its regulations. In its interpretation of the terms within the statute, as well as its understanding of the power afforded by the statute, the Department has gone as far as it could and, in my view, farther than it reasonably could in aggregating power to itself.
9.3.2008 12:14pm
J. Aldridge:
The USDA is another one of those federally created departments that is not sanctioned by the constitution for congress to create. Marshall said internal commerce, "inspection laws, quarantine laws, health laws of every description" were never surrendered.

Shame on the federal judiciary.
9.3.2008 12:42pm
J. Aldridge:

Commerce between independent powers or communities is universally regulated by duties and imposts. It was so regulated by the States before the adoption of this Constitution, equally in respect to each other and to foreign powers. The goods and vessels employed in the trade are the only subjects of regulation. It can act on none other.

--James Monroe
9.3.2008 12:44pm
Thales (mail) (www):
"Note that I am not defending the USDA's action as much as I am trying to explain it. I think the USDA was wrong here, both because it lacked the authority to bar the use of "rapid" BSE tests under existing statutes and because I do not believe it should be the USDA's responsibility to promote the domestic beef industry."

Regarding the latter point, it is widely thought by consumer advocates that this is in fact primarily what the USDA does. It is doubtful that there is another rational explanation for, e.g., the agency's consistent bending to industry pressure to block or weaken rules regarding testing and recall of plants and meat adulterated by E. Coli O157:H7. That the agency would also engage in ultra vires action to prevent private food safety-related alternatives is disturbing indeed. I don't think Washington agencies are all foxes guarding henhouses, but this trait has increased enormously in the past seven years.
9.3.2008 12:45pm
a knight (mail) (www):
Professor Adler, I'm glad you're blogging about Creekstone. This decision surprised me, and is antithetical to the free market. It seems to me the the FDA is overreaching in this instance too. Judge Sentelle's dissent was concise and to the point:
I find unpersuasive the Department's arguments that a product with no other use than the diagnosis of an untreatable and invariably fatal disease is a form of "treatment."
How could a test for infected beef be construed to be a "treatment"? Sentelle then drove the concept of Agency overreach home in the next paragraph:
While it is true that the "expressio unius est exclusio alterius" canon of statutory construction is applied with muted force in "the administrative setting," the concept does not go away, even in the administrative setting. As we have often held, congressional provision of an expressed authority mandate to accomplish statutory goals "does not create for the agency 'a roving commission' to achieve those or 'any other laudable goal'", by means beyond the authority granted in the statute.

(footnotes omitted)
9.3.2008 2:34pm
Triangle_Man:
Would Creekstone's testing oblige them to report positive tests, or would they merely discard the tested beef? The specificity of the BSE test is high, but there will still be something like 1 false positive in 30,000 tests according to this.
9.3.2008 3:14pm
Frater Plotter:
Under current law, Creekstone could almost certainly make the true claim that it tested its beef, but the USDA did not want Creekstone (or any other producer) to make any claims at all regarding BSE in American beef.

The USDA, as a branch of the Federal government, is not capable of having a legitimate interest in suppressing true speech.
9.3.2008 3:15pm
GregC (mail):
Jonathan,

In addition to the rationales you list, USDA and the major players in the beef industry argue that, because the rapid BSE test is highly susceptible to false positives, the testing itself would produce a substantial number of "positive" results annually, thereby giving an inaccurate depiction of the presence of BSE in the US beef cattle herd. That, in turn, could lead US and foreign consumers to shun US beef, and it could provide foreign governments with a rationale to legally exclude US beef from their countries.

And, while I agree that it should not be USDA's responsibility to promote the domestic beef industry, that obligation (or, rather, the obligation to promote US agriculture) is written into statute. So, blame Congress.
9.3.2008 4:21pm
DerHahn (mail):
The "rapid" BSE test would not be effective at determining whether Creekstone's cattle were BSE-free before slaughter

Isn't this really the key point? The testing seems to be little more than a marketing strategy. If safety were Creekstone's paramount concern why do they want to use a 'rapid' (which implies 'cheap') test? Will they discard *all* the beef that tests positive or will they subject beef they initially determine to be 'BSE positive' to a second, more accurate test that they can reasonably assume will come back negative given the relatively low number of BSE cattle in the US? What's up with that? Our initial test isn't accurate but belive us when we say the second test proves the first one was wrong?
9.3.2008 5:22pm
krs:
The USDA, as a branch of the Federal government, is not capable of having a legitimate interest in suppressing true speech.

The federal government sometimes has an interest in suppressing true speech. Classified information is legitimate at least some times, and the federal courts protect trade secrets and confidential information produced in discovery all of the time.

I agree that the USDA doesn't have a legitimate interest in suppressing true speech about the US beef industry, but that doesn't automatically follow from the truth of the speech and the USDA's status as part of the federal government.
9.3.2008 5:58pm
a knight (mail) (www):
@ DerHahn - You're missing the point entirely. The test cannot be administered upon live animals. It uses brain tissue from a dead carcass (see footnote 3 of decision). How can a test for abnormal prions in the brain of a cow's carcass be defined as a "treatment"?

The efficacy of the test, or whether it is just a market strategy are not the issue. It is self-evidently a market strategy for Creekstone, as they are attempting to comply with the import regulations of Japan and Korea by testing all of their carcasses, in an effort to widen their markets. How could this possibly be the FDA's concern.

Additionally, is it not the abnegation of free-market principles to interfere with the marketing strategies of a business entity? Why should Creekstone be penalised for a hissy fit between the US and Japan/S.Korea?
9.3.2008 7:25pm
GreenDreams (mail) (www):

"The testing seems to be little more than a marketing strategy. If safety were Creekstone's paramount concern why do they want to use a 'rapid' (which implies 'cheap') test? Will they discard *all* the beef that tests positive or will they subject beef they initially determine to be 'BSE positive' to a second, more accurate test that they can reasonably assume will come back negative given the relatively low number of BSE cattle in the US?"



Actually, it is common to use a cheap and rapid presumptive test in food quality analysis. Though I don't know all the details of this test, in general, you look for a test with low false negatives. Only positive tests (possibly false positives) go on to a confirming test by a more precise method. The universal mutagenicity test, the Ames test is an example. Carcinogens are always mutagenic but not all carcinogens are mutagenic. The quick and cheap Ames test can rule things out, but not positively rule them in. Same thing here, I think. Drug testing too can be done this way (say in race horses or dogs). An alkaloid test, if negative, says no illegal alkaloids, but a positive doesn't necessarily mean illegal drugs, so a second tier of more expensive testing is then needed.
9.4.2008 1:55am
GreenDreams (mail) (www):
oops. *not all mutagens are carcinogenic*

where's the edit button?
9.4.2008 1:56am
neurodoc:
Jeff Boghosian, where can I find the published reports of those University of Pittsburgh and Yale studies that purported to find CJD in an extraordinary percentage of autopsied cases of dementia? There are no specific cites in what you linked to.

CJD is a very rare disorder, one with singular clinical features to distinguish it from more common causes of dementia, including Alzheimer's (e.g., myoclonic jerks and burst suppression on EEG). I am very, very skeptical about this claim.
9.4.2008 3:08am
neurodoc:
The "rapid" BSE test would not be effective at determining whether Creekstone's cattle were BSE-free before slaughter...
As noted above, the test is done on brain tissue obtained after slaughter, so of course it "would not be effective at determining whether Creekstone's cattle were BSE-free before slaughter." But is there any reason to believe that it would not be reasonably effective in establishing that the carcasses were BSE-free?

Also,Professor Adler, I asked in the course of a previous Creekstone thread whether the USDA would have any control over testing done after the meat left the United States. Say, for example, the company arranged for the testing to be done as the beef was aboard a ship crossing the Pacific. Any thoughts on whether the USDA would have any authority to stop such testing done on beef once it had been exported?
9.4.2008 3:22am
a knight (mail) (www):
@ neurodoc - I don't believe that testing onboard a ship after the beef had begun to be exported is a viable solution. In my experience, exports need to have been approved before they begin to be transported, or risk facing indeterminate delays at port of entry. This would not be a good thing for perishables. Also, what happens to the whole shipment if even one carcass tests positive? What happens to the rest of the cargo on the ship in transit? I would be surprised if a shipping company would be willing to shoulder the potential liabilities involved. It could lead to a nasty Catch 22.
9.4.2008 10:16am
neurodoc:
a knight, clearly not a "viable" solution, since we are talking butchered products, not live cattle. (Forgive me, I couldn't resist.) And maybe not practical either for the reasons you have suggested. But outside the reach of the USDA and/or other federal agencies, hence lawful?

I don't know what happens when the rapid test yields a "positive," but I imagine that a more definitive test is then done to rule out a false positive. If it proved to be a true positive, I don't think you would have to worry about the rest of the shipment. It and all other beef products from the US wouldn't be allowed into Korea or Japan, if indeed anywhere.

I know a tad about BSE, CJD, kuru, and other spongeiform encephalopathies. (As a second year med student was lectured by Carlton Gajdusek; knew Joe Gibbs casually; and have heard Stanley Prusiner speak.) But know little about the testing business, except that some might benefit from wider use of the rapid test. Anyone know the relevant numbers, e.g., cost of the rapid test, ease/difficulty of performing the rapid test, time and cost to do more definitive testing, number of new cases of vCJD since ban on use of previously used animal feed materials, etc.?

BTW, I think this BSE/CJD testing matter is a very different business from the rBST one.
9.4.2008 1:24pm
Jeff Boghosian (mail):
neurodoc,

don't know if you'll still looking at this thread but this page has some references:


Nobel Laureate Gajdusek, for example, estimates that 1% of people showing up in Alzheimer clinics actually have CJD.[65] At Yale, out of a series of 46 patients clinically diagnosed with Alzheimer's, six were proven to have CJD at autopsy.[66] In another study of brain biopsies, out of a dozen patients diagnosed with Alzheimer's according to established criteria, three of them were actually dying from CJD.[67] An informal survey of neuropathologists registered a suspicion that CJD accounts for 2-12% of all dementias in general.[68] Two autopsy studies showed a CJD rate among dementia deaths of about 3%.[69,70] A third study, at the University of Pennsylvania, showed that 5% of patients diagnosed with dementia had CJD.[71] Although only a few hundred cases of sporadic CJD are officially reported in the U.S. annually,[72] hundreds of thousands of Americans die with dementia every year.[73] Thousands of these deaths may actually be from CJD caused by eating infected meat.


65 Folstein, M. "The Cognitive Pattern of Familial Alzheimer's Disease." Biological Aspects of Alzheimer's Disease. Ed. R. Katzman. Cold Spring Harbor Laboratory, 1983.
66 Alzheimer Disease and Associated Disorders 2 (1989): 100-109.
67 Teixeira, F., et al. "Clinico-Pathological Correlation in Dementias." Journal of Psychiatry and Neuroscience 20 (1995): 276-282.
68 British Journal of Psychiatry 158 (1991): 457-70.
69 Mahendra, B. Dementia Lancaster: MTP Press Limited, 1987: 174.
70 Archives of Neurology 44 (1987): 24-29.
71 Neurology 38 (1989): 76-79.
72 http://www.cdc.gov/ncidod/diseases/cjd/bsecjdqa.htm
73 Dementia and Normal Aging, Cambridge University Press, 1994.
9.4.2008 2:24pm