Today 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. At issue was whether the Virus-Serum-Toxin Act (VSTA) authorized the USDA to prohibit Creekstone's use of the test. Judges Henderson and Rogers said "yes." Chief Judge Sentelle, dissenting, said "no." I am inclined to think Sentelle is correct.
The majority accepted the USDA's argument that VSTA, which covers "any . . . virus, serum, toxin, or analogous product" used for "treatment" of animals can be stretched to cover BSE test kits. It further argued that USDA's authority to "prevent the preparation, sale, barter, exchange, or shipment" of such items includes the authority to ban the use of the tests as well. I find neither persuasive. While there may be a good argument that the USDA should have such authority, that's not what VSTA does.
In his dissent, Sentelle stressed these points, but also highlighted the problem of allowing an agency to stretch the scope of its own regulatory authority. As Sentelle explained, "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." Agencies are constrained to the jurisdiction conferred upon them by Congress, and courts should not lightly defer to agency claims that they can construe the scope of their own power (as Nathan Sales and I argue here).
It is worth noting Creekstone did not maintain that such testing was necessary to ensure the safety of its beef. It was undisputed that the test they sought to use was very unlikely to detect the presence of BSE given the age of the cows at slaughter. Rather, Creekstone sought to test its beef so that it could export its meat to Japan and Korea, which have limited U.S. beef imports due to BSE fears. Again from the Sentelle dissent:
It seems that the Department’s fear is that Creekstone’s use of the test kits would enable it to provide buyers with a false assurance that the cattle from which its beef is obtained are free of Bovine Spongiform Encephalopathy. However, as I read the record, all Creekstone hopes to do is assure foreign buyers that the beef is as well-tested as would be the case with beef produced in the home countries of those buyers.To this I would add that I believe the USDA has adequate authority to prevent Creekstone and other producers from making false claims about the relative safety of their products vis-a-vis their competitors. So even if the USDA was justified in worrying that Creekstone would make false claims that their meat was somehow "safer" than others, there are other ways to address this concern.