Court Rules Packers Can Test For 'Mad Cow' Disease In Meat

WASHINGTON — In a ruling consumer advocates hope will someday cause all beef products in America to be tested for "mad cow" disease, a federal judge has thrown out a government regulation that had blocked one company's efforts to conduct the tests.

In a decision issued late Thursday, Judge James Robertson of the U.S. District Court here said the U.S. Department of Agriculture does not have authority to keep Creekstone Farms Premium Beef from testing its own beef.

The company had installed a new testing laboratory at its Arkansas City, Kan., packing plant in an effort to eliminate the possibility that its beef might contain a protein that is believed to cause bovine spongiform encephalopathy — or "BSE."

BSE, a brain and central nervous system disorder, is a gruesome, incurable and always-fatal disease for both cattle and humans who consume the protein that causes it.

Creekstone had butchered about 300,000 steers and heifers a year before the ban, less than 1 percent of the national total of 35 million animals.

The company said its sales to overseas markets, especially Japan and Korea, had suffered because of fear that U.S. beef might be tainted.

Other packing companies had feared that Creekstone's plan would force them to also test beef, a process that adds about $30 per cow to butchering costs.

Currently, all BSE testing is done by the Agriculture Department under a sampling process in which less than 1 percent of beef carcasses are tested.

The government has until June 1 to appeal the decision. USDA spokesman Keith Williams said no decision on whether to appeal had been made, because officials were studying the ruling.

"We are very pleased," said Michael Hansen, a food safety scientist with Consumer's Union. "We think there should be a lot more testing for BSE in this country, and we're going to ask the USDA not to challenge the court's ruling."

If the ruling stands, Hansen said, other beef packers will be under pressure to test their product.

"The large packers may decide that if they don't test also, this could have an impact on their market share," he said.

Consumer's Union, the nonprofit organization that publishes the magazine Consumer Reports, has pressed for more testing of U.S. beef for BSE.

After a BSE-positive cow was found to have been imported into the United States from Canada in 2003, major export markets, such as Japan and Korea, banned all U.S. beef, causing a 75 percent decline in exports.

Creekstone had said the bans in Japan and Korea cost it $200,000 per day in revenues. Although the bans were lifted last year, Creekstone said its profits continued to suffer, due to consumer fears about BSE.

USDA refused in 2005 to allow Creekstone to purchase testing kits for use in the new laboratory, arguing that the government had exclusive authority to conduct the tests under a law called the Virus-Serum-Toxin Act.

It said private testing was useless.

In one court document, the department declared that by prohibiting Creekstone's tests it was keeping other beef producers from having to incur higher costs in order "to remain competitive."

Creekstone sued the government in March 2006. Robertson ruled that the department had exceeded its authority.

Russell Frye, the Washington lawyer hired by Creekstone, said the company "should be commended for being willing to take the risk and defend the right of all of us to make our own decisions about what we eat."