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Additional mad cow safeguards may be added very soon

By Anita Ramasastry
FindLaw Columnist
Special to CNN.com


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(FindLaw) -- On December 23, the U.S. Department of Agriculture (USDA) announced a presumptive diagnosis of bovine spongiform encephalopathy (BSE) -- also known as mad cow disease -- in an adult Holstein dairy cow from Washington.

The cow, which originally came from Canada, had been slaughtered on December 9. U.S. policy is to slaughter first and test later. Accordingly, the cow's meat had already been distributed to be sold and is likely to have been consumed when the diagnosis was made.

Subsequently, the USDA issued a Class II recall for the relevant facility's entire day's production -- some 10,000 pounds of beef linked to the infected cow and 19 others slaughtered the same day. In addition, Washington State has quarantined the herd from which the affected animal came.

I will argue in this column that additional measures are necessary to reverse the damage that has already been done to our trade relationships, and to foster confidence in food safety.

Why authorities cannot be confident there is no U.S. health risk

As readers may be aware, mad cow is a fatal disease that destroys the brains of infected cattle. Humans can contract a form of the disease -- known as variant Creutzfeldt-Jakob Disease (CJD) -- by eating tissue from the brains, spinal cords or central nervous systems of infected animals. And indeed, 120 have died from CJD over the decade since mad cow disease first struck livestock herds in Britain and Europe a decade ago.

The USDA and other U.S. officials claim that the health risk to consumers is minimal. This is because the meat was muscle from the cow and therefore should not have contained any parts of its nervous system. Unfortunately, we won't know for years, or even decades, if they are correct -- for both mad cow and CJD have long gestation periods.

For this reason, it's best to implement additional safeguards now -- so that we can make sure to be safe, rather than sorry.

The need to alleviate global concerns about U.S. beef

Our economy has already suffered as a result of the news. In order to preserve our trade and imports -- and restore consumer confidence both at home and abroad -- the federal government needs to take action soon.

In a 2002 report, the General Accounting Office -- the investigative watchdog arm of Congress -- identified specific remedial measures that ought to be taken. Current legislation before Congress will also, if passed, likely improve the situation.

But the stakes are high -- so the government ought to act quickly. Cattle production is the largest component of U.S. agriculture. There are an estimated 97 million dairy and beef cattle in the United States.

Exports, moreover, are a significant part of the cattle industry. The U.S. exports approximately 10 percent of its beef production. As of 2002, U.S. exports accounted for 25 percent of beef exports worldwide.

Now, more than two dozen nations that normally buy U.S. beef have stopped incoming shipments -- bringing the $3.2 billion American beef export business to a halt. These nations include Japan, which is the largest market for U.S. beef, and South Korea, which is the fourth biggest market for U.S. beef. They also include Hong Kong, Singapore, Malaysia, Taiwan and Australia. China may soon join the list.

The European Union (EU) announced it had no immediate plans to impose new restrictions on its imports of U.S. beef. Unfortunately for exporters, however, much of U.S. beef is already blocked from import into the EU due to European about the U.S. use of growth-producing hormones in cattle.

If the Bush Administration deploys stricter food safety regulations, and no further cases of mad cow -- or of CJD related to the consumption of beef -- are discovered in the U.S., then America may be able to win back the trust of those nations that are now blocking U.S. exports.

But it must act quickly. The GAO's 2002 Report predicted a potential loss of $15 billion if mad cow were found in the U.S. -- and that loss is already hitting home.

What stricter food safety regulations would look like

The GAO's 2002 report provides an excellent starting point for preventing BSE-contaminated cattle, beef and cattle-derived products from entering the U.S. marketplace.

In Britain, it appears cows became infected with mad cow by eating food containing diseased animal protein. Accordingly, in 1997, to avoid repeating Britain's mistakes, the USDA prohibited the use of most mammal protein in cattle feed and feed for other ruminants (but not in other animal feed, including food for pets, pigs, and horses).

In theory, the ban was an excellent idea. But in practice, it was not well-enforced. That has to change.

In its 2002 report, GAO pointed to "FDA's failure to enforce the feed ban." GAO found that "FDA has been using inaccurate, incomplete, and unreliable data to track and oversee feed ban compliance."

Moreover, GAO reported, when a violation of the ban was revealed, FDA did not act quickly enough to protect the public and punish offenders. For example, GAO found that FDA had "not acted promptly to compel firms to keep prohibited proteins out of cattle feed and to label animal feed that cannot be fed to cattle."

In addition, GAO worried that "FDA has no clear enforcement strategy for dealing with firms that do not obey the feed ban." In 1999, for instance, a mere two warning letters were sent. Later, in 2001, FDA issued warning letters to 48 more firms. But on November 30, 2001, when FDA re-inspected, 33 of the 50 firms that had received warning letters were still out of compliance. Six subsequently remained out of compliance.

Inadequate inspections led to inadequate enforcement of the feed ban

The problem, moreover, was not limited to enforcement, according to GAO; inspection to uncover violations was also deficient. GAO report noted numerous flaws in the FDA inspection system -- the growth of which, it noted, had failed to keep pace with the growth of beef imports.

The GAO found that programs for inspection of U.S. cattle and meat processing facilities were inadequate. Inspection within the U.S, for example, does not include an examination of animals that die of disease or other causes (rather than having been slaughtered) on U.S. farms. For obvious reasons, experts consider these animals a high-risk population.

From 1997 to 2001, the FDA conducted 12,000 inspections at more than 10,000 firms. As of October 2001, the FDA had listed 364 firms as being out of compliance. Industry estimates suggest, however, that 1,200 or more firms were not inspected, due to inadequate methods for identifying all companies subject to the feed ban.

The FDA database, meanwhile, was terribly flawed. With respect to 5,546 inspections -- 45 percent of the total -- the database's records lacked unique identifiers that would have linked the records to individual firms. Records often were incomplete, or contained inconsistent or inaccurate information. And they were not up to date, for information was not entered into the database in a timely manner. Finally, and perhaps most troubling, firms with blanks in data fields were listed as compliant -- not questionable!

Better inspection, better enforcement -- and other measures

It goes without saying that these woeful inspection and enforcement systems must be revamped. The FDA promised to do so in 2002. But other measures must be taken as well if the U.S. is going to protect its own citizens, and convince the world to resume trade relations.

First, all products, whether for domestic use or export, must be labeled if they are produced from bovine carcasses, central nervous system tissue, or blood. Such products may include dietary supplements, vaccines, cosmetics, surgical replacement tissue, and gelatin. As a the GAO report acknowledged, they may also include beef stock, beef extract, and beef flavoring -- which "are frequently made by boiling the skeletal remains (including the vertebral column) of the [animal's] carcass."

Moreover, consumers should know precisely which meat cuts are most at risk; T-bones, for instance, can include spinal cord material. (That's because the "T" in a T-bone steak is a vertebra from the animal's spinal column.) Other cuts that may include spinal cord include porterhouse, standing rib roast, and prime rib with bone.

Disturbingly, hot dogs and other products may also contain central nervous system tissue, but the USDA is not currently monitoring the issue closely, despite prohibiting this practice. It needs to begin doing so.

The GAO report recommended labeling in 2002. But the recommendation was ignored. If our government continues to ignore it, it puts consumers in needless peril.

Universal testing of downed animals is needed

"Downed" livestock are animals that cannot stand or walk on their own. This condition is likely a symptom of serious illness -- including possibly mad cow. The Washington cow that was diagnosed with mad cow was a downed dairy cow.

All downed livestock should be tested for mad cow before products derived from them can enter the food supply. World Health Organization guidelines counsel universal testing. Europe and Japan follow those guidelines. The U.S. does not. (Presidential candidate Howard Dean has urged universal testing, and contends it would cost only about 3 cents per pound of meat.)

Currently, in the U.S., only 1 percent or 2 percent of downed animals -- far too few -- are tested. Typically, the USDA tests only those downed livestock that were observed, before their death, to exhibit mad cow or other disease symptoms. But that is not enough.

Congress currently is considering proposed legislation that would ban the meat of downed animals from entering the human food supply. That legislation has not yet been enacted. While it passed the Senate, it was stripped out of the 2004 Omnibus Appropriations bill due to objections by members of the House of Representatives.

A compromise solution would be for the USDA to launch a "test and hold" system. Carcasses of "downer" cattle could not enter the market until tests show their meat is safe.

A complete ban or a test and hold system for downed cattle are vastly preferable to the current system of slaughter first and test only a smaller percentage later.

Even if Congress and the USDA continue to balk, it's possible the courts may intervene. On December 16, the U.S. Court of Appeals for the Second Circuit reinstated a lawsuit against USDA that is aimed precisely at stopping the sale of "downed" animals for human food because of the fear of mad cow disease. Interestingly, the court permitted the lawsuit to go forward before mad cow was discovered in the U.S.

If the plaintiff -- the nonprofit organization Farm Sanctuary -- wins, USDA may have to stop the sending of downed animals into the food supply, and onto our dinner plates, whether it wants to or not. Hopefully, however, it will choose to address this problem before a court forces it to.

We could have acted earlier to better prevent mad cow disease from entering the U.S. food supply. After all, its origin was exactly as predicted: the carcass of a downed animal. Had the 2002 GAO report been followed, that animal's remains might never have been sold to consumers. It's not too late to heed the GAO report now -- and prevent more mad cow cases, and even more -- and more irreparable -- risk to health, and damage to trade.

Columnist image

Anita Ramasastry, a FindLaw columnist, is an associate professor of law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology.


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