R-CALF United Stockgrowers of America

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For Immediate Release Contact: Shae Dodson, Communications Coordinator

January 10, 2005 Phone: 406-672-8969; e-mail: sdodson@r-calfusa.com

Lawsuit Against USDA Far-Reaching, Comprehensive

(Billings, Mont.) – In a 36-page lawsuit filed today against the United States Department of Agriculture (USDA), R-CALF USA asked the U.S. District Court for the District of Montana for relief from USDA’s final action titled “Bovine Spongiform Encephalopathy; Minimal-Risk Regions and Importation of Commodities; Final Rule and Notice” (Final Rule).

R-CALF USA asserts that USDA’s Final Rule on bovine spongiform encephalopathy (BSE) endangers public health with neither adequate scientific, legal, nor risk analysis justification; that it is an arbitrary and capricious use of Agency power; it is an abuse of discretion; and, it is not in accordance with law.

R-CALF USA’s Complaint states the Final Rule will expose U.S. consumers to an un-quantified increase in risk from imported beef products of contracting variant Creutzfeldt Jakob disease (vCJD), an invariably fatal disease associated with consumption of BSE-contaminated meat; that it will increase the risk of BSE infection in cattle in the United States by an un-quantified amount; and, that it will expose U.S. cattle producers to severe and unnecessary economic hardship.

The Complaint explains there is a legal presumption against relaxation of animal health and human health protections, such as the current ban on importation of live ruminants and ruminant products from countries where BSE is known to exist. It points out that former Agriculture Secretary Ann Veneman’s own Advisory Committee on Foreign Animal and Poultry Diseases has cautioned against making any relaxation in BSE protections until a thorough and scientific risk assessment is completed. It also notes that USDA has not provided any scientific quantification of the risks to U.S. cattle and U.S. citizens from Canadian cattle and beef in making its Final Rule.

USDA’s decision to relax import restrictions for Canada reflects a belief that imports present only “low,” hence presumably acceptable risks of BSE and vCJD in the U.S. But, the Complaint alleges that USDA did not provide any rational scientific basis for this belief, which appears to be contradicted by continuing discoveries of BSE in the Canadian cattle herd. USDA did not conduct a quantitative or supportable qualitative assessment of risk specifically for Canadian imports, nor did it define what “low” means. Neither did USDA specify how many head of U.S. cattle might be expected to contract BSE. USDA gave no answers on how much of the U.S. meat supply might be contaminated with the BSE infective agent, how many U.S. consumers may be at risk for contracting vCJD, nor how soon these things might occur if Canadian imports resume.

The Complaint charges USDA failed to conduct any scientific assessment of the most important issue for the Final Rule – whether the health of U.S. consumers will be endangered. The Complaint asserts that none of the risk assessments relied upon by USDA, when it concluded that the risks to human health are acceptable, even addressed the risk to human health from consuming BSE-contaminated meat

As an example of USDA’s failure to address human health, the Complaint points out that USDA does not require Canadian cattle inadvertently slaughtered at 30 months of age or older to be kept out of the United States’ human food supply. (Such protection is provided against over-aged sheep and goats, but not cattle.) Nor does USDA explain why it is relaxing protections against imports of cattle more than 30 months old – a basic safety measure assumed throughout the agency’s entire 2003 Risk Analysis.

The Complaint asserts the Final Rule will adversely affect the cattle market by creating a system that will predictably allow BSE-contaminated meat to be introduced into the United States; that will let undetected BSE-infected live cattle be introduced into the United States; that will increase the risk of contaminating U.S. cattle feeds with BSE; that will reduce export markets for U.S. beef; and that will increase quantity but reduce safety of cattle and beef in the United States.

The Complaint states that, even by USDA estimates, the Final Rule will have dramatic adverse economic effects on U.S. cattle producers, with a present-value estimated cost ranging from $2 billion to $3 billion. The Complaint states USDA was wrong to assume the Final Rule will have no effect on consumer demand (domestic and foreign) for U.S. beef. The Complaint also calls USDA’s conclusion that consumers will benefit from the Final Rule misleading: “the claimed benefit to ‘consumers’ is really a benefit to ‘fed cattle consumers,’ i.e. meat packers and supermarkets. Economic impacts for the public are predicted to be negative.”

The Complaint criticizes USDA for failing to consider alternatives to the Final Rule that would mitigate adverse impacts on the U.S. cattle markets and the public, stating that USDA failed to give consumers the information needed to protect themselves against any potential exposure to BSE in Canadian cattle by requiring Canadian beef to be labeled. Moreover, USDA refuses to allow private meatpackers to voluntarily test the cattle they slaughter for BSE in order to bolster both domestic and international consumer confidence. Thus, the Final Rule neither requires that Canadian beef be labeled, nor does it allow private meatpackers to alleviate the economic and product quality harm done by mixing BSE-prone Canadian beef with BSE-free USA beef by allowing these private meatpackers to conduct their own tests.

The Complaint alleges it appears that “USDA has based the Final Rule on considerations of relations with the government of Canada and economic impacts of the import ban on ranchers and others in Canada,” rather than on protecting the health and choices of U.S. consumers. It criticizes USDA for consistently making optimistic assumptions about risk, when scientific evidence is equivocal or suggests a much higher risk. It cites USDA‘s expressed lack of concern over data that contradict its assumptions. For example, the three most recently confirmed BSE cases in Canadian cattle make irrelevant USDA’s posture of testing to find out whether a prevalence of even 1 case in one million might exist in Canada. Clearly there has been a prevalence of BSE in Canada, and clearly, it appears to be substantially greater than the theoretical target of 1 in 1,000,000. “Each discovery of BSE in an animal raised in Canada increases the statistical probability that BSE-infected animals or meat will be brought into the United States under the Final Rule,” but, the Complaint alleges USDA “has refused to recognize that scientific fact.” Instead, the Complaint contends USDA relied on key assumptions that either have no scientific support, or are contrary to some or all of the available scientific data. Some of the unsupported or incorrect assumptions underpinning the Final Rule include:

1. USDA assumed very low incidence of BSE in the Canadian herd, while available data collected since 2001 suggest a BSE incidence on the order of that of the most BSE-affected countries in the world.

2. USDA assumed virtually no risk that BSE-infected cattle or meat will enter the United States, yet it is statistically almost certain that BSE-infected animals or meat will in fact enter the United States under the Final Rule if recent data on Canadian BSE levels are representative of what the future is likely to hold.

3. USDA assumed the Canadian feed ban is effective. Yet, a 2004 Canadian Food Inspection Agency study showed that 71 percent of Canadian-manufactured feed labeled as vegetable-only contained undeclared animal protein. Canadian investigations have revealed that almost 2,000 head of Canadian cattle may have been exposed to BSE-contaminated feed because of the rendering of the BSE-infected animal discovered in Canada in May 2003. A U.S. Government Accounting Office study in 2002 showed inadequate enforcement and significant noncompliance among feed manufacturers in U.S. with a similar feed ban in the United States. The agency’s own International Review Team that responded to the discovery of the BSE-infected cow in Washington state concluded that “…the partial ruminant to ruminant feed ban that is currently in place [in the U.S.] is insufficient to prevent exposure of cattle to the BSE agent.”

4. USDA assumed Canada’s feed ban will prevent BSE infection in animals born after its August 1997 implementation, based on experience in the United Kingdom (UK) and Europe. Yet, the UK documented over 45,698 cases of BSE (over one-quarter of all BSE cases detected in the UK) in cattle born during the 12 years following the implementation of its 1988 feed ban.

5. USDA assumed that neither the discovery of a BSE-infected Canadian-born cow in Washington state in December 2003, nor the subsequent discovery of an additional BSE-infected cow in Canada at the end of 2004 should cause USDA to revise or seriously reconsider its determination that opening the border to Canadian cattle and meat would present little risk to U.S. animals, human consumers, and the U.S. livestock industry. This amounts to a refusal to allow overwhelming statistical evidence of a continuing BSE problem to affect a policy that will result in a BSE problem being imported into the U.S.

6. USDA assumed that blood was not at risk even though the agency acknowledged the potential of transmission of BSE through blood when it decided to ban importation of fetal blood serum from Canada. And yet, USDA ignored the implications of this risk for importing meat and cattle from Canada.

7. USDA assumed that the potential contamination of meat with BSE at levels that are undetectable with current technology presents an unknown risk to consumers, and yet assumed this unknown risk is acceptably low.

8. USDA assumed that cattle under 30 months of age do not carry significant accumulations of BSE prions, and that most bovine carcass parts defined as Specified Risk Materials (SRMs) need only be removed from animals older than 30 months of age, despite more than 20 confirmed cases worldwide of BSE in cattle younger than 30 months of age, and despite requirements in the European Union that SRMs be removed from all cattle over 12 months of age.

9. USDA assumed the risk presented by the relaxation of preexisting safety standards by the Final Rule is low, without attempting a credible quantitative assessment of the risk – and without describing the level of risk that the agency considers to be “low,” and without comparing it to what other countries mean by “low.”

10. USDA assumed the Final Rule will not affect the resumption of exports of beef from the U.S., when the Final Rule allows co-mingling of U.S. meat with meat from a country with a demonstrated BSE problem. The Final Rule also departs from OIE recommendations without any indication that other countries will accept these departures.

The Final Rule is impermissibly vague with respect to the feed ban – the measure USDA’s risk analysis considers the single most important factor in preventing the spread of BSE. It is unclear what USDA means by the requirement that cattle “have been subject to” an equivalent feed ban – a fundamental requirement for the importation of meat. Because of the vague and ambiguous nature of this portion of the rule, the public does not know if it will be consuming beef from higher-risk Canadian cattle born before Canada implemented its feed ban.

Also concerning the effectiveness of the U.S. feed ban, the Complaint points out that without prohibiting the current use of cattle protein in poultry feed, and without prohibiting the use of poultry litter in cattle feed, the Final Rule creates a risk of transmission of BSE from Canadian cattle imported into the U.S. to domestic cattle, USDA improperly moved forward with lifting the ban on importing Canadian cattle while still considering the necessary measures to address poultry feed and wastes.

The Complaint emphasizes that USDA failed to apply the precautionary principles inherent in the legislation it implements and is improperly emphasizing certain economic interests and foreign policy concerns over the health and well being of U.S. consumers, cattle, and cattle producers.

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Note: To view R-CALF USA’s lawsuit in its entirety, log on to: www.r-calfusa.com and click on “BSE-Litigation.” To view the latest news releases from R-CALF USA, scroll down the menu on the left side of the page and click on “News Releases.”

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R-CALF USA (Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America) represents thousands of U.S. cattle producers on domestic and international trade and marketing issues. R-CALF USA, a national, non-profit organization, is dedicated to ensuring the continued profitability and viability of the U.S. cattle industry. R-CALF USA’s membership consists primarily of cow-calf operators, cattle backgrounders, and feedlot owners. Its members – over 12,000 strong – are located in 46 states, and the organization has over 60 local and state association affiliates, from both cattle and farm organizations. Various main street businesses are associate members of R-CALF USA. For more information, visit www.r-calfusa.com or, call 406-252-2516.