Creekstone Farms Premium Beef recently filed a lawsuit against the United States Department of Agriculture (USDA) to force the department to allow the company to test all of its beef for BSE. The company has sued the USDA for refusing to allow them to voluntarily test cattle for Bovine Spongiform Encephalopathy (BSE) at its Arkansas City, Kansas facility. Creekstone is challenging the USDA’s claim that it has the legal authority to control access to and the use of the “test kits” needed to perform BSE testing. Over the past two years, USDA has repeatedly denied Creekstone’s requests to conduct voluntary BSE testing, even though consumers around the world have expressed concern about human health and safety issues of limited and downscaled BSE testing.

An obscure 1913 Act is being cited by the USDA to control the sale of diagnostic test kits. The USDA is also concerned that if beef is not labeled BSE tested, then consumers will assume the non-tested meat is unsafe and this could create instability in the beef market. However, Creekstone has said that 100% BSE testing would only increase beef prices by less than ten cents per pound. Creekstone believes that if a company is willing to go above and beyond to ensure safety for their customers, and the company is willing to pay for 100% testing, then why are they disallowed by a government agency. In fact, the company has already invested hundreds of thousands of dollars for a BSE testing laboratory in the plant. Questions arise about whether the U.S. government truly believes more BSE testing is not needed (and even planned to be greatly downscaled) or whether the government is being unduly influenced by the powerful beef processing industry which has powerful lobbying abilities. In fact, the current USDA Secretary, Mike Johanns, has had very close ties with the beef industry and is considered to be aligned with them to the point of fault.

Jonathan Turley, a legal scholar and professor at George Washington university, likens the Bush administration's decision on Creekstone to that of "Soviet central planning: The government shoots the innovator to preserve market stability. Though President Bush invokes free-market principles when it comes to industry downsizing, "outsourcing" jobs, media mergers and energy deregulation, those principles apparently have their limits when a company seeks to become an industry leader in consumer protection."

The current voluntary system with no incentives for BSE testing if symptoms are obvious to determine the prevalence only of Mad Cow Disease has been criticized as dangerously inadequate. The question remains if the USDA and beef industry are afraid that more BSE cases will be found if more cows are tested.

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