Horses are Pets - Not Sandwiches

By: Breck Norment, Staff Member

More than a year ago, Congress effectively lifted a ban on horse slaughtering in the United States.[1] Now, companies can apply to the USDA to obtain equine inspection services to cash in on the potentially profitable business of horse slaughtering for human consumption.[2] Valley Meat Company, one such business in New Mexico, claims the USDA is resisting its application by "dragging its feet" instead of providing the requested inspection services.[3] Valley Meat Co. sued the USDA, claiming the agency was politically motivated in its attempt to delay or stop the company's horse slaughtering business.[4]

As previously discussed on KJEANRL.com, Congress's latest attempts to ban the slaughter of American horses domestically and abroad have been unsuccessful thus far.[5] Meanwhile, some areas of the country have passed bans on the slaughter of horses for human consumption within their own jurisdiction.[6] On the western side of the United States, Snohomish County "voted unanimously... to ban the slaughter of horses[.]"[7]

Some argue that regulation of horse slaughtering in the United States allows for more humane treatment of animals during slaughter,[8] but my concern runs to the foundation of this entire concept. I believe we need to tread lightly down this path. In our culture, animals serve various purposes. Some help with our jobs, some help feed our nation, and some help keep us company. These lines need not be blurred.

Our culture has well-defined categories of meat that we consider acceptable. If you ask the average American, I would guess he or she would not recognize horse meat as a favorite cuisine. Overall, my main concern is the nature of this slippery slope. Which pet will we consider a meal next?
[1] Dan Flynn, Valley Meat Goes to Court to Get Equine Inspection ServicesFood Safety News (Dec. 22, 2012), http://www.foodsafetynews.com/2012/12/valley-meat-goes-to-court-to-get-equine-inspection-services/#.UOCFYKzhesB.
[2] Id.
[3] Id.
[4] Jeri Clausing, New Mexico meat company sues feds, claiming inaction is delaying horse slaughterhouse openingFoxNews.com (Dec. 20, 2012), http://www.foxnews.com/us/2012/12/20/new-mexico-meat-company-sues-feds-claiming-inaction-is-delaying-horse/.
[5] H.R. 2966: American Horse Slaughter Prevention ActGovTrack.us, http://www.govtrack.us/congress/bills/112/hr2966/text (last visited Dec. 31, 2012).
[6] Lornet Turnbull, Snohomish County Council bans slaughter of horses for foodThe Seattle Times (Dec. 19, 2012), http://seattletimes.com/html/localnews/2019939777_slaughter20.html.
[7] Id.
[8] See Clausing, supra note 4.

The Drought's effect on corn and its subsequent effect on meat prices

By: Toney Robinette, Staff Member  

The United States is currently facing the worst drought since 1956.[1]  The drought is causing several food crops around the nation to die in the field.  Corn is the nation's largest legal cash crop, with an estimated value of $76.5 billion in 2011, and this drop in production may cause serious price increases.[2]  Missouri and Indiana are also having poor or very poor crops in more than 70% of their corn yields.[3]  This significant drop in yield has caused prices to increase by 55% since June 15th.[4]  This means that corn prices have increased to $7.96 per bushel.[5] Because corn is such an integral part of industry and food production this could have a far reaching impact beyond what consumers pay for it at the grocery store.  Corn is an essential feed for several types of domesticated livestock like chicken and cattle.  It is also used in ethanol and as an artificial sweetener.  Its myriad of uses could cause costs to increase for companies such as General Mills, Coca-cola and McDonald's.[6]  This means that costs from meat, sweetener and even fuel could increase due to the drought.  While food prices typically only increase around 1% overall for every 50% increase in corn prices, other more attenuated food types see larger increases.  For example, meat prices could possibly increase by nearly 10% due to the drought's effects on corn yield.[7]

This significant drop in production is also uniquely affecting the Commonwealth.  The USDA's weekly crop bulletin said the Commonwealth of Kentucky has been experiencing the worst effects on its corn crop with 77 percent of the crop being of poor or very poor conditions.[8]  The University of Kentucky's Forage Specialist Garry Lacefield says that one of the major effects of a drought on corn growth is the issue of nitrogen build up.[9]  Nitrogen is an essential element in the growth and development of corn but without any water the nitrogen is not converted into useful materials.  Corn is often used as feed for cattle but this nitrogen build up could possibly damage this crop's potential for use in cattle feed.  If the Commonwealth's corn fields do not receive enough water, the nitrogen levels could reach such a level that using the corn as feed could prove toxic to cattle.  While silage, a process in which corn is stored in a silo without drying, could lower nitrogen levels by 30 to 50 percent, it may still be toxic to many head of cattle.[10]  Lacefield recommends more nitrogen testing before administering the corn as feed but this could further increase already high meat prices.  On top of the already increased meat prices and the possible death of cattle due to nitrogen, Kentucky could also possibly see an increase in meat prices higher than anywhere else in the country.

[1] Angelo Young, No Respite for US Crops; Kentucky Corn Hit Hardest, International Business Times (July 19, 2012), http://www.ibtimes.com/articles/364740/20120719/corn-prices-drought-2008-food-crisis-heatwave.htm.
[2] Luzi Ann Javier and Jeff Wilson, Crop Prices Drop After Surging to Record on U.S. Midwest, Bloomsburg Business Week (Jul. 23, 2012), http://www.businessweek.com/news/2012-07-23/crop-prices-drop-after-surging-to-record-on-u-dot-s-dot-drought.
[3] Weekly Weather and Crop Bulletin, U.S. Dept. of Agriculture  (Jul. 17, 2012), http://www.usda.gov/oce/weather/pubs/Weekly/Wwcb/wwcb.pdf
[4] Supra note 2.
[5] Hibah Yousuf, Corn, Soybean Prices Shoot Up as Drought Worsens, CNN Money (Jul. 20, 2012), http://money.cnn.com/2012/07/19/investing/corn-soybean-prices/index.htm.
[6] Id.
[7] Hibah Yousuf, Your Burger is About to get Pricier, CNN Money (Jul. 18, 2012), http://money.cnn.com/2012/07/18/investing/corn-prices-food-inflation/index.htm?iid=EL.
[8] Supra note 3.
[9] Angela Hatton, Nitrogen Levels High in Drought Damaged Corn, WKMS (Jul. 17, 2012), http://wkms.org/post/nitrogen-levels-high-drought-damaged-corn.
[10] Id.

Federal budget cuts place key USDA programs at-risk

By: Colby Khoshreza, Staff Member 

President Barack Obama’s recent budget proposal to Congress includes a variety of cuts to federal programs including substantial reductions to the United States Department of Agriculture (USDA).  The reductions include a $3 billion decrease in the USDA budget in fiscal year 2012, thus bringing total spending to approximately $145 billion.[1]  The changes are likely to have a significant impact on farmers and consumers as the proposed budget calls for ending direct payments to major growers regardless of commodity prices, eliminates bacteria testing of produce and decreases funding for the Supplemental Nutrition Assistance Program (SNAP).[2]
Under the proposed budget, farmer aid would briefly rise before facing a long-term reduction as a result of Washington budget woes and increased farm profits.[3]  The cuts would end direct payments paid to growers of major crops regardless of commodity prices saving $22.7 billion through 2022.[4]  While these cuts could have long-term impact on the survival of farms, especially small and family-owned farms, the cuts are offset by record farms profits in 2011, thus lowering the need for crop subsidies.[5]
Consumers could be impacted by the proposed budget’s decision to eliminate the agency’s only program that regularly tests fruits and vegetables for deadly pathogens.[6]  According to the White House, the decision to eliminate the $5 million per year program was made after “the USDA determined it had a limited impact.”[7]  As a result, consumers may be left without adequate protection as public health officials will have fewer tools to investigate deadly food borne illness outbreaks.  While the USDA has argued that state and local officials are better equipped to perform this function, lack of funding at the local level continues to be a problem in maintaining food safety programs.[8] 
Another major program that will face small decreases as a result of the proposed budget is the Supplemental Nutrition Assistance Program.[9]  The SNAP budget, typically recognized as the food stamp program, would decrease by nearly 1% in 2013, a reduction that occurs at a time when one out of six people are receiving assistance.[10]  SNAP is the USDA’s largest budgetary item and compromises $87.5 billion per year of the agency’s budget.  While the decrease comes at a time when a large number of Americans depend on the assistance, the USDA predicts that as the economy continues to improve fewer individuals will rely on the program.[11] 
Washington budget cuts appear to result in a large impact on the overall operation of the United States Department of Agriculture.  From food stamps to food inspection and farmer aid, the agency’s various programs all seem to be evolving and decreasing in funding and impact.  While local and state government is often expected to fill the voids left by USDA cuts, this often does not occur as municipal governments are facing budget woes of their own.  The next couple of years will be crucial in examining the impact, if any, that these financial changes will have on food safety and farm stability.    

[1] Daniel Looker, Obama’s USDA Budget to Shrink $3 billion in 2012, (Feb. 14, 2012), http://www.agriculture.com/news/policy/obamas-usda-budget-to-shrink-3-billion_4-ar14688
[2] Alan Bjerga, USDA Budget Would Rise 2.5% Before Subsidy Cuts Would Begin, BUSINESS WEEK (Feb. 16, 2012), http://www.businessweek.com/news/2012-02-16/usda-budget-would-rise-2-5-before-subsidy-cuts-begin.html. 
[3] Id. 
[4] Id. 
[5] Id.
[6] Budget cuts could eliminate bacterial testing of produce, CHRON ONLINE (Feb. 16, 2012), http://www.chron.com/news/nation-world/article/Budget-cuts-could-eliminate-bacteria-testing-of-3337342.php.
[7] Id.
[8] Id.
[9] Alan Bjerga, USDA Budget Would Rise 2.5% Before Subsidy Cuts Would Begin, BUSINESS WEEK (Feb. 16, 2012), http://www.businessweek.com/news/2012-02-16/usda-budget-would-rise-2-5-before-subsidy-cuts-begin.html.
[10] Id.
[11] Id.

A Jack of All Trades: The King of Silicon Valley Weighs in on International Agriculture



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By: Alex Crawley, Staff Member

Although Bill Gates is probably most famous for being the self-made billionaire who created the powerhouse Microsoft, he has recently made headlines for issues far removed from software.[1] Lately, he has been speaking out about the funding for agricultural research, or rather, the lack thereof.[2] In addition to speaking out on BBC’S Today,[3] he recently devoted nearly his entire annual letter on behalf of the Bill and Melinda Gates Foundation, which was twenty-four pages long, to the issue of world hunger and to encouraging investment into agricultural research.[4]

Gates’ letter focuses mainly on the “15% of the world [just over 1 billion people] in extreme poverty.” [5] He is urging more people to “mak[e] the choice to keep on helping extremely poor people build self-sufficiency,” and emphasizing that, while farming is integral to poor countries, rich countries have largely turned their backs on agriculture.[6] Considering that only $3 billion per year is spent globally on agricultural research, he has a valid point.[7]

The Gates Foundation has spent about $2 billion dollars over the past five years to supplement research that would help to alleviate the global food crisis.[8] Gates is especially focused on the research into genetically modified foods, and has specifically praised the work of Norman Bourlaug, a Nobel Prize winner who helped create new strains of wheat that were resistant to wheat stem rust, a fungus that had previously plagued wheat crops.[9] He is advocating for more innovations like this one, especially considering that new forms of wheat rust have since developed and moved from Uganda to Iran and Yemen.[10]

Gates’ position on agricultural research has created some otherwise unlikely allies and piqued the interest of many. The Crop Protection Association Society has endorsed his view internationally, and has agreed that “high-tech food production systems” are an integral part of the answer to “the food poverty crisis.”[11] Meanwhile, U.S. groups, like the U.S. Farmers & Ranchers Alliance, have also taken an interest.[12]

Gates’ plea comes at a crucial time. The EU’s policies are currently inhibiting innovative agricultural research,[13] and the USDA has recently decreased its research centers in response to congressional budget cuts.[14] The Gates Foundation, however, has given grants to the Food and Agriculture Organization of the United Nations[15] and the International Food Policy Research Institute.[16] Hopefully, the Gate’s Foundation good-will initiative will inspire other organizations to invest in this area “where there is less profit opportunity but where the impact for those in need is very high.”[17] Otherwise, “one in seven people will continue living needlessly on the edge of starvation.”[18]

[1] Logan Hawkes, GMO Crops Get Big Backer in Bill Gates, Western Farm Press, 1 (Feb. 1, 2012, 11:21 AM), http://westernfarmpress.com/government/gmo-crops-get-big-backer-bill-gates?page=1.

[2]Gates Foundation Calls for More Ag Research Funding, The United States Agricultural & Food Law and Policy Blog, http://www.agandfoodlaw.com/2012/02/gates-foundation-calls-for-more-ag.html.

[3]Dan Colombini & Mike Stones, Bill Gates and CPA Urge Support for GM Techniques, Foodmanufacture.co.uk (Jan. 25, 2012), http://www.foodmanufacture.co.uk/World-News/Bill-Gates-and-CPA-urge-support-for-GM-techniques.

[4]Hawkes, supra note 1.

[5]2012 Annual Letter From Bill Gates, Bill & Melinda Gates Foundation, 1 (Jan. 2012), http://www.gatesfoundation.org/annual-letter/2012/Documents/2012-annual-letter-english.pdf.

[6] 2012 Annual Letter From Bill Gates, supra note 5 at.

[7] 2012 Annual Letter From Bill Gates, supra note 5at 3.

[8] Hawkes, supra note 1.

[9] 2012 Annual Letter From Bill Gates, supra note 5 at 5.

[10] 2012 Annual Letter From Bill Gates, supra note 5 at 5.

[11] Colombini & Stones, supra note 3.

[12] Bill Gates and CPA Urge Support for GM Techniques, U.S. Farmers & Ranchers Alliance (Jan. 25, 2012) http://usfraonline.org/2012/01/bill-gates-and-cpa-urge-support-for-gm-techniques/.

[13] Colombini & Stones, supra note 3.

[14] Hawkes, supra note 1 at 2.

[15] Food and Agriculture Organization of the United Nations, Bill & Melinda Gates Foundation (Nov. 2011), http://www.gatesfoundation.org/Grants-2011/Pages/Food-and-Agriculture-Organization-of-the-United-Nations-OPP1029955.aspx.

[16] International Food Policy Research Institute, Bill & Melinda Gates Foundation (Nov. 2011), http://www.gatesfoundation.org/Grants-2011/Pages/International-Food-Policy-Research-Institute-OPPGD1451.aspx.

[17] 2012 Annual Letter From Bill Gates, supra note 5.

[18] 2012 Annual Letter From Bill Gates, supra note 5.

APHIS Announces New Procedures to Regulate Contagious Equine Metritis


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By: Jocelyn Arlinghaus, Staff Member

The beginning of 2012 has heralded new developments in the fight to eliminate contagious equine metritis (CEM) in the United States. CEM is a venereal disease common to horses caused by the bacterium Taylorella equigenitalis.[1] It is considered extremely dangerous due to its highly contagious nature.[2] The disease is typically transmitted via sexual intercourse during the mating process, but it may also be transmitted through artificial insemination or contact with hands or instruments that have been contaminated.[3] Common symptoms include vaginal discharge, uterine inflammation, and temporary infertility.[4] Stallions show no physical signs of CEM, which makes detecting and controlling the disease before it spreads extremely difficult.[5] During breeding season, a stallion often infects several mares before the presence of the disease is discovered.[6]

CEM was first diagnosed in England in 1977, but had spread to the United States by 1978 with reports documented in central Kentucky and Missouri.[7] The disease was treated and thought to be eliminated from the United States prior to 2006, when two imported stallions in Wisconsin tested positive for the CEM bacteria.[8] Another outbreak was confirmed in December 2008, when five mares and 23 stallions in eight states tested positive for the CEM bacterium.[9] Although the 28 initially discovered horses were cured of the disease, another 977 horses were exposed to Taylorella equigenitalis in the outbreak, which spanned 48 states.[10] CEM was subsequently discovered in Arabian stallions in May 2010 in California and in July 2011 in Arizona.[11] The USDA’s National Veterinary Service (NVSL) has confirmed that in all cases the infected stallions were contaminated prior to arrival in the United States.[12] Interestingly, the strain of the isolated bacterium in these new cases did not match any strains previously found in the United States, which indicated that the multiple outbreaks were unrelated and therefore developed as a result of separate equine imports from foreign countries.[13] Efforts to eradicate the recent string of outbreaks in the United States continue. Because mares can only be bred during certain times of the year, CEM can substantially impact equine reproductive efficiency.[14] If the disease continues to stabilize in the United States, the equine industry will face great economic losses.[15]

The United States Department of Agriculture Animal and Plant Inspection Service (APHIS) has been taking steps to provide additional safeguards against spreading CEM to horses in United States through importation of infected horses. In 2011, APHIS amended the regulations concerning the importation of horses from countries affected with CEM. The new standards require test mares and imported stallions above a certain age to undergo an additional CEM test to improve the chances of detecting the disease.[16] APHIS has also imposed stricter certification requirements for imported horses 731 days old or less and added new test measures for imported horses more than 731 days old. [17] Yearlings and weanlings require proof that they have not been bread to other horses through artificial insemination in order to be imported.[18]

On January 10, 2012, APHIS announced that it will post lists of states approved to receive imported horses from high-CEM foreign regions to its website rather than including them in the Code of Federal Regulations.[19] This change will not affect the criteria that APHIS uses to determine whether a foreign region should be added or removed from the list or criteria used to approve states to receive horses imported from high-CEM foreign countries.[20] Because these lists will not continue to appear in the Code of Federal Regulations, updates are no longer required to be legislated. [21] This new procedure will enable APHIS to more quickly identify changes in the CEM status of foreign regions and approve states to receive horses from foreign regions where CEM is known to exist.[22] Additionally, this will simplify the process of informing the equine community and the public of any concerns of possible CEM exposure to horses in certain areas of the country. APHIS considers this change to be another step toward eliminating the string of CEM outbreaks and improving the welfare of horses and the equine industry.

[1] Contagious Equine Metritis, United States Department of Agriculture Animal and Plant Health Inspection Service (Mar. 2009), http://www.aphis.usda.gov/publications/animal_health/content/printable_version/fs_CEMrev09.pdf

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] United States Department of Agriculture Animal and Plant Health Inspection Service, supra note 1.

[7] Id.

[8] Id.

[9] Contagious Equine Metritis Cases, United States Department of Agriculture Animal and Plant Health Inspection Service, http://www.aphis.usda.gov/newsroom/hot_issues/cem/cem_cases.shtml#december (last modified Jan. 26, 2012).

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] United States Department of Agriculture Animal and Plant Health Inspection Service, supra note 1.

[15] Id.

[16] USDA Announces Interim Rule Regarding the Importation of Horses from Contagious Equine Metritis - Affected Countries, United States Department of Agriculture Animal and Plant Health Inspection Service (Mar. 25, 2011), http://www.aphis.usda.gov/newsroom/2011/03/importhorse_cemacountr.shtml

[17] Importation of Horses From Contagious Equine Metritis-Affected Countries, 76 Fed. Reg. 58 (proposed Mar. 25, 2011) (to be codified at 9 C.F.R. pt. 93).

[18] United States Department of Agriculture Animal and Plant Health Inspection Service, supra note 16.

[19] Lists of Regions Classified With Respect to Certain Animal Diseases and States Approved To Receive Certain Imported Horses, 77 Fed. Reg. 1388 (proposed Jan. 10, 2012), (to be codified at 9 C.F.R. pts. 92, 93, 94, 96, 98).

[20] Id.

[21] Id.

[22] Id.

Animals (and Disease) on the Move: Implementation and Implications of the National Animal Identification System (NAIS)

The following post was written by staff member Stephanie Wurdock.

With the arrival of the H1N1 outbreak this year, national concern has arisen regarding the ease and speed at which a disease can move through a population. Alarm accompanies virtually all new strains of disease and rears its ugly head on a relatively regular basis. While diseases that affect humans are often the main focus, they are not the only cause for concern in the community. In 2004, the United States Department of Agriculture (USDA) recognized a concern for disease outbreak in the agricultural community, as well. In response, the USDA introduced the National Animal Identification System (NAIS) to safeguard the health of livestock and poultry and the economic interests of those industries. The Kentucky Horse Council, http://www.kentuckyhorse.org/nais (last visited Nov. 1, 2009).

NAIS creates a partnership between the affected industries and state and federal governments whose main task is to form a fast-acting disease response network. United States Department of Agriculture: National Animal Identification System (NAIS), http://animalid.aphis.usda.gov/nais/index.shtml (last visited Nov. 1, 2009). Once implemented and enforced, NAIS will provide the USDA with the tools to (1) pinpoint the origin of harmful disease, and (2) impede the spreading thereof. Whenever there is an outbreak of disease, animal health officials will, within 48 hours, be able to identify which animals are involved, where those animals are currently located, and what other animals may also have been exposed. Id.

Producers can participate in NAIS in any or all of three ways: premises regulation, animal identification, or animal tracing. Premises regulation operates by requiring producers to identify the geographic location where their animals are raised, housed, or boarded. USDA: About NAIS, http://animalid.aphis.usda.gov/nais/about/nais_components.shtml (last visited Nov. 1, 2009). Currently 14,000 of 61,000 premises in the state of Kentucky are registered. Kentucky Department of Agriculture: Office of State Veterinarian, http://www.kyagr.com/statevet/nais/index.htm (last visited Nov. 1, 2009). Producers register their premises by completing a Premises Identification Number (PIN) application on their state department of agriculture website or by contacting their state or tribal NAIS administrator. USDA: Premises Regulation, http://animalid.aphis.usda.gov/nais/premises_id/index.shtml (last visited Nov. 1, 2009). The application process is free to the producer and protects his private and confidential business information. Id.

Because a single report of disease such as Bovine Tuberculosis or Equine Viral Arteritis can rapidly halt the movement of animals and raise questions about their health, it carries significant negative consequences for the owner. Id. Some of these consequences include lower selling prices, lost jobs, and decreased income. Premises regulation takes the unaffected producer out of the equation and allows him to maintain the luxury to move his animals freely. Id.

Animal identification is the second way in which producers can participate in NAIS. During this process, an identification number is assigned to either an individual animal (Animal Identification Number, AIN) or a group of animals (Group/Lot Identification Number, GIN). See supra USDA: About NAIS. The AIN or GIN is attached to the animal using either an ear tag or injective responder, and it remains associated with that animal throughout its entire lifetime. Id.

The final way a producer can participate is through animal tracing, a process that allows the USDA to access animal movement records and locate at-risk animals. Id. The main component is a network of Animal Tracking Databases (ATDs) that makes it easy for producers, the state, industry, and the USDA to define the scope of a particular disease and locate infected animals. USDA: Animal Tracing, http://animalid.aphis.usda.gov/nais/animal_track/index.shtml (last visited Nov. 1, 2009). This is perhaps the least developed component of NAIS.

NAIS is important for the agricultural industry because it plays an important role in monitoring, eradicating, and controlling harmful diseases such as Bovine Tuberculosis and Equine Viral Arteritis that can have widespread consequences. USDA: Why NAIS, http://animalid.aphis.usda.gov/nais/why/animal_disease.shtml (last visited Nov. 1, 2009). The program is not, however, well received by many members of the agricultural community. These producers, owners, and associations debate the program's value in consideration with its significant costs. See supra The Kentucky Horse Council.

Some of critics' concerns are that full implementation will be too expensive for small operations to afford, will be too difficult to manage, and a will be a sneaky opportunity for the government to tax non-commercial animals. Id. Websites such as "NoNAIS.org," launched in 2006, characterize the program as a "violation to the traditional right to farm." NoNAIS.org, http://nonais.org/ (last visited Nov. 1, 2009). They focus on the possibility that there would be no exceptions to the registration requirements. As a result, every Mom and Pop operation would eventually be ordered to register as "farm premises" which would entail considerable paperwork and the payment of fees. Some negative consequences, they argue, would be higher food prices, forced registration of non-commercial animals (pets), tedious record-keeping and inordinate costs to small farmers who cannot qualify for Group/Lot Identification. Id.

In order to address these concerns and encourage participation, the USDA has implemented a phased-in approach. And, although there is speculation that the voluntary program may someday become mandatory, no such steps have been taken to reach that result. See supra The Kentucky Horse Council.

During this time, while NAIS is still voluntary, the state of Kentucky and the federal government must weigh the potential costs and benefits of the program in light of the entire agricultural community. They must consider the realistic outcomes for American producers and owners, both large and small, and determine whether or not it would be possible for NAIS to enjoy the same success as it has in other countries such as the European Union, Canada, and Australia. See supra Kentucky Department of Agriculture: Office of State Veterinarian.

Do the United States’ Food Labeling Laws, specifically those regarding Pork, violate International Law?

The following post was written by staff member Erin Boggs.

Although the United States and Canada share a border, that border has lately been characterized by a number of trade disputes. In addition to struggles over lumber, the United States recently began full-time enactment of a 2002 law that requires all pork processed in the United States to carry a label identifying its country of origin. See Country of Origin Labeling for Fish and Shellfish, 7 C.F.R § 60 ( 2009); Country of Origin Labeling of Beef, Pork, Lamb, Chicken, Goat Meat, Perishable Agricultural Commodities, Macadamia Nuts, Pecans, Peanuts, and Ginseng, 7 C.F.R. § 65 (2009). The law also requires this labeling for a number of other foods, with a few exceptions but the exceptions are an issue for another day. Today we focus on the effect this labeling has on the trade of meat between the United States and other countries, specifically pork, which can be traced to a single country of origin and is ineligible for a "mixed label." Country of Origin Labeling, or "COOL", also requires producers to separate the animals before processing. See id. Many U.S. pork producers ship young animals into the country and raise them in the U.S. for local slaughtering and processing. See
Bob Burgdorfer, New Label Law Shakes Up U.S. Meat Industry, REUTERS, Apr. 8, 2009, available at http://www.reuters.com/article/rbssFoodProcessing/idUSN0148935020090408?pageNumber=1&virtualBrandChannel=0. Canada claims that the regulation has severely harmed its hog farming trade, and in protest of the new labeling laws has taken the dispute to the World Trade Organization for settlement. Barbie McKenna, Canada Turns to WTO Over U.S. Labeling Law, THE GLOBE AND MAIL, Oct. 9, 2009, available at http://www.theglobeandmail.com/report-on-business/canada-turns-to-wto-over-us-label-law/article1316325/. The United States, on the other hand, argues that food labeling laws exist to protect consumers and it is a well-settled point of international law that such labels are permissible. See id.

The legality of the U.S. statute is, of course, in question. Advocates claim it will allow consumers to make more informed decisions as they purchase food, and will encourage them to buy food from the United States. Many others, however, see the law as entirely protectionist and claim it violates the North American Free Trade Agreement or "NAFTA". The World Trade Organization or 'WTO", in its arbitration, allows countries to enact measures to ensure food safety. These regulations are judged under the Sanitary and Phytosanitary Measures Agreement, or "SPS." Other regulations are measured against the Technical Barriers to Trade Agreement, or "TBT." The regulations at issue most likely fall under the TBT agreement, as SPS does not cover regulations designed to protect consumer interests, such as labeling. See World Trade Organization, Technical Barriers to Trade – Technical Information, http://www.wto.org/english/tratop_e/tbt_e/tbt_info_e.htm (last visited Oct. 22, 2009). The standards set by countries under TBT must be fair and equitable. Additionally, the standards discourage any measure that gives domestic products any unfair advantage. See id. In addition, TBT also prohibits the existence of measures disguised as protection of the consumer interest but whose purpose is actually protection of domestic products. See id. For a regulation to be invalid, the regulation can be more restrictive than necessary for the objective or when the regulation does not achieve a legitimate objective. See id. The U.S. might have a difficult time upholding its regulations under the second prong. The deleterious effect on Canadian pork is severe, and the USDA itself admits that the benefits from the regulation will be small and impact only that small section of consumers who care about the origin of their food. Such facts could lead to an inference of intentional protection of the domestic hog market. While this effect may be counterbalanced by the enormous trade deficit in other affected areas, for now this measure looks suspiciously protectionist.

The implications for the continuation of this law are striking. Canada's pork producers have already seen their exports to the United States fall by 60% as major U.S. pork manufacturers find it prohibitively expensive to import Canadian pork for processing in the United States. McKenna, supra. To comply with the labeling laws, the animals must be segregated by country of origin, which will both increase the price of the meat at market to consumers and cause changes in how the plants operate. See id. The more packers must segregate the meat, the more facility space they will need to keep up, and the more land will be eaten up by large-scale agriculture. The USDA estimates that the new law will require companies to spend $2.5 billion over the next year in initial costs, while maintenance will cost an additional $499 million annually. Ching Lee, Country-of-Origin Food-labeling Rules About to Take Effect, California Farm Bureau Federation, Sept. 24, 2008,available at http://cfbf.com/agalert/AgAlertStory.cfm?ID=1144&ck=4588E674D3F0FAF985047D4C3F13ED0D#. U.S. farmers, while relieved of domestic pressure, are concerned about competing with Canadian farmers on an international level. They fear that any decrease in international exports of U.S. pork because of cheaper Canadian pork will not be offset by the reduced imports into the United States. Clifford Krauss, NEW YORK TIMES, Oct. 12, 2009, Canadian Hog Industry Seeks Redress on U.S. Food-labeling Law, Oct. 12, 2009, available at http://www.nytimes.com/2009/10/13/business/global/13pigs.html. A number of U.S. farms also raise Canadian or Mexican animals only, and as the top processors phase out their purchases of pork these farms will struggle to compete. Burgdorfer,
supra. Additionally, if the WTO allows the U.S. law to stand, other countries could follow the United State's lead and force producers to segregate the animals coming into their countries. Id. The United States then risks the same problems befalling the Canadian farmers currently, in tandem with rising feed prices and low domestic and export sales. Krauss, supra. Granted, if all other countries engage in this segregation and labeling, these actions will level the international playing field. It does so, however, potentially at the expense of consumers, and the question of consumer safety versus consumer happiness is one that each individual legislature must answer. Mexico and Canada already predict a trade war in a market that had been stable, and is now in turmoil. A final question these nations must address is the effectiveness of such food labeling laws, in addition to what actually increases the cost to consumers. Does the segregation cause the problem, or the labeling?

Interestingly, the story seems to change with regard to beef. On Friday, October 17, the Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America or "R-CALF USA" sent a letter to the USDA vehemently protesting the actions of Canada in challenging the U.S. regulation before the WTO. R-CALF USA claims that Canada has been riding on an extraordinary U.S. trade deficit in which the U.S. imports more than $1 billion more than it exports. OpEdNews, Canada, Mexico $1.3 Billion Short of Claiming COOL Harm Group Tells USDA, USTR, Oct. 21, 2009, http://www.opednews.com/articles/Canada-Mexico-1-3-Billio-by-R-CALF-USA-091019-746.html (last visited Oct. 22, 2009). It seems that even within the U.S. cattlemen and pork producers may be at odds over the new regulations.

Ultimately, regardless of the WTO resolution, the dispute's most costly effects may be those on trade relations in general. Canada and the United States have historically had a notoriously friendly relationship, and continued actions that Canada can label "protectionist" may soon lead to retaliatory action. The larger question may well be whether the United States wants to remain committed to free trade in the food industry. If so, public relations on this issue may not be worth the benefit gained from the food labeling and segregation requirements.

The Role of Administrative Law in Regulating “Mad Cow Disease” as explained in Creekstone Farms Premium Beef, LLC v. Department of Agriculture”

This comment written by Courtney Ross appears in Vol. 1 No.1 of KJEANRL and the abstract was written by staff member Cara Houhelan.

In 1913, Congress enacted the Virus-Serum-Toxin Act (VSTA), which in part states that “any virus, serum, toxin, or analogous product manufactured within the United States and intended for use in the treatment of domestic animals” must be “prepared, under and in compliance with regulations prescribed by the Sectary of Agriculture, at an establishment holding [a] license issued by the Secretary of Agriculture. Under the authority of the Act, the United States Department of Agriculture (USDA) enacted several regulations that are at issue in Creekstone Farms Premium Beef, LLC v. Department of Agriculture.

The petitioner in this case, Creekstone Farms Premium Beef, LLC raises and slaughters Black Angus cows. As Bovine Spongiform Encephalopathy (BSE) or “mad cow disease” became an increasingly serious and deadly concern in the United States, Creekstone Farms sought to employ kits to test its animals for the disease. However, the USDA refused to authorize Creekstone’s purchase of test kits, stating that they were available only to “USDA-approve laboratories”, not private distributors, and that “distribution and use” of the kits was under USDA control.

Creekstone filed suit on three counts. First, they contended that VSTA does not authorize the USDA to make restrictions in the use of products. Second, they asserted that BSE test kits are not used in the treatment of domestic animals and are thus outside the scope of VSTA. Finally, they described the USDA’s refusal to allow use of the kits as “arbitrary and capricious” and in violation of the Administrative Procedure Act. The lower court granted summary judgment for the USDA on Count I but for Creekstone on Count II on the grounds that test kits are not used for treatment since there is no cure for the disease.

The District of Columbia Circuit Court of Appeals considered the grant of summary judgment on de novo review and decided in favor or the USDA on both counts. As to Count I, the court determined that the USDA’s authority to regulate the use of BSE test kits stems from Section 154 of the VSTA, which allows the USDA to put forth “such rules and regulations as may be necessary…otherwise to carry out this chapter.” The USDA regulations at issue were upheld on theories of congressional intent, that they have been “consistently applied”, and that they are “reasonably related to the purposes of VSTA.” On Count II, the court broadly interpreted the term “treatment” to include the test kits’ diagnostic function within its scope.

Ultimately, the discretion granted the USDA in interpreting VSTA is too broad. Despite policy arguments in favor of the Court of Appeals’ holding, it seems at odds with the USDA’s goal of safeguarding products. If private distributors such as Creekstone choose to take on added costs for the safety of the consumer, the USDA should applaud rather than quash those efforts. With the possibility of an appeal, however, hope remains that slaughterhouses will not be barred from BSE testing in the future that could potentially save human lives.