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.
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.
