January 5, 2004
Governor Mike Johanns
Office of the Governor
P.O. Box 94848
Lincoln, NE 68509-4848
Secretary Ann Veneman
United States Department of Agriculture
Room 200-A, Whitten Building
12th Street and Jefferson Drive, S.W.
Washington, DC 20250
Dear Secretary Veneman and Governor Johanns,
In light of recent agency actions on bovine spongiform encephalopathy (BSE), we are writing to outline two serious concerns we have with U.S. Department of Agriculture policy.
Beef and Cattle Imports from Canada
Our first concern is with the December 29, 2004 announcement by the agency that it will allow the import of live cattle under the age of 30 months from countries, such as Canada, that have been designated by the U.S. government as “minimal risk” regions for bovine spongiform encephalopathy (BSE). Public Citizen is strongly opposed to this change. To allow the import of ruminants and ruminant products from a country with any indigenous cases of the disease not only abandons a policy that has been in place since 1989, but also introduces avoidable risk for the disease into this country. In order to facilitate this change, the agency brought pressure upon an international animal health organization to change its definition of “minimal risk.”
We are also very disturbed by the fact that USDA proceeded with this rule even while it knew that there was a possibility of another BSE-infected Canadian cow ? the third such case in nineteen months. It appears that the USDA’s zeal to lift the ban during a quiet news cycle trumped its desire to find out whether the suspect cow actually had BSE, to learn the results of any investigation into this latest outbreak, or to examine the appropriateness of Canada’s response to the case.
Since 1989, U.S. policy has been to only allow the import of ruminant animals or products from countries that are considered “BSE- free.” This policy has served us well; it is one of the primary reasons there has been no indigenous case of BSE in the U.S. According to the international standards maintained by the Office of International Epizootics (OIE), to be considered BSE-free, a country must report no indigenous cases for seven years, and maintain and effectively enforce a feed ban for eight years. This policy suited the U.S. just fine as long as the countries with small BSE outbreaks were minor cattle-trading partners with the U.S. (if they exported to this country at all). But, because it is only the discovery of indigenous BSE-infected cattle in Canada that has resulted in the revisiting of this policy, it appears that the government’s devotion to trade exceeds its devotion to public health.
With last week’s discovery of the third Canadian case of BSE (this includes two animals that tested positive in Canada in 2003 and 2004 and one animal of Canadian origin that tested positive in the U.S. in 2003), it is clear that Canada has not met the first element of the OIE standard. No source of infection has been clearly identified for any of the cases, and the possibility therefore exists that more asymptomatic cases are lurking in Canadian herds. It is also likely that additional BSE-infected cattle have already gone to slaughter and been consumed, since most cattle are slaughtered before BSE-infected cattle typically develop symptoms.
Effectiveness of Canadian Feed Ban
Canada also has not had an effective feed ban for eight years, the second OIE criterion for being considered BSE-free. The Canadian feed regulations were published on March 29, 1997and became effective in August of that year. Therefore, the rules have not been in effect for a full eight years. Additionally, the existing evidence strongly suggests that the feed ban has not been effectively enforced during this period. In December 2004, the Vancouver Sun reported that it had obtained results from government testing of animal feed. The testing revealed that more than half of the samples of feed labeled as having only vegetable ingredients contained animal protein. Seven mills were classified as having “major non-compliance issues,” three mills failed “to prevent the contamination of ruminant feeds with non-ruminant feeds” and in one of these cases the contaminated feed was actually consumed by other cattle. These troubling findings follow previous examples of compliance problems with the feed ban, including government records that indicate that as late as 2000-2001, 35 percent of Canadian feed mills were found to be non-compliant, generally for record-keeping violations. Since it has been found that as little as 10 milligrams of material containing the infective agent can cause BSE in cattle, the compliance lapses reported in the Vancouver Sun article are truly alarming. The Canadian Food Inspection Agency evidently thought the problems were severe enough that they have started a rulemaking process to close some of the loopholes in their feed ban, by initiating the process to keep specified risk materials (SRMs) out of animal feed. This evidence does not support the notion that the Canadian feed ban has been “effectively enforced” for the necessary eight years. For that reason alone, the ban on Canadian cattle and beef products should remain in effect.
If the Canadian experience with its feed ban is at all similar to the U.S.one, there are significant grounds for concern. For many years, the Food and Drug Administration did little to assure compliance with its feed ban and compliance was accordingly spotty. In January 2002, the U.S. General Accounting Office (GAO) concluded that, about four years after the U.S. feed ban was supposedly in effect, “FDA has 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.” According to the GAO, noncompliant firms had not been re-inspected in two years, firms with multiple infractions evaded any penalty and the FDA’s inspection data were “severely flawed.” Consequently, the GAO stated, “FDA does not know the full extent of industry compliance.” Even if compliance with the feed ban in Canada is now perfect, that provides little reassurance regarding what transpired during the intervening years.
But the USDA did not settle for simply changing its own rules. The agency was also a leading player in pushing through revisions to the OIE standards defining “minimal risk” regions so that countries like Canada that clearly were not “minimal risk” under the previous definition could now be said to be so. In fact, Canada does not even meet the new revised “minimal risk” definition. Under the new criteria, countries can now be considered “minimal risk” if the country has had fewer than two indigenous cases per million adult cattle for each of the last four years (a criterion Canada conveniently meets) and there has been an effective feed ban for eight years. The agency’s December 29, 2004, announcement about this policy change claims that Canada’s feed ban has been “effectively enforced” since 1997, without citing a single statistic, let alone addressing the poor compliance with the feed ban described above. Even if the ban had been rigorously enforced from the moment of its inception, as noted above, the requisite eight years have not elapsed.
The agency makes much of the fact that the Canadian BSE-infected animals were born prior to the implementation of the Canadian feed ban. This is neither logical nor convincing as proof that the feed ban is working. While it is true that if a BSE-infected animal born after the feed ban was identified this would prove that the ban had not been effectively enforced, it is not true that the lack of such a case proves the ban’s effectiveness. What matters is not when an infected animal was born (only months to a year before the feed ban for the indigenous Canadian cases), but rather the total exposure to potentially contaminated feed in its lifetime, particularly when it is more susceptible to BSE. All three animals lived most of their lives in the post-feed ban period. Infection during this time, when the ban was most likely not strongly enforced, is a strong competing explanation for when the infections occurred.
This decision could affect imports from more countries than Canada. The USDA’s decision to switch to a requirement of “minimal risk” as the criterion for imports creates the potential for more nations with indigenous cases of BSE to request that the ban on their products be lifted. Countries with small numbers of cases, such as Finland, Greece, Austria, Slovenia and Japan, could all potentially request the same status that this proposed rule would set as precedent.
While it is true that the United States imports more cattle from Canada than from the rest of the world combined (1.7 million head from Canada out of a total of 2.5 million head imported in 2002 [68%]), these imports still represent less than 2% of cattle in the United States. While these trade concerns create undeniable pressure on you to make an exception in a previously ironclad policy, these imports have the potential to result in significant and unnecessary exposure to the BSE agent for both the U.S. human and cattle populations.
Finally, we think it is unwise to relax the restrictions previously imposed on imported Canadian beef products. When boneless beef was first allowed back into the U.S. in 2003 (such products were part of the ban put in place after the first Canadian case was discovered), only boneless beef from animals under 30 months, processed in facilities that segregated their lines by cattle age, were permitted. The new minimal risk rule removes these restrictions. To eliminate these precautions for a country with known cases of the disease and allow the unrestricted import of beef products from Canadais irresponsible. BSE has been found in cattle as young as 22 months, therefore we feel that it is appropriate to consider returning to the original ban on all Canadian beef products, not simply relying on the 30-month determination as an assurance of safety as has been the case since the ban was first relaxed.
The use of quarantines or other measures to restrict the movement of potentially disease-carrying plants or animals from areas of high prevalence to areas of lower prevalence is a long-established method of infectious disease control in both public and animal health. Given the evidence we now have about the very different prevalence of BSE in Canada and the U.S. (three indigenous cases among 13.4 million cattle in Canada, compared to no indigenous cases among 96.1 million U.S. cattle, even with the greatly expanded new surveillance system), allowing the import of Canadian cattle increases the likelihood that BSE will become endemic in the U.S., the way it has in Canada. It is therefore irresponsible for the USDA to allow the import of live ruminants, or beef products, from a country that is the source of all the known cases of BSE found in North America.
NAFTA Challenges Add Political Pressure
It is important to note the tremendous political pressure surrounding this issue. In August 2004, a group calling itself Canadian Cattlemen for Fair Trade (CCFT) announced that it was bringing a NAFTA Chapter 11 “investor-state” suit over the May 2003 decision of USDA to close the U.S.-Canadian border to beef and cattle. The case claims that the border closure had no scientific basis. NAFTA’s Chapter 11 creates a special procedure that allows foreign investors to sue NAFTA governments for unlimited amounts of taxpayer funds in special tribunals that operate behind closed doors and outside of the domestic court systems if they can demonstrate lost profits due to any federal, state, or local regulation. CCFT is a newly formed group of Canadian feedlot operators who claim to have suffered serious financial damage as a result of the border closure. Experienced trade lawyers are working for the group and are actively soliciting more clients to initiate further Chapter 11 cases in the manner of a class-action suit. After starting with one $75 million claim, CCFT has recently filed 100 more claims totaling a reported $300 million, and the claims may rise even further. These NAFTA claims have served as another tool to pressure USDA to ignore the differing BSE disease status of the two nations and open the border once again to trade in live cattle.
USDA should ignore these trade threats. The liability for any damage already done to the Canadian industry described in this Chapter 11 case will remain, whether or not the United States resumes trade in live cattle with Canada, and so the cases are unlikely to be dropped. If USDA opens the border to live cattle, it will be seen as caving in to these outrageous demands. This will not only impair the credibility of USDA, it will confirm NAFTA critics’ worst fears that the agreement impairs the right of the United States to safeguard the health and well being of its citizens.
Instead, it appears that USDA has chosen to respond to these trade threats and Canada’s inability to meet international and U.S. requirements to be classified as BSE-free, by allowing the importation of cattle from “minimal risk” countries. This is a substantial departure from past practice, as “minimal risk” is the third of five categories of BSE risk in the OIE guidelines, with the previously required “BSE-free” representing the lowest risk. With this change, USDA argues, imports can resume because Canada is a “minimal risk” region. Instead of sticking with the standard which has served us well to this point, the USDA has searched for a way to adjust its rules to allow Canada to qualify.
Given these flaws in the agency’s justification, it is irresponsible to allow the import of live ruminants or beef products from cattle of any age from Canada or other countries with known cases of the disease. We urge you to reconsider the change that is otherwise due to go into effect on March 7, to maintain the existing ban on live animals and to re-instate the ban on imported ruminant products from Canada.
Food Safety Inspection Service Regulations for BSE
In December 2004, the USDA’s own food safety inspectors, through their union, the National Joint Council of Food Inspection Locals (NJC), identified serious lapses in enforcement of the rules for keeping specified risk materials out of the human food supply. The letter from the NJC to the head of FSIS’ Assistant Administrator for Field Operations presented concerns about the removal of SRMs from cattle and FSIS inspectors’ ability to enforce the export requirements for products destined for Mexico. Specifically, the letter stated that members of the union had reported that:
1. Plant employees are not correctly identifying and marking all heads and carcasses of animals over 30 months old. Therefore, plant employees and government personnel further down the line are unaware that numerous parts should be removed as SRMs and these high risk materials are entering the food supply.
2. [O]n line inspectors are not authorized to take actions when they see plant employees sending products that do not meet export requirements past the point on the line where they can be identified and removed.
The letter requested a response by December 17, 2004. After the NJC did not receive a response, the letter was released to the public on December 20, 2004. In the wake of media interest in the letter, the USDA chose not to address the policy deficiencies identified by the NJC, but instead to punish the messenger, by initiating an investigation of the Chairman of the NJC.
Until these policy weaknesses and misdirected agency priorities are addressed and corrected, the USDA will not be doing all it can to ensure that a potential animal health problem does not become an actual public health problem. The recommendations in the letter from the NJC, to instruct inspectors to examine cattle heads to determine their age and to empower inspectors to intervene when they see BSE regulations being violated for exported products, should be implemented immediately.
As current and potentially incoming heads of USDA, it is incumbent upon you to ensure that we put our domestic house in order. It would be particularly inappropriate to abruptly change years of precedent by knowingly importing potentially infectious materials into a country whose domestic protections are in such disarray.
Public Citizen’s Energy and Environment Program
Peter Lurie, M.D., M.P.H.
Public Citizen’s Health Research Group
 C. Skelton “Secret Tests Reveal Cattle Feed Contaminated by Animal Parts,” Vancouver Sun, December 16, 2004.
 Animal, Plant and Food Risk Analysis Network “Risk Assessment on Bovine Spongiform Encephalopathy in Cattle in Canada,” December, 2002. Available at https://www.citizen.org/sites/default/files/bserise.pdf
 C. Sugarman “BSE review team calls feed ban “insufficient,” recommends more testing“ Food Chemical News February 9, 2004, Volume 45, Number 52
 General Accounting Office. Mad Cow Disease: Improvements in the animal feed ban and other regulatory areas would strengthen U.S. prevention efforts (GAO –02-183). January 2002. Available at www.gao.gov.
 UPI “USDA Document Cites Young Mad Cow Cases” Washington Times August 23, 2004 http://www.washtimes.com/upi-breaking/20040823-104837-6912r.htm
 The NJC’s letter can be viewed at https://www.citizen.org/sites/default/files/njcletter-12-8-04.pdf
 C. Sugarman “Inspectors’ union chairman under investigation by FSIS “ Food Chemical News January 3, 2005 , Volume 46, Number 47