Selected Editorials About the Filing of Creekstone Farms Premium Beef’s Lawsuit
To Force USDA To Allow Creekstone To Test its Cattle for Mad-Cow Disease
(Russell Frye is the lead counsel in that case)
The New York Times
Stop: Don't Test Those Cows!
Published April 6, 2006

Late last month, Creekstone Farms, a Kansas-based beef company, sued the United States Department of
Agriculture. The reason? Creekstone wants to use tests for mad cow disease on all of the cattle it slaughters, and
the U.S.D.A. won't let it.

In contrast, the U.S.D.A.'s testing program for mad cow disease tests only high-risk cattle — those that die on the
farm, can't walk or are obviously sick. In other words, the department tests about 1 percent of the 35 million cattle
that are slaughtered in this country every year. It believes, based on its statistical models, that testing 1 percent is
plenty. We disagree.

Why would the U.S.D.A. stop a cattle company from voluntarily meeting a higher standard than the one required by
law? The very idea sounds counterintuitive. But then so does the agency's rationale. The U.S.D.A. argues that 100
percent testing would not guarantee food safety because mad cow disease can be hard to detect in younger cattle
— the very cows that a premium beef company like Creekstone is most likely to slaughter.

To us, this sounds like nonsense — as if we were more likely to be safe by following a testing plan based on
statistical modeling of the beef supply than by actually testing all the cattle.

We agree that private testing is not the way to go in the long run. It wouldn't make much sense to have a national
system made up of a few large producers that tested all their cattle while only 1 percent of everyone else's were
tested. But there is a simple solution for that.

The U.S.D.A. should test every cow that goes to slaughter. The cost is not prohibitive. Fear is the problem. The
current testing program for mad cow disease is intended to produce, at best, a snapshot of the likelihood of the
disease. The program rests on assumptions that reflect, as assumptions tend to do, only what we know already,
and we do not know nearly enough about mad cow disease.

The fear is that broad testing may reveal a higher rate of infection and destroy consumer confidence, with a
devastating impact on the cattle market. Which leaves us where we are now: relying on what we don't know to make
us feel safe.

The Chicago Tribune
Madness about mad-cow disease
Published April 26, 2006

STEPHEN CHAPMAN, Editorial Page Writer

If a hospital wanted to advertise that it upholds sanitary standards higher than any required by the government,
no one would object. A used car dealer that decided to offer only vehicles with the best crash-test scores would
be free to do so. But after a meat packer announced plans to establish the strictest program around to protect
consumers from mad cow disease, the United States Department of Agriculture replied: Fat chance. Eating meat
from animals afflicted with the illness can cause irreversible, fatal damage to the brain. Last month, a cow in
Alabama was found to be infected, the third confirmed case in this country. Canada, which has similar regulations
to prevent the disease, has had five.
You would think those would indicate the need for more testing of cattle to keep contaminated beef off our tables.
In fact, the USDA, which now tests only 1 percent of all slaughtered cows, is planning to cut back on that effort.
Crazier yet, it also intends to keep anyone else from conducting more tests.
One company wants to do exactly that. Creekstone Farms, a premium meat packer based in Kansas, knows
bovine spongiform encephalopathy (BSE) can be deadly for business. After the first American case was
discovered in 2003, some 58 countries banned shipments of American beef, costing Creekstone some $100
million in sales.
Those countries were dissatisfied with the safety measures in effect here. So chief executive officer John Stewart
decided to address health concerns in places like Japan and South Korea by going beyond what the U.S.
government requires of packers. He pledged to test all his cattle for mad cow, in an effort to reassure nervous
foreign consumers.
What he didn’t account for was that his own government would bar him from doing what his customers want him to
do. Creekstone’s plan, it said, would undermine federal attempts to “maintain domestic and international
confidence in U.S. cattle and beef products.” To let the company adopt a more stringent regime would imply the
USDA rules were inadequate.
The National Cattlemen’s Beef Association agreed, complaining that “if you let one company step out and do that,
other companies would have to follow.” So last month, Creekstone filed a lawsuit requesting the right to cater to its
Of course, if some foreigners have little faith in U.S. beef, a program like this would improve their confidence —
unless it finds the disease is more common than we thought. In that case, ignorance is not bliss.
It’s possible that this innovation might give the company an advantage over other packers.
But since when do Republican administrations oppose the strenuous free- market competition? Other companies
would have to follow only if the innovation proved successful with consumers. More likely, there is room for
Creekstone’s approach and less stringent ones, too.
After all, the USDA allows the sale of government-certified organic food, but most shoppers still go for the non-
organic kind. The department says it “makes no claim that organically produced food is safer or more nutritious
than conventionally produced food.” That doesn’t stop it from allowing sellers to cater to consumers who think it is.
So why balk when a company wants to ease fears about mad cow?
The government’s attempts to justify its diktat are almost comically inept. The USDA scoffs at testing cattle
younger than 30 months, insisting that the disease usually shows up only in older animals. It claims the rules on
the use of animal remains as cattle feed are all the protection consumers need.
But more testing can’t hurt and might help. Plenty of other countries require screening of cattle starting at the age
of 24 months, and the disease has been detected in some even younger. Consumers Union says that the existing
rules aimed at preventing infection are full of holes, and thinks the Agriculture Department should mandate testing
of all cows older than 20 months.
Maybe I believe Consumers Union and you trust the National Cattlemen’s Beef Association. But in this instance,
what you and I think shouldn’t count for any more than it did when Tom Cruise and Katie Holmes picked a name
for their baby. The only opinions that should matter are those of Creekstone’s clients.
If they want 100 percent testing and the company wants to give it to them, they may be wise or stupid. But in that
decision-making process, there’s only one place for the government to be: out of the way.
Stephen Chapman is an editorial-page writer for the Chicago Tribune and a nationally syndicated columnist

The Washington Times
A beef with USDA
Published May 2, 2006

Creekstone Farms ran into a very unlikely roadblock when it proposed to test 100 percent of its cattle for "mad
cow" disease: the U.S. Department of Agriculture. The agency charged with the health of American livestock went
so far as to tell the Kansas company that such testing would be criminal.
To Creekstone, a high-end beef producer and largest supplier of beef to the European Union, testing is about
recovering business -- particularly international business, which accounted for 35 percent of Creekstone's total
production and dried up overnight when the first case of bovine spongiform encephalopathy (BSE) turned up in
the United States in 2003. In March, Creekstone filed suit in District Court, claiming that the USDA argument
entailed a "huge expansion of authority" derived from the 1913 Virus-Serum-Toxin Act, which was last updated
more than 20 years ago.
Agriculture Secretary Mike Johanns said last week that the prevalence of BSE is "extraordinarily low." We don't
doubt that U.S. beef is safe, but that is absolutely no reason to preclude a company from imposing another
safeguard on its product, no matter how unnecessary the USDA believes it to be.
The Creekstone suit does not assert that the current safety protocols are insufficient. USDA testing is a part of a
surveillance program, designed to give the agency an idea of how many infected cattle there are in the United
States at any time. In the past 21 months, it has tested 647,000 targeted samples from more than 5,000 different
locations. Creekstone wants to go one step further with testing based on a food safety model, where every animal
is checked before it is processed. Despite a consensus among scientists that cattle of the age that Creekstone
slaughters will not test positive for the disease because they are too young to have fully developed it, Creekstone
believes that the test makes their product more marketable, particularly to international consumers concerned
with the safety of U.S. beef.
Thorough BSE testing is not a prerequisite for reopening the Japanese market, but once that market is reopened,
polls suggest that full testing would be a prerequisite for U.S. beef products to be competitive. Japanese
consumers consistently show a bias for beef that has been BSE tested. Testing is not about an implied risk, but
about marketing and rebuilding consumer confidence.
In the absence of U.S. beef, Australian producers have captured 85 percent of the Japanese market. If the export
market does not fully recover, production will well outpace domestic demand, driving down prices. The U.S. beef
industry clearly needs to be competitive in foreign markets, and if privately sponsored testing is what is required,
the USDA should stop blocking Creekstone's effort

USA Today
Mad cow watch goes blind
USDA thwarts free enterprise, cuts American surveillance by 90%
Published August 3, 2006
Creekstone Farms, a Kansas beef producer, wants to reassure customers that its cattle are safe to eat by
testing them all for mad cow disease. Sounds like a smart business move, but there's one problem: The federal
government won't let the company do it.
The U.S. Department of Agriculture — invoking an obscure 1913 law intended to thwart con artists from peddling
bogus hog cholera serum to pig farmers — is blocking companies from selling the testing kits to Creekstone.
USDA is doing the bidding of large cattle barons afraid that Creekstone's marketing will force them to do the
same tests to stay competitive. It's true that the incidence of mad cow disease is quite low. But there's little logic
in stopping a company from exceeding regulations to meet the demands of its customers, or protecting its rivals
from legitimate competition.
Not only is USDA blocking Creekstone, the department said last month that it's reducing its mad cow testing
program by 90%. The industry and its sympathetic regulators seem to believe that the problem isn't mad cow
disease. It's tests that find mad cow.
The department tests only 1% of the roughly 100,000 cattle slaughtered daily. The new plan will test only 110
cows a day.
By cutting back on testing, USDA will save about $35 million a year. That's a pittance compared with the
devastation the cattle industry could face if just one human case of mad cow disease is linked to domestic beef.
The brain-wasting disease — known formally as bovine spongiform encephalopathy, or BSE — is extremely rare
but extremely deadly. Since 1986, it has killed more than 150 people worldwide, mostly in Britain, who ate
infected meat.
Scientists don't know the exact cause of BSE but think it's spread when cows are fed ground-up parts of cattle
and other cud-chewing animals. The government has tightened cattle-feed rules, but loopholes still permit cattle
blood as a milk substitute and chicken waste as a protein supplement.
Canada has found four cows with BSE this year, and at least one was born after similar cattle feed rules were
imposed that should have prevented the animal from being infected. Acting out of an abundance of caution, U.S.
plans to increase Canadian beef and cattle imports have been put on hold until the new cases are investigated.
That makes sense, but it's hard to justify cutbacks on U.S. testing at the same time we demand other nations
provide greater assurances.
Sixty-five nations have full or partial restrictions on importing U.S. beef products because of fears that the testing
isn't rigorous enough. As a result, U.S. beef product exports declined from $3.8 billion in 2003, before the first
mad cow was detected in the USA, to $1.4 billion last year. Foreign buyers are demanding that USDA do more.
“In a nation dedicated to free market competition,” says John Stewart, CEO of Creekstone, which is suing USDA,
“a company that wants to do more than is required to ensure the quality of its product and to satisfy customer
demand should be allowed to do so.”
When regulators disagree with reasoning like that, you know the game is rigged.