USDA can prohibit meat packers from testing cattle for bovine spongiform encephalopathy, a federal appeals court ruled late last week.

The ruling by the U.S. Court of Appeals for the District of Columbia overturns an earlier federal court decision stating Arkansas City, Kan.-based processor Creekstone Farms Premium Beef must be allowed to test for BSE because USDA can only regulate disease "treatment." The test doesn't qualify as a treatment, the ruling said, because there is no cure for BSE and the test is conducted on dead animals.

However, the appeals court ruled that a diagnosis can be deemed a facet of treatment. "And we owe USDA a considerable degree of deference in its interpretation of the term," Judge Karen LeCraft Henderson wrote, according to the Associated Press.

USDA argues the rareness of the disease doesn't call for expanded testing, and that expanded testing doesn't guarantee food safety. In fact, the government contends, the testing could create a false positive.

The case now returns to the district court, where Creekstone can make further arguments. Creekstone's legal counsel has argued that USDA's own regulations regarding treatment of domestic animals do not prohibit individual companies from testing for BSE, noting the test is conducted only after an animal is slaughtered.

By Tom Johnston on 9/2/2008