USDA Ban on Ranchers Testing Their Cattle for BSE Is a Violation of the First Amendment

The Durk Pearson & Sandy Shaw®
Life Extension NewsTM
Volume 8 No. 1 • January 2005


USDA Ban on Ranchers Testing Their Cattle for BSE Is a Violation of the First Amendment

As you are probably aware, the USDA has prohibited private testing of cattle by meatpackers or ranchers for bovine spongiform encephalopathy (BSE, or “mad cow” disease).1 The supposed reason is that misinformation as a result of badly done tests or even fraud could thereby be passed on to the public. However, the USDA rule doesn’t simply prohibit false or misleading information, it prohibits the communication by any entity other than itself of all BSE test information, including entirely truthful and nonmisleading information. This is a violation of the First Amendment (cases cited below).

It is clear that the USDA is regulating speech (information) in this case. The USDA is not prohibiting anybody from buying lab equipment for making any tests or even from performing any tests; the prohibition is on the communication of BSE test information to the public and is, hence, a pure First Amendment issue.

The prohibition of the communication of truthful, nonmisleading information in several recent commercial speech cases is right on point. We ourselves have been coplaintiffs in a number of suits against the FDA in which the agency prohibited the communication of truthful, nonmisleading information concerning the effects of dietary supplements and in which the courts ruled this to be a violation of the First Amendment. In fact, owing to our and our coplaintiffs’ victories in these cases, we have forced the FDA to make a dramatic change in its speech regulation policies by allowing health claims (called “qualified health claims,” which include an FDA disclaimer) that do not meet its as yet undefined “significant scientific agreement” standard if there is scientific evidence supporting the claim.

We have been able to force the agency to permit claims (long overdue and only after 9 years of litigation) that, for example, “antioxidant vitamins may reduce the risk of cancer” and “fish oils (omega-3 fatty acids) may reduce the risk of cardiovascular disease.” (In the case of the latter claim, fish oils eaten as two fatty fish meals a week or fish oil supplements reduce the risk of a sudden-death heart attack by 50–80%, information the FDA banned on fish oil products and fish at a cost of some 1,000,000 unnecessary deaths of Americans during the course of the litigation. Osama bin Laden killed only 3000 Americans in the 9/11 attack. So much for protecting the public health …) The point is that, now that these court decisions are in place, it will be much easier to win a case arguing that USDA prohibition of BSE-free claims by banning private tests is a violation of the First Amendment.

The real reason for the ban on private BSE testing, we believe, is that the companies who did such testing would have an advantage in the market by being able to advertise BSE-free beef (if that is what they found). It would put pressure on other companies also to do such testing, and a lot of them probably would rather not bear the expense. Much easier to lobby the USDA to “level the playing field” by making private BSE testing illegal. In addition, the USDA doesn’t want to be “scooped” by private BSE testers and made to look incompetent, if not unnecessary. Hence, the USDA does all the testing itself, and we all know how reliable and trustworthy the government is …

We realize that most attorneys representing ranchers or meatpackers may know little (if anything) about First Amendment jurisprudence. We suggest, therefore, that if you want a brilliant and honest First Amendment attorney to represent you in such a case, you contact Jonathan Emord, who represented us in all our winning FDA cases and who is continuing to battle on for us and our coplaintiffs in other FDA cases where we hope to break new ground. (We do not get anything for this plug; we just want to see the First Amendment case against the USDA argued correctly.) You can reach him at Emord & Associates, P.C., 1800 Alexander Bell Drive, Suite 200, Reston, VA 20191, tel (202) 466-6937, fax (202) 466-6938, jemord@emord.com.

Court decisions: FDA in violation of First Amendment. Pearson v. Shalala, 164 F3d 650 (DC Cir 1999, en banc rehearing denied); Pearson v. Shalala, 130 F Supp 2d 105 (DDC 2001) (“Pearson II”); Pearson v. Thompson, 141 F Supp 2d 105 (DDC 2001) (“Pearson III”).

Supreme Court commercial speech decisions: 44Liquormart v. Rhode Island, 517 US 484 (1996); Rubin v. Coors Brewing Co., 514 US 476 (1995); Thompson v. Western States Med. Ctr., 535 US 357 (2002). (The two of us, Julian Whitaker, M.D., and others filed an amicus curiae brief in this case, which we believe substantially helped the court to come to the 5–4 decision in favor of First Amendment protection for commercial speech of compounding pharmacists.)

Also, see Smith v. Goguen, 415 US 566, 572 (1974). (The due process doctrine of vagueness demands a greater degree of specificity when a statute’s literal scope is capable of reaching expression sheltered by the First Amendment.)

  1. Adamy. U.S. rejects meatpacker’s bid to conduct mad-cow testing. The Wall Street Journal, April 12, 2004, p. B6.

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