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From: TSS ()
Date: November 11, 2006 at 3:07 pm PST

In Reply to: BSE TESTING CREEKSTONE VS USDA BROWN & DETWILER DECLARATIONS posted by TSS on November 11, 2006 at 3:03 pm:











3375 Mitchell Lane

Boulder, Colorado 80301

Proposed Amicus Curiae.

Civil Action No. 06-544 (JR)



Wild Oats Markets, Inc. ("Wild Oats"), a party interested in the outcome
of this litigation

and desiring to assist the Court in resolving it, hereby files this
motion for leave to appear as

amicus curiae and to present argument in opposition to the cross-motion
for summary judgment

filed in this matter [dkt. 10] by the United States Department of
Agriculture and Secretary of

Agriculture Mike Johanns (together, "the USDA").

Reason to Appear

Wild Oats submits this motion to address one point asserted in the USDA

that testing for bovine spongiform encephalopathy ("BSE") is "worthless"
when performed for

food safety or marketing purposes. See USDA Consolidated Memorandum in
Support of


7235557 1

Cross-Motion ("USDA Mem."), at 1, 5, 42. As discussed below, testing of
cattle for BSE

would eliminate from the food supply meat from animals with elevated
levels of this disease.

Consumers would therefore benefit from testing and from being informed
about it through

truthful, nonmisleading marketing programs.

Position of the Parties on this Motion

Prior to filing this motion counsel for Wild Oats sought consent from
both counsel to

Creekstone and counsel to USDA. Counsel for Creekstone advised that
Creekstone had no

objection to Wild Oats' participation in this matter as amicus curiae.
Counsel for USDA advised

that the government objected to Wild Oats' participation in the case as
amicus curiae.

Interest of Wild Oats

Wild Oats is a leading national retailer of natural and organic food.
The company

operates 74 full service supermarkets in 23 states, each offering
consumers a wide variety of the

highest quality food, health and wellness products. The company was
founded in 1987 and its

mission is to enhance the lives of its customers, employees, and
shareholders by operating a

successful business based on products and education that support health
and well-being.

Wild Oats uses great care in selecting the products it offers for sale
to consumers. The

company's commitment to quality is unsurpassed in the industry, and it
uses rigorous criteria

based on scientific research to ensure that all of the products it sells
are made naturally, without

artificial colorings, preservatives, flavorings or other synthetic
additives. Wild Oats strives to

feature products that contribute to its customers' health and
well-being, and does so by partnering

with product manufacturers and vendors that meet rigorous environmental
and social standards.

Wild Oats is also responsive to its customers' concerns. At the
forefront of those

concerns is the desire to know that foods Wild Oats carries are
wholesome, nutritious and safe.

7235557_1 -2

Wild Oats therefore makes every effort to ensure that they are. The
company carefully selects its

suppliers with this consideration in mind, and bases its decisions
regarding product selection on

the most current and reliable scientific research available. Wild Oats
also monitors industry

trends and scientific developments so it is knowledgeable about the
issues affecting consumers.

Facts Regarding BSE and Testing

Among the issues of greatest concern to Wild Oats customers in recent
years has been

BSE. This disease occurs when healthy cattle consume feed containing
protein derived from

other cattle infected with BSE. The disease, which is fatal in cattle,
attacks their brains, leads to

degeneration of their mental and physical abilities, and ultimately
causes their death.

BSE is of concern to consumers because the consumption of meat tainted
with BSE is

believed to cause a fatal human disease, variant Creutzfeldt-Jakob
Disease ("vCJD"). Over the

past twenty years, nearly 200 cases of vCJD have been identified, and
most of these are believed

to have resulted when consumers ate beef products contaminated with BSE.

Because of this risk to public health, the federal government has taken
several steps to

reduce the chances that consumers will exposed to beef infected with
BSE. For example, the

government has banned certain "specified risk materials" ("SRM") derived
from older cattle

from use as human food. SRM include animal parts in which BSE
concentrations are known to

be greatest in diseased cattle, such as the brain, spinal cord and
intestines. In addition, the

government has prohibited the use of meat and other bovine tissues from
being added to cattle

feed. The government has also conducted testing of older and visibly
impaired cattle to help

assess the level of incidence of BSE within the domestic cattle herd.

These measures, however, have not eliminated the risk that American
consumers could

contract vCJD from consuming beef infected with BSE. In fact, the
government's restrictions on

7235557_1 -3

the use of beef tissues in cattle feed have been criticized as being
insufficient to prevent cross-

contamination by feed intended for non-ruminants, such as hogs and
chickens, in which beef

tissues can be used.1 Questions have also been raised whether the
government's feed ban has

been adequately enforced.2 In addition, the government recently cut back
the amount of testing

it is doing by a substantial margin.3 Over the past several years at
least three cattle infected with

BSE have been identified in the domestic herd, and the government has
continued to allow cattle

imports from countries in which the incidence of BSE is believed to be
greater than in the United

States, including Canada.4

Protocols exist today to test cattle for BSE. In fact, the government
follows these

protocols in its own limited testing program. Such testing is performed
at the time of slaughter

and meat from tested cattle is either held or tracked pending receipt of
test results. See

Creekstone Mem., at 11. As the government admits, these tests are
sensitive enough to identify

cattle infected with BSE several months before they show visible signs
of the disease. See

USDA Mem., at 5-6.

Because of concerns relating to BSE, many other developed countries
where BSE has

been found now test all or a large portion of the cattle processed for
human consumption for

BSE. In Europe, several countries test all cattle in excess of 24 months
of age when they are

slaughtered, and others test all cattle in excess of 30 months of age.
These countries perform


In October 2005 the U.S. Food and Drug Administration proposed to ban
SRM from being used in

feed given to any animals. See 70 Fed. Reg. 58570 (Oct. 6, 2005). That
proposal has not been finalized.


See "Beef Delays in Mad Cow Protection," Consumer Reports (January
2005), at 29 (Ex. 1).


See "USDA to Cut Back BSE Testing Program," University of Minnesota
Center for Infectious

Disease Research and Policy ("CIDRAP") (July 20, 2006) (Ex. 2).


See "Canada Finds Eighth Case of BSE," CIDRAP (Aug. 23, 2006) (Ex. 3).

7235557_1 -4

these tests for one reason: because testing provides additional
assurance that cattle infected with

BSE are removed from the food supply.


By prohibiting beef processors in the United States from testing cattle
for BSE, USDA is

preventing them from acquiring information regarding the safety and
quality of the products they

sell, and preventing Wild Oats and other retailers from providing that
information to consumers.

Consumers want that information and would use it in making their
purchasing decisions, and

there is no valid reason for the government to prevent them from having it.

1. Speech concerning products offered for sale to consumers is protected
by the First

Amendment. Central Hudson Gas & Electric Corp. v. Public Service Comm'n,
447 U.S. 557,

566 (1980); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer
Council, 425 U.S.

748, 763 (1976). The free flow of information about consumer products is
"indispensable to the

proper allocation of resources in a free enterprise system because it
informs the numerous private

decisions that drive the system." Rubin v. Coors Brewing Co., 514 U.S.
476, 481-82 (1995)

(citation and quotation omitted). In fact, a consumer's interest in
receiving this information "may

be as keen, if not keener by far, than his interest in the day's most
urgent political debate." Id.

2. The government's ban on BSE testing implicates the First Amendment
rights of

food retailers and consumers because the purpose and inevitable effect
of that ban is to prevent

retailers from communicating information on products it sells, and to
prevent consumers from

receiving it. See United States v. O'Brien, 391 U.S. 367, 377, 384-85
(1967); see also City of

Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417-19 (1993);
Minneapolis Star &

Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 582-83 (1983);

Associates, Inc. v. Township of Willingboro, 431 U.S. 85, 94-95 (1977).
In this case, USDA's

7235557_1 -5

response to Creekstone's request to conduct BSE testing, and the brief
the government has

filed in this case, leave no doubt that USDA's policy is achieving its
intended result: to

prevent producers from gathering and disseminating BSE test data. See
USDA Mem., at 1,

42-44 & n.24.

3. USDA claims that representations about test results would be

because "a negative test on a young cow cannot be interpreted to mean
that the cow is

necessarily 'BSE-Free.'" Id. at 5-6. Assuming this is true, Creekstone
has not said it wants to

tell its customers that its products are "BSE-Free." Nor from this one
example is it reasonable

to assume that every other statement that might be made about BSE
testing is necessarily

misleading so as to warrant a blanket ban. While complete prohibitions
prevent misleading

speech, they also prevent truthful, nonmisleading speech, and the
government may not adopt one

"simply to spare itself the trouble" of distinguishing the former from
the latter. See Edenfield v.

Fane, 507 U.S. 761, 775-77 (1993); Zauderer v. Office of Disciplinary
Counsel, 471 U.S. 626,

646 (1985).

4. USDA's ban on BSE testing advances no substantial governmental interest.

According to the agency, a ban is needed (a) "to maintain domestic and
international confidence

in U.S. cattle and beef products," (b) because if individual producers
were allowed to test their

products for BSE, other producers would have no choice but to test their
products as well, and

(c) to prevent consumers from thinking that "they should pay more for
beef from BSE-tested


a. The claim that "confidence in American beef would decline" is
conclusory and

provides no basis for restricting the right of beef processors and
retailers to communicate truthful


See Declaration of John D. Stewart 12-14 (Exhibit 1 to Creekstone's
Motion for Summary

Judgment); id. Attachment 7 (Letter from B. Hawks to J. Stewart, June 1,
2004); USDA Mem., at 7-10, 51.

7235557_1 -6

information about their products to consumers. See Edenfield, 507 U.S.
at 770 (government

"must demonstrate that the harms it recites are real and that its
restriction will in fact alleviate

them to a material degree . . . [and] mere speculation or conjecture" is
not enough); Zauderer,

471 U.S. 648-49 ("unsupported assertions" about possible harms cannot
justify speech

restrictions). In fact, it is reasonable to assume that the only way
consumer confidence in the

domestic beef supply would be shaken is if testing revealed a
significant incidence of BSE in the

domestic cattle herd. If that is true, then there is a far greater
reason to allow such testing than

there could ever be to prevent it.

b. Fear about industry impact from purchasing decisions does not permit

ban information that might drive those decisions. Whether, or the extent
to which, other beef

processors felt compelled to test their products for BSE is a matter
that should be left to market

forces. If, by their purchasing decisions, consumers signal that they
want beef that has been

tested, then other processors will follow suit. If some consumers, but
not all, demonstrate such a

preference, then some processors, but not all, will test. Moreover,
those processors who do not

test can always market their products based on other factors. See
Virginia Board, 425 U.S. at

770 (if one store is allowed to advertise drug prices, second store's
business could be hurt, but

"nothing prevents [second store] from marketing [its] own assertedly
superior product, and

contrasting it with [first store's]"); see also Peel v. Attorney
Registration and Disciplinary

Comm'n, 496 U.S. 91, 101 & n.10 (1990) (attorney can advertise he is
"certified" by trial

advocacy organization, despite potential negative inference with respect
to other, uncertified,

attorneys). This process, based on the free flow of commercial
information, ensures that

products available for sale are ones that consumers want to buy. Banning
processors from

obtaining and communicating information about their products interferes
with this process and

7235557_1 -7

undermines the efficient functioning of the market. See Ibanez v.
Florida Department of

Business and Professional Regulation, 512 U.S. 136, 144-48 (1994);
Zauderer, 471 U.S. at 640

n.9; Bates v. State Bar of Arizona, 433 U.S. 350, 364 (1977).

c. Speculation about how consumers might value information about BSE
testing is

not a valid basis to ban producers from communicating it. "The First
Amendment directs us to

be especially skeptical of regulations that seek to keep people in the
dark for what the

government perceives to be their own good." 44 Liquormart, 517 U.S. at
502. The "commercial

marketplace, like other spheres of our social and cultural life,
provides a forum where ideas and

information flourish. Some of the ideas and information are vital, some
of slight worth. But the

general rule is that the speaker and the audience, not the government,
assess the value of the

information presented." Id. See also Edenfield, 507 U.S. at 767.

Indeed that is precisely the government's approach with respect to
scores of other

products available on the market today: consumers, not government
regulators, decide whether

particular features or representations are worth any increase in cost.
For example, stores today

contain a vast array of products with characteristics that some
consumers consider valuable, but

which other consumers consider unimportant. The Court might take
judicial notice of such

products, based on nothing more than a walk through virtually any
supermarket in America,

where it will find a wide array of foods that contain "no artificial
flavors, colorings, or

preservatives," others made "without use of synthetic pesticides,
fertilizers, or hormones," and

still more that are "caffeine free," "chlorine free," arsenic free,"
"certified," "kosher," "dolphin-

safe," "organic," "natural," "hand-picked," "vine-ripened," "sun-dried,"
"stone ground," "cold

processed," "aged for three years," and "filtered through layers of
ancient rock."6


See generally 7 U.S.C. 205.105 (USDA rules allow product manufacturers
to label and advertise

foods as "organic" if they are produced without use of "synthetic
substances and ingredients"); 21 C.F.R. 101.29

7235557_1 -8

In sum, USDA has not articulated in its Motion for Summary Judgment any

governmental interest that is served by its policy of banning beef
processors from obtaining and

communicating BSE test data to consumers. For all the reasons set forth
in Creekstone's

Opposition to that motion, and for the reasons set forth herein, the
Court should declare that

policy null and void.


For all the foregoing reasons, Wild Oats seeks leave to appear as amicus
curiae in this

matter, and to present the arguments in this brief, upon which it urges
the Court to deny USDA's

Motion for Summary Judgment.

Respectfully submitted,


Thomas B. Smith

D.C. Bar No. 412192


One Metro Center

700 12th Street, NW

Washington, DC 20005

(202) 508-4600

Counsel for Wild Oats Markets, Inc.

Date: November 3, 2006

(FDA rules allow food to be labeled as "kosher," as long as they "meet
certain [unspecified] religious dietary

(USDA fact

sheet on labeling terms allowed, including "certified" as an official
mark of "quality").

7235557_1 -9










Civil Action No. 06-544 (JR)


Upon consideration of the Motion for Leave to Appear as Amicus Curiae in

Opposition to Defendants' Motion for Summary Judgment filed by Wild Oats

Inc., it is hereby

ORDERED, that said motion be and hereby is GRANTED.

Hon. James Robertson

United States District Judge

Date: _________________

Serve All Counsel


7235557 1


I certify that, on this 3d day of November 2006, I caused the foregoing
to be

served on the following counsel of record in this case by first class
mail, postage prepaid:

Counsel for Plaintiff Creekstone Farms Premium Beef, LLC:

Russell S. Frye


P.O. Box 33195

Washington, DC 20033-0195

William L. Miller


2248 Hall Place, NW

Washington, DC 20007

Counsel for Defendants United States Department of Agriculture

and Mike Johanns:

James J. Gilligan

Edward H. White


Civil Division, Federal Programs Branch

20 Massachusetts Avenue, NW, Room 6110

Washington, DC 20530


Thomas B. Smith


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