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BSE: risk, science and governance$

Patrick van Zwanenberg and Erik Millstone

Print publication date: 2005

Print ISBN-13: 9780198525813

Published to Oxford Scholarship Online: September 2009

DOI: 10.1093/acprof:oso/9780198525813.001.0001

BSE policy in continental Europe

Chapter:
(p.179) Chapter 7 BSE policy in continental Europe
Source:
BSE: risk, science and governance
Author(s):

Patrick van Zwanenberg

Erik Millstone

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198525813.003.0007

Abstract and Keywords

This chapter discusses the spread of BSE to other European countries, along with the impact of BSE on policy regimes of European governments and of the European Commission. BSE policy-making structures in the European Commission and in Ireland, Switzerland, France, Portugal, and Germany are contrasted. A key variable between regimes was the contrasting responses to the tension between protecting human health, protecting veterinary health, and maintaining stability in food and agricultural markets.

Keywords:   spread of BSE, BSE policy, European Commission, Ireland, Switzerland, France, Portugal, Germany

Although BSE began in the UK, and was (and remains) primarily a British problem, it also spread to other countries, especially in Continental Europe, as a consequence of trade in both animals and feedstuffs. This chapter discusses the policy responses to BSE in European jurisdictions outside the UK, prior to March 1996. It focuses, in particular, on the response of the European Commission. We show how, for the Commission, BSE was primarily seen as a threat to the functioning of the internal market and to the economic welfare of the farming and food industries. Consequently, the Commission only proposed and established regulations on BSE in order to ensure that all Member States were willing to continue importing British meat and cattle products, and even then it did so reluctantly. The Commission also contrived to represent its policies as robustly supported by the best scientific advice. This is the tactic that, as we have seen, was adopted in the UK.

For many individual Member States, BSE was also primarily seen as a threat to domestic farming and meat industries rather than as a threat to public health. One consequence of those policy orientations was that 20 March 1996 marked the beginning of a political crisis not just in the UK, but for the European Commission and for many Continental Member States too.

The pathogenic and political dispersion of BSE to continental Europe

Until the existence of BSE in British cattle was publicly acknowledged by MAFF, in late 1987 and early 1988, the countries with which the UK traded animals and animal feedstuffs had no reason to suspect that British exports might be contaminated with a novel pathogen. Consequently none of them imposed any trade restrictions, and BSE was transmitted beyond the UK, mainly through contaminated meat and bone meal (MBM) and animal feeds containing MBM. The agent was then recycled within national herds, thus allowing the disease to become established in several different jurisdictions. Many veterinary and agricultural officials in continental European countries felt justifiably aggrieved at MAFF for having knowingly allowed BSE to reach other countries.

(p.180) As soon as MAFF publicly acknowledged the existence of BSE several countries imposed controls on the import, from the UK, of live cattle and/or MBM to try to prevent the spread of BSE to their jurisdictions. The timing and extent of those restrictions varied considerably. Germany, Ireland and France prohibited imports of British MBM in 1989, for example, whereas some other countries, such as Portugal, did not act for another year or two. The European Commission did not impose an export ban on UK MBM until March 1996.

There was also considerable variation in the timing of domestic regulatory restrictions. For example, in 1989 and 1990, prior to discovering any cases of, BSE, the Netherlands, Austria, Sweden and Denmark banned the use of ruminant derived meat and bone meal for use as cattle feed. Other European countries, for example, Germany, Belgium, Greece, Italy, Luxembourg and Spain, had no feed ban in place until the EU-wide ban on mammalian proteins for ruminants was introduced in 1994 (Court of Auditors 2001).

Not surprisingly, the reported incidence of BSE varied between different countries. Prior to March 1996, BSE had been reported and confirmed in the domestic herds (i.e. not including animals that had been imported from the UK) of four European countries: the Republic of Ireland, France, Portugal and, outside the EU, Switzerland. The relevant figures, up to March 1996, are given in Table 7.1.

A few cases of BSE were also reported in several other jurisdictions. but these were all in animals that had been imported from the UK (notably Germany with four cases, Denmark with one case and Italy with two cases). All those jurisdictions, and the remaining European countries, believed their domestic herds to be free of BSE. As we will discuss in Chapter 8, however, after March 1996, and especially since 2000 and the introduction of a Europe-wide rapid post mortem monitoring regime, many European countries have discovered that the pathogen was present in their domestic herds too (Office Internationale des Epizooties 2003). This suggests that BSE was in fact more widespread in continental Europe in the years prior to March 1996 than was recognised at the time.

Table 7.1 Number of reported BSE cases in the domestic herds of the Republic of Ireland, France, Portugal and Switzerlandin years 1989–1996

1989

1990

1991

1992

1993

1994

1995

1996

Ireland

10

13

15

16

16

18

15

73

Switzerland

2

8

15

29

64

68

45

France

5

1

4

3

12

Portugal

12

15

31

Source:Office Internationale des Epizooties,2003.

(p.181) BSE policy-making structures in the European Commission

Although responsibility for food safety policy-making has fallen historically to national governments, in the process of establishing the European Economic Community and completing the internal European market it became a Community-wide responsibility, with the European Commission playing a central role. Historically, free trade within Europe had been hampered by a complex range of non-tariff barriers that arose as a consequence of the differences between the national rules governing products such as food and drinks. The Commission had at least two reasons for trying to ensure the achievement and maintenance of uniform food safety standards for intra-Community trade. First there were presumed to be considerable economic benefits, in terms of reduced costs and increased efficiencies, to be derived from the integration of the European market. Second, it was widely presumed in the Commission and in the food industry that regulatory differences between Member States worried and/or confused consumers about the quality and safety of the food supply (Byrne 2000).

The adoption of common health standards for animals and meat intended for export to other Member States were amongst the earliest acts of the European Economic Community. Following the introduction of the Single European Act in 1987, however, several additional Directives were adopted to complete the internal market in animals and animal products. Their aim was to ensure that veterinary checks should be carried out at the place of dispatch only and not at the Community's internal borders. Responsibility was placed on Member States to ensure that animals and products intended for intra-Community trade conformed to Community rules. Each Member State was required to notify other Member States and the Commission of any outbreak in its territory of an animal disease likely to constitute a serious hazard to animals or human health and to implement any control or precautionary measures provided for in Community rules (Council Directives 89/662/EEC and 90/425/EEC). In such cases the Commission was empowered to adopt any measures considered necessary in addition to those already taken by the Member State concerned. These Directives enabled the Commission to adopt measures to ensure co-ordination of action among Member States and, if necessary, to take measures restricting the export of animal products from any Member State.

The European Commission and two of its advisory committees were the most important European bodies with responsibility for BSE policy-making. Although the Council of the European Union (made up of ministerial (p.182) representatives of the Governments of Member States) was and remains the principal legislative and decision-making body of the EU, it adopts legislation on the basis of proposals submitted to it by the Commission. Prior to 2000, responsibility for developing regulatory and legislative proposals on BSE fell to two Directorates General of the Commission: DG-VI, which was responsible for agricultural and fisheries, and DG-III which was responsible for industry, and after 1992 for the internal market. In practice DG-VI took the lead responsibility on BSE.

DG-VI and DG-III acted on the advice of two key advisory committees. One of these, the Standing Veterinary Committee (SVC) was explicitly concerned with policy matters and comprised representatives from each of the Member States, typically senior officials from the agriculture departments of their home country. Draft legislative measures that had been proposed by the Commission would be submitted to the SVC, which would then provide an opinion on the draft. If a qualified majority of the SVC voted in favour of the Commission's proposal, the Commission would adopt it. If the opinion was unfavourable, or no opinion was delivered, the Commission would submit its proposed measure to the Council of Ministers. The SVC representatives generally expressed the views of their individual governments, and were therefore expected to incorporate national veterinary policy interests into their deliberations and recommendations.

The second committee to advise the European Commission was known as the Scientific Veterinary Committee (ScVC). It was primarily (or ostensibly) a scientific body, responsible for advising the Commission and the Standing Veterinary Committee on all scientific and technical problems concerning animal health and veterinary public health. Its normal practice was to reach decisions by consensus rather than by taking votes. The members of the ScVC were veterinary scientists, appointed by the Commission on the basis of nominations from the Member States but the Commission was responsible for convening the ScVC, drawing up its agenda and providing the secretariat.

In practice the ScVC provided not just scientific advice but also policy advice and specific policy recommendations. As with the UK committees on BSE, key policy decisions about the acceptability of uncertainties and risks have, in practice, been made within the ScVC, though they were routinely represented as if they were purely scientific judgements. It is also important to appreciate that although the ScVC was nominally comprised of individuals appointed on the basis of their veterinary expertise, in practice many members worked in the official veterinary services of the Member States. It would therefore be unreasonable to discount the possibility that members of the ScVC might (p.183) bring their domestic policy considerations to bear on decisions about the nature and acceptability of risks and the attendant uncertainties.

In practice, the BSE subgroup of the ScVC was almost always chaired by a British veterinary official and about half of the subgroup's members were British. The minutes were also drawn up by a temporary Commission official of British nationality who used to work in MAFF (European Parliament 1997a, p. 10). On matters relating to BSE the ScVC tended, not surprisingly, to reflect thinking within MAFF. The Commission had no additional sources of scientific expertise on TSEs to draw upon.

European Policy on BSE: 1987–1990

Once the UK government had made the emergence of BSE public, in late 1987, the European Commission might have been expected to respond on two issues: prevention of the further spread of the animal disease to the herds of other countries and protection of European citizens' public health.

The protection of animal health

Three measures were important in minimising the spread of BSE to, and within, the rest of Europe: controls on exports of live UK cattle, controls on exports of UK MBM and controls on the composition of ruminant feed within individual jurisdictions. As regards the first of those measures, in July 1989, some 18 months after learning about BSE, the European Commission banned the export of live cattle from the UK that had been born before July 1988 (the date when the UK's ruminant feed ban was introduced).

European Commission action in relation to the remaining two measures was extraordinarily delayed. The most important measure available to the Commission to prevent further spread of BSE was to ban exports of ruminant protein and ruminant derived MBM from the UK to other Member States. The UK had acknowledged that MBM was the probable vector of BSE in July 1988 when it banned the use of ruminant protein in ruminant feed within the UK. Despite the fact that UK feed manufacturers responded to the loss of their domestic market by increasing exports of MBM, no measures were taken by the European Commission to restrict UK exports of ruminant-derived animal feed until March 1996.

In July 1989, the Commission had asked the UK to ban exports of ruminant derived MBM, after prompting from the Standing Veterinary Committee, but the UK did not do so (European Parliament 1996a, p. 10). The Commission subsequently prepared a draft Decision banning exports of UK MBM, but in early 1990 the Commission's Legal Service had ruled that the Commission (p.184) could not do so under the Directive proposed by the Commission (European Parliament, 1997a, p. 29). Alternative means of incorporating the proposed Decision into Community law were not, however, sought (ibid. p. 30).

As well as failing to impose controls on exports of UK MBM, the European Commission also failed to insist, until 1994, that Member States other than the UK prevent the widely adopted practice of recycling ruminant protein to other ruminants. If BSE was present but undetected in those countries, that restriction would have been vital to prevent further recycling and amplification of the disease. The Commission had wanted to introduce a European-wide measure banning the feeding of ruminant meal to ruminants in late 1989, but the Standing Veterinary Committee had not provided unanimous support for that proposal (European Parliament 1996a, p. 9). Instead, the Commission's ScVC advised in January 1990 that all Member States should take whatever action was deemed appropriate in their own countries (ibid.).

The protection of human health

Before the summer of 1989 there were no efforts, either from the European Commission or individual Member States, to restrict exports of bovine carcass meat and meat products from the UK to the rest of the European Community or, on the basis of the assumption that BSE might already be present in the domestic herds of non-UK countries, to restrict bovine tissues entering the food chain within individual jurisdictions.

In August 1989 West Germany announced that it would only allow imports of UK beef that had been certified as originating from BSE-free herds and only if brain, spinal cord and other internal organs had been removed prior to export. The UK had recently announced, but not yet introduced, a ‘specified bovine offal’ (SBO) ban, and Germany stated that it was entitled to take unilateral measures until such time as Community-wide measures had been introduced that protected the entire European public (Anon 1989a).

Initially, the German government was persuaded by the Commission to postpone unilateral action, on the grounds that the need or otherwise for adopting Community measures on BSE would depend on the UK's forthcoming SBO controls (Lawrence 1989a). The British delegation to the ScVC maintained that there was no danger of BSE to human health; indeed it asserted in September 1990 that even the decision to slaughter and destroy clinically affected animals (let alone the SBO ban) was a ‘purely precautionary to ensure that public confidence was maintained’ (Lawrence 1989b).

By October 1989, however, the German government had decided that it would still go ahead with unilateral restrictions on UK beef. German veterinarians were not convinced by the claim that there was no risk of BSE to (p.185) human health (Lawrence 1989b). At a meeting of the Standing Veterinary Committee, held on 24 October 1989, the British delegation claimed that the German government's request for certification to accompany beef exports was ‘totally unreasonable and unjustified’ since the UK could not prove a negative (i.e. that meat came from a BSE-free herd) and because there was no risk to human health which, the UK suggested, was a claim that had been endorsed by the Southwood Working Party (Lawrence 1989c). British Ministers condemned the German action as motivated only by a desire to protect its own market rather than by any concern over health, whilst the British CVO told the media that what the Germans were doing was ‘scientifically unsound’ (Hornsby 1989).

The UK delegation had not accurately represented the conclusions of the Southwood Working Party. Southwood and his colleagues had concluded that it is ‘most unlikely that BSE will have any implications for human health. Nevertheless, if our assessments of these likelihoods are incorrect, the implications would be extremely serious’ (MAFF/DoH 1989, para. 9.2). The Southwood Working Party had not asserted or concluded that there was no risk to human health. Given that the UK government's scientific advice (and indeed the scientific evidence) did not indicate a zero risk, a policy response that sought to introduce controls, no matter how precautionary, could not have been ‘unscientific’. Policy judgements in those circumstances were instead concerned with identifying acceptable levels of uncertainty and risk. The UK CVO's rhetorical attack on the German position could therefore be seen as inappropriate. Since much of Britain's print media have an almost inexhaustible appetite for portraying Germany in an unfavourable light, the UK government's position was sympathetically spun by many of the newspapers; a pattern that has been repeated frequently in subsequent years.

Following the 24 October 1989 meeting of the SVC, a senior MAFF official told his colleagues privately that the ScVC would soon meet and that it would be an appropriate forum to ‘educate’ the Commission and other Members States about BSE (Lawrence 1989c). Since Member State representatives took the advice of the SVC very seriously he concluded ‘[o]ur input is therefore extremely important’ (ibid.) The centrality of the tactic of trying to ensure that the perspective provided by MAFF's vets dominated the conclusions of the SVC was clear.

On 6 November 1989 West Germany banned imports of British beef, given that consignments could not be certified as coming from herds of BSE-free origin (Erlichman 1989). On the same day the Commission organised a meeting of scientific experts on TSEs in order to provide answers to a pre-selected set of questions on both veterinary and human health aspects of BSE. That (p.186) group served, in effect, as an ad hoc subcommittee providing advice (on both scientific and policy matters) to the ScVC that met on 27 November 1989. The record does not indicate who proposed the list of questions but the document with which to answer those questions was primarily provided by British veterinary officials and British scientific advisors to the UK government (Anon 1989b). The document noted that the British offal ban (which had just come into force) was a legal device to prevent offals from being used in baby foods, and was intended to reassure the public; the implication being that it was not a measure to safeguard public health (Anon 1989b, p. 17). The UK delegation's account of why the SBO ban had been introduced was once again not accurate.

At the 6 November 1989 meeting there was a consensus that the possibility that BSE might be pathogenic to humans was remote, but that it could not be ruled out. The participants also agreed that it would therefore be prudent to observe recommendations to reduce human exposures to the BSE-pathogen to what was referred to as an ‘acceptable’ level (Anon 1989b, p. 18). As far as the risks of oral transmission of BSE to human consumers were concerned, the participants agreed that, given that clinical cases of BSE and all the ‘specified bovine offals’ were removed from the human food chain: ‘the risk to humans has been reduced well below an acceptable level capable of maintaining the present level of public health in regard to transmissible spongiform encephalopathies’ (Anon 1989b, p. 19; emphases added).

The conclusions of that closed and unaccountable meeting of experts were presented to the ScVC on 27 November 1989. The ScVC reached a slightly more precautionary conclusion than their specialist advisors, to the effect that

Meat derived from animals in countries in which BSE is widespread is not considered to be a (significant) danger to public health. As a precautionary measure every attempt should be made to prevent the inclusion of large quantities of lymphatic and nervous tissue from products intended for human consumption.

(Bradley 1989; emphases added)

The UK government's note of that meeting emphasised that the word ‘significant’:

Was not in the original draft and by contact with Mr Marchant in Brussels [the Commission official responsible for convening the meeting and an ex-employee of MAFF] we are attempting to have it removed since it is inconsistent with the present and accepted scientific data.

(Bradley 1989)

The word may have been inconsistent with MAFF's preferred representation of the possible risks, but there were no data with which it was inconsistent.

(p.187) Given that the available evidence provided no reason for assuming that BSE infectivity would be confined to those tissues that the UK's SBO regulations were intended to exclude from the food supply, we believe British attempts to create the impression that the evidence supported an assertion of absolute safety were misleading. When the ScVC next met (on 8 January 1990) its conclusions were identical to those of the previous meeting (Phillips et al. 2000, vol. 6, para. 4.431). The word ‘significant’ had been retained so the efforts of MAFF officials have the word deleted were unsuccessful. Nonetheless, the ScVC did not endorse the restrictions that were being imposed by Germany, nor is there any indication that consideration was given to any other kinds of restrictions. MAFF may therefore not have been able to persuade the participants that the risks were zero, but UK officials did persuade the committee that the risks were acceptably low, and therefore that the German restrictions were disproportionate and unnecessary.

In light of the ScVC's conclusions the Commission took the view that the UK's SBO ban was sufficient to protect public health and that normal cutting procedures would meet the ScVC's view that obvious lymphatic and nervous tissue should be removed (Phillips et al. 2000, vol. 6, para. 4.432). The Commission also threatened to start infringement proceedings against Germany if it did not lift its restrictions on UK beef (Lowson 1990). By mid-January, however, the German government had modified its requirement that all UK exports of beef be certified from BSE-free herds. Instead, it wanted all bones and visible lymphatic glands to be removed from all beef exports (Lowson 1990) That would have enabled trade with Germany to resume, but it was still more restrictive than the proposed Community-wide rules that would have only insisted on the removal of specified bovine offals.

On 7 March 1990, the Standing Veterinary Committee met to discuss a draft Directive prepared by the Commission that sought to ban the export from the UK of those SBOs that had already been banned for human consumption within the UK. The German delegation sought an additional EC-wide provision, namely that the UK should only be allowed to export boneless beef if all conspicuous nervous and lymphatic tissues had been removed. The Commission and the UK argued that the position on beef had already been resolved by the ScVC (Lawrence 1990a). Commission officials suggested, as a compromise, that a provision be included which would enable the UK to export beef so long as conspicuous nervous and lymphatic tissue were removed, but omitting the requirement that all the meat had been de-boned (Lawrence 1990b).

At a subsequent meeting of the Standing Veterinary Committee (on 13 March 1990) the UK delegation warned that adopting such a compromise risked drawing media and public attention to BSE, but that MAFF wanted no (p.188) further publicity for BSE. The issue of cost was not mentioned, and thus opposition to the measure from the UK was presumably only because it would have made explicit that fact that scientists were concerned about the safety of bovine tissues which could not be entirely removed. In the face of that argument, the Commission officials withdrew their compromise proposal (Lawrence 1990b). Thus, on the 9 April 1990, a European regulation came into force banning exports of SBOs from the UK (Decision 90/200/CEE). The European Commission therefore adopted a policy on BSE that was not particularly restrictive, but that particular policy only lasted a month and a half.

Mad Max

In May and early June 1990, a press furore erupted after it was revealed that a domestic UK cat (Max) had been diagnosed with a novel feline spongiform encephalopathy. As noted in Chapter 6, the discovery was significant because it indicated that BSE was transmissible to other species via a feed-borne route and because it implied that BSE might have an unpredictable host range, given that repeated attempts to transmit scrapie to cats through the feed route had been unsuccessful. Several Member States, including France, Italy and West Germany, banned imports of all UK beef.

The European Commission condemned the bans as illegal, and the Agriculture Commissioner threatened to take infringement proceedings against the offending Member States (Palmer and Myers 1990). In early June, in an attempt to resolve the dispute, a meeting of the Council of Agricultural Ministers was held. Immediately prior to that meeting, the ScVC also met. The Committee decided that there was no new information upon which to modify its previous opinion. Why the emergence of a feline spongiform encephalopathy did not count as new evidence has never been explained, although MAFF's position was that the case had no bearing on any other species. The ScVC asserted that:

… meat derived from bovine animals in countries in which BSE occurs is not considered to be a danger to public health. Nevertheless, as a precautionary measure, every attempt must be made during the cutting process to remove obvious nervous and lymphatic tissues from products to be supplied to the consumer. These tissues, where removed, must not be put into products for human consumption.

(SVC 1990)

Compared to the ScVC's January statement, this version omitted the word ‘significant’. On the other hand, it had replaced ‘should’ with ‘must’ and the term ‘normal cutting process’ had been changed to ‘cutting process’. Those marginal adjustments indicate the several policy issues that were disputed.

(p.189) The Commission's Assistant Director-General for Agriculture (Mr Legras) was sufficiently concerned that his staff prepared a draft Directive proposing that the UK could only export beef meat to the rest of the Community if both the bones and the lymphoid and nervous tissues had been removed, as the German government had been demanding. The official who drew up the Draft Directive had proposed to expand the ScVC's advice to include the removal of bones because he thought that the draft Directive ‘would have allowed a better implementation of the recommendation of the Scientific Veterinary Committee’ (European Parliament 1997b, Annex 18). His underlying reasoning assumed that removing bones would have had the effect of removing a greater proportion of nervous tissue from meat than would have been possible using normal cutting methods. When, however, the Agriculture Commissioner was presented with the draft Directive at the Council meeting of 6 and 7 June, the reaction was ‘hostile’. The officials who had drafted the new proposal were not even able to discuss it because they were ‘excluded from the meeting room’ (European Parliament 1997b, Annex 18). That exclusion has never been explained, but the obvious presumption is that their proposals were unacceptably precautionary.

At the Council meeting of 6/7 June 1990, Agriculture Ministers reached a compromise on trade in beef and calves from the UK. Their decision required the UK to certify that all boneless beef for export to Member States had ‘obvious nervous and lymphatic tissue’ removed. It also required certification that bone-in-beef for export came from farm holdings where BSE had not been confirmed in the previous two years. Once that had been agreed, France, Italy and West Germany lifted their bans on British beef.

In the UK MAFF officials initially argued that the Council Decision was best implemented by guidelines rather than by legislation because a formal ban would be considered ‘contentious’ and ‘derisive’ (Phillips et al. 2000, vol. 6, para. 4.441). MAFF's Ministers thought, however, that adding the major lymphatic tissue to the SBO ban might be a more appropriate way of implementing the Council Decision. They were, however, persuaded by officials not to follow a legislative route on the grounds that the European Commission Decision:

Was largely for presentational purposes. … A statutory provision would however increase public concern as it would be assumed that such removal had not been the normal practice and could lead to pressure for the removal of all such material from meat, which would be impossible to implement as lymphatic material is throughout the carcass and is exposed wherever meat is cut.

(Phillips et al. 2000, vol. 6, para. 4.450)

Thus, once again in the UK it appears, incremental adjustments to regulations were avoided because of a concern not to undermine the narrative that (p.190) the risks from consuming beef were, and always had been, negligible and that risks were being properly controlled.

Three months later, on 12 September 1990 an extraordinary meeting of the ScVC (with additional invited experts) was organised, in response to a request from the West German government, to reassess the Council Decision. All the representatives at that meeting, except for the UK scientists, agreed that henceforth beef meat from the UK should only be exported to other EC countries if it came from herds that had previously been shown to be clinically free of BSE and that had not previously been fed with meat and bone meal (European Parliament 1997b, Annex 39). No decision could be reached at that meeting of the ScVC, and a proposal emerged to convene a further extraordinary meeting of the Standing Veterinary Committee to facilitate a decision.

Six days later on 18 September 1990, the Commissioner for Agriculture (MacSharry) gave the Director General for Agriculture (Legras) a written instruction insisting: ‘BSE: stop any meeting’ (European Parliament 1997a, p. 23; European Parliament 1997b, Annex 20). On 9 October, a representative of the Agriculture Commissioner told a meeting of the SVC that ‘It is necessary to keep cool so as not to provoke unfavourable market responses. Do not talk about BSE any more. This item should not appear on the agenda’ (European Parliament, 1997b, Annex 22). Furthermore, that meeting concluded that: ‘the BSE affair must be minimised by using disinformation. It is better to say that the press has a tendency to exaggerate’ (ibid.) The approach of the Agriculture Commissioner therefore appears very close to that adopted by MAFF ministers, namely the primary objective was the maintenance of market stability.

European policies: 1990–1996

In the four years or so from late 1990 to the summer of 1994, there were no further European Community controls on BSE. The Commission's veterinary checks on UK slaughterhouses were also suspended, in response to pressure from MAFF officials (European Parliament 1997a, p. 28). The last inspections to be conducted (in June 1990) had, however, revealed failures to separate carcass meat from nervous and lymphatic tissues, problems with identification of the origin of animals arriving at slaughterhouses, and a lack of systematic ante mortem inspections (European Parliament 1996b, p. 12). With no information about the extent of compliance with European Commission regulations, there was little scope for the Commission to consider altering the existing legislation. Meanwhile, however, three more European countries - Switzerland, France and Portugal - discovered BSE in their domestic cattle herds, as had the Republic of Ireland in January 1989.

(p.191) BSE Policy in Ireland, Switzerland, France and Portugal

Ireland was the first country, outside the UK, to recognise BSE in its domestic herd and the Irish Department of Agriculture, Food and Fisheries responded by introducing a slaughter and compensation policy, along the same lines as had been introduced in the UK the previous year (van Zwanenberg 1999). By August 1990, after some 20 cases of BSE had been reported, the Irish Government introduced a ban on using domestically produced MBM in ruminant feed, after the EC's ScVC had announced that countries should assume that MBM was the agent of transmission of BSE and that national authorities take appropriate temporary action. At the same time, powers were introduced to slaughter all the animals in a herd in which a case, or cases, of BSE had been discovered. The slaughtered animals were then sold for human consumption if they were found, on the basis of an ante mortem examination, not to be exhibiting clinical signs of BSE. Given that the animals were entering the human food chain the policy was not about providing additional safeguards to public health; rather, the rationale for the slaughter programme, as Agriculture Department officials and the media later acknowledged, was one of customer confidence and a desire to protect export markets (van Zwanenberg 1999). No additional significant domestic regulations were introduced until early 1996, although the Irish government continued to implement EU legislation during that period. As in most other European countries with BSE in their domestic herds, the Irish government had not yet thought it appropriate to remove the theoretically most infectious cattle organs from the human food chain. BSE was seen predominantly as an animal health problem, and a threat to trade interests rather than a threat to public health. Indeed, the Irish Government's Food Safety Advisory Committee had produced a short report on BSE for the Minister of Health and the Minister for Agriculture and Food in late 1989, the summary of which had stated only that ‘[t]here is no evidence that Bovine Spongiform Encephalopathy (BSE) or Scrapie is transmissible to humans’ (Food Safety Advisory Committee 1989). No formal recommendations were made.

Switzerland, which lay outside the EU, banned imports of British cattle, MBM, and bone-in beef in June 1990 in the aftermath of the disclosure that a domestic British cat had succumbed to a TSE. Five months later, in November 1990, the first case of BSE in a Swiss cow was reported and over the next five years Switzerland reported the highest incidence of BSE of any non-UK country. In contrast to the Irish response to domestic BSE, the Swiss authorities not only insisted, from November 1990 onwards, that affected cattle had to be destroyed and that MBM should no longer be fed to ruminants, but also (p.192) that brain, spinal cord, eyes, tonsils, spleen, thymus and intestines of cattle aged more than six months were removed and destroyed from all animals (Barbier and Janet 1999). That measure reflected a far greater concern with the protection of human health than was apparent in EU Member States with low levels of BSE.

France banned the use of UK-derived MBM in ruminant feed in August 1989, although, as the French media later pointed out, that move, even if fully complied with, was already too late to prevent infection of French herds. During the first six months of 1989, for example, the UK had exported over 8000 tons of MBM to France (Joly et al. 1999). In July 1990, France prohibited the use of all MBM in cattle feed. after the EC's ScVC had advised that countries should assume that MBM was the agent of transmission of BSE and take appropriate temporary action. The following year, in February 1991 a French cow was diagnosed with BSE. Four additional cases were diagnosed that year, followed by a relatively small number of cases in most of the subsequent years to 1996 As in Ireland, and many other European countries with relatively low levels of domestic BSE, the government did not consider it necessary to remove the ‘specified bovine offals’ from the human food chain, at least not until after March 1996.

Although the first cases of BSE in Portuguese cattle were not reported until 1994, the disease had been diagnosed in several cattle that had been imported from the UK between 1990 and 1993, but the Portuguese Ministry of Agriculture kept that information confidential (Gonçalves and Gonçalves 1999). The media exposed the fact that the cases had been kept secret in the Spring of 1993, giving rise to a widely publicised political controversy. In response, public hearings were organised by the Portuguese Parliament but a Parliamentary committee concluded that government scientists had not performed sufficient tests to confirm that BSE was in fact the disease responsible for the deaths of the affected cattle, despite the fact that the researchers had relied on widely accepted histopathological methods of diagnosis. The Parliament concluded, therefore, that BSE ‘did not exist in Portugal’ (Gonçalves and Gonçalves 1999). In 1994, the presence of BSE in the domestic herd was eventually admitted, after BSE was diagnosed in several Portuguese animals. Portugal implemented European BSE regulations, but prior to March 1996 no additional measures were adopted to control the disease.

Germany and Commission Policy after 1994

The absence of any Commission legislation to BSE from 1990 to 1994 came to an end after the German Government submitted papers to the Council of Ministers in late 1993 demanding a prohibition on exports of UK cattle older (p.193) than three years. The Germans was responding to a recommendation from its Bundesgesundheitsamt (BGA or Federal Health Office) that a ban should be imposed on the import of cattle products from the UK. Although Germany had not discovered any cases of BSE in its domestic herd, its government was far more proactive than most other Member States in seeking to impose restrictions on imports of British beef, and in the process provoked frequent tensions with both the UK and the European Commission.

The German response to BSE was partly a means of protecting its domestic markets by reassuring consumers that infected beef would not enter German food chains, but also because several of its expert advisors took a quite sceptical view of British claims that there was no evidence of any risk to human health from BSE. In the autumn of 1989, for example, the German delegation in Brussels had refused to accept the UK's assertion that there was no danger of BSE to human health and that UK policy measures were primarily a means of ensuring that public confidence was maintained (Lawrence 1989b). Instead its policy regime recommended unilateral restrictions on UK beef, in recognition that a potential hazard existed and that it could be lowered by insisting, for example, on the removal of as much nervous and lymphatic tissue as possible. Unlike Ireland, Switzerland, France and Portugal, however, where Ministries of Agriculture were primarily responsible for BSE policy, responsibility for BSE policy in Germany (and more generally the control of animal health) was shared between health and agriculture ministries. Nevertheless, despite the vigorous attempts to control imports of British beef, the German government did not move as swiftly on the domestic front. For example it failed to ban the use of domestic MBM in ruminant feed until March 1994.

In December 1993, an international symposium on Transmissible Spongiform Encephalopathies was held at the Bundesgesundheitsamt (BGA). The symposium considered evidence indicating that the pathogen responsible for BSE was distinct from the scrapie pathogen, and that BSE was transmissible to several different animal species via a food route. The BGA subsequently recommended that a ban should be imposed on the import of live cattle and cattle products from the UK, and from other BSE-affected countries (Dressel 1999).

Germany subsequently asked the Council of Ministers to prohibit exports of UK cattle older than three years and in February 1994 attempted to secure a complete EC/EU-wide ban on exports of British beef. That attempt failed, but by April 1994, the German cabinet began discussing the imposition of a unilateral ban on all British beef. It set a deadline for the end of May 1994 for the European Commission to take tougher measures to restrict UK beef exports, namely that all exported beef should come from animals under three years old which also came from herds which had been free of BSE for four years or more.

(p.194) One of the German government's concerns was that it was not possible, in practice, to remove all the nervous and lymphatic tissue from meat as was supposed to happen under the prevailing rules (Ratcliffe 1994). The (private) view of the UK government was that the German proposals (in particular the removal of more and more of the parts of cattle carcasses that might contain the infectious agent, such as bones and nervous and lymphatic tissues) would not only increase costs unacceptably to the meat trade, but it would also, as a UK official put it, ‘be an implicit acknowledgement that we had been potentially “poisoning” the UK population up until now’ (Render 1994). Once again the UK resisted incremental regulatory changes for fear that its existing narrative of safety would be undermined.

On 28 June 1994 the German government introduced a 6-month restriction on imports of British beef. Only animals aged under three years old and from certified BSE-free herds could be imported. The following month, the ScVC met to discuss BSE and concluded that the existing controls should be tightened so that shipments of un-boned beef would have to come from herds that had been free of BSE for six years, rather than two years, as had previously been the case. Those recommendations were formally adopted in a Commission Directive of July 1994 and the German government withdrew its proposed unilateral measures.

There were further tensions over the rules governing the export of British beef in the latter half of 1994. The German government wanted a more precise and stricter set of rules governing the trimming of nervous and lymphatic tissues. In October and November 1994 the ScVC agreed on a text that was not acceptable to the German delegation. The German government threatened to reactivate its draft legislation imposing a unilateral ban if the rules were not changed (SVC 1994). The Directorate General for Agriculture, DG-VI, attempted to intervene in the disagreements within the ScVC by writing to the German Ministry of Health and asking it to ensure that dissenting German scientists do not express their opinions in public (European Parliament 1997a, p. 27).

On 22 March 1996, two days after the British government announced a probable link between BSE and a new variant of CJD, the European Commission's ScVC met to discuss the implications of the dramatic development for European consumers. The Committee concluded that no regulatory measures beyond those already announced by the British government would be required (European Parliament 1997c, p. 78). Three days later, however, in yet another abrupt volte-face the European Commission proposed an indefinite ban on the export of all British beef and beef products anywhere in the world, so as to prevent re-importation back into the EU. Faced with a collapse in consumer confidence, and thus demand for beef, across the continent, (p.195) a complete ban was the only available means of stabilising the market. The proposal was accepted by the SVC with only the UK objecting (European Parliament 1997c, p. 78).

Summary

The European Commission's policy approach on the topic of BSE, until March 1996, was like that in the UK, framed by an agricultural perspective. The main concern of policy-makers was to try to ensure that public anxiety and impediments to the free flow of trade were avoided and thereby to diminish the adverse impact of BSE on the economic welfare of the farming and food industries.

Starting in 1990, and repeatedly since then, the Commission only proposed tighter regulations and/or enforcement on BSE after several Member States had unilaterally imposed restrictions on their importation of meat and cattle products. The Commission frequently responded to those initiatives by criticising them as unnecessary, unscientific and as protectionist, even though in reality they had emerged as a consequence of different views about whether the possible but unquantified risks of consuming certain bovine tissues were acceptable given the costs, practicalities and public relations consequences of imposing stricter controls.

The similarities between the approach of the Commission and that of MAFF are striking, especially in the light of the extent to which UK officials and the print media complained about intransigent continental Europeans. The Commission, like MAFF, tried to ensure that as little public and media attention as possible would be drawn to BSE, to ensure that consumers retained their confidence in the safety of the food supply and the probity of the policy-making process, given that their confidence could be reflected in changing levels of consumer demand. Even though there was some contention at the Scientific and Standing Veterinary Committees, and at the Council of Ministers, about the extent and significance of the risks that BSE posed, the Commission attempted to play down scientific dissent and disagreement. Furthermore, the Commission contrived to represent its policies as robustly supported by the best scientific advice. MAFF officials played a key role in persuading Commission officials to adopt that approach.

The domestic policy regimes of individual European Member States were, however, a different matter. As long as BSE could be represented as an alien threat that could and should be excluded, BSE policy-making was relatively simply. The policy of trying to keep your competitor's diseases out of your herd and population did not require scientific proof that the disease would be fatal; it was sufficient for it to be unwelcome. Thus, for example, Germany was one of the few States to acknowledge that BSE was a potential public health (p.196) problem, but with no known domestic cases, Germany could focus on protecting its borders from imports of contaminated animal feed, live animals and meat. Notably, Germany did not put in place precautionary controls on its own domestic beef supply in case the disease was already present although undetected. For those countries where BSE had been reported in the domestic herd, the policy challenge was substantially more complex. Ireland, Portugal and France opted for the strategy of treating the disease as an animal health but not a public health problem.

Given the policy orientation of the European Commission and Member States with BSE in their domestic herds, the 20 March 1996 announcement marked the beginnings of a political crisis, not only for the UK, but for all those jurisdictions that had gambled with public health that BSE would turn out to be innocuous to humans. Member States without reported cases of BSE, such as Germany, were not immune either, but their problems only really began to emerge a few years later after BSE was found to be prevalent in the domestic cattle herds or virtually every European Member State.

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