Volume 3: The Early Years, 1986-88
4. The ruminant feed ban
Discussion
Was there undue delay in recommending a ruminant feed ban?
The scope of the ban
Should UKASTA have sought a period of grace?
Should MAFF have granted a period of grace?
The effect of the ban

Was there undue delay in recommending a ruminant feed ban?

4.34 By the end of December 1987 Mr Wilesmith, by a process of elimination, had identified feed as the probable source of BSE infection. Mr Rees told us that by this time they were fairly sure that MBM containing material from sheep was the cause of the disease. Yet Mr Wilesmith did not recommend a ban on including MBM in ruminant feed until 3 May and Mr Rees, in his turn, did not submit a similar recommendation to the Minister until 6 May. We have considered whether there was culpable delay in recommending this measure. We have concluded that there was not. The process of elimination had identified feed as the prime suspect, but Mr Wilesmith had not made, as at December 1987, any positive identification of any novel factor that explained why BSE had emerged where and when it did. MBM had been included in cattle feed for decades, not merely in this country, but abroad. Logic suggested that a peculiar factor must have intervened in the production of cattle feed in England to explain the outbreak of the disease. In the absence of any such factor the identification of feed as the vector of infection was necessarily speculative and tentative.

4.35 As at 11 December 1987, out of a total of 315 suspected cows, 95 cases had been confirmed on 80 farms (see the table following paragraph 2.130). The situation was not so desperate as to call for the imposition of a feed ban on a holding basis. The decision to pursue urgent investigations in an attempt to discover an explanation for the suspected contamination of the feed was a reasonable one. Over the next four months the investigations undertaken by Mr Peter Smith identified a number of changes both in rendering methods and in the content of MBM since 1980. Although there was no certainty that these were associated with the outbreak of BSE, they at least provided the possibility of an explanation for it. Mr Meldrum described his reaction to the situation as follows:

Although investigations into all rendering plants were not at that stage complete, there was sufficient evidence to justify approaching the industry with a view to withdrawing meat and bone meal. Investigations had clearly shown that the time and temperatures of processing systems in use at many of the plants visited would not inactivate the transmissible agent if it was present in material being rendered to produce meat and bone meal animal feed and if the agent behaved in a similar manner to the other TSE agents in its resistance to heat. ¹

4.36 We consider that Mr Rees acted boldly in reporting to the Minister that hewas 'satisfied' that MBM derived from sheep material was the source of the transmissible agent which had caused BSE. By 6 May confirmed cases of BSE had increased to 458. We can understand why he felt that it was time to 'bite the bullet' and make a positive statement to the Minister. We commend his action in doing so, as we do Mr Wilesmith's advice that he should take this course.

The scope of the ban

4.37 Mr MacGregor had concluded that the evidence pointed to a ban sheep meat material in feed for ruminants, given that scrapie had been identified as the likely source of BSE. The ban imposed extended to all ruminant protein and protected all ruminants. Mr Taylor told us that he was quite clear that the ban was intended to cover sheep to cattle, cattle to cattle, cattle to sheep and sheep to sheep. Although scrapie was believed to be the original source of infection, the danger of recycling was appreciated and addressed. ²

4.38 While the wisdom of the width of these precautions seems obvious with hindsight, no restriction had hitherto been placed on feeding sheep offal to sheep, and the veterinarians at MAFF deserve credit for ensuring that the ruminant feed ban had the scope that it did.

4.39 We have considered whether MAFF should have gone further and imposed a ban on feeding all animal protein to all animals. The reasons why this was not recommended were explained in Mr Rees's submission of 6 May (see paragraphs 4.4-4.6). We are in no doubt that, having regard to what was known at the time, such a ban would have appeared disproportionate and been open to attack in the Courts. Pigs and poultry had not been seen to be susceptible to spongiform encephalopathies and had survived a diet that included ruminant protein with apparent impunity. If MBM was infecting cattle, it was not having the same effect on pigs. The emergence of BSE in cattle did not, on the scanty knowledge available at the time, justify a wider ban than that which was imposed.

Should UKASTA have sought a period of grace?

4.40 As a private trade association of suppliers of animal feed, UKASTA's primary duty was to its members. UKASTA was informed by MAFF that it was probable that some, at least, of the MBM that was being incorporated into cattle feed was infecting the cattle that consumed it. In such circumstances it might be thought that suppliers would be anxious to cease supplying MBM without delay and that UKASTA would urge them to adopt this course. In the event, when members were informed by UKASTA of the proposal to introduce a ban with a lead time of only 21 days, the reaction of many was to seek a longer period of grace. This led UKASTA to request a delay of three months before the ban came into force. We asked UKASTA to explain how they came to take this course. They replied that they took account of all the information that they had received from officials relating to the disease, including the theories as to its origin and how animals became infected. This led them to accept without argument that a temporary ban should be introduced, but did not suggest that Ministers or officials saw a need for extreme urgency in its implementation. ³

4.41 UKASTA drew our attention to evidence given by MAFF officials, which we shall consider in detail in due course, that there was a lot of scepticism around as to the validity of the MBM hypothesis, and a belief that after six years a further month was not really going to make that much difference. ⁴ UKASTA held similar views. They understood that the principal reason why officials had a relaxed attitude to timing was that animals had to ingest a massive dose of the infected material before they would succumb to the disease. It followed that even several weeks of further consumption would be unlikely to make the difference between animals succumbing or not in more than a tiny handful of cases. They added:

We were further encouraged in these views by the decisions of government that the ban initially was to be for a limited period, that neither the import nor export of MBM was to be restricted, and that its usage in feed for other farm livestock, for non-ruminating game and zoo animals, and for pets, should continue. Above all, the absence of any request or even suggestion that feed containing MBM should be recalled from merchants and farm premises and an obvious willingness to allow the inevitable consequence (that the feed would be used) led us to assume there was no reason to adopt anything but a practical and pragmatic attitude to the forthcoming ban. At the time of the ruminant feed ban, there was no certainty that MBM was the vector (no one ever suggested that MBM was the cause) of the disease. It was also very much less certain that BSE had its origin in scrapie infected sheep. Even in the days immediately preceding the making of the Order introducing the temporary ruminant feed ban, it was far from clear to UKASTA to what the ban would eventually be applied. Would it apply to all rendered products, all mammalian protein, MBM and tallow, or what else? Given that uncertainty, we would not have known what to advise our members immediately and voluntarily to exclude from their ruminant feeding stuffs.

To minimise the potential costs to our members of implementing the Order, the clearance of existing stocks . . . was clearly desirable. It may have been assumed that this was the sole reason we sought a delay in implementation to enable feed compounders to clear their existing stocks. However, as stated above mills do not normally hold large stocks of finished cattle feedingstuffs, and certainly not in high summer when demand and production are low; thus, unless there had been an immediate ban, most of these would have been delivered to meet existing orders in the normal way. Farmers tend to order a short time ahead of requirement but then demand rapid delivery as their animals have to be fed. We were not unduly concerned about members using up stocks of MBM as the government clearly wished its use in pig and poultry rations to continue. What was of greater concern, as borne out in the evidence already given to the Inquiry by several MAFF officials, was the practicality of all those in the feed supply chain, including merchants, on-farm mixers and farmers purchasing compound feedingstuffs, complying so quickly with the temporary ban. ⁵

4.42 UKASTA went on to consider the extent to which it would have been practical for the association and its members to bring a speedy end to the practice of feeding to cattle feed that incorporated MBM:

In June 1988, the known danger to cattle was small. Without the knowledge of what the ensuing years would bring, advice to members in 1988 to take steps immediately to terminate consumption of MBM by cattle would have been regarded not only as impracticable but also as a dangerous over-reaction likely to cause unnecessary commercial disruption in the feed and farming industries. There is no doubt compounders within UKASTA could have managed to implement a voluntary recall scheme. In the absence of a government Order to that effect, however, they might well have faced compensation claims for breaking contracts and considerable costs through having simultaneously to replace all the feed recovered, since the cows had to be fed. Any feed so recalled, unless it could have been reworked into rations for non-ruminant species, would have had to be destroyed. No facilities were available to our members for such destruction, and government assistance would have been essential. It is far from certain that all farmers would have cooperated in a full and effective recall in the absence of government calling for one. It is probable that ministers and officials would have furiously opposed such extreme voluntary action (witness their reaction in 1989 when UKASTA exceeded government advice and introduced a voluntary ban on SBOs in feed). It follows that non-member compounders and non-member traders in MBM and other feed materials would have seen little reason to join in, so that a significant part of the market would have had no action taken towards the recovery of suspect materials. ⁶

4.43 We question whether the members of UKASTA responsible for policy were swayed by all the considerations enumerated in their evidence when seeking a lengthy period of grace before the implementation of the ban. We think it more likely that they were simply responding to requests from their members for more time.

4.44 We have concluded, however, that there is force in the points made by UKASTA about the lead given by MAFF and the practical difficulties that would have arisen had they sought to persuade members to cease supplying cattle feed containing MBM with immediate effect. We do not consider that UKASTA should be criticised for seeking to persuade MAFF to grant a period of grace before bringing the ban into effect. We now turn to consider whether MAFF should have acceded to that request.

Should MAFF have granted a period of grace?

4.45 Mr Lawrence's original instructions to MAFF's legal division requested a provision in the Order forbidding farmers from making use of pipeline stocks. ⁷ Yet after UKASTA had sought a three-month period of grace to clear pipeline stocks, Mr Lawrence advised the Minister that, while three months was considered too long, there were no overriding veterinary reasons why there should not be a 'breathing space' of two months from the date of making the Order before the ban came into effect. ⁸ When Mr Lawrence gave evidence, we asked him to explain the thinking behind this recommendation. He replied that he found it very difficult to explain. It was a conclusion he would have reached after discussion with colleaguesat Tolworth, but it was difficult to argue for it in veterinary terms. ⁹ Mr Lawrence had no specific recollection of discussing this matter with his colleagues at Tolworth, ¹⁰ but he thought he would have discussed it with his Head of Division and the senior vets at Tolworth. Two months was probably considered to be a reasonable balance. In a subsequent statement Mr Lawrence explained that his reference to 'no overriding veterinary reasons' may simply have been a reflection of the fact that he had consulted his veterinary and administrative colleagues at Tolworth and they agreed that a period of grace was acceptable. ¹¹ Mr Lawrence said that it was his responsibility, not that of the scientists and veterinarians, to make an assessment of the practical difficulties and decide what was an acceptable balance. ¹² It was put to him that a two-month period of grace was not consistent with the idea of taking urgent action, to which he responded:

Well, so far as I was concerned, the urgent action was to agree with lawyers and to get the legislation in place and implemented; and that is, I think, what I did. You know, the period of grace was a separate issue which reflected the serious concerns that the feed industry had about actually implementing it in a very short space of time. ¹³

He added:

I think one of the factors in certainly some people's mind, whether it was in my mind or not, you know, most of these animals had been fed this stuff for quite a long time and so to that extent a few weeks may not have made any difference. That does not answer the question for young animals coming on to it for the first time who, you know, are then exposed for the first time. ¹⁴

4.46 Mr Kevin Taylor told us that he may well have been the source of the advice given to Mr Lawrence. His approach to the details of the ban was pragmatic, reflecting his 'tremendous field experience'. He described his reaction to the period of grace:

. . . the period of grace, the delay, to me was entirely reasonable because, if there had not been a period of grace, in other words a delay before the feed ban came in, it would have been impossible. Nobody would have kept to it.

There was a discussion, clearly, about how long that period of grace should be and my view was that that was not really a particularly important veterinary question. Clearly, the effect of having a delay in introducing a feed ban would be that some animals which were not already infected would become infected. However, as I have said in the last statement, the cattle industry as a whole had already been exposed to infected feed for about 380 weeks. Three weeks more in the context of that is not really going to make a great deal of difference. In fact, three weeks was not a particular period which bothered me. If somebody had said it has to be two months because that would allow more of the material to drain out of the system, from a veterinary point of view that would have been perfectly acceptable. ¹⁵

From a veterinary point of view I had no problem with three weeks, but I would have had no problem with four weeks, five weeks or six weeks because I thought, in the context of the epidemic, on the basis of the information that we had available, then it really was not going to make very much difference. ¹⁶

4.47 Mr John MacGregor's initial reaction was to place an immediate ban on the producers of feed, but to give the farmers a period of grace until 18 July to use up their stocks. He had been informed by Mr Cruickshank that most feedmills had stopped using MBM as soon as the ban was announced. When Mr Cruickshank advised that it would not be practical to distinguish between farmers and producers, Mr MacGregor agreed to grant a period of grace to all up to 18 July. As he put it in evidence:

What all the discussion centred on was what we could do actually with existing stocks already on the farm before the ban was announced. As a practical measure it seemed to me that in order to show ourselves being not wholly unreasonable, we should allow a very short period to allow those to be used up. ¹⁷

4.48 We can see no ground for criticising Mr MacGregor for granting a short period of grace up to 18 July, when it had been reported to him that there was no overriding veterinary reason why a period of two months should not be granted. The more pertinent question is whether that veterinary advice, which probably emanated from Mr Kevin Taylor, was sound, having regard to the state of knowledge at the time. What was that state of knowledge?

4.49 Cases were being confirmed at a rate of about 60 a month. ¹⁸ These were believed by Mr Wilesmith - the source of the epidemiological advice on which the ruminant feed ban was based - to be index cases, probably infected from scrapie as much as five years previously. It was considered that this source of infection would have been continuing to infect cattle over the intervening period. While the possibility that a degree of recycling was taking place was foreseeable, and indeed foreseen, the extent of it was not.

4.50 The position, as it was generally appreciated by MAFF officials at the time, is well illustrated by an answer provided by the CVL to one of 20 'leading questions' put by Farmers Weekly to the CVL and reprinted in its edition of 15 July:

Q. If disease spread is not the cause why is there an increasing number of reports?

A. The epidemiological study reveals the present situation can be explained as 'an extended common source epidemic'. This means that, so far, each confirmed case is a primary case and may be treated as having been exposed to a single common source rather than contracting the disease indirectly from another infected or affected animal.

This type of epidemic results in a constant number of new cases as we are seeing at present. ¹⁹

4.51 In these circumstances we can understand Mr Taylor's conclusion that, if an orderly imposition of the ban required pipeline stocks to be consumed over a period of as much as two months, this could be accepted. As to this, there were strong practical considerations in favour of a period of grace. Had the matter been explored in greater detail at the time in the light of what was then known, these considerations would still in our view have supported the reasoning underlying Mr MacGregor's decision to grant a period of grace.

4.52 The decision to grant such a period was taken in a robust manner without the detailed consideration and discussion that might have taken place had time allowed. Witnesses who have considered the matter with hindsight have drawn our attention to the following considerations which supported the decision.

4.53 Sir Derek Andrews, former MAFF Permanent Secretary, commented:

If we had sought to impose an immediate cut-off date there would have been serious problems with the pre-bagged stocks and supplies in various distribution channels. Since reformulation would have taken time, the disruption in the supply chain could have left some farmers without necessary feed for their animals. This could have resulted in a widespread disregard of what would have been presented as unreasonable legislation. ²⁰

4.54 Mr Meldrum elaborated on this theme:

If the ruminant feed ban had come into force overnight there would have been no period within which (a) feed mills could be emptied of meat and bone meal to be restocked with suitable replacement feed ingredients (such as soya), (b) ruminant feed recipes could be reformulated, (c) new feed could be prepared to the new recipes and (d) new feed could be distributed to suppliers and get to farmers. In the meantime, compounders would have no feed which they could legally supply to dairy farmers and farmers would have no feed that they could legally feed to their cattle - and this particularly applies to dairy cows which are fed compound rations throughout their lactation. In addition, compounders and distribution premises would have no facilities for storage of both new compound feed containing no meat and bone meal and old compound rations formulated for use for ruminants for which there would be no end use. In a sentence, an overnight ban would have caused chaos and, apart from the problems that would arise for the bulk storage of two different rations on farm, would have resulted in a welfare problem on farms with cattle suffering metabolic problems through the sudden withdrawal of compound rations and equally rapid re-introduction of new rations. ²¹

4.55 Mr Cruickshank added this consideration:

If compounders had been required to cease supply at once they would have had to destroy or reformulate the compound feeds which they had in stock. This would clearly have involved substantial costs. It is very easy with the benefit of hindsight to say these costs should have been accepted, but at the time our knowledge of the disease and our assessment of the risks did not justify imposing such a financial burden. As always, we had to satisfy ourselves that burdens we were imposing could be defended against any legal challenge on the basis of proportionality to the problem we were addressing. ²²

4.56 All these matters lead to the conclusion that the decision to grant a period of grace was reasonable, having regard to the scale of the problem as it appeared at the time.

4.57 Closely allied to the question of whether any period of grace should have been allowed, was whether MAFF should have instituted a feed recall scheme. If no period of grace had been granted, there would have been compounders, merchants and farmers left holding large stocks of cattle feed, the use of which was forbidden by law. In practice it would have been difficult for MAFF to introduce an immediate ban without coupling this with a feed recall scheme.

4.58 We explored with MAFF officials whether they had given consideration to a feed recall scheme and concluded that they had not. We were persuaded, however, that such a scheme would have been complex and expensive and would have taken months to implement. In effect all feed that might contain ruminant protein would have had to be recalled, because there was, in most cases, no way of ascertaining the nature of the protein element in the feed. It appears to us that the cost of the scheme would substantially have exceeded the value of the number of cattle that would have seemed likely at the time to be infected if the feed was not recalled.

4.59 It is right to bear in mind the fact that MAFF officials had identified that BSE might pose a risk to human health, and that this was an additional reason for seeking to eradicate the disease as swiftly and as thoroughly as possible. We do not consider that this factor should have led MAFF officials to recommend a feed recall scheme. Had they considered the matter they could reasonably have concluded that, by the time any cattle infected during the period of grace developed symptoms, the question of whether they posed a risk to human health would have been resolved and any necessary precautionary measure put in place.

The effect of the ban

4.60 The intention of the ruminant feed ban was that all feeding to ruminants of feed containing ruminant protein would cease on 18 July. No animal would contract BSE from feed after that date. Mr MacGregor told us that he had been informed that the great majority of feed compounders had stopped supplying cattle feed containing ruminant protein before 18 July. He thought that he was being reasonable in giving farmers a certain amount of time to use up their stocks, after which this would be illegal. ²³

4.61 The extent to which Mr MacGregor's intention was confounded is apparent from the number of cattle that, in due course, developed the clinical symptoms of BSE despite being born after the ban (BABs). A full table of these appears below. No less than 3,589 BABs were later shown to have been born in September 1988. For the period from 18 July to the end of 1988 the figure was 11,947. For every case that developed clinical symptoms there were probably several that were slaughtered before symptoms developed. A small proportion of all these cases may have been infected as a result of maternal transmission, but MAFF's investigations indicate that the majority were the result of eating feed containing ruminant protein.

Table 4.1: Confirmed BSE cases born after the feed ban (BABs) by month of birth, Great Britain

	1988	1989	1990	1991	1992	1993	1994	1995
January	n.a.	1,266	706	367	308	190	98	48
February	n.a.	464	271	162	147	102	73	20
March	n.a.	598	296	225	148	110	66	22
April	n.a.	387	231	165	118	85	56	16
May	n.a.	309	220	164	96	107	56	13
June	n.a.	649	332	318	200	204	103	22
July	514	1,117	593	586	372	320	147	32
August	2,791	2,204	907	793	496	347	166	21
September	3,592	2,426	856	750	441	294	134	13
October	2,479	1,555	568	455	342	219	87	11
November	1,453	952	336	290	236	150	75	11
December	1,124	716	320	286	211	156	51	3
Totals	11,953	12,643	5,636	4,561	3,115	2,284	1,112	232
Overall total as at end June 2000: 41,536. By 7 July 2000 two cases of BSE had emerged in cattle born in 1996: one in January and one in August.
Source: Ministry of Agriculture, Fisheries and Food
n.a. = not applicable

4.62 These depressing statistics should not obscure the positive effect of the ruminant feed ban. Professor Roger Morris of Massey University, when addressing the Inquiry by video link from New Zealand, gave evidence based on epidemiological calculations of the effect of the ruminant feed ban on the risk of a cow contracting BSE. That risk had increased 25-fold between 1985 and 1987. But for the ruminant feed ban it would have been over 40 times as great in 1988 as in 1985, and continued to escalate thereafter. In the event, the ban produced an immediate reduction of risk of 80 per cent, and the risk continued to fall as the effectiveness of the ban increased in the following years. Professor Morris described the ban as:

. . . a spectacularly successful control measure . . . one of the notable success stories of global disease control. ²⁴

4.63 When giving evidence to us Mr Kevin Taylor remarked that Professor Morris's view:

. . . reflects the comments that I have heard over a period of many years from vets all over the world, that they believe that what we did was incredibly successful . . . the view that what was done was unsuccessful seems to be peculiar to this country. ²⁵

4.64 We have already commended the identification of feed as the vector for BSE and the decisive action taken in the light of it. We do not consider, however, that the result of the ruminant feed ban is cause for satisfaction. Once it was identified that the outbreak of BSE was the result of the incorporation in cattle feed of ruminant protein, it ought to have been possible to bring this practice to a speedy end and thus totally to eradicate this cause of infection. Why did this not occur?

4.65 The very large number of BABs that were born in the six months following the ban clearly indicates that farmers were continuing to give their cattle feed in which ruminant protein had been deliberately incorporated. Some of this feed would have been purchased before 18 July. Farmers would have had no means of knowing whether it contained ruminant protein and, in those circumstances, would have committed no breach of the law in feeding it to their cattle.

4.66 We are satisfied, however, that a substantial proportion of the BABs born in 1988 must have been given feed containing ruminant protein which had been supplied to farmers after 18 July 1988.