Volume 3: The Early Years, 1986-88
4. The ruminant feed ban
Discussion
Deliberate breach of the ban
Was carry-over foreseen?
Could carry-over have been foreseen?
What additional steps might have been taken?

Deliberate breach of the ban

4.67 Whereas farmers who used the feed may well have been unaware of its contents, and were thus not breaking the law, some at least of those who sold it must have been acting, knowingly, in breach of the Regulations. Our conclusion conflicts with the position presented to us by witnesses from the feed trade and we should explain why we have felt unable to accept their evidence on this point.

4.68 Evidence about the ruminant feed ban was given by witnesses from the feed trade, including representatives of UKASTA and GAFTA, on 2 October 1988. They told us that feedmills would have disposed of cattle feed containing MBM by18 July. Mr Jim Reed, the Director-General of UKASTA, told us that the focus of their attention was that the mills should 'stop producing the stuff that had been banned'. ¹ UKASTA did not hear of anyone who at 18 July was left with unsaleable material. ² A representative of GAFTA likewise told us that he believed that trade in ruminant feed containing ruminant protein would have ceased on18 July. ³ A witness from one major feed producer even went so far as to say that the expectation was that cattle feed containing ruminant protein would have been consumed by 18 July. ⁴

4.69 After receiving this evidence we became aware of written reports of a meeting between UKASTA and MAFF on 10 November 1992, when MAFF was investigating possible causes of the contraction of BSE by BABs. UKASTA's report of this meeting included the following passages:

UKASTA reported that a survey had been carried out amongst the members of the Feed Executive Committee which represented approximately 50% of the tonnage of commercially manufactured dairy compound feedingstuffs in the United Kingdom. All the information provided had been made anonymous and copies were made available to the Ministry officials on the strict understanding that the contents were to be treated in the utmost confidence. MAFF agreed to honour this undertaking.

The point that caused the Chief Veterinary Officer most concern was the fact that some companies had supplied ruminant rations containing ruminant meat and bone meal after 18 July 1988. No feed containing this material had, however, been manufactured after that date.

UKASTA explained that in completing the proformas, individual companies had been totally honest in reporting that ruminant feeds containing ruminant meat and bone meal could have been supplied after the introduction of the ban. This was essentially because the feedingstuff would have a shelf life of between three to four months from the date of manufacture. Thus the latest date on which stocks would have been cleared from compounding premises and/or distribution premises/merchant stores would have been October at the latest . . .

Mr Meldrum reiterated his concern that the ban had not been immediately observed. It was expected that the Ministry could be challenged, in due course, to what action officials were going to take in view of the fact that compound feed containing ruminant animal proteins was sold after the introduction of the ban. He did, however, reconfirm that the information that he had been handed would be treated in the utmost confidence and stated that he wanted no further information on companies that might have supplied feed after the imposition of the ban. He also stated that the information provided by UKASTA would provide MAFF officials with a clear lead in the investigations being carried out into the incidence of BSE in cattle born after the ban. ⁵

4.70 MAFF's minutes of this meeting went into more detail:

2. In order to meet our request for information, UKASTA had asked all the companies represented on its Executive Committee, which together account for more than 50% of ruminant compound feed production, to complete a questionnaire. Copies of the replies, edited and made anonymous, were handed around. UKASTA stressed that the information was provided in strictest confidence and must not be divulged in specific terms by MAFF.

3. UKASTA summarised the findings as follows:

(a) Date when incorporation of ruminant protein in ruminant rations stopped.

Two companies replied that they did not use animal protein. The other replies ranged from December 1987 to July 1988 with most saying July 1988.

(b) Date when such stocks were cleared from compounders premises.

Replies ranged from February 1988 to October 1988 with most saying August/September 1988.

(c) Date when stocks were cleared from distribution premises or merchants' stores.

The point was made that merchants' stores were not under the control of compounders. As in (b) replies ranged from February 1988 to October 1988 with most saying end August or end September 1988 . . .

5. The CVO thanked UKASTA for the information it provided but expressed his extreme concern that compounders had supplied ruminant rations containing ruminant protein after the ban was introduced. It had always been recognised that stocks on farm would have been used up but it had not been expected that material would continue to have been supplied. UKASTA's reaction was to claim that recalling stocks was not practical and to say that the questionnaire replies were of course the outside possibilities when such feed might have been supplied. ⁶

4.71 We raised in correspondence with UKASTA the apparent conflict between these records and the oral evidence that had been given to us. Mr Reed dealt with this in the following passages from a supplementary statement provided by UKASTA:

UKASTA have already stated in evidence to the Inquiry that, in practice, most or all compounders had no difficulty in ceasing the inclusion of MBM in ruminant rations and in disposing of their stocks before the eventual deadline of 18 July 1988. Evidence from an anonymous survey of some UKASTA members carried out at MAFF's request in 1992 and discussed at a meeting between UKASTA and MAFF representatives on 10 November 1992 supported this conclusion in general although it also suggested that in a minority of cases the clearance of ruminant feed containing MBM was not completed until after the ban took effect. Although at the meeting concern was expressed by the CVO that ruminant feedingstuffs containing ruminant protein may have been supplied after the date of the ban, the survey did not in fact reveal any such illegal disposal. Failure to clear stocks was equally consistent with their eventually being re-worked into other legally permitted rations or disposed of via authorised waste disposal channels. ⁷

4.72 We were not persuaded by this. At the oral hearing, we asked whether compounders could have re-mixed feed made up for cattle into a product suitable for pigs and poultry and were told by a nutritionist employed by one of the feed companies:

There is a much bigger nutritional problem. Many of the ingredients used in cattle feed are not very palatable to pigs and poultry. The fibre level of cattle feeds is considerably higher than pig and poultry feeds and therefore the selection of ingredients used is different. You are much more likely to be able to use a pig or poultry feed for cattle than the other way round. ⁸

4.73 Mr Meldrum reacted with some indignation to UKASTA's suggestion that the survey did not reveal any illegal disposal of ruminant protein. This was not consistent with the individual survey results, of which he had been given copies. He cited one response which said that the date on which the company stopped incorporating ruminant protein in ruminant rations was 18 July, the very day upon which it became illegal to use such feed. ⁹ Furthermore, UKASTA had not suggested at the time that stocks were cleared after 18 July by reworking. ¹⁰

4.74 The UKASTA survey was carried out in order to assist MAFF to determine the reasons for the BABs. If those responding to the survey had disposed of surplus stocks in ways that would have precluded their use as cattle feed, we have no doubt that they would have said so. As it is, we think it is quite clear that some of the Feed Executive Committee were accepting that their companies disregarded the ban by supplying ruminant feed containing ruminant protein after 18 July.

4.75 The companies represented on the Feed Executive Committee were the larger ones in the trade. Mr Reed told us that the smaller companies would have had more difficulty than the larger manufacturers in complying with the ban. ¹¹ We suspect that a greater proportion of the smaller mills continued to dispose of stocks of the proscribed feed after 18 July than those on the Feed Executive Committee of UKASTA. We note that in a report of 2 April 1992 Mr Wilesmith commented on his investigation into BABs:

. . . a general feeling from going through these cases, suggests that there is a disproportionate number of small feed compounders of the rations fed to the BABs. This is plausible as only the biggest five compounders were privy to the findings and discussions on the possible role of meat and bone meal from the end of 1987 until the announcement of the ban. ¹²

4.76 One of the farmers who gave evidence told us that he had carried out a small survey of 50 cases of BSE in the Feed Buying and Discussion Group of which he was a member. The results led him to conclude that there was a possibility that compounders might have disposed of stock that incorporated MBM after 18 July. ¹³ While hearsay evidence of this nature is of limited value, it provides some further corroboration of what we find is a clear picture.

4.77 Our conclusion is that the compromise date of 18 July did not allow all feed manufacturers enough time to dispose of all their stocks of cattle feed containing ruminant protein before that date, and that there was a significant disregard of the ban through continued stock disposal thereafter. The same was no doubt true of intermediaries in the chain between manufacturers and farmers. The BAB figures lend strong support to this conclusion.

4.78 This significant disregard of the law by elements of the feed trade after the introduction of the ruminant feed ban was regrettable.

Was carry-over foreseen?

4.79 It does not seem that anyone at MAFF anticipated that significant numbers of cattle would be infected with BSE as a result of eating contaminated feed after the ban came into force. In March 1991 the first BAB to be reported occasioned a report to the Minister. ¹⁴ Writing about this in June of the following year, Mr Meldrum commented:

At the time, although it had not been possible to obtain details of all ingredients in concentrates fed to the animal in calfhood, it was assumed that the ruminant feed ban had been effective from July, and that the risk via feed should have been zero. On reflection, taking into account more recent information gathered about carry-over of feed on farm, and from the compounding industry about carry-over of stocks manufactured before July 1988, we are now able to acknowledge that there is some risk of exposure via compound feed. ¹⁵

4.80 In a written statement to us Mr Meldrum said:

. . . whilst it may have been accepted that there would be some carry-over of existing stocks on farm, it was never contemplated that stocks containing meat and bone meal would have been consigned to farmers right up until the 18 July 1988 deadline, because they could not legally be fed to ruminants . . .

As to consideration in June 1988 of the likelihood of born after the ban cases ('BABs') occurring, I and my advisers never contemplated that they would occur. It was believed that the ruminant feed ban would reduce the effective exposure to a level that would prevent cases of BSE occurring in cattle born after the feed ban. ¹⁶

Could carry-over have been foreseen?

4.81 On 18 September 1992 Mr Meldrum wrote to Mr Reed, the Director-General of UKASTA:

My concern at the moment is the extent to which there was slippage in full implementation of the ruminant feed ban. Realistically we could not expect an absolute ban from 18 July and carry-over on farm was expected. Furthermore we were aware from discussion with major compounders before the ban came into effect that it would take considerably longer than the few weeks given to them for stocks of concentrate containing meat and bone meal to be cleared. ¹⁷

4.82 In November 1992 Dr Danny Matthews (a Senior Veterinary Officer) wrote of:

. . . the expected slight time lag in clearing the supply chain, which in effect could have continued the feeding of contaminated meal on some farms into 1989. ¹⁸

4.83 In August 1993, when drafting a BSE update, Mr Wilesmith wrote:

The occurrence of cases in animals born after 18 July 1988 is not unexpected because at this time there would have been several months' supply of finished feedstuffs within the food chain and on farms. ¹⁹

4.84 We do not believe that these statements accurately reflect what was foreseen at the time of the introduction of the ruminant feed ban. They were made with the benefit of hindsight at a time when officials at MAFF were keen to emphasise that BABs were attributable to contaminated feed lest the more alarming conclusion be drawn that they were attributable to maternal transmission. They nonetheless reinforce the conclusion that we have reached independently that the possibility both of release of pipeline stocks after 18 July and of carry-over on farms could have been foreseen at the time that the ruminant feed ban was introduced.

4.85 Vol. 13: Industry Processes and Controls includes a description of the chain of supply by which animal feed reaches the farmer. UKASTA's request for a three-month period of grace was a clear indication of the possibility that some compounders at least needed more time than they were being granted to dispose of stocks of ruminant feed that they had already compounded. They were likely to be disposing of these right up to the 18 July deadline and some would be tempted to ignore that deadline. The same was true of the intermediaries between the compounders and the farmers.

4.86 As for the farmers, all witnesses agreed that the likelihood was that they would give their cattle any feed that remained on their farms. This was because firstly, few, if any of them, would be in a position to know whether their feed contained ruminant protein. And secondly, there was no compelling reason to conclude that, if it was acceptable to continue using up their stocks until 18 July, it was essential not to do so thereafter. As one representative of a farmers' union put it to us:

I would assume that any logical thinking person would say, 'Well it was all right on Tuesday, it has to be all right on Wednesday'. ²⁰

4.87 Of the veterinarians or administrators at MAFF who were involved in the introduction of the ruminant feed ban, it seems to us that only Mr Meldrum gave rigorous thought either to the problem of pipeline stocks or to that of carry-over on farms. The reason for this was that they were working under pressure to comply with the Minister's request for a speedy introduction of the ban. Any thought they did give to these matters did not lead them to conclude that they were of great significance.

4.88 So far as pipeline stocks are concerned, we have already commented (paragraphs 4.45-4.56) on Mr Taylor's advice that a two-month period of grace was acceptable. MAFF had had indications that major compounders had reformulated their ruminant feed and were aiming to cease supplying ruminant feed that contained ruminant protein before the 18 July deadline was reached. ²¹ It was not unreasonable to expect the majority of compounders to respect the law. The additional cases of infection that might occur if some pipeline stocks were supplied after 18 July would have seemed likely to be small in number.

4.89 So far as carry-over on farms was concerned, we received a substantial body of evidence from a variety of sources that suggested that this was likely to be of limited significance. Mr Peter Sanderson of BOCM Pauls told us:

Farmers tend to order on a monthly basis, perhaps even shorter than that. Particularly bearing in mind that bulk feed is manufactured on day one with delivery on day two or three and to order. By changing formulations in June, then by the time July 18 had come along that feed would have been consumed. That was the expectation. ²²

4.90 A number of farmers told us that they would not have had stocks of cattle feed on their farms when the ruminant feed ban came into force. ²³ Mr Roger Eddy, a veterinary surgeon in private practice, told us that:

Concentrates on the farms rarely last more than a month. It was quite normal to order a month's supply unless you are a large farm and have it weekly. At that time of year there would not be large quantities being used because it is July and it is a time of year when cows would be on grass. Calf rations may last more than a month. ²⁴

4.91 Both Mr Meldrum and Mr Taylor gave evidence that accorded with this. Mr Meldrum said that he would have expected on-farm stocks to be consumed within weeks. ²⁵ Mr Taylor told us from his own experience that most animal feed was stored on farms for only a short time because of limited storage capacity. ²⁶

4.92 For all these reasons there was nothing to alert MAFF officials to the risk that disregard of the Order might take place on a scale that would have significant consequences in the future, or to the need to take steps to address that risk.

What additional steps might have been taken?

4.93 Had MAFF officials anticipated the possibility of non-compliance with the ruminant feed ban on a scale that would involve serious consequences, what additional steps could they have taken to prevent this?

The statutory regime

4.94 Article 9 of the BSE Order provided:

Where an inspector of the Minister has reasonable grounds for supposing that the provisions of Article 7 of this Order have not been or are not being complied with he may take from any feedingstuff such samples as he considers necessary in order to establish the correctness of that supposition. ²⁷

4.95 Article 12 of the Order provided:

The provisions of this Order shall, except where otherwise provided, be executed and enforced by the local authority. ²⁸

4.96 The effect of these provisions was that the County Councils and Unitary Authorities were given the statutory duty to enforce the ruminant feed ban, but a power to enter to take samples was reserved for the Minister's inspectors - in effect the State Veterinary Service - though only upon reasonable grounds for suspecting a breach of the Order. This power would seem to evidence a recognition that MAFF had overall responsibility for monitoring the due implementation of subordinate legislation under the Animal Health Act, as indeed it did.

Practicability of sampling

4.97 Prior to the Order being made, Mrs Elizabeth Owen, of Branch B of MAFF's Food Standards, Fertilisers and Feedstuffs Division, sent a minute to Mr Lawrence dated 10 June. She expressed concern:

. . . that the Order bans only the use of meal derived from ruminants. Colleagues in nutrition and analytical chemistry (our own expert microscopists) are not convinced that analytical techniques are sufficiently advanced to distinguish between ruminant meal and meal from other mammals and poultry. I appreciate there is a case for minimising the damage to the rendering industry. Nevertheless there are clearly problems in drafting legislation in which we know the essential point to be unenforceable. ²⁹

4.98 Mr Meldrum sought comments on Mrs Owen's suggestion that the ruminant feed ban was unenforceable. Dr Peter Dawson responded attaching a note which tended to confirm that there was no technique currently available that was capable of identifying ruminant protein, or indeed any animal protein. The note identified that the Meat Research Institute at Bristol was believed to have an ELISA technique for meat species identification. ELISA stood for Enzyme Linked ImmunoSorbent Assay, a testing technique which produced rapid, sensitive and specific results. The technique, it was thought, had 'some potential in determining the species of origin of processed protein'. ³⁰

4.99 A technical description of the ELISA technique can be found in vol. 2: Science, and the steps taken to develop the test can be found in vol. 5: Animal Health, 1989-96. For present purposes it is enough to note that there was no test capable of identification of ruminant protein in cattle feed at the time that the ruminant feed ban was introduced.

4.100 If sampling was impracticable, it was still possible for the Trading Standards Officers of local authorities to check the records of feedmills to ensure that the ingredients of cattle feed did not include ruminant protein. We had evidence that some did so. ³¹ But MAFF took no steps to encourage such enforcement. The local authorities and their associations were not consulted before the Order was introduced, nor given any guidance on enforcement of the Order. A representative of North Yorkshire County Council told us:

. . . we saw reluctance in the Ministry, certainly at local level and perhaps through my dealings at national level, to actually give it, if you like, a high profile. It seemed to be - the correct word, more of a face-saving exercise, a retracting exercise from their point of view. I do not think they seemed to be keen at that time on what you would call really effective and strong enforcement. We saw that for a period of years, so I think that was our perspective of the situation. ³²

Perception and communication

4.101 So far as compliance on the part of compounders and others in the feed chain is concerned, we believe that the major problem was one of perception. There was industry scepticism about the MBM hypothesis, to which Mr Meldrum referred. We have mentioned above UKASTA's realistic perception that there was a lack of urgency about the ruminant feed ban. The farmers shared this perception. As one said to us:

. . . if it was so imperative the government should have bought it back and then there would be no loss to farmers. ³³

4.102 Mr John MacGregor proposed that the introduction of the ruminant feed ban should be 'handled in a low key way', but he did so on the assumption that 'we have a system for notifying all affected people (renderers, compounders and perhaps most importantly farmers, etc) of the situation which will apply from 18 July'. ³⁴

4.103 We asked him if he knew whether this was done. He replied:

I assume it must have been done because we normally had mechanisms for informing everyone of steps like this. I mean obviously it was announced in Parliament. Obviously it was in all the farming journals, but it was to get it through to the people on the ground because not everyone reads those sort of things. ³⁵

4.104 Contrary to Mr MacGregor's assumption, MAFF did not ensure that information about the ruminant feed ban was conveyed to individual farmers 'on the ground'. Mr Taylor told us that there were methods of circulating letters to individual farmers, although there was no certainty that farmers would open the envelope and read the contents. 'There was always the theory that most of them were behind the alarm clock on the mantelpiece.' ³⁶ Mr Eddy told us that a leaflet went out to farmers in about 1990 which would have drawn their attention to the feed controls. ³⁷ We are not aware that MAFF circulated any information before then.

4.105 One line of communication with farmers was the Veterinary Field Service (VFS). On 15 June 1988 written instructions and information about BSE in the form of 'Inset 25' were circulated to VFS staff. This informed them that the BSE Order 1988 imposed:

Prohibition on the sale, supply and use of animal protein derived from ruminant animals for feeding to ruminants from July to 31 December 1988. ³⁸

4.106 This fell short of providing the VFS with a cogent message to pass on to farmers, particularly as it does not seem to us that vets were any better placed than farmers to know whether compound feed held in stock contained ruminant protein. MAFF did, however, take other steps to publicise the ban. They issued a position statement giving details of the ban and took steps to inform the representative bodies. We have already referred to the meeting chaired by Mr Meldrum on 1 June (paragraphs 4.15-4.16). This resulted in the NFU issuing a Position Statement reporting:

There is some evidence that the disease is being spread by bone and blood meal in compound feed. The NFU has therefore welcomed the announcement that the inclusion of these products in compound feed for ruminant animals is to be suspended. This does not apply to pig and poultry rations. ³⁹

4.107 The ruminant feed ban received a degree of coverage in the farming press, but, for the most part, only as a subordinate item to the notification requirement (see Chapter 5).

4.108 Mr Peter Rudman, secretary of the NFU's Animal Health and Welfare Committee, told us:

I think it had been agreed that the NFU should be the vehicle for publicising to farmers the requirements and I think it was seen to be a more practical and effective method of getting the message across.

4.109 He explained to us:

As far as NFU members were concerned, their main source of information was verbal communication, via their attendance at local NFU branch meetings where information was passed down from Headquarters and County Committee meetings, so as to keep the members up to date. Additionally, the contents of written briefings (which were prepared by Headquarters specialist staff) were relayed to members, either in summary form in NFU county journals or explained by NFU staff at local branch meetings. NFU comment and Position Statements were invariably reported in other farming journals, such as Farmers Weekly, Farmers Guardian, Farming News, The Dairy Farmer and Big Farm Weekly. Most farmers would purchase one or more of these magazines, so as to enable them to keep abreast of agricultural matters. ⁴⁰

4.110 On 28 June Mr Meldrum chaired a meeting of bodies representing, or otherwise involved in, the cattle industry. These included the NFU and the Farmers' Union of Wales. At this meeting Mr Lawrence (of MAFF) summarised the provisions of the BSE Order 1988. He explained that from 18 July to 31 December the use of ruminant protein in ruminant feed would be prohibited. In the meantime, MAFF teams would investigate the protein processing plants to see which processes could destroy the infective agent.

4.111 Dr Matthews, when giving evidence to us, referred to the practice of using trade associations as avenues of communication: 'We would provide them with detail and they would cascade that down through their branches.' ⁴¹

4.112 We took evidence from seven farmers and asked them about their normal sources of information on agricultural matters. ⁴² Most of them emphasised the importance of publications; mention was also made of 'Farming Today', and one said he listened to 'The Archers'.

4.113 These witnesses had no reliable recollection of when or how they first learned of the ruminant feed ban. When asked to comment on the likelihood that farmers would have continued to use existing stocks of feedstuff after 18 July, one said:

I think that when we were talking about this time, very few farmers had more than a sprinkling of cases, one I think was the average on farms - which we lose more than that in normal circumstances. It does not make a huge, huge difference, so I think that they did not really understand the gravity of the situation at that time and so consequently that is why they continued to use it and really were not as vigilant as we would be under today's situation of the merchants that were delivering feed to them. ⁴³

4.114 However, looking back on what occurred, we are doubtful whether, had MAFF taken additional steps to emphasise to local authorities, the feed industry and farmers the importance of strict compliance with the ruminant feed ban, this would have had much effect on the outcome. The period of grace and the absence of any feed recall scheme demonstrated too clearly the reality, which was that the apparent scale of the epidemic did not seem to call for stringent action to effect an immediate and total elimination of ruminant protein from ruminant feed.

4.115 In the earlier stages of the Inquiry we had a concern that MAFF officials may have been at fault for failing to anticipate and prevent the breaches of the ruminant feed ban that occurred in the months immediately after it came into effect. On reflection we have concluded that we were being influenced in our views by hindsight. The reaction to the emergence of BSE was bedevilled by the length of the incubation period of the disease. When the ruminant feed ban was introduced, the scale of the epidemic was still latent. Mr MacGregor called for a speedy ban on the incorporation of ruminant protein in ruminant feed. The ban was introduced speedily. The importance of immediate and rigorous compliance was not apparent and thus was not addressed.