Volume 5: Animal Health, 1989-96
3. Introduction of the animal SBO ban
Discussion
The pet food industry
UKASTA and UKRA
The NFU
What was MAFF's attitude to an animal SBO ban?
Was MAFF's policy reasonable?
Pet food

3.256 We propose to consider the following questions which are raised by the evidence which we have summarised in this chapter:

1. Did the PFMA, UKASTA, UKRA and the NFU act reasonably in seeking to exclude SBOs from animal feed?
2. What attitude did MAFF officials and Ministers adopt to a ban on the incorporation of SBOs in animal feed?
3. Was that attitude an adequate response to the issues raised?

3.257 The facts covered by the latter part of this chapter raise questions as to whether adequate consideration was given to the terms of the 1990 Order and whether those terms were adequate to achieve the objective of the Order. We shall postpone consideration of these questions until after our review in the next chapter of how the animal SBO ban operated in practice.

The pet food industry

3.258 The pet food industry took steps to ban bovine tissues which might carry the risk of BSE infection from their products before Government considered the desirability of banning such offal from the human food chain. The initiative first came from independent companies, Spillers and Pedigree Petfoods, but was rapidly taken up by the PFMA (see paragraphs 3.4-3.26).

3.259 The precautionary measures introduced by the pet food industry reflected a commitment to high safety standards and an approach that nothing should be included in pet food that could not safely form part of the human diet. The PFMA and its members did not wait for MAFF to determine what was safe for human or animal food. They acted on their own initiative and, incidentally, assisted MAFF with its own examination of the subject (see vol. 6: Human Health 1989-96, Chapter 3). They were, however, careful to ensure that they mirrored, in recommendations to their own members, any precautions introduced by Government to protect the human food chain.

3.260 The PFMA had the luxury of being able to base its policies on the interests of its members and their customers. The financial implications of banning specific ingredients from their products were not great. The implications for their suppliers of such action were more serious, but it did not have to weigh these in the balance.

3.261 We consider that the approach of the pet food industry to the effect of BSE on its choice of ingredients was logical and commercially sound. The remote risk of potential infectivity was not one it needed to take. It was wise to avoid it.

UKASTA and UKRA

3.262 Mr MacGregor's motive for introducing the human SBO ban was, in large measure, to reassure the public that it was safe to eat beef. The measure was precautionary to address apprehended risk for which there was no scientific evidence but which, equally, could not be discounted on the basis of scientific evidence.

3.263 The reasoning that led to public apprehension about the safety of SBOs in human food also led to concerns on the part of the animal feed and rendering industries - not least on the part of Mr Foxcroft, whose letter to Mr Meldrum on 22 May 1989 was particularly perceptive (see paragraph 3.29). The concerns of these industries could not be divorced from similar concerns on the part of their clients. Indeed UKASTA's evidence was that it felt bound to advise its members to introduce a voluntary SBO ban because of the perception of risk on the part of its customers rather than because of any actual apprehension that SBOs would prove infectious to non-ruminant animals.

3.264 Thus in July 1989 UKASTA explained to MAFF that if the feed industry did not exclude those SBOs that MAFF proposed to ban from human consumption, the incorporation of meat and bone meal in general might be put in question (see paragraph 3.43).

3.265 When Mr Meldrum met representatives of UKASTA on 23 July 1989 he told them that the Minister had decided to introduce the SBO ban simply to maintain public confidence - there was no scientific basis for concern about the safety of pig and poultry rations. ¹ UKASTA, however, was concerned in its turn for the public confidence of those who purchased feed from its members. ²

3.266 Later in the year at a meeting with Mr Curry, UKASTA members:

. . . explained that major members were under intense pressure from multiple retailers and producers to follow the expected ban on certain offals for human consumption with a ban of their use in animal feedingstuffs. If UKASTA did not take these steps, there was a danger that major members would move along this route alone, thus making fragmentation of the market. . . . UKASTA emphasised that their objective was to maintain the position of meat and bone meal as 'clean' raw material . . . ³

3.267 So far as renderers were concerned, they had little option but to fall into line with the demands of the feed manufacturers, who were their clients. As Mr Foxcroft explained to us:

Particularly as far as my company were concerned the majority of our customers, our major customers, major feed manufacturers, wanted the exclusion of those tissues. ⁴

3.268 We consider that both UKASTA and UKRA acted rationally in introducing together a scheme designed to exclude SBOs from non-ruminant feed. The commercial reasons for such action were compelling.

The NFU

3.269 So far as the NFU was concerned, the recommendation given to its members to avoid animal feed containing SBOs was largely designed to reassure the purchasers of livestock rather than to secure the adoption of a precaution that was scientifically justified. Once again we have no criticism to make of advice that was largely dictated by commercial realities (see paragraph 3.189).

What was MAFF's attitude to an animal SBO ban?

3.270 In considering this question it is necessary to consider both MAFF's attitude to the voluntary SBO ban which the industries had introduced and its attitude to the suggestion that MAFF should introduce a statutory ban on the incorporation of SBOs in animal feed. As we have seen, MAFF came under pressure from a number of quarters to introduce such a ban.

3.271 It was suggested to witnesses that MAFF maintained, both before and after the first case of spongiform encephalopathy in a cat, an 'adamant' opposition to an animal SBO ban, whether voluntary or statutory. This provoked indignant objections to that adjective. Witnesses made the point that their approach was to be guided by science. Objections to an animal SBO ban were based on the fact that there was no scientific justification for this. Thus Mr Gummer said:

I have to say we were not adamant at all. The only thing we were adamant about was making sure that we followed the science and moved as far towards the safety side of what the science allowed us to do as we could.

I never had, nor did the industry, any preconceived opposition to an SBO ban on animal feed. What we had was a preconceived opposition to action which was not based on the science. That is the distinction I would like to draw. ⁵

3.272 We are in no doubt that MAFF officials were strongly opposed to an animal SBO ban at all stages up to the point that SEAC advised that such a ban should be introduced. The same is not true of Mr Gummer and Mr Maclean. As we have seen, in January 1990 Ministers were exploring with their officials the possibility of a ban on feeding ruminant protein to pigs - if only as a temporary measure - and were contemplating the introduction of measures to protect domestic pets (see paragraphs paragraph 3.118-3.121). They were, however, persuaded by their officials that such measures were neither justified nor desirable, and thereafter remained opposed to any form of animal SBO ban. When Mrs Thatcher raised the question of whether it was desirable to continue to incorporate animal protein in animal feed, Mr Gummer reassured her that it was. Ministers and the Prime Minister are to be commended for raising the issue. They acted reasonably in accepting the advice proffered by MAFF officials (see paragraphs 3.124-3.127).

3.273 The opposition of MAFF officials was not merely to the introduction of a statutory ban. Vigorous attempts were made to dissuade UKASTA, UKRA and later the NFU from introducing or advocating a voluntary ban on the use of SBOs as an ingredient of pig and poultry feed.

3.274 We do not believe that there was any enthusiasm for referring this matter to SEAC. MAFF had a firm policy on the matter, which they believed was soundly based. Officials may also have had in mind the shock that Professor Southwood had caused when it seemed that his Working Party was going to advise against the practice of recycling animal protein. ⁶

3.275 Originally SEAC had simply been asked to advise generally on the implications of the cat case. ⁷ Mr Gummer told us that there was no scientific reason to refer to it the question of SBOs in animal feed. ⁸ SEAC itself had indicated that it wished to look at pig and poultry feed. ⁹ This led Mr Gummer to remark that as they intended to look into this anyway, it was sensible for him now to request them to do so. ¹⁰

3.276 Mr Andrews's comment that the 'issue would have to be very carefully handled' and that a paper should be provided to SEAC 'setting out the Department's policies and the reasons for them' demonstrated an anxiety that SEAC might produce what MAFF believed to be the wrong answer. ¹¹ It also seems to us significant that Mr Gummer wished to approve the paper before it went to SEAC. ¹² Dr Pickles was subsequently to comment that in DH it would be a 'very unusual practice' for Ministers to clear papers for a technical committee. ¹³ We suspect that Mr Gummer was anxious to ensure that the arguments in favour of MAFF's policy were properly deployed before SEAC.

3.277 The paper prepared by Mr Lowson set out to make the case for continuing to permit the incorporation of SBOs in pig, poultry and pet food and invited SEAC to endorse MAFF's policy. Such was the confidence of MAFF officials in the soundness of this policy that Mr Lowson and Mr Andrews, and their veterinary colleagues, had concluded that there would be no justification for changing it even if CVL's experiment demonstrated that BSE could be experimentally transmitted to pigs (see paragraphs 3.201-3.203).

3.278 There is scope for semantic debate as to whether MAFF Ministers, and officials, opposition to an animal SBO ban is properly described as adamant. What is beyond doubt is that the opposition was firmly and consistently maintained both before and after the early cases of FSE.

Was MAFF's policy reasonable?

3.279 We propose to consider MAFF's policy both before and after the first case of FSE. First, however, we wish to turn to a general point made by Sir Derek Andrews in a supplementary statement that dealt with this topic. He pointed out:

MAFF had a duty, as a public body, to consider the consequences of any action taken, including the possible repercussions on commercial interests that might be affected. An important issue here was the possible impact on the disposal of animal waste of any further measures in relation to SBOs. ¹⁴

3.280 As Mr Meldrum pointed out, there were two separate issues in play in relation to animal feed:

1. Should the SBO ban be extended to banning the incorporation of SBOs in animal feed? As all ruminant protein was already banned from ruminant feed, the farm animals that would principally be affected by such a ban were pigs and poultry.
2. Should the ruminant feed ban be extended to all animals? A broader issue still was whether there should be a ban on feeding animal protein to animals. In practice, renderers did not treat ruminant and non-ruminant material separately. ¹⁵

3.281 Rendering animal offal, producing tallow and recycling the resultant protein was on the face of it an extremely attractive way of disposing of what would otherwise be a waste product with potential for adverse impact on the environment. Before the emergence of BSE, approximately 1.75 million tonnes of raw material was processed annually, producing some 250,000 tonnes of tallow and 400,000 tonnes of MBM a year. ¹⁶ Approximately 100,000 tonnes of the raw material consisted of SBOs. ¹⁷ In 1988 the value of tallow was about £215 per tonne and MBM about £205 per tonne. ¹⁸ Animal offal was thus a valuable by-product which could be sold to renderers at a profit. The consequence of the animal SBO ban which was subsequently introduced was that renderers charged up to £100 per tonne for removing and disposing of SBOs.

Before the cat case

3.282 The question of whether there was scientific justification for a ban on feeding animal protein to animals had received specific consideration by the Southwood Working Party. While the Southwood Report had expressed concern at the risks inherent in recycling animal protein, Sir Richard had subsequently made it clear that the Working Party was not recommending that this practice should stop. The Working Party had recognised the possibility that domestic pets might be susceptible to BSE, but observed that there were no descriptions of naturally occurring spongiform encephalopathies in domestic pets such as cats or dogs, or in poultry. ¹⁹ Formal monitoring of the health of pigs and pets had been recommended, but nothing more than this. ²⁰

3.283 The Southwood Working Party thus made no recommendation against the practice of feeding bovine offal to pets, pigs or poultry. It is equally true, however, that it made no such recommendation in relation to humans. The human SBO ban was introduced in circumstances where there was no evidence that BSE was orally transmissible to humans and where the likelihood of this was considered remote. Nonetheless, the ban was introduced as a precautionary measure and in order to alleviate public concern.

3.284 Can it then be said that MAFF should have adopted the same approach to animals as had been adopted to humans? While there was no evidence that BSE could be transmitted orally to non-ruminants, there was concern that this might be possible. An animal SBO ban would alleviate that concern and reduce any risk that there might be.

3.285 Initially we were attracted by this parallel between a human and an animal SBO ban. We were, however, persuaded that there were a number of grounds for distinguishing between the two:

1. TSEs occurred naturally in humans in a number of forms. They had never been recorded in pigs or poultry, or in pets, save that kuru had been successfully transmitted by inoculation to a cat. Experimental transmission of scrapie to a cat had been unsuccessful.
2. Pigs had been fed ruminant-based MBM at double or more of the inclusion rates for cattle, without ill-effect. While fattening pigs were killed at 7 months, before symptoms would be likely to develop, the average lifespan of breeding pigs was 4 years.
3. Transmission experiments with kuru-infected material had been tried unsuccessfully in the United States in the case of pigs and a number of different types of fowl.
4. The precautionary principle applies with less force when animal lives are in issue than when human lives are in issue.
5. The financial implications of an animal SBO ban were much more significant than those of the human SBO ban, for almost all SBO had been rendered for animal feed even before the human SBO ban was introduced.

3.286 We also felt that there was force in the argument that if MAFF introduced an animal SBO ban simply to allay concern on the part of purchasers of animal feed, this might have the effect of causing the concern to shift and focus on the use of any form of animal protein as an ingredient in animal feed. MAFF had good reason to be apprehensive of a policy that would result in all animal offal having to be disposed of as waste.

3.287 For these reasons we have concluded that, prior to the first recognition of SE in a cat, MAFF officials and Ministers acted reasonably in resisting calls for the introduction of a statutory ban on feeding SBOs to animals.

3.288 Equally, before the first recognition of SE in a cat, we do not consider that MAFF officials or Ministers are open to criticism for seeking to dissuade UKASTA from introducing a voluntary SBO ban, although there seems to have been a failure to recognise that the animal feed industry did not approach the matter from the same standpoint as MAFF. In railing against UKASTA for being 'hell bent' on advising its members not to purchase MBM containing SBOs Mr Lawrence complained that they were 'blind to the consequences of their actions'. ²¹ was UKASTA, however, in a very different position from MAFF. UKASTA's concern was for the commercial welfare of its members. For feed compounders, market perception was of critical importance. For them, a refusal to purchase MBM derived from SBOs had no commercial downside. The costs of such a stance would fall on the renderers, or those to whom they might be passed on up the chain.

After the cat case

3.289 With the benefit of hindsight, one can see that the first diagnosed case of SE in a cat had, scientifically, a significant bearing on the question of the risk of transmissibility of BSE to other animals, including humans. It is now accepted that this was the first of a series of over a hundred cases of BSE being transmitted in foodstuff to cats. There was no previously recorded case of a cat contracting naturally a spongiform encephalopathy. Kuru had been transmitted to a cat by cerebral inoculation. Experimental attempts to transmit scrapie in this way had failed. The cat was an example of the fact that BSE had a wider host range susceptible to oral transmission than scrapie.

3.290 When the first case of SE in a cat was announced, many drew the conclusion that this was an example of transmission of BSE, and that it demonstrated that other animals were similarly at risk. It was this possibility that led Dr Ruth Jacobs to question the practice of continuing to feed SBOs to pigs and poultry (see paragraph 3.168) and Mr Wells to express the view, whether in May or somewhat later, that it should lead to a complete ban on MBM entering the animal feed chain (see paragraph 3.150).

3.291 These views were speculative, but not irrational. We do not suggest that the first, or even the first few cases of SE in cats, should have led MAFF to change its policy and extend the SBO ban to animal feed. We consider that the implications of the first and subsequent cases of SE in cats were pre-eminently a matter on which it was appropriate to seek the advice of SEAC.

3.292 Mr Gummer asserted in his supplementary statement to us that:

There was as at May 15 1990 no scientific reason to refer the question of a ban on SBO in pig, poultry or other animal feed to SEAC for further advice. The scientific advice which MAFF had received at that date was that such a ban was not justified scientifically. ²²

3.293 We can understand Mr Gummer forming this view at the time, for he had left the meeting with Mr Meldrum on 10 May in the mistaken belief that there was no likely connection between BSE and the cat, and Mr Maclean shared this understanding (see paragraph 3.140 and 3.155-3.156). It was, however, logical for SEAC to wish to consider, when examining the implications of the cat case, the practice of feeding animal protein and, in particular SBOs, to pigs and poultry. On the first occasion that it did so - 13 June 1990 - it decided that the matter needed further study (see paragraph 3.185).

3.294 It seems to us that, while the first case of SE in a cat did not demonstrate that MAFF's policy on feeding SBOs to pigs and poultry was unsound, it placed a question mark over it. In these circumstances, we questioned whether it was appropriate to continue to challenge those who sought, or advocated, the avoidance of animal feed derived from SBOs. The question arose, once SEAC had been asked to consider the composition of pig and poultry feed, whether MAFF could have made that fact public. If MAFF had done this, then it would not have been open to criticism of maintaining an untenable position.

3.295 Sir Derek Andrews gave the following answer to that question:

It was not normal practice to announce publicly the issues referred to SEAC and the agendas for their meetings. Although I am not aware that this question was directly addressed during the relevant period in 1990, there would have been reasons for not making any such announcement which would have inevitably caused speculation about a possible change in policy at the time. The NFU and others with a direct interest in the feed issue were not advocating any change of policy on the grounds of risk to human health. Their concerns were with the commercial consequences of the consumer impact. In the absence of any scientific basis which would have justified a change in policy, there were clear public policy reasons against causing the current policy to be called into question by suggesting that it was being reviewed.

3.296 Mr Capstick painted a more extreme picture of the ease with which MAFF's policy might have been undermined:

. . . changing even the phraseology of a statement about policy is interpreted as almost of earthquake proportions, and so one had to be very careful, and I learnt this from bitter experience before. One has to stick very carefully to the same line. Slight weaknesses are interpreted as having major significance. ²³

3.297 We did not find this rationalisation of MAFF's stance compelling. By the time that the first case of FSE was announced, UKASTA's voluntary animal SBO ban had been in place for six months and was observed by the majority of the animal feed trade. There remained a small market for MBM produced from SBOs at Prosper De Mulder's Hartshill plant and sold at cut price. We question the extent to which this market would have been affected had it become known that SEAC was considering the composition of animal feed. We also wonder whether, had MAFF officials considered the matter, they would have been anxious to preserve a practice on the part of the bottom end of the market, of incorporating in animal feed MBM derived exclusively from SBO.

3.298 MAFF had quite cogent grounds for concluding that even if cats were susceptible to BSE, pigs and chickens were not. These were deployed in the paper that Mr Lowson prepared for SEAC (see paragraph 3.211). Had they not been overtaken by the transmission of BSE to a pig, we think it possible that they would have carried the day with SEAC. We consider, however, that MAFF officials and Ministers adopted an unnecessarily defensive approach in failing publicly to acknowledge that the cat raised issues in relation to animal feed that SEAC were considering. Their stance was, we feel, in part a response to some of the alarmist reactions to the cat that received prominent media coverage. These tended to produce a polarisation of attitudes. We have concluded that MAFF's reaction was understandable and fell within the range of reasonable responses. It is thus not a matter for criticism.

3.299 In August, officials at MAFF realised that they would need to make public the experimental transmission of BSE to a pig. But they were concerned to have SEAC's advice before they went public, and Ministers concurred. Again, given the furore that had surrounded the cat, we can understand the reasoning behind this decision, and the associated decision that the animal SBO ban should be announced at the same time as SEAC's advice. While these decisions, too, were unnecessarily defensive, we do not criticise those involved.

Pet food

3.300 Mr Gummer and his officials were at odds with the Agriculture Select Committee as to whether a mandatory ban on incorporating SBOs in pet foods should be introduced. Their stance was that any risk that BSE might be transmissible to pets through feed was adequately addressed by the voluntary ban imposed by the PFMA, whose members constituted some 95 per cent of the market. Mrs Attridge also asserted that it was no part of MAFF's remit to take steps to protect companion animals in circumstances where failure to do so had no implications for the health either of humans or of farm animals. ²⁴ We do not understand this view to have been shared by Mr Gummer. We consider, however, that the reliance on the voluntary SBO ban imposed by the PFMA as an adequate response to the possible risk of transmission to pets was not unreasonable.