Volume 5: Animal Health, 1989-96
2. The ruminant feed ban, 1989-96
Implementation of the Order
Responsibility for monitoring and enforcement under the Order
Legal powers of inspection and sampling
Enforcement difficulties
Notice to enforcement officers
Notification of the ruminant feed ban to industry
Information to farmers
Initial efforts to enforce the Order

Responsibility for monitoring and enforcement under the Order

2.6 Article 12 of the Order provided:

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

2.7 Article 9 of the 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.

2.8 Thus County Councils and Unitary Authorities had a statutory duty to enforce the ruminant feed ban. However, a power to take samples, when it was reasonably suspected that the RFB was not being observed, was reserved to 'inspectors of the Minister', in effect the State Veterinary Service (SVS).

Legal powers of inspection and sampling

2.9 Section 63 of the Animal Health Act 1981, under which the Order was made, set out the general powers of local authority inspectors under the Act. Section 63(2) provided:

An inspector may at any time enter any land or shed to which this Act applies, or other building or place where he has reasonable grounds for supposing -

. . .

(c) that there is to be found any pen, place, vehicle or thing in respect of which any person has on any occasion failed to comply with the provisions of this Act, or of an order of the Minister, or of a regulation of a local authority; or

(d) that this Act or an order of the Minister or a regulation of a local authority has not been or is not being complied with. ¹

2.10 The Animal Health Act 1981 did not provide specific powers for inspectors to take samples or require compounders and suppliers to provide information or documents. ²

2.11 However, local authority inspectors had powers to take samples under section 76 of the Agriculture Act 1970, which provided:

(1) An inspector may at all reasonable times enter -

(a) any premises on which he has reasonable cause to believe that there is any . . . feeding stuff . . . ready for sale;

(b) any premises . . . on which he has reasonable cause to believe that there is any . . . feedingstuff which the occupier of the premises has purchased;

and the inspector may take a sample in the prescribed manner on those premises of any material on those premises (including material in a vehicle) which he has reasonable cause to believe to be such a . . . of feeding stuff as aforesaid. ³

2.12 This did not give inspectors power to inspect documents. ⁴ Further, in a minute to Mr Alan Lawrence ⁵ on 10 June 1988, Mrs Elizabeth Owen ⁶ doubted whether 'lawyers would embrace the idea of your trying to enforce the BSE regulations made under the Animal Health Act by using powers of entry under the Agriculture Act'. ⁷ Nevertheless, it appears that some local authorities did enter premises and take samples, though as discussed in paragraphs 2.14-2.16, the lack of an effective field test for ruminant protein inhibited this practice.

2.13 MAFF faced numerous legal obstacles when it took steps to try to enforce the RFB. The primary problem was that the array of legislation described above did not give SVS officers power to enter premises to test, on a routine basis, for the inclusion of ruminant protein in feed intended for ruminants. The legal difficulties and the action MAFF took to try to overcome them are described in the narrative section later in this chapter.

Enforcement difficulties

The lack of a reliable test for ruminant protein in feedstuffs

2.14 Concerns about the enforceability of the Order were expressed prior to its introduction. The primary obstacle was the lack of a test to detect the presence of ruminant protein in feed (see vol. 3: The Early Years, 1986-88). ⁸ However, a technique known as ELISA (Enzyme Linked ImmunoSorbent Assay) was being developed by the Meat Research Institute at Bristol, which had 'some potential in determining the species of origin of processed protein'. ⁹

2.15 In a statement to the Inquiry, Mr Keith Meldrum, the Chief Veterinary Officer (CVO), summarised the crucial part the ELISA test played in the ruminant feed ban story:

MAFF realised in June 1988 that it needed a test to detect the presence of ruminant protein in ruminant rations and it was soon realised that existing systems would not be able to detect heat treated proteins in compound rations. The importance of distinguishing ruminant proteins from other animal proteins was clearly an objective of the work especially given the variety of materials incorporated into compound animal feeds. It was also realised that the ELISA test must be exquisitely sensitive because meat and bone meal inclusion rates could be extremely low in compound rations and where cross-contamination had occurred the levels could be lower still. ¹⁰

2.16 Although the ELISA was not available when the Order came into force, it was hoped that the test would become available soon thereafter. This did not prove to be the case. The delay in the production of a field test for ruminant protein, and its implications for the monitoring and enforcement of the ruminant feed ban, is discussed in the narrative section that follows.

Home-mixers

2.17 Further difficulties existed in monitoring on-farm feed mixing practices. This was an issue addressed by the Expert Group on Animal Feedingstuffs (Lamming Committee) during its sixth Meeting on 28 June 1991. The Lamming Committee considered enforcement arrangements for feedstuff legislation and, in particular, controls on home-mixers. Mr Colin Maclean said that the results of the Agricultural Development and Advisory Service (ADAS) questionnaire on home-mixing of animal feed had raised doubts about the safety of this practice, which had been reinforced by a MAFF paper on controls governing feed composition and marketing. Powers to enforce legislation on farms were limited. Specifically, 'there was concern at the absence of any sampling requirements for home-mixers, which made it impossible to assess the general standard of feed produced'. ¹¹

2.18 These general concerns over the safety of home-mixing of animal feedstuffs were not specifically related to consideration of BSE infection. The Lamming Committee's subsequent recommendations regarding controls for home-mixing are discussed in the chronological account in this chapter.

Notice to enforcement officers

Veterinary Field Service

2.19 On 15 June 1988 MAFF distributed instructions on BSE to the Veterinary Field Service (VFS) through an update to Inset 25 of its handbook. The instructions dealt with the diagnosis of BSE, and with notification procedures under the 1988 Order. A brief mention was made of the RFB:

Current knowledge also suggests possible involvement of animal protein in the epidemiology of the disease and hence the order also introduces controls over the incorporation of animal protein obtained from ruminant carcases into ruminant feed. ¹²

2.20 During his oral evidence, Mr Iain Crawford, Director of the Veterinary Field Service, could not recall any further information about enforcement or monitoring of the ban being provided to field staff. He said:

I do not recall any instructions to the field staff to take any action, at that point, at the feedmills. One of the reasons why that would not have been particularly fruitful was that there was no test at that time. It would be pointless taking samples of feed and trying to analyse them for the presence of ruminant material. There was no test available. The industry itself was widely consulted on the ban, and they were aware of the ban on feeding ruminant material to ruminants. So far as we were aware, they were implementing it. But for veterinary staff to go along to a feedmill and look at feedingstuffs would not really tell them very much. ¹³

Local authorities

2.21 We have not been able to locate a copy of the letter informing local authorities about the Order. A note signed by Mr Mark Hawkins of MAFF's Animal Health Division indicates that copies of the Order were to be sent to local authorities on 16 June 1988. ¹⁴ Local authorities informed us that they became aware of the Order when it was published, ¹⁵ or when it was 'identified in the usual way via internal mechanisms'. ¹⁶

2.22 In oral evidence, Mr Lawrence said that no specific instructions were issued to trading standards officers when the RFB was introduced. ¹⁷ Mr Robert Lowson, Head of Animal Health Division from 1989 to 1993, said that MAFF officials had discussions with trading standards authorities and with industry about how to monitor compliance with the ban and ensure it operated effectively. ¹⁸ However, we have found no written evidence of such discussions. Witnesses from local authorities ¹⁹ and the Local Authorities Co-Ordinating Body on Food and Trading Standards (LACOTS), ²⁰ who gave evidence to the Inquiry, said they were not consulted before the Order was introduced. ²¹

2.23 Responses to questions about the advice received from MAFF after the Order came into force were varied. Mr Gordon Gresty said in oral evidence:

. . . 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. ²²

2.24 However, when asked specifically whether he had discussions with Ministry representatives about sampling, Mr Gresty, Head of Trading standards at North Yorkshire County Council, indicated that though he could not recollect, advice might have been available:

I mean we have consultation with the local DVOs [SVS; Divisional Veterinary Officers] as they were then on a regular basis. Whether it was raised or not I just cannot remember, I am afraid. I have no written records and have no recollection at this present time. We may have done, we may not. ²³

2.25 Mr Peter Heafield also indicated that regular liaison meetings between SVS officers and Lincolnshire County Council enforcement officers took place in the period when the ruminant feed ban came into force and could have been a source of advice on enforcement of the ban. ²⁴

2.26 On the other hand, Mr Richard Lodge said:

Due to the Government's insistence at the time that BSE was not a major problem and presented no risk to human health, no advice was sought in relation to the listed regulations [including the ruminant feed ban Order] and circulars and none was received. ²⁵

Notification of the ruminant feed ban to industry

2.27 Adherence to the ruminant feed ban was dependent, to a large degree, on the cooperation of farmers and feed manufacturers. In a statement to the Inquiry Mr Kevin Taylor ²⁶ said that until a test was developed:

. . . in the interim we had no option but to rely on compliance by farmers and the agricultural suppliers, acting in their own and in the wider interest. All animal health legislation depends, to a large extent, on such compliance, and to this extent BSE was no different to other animal diseases. As the animal health status of this country over many decades demonstrates, the farming community in Britain has a good record of compliance with statutory requirements. ²⁷

2.28 Mr Meldrum explained further:

Mr MacGregor's ²⁸ decision to make the ban compulsory gave the ban the force of law and so provided a further lever to encourage compliance, but in essence it was recognised that it would rely as much on the co-operation of the feed industry in complying as would a voluntary ban. Both the feed and rendering industries had co-operated fully with MAFF since March 1988 in the epidemiological investigations into the cause of BSE that led to the formulation of the meat and bone meal hypothesis. Whether the eventual ban was voluntary or compulsory, there was no reason for me or anyone else within MAFF to believe that such co-operation would not continue. ²⁹

2.29 Mr Kevin Taylor stated that:

The approach was in fact to explain to the industry and to the farming community in general the reasons that the actions were taken, and if they failed to obey it, it was the health of their other animals that they were prejudicing. ³⁰

2.30 He maintained that it had been his view at the time that the ban was 'completely unenforceable' if it were not voluntarily obeyed. ³¹

2.31 MAFF organised two meetings to discuss with the industry its intentions regarding the ruminant feed ban, both on 1 June 1988. Representatives of the United Kingdom Renderers' Association (UKRA), the United Kingdom Agriculture Supply Trade Association (UKASTA), the Grain and Feed Trade Association (GAFTA), the Federation of Agricultural Cooperatives (FAC), and the National Farmers' Union (NFU) attended the feed industry meeting. ³² Representatives of various cattle breeding associations, the National Cattle Breeders' Association (NCBA), the Milk Marketing Board (MMB), the British Veterinary Association (BVA), the NFU, the Farmers' Union of Wales (FUW), and the Royal College of Veterinary Surgeons (RCVS) attended the cattle industry meeting. ³³

2.32 Later on the same day MAFF issued a press release announcing the terms of the imminent legislation, ³⁴ and the NFU issued a statement supporting MAFF's proposed measures. ³⁵

2.33 On 28 June 1988 MAFF met cattle industry representatives again. Mr Lawrence confirmed the ban's duration and that MAFF teams would investigate plants to see which processes could destroy the BSE agent. He also said that MAFF had powers to take samples of feedstuffs in cases where it was thought that the law was being broken. When questioned how this would apply to rendering plants, Mr Meldrum explained that he expected that the rendering industry would continue to cooperate, and that the Animal Health Act 1981, the Bovine Spongiform Encephalopathy Order 1988 and the Disease of Animals (Protein Processing) Order 1981 ³⁶ gave power to enter and sample. ³⁷

Information to farmers

2.34 MAFF relied on farming organisations and the press to relay information about the ban to farmers. Mr Peter Rudman, Secretary of the NFU's Animal Health and Welfare Committee, said during oral evidence:

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. ³⁸

2.35 UKASTA informed the Inquiry that it 'did not itself offer advice to be passed on to the customers of our members relating to the disposal of feed containing MBM'. ³⁹ Representatives of J Bibby Agriculture, a large feed compounder, said in a statement to the Inquiry that:

The Government bodies did not suggest it was necessary for us to advise our customers not to use up current feed stocks; we were meeting our obligations under the Order by not supplying feed containing MBM after the specified date. The prohibition on actual feeding was presumably directed to farmers but we are not aware how this was transmitted to them. ⁴⁰

2.36 Representatives of Dalgety Agriculture Limited, another major feed compounder, added that:

No advice was given to customers. We relied on MAFF and the NFU to give information and advice to farmers on their obligations under the Order (in particular the obligation not to feed offending feedstuff to animals after the coming into force of the Order). ⁴¹

2.37 On 15 July 1988 an article in Farmers Weekly included 20 questions on BSE, with answers supplied by the Central Veterinary Laboratory (CVL). The article warned that from 18 July 1988 the use of ruminant protein in ruminant feed would be suspended and explained the hypothesis that BSE arose from the transmission of the scrapie agent through scrapie-infected sheep brains in ruminant feed. The CVL told Farmers Weekly:

Our hypothesis is that the entry of the suspect agent into the host is probably via the mouth. Exit from the live animal in significant disease producing quantity is unlikely except possibility at the time of calving where afterbirth (using the analogy of sheep scrapie) may be infected. This could be a source of infection for other cattle but there is no evidence for it at present. ⁴²

Initial efforts to enforce the Order

2.38 It appears that despite apparent enforcement difficulties (see paragraphs 2.14-2.18), some local authorities made efforts to ensure that feedmills were not incorporating ruminant protein in cattle rations. Mr Lawrence said in a statement to the Inquiry that:

What is evident from recent conversations I have had with a number of my colleagues in trading standards, is that some action was taken, although this may have been applied unevenly. This was no doubt due, in part, to the fact that no specific instructions were issued when the Order came into force. However, in my experience, it was not the normal practice to issue specific guidance when animal health legislation came into force, for which they had enforcement responsibilities, although it may be argued that the terms of this particular legislation were rather different from the norm. ⁴³

2.39 For example, in a statement to the Inquiry, Mr Heafield of Lincolnshire County Council said that:

Firstly, in 1989 over 100 samples of animal feed, intended to be fed to ruminant animals, were taken. These samples were to be tested for ruminant protein. In order for such a test to be used one had to be developed by the authority's Public Analyst.

Although a test was devised it could at best only detect levels in excess of 5% ruminant protein and could be confused if milk was present in the sample.

Although no samples failed the test which had been devised the lack of an accurate, reliable test meant that this part of the order was unenforceable. ⁴⁴

2.40 The absence of a sufficiently sensitive and reliable test meant that such sampling was not an effective enforcement tool. Mr Lawrence told us:

Trading Standards Officers (TSOs) were very experienced at taking samples (under Part IV of the Agriculture Act 1970) and having them tested by the public analyst. Certainly in some authorities samples were taken and tested for signs of ruminant proteins. Of course they ran into difficulties because the tests were not sophisticated nor sensitive enough to provide clear answers and simply indicated the presence of animal protein as distinct from ruminant protein. ⁴⁵

2.41 Mr Lawrence also said that 'some authorities also conducted product audits at compounders (whom they visited regularly for their sampling work under the Agriculture Act). If protein was included [in a feed batch], they would check the specification to see if it was ruminant based'. ⁴⁶

2.42 Dr Brian Cooke, of Dalgety Agriculture and Chairman of UKASTA's Scientific Committee, agreed:

I think one has to appreciate there was at that time no test for presence of meat and bonemeal and therefore enforcement would be by looking at records. Local authorities are variable in how often they visit our premises. Some visit more often than others. When they did visit they tended to look at formulations for ruminant feed to make sure there was no mention of meat and bonemeal. ⁴⁷

2.43 Mr James Reed, Director-General of UKASTA, added in oral evidence:

I think there was some assumption that local authorities had the ability to implement the legislation if they so choose to put the resources on the ground, visit feedmills, check the records, but it would have been quite a big job. ⁴⁸

2.44 Representatives of J Bibby stated that they sent their records showing the exclusion of ruminant protein from ruminant, and indeed other feed, after 18 July 1988 to MAFF 'during the course of their follow-up investigations'. ⁴⁹