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Mad Cow Disease - 21st Century Underwriting Issues

21st Century Underwriting Issues
Chris Crowder, Sydney


The issue
We are seeing an increasing number of inquiries regarding insurance risks associated with transmissible spongiform encephalopathies (TSE). The TSE umbrella of diseases include Bovine Spongiform Encephalopathy (BSE, also known as Mad Cow disease), the human variant Creutzfeld-Jakob Disease (vCJD) and Scrapie (sheep). The use of the term "TSE" rather than Mad Cow or v CJD is intentional as it includes all of these transmissible wasting diseases of the brain. For a more detailed explanation of these diseases, please refer to the other articles at Mad Cow Disease Central.

Background

  • There is no known cure for TSE-related diseases. Dementia and death are the end result over a period lasting anywhere from 6 months to two years after manifestation.
  • Sheep have manifested a similar disease known as "Scrapie" for 200+ years. The prevailing theory is that cows contract BSE from eating feed which contains sheep by-products (organs) which are contaminated with Scrapie. Now that BSE has been found in some cows, the concern is that it may be passed on to other cows, or humans, from beef or by-products.
  • The addition of by-products to animal feed has been banned to varying extents over the last several years. However, the extent of the ban varies by country. For instance, in the U.S., by-products have been banned in ruminant (cud chewing) animals since 1997. However, by-products may still be added to the feed of non-ruminant animals such as pigs and chickens. As you can imagine that's a fairly controversial distinction.
  • Much of the disease may have come from dairy herds since they live longer than beef cattle and they typically would consume higher concentrations of the suspect by-products. Dairy cows yield lower quality beef which usually ends up in hamburgers and processed meats.
  • It is now a near certainty that humans can develop the disease (a variation of BSE called vCJD) by eating meat from infected animals.
  • The latency/ manifestation period for the disease in cattle appears to be a minimum of two years, and perhaps as much as five to six (5 - 6) years. In humans, the latency period is not known but estimates have been as long as fifteen (15) years.
  • Until the disease symptoms manifest themselves it is not possible to determine from visual inspection whether animals carry the disease.
  • At this time, there are no tests to determine the presence of the disease in an animal, other than tissue testing after slaughter.
  • There is also speculation that the disease can be transmitted by blood transfusions. The U.S. Food and Drug Administration has enacted a very basic screening for blood donors (anyone who lived: (i) in the U.K. six months or more from the late 80's to the mid-90's, or (ii) in the affected EU nations, for an aggregate amount of time 10 years or longer -- is ineligible to donate... those EU nations currently on the list are France, Ireland and Portugal). A similar screening procedure is in place in Australia. We can expect this list to change if any further spread of TSE surfaces.
  • At the present time, there is no way to test human blood, or a live person, for the presence of the disease.
  • Other potential exposures, which are admittedly more remote, include pharmaceuticals, dietary supplements and cosmetics which are made with bovine: organs, blood, gelatin or glandular tissue (e.g. slaughterhouse sources).
  • Recent efforts to contain this disease within the U.K., or even greater Europe, appear to have been generally effective. This containment is largely the result of a ban on protein feed supplements.
  • To date, the only confirmed cases of BSE outside of the EU have occurred in Canada, the Falkland Islands and Oman. All have only one or two reported cases and all are also believed to have involved imported cattle.
  • The spread of the disease within the EU may stem from earlier feed or animal exports from Britain, or possibly their own recycling of animal protein (by-products) into the feed chain. Another potential source of spread are people who aren't bothered by breaking the recent laws designed to restrict such exports. The countries which received significant volumes of U.K. exported feed from 1988 to 1996, at which time such by-products were banned from all U.K. feeds include, the EU countries, China, Hungary, Iceland, Indonesia, Israel, Jordan, Malta, Philippines, Russia, South Korea, Sri Lanka, Taiwan and Thailand.

Exposures to loss come in two basic flavours.
    1. Property Damage to:
    (a) cattle which have been infected,
    (b) feed which has been contaminated with additives,
    (c) products which incorporate contaminated meat,
    (d) the cleanup and/or disposal costs of all of the above.
    This can be more vertical than you might expect as standard practice when even one infected animal is found is to destroy the entire herd.
2. Bodily Injury to humans from consuming infected food or products, or receiving contaminated blood transfusions. This may include costs for medical monitoring in cases of suspected exposure, and mental anguish. There is both a single and a multi-person exposure with the potential for stacking of limits across multiple years.


Underwriting Issues
The insurance industry's approach to TSE exposures will likely change over time as more information becomes available. While not an exhaustive list, the following classes of business may be confronted with significant loss exposure from TSE:

Class
  • Feed Manufacturers and Feed Supplement Manufacturers
    The list of known exposed countries for U.K. feed exports is: the EU, China, Hungary, Iceland, Indonesia, Israel, Jordan, Malta, Philippines, Russia, South Korea, Sri Lanka, Taiwan and Thailand.
  • Feed Lots and/or Meat Processors ( e.g. abattoirs, meat packing plants, slaughterhouses)
  • Blood Banks should also confirm that the insured has TSE (BSE / v CJD) donor screening procedures in place.
  • Drug Manufacturers(ethical or prescription)
  • Food / Dietary Supplement Manufacturing (vitamins, protein supplements, neutraceuticals, etc.)
  • Cosmetic Manufacturing

The latent nature of TSE-related disease may give rise to creative legal arguments by insureds that policy limits ought to be stacked across multiple policy years. It is unclear how courts would evaluate such an argument. Further, the long-term latency of the disease may make it difficult for a claimant to establish a direct causal connection with a specific risk. Claimants in jurisdictions with market share theories of liability may not have to prove a direct causal connection. Careful consideration of policy trigger and/or TSE exclusionary wording is an important consideration.


Legal Disclaimer
This article describes historical or potential exposures and pertinent safety or loss controls of which we are now aware, as well as relevant examples of case law, statutes, and regulations. Not all exposures, losses, or loss controls are reported and others may be relevant in particular circumstances. This material may need revision from time to time, but we do not undertake to do so. We encourage you to consult with appropriate professionals including legal counsel and to obtain the original texts of materials referenced with respect to the matters discussed herein.

 
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