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Dairy Farmer, FDA Score Points in Raw Milk Case

A California raw milk dairy farmer has managed to fend off the federal government’s legal attempt to put him and his dairy under tighter scrutiny through strategies such as unannounced inspections.

But in the same case, the federal court, Eastern District of California, in its recent April 20 decision (pdf), granted the federal Food and Drug Administration’s motion for summary judgment, which prohibits the dairyman, Mark McAfee; his dairy, Organic Pastures Dairy Company; and others associated with the dairy from delivering or introducing raw milk or raw milk products in any form–including raw milk labeled at pet food–across state lines.

raw-milk-stats.jpgRaw milk is milk that hasn’t been pasteurized.

The FDA warns that raw milk and raw milk products may contain pathogens that can sicken or kill people

Although California state law allows licensed raw milk dairies to sell raw milk and raw milk products in California, federal law prohibits the sale of those products for human consumption across state lines.

Twenty-eight states, including California, allow the sale of raw milk by licensed dairies. 

The recent April 20 legal decision also imposes other requirements on McAfee and his dairy, including one designed to ensure that those buying raw milk and raw milk products from Organic Pastures are informed in writing that they cannot sell these products across state lines.

On the health front, the recent decision also prohibits Organic Pastures from promoting raw milk products as providing a cure for asthma and prohibits it from having any statement or slogan promoting raw milk’s health benefits.   

“The health benefit claims made by Organic Pastures and other raw milk advocates just don’t have the scientific backing they claim–and the FDA called them on it,” said food safety attorney Bill Marler

But for McAfee, the decision is, nevertheless, a victory.

“The FDA did not get what they had wanted from the courts,” he said in an email to Food Safety News. “They basically got nothing. We are overjoyed that the litigation is now done.”

Organic Pastures, the nation’s largest raw-organic-dairy-products producer in North America, has about 60,000 customers in California.

McAfee is no stranger to the courtroom when it comes to battles over raw milk.

On Dec. 22, 2008, McAfee and Organic Pastures pled guilty to two counts of selling the dairy’s raw milk in other states “misbranded” as pet food.

McAfee admitted that he was using a legal loophole that gave out-of-state consumers a way to order raw milk that they intended to drink.

In Jan. 2009, as part of his legal agreements with the federal government, McAfee agreed to cease all interstate sales of raw milk and raw milk products and to make changes to the company’s Website that make it clear that under federal law, raw milk and raw milk products in final package form intended for human consumption cannot be sold across state lines.

But given McAfee’s past history, the FDA told the court it was likely he would violate the law in the future. 

In response to that claim, McAfee argued that the proposed restrictions dealing with interstate sales were unnecessary because he had stopped distributing raw milk in any form or labeled in any way across state lines in 2007.

But because McAfee’s previous legal agreements with the federal government will end in January 2011, food safety attorney Marler sees the recent court action as a legal victory. He pointed out that even when the dairy farmer’s legal agreements with the federal government come to an end, he still won’t be able to ship raw milk or raw milk products over state lines, even if it’s labeled as pet food.

During the March 12, 2010, hearing on FDA’s attempt to tighten its grip on Organic Pastures, McAfee also cited examples of the agency’s proposals, such as conducting unannounced inspections at his dairy–and requiring him to pay for them–as a financial threat to his dairy.

Another legal issue in this case stems around Organic Pastures’ previous claims that drinking raw milk can strengthen immune systems and cure health problems such as asthma.

According to the FDA, unsubstantiated health claims such as this would make raw milk and raw milk products “unapproved new drugs.”

Taking heed of that, McAfee has taken all such claims off the the dairy’s Website and removed all links to claims such as that.

Even so, during the March 12 hearing, the FDA pointed out that an Organic Pastures vehicle is emblazoned with the slogans: “Got asthma, got allergies, got lactose intolerance?”

McAfee told the court he would immediately remove those slogans. Bottom line, the FDA pointed to McAfee’s past behavior, both in misbranding raw milk and raw milk products going out of state for human consumption as “pet food” and to the health claims he and his dairy were making about the benefits of raw milk as reasons for the agency’s need to subject the dairy to additional restrictions and requirements.

But Judge Oliver Wanger said that while the government has evidence that McAfee and Organic Pastures mislabeled, misbranded, and shipped raw milk and raw milk products across state lines in violation of federal law, that doesn’t warrant giving the government the same access to and control of the dairy that would “normally be associated with food contamination or adulteration cases.”

“In other words, we don’t have coliform, we don’t have Salmonella, we don’t have other kinds of deadly bacteria or organisms,” the judge said during the March 10, 2010, hearing. 

Comparing that to a situation in which a business is selling bad cheese or bad beef or bad fish, Wanger said that in cases like that the FDA might be justified in gaining more access or control.

In this situation, though, he said, the FDA is talking about mislabeling, misbranding, and interstate shipment.

“Let’s confine the remedies to what you’re trying to stop fairly and not impose conditions that . . . without notice, without opportunity to be heard, without any resource whatsoever, enables you to shut this business down. Period.”

Wanger also pointed out that he didn’t think the public would be jeopardized in any way by not having what he called “the death penalty provision” in here.

“This is taking Organic Pastures out without going to a magistrate and stringing them up and throwing a noose around its neck and hanging it until dead,” Wanger said during the hearing.

McAfee told Food Safety News that the judge was very clear that the FDA case against his dairy was not a case based on food safety. 

“The case was based purely on mislabeling of ‘pet milk,’ he said. “The judge said that raw milk in California has a good safety history, and this is not about safety or whether raw milk is legal in California.”

The court’s summary judgment lists 14 stipulations that McAfee and Organic Pastures must abide by. On May 14, McAfee said that he and his dairy have already fully complied with all of the terms of the summary judgment. 

While McAfee and the legion of raw milk advocates across the nation may take heart in this latest legal decision, David Gumpert, author of “The Raw Milk Revolution: Behind America’s Emerging Battle,” warned on his blog “The Complete Patient,” that there’s an important lesson to be learned here.

Pointing out that the judge noted that there were no allegations of illnesses from Organic Pastures’ milk driving the government’s effort to tighten the reins on Organic Pastures and McAfee, Gumpert asked this question: “But what if there were illnesses?”

Gumpert said that in reading the transcript of the hearing, he thinks that the judge would likely have had another view of the situation if someone in another state had become ill from Orgainic Pastures’ milk.

He had this advice to share with his readers:

“The best defense, though, is as few illnesses as possible, and the way to achieve that seems to be via an overarching commitment, through a variety of techniques, to improving animal health and safety.” 

© Food Safety News
  • John Hodgden

    Kudos to Mr. McAfee! I, for one, am sick and tired of beuraucrats and politicians using judicial and legislative processes to run roughshod over us like some Communist Socialist form of government. I was raised on the farm and raised on raw milk which is hands over feet healthier for us than processed milk. I miss skimming about four inches of cream of the top of the jug of milk and using it on a bowl full of berries or to make butter with. I want to be able to buy raw milk as my parents did a half century ago and treat the family to a much better way of life. How about forming an interstate cooperative to promote raw milk production and sales?