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Nation’s Largest Raw Milk Dairy Sues FDA Over Interstate Ban

Organic Pastures, the nation’s largest raw milk dairy, has launched a lawsuit against the U.S. Food and Drug Administration for allegedly turning its back on the dairy’s request for the agency to change its current law banning sales of raw milk across state lines.

Raw milk is milk that hasn’t been pasteurized to kill potentially harmful, and at times deadly, pathogens such as E. coli, Listeria, Salmonella and Campylobacter, all of which have been been linked to raw milk food poisoning outbreaks in a number of states across the nation.

The Fresno-based dairy submitted its request to the agency back in December 2008. According to statute, the FDA is supposed to respond to this sort of request — referred to by the agency as a “citizen petition” — in 180 days.  The FDA promotes this administrative procedure as a way to examine issues such as this to see if changes should be made.

In a similar lawsuit filed last year by the Farm-to-Consumer Legal Defense Fund, which focused on the agency’s ban on interstate sales of raw milk, FDA faulted the defense fund for bypassing this administrative procedure. It told the court that filing a citizen petition allows the FDA “to consider and address plaintiffs’ concerns and could potentially resolve those concerns,  or at the very least might crystalize the issues in contention.” The federal court dismissed the case in April 2012.

Time to Get On with It  

Organic Pastures’ lawsuit against the FDA was filed on Dec. 12, 2012 in U.S. District Court in the Eastern District of California. It names Secretary of Health and Human Services Kathleen Sebelius and U.S. Food and Drug Administration Commissioner Margaret Hamburg – as well as the agencies they head – as defendants.

As far as the dairy’s owner, Mark McAfee, is concerned, it’s high time for the feds to stop dragging their bureaucratic heels on this issue.

McAfee told Food Safety News that the agency did send him a notice 90 days after he sent the request (citizen petition) in 2008, but it was just to let him know that it had received it.  And that was it, said McAfee.  But after some recent prodding on his behalf by Gary Cox, general counsel for the Farm-to-Consumer Legal Defense Fund, the FDA said they were “working on it,” but that it wasn’t a priority.   McAfee said that was about six months ago and that nothing has happened since.

“The time is ripe now,” he said, referring to increasing consumer demand for raw milk and why he wants some action on his request.

Pure and simple, said McAfee, all that Organic Pastures is asking for is that the agency promptly come up with a ruling on the petition. As part of the legal action, the dairy is also seeking to recover legal fees.

McAfee said he would like the current ban against interstate sales of raw milk for human consumption, which was adopted in 1987, to be changed so that raw milk that is produced legally in one state can be shipped across state lines to another state that also allows sales of raw milk. California and Arizona, both of which allow sales of raw milk for human consumption, would be an example of states that would participate in this sort of interstate commerce.

In McAfee’s case, demand for raw milk in nearby Arizona is driving his interest in seeing the ban on interstate sales lifted. He said that with about two raw milk dairies in Arizona, the state is “really short of raw milk.”

As an example of that, Sprouts stores, a retail chain that sells Organic Pastures’ milk in its California stores, is hearing from its stores in Arizona that their customers are clamoring for raw milk. That same growing demand is being seen in many other parts of the nation.

According to the FDA,  20 states explicitly prohibit sales of raw milk in one form or another and 30 allow it. Among the states that allow it, California, Arizona, Maine, New Hampshire, Nevada, Pennsylvania, Utah and Washington state currently have very strict standards for the milk’s cleanliness.  Bottom line, they have a coliform standard (amount of bacteria in the milk) of no more than 10 coliform bacteria per milliliter and no pathogens.  This standard is equivalent to the national and some international standards for pasteurized milk.

FDA does not interfere with state laws regarding intrastate sales (sales within states) of raw milk.

McAfee was quick to say that he’s not asking for raw milk to be allowed across every state line in all cases because “sloppily produced raw milk can be dangerous.” He even goes so far as to say that he thinks there should be some universal standards for raw milk.

“It’s about food safety standards and good practices,” he said. “I’m a big advocate for food safety planning. It orients the farmers’ mind to the way things need to be done to produce safe milk.”

Bringing Down the Wall

McAfee sees his latest legal action against the FDA as an attack on what he refers to as “the Berlin Wall — a wall that’s separating farmers from consumers.”

“Once you take one brick out of the wall, the wall weakens, and there’s a better chance of bringing it down,” he said. “I want to tear down the wall.”

But he’s actually looking farther afield than this lawsuit. If the agency doesn’t give him what he’s looking for when it responds to his request, he wants to press for a full-on jury trial.

“I want to bring in the experts to talk about this,” he said, referring to pasteurized milk as “the most allergenic food in America.”  In contrast, he said, raw milk has important nutrients in it such as enzymes that kids need to be able to digest milk.

But when asked how far raw milk should be allowed to be shipped as part of interstate commerce, McAfee said he believes raw milk should be a local product available to consumers not too far from its source.

Organic Pastures, which is milking 450 cows on 500 acres of pasture, currently has 75,000 customers — up from 65,000 customers several years ago. Four hundred stores sell the dairy’s raw milk and raw-milk products.

“Every month we set new records,” McAfee said. “We’re almost at $10 million in annual sales right now.”

Yet even with California’s strict raw milk standards, harmful bacteria can get into the milk. This year in May, for example, the state ordered a recall and slapped a statewide quarantine on Organic Pastures’ raw-milk products (except for its cheeses) after inspectors confirmed the detection of Campylobacter bacteria in the dairy’s raw cream.

According to the state’s Public Health Department, at least 10 people who came down with Campylobacter from January through April 30 reported drinking Organic Pastures raw milk before becoming ill. The age range in that outbreak was from 9 months to 38 years, with six of the infected people under 18. None of the patients were hospitalized, and there were no deaths.

Then in September, state officials once again detected campylobacter in Organic Pastures’ raw cream samples.  As a precautionary measure, the dairy also recalled its raw whole milk and raw skim milk even though they tested negative for Campylobacter.  No illnesses were reported at that time.

In November 2011, a cluster of five young children infected with the potentially fatal E. coli O157:H7 reported drinking milk from Organic Pastures. In that outbreak, which was linked to the dairy by “genetic fingerprint patterns” of the E. coli the children were infected with and “genetic fingerprint patterns” found in samples collected at the dairy, led the state to issue a recall and quarantine of the dairy’s milk products (except for its cheeses).

The dairy has also been been involved in recalls and outbreaks in the past.

When asked about this, McAfee readily conceded that there’s still a lot to be learned about bacteria.

“The entire thing (producing raw milk) is a learning process,” he said. “No one completely understands bacteria and how they interplay with humans. But in the past 13 years, we’ve learned a lot. And as we tighten up our food-safety practices, we’re seeing problems with pathogens shrink. I think you’ll see more research being done to make raw milk more dependably safe.”

An Evolving Scene

As an example of how the production of raw milk is evolving, McAfee pointed to a recently developed test that will rapidly detect pathogens in raw milk.

“But it’s not available yet,” McAfee said. “We (raw-milk producers) are still a little behind the curve in getting the research money for this.”

Even so, he said he’s seeing the attitude toward raw milk within the conventional milk industry changing from outright antagonistic to neutral or even supportive.

“Even our governor (Jerry Brown) drinks raw milk,” McAfee said. “We’ve definitely seen a change in attitudes about raw milk in the past three years.”

FDA’s Enforcement Strategy

The  FDA on Nov. 1, 2011 issued a press release reminding people of its approach to enforcement when it comes to individuals taking legally produced raw milk for their own consumption across state lines.

“FDA has never taken, nor does it intend to take, enforcement action against an individual who purchased and transported raw milk across state lines solely for his or her own personal consumption,” says the press release.

Even so, in the same press release the agency points out that since 1987 (through Nov. 2011), there had been 143 reported outbreaks of illness — some involving miscarriages, still births, kidney failure and deaths — associated with consumption of raw milk and raw milk products.

The press release also says that while raw milk puts all consumers at risk, it is the elderly, the immune-compromised, children and pregnant woman who are especially vulnerable to the hazards of consuming raw milk.

For the FDA, pasteurization of milk, which was adopted decades ago as a public health measure to kill dangerous bacteria and for the most part eliminate the risk of getting sick from drinking milk, was an important step because milk is one of the most important staples of the American diet.

And though raw milk advocates point to a range of health benefits such as curing asthma and immune-related problems, the FDA warns that those claims have not been scientifically substantiated and that the health risks associated with drinking raw milk are clear.

The agency’s position on raw milk lines up with the positions taken by the Centers for Disease Control and the American Academy of Pediatricians.

Go here for more information about raw milk. The site also provides information about outbreaks and illnesses from raw and pasteurized milk and dairy products from 1998 to the present.

© Food Safety News
  • Ripe is a good word that decribes the sale of raw milk directly to consumers, it shouldn’t be allowed, it is dangerous.  I hope the FDA wins this lawsuit!

    • Michelle

      My family has been consuming raw milk for many years and have only benefited from it. My son is asthmatic and no longer requires maintenance medication. The government thinks they know what’s good for us, but they should stay out of our business. 143 outbreaks compared to the statics below! Do your homework.
      Food Poison Statistics Annual number of food related illnesses in the US76 MillionAnnual number of food related hospitalizations in the US325,000Annual number of food related deaths in the US5.000Number of annual deaths due to Salmonella, Listeria, and Toxoplasma1,800

    • A government that can prohibit one food is a government that prevents adults from making their own choices.  Americans make choices in all sorts of dangerous realms that turn out well when people are allowed to be responsible for their own lives.  If raw milk is thought to be dangerous then those who believe they shouldn’t consume raw milk need not do so.  I avoid thousands of food products that I believe are harmful for me.  I don’t need nor want the FDA to make my food choices for me.

    • There’s been no disease linked to milk – although that was the excuse used for forced  pasturizing of milk (my grandfather was a dairy farmer and completely against pasturizing and homoginizing milk).  There is no nutritional value remaining in boiled/cooked (pasturized) milk.  With that, I wouldl be just as against the government banning pasturized milk as I am against them banning raw milk.  I want freedom of choice.  If they would feel better they can put a “Surgeon General” warning on it like they do cigarettes.   I am happy to leave burocrats out of my personal decisions that cause no harm to anyone else!  🙂

    • AnOrdinaryVoter

       What an incredibly ignorant statement! Remember, you’re allowed to have your own opinion, but not your own facts. Do some research before continuing to make an idiot of yourself.

    • Raw milk has great benefits that we need for our bodies.  You don’t know everything about the raw milk industry, only what you see or hear from the FDA.  You dismiss raw milk but you’re ok with the former CEO of Monsanto as our Senior Advisor of FDA who is known for putting GMOs in our food system.  GMOs are known to be very harmful to the human body. 

    • Undecider

       An opinion based on facts?  If you look up deaths pertaining to dairy milk consumption, you’ll find that no one has died from raw milk.  However, pasteurized milk has claimed lives and lots of them.  If you want to kill a person with raw milk, you’re going to have to get a frozen jug and beat them over the head or drown them with it.  Organic Pastures does a good job with their milk.  I’ve made the switch to their brand at least a year ago and never had a problem.  Give it a shot!

    • kstech

      Since the dawn of humanity people have survived and thrived driking goat and cows milk.

      approximately 5,000 people are killed every year by foodborne illness. From 2009 − 2011, three high profile outbreaks involving peanuts, eggs and cantaloupe alone accounted for 2,729 illnesses and 39 deaths. (1) Yet there have only been a handful of deaths from pasteurized dairy products in the last decade, and there hasn’t been a single death attributed to raw fluid milk since the mid-1980s, in spite of the fact that almost 10 million people are now consuming it regularly.

      Source: CSPI

  • Mark McAfee is a true pioneer and leader. I admire his courage, attention to detail, and dedication. I’ve been drinking raw milk safely in WA for seven years now and am convinced I am eating a superior product to conventional milk.

  • I wouldn’t get near a glass of this stuff.  Alan you have just been lucky so far.  This one lawsuit I hope the FDA wins too.

  • There’s bee so many recalls of other foods – I wish they would include how many people have gotten sick or died from bad meat, or vegetables, or any other “approved” item the government allows us to put in or on our bodies.   I think they’d find there is no greater risk with raw milk than many other things, especially factory farmed animals.

  • charlestonvoice

    Congress should de-fund & shut down the FDA!

  • Mary Y

    Why ruin your milk and turn around and take pro-biotics and enzymes to put it back in????? Do you understand the way it works?  And you can chose your dairy for raw milk, only buying from persons you know or know about….if you are an adult, you need to be able to chose.  Are you a child that needs big GOV to take care of you??????

  • Mary Young Robinson

    Why ruin your milk, then take pro-biotics and enzymes to put it back in…do you know how it works?  If you are an adult, you should be able to chose your dairy, one you know or know about, and purchase.  Are you a child that needs big GOV to look over your shoulder  to take care of you like you are incapable of  thinking these things through???? Do your research all the way back to Pasteur and learn about how natural digestion takes place and how germ free can even make you sick!  Remember how when you take antibiotics and you end up with a yeast infection?????  Read, Read,, Read.  And not the Liberal Media.

  • Go get ’em Mark! Your products are awesome and should be available to anyone who wants them.  Blessings on your efforts.  Doc Pierce

  •  I was under the impression that the FDA was funded by Big Pharma and Big Agra 😉

  •  Is it the fact that it is milk you don’t like or that it is unprocessed?  If you knew the difference between the “stuff” you get at the supermarket and natural real milk you would not  get near the commercially processed dead dirty milk in the grocery stores.  Raw milk is a clean healthy food especially if from organic grass-fed cows.

  • Cmjfriesians

    There have been plenty of diseases directly linked to milk – campylobacter,  listeria , e. coli, salmonella, and staph bacteria.  Linked to raw milk by testing of the milk itself, and being positive for those organisms, and there have been plenty of outbreaks where people that were hospitalized had stool samples that tested positive for the same bacteria found in the raw milk they drank.  I think the sale of raw milk should be allowed, because people should be free to make their own choices, but I don’t like the idea of raw milk being sold across state lines.  It will be harder to trace outbreaks.   My grandparents were dairy farmers, and my parents grew up on raw milk, but they had the sense to know that people who weren’t used to drinking raw milk probably shouldn’t mess with it because their bodies haven’t developed the tolerance for the bacteria.  When they had friends over, they would warn them about drinking the raw milk.  People who grow up on farms or grow up drinking raw milk are exposed to fecal bacteria every day.  They develop a tolerance for it.  The rest of the population is not exposed to that, and are more likely to develop food-borne illness from it.
    So to those who think raw milk hazards do not exist or are not a problem, do some fact checking.  And by fact checking, I do not mean Weston Price Foundation.  I mean scientific studies, and looking at outbreak incidents. If you choose to drink it, I really could care less.  But I don’t want my tax dollars paying for your ER bill that you can’t afford if you get sick.

  • McAfee, bless his heart, is really very naive if he thinks that winning a law suit against the FDA is going to stop their tyranny and violation of the Constitution.  The only thing that will stop the FDA is to pink-slip the whole bunch of them.

  • I would like to see a report on why an increasing number of people cannot drink pasteurized milk either due to lactose intolerance (that I think isn’t much of mystery) to what seem to be an increased number of allergies. Conventional milk sales are consistently going down. What’s happeing with that?

  • Richard Dale Vallotton

    They go after raw milk but they give blanket acceptance to all of the poison GMO foods without testing them. Now they are still advocating flu vaccinations for pregnant women when they know it causes miscarriages and still births. Follow the money and you will find the FDA, USDA, and monsanto.

  • betsyanne

    Another article which never gives the history of the swill milk used for pasteurization, nor the fact that the ONLY deaths ever from milk came from pasteurized milk.  8 deaths.  The history of both types of milk are there for anyone to read and compare.  If you actually read about both and still choose pasteurized, you’d have to be illiterate.  Who would believe the FDA anyhow?  They’re SO truthful about everything, you know. Yeah, right.  They’re relying on a “science” they don’t even understand, most of which has been bought and paid for by big dairy companies, and don’t you doubt it.

  • J Bentley

    Pasteurized milk is not milk. It is a milk by-product. Cows/mammals do not produce pasteurized milk. Any cooked food is a by-product of what nature produced. By definition, only what has been produced by nature has existence not man-made products. That is why all man-made food products produce an immune response in humans. And the degree thats someone consumes more food by-products than what nature produced, their body is prone to cellular malfunctions.
    Pasteurization changes the structure of naturally produced milk and destroys enough of its originality to induce the immune response known as digestive leukocytosis in the human body.