To no one’s surprise, raw milk dairyman Mark McAfee, owner of Organic Pastures Dairy Company near Fresno, Calif., has come out swinging against the federal Food and Drug Administration’s (FDA’s) legal attempt to put him and his dairy under tighter scrutiny.

“It’s ridiculous to come after us like this,” McAfee said in a Jan. 25  interview with Food Safety News. “It’s like throwing us into the shark pool. They want a pound of flesh and blood.”

op-fda lawsuit docs.pngRaw milk is milk that has not been pasteurized, a process that kills potentially harmful or deadly pathogens.  Raw milk advocates swear by the health benefits of raw milk, while government officials — backed up by statistics — warn that it can sicken or kill you.

In December 2009, the FDA asked a district court in California to impose a permanent injunction that would forever prevent Organic Pastures from selling its raw milk and raw milk products across state lines–no matter how they’re labeled.

The previous year, Organic Pastures and McAfee pleaded guilty to two counts of selling the dairy’s raw milk across state lines “misbranded” as “pet food.”

With that label, out of state consumers could order raw milk that they intended to drink.

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

As part of the legal agreements reached with the FDA in January 2009, McAfee agreed to stop 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.

That agreement comes to an end in January 2011.  McAfee has said he’d be willing to extend that date.

But legal gurus say the agency wants to put restrictions in place–in advance–to keep McAfee and his dairy from trying new ways to get around the ban against selling raw milk across state borders.

“Absent an order of this court, such illegal sales are likely to recur,” says the FDA in its legal papers to the court.

The agency also wants to make sure that McAfee doesn’t start making health claims about raw milk again.

As a result of the earlier criminal agreement, Organic Pastures has  taken testimonials about the health benefits of raw milk–such as that it can cure asthma and improve immune systems–off  its website and out of its literature.

In addition, the dairy also pulled links off its website directing viewers to links to other websites containing testimonials about the health benefits of raw milk.

“If the Court is to impose any additional sanctions, it should merely extend the injunctions against interstate shipments and links to websites,” McAfee concludes in the papers he submitted to the court on Jan. 15, 2010.

According to information supplied to the court, McAfee’s dairy, which is the largest retail-approved raw-organic-dairy-products producer in North America, has about 60,000 customers in California. Its milk is sold in about 375 retail stores including all 60 California Whole Foods stores.In an earlier interview with Food Safety News, McAfee said he “could care less” about a permanent injunction when it comes to interstate sales because the dairy can’t keep up with demand in California.

Igniting McAfee’s wrath, the FDA’s civil case against him and his dairy wants to secure the power of unlimited inspections at the dairy, with the dairy paying for those inspections.

“In other words, the FDA wants this Court to give it the tools to put Organic Pastures Dairy Company out of business,” says McAfee in papers filed with the court.

McAfee cites as an example the estimated cost of sending 3 federal inspectors, at $100 per hour for an 8-hour day, flown to and from Washington, D.C., with meals and lodging thrown in, plus follow-up lab and report time time, at $12,000 to $15,000. And that’s not to mention, he says, that the agency could repeat this once a month.

McAfee said he has already agreed to allow FDA inspections without notice, but that doesn’t include paying for the inspections.

Envisioning an army of federal officials descending on his farm, he describes the FDA inspections as a waste of taxpayer money. That’s because under California’s strict raw milk regulations, his dairy and its milk already go through regular inspections. And under new state legislation on raw milk that went into effect Jan. 1 this year, raw milk in California must meet the same safety standards when it comes to the presence of bacteria as pasteurized milk.

“Indeed, the state of California highly regulates the raw milk industry,” he says in his legal papers. “From udder to butter, it insures uniform safety standards. Thus, the federal government is not the only entity regulating raw milk.”

He also questions why the FDA has targeted raw milk as “an intolerable health risk,” especially, he says, since this concern was not caused by any widespread illness from drinking unpasteurized milk, nor from complaints from a state (particularly California) that it was unable to enforce its own dairy laws, nor from any public outcry.

He contrasts this stance with the millions of pounds of beef and leafy green vegetables that were destroyed because hundreds of people had been sickened by them and several had died and “the failure to find the cause of the contamination of staples of the nation’s food sources.”
Unlike raw milk, produce and produce products are allowed to be distributed and sold across state lines.

McAfee takes umbrage at interstate restrictions on licensed raw milk for several reasons.

“The logic for this is dubious,” he says in his recently filed legal papers, “since the borders between states do not transform healthful foods into poison.”

He also points out that distance is not an issue here since milk from cows on the California side of Lake Tahoe cannot be sold on the Nevada side of the lake. Yet milk from cows in Yreka, which is in the far reaches of northern California, can be transported to and sold in San Diego.

McAfee also told Food Safety News that this attempt on the part of the FDA to regulate his dairy shows that the agency wants not just interstate control over raw milk but also intrastate control over it.

“They have jurisdiction across state lines,” he said, referring to the feds, “but not up to the state line.”

A hearing on this case is scheduled for 10 a.m., March 1, 2010, in the District Court for the Eastern District of California.