‘Don’t turn us into criminals’ raw milk consumers plead in suit against interstate ban  

Raw milk consumers have joined forces in a legal battle against the federal Food and Drug Administration’s ban against the sale and distribution of raw milk and raw milk products (pdf) for human consumption across state lines.  

The focus on consumers, not farmers, is one of the distinctive features of the lawsuit filed earlier this year by the Farm-to-Consumer Legal Defense Fund against FDA and its parent agency, the U.S. Department of Health and Human Services.

The Virginia-based organization filed the suit in February in U.S. District Court, Northern District of Iowa, on behalf of its national membership base and in conjunction with 10 other plaintiffs–consumers and a dairy farmer from six different states. Two of the plaintiffs live in Iowa.  

raw-milk-lawsuit-featured.jpgAll of the plaintiffs named in the lawsuit live in states where raw milk–milk that hasn’t been pasteurized to kill potentially harmful or deadly pathogens–is not allowed to be sold: Iowa, North Carolina, Georgia, and New Jersey.

According to the legal papers filed by the Fund, the plaintiffs buy their raw milk in states just across the border where raw milk sales are allowed. But in doing that, they’re breaking the law when they bring the milk back home with them.  

“Ultimately, this is a consumer-driven issue,” Pete Kennedy, a Florida attorney who serves as president of the Fund, told Food Safety News in a phone interview on June 28. “We want to help consumers go across state lines to buy raw milk and return home with it without being worried that they’re committing a crime.”  

For Kennedy, and raw milk advocates across the nation, the important issue in this is the freedom of choice.  

“We believe consumers have the right to obtain what they want to eat and drink from the sources they choose,” he said.  

One of the legal flash points in this controversy is FDA’s definition of milk that’s involved in interstate commerce.  

According to the agency’s “standard of identity for milk,” milk is “the lacteal secretion . . . . obtained by the complete milking of one or more healthy cows” that “in the final package form for beverage use shall have been pasteurized or ultra pasteurized.”   

In other words, milk involved in interstate commerce that hasn’t been pasteurized but is sold as milk for human consumption is misbranded, which is a violation of federal law.  

Kennedy said the plaintiffs in this case want the court to rule that FDA’s regulations pertaining to the interstate ban of raw milk for human consumption are illegal when applied to them so that they may “travel across state lines with legally obtained raw dairy products.”  

They’re also fighting for what they believe is their constitutional right to provide for the care and well-being of themselves and their families and to produce, obtain, and consume the foods of their choice.  

Kennedy said the plaintiffs are seeking a ruling that the interstate ban is unconstitutional, or an excess of FDA’s regulatory powers, in the way it has been applied to them.  

“They’re not saying it should be struck down,” he said.  

But when looking ahead, Kennedy readily said that if the court rules in the plaintiffs’ favor, it would “hopefully, open the door for thousands of other consumers across the nation who have to go across state lines to buy raw milk.”

“Hopefully, it would set a precedent,” he said.   

Twenty-eight states currently allow the intrastate sale of raw milk, although with varying restrictions.   

Not surprisingly, the two federal agencies fired back against the Fund’s lawsuit, asking the court to dismiss it.
The agencies’ reasons for doing so left many raw milk advocates in what could be described as a state of shock infused with outrage, with some contending that the FDA wants control over everything a person or family eats.

In its legal papers to the court (pdf), the federal agencies assert and give reasons why, contrary to contentions in the lawsuit, there’s no absolute right to consume or feed children any particular food; there is no generalized right to bodily and physical health; and there is no fundamental right to freedom of contract. 

“FDA’s goals in regulating the interstate sale and distribution of unpasteurized milk are manifestly appropriate, and the regulations that FDA adopted are an undeniably rational way of pursuing them,” say the agencies in the motion to dismiss. 

But that’s not the way Eric Wagoner, one of the plaintiffs in the lawsuit, sees it. 
The owner as well as a member of an Internet-based “virtual farmers market” known as “Athens Locally Grown,” which is based in Georgia, Wagoner lives in Georgia close to the South Carolina border.

At the time he submitted his affidavit to the court last fall, approximately 2,000 members of Athens Locally Grown placed orders for products listed by 100 farmers on the organization’s site. Some of the members and farmers live in Georgia; some live in neighboring South Carolina. 

According to his affidavit, on Oct. 15, 2009, one of the organization’s volunteers drove Wagoner’s delivery truck from South Carolina, where raw milk is allowed to be sold in stores, to Georgia where raw milk sales are banned.

Of the 110 gallons of raw milk the truck was carrying, two of the gallons were Wagoner’s. 

Upon reaching Georgia, the truck was searched and seized by officials from Georgia without a warrant. They also embargoed the raw milk in the truck without a search warrant, the affidavit says. 

But Wagoner was allowed to drive his truck and its contents to his home, where it was parked until Oct. 19.
On Oct. 19, the 110 gallons of raw milk were destroyed at the order of the Georgia officials and of the FDA without a warrant or other legal process, according to Wagoner’s affidavit.

His affidavit names Marybeth Willis from the FDA’s Atlanta office as the FDA agent who ordered him to destroy the milk. 
The milk dumping was video taped in two parts, with Willis identified in the first video.

Wagoner said that Willis told him that if you go to a dairy to buy raw milk for your own use and bring it back to your own home in Georgia, you would be a federal criminal. 

Wagoner doesn’t feel like a criminal. Instead, he sees himself as the owner and a member of a non-profit that helps consumers obtain healthy, locally grown food and milk. 

In his case, the FDA’s stance on interstate sales and distribution of raw milk just doesn’t make sense. 

In an email to Food Safety News, he said that while FDA has declared that raw milk is inherently unsafe, the lawmakers in South Carolina recognize that it’s not the milk, itself, but certain bacteria and other contaminants that are unsafe. 

Pointing out that raw milk is available in grocery stores in South Carolina, Wagoner said South Carolina of
ficials are “comfortable in allowing this because raw milk is highly regulated” in that state.

He told Food Safety News that he believes people have the right to cross state lines to buy raw milk because the federal government has not been given the constitutional authority to set up “customs inspections” at state boundaries. 

“In my case, I had legally purchased an item available off the shelf at regular grocery stores, approved by both the state of South Carolina and the USDA, crossed a bridge, and returned home,” he said. 

Wagoner said FDA then came to his house and ordered that his own personal milk in his own personal refrigerator be destroyed, without a warrant, a court order, or compensation. 

He also pointed out that he did not cross state lines to buy milk for anyone but himself. The dairies sold the milk to the other members of his organization before it got picked up. 

“Every gallon that was picked up was sold prior to it getting picked up, and every gallon had a person’s name attached to it,” he said. “Never was a drop of milk taken across states lines to be sold by myself, the dairy, or anyone else involved.”

In its June 21 reply in support of the motion to dismiss the case, the federal government describes Wagoner’s allegations that he destroyed the raw milk inside his house under orders from the FDA as “bizarre.”
“Because Mr. Wagoner’s ‘alleged facts’ are nothing more than unsupported conclusions, unwarranted inferences and sweeping legal conclusions, this court is not required to accept them as true,” says the agencies’ motion to dismiss.

On a more technical matter, the agencies are asking the court to dismiss the case for the suit’s failure to state a claim upon which relief can be granted.

“Had FDA actually ordered the destruction of the milk as alleged, the proper venue in which to object would have been in the seizure action itself, wherein Mr. Wagoner would have had an opportunity to appear as a claimant and to have a full hearing before the court.” 

That gets Wagoner’s goat.  

“It’s undeniable that government agents came to my house and ordered me to destroy the milk,” he said. “Now the FDA is claiming that’s not the case.” 

In all of the legal twists and turns in this case, the federal government does offer a possible way for the interstate raw milk ban to be re-evaluated.

Pointing out that the parties in the case didn’t exhaust their “administrative remedies,” the agencies say that filing a citizen petition with the FDA is required before any legal action is filed in a court. 

“In bypassing the administrative process, plaintiffs have precluded meaningful and efficient review,” says the motion to dismiss. 

The motion to dismiss goes on to say that requiring plaintiffs to submit a citizen petition to FDA before seeking judicial review “would allow FDA to consider and address plaintiffs’ concerns and could potentially resolve those concerns, or at the very least, the administrative process might crystalize the issues in contention.” 

But Kennedy of the Farm-to-Consumer Legal Defense Fund told Food Safety News that FDA has not yet responded to a citizen petition that California raw milk producer Mark McAfee filed on Feb. 22, 2008.  

In that petition, McAfee asked FDA to allow the interstate shipment of raw dairy products between two different states in the U.SA. that both allow the legal sale of raw dairy products. 

In his affidavit submitted to the court as part of the suit against the federal government, McAfee said that as of June 7, 2010, more than 500 days later, FDA hadn’t responded to the petition even though the agency is generally required to respond to a citizen petition in 180 days.  

For that reason, McAfee believes that filing a citizen petition is futile.
Kennedy agrees, saying that the FDA has a “closed mind on this and refuses to debate people on this issue.” 

“It would be completely futile to go through an administrative action,” he said. “We already know what they’ll say.”
Even so, McAfee told Food Safety News that he sees some hopeful signs on the horizon.

“The times, they are a changin,'” he said.  “And the more we go forward, the more we realize that man has messed with Mother Nature and made quite a mess. Quickly . . . we must recognize the errors and return to whole unprocessed foods. Raw milk is leading the way.”

Food safety attorney Bill Marler agrees with McAfee that the times are always changing. But he has a an opposing view on this particular issue.
“One change is the public wants more protection from unsafe milk, not less,” Marler said. “That’s why Congress has instructed the FDA to keep raw milk out of interstate commerce. This is an example of why the Interstate Commerce Clause is in the U.S. Constitution. I do not see the federal courts changing that.”

In enacting the federal Food, Drug, and Cosmetic Act, Congress directed the FDA to “protect the public health by ensuring that foods are safe, wholesome, sanitary, and properly labeled.” 

As part of rulemaking, FDA declared a ban on the interstate sale of unpastuerized milk, noting the link between raw milk and outbreaks of two serious bacterial diseases, campylobacteriosis and salmonellosis, which can “on rare occasions result in death.” 

According to FDA, its regulations prohibiting the interstate sale and distribution of unpasteurized milk promotes “bodily and physical health.”

The hearing in federal district court will address whether the lawsuit should be dismissed on the grounds raised by the defendants, but will not otherwise address the factual merits of the plaintiffs’ claims.

A date for hearing the oral arguments is expected to be set later this month, although it could be later than that due to a heavy court calendar.