Mark McAfee, founder and president of Organic Pastures Dairy, has “lawyered up” before once again taking on the U.S. Food and Drug Administration (FDA), this time over the interstate ban on transporting raw butter. He has enlisted Gary Cox, general counsel to the Farm-to-Consumer Legal Defense Fund, to represent him. On March 2, 2015, McAfee filed a new petition with FDA asking the agency to allow tested “salted or cultured raw butter” which is state-inspected, state-regulated, carries a “government approved” warning statement, and “labeled for retail sale in one state” to be transported to another state that permits the sale of unpasteurized dairy products. FDA has six months to respond to such citizen petitions, but the agency has not yet gotten back to McAfee. And, unlike last time, McAfee is not waiting five years for an answer. The agency did eventually deny the earlier McAfee petition, filed in 2008, but it went unanswered until he took FDA to court. That petition sought the same kind of loophole to the transport ban as the new petition, only for raw milk. The Legal Defense Fund also represented McAfee in the 2008 raw milk petition, which FDA finally denied on Feb. 26, 2013, but only after being challenged in federal court. The raw milk petition went no further, however, as a federal judge in Sioux City dismissed any further action in the case for lack of standing.

In going after the transportation ban on raw butter now, McAfee may get another “bite at the apple.” In the raw butter petition, he claims that the U.S. Centers for Disease Control and Prevention (CDC) “has no outbreaks, no cases of illness or death recorded in its databases related to commercially produced raw butter illness or pathogen defects.” McAfee wants to force FDA to justify the raw butter ban in open court. According to the Legal Defense Fund, lifting the transportation ban on raw butter would open as many as 30 states that currently allow the sale of some raw dairy products. Raw butter is among the raw milk dairy products offered by the Fresno-based Organic Pastures. Raw milk is legally sold in retail stores in California, and McAfee’s company is the major producer of raw milk and raw milk products.

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