One of the regulatory riddles surrounding the U.S. government’s long-running inspection order against Pennsylvania Amish farmer Amos Miller has been why the U.S. Department of Agriculture moved front-and-center on the case instead of the U.S. Food and Drug Administration. Now, based on documents I obtained under a Freedom of Information Act request to the U.S. Centers for Disease Control, it seems clear that USDA may be only the first of several agencies waiting in line to pursue Miller.
The inspection order, formalized last June by a federal judge, stemmed from listeria discovered in Miller’s raw milk in 2016, which was associated by the CDC with an illness in California and a death in Florida. While USDA documents supporting the inspection order referred to the raw milk episode, the USDA went after Miller based on alleged mislabeling of meat he sells to hundreds of food club members.
The U.S. Food and Drug Administration is charged with overseeing all dairy in interstate commerce—pasteurized and raw—while the USDA has responsibility for regulating meat.
The CDC documents I obtained in the last few weeks stem from a request I made last March for documentation about the CDC investigation of Miller’s milk. The agency provided me with 40 pages of documents, most of which are redacted of information related to the actual testing and contact with relatives of the individuals sickened.
But there are several pages of email correspondence among CDC personnel related to the release of the CDC announcement of an “outbreak” of two illnesses attributed to Miller’s farm. (The designation of the illnesses as an “outbreak” became questionable when it was discovered that an elderly Florida woman who allegedly died from listeria in raw milk was being treated with chemotherapy in connection with cancer, while an elderly California man who became sick had a host of ailments.)
One email from Feb. 26, 2016, (just three weeks before the CDC published its online report on Miller’s farm) says, “FDA requested the summary memo attached to potentially obtain a court order for FDA to inspect the dairy.” The “summary memo” wasn’t included in the material provided to me.
It’s not clear from the emails why the USDA took over the legal enforcement part of the investigation rather than FDA; one possibility is the FDA wanted USDA to test the legal waters in a case against Miller and private food, so FDA could learn from the USDA experience, and take legal action following up on USDA.
The emails I received also indicate the Pennsylvania Department of Agriculture was being kept actively involved in the CDC investigation, though one email noted the state was unable to act immediately because Miller’s “does not sell milk in Pennsylvania.” PDA could thus also become active eventually against Miller.
It’s clear from the email exchanges that the CDC investigation seeking to link the Miller’s farm milk with illnesses had a huge following within the agency. One email announcing the posting of the “outbreak” news posting in March went to more than 50 CDC personnel.
The investigation was also being followed at the agency’s highest levels, with much seriousness. One email two days after the internet posting, from Robert Tauxe, director of Foodborne, Waterborne, and Environmental Diseases, to Laura Burnworth, the CDC official overseeing the preparation of the web site material, was joyous: “Many many thanks, Laura, for an heroic effort. A thing of beauty is a joy forever.”
In the meantime, Miller remains bogged down with the USDA inspection order. The USDA conducted inspections last summer, and then sought a contempt of court order in the fall, when Miller declined to provide member information sought by the agency. While it seems as if Miller may have satisfied USDA requests by providing redacted information about his food club members, the judge in the case hasn’t ruled officially, and USDA officials are expected to continue the inspection any week now, with its final verdict and possible penalties still to come.
In my previous post, I noted that regulatory assaults against raw milk producers appear to have slowed nationally. But that doesn’t mean federal agencies like the FDA or USDA have shown any inclination to back off from existing cases involving the Amish.
As I posted Wednesday in the comments section of this blog, Amish salve maker Sam Girod was convicted Wednesday by a federal jury in Kentucky in connection with violations of food and drug laws in a case brought by the FDA. It’s a terribly sad and disheartening case, which may well result in Girod, who is in his fifties, spending the rest of his life in jail.
To me, the cases of Miller and Girod carry potentially important implications beyond the flimsiness of the cases themselves. Many people have been waiting to see if the election of Donald Trump, with his promise to drastically reduce government regulation, might have an effect on FDA and USDA approaches to private food.
I have been very opposed to Trump, but have been very much prepared to be pleasantly surprised to see him follow through on his promise to “drain the swamp” by going after regulators who take so much joy in legally crippling farmers like Amos Miller or the maker of healing salves like Sam Girod.
It seems clearer each day that such cases are allowed to proceed that food and related regulation is very low on the new administration’s priority list, just as it was with the old administration. There still isn’t even a nominee to head the FDA. And the proposed secretary of agriculture was the last cabinet position filled (with a Big Ag proponent), even as the old secretary of agriculture headed off to a cushy job serving Big Dairy. Business as usual.
Supporters of Sam Girod couldn’t even get responses from Kentucky pols, and Trump allies, Rep. Thomas Massie and Sen. Rand Paul, in efforts to get the government to step back from its prosecution of Girod. They seem to have gotten the message.
Instead, the regulatory action seems to be at places like the Environmental Protection Agency, which is pushing for more pollution by coal producers, and presumably including by owners of CAFOs (confined animal feeding operations). Then there’s the effort to tighten regulations on immigrants and, of course, the ongoing assault on the media, presumably for reporting on the new administration’s inconsistent efforts.
I do give Trump credit for one thing: being a masterful manipulator of the political agenda. He has many supporters of food rights urging him to throw out immigrants and dismantle Obama Care, even as he continues to ignore the entire problem of food and farm over-regulation. The regulators at the CDC, FDA, and USDA must be starting to breathe a big sigh of relief at the gullibility of the masses.