One question underlies the recent debate about outbreaks of illness over the last year that seem to be from raw milk: What is the long-term practical importance of these illnesses?

It might be said that the people who have become sick over the last year, likely from milk in Wisconsin, Colorado, and Indiana, will all recover after mild illnesses. As a result, there likely won’t be any court suits seeking financial damages. The real issue, say some, has to do with people’s depressed immune systems or the government’s desire to use the illnesses to exert greater control over our food choices.

I think there is a highly practical element in all this, and it goes beyond the tremendous teaching that has gone on here following my previous post, with important sharing of information and guidance from highly knowledgeable farmers and dairy experts—from Tim Wightman, Michael Schmidt, Mark McAfee, Greg Niewendorp, Deborah Stockton, Milk Farmer, Ken Conrad, Gary Cox, Someone’s Farmer, and Amanda Rose, among others.

One issue I worry about is this: How are state and federal judges likely to view recent illnesses likely attributable to raw milk? Especially given that there is likely to be more court action concerning raw milk in upcoming months and years.

I worry because I’ve had a chance to review a transcript of a hearing held last month before a federal judge in California over the effort by the U.S. Food and Drug Administration to impose severe restrictions on the operations of Organic Pastures Dairy Co. The FDA is seeking to subject the nation’s largest raw dairy to frequent and random inspections, which it would have to pay for, and to all kinds of bureaucratic approvals before it can ship milk in California—all supposedly to ensure it doesn’t sell milk in states outside California. The proposed penalties stem from a civil suit filed by the FDA in December 2008, together with a criminal case that has since been resolved with owner Mark McAfee pleading guilty and committing to refrain from interstate milk shipments.

The hearing provides important insights into how a federal judge who has looked closely at the FDA’s arguments against OPDC views both the agency’s vendetta against raw milk and the matter of illnesses that could stem from contaminated milk.

The judge, Oliver Wanger, hasn’t yet ruled on the FDA’s move to impose severe restrictions on OPDC, but he made clear in no uncertain terms that he sees the agency as serious overreaching in its efforts to supposedly prevent the dairy from shipping out of state.

As one example, the FDA is seeking to require that all purchasers of OPDC milk sign a statement to the effect that the milk can’t be taken across state lines, or re-sold to someone who might take it across state lines. The judge questioned the Justice Department lawyer representing the FDA very closely on this.

“The Court has the concern that this paragraph does not say ‘interstate.’ Conceivably, one way to read this paragraph is that every carton of milk that’s sold or any raw milk product that is sold is going to require the consumer and the retailer and/or the wholesaler to sign this statement. And that would, I think, have such a chilling effect on the conduct of business that it would put the defendant out of business.”

To which the Justice Department lawyer, Roger Gural, stammered: “Well, Your Honor, short of including this provision, there would be no — no way for the United States to enjoin the defendants from selling their entire stock of raw milk to someone down the street in California and then watch them ship it out of state without this provision. You know, I think that, you know, hypothetically we could – we could draw scenarios about a mother buying a — like a half gallon at the grocery store, reselling it to someone across state lines. But the thrust of this is to prevent the middle man straw purchaser and, in effect, it’s almost a protection for the defendants.”

Nice to know the FDA our government is so worried as to want to protect us from a mom re-selling milk across state lines. The judge was similarly unimpressed. “It seems to me completely unworkable because of the various channels of distribution that these kinds of consumers products are sold through. My sense of it is — I’ve heard what you said. It seems at best unprecedented and it seems unduly burdensome.”

Things got even worse for the government lawyer once the judge got to the FDA’s idea for conducting unlimited inspections of OPDC, and, get this, forcing OPDC to pay for the inspections.  Twice Judge Wenger referred to this provision as a “death penalty” on OPDC. “This is a death penalty. Where you can basically shut the business down without any notice, without any opportunity to be heard.”

The judge seemed to get himself even more worked up as he went on lecturing the government lawyer: “I simply am not convinced that this draconian, if you will, remedial construct is in any way necessary. I don’t think the public is going to be jeopardized in any way by not having this, what I call the death penalty provision in here. This is taking Organic Pastures out without going to a magistrate and stringing them up and throwing a noose around its neck and hanging it until dead.”

Yeah, I’d say the judge wasn’t exactly blown away by the FDA’s legal construct for keeping OPDC under its thumb.

It would be nice if we could stop there and sit back, awaiting Judge Wenger’s likely rejection of the most onerous parts of the FDA’s proposed civil penalties on OPDC. But the judge had a few observations that relate directly to the discussion we’ve been having on this blog about the importance of illnesses from raw milk. Essentially, the judge referred several times to the fact that there are no allegations of illnesses from OPDC’s milk driving the government’s effort to, as the judge said, “hanging (OPDC) until dead.”

But what if there were illnesses? In that case, things might be different, the judge suggested in his tongue-lashing of the Justice Department lawyer, when he said there is “no showing that what they’re doing is jeopardizing the public. In other words, we don’t have coliform, we don’t have salmonella, we don’t have other kinds of deadly bacteria or organisms. And so whereas if you had somebody who’d been selling bad cheese or somebody who’d been selling bad beef or bad fish, up in the Northwest, then this kind of a condition might be justified. But here, where what we’re concerned about is mislabeling, misbranding and interstate shipment, let’s confine the remedies to what you’re trying to stop…”

Later in his assessment, the judge states, “You’re taking language from orders where you have had contamination, where you’ve had adulteration, where you’ve had other kinds of risks rather than — this is simply, if you will, mislabeling…”

I hear the judge saying two things: First, that the FDA has acted like a total bully in trying to restrict OPDC from selling across state lines; and second, that if there had been any illnesses associated with OPDC selling in other states—say, someone in another state had become sick from contaminated OPDC milk—he’d have an entirely different view of the situation.  

It’s important to keep in mind that judges are people, they represent the population at large. I think this judge definitely does. Like many Americans, he’s highly suspicious of bureaucratic bullying of the sort FDA specializes in.  To the extent that the FDA couldn’t point to any illnesses that resulted from OPDC selling in other states, the agency didn’t have a lot of leverage—in fact, it seems to have irritated the judge. If it had been able to point to illnesses, well, the judge could well have had an entirely different view.  That’s what worries me about the illnesses in the Midwest.

Michael Schmidt convinced a Canadian judge of the legality of his cowshare arrangement in part because his dairy had never been associated with any illnesses. Had there been illnesses, the outcome in that case might well have been different.

In the event there are illnesses, a possible mitigating factor could be a concerted effort by those involved to identify the causes, and reduce the chances of anything happening again. (Though that’s admittedly a long shot in our increasingly germophobic culture.) While I agree that the public health officials have a knee-jerk tendency to blame raw milk, judges aren’t likely to go in for conspiracy theories. The best defense, though, is as few illnesses as possible, and the way to achieve that seems to be via an overarching commitment, through a variety of techniques, to improving animal health and safety.

One final note: Once the new food safety legislation passes (S 510) and is signed by the President, the FDA will be free to do many of the things it had to come before a judge to ask permission for in the OPDC case–arbitrary searches, arbitrary conditions to certify HACCP plans, arbitrary rules covering “Good Agricultural Practices”, and so on and so forth. If the agency behaves this way knowing it has to face a judge, imagine its manners once there is no oversight.