When California’s proposed SB 201 legislation substituting a quality-control process for the ten-coliform-per-milliliter standard was vetoed by the governor last September, the coliform standard was locked in as the law of the Golden State.
With that veto, the year of political upheaval over AB-1735-morphed-into-AB-1604-morphed-into-SB-201-morphed-back-to-AB-1735 has quieted down. To the casual raw milk consumer, it seems as if the two raw dairies, Organic Pastures Dairy Co. and Claravale Farm, are coping just fine, thank you. Implicit in that observation is the sense that much of the hoopla over AB 1735 was unwarranted, that there was nothing onerous about the requirement. Dr. Stephen Beam, chief dairy official of the California Department of Food and Agriculture, suggested as much when I met him at last month’s National Conference on Interstate Milk Shipments in Orlando.
“Look what’s happened,” he said in his “I’m no Darth Vader” interview with me. California’s two raw dairies are still in business, there have been no illnesses, and, “People have their milk.”
But it turns out that not only did AB 1735 not go away, but the court suit challenging AB 1735 filed in late 2007 also didn’t go away. A California judge granted a temporary restraining order in March 2008 to suspend enforcement, but then refused to extend the TRO via a preliminary injunction in May 2008. While that had the effect of allowing AB 1735 to be enforced, it didn’t end the suit—and new court filings by both sides are related to the appeal filed by the two dairies of the ruling against them for a preliminary injunction.
If you read through the brief filed on behalf of the dairies April 29 by the Farm-to-Consumer Legal Defense Fund, the matter of AB 1735’s impact is not quite so simple as Beam suggested.
“Since January 2008 when AB 1735’s 10 coliform limit became effective, Appellants have failed this standard several times…For example, from January to March 2008, Claravale failed the coliform standard for whole milk once and failed the standard for cream twice. During that same time period, OPDC failed the coliform standard twice for whole milk and three times for cream. Also, OPDC’s whole milk and skilm milk have been ‘degraded’ once, its cream degraded twice. Each time OPDC receives a degrade notice for its whole milk it loses $50,000 per week in sales.”
To clarify, a single failure doesn’t mean a dairy must withdraw its product; it must fail a series of three out of five tests before it is “degraded,” which then means it cannot ship additional supplies of the product in question (like skim milk). It doesn’t need to recall or announce anything, so consumers may not be aware anything is amiss, except that their local store may be out of product sooner and for a longer period than otherwise. A dairy that is degraded has additional readings taken within days of any degrade, and must pass two consecutive tests to get back on the market. So when Organic Pastures received a degrade on its cream February 28, 2008, it was reinstated March 11.
All that prompted the state to argue in its brief, “Since the new coliform limit took effect, both dairies have substantially met the new standards.”
Not only is that statement misleading, argued the dairies’ brief, but longer-term history suggests the dairies may face ongoing problems. “Testing data from 2001 to 2007 collected by CDFA itself showed that had AB 1735’s 10 coliform limit been in effect at that time, Claravale would have failed the 10 coliform limit 87% of the time and it would have been forced out of business as early as February 2003 because it would not have been able to comply with the 10 coliform limit.”
The two briefs also re-visit the familiar argument about whether raw milk is or isn’t safe, as well as whether coliforms bear any relationship to milk safety or the existence of pathogens. And the parties spar over the case of the six children supposedly made ill by Organic Pastures milk in September 2006.
“All raw milk carries a potential risk,” says the state’s brief. “Raw milk is not made safe by the fact that it is from pastured, grass-fed cows. In 2006, the dangerous pathogen E.coli 0157:H7 was isolated from Organic Pastures’ premises, which houses organically raised, pastured dairy cows. In 2007, the pathogen Campylobacter jejuni was isolated from Organic Pastures’ organically raised, pastured cows.”
The brief for the dairies disparages the state’s assertions, in particular its experts’ claims that “consumption of raw milk has been associated with disease outbreaks.”
Whatever the outcome of this longstanding case, these appeal briefs carry two messages:
- The pressure on California’s two raw dairies remains much higher than consumers are generally aware.
- The state is unyielding in its condemnation of raw milk, and remains poised to take advantage of any missteps to come down hard.
The pressure on the state’s two dairies remains intense to regularly pass a test that has questionable relevance to the real issue of food safety.