Perhaps my heading should have said, “FDA Swats Away Raw Milk Labeling Petition Like a Pesky Mosquito.”
When you think back on the buildup for the petition, including at this blog, the FDA’s brief rejection note concluding that the citizen petition submitted by the Real Food Freedom Coalition (RFCC) didn’t really qualify as a subject for citizen petitions is definitely anticlimactic (and even that may be giving the FDA’s response too much credence).
Why the swatting away of the citizen petition after signals that the timing might finally have been right for some sort of grudging federal acceptance of raw dairy? A little background:
Back in early 2017, not long after Donald Trump took office, a group of raw dairy proponents decided the time was ripe to challenge the long-standing federal ban on interstate raw milk shipments. The group, which had organized several years previously as the Real Food Freedom Coalition, had come up with a creative approach for making the interstate ban less urgent: It proposed to use labeling of raw milk products with a highly informative label alerting consumers to raw milk’s potential safety risks, and providing instructions for doing their own pasteurization.
The labeling approach was developed by RFCC working together with a well known lawyer, Jonathan Emord, who had extensive experience dealing with the U.S. Food and Drug Administration, which administers the federal ban on raw dairy shipments.
The fact that Donald Trump had just become president was important as well, He had come into office as a big proponent of deregulation throughout the federal government. The FDA might just take the labeling proposal seriously, went the thinking.
After many years of conflict with the FDA, it seemed as if the time might finally be ripe for some kind of mutual acceptance.
There was just one little matter…..of money. RFCC was advised by a number of Washington professionals that it would improve the petition’s chances immeasurably if it engaged lobbyists with the right connections to the FDA as well as to Congress. The cost? Tens of thousands per month for up to a year.
The thinking at RFCC was that raw dairy farmers around the country who stood to benefit from peace with the FDA over interstate raw milk sales would bankroll the effort. That turned out to be erroneous thinking. For reasons that weren’t clear to me—I wasn’t directly involved in the fundraising effort with dairy farmers and eventually severed my ties with RFCC—the fundraising effort never really got off the ground. My suspicion: Raw dairy farmers who might have benefited from new markets across state lines decided that the possibility of getting the FDA to change its mind, even with the lobbying, remained too remote to justify such a significant investment. And those raw dairy farmers who have long shipped across state lines decided that potentially opening the marketplace to all kinds of new competition probably wasn’t in their interests.
So the citizen petition thus went through the FDA without serious prodding from lobbyists to its seemingly inevitable swatting away, or torpedoing, or whatever you want to call the rejection. Here is the actual wording from the one-page FDA response:
“Specifically, your petition states that we should exercise our enforcement discretion
‘to avoid taking, and to cease taking, enforcement action against those who distribute unpasteurized milk and milk products in interstate commerce when the milk products bear labels that include in conspicuous bold face type prominently displayed under the statement of identity for the product: (1) a warning regarding the health risks of unpasteurized milk and milk products; and, when applicable, (2) instructions for safe handling, including self-pasteurization. (Petition at page 2)’
“Requests for the agency to exercise enforcement discretion are not within the scope of FDA’s citizen petition procedures. As stated in 21 CFR I0.30(k), § 10.30 does not apply to ‘referral of a matter to a United States Attorney for initiation of court enforcement action and related correspondence . . . .’ Agency decisions to take, or refrain from taking, enforcement actions are related to referral of a matter to a United States attorney for the initiation of court enforcement action for violations of Federal law. Therefore, we are denying your request.”
The people running RFCC declined to provide official comment, but from what I understand, the group could try doing a re-worded petition, or even go to court to challenge the FDA’s response. Either approach would likely take at least a couple more years, and maybe longer. And there’s no assurance of financial backing for any of it.
Sometimes in our idealism, we forget that to get pretty much anything done in Washington, the deal is pay to play.