When I spoke a couple weeks ago in New Jersey–before groups at Rutgers University, the Weston A. Price Foundation’s Princeton Chapter, and the Northeast Organic Farming Association of NJ–I always started by asking how many people regularly drink raw milk. Generally, half or more of the people in attendance raised their hands.
My next question was, “Where do you get it?” The answer, with some furtive glances around, was always the same: “Pennsylvania.”
People were looking around because everyone knew what they are doing is illegal, since the U.S. Food and Drug Administration prohibits interstate shipment of raw milk.
Well, now the whole federal prohibition will go to a federal court, including the matter of consumers bringing raw milk from Pennsylvania to New Jersey.
Yes, the Farm-to-Consumer Legal Defense Fund is taking on the Big Enchilada in the raw milk war: the U.S. Food and Drug Administration’s prohibition on interstate shipment of raw milk, and essentially, the FDA’s role in masterminding the current war on raw milk.
The FTCLDF filed suit over the weekend in U.S. District court against FDA commissioner Margaret Hamburg, and the secretary of the FDA’s parent agency, Health and Human Services, Kathleen Sebelius, challenging the constitutionality of the agency’s prohibition, enacted in 1987. It filed the suit on behalf of consumers and a farmer from six different states; the consumers all travel from states where raw milk sales are illegal to buy it in states where it’s allowed for sale and the farmer sells to out-of-state consumers.
The suit is notable for seeking to shift the focus of the interstate raw milk prohibition to consumers from farmers, where the FDA has focused its efforts, most notably in prosecuting the largest raw dairy in the country, Organic Pastures Dairy Co. in California, for selling milk outside its home state. The agency was behind a criminal case against the dairy, which ended with a guilty plea last year and an agreement by the dairy to confine its sales to California, and a civil case, which is still pending. The agency has also been active behind the scenes in urging crackdowns on raw milk in Michigan, Ohio, Wisconsin, Pennsylvania, and New York, among other states.
The case is also notable for the FTCLDF, which was formed less than three years ago to counter an aggressive FDA-led campaign against raw milk producers that began in 2006 (and has taken some heat on this blog over its effectiveness). While the legal organization has filed suits against state agriculture officials on behalf of raw dairy farmers in New York, Wisconsin, and California, as well as a suit against the U.S. Department of Agriculture on behalf of farmers affected by the National Animal Identification System (NAIS), this is its first encounter with the FDA, and as such, definitely the biggest case in its brief history.
All the consumers in the suit live in states where raw milk sales are prohibited—New Jersey, Iowa, North Carolina, and Georgia. Joseph Heckman, a professor at Rutgers University, is the consumer plaintiff from New Jersey The suit says the consumers buy their milk in neighboring states where raw milk is legal, and are being forced into breaking the law each time they travel back home with their milk.
The suit charges that “all Plaintiffs are being deprived of their fundamental and inalienable rights of (a) traveling across State lines with raw dairy products legally obtained and possessed; (b) providing for the care and well being of themselves and their families, including their children; and (c) producing, obtaining and consuming the foods of choice for themselves and their families, including their children.”
At stake, it says, are “the Constitutional Right to Travel; the Constitutional Right of Privacy; the substantive due process clause of the Fifth Amendment of the United States Constitution; Article 1, Section 1 of the United States Constitution (the Separation of Powers/Non-delegation doctrine)…”
According to Gary Cox, the lawyer for the FTCLDF, “This case challenges the legality of the FDA rule that bans the interstate distribution of raw milk in final package form for human consumption. It also challenges the legality of FDA’s ‘standard of identify’ for milk which requires that all milk needs to be pasteurized.”
The case also brings the FDA, which, despite its aggressive stance against raw milk, prefers to lurk in the background for media purposes, into the limelight. It would be revealing to see FDA officials being questioned in open court on this matter.
Ironically, the FDA was dragged kicking and screaming back in the 1970s and 1980s into its current role of policing the transport of raw milk across state lines. It resisted the efforts of consumer groups to involve the agency—feeling the matter was a local issue—until a federal judge in 1987 responded to a consumer group suit by ordering the agency to draft regulations about the interstate shipment of raw milk. Since then, it has shifted from reluctant participant to aggressive enforcer and warning source against raw milk consumption. Its dairy chief, John Sheehan, is famous for his line, “Consuming raw milk is like playing Russian roulette with your health.”
The FTCLDF suit argues that the FDA’s role is a problem on several levels:
— It maintains that raw milk isn’t dangerous in the food-borne-illness scheme of things. “According to CDC statistics for 2007, there were 7,031 reported cases of foodborne outbreaks associated with bacteria, which resulted in 678 hospitalizations and 11 deaths (3 deaths of which were from pasteurized milk). According to those same CDC statistics for 2007, there were only 32 reported cases of illnesses attributed to fresh, unprocessed, raw milk (0.5%); there were only 2 reported hospitalizations attributed to fresh, unprocessed, raw milk (0.3%); and there were no reported deaths attributed to raw milk.” It concludes: “More people are killed each year from lightning strikes on golf courses than die from milkborne illnesses.”
— That consumers who cross state lines with raw milk could be at any time be penalized for violating the FDA’s prohibition, even though the agency has generally limited itself to going after farmers. It points to a case last October, in which one of the plaintiffs, Eric Wagoner, who runs a Georgia food buying group over the Internet, had 110 gallons of raw milk confiscated because the milk had been purchased in South Carolina, where raw milk sales are legal, and brought back to Georgia, where they aren’t. “Upon reaching
Georgia, Plaintiff Wagoner’s truck was searched and seized by officials from Georgia without a warrant. The raw milk in Wagoner’s truck was embargoed by officials from Georgia without a warrant. On October 19, 2009, the 110 gallons of raw milk, including milk owned by Plaintiffs Wagoner and Cooper, were destroyed at the order of the Georgia officials and the FDA without a warrant or other legal process.”
— That the FDA, if it so chose, could take a less harsh approach to raw milk. “For example, FDA has a regulation at 21 C.F.R. 101.17 that pertains to unpasteurized juices, and provides, in part, that a warning label on a juice container is an acceptable alternative to pasteurizing the juice, to wit: ‘WARNING: This product has not been pasteurized and, therefore, may contain harmful bacteria that can cause serious illness in children, the elderly, and persons with weakened immune systems.’”
— That the FDA is singling out raw milk for special harsh treatment. According to the suit, “There is nothing in the PHSA that authorizes the FDA to find that a product that is legal to sell in more than half the States and where it is legal to consume in all 50 States should be banned as a ‘communicable disease’ or ‘illness’ particularly when there are other foods in the United States that cause more cases of foodborne illness.”
The FDA has been adamant in refusing to debate or otherwise discuss the matter of raw milk’s safety, limiting its views to a PowerPoint presentation on its site and to occasional written testimony in opposition to state legislation that might relax restriction on sales of raw milk. It seems safe to say that the agency will seek to remain in its preferred cool dark places, unless a judge takes the case seriously and compels testimony.
The Government vs. Raw Milk, by Dr. Richard Schwartzman
http://www.orgonomist.blogspot.com/
David
I thought this pertained to selling milk across state lines? I wonder how many people know this? If I was to drive into Nevada with a picnic ice chest; I couldn’t have raw milk in it?
I’m glad to hear that people in many states are speaking up. There is strength in numbers.
The combinations leading to an allegation of breaking this law are numerous. A person could buy raw milk legally in one state and simply carry it into another state where state law also permits raw milk sale, and break no law except the federal. The rule simply has to go, since it makes no sense whether limited to sales or not.
The individuals who have joined us in this case (with some risk in coming out and saying so) are making an important statement about the right to have access to raw milk. I would encourage anyone remotely interested in these important issues to read the complaint, and to support our efforts.
I applaud this action and can not wait to help if I can. Remember the CFR 1240.61 Citizens Complaint that I filed with the FDA last January?
No answer yet from the FDA even though they are required by law to answer in the Petition in 180 days.
Remember that I took that same petition to the NCIMS in Florida last spring to try and get an endorsement…remember that the NCIMS would not let me present the amendment to the Science Review Commmittee that was chaired by CDFA Dr. Beam.
This litigation will be the biggest raw milk event in the last 30 years. It will lift and expose the FDA smoke screen and bring forth the truth of the false comingled raw milk data reporting and deaths by pasteurized milk. This will bring John Sheehan to the depositions and expose his ignorance, lack of ethics good old boy Big Dairy Politics with CAFO fat cats at Deans Foods, Monsanto and DFA .
It is my guess that the new girl crew at FDA do not have a clue about all of this old dead food milk dogma and will not put up with it when they see and hear the truth. My gut says….Sheehans days are numbered. The girls above him are about to expose his butt to a high healed boot.
This is going to be awesome!!!
Go Gary!!
Mark
It looks to me that Wagoner has a solid case, at least for a civil suit.
"Georgia, Plaintiff Wagoners truck was searched and seized by officials from Georgia without a warrant. The raw milk in Wagoners truck was embargoed by officials from Georgia without a warrant. On October 19, 2009, the 110 gallons of raw milk, including milk owned by Plaintiffs Wagoner and Cooper, were destroyed at the order of the Georgia officials and the FDA without a warrant or other legal process."
Now we get to see if I was right…that the Raw Milk Wars would be won, but the victory would be rights based. The regulators only argument, their false science, will be short-circuited by the best document ever written, short of the Bible, the United States Constitution.
Get ’em Gary, et al. Grind ’em into the dust as they have tried to do us.
BH
http://www.JuicyMaters.com
Among the additional charges the FDA wants to enforce on OPDC is the charge that OPDC has become an illegal drug manufacturer because we have in the past posted testimonials of our consumers and how raw milk healed or prevented asthma, osteoporosis, ear infections etc…..
It will be very interesting to be able to serve notice to the judge that the FDA is now being sued by people that will not stand for CFR 1240.61 and want the law changed.
I can just see the FDA squirm…..I just hope the judge can see the wisdom of the ages.
Once and for all we can all support Gary Cox and his work to expose the truth and the real numbers behind the FDA wizard of oz PMO Raw Milk smoke screen. The next two years will ursher in the greatest nutritional progress we have ever seen. The FDA will be exposed with their twisted data and false statements. The truth will emerge and John Sheehan will be replaced in disgrace.
Perhaps one of the biggest tools of this next 24 months will be the airing of FARMAGEDON. In this great documentary, Dr. Donald Fields exposes the medical truth of the effectiveness and safety of raw milk. Dr. Fields explains how MAST cells are stabilized by raw milk and destabilized by dead milk.
This is going to be a wild ride…. I have been hoping, planning, praying and working for these days for many years. Finnally the children will no longer suffer from FDA drug pushing and doctors will have some real food choices in caring for the immune systems of the younth of this country.
What a glorious bright and hopeful new future.
Mark
http://www.nicfa.com/
yes, the attorney that dan called was me. i kind of laughed inside when dan told me "they don’t want to talk to you." i laughed even harder when dan told me about the highway patrol pulling the fda agents over and questioning them. i’m glad that dan is now for the time being relieved of fda’s harassment.
Thank you for your thoughts, appreciation and support.
Yes, I hope we do prevail.