Round One in what I labeled last February “the main event”—the Farm-to-Consumer Legal Defense Fund’s suit against the U.S. Food and Drug Administration—has just begun.
The FDA is seeking a quick knockout via a motion to dismiss the FTCLDF suit. That’s pretty standard practice in court suits, but what is notable is that the FDA made its case in a 30-page legal brief that amounts to a legal rebuttal to the FTCLDF suit, point by point. The FDA thus seems to be taking the case seriously, and trying hard to make it go away. It’s a pretty amazing document, addressing at last many of the arguments that have been made on this blog over the last few years, giving words to what many here have long suspected about FDA views. (No, the FDA doesn’t often share with us ordinary folks its great thoughts.)
The FTCLDF in its suit had argued that the FDA’s ban on interstate shipment and sale of raw milk in effect deprived consumers in five states and a food buying group owner in Georgia of a number of constitutional rights. The suit charged 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 said, 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)…”
In countering each of the FTCLDF’s points, the FDA lawyers cite a variety of legal precedents they say upholds the agency’s right to prohibit raw milk shipments across state lines. They suggest that the interstate prohibition is merely one tactic at its disposal, that the agency could actually be doing more to limit raw milk availability. It notes that “the government has neither brought nor threatened to bring a single enforcement action against consumers who purchase unpasteurized milk for personal consumption or retailers of such products who do not engage in interstate commerce.”
The FDA even suggests that it is being benevolent by not banning raw milk entirely, pointing out that the 1987 court decision that led it to implement a ban on interstate shipment and sale of raw milk asserted “that ‘it is within HHS’s authority…to institute an intrastate ban as well’… FDA could have…prohibited intrastate sales but concluded ‘that State and local authorities may be better situated to deal with the public health problems attributable to unpasteurized milk.’” Thank you, thank you, most wonderful FDA.
The brief is most notable for its view of the evolution of food safety regulations, and the emerging issue of food rights. In the FDA’s view, an assortment of court decisions backing up federal legislation give it pretty much carte blanche to decide what food is safe. This is a view that pre-dates the U.S. Constitution, in the view of FDA lawyers-turned-historians. It says that “there is no ‘deeply rooted’ historical tradition of unfettered access to food of all kinds… To the contrary, society’s long history of food regulation stretches back to the dietary laws of biblical times…Modern food safety regulation in the United States has its roots in the early food laws of the American colonies, which themselves incorporated ‘the tradition of food regulation established in England.’” The brief then cites an 1873 Virginia law “that ‘made it an offense . . . [to] knowingly, sell, supply, or bring to be manufactured . . . milk from which any cream has been taken; or milk commonly known as skimmed milk’).’”
Yes, you read that FDA example correctly. Virginia prohibited sale of milk that had been fooled with in any way, such as removing cream. Under such a regulation, pasteurization and all the other things done to modern milk would be illegal. Is that the best the FDA can come up with in terms of historical precedents?
The current prohibition on interstate raw milk shipments was implemented by FDA, according to the brief, “in 1987, after spending thirteen years collecting and evaluating scientific information regarding the health risks of unpasteurized milk, holding a public hearing that resulted in over 300 comments, and…ultimately concluding that consumption of these products was linked to the outbreak of serious disease.” The brief neglects to mention what I describe in The Raw Milk Revolution–that among these hundreds of comments were many in favor of raw milk, and against the interstate prohibition. How could the FDA lawyers have missed those?
It gets worse. In recounting its version of the history of food safety and regulation, the brief concludes, “There is no absolute right to consume or feed children any particular kind of food.” The basis? “Comprehensive federal regulation of the food supply has been in effect at least since Congress enacted the Pure Food and Drugs Act of 1906… Thus, plaintiffs’ claim to a fundamental privacy interest in obtaining ‘foods of their own choice’ for themselves and their families is without merit.”
Bet you didn’t realize this, but according to the FDA lawyers, “There is no generalized right to bodily and physical health.” Yes, yes, and here’s the deal: The claim in the FTCLDF suit is “similarly unavailing because plaintiffs do not have a fundamental right to obtain any food they wish.” Guess if you can’t get healthy food, you automatically lose the right to bodily and physical health.
I kept trying to remind myself this is a legal document as I tried to make sense of the lawyers’ efforts to link the question of our right to bodily and physical health to Supreme Court pronouncements on abortion and end-of-life rights. But the whole issue of a right to bodily and physical health is moot in any event, since Big Brother is there watching over us: “Finally, even if such a right did exist, it would not render FDA’s regulations unconstitutional because prohibiting the interstate sale and distribution of unpasteurized milk promotes ‘bodily and physical health.’” Got that? The whole issue of rights is irrelevant since FDA has decreed that pasteurized milk is health-giving and raw milk is dangerous. Well, guess we can all go home now and enjoy our pasteurized milk, and any other processed food the FDA determines promotes bodily and physical health.
Essentially, the FDA seems to be saying to the court: Congress gave us the authority to oversee the food supply, so we’re the ones in charge here. We decide what foods people have a right to eat, and we decide what is health giving. And don’t forget it.
If the FTCLDF survives this opening round, this could be a slugfest of a case. It’s interesting that one of the government’s lawyers on the case is Roger Gural, the Justice Department guy a federal judge castigated in the FDA’s civil suit against Organic Pastures Dairy Co.
I couldn’t help but think, as my mind numbed from trying to make sense of the various legal precedents and cases quoted by the FDA’s lawyers in their interpretation of what rights we have and don’t have, that there was no mention of the Declaration of Independence, and its introduction: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government…” We’re talking about milk here, guys.
Wisconsin dairyman Scott Trautman is conducting an informal survey on what people see as the most significant risk factors associated with raw milk. Details at his blog.