I’d like to make a few further comments in regard to the discussion following my previous post giving credence to the Minnesota Department of Health’s conclusions about illnesses from the Hartmann farm’s raw milk.

What’s fundamentally being debated, it seems, is pragmatism vs some sort of scientific purity. I am encouraging pragmatism.

There are some misunderstandings about the safety investigation that’s been happening in Minnesota. It’s the kind that regularly happens at farms and food producers every day when there are reports of illness associated with particular foods. Just look at the U.S. Food and Drug Administration’s alerts (in the little box midway down the page) about recalls and investigations, or read any of the many lawyer blogs and web sites out there.

A few points:

— Just because there’s an investigation by public health officials doesn’t necessarily mean there is a legal action against the farm and food producer. The nature and outcome of such investigations vary from state to state. In California in 2006, the California Department of Food and Agriculture shut down Organic Pastures Dairy Co. after illnesses of the sort reported at the Hartmann farm in Minnesota. Yet Minnesota hasn’t done anything to try to shut the Hartmann dairy down. In some states, if pathogens are found in a producer’s food, there is a shutdown of the farm till the tests come out okay. There may also be a fine levied. But there usually isn’t a court action, unless…

— The more serious the illnesses, the more likely there is to be legal action. The product liability lawyers tend not to become involved unless someone becomes very ill, since those are the cases that lead to large judgments or settlements. For example, if someone has serious kidney damage, or some kind of disability, like partial paralysis. My understanding is that there hasn’t been any legal action growing out of some dozens of illnesses attributed to raw milk this year. (One exception is in Pennsylvania, where a man who may have been paralyzed from complications of campylobacter from raw milk is suing.)

— Pushing a legal action against public health officials over epidemiological studies or PFGE would be a long shot, at best. You’d have at least two strikes against you: lower court judges hate to rule against public officials, especially those charged with public safety. It’s very difficult to sue police, for example, since judges are sympathetic to police as law enforcers, putting their lives on the line. For public health, judges invariably respond to the argument that people’s lives could be endangered. A judge’s eyes would glaze over before Miguel could get far into his arguments. Also, lower court judges hate to rule on constitutional issues. They nearly always rule on the facts of the case (as they understand them, with bias toward the regulators), and leave the constitutional issues for appeals court judges.

As I said in my comment following the previous post, we live under a system that respects epidemiological findings almost as much as it respects the fact that drivers must stop at red lights and go at green lights. You may argue that your town has very little traffic and therefore you shouldn’t have to stop at red lights, but you’ll have little luck finding a judge to side with you. Now, there’s the added layer of PFGE fingerprinting, which essentially serve as confirmation of the epidemiological findings.

In most of the cases of illnesses, what Miguel, Pete, Ken Conrad, Samantha Stevens, and I think doesn’t matter much. As Jeremy Johnson suggests, the gold standard may not be very golden, but at this point in the history of food safety, PFGE studies are the standard in confirming sources of illness.  

If you accept that, then the next step, as Milky Way suggests, is figuring out what went wrong at a dairy like the Hartmanns. He/she suggests the farmer try to figure it out. I’d prefer that–hence my call for a raw dairy association–to Ken Conrad’s preference for having the regulators nosing further into farm operations.

For those who want the broadest possible access to raw dairy products, two things are at stake: First, there is the safety of customers. Miguel and others can argue all they want that people who became ill had out-of-synch digestive systems or immune problems or whatever, and that raw milk couldn’t have been responsible in any event. Good luck to you in a court of law, or the court of public opinion.

Second, and related, there is the matter of picking our battles. Essentially, you can choose to challenge the regulators on whether raw milk should be treated like any other food as a matter of right, or their application of epidemiological evidence and PFGE fingerprinting. I don’t think you can fight both battles at once because of availability of resources and also, in a sense, they are contradictory battles. You want raw milk to be treated like any other food but, by the way, epidemiological evidence and PFGE studies are fraudulent because people don’t get sick from raw milk. Huh?

Ron Klein states it well: “Miguel you have raised many excellent questions, raised my level of awareness on many issues, and I have looked at the references you have cited. But in this specific case, and I base this on almost three decades as a wet bench molecular biologist-Milky Way’s correct. The argument against the validity of PFGE for the specific application used here-whether in a scientific seminar (even at MIT) or in a courtroom is a loser.”

On the rights issue, it’s been an uphill battle in many places. Remember, one of the key reasons the Ontario judge ruled in favor of Michael Schmidt earlier this year is that his dairy had no history illnesses in more than 15 years. To the extent there are illnesses, they come into play when legislation or legal cases play out.  

This isn’t a matter of me pre-judging people, like the Hartmann family, since I have no authority. It’s a matter of cleaning up our act, as it were, so that as the legislative and legal battles unfold, raw milk has a commendable safety record. Otherwise, to repeat, the public health people who want to do away with raw milk will have a much easier time. You can be shouting about the injustice of using epidemiological evidence as the DATCPs of the world are shutting things down.