For nearly three days, the court proceedings in the Ontario raw-milk-rights case had been a model of Canadian civility. The judge and lawyers each referred to the other as “my friend,” rather than “colleague” or “opponent.” Opposing lawyers never once interrupted the other. The female judge always spoke in calm even tones, never admonishing the lawyers for going on too long or getting off subject. Even as they disagreed about the professional qualifications of some expert witnesses and the seriousness of data on illnesses from raw milk, the lawyers avoided raising their voices or getting personal.
It all kind of unraveled near the end of the third day, Wednesday, when the lawyer representing Canada’s Department of Justice, Joseph Cheng, in making the case against legalization of raw milk, seemed to lose his bearings. It happened while he was recounting testimony offered in advance of this week’s hearings by, of all people, John Sheehan. Yes, that John Sheehan, of U.S. Food and Drug Administration fame, America’s one-time federal milk czar (who now has the title “Senior Advisor for Compliance and Enforcement at FDA, according to his LinkedIn page).
As Cheng recalled it, Sheehan in pre-trial testimony took strong exception to data offered in a 2018 scientific paper that indicated illnesses from raw milk in the U.S. had been heading down in recent years, even as raw milk consumption was increasing. Such strong exception that he had helped draft a letter to the journal on behalf of the FDA and CDC requesting they remove the article from the journal.
Sheehan shared the letter with Cheng, who said in court Wednesday afternoon: “When I read the letter, I was kind of blown away. I had never seen anything like this….But I am not a scientist, so I asked John Sheehan during his re-examination, ‘Was the sending of this letter a normal practice?’ “No,” he said, “very extraordinary. I have been here (at the FDA) twenty years and I have never seen any request of this sort. It indicated the seriousness with which the FDA and CDC take the misrepresentations.” “
Cheng wasn’t done. He told the judge: “I don’t think this paper should be given any weight…We have foreign (American) organizations submitting evidence to change our lives,” he said, referring to Pete Kennedy, a lawyer with the Weston A. Price Foundation (and formerly head of the Farm-to-Consumer Legal Defense Fund); and Peggy Coleman, a risk analysis expert who has served on the board of the Raw Milk Institute (RAWMI). “You are being called upon to take a stand where the heads (American) public health organizations have taken a stand. I would encourage you to take a stand against it (raw milk).”
Clearly, Cheng, and likely everyone else in the court, knew nothing about John Sheehan–how during his long FDA dairy career he has refused to engage in the least bit of discussion or debate about raw milk, or even to be in the same room with raw milk proponents. Or how he refused my request for even a brief interview, and hid his career background from the media until I obtained the details via a Freedom of Information request. Or how he has made a career the last few years sending pretty much the same testimony to state legislatures any time raw milk issues come up, replete with his seeming lifelong mottos: “Drinking raw milk is like playing Russian roulette with your health,” or “Raw milk should not be consumed by anyone under any circumstances.” (Cheng had used the latter quote earlier in the day, before becoming worked up about Sheehan’s misgivings about the academic paper.)
Before Sheehan intruded himself (or before Cheng allowed him to intrude), the academic paper in question, written by Canadian researchers Joanne Whitehead and Bryony Lake in 2018, had been the subject of much attention at the hearing. The attorney representing the raw milk petitioners, Jonathan Nehmentallah, had on Tuesday argued that the paper’s data “didn’t support the thesis that increased access to raw milk leads to increased outbreaks….We’re not submitting there is causation, but there is a trend here.”
Indeed, as I reported shortly shortly after the paper was published in 2018, it made the case that the reported outbreak rate for raw milk proportional to estimated increased consumption (since no one has actual consumption data) had declined 74% since 2005.
Nehmentallah cited the paper, along with other recent research, to argue that raw milk is becoming safer, while evidence mounts that it confers important health benefits on those who regularly consume it. “While we don’t understand the exact biological mechanisms, we do know there is a protective effect.”
Cheng had spent much of Wednesday trying to build a case that raw milk hasn’t been proven to confer health benefits, and besides, is especially risky for vulnerable populations, especially children, the elderly, and pregnant women. He also used Sheehan’s raw milk obsessions to suggest that America’s raw milk regulatory approach is similar to Canada’s at the federal level, while ignoring the reality that actual practical regulation happens at the state level in the U.S., where more than 80% of states allow raw milk sales in some form. There wasn’t the slightest bit of give in Cheng’s day-long recitation–in other words, he appears to support continuing the outright Canadian ban on raw milk sale and distribution in effect since 1991.
The trial is expected to conclude on Friday.