In April, the U.S. Food and Drug Administration was dismissive of any claims consumers might think they have on so-called “food rights.” Consumers have “no absolute right to consume or feed children any particular kind of food,” the agency’s lawyers said in asking a federal judge to dismiss a suit filed by the Farm-to-Consumer Legal Defense Fund in January.
Now, in a 66-page response to the FDA’s motion to dismiss, the FTCLDF portrays the case as one emblematic of an emerging rights issue on a par with other momentous rights cases: “Plaintiffs represent the tipping point of a food rights movement that involves knowing one’s source of food; becoming responsible for what foods go into one’s body; becoming responsible for ones health; ensuring that one’s family and children grow up healthy with an excellent immune system; and engaging in conduct with similar like minded individuals to promote a healthier and happier America. Since ‘you are what you eat,” literally, the choice as to what foods to consume is fundamental to one’s bodily integrity and is one of the foundations of family life.”
While technically the suit is about whether consumers can bring raw milk across state lines, this legal response comes across more as a treatise for a newly discovered right–one not given attention in the past because there never was any question about people being able to eat the foods of their choice–than a technical legal document. It makes the argument in terms of choice, but also in terms of health–that in denying availability of raw dairy, people are being forced by the government to eat foods they see as unhealthy. Sure, the response cites a number of legal precedents, and challenges several the FDA used in its motion to dismiss, but it is notable for clearly articulating the emerging notion of food rights. It’s a long document, but well worth reading for those who see the controversy over raw milk as a proxy issue for broader food rights issues.
Specifically, says the FTCLDF: “Plaintiffs have no interest in consuming pasteurized milk that comes from cows injected with artificial hormones and antibiotics that is processed and packaged at large industrial facilities under confinement conditions and then transported hundreds of miles across the country only to sit on store shelves under artificial lighting in plastic bottles and jugs. Instead, Plaintiffs wish to consume fresh, unprocessed, wholesome milk and similar dairy products, and wish to patronize the pasture-based farmers that make these products directly available to the consumer.” The FDA’s regulation prohibiting interstate shipment of raw milk “is preventing Plaintiffs from enjoying their rights to health and food choice. Therefore, this is an issue of private choice, not the public’s health, safety or welfare.”
But the FTCLDF argument goes beyond arguing that growing numbers of consumers have a preference for non-industrial food. It makes the case that consumers are potentially being injured by being denied access to such foods: “FDA’s regulatory program has no application to Plaintiffs’ conduct because Plaintiffs are not injuring the public’s health, safety or If anyone is being harmed in this case it is Plaintiffs themselves because they are being prevented by their government from exercising their fundamental right to consume the food of their choice and instead are being forced by their government to participate in a food production system that they truly believe is harmful to their health.”
In backing up its argument, the FTCLDF takes issue with the FDA’s motion to dismiss on several points:
— To the FDA’s argument that it isn’t interfering with consumers who transport raw milk from states that allow it to states that prohibit it, FTCLDF offers several cases in which the FDA has interfered–notably in milk brought privately from South Carolina to Georgia, from Indiana to Michigan, and from Oregon to Washington state. It includes an affidavit from Steve Bemis about how he represented a Midwest Amish dairy farmer who received warning letters from the FDA, and had several meetings and discussions with FDA officials about the situation. It also includes an affidavit from Eric Wagoner, the Georgia dairy club owner, whose truckload of 110 gallons of raw milk being brought from South Carolina to Georgia was confiscated by an FDA agent and Georgia agriculture agents.
— It takes issue with the FDA’s contention that the federal prohibition doesn’t interfere with freedom to travel, by arguing “Although this national ‘food rights’ movement was probably not contemplated by the Founding Fathers, it should now be recognized by this Court as a component of Plaintiffs’ liberty interest in having access to the foods of their choice. Accordingly, the right to travel should include the right to have raw dairy products in one’s possession.
— It argues that even though raw milk isn’t widely consumed, the restrictions in its use could be the harbinger of other restrictions. “Our country was founded on the notion that we all have inherent, inalienable rights that the government cannot take away from us except by due process.
‘Government of the people, by the people, for the people’ as Abraham Lincoln said. If a
person does not have the right to take raw dairy across state lines, what will be the next
product that the government will prohibit its citizens from taking across state lines? Pets,
pornography, alcohol, cigarettes, medicines, prescription drugs, live chickens, live cows,
raw eggs, raw produce, raw herbs, uncooked meat, fruit? When will it end?”
— The FTCLDF also challenges the FDA on its argument that parent have no “absolute” right to feed raw milk to their children. FTCLDF says the plaintiffs “would agree with the following
statement: parents do not have the absolute right to feed their children adulterated food.
However, it is legal in all 50 states to consume raw dairy products, whether by children or
adults. Therefore, it is legal in all 50 states for parents to feed their children raw dairy
products. In addition, it is presumed that parents act in the best interests of their children.”
— To the FDA’s contention that a “citizen’s petition” to the FDA challenging the ban on interstate shipment of raw milk should have preceded a court action, FTCLDF points out that raw dairy owner Mark McAfee of Organic Pastures Dairy Co. already tried that in 2008. “FDA had a duty to act on the petition in six months yet as of this date (nearly one year to the date after FDA should have taken action on the petition) FDA has failed to take any action on that petition. Consequently, exhaustion does not apply because FDA has shown itself to be ‘biased or has otherwise predetermined the issue before it.”
— To further the point about the FDA’s reluctance to consider challenges to the ban on interstate milk shipments, the FTCLDF includes an affidavit from its president, Pete Kennedy, in which he cites numerous instances of the FDA refusing to enter into discussions on the subject, including the cancellation in 2008 by FDA dairy head John Sheehan of a speaking engagement at a food protection group rather than be together with representatives of the Weston A. Price Foundation.
— And to the FDA’s contention that it was ordered by a federal court to implement a regulation banning raw milk, FTCLDF says the court order only applied to the “sale” of raw milk across state lines. “In addition, FDA banned the interstate transport of raw dairy across states lines even when the conduct involved did not involve ‘interstate commerce’…”
The FTCLDF suit has always been a long shot, and even if successful can be expected to take a number of years to wend its way through the legal system. But by so heavily challenging the “rights” aspects of the suit, the FDA may have inadvertently opened the door to a broad consideration of food rights in the context of civil rights. The choice for the judge seems clear: dismiss the suit to protect a federal agency’s view of its power, or use the suit to explore fundamental human rights. This initial procedural ruling will thus provide important clues as to the judiciary’s preparedness to consider food rights as a constitutional right.
Bob BubbaBozo Hayles
No rights? Who the heck does he think should have the right to choose?
Bob BubbaBozo Hayles
Just responding to your last post about rugged individualism.
On the contrary, I think it is the rugged individualism that has led to the demise of family farmers throughout the U.S.
We in Wisconsin are lucky enough to have a strong local food movement, and so the community is by and large very supportive of local organic farmers.
Granted, we have witnessed a huge loss of family dairy farms over the last 50 years, but that is because of consolidation/corporatization of the milk processing industry. Dairy is the one category of food in which it is very difficult for a farmer to connect directly with the consumer under the current regulatory system. The dairy farmer either has to become a milk processor (a momentus task, especially given the degree of dairy regulation here) or go renegade and sell raw milk.
Yet, we still have more family dairy farms than probably any other state in the entire U.S. The locals love cheese.
On other local food fronts, Wisconsin has an incredibly resiliant local foods system. We have the largest producer-only farmer’s market in the entire U.S. in Madison. We have an incredibly innovative urban agriculture project founded in Milwaukee called Growing Power, dedicated to empowering inner city communities, primarily minority youth. Organic Valley was founded here, and the entire Southwest region is a rural agrarian cultural hotspot.
The irony of the raw milk struggle is quite profound, given that this is America’s Dairyland. It is the one category of food in which the farmer cannot connect directly to the consumer if he/she so chooses.
Your point about "rugged individualist" bacteria is well-taken, and is very similair to Tim Wightmans. Pathogens represent an imbalance in the eco-system. We need to take a total ecological viewpoint here. This is about much more than merely raw milk, and this struggle will not be won on merely raw milk. We must expand our purpose to include diversifying and creating truly sustainable farms.
Tim’s point about only finding one properly mineralized soil in his years as an agricultural consultant is very telling — it was a piece of land which hadn’t been farmed in over 70 years, and was returning to grape vines. In other words, it was a piece of land which had restored itself to a correct mineral balance by the natural succession of species in a Savanna eco-system.
This suggests to me that mineralization of soil is only a temporary solution. What if we could include grape vines, apple trees, chestnuts, hazelnuts, oaks, walnuts, mulberrys…. vining plants, shrubs, grasses, legumes etc… in our entire farm system. Graze the animals in rows betweens the tree plantings, and farm not only in place, but over time in a entire perenial eco-system modelled after natural relationships.
In time, this would totally eliminate the need to import expensive minerals to restore soil depleted by monoculture types of agriculture.
We cannot rely on dairy alone….
NOW RAW MILK DRINKERS FACE THE SAME JEOPARDY THAT THE BRAVE RAW MILK FARMERS FACE???
The state of Minn. executed a search warrant on the home of a Hartman CUSTOMER though not sickened in the E. coli "outbreak"
THE WAR ON RAW DAIRY HAS REACHED A NEW LEVEL
Rugged individualism aught not be stereotyped for it is merely an innate human quality that nurtures a healthy diverse society. What has led to the demise of family farmers throughout the U.S. and Canada are vices common to all of us, pride, greed, selfishness and an obsession with control.
Bacterias sole objective is survival and all processes in nature are reliant on and governed by its encoded desire to survive. This is in a sense a reflection of its rugged individualistic nature minus all the vices.
Ken Conrad
The nanny state doesn’t go after consumers…the FDA’s suit answer says so, and we all know the gummit doesn’t lie!
Worthless bastards.
Bob BubbaBozo Hayles
http://www.juicymaters.com/nationalpolitics/
Bob BubbaBozo Hayles
After reading how the Minnesota Ag Dept(MAD—- isn’t that fitting?),is widening their investigation after visiting the Hartmanns and stealing their records and computer among other things,I have to wonder whose logic you were referring to in your post FUZZY LOGIC ?How will allowing these criminals(MAD and MDH) to intimidate all raw milk farmers help to widen the availability of raw milk?Remember,the Hartmann’s crime was "harboring a pathogen on their farm",something that we all(I include consumers in this too) are guilty of.No pathogens were found in any of the food tested.The Health department does not want to turn over the laboratory evidence because they know that it is BOOOGUS and they don’t want it scrutinized.Already this is having a chilling affect on the availability of raw milk well beyond the borders of Minnesota.I would not take on anyone new to raw milk consumption at this point,and we are definitely planning to drop the less committed supporters.Happily, this is beginning to create a strong demand for cows.The farmers will survive this,they are tough.I sense a bit of prejudice in your posts.I may be wrong and I hope so,but I know that many people who have never tried their hand at farming look on farmers as being less intelligent and more than a little bit sloppy.My own mother is among these,she often says"You know ,you have such a good mind,I wish you had done something with it like becoming a doctor or lawyer".
Sometimes I tire of your LONG comments, but even at their worst (best?) they beat any drivel slobbered out of Marler’s mouth.
Lawyer? I’d be offended if anyone suggested I do that. (sorry Pete, Gary, Steve…y’all are exceptions, not the rule)
Bob BubbaBozo Hayles
Here’s what I don’t understand with your argument that MDH is dishonest and hiding something in the laboratory results. If they were going to manipulate the data against raw milk, why on earth didn’t they go into the software program and label one of those positive samples "raw milk." They’d have a smoking gun. The reason they didn’t do it – the results are real (and I bet they’ve covered every base with chain of custody). The Hartmann dairy was the source of the E. coli O157:H7 that caused illnesses.
Also…don’t forget that not everyone agreed with you in the interesting discussion a few days ago. If I understand correctly, Ron Klein has credentials in both molecular biology AND farming. I have a lot of respect for his analysis of the situation, and not just because he agreed with me about the PFGE.
"Ive been following this discussion at a distance and am both pleased and impressed by Milk ways (MW) willingness to engage and explain some of the science behind PFGE (as well as want to understand the distrust of public health officials.)
Ive done quite a bit of DNA sequence analysis and a wide variety of molecular techniques from the first DNA sequencing and gel electrophoresis work in the early days to automated systems, amplifications and PFGE. The issue of limited restriction enzyme analysis of microbes that have under gone untold generations over many years for comparative purposes is acknowledged by MW and would be so by most of the scientific community. The use of two restriction enzymes with uniquely different binding/cleavage sites is another matter for the purpose we are discussing. The lower correlation coefficient of the Hancock paper, in my reading actually underscores the validity of two distinct restriction enzymes for a comparison of independent isolates that are not part of some long term evolutionary study. For example-the correlative banding patterns in the sample photo that David posted would not be disputed by any of us who have done DNA analysis. (And if there was a question-the analysis could be repeated with another set of restriction enzymes-which has already been done in countless labs to assess ambiguous results-the gel shown is not ambiguous.).
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-MWs 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.
I urge taking Davids words to heart and focus on the critical issues:
"we need to be prepared to be true to our rhetoric, own up to problems, and push problem raw dairies to own up to problems. There needs to be introspection and self assessment as to what went wrong. The denial and pretending that a case this blatant isn’t real is a disservice to all dairies that consistently produce high-quality raw dairy products.
As Scott Trautman suggests, we need to move beyond words, to actions, to taking responsibility. If public opinion turns against raw milk, believe me, the public health and agriculture bureaucrats will lick their chops and move in for the kill."
June 15, 2010 | Ron Klein
Welcome back to the discussion.Ron didn’t respond to my question that followed his remarks. so I will repeat the questions and hope you can answer them.
"
I agree ,the gel shown is not ambiguous ,but what information does it give us?The genetic material in the cell is cut at various places into various lengths yielding a pattern that is indistinguishable for the two samples.Do those bits of DNA that are equal in length necessarily perform the same function in the cell?Bits of DNA that are similar in length may very well be very different in function.All we know from the gel is that the PFGE profiles are indistinguishable.If we do another gel with a different enzyme and it too is indistinguishable,then we know that the probability that we are looking at similar strains is higher.The question is how high a probability should we have to have before we are satisfied to say the strains are the same? And also,very importantly,how do we calculate the probability?The authors of the study concluded that 6 or more gels with 6 different enzymes would need to be done in order for the probability to be high enough to say with confidence that the strains are closely related.
"The issue of limited restriction enzyme analysis of microbes that have under gone untold generations over many years for comparative purposes is acknowledged by MW and would be so by most of the scientific community."
Where is the cutoff.When does the number of generations that separate the two samples make the PFGE profile unreliable?We are talking about a generation length at 98.6 deg F of about 20 minutes.That is 72 generations every day.
In an earlier post MW referred to species in relation to bacteria.Species are species because they do not exchange or share DNA.DNA flows between bacteria and between a bacteria and it’s surrounding genetic material.How can these bacteria be tracked by their DNA if their DNA is not static.Do you have information that( as MW tried to say but did not support)those changes in DNA that admittedly take place are only temporary?"
Just suppose we accept that we are the ones responsible for the illnesses,how do we make sure that there are no pathogens on the farm?Remember,no pathogens have been found in the food.Sure we can keep a closed herd,not bring any outside animals onto the farm etc.But the standard we are expected to live up to is that the department of health is not able to find any pathogens anywhere on the farm,ever.It is a completely absurd and impossible standard.That fact definitely puts an end to any more discussion about standards.
This is long responseand one pass writtenno spell check
I apologize for not getting to answering your question. We are selling our current farm and building a new modest (nonyurt) home and dairyputting everything we have into the projectso Im a tad busy. That is overlayed with trying to help-pro bono some of our rural neighbors with legal issuesyes Im also a licensed attorneyand yes Ill stand at the farm gate….I drink raw milk, and have stood at the farm gating waiting for the FDA men in black to get back from their power lunches. . . . I have not only conducted DNA analysis in the lab, and on the farm, but also have had to carefully explain comparative DNA analysis of samples from suspect and child rape victims while in the DAs Office..
Now to your question:
You ask compound questions that are confusing. Let me try to understand. Now I have done these sorts of analysis on bacteria, fungi and ruminant parasitic worms (my lab demonstrated that ALL worm parasite populations have a small number (1 in 10-100 million) of worms resistant to a spectrum of drugsthrough random natural mutagenesis). Basically an organism is identified that causes disease. Genomic DNA or cDNA (copied from expressed genes) are isolated, snipped with a variety of restriction enzymes, fractioned on gels and then probed with radioactive markers for specific sequences of DNA. We run many controls to find a pattern unique to that specific disease isolate. We repeat the analysis on DNA isolated after several hundred to >thousand generations-looking for stable unique markers (the finger print). Those markers are unique and differ from DNA isolated from the samebut non pathogenic- organism. The pattern selected is genetically unique, not prone to rapid mutagenesis and is as genetically stable as possible-thus we would run these experiments with dozens of restriction enzymes to find a stable pattern-consistent with the phenotype of the organism (here we are talking a biochemical profile or pathogenicity).
The pattern identifies the isolate. The bits of DNA may have nothing to do with the protein or genetic change causing pathogenicity. The pattern may indicate a fused gene, an inactivated gene, a rearrangement. It is only a pattern that uniquely identifies the organism. In our own work a single base change in DNA caused a single amino acid change that caused resistance to an antiparasite drugwe identified it by a simple change in the gel patternthat still exists after some 11 years and countless generations-from isolated in North America, New Zealand, and Europe..consistent pathogenesisconsistent patterns..clearly unrelated populationsbut stable patterns..
Yes genomes are plastic and not static, but the vast majority of genomic sequences are stable and can even be tracked using specific probes as genes are transferred through populations. Some DNA sequences including mine and yours-have sequences that extend back to the microbial soup-so we are related (how cool is that?). Do not assume that when Dr. Margulis writes that genomes are plastic that she is referring to all chromosomes and all sequences. The evolutionary argument you are trying to understand is interesting, but not relevant for this specific issue (in my opinion.)
Now where I think there is confusion. Gel analysis is only a tool that identifies patterns. The patterns identify isolates and relations between isolates. The tool is only as valid as:the comparative controls that are used, (and a good scientist runs many redundant controls), the skill of the technicians both isolating the organism and running the gels. BUT most important are the questions that are initially asked (policies, protocols). This leads to two important points for us:
1. Query should focus on how isolates are collected and the controls that are run to identify the specific patterns correlated with the pathogenif there is a question in those patterns (a band missing or not lining up)-another set of enzymes should be run against appropriate controls.
2. Our community concern should be with the policies and procedures that define the questions being asked and conclusions drawn. I am most familiar with Forest Grove Dairy-where conclusions were drawn BEFORE there was any data and continued even after Forest Grove showed negative contamination.Those are political and policy issues. IF there would have been some positives emerging from PCR analysis or gel analysis many weeks after the organisms had been isolated and cultivated in a lab I would be very suspect.
Anyway-I sincerely believe we must move on to address the very important issues referenced by Steve Bemis AND so well stated in the Funds reply to the FDAwell done! We need to be able to go toe-to toe on these fundamental issues.
Lastly, I do not want to spend anymore time on theoretical DNA analysis , I respect you Miguel but we must move on.
I need to get out and feed the ladies.. The amount of rain we have receivedconsistent with climate change models- has prevented haying and the hay we have put up is molding. I am very concerned and winter is just a few months away. . . . This and watching Ruperts Collapse has me pleading to all of you that we focus on critical and deeper issues.
Best wishes,
RDK
I really don’t have anything to add to Ron Klein’s excellent analysis (in both posts).
However, a couple thoughts about your other question: "Just suppose we accept that we are the ones responsible for the illnesses,how do we make sure that there are no pathogens on the farm?"
If we are talking about E. coli O157:H7 (or Campylobacter, Listeria, Salmonella), it is probably unreasonable to expect "no pathogens on the farm." These organisms live in the guts of healthy livestock, so culling your herd of unhealthy animals (or segregating them) has limited utility. There may be some interventions that help reduce the prevalence such as keeping a closed herd, and manure management on the farm (for the record, I don’t believe that "grassfed" has anything to do with the presence of these pathogens in the herd – the data simply doesn’t support that widespread myth).
But, it’s not hopeless! I think we need to look beyond the animal in a prevention model for raw milk (or any other food risk related to one of these enteric zoonoses). That translates to…assume there might be one of these pathogens in the manure, so take steps to keep it out of the finished product going to the consumer. That’s where things get very interesting with raw milk, in particular. For example, this idea floating around on the blog and elsewhere to develop national standards for risk reduction like any other food – from the teat to the table.
A question for you and WI Raw Milk Consumer: although the "outbreak strain" wasn’t found in cheese products on the farm, other pathogenic strains of E. coli were cultured from cheese. Clearly, these strains shouldn’t be in properly produced cheese, right?? I’m not a raw milk cheese expert in any way, thus defer to you and WRMC, but seems if the cheese had been produced appropriately, these strains shouldn’t be there. In my experience with raw milk cheese-related outbreaks, there have been clear sanitation issues that could easily explain the contamination (also wonder if such cheese has off flavors – I could imagine a real cheese afficianado recognizing that something isn’t right if the cheese was produced under substandard conditions). To put it another way, could the presence of pathogenic E. coli strains in the cheese made from raw milk on the Hartmann farm, regardless of any link to illness, be an indicator of an underlying sanitation issue, or problem somewhere during processing?
You have added one word to the health departments statement.The word pathogenic.There are lots of strains of ecoli that are not pathogenic.I would not be surprised to find a common e.coli in cheese.Too much common e.coli will cause something known as "early blowing" The cheese will begin to puff up even while it is in the press.It is obvious and the pigs will enjoy it e.coli and all.
The health dept found e.coli in the cheese but they could not or did not identify the strain.
Ron, what is the possibility of multiple farms or families sharing the same dna of a pathogen?
In other words, is the dna totally restricted to that one farm, or can the "relatives" of that pathogen exist elsewhere and be tested as the being same dna?
TIA!
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