The U.S. Food and Drug Administration last week showed a rare soft side to consumers, by stepping back from enforcement on demonstrators of its ban on interstate raw milk shipments.

It’s important that all involved in fighting for food rights appreciate that that show of softness was almost certainly a temporary tactic. For now and the foreseeable future, the FDA is, at its heart, insatiable and hard as nails when it comes to its key agenda item of ridding the U.S. of raw milk and raw milk cheese. And while there may be a tiny bit of conciliation shown consumers, to please the politicians, the focus remains on harassing and penalizing producers. The case of Kelli and Anthony Estrella makes the case stronger than I ever could.

Kelli and Anthony EstrellaThe FDA has in the last six weeks sought to personally make the Estrellas defendants in a case the agency filed in federal court a year ago in connection with allegedly contaminated cheese being sold to the public by the Estralla dairy. The FDA has already put them out of business for more than a year. The Estrellas’ crime warranting the new action is, according to the FDA, ““on-going violative and defiant behavior.”

What sort of defiant behavior? According to the FDA’s motion, “while the seized cheese was in the custody of this Court, and without the permission of this Court or the
knowledge or supervision of FDA, the Proposed Defendants fed the seized cheese to pigs.”

For that outrage, the FDA apparently wants the Estrellas to be permanently prohibited from selling raw milk cheese, and possibly to be penalized via substantial fines, if it wins its case.

The Farm-to-Consumer Legal Defense Fund has taken on defense of the Estrellas. Its brief opposing the federal motion to add the Estrellas to the case (originally, just the Estrella cheese had been named), provides this background of the complex case:

“Early on in 2010, the Washington State Department of Agriculture (WSDA), in a routine product test, found the bacteria Listeria Monocytogenes (“L. mono.”) in one package of the Estrella’s ‘Red Darla’ cheese (approximately one pound) that WSDA had purchased in a grocery store. WSDA had licensed and inspected the Estrella Family Creamery from its inception [in 2003]. This one wheel of ‘Red Darla’ was the first pathogen finding in the Estrella’s history.

“Upon receiving this information from WSDA, the Estrella’s ceased all production of all cheeses, recalled all of Red Darla cheese that they had sold, and disposed of all the cheese in the cheese aging cave where the Red Darla cheese had aged (this included six or seven other kinds of cheese as well, totaling approximately $80,000).

“The Estrellas then worked with WSDA to find and resolve the L. mono. issue. This included environmental testing, consulting with leading dairy experts, remodeling part of the facility, and altering various production practices, as well as implementing a stepped up product testing program for cheese before it went to market. In early May 2010, WSDA was satisfied that the Estrellas had successfully addressed the problem and approved resuming production. WSDA assured the Estrellas that L. mono. is a common pathogen, which one exercises best efforts to control, but which one cannot forever eradicate.

“In August 2010, FDA agents inspected the Estrella Family Creamery and took over 150 environmental samples. The FDA lab found four indications of L. mono., three of which were in remote places. At that time FDA did not criticize the Estrella’s operations or recommend changes.

“In late August, FDA took 10 wheels of Chevrette cheese (which is a soft type of cheese) for testing. The FDA lab conducted approximately 60 tests on the Chevrette cheese yet found L. mono. in only two Chevrette samples. Based on these two results, FDA demanded that the Estrellas recall all their cheese, not just the Chevrette in which the L. mono. was found. The Estrellas consulted with industry experts who thought FDA’s demand was excessive. The batch of Chevrette cheese the FDA had tested was still at the Estrella Creamery and none of it had been distributed or sold. No one had reported any ill effects from consuming earlier batches of Chevrette cheese or from consuming any of the Estrella’s other types of cheese. The Estrellas stopped marketing this cheese type and asked their vendors to return any remaining inventories of Chevrette and other soft cheeses. The Estrellas also began another effort to increase L. mono. prevention by testing every lot of cheese they produced. WSDA did not object to the Estrella’s course of action.

“However, although FDA had no authority to require a recall, in September FDA demanded a total inventory recall and issued public notices against the Estrellas. The Estrella’s response to FDA’s demand for a total
inventory recall was measured, but they took a different view of the matter than FDA. The Estrellas followed the advice of industry experts over the demands of the FDA.

“The Estrellas are respectful people. They never behaved with defiance as FDA alleges. When the FDA served the Arrest Warrant seizing all of the Estrella’s cheese, the Estrellas adhered to this order, preserving the cheese for months. When the cheese began to decay, the Estrella’s attorney notified FDA that since the FDA’s plan for disposing of the cheese was unreasonably expensive the Estrellas would likely feed the cheese to their pigs. The FDA promised a reasonable plan but never delivered it.”

In an affidavit filed with the FTCLDF brief opposing the FDA’s latest court action, Kelli Estrada stated that the seized cheese was going bad, and FDA didn’t answer her inquiries:

“Because we never received a response from the FDA on whether we could destroy all of our cheese, we fed it all, all of it, to our pigs. Even if the cheese had never been tested for L. mono, we fed it all to the pigs. There is no more cheese.”

A mournful Kelli Estrada adds: “I am told that in France, if a safety issue ever surfaced in a cheese operation like ours, the government would work to help them stay in business, considering that cheese is a national treasure. In our case, WSDA was willing to work with us to make our cheese a better and safer product but the FDA did not appear to be interested in making our cheeses safer. The only thing FDA appeared interested in was putting us out of business because we are an artisanal, raw cheese maker, and FDA appears to have a bias against raw milk cheeses. Consequently, our American original cheeses could be lost forever and that would be a great loss. We are absolutely not careless business people who purposely endangered the public, that would be business suicide and it would also be against what we believe morally.

“We are willing to implement all best management practices and have already brought in some of the best in the nation to help us do so…” She then lists several experts in food safety and listeria who were consulted, along with 24 specific steps the producer took to try to abide by regulator concerns.

She concludes: “We understand we are in a difficult position with FDA as we seek to use traditional and time honored cheese making methods that are not always understood by FDA’s bureaucrats. For example, in the case of our wooden shelves, FDA employees repeatedly suggested that we remove the shelves, which is contrary to the wisdom of European experts who believe that the shelves were safe and critical to the quality and safety of the finished cheese. We prefer to follow time honored wisdom rather than conventional industrial food practices. We have now found scientific evidence that sheds light on how wooden shelves actually inhibit L. mono and it appears that it may have been better if we had been using more of these shelves…

“We have suffered great loss, both financially and to our reputation, as a result of overreaching and grossly unnecessary action by FDA. It is our desire to make cheese again but who will protect us from FDA? At this time we have ceased production. We have not produced any cheese for sale since at least October 2010 and at this time have no intention of ever again selling raw milk cheeses in interstate commerce. FDA has shut us down, has put us out of business, has cost us our livelihood and has slandered us. Moreover, all of the cheese that FDA ordered seized has been fed to the pigs and no longer exists.”