Okay, I never pretended to be a poet. But I was prompted to try some alliteration because of a new development in the Farm-to-Legal Defense Fund case against the U.S. Food and Drug Administration in federal court.
This case is still at such an early stage that an FDA motion to dismiss hasn’t been decided, but I would venture that the judge, Mark W. Bennett, is beginning to raise his eyebrows a bit about the sanity of this world of raw milk.
The judge in the last few weeks heard arguments via phone from the two sides about the FDA’s motion to dismiss the case (already famous for its “no absolute right…to any particular food” claim). Now, the FTCLDF has filed a “motion to admit newly discovered evidence” in the case.
The evidence is a series of emails between a reporter with Iowa Public Radio and an FDA press official in which the FDA first admits it’s okay for consumers to transport raw milk across state lines, and then changes its mind.
The reporter, Sarah McCammon, in late May inquired into the FDA’s position on consumers bringing raw milk from a state where it can be sold into a state where it can’t be sold. The FDA press person, Michael Herndon, at first put off the question: “We don’t comment on on-going lawsuits publicly.”
Three weeks later, McCammon came back with another tack: “One factual question–is it illegal to purchase raw milk in a state where buying raw milk is legal, and bring it into a state where raw milk sales and purchase are illegal, for one’s own use?”
To which Herdon responded the same day: “Illegality is introducing the raw milk into interstate commerce. Federal regulation prohibits the introduction into interstate commerce of any unpasteurized milk product in final package form, intended for human consumption…”
To which McCammon stated: “OK, that’s pretty technical language–would it be illegal for me to buy raw milk in Nebraska (where sale is legal) and bring it back to Iowa (where sale is not legal)?”
Which elicited this surprising admissions from Herndon: “The federal law prohibits the sale and transport of raw milk products across state lines. It does not prohibit an individual from purchasing a raw milk product for personal use so the answer is no.”
McCammon, quite understandably, didn’t fully believe what she was reading, so tried to confirm: “So an individual can purchase milk for personal consumption and bring it across state lines for his or her own use?”
At which point Herndon must have become uneasy about the information someone at FDA was feeding him, because a few hours later he wrote: “After discussing your question with others here at FDA my interpretation of the law was totally incorrect. As you are aware one of the issues of the pending litigation in Iowa speaks to this very question so it would be inappropriate for me to respond while the case is pending. I apologize for any confusion my previous emails may have caused you because of my ignorance of the facts. I suggest that you read the government brief in the Iowa case…”
Herndon is an experienced and professional press person, so one can only begin to imagine the tenor and tone of conversations he was having with different officials within the FDA, but they can’t have been very pleasant…or logical.
It should be noted that the actual FDA position stated in its first response to the FTCLDF suit last April was somewhere in between the two positions Herndon suggested. It noted 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.” It thus seemed to cast itself as benign dictator.
The FTCLDF in its request to admit this late evidence says that if the FDA’s motion to dismiss is upheld, FTCLDF “would need to conduct discovery on the FDA’s change of interpretation” on the prohibition of interstate raw milk sales.
To say that the U.S. Food and Drug Administration is an opaque agency is an understatement. Maybe because it has screwed up so often in approving drugs that later turn out to be highly dangerous, its officials are not inclined to speak out or, when they do speak out, to depart from the party line.
That’s why the confusion about the interstate raw milk prohibition is so noteworthy. More likely, it’s not confusion but rather disagreement within the agency about what it can and can’t do. We may be seeing the interstate prohibition on raw milk shipments crumbling before our eyes. ?