The U.S. Food and Drug Administration is taking a lot of heat about its undercover investigation and court action against Pennsylvania Amish farmer Daniel Allgyer. The FDA’s number-two , Michael (Son of Monsanto) Taylor, was even asked about the matter at a corporate get-together, where he spouted the expected rhetoric about “doing our public health job” in connection with the legal assault, designed to prevent Allgyer from supplying a food club in Maryland with raw milk.

Michael Taylor of the FDABut Taylor made another interesting remark, noting that the campaign against Allgyer results from a “statutory directive” to the FDA.  He presumably was referring to the FDA’s implementation in 1987 of the federal ban on interstate distribution and sale of raw milk (PHS law 1240.61), at the behest of a federal judge the previous year. The judge ruled on a consumer group’s suit, demanding that the FDA put an end to interstate sales of unpasteurized milk. At that time, at least one large producer, Alta Deena, was shipping raw milk from its home base in California to a number of neighboring states.

Now, in a response to the FDA’s brief filed last month arguing that the Farm-to-Consumer Legal Defense Fund’s legal challenge to the agency’s ban of interstate distribution and sales of raw milk should be dismissed, the FTCLDF maintains that the judge’s 1986 decision ordering the ban was inappropriate on several counts. It notes that the FDA had, ironically, resisted efforts to push it into the interstate ban, and suggests the agency didn’t have the authority even under a judge’s order.

“Not only did the (1986 court decision) substitute its judgment for that of the FDA, it ordered FDA to institute an interstate ban on the sale of raw dairy products under the PHSA (Public Health Services Act) when there is no authority under the PHSA for FDA to regulate ‘interstate commerce.’ Thus, this reinforces the notion that (the court decision) is wrong and is an extreme case of judicial activism.”

The FTCLDF brief makes yet a further legal and Constitutional argument challenging the FDA’s effort to eliminate the availability of raw milk. The FTCLDF filed suit last year on behalf of five plaintiffs who were admittedly purchasing raw milk in states where it’s legal, and bringing it back to their home states, where such sales are illegal. The FDA has argued that such interstate transport of raw milk is illegal, but has said it has no immediate intention to enforce such a ban on individual consumers.

The FTCLDF argues that the FDA’s prohibition on interstate shipments of raw milk amounts to a “mandate that if dairy products are going to be purchased, those products must be pasteurized rather than fresh and unprocessed….”

The group argues further that it remains legal to consume raw milk in all fifty states, and that Congress has never via any laws governing the regulation of food and drugs granted the FDA the authority to prohibit the interstate shipment or sales of raw milk.

“FDA cannot prohibit citizens from consuming the foods of their choice when it is legal in all 50 states to consume raw milk…Because Congress cannot tell the citizens what dairy products they must consume, neither can the FDA. Thus, FDA exceeded its authority under the FDCA (Food, Drug and Cosmetics Act) and these rules are invalid…”

The ban on transporting raw milk across state lines is invalid, FTCLDF maintains, because “neither the FDCA nor the PHSA give FDA the authority (1) to completely ban citizens from traveling across state lines with legally purchased raw dairy products in their possession, or to mandate the consumption of pasteurized dairy products at the expense of raw dairy products; (2) to designate such legally purchased raw dairy products that are taken across State lines by Plaintiffs as an ‘illness’ or ‘communicable disease’ per se, or (3) to deem misbranded a product that is what it purports to be.”

Even if FDA did have the authority to interfere with raw milk in interstate commerce, “in this case, the raw milk is not being transported across state lines before it is sold. Only after the milk is sold is it taken across state lines, thus, it constitutes an intrastate sale that is not subject to the jurisdiction of the FDCA or the FDA.”

The FTCLDF brief also argues that, by trying to ban interstate shipments of raw milk under the Public Health Services Act, the agency is essentially treating the product as “a communicable disease.” Not very logical. “… a communicable disease is an illness, not an agricultural product that is sold or consumed. If FDA’s argument is accepted, then raw meat, raw chicken, raw eggs or raw produce could be considered a communicable disease.”

The FTCLDF brief concludes by arguing that banning raw milk from interstate shipment by consumers sets a dangerous precedent. “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, fresh fruit? When will it end?”

And FTCLDF asks the court to recognize the rapidly emerging food rights movement. “In this day and age many people, including Plaintiffs, are now eschewing and opting out of the industrial-sized, centralized, subsidized, government-sanctioned food production system. Instead, they are turning toward local farmers who are producing nutrient-dense foods that will restore their health. 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.”

The FDA has said there isn’t even a “plausible” Constitutional case that can be made for access to particular foods as a right. It’s now in a federal judge’s hands to decide whether the FTCLDF case is dismissed or moves forward.