In 1987, after years of avoiding involvement in regulating raw milk, the U.S. Food and Drug Administration acceded to a federal court order to prohibit raw milk sales across state lines. Since then, the FDA’s regulatory approach has amounted to haphazardly harassing small dairies, many of them run by Amish and Mennonite farmers, in an effort to keep a lid on raw milk sales.
Unfortunately for the FDA, its main accomplishment over the last 30 years in the raw milk realm has amounted to stimulating lots of negative publicity, in the form of movies like “Farmageddon” and books like my “The Raw Milk Revolution”, not to mention loads of newspaper and magazine articles reporting on the growing popularity of raw milk. And also stimulating a booming black market of sorts for raw milk sales.
So wouldn’t you think that the FDA might welcome a rational and workable way out of the nearly impossible burden of trying to ban the interstate sales of raw milk?
The Real Food Consumer Coalition (RFCC), a budding organization focused on encouraging community-based food sources, hopes so. It has submitted a citizen petition to the FDA proposing the agency exit the business of regulating interstate raw milk sales in favor of an explicit warning label on raw milk that would advise consumers about raw milk’s potential risks. The label would do more than just warn people about the risks, though; it would also provide information for how buyers can easily conform with FDA’s long-standing policy on dairy—by advising consumers how to pasteurize their milk at home.
The petition was submitted late last week by the Washington law firm, Emord & Associates. Its founder, Jonathan Emord, has successfully challenged the FDA on behalf of clients producing nutritional supplements and other alternative medical products.
While a number of citizen petitions on behalf of eliminating or reducing federal involvement in regulating raw milk have been filed in recent years, most by California raw milk producer Mark McAfee of Organic Pastures Dairy Co., none have taken the tack of this new petition in proposing a labeling approach. Those petitions, arguing that raw milk products aren’t especially risky, have mostly been ignored by the agency for years, despite requirements that they be acted upon within six months.
According to this new petition, “Petitioner respectfully requests that the FDA exercise its enforcement discretion to avoid taking, and to cease taking, enforcement action against those who distribute unpasteurized milk and milk products in interstate commerce when the milk products bear labels that include in conspicuous bold face type prominently displayed under the statement of identity for the product: (1) a warning regarding the health risks of unpasteurized milk and milk products; and, when applicable, (2) instructions for safe handling, including self-pasteurization.” (For details on the proposed label’s specific language, see page 2 of the petition.)
The petition argues that, “There is no need…for milk to be pasteurized before it is sold to consumers. Self-pasteurization is as effective as industrial pasteurization in reducing bacterial infection in milk and milk products…. Indeed, because self-pasteurization occurs immediately before consumption without the product remaining on store shelves or being transported in unrefrigerated vehicles to the home, it is likely more effective in eliminating harmful bacteria from milk and milk products.”
The petition may also be one of the first official tests of several executive orders issued by President Trump demanding a serious reduction in federal regulations. It cites the cases of four different farmers for whom enforcement of the interstate ban was “extremely burdensome,” thanks to FDA enforcement and other actions against them. The four farmers cited are David Hochstetler of Indiana, and Mark Nolt, Amos Miller, and Daniel Allgyer of Pennsylvania.
“Rather than persecuting and shutting down farmers like those above who provide a desired good to consumers, consistent with the President’s Executive Orders referenced above, the FDA should exercise its enforcement discretion and allow the sale of unpasteurized milk and milk products in interstate commerce when they bear the labeling recommended in this Citizen Petition.”
The citizen petition clearly aims to change the tenor and content of the debate over raw milk. That debate has mostly consisted of advocates arguing that raw milk is safe and highly nutritious, and the FDA and other opponents arguing that raw milk is so highly risky it must be severely restricted from distribution. The result is continual sniping between the two sides, with each questioning the motives and evidence of the other. The citizen petition, in my judgment, provides a workable arrangement that bypasses the recriminations that have for years characterized discussions about raw dairy.
By opting for a label on raw milk containers that provides details about the main concerns of opponents, raw milk advocates of RFCC are hoping the FDA will see an opportunity to exit the difficult regulatory position the agency has been in, and leave the tools and responsibility for handling raw milk in the hands of consumers.