The request by California’s two raw milk producers for a temporary restraining order, originally scheduled to be heard by a state court on Wednesday, has been put off for at least until next Wednesday (2 p.m. Pacific time). It seems the state attorney general’s office didn’t submit its opposing argument until Tuesday, and the judge wanted time to review the arguments. (The dairies submitted their arguments last week.)
And by the way, the request is a bit less urgent than it was a few days ago, since the state reports that Organic Pastures cream has been allowed back on the market after passing two coliform tests March 11.
I’ve read through the state’s arguments, and my take is that, unless the judge is more well versed in the realities of pathogens, raw milk safety, and food-borne illness than we can reasonably expect, the dairies are going to have a very tough time getting their way. The state’s argument ignores or distorts key issues in making its argument—that essentially there is no sense in taking the risk associated with suspending the ten-coliform-per-milliliter standard required by AB1735. Here are the state’s main arguments, along with excerpts from its brief:
—Everyone out there is abiding by the standard. “Plaintiffs claim that there is no way for them to meet the new standard, but this is belied by the experience of producers in other states, which have been able to meet the ten milliliter coliform standard and stay in business. In Washington state there are 23 licensed retail milk operators. Only five operators violated the three out of five sample violation rate, and eight operators had no samples which violated the coliform standard.” Of course, the state neglects to point out that the other states take their samples from the bulk tank, while California measures coliforms in the bottle, where they tend to be higher.
—Who faces the greatest danger? “The court must consider whether greater injury will result from denial of the injunction than is likely to be suffered by it granting the injunction. In this case the court must balance the hardships of one dairy which cannot sell its cream but can make it into butter, and can sell its other raw milk products, the possibility that the other dairy might not meet the standard and be prohibited from selling one of its products, with the potential harm to their customers, who can possibly face life-threatening injury.” Yes, we could all be killed by the raw milk.
—The California legislature knew what it was doing. “The legislature was clearly concerned about dangerous levels of coliform in milk sold to customers, especially young children and adults with compromised immune systems. The coliform limit was a way to address this concern…it is enough that there is some rational basis for the legislature to have acted as it did.” Never mind that the legislation was passed without input from the dairies, and without debate.
There is more of the same in the state’s full argument, along with a statement from Stephen Beam, head of the California Department of Food and Agriculture’s Milk and Dairy Food Safety Branch. One example from him: “While not all coliforms cause disease, some such as E.coli 0157:H7 can cause serious illness. Furthermore, elevated coliform counts in milk suggests that unsanitary conditions exist during the production, processing or packaging of milk.”
One final note in Beam’s statement: He says that Organic Pastures’ milk products plant license expired last December 31 and hasn’t been renewed and that “the intentional manufacturing or processing for resale of any milk or milk product in a milk products plant which is not licensed by the Department is a felony per Food and Agricultural Code section 35283.”
The state is devoting much energy to this. Maybe the judge has a neighbor who’s a raw milk drinker?
ONLY 5 of 23? That’s over 20% of the dairies!
And their language! Not meeting this silly standard is said to "violate" consumers. That’s a very strong word for a test that doesn’t even represent pathogenic potential. (Remember it lumps all coliforms, beneficial and pathogenic, together.) The state deals with THAT inconvenient little fact by saying that the test "suggests" unanitary conditions. In other words, in the mind of the state, exceeding the 10 mL limit suggests a condition that, in turn, suggests a potential for creating pathogens.
This is bureaucratic baloney.
I would be interested to know if California routinely interupts the operations of 20+% of businesses in any other food production venue due to a suggestion of a condition that suggests a condition.
It’s starting to look like California is far more interested in flexing its bureacratic muscle than protecting Californians’ freedoms. That this is happening coincident with a court decision that effectively makes home-schooling illegal in California should be very scary for west-coasters, and for all of America.
The terrible thing about science is that it’s so easy to screw around with it in politics. (Example: Neglecting to mention the difference between bulk-tank and final-bottle counts.) But these attorneys have been all over this issue for months, so we can only hope they have their counterarguments ready.
This is a nailbiter, but I’m very grateful to David for keeping us up to date. And Dave – yes.
These distinctions and many others will be well presented (in writing, beforehand) and clearly argued by Gary and his California co-counsel.
Why would the butter be considered safe, but not the cream?
I don’t know the answer to your question. Obviously the state feels it is ok to sell the butter. Just goes to show how fickle the system is.
Amanda