Last March, I described how agents from the U.S. Food and Drug Administration paid evening visits to the homes of two Organic Pastures Dairy Co. employees to question them about interstate sales of raw milk. The visits were follow-ups to mysterious subpoenas the women received to testify before a federal grand jury on the subject. Shortly after that, the subpoenas were cancelled, and it seemed as if, perhaps, the feds had decided to move onto more constructive pursuits, like keeping poisonous Chinese food products out of our food system.
No such luck. Pretty much whenever state and federal agents appear to have been embarrassed by their heavy-handed tactics in trying to intimidate raw milk producers, the government operatives don’t give up. They just re-group, bring on more agents and lawyers, and throw even more resources against the raw milk tide sweeping the country (all the while claiming they don’t have the resources to do anything about the tainted Chinese products and tainted factory farm products).
In California, the night-time police visits to citizens’ homes have partially morphed into a 16-page civil suit filed Thursday in federal court in California: “United States of America, Plaintiff, v. Organic Pastures Dairy Company LLC, corporation and Mark McAfee, individual.” (Mark is pictured above, with his wife, Blaine.)
Pretty amazing. I used to be awed by the implied power in such cases of the U.S. government going after an ordinary citizen, but now that I know a little more, I’m just impressed by the overall dysfunction it represents.
It turns out OPDC has been negotiating with the U.S. attorney’s office in California pretty much since last spring, and had negotiated a settlement of possible criminal charges several weeks ago, in which it admitted it had been selling raw milk in interstate commerce, and agreed to refrain from doing so for the next two years, at which time the government will evaluate its compliance.
The civil suit, then, seems to be about cracking down further on OPDC in connection with real pet food sales and with colostrum sales outside California, though a reading of the suit suggests it’s bigger than that—really, a major broadside against consumption of raw milk in the U.S. The government technically charges OPDC and Mark with selling unpasteurized dairy products across state lines. In so doing, says the government, OPDC is guilty of selling “misbranded” products and “new drugs” that haven’t undergone FDA testing.
You can read the suit further for the government’s explanations of what it means by “misbranded” and “new drugs.”
In the meantime, four things that especially stand out about the civil suit:
1. The government’s attempt to label raw milk as inherently dangerous: “Raw milk and raw milk products contain a wide variety of harmful bacterial including, but not limited to, listeria monocytogenes, e. coli, salmonella, campylobacter, and brucella, all of which may cause illness and possibly death.” Note it doesn’t say raw milk “may” contain such harmful bacteria. It is saying that raw milk does contain these pathogens, but that you “may” become ill or die. These are lawyers writing this thing, so there’s no chance they misstated their intent. And without citing any source, the suit says, “Between 2000 and 2005, there were nineteen events of illness associated with raw milk and raw milk products that involved 473 persons, many of them children and pregnant women. These events resulted in seven deaths, including three infant mortalities.”
2. The suit, by seeking a permanent injunction, makes it sound as if Mark is continuing to ship raw milk to states outside California to be used by consumers. Mark insists that he discontinued selling raw milk in other states in connection with the criminal case settleent, except under special circumstances where he can verify that it will be used as pet food. Such circumstances include sales to zoos and veterinarians. The FDA’s suit suggests that there would be nothing wrong if Mark’s milk were shipped to other states only as pet food.
3. The suit makes no distinction between sales of raw dairy products and raw colostrum. There is a distinction in the marketplace, where colostrum has long been sold by multiple producers as a nutritional supplement, with FDA’s knowledge. Mark says he continues to sell colostrum in other states, based on its classification as a supplement.
4. The suit indicates that even if OPDC makes no medical claims for raw milk helping combat certain illnesses, it violates federal law simply by linking to sites that may make such claims, or publish studies to that effect. The suit says OPDC’s website “contains numerous hyperlinks to other websites…(including one) that contains numerous claims that raw milk and raw milk products can cure, mitigate, treat, or prevent various diseases…” Since when is it a violation of federal law for a seller of any products to provide links on its web site to other sites containing research or data or articles? I thought we still had the protection of freedom of speech.
Mark says he can’t wait for the suit go to trial. “With this, raw milk has officially gained the attention of the FDA, and now I can get John Sheehan (FDA’s chief dairy person) on a subpoena and make him answer questions and perhaps even get him under oath in a deposition. This will be great fun.” Besides, he says, it’s all a big boost for OPDC’s sales. The FDA is OPDC’s best marketing tool, and it’s free.
I think the government apparatchiks keep thinking they can harass Mark McAfee out of business, and then this whole raw milk movement will dissipate and stop becoming so popular and such a thorn in their factory food paradigm. Governments make this mistake all the time. South Africa did it with Nelson Mandella. The Soviet Union with Alexandr Solzhnetsyn. They don’t seem to understand the dynamics of martyrdom. They’re picking on the wrong guy—someone who will stand up to them.
Maybe it’s time we had a trial. Get this whole sad mess out into the open–kind of a modern-day equivalent of the Scopes Monkey Trial of 1925 in Tennessee over the teaching of evolution. As Mark puts it, “The resulting court exposure will bring the media like flies to fresh organic manure.” And drive raw milk demand up further still.
For years I have tried and tried to get John Sheehan ( FDA dairy chief ) to back up his misstatements with the facts. Now we can force his testimony.
He will now have to state publically and underoath that "no person should ever drink raw milk for any reason at any time…that drinking raw milk is like plaing Russion Roulette with your health."
All the while, 40,000 people per week drink legal retail raw milk in CA. His bias will be so evident….it will shame him.
The FDA has included statements in their complaint and request for injunction that can not be supported. There have been no raw milk deaths that I can find from raw milk that was "tested and labeled as intended for retail sale and human consumption….that is zero". Sure there have been deaths from thermolized cheese called raw cheese and their have been many pasteurized milk deaths in the last five years. There may have been deaths from raw milk….but they can not be identified and they were certainly not from raw milk that was tested and labeled for retail sale. The FDA will finally have to acknowledge that CA has a thriving legal retail raw milk market and consumers immune sytems are stengthening as a direct result…
The FDA will have to admit to the tens of thousands of deaths caused by their approved drugs every year ( CDC data ). They will have to answer for childrens deaths and brain injury from cold treatments that now have black boxes on them. It will be our greatest and finest hour.
The FDA will be finnally forced to back off their trampling of the first amendment rights for sharing testimonials and the truth. The idea that "hyper links" must be restricted is an outrage against us all. CA DHS authorized OPDC several years ago to use hyperlinks to other sites to allow freedom of speech!!
I ask my president elect Obama to reign in these FDA drug pushing criminals and "change the next generation of FDA leaders". It has been said that when a paradigm shift happens there is tremendous resistance…..well this is it guys. The idea that only drugs cure or heal disease is an indictment of the FDA and its corrupt relations with the drug companies. That is a rule set forth to protect drugs pushers from market encroachment.
Anyone that knows anything about health, knows that health is directly related to nutrition ( and good excerize and avoidance of toxins ) and not the consumption of massive amounts of FDA approved drugs. Drugs that kill and have horrible side effects. Ask Jack Lalane…. ask any nutritionist, ask the Gueen of England ( who drinks raw milk ) Ask the Russian Cosmonauts stationed in Texas….Russian space nutrition policy does not allow them to consume processed milk products…they drink raw milk as a requirment….( this from a raw milk dairyman in texas that supplies the US stationed Russian Cosmonauts )
Sales have never been higher and growing every week, even in this horrible economy. Our consumers feed off of the "FDA picking on OPDC" and threatening their freedom to drink health giving raw milk. The people know the truth about the FDA.
I would not be surprized to see the FDA leadership disbanded and sent to prison on RICO charges. Bush better pardon them all pretty darn quick….just a few more weeks left to apply for pardons and Bush is being pretty tight with them.
By the way…this case was assigned to one of the best Federal judges in the nation… he has the intellegence, grit and guts to do the right thing.
I have never backed off from fighting for what is right and this fight could not be for anything more right. The freedom to eat foods that prevent disease and heal the body whole, the right to speak about it and lastly the change of a US institution that has gone terribly wrong and the people have paid with their lives.
I can feel the paradigm shifting already. The media will feed on this and we will get more media time for free than I could have ever wished for or imagined…..what a Christmas present.
For all of you that may have lost your jobs…I invite you to start from scratch and start micro raw milk dairies accross America in the real food economy. Find a city with a good population and establish just outside of it. It takes just 10-20 cows or 25-50 goats. The land and space can be rented and the cows bought by the shareholders….if you are creative you can create a job making great income ( $1200-1500 per cow per month gross ) and you have the love of your consumers that are starving for raw milk all with basically no cash out of pocket….just your leadership and hard work.
This real food economy is booming when the FDA fake toxic drug world is crashing. You can sense their desparation…
Freedon, Heath and Happiness,
From the FDA complaint, it appears that colostrum is a dairy product and, thus, cannot be shipped across state lines. It doesn’t appear to matter how much of the content is colostrum versus milk. The pint-sized actual colostrum product would apparently count as a dairy product as well.
I found the law here:
Milk and "milk products" cannot be shipped across state lines. Here’s the definition of "milk products":
*****Quote from link***
(j) Milk products. Food products made exclusively or principally from the lacteal secretion obtained from one or more healthy milk-producing animals, e.g., cows, goats, sheep, and water buffalo, including, but not limited to, the following: lowfat milk, skim milk, cream, half and half, dry milk, nonfat dry milk, dry cream, condensed or concentrated milk products, cultured or acidified milk or milk products, kefir, eggnog, yogurt, butter, cheese (where not specifically exempted by regulation), whey, condensed or dry whey or whey products, ice cream, ice milk, other frozen dairy desserts and products obtained by modifying the chemical or physical characteristics of milk, cream, or whey by using enzymes, solvents, heat, pressure, cooling, vacuum, genetic engineering, fractionation, or other similar processes, and any such product made by the addition or subtraction of milkfat or the addition of safe and suitable optional ingredients for the protein, vitamin, or mineral fortification of the product.
I don’t see a lot of gray in the law but perhaps someone else does. Perhaps they’ll challenge the ban entirely. I’m not sure the publicity will be "free" with lawyer fees and a possible settlement, but get what you can if you’re going to be out some bucks and time anyway.
The PMO ( Pasteurized Milk Ordinance– the FDA document that defines and regulates milk ) is very clear on the first page of definitions…. Milk is a lacteal secretion and must not contain colostrum. If it does it is adulaterated under the definition in the PMO and therefore not milk. This is then driven home at least six more times in the following pages….
As per FDA…Milk must not contain colostrum….if it does it is not milk.
First of all colostrum is not a lacteal secretion. Colostrum is a transfer of blood components immediately after delivery of a newborne mammal. It is a blood product and not a lacteal secretion. It can even contain blood at times and it is more orange than white.
I investiagted this thoroughly years ago and recieved letters from the FDA to confirm that milk with colostrum was not regulated as milk and was instead a colostrum product and was a dietary supplement.
I have recently found that New Zealand powdered colostrum found in health food stores all across the USA have labels that say the following:
This product contains milk.
This product is a "dietary supplement" and a non dairy product.
This product is not denatured in any way.
OPDC sent samples of powdered New Zealand colostrum to our lab to be reconstituted with sterile water. If was found to have tons of living bacteria and the phosphatase levels exceeded 3200. A phosphatase of more than 300 is considered not pasteurized and by definition… raw. Thus the FDA permits raw colostrum to be sold in America as a dietary supplement and it contains milk…yet not a dairy product.
The FDA has a big problem on their hands. Colostrum has been imported raw and sold unpasteurized for years and now they are changing their minds because OPDC does the same exact thing….!! Just in liquid form not powdered.
I do not think the FDA has the right to tell us what kind of cod liver oil we can take….be it liquid or in pills. This is flat out descrimination.
Lastly….FDA must prove injury…there has been zero injury.
Colostrum is safe from this attack…. unless the constitution is a farce and the PMO is toilet paper.
God knows maybe I am completely confused and the FDA can change their minds and brutalize us anytime they want and those are the new rules and doctrine in America.
If that is true then we have a much bigger problem than raw colostrum and CFR 1240.61.
Milk that contains colostrum is not milk under the law….unless the FDA just changed the law…do not think that they can do that all by themselves.
We will not back down on this…. this is my line in the pasture….
Does the superleche product have a separate license in CA from the actual colostrum product? If one group of regulators approved it as a non-milk, then maybe you are good-to-go.
R. Hooved Mammals Milk: Hooved mammals milk is the normal lacteal secretion, PRACTICALLY free from colostrum, obtained by the complete milking of one (1) or more healthy hooved mammals.
I looked up the definition of practically. Heres what was listed: almost, nearly, virtually, just about, or barely. The word practically would allow for some colostrum to be present and still be considered milk.
Section R did not state must not contain colostrum.
I scanned the document and did not see anything else stated about colostrum, but I could have missed it. I will read it more thoroughly tomorrow.
Also, it is worth noting that freezing, storage, and transport (food preservation techniques) result in nutrient loss (enzymes and vitamins are destroyed over time and by freezing)…these changes in foods like raw milk/colostrum are on par with boiling/pasteurization. A "fresh" product is only fresh if it can be consumed almost immediately after lleaving the farm.
The question isn’t "Is colostrum milk?" but "Is colostrum a milk product?" Furthermore, with the OP product mix that includes "Super Leche" containing 95% milk and 5% colostrum, this particular product (which is the main one promoted for out of state sales) seems to fit the definition of a milk product:
"any other milk product made by the addition or subtraction of milkfat"
I can see a much stronger argument for interstate sales for the actual colostrum product than for this more common "Super Leche" product.
I don’t actually care if any of this stuff gets shipped across state lines, it will just be interesting to see what the arguments are. More power to Mark if he manages to turn it into the modern-day equivalent of the Scopes Monkey Trial.