I kind of expected Mark McAfee might have something to say in response to the California Department of Food and Agriculture’s suggestion, reported in my previous post, that he might be committing  a felony because he didn’t file for a renewal of his milk products plant license.

In an affidavit answering the state’s arguments against a request for a temporary restraining order on AB1735, and supported by a California Department of Food and Agriculture official, the owner of Organic Pastures Dairy Co. states that he did in fact file for a renewal of his milk products plant license December 14, and still hasn’t heard back, apparently because of a backlog at CDFA. The agency’s contention “is blatantly misleading and disingenuous,” he says. “Charges that my operation is somehow committing a felony is shocking and deeply concerning to me, especially when the delay and backlog is not of my making but rather stems from CDFA’s backlog.”

Nor is that all he has to say in his response. Consider this: “CDFA is supposed to be our state agency that supports our raw milk industry, by testing and verifying safety and quality. A review of the declarations and supportive documents provided to the court reveals a dark truth. CDFA wants raw milk banned completely. These are the exact words used in the supportive documents submitted that include the FDA, AFDO and others. Could a ban of raw milk in California be the true agenda? It would appear to be so. CDFA refuses to acknowledge our concerns or cooperate with us to find methods or processes to achieve the near impossible standards mandated by AB1735, standards that have no basis in measuring food safety. If food safety were the concern, then pathogen testing would be expanded. There have been no pathogens found in the raw milk at my dairy or Claravale Farms, Inc. in our entire combined 87 years of existence.”

Mark also picks apart in detail the state’s assertion that the ten-coliform-per-milliliter standard is accepted practice around the country. “Mr. Beam’s survey and Exhibit are replete with errors and insinuations. Once those errors and insinuations are revealed, it is apparent that California is not in alignment with what other states are doing with respect to regulation of raw milk for human consumption and that Mr. Beam’s declaration is disingenuous.”

Mark also reveals that, in order for his cream to pass the coliform standard last week, he had to thin it out, since coliform bacteria tend to congregate around the fat in milk. “When our cream is thinned out it does not have enough fat in it to comply with our labeling requirements, which requires at least 6 grams per serving size of 14.8 ml. Consequently, Mr. Beam does not inform the Court that we are faced with a Hobson’s choice, i.e., either produce thick cream and comply with our fat content requirement at the expense of being in violation of our coliform limit, or thin our cream to comply with the coliform limit at the expense of our fat content requirement. Either way, we lose.”

In a separate reply to the state’s argument, put together by Gary Cox, the Farm-to-Consumer Legal Defense Fund lawyer representing Mark, makes a number of legal arguments to answer the state’s assertions, described in my previous post. Perhaps most important, he asserts, “Defendants do not rebut the testimony of Dr. Theodore Beals, who declared that there is no connection between the presence of coliforms and the presence of pathogens that cause illness in humans. Moreover, Dr. Beals has declared that coliforms, by themselves, do not cause illness, only pathogens cause illness. Thus, Defendants do not rebut the fact that AB 1735’s requirement to test for the presence of coliforms does not protect the public’s health and safety.”

To back up the argument, the brief notes that “test data from OPDC for 2006 and 2007 show that coliforms in its raw whole milk product ranged from 1 to 530 and averaged 89.67, and that coliforms in its raw cream product ranged from 7 to 1,500 and averaged 525.3. At no time were any pathogens ever found in any of OPDC’s whole milk or cream. With respect to Claravale, its test data from 2001 to 2007 for whole milk showed that coliforms ranged from less than 1 to 180 and averaged 64.2. Like OPDC, no pathogens have ever been found in Claravale’s whole milk. Thus, it is apparent that the presence or absence of coliforms has nothing to do with the public’s safety or health and limiting coliforms to no more than 10 does nothing to ensure the safety of dairy products. To the contrary, the purpose of AB 1735’s coliform limit is to drive these Plaintiffs out of business because the limit is unattainable on a regular and consistent basis.

“If Defendants were serious about protecting the public’s health and safety they would impose a testing standard for pathogens, which currently does not exist. No milk in the State of California is required to be tested for pathogens! Instead, Defendants have imposed a ‘coliform’ limit when it is clearly demonstrated by several years’ worth of testing data that there is no relationship between the presence of a coliform and the presence of a pathogen. Consequently, AB 1735 does nothing to protect the public’s health or safety.”

Yeah, I’d say Mark and Gary are on to something. When you accuse your accuser of committing a felony, you are playing hard ball, especially when you are the state and you know the facts to be different. The state of California is clearly determined to put OPDC and Claravale out of business, and thereby ban raw milk. All that stands in their way is a judge who represents the state and must go along with the radical notion that his employer has a totally cynical agenda.