mark_calf.jpgLike others, I’m glad to learn that Anna and her home survived the California conflagration. (See her tale in a comment following my recent posting about Steve Atkinson.) It’s interesting that she mentions taking her raw milk and butter along with her—she and other Californians may treasure those items even more come Jan. 1, when they could be nearly impossible to obtain.

It turns out that Californians’ easy access to raw milk—it’s available in 350 health food stores and 40 Whole Foods grocery stores around the state—has been placed in serious jeopardy by a few words about a bacteria standard included in Assembly Bill 1735, a piece of agriculture legislation signed into law a couple weeks ago by Gov. Arnold Schwarzeneger, and due to take effect January 1. (I alluded to the standard in yesterday’s posting, noting that a number of Western states have adopted it.)

Also in jeopardy is the mini-empire built up by Mark McAfee, owner of Organic Pastures Dairy Co., the dairy that supplies about 95% of the state’s unpasteurized milk, consumed by more than 100,000 Californians each week. Mark has had such ambitious expansion plans that he has been negotiating in recent months with venture capitalists for millions of dollars of investment. (The photo above shows Mark at his dairy.)

By introducing new stringent limits on the amount of naturally occurring coliform bacteria allowable in unpasteurized milk for sale to consumers, the legislation could render as much as 80% of the state’s current production illegal, in Mark’s view.

Mark says the legislation represents “a sneak attack” by the California Department of Food and Agriculture, backed by the U.S. Food and Drug Administration, aimed directly at him. He says he now knows why none of his emails to the CDFA during the last four months have been answered. While there’s no direct proof of a plot against him, there certainly is plenty of circumstantial evidence.

For more than two years, he has been engaged in what might best be termed guerilla warfare with the CDFA and FDA. He is outspoken to a fault, and has thought nothing of taunting and scolding both state and federal regulators over their efforts to impede his expansion over the last decade to become California’s dominant producer of unpasteurized milk, with annual sales in excess of $5 million annually (actually pretty small by conventional dairy standards).

The FDA first targeted Mark in early 2005, when the agency sent him a “warning letter” over the practice of his 300-cow dairy, Organic Pastures Dairy Co., to ship raw milk to consumers outside California, in violation of restrictions on interstate shipment of unpasteurized milk. Most small businesses immediately kowtow to FDA warning letters, since they can open the door to federal product seizures and shutdowns, but Mark responded by slapping “Pet Food” labels on out-of-state orders and continuing to ship around the country.

Then, in September 2006, the CDFA shut down his dairy for two weeks after five children, whom the authorities say drank his dairy’s raw milk, became ill, four with E.coli 0157:H7. The authorities, after an intensive search, found no sign of the bacteria in any of McAfee’s milk, cows or around his dairy and left with their tales between their legs. Adding insult to injury, McAfee demanded restitution for the disruption to his business and the agency reluctantly settled his claims by paying him $11,000.

Last month, nearly a year to the day after shutting his farm, the CDFA claimed that the pathogen listeria monocytogenes was found in a batch of Organic Pastures’ cream, and Mark instituted a recall. In response to a request from the FDA that he help draft a press release to be issued by the agency announcing the finding and product recall, Mark inserted a statement that said, in part: “People that drink raw milk or raw cream on a regular basis have a much stronger and different immune system” than most Americans. To no one’s surprise, the agency rewrote the release, without the offending language, but Mark had a good laugh.

Earlier this month, the CDFA and FDA appear to have gotten their payback. The CDFA managed to insert a clause into new California agriculture legislation on dairy standards, based on an FDA recommendation, setting an upside limit of “ten coliform bacteria per milliliter” in milk sold unpasteurized.

What’s the problem with ten coliform bacteria per milliliter? Well, for one thing, it is way under what has previously been acceptable in California. According to an overview from the University of California, Davis, “California standard allows no more than 750 coliforms per mL in raw milk. Less than 100 is considered acceptable.”

Mark argues, “The nature of milk is that it has coliforms and it tends to have more than ten per milliliter.” He says his readings generally range between two and 100, and that no one becomes sick. (I expressed disgust in a posting several months ago about a study showing high rates of coliform bacteria in bulk tank milk destined for pasteurization.)

Mark cites research indicating that many strains of coliform and other bacteria naturally occurring in raw milk are highly beneficial, helping crowd out pathogenic bacteria like E.coli 0157:H7 and salmonella. These beneficial bacteria populate our gut and, according to some scientific estimates, provide us with 70% of our immunity to infection. (Danone Activia, the hot-selling probiotic yogurt, makes this claim on its packaging.)

A staff member of the California Assembly’s Agriculture Committee takes issue with McAfee. “Coliform comes from fecal matter,” she insists, and when I challenge her that that’s not all bad, she repeats the assertion. The new standard, which she says is promoted by the FDA as well as the U.S. Department of Agriculture, was adopted “because of recent salmonella outbreaks in Washington and E.coli outbreaks in California,” and she cites the outbreak in September 2006 as an example. When I remind her that the connection was never proven in the California case, she insists that the five illnesses were caused by raw milk. She agrees that “most coliforms do not cause disease,” but allows that “a small percentage can cause illness,” such as E.coli 0157:H7.

McAfee claims that coliform bacteria aren’t a precursor to E.coli 0157:H7 or salmonella and, besides, he tests all milk leaving Organic Pastures for such pathogens. He questions the FDA’s credibility in setting such standards. “The FDA absolutely abhors raw milk in any form and wants it abolished in the U.S. We are not sure why they hate it so much. They claim it is about food safety. The FDA has a horrendous food and drug safety history, with tens of thousands dying every year from drugs they approve ‘when taken properly.’ There is no record of any deaths we can find in the CDC records of anyone dying from organic raw milk in the last forty years.”

The California Assembly staff person agrees that studies show 80% of raw milk contains more than 10 coliforms per milliliter, but maintains that Mark “can meet these standards. It will probably take some on-farm adjustments, correcting some outdated procedures.” She lists a variety of steps he can take, such as “ensuring all equipment throughout the entire milking system is properly cleaned and sanitized after each milking.” These are step Mark insists he is already taking.

Mark promises California legislators “the wrath of 40,000 moms of all political persuasions jamming your offices. I am sure that the governor will be extremely embarrassed to find out that the Ag Committee missed the fine print and now he has to deal with an assault by healthy soccer moms holding children in their arms.”

Back and forth it goes. But underlying the debate is the difference of opinion about what causes and prevents disease. Mark argues that people should build up their immunity, and much of the bacteria in raw milk help in that effort. The FDA and CDFA take the view that we need to stamp out as much bacteria as possible, since we don’t know which is beneficial and which is pathogenic.

Mark seems to think that, once the regulators and legislators realize the error of their ways, they will make a change. The California Assembly staff official has set up a meeting for next week involving McAfee and regulators, to consider the possibility of changing the coliform requirement.

The reality, though, is that it is difficult to educate people about the true nature of coliform bacteria at varying levels. It’s also difficult to change legislation immediately after it’s been passed. It’s especially difficult if the legislation was put into effect to accomplish a very serious long-term goal—namely, to deprive as many Americans as possible of the opportunity to obtain raw milk.

I’d say it’s going to take an outpouring of opposition–those 40,000 moms, and then some—to change things around in California.