In CA AB 1735 Conflict, You Can't Tell the Players, or the Plays, Without a Scorecard, and Even Then You May Be Confused
Wednesday, January 2, 2008 at 10:24PM 
It all adds up to a highly fluid, and confusing, situation. Here is my understanding of the key developments:
-- Gov. Arnold Schwarzenegger’s office today sent out a highly misleading response to the many hundreds of individuals objecting to AB 1735, the ten-coliform-per-milliliter standard for raw milk that took effect yesterday. Henwhisperer posted the text following yesterday’s post, and a number of readers emailed it to me as well.
The key paragraph is this one: “Raw milk has been known to be a source of foodborne illness for decades. For example, in September 2006, the California Department of Public Health linked six cases of infection with the deadly E. coli O157:H7 to the consumption of raw milk. The median age of the victims was 8 years old. In recent years, illness outbreaks have been attributed to raw milk consumption in several states. In fact, raw milk sold for direct human consumption is illegal in all or part of 42 states.”
I mean, where do we begin in punching holes in those statements? The most distressing phrase is the “six cases of infection…” sentence. Per my Sunday posting, the California Department of Food and Agriculture paid more than $11,000 to Organic Pastures Dairy Co. last July because it couldn’t prove that statement, yet the state’s Department of Public Health, and now the governator’s office, continue to throw it around.
-- The Farm-to-Consumer Legal Defense Fund lawyer representing Organic Pastures and Claravale Farm, Gary Cox, is currently drafting a letter to be sent to the California attorney general’s office demanding that the governor’s office “cease and desist” from spreading the lie about six children being infected with E.coli 0157:H7, says Mark McAfee of OPDC. “These are unfounded statements,” he says. The governor’s office “knows nothing about the settlement” between OPDC and CDFA from last July, he adds. “It’s the fish story that never ends.”
-- The claim by Aajonus Vonderplanitz, the veteran raw-milk advocate, in his widely distributed email on Sunday that “raw milk will not be on your shelves in California very much after January 1, 2008,” has caused at least a minor uproar. Mark reports that “a few stores got flustered {by the email} and took (Organic Pastures) raw milk off the shelves.” He says he was able to explain to them that AB 1735 isn’t an outright ban on raw milk, but rather “a process” that over time could make raw milk less widely available, and got the milk restored to grocery shelves.
--The Farm-to-Consumer Legal Defense Fund and the Weston A. Price Foundation are both claiming that Aajonus erred in stating that the suit filed on behalf of OPDC and Claravale was flawed for not seeking some kind of immediate injunction. According to an email sent out this evening by the Fund:
"The Legal Defense Fund did not couple its complaint with a motion for preliminary injunction or temporary restraining order because its complaint was filed before the statute went into effect. Because AB 1735 was not in effect until January 1, 2008, seeking relief in the form of a temporary restraining order or a preliminary injunction would have been dismissed as not ripe for review. Contrary to erroneous claims made by the misleading email {from Aajonus} the Fund is prepared to seek preliminary injunctive relief if the State chooses to enforce the law against either Claravale Farm or Organic Pastures. If the State decides not to enforce the law, and allows the legislative process to take its course, these farmers are protected and can go about their business as usual."
--Finally, Mark says he has evidence that other states cited by CDFA as having a ten-coliform-per-milliliter standard aren't enforcing it. He says he has filed Freedom of Information Act requests for actual coliform test results in several states to document the matter.
All the preceding may have the appearance of a three-ring circus, but in actuality, something very important is going on here. A large and diverse group of citizens has become very engaged in exposing a government sleight-of-hand for what it is. The sneak attack that led to AB 1735 was well planned in many respects, but I'm not sure it took into account the kind of uproar it has created.
Reader Comments (23)
“Actual malice” means that the perpetrator Schwarzenegger’s publication was not merely negligent in harming his victims—which marks the threshold for an actionable defamation lawsuit—but was made with actual malicious knowledge of its falsity or in reckless disregard for the truth.
No reasonable juror would believe that the governor’s office “knows nothing” about the July 2007 settlement the CDFA paid to OPDC following the CDFA’s false recall against OPDC in September 2006, wherein the CDFA’s Dr. Richard Breitmeyer quarantined the dairy in spite of every single sample of raw milk having already tested negative for E. coli O157:H7.
An adequate beginning level of response to Schwarzenegger’s inflammatory and bizarre attack against his own state’s perfect 80-year history of raw milk food safety would be as follows:
1. Mr. McAfee must immediately deliver a signed, certified letter to Schwarzenegger demanding a retraction of his libelous publication.
2. Schwarzenegger’s retraction must be "substantially as conspicuous" as his original defamatory publication. Said another way, Schwarzenegger must mail a written retraction of each and every malicious lie to every single person, media outlet, or government agency to which he sent his original defamatory publication.
3. If Mr. McAfee fails to demand a retraction from Schwarzenegger, then he would be limiting himself to a recovery of only “special damages,” or specific monetary losses caused by Schwarzenegger’s libelous publications. He will have sacrificed his right to recover punitive damages against Schwarzenegger for his willfully malicious and fraudulent misrepresentations.
4. A trade libel action should have been filed against the California Department of Public Health and is now long overdue.
Obviously the CDFA’s payment of $11,418.50 to Organic Pastures Dairy Company for inflicting the September 2006 false recall and false accusation of E. coli O157:H7 food poisoning was a grossly inadequate settlement for specific monetary losses that were, according to an inside source, in the range of $250,000. And that did not include any losses Mr McAfee or OPDC suffered due to fraud, conspiracy, defamation, intentional infliction of emotional distress, etc.
Let’s hope that Mr. McAfee’s legal representation quickly learns that the State of California is willing to spend literally millions and millions of dollars of our own taxpayer money to destroy you, me, or any business they wish to destroy—and that he will quickly upgrade his legal strategy accordingly.
A review of the fact pattern of escalating incidents perpetrated by the state against OPDC since September 2006 suggests that in addition to violations of fundamental constitutional rights, a RICO action (Racketeering Influenced Corruption Organization) complete with treble (triple) damages, attorneys fees and costs would be an appropriate next step to consider.
An actual comparison of contaminated raw vs pasteurized dairy in the US for a specific time period, say 1980 to 2007 and include the conditions of the majority of dairies, what the cows eat,the drugs injected into the cows and the fodder.. Pictures say a 1000 words. As someone posted, most people, when they think of dairy cows, they envision the "happy" cows sporatically standing in a green pasture munching on grass. We know that is NOT the true environment/feed of the factory dairies.
Rushing into a legal action with guns blazing over libel and other claims may be an option, but what would it solve?
It would simply create even more animosity between the parties which is not the way to solve a problem. It appears that the raw milk producers are aiming for changing the law so that raw milk is available and safe. If it come to filing an injunction it appears they are ready. They are trying to win a war, not just a battle. Slow and steady can win the race.
Also, just filing actions to "cause the government to spend lots of time and money" is just poor tactics as it is our taxpayer time and money we would be wasting!!
I agree and applaud a lot of the attitude and work that Aajonus has done, but I also think that he sometimes doesn't appreciate the subtlety that is necessary in practing law. He isn't a lawyer, although he is well versed in many of these legal issues. I don't agree with some of his dietary principles, but he has done a lot of hard work protecting the rights of citizens to obtain healthy food.
I consider that part of the strategy. Taxpayers are already up in arms at the staggering amount we pay in taxes. Let the government 'spare no expense' in fighting these good, hardworking taxpaying Americans (OP and Claravale) who are contributing significantly to the local economy and tax base. Let people who don't really care about the issue of raw milk GET ANGRY that their government is so foolishly spending their hard-earned money. The harder the state of CA fights, the more bad publicity (because of the money they're spending) they will get.
Right now my husband is outside with the delivery man from OP. Currently our refrigerator is stocked with fresh milk. Personally, I'd like it to stay like that. But it seems that the state will be doing all they can to prevent that from happening. And yet, really, what good are all our letters and petitions to the state doing? If misinformed (or maliciously intending) lackeys in the governor's office are sending out mass emails of the kind from yesterday, how can we, the consumers, just trust that things will be ok?
As for listeria, did I understand correctly that pasteurization does not kill it??
maria.
And you know the words "Press Release" get my attention! :-) I've done several press releases on raw milk related issues for the Raw Milk Organization of Ohio and a couple of individual farmers, and would be more than willing to share my experience and knowledge. Feel free to write me directly anyone would like some help or advice.
If anyone is interested in viewing where I think these facts are coming from, do a search—California Communicable Disease Summary Tables. When you find the page, type in September 2006.
On page one of this report, you will see figures for the month of September 2006, 2005 & 2004, as well as figures for the year to date.
E.coli 0157:H7
•30 people were infected in the month of September 2006
Outbreaks of Foodborne Illness
•6 people month of September 2006 (doesn’t specify type of outbreak or type of illness)
Cases of Foodborne Illness
•124 month of September 2006
I think this is where the figure of “6” is coming from. However, based on previous media reports, I think there are 4 the children who all drank raw milk and 2 whoate Dole spinach. The FDA press release states 2 people became ill in California from Dole spinach.
The original reports of both outbreaks were days apart from each other.
At year end (2006) in California, 243 people were reported to have e.coli 0157:H7 infection, 146 people were involved in some sort of foodborne illness outbreak and there were 1974 cases of foodborne illnesses statewide.
My questions: What qualifies a person to be placed in the “outbreak” column? What is the definition of an outbreak? What factors are used to determine it was an outbreak?
You have done a HUGE amount of research in this matter, can you answer a question or point me in the right direction? Your reply above said:
E.coli 0157:H7
•30 people were infected in the month of September 2006
Outbreaks of Foodborne Illness
•6 people month of September 2006 (doesn’t specify type of outbreak or type of illness)
Why are the "E.coli" and "Foodborne Illness" not considered the same thing? Aren't almost all cases of E.coli from food? What's the explanation for this?
Thanks for any answers to this puzzling question.
Lovely, another chemical added to our food chain.
"Let’s hope that Mr. McAfee’s legal representation quickly learns that the State of California is willing to spend literally millions and millions of dollars of our own taxpayer money to destroy you, me, or any business they wish to destroy—and that he will quickly upgrade his legal strategy accordingly."
My own experience with a civil suit against my government, on 5th Amendment (and other) grounds for violating my property rights (including committing 5 felonies during the cover-up) taught me that the government (read: civil servants with their own agenda) will pause at nothing, no matter how much taxpayer moolah it costs, to cover their a$$e$, bankrupt the plaintiff (me) and stick it to whosoever dares challenge government authority to suck up to whatever contractor or corporation lines their (civil servants', elected officials') pockets.
Sylvia: The government is funded by the taxpayers. "[H]itting the govts with large $$$$ suits" accomplishes nothing unless one is prepared to spend millions, and many years, battling to a favorable verdict, including at the appelate level. The LATimes published an article ( http://tinyurl.com/2sh49y) on January 2nd, about the federal judiciary, and its pro-corporate bias. In addition, I point out that the media is totally in hock to corporations like Monsanto. Good luck trying to get the media to report this story honestly.
cheryl: The majority of citizens of California will never even know about the OPDC law suit, nor the cost to the taxpayers of the State's actions. The media will not inform them, or if it does, they will slant the story in terms of fear of germs. The civil servants responsible for this have an agenda far removed from their legal duties. They have sold themselves out to Monsanto, whether due to financial arrangements or the fear of losing their jobs and health insurance should they blow the whistle on their bosses at CDFA and other CA agencies.
Brit: We can't trust the government in this case. We must fight back. This may be the test case for banning raw milk in the US. Follow Eileen's advice.
Is there a breakdown table somewhere which shows how many people became ill due to food poisoning from which sources? Is it safe to say that such a table would show that raw milk, as a source, is way down at the bottom of such a list? This is the kind of information that is needed to counter the state-sponsored propaganda.
Steve is right. Make noise, or drink dead milk.
Maria - Weston A. Price Foundation just issued a press release criticizing the letter you got from the Guv. Anything from that press release would be quotable. Mainly, though, expressing your disappointment, in your own words, about how the public is being treated in this matter, would be most effective. Emphasize your personal interest in raw milk, and your fundamental right to choose what you eat and feed your family, without Government censorship of that right. Being real and being counted are almost more important than the technical specificity, or the length, of what you send in. There is nothing more effective than lots of heart-felt letters pouring in from pissed-off parents who have been frustrated in their ability to do what they feel is right for their family in this critical arena of nutrition.
Basically saying all that has been said here. I could have written that press release, lol.
I could not have written it without this very helpful blog, so thank you David!! I also put the letter on my blog, really nothing special, and interspersed cooments from here with links of course and attributions. I hope that is ok.
I wanna see what Mr. Ripley has to say for himself now.
I hope you all respond, even if you did not get the letter. It would be great to post this letter on a public forum (here David?) and expose the absurdity of it.
maria.