The Complete Patient

Mark McAfee had just a few hours to celebrate yesterday’s issuance of a temporary restraining order blocking enforcement of AB 1735--what he called “a big win for California raw milk and producers”—before he learned about the next phase of the government’s campaign against Organic Pastures Dairy Co.

It seems the U.S. Justice Department, in cooperation with the Food and Drug Administration, is conducting a grand jury investigation into OPDC’s sales of raw milk and colostrum sold as pet food to consumers around the country, outside of California. Two of OPDC’s employees have in the last two weeks each received a subpoena to testify in early April before a U.S. District Court grand jury for the Eastern District of California.

The employees, who take phone orders and help administer the dairy’s office, didn’t know what the subpoenas were for until after dinner last evening--just hours after the state superior court issued its temporary restraining order on AB 1735--when they received visits at their homes from two FDA special agents from its Office of Criminal Investigations.

In each case, the agents telephoned first, saying they were following up on the subpoenas, and then showed badges before asking to come into the employees’ homes and question them. The situation bears an eery resemblance to the visit by New York agriculture agents to Meadowsweet Dairy within hours of owners Barb and Steve Smith filing suit against the state last December.

Before I relate what the employees say happened next, I should say that I called one of the FDA special agents, Stephen Jackson, on his cell phone, obtained from the business card he left behind. After I identified myself and told him I was inquiring into the grand jury investigation into OPDC, he said, “I’d prefer you not call this number.” I then asked him if he could refer me to an FDA or Justice Department official who might be able to help me, but he said he couldn’t, and suggested I just call the main number of the U.S. Attorney’s office in Fresno.

One of the employees, Amanda Hall, who has worked for OPDC for about a year, said Jackson and his colleague kept inquiring into the sale of raw milk to customers outside California. “They kept saying, ‘Do you know it’s illegal to sell raw milk outside California?’” When she explained that the milk is labeled as pet food and thus okay, “They said, ‘Who told you that?’ I said I learned it from others in the office…They kept asking me if I knew it was illegal…At first they were nice and polite, but they kept getting more agitated. I think they wanted to hear about Mark.”

There was more to come. One of the agents played a tape recording of Amanda taking a phone order from an FDA agent posing as a customer, inquiring whether it was okay for the “customer’s” eight-month-old child to consume colostrum. “I said it was okay. The FDA has no regulations on colostrum. It’s a dietary supplement. And all products are labeled for pet consumption.”

And then even more: Before the agents left, “One of them asked me, ‘Would you ever consider wearing a wire? If you would wear it, you would be getting information from Mark. You could benefit. You wouldn’t be paid millions, but it would sure help you out.’” Amanda declined, and the agent left a card, saying that if she changed her mind, she should call.

The situation was pretty similar for Lizbeth Eugenia Valdes-Urbieta, who has been at OPDC for two years, except the visit seems to have been more traumatic for her than for Amanda. “I’m pregnant, and I’m a crybaby,” she says. Not only that, her husband, mother, and father were present in the house, and her mother was becoming ever more frightened as she heard the agents pressing their questions. “She asked my husband, ‘Is this legal?’ He told her it was.”

They went through the routine about it being illegal to sell raw milk outside California, she says, “And they told me, ‘Don’t worry, you’re not in trouble.’ Then they had a tape of me talking to a customer. He asked me if we ship outside California. He told me he had a son, one year old, and can he drink colostrum?” She says she told him that the children of OPDC employees consume colostrum. “They kept asking me, ‘Who told you about the pet food labels?’”

Maybe because she was so nervous, they didn’t ask her to wear a wire. “After they left, I was shaking,” Lizbeth says.

Mark says he had extensive communication with FDA officials about his pet food labeling back in 2003 and 2004, and that the agency eventually sent him an advisory in early 2005 that “there is no requirement that pet food products have premarket approval by the FDA.”

One last note: Grand jury investigations are normally secret events in which prosecutors try to convince jurors to vote criminal indictments. Witnesses who are subpoenaed have no right to have a lawyer present and can expect to be cross-examined by a skilled government attorney. The identities of jurors are kept secret as well. Mark says he and his employees decided to go public about the grand jury situation after a meeting this morning of the dairy’s dozen employees. “We’re a family here,” he told me. “We’re going to protect ourselves. Our only weapon is the truth.”

But he added that he’s being practical as well. “I’m ready for a raid right now. All the computers are backed up.”

His theory for the government’s latest action: “Our sales are going through the roof. We’re doing $100,000 a week in sales—last quarter, it was $75,000. People are going nuts for raw milk. The FDA is going nuts the other way. I’m the snake. They want to cut off the head of the snake.”