The State as Deity: Even When Caught, NY Ag & Markets Can’t Admit to Possibility of Lab Test Error
Sunday, March 2, 2008 at 10:18PM 
Is the argument over raw milk one of rights or one of safety? Many here want it to be over rights. But then the best approach would be too obvious. How can a society that goes ballistic over infringing on one’s right to have guns object to one’s right to consume a food as basic as milk?
The medical and public health establishments can’t allow that argument, and can avoid concerns about rights because food wasn't afforded the same protection as guns (who knew food would come under attack?) by framers of the U.S. Constitution. So the establishment always layers the safety issue in. Then, the answer becomes muddled at best. Who can be against “safety” and “protecting" our children and elderly?
The problem in real life is that the safety argument can be extended so that pretty much anything is justified. The New York Department of Agriculture and Markets has in the last few weeks helped demonstrate the problem more vividly than any of us ever could imagine, though.
While the agency has been preparing its legal arguments over the last few weeks in preparation for trying to throw Barb and Steve Smith into jail for insisting on proper search warrant protection, Ag and Markets has quietly been playing another game with two other New York raw milk farmers, Jerry Snyder and Chuck Phippen—depriving them of their right to earn a living and depriving their customers of their right to raw milk. All in the name of safety.
Except, this time Ag and Markets was caught in the acts of both deception and unconscionable arrogance.
Here is what happened:
On Feb. 5, Ag and Markets took a sample of milk from the bulk tank of Jerry Snyder, owner of Sunny Cove Farm in Alfred Station, NY., as the agency does each month.
On Feb. 6, Ag and Markets took a sample of milk from the bulk tank at Chuck Phippen's farm, Breese Hollow Dairy, in Hoosick, NY, on the other side of the state from Sunny Cove Farm.
A little over two weeks later, on Feb. 21, the agency called Jerry and told him he had more E.coli in his milk than was allowed by agency rules—24/ml, versus a maximum of 10 allowable. This is the naturally occurring kind of E.coli, not the pathogen E.coli 0157:H7. He was ordered to discontinue selling raw milk until a new test could show he was clear.
The next day, on Feb. 22, Ag and Markets called Chuck and told him he had more E.coli in his milk than was allowed by agency rules—also 24/ml. He, too, was ordered to stop selling raw milk.
Interesting coincidence that the farms are hours apart, and wound up each having 24/ml of E.coli in milk taken within a day of the other, but the story doesn’t end there.
It turns out that on Feb. 6, within an hour of when Ag and Markets took its sample from Chuck Phippen, Cornell University’s Quality Milk Production Services (part of the university’s College of Veterinary Medicine, and funded in part by Ag and Markets) took a sample as well--from the same milk. New York’s raw milk dairies are required to have occasional testing by the Cornell unit, as an additional safety measure.
Among its tests of Chuck’s milk was an E.coli test. The result? You guessed it. No evidence of E.coli! And the Cornell lab told Chuck its test is more sensitive than the Ag and Markets test.
Both farmers were put out of business for a week, at a cost of hundreds of dollars of sales for each of them.
Wouldn’t you think that, as Jerry Snyder puts it, the circumstances are “a red flag” that something might be amiss in the Ag and Markets laboratory?
Well, Chuck Phippen asked that same question to an Ag and Markets officials, and says he was told the agency “doesn’t care what anyone else says”—that its test is the only one that counts.
I put in a request to Ag and Markets last Thursday asking for an explanation of the inconsistences in the tests on Chuck Phippen's milk. Late Thursday afternoon, at the Smiths’ contempt of court hearing, the director of the Division of Milk Control and Dairy Services, William G. Francis, told me his agency was “going through the papers” and would have an answer for me by the end of Friday. Nothing came, though.
A couple of footnotes: Jerry Snyder and Chuck Phippen were among four New York farms penalized in the last 15 months for having listeria in their milk, and publicized on the Internet. Those tests were suspect when they were carried out, and I’d say they’re even more suspect today.
Barb Smith of Meadowsweet Dairy thinks she knows where all this is headed. “Ag and Markets started the same way with us,” she told Chuck Phippen at her recent hearing. “It just gets worse and worse.”
The politicians in Washington have been using “safety” and “protection” to lock people up and throw away the key and to listen in on our phone conversations. Why should the hacks at Ag and Markets feel inhibited about running roughshod over people’s rights, and arguing that white is black, even when there’s strong evidence it isn’t.
***
More on safety comes up in the interesting article Don Neeper refers to concerning Mary McGonigle-Martin and family. To me, the most significant section of the article is this from Bill Marler, “ ‘Selling unpasteurized milk is a risk stores shouldn't be willing to take,’ he said, adding that children and elderly are at ‘extreme risk’ from pathogens that might be in such a product.” Mary and Tony come across to me as unfortunate pawns in the exercise—people who know better, but don’t mind sacrificing the cause of “healthy food” they say they support for some goal that’s never been articulated.
It all gets back to what I argued a few days ago: people like Marler want raw milk off the market, and all other foods irradiated/pasteurized/and otherwise sanitized to protect the immune-suppressed among us. In other words, keep the focus on safety and away from rights.
On the Organic Pastures front, I don’t know exactly what’s going on with the court suits and legislation. I’m led to believe, though, that the New York battles in the raw milk wars are taking the bulk of legal attention right now. To keep the legal machine going, I strongly urge you to contribute to the Farm-to-Consumer Legal Defense Fund.
Reader Comments (15)
NY Ag and Markets is damaging its credibility here. The situation is discouraging, but at the same time it's kind of refreshing to see so many people (and not always the same people who are concerned about 2nd Amendment rights) becoming aware of, and trying to overcome, infringements on their rights.
there is no other way to insure the state inspectors aren't tampering with the samples before they reach the lab.
are samples sealed with tamper-proof seals as they are taken? if not they should be, and then the lab tech would have to sign off that they received the sample "intact".
as i get into raw milk later this year/early next i'll insist on one or the other or both of these protections, and pay the independant lab fees as insurance that my milk is the best it can be.
it seems like relying on state regulators is a mistake under even the best of conditions.
As to how this war will be won...rights vs safety, as I have stated, the only way to end it with a win is rights to choice of nutritional foods...they, the regulators, can always come up with a made up safety "concern".
Bob Hayles
does the state provide detailed results of a passing test back to the farmer? if so i'd post those as well. the comparison would be interesting if not revealing imo.
raw milk from healthy cows shouldn't be a risk to anyone who is even remotely healthy. but i understand that as one ramps up production to serve an eager market quality will suffer and i think that is where the risk starts entering the equation.
milking a few cows vs. a lot of cows is the issue i believe. the few cows i'll milk will never satisify but a few customers, but that is what the market looks like to me. raw milk can't be produced by the mega-farmers and therefore will have to be a tiny niche market serving only the (lucky) few.
but for the small farmers who are diversified it looks to add a valuable and desirable product mix along with free range eggs and poltry, and artisan crops.
my milk will have a milked-on date
eggs are dated on a laid-on date
poltry will be dated with a dressed-on date.
vegatables get a picked on date
i don't like "use before" dates as they don't really tell me what i want to know.
as i learn details of milk testing costs and details of what can/cannot be tested for and as the topics dg posts about pertain i'll post what i discover.
is there any reason not to post milk purity test results in this manner? would the state object?
I am not sure which one(s), but my lab does five tests on the samples I send, and they have told me NOT to freeze the samples, but to send them either next day air or cold pack ground as freezing would make two of the tests impossible.
Bob
I believe Organic Pastures posts on his web site his lab results.
I think all the dairies should make their lab results public knowledge. I wonder how the factory dairies would fare?
And David -- It sounds like NY state requires that the dairies have backup testing from Cornell. Can they really just turn around and declare that the Cornell testing (which we require!) is hoakum (if it disagrees with our results)? If they mandate Cornell testing, how can they dismiss it? I mean legally. Ah well, I guess all of this is contested and we will find out a little at a time. Thanks again for this forum --
When I was in school, it was stressed to look at the "whole"patient, not just the initial reason that brought them in. There are many factors that can change the wanted outcome.
I know what I see when I drive by the factory farms. I do remember what Grandma's farm looked like and smelled like. Granted she had only one milk cow. My dad who grew up in the 30s on a dairy talks of the vast difference of the dairies back then to the ones now.
People see the ads for the "happy cows" grazing sporatically in a nice green pasture and they assume that pasturization kills all bacteria and that it is safe.
I believe that all dairies should be treated equally. But no one asked me my opinion. I'd like to see each dairy's counts posted routinely. I would think also, if people saw the counts, they would be demanding those dairies clean up or be closed down.