When I sat down in the hearing room for the opening of the raw milk testimony in Connecticut (described in my previous post), there in the row behind me was New York raw dairy producer Chuck Phippen. (He’s the third from the left in the photo at right.) I first got to know Chuck nearly two years ago, when his Breese Hollow Dairy had one of those highly suspicious positive readings for listeria in its raw milk. He received the usual treatment—forced to shut down all sales of raw milk, endure the humiliation of a state-issued press release, and hit with a $300 fine.

It turns out that Chuck has since had two more listeria findings in his milk since the spring 2007 occurrence, the most recent of which occurred last September. One of the reasons he traveled to the Connecticut hearing was that he wanted to see what happened to the part of the pending legislation to prohibit retail sales that would also make a third finding of a pathogen in a raw dairy’s milk a Class A misdemeanor.

“If this were the law in New York, I’d be in jail right now,” he told me. (Do you get this feeling, what with what’s happening to Sharon Palmer facing a felony over goat’s milk in California, and the Connecticut proposal, that maybe the authorities are trying to tighten the screws just a little bit?)

Actually, Chuck has been fighting a low-level guerilla war against Ag & Markets to contest its findings.

He has refused to pay the fines and, most recently, is seeking some kind of administrative hearing to publicly challenge NY Ag & Markets rules on listeria. Among his contentions, as stated in his most recent letter to the agency, Nov. 28, 2008, challenging the fine:

–The level of listeria is important. Any number of scientific studies have concluded, supported by the U.S. Food and Drug Administration, that the simple presence of listeria in any food doesn’t necessarily indicate a danger to otherwise healthy people. The amount of listeria needs to exceed some unknown threshold. (From FDA: “For most healthy people, a moderate dose of Listeria bacteria on an ingested food is not likely to cause illness. The scientific community is still uncertain how many Listeria organisms it takes to cause illness…” As Chuck points out, NY Ag & Markets doesn’t do a quantitative test, since it’s one listeria cell and you’re out.

–Listeria is not known to have ever caused an outbreak of illness from raw milk, based on the Centers for Disease Control’s report on illnesses between 1973 and 2005. “If the CDC had been concerned about listeria in raw milk, it would have been listed,” wrote Chuck.

–Listeria has been shown to occur in 2% of all pasteurized milk. A 1988 CDC report noted, “Two percent of pasteurized milk samples from more than 700 U.S. milk-producing plants were culture-positive for listeria species, primarily L. monocytogenes.”

–The variety of listeria is expanding all the time. According to Chuck, there are currently 6,800 known isolates. “Just because listeria is there, so what?”

The Farm-to-Consumer Legal Defense Fund is providing Chuck with assistance in moving his appeal to some kind of administrative process, so the issue can be aired in public.

In his letter, he concludes, “Not one person consuming milk from Breese Hollow Dairy has ever even felt sick…Therefore, how can a fine be imposed for adulterated milk? According to Section 200, food is deemed to be adulterated ‘if it bears or contains any poisonous or deleterious substance which may render it injurious to health.’ The state has not shown that there was a ‘poisonous substance injurious to health’ since neither the FDA, the CDC, nor Breese Hollow Dairy itself has found any report of sickness.”

At the hearing Monday, Chuck told me, “This has nothing to do with public safety…It’s really sad that they try to tout public safety.” No, I’d say we’re talking about witch hunts, and last I heard, witch hunts haven’t been linked by local authorities to public safety since the Salem Witch Trials of 1692.