Morningland Dairy, the small Missouri cheese producer caught up in spillover from the June 30 raid of Rawesome Food Club, has begun a legal journey that it hopes will allow it to get back into business.
Morningland has been in business for thirty years without any illnesses, but has been ordered by the Missouri Milk Board to destroy $250,000 worth of cheese because of the discovery of listeria monocytogenes in some samples. Since the U.S. Food and Drug Administration made the original announcement about the discovery, it’s assumed the FDA has been pushing the regulatory and legal nightmare that Morningland has had to deal with over the last five months. The FDA was the organizing force behind the June 30 raid of Rawesome, in which Morningland cheese was included in the food confiscated, and in August found to test positive for listeria monocytogenes by the FDA and the California Department of Food and Agriculture.
Because there was no flexibility in the Missouri Milk Board’s ruling–all the cheese produced in 2010 had to be destroyed, and there was no re-doing a test in which company-provided samples were possibly contaminated in the improper cutting of the cheese–the company contested the state’s court order. (For background information, including the court order, see the Morningland site.)
The journey through the legal system for all practical purposes began Dec. 1, when a microbiologist was questioned by the lawyers for the state of Missouri and for Morningland.
The Farm-to-Consumer Legal Defense Fund, which is representing Morningland, provided a transcipt of the deposition, and I’ll tell you right off, it isn’t the most scintillating reading. In fact, I found I suddenly needed a nap after reading through about ten pages of the material.
But the 130-page document is definitely worth reading to understand the focus of the courts in assessing and determining pathogen contamination. And once I woke up and came back to the material, I found two pieces of testimony that stood out. The testimony is by Joseph Frank, a microbiologist brought in by the state as a listeria expert, and at one point, the lawyer with the Missouri attorney general’s office asks the expert: “If it is the Milk Board who is given that authority to make that determination and their determination was that the cheese should be destroyed, based on yur expertise, do you think that is a reasonable determination?”
To which Frank answers, “I can say yes, I think it’s reasonable that–based upon my expertise. But I have to say the–you know, the knowledge basis behind that is–you know, I–I guess I don’t think I have a lot to — to based that opinion on.”
If that doesn’t sound like a ringing endorsement for the state’s case, consider this additional answer to a question that comes up a little later in the testimony, about the possibility the cheese sample provided by Morningland to be tested was contaminated by the individual cutting the cheese, and what the implications of that are:
“If the sample is a valid sample, it tells us something about the larger batch or–or lot. So we can make the–draw the conclusion that a sample–if the sample is contaminated, the lot is contaminated. If the sample is not a valid sample, then it must be redone.” ?
There is more testimony to come from a state inspector, and then from the Morningland side. Tim Wightman of the Farm-to-Consumer Foundation, and a dairy animal expert; and Ted Beals, a retired pathologist who has testified in a number of court cases involving raw milk, are due up this week, according to Gary Gox, the FTCLDF lawyer overseeing the case. Then will come a trial in mid-January.
There was a good deal of discussion following my previous post about what does and doesn’t comprise contamination. This case will provide further insights into official determinations of contamination. And so far, despite lots of verbiage, there seems ample room for doubt about how the state and feds have handled the Morningland case.
Listeria does not grow in a cheese like an aged cheddar. It will only tend to expire as the cheeses ages. Depending on the initial population and the way that the cheese is aged, it may take more or less time to fully expire.
"Zero-tolerance" for Listeria DOES make sense in softer varieties of cheese and in fluid milk, because those are enviroments which can support the growth of listeria.
This Morningland case has enourmous potential to challenge the basis of "zero-tolerance" for Listeria. FDA is going to use all they've got to fight this battle.
btw… the "zero-tolerance" for listeria was cited by many of the agri-business interests as a reason for WI gov. Jim Doyle to veto the raw milk legislation last spring, because the bill allowed for two successive positive listeria tests before enforcement.
The CDC does not have any listeria cases associated with raw milk the CDC data reflects lots or cheese cases ( they may be thermalized as well ) and plenty of pasteurized listeria cases. This came from recent WAP foia requests from CDC.
One more thing. The cheese that Morningland was shipping to Rawesome was all PMO 60 day cheese from what I have heard. What is the beef????? Morningland should be treated like any other cheese company. That is unless the FDA and the or the state inpectors are Nazis
That is appearing to be an almost certainty. Gary Cox will make them eat their swastikas
Mark
Mark
The problem is when you have a farm with a very high P.I. count because they are not properly cleaning and sanitizing their milking equipment. For a few years I consumed raw milk from a farm that would spoil in the fridge within 6 days. It turned bitter, which I know now is probably because of pseudomonas degrading the proteins into bitter pepties. I later learned that the farmer refused to use any sanitizer because he didn't want to contaminate the milk with chemicals.
I would agree with not contaminating the milk with chemicals, but couldn't he just sanitize the pipeline and then rinse the chlorine out with vinegar? That would prevent the buildup of cold-loving bacteria.
The SPC of the milk was under 10,000, but I would not be surprised if there was occasionally listeria there. The community of bacteria living in the milk were definitely pyscrotrophic (able to grow in the cold).
There was supposedly an outbreak associated with milk from that farm. It wasn't listeria though, it was campylobacter.
I think the issue here is that it takes a large dose of listeria to be infectious. I don't know how relevant listeria is to fluid raw milk. You may be right about this one. But if its not an issue in fluid raw milk, then why is it such an issue in soft cheeses, even if they are made with raw milk? I've talked to a French cheese maker, and he seemed to suggest that they are very concerned about listeria in their raw milk brie, originating from the milk itself.
http://www.marlerblog.com/legal-cases/should-the-states-andor-the-fda-aka-taxpayers-pay-when-food-is-recalled-quarantined-or-destroyed/
cp
*The Hill* (thehill.com) has a story tonight on S.510. Here's the headline:
"In Sunday-evening surprise, Senate unanimously passes food safety bill
By Alexander Bolton – 12/19/10 07:55 PM ET"
And in the story is this:
"Reid announced he would send the legislation this time properly attached to a House-originated measure back to the lower chamber for final approval."
It's now in the House for "final approval". I say "final disapproval".
It was the week before Christmas and all hell broke loose.
Mr. J. Ingvar Odegaard
Only one more step to go til we become an utterly NUTRIENT DEPRIVED and NUTRIENT STARVED people?
http://ppjg.wordpress.com/2010/12/20/food-safety-sneak-attack-passed-by-unanimous-consent/#more-14128
Let's see the high-powered lawyers at the Fall Through the Cracks Legal Defense Fund get us out of this mess.
Speaking of lawyers…
In this season of giving and sharing, don't forget to hit the donate button to them or Mr. Marler. Dig deep and help these folks out during this holiday season so they won't have to go without, no one likes to see a lawyer starve. And i am sure they will do what they can in return, because they'll get paid even if you don't.