The Complete Patient

The Boston Tea PartyI’d like to personally thank the U.S. Food and Drug Administration for articulating its food-rights policy. I know, I don’t usually have nice things to say about the FDA, but I’m feeling appreciative because the agency has made it so much easier to explain the food-rights struggle to large numbers of people. Just to re-cap, the agency’s position, as articulated in its response to the suit filed by the Farm-to-Consumer Legal Defense Fund (described in my previous post), is three-fold:

--There’s no absolute right to any raw unprocessed food, unless the FDA says it’s okay;

--There’s no right to good health, except as approved by the FDA.

--There’s no right for citizens to contract privately for their food.

More Americans appear to be getting the message. The outcry in California against SB 201 in 2008 was a first sign. Then, of course, the people’s will was thwarted by Gov. Schwarzenegger’s veto. Over the past six months, we’ve had the popular push in Wisconsin, a state where the regulators have gone bonkers to eliminate raw milk, to pressure legislators to approve making it available from the farm; the proposed law now sits on the desk of a governor who has indicated he hears the consumer outrage (but is certainly subject to the not-so-gentle whispers from Big Dairy and the FDA).

And now, just within the last few weeks, we see a firestorm building in Massachusetts over a seemingly small but arbitrary decision by a regulator to restrict consumer access to milk. Unlike Wisconsin, which never officially sanctioned raw milk sales, Massachusetts has long allowed sales from dairy farms, and delivery to consumers by any of a half dozen or more buying clubs.

Everything was working fine in Massachusetts—more dairy farmers producing ever more raw milk and in the process creating a revival for the state’s moribund dairy industry. No hint of illnesses in over a decade.

The Massachusetts Department of Agriculture seemed to be doing its job of supporting state agriculture by encouraging raw-milk-producing dairy farmers rather than fighting them, like the regulators in neighboring New York state. Late last year, MDAR publicly supported dairy farmer Doug Stephans in his fight with state and local public health authorities and helped him gain approval to sell raw milk from his Framingham, MA, dairy.

But then something happened early this year to change MDAR’s approach. The agency sent cease-and-desist letters to four buying clubs that had been quietly and efficiently delivering raw milk to consumers who didn’t want to burn the gasoline or were unable because they don’t have cars or even are disabled, to travel the hour or two hours to dairy farms in central Massachusetts and pick up their milk. (The buying clubs essentially enter into contracts with individual consumers to pick up and deliver their milk.) The letters weren’t well received by the owners of the buying clubs, and they began mobilizing support from their customers and legislators to challenge MDAR. They argued that Massachusetts laws and regulations don’t specifically prohibit the buying clubs, making the cease-and-desist letters so much paper.

MDAR seems to have agreed, because two weeks ago it proposed a new regulation to prohibit the buying clubs. The regulation would make Massachusetts the first state in the country to explicitly ban raw milk buying clubs.

In advance of a hearing May 10 on the proposed regulation, a Massachusetts legislator friendly with the MDAR commissioner, Scott Soares, set up a meeting last Monday for the regulator to discuss with a few consumers his reasons for going after the buying clubs.

Surprise--15 consumers and farmers showed up for the meeting, and started peppering the startled Soares with questions about why he was taking an action that will inevitably reduce consumers’ access to raw milk, and quite possibly put at least a few of the more than twenty dairy farms selling raw milk out of business.

These 15 consumers weren’t just a few people off the street. They included some prominent local citizens who know how the system works—a local lawyer, a public health professional, the head of a nonprofit organization, and a high-ranking federal regulator. The latter, Hugh Kaufman, was Chief Investigator with the Environmental Protection Agency’s Ombudsman Office, among other high-level positions over a forty-year period. 

Kaufman put Soares on the spot during the Monday meeting when Soares said at one point that there was as much passion from anti-raw-milk people as from pro-raw-milk people. Who were these anti-raw-milk people, Kaufman inquired.

“He said that large dairy producers had communicated to him,” recalls Kaufman. “I asked him who they were. He said he couldn’t tell me.”

But Kaufman says Soares talked about concerns the dairy representatives have “that if something goes wrong with raw milk, it will hurt all the dairies.” (This is a familiar refrain by the conventional dairy industry that has no basis, since public health and health regulators are quick in any suspected illness from raw milk to alert consumers, in shrill terms, to the distinction between raw and pasteurized milk.)

That led Kaufman to inquire whether Soares had written any of this down. Soares said he hadn’t.

Kaufman maintains that when government officials have conversations with industry representatives while new regulations are being considered, the officials are supposed to open a docket—make a written record of what happened and when.

I should say at this point that four other people who were at the meeting with Soares have confirmed Kaufman’s account of what occurred. Moreover, I tried via phone and email to obtain comment from Soares. His publicity official emailed me Thursday asking what I wanted to inquire about. I wrote her back that I wanted his version about what was said at the Monday meeting about his contacts with dairy officials. I didn’t receive a response.

Kaufman thinks he understands the problem: “Soares couldn’t handle 15 knowledgeable people. In the process, he opened up a pandora’s box. Now his legal problem is that he is hiding from the public the names of the large business entities, that he is meeting with, who are pushing him to restrain trade. As well as hiding from the general public, the fact that he's being pushed by these business entities in the first place. Not making a public record of these ex-parte discussions with the big dairies lobbying him to harm their competitors, during an Official Government Rulemaking, is NOT legit.”

I’ll add to Kaufman’s impressions. We know that the FDA and Midwest agriculture officials have targeted raw milk buying clubs—the case of Wisconsin buying club owner Max Kane and the pressure to force him to testify about where he obtains his milk and who his customers are is a direct result of the official crackdown.

What MDAR’s Soares seems to be saying is that the dairy industry is part and parcel of the campaign to hamper raw milk distribution by cracking down on buying clubs.

And now we have the official FDA policy to not only limit access to natural foods it deems dangerous, but to oppose private contracts (such as via buying clubs).

At least it’s all out in the open. Now it’s up to consumers to let the regulators and politicians know how they feel about this joint government-industry enforcement campaign to deprive citizens of health-giving foods of their choice. The next big opportunity comes May 10, at 10 am at 100 Cambridge St, Conference Room A, 2nd Floor in Boston, Mass. Come one, come all. It’s all within shouting distance of where the real Boston Tea Party took place.