Latest Raw Milk Legal Follies: Hey, Hey, FDA, Can I Bring Some Raw Milk Home Today?
Wednesday, July 28, 2010 at 08:12AM 
Okay, I never pretended to be a poet. But I was prompted to try some alliteration because of a new development in the Farm-to-Legal Defense Fund case against the U.S. Food and Drug Administration in federal court.
This case is still at such an early stage that an FDA motion to dismiss hasn't been decided, but I would venture that the judge, Mark W. Bennett, is beginning to raise his eyebrows a bit about the sanity of this world of raw milk.
The judge in the last few weeks heard arguments via phone from the two sides about the FDA's motion to dismiss the case (already famous for its "no absolute right...to any particular food" claim). Now, the FTCLDF has filed a "motion to admit newly discovered evidence" in the case.
The evidence is a series of emails between a reporter with Iowa Public Radio and an FDA press official in which the FDA first admits it's okay for consumers to transport raw milk across state lines, and then changes its mind.
The reporter, Sarah McCammon, in late May inquired into the FDA's position on consumers bringing raw milk from a state where it can be sold into a state where it can't be sold. The FDA press person, Michael Herndon, at first put off the question: "We don't comment on on-going lawsuits publicly."
Three weeks later, McCammon came back with another tack: "One factual question--is it illegal to purchase raw milk in a state where buying raw milk is legal, and bring it into a state where raw milk sales and purchase are illegal, for one's own use?"
To which Herdon responded the same day: "Illegality is introducing the raw milk into interstate commerce. Federal regulation prohibits the introduction into interstate commerce of any unpasteurized milk product in final package form, intended for human consumption..."
To which McCammon stated: "OK, that's pretty technical language--would it be illegal for me to buy raw milk in Nebraska (where sale is legal) and bring it back to Iowa (where sale is not legal)?"
Which elicited this surprising admissions from Herndon: "The federal law prohibits the sale and transport of raw milk products across state lines. It does not prohibit an individual from purchasing a raw milk product for personal use so the answer is no."
McCammon, quite understandably, didn't fully believe what she was reading, so tried to confirm: "So an individual can purchase milk for personal consumption and bring it across state lines for his or her own use?"
At which point Herndon must have become uneasy about the information someone at FDA was feeding him, because a few hours later he wrote: "After discussing your question with others here at FDA my interpretation of the law was totally incorrect. As you are aware one of the issues of the pending litigation in Iowa speaks to this very question so it would be inappropriate for me to respond while the case is pending. I apologize for any confusion my previous emails may have caused you because of my ignorance of the facts. I suggest that you read the government brief in the Iowa case..."
Herndon is an experienced and professional press person, so one can only begin to imagine the tenor and tone of conversations he was having with different officials within the FDA, but they can't have been very pleasant...or logical.
It should be noted that the actual FDA position stated in its first response to the FTCLDF suit last April was somewhere in between the two positions Herndon suggested. It noted that “the government has neither brought nor threatened to bring a single enforcement action against consumers who purchase unpasteurized milk for personal consumption or retailers of such products who do not engage in interstate commerce.” It thus seemed to cast itself as benign dictator.
The FTCLDF in its request to admit this late evidence says that if the FDA's motion to dismiss is upheld, FTCLDF "would need to conduct discovery on the FDA's change of interpretation" on the prohibition of interstate raw milk sales.
To say that the U.S. Food and Drug Administration is an opaque agency is an understatement. Maybe because it has screwed up so often in approving drugs that later turn out to be highly dangerous, its officials are not inclined to speak out or, when they do speak out, to depart from the party line.
That's why the confusion about the interstate raw milk prohibition is so noteworthy. More likely, it's not confusion but rather disagreement within the agency about what it can and can't do. We may be seeing the interstate prohibition on raw milk shipments crumbling before our eyes.
Reader Comments (27)
FALSE.
Raw milk cheeses intended for human consumption, which are aged over 60 days and meet certain standards of identify regarding fat, moisture, and salt, can be introduced into interstate commerce in their final packaged for the consumer.
Seems that FDA can't even keep their own rules straight.
The key here is "in its final packaged form for the consumer."
Mary Falk of Lovetree Farmstead in Northern WI has been legally transporting raw milk cheese UNDER 60 days, across the WI-Minnessota border for over 10 years, and selling these cheeses at the Minneapolis/St. Paul farmer's market. Her trick? The cheeses are NOT in their final packaged form for the consumer when they are moved across state lines. She cuts all cheese to order at the farmer's market. She also and labels them as "fish bait -- not for human or livestock consumption."
If you call the cheese "pet food" you are required to get a commercial feed manufactuers license, which DATCP won't grant to you because they know you are selling raw milk products. So instead she labels it as "fish bait", which puts her under the jurisdiction of the Dept. of Natural Resources which has no licensing requirement for the production of fish bait (they just like it to be bio-degradable).
There is actually a WI DATCP regulation which I believe was created because of Mary Falk. ATCP 80.70 entitled "Dairy Product Labeling."
Mary also won the Best of Show at the American Cheese Society in 1998. She left ACS in recent years, however, because it is being increasingly corporatized, and because of the failure of ACS's Raw Milk Cheesemaker's Association to do anything proactive about the issue (they are content with leaving the 60 day rule intact).
They just shot a pregnant cow 11 times...they are not the cow boys they think they are...they know nothing of anything and they are damn dangerous. Cows get out all the time at OPDC...we have never ever been attacked by a cow. This cow was at the State Fair to show the fair attendees a live birth of a calf....the calf also died by the hands of the cops.
May all hell break loose on this stupid ass cop and the department that defended this shooting. This is an unarmed pregnant mammal. The Hindus say that "the cow is the Mother of the Universe...she feeds us all and takes nothing".
Today she and her baby gave everything.
http://www.news10.net/news/local/story.aspx?storyid=88143&catid=2
There is something very wrong with police training...their solution always comes from the end of a gun. Sounds very much like the FDA...the FDA solution... kill everything also!! Sounds like a match...sick bastards!!.
Mark
http://www.wall-of-shame.com/offenders/buddy/
When a "pet deer" was killed ( murdered ) in 2000 in Oakhurst CA by a CHP officer the lies produced on his reports directly conflicted with fire department personnell and other citizens that were at the scene, it was an outrage.
The CHP officer was relocated but not fired even though he filed a false report and lied. Cops cover the cops and they have no ethics or morals as a group directly because they refuse to distance themselves from their own dangerous human waste. I know that most cops are very good people...but if this is true then why do they all stand behind each other when the 1% criminal element inside law-enforcement goes crazy. That makes all of them guilty as hell.
We have a very seriuos problem in our country....we give our trust and right to point and use guns to crazy people and then we give them the authority to use their judgement on the citizens, cows and pet deer living in our communities. We obviously need to have a much better training process and selection process when it comes to hiring police and armed enforcers. We need confident and socially stable thinkers not robots and lemmings with no heart or morals.
We will get more of this same officer miss-conduct unless we as citizens insist on "Use of Force Citizens Review Boards" with some teeth and authority behind their bark. We the citizens are to be blamed because we are the ones that sit on juries and allow these monsters to stay out of jail or just be relocated to some other place to continue their abuse.
We the people...deserve police abuse...because we the people created and support this kind of policing. I am not one of those supporters. I do all that I can to compliment good police behavior when I can and absolutely document and object to bad police behavior when it is appropriate.
Keep those I phones and video cameras ready to roll.
Any of this kind of conduct if done by one of the citiznes would fetch a serious jail term...cops do not get anything!!
Who's fault is it....ours...we tolerate it and the juries fail to make change happen. It is the people that create societal norms and allow for police culture.
Mark
Last week was a very big raw milk week for Little Humble Humboldt County in the far north west corner of CA.
I arrived in our airplane at Rohnerville Airport last Thursday morning just at the eastern edge of the fog bank that shrouds the CA coast line and the cities of Arcata and Eureka in Humboldt County. With me was Nathan one of our farmers market employees to help with the camera work and educational outreach. We have great footage for our You Tube we are producing about this change of law in CA.
We met with Jeff Dolf, the County Agric Commissionor, Susan Buckly, the County Health Director, Bonnie Neely, one of the Board of Supervisors, Mark Lovelace, another one of the Board of Supervisors. We also met with five of the retailers in the area. They all begged for a change and wanted raw milk badly in their stores. Each reported that their is a thriving underground local blackmarket for raw milk.
Then we met with the people and had two Share the Secret presentations about raw milk and made some Raw Milk Icecream using 12 raw eggs from Alexander Ecodairy Kids chickens and OPDC raw cream and raw milk...that was a home run.
Extreme deliciousness....obsolutely.
The citizens of Humboldt are forbidden from buying raw milk in Humboldt. They instead sneak arround like criminals and get their raw milk from speak-easy sources.
2200 citizens signed a petition to have the Board of Supervisors hold a hearing on this issue and behold...on August 24th at 0930 hours the BOS will hear the people speak. It is hoped that with all of the work being done that the ordinance 512.5 will die away into dead milk history and living foods will again be available to 130,000 more citizens of CA.
I am flying back up to Humboldt on the 23rd ( it is a 10 hour drive but only a 2 hour flight ) of August for another round of helping change this old dogma rule. Humboldt is beautiful and cool...one of the current hearing agenda topics is how to manage the local Marijuana crop....
Fancy that....Marijauna is a A-ok....but not a drop of raw milk.
How sick we truly are.
More to come....
Mark
Bob Hayles
No way to allow the sale of raw milk. {A "lawyer says"]
The problem for the Jackson Hole Grocery is the unseen line dividing Wyoming and Idaho. Cross the line and they break the "law" HMMM the problem is the line the state line.
HMMM This fellow notes the wild claims that folks make about the benefits of raw milk one wonders if he has read about the wild claims of Dr Barbra Starfields report on the horrific far worse results of the medical folks these days.
The Sacramento cow shooting brings a whole meaning to "holy cow".
Chasing a cow in a truck with a siren blaring will certainly make a cow anxious!!!! cow calming requires a calm heart...something cops know nothing of. The damn fair grounds were empty when they chased the cow with sirens blaring.
When all problems are targets and all answers bullets...some one is going to get shot. This is all bad Karma.
The Fairfield County Food Examiner has an extremely lazy editor....they never bothered to call some one with the other side of the story. Not one consumer or legal raw milk producer was quoted or cited.
Another...piece of FDA, Big Dairy protectionist dogma garbage.
I can just see now....when Stanford publishes the anticipated Lactose Intolerance study results...what are they going to do....chase cows with sirens blaring. They have no tools to deal with science or public opinion that conflicts with their dead dogma.
Mark
We did not have police forces when this country was founded. They came to ascendancy with the rise of the fascist state. They have the character and behavior of a occupying military force. They are not here to protect us and neither are they obligated to. There are many carrots and sticks used in this country to keep us subservient; though the police like to use guns and tasers as much as sticks.
and lindys right why aren't the fda and the cdc going after tobacco producers and sellers.
Mark,
In science, we don't know the outcome of the study until the data is collected and analyzed. When Stanford finishes the study, we'll see if the results are what you anticipate from the anectdotal stories; if so, then the scientific community should accept the findings and add them into the risk vs. benefit equation. But, what will you or other raw milk advocates do if the Stanford researchers end-up finding no difference between raw and pasteurized milk among persons with lactose intolerance? You know, it could go either way - that's what is exciting about science - discovering something new.
MW
I must agree with you. I must with-hold my opinion of research until it is concluded. No one knows what it may say...no one.
Please note....I did not actually say what the results would be....
All I know is that we have tons of people in CA that get gas cramps and diarrhea when they drink pasteurized milk but do fine with our raw milk. All I know is that when Dr. Beals studied this same issue in Michigan it was found that a majority of people that self diagnosed themselves as Lactose Intolerant could drink raw milk just fine.
So I will await the findings and not predict or suggest the conclusions.
Thank you for commenting...
Mark
Dr. Beals 2007 Michigan study of 731 homes with 2500 people showed that 81% of those that had been labeled as lactose intolerant did not have those symptoms when drinking Fresh Unprocessed Milk ( Raw Milk ).
http://webcache.googleusercontent.com/search?q=cache:IihJHTrBqoIJ:www.realmilk.com/documents/LactoseIntoleranceSurvey.doc+michigan+lactose+intolerance+study+dr.+beals&cd=2&hl=en&ct=clnk&gl=us
Thank you Dr. Beals for some good science...we hope that Stanford will back you up and even more.
Mark
That is wrong, and easily proven wrong. Either you lie to further an agenda, or you care so little about the truth that you don't bother to do any fact checking. Either way, it makes anything else you say suspect.
'
The US Marshall's Service was established in 1789, followed by the US Parks Police in 1791 and the US Mint Police in 1792. The first city police services were established in Philadelphia in 1751 (note this is prior to the revolutionery war, definitely BEFORE this country was founded), Richmond, Virginia in 1807, Boston in 1838, and New York in 1845.
Organized, municipally paid law enforcement, in the form of "watchmen" was even earlier...Boston in 1631 and New Amsterdam (later New York City) in 1647.
These are just early police departments and federal law enforcement...it doesn't take into account early frontier justice.
Check your stuff before posting...your credibility might climb a bit.
Bob Hayles
Thanks for increasing the accuracy of the Beals data and my comment.
Also...I do not think that the police forces in 1700's ever completed a POST acedemy with its brain washing and shoot everything SWAT mentality....the police were made up of "volenteers" from "we the people". "We the People" also all carried guns and shot back when a stupid cop did something really stupid. That was called "self defense".
Now "We the People" are unarmed and killed at will by the 1% of the bad cops that carry an agenda and brain washing training.
The question is this....how do we break the "blue line protectionism" of the bad cops and still protect the good cops. When bad cops and their criminal behavior is protected by the good cops....that makes all cops criminal. There must be an outside investigation system that does not rubber stamp all abuse of force as justified.
This rubber stamp policy is a government management tool to protect municipalities from writing multimillion dollar checks for bad cop screw ups!! we the people need to start slapping multimillion dollar judgements against the bad cops in civil courts. When the Dinuba Police department killed an unarmed grandfather in his own bed in a hail of machine gun fire...they had to write a $6 million dollar check and there is no more Dinuba SWAT team.
http://thefiringline.com/forums/archive/index.php/t-26055.html
The people will control their own destiny....if they would start taking control of their own destinies and that includes their police departments, their hiring and management, shooting policies and termination policies. Ignorring the police will allow the worst to just get worse. They protect themselves. i know....I worked along side the best and worst of them for years. I heard them say before they would enter a house on a raid, things like..."we will not need the medics"....they will all be dead. This was something that I would not put up with as a Paramedic. It is my hope that the protests of this kind of behavior made changes occur over time....but there is that element of "billy-jo bad ass cop" that is really sick. I wish the good cops would not put up with it anymore. It makes them all bad when they do.
Mark
I wasn't arguing training or tactics or attitudes...I was responding to pete's inaccurate statement that, "We did not have police forces when this country was founded. They came to ascendancy with the rise of the fascist state." As shown, that is a factually inaccurate statement.
You compound the misinformation with your statement "...the police were made up of "volenteers" (sp)...
No, they weren't...even so far back as the watchmen in the 1600's. They were a paid force, police in every way except the name "watchmen" rather than "police".
I'm not arguing training or attitude...this is hardly the place. I'm just pointing out posted falsehoods used to further an agenda. I know you, of all people, understand using falsehoods to mfurther an agenda, Mark.
Remember...cream...outsourcing...obfuscation...avoiding the question...
Bob Hayles
OPDC has never outsourced for any of its raw milk bottling.....never ever. Lets keep the record straight....yes we bought some organic cream to make some Class 4 butter organic years ago...that is it. But never any raw milk for bottling.
Ok....I am no historian...but I do not think that the police of 1700's were anything like the police of today. I also do not think that the people of the 1700's were anything like the people of today. Everyone had a gun and everyone defended what they had. We were hard core pioneers. The cops lived and enforced differently and respected a person with a gun differently. Because the whole village would turn out ( if they were pissed ) and the cop would be either supported or completely outgunned.
People shot back....cops were not free to just shoot people at will. Shooting policies be damned. The worst of them write up their reports to cover their asses.
Now people can not shoot back and we have a country filled with passive wimps with an ever more powerful police element...99% of which serve well and 1% that need to be in jail....But 100% of them cover and lie for each other...that makes 100% of them highly questionable, criminally, legally, ethically and morally.
I still vote with Pete. I get what he said.
A Peace officer is different than the cop that is trained as a "special operations soldier". Thats who is training our cops today. Cops are more and more trained to see the public as a threat and an enemy and not a group to be served with utmost humanity. Thats why the bullet is used more and more the solution. A soldier kills his enemy.
A peace officer does not have enemies.
A peace officer has social situations of various intensities and an eye on resolution and a peaceful outcome...always.
Mark