The Complete Patient

I wish the debate that’s been going on here about the risks associated with raw milk might have taken place yesterday, in the Albany, NY, courtroom where a hearing was held over whether Barb and Steve Smith should be held in contempt of court.

Instead, the discussion was about search warrants, the U.S. constitution’s fourth amendment, the New York Department of Agriculture and Markets regulations--all in relation to whether the Smiths might be jailed.

But like the extended discussion following my previous post, there was no resolution in the end. When the hour-long arguments by the opposing lawyers was completed, the judge, John C. Egan Jr., said he was taking the matter under advisement. “I've heard enough," he said as he adjourned the late-afternoon session. "This is simple."

The lawyers present with Ag & Markets officials, and the dozen or so supporters of the Smiths all looked at each other trying to figure out what the judge meant by that remark, since the arguments were anything but simple.

The Ag & Markets lawyer, Larry Swartz, argued that by not cooperating with state inspectors holding a search warrant seeking access to the dairy’s locked coolers holding raw milk products, during two visits last December, “This is a denial of access, it is a contempt of the inspection order.” He maintained that, even aside from the search warrants, Ag and Markets regulations allow the agency “access to all farms.”

Gary Cox, the lawyer for the Smiths and Meadowsweet Dairy LLC, argued that there were assorted problems with the administrative search warrant being used by Ag & Markets. It didn’t specify that the agents could use force, was open-ended in how long it could be used, and left the determination of probable cause to the agency rather than a judge.

“They’re operating under the supposition that this warrant goes on forever,” Gary said of Ag and Markets. Moreover, he added, “I’ve never seen an instance where an agency is delegated authority to determine probable cause.”

The judge seemed to be listening attentively, and interrupted Gary a number of times to inquire into precedent cases.

The bottom line for now is that the Smiths are still standing despite the state’s two efforts to have courts come down on the couple and their limited liability company that provides raw milk to 130 or so members. First, the state tried to get the Smith’s suit dismissed last month, and that failed. Then, yesterday, the state tried to convince a judge to cite the Smiths for contempt, but the judge put off ruling.

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On the other coast, Mark McAfee of Organic Pastures is still standing as well after three tests for coliforms in his dairy’s milk. He failed the first two tests, and a third failure earlier this week might have forced him to halt production. But he passed the third one, with less than 10 coliforms per milliliter, as required.

But this is a three-of-five situation, so he has to pass the next two to avoid possible production interruptions.

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I’m told occasionally that state agriculture regulators read this blog. When they tell me directly, I always encourage them to participate in the discussion. They never do, that I’m aware of. But I was glad to see MP participate, since he sounded like he/she could be a regulator, or public health type. I was just sorry to see MP get so easily offended at the end. Surely he/she is tougher than that. A few barely personal insults and MP is gone? If you really believe in what you’re arguing, MP, you should be able to take a little heat. Or were the arguments too persuasive?

By the way, in response to Jeff’s comment, I’d just like to say that he’s incorrect when he says less than ten people a year get sick from pasteurized milk. Four died last year, which is four more than died from raw milk. But many more times that get sick each year, according to the Centers for Disease Control statistics on illnesses from raw milk between 1973 and 2005. There was one outbreak where 18,000 became ill in 1985 alone. Even so, I wouldn’t suggest that pasteurized milk is more dangerous than raw milk in terms of pathogens. But there is more to the “safety” argument than pathogens, and MP, Jeff, and others prefer to simply slam that possibility.

And on flu shots, it’s worth keeping in mind that not too long ago, it was only the elderly and otherwise immune-suppressed who were advised to get flu shots at all. Now all adults are advised to get them, and we’re thinking of requiring kids to get them, as well. There is risk associated with all vaccines—the full extent isn’t completely understood. But even in the short term people get sick from vaccines.

It’s interesting that so many discussions here about the benefits of raw milk seem eventually to revert to the emotionally-laden matter of safety, to the argument that raw milk is somehow a special class of food that is inherently unsafe. It happens again following my post about the Michigan research that clearly demonstrates the benefits of raw milk in combating lactose intolerance.

There’s nothing logical or rational about the emotional aspect of this, especially when you consider that data from the Centers for Disease Control show raw milk causing an average of 59 illnesses annually (according to data between 1973 and 2005), versus an estimated annual minimum of six million illnesses from food-borne disease overall.

So what’s really going on here? How can the arguments be so heated, not just here, but in California, Maryland and various places where the question of our right to access raw milk comes up?

I gained an insight into this contradiction the other day during a discussion with a professor of nutrition at a Massachusetts university. Of course, we got to talking about raw milk and pasteurization, and it was pretty much the usual thing—him explaining how important pasteurization has been as a public health tool and how risky raw milk is. As a matter of fact, he said, pasteurization is so essential it’s been extended to apple juice and vegetable juice and almonds. How about that?

But he said something, almost as an aside, that I now realize is more important than many of us appreciate in this debate. “If you have any kind of immune-compromised system, there’s a good chance you’ll die” from unpasteurized contaminated milk and other foods, he explained. Of course, he didn’t say that if you are immune-compromised, you could die from contaminated pasteurized milk, as we saw when four elderly Massachusetts men died last year from listeriosis they got from pasteurized milk.

But what he was really doing, I realized later, was positioning the pasteurization issue (really the sanitizing of all our food) as a minority rights issue. The minority of people with immune problems must be protected, even at the expense of the majority with no immune problems.

Then today, NPR aired a report that the medical community is recommending that all children be given flu shots--not so much to protect them, but to "reduce the spread of flu through communities." In other words, sacrific a buildup in the kids' natural immunity to "protect" adults who might be vulnerable.  

The implication is that the vast majority of people must sacrifice, via sanitizing of food and vaccination, so that immune-compromised people aren’t placed at risk. But is that really fair, appropriate, or healthy? Wouldn’t it be more appropriate to suggest that the immune-compromised should be careful about what they eat, whether pasteurized or unpasteurized...and to work at re-building their immunity? That parents with concerns should keep their kids away from raw milk, while those who want their kids to benefit from raw milk make have access to it?

Even more to the point, why should the vast majority who aren’t immune-compromised be placed at risk of becoming immune-compromised because they can’t get access to foods that help build immunity?

Have I trashed enough sacred cows for one day?

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Reminder: It looks as if the Meadowsweet Dairy contempt-of-court hearing in connection with its refusal to cooperate on a New York Department of Agriculture and Markets search warrant will be held Thursday in Albany. The hearing is open to the public, at the Albany County Courthouse, 16 Eagle Street, Albany, N.Y.

Perhaps it’s apropos that, at this time when our right to access the food of our choice is under frontal attack in New York and California, Ralph Nader should declare himself a candidate for president.

This is the same Ralph Nader whose Public Citizen’s Health Research Group pressed a reluctant U.S. Food and Drug Administration to place a ban on interstate sale of raw milk in the mid-1980s, and eventually got its way via the courts. Nader’s role was discussed previously on this blog last November.

There’s a detailed account of his group’s role on a site I wouldn’t normally reference, QuackWatch (the site is pretty much opposed to all natural health remedies), but it’s worth taking a look at for historical purposes. His group was unrelenting over many years in its pursuit of consumer "protection."

He was so successful in bringing the FDA around to his point of view that it has become more rabid in its opposition to our right to consume raw milk than he probably ever could have hoped. I think it's also safe to assume that much of the hysterical anti-raw-milk propaganda presented in California, cited on my previous post, are the result of his efforts.

So, let’s see, Ralph Nader helped cost us access to raw milk. He helped siphon enough votes to give us George Bush during the ultra-close 2000 election. What might he have in store for us this time around?

I ask this question having been favorably inclined toward him earlier on—first, because of his bravery way back in the 1960s in exposing the auto industry over car safety and, more recently, because of his willingness to challenge the limited choices inherent in the two-party system. I figured his political challenge alone was a worthwhile cause if it helped move us to more of a muti-party system.

But he didn’t do that. All he seems to want to do is re-appear every four years, a la Harold Stassen, and offer us the benefit of his arrogant form of protection.

One of the benefits to emerge from the trauma of the Michigan “sting” of October 2006--when Richard Hebron was stopped, his raw-milk products confiscated, and his home searched--was an activist community of raw-milk consumers.

Hundreds wrote the Michigan Department of Agriculture, legislators, and county prosecutors to describe the benefits they gained from regularly consuming raw milk. Those letters helped convinced prosecutors and the MDA to back off on their temptation to file felony charges against Richard.

But, of course, as we all know, those stories of improved health don’t really count to health and medical scientists, since the experiences are considered “anecdotal.”

It turns out the Michigan raw-milk community didn’t stop with the letter-writing campaign. Led by a prominent Michigan pathologist, Ted Beals, and with backing from the Weston A. Price Foundation, these individuals decided to survey raw-milk drinkers about their experiences with lactose intolerance. They also engaged international research firm Opinion Research Corp. to conduct a national telephone survey to learn about the national incidence of lactose intolerance.

The results have finally been tabulated, and they provide convincing evidence for the long-stated claim that raw milk can usually be consumed by individuals with lactose intolerance.

Some 2,217 Michigan consumers of “fresh unprocessed milk” (the Michigan study's term for raw milk) were surveyed, of whom 155, or 6%, said they had been “told by a healthcare professional they had lactose intolerance.” Of those 155, some 127 have no symptoms of lactose intolerance when drinking the fresh unprocessed milk—which is 82% of those with the lactose intolerance diagnosis.

Why is this a big deal? Because lactose intolerance is a major problem in the U.S. In surveying consumers nationally as part of the study, Opinion Research Corp. found that 15% of American households have at least one member who is lactose intolerant. Base on that finding, Opinion Research concluded that about 10% of the U.S. population, or about 29 million Americans, have lactose intolerance. Among children, Opinion Research extrapolated that the rates are even higher—some 18% of households with children, while the rate is 13% in households without children. 

It would seem to make sense to make raw milk easily available to people with lactose intolerance—maybe allow them to have it with a doctor’s prescription. Maybe I better shut up before Big Pharma tries to make raw milk a mutibillion dollar prescription item. In any event, congrats to Ted Beals and his cohorts, including Steve Bemis, a Michigan lawyer, who have patiently been accumulating, collating, and assessing this data over the past seven months. Hopefully, they'll get in published in a scholarly journal of some kind.

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While New York’s Department of Agriculture and Markets continues trying out assorted tactics of authoritarian regimes to stamp out raw milk, a few states are moving in the opposite direction. Legislation loosening restrictions on raw milk is under consideration or about to be proposed in at least three states—Vermont, Maryland, and Missouri. In Vermont, legislation has been proposed to lift restrictions on the amount of raw milk dairy farmers can sell to consumers, while in Maryland, which has banned even cow shares, legislation has been introduced to allow direct farm-to-consumer sales; it is being actively promoted by the Maryland Independent Consumers and Farmers Association. And here's a link to the Missouri legislation.

I should add, of course, that getting legislative permission to sell raw milk from the farm to consumers doesn't ensure that regulators won't try to throw their weight around to intimidate consumers, per the NY situation.  

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I had a reminder today of just how far back my interest in sustainable farming goes (and how long I’ve been in this reporting biz). An article I wrote about homesteading back in the pre-pre-Internet days of the early 1970s, when I was a cub reporter for The Wall Street Journal, has shown up on the Internet. I recall that there was some debate internally at the WSJ to break the then-existing ban on photos by publishing some of this farm...but the idea was turned down, and remained in effect for many more years. The article turned out to be one of the most popular articles the WSJ ever ran to that time, eliciting hundreds of (snail mail) letters.

I’m glad to learn that many of you want to know the details of the proceedings in the raw-milk legal cases, because those details are becoming more intriguing literally by the day. That “slam dunk” Bob Hayles is looking for? Well, I think you’ll find this post quite interesting.

Gary Cox of the Farm-to-Consumer Legal Defense Fund has been a busy man, and his legal creation of the last couple days might best be termed “Search Warrants 101.” He has filed a motion in the New York state court that scheduled the show-cause hearing in the case of Barb and Steve Smith/Meadowsweet Dairy LLC, arguing that the December search warrant the Smiths supposedly defied in December “is facially defective…and must be quashed.”

Here’s Gary’s argument: The administrative search warrant issued by Judge John C. Egan in December, allowing the New York Department of Agriculture and Markets to search Meadowsweet Dairy for raw milk products, “states that the Department is ‘authorized to enter the premises on a continuing basis.’ In essence, there is no end to when the Department may stop searching the Respondents, no matter how long ago it has been since the warrant was issued. Conceivably, the warrant that was issued in December 2007 could still be executed in December 2017, ten years later. A blanket warrant with no expiration date is not only in violation of the express provisions of (New York law), it also violates the Fourth Amendment’s requirement that the probable cause which existed at the time the warrant was issued must be ‘closely related to’ the probable cause that exists at the time of its execution.”

Moreover, Gary argues that under New York law, an administrative search warrant must be carried out within ten days, and then only between the hours of 6 a.m. and 9 p.m. He notes that the Meadowsweet warrant was issued Dec. 14, 2007, and executed at least twice—on Dec. 19 and Dec. 28. The second time was 14 days after issuance.

This ten-day restriction is hard-and-fast, he suggests, based on legal precedent. “The failure to execute the warrant within the ten-day statutory period ‘may not be excused as a mere ministerial or clerical aspect of search warrant proceedings'…Thus, once a warrant is issued it must be executed within ten days. A warrant cannot be issued one day and then be executed over and over again ad infinitum into the future.”

The reason behind the tight schedule, he says, “is that the probable cause necessary for execution of the warrant must be ‘so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.’ “

Wait, there’s more. “In this case, the warrant not only authorizes the Department to enter Respondents’ premises ‘on a continuing basis,’ it also states that such authority to enter on a continuing basis can be exercised ‘only when the Department has probable cause to believe’ that a violation of law is occurring. This blanket authorization allowing the Department to determine what constitutes probable cause is a clear violation of the constitutional protections afforded by the Fourth Amendment to the United States Constitution and by the New York Constitution at Article 1 Section 12.

“In addition, because the warrant improperly delegates the determination of probable cause to an administrative agency or office, it also constitutes a violation of the separation of powers doctrine because it transfers a judicial function to an executive agency.”

There’s one other little detail that Gary brings up--the fact that Meadowsweet Dairy is a herd share organized as a limited liability company. “In this case, Respondents allege that based on the facts of the case, they are not even subject to New York’s Agriculture and Market Laws (A&ML) and thus probable cause cannot, as a matter of law, form the basis of an administrative search warrant.”

I’ve long wondered about those administrative search warrants, and the supposed carte blanche they provide regulators. An administrative search warrant was used by the Michigan Department of Agriculture to gain entry to Greg Niewendorp’s farm and eventually force-test his cattle for bovine TB last fall.

Gary has obviously researched these things and, lo and behold, the U.S. Constitution’s Fourth Amendment has applicability.

His argument is very persuasive. But for Judge Egan to be persuaded will require the judge to admit he screwed up, big time, in going along with Ag and Markets in granting such an open-ended warrant. Should be an interesting court session.

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