The Complete Patient

A state judge has declined, for now, to hold raw-milk producers Barb and Steve Smith in contempt of court for refusing to unlock their coolers last December for inspectors from the NY Department of Agriculture and Markets.

The ruling is a small victory, but a victory nonetheless, since the Smiths could potentially have been jailed for their actions in resisting an administrative search warrant obtained by Ag and Markets. What gives the ruling some oomph is that it comes from Judge John C. Egan Jr., the same judge who acceded to Ag and Markets’ request for a search warrant last December, and thus might have been expected to side with the state once again.

Judge Egan said he issued the stay because the contempt proceeding relates so directly to the court suit brought by the Smiths and Meadowsweet claiming that the limited liability company they organized falls outside Ag and Markets’ jurisdiction. If Ag and Markets “does not govern the respondents’ activities, then the respondents cannot be held in contempt for failing to comply with the warrant issued…,” the judge stated.

The judge described the events that prompted Ag and Markets to seek the contempt order this way: “…on December 19, 2007, the State’s agents and dairy production specialists (DPS) Cox and Hinz, arrived at the premises and attempted the inspection of the dairy farm and milk plant. Respondent Steven Smith chose not to accompany DPS Cox and Hinz. Upon finding that a door to the plant was locked, DPS Cox and Hinz returned to respondent Steven Smith and requested that he unlock the door. Steven Smith refused. DPS Cox and Hinz left the premises without conducting an inspection. On December 28, 2007, DPS Cox and Hinz returned to the premises, and the plant was again, locked. Respondent Steven Smith refused to unlock the door to the plant and DPS Cox and Hinz left the premises without conducting an inspection. The State claims that the respondents have willfully failed to observe, comply with and carry out the terms of the inspection warrant.”

There’s been no trial date set for the suit filed by the Smiths and Meadowsweet under the auspices of the Farm-to-Consumer Legal Defense Fund. (In the photo above, Barb Smith is shown speaking with lawyer Gary Cox of the FTCLDF following a recent hearing.)

In the meantime, though, the state would seem to have lost one of its weapons in harassing the Smiths—ongoing application of the search warrant. Though the judge refused to quash the warrant, the fact that he won’t hold the Smiths in contempt for refusing to obey it would appear to take the teeth out of it.

There's also no word on a decision in a separate Ag and Markets hearing in January to try to shut Meadowsweet Dairy LLC for making available milk and other dairy products to its 120 or so shareholders. While the hearing was conducted by an outside hearing officer, Ag and Markets can overrule that official. It would seem, though, that this judicial stay pending further consideration of the Smiths’ suit would make it tough to immediately enforce an agency ruling against the Smiths.

Once again, the Smiths stay alive, legally, to fight another day. The state first tried in January to get the Smiths’ suit dismissed, and were put off. Then the state tried for the contempt order, which could have been issued during a hearing in Albany February 28 before Judge Egan, and were put off. Now a stay has been issued. The state will not be put off so easily, and can be expected to pull a variety of tricks out of its long sleeves, but this certainly won’t be the slam-dunk the state may have been anticipating.

I want to catch up on a few odds and ends from the past couple weeks:

I suppose I should take it as a compliment that the U.S. Food and Drug Administration appears to be reading my articles. Two days after my article on raw milk appeared in the Boston Globe Sunday Magazine, complete with mention of new research out of Michigan on how raw milk helps alleviate lactose intolerance (first reported here last month), the FDA issued a special report arguing essentially, no way, that raw milk can’t counter lactose intolerance.

The research is all nonsense, the FDA suggested. “Drinking raw milk will still cause uncomfortable symptoms in people who are correctly diagnosed as being lactose intolerant. But worse than this discomfort [uh oh, here comes some scary stuff] are the dangers of raw milk, which can harbor a host of disease-causing germs, says [John] Sheehan [the FDA’s raw-milk bully]. ‘These microorganisms can cause very serious, and sometimes even fatal, disease conditions in humans.’” And by the way, no mention of the research the FDA bases its claims on.

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The California Senate has finally scheduled hearings April 15 on “Fresh Farm Milk: Assuring Safety and Consumer Choice”. These hearings grow out of the big flap over AB1735 and its coliform standard, which ran into a little problem a couple weeks ago when a California judge issued a temporary restraining order preventing enforcement of the law. Mark McAfee, owner of Organic Pastures Dairy Co., is billing the hearing as “the biggest raw milk event in history.” I’ll leave the final judgment to the historians, but the simple fact that pro and anti are getting together for a public airing has to be a positive, doesn't it? Equal billing and all that. Hearing goes from 3-9 p.m., at the Sacramento State Capitol Building, Rm #4203.

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Is any factory-farmed fish or meat still safe? The latest evidence of problems in the factory system comes from fish farms in Chile. The South American country provides much of the farm-raised salmon around the world—a key protein that provides essential fish oil. The fish are farmed in such close quarters that they are stressed and become diseased, necessitating large doses of antibiotics. Sound familiar?

I probably over-simplified when I suggested in my previous post that the emerging food shortages could make it important to know local farmers. For a food-conscious segment of people, CSAs and farmers markets will become more important. But for the great mass of people, the crisis will likely be dealt with the way most shortages are dealt with—by raising prices. People who have the means will be able to obtain all the foods they want, while those who don’t will have to find other ways.

The media has been putting out stories about how stores selling out-of-date products for drastically reduced prices are booming. I suspect we’re going to see a lot of “stretching,” not only of food, but of other things.

In all, it’s usually worthwhile to make more of less. I can still remember how my mother saved wax paper used to wrap lunch sandwiches, so it could be used again, and again, and again, until it nearly fell apart. I have a hunch, though, that more people than ever will be consuming ever-worse-quality factory food.

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And finally, there’s this little item about a Canadian judge blocking that country’s milk from being sold in New York state, noted recently in comments following my previous post. What I got from it is just further evidence, if it was needed, as to how seriously controlled the dairy industry is, both in the U.S. and in Canada, in terms of pricing and distribution. Not only do you have to pasteurize, but you can’t go to any kind of open market to sell your products. And if you do, the New York Department of Agriculture and Markets is there to shut you down, as Barb and Steve Smith and other raw-milk producers in New York know only too well. 

The crackdown by state and federal authorities on raw-milk dairies, and the generally inhospitable environment for sustainable agriculture, is assuming a new sense of irony as global shortages of food commodities take hold.

For all those who’ve been worrying about the time when our food system freezes up, and we come to depend on locally-produced products from small farms—well, we may be closer than most people imagine. Increasingly ominous forecasts have been appearing in various media about the possibility that basic commodities like wheat, corn, and rice, not to mention oil and copper, are in perilously short supply

The publication Milkweed, a dairy industry newspaper, is predicting that the world has six to eight weeks supply of wheat, and predicts: “Famine looms in the near future.” (Unfortunately, this publication is only available in paper form.) Earlier this week, The Wall Street Journal published a front-page article on “Malthusian Fears,” suggesting that the world is running short of key commodities, and reporting that various countries are hording wheat and rice, and experiencing food riots. Steve Bemis, a frequent source of information on this blog, reports that his wife learned on a recent trip to Africa that United Nations relief supplies of food are drying up.

Where will all this lead? Certainly higher prices for basic foods. But having a friendly farmer or two in the neighborhood may become as important as having a connection with a local gas station was during the 1970s gas shortage. (Thanks to Steve Bemis for alerting me

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Something I meant to point out a little while back, before latest upheaval on California raw milk...It takes a big man to apologize, but Nathanael Johnson, author of the Harper’s Magazine article on raw milk in the April issue, has done just that.

After Organic Pastures Dairy Co. owner Mark McAfee read the article he called Nate to request a retraction of the statement that “the tainted milk came from Organic Pastures…” Nate agreed he erred.

In an email to Mark, Nate stated: “I recognize that you are right about this - the state agencies made a connection based on the evidence at hand which was epidemiological - not direct evidence. There was no direct link ever made between the milk and the disease - that is - the state labs were not able to grow this particular genetic serotype of E. coli found in the children, from your milk. The people I talked to talked about strong linkages but never a direct linkage. Furthermore the state never announced that OP milk was the cause of the outbreak. They strongly suspected it was - hence the recall. I'm sorry for the mistake - after spending almost two years on this I lost that detail. In general I think we can agree that there was a presumption of guilt - but it was sloppy for me to fudge that into an actual announcement.”

As a journalist who has written extensively about raw milk, I can empathize with Nate. I’m sure many readers who have debated the issue back and forth on this blog since it came up in late 2006, following the Michigan confiscation of Richard Hebron’s raw milk and revelations it stemmed from a case of foodborne illness, can empathize as well. The debate about raw milk is complex enough, but overlay the issues of foodborne illness, genetics, and public health practices, and it can be overwhelming.

Then, if on top of all that, you overlay ideology and personal biases, you have a formula for confusion, and even animosity.

One of the things I have noticed in the telling and re-telling of the events surrounding the illnesses of the children in California is the belief that somewhere in some state office there is an accurate recounting of what happened. As in…isn’t there someone who has all the interviews and the forms that were filled out and the lab reports who can set us all straight?

Implicit in that question is a longing to want to believe in the public officials who are responsible for keeping tabs on such things, especially public health officials. The last thing we want to believe is that they would let their personal biases get in the way.

But as I’ve pointed previously in assessing the statement they put together on the illnesses, there is, at a minimum, a troubling amount of sloppiness in their accounts. And they won’t provide us with the backup data based on privacy considerations.

On top of that, you have the parties involved—the parents, the lawyers, OPDC—which all have their own interests.

But in making his apology, Nate has at least helped bring us back to a key point, which is that, despite linkages, there is nothing conclusive in these illnesses.

If you look through the web site of the Centers for Disease Control for statistics on the number of food-borne illness occurring each year, you find different numbers—6 million, 14 million, 76 million. I was trying to pin the number down in connection with an article I wrote for The Boston Globe Sunday Magazine, published yesterday, and a CDC spokesperson who specializes in providing info on foodborne illness was firm: the CDC’s preferred number is 76 million.

This is the same CDC that provided data last year under a Freedom of Information request by Pete Kennedy of the Weston A. Price Foundation showing that between 1973 and 2005, the number of illnesses from raw milk never exceeded 351 in a single year (2001), and averaged 59 over those 33 years (in some years, there were no illnesses).

Now, the CDC statistics don’t tell us in either case how many victims are children, but let’s be very conservative and say iin the case of overall illnesses, t’s 10%. That would be 7.6 million children becoming sick from foodborne illness each year. Now let’s be off the wall and say that all the raw milk illnesses affect children (which is almost certainly not true). That’s 351 in a single year. Talk about orders of magnitude.

So when concerned citizen tells us breathlessly (following my post about the grand jury investigation into Organic Pastures) that because there were two outbreaks of illness in Washington from raw milk, we should outlaw raw milk for children, there’s a disconnect. I have no problem if concerned person won’t allow his/her children to eat cantaloupes or tomatoes or spinach—that’s everyone’s choice. But to suggest that raw milk is so much more dangerous than such foods and therefore should come be prohibited for children—like cigarettes and alcohol—has no rational basis.

I tried to explain all this in my article yesterday—that our public health and medical establishments continue to operate under assumptions stemming from outbreaks of illness a century and more ago. The reality today, thanks to refrigeration, improved sanitation, mechanization, and a serious commitment to quality by a segment of dairy farmers, is much different, and much less threatening.

The CDC doesn’t seem to know which foods cause the 76 million illnesses, but based on various studies, the main culprits are deli meats, hamburger, seafood, and various prepared foods from restaurants and fast-food outlets. I don’t hear anyone proposing to prohibit children from consuming any of these foods.

But the drumbeat against raw milk continues. Even without laws to the contrary, you have the medical and public health establishments trying to terrify parents from serving their children raw milk, or mothers from consuming it while pregnant. The result, as I describe in my Boston Globe Sunday Magazine article, is that parents lie to their doctors and otherwise try to low-key the fact that they serve their children raw milk.

On the other side of the issue, Massachusetts dairy farmer Terri Lawton (pictured above, shrouded by steam, cleaning her milk storage equipment) tells me that over the last two years, “One of the things I’m proudest of is that probably ten women got pregnant while drinking my raw milk and gave birth to healthy babies.” I think Dave Milano is onto something in his comment on my previous post that it's difficult to deny the power of an idea.

Last September 20, I posted an item that seemed humorous at the time, about Mark McAfee’s encounter with the U.S. Food and Drug Administration over the issuance of a press release concerning the recall of Organic Pastures Dairy Co. cream contaminated with listeria monocytogenes. FDA officials had asked Mark to write his version of a press release and, not surprisingly, he came up with language very much at odds with the FDA.

While it’s safe to surmise that no one at the FDA appreciated the humor of that encounter, what is perhaps most important about the matter at this point in time is that there are two press releases that resulted from the back-and-forth process still posted on the FDA web site. Both the press releases, dated Sept. 21 and Sept. 24, contain this sentence:

“The product [cream] was sold in retail stores throughout California and was also available worldwide via phone orders, and is not pasteurized.”

Wouldn’t you think that if the FDA had a problem with what Organic Pastures was doing, it might have adjusted that sentence to say, “…and was also available worldwide via phone orders, in violation of FDA regulations about interstate sale of raw milk products”?

The reason no qualification was included then, or ever related to Mark afterwards, is that the FDA had in fact approved OPDC’s labeling of raw milk for non-California sales as pet food back in early 2005. The whole matter actually started in April 2004, according to an FDA “warning letter” written to OPDC in February 2005 (which I couldn’t locate on the FDA web site, but which I have in paper form), demanding that OPDC discontinue interstate distribution of raw milk “in final package form for human consumption.”

The FDA’s press release of late 2007 said what it said because there was a problem with the cream, and not with anything else.

It would be nice to believe, as Amanda Rose and William Lind suggest, that OPDC brought this latest crackdown by law enforcement down on itself by somehow wink-winking or waving a red flag in front of authorities. Forget about blaming the victim. What we are dealing with here, as a number of individuals point out, has nothing to do with what’s legal or illegal (though it would be helpful, as Steve Bemis suggests, if federal law permitted interstate transport of raw milk into states that allow it).

There can be no doubt, after all that has happened over the last year-and-a-half, that we are witnessing a concerted, and desperate, campaign to place a huge lid on the growth in the consumption of raw milk. Pete Kennedy of the Weston A. Price Foundation called it correctly in my recent “Milk Wars” Nation article, when he pointed out that the authorities realize they can’t scare people away from raw milk, so they’ve moved instead to cripple the supply side.

The campaign is focused like two lasers on New York and California. The battles now going on are truly pivotal. Losses in one or both places will lead the authorities to pull the same tactics in other states. Wins will back them into a corner.

At this point in time, despite the expenditure of huge resources in manpower—the detectives out interviewing low-level employees of a small dairy at all hours of the night are just the tip of the iceberg—the bureaucrats may be getting uneasy that they are beginning to come up short. The California judge's temporary restraining order issued last Wednesday, on top of the California protests and growing raw milk consumption, are communicating that message.

With their latest escapade, they have to be wondering what the hell is going on here. When FDA criminal investigators secretly question employees of most firms under investigation, the investigators typically find people who resent their employers, and are willing to tattle, and even wear hidden wires. And assuming the employers discover they are under investigation, they almost always want to avoid going public with news of a grand jury investigation—after all, it’s not good PR in most industries.

Yet in the case of OPDC, not only did the employees spill the beans, but the employer went around trumpeting to the media that he’s being investigated! And the request to an employee to wear a wire suggests the authorities don’t quite have “the goods” on Mark McAfee just yet.

The problem here may be that the bureaucrats in charge haven’t communicated to their underlings that this isn’t about violation of any laws, but rather about much more serious matters like rights and freedom and privacy. What the heck, let’s call it for what it is—a government vendetta.