Temperance, Tea Parties, and Raw Milk

“Never again will any political party ignore the protests of the church and the moral forces of the state.”

-Wayne B. Wheeler, as quoted in Smithsonian, May 2010*

The godfather of prohibition did not wait until he had a majority behind his cause when he began his Temperance crusade. He did it – according to Daniel Okrent’s illuminating article in the May 2010 issue of Smithsonian – with minorities.

Wheeler focused on elections in districts where just a few percentage points separated the candidates, and mustered the temperance vote behind candidates who promised to support prohibition. His small groups of committed voters often were enough to swing close elections. Wayne Wheeler may not have invented pressure groups, but he was the first to use them effectively to gain a specific political objective in the face of a majority that was either opposed – or indifferent – to his aims.

The Tea Party movement has benefited from Wayne Wheeler’s lessons. Its members are among the most conservative elements of the US population. They represent the political opinion of a minority of the country’s citizens. They are, arguably, a minority even within the Republican Party. Yet this relatively small group of people has had a significant impact on the current round of election primary results – and on the policies of established politicians, including former Presidential candidate and self-proclaimed maverick, John McCain.

Then there’s raw milk.

The great majority of US consumers are either opposed – or indifferent – to legalizing retail sale of raw milk. Yet through the actions of a minority of committed consumers, raw milk can be purchased legally in 29 states. The number may be growing as raw milk advocates continue to refine the lessons taught by Wheeler’s temperance movement.

Earlier this month, supporters of raw milk fought successfully against a Massachusetts effort to place restrictions on raw milk “buying clubs” in that state. The movement also came within a whisker of achieving their goal in Wisconsin. A recent 1bill to legalize raw milk sales in the Dairy State was vetoed by Governor Jim Doyle.

The stated goal of the raw milk movement is to make retail sale of raw milk legal in all 50 states. Despite the occasional setback, they are well on the way to achieving that objective.

And the food safety movement?

Ask any consumer whether he or she supports food safety, and the answer will be “yes.” Why, then, has it been so difficult to achieve reform of our food safety system? I believe that the answer lies in the temperance, tea party and raw milk movements.

An omnibus food safety bill like S510 dilutes the message. It gets bogged down, and ends up taking a back seat to more politically pressing legislation. Eventually, it dies, because food safety isn’t glamorous.

We need to define our goals, rank them by priority, and tackle them one by one, district by district, and state by state.

Is mandatory recall authority for FDA and USDA our number one priority? If so, let’s promote a bill that tackles this single item, and swing our votes in favor of candidates who agree with us.

Do we want USDA to define all raw beef as adulterated if it contains Salmonella, Campylobacter, STEC E. coli, or any other human pathogen? Then we must craft a bill that focuses on this one issue.

Do we want to see true Country of Origin labeling for all food ingredients? That, too, should be a stand-alone bill.

The only way to achieve our food safety legislative goals is one step at a time – just like the temperance movement, just like the Tea Party activists. And just like the raw milk advocates.

Daniel Okrent’s article on Wayne Wheeler and the temperance movement should be required reading for all food safety advocates.

*Okrent, Daniel. “The Man Who Turned Off The Taps.” In: Smithsonian, pp. 30-37. May, 2010.

Guest Blog: Raw Milk Wars – An Attorney’s Viewpoint

by R. Drew Falkenstein

There are some benefits to being a lawyer. One is the benefit of reading lots of laws, statutes, and regulations, and knowing the rules that courts are bound by in interpreting those laws. One of those rules is that a court will not read, or interpret, a statute to leave any other clear enunciation—whether entire part, phrase, or word—without effect. In other words, courts will not interpret a law by simply ignoring a specific provision contained in another part of the law.

With the raw milk wars heating up recently, arguments have been made about whether the distribution of raw milk across state lines is “interstate commerce.” This is relevant because, of course, federal law prohibits the distribution of raw milk across state lines—i.e. in interstate commerce. 21 CFR 1240.61 states:

No person shall cause to be delivered into interstate commerce or shall sell, otherwise distribute, or hold for sale or other distribution after shipment in interstate commerce any milk or milk product in final package form for direct human consumption unless the product has been pasteurized.

I recently wrote at foodpoisonjournal.com that:

There is, in fact and law, no “fundamental right to eat whatever we want,” and no indication in the federal Constitution that the founders intended such a right to be implicit in the Bill of Rights. In fact, these legislative attempts are a little ironic, considering that their sponsors, Mrs. Wallis and Mr. Paul, are undoubtedly strict constructionists when it comes to constitutional interpretation. Indeed, the only inference as to the founders’ intent that can fairly be drawn from the Constitution is that Congress is well within its rights to outlaw the interstate sale and shipment of raw milk.

My blog-post received the following comment: “buyers may form a delivery club to pickup milk and bring to dropoff points. This is legal because once the sale is made legally at the farmgate, the milk is out of commerce. It is then legally possessed private property and can be delivered across states.”

Applying the rule of statutory construction described above, courts must give effect to all provisions of 21 CFR 1240.61, including the words “cause to be” that appear, and directly modify, the following word “delivered.” As a result, a violation of the regulation does not depend on a direct sale to a customer in another state. It is sufficient to do any act that “cause[s] to be delivered” raw milk, ultimately, across state lines.

Clearly the addition of the three words “cause to be” would include actions like transporting the product across state lines, selling directly to a consumer who is part of another state’s market, and even producing milk that ultimately will be sold or distributed to consumers in other states. But it is also broad enough—and intentionally so by the regulation’s authors—to include raw milk produced under the guise of a cow-share (or herd-share or lease) agreement where the product ultimately reaches consumers in other states.

Contrary to the commenter on my blog-post it will be no defense in a civil lawsuit, or even in a criminal prosecution, that the milk was produced under the thin guise of an agreement designed only to obscure the legal reality. There is simply no constitutional right to consume raw milk for 21 CFR 1240.61 to run afoul of.

R. Drew Falkenstein is a lawyer with Marler Clark LLP in Seattle, Washington, whose practice is devoted to representing people sickened in foodborne illness outbreaks. Drew has litigated against some of the largest food companies and restaurant chains in the country, and frequently represents people who have been sickened in outbreaks linked to raw milk. His blog, foodpoisonjournal.com, is a widely read publication that comments on food safety of national importance, and major outbreaks and recalls.

The Raw Milk Debate: Is There A Third Option?

Raw versus pasteurized versus . . . . .

We were reminded again last Friday of the risks that consumers face when they opt to drink raw milk.

The Michigan Department of Community Health issued a public health alert on March 19th, after eight confirmed cases of Campylobacter infections were reported among residents of three counties in the state. The victims of this outbreak had consumed raw milk obtained from the Family Farms Cooperative in Vandalia, Michigan. through a cow-share program.

Cow share programs are used in many US states and Canadian provinces as a means to sidestep prohibitions against the retail sale of raw milk for human consumption. Instead of purchasing raw milk directly, consumers “buy” part ownership in a cow’s – or a dairy herd’s – output.

Although some states – California, for example – have legalized and regulated the retail sale of raw milk, FDA does not permit interstate shipment for human consumption of unpasteurized milk for retail sale. As far as FDA is concerned, consuming raw milk is a risky business. These risks include Salmonella, E. coli O157:H7 and Campylobacter.

Why do some individuals insist on drinking raw milk – and serving it to their children – in spite of the microbiological risk? Mainly because of a concern that pasteurization, which requires heating the milk, destroys key nutrients present in raw milk and degrades the flavor of the fresh product.

What if there was a way to make raw milk microbiologically safe without heating it?

I’m not talking about irradiation. I’m not talking about adding chemicals. I’m not talking about adding “good” bacteria or bacteriophages to the milk.

I am referring to a process known as High Pressure Pasteurization (HPP). This technology is already in use in several sectors of the food industry. It has been applied to deli meats, fruit juices, deli salads, and produce. Recently, Nature’s Variety – a manufacturer of “raw” pet foods – announced that it had decided to incorporate HPP treatment into its manufacturing process in order to ensure the microbiological safety of its pet foods.

As far as I am aware, no dairies have adopted HPP as an alternative to conventional heat pasteurization for fluid milk. But a literature search turned up a smattering of tantalizing research studies. I would be surprised if the manufacturers of HPP equipment were not funding research into this application of their technology.

Perhaps, some day the raw milk versus pasteurized milk debate will become history – made obsolete by a new technology that doesn’t rely on either heat or irradiation.