Going on the offensive, the Farm-to-Consumer Legal Defense Fund is bringing suit against the FDA. Some may think, I’ve been a little hard on the government with my constant ranting against the “Raw Milk Nazis”. But, I don’t know what else you call an organization that persecutes small farmers trying to make a living and people who disagree with the so-called science of the FDA. Regardless, of what we think we should call “them”, “they” are now rightly on the defensive.
Our friends, truly friends of all small farmers, The Farm-to-Consumer Legal Defense fund is taking the Raw Milk fight directly to the FDA. In this press release, Pete Kennedy explains the reason for the action:
“This is a lawsuit of historical significance” said Pete Kennedy, President of the Legal Defense Fund, “because it directly challenges for the very first time the legality of the ban against the interstate distribution of raw milk in final package form for human consumption.” Kennedy went on to explain, “Too often we have seen FDA take actions against dairy producers, and recently in Georgia against a virtual farmers’ market, that attempt to deny the individuals’ right to consume the food of their choice. The interstate ban is unjust and needs to be overturned.” The complaint for declaratory judgment brings five claims alleging violations of the right to travel, the right to privacy, the non-delegation doctrine, substantive due process, and that FDA’s action in promulgating the two rules exceeds the authority granted by the Federal Food, Drug and Cosmetic Act.
The FTCLDF suit argues that the FDA’s role is a problem on several levels:
- It maintains that raw milk isn’t dangerous in the food-borne-illness scheme of things. “According to CDC statistics for 2007, there were 7,031 reported cases of foodborne outbreaks associated with bacteria, which resulted in 678 hospitalizations and 11 deaths (3 deaths of which were from pasteurized milk). According to those same CDC statistics for 2007, there were only 32 reported cases of illnesses attributed to fresh, unprocessed, raw milk (0.5 percent); there were only 2 reported hospitalizations attributed to fresh, unprocessed, raw milk (0.3 percent); and there were no reported deaths attributed to raw milk.” It concludes: “More people are killed each year from lightning strikes on golf courses than die from milkborne illnesses.”
- That consumers who cross state lines with raw milk could at any time be penalized for violating the FDA’s prohibition, even though the agency has generally limited itself to going after farmers. It points to a case last October, in which one of the plaintiffs, Eric Wagoner, who runs a Georgia food buying group over the Internet, had 110 gallons of raw milk already purchased by Georgia consumers confiscated because the milk had been purchased in South Carolina, where raw milk sales are legal, and brought back to Georgia, where they aren’t. “Upon reaching Georgia, Plaintiff Wagoner’s truck was searched and seized by officials from Georgia without a warrant. The raw milk in Wagoner’s truck was embargoed by officials from Georgia without a warrant. On Oct. 19, 2009, the 110 gallons of raw milk, including milk owned by Plaintiffs Wagoner and Cooper, were destroyed at the order of the Georgia officials and the FDA without a warrant or other legal process.”
- That the FDA, if it so chose, could take a less harsh approach to raw milk. “For example, FDA has a regulation at 21 C.F.R. 101.17 that pertains to unpasteurized juices, and provides, in part, that a warning label on a juice container is an acceptable alternative to pasteurizing the juice, to wit: ‘WARNING: This product has not been pasteurized and, therefore, may contain harmful bacteria that can cause serious illness in children, the elderly, and persons with weakened immune systems.’”
- That the FDA is singling out raw milk for special harsh treatment. According to the suit, “There is nothing in the PHSA [Public Health Service Act] that authorizes the FDA to find that a product that is legal to sell in more than half the States and where it is legal to consume in all 50 States should be banned as a ‘communicable disease’ or ‘illness’ particularly when there are other foods in the United States that cause more cases of foodborne illness.”
This should be an interesting case as the FDA has been unwilling to debate their positions in a public forum. Perhaps, a judge will force the discussion, and bring to light some of the motivation for the FDA’s position up to this point.