The Complete Patient

Does the fact that raw milk is a much different product from pasteurized milk mean that it must distributed and sold differently as well?

That question seems to underlie the debate about Organic Pastures Dairy Co. and its use of unpasteurized cream and colostrum from other dairies. Many people seem shocked that Mark McAfee has used products from other organic dairies, even though he has previously discussed it publically in print. He discussed his use of outsider cream on this blog, in connection with the state’s discovery of listeria monocytogenes in a sample, last September.

He also made reference to his use of subcontracted colostrum on his own site last month in a response to a San Jose Mercury News article.

Amanda Rose says in her comment on my previous post that the E.coli 0157:H7 that sickened children in September 2006 might have come from an outside dairy and somehow contaminated the dairy, such as via the bottling equipment. I asked Mark earlier today whether that was a possibility, and he says that, if it did, the California Department of Food and Agriculture would likely have found something in the two weeks of tests conducted at Organic Pastures after the recall that September. “The state did two back-to-back series of 350 tests, over 700 tests” on all the dairy’s equipment and supplies—bulk tanks, bottling equipment, packaging, pipes, tubing, and so forth—and came up empty.

“No one know where those pathogens came from,” he told me. “Some of us believe it was spinach” caused by “another strain” of E.coli 0157:H7 in addition to that confirmed to have sickened more than 200 consumers of packaged California spinach. And, of course, some people believe it was his milk, or possibly milk brought in from elsewhere.

Mark feels there’s no purpose to be served in continually dredging up the matter, since there’s no way of coming up with a conclusive answer at this point. “It’s tilting at windmills,” he added. In the meantime, he has sworn off using any outside products, and says he is within days of adding 150 milking cows to the 250 milkers he now has, to increase his dairy supply. (The photo above shows Organic Pastures' cows corraled and waiting for their milking turns on an evening last week, when I visited.)

There’s a bigger issue, he argues, and it’s one I’ve been thinking about in recent days based on the concerns expressed here that because Organic Pastures is so large, it is inviting the same kinds of problems that come up at conventional large farms that compromise quality to maximize profits. That issue is whether raw milk can be distributed and sold by dairies varying widely in size from very large, like Mark’s, to very small, like Bob Hayles’.

And, if so, should they all be subject to the same kind of regulations, like the HACCP (hazard analysis and critical control point) risk reduction program being discussed to partly replace AB1735?

These aren’t questions unique to the raw milk business. They come up in all kinds of industries. Small manufacturers, for example, are often exempted by state and federal legislation from certain environmental and safety regulations in the interests of sparing them huge costs, and trusting them to self regulate. As mothership suggests on my previous posting, small California raw milk producers could easily label their products to say they haven't been inspected.

But even when regulation isn’t an issue, businesses market themselves based on size. Local hardware stores try to convince consumers to avoid the impersonalization of Home Depot outlets.

Mark argues that the market can support a variety of raw milk producers. He feels the only way raw milk can be shown to be effective in building health “is to have it in all the stores…I want to change mainstream America. I’m a participant in mainstream America. This idea of staying under a rock is not what I want to do.”

People who want to buy their milk directly from the farm should do so as well. “You could have three-cow farms, ten-cow farms, 50, 500,” he says.

That vision is very appealing--the kind of freedom many here have been demanding. But it definitely won’t be easy to get to that point. Raw milk is a sensitive product, being sold within a not-very-tolerant food system. And the producers differ widely as well.

But we’re a nation of choices, and why should the situation be different with natural food products. There are many consumers who will only buy their milk from a farmer they know, and advocate that others do the same. And then there are people out there like the Central Valley Mom, who in her comment on my previous post indicated she's willing to give Mark wide latitude. “I just want my raw milk.”

***

Almost lost in the uproar about Organic Pastures’ use of subcontracted products is the fact that it and Claravale Farm have a court date tomorrow. Mark McAfee had expressed hope the good will growing out of the California Senate raw milk hearing last week might even lead to a delay, to see whether the main issue in the suit, AB1735 and its coliform standard, might be rendered moot. No such luck, so the hearing tomorrow about whether to turn the temporary retraining order granted last month into a preliminary injunction is on.

Mark McAfee had just a few hours to celebrate yesterday’s issuance of a temporary restraining order blocking enforcement of AB 1735--what he called “a big win for California raw milk and producers”—before he learned about the next phase of the government’s campaign against Organic Pastures Dairy Co.

It seems the U.S. Justice Department, in cooperation with the Food and Drug Administration, is conducting a grand jury investigation into OPDC’s sales of raw milk and colostrum sold as pet food to consumers around the country, outside of California. Two of OPDC’s employees have in the last two weeks each received a subpoena to testify in early April before a U.S. District Court grand jury for the Eastern District of California.

The employees, who take phone orders and help administer the dairy’s office, didn’t know what the subpoenas were for until after dinner last evening--just hours after the state superior court issued its temporary restraining order on AB 1735--when they received visits at their homes from two FDA special agents from its Office of Criminal Investigations.

In each case, the agents telephoned first, saying they were following up on the subpoenas, and then showed badges before asking to come into the employees’ homes and question them. The situation bears an eery resemblance to the visit by New York agriculture agents to Meadowsweet Dairy within hours of owners Barb and Steve Smith filing suit against the state last December.

Before I relate what the employees say happened next, I should say that I called one of the FDA special agents, Stephen Jackson, on his cell phone, obtained from the business card he left behind. After I identified myself and told him I was inquiring into the grand jury investigation into OPDC, he said, “I’d prefer you not call this number.” I then asked him if he could refer me to an FDA or Justice Department official who might be able to help me, but he said he couldn’t, and suggested I just call the main number of the U.S. Attorney’s office in Fresno.

One of the employees, Amanda Hall, who has worked for OPDC for about a year, said Jackson and his colleague kept inquiring into the sale of raw milk to customers outside California. “They kept saying, ‘Do you know it’s illegal to sell raw milk outside California?’” When she explained that the milk is labeled as pet food and thus okay, “They said, ‘Who told you that?’ I said I learned it from others in the office…They kept asking me if I knew it was illegal…At first they were nice and polite, but they kept getting more agitated. I think they wanted to hear about Mark.”

There was more to come. One of the agents played a tape recording of Amanda taking a phone order from an FDA agent posing as a customer, inquiring whether it was okay for the “customer’s” eight-month-old child to consume colostrum. “I said it was okay. The FDA has no regulations on colostrum. It’s a dietary supplement. And all products are labeled for pet consumption.”

And then even more: Before the agents left, “One of them asked me, ‘Would you ever consider wearing a wire? If you would wear it, you would be getting information from Mark. You could benefit. You wouldn’t be paid millions, but it would sure help you out.’” Amanda declined, and the agent left a card, saying that if she changed her mind, she should call.

The situation was pretty similar for Lizbeth Eugenia Valdes-Urbieta, who has been at OPDC for two years, except the visit seems to have been more traumatic for her than for Amanda. “I’m pregnant, and I’m a crybaby,” she says. Not only that, her husband, mother, and father were present in the house, and her mother was becoming ever more frightened as she heard the agents pressing their questions. “She asked my husband, ‘Is this legal?’ He told her it was.”

They went through the routine about it being illegal to sell raw milk outside California, she says, “And they told me, ‘Don’t worry, you’re not in trouble.’ Then they had a tape of me talking to a customer. He asked me if we ship outside California. He told me he had a son, one year old, and can he drink colostrum?” She says she told him that the children of OPDC employees consume colostrum. “They kept asking me, ‘Who told you about the pet food labels?’”

Maybe because she was so nervous, they didn’t ask her to wear a wire. “After they left, I was shaking,” Lizbeth says.

Mark says he had extensive communication with FDA officials about his pet food labeling back in 2003 and 2004, and that the agency eventually sent him an advisory in early 2005 that “there is no requirement that pet food products have premarket approval by the FDA.”

One last note: Grand jury investigations are normally secret events in which prosecutors try to convince jurors to vote criminal indictments. Witnesses who are subpoenaed have no right to have a lawyer present and can expect to be cross-examined by a skilled government attorney. The identities of jurors are kept secret as well. Mark says he and his employees decided to go public about the grand jury situation after a meeting this morning of the dairy’s dozen employees. “We’re a family here,” he told me. “We’re going to protect ourselves. Our only weapon is the truth.”

But he added that he’s being practical as well. “I’m ready for a raid right now. All the computers are backed up.”

His theory for the government’s latest action: “Our sales are going through the roof. We’re doing $100,000 a week in sales—last quarter, it was $75,000. People are going nuts for raw milk. The FDA is going nuts the other way. I’m the snake. They want to cut off the head of the snake.”

Strange coincidence, these night-time visits by special agents to individuals' homes, just after OPDC wins a big court case. It’s a good thing Mark isn’t paranoid. He might otherwise think there were people out to get him.

Like a fighter down for the count who gets back on his feet at the last moment, and then stuns spectators by knocking the opponent back on his heels, the team of Organic Pastures Dairy Co. and Claravale Farm scored a big win in a California courtroom today.

Superior Court Judge Harry J. Tobias rejected the state’s heavy hitters from office of the Attorney General and the California Department of Food and Agriculture, and granted OPDC and Claravale a temporary restraining order prohibiting enforcement of AB 1735 and its ten-coliform-per-milliliter standard that had threatened to shut the dairies down.

The TRO will remain in effect until at least April 25, when a hearing will be held on whether to grant a preliminary injunction, which would continue the stay until a trial can be held some months later.

“We won today,” Gary Cox, the lawyer for the Farm-to-Consumer Legal Defense Fund who argued the case, told me after the hearing.

He said the TRO prohibits CDFA from enforcing AB 1735, but allows the state to continue collecting samples and testing milk from the two dairies to measure coliforms. At the April 25 hearing, the judge indicated, he will further assess the potential impact of the test results on the dairies.

For that hearing, Gary said he hopes to show the potentially damaging impact of AB 1735 not only on the dairies, but on their customers. “I’m going to have Ron (Garthwaite) and Mark (McAfee) get as much testimony as possible from their customers as to how they would be harmed” by losing access to raw milk.

OPDC and Claravale had argued that AB 1735 threatened to put them out of business, for the sake of enforcing a bacteria standard that had no relationship to raw milk’s safety or the possible presence of pathogens. California’s Attorney General had argued on behalf of the CDFA that the coliform standard has been widely adopted around the country as an important way to determine dairy cleanliness and as an indicator of potential pathogens.

Today’s decision was significant not only because AB 1735 can’t be enforced, but also because of what it says about the court’s inclination in the entire matter. According to Gary, the plaintiffs had to meet two difficult criteria: demonstrate harm to the two dairies and show a substantial likelihood of success on the merits of the claim.

“The game is in our favor,” Gary said. Count this doubter as very impressed.

I know Mark McAfee has a pretty full legal plate, but I wonder if he might have cause for a libel action against the San Jose Mercury News for its article about how Organic Pastures Dairy Co. has been forced to suspend sales of raw cream.

As I recall it from my journalism school days, it’s very difficult for any kind of “public figure” to sue anyone for libel. If you are a politician or own a business, you are generally considered a public figure, and the media can say pretty much anything they want to about you…unless the statements can be shown to be false, and also intended primarily to be defamatory.

It’s tough to meet both these criteria, which helps explain how dozens of publications make attractive livings reporting half-truths about Britney Spears and other celebrities.

But the Mercury News seems to come pretty close to meeting these criteria. Consider this statement in the article: “Organic Pastures in particular has been beset by potentially harmful bacteria in its raw milk in recent years.”

From everything I know, and as Mark reaffirms in his comment on my previous posting, that is a false statement. Unless there’s something both OPDC and the state are hiding from us, Organic Pastures has never “been beset by potentially harmful bacteria in its raw milk…”

The paper uses that statement to then make the connection to two incidents in which people became ill. The fact that there is a lawsuit in one of the incidents gives the paper some latitude in reporting on "charges," but in the other, involving campylobacter, the only connection is that “state public health officials investigated reports of a campylobacter bacterial outbreak that sickened five people who drank Organic Pastures raw milk.”

Can you imagine if a newspaper stated that “state public health officials investigated reports of a campylobacter bacterial outbreak that sickened five people who drank Tropicana Orange Juice”? That just wouldn’t happen. Or at least it wouldn’t happen until a definitive connection had been made between the illnesses and the product. Just as nothing was said in the Massachusetts pasteurized-milk-illness situation until the case was airtight after three men died and a pregnant woman had a miscarriage.

So if the statements are false and misleading, the question becomes, why did the paper make them? Very likely, the reporter was ignorant about the issue and was led astray by state officials, but ignorance isn’t necessarily an excuse for defamation.

Defamation often happens just like this—by making an inaccurate statement and then coming up with all kinds of “evidence” to support it. It’s happening to Barak Obama, with email campaigns suggesting that he must be a secret Muslim because he has a Muslim-sounding name. It gains credence when the radio talk show hosts use it as the basis of discussion, and a supposedly responsible politician like Hillary Clinton says it’s not true, “as far as I know.”

Just like this statement from the Mercury News article: " 'The link appears suspicious, but it's just not something we can prove,' said state epidemiologist Dr. Gil Chavez." Yeah, we'd love to haul Mark in and string him up, but damn it, we're never able to quite prove anything.

If it’s not something you can prove, why print it to begin with? Only one reason I can think of.

I don't really expect Mark to seek legal action against the Mercury News, given all he has going on. But I think he's definitely going in the right direction by forcefully taking on the charges, point by point, again and again and again. He's trying to undo the lie that's been repeated so often it's taken as the truth.

In the context of what's been going on here, I know I'm a little off topic. But maybe a little change of pace is in order...

A couple years ago, I attended a one-day meditation retreat at the Cambridge Insight Meditation Center. After several hours of meditation, Larry Rosenberg, the center’s founder, and leader of this retreat, initiated a discussion about what we were experiencing.

I raised my hand and said that I was a writer, and was having all these amazing ideas for articles perk around in my brain. I was truly amazed, I told the other attendees. 

I guess Larry could sense my pride, because he had only one thing to say to me: “Are you here to come up with writing ideas, or to become enlightened?”

Stopped me right in my tracks.

The weekend before last, I attended another retreat at the same place, only this one was for two days, and with a different leader.

I had the same experience this time—after some hours of meditating, all kinds of ideas were floating around in my mind. But this time, during the discussion, I kept my mouth shut. And, indeed, I tried to label all the article ideas that cropped up in my mind as what they were…passing thoughts, like clouds in the sky.

But after the retreat ended, I found myself wondering...if there could be a television show with people trying to lose weight as competition, why not a competition to see who can meditate the best?

Now, I know, meditation isn’t supposed to be competitive—in fact, it’s the antithesis of competition. But, hey, this is America.

With very little in the way of analysis, I could foresee problems, however. How would you ever pick a winner? And who would want to watch it in the first place? Watching people meditate is even worse than watching paint dry, since you can’t see anything happen.

But, then I realized, that’s not necessarily true. You could attach electrodes to meditators’ skulls to measure their brain activity. People could watch the meters light up and fade to see whose brain activity was changing in which way. Same thing with blood pressure. What could be more exciting than watching blood pressure readings rise and fall?

The big question from a TV producer’s viewpoint would no doubt be about the sponsors, and here I was at a loss. Sure, some advertisers now show people meditating, to poke fun or appeal to the latest fad. But most don’t want to really get serious about it.

No insurance company would want to get involved, since they sell fear, and meditation helps reduce fear. Nor would car companies, since they’re about appealing to ego, and meditation is about reducing the importance of ego. Or beer companies, since they’re about decadence, and meditation discourages decadence. Fast-food chains would be out, since meditation encourages taking care of your body.

I think the producers would probably be asking themselves: “Where’s the fun here? Or the love story? Or the violence?”

Maybe Larry was right, and I should just stick to becoming enlightened.