The Complete Patient

This is the time of year when prognosticators look ahead and try to make predictions. One of the more interesting ones I read recently was a Reuters prediction of the top health issues of 2008. Guess which was #1. You’ve got it, raw milk.

I had kind of put the article out of my mind, since I tend not to take journalists’ prognotications all that seriously—after all, I know how many of mine actually turn out correctly. But Mary McGonigle-Martin’s observations on my previous posting about the Food and Drug Administration’s raw milk presentation got me thinking…Why would the FDA change its presentation after the fact, and remove details of illnesses supposedly caused by raw milk?

Sometimes it’s in the little things that you learn a lot about governmental intentions. I remember when Soviet experts used to try to read between the lines of the old Soviet newspaper, Pravda, for insights into real government intentions. We’re kind of at that point in the American experience, I’m sorry to say.

 

This may sound far out, but I think the reason the FDA took out the specifics of Mary’s son and the other children supposedly made ill by raw milk is that it's a first step in eventually deleting out the entire affair. The problem the FDA faces is that not only was the connection not proven, but one of its partners, the California Department of Food and Agriculture, actually disassociated itself from the claim.

 

Last July the CDFA paid Organic Pastures Dairy Co. $11,418.50, to settle the dairy’s claim against the agency for invading its farm and slapping a quarantine on the dairy for two weeks in September 2006. The action cost OPDC many thousands, but the fact that CDFA decided to settle at all—“to resolve the issue of the propriety and value of that loss” and get OPDC to release the state from any future claims, according to the one-page settlement—was a legal acknowledgment that its suspicions were wrong. It couldn’t make the connection between the illnesses and OPDC, and by settling, was formalizing an admission it made the previous October in statements to the media.

 

(An aside: in the “Stipulation and Release” agreed to by the CDFA and Organic Pastures last July, the two parties agreed that “both CDFA and OP shall not publicize this resolution beyond those necessary to effectuate the agreement.” Despite agreeing to keep the document confidential, Mark McAfee of OPDC decided to distribute to the media the text, along with a copy of the check he received from the state, after AB 1735 was secretly passed and both CDFA and legislative officials suggested the measure was implemented because of the children’s illnesses the previous September.)

 

The FDA will have difficulty continuing with the same claim about the children’s illnesses if a sister agency legally agreed to the exact opposite, especially with a major court case possibly upcoming in California. Everyone will need to get their ducks in a row because documents and public claims can be used as evidence in the suit by OPDC and Claravale Farm.

 

The fact is that Mary and Dave Milano, and I and the FDA can all think what we want about what caused the California e.Coli 0157:H7 illnesses last September, but the evidence for a courtroom proceeding isn’t there. It doesn’t begin to approximate the evidence in the Massachusetts pasteurized-milk listeriorsis cases now unfolding.

 

And this leads into the larger point in all this: the coming year is likely to be one dominated by legal cases involving raw milk.

Such machinations as in California suggest to me these battles are going to be knock-down bare-knuckles battles. Consider the pre-court maneuverings now going on in the suit by Barbara and Steve Smith and Meadowsweet Dairy LLC against New York agriculture officials over the herdshare concept.

 

Over the last week, the plaintiffs’ lawyer (and also the lawyer in the CA case), Gary Cox of the Farm-to-Consumer Legal Defense Fund, has been trying to adjust the schedules of two NY hearings because he is a single parent and his children’s mother will be out of the country and unavailable for a two-week period in January. Such adjustments are routine in most legal cases, no matter how acrimonious the parties. It’s just professional courtesy among lawyers, who will re-schedule hearings on a moment’s if an opposing lawyer’s spouse is coming down with a minor headache. But nothing doing in this case. Lawyers for New York’s Department of Agriculture and Markets refused to make any changes, prompting Gary to email the lawyers yesterday:

 

“As a former public servant myself for 14 years prosecuting polluters with the Ohio Attorney General's office, and as a practicing attorney for nearly 20 years, I can honestly say that you two are the most unprofessional attorneys I have ever worked with.  Please tell your client that the gloves are off and no more Mr. Nice Guy.  You and your clients deserve to be publicly humiliated for your arrogant, vindictive and unprofessional attitude.  I hope you have school-age children who have to be left alone unsupervised for two days without the love and comfort of their parents.  Your behavior is outrageous.  Shame on you both and your client.”

 

There’s another message in all these machinations. The federal and state bureaucracies are taking this raw milk situation very seriously. They are running scared, and for good reason: they are fighting for the wrong cause.

***

Setting the record straight: The Boston Globe followed up on the four cases of listeriosis in pasteurized milk (described in my previous post) with two additional articles. One was a question-and-answer piece about listeriosis. After having written probably half a dozen articles-updates about the fact that two people died and one woman had a miscarriage from consuming pasteurized milk, here is the reporter’s one reference to raw milk: “Can anything be done to prevent catching the disease {listeriosis} in the first place? Avoid unpasteurized milk…”

As reported previously on this blog, the Centers for Disease Control’s own report on illnesses from raw and pasteurized milk over the period 1973-2005 shows zero illnesses from listeriosis in raw milk…and 138 from pasteurized milk.

Enclosure

The U.S. Food and Drug Administration’s web site prominently features a 64-slide presentation, “Raw Milk: Associated Public Health Risks”. It is full of statistics and descriptions of illness from raw milk--many of them questionable. It concludes on slide 59: "Pasteurizaton does not appreciably alter the nutritive value of milk. Claims to the contrary by raw milk advocates are without scientific support."

 

I’ve mentioned the FDA presentation before, but I think of it now because of a major case of illness from milk contamination in Massachusetts—contamination from pasteurized milk. It’s received extensive coverage in today’s Boston Globe, and apparently triggered dozens of calls to state health authorities by concerned consumers.

 

According to the reports, three elderly individuals were sickened by listeriosis, and two of them died. A fourth individual—a pregnant woman in her thirties—had a miscarriage.

 

If you are a raw milk drinker and you have been following some of the cases of alleged listeria contamination of raw milk in New York State, you will be interested to know a few curious facts about this case.

 

First, the initial illness actually occurred last June. The next one was in October, and then two occurred in November.

 

Second, the dairy responsible for the contaminated milk has shut down “voluntarily” until more can be learned about the cause of the contamination.

 

And third, the listeria bacteria, with the same genetic footprint that made all four individuals sick, was actually found in a carton of the milk purchased by a consumer.

 

I point these facts out because we know that if someone who became ill last June had consumed raw milk, the state would have acted much more quickly. Pasteurized milk isn’t a red flag to investigators, even though it sickens hundreds of consumers each year.

 

Also, the dairy would have been forced to shut down, not encouraged to shut down voluntarily. And the cause of the illness would have been laid on the raw milk dairy, even if the listeria couldn’t be found in the milk.

 

I really don’t mean to make this sound like a whining “I-told-you-so” commentary. It isn’t.

 

According to Terri Lawton, manager of a small Massachusetts dairy, Oake Knoll Ayrshires Farm, that sells raw milk directly to consumers from her farm outside Boston in Foxboro, the dairy in the middle of this storm, Whittier Farms, is a small high-quality operation, which delivers milk to consumers’ homes and sells from a couple of its own stores. “Whittier Farms pasteurizes and bottles their milk in a much larger facility" than hers, she writes on her listserve. “But from what I've seen of their operation, they do a very good job and I'm surprised and saddened to hear about this.” 

 

No, I think about the suit from Organic Pastures and Claravale Farm charging California's agriculture officials with "denial of equal protection." All this new case tells us is that we run a risk of illness from many foods. Should we ban pasteurized milk to eliminate the risk? After all, two people died and a pregnant woman lost her child. I don't think so, any more than we should ban raw spinach or ground beef. Yes, officials should investigate such cases carefully to learn what went wrong, so the dairy can correct the problem. Be objective, and fair.  

 

I have a feeling that this particular milk contamination case won't be added to the FDA presentation.  

 

Why is it that there are “no standards in place for other food providers, for example, beef, poultry, pork, eggs, vegetables, bakers, or fin or shell fish, to comply with a coliform limit in the food stuffs they produce”?

That is one of the key questions raised in the court suit promised yesterday by Mark McAfee, which was filed today in California’s San Benito County. The plaintiffs are Mark’s Organic Pastures Dairy Co. and the second main raw milk producer in California, Claravale Farm, against the state and the secretary of its Department of Food and Agriculture, A.G. Kawamura.

The suit charges the state with violating three key constitutional protections afforded OPDC and Claravale:

1. “Denial of due process.” The suit make an intriguing argument, pointing out that AB 1735, in seeking a ten-coliform-per-milliliter limit in raw milk, is intended to make California consistent with federal milk standards. Since the federal government bans interstate shipment of raw milk, AB 1735 is inconsistent, maintains the suit.

“If AB 1735 were consistent with federal interstate milk shipping guidelines it would prohibit the consumption of raw milk within the State,” argues the suit. “However, AB 1735 authorizes the consumption of raw milk and thus is unnecessary in order ‘ to be consistent with federal interstate milk shipment guidelines .’ AB 1735 is unconstitutional because it is not rationally related to a legitimate governmental interest.”

2. “Denial of equal protection.” The fact that raw milk is singled out for special regulation, unlike other foods, it has lost the constitutional guarantee of equal protection, argues the suit.

“Plaintiffs produce raw milk, a product that is different from pasteurized milk, yet Plaintiffs are subjected to the same coliform standard that is required for pasteurized milk. AB 1735’s effect, therefore, is to target raw milk producers because they do not pasteurize their milk.”

Moreover, argues the suit, “AB 1735 does not operate fairly and uniformly against all food producers who are similarly situated,” such as producers of shellfish, eggs, pork, and other foods.

3. “Regulatory taking without just compensation.” The U.S. Constitution’s Fifth Amendment is best known for prohibiting self incrimination, but it ends with this prohibition: "...nor shall private property be taken for public use, without just compensation." 

The suit argues, "It is not technically possible nor economically feasible for Plaintiffs to meet the ten coliform limit at the bottle. Because they are not able to meet the requirements of AB 1735, Plaintiffs cannot operate their business and will suffer an adverse economic impact. Plaintiffs’ operation of their respective businesses constitutes a property interest that is protected by the United States and California constitutions.”

My initial impression is that this suit is very important. It may turn out to be moot if California repeals AB 1735. But in any event, it seems like an important template to challenge regulations that unreasonably target raw milk for special harsh treatment--in light of a safety track record that is pretty darn good compared to many other foods.

What will the New Year bring raw milk drinkers in California? Next Monday night, of course, comes the midnight hour, when new coliform standards take effect, and raw milk in California could turn into the proverbial pumpkin.

 

Mark McAfee of Organic Pastures Dairy Co., and producer of upwards of 90% of California’s raw milk, says the wicked stepsisters are having second thoughts, and the raw milk honeymoon, whereby more than 30,000 consumers can buy raw milk from local groceries and health stores is intact.

 

“It will be a happy healthy New Year, indeed,” he writes in an email and posting on the OP web site. “In the last three weeks, the CA raw milk battle front has been abuzz with tremendous grass roots effort, back stage political activity, and high level meetings. As a result, the course of California raw milk history has been changed.”

 

Before I provide Mark’s reasons for optimism, I should say that nothing has changed in terms of the legislative situation. As 2008 dawns, the law on California’s books states that raw milk must not have more than ten coliforms per milliliter. As long as it’s on the books, the authorities can enforce it at their discretion.

 

In recognition of that situation, and having learned to take nothing for granted when it comes to politicians and bureaucrats, Mark is filing a lawsuit this week in San Benito County, requesting an injunction “against enforcement of AB 1735 standards.”

 

For now, here are the positive developments Mark is hanging is optimistic hat on:

 

--California’s secretary of agriculture, A.G. Kawamura, “has dedicated himself to safe raw milk for California, declaring that ‘AB 1735 standards will not act as a de-facto ban on raw milk.’” Mark says the secretary “made this statement adamantly and repeatedly at a December 20^th meeting with Claravale and Organic Pastures dairy representatives.”

To me, his quote sounds like an elegant way of saying, “I’m from the government and I’m here to help.”

 

--Legislation to reverse AB 1735 will be introduced in January. According to Mark, “Assemblymen and State Senators who voted for AB 1735 are now very upset that they were misled, and support immediate repeal on procedural grounds… Hearings will soon be announced as part of the new bill and legislative process that will start in January. Your attendance will be essential to deepen the protections put in place.” But if the legislature votes a change, with the governator go along with it?

 

One thing definitely working in favor of raw milk in California is impressive media coverage of the pending coliform law. The Associated Press had a story picked up in a number of newspapers and television stations around the state.

 

We'll see. This story has taken more strange twists and turns than Cinderella, and I wouldn't be surprised to see a few more.

The future of the National Animal Identification System (NAIS) is clarifying itself much more quickly than I ever could have imagined.

 

One of the premises of the article I recently co-authored for The Nation about NAIS is that the identification program is ultimately about enabling industry to keep tabs of genetic information—for potentially huge intellectual property riches—as cloning and transgenics take hold.

I thought that prediction was years into the future—and that the shorter-term purpose of NAIS is to enable agribusiness to consolidate its chokehold on our food supply, at the expense of small sustainable farms.

 

Yet here were are less than two weeks after the article came out, and the long-term predictions are already beginning to be realized. Two companies responsible for producing most of the cloned animals in the U.S. are proposing to market cloned products, using the NAIS as their tracking system.

 

 

No, there’s no mention of NAIS in the national news media announcements of the companies' “voluntary” programs to begin marketing, and the national media don’t yet get the connection, but that’s what the companies are talking about.

 

Very cleverly, the biotech companies behind the new initiative—Trans Ova Genetics and ViaGen—have positioned it as “a voluntary effort” that will enable consumers to identify, and thereby avoid, cloned products. But consider this language in The Wall Street Journal article, which talks about “a tracking program” that “will have cloning companies give each cloned animal a quarter-size radio-frequency identification tag. The tag number would be entered into a registry accessible by those in the supply chain…”

 

The Washington Post article uses similar language: “The system calls for all cloned farm animals to be registered in a central tracking system and requires farmers who raise them to sign affidavits promising to keep them out of the food supply or to segregate their meat and milk so that other foods can be reliably labeled as ‘clone-free.’" (Interestingly, neither of the companies, Trans Ova or ViaGen, has an announcement about the program posted on its web site.)

 

The U.S. Food and Drug Administration hasn’t given final approval to cloned meat and milk, but look for that next, and probably sooner rather than later.