Law and Order: Dairy Unit

This is shaping up to be a really bad year for raw milk dairy farmers:

A California organic dairy producer vows to fight a federal government lawsuit that seeks to bar his company from shipping raw milk products across state lines.

“The (Food and Drug Administration) is reaching way beyond its authority to intimidate us and what we do, but we will not be intimidated,” said Mark McAfee, owner of the Organic Pastures Dairy Company in Fresno, Calif.

The U.S. Justice Department filed suit against McAfee in a U.S. district court Thursday, Nov. 20, claiming that he endangered public health by violating a federal law against interstate commerce in unpasteurized milk.

The U.S. Health and Human Services Department, which oversees FDA, is also participating in the lawsuit…

According to the federal government’s lawsuit, McAfee circumvented restrictions on the interstate shipment of raw milk by labeling outgoing boxes as “pet food.” Unpasteurized milk is allowed to cross state lines as long as it’s used for that purpose.

However, the retail products within the boxes did not mention pet food and the labeling language was clearly directed at human consumers, according to the government’s complaint.

The lawsuit contends that an employee at Organic Pastures Dairy unwittingly acknowledged the pet food label was a “legal loophole for the firm to be able to ship the product out of state” to an undercover FDA investigator.

This is the culmination of a long investigation by the feds, who apparently have nothing more pressing on their plates than sending undercover agents to purchase unpasteurized milk. Mark sent me copies of earlier subpoenas investigators delivered to his employees. They’re really going to ridiculous lengths. As John Schwenkler described it for Doublethink:

The second time gun-toting, badge-flashing federal agents came to visit Amanda Hall, at least she had some idea of what it was about. A few weeks earlier, after she had gotten home from her job at the Organic Pastures dairy farm in Fresno, California, and was about to head off to school, a pair of men met her at the door and handed her a subpoena to testify before a grand jury of the United States District Court for reasons they chose not to divulge. (“Don’t talk about it to anybody,” she was told.) They had gotten her name, as well as that of one of her co-workers, who was similarly visited at home and subpoenaed, by calling the dairy and recording conversations in which they posed as potential customers. Now, with the subpoenas served and the court date coming up, they had a few preliminary questions to ask her.

Well, not exactly a few. Hall, a 23-year-old mother of one who manages Accounts Receivables and acts as a sales consultant for Organic Pastures, sat with the men—who identified themselves as special agents of the Food and Drug Administration’s Office of Criminal Investigations—for 15 minutes as they repeated the same question about the legality of her employer’s interstate shipping procedures, “trying,” she says, “to have me change my answer.” They didn’t get what they wanted from the session, but as they were about to leave, one of the agents suggested Hall wear a wire to a meeting with her boss. “It’s funny,” she says. “I’d been sitting there telling them that these people were basically my family,” and now she was being asked to spy on them. “How much is it worth to you?” she asked, just to see what they would say. The answer came (“It wouldn’t be millions, but we could make it worth your while”), Hall politely refused, and the agents went off into the night. A few days later, just 24 hours before the grand jury was scheduled to convene, Hall was informed that her testimony would no longer be needed.

The FDA undoubtedly believes it’s protecting people by pursuing this case, but if anything it just shows the futility of banning raw milk sales. Suppose the DOJ wins in court and Mark can no longer ship anything out of state. His customers aren’t likely to give up drinking raw milk. They’ll find other dairymen to sell it to them or buy it online from less reputable operations, further developing the black market for raw milk. And they’ll distrust the government’s health warnings even more than they do now, viewing this as yet another example of persecution by ill-informed regulators in bed with big agricultural interests.

It would be far better for regulators to focus on making sure the pasteurized milk consumed by the vast majority of Americans is safe and let raw milk sales be legal, esoteric, and visible. This would make it easier for consumers to get accurate information and to trace disease outbreaks when they occur. Case in point: News reports of a 2006 E. coli lawsuit against Mark’s farm are on the first page of Google results if you search for “Organic Pastures raw milk” (no quotes). Dairies that sell unpasteurized milk to the public know that this kind of coverage can kill their businesses, so they’re extremely careful in the way they run their farms. You don’t get that kind of accountability in a black market.

Instead of that sensible approach we have undercover operations against McAfee in California, raids on Mennonite farmer Mark Nolt in Pennsylvania, and Michael Schmidt facing up to six months in jail in Ontario, CA for defying court orders. All for what? To keep consenting adults from drinking the milk of their choice. Regardless of how you feel about pasteurization, that’s an affront to free society.

Update: The article also notes that Organic Pastures has already ceased shipping ordinary raw milk over state lines because of the FDA’s earlier threats. They currently ship only colostrum, milk secreted immediately following the birth of a calf, which Mark claims is classified as a dietary supplement rather than as food.

Raw milk rebellion
The man ain’t got no cultures


8 thoughts on “Law and Order: Dairy Unit”

  1. I agree with you that the whole thing is ridiculous. It’s ridiculous to regulate this raw milk and it’s a ridiculous waste of government resources to engage in these sting operations as if it’s the War on Drugs (which is also a ridiculous waste of lives and resources, but at least against something that can legitimately be considered harmful).

    That said, what did McAfee think was going to happen when he falsely labeled his product “pet food”? No matter how ridiculous the law, he basically engaged in fraud in order to avoid the law. (Assuming the government can prove the allegations in its complaint.) I don’t have a whole lot of sympathy for that. I suppose you could call it an act of civil disobedience…but those who engage in civil disobedience usually do it in the open with the intent of trying to draw attention to some bad law. They don’t try to pretend they aren’t breaking the law.

  2. How is that fraud? He’s not deceiving customers and the milk certainly could be used as pet food. At worst it sounds like someone might have gotten sloppy in adhering to the technical letter of the law. I don’t see anything wrong with trying to take advantage of the regulatory loopholes provided by the law, as long as both sides of the transaction know what they’re getting.

  3. Oh, come on, Jacob! It’s clearly meant for human consumption. To label it pet food is simply untrue. Just because you don’t like the law – and, to be clear, I don’t like it either – and just because the FDA is behaving like a bunch of buffoons doesn’t make lying about your product to evade regulators okay.

  4. “I don’t see anything wrong with trying to take advantage of the regulatory loopholes provided by the law, as long as both sides of the transaction know what they’re getting.”

    But therein lies the rub; you’re opposed to bad and inefficient regulation, and one of the chief causes and effects of bad regulation is people trying to take advantage of loopholes. We all know why that loophole is there (we don’t care nearly as much what kind of milk our pets drink) and we all know what McAfee was really doing (lying to get around the ban). If he didn’t pull that kind of crap we wouldn’t be spending so much money to prosecute him. If he put his efforts into convincing people the law should be changed – instead of putting it into finding loopholes that can be abused – he’d get a lot further.

    Just your few posts on raw milk have convinced me, and I’m sure just about everyone else who reads this blog that the milk is safe and tasty and should be legal. Trying to exploit loopholes leads to more regulation, not less. I’d suspect that’s something you care a lot about.

  5. You’ve got a lot more faith in democracy than I do, Matt. If it were that easy to get dumb laws overturned, we wouldn’t still be locking up cancer patients for lighting up a joint now and then.

    The fact is California raw milk farmers just went through a really long campaign trying to protect their businesses and lost in the state legislature. And that’s dealing with elected politicians. In this case they’d have to convince unaccountable FDA regulators to change the rules.

    When a businessman just trying to sell his customers what they want and is repeatedly screwed by multiple levels of government, I don’t think it’s an adequate response to tell him he should have just tried harder to convince the government to leave him alone.

  6. It’s not faith in democracy, it’s faith in the persuasive power of reason. A loss this past time around doesn’t gaurantee a loss the next time around, and time and reason are a nearly unstoppable force. Take the long view and this is just a set-back, not a reason for committing fraud.

Comments are closed.