Organic Pastures Dairy Company, California

Case-OPDC-600x626By Pete Kennedy, Esq.

Update, Winter 2015

The Farm-to-Consumer Legal Defense Fund has agreed to represent Organic Pastures Dairy Company (OPDC) over OPDC’s citizens petition to modify the interstate ban on raw butter. FTCLDF general counsel Gary Cox will be representing McAfee. The petition filed by OPDC founder and president Mark McAfee requests that “salted or cultured raw butter that is tested, state inspected, state regulated, carries a ‘government approved warning statement’, and labeled for retail sale in one state may be transported to another state if that other state allows the sale of unpasteurized dairy products.” McAfee had previously filed a petition to modify the interstate ban on raw milk but had abandoned that effort shortly after FDA rejected his petition in 2013 (see Update, Spring 2013 below).

OPDC filed the raw butter petition on March 2, 2015 and has yet to receive an answer from FDA; under federal law the agency has six months to submit a response to a citizens petition.

With the evidence provided in the petition it is difficult to see how raw butter could ever have been banned in interstate commerce. In response to the Freedom of Information Act (FOIA) requests filed by McAfee, neither the California Department of Public Health (CDPH) nor the California Department of Food and Agriculture (CDFA) could find a single case of foodborne illness being attributed to raw butter consumption; CDPH’s search went back 20 years while CDFA’s search went back 40. Further, according to the petition, “the CDC has no outbreaks, no cases of illness or death recorded in its databases related to commercially produced raw butter illness or pathogen defects.” The petition claims there is only one foodborne illness outbreak linked to non-commercially made butter. The petition points out that during the court case leading to the ban (Public Citizen v. Heckler), “there were no illness or evidence of risk presented on raw butter” and that the case actually involved only raw milk.

McAfee also filed a FOIA request with FDA asking for any data or information on raw butter consumption being linked any case of human illness but has not received an answer.

There is much at stake in the case; there are around 30 states that allow the sale of raw dairy products (usually milk and cheese aged 60 days). Most of these states do not allow the sale of raw butter, meaning that—if the petition were to be successful—there would be access for many consumers who currently cannot obtain it. The granting of the petition could also spur state legislatures to pass laws legalizing the sale of butter and other raw dairy products. It will be interesting to see what defense FDA has for banning a product that has a better track record for food safety than most “legal” foods. FTCLDF will be providing updates on the case as events warrant.

Update, Winter 2014

On November 25, the FDA rejected a second citizen’s petition from Organic Pastures Dairy Company (OPDC) to modify the interstate ban on raw milk for human consumption (for more background on OPDC’s original citizen’s petition see the Spring 2013 update below). OPDC had requested that FDA amend the federal regulation banning raw milk to contain an exception reading:

“Raw milk that is tested, state-inspected, state-regulated, carries a ‘government warning statement’ and labeled for retail sale in one state, may be transported to another state if that state allows the sale of unpasteurized milk and or dairy products.”

In denying the latest OPDC petition, FDA continued its long history of disrespecting consumer freedom of choice. The agency also held to its double standard on raw milk requiring that there must be a guarantee of safety for it to be legal, something it doesn’t demand for any other food. In his letter rejecting the petition, Michael Landa, director of FDA’s Center for Food Safety and Applied Nutrition, stated “…there is no reliable method available to determine that raw milk, even from a state-regulated farm or raw milk manufacturer is or will be free of pathogens, or that raw milk from any such farm or manufacturer will not cause disease.”

The second OPDC petition contained many more documented sources on raw milk safety and benefits than the original including studies finding raw milk reduces allergies and prevents asthma. In a rare admission, the FDA letter acknowledged: “In some studies, the association between raw milk consumption and reduced incidence of allergic disorders / asthma was found to be independent of other farm-related factors or living on a farm, and individuals reported to consume raw milk were found to have evidence of certain protective immune markers as a possible explanation for this association.”

The letter, however, then downplays the importance of the studies by noting that they “do not always distinguish between raw milk and pasteurized milk” and that due to this and other related limitations in the studies “it cannot be concluded that raw milk was consumed alone and contributed to the stated associations.” In making its conclusion, FDA ignored the fact that in at least one of the cited studies the authors had specifically determined that milk which had not been heated had a greater protective effect.

In its letter, FDA also tried to discredit a broad CDC survey finding 3 percent of the U.S. population regularly consumes raw milk by claiming that “the results of that survey may not be taken to mean that the survey respondents usually or regularly drink raw milk” because the question CDC used was whether people had consumed any unpasteurized milk in the seven days prior to their participation in the survey. FDA claims less than 1 percent of the population regularly consumes raw milk meaning the agency believes over two-thirds of the participants in the survey who said they drank raw milk only did so occasionally.

Even though it is increasingly in the minority, the agency, in the letter, also stuck to its position that milk is milk and pasteurized milk and raw milk should not be regarded as two different products. This view enables FDA to distinguish between a “legal” food like oysters and milk; with the latter, according to the agency, having a practical measure to eliminate the “contamination”—pasteurization.

FDA’s double standard on requiring a guarantee of raw milk safety is shown in the agency’s response to a report by the Michigan Fresh Unprocessed Whole Milk Workgroup in support of legal access to raw milk. The Michigan workgroup consisted of members of industry, academia, and government, as well as raw milk producers and consumers and spent over six years completing its work. FDA seized on a statement in the report that following the report’s guidelines on the production, handling and consumption of raw milk “will not guarantee that the produced and consumed milk will never be a vehicle for milk-borne illnesses.” According to the agency, the workgroup does not imply “standards will be an assurance that the (raw) milk will always be safe…the document does not address FDA’s safety concerns regarding raw milk.”

The FDA letter is further proof that the agency continues to be the biggest threat to freedom of food choice. OPDC will be seeking a federal district court ruling overturning the denial of its petition.

Update, Spring 2013

On February 26 FDA finally issued its response denying the citizens petition filed by Mark McAfee, president and founder of Organic Pastures Dairy Company (OPDC), seeking to amend the regulation banning raw milk for human consumption in interstate commerce. McAfee filed the petition in December 2008; federal law requires a response by the petitioned agency within six months from the time of filing. The petition would have modified the ban by adding to the regulation the statement, “raw milk that is tested, state inspected, state regulated, carries a ‘government warning statement’ and labeled for retail sale in one state may be transported to another state if that other state allows the sale of raw unpasteurized milk and/or dairy products.”

In rejecting the petition, FDA relied on the record that led to the establishment of the ban twenty-five years ago, maintaining that the “petition fails to establish that current testing, state inspection, and state regulation programs can adequately mitigate the dangers posed by raw milk. This conclusion is in keeping with the 1987 rulemaking, in which FDA declined to permit the interstate distribution of certified raw milk, noting the association between the consumption of raw milk and the outbreak of disease.”

In its letter denying the petition, FDA stated that no technological advances had been made to adequately substitute for pasteurization, remarking that raw milk producers would not use technology to reduce pathogens anyway because “many raw milk producers and advocates, including yourselves [McAfee and raw milk consumer and co-petitioner Christine Chessen] consider the bacteria present in raw milk, including pathogens which might be present, to be ‘beneficial bacteria.’”

FDA rejected the assertion that warning labels would suffice instead of a ban. As it did in the initial rule-making establishing the ban, FDA continued its mantra that consumers need to be protected from themselves stating, “Consumers are not generally expected to take any additional steps to reduce the potential risk and are poorly equipped to assess the likelihood of infection. The infirm, the elderly, and the young are particularly susceptible to serious risks of infection presented by consuming raw milk and raw milk products and, in many cases, may not have the ability or opportunity to understand the risks identified in labeling.” While FDA was rejecting McAfee’s petition they were continuing their efforts to “protect” children by entertaining a petition from the National Milk Producer Federation (NMPF) and the International Dairy Foods Association (IDFA) that would allow “non-nutritive” sweeteners such as aspartame to be an ingredient in milk and seventeen other dairy products. The petition also requested that the presence of the non-nutritive sweeteners not be required to be included in the product label. NMPF and IDFA claim that school lunch programs would particularly benefit from the petition’s approval because the dairy products with aspartame would promote healthful eating habits for children and would reduce the incidence of childhood diabetes.

Following the letter to McAfee were some twenty-three pages of documents detailing foodborne illnesses attributed to the consumption of raw milk products and recalls of raw dairy products. One document, “Table 5 – Outbreaks associated with raw milk and raw milk products in California 1971 to September 2012”, claimed the Jalisco cheese foodborne illness outbreak was associated with raw milk; in the Jalisco outbreak, forty-eight people died from listeriosis by consuming pasteurized cheese. FDA’s false claims are becoming more common among public health agencies these days with the stepped up campaign to discredit raw milk. The government knows greater numbers of consumers are ignoring its attacks against raw milk and are seeking access to the product.

Update, Summer 2012

On May 10 the California Department of Food and Agriculture (CDFA) issued a press release announcing that raw milk, raw skim milk, raw cream and raw butter produced by Organic Pastures Dairy Company (OPDC) was being recalled and quarantined. The order came after raw cream produced by the dairy tested positive for campylobacter.

This was the second recall and quarantine order for OPDC in six months (see Spring 2011, Winter 2011 and Spring 2012 updates below for background). In the press release, it was stated that “from January through April 30, 2012 the California Department of Public Health [CDPH] reports that at least ten people with campylobacter infection were identified throughout California and reported consuming Organic Pastures raw milk prior to illness onset.”

On May 18, CDFA announced the quarantine was lifted; during the quarantine OPDC was prohibited from producing raw milk products for the retail market. According to Mark McAfee (OPDC’s founder and CEO), during a hearing with state officials, a CDPH employee reported that thirty-one cases of campylobacter “were received and processed by CDPH from consumers that had drank raw milk between January 1 and April 30, 2012.” None of those individuals consumed raw cream; none of the raw milk tested by CDPH was positive for campylobacter. McAfee further stated that a doctor from CDPH disclosed at the hearing that there are large numbers of campylobacter cases the department does not address but they do watch all the cases linked by consumer interviews to raw milk.

Another disturbing aspect of the recall was the conduct of Los Angeles County public health officials. The LA County Department of Public Health (LA-DPH) received a list of OPDC customers in the county that had been shipped the dairy’s products via UPS. One customer on the list reported to McAfee that she received six or seven calls from the LA County health department demanding she turn over all OPDC raw milk she had in her possession. When she refused, investigators from LA-DPH showed up at her doorstep and again demanded she turn over her raw milk supply; she refused one more time and ordered them off her property.

McAfee is hoping to have a hearing in the California Senate on CDFA’s and CDPH’s policy regarding the investigation of foodborne illness outbreaks. Officials from the Food and Drug Administration (FDA) and the Centers for Disease Control (CDC) should be at the hearing as well to be better able to determine how much of the bias against raw milk by the state government is coming from federal pressure.

Update, Spring 2012

After being under a quarantine order for a month that prohibited it from selling its raw dairy products, Organic Pastures Dairy Company (OPDC) resumed selling to the public on December 16 after the California Department of Food and Agriculture (CDFA) issued a press release announcing it had lifted the quarantine of OPDC (see Winter 2012 update below). That morning OPDC owner Mark McAfee had filed suit to lift the quarantine. McAfee resorted to the courts after CDFA had kept the quarantine on even when the dairy had passed inspection by the department and all testing done on OPDC products had come up negative. CDFA has tried to put McAfee out of business before and this looked like more of the same. The one product CDFA refused to let the dairy sell again was raw colostrum; prior to the quarantine, OPDC had sold the product as a dietary supplement which was not regulated by CDFA. McAfee blamed passage of the FDA Food Safety Modernization Act for the change in the department’s position on colostrum and for the more hostile regulatory climate for raw foods that has since developed.

Update, Winter 2011

On November 15 the California Department of Food and Agriculture (CDFA) announced a statewide recall of Organic Pastures Dairy products, ordering all product to be pulled from retail store shelves. CDFA also issued a quarantine order prohibiting OPDC, the nation’s largest raw milk dairy, from producing raw milk products until further notice.

According to a press release issued by the department, “the quarantine order came following a notification from the California Department of Public Health of a cluster of five children who were infected, from August through October, with the same strain of E. coli O157:H7. These children are residents of Coutra Costa, Kings, Sacramento and San Diego Counties. Interviews with the families indicate that the only common reported food exposure is unpasteurized (raw) milk from Organic Pastures dairy. Three of the five children were hospitalized with hemolytic uremic syndrome.”

CDFA did admit that all OPDC product collected from the families of the ill children tested negative for E. coli O157:H7. The department’s investigation was unusual in that typically when a condition as serious as HUS results from a foodborne illness outbreak attributed to raw milk consumption the state informs the public in a much shorter period of time than it did in this case. Two questions not answered by either CDFA or the California Department of Public Health were (1) how many cases of food poisoning from E. coli O157:H7 were there in the state of California during the two month period and (2) was the strain of the pathogen found in the five ill children one commonly found in other foodborne illness outbreaks.

On December 2 the quarantine was lifted and OPDC resumed production; if some additional testing CDFA was doing turned out to be negative, OPDC would be shipping within a week from the end of the quarantine. Mark McAfee, CEO of Organic Pastures and founding president of the Raw Milk Institute (RAWMI), said the institute would not be affected by the shutdown. McAfee founded RAWMI earlier this year to provide common standards and training for raw milk producers.

Update, Fall 2011

On November 15 the California Department of Food and Agriculture (CDFA) announced a statewide recall of Organic Pastures Dairy products, ordering all product to be pulled from retail store shelves. CDFA also issued a quarantine order prohibiting OPDC, the nation’s largest raw milk dairy, from producing raw milk products until further notice.

According to a press release issued by the department, “the quarantine order came following a notification from the California Department of Public Health of a cluster of five children who were infected, from August through October, with the same strain of E. coli O157:H7. These children are residents of Coutra Costa, Kings, Sacramento and San Diego Counties. Interviews with the families indicate that the only common reported food exposure is unpasteurized (raw) milk from Organic Pastures dairy. Three of the five children were hospitalized with hemolytic uremic syndrome.”

CDFA did admit that all OPDC product collected from the families of the ill children tested negative for E. coli O157:H7. The department’s investigation was unusual in that typically when a condition as serious as HUS results from a foodborne illness outbreak attributed to raw milk consumption the state informs the public in a much shorter period of time than it did in this case. Two questions not answered by either CDFA or the California Department of Public Health were (1) how many cases of food poisoning from E. coli O157:H7 were there in the state of California during the two month period and (2) was the strain of the pathogen found in the five ill children one commonly found in other foodborne illness outbreaks.

On December 2 the quarantine was lifted and OPDC resumed production; if some additional testing CDFA was doing turned out to be negative, OPDC would be shipping within a week from the end of the quarantine. Mark McAfee, CEO of Organic Pastures and founding president of the Raw Milk Institute (RAWMI), said the institute would not be affected by the shutdown. McAfee founded RAWMI earlier this year to provide common standards and training for raw milk producers.

Update, Spring 2011

On February 24 Federal Judge Sandra Snyder ordered that the motion of Organic Pastures Dairy Company (OPDC) to withdraw its guilty plea to two counts of “introduction and delivery for introduction into interstate commerce of misbranded food” (that is, selling for human consumption food labeled for animal consumption) be granted. In December 2008, OPDC had entered into a plea bargain with the United States where sentencing on the guilty plea was delayed for twenty-four months, with the dairy being allowed to withdraw its guilty plea if it committed no further violations during that time. [See Summer and Fall 2008 updates below for background on the case.]

The February 24 order also granted the motion of the United States to dismiss with prejudice the same charges against OPDC’s founder and president, Mark McAfee. McAfee had pled innocent to the charges in January 2009 with the U.S. government agreeing to defer prosecution for twenty-four months and to drop the charges if no violations were committed during that time.

In the meantime, McAfee has yet to hear from the Food and Drug Administration (FDA) on his petition to the agency to modify the federal regulation banning raw milk for human consumption in interstate commerce. The petition requests FDA issue a rule permitting the sale of raw milk from one state where the sale is legal to another state where the sale is also legal. The law requires that FDA respond to a petition no later than six months from the time of its filing; McAfee filed the petition in December 2008.

Update, Spring 2009

On January 9 under a plea bargain agreement, Organic Pastures Dairy Company (OPDC) pleaded guilty in a federal district court to two misdemeanor counts of “introduction and delivery for introduction into interstate commerce of misbranded food.” (See Summer and Fall 2008 updates below for background on the case.) Under the plea bargain, sentencing was postponed for twenty-four months. If the dairy commits no further violations during that time, OPDC will be free to withdraw its guilty plea and the government will cease its prosecution of the case.

At the same time OPDC entered its plea, the company’s founder and president Mark McAfee pleaded innocent to the same charges and the government agreed to defer prosecution for twenty-four months. If no violations are committed during that time, the prosecution will drop the charges.

Still to be worked out between the dairy and the FDA was a memorandum of understanding between the two parties specifying the terms and conditions under which OPDC could sell raw milk for animal consumption in interstate commerce. The agency is willing to let the dairy ship across state lines to zoos, veterinary practices and research labs; but the requirements FDA wants to impose on the dairy and its customers are so onerous that Mark has, for now, decided to halt all shipments of raw milk in interstate commerce. For instance, the agency wants those purchasing raw milk from outside California to “destroy or return to OPDC any unused product…[and] provide OPDC with documented accounting of all quantities destroyed within 15 days of destruction.” Penalties for violations of this and other conditions FDA wants to impose on the dairy and its out-of-state customers could be up to $250,000 in fines and five years’ imprisonment or both. Negotiations between the dairy and the FDA are ongoing.

As of this time, there has been no resolution to the civil complaint the U.S. Attorney’s Office in Fresno has filed against OPDC for distributing misbranded raw milk and raw milk products in interstate commerce. (See Winter 2008 update below for background on the case.)

Update, Winter 2008

Growing numbers of consumers who want to obtain raw milk these days can find a source without much trouble. That being said, there is a continuing campaign by state and federal governments to either eliminate or reduce producer access to consumers who want raw milk. FDA is at the center of the effort to effectively deny consumers their legal right to consume raw dairy products. This update begins with the latest development in FDA’s attempt to completely shut down the interstate raw dairy sales of Organic Pastures Dairy Company, the nation’s largest raw milk retailer.

On November 20, 2008, the federal government, through the U.S. Attorney in Fresno, filed a civil complaint to permanently enjoin Organic Pastures Dairy Company (OPDC) and its CEO Mark McAfee from distributing raw milk and raw milk products in interstate commerce. The complaint alleged that OPDC was delivering misbranded food into interstate commerce because products labeled as pet food were being knowingly sold for human consumption.

The suit also alleged that OPDC was delivering new drugs into interstate commerce. Under the Federal Food, Drug and Cosmetic Act (FFDCA) any product is considered a drug if it is “intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease.” Under the Act a new drug is any drug “the composition of which is such that such drug is not generally recognized, among experts qualified by scientific training and experience to evaluate the safety and effectiveness of drugs, as safe and effective for use under the conditions prescribed, recommended, or suggested in the labeling thereof.”

The complaint charges that OPDC’s website, brochures and other promotional materials, as well as at least one website which has a “hot link” to OPDC’s website, all contain claims that OPDC products can “cure, mitigate, treat or prevent various diseases” including, but not limited to, asthma, eczema, psoriasis and arthritis. According to the complaint, the health claims made by the dairy for its products would make it guilty of not filing a new drug application as required by the FFDCA.

The suit seeks to enjoin OPDC from “directly and indirectly introducing and delivering for introduction . . . into interstate commerce raw milk and raw milk products in any form.” The attorneys handling the case for the federal government have made clear to the dairy that this includes OPDC’s dairy products with colostrum. McAfee’s position is that under federal law colostrum is neither milk nor a raw milk product but rather a dietary supplement not subject to the prohibition on raw milk and raw milk products for human consumption in interstate commerce.

The civil complaint is independent of the criminal investigation into OPDC [see Wise Traditions, Summer and Fall 2008 issues]. OPDC’s attorney, Gary Cox (General Counsel for the Farm-to-Consumer Legal Defense Fund), continues to be in negotiations with U.S. Attorney’s office in Fresno over a possible settlement in the criminal case.

Update, Summer 2008, California and OPDC Federal Grand Jury Investigation

One example of FDA’s now more active role against raw milk can be seen in the agency’s activities carried out in California. In 2004 from April 5-9, FDA conducted an inspection of Organic Pastures Dairy Corporation (OPDC) in Fresno, California. Through that inspection and the subsequent investigation, the agency determined that OPDC was distributing unpasteurized milk and milk products in interstate commerce for human consumption. On February 24, 2005, the agency sent a warning letter to Mark McAfee (CEO of OPDC) warning him that such distribution was in violation of federal law [21 CFR 1240.61]. The law prohibits unpasteurized milk and milk products in final package form in interstate commerce for human consumption; however, there is no prohibition on raw pet dairy products in interstate commerce. McAfee responded to the warning letter by sending the agency a copy of the labels he intended to affix to unpasteurized dairy products shipped in interstate commerce. The labels indicated that the products were for “cat or dog food only.” The agency answered McAfee’s response by referring him to an FDA guidance document on marketing a pet food product.

The document stated that “there is no requirement that pet food products have premarket approval by FDA.” The agency had no other response to the labels McAfee submitted; in effect FDA gave its tacit approval for OPDC to proceed with shipping raw dairy products in interstate commerce with the new labels. FDA did not tell OPDC that the company must drop all out-of-state customers known to be purchasing for human consumption nor did it tell OPDC to verify whether future customers were purchasing for pet consumption only. Nor did FDA tell the dairy that it would be violating the law if it sold product labeled for pet consumption to out-of-state customers when it had knowledge that those customers would be using it instead for human consumption.

On March 19, 2008 (more than three years after responding to FDA’s warning letter), Mark discovered that OPDC was the subject of a federal grand jury investigation, an investigation instigated by FDA and centered primarily on the company’s sale of raw pet dairy products in interstate commerce. On that day, two OPDC employees, who had earlier received subpoenas to testify before a US District Court grand jury in Fresno, were paid a visit at their homes by two FDA special agents from the agency’s Office of Criminal Investigations. The agents questioned the employees about the dairy’s sale of raw milk and colostrum in interstate commerce (colostrum can legally be sold in interstate commerce as a dietary supplement for human consumption). The agents asked one of the employees to wear a wire; the employee refused.

Mark responded to the news of the investigation by contacting David Gumpert who, in turn, posted a story about the grand jury investigation on his blog (www.thecompletepatient.com), “Of Nighttime Agent Visits, Phone Tapes, and Secret Wires: Now OPDC Is Target of a Grand Jury Investigation into Raw Milk” (March 20, 2008). Shortly thereafter, Mark’s attorneys contacted the US Attorney’s office in Fresno offering to share documents and other exculpatory evidence in an attempt to dissuade the US Attorney from continuing the grand jury investigation. Apparently in response to the offer, the US Attorney cancelled the grand jury testimony of the two employees and temporarily suspended the proceedings of the grand jury. As of this time, the grand jury remains suspended.

It appears that FDA is trying to have Mark prosecuted for misbranding under the Federal Food, Drug and Cosmetic Act. “Misbranding,” in this case under FDA’s apparent interpretation of the law, would be knowingly selling products for human consumption that were labeled for pet consumption only. What is unjust about FDA’s action is that in 2005, it made it apparent to McAfee that he was in compliance with the law as long as he labeled his products for pet food only.

Update, Summer 2007

The drama never seems to end! The California Department of Food and Agriculture (CDFA) has come up with a new tactic to harass Organic Pastures Dairy. While the raw dairy product bacteria counts have been perfect for months when counted at the creamery, CDFA is now testing Organic Pastures’ bacteria counts (the beneficial counts, the pro-biotic good bacteria) after the product has been on the retailers’ shelves for a week. As Mark McAfee puts it, “Retailers’ shelf temperatures are great for keeping dead food fresh (so called fresh) and do very little to keep living foods asleep. The temperatures are too warm and bacteria counts go up with time.”

On March 22nd CDFA inspectors took Organic Pastures products from a Save Mart in Fresno, California and tested them for bacteria count. Of course, the counts were higher than when they were taken at the creamery and the milk failed the tests. Products from other dairies were not tested, just those from Organic Pastures. The products still tasted fresh but were at the 100,000-200,000 level, actually not bad for a week at higher-than-optimal temperatures. When the products left the dairy, the counts were 3,000-5,000.

CDFA did not tell Organic Pastures about the test results but instead served Save Mart with a registered mail notice that the store was in violation of food statutes and could not sell the illegal raw milk.

This did not come about after illness or consumer complaints. This happened because CDFA changed the testing protocol. They could not stop Organic Pastures at the dairy so they are trying to do this at the stores. Never before had CDFA tested raw milk at the shelf.

This could very well indicate a whole new way of damaging consumer access to raw milk. CDFA is now using threats against the retailers as a way to reduce access to raw milk and not involving the dairy at all.

Organic Pastures was able to deal with the situation by demanding that CDFA provide a pathway back onto the shelf. CDFA had to comply and provided the perfect creamery bacteria counts to the stores and the product is now back in the affected ten stores. Remember that the stores could not clear themselves because they had no product to test to gain clearance. A true Catch 22!  Meanwhile, thousands of dollars worth of product was thrown away and the store was scared to death by a threatening letter they received from the state.

Update, Jan. 24, 2007

Organic Pastures Dairy Company (OPDC) raw milk products are back on the shelves following a recall in September. The recall occurred during the midst of the spinach contamination scare and seemed to be aimed at deflecting attention from the huge problems of E.coli O157:H7 contamination in produce. The state claimed that five raw milk-drinking children became ill, two of whom were hospitalized, given antibiotics and almost died. (The other three received no antibiotics and recovered quickly.) A team dressed in protective gear tested and retested the cows, the milk and the manure on the farm and found zero pathogens. On September 29th, more than 200 people from around the state showed up at OPDC to show their support for Organic Pastures products, and defend their right to choose what they eat. At the rally/press conference, Mark McAfee signed and victoriously displayed no less than nine CDFA documents releasing the company from quarantine and retracting the recent product recall. Lawsuits against several officials in the California Department of Food and Agriculture (CFDA) are in the works. All the publicity has lead to an increase in sales of about 12 percent.

Update, Oct. 23, 2006 by Mark McAfee

Three critical objectives have been identified in order to permanently protect raw milk for California ’s future.

Raw Milk laws must be updated. In order to protect consumers and raw milk producers old Certified Raw Milk laws controlled by physicians ( Food & Ag Code #35921-35928 ) that are already on the books must be updated. California ’s Raw Milk supply would then be supervised by a board of “doctors, veterinarians and consumers” and not the CDFA. This would permit all raw dairy products to be produced including cultured raw butter, crème cheese, and Raw Milk Kefir….and even fresh cheeses and ice-cream. Currently these laws are not accessible because of certification authorities. An updating change could be very rapid. Currently CDFA and the Grade A standards govern raw milk in California . These standards permit a very narrow range of raw dairy products. The bias shown by CDFA has jeopardized the availability of even these products. This updated Certified Raw Milk law would focus on food safety and not on political obstructions to raw milk. We have commitments from Dr. Paul Fleiss director of the AAMMC (president of the certified raw milk medical commission ) to get this done immediately. This does not require an act of congress but just a change in AAMMC Commission Bylaws.

Legal protection must be provided. In the last few weeks ( and the last several years as well ), OPDC has withstood a massively biased and unfounded attack on its business. Recently, you have felt this personally with the loss of your raw milk supply. During this period, OPDC was falsely accused of making four children ill. NO evidence has been produced (even though OPDC attorneys have requested it ) to show that in fact four children’s fecal samples tested positive for the same DNA of Ecoli 0157. Comprehensive testing pointed to other sources for the illnesses. From the CDFA and media reports it would appear that OPDC had critically injured four kids. This is not true at all. Only two children were hospitalized and they have fully recovered. These two children’s parents freely admit that other sources of food contamination were probably the source of illness including spinach and sushi. The truth was never told in the media or by CDFA. These government agencies have an agenda that goes far beyond food safety. They hate raw milk and want it gone from California . No one will ever know how close California citizens came to losing raw milk permanently. At one point CDFA threatened to shorten shelf life of raw dairy products to just three days. This single act would have eliminated raw milk in California from any source including Claravale. A media blitz and hundreds of calls from angry consumers to the state threatened a “tell all” media press release by Mark McAfee and OPDC. That threat lifted the siege. The CDFA brand assassins bullet hit very close…Harassment continues even after the recall was lifted. Inspectors arrived at Farmers Markets in LA and attempted to shut down sales of raw milk even though “all legal reinstatement papers” were presented. Directed legal action must start immediately to stop biased harassment and unfounded actions. OPDC lost more than $250,000 over the recall and will not be compensated for its losses. Even though CDFA attorney promised OPDC attorney that if OPDC cooperated, that all products would be back on shelves in five days and costs of the recall would be covered by CDFA. Neither of these promises ever happened. Suits must start immediately to recover losses and stop the harassment.

Freedom to Speak about Freedom to Eat. OPDC was fined $20,000 dollars by the CA Department of Health Services earlier this year because OPDC posted email testimonials received from its consumers about the wonderful life giving and healing properties of raw milk at its website. DHA argued that this is not protected by freedom of speech and that OPDC was making medical claims that had not been approved by the FDA. According to DHS only drugs cure disease. Under current laws consumers can not share their experiences with lactose intolerance or asthma or any other medical condition being resolved by the consumption of raw milk. To make sharing testimonials legal, OPDC has established relationships with other entities that will post consumer testimonials. This raw milk freedom BLOG will allow OPDC consumers to freely post their testimonials. A link to this BLOG will be established at the OPDC website. This is legal and will give raw milk consumers a Freedom to Speak about their Freedom to Eat. This will become a huge educational resource for new raw milk consumers to hear directly from established raw milk drinkers. A data base of all raw milk consumers email addresses will be kept to assure immediate reaction to any challenges should they arise.

We have carefully considered using a non profit organization, foundations, consumer advocacy groups and others to achieve these goals. In the final assessment, it was determined that OPDC should carry this ball directly with its consumers. No other organization would be as passionate, focused or as economically efficient in accomplishing these goals.

The time has come. Consumers need to understand that they must contribute dollars into this effort. If living, whole, bio-diverse, enzyme rich, healing raw milk is going to be continually available for all consumers… all consumers must contribute. This is not an option. OPDC barely survived an attempt on your raw milks life!! We must not sit back and drink our delicious raw milk and enjoy our day! This is just a lull in the raging battle. We must remember the near death experience and act now. The next round could be the last round for California Raw Milk if we do not act immediately.

My grandfather once described intelligence as the ability to foresee challenges in the future and doing something about these challenges in the present.

As the old saying goes…if we do not hang together… we will surely hang one by one.

To achieve these objectives OPDC has founded a new department at the dairy called: People Powered by Raw Milk. PPRM is tasked to accomplish the goals stated above. To fund the activities PPRM will begin selling shirts for $150 dollars each ( or as much as you are able to contribute ). As a contributor you will receive your choice of OPDC shirts with various messages printed on them. We are able to take credit cards, checks and cash for the shirts. Our goal is to establish a People Powered Raw Milk War Chest of $500,000 dollars to immediately accomplish the goals and changes as described.

Your $150 secures the future of Raw Milk. This may seem to be a lot of money… and it is. Think of this as people moving a huge mountain. That is what CDFA and the pasteurized milk lobby is…a huge mountain of money and processed milk power. We can deal with this mountain if we are smart and just find a way around it. We prefer not to fight but rather maneuver. Kind of like energy and motion in Karate. By staying focused and moving quickly we can and will protect raw milk for California . A pathway has already been discovered. We must just find the courage to move right now. This is not cheap. If thousands of raw milk consumers sent in $150 dollars each, the goal would be quickly accomplished. Also, the shirts that would be worn across the state would demonstrate our resolve and further carry the message. $150 dollars is a very small amount to pay for our raw milk security.

You have asked the question and we have developed an answer. It is now up to you to act quickly so you do not suffer repeated interruptions of raw milk availability. A tally of the amount collected will be kept at www.organicpastures.com website. Updates on progress will also be given at the PPRM department at OPDC.

Please contact 1-877 RAW MILK and order your raw milk shirt. Several statements are available in different colors and sizes. Wendy is the manager of PPRM and is awaiting your call. Lets create a raw milk voice for change right now. OPDC can not and should not do this all by its self. After nearly three weeks of shut down OPDC is digging deep just to survive the losses inflicted unjustly by CDFA. PPRM is acting for all of you who enjoy and depend on raw milk. This is something that must come from consumers.

We are very serious and ask that you all take this opportunity to act and protect your raw milk source and choice. These changes and protections will also protect Claravale as well. All raw milk is subject to future biased and unfounded acts by CDFA.

Lets raise some real money and lead the smart fight for raw milk freedom and freedom to eat for ourselves and our families.

1-877 RAW MILK for credit transactions
Or make checks payable to:
OPDC c/o People Powered by Raw Milk
7221 So. Jameson, Fresno CA 93706

Update Aug. 24, 2005

Organic Pastures now has a new distributor which is putting their raw milk in 500 stores up from 225. Demand is so great that they are selling all of their milk from about 330 cows, which graze on pasture and are even milked in the pasture via a portable milking parlor.

Update, Nov. 18, 2004

Several years ago, the Los Angeles County Board of Health banned sales in the county. Consumer advocates fought back and won a victory when the County Board of Commissioners voted to overrule the Board of Health. One of California’s two raw milk producers (Organic Pastures) is milking over 300 pasture-fed cows, and raw milk, butter, cream, cheese and colostrum are available in many natural foods stores throughout the state. The other, smaller farm, Claravale Dairy in Watsonville, provides raw milk and cream to San Francisco Bay area natural foods stores. Claravale’s Jersey cows graze on many acres of green pastures—with an ocean view.

Update, Fall 2003–Breakthrough in California:

Organic Pastures Dairy, which supplies raw milk, butter and cream in health food stores and gourmet markets in California, has just announced that the Department of Health Services for the State of California has approved a special label request. The label was approved for a product called “certified organic raw milk with colostrum,” bottled by Organic Pastures Dairy Company.

This raw super milk will not be subject to federal interstate transport restrictions because colostrum is prohibited in milk. This special milk can be sold anywhere regardless of local raw milk laws. Dairy inspectors have no legal authority over the production and sale of this milk product. It is not a dairy product and falls specifically outside of regulations. It is a nutritional supplement. The product is authorized under CA DHS permit # G-13-70876 under a special proprietary arrangement and protocol negotiated by the dairy.

The new product looks and tastes just like regular raw milk.

Organic Pastures Dairy can now fulfill requests for its product in states outside California, such as Nevada and New Mexico. The new Department of Health Services ruling opens the door to making raw milk again available for retail sales in all states.

Update, May 10, 2003

Organic Pastures Dairy has been recently tested by CDFA and no pathogens were found anywhere (all products and over 32 points were swab-tested in the plant)—the cow manure was even tested. UC Davis researchers sampled cow manure and did not find any human pathogens. The researchers attribute the lack of pathogens to the stress-free green pastures and lack of antibiotics given to the cows.

Organic Pastures is perhaps the most tested dairy in the USA. They are inspected by the USDA, CCOF ( organic certifier ) CDFA, The Fresno County Department of Health and the California Department of Health Services. All lab test information is posted to the website at www.organicpastures.com

The fresh colostrum produced by Organic Pastures has recently been shipped to Beijing, China to assist in the fight against SARS. Fresh raw colostrum contains the antibodies for bovine coronovirus and many other antibodies that help build immunity. Bovine coronovirus has been found in the SARS complex. Organic Pastures colostrum is now going international in the effort to keep people healthy.

Update, Spring 2002

Things are looking very bright in California with the recent vote by the Los Angeles City Council to liberalize raw milk regulations for the County of Los Angeles, a move that allows the sale of raw milk in California once again and greatly expands the market for any raw milk producer in the state. As we predicted, new producers are coming along. Joining our beloved Claravale Dairy with raw milk sales is Organic Pastures of Kerman, California.

According to Mark McAfee, managing partner of the 350-cow dairy, the herd is fully grass-fed on a rotational grazing program. McAfee uses a 20-cow portable milking parlor that he designed himself which can be moved from pasture to pasture. This system has resulted in excellent cow health and a fantastic average standard platelet cell count of 1,100. (Pasteurized milk is allowed a platelet count of 3,000.) The herd is mostly Holstein but Jersey cows are being added in.

This is the first time that we can say that RealMilk (unprocessed, full-fat and pasture-fed) is being sold commercially in the US. The milk is available in many stores and the dairy plans to add raw cream, raw butter, yoghurt and colostrum to the product line. If your local health food store does not yet carry Organic Pastures milk, contact Organic Pastures at 559-846-9732 or mark@mcafeefarms.com to discuss the possibilities of providing it.

The enlightened situation in California, where raw milk has been commercially available off and on for many years, is our goal for all states. Any state government official who persists in the inane assertion that the public must be protected from this healthy product needs to be reminded of the California example.

Pete Kennedy

Pete Kennedy is an attorney from Sarasota, Florida and president of the Farm-to-Consumer Legal Defense Fund (farmtoconsumer.org). He compiled the state milk laws posted at realmilk.com. He advises many farmers and members about legal issues surrounding raw milk.

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