FTCLDF Lawsuit against FDA

by Pete Kennedy, Esq.
President, The Farm-to-Consumer Legal Defense Fund
30 APR 2010

25 JAN 2011: Update from Winter 2010 issue of Wise Traditions.

On April 26, the United States Food and Drug Administration (FDA) submitted its response to a lawsuit filed earlier this year by the Farm-to-Consumer Legal Defense Fund (FTCLDF). The FTCLDF lawsuit claims that the federal regulations (21 CFR 1240.61 and 21 CFR 131.110) banning raw milk for human consumption in interstate commerce are unconstitutional and outside of FDA’s statutory authority as applied to FTCLDF’s members and the named individual plaintiffs in the suit (see Wise Traditions Spring 2010 for background on the case). In its answer to the complaint, FDA made its position on the issue of “freedom of food choice” a part of the public record. FTCLDF has until June 14 to file a reply to FDA’s response.

FDA has long opposed “freedom of food choice” but its response to the FTCLDF complaint represents FDA’s strongest public statement yet on the freedom to obtain and consume the foods of one’s choice. Here are some of FDA’s views expressed in its response on ‘freedom of food choice’ in general and on the right to obtain and consume raw milk in particular:

1. “Plaintiffs’ assertion of a new ‘fundamental right’ to produce, obtain, and consume unpasteurized milk lacks any support in law” (page 4).
2. “It is within HHS’s authority . . . to institute an intrastate ban [on unpasteurized milk] as well” (page 6).
3. “Plaintiffs’ assertion of a new ‘fundamental right’ under substantive due process to produce, obtain, and consume unpasteurized milk lacks any support in law” (page 17).
4. “There is no absolute right to consume or feed children any particular food” (page 25).
5. “There is no ‘deeply rooted’ historical tradition of unfettered access to foods of all kinds” (page 26).
6. “Plaintiffs’ assertion of a ‘fundamental right to their own bodily and physical health, which includes what foods they do and do not choose to consume for themselves and their families’ is similarly unavailing because plaintiffs do not have a fundamental right to obtain any food they wish” (page 26).
7. FDA’s brief goes on to state that “even if such a right did exist, it would not render FDA’s regulations unconstitutional because prohibiting the interstate sale and distribution of unpasteurized milk promotes bodily and physical health” (page 27).
8. “There is no fundamental right to freedom of contract” (page 27).

Growing numbers of people in this country are obtaining the foods of their choice through private contractual arrangements, such as buyers’ club agreements and herdshare contracts. FDA’s position is that the agency can interfere with these agreements because, in FDA’s view, there is no fundamental right to enter into a private contract to obtain the foods of choice from the source of choice. As for the agency’s contention that there is no fundamental right to obtain any food, including raw milk, here is what the “substantive due process” clause of the Fifth Amendment to the United States Constitution provides: no person shall “be deprived of life, liberty, or property, without due process of law.” Obtaining the foods of your choice is basic to life, liberty and property; it is inconceivable that the “right of food choice’”would not be protected under the Constitution but FDA is saying “No.”

In addition to its views on freedom of food choice, FDA’s response included an interesting assertion on the agency’s history enforcing the interstate ban. According to FDA, “the government has neither brought nor threatened to bring a single enforcement action against consumers who purchase unpasteurized milk for personal consumption or retailers of such products who do not engage in interstate commerce.” This was news to plaintiff, Eric Wagoner, an agent for a Georgia consumer co-op, who was ordered to dump over one hundred gallons of milk—including two gallons for his own family—last fall at the order of FDA and the Georgia Department of Agriculture (GDA). Wagoner had been stopped by officials from GDA while attempting to deliver raw milk to co-op members that had been obtained from a licensed dairy farm in South Carolina. It also was news to L.D. Peeler, a licensed raw milk farmer in South Carolina who received a warning letter from FDA (dated April 20, 2010) advising him that he was violating 21 CFR 1240.61 by causing “unpasteurized milk, in final package form for human consumption, to be shipped into interstate commerce through raw milk ‘co-ops’,” specifically mentioning a co-op in Augusta, Georgia. All Peeler had done was to sell raw milk on his farm in Starr, South Carolina to the co-op members.

Peeler was not the only farmer to receive a warning letter from FDA for violating the interstate raw milk ban. FDA also sent a warning letter on April 20 to Pennsylvania dairy farmer, Dan Allgyer after two FDA agents, two federal marshals and a state trooper had descended on the farmer’s property at 5 a.m. on the same day to execute an administrative search warrant; the warrant called for the inspection to take place “at reasonable times during reasonable business hours.” FDA remains the biggest threat to raw milk producers and consumers.

About the Author

Pete Kennedy is an attorney from Sarasota, Florida and president of the Farm-to-Consumer Legal Defense Fund (www.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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