FTCLDF Lawsuit against FDA

By Pete Kennedy, Esq.

Update, Summer 2012

On March 30 federal district judge Mark W. Bennett issued an order dismissing a lawsuit challenging the interstate commerce ban on raw milk for human consumption filed by the Farm-to-Consumer Legal Defense Fund (FTCLDF) against the U.S. Food and Drug Administration (FDA). Along with six consumers, an agent for a buyers club, and a dairy farmer selling raw milk to out-of-state customers, the Legal Defense Fund filed suit in February 2010 over a federal regulation (21 CFR 1240.61). The regulation prohibits raw milk and raw milk products (other than raw cheese aged at least sixty days) from crossing state lines.

The judge held that all plaintiffs lack standing to pursue the case since there was no “threat of injury in fact.” Judge Bennett found that “the FDA has made abundantly clear that it has not and does not intend to enforce the regulations against any of the plaintiffs.”

On April 5 agent plaintiff Eric Wagoner and producer plaintiff Mike Buck filed a motion to amend the judgment dismissing the case, claiming the judge erred when he dismissed their claims for lack of standing. Wagoner stated in an affidavit submitted to the court that an FDA agent had ordered him to destroy over one hundred gallons of raw milk that had been shipped from South Carolina to Georgia in October 2009. Buck knowingly sold raw milk to customers from North Carolina and Georgia at his South Carolina farm; in 2010 another South Carolina dairy had received a warning letter from FDA for selling raw milk to out-of-state customers. On May 1 the judge denied the motion to amend. Even though Judge Bennett dismissed the case, the lawsuit accomplished the following:

  • Exposing weaknesses in the regulation, FDA is on public record promising that it will not take action against individual consumers crossing states lines to obtain raw milk. The judge’s opinion noted a November 1, 2011 FDA press release stating, “With respect to the interstate sale and distribution of raw milk, the FDA has never taken, nor does it intend to take, enforcement action against an individual who purchased and transported raw milk across state lines solely for his or her personal consumption.” The agency issued the press release in response to a rally held by the activist group, the Raw Milk Freedom Riders, at FDA headquarters in Silver Spring, Maryland. Earlier, FDA made a similar statement in answer to questions posed by the judge. In his opinion denying the motion to amend the order, Judge Bennett pointed out that FDA had never enforced the regulation against either an agent for consumers crossing state lines to obtain raw milk or a farmer knowingly selling to out-of-state consumers and their agents. The judge stated, “the mere existence of a regulation that ostensibly would prohibit the plaintiff’s conduct is not enough to establish a real threat of enforcement, where the regulations have been uniformly and without exception unenforced against the conduct in question . . . .”
  • Americans now know FDA’s draconian views on food freedom. In the course of the lawsuit, FDA made the following assertions:
    • “There is no absolute right to consume or feed children any particular food.”
    • There is no fundamental right to one’s “own bodily and physical health.”
    • People “do not have a fundamental right to obtain any food they wish.”
  • It is clear now that if people want their right to eat the foods of their choice to be respected FDA must be reined in.

The Legal Defense Fund has decided not to appeal the judge’s ruling. People should urge Congress to repeal the FDA regulation by passing HR 1830. With the court deciding at this time not to hear the merits of the case, it’s up to Congress to protect the rights of Americans and get rid of a bad law. Those who have not used the Farm-to-Consumer Legal Defense Fund’s HR 1830 petition to ask their U.S. Representatives to co-sponsor HR1830 are encouraged to do so. Please go to www.farmtoconsumer.org/hr1830 (STATUS: CLOSED).

Action Alert, Apr. 4, 2012

Judge Asked to Reconsider Dismissal of FDA Raw Milk Lawsuit

Update, Winter 2011

The conflict over the interstate ban on raw milk for human consumption is racheting up. At the same time the FDA is getting more aggressive going after farmers and distributors it believes are transporting raw milk across state lines, open civil disobedience against the federal regulation prohibiting raw milk in interstate commerce is increasing.

After filing a complaint earlier this year in Philadelphia district court to enjoin Pennsylvania dairy farmer Dan Allgyer, the United States Department of Justice has convened a federal grand investigation in Detroit and has subpoenaed Indiana dairy farmer David Hochstetler of Forest Grove Dairy and Michigan farmer Richard Hebron of Family Farms Cooperative to produce business records and other documents. FDA initially investigated Hochstetler and Hebron in October 2006 for transporting raw milk and raw milk products across state lines. In 2010 the agency subsequently investigated Hochstetler and Hebron for causing a foodborne illness outbreak where people were sickened with campylobacter poisoning in Illinois, Indiana and Michigan. FDA conducted testing on milk produced by Forest Grove Dairy, with all samples tested being negative for campylobacter.

The Department of Justice gave Hochstetler and Hebron notice to either appear before the grand jury on December 8 or turn over the documents by the time the grand jury was to convene that day. As reported by David Gumpert in Food Safety News on November 28, the list of documents the grand jury asked each farmer to provide includes “‘[a]ny and all documents relating to or concerning the sale, purchase, delivery, receipt, production, packaging, transfer, disposal, marketing, promotion, furnishing, sharing, labeling, manufacturing, distribution, shipment, or transportation of milk…’ from 2007 to 2010” as well as documents relating to laboratory testing of milk and communications with Right to Choose Healthy Food or Aajonus Vonderplanitz.

In addition to being the owner of Right To Choose Healthy Food (RCHF), Vonderplanitz was the co-founder of the Rawesome Food Club. Rawesome’s Venice, California store was raided by federal, state and local government agencies in June 2010 and again in August 2011, with FDA participating in both raids. According to Vonderplanitz, RCHF is currently leasing Hochstetler’s herd of dairy cows, RCHF has leased dairy animals from other small farmers to provide raw milk and raw milk products for its members, including from Allgyer. Vonderplanitz has been a long-time opponent of FDA and its attempts to ban or restrict access to raw milk.

While FDA is stepping up enforcement against raw milk producers, a group of activists calling themselves the Raw Milk Freedom Riders is staging publicized open displays of civil disobedience against the interstate raw milk ban, protesting against the criminalization of Americans who buy and sell raw milk. On November 1 a caravan of raw milk moms defied the ban on raw milk in interstate commerce by crossing into Maryland with raw milk obtained in Pennsylvania prior to a rally held outside FDA headquarters in Silver Spring. The day of the rally, FDA issued a press release stating that “with respect to the interstate sale and distribution of raw milk, the FDA has never taken nor does it intend to take, enforcement action against an individual who purchased and transported raw milk across state lines solely for his or her own personal consumption.” Left unsaid in the press release was that FDA would take enforcement action against farmers selling raw milk to consumers crossing state lines and distributors or agents crossing state lines to deliver milk to groups of people such as buyers clubs.

The Raw Milk Freedom Riders have responded to FDA’s narrow exception to enforcement of the interstate ban by scheduling a second rally in Chicago on December 8. In a November 28 press release titled, “Mothers Acting as ‘Agents’, To Defy FDA Warning”, the group announced that “a group of mothers and others will defy the U.S. Food and Drug Administration’s ban on ‘distributing’ fresh milk across state lines by transporting one hundred gallons of raw milk from Wisconsin to Chicago’s Independence Park and distributing to customers waiting at the park.”

The best check on FDA aggression against raw milk producers and consumers exercising their freedom of choice would be the passage of HR 1830, a bill that would effectively overturn the interstate ban; support for the bill is growing. Representatives Tom McClintock (CA-4) and Tim Walhberg (MI-7) have joined Chellie Pingree (ME-1) as cosponsors; Pingree recently sent FDA Commissioner Margaret Hamburg a letter criticizing the agency’s raw milk enforcement policy.

Rep. Joe Pitts has told constituents that he supports the bill. Pitts is the chair of the Subcommittee on Health with the Committee on Energy and Commerce. HR 1830 has been assigned to his subcommittee which is where any hearing on the bill would take place. More politicians are recognizing it’s time to do away with the law that thousands of otherwise law-abiding citizens violate each week in this country.

Update, Summer 2011

In an unsurprising response to questions submitted to it by a federal judge, the FDA has asserted that any commercial transaction involving transporting raw milk for human consumption across state lines is subject to the agency’s jurisdiction and is illegal. It is now a matter of public record that in FDA’s view even individual consumers crossing state lines to purchase raw milk and bringing the milk back to their home state to consume it are violating the law.

On September 17, 2010 Judge Mark W. Bennett stayed judicial proceedings in a lawsuit filed by the Farm-to-Consumer Legal Defense Fund and eight of its individual members challenging the federal regulation prohibiting raw milk for human consumption in interstate commerce. The purpose of the stay was to give FDA six months to answer the following hypothetical questions submitted by the judge: whether 21 C.F.R. §1240.61 [the federal regulation challenged in the suit] applies to and proscribes the conduct of the following persons:

1. Persons who travel from one state, where it is not legal to purchase raw milk, to another state, where it is legal to purchase raw milk, legally purchase raw milk, then return to the original state where they consume the raw milk themselves or give it to their friends or family members; or

2. a principal and agent who agree that the agent will obtain raw milk out-of-state, where it is legal to do so, and deliver it to the principal in the principal’s home state, where sales of raw milk are not permitted, where the principal then consumes the raw milk or gives it to the principal’s friends or family members; or

3. a producer of raw milk who sells raw milk in a state where it is legal to do so in an intrastate transaction to person that he knows are from out of state?

The individual plaintiffs in the lawsuit include consumers who went across state lines to obtain raw milk, an agent who went on behalf of consumers across state lines to obtain raw milk, and a farmer who knowingly sells raw milk to out-of-state consumers.

The regulation under challenge provides, in part, “no person shall cause to be delivered into interstate commerce or shall sell, otherwise distribute, or hold for sale or other distribution after shipment in interstate commerce any milk or milk product in final package form for direct human consumption unless the product has been pasteurized or is made from dairy ingredients (milk or milk products) that have all been pasteurized….”

In its March 16 response to the judge’s questions, FDA took the position that “a person who purchases unpasteurized milk in one state with the intent to take it to another state (either for personal use or to distribute to others) is engaging in interstate commerce.” As for consumers who cross state lines intending to take raw milk back home for personal use, FDA stated that it “has never sought to bring an enforcement action against a person because he or she crossed a state boundary to purchase and return with raw milk solely for his or her own use, and FDA has no present intent to bring an action against such a person in the future. Nevertheless. . . the hypothetical interstate traveler in this example would have ‘caused’ raw milk ‘to be delivered into interstate commerce’ in violation of 21 C.F.R. §1240.61.”

What FDA is trying to accomplish with this answer is to let raw milk consumers know they are violating the law (by carrying raw milk across state lines for their personal consumption) while trying to get the consumer plaintiffs’ case against it thrown out for lack of standing because the agency has never sought to bring an enforcement action against a consumer for violating the regulation; and trust them, they have no present intent to do so now even though they might change their mind later. What FDA wants is for consumers to live in fear without being able to challenge the agency’s interpretation in court.

Regarding the second question, FDA stated “the hypothetical agent. . . violates 21 C.F.R. §1240.61, first by causing raw milk to be delivered into interstate commerce, and second by ‘distributing’ the raw milk to another after shipment in interstate commerce.” The situation involving the agent plaintiff, Eric Wagoner, is more than a hypothetical scenario. In October 2009, Wagoner and other members of the Athens Locally Grown food co-op in Georgia had been forced to dump over one hundred gallons of raw milk in Georgia, which had been transported in Wagoner’s truck after it had been obtained from a licensed raw milk producer in South Carolina. An FDA official was present at the dumping; the agency was a likely decision maker along with the Georgia Department of Agriculture in ordering the raw milk to be thrown out.

As to the final question, FDA found that the sale of raw milk to a hypothetical customer intending to transport the product across state lines would constitute “delivery into interstate commerce.” The agency went on to state, “Whether or not FDA would consider an enforcement action against the hypothetical seller in this question would turn on many other facts not presented. For instance, to the extent that the producer solicits interstate sales and/or regularly sells raw milk that is ultimately transported across state lines, FDA would review the facts for possible regulatory action.” If the raw milk producer advertises on the internet, is that soliciting interstate sales? If a producer regularly has people traveling in from other states to purchase raw milk, is the producer supposed to stop selling to those consumers in order to be in compliance with federal law?

On May 11 FDA filed a renewed motion to dismiss plaintiff’s complaint along with, in the alternative, a motion for summary judgment. In its brief supporting the motion to dismiss, FDA reiterated its earlier claim that there is no fundamental right to consume the foods of choice, stating, “Even if there were some plausible argument that people have rights guaranteed under the Constitution to eat and drink anything they want (and there is not), such rights would not trump the government’s paramount interest in protecting the public health.” The agency specifically claimed there was no fundamental right to consume raw milk, dismissing the historical fact that there was no mandatory pasteurization requirement from the time Jamestown was founded in 1607 until 1973 with the comment, “In that early era, modern sanitation standards had yet to be invented and microorganisms remained undiscovered.” FDA refuses to recognize that “modern sanitation standards” include vast improvements in sanitation for raw milk production and distribution over the conditions existing when pasteurized laws were first introduced.

The Farm-to-Consumer Legal Defense will be filing its own motion for summary judgment in the case. Judge Bennett could be issuing a ruling on both parties’ motions later this summer.

Update, Jan. 25, 2011

On September 17, U.S. District Court Judge Mark W. Bennett issued an order staying any judicial proceedings in the lawsuit challenging the interstate ban on raw milk for human consumption (see updates below for background on the case). Under the order, proceedings were stayed until FDA answered several questions referred to it by the judge. The questions were, “whether § 1240.61 (the federal regulation banning raw milk for human consumption in interstate commerce) applies to and proscribes the conduct of the following situations:

  1. persons who travel from one state, where it is not legal to purchase raw milk, to another state, where it is legal to purchase raw milk, legally purchase raw milk, then return to the original state where they consume the raw milk themselves or give it to their friends or family members; or
  2. a principal and agent who agrees that the agent will obtain raw milk out-of-state, where it is legal to do so, and deliver it to the principal in the principal’s home state, where sales of raw milk are not permitted, where the principal then consumes the raw milk or gives it to their friends or family members; or
  3. a producer of raw milk who sells raw milk in a state where it is legal to do so in an intrastate transaction to persons that he knows are from out of state.”

All of the individually named plaintiffs in the lawsuit fit into one of the three scenarios described above. FDA has until March 17, 2011 to file its answers to the judge’s questions.

Update, Winter 2010

On September 17, U.S. District Court Judge Mark W. Bennett issued an order staying any judicial proceedings in the lawsuit challenging the interstate ban on raw milk for human consumption (see updates below for background on the case). Under the order, proceedings were stayed until FDA answered several questions referred to it by the judge. The questions were, “whether § 1240.61 (the federal regulation banning raw milk for human consumption in interstate commerce) applies to and proscribes the conduct of the following situations:

  1. persons who travel from one state, where it is not legal to purchase raw milk, to another state, where it is legal to purchase raw milk, legally purchase raw milk, then return to the original state where they consume the raw milk themselves or give it to their friends or family members; or
  2. a principal and agent who agrees that the agent will obtain raw milk out-of-state, where it is legal to do so, and deliver it to the principal in the principal’s home state, where sales of raw milk are not permitted, where the principal then consumes the raw milk or gives it to their friends or family members; or
  3. a producer of raw milk who sells raw milk in a state where it is legal to do so in an intrastate transaction to persons that he knows are from out of state.”

All of the individually named plaintiffs in the lawsuit fit into one of the three scenarios described above. FDA has until March 17, 2011 to file its answers to the judge’s questions.

Update, Fall 2010

In a complex federal district court ruling, Judge Mark W. Bennett refused to grant a motion by the United States Food and Drug Administration (FDA) to dismiss a lawsuit filed against the agency by the Farm-to-Consumer Legal Defense Fund (FTCLDF) and eight other named plaintiffs. The lawsuit argues that federal regulations (21 CFR 1240.61 and 21 CFR 131.10) prohibiting raw milk for human consumption in interstate commerce are unconstitutional as applied to FTCLDF’s members and the other plaintiffs named in the suit.

In his August 18 decision, Judge Bennett denied part of FDA’s motion to dismiss while reserving judgment on the remainder. As part of his ruling, the judge ordered proceedings in the case to be stayed sixty days to allow plaintiffs time to decide whether to file a “citizen petition” with FDA. The petition would ask FDA to clarify its interpretation of the authorizing statutes and regulations giving the agency power to ban raw milk for human consumption in interstate commerce. If plaintiffs choose to file the citizen petition, the court would continue to delay the suit until the administrative proceedings were completed or until FDA failed to take action within the time the law requires. If plaintiffs declined to pursue the citizen petition, Judge Bennett indicated the court would reconsider FDA’s motion to dismiss.

In Judge Bennett’s view, the main question FDA needs to answer in the petition process is “whether § 1240.61 applies to and proscribes the conduct of (1) persons who travel from one state, where it is not legal to purchase raw milk, to another state, where it is legal to purchase raw milk, legally purchase raw milk, then return to the original state where they consume the raw milk themselves or give it to their friends or family members; or (2) a principal and agent who agree that the agent will obtain raw milk out-of-state, where it is legal to do so, and to deliver it to the principal in the principal’s home state, where sales of raw milk are not permitted; or (3) a producer of raw milk who sells raw milk in an intrastate transaction to persons that he knows are from out of state.”

All of the individually named plaintiffs in the lawsuit fit into one of the three scenarios described above. Section 1240.61 provides in part, “No person shall cause to be delivered into interstate commerce or shall sell, or otherwise distribute, or hold for sale or other distribution after shipment in interstate commerce any milk or milk product in final package form for direct human consumption unless the product has been pasteurized. . . ”

Judge Bennett sees the citizen petition as a way to resolve the question of “whether the plaintiff’s conduct involves or affects ‘interstate commerce’ sufficiently to fall within the proscriptions of § 1240.61, and, still more specifically, whether the plaintiffs’ conduct constitutes ‘delivery [of raw dairy products] into interstate commerce’ or ‘distribution’ of raw dairy products after shipment in interstate commerce.”

Plaintiffs have survived the first round in the case. They have until October 18 to determine what their next course of action will be.

Update, April 30, 2010

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.

Update, February 2010

On February 20, the Farm-to-Consumer Legal Defense Fund, on behalf of itself and individual plaintiffs,  filed a lawsuit seeking a court declaration that two federal regulations banning raw dairy products for human consumption in interstate commerce are unconstitutional as applied to the plaintiff. The parties sued are the United States Department of Health and Human Services (HHS), Kathleen Sebelius (HHS Secretary), and Margaret Hamburg (Commissioner of the United States Food and Drug Administration, FDA); the suit also asks for the court to rule that FDA exceeded its statutory authority in issuing the regulations. The suit was filed in federal court in the Northern District of Iowa. The main federal regulation in question, 21 CFR 1240.61, is extremely broad and provides, in part, that “no person shall cause to be delivered into interstate commerce or shall sell or otherwise distribute” any milk or milk product “in final package form for direct human consumption” unless the milk or milk product has first been “pasteurized or is made from dairy ingredients (milk or milk products) that have all been pasteurized.” The other regulation at issue, 21 CFR 131.110, is the “standard of identity” regulation for milk in interstate commerce, which provides, in part, that all milk “that is in final package form for beverage use shall have been pasteurized or ultrapasteurized.”

The plaintiffs in the lawsuit consist of six consumers, an agent for raw milk consumers, and a farmer producing raw milk. All consumer plaintiffs purchase raw milk in states where its sale is legal and travel into states in which the sale of raw milk is illegal where the milk is consumed. The agent, Eric Wagoner, was forced to dump over one hundred gallons of milk last fall at the order of FDA and the Georgia Department of Agriculture. Having picked up the milk at a dairy farm in South Carolina licensed to sell raw milk, Wagoner was attempting to deliver it to consumers in Georgia when he was stopped by officials from the state department of agriculture; the sale of raw milk for human consumption is illegal in Georgia. The farmer plaintiff, dairyman Mike Buck, is licensed to sell retail raw milk in South Carolina. Buck regularly sells raw milk to customers from North Carolina and Georgia who go to his farm to obtain the product.

The federal ban on raw milk for human consumption in interstate commerce prohibits a product that is currently legal to sell in at least twenty-eight states and is legal to consume in all fifty states. FDA’s power to issue 21 CFR 1240.61 was derived from the Public Health Service Act (PHSA); under the PHSA, FDA is authorized to make and enforce regulations that are “necessary to prevent the introduction, transmission, or spread of communicable diseases . . . from one State or possession into any other State or possession” [42 USC 264]. In issuing the interstate ban, what FDA has done in effect is to characterize all raw milk for human consumption as a “communicable disease” and “adulterated” just because it is not pasteurized. So, a product that is legal to sell under the laws of two neighboring states becomes a “communicable disease” and illegal under federal law when it crosses from one neighboring state into the other.

The purpose of a “standard of identity” regulation is to “promote honesty and fair dealing in the interest of consumers;” with respect to 21 CFR 131.110, the complaint alleges that the pasteurization requirement in the regulation is not in line with this purpose, which is to enable consumers to know what product they are getting. It is not necessary to ban a product when warning labels would suffice to meet “standard of identity” requirements; federal law currently allows the interstate commerce of unpasteurized juice as long as the label contains required warnings.

A key cause of action in the case is the constitutional right to privacy, which is protected by the Fifth Amendment’s substantive due process clause. The U.S. Supreme Court has held that under the right to privacy, there is a fundamental right to raise a family and be responsible for custody and care of one’s children; the Supreme Court has also held that the right to privacy includes the right to be free from government interference with one’s body and physical health. The lawsuit seeks to expand on these rulings and get a holding that the constitutional right to privacy includes the right to obtain and consume the foods of choice. What is more fundamental to parents providing for the care of their children than feeding them the foods they believe best for their health? It is taken for granted that we have the constitutional right to eat the foods of our choice but there is nothing in the Constitution or any Supreme Court decision to date that specifically guarantees that right.

If FDA accomplishes what it wants, that right will be denied to everybody desiring to consume raw milk. FDA is at the center of opposition against raw milk; the agency’s goal is to eliminate raw milk sales state by state. The agency has received a significant increase in its budget and will now be able to step up its enforcement actions against raw milk. FDA recently sent two agents to the farm of Pennsylvania farmer Dan Allgyer to conduct a warrantless inspection. Allgyer refused to let the agents inspect nor would he answer their questions, sending the agents away empty-handed.

The federal regulations at issue in the lawsuit are the biggest obstacles to exercising the right to consume raw milk and the right to sell it. Without the regulations, FDA would not be able to pressure states as it currently does to ban the sale of raw milk. Once the regulations are overturned, raw milk producers will have access to markets they have unjustly been denied; and consumers will be able to obtain raw milk without having to worry about being in violation of the law. If crossing state lines to obtain raw milk is in fact a violation of the law, thousands of acts of civil disobedience are committed in this country every week

See background: Interstate Raw Milk Sales

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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