AB1735 California Coliform Standard

By Pete Kennedy, Esq.

Update, Winter 2008: On September 30, 2008, Governor Arnold Schwarzenegger vetoed SB201 [see Update, Fall 2008 below for background on this bill]. In vetoing the bill the governor gave short shrift to the tremendous support shown the bill in the legislature. SB201 had passed unanimously (66 to 0) in the General Assembly and by a 31 to 4 margin in the Senate. SB201 would have given raw milk licensees the option of undergoing rigorous pathogen testing and maintaining an individualized HACCPP (Hazard Analysis Critical Control Points plan) identifying and monitoring each critical point of raw milk production. Producers choosing this option would not be subject to the unreasonable coliform count requirement mandated by AB1735. The statement issued by Schwarzenegger in support of his veto looks like it was written by the California Department of Food and Agriculture (CDFA). In his statement the governor claimed that the state’s two raw milk dairies have been operating successfully under AB1735, ignoring the fact that both dairies have failed the coliform requirement on numerous occasions. They live with the ever-present threat of suspension from three over-the-limit counts out of five tests, thus jeopardizing the dairies’ ability to remain in business. His statement also noted that AB1735 passed the legislature unanimously, not mentioning that the bill was put on the consent calendar as a non-controversial measure and neither licensed raw milk dairy (Organic Pastures and Claravale) was notified of its existence until after it was passed. State Senator Dean Flores, Chairman of the Senate Agriculture Committee and principal sponsor of SB201, has expressed his intent to introduce raw milk legislation again for the 2009 legislative session which begins in January.

Update, Fall 2008: On June 5 State Senator Dean Flores, Chairman of the Senate Agriculture Committee introduced Senate Bill 201 (SB201). The bill would eliminate the coliform requirement imposed by AB1735 of no more than ten coliform bacteria per milliliter at the final container (see Update, Winter 2007 below) for licensed retail raw milk producers opting “to develop and maintain an individualized Hazard Analysis and Critical Control Points (HACCP) plan for each critical process in the production of raw milk on the dairy farm.” Any HACCP plans must have the approval of the California Department of Food and Agriculture (CDFA) and the California Department of Health (CDH). CDFA and CDH would also have power under SB201 to suspend or revoke approval of a HACCP plan without notice. For those adopting HACCP plans, testing would be much more rigorous than under existing law. SB201 would require that those under a HAACP plan have their milk tested twice a week for coliform, standard plate count and E. coli O157: H7 at a state-accredited lab. Once a month CDFA would test for pathogens including but not limited to Campylobacter jejuniE. coli O157:H7Listeria monocytogenes and salmonella. Producers testing positive for any pathogens could have their sales suspended by CDFA, but those under HACCP per SB201 would not be subject to any suspension of sales for high coliform counts. SB201 has been designated an urgency bill due to the threat the current coliform requirement poses to the ability of the state’s two licensed raw milk dairies—Organic Pastures and Claravale—to stay in business. As an urgency bill, SB201 must be approved by a two-thirds majority vote of the legislature. It would go into effect immediately upon signing by the governor. SB201 has been passed unanimously by the Assembly and by a large majority by the California Senate; and it is now awaiting the governor’s signature. The bill passed out of the Senate despite a late appearance before the Senate Agriculture Committee by CDFA to oppose SB201; in April the agency had refused to send a representative to testify at a major hearing before that same committee. Congratulations to those who have worked for the bill’s passage. Meanwhile, there has been no resolution yet to the federal criminal investigation by the U.S. Attorney’s office in Fresno into Organic Pastures Dairy Company (OPDC). OPDC’s attorney, Gary Cox (General Counsel for the Farm-to-Consumer Legal Defense Fund), is in negotiations with the U.S. Attorney over a possible settlement to the case. It is believed FDA wants to either eliminate or severely restrict shipments of OPDC raw dairy products in interstate commerce. The colostrum products the company ships in interstate commerce appear to be unaffected by the investigation because they are regarded under federal law as dietary supplements, not as dairy products.

Update, Summer 2008–THE CALIFORNIA AB1735 COLIFORM STANDARD: The fight to overturn the coliform count requirement imposed by Assembly Bill 1735 (see Update,  Winter 2007 and Update, Spring 2008 below) continues in the courts and in the legislature. At this time, the best chance for success appears to be in the legislature. First, a recap of what has been happening in the courts. On March 6, Attorney Gary Cox filed for a temporary restraining order (TRO) and a preliminary injunction in San Benito Superior Court on behalf of OPDC and Claravale Dairy to prevent the California Department of Food and Agriculture (CDFA) from enforcing the coliform standard (the standard calls for suspension of a product’s sales when three out of five consecutive tests for that product exceed a coliform count of 10 in the final container). Judge Harry J. Tobias granted the TRO on March 19 in favor of the dairies, prohibiting CDFA from enforcing the coliform standard while allowing the agency to continue to collect and test milk samples from the dairies. In winning the TRO, Gary was able to convince the judge that both dairies would go out of business if the coliform standard were enforced and that the standard was not rationally related to the safety of the milk. The next step in the judicial process was for Judge Tobias to rule on whether to convert the TRO to a preliminary injunction. Hearings were held on this issue April 25 and May 23. At the conclusion of the May 23 hearing, the judge denied the dairies a preliminary injunction, essentially reversing his earlier position and holding that the coliform standard had a rational basis in law. In making his ruling, the judge added that he was not convinced the plaintiffs would prevail at trial (the trial would be for a permanent injunction) and “from the plaintiffs’ standpoint they should be dealing with their political representatives for legislative modification.” Gary has said that he will appeal the judge’s denial of the preliminary injunction to an appellate court. Until a ruling is made on the appeal, the TRO will remain in effect. On the legislative front the prospects for repealing the coliform requirement of AB1735 are more encouraging. On April 15 the California Senate Agriculture Committee and the Select Committee on Foodborne Illness held a public hearing in Sacramento on raw milk safety. The committees heard testimony from consumers and also from panels of experts (both pro and con on the AB1735 coliform standard), including Dr. Ted Beals, a pathologist from Michigan and Dr. Ron Hull, a microbiologist from from Australia, who testified on the inherent safety of raw milk and stated that the 10 coliform limit was merely a marker for successful pasteurization and not an appropriate test for raw milk safety. Neither CDFA nor FDA sent representatives to testify at the hearing. Senator Dean Florez, Chairman of the Senate Agriculture Committee, indicated that he favored a more relaxed coliform requirement but wanted each licensed raw milk dairy to develop its own HACCP plan (Hazard Analysis of Critical Control Points) to ensure the safety and cleanliness of the raw milk.  Florez appointed a Blue Ribbon panel, comprised of both supporters and opponents of the current coliform standard, to draft legislation that would supplant AB1735. The panel’s work has given rise to SB201, emergency legislation sponsored by Senators Florez and Don Parata. SB201 would eliminate the 10 coliform standard while instituting twice-weekly testing for pathogens. Under the bill, each licensed raw milk dairy will be required to devise its own HACCP plan.

Update, Spring 2008: The efforts of the California Department of Food and Agriculture (CDFA) to eliminate the retail sale of raw milk continue. As covered in the Winter 2007 issue of Wise Traditions (see Update, Winter 2007 below), the California legislature passed a law (AB1735) last year requiring that retail raw milk have a coliform level of 10 or less in the final container. The state’s two dairies licensed to sell raw milk, Organic Pastures and Claravale, determined that they would try to overturn the law in both the legislature and in the courts. In late December the dairies filed a suit against CDFA in San Benito Superior Court asking that the agency be permanently enjoined from enforcing the coliform standard. The case is being handled by the Farm-to-Consumer Legal Defense Fund. No court date had been scheduled as of the time of this writing. On the legislative front, an intense lobbying campaign effort was waged by raw milk supporters with thousands of people contacting CDFA, the governor’s office and the legislature. Initially, the California Assembly’s Agriculture Committee refused to hold hearings on the coliform standard but the opposition to the standard became so great that the committee relented. On January 16 the committee held a hearing on the standard before a packed house of over 500 people. Led by committee chair Nicole Parra, the Agriculture Committee voted unanimously to support compromise legislation (AB1604, which would call for a six-month stay on any coliform testing with the possibility that a new coliform standard of 50 (taken at the bulk tank instead of the final container) would go into effect in the summer.  AB1604 lasted less than two weeks. Shortly after the hearing, the bill was assigned to the Assembly Appropriations Committee, a questionable move since no expenditure of money would be necessary to revise the coliform standard. The bill never actually made it to Appropriations because Rep. Parra withdrew it. In place of AB1604, a “blue ribbon” committee is to meet later in the year to study raw milk. For now, it appears that CDFA’s government-by-stealth tactics (it never notified either licensed dairy about AB1735 before the bill became law) have paid off for the agency again. AB1735 went into effect on January 1, 2008. If three out of five consecutive coliform tests are over ten for either dairy, its sales will be suspended. As of this writing, Organic Pastures milk had been tested three times with a coliform count over ten twice. If either of the next two tests is over ten, Organic Pastures intends to file a lawsuit asking for a temporary restraining order and preliminary injunction prohibiting CDFA from suspending sales at the dairy. Please consider making a donation to the Farm-to-Consumer Legal Defense Fund to help overturn a law that was instituted not to protect the public health but to end the retail sale of raw milk in California.

Update, April 15, 2008: Fallon-Morell Testimony on AB1735 in California

Update, Winter 2007: The Farm-to-Consumer Legal Defense Fund has agreed to research legal options to overturn Assembly Bill (AB) 1735, a new California law that mandates standards so stringent that raw milk dairies would not be able to comply on a consistent basis. By eliminating the major producers of raw milk in California and sending a clear message to legislators in other states, this law will adversely affect the availability of raw milk throughout the country. An appeal to our members raised almost $35,000 for the Farm-to-Consumer Foundation within just a few weeks.

The law, signed by Gov. Schwarzenegger on October 8 and scheduled to take effect January 1, imposes a strict limit of 10 coliform bacteria per milliliter in tests taken at the point of sale. All other states with the coliform limit of ten for retail raw milk test at the bulk tank. Since coliform bacteria rapidly divide and multiply whenever milk is sent through pipes, the new law will mean an end to raw milk sales in California.

Neither Organic Pastures Dairy nor Claravale Dairy, the two licensed raw milk dairies in California, were notified of hearings on the bill. Spokesmen for both dairies have expressed opposition to the legislation, which they characterize as a “sneak attack” on raw milk.

Most coliform bacteria are not pathogens but essential probiotic good bacteria. Both dairies have a superlative safety record. Claravale has been supplying raw milk to the public without incident for over 80 years; over 1300 tests carried out at Organic Pastures since its founding in 1999 have failed to find a single human pathogen.

An action plan, spearheaded by Mark McAfee, president of Organic Pastures Dairy, is mounting opposition to the legislation on three fronts:

  1. Negotiations with the California Department of Farms and Agriculture (CDFA) and the governor to overturn the legislation
  2. Lobbying and letter writing on the part of consumers
  3. Research into legal avenues to stop AB1735 in the courts.

Regarding the letter-writing campaign, please keep those letters coming to legislators and the governor of California. For contact information and sample letters, go to  http://organicpastures.com/contact_lawmakers.html.

The California situation is likely to affect raw milk drinkers across the country. Should California be successful in getting rid of raw milk in the state, a chilling message will go out to other state legislative bodies. So we are urging all of our members, but especially those in California, to write letters, send emails and make calls.

The latest on the situation is that various elected and appointed officials have received literally thousands of letters of protest. The legislative assembly has gotten the message from angry consumers and now supports immediate rescinding and reversal of AB1735. The focus is currently on the Secretary of Agriculture, who has received messages from all quarters—including the former Secretary of Agriculture—that AB1735 must be overturned.

We are optimistic that lobbying efforts will make it possible to avoid a lawsuit, which would result in much unfavorable publicity for the California Department of Farms and Agriculture. Should the lobbying campaign be unsuccessful, the Farm-to-Consumer Legal Defense Fund is ready to file.

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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