Updates: Morningland Dairy, Missouri
by Pete Kennedy, Esq., President, The Farm-to-Consumer Legal Defense Fund
Update, Spring 2011
A trial was held January 11-12 at the Howell County Courthouse in West Plains, Missouri, to determine whether approximately 29,000 pounds of cheese held at the facility of Morningland of the Ozarks, LLC (d/b/a Morningland Dairy) should be destroyed despite no reports of illness. Morningland’s entire inventory of cheese has been under embargo since August 26, 2010. Morningland is a farmstead cheese operation that has been in business for more than thirty years without any reported illnesses from the consumption of its products.
On October 22, 2010 the Missouri State Milk Board filed a petition in the Circuit Court of Howell County to order the destruction of the embargoed cheese. On October 1, 2010 the Milk Board had issued a letter to Joe and Denise Dixon, owners of Morningland, requesting that the dairy destroy its entire cheese inventory because some pieces of cheese sent off for testing on August 27 came back positive for Listeria monocytogenes (L. mono.) and others came back positive for Staphylococcus aureus (Staph. aureus or S. aureus).
The trial before Judge David Dunlap went for ten hours each day with much of the testimony focusing on whether the cheese was adulterated and whether the conditions at the Morningland cheese facility were unsanitary. Retired pathologist Dr. Ted Beals, an expert witness for Morningland, testified that it cannot be presumed that a food is adulterated just because its contains L. mono., but that it must be shown it is a type of L. mono. that is capable of making people ill. The Milk Board provided no evidence at the trial as to the type and amount of L. mono. present in the cheese.
As to the sanitation at the Morningland facility, the state had stipulated during a deposition that all 100 environmental swab samples collected by FDA last September at Morningland’s cheese plant had all tested negative for L. mono. Further, Morningland had never been cited for having unsanitary conditions during any inspection of the plant since the Dixons had taken over its operation in 2008.
On February 23, Judge Dunlap issued his decision siding with the Milk Board and ordering that all the embargoed Morningland cheese be destroyed. The judge held for the state based on his conclusions that the cheese was made from milk produced by diseased animals and that the cheese was produced under unsanitary conditions, both of which would be in violation of state statute.
What the judge had done in issuing his ruling was to substitute his judgment for that of the Milk Board. Judge Dunlap found that the Morningland herd was diseased because three tests for somatic cell counts in the herd exceeded the limit allowed by regulation. The Milk Board had never taken any action against Morningland for the high somatic cell tests because there is only a violation of law if the somatic cell count is higher than the maximum limit in three out of five consecutive tests. The dairy’s three high counts were spaced out among some sixteen different testings. Further, if the Milk Board had suspected that animals in the herd were diseased, it would have had a state veterinarian check the herd—something that was never done.
In addition to the high somatic cell counts, the judge concluded that testimony from Denise Dixon provided further evidence the herd was diseased. Dixon testified that several cows had been culled in September 2010; Judge Dunlap stated in his opinion that it could be inferred that the reason for culling was animal disease. In October 2010, Morningland did obtain a Grade A permit enabling them to sell raw milk to a co-op for pasteurization; however, at the time of the culling, the Dixons had no income from their dairy operation since the Milk Board had embargoed all the cheese in their facility and had shut down any further production. The Dixons culled the animals to raise desperately needed funds for the dairy. There wasn’t a shred of evidence introduced at the trial to show that the culling had been done because of diseased cows. Cows would have had to be tested individually to determine which ones to cull; the Dixons never conducted such tests.
In ruling that the cheese facility was unsanitary, Dunlap relied entirely on the testimony and reports of Milk Board inspector Don Falls. In the inspection reports Falls compiled on the Morningland plant, he wrote Morningland up for changes that needed to be made to the facility; during the trial, Falls admitted during cross-examination that nothing he wrote the plant up for amounted to unsanitary conditions.
Morningland will be filing a motion for a new trial. If the motion is denied, an appeal will be filed on Judge Dunlap’s decision.
Update, Winter 2010
Morningland Dairy cheese was seized by both FDA and the California Department of Food and Agriculture (CDFA) in the June 30, 2010 raid on the Rawesome food store in Venice (see Wise Traditions Fall 2010 issue for background on the raid). In August, CDFA informed the Missouri State Milk Board that samples of Morningland cheese had tested positive for Listeria monocytogenes and Staphyloccocus aureus. It should be noted that L. mono is widespread in the environment and many subtypes of this bacteria have not been implicated in human illness. Staph. aureus is present normally on everybody’s skin and is considered protective. Most subtypes of this organism do not produce the toxin, although some subtypes can occasionally cause vomiting. Gastrointestinal illness from Staph. aureus is self limiting, meaning medical treatment is not necessary.
The evidence is that the procedures the agency used in taking the cheese from Rawesome and recording the test results were sloppy at best.
On August 26, the Milk Board issued Morningland orders not to ship any cheese at the facility and to cease all production. On August 27, Morningland sent cheese samples off for testing. Unfortunately, as in California, proper protocols were not followed in taking the samples. A number of the samples came back positive for L. mono and Staph. aureus.
On August 31, Joe and Denise Dixon, owners of Morningland, issued a voluntary recall asking their customers to either destroy or return over sixty thousand pounds of cheese produced from January 1, 2010 onward. (On August 27 FDA had sent out a press release as the Dixons had not yet decided whether to issue a recall.) From August 30 through September 1, FDA conducted an inspection of the Morningland facility, taking one hundred environmental swabs, all of which tested negative for pathogens.
On September 24, the Milk Board verbally requested that Morningland destroy the entire cheese inventory; the Dixons asked that the request be put in writing, which was done on October 1. Morningland responded by objecting to the destruction order and proposing that each batch at the facility be tested, allowing the sale of only those batches of cheese testing negative for contamination.
The next day, the Milk Board rejected the Dixons’ proposal, petitioning the Howell County Court to order destruction of the entire inventory; the hearing was scheduled for October 8, giving the Dixons almost no time to prepare a defense, and was only cancelled when a scheduled state witness was not able to attend. On October 22 the Milk Board again filed a petition for a condemnation order; a hearing on the petition has been scheduled for January 11. If the Court issues the condemnation order, Morningland would be required to destroy fifty thousand pounds of cheese (market value of about two hundred fifty thousand dollars) located at Morningland’s cheesemaking facility.
There have been no reported illnesses from the consumption of cheese produced by Morningland. In fact, there have not been any cases of illness attributed to Morningland products in the thirty years of its existence. The Dixons have a loyal following and sell to hundreds of retail stores across the country as well as direct to consumers through their mail order business. As of the beginning of December, Morningland had not produced any cheese in over two months.
What is unjust about the actions taken against Morningland is that there has not been an adequate level of proof shown to establish that the bacteria found in the cheese are actually harmful to human health. There are many subtypes of L. mono and Staph. aureus; as mentioned above, many of these subtypes have not been found to cause illness in humans. The agencies have the capability to determine the subtype of a pathogen found and to determine whether that particular subtype is on record as having caused human illness; if the subtype has not, then there is no adulteration and no need to destroy the product.
The Milk Board, which is working at the direction of FDA, has not conducted any testing to determine the subtype. Once the agency had the initial positive tests from CDFA and the Dixons, it should have done subsequent testing for the subtype. Even if the subtype is known to cause illness in humans, it still needs to be determined whether the amount of bacteria in the food is enough to actually do so. FDA has a zero tolerance policy for L. mono, a standard widely rejected by the scientific community throughout the world. The zero tolerance policy, in fact, reduces the incentive to test for L. mono., thus potentially making our food supply less safe.
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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