Page 87 - Spring2010

Faced with a loss of control over the food the people of Ontario can consume, the Crown filed an appeal of the
decision on February 11. In its appeal the Crown made the claim that Justice Kowarsky was in error for finding “there
was no evidence that anyone had become ill as a result of the consumption of the defendant’s milk products, despite
the evidence of Ontario’s expert witnesses that many cases of milkborne illness go unreported and undiagnosed.” The
Crown also made the claim in its appeal that Justice Kowarsky “failed to take into account the Precautionary Principle
which provides that whether there are threats of serious or irreversible damage, lack of full scientific certainty should
not be used as a reason for postponing measures to prevent environmental degradation.”
In the appeal the Crown is also contesting the right of the citizens of Ontario to opt out of the protection of the
public health laws through private contractual arrangements such as cow shares. With the proliferation of GMOs and
other toxic additives and ingredients in the food supply, the question is: what protection? In finding that there is a
distinction between public and private in the distribution of food and that people do have the right to waive the pro-
tection of the public health laws, Justice Kowarsky has set a benchmark that judges in this country need to follow.
Since the January 21 hearing, many Ontario dairy farmers have shown interest in starting up cow share programs.
The hope is that dozens of them will get underway. Michael Schmidt has been courageously fighting the Province of
Ontario for sixteen years now to secure the right to distribute raw milk legally. He needs more help from both produc-
ers and consumers. Schmidt’s message is this: “People need to basically take charge of and responsibility for their own
food. You have to break down the difference between consumer and producer – the consumer is always passive, but
consumers need to get involved in food production so that we don’t end up with total corporate control of our food
supply. Reconnect with where your food is coming from; reconnect with how your food is produced; and reconnect
with the people who actually grow the food” (Eyeweekly.com, March 2, 2010).

FDA LAWSUIT: 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 Depart-
ment 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 con-
sumers;” 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.

SPRING 2010 Wise Traditions 87