Page 75 - Winter2010

UPDATES by Pete Kennedy, Esq., President,
The Farm-to-Consumer Legal Defense Fund

FDA, the center of the opposition to raw milk in this country, is now taking aim at raw cheese. The agency is involved in
two enforcement actions against raw cheesemakers, which threaten to reduce significantly the availability of raw artisanal
cheese in the US. The FDA has long wanted to extend the aging requirement for raw cheese from sixty to ninety days
(a number of European countries have no aging requirement for raw cheese), but its actions in the case of Morningland
Dairy of Mountain View, Missouri and Estrella Family Creamery of Montesano, Washington are an indication the agency
has the potential to make it difficult for any artisanal cheesemaker to remain in business. Resolution of the Morningland
and Estrella cases will impact freedom of food choice everywhere in this country.

MISSOURI – MORNINGLAND DAIRy
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 produc-
tion. 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.
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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 Sep-
tember 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

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