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of adulteration. If the cheese can be destroyed just on the basis of an initial positive test for L. mono, then Estrella, like
Morningland, is being denied due process.

Catherine Donnelly, co-director of the Vermont Institute for Artisan Cheese of the University of Vermont, commented,
“If the FDA wanted to shut down the U.S. artisan industry, all they’d have to do is this environmental surveillance (testing
for Listeria in cheese plants) and the odds of finding a pathogen would be pretty great. Is our role to shut these places
down or help them?” (William Neuman, “Small Cheesemaker Defies F.D.A. over Recall”, New York Times, November
19, 2010)

For small food producers, one recall or destruction order can put them out of business. Due process of law needs to
be upheld to protect producers from the reign of terror FDA is waging against farmstead cheese operations; otherwise,
FDA will continue to go unchecked after raw dairy producers who have harmed no one with their products—working
toward the agency’s eventual goal of eliminating access to raw dairy.
FEDERAL - FDA LAWSUIT
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 Wise Traditions Spring, Summer and
Fall 2010 issues 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.

PENNSyLVANIA
Good news from Pennsylvania! On October 7, the Pennsylvania Independent Regulatory Review Commission (IRRC) met
to vote on whether to approve dairy regulations proposed by the Pennsylvania Department of Agriculture (PDA). The
proposed regulations contained burdensome requirements for raw milk producers including two particularly onerous
provisions. First, the regulations would require a mechanical bottling machine for producers; with a limited exception,
handcapping would be prohibited.

Second, bottling, single-service container storage, and bottle washing would need to be done in rooms other than the
milk room; currently, many raw milk producers in Pennsylvania bottle and handcap in the milk room and would have
needed to incur the expense of constructing a separate room. Moreover, bottle washing would not be allowed in the
room devoted to bottling and storage.

Often, bodies such as the IRRC simply rubber-stamp proposed regulations into law with minimal debate. Not this time.
Tom Maurer, president of CARE (Communities Alliance for Responsible Eco-agriculture), and Bryan Snyder, the Execu-
tive Director of PASA (Pennsylvania Association for Sustainable Agriculture), rallied their respective members against
the proposed regulations. At the October 7 meeting, Snyder did a great job in explaining to the IRRC how PDA was
misleading them when describing the effect the new regulations would have on raw milk producers. The committee
chair for the IRRC pointed out that raw milk regulations should not be combined with Pennsylvania’s adoption of the
Pasteurized Milk Ordinance (also known as the PMO), which is mainly what the proposed regulations had to do with.
The IRRC voted three to two to reject the proposed regulations.

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