Food Regulators As Benign DictatorsFDA Says It Could Be Tougher on Raw Milk; Anyway, No Absolute Rightto Any Particular Food Or Bodily and Physical Health

Round One in what I labeled last February “the main event”—the Farm-to-Consumer Legal Defense Fund’s suit against the U.S. Food and Drug Administration—has just begun.

The FDA is seeking a quick knockout via a motion to dismiss the FTCLDF suit. That’s pretty standard practice in court suits, but what is notable is that the FDA made its case in a 30-page legal brief that amounts to a legal rebuttal to the FTCLDF suit, point by point. The FDA thus seems to be taking the case seriously, and trying hard to make it go away. It’s a pretty amazing document, addressing at last many of the arguments that have been made on this blog over the last few years, giving words to what many here have long suspected about FDA views. (No, the FDA doesn’t often share with us ordinary folks its great thoughts.)

The FTCLDF in its suit had argued that the FDA’s ban on interstate shipment and sale of raw milk in effect deprived consumers in five states and a food buying group owner in Georgia of a number of constitutional rights. The suit charged that “all Plaintiffs are being deprived of their fundamental and inalienable rights of (a) traveling across State lines with raw dairy products legally obtained and possessed; (b) providing for the care and well being of themselves and their families, including their children; and (c) producing, obtaining and consuming the foods of choice for themselves and their families, including their children.”

At stake, it said, are “the Constitutional Right to Travel; the Constitutional Right of Privacy; the substantive due process clause of the Fifth Amendment of the United States Constitution; Article 1, Section 1 of the United States Constitution (the Separation of Powers/Non-delegation doctrine)…”

In countering each of the FTCLDF’s points, the FDA lawyers cite a variety of legal precedents they say upholds the agency’s right to prohibit raw milk shipments across state lines. They suggest that the interstate prohibition is merely one tactic at its disposal, that the agency could actually be doing more to limit raw milk availability. It notes that “the government has neither brought nor threatened to bring a single enforcement action against consumers who purchase unpasteurized milk for personal consumption or retailers of such products who do not engage in interstate commerce.”

The FDA even suggests that it is being benevolent by not banning raw milk entirely, pointing out that the 1987 court decision that led it to implement a ban on interstate shipment and sale of raw milk asserted “that ‘it is within HHS’s authority…to institute an intrastate ban as well’… FDA could have…prohibited intrastate sales but concluded ‘that State and local authorities may be better situated to deal with the public health problems attributable to unpasteurized milk.’” Thank you, thank you, most wonderful FDA.

The brief is most notable for its view of the evolution of food safety regulations, and the emerging issue of food rights. In the FDA’s view, an assortment of court decisions backing up federal legislation give it pretty much carte blanche to decide what food is safe. This is a view that pre-dates the U.S. Constitution, in the view of FDA lawyers-turned-historians. It says that “there is no ‘deeply rooted’ historical tradition of unfettered access to food of all kinds… To the contrary, society’s long history of food regulation stretches back to the dietary laws of biblical times…Modern food safety regulation in the United States has its roots in the early food laws of the American colonies, which themselves incorporated ‘the tradition of food regulation established in England.’” The brief then cites an 1873 Virginia law “that ‘made it an offense . . . [to] knowingly, sell, supply, or bring to be manufactured . . . milk from which any cream has been taken; or milk commonly known as skimmed milk’).’”

Yes, you read that FDA example correctly. Virginia prohibited sale of milk that had been fooled with in any way, such as removing cream. Under such a regulation, pasteurization and all the other things done to modern milk would be illegal. Is that the best the FDA can come up with in terms of historical precedents?

The current prohibition on interstate raw milk shipments was implemented by FDA, according to the brief,  “in 1987, after spending thirteen years collecting and evaluating scientific information regarding the health risks of unpasteurized milk, holding a public hearing that resulted in over 300 comments, and…ultimately concluding that consumption of these products was linked to the outbreak of serious disease.” The brief neglects to mention what I describe in The Raw Milk Revolution–that among these hundreds of comments were many in favor of raw milk, and against the interstate prohibition. How could the FDA lawyers have missed those?

It gets worse. In recounting its version of the history of food safety and regulation, the brief concludes, “There is no absolute right to consume or feed children any particular kind of food.” The basis? “Comprehensive federal regulation of the food supply has been in effect at least since Congress enacted the Pure Food and Drugs Act of 1906… Thus, plaintiffs’ claim to a fundamental privacy interest in obtaining ‘foods of their own choice’ for themselves and their families is without merit.”

Bet you didn’t realize this, but according to the FDA lawyers, “There is no generalized right to bodily and physical health.” Yes, yes, and here’s the deal: The claim in the FTCLDF suit is “similarly unavailing because plaintiffs do not have a fundamental right to obtain any food they wish.” Guess if you can’t get healthy food, you automatically lose the right to bodily and physical health.

I kept trying to remind myself this is a legal document as I tried to make sense of the lawyers’ efforts to link the question of our right to bodily and physical health to Supreme Court pronouncements on abortion and end-of-life rights. But the whole issue of a right to bodily and physical health is moot in any event, since Big Brother is there watching over us: “Finally, even if such a right did exist, it would not render FDA’s regulations unconstitutional because prohibiting the interstate sale and distribution of unpasteurized milk promotes ‘bodily and physical health.’” Got that? The whole issue of rights is irrelevant since FDA has decreed that pasteurized milk is health-giving and raw milk is dangerous. Well, guess we can all go home now and enjoy our pasteurized milk, and any other processed food the FDA determines promotes bodily and physical health.

Essentially, the FDA seems to be saying to the court: Congress gave us the authority to oversee the food supply, so we’re the ones in charge here. We decide what foods people have a right to eat, and we decide what is health giving. And don’t forget it.

If the FTCLDF survives this opening round, this could be a slugfest of a case. It’s interesting that one of the government’s lawyers on the case is Roger Gural, the Justice Department guy a federal judge castigated in the FDA’s civil suit against Organic Pastures Dairy Co.

I couldn’t help but think, as my mind numbed from trying to make sense of the various legal precedents and cases quoted by the FDA’s lawyers in their interpretation of what rights we have and don’t have, that there was no mention of the Declaration of Independence, and its introduction: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government…” We’re talking about milk here, guys.


Wisconsin dairyman Scott Trautman is conducting an informal survey on what people see as the most significant risk factors associated with raw milk. Details at his blog.

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19 Comments on "Food Regulators As Benign DictatorsFDA Says It Could Be Tougher on Raw Milk; Anyway, No Absolute Rightto Any Particular Food Or Bodily and Physical Health"

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Gary Cox
April 28, 2010 11:49 pm

first the women’s suffrage movement, then the civil rights movement, then the home school movement, now the food freedom movement.

we’ll prevail.

Eric Wagoner
April 28, 2010 11:50 pm

"…the government has neither brought nor threatened to bring a single enforcement action against consumers who purchase unpasteurized milk for personal consumption…"

The people who tried to take home the milk they had privately purchased for their own consumption, but instead had their milk seized and dumped right in front of them at my house would likely disagree. Including me. I was not allowed to put the milk I had purchased for my own consumption in my own refrigerator, even though it was mere feet away from where the FDA agent was standing.

Steve Bemis
April 29, 2010 12:12 am

Now I get it: the FDA is really a religion ("dietary laws of biblical times"). I knew there was a logical explanation for the messianic zeal emanating from FDA headquarters.

One of several recent examples of FDAs picking-off individual farmers has caused the Farm-to-Consumer Legal Defense Fund to publish an Alert which includes a sample form of letter to assist consumers in supporting their farmers.

Drop John Sheehan at the FDA a note and tell him what you think of the FDA religion.

Bob "BubbaBozo" Hayles
April 29, 2010 1:04 am

The FDA’s choice of Biblical dietary laws is surprising in that the Bible speaks to the "land of milk and honey" when referring to the Promised Land. I wonder where the pasteurization plant was located?

The FDA will lose.


Bill Anderson
April 29, 2010 2:35 am

Eric Wagoner-

You should contact the Farm to Consumer Legal Defense Fund, and inquire about signing onto the class action suit. It wouldn’t cost you anything, and could bolster the case against the FDA.

Eric Wagoner
April 29, 2010 3:14 am

Not to worry. I’m already a plaintiff, and the actions taken against me and my neighbors are already detailed in the suit. Which makes it all the more puzzling why they could claim what they did in their response.

Bill Anderson
April 29, 2010 3:58 am

Great to hear Eric. Let’s hope the case goes well.

Karen-Lynette Bauer
April 29, 2010 8:57 am

Sounds like their lawyers are completely out of good arguments. Why else would they resort to specious arguments, and arguments that basically prove OUR point? I think it’s great. That is a really poor memorandum of law, and if the judge is even vaguely intelligent, they will rule against them. But, you never know with the law. Judges can do whatever they please, and some of them are complete idiots, while yet others are maidservants of commercial interests. Let’s hope in this case the judge is one of those paragons of legal virtue… Read more »

April 29, 2010 9:39 am

I was of the impression that our constitution requires separation of church and state so that no one religion would be forced upon the populace. If the FDA is citing Biblical dietary laws as validation for their regulations, it sounds like they are discriminating against those belonging to other religions/faiths where the Bible is not their scripture. (If the Bible is your scripture, please do not take offense – none is intended… we do respect your path.)

We follow our traditional Hindu lacto-vegetarian diet. Milk is a very important part of that diet.
The concept of a "sacred… Read more »

milk farmer
April 29, 2010 10:19 am

This brief, and the implications that it reflects of the warped sense of authority the FDA has assumed, needs to be spread far and wide. The notion that a government agency would make an argument that one doesn’t have a right to health flies in the face of the Constitution, and the idiot who wrote this brief should be drawn and quartered and his remains sent to the nearest Soviet gulag. Fascist pigs.

It’s time to mobilize all the raw milk drinkers in this country….and coordinate a mass campaign of outrage. That the FDA doesn’t believe that we have… Read more »

Blair McMorran
April 29, 2010 10:34 am

What bothers me is that the FDA is right about there being no explicit constitutional right to eat the foods of our choice. Has anyone ever tried to initiate a bill that protects our freedom of choice? Is that a naive proposal?

Blair McMorran
April 29, 2010 10:47 am

Milk farmer is right – we need to move from fear to outrage.

Don Wittlinger
April 30, 2010 12:00 am
Audio interview.
Not something that any of us at the bottom of the food chain want to hear or even believe!!!

Mark McAfee
April 30, 2010 6:38 am

I am far beyond outrage….

I am in full grass roots education mode. I try my best every day to fire up everyone I speak with. I did an interview with Columbia University today. They are writing a paper on Raw Milk and this whole subject. People just do not know.

My CFR 1240.61 FDA "citizens petition" is still unanswered. It was submitted December 2008.

The faster people figuer out that the FDA is involved in corporate drug pushing mass murder. The faster we will have mass upheaval and the oust of the drug pushing corrupt corporate protecting bastards.

Mike… Read more »

Bob "BubbaBozo" Hayles
April 30, 2010 9:26 pm

Sadly, and I cannot believe I’m saying this, but sometimes, like right now, I fear we will fail.

I haven’t changed my mind about our right to make out own nutritional choices. I haven’t changed my mind about the goodness and healthiness of nutrient dense foods. I have change my mind on one important part of the equation.

I believed in raw milk consumers. I mean I REALLY believed in raw milk consumers. I though, and still do, that this war would be won ONLY with pressure from those consumers, and I believed consumers would provide that… Read more »

Eric Wagoner
May 1, 2010 3:15 am

Bob, please don’t take this as a criticism of you or a call for you to change who you are…

People won’t follow just anyone into a protest. It takes the right combination of circumstances, outrage, and personality to get people to take action. And despite the circumstances and present outrage, your call to arms had a number of things working against it. The cloak and dagger nature of your planned protest was one… saying that you were going to make a milk run sometime in the upcoming couple months and have a pickup spot somewhere within a two-hour radius… Read more »

Sharon Z
May 1, 2010 7:15 am

To Bob Hayes…you are exactly right. I have experienced the same things – lack of will, laziness, wanting other people to do the work – while fighting NAIS for the last few years. I see it still. We’ve come up with a 10-Minute Citizen scheme and still people don’t do it.

I only wanted to say that I feel your pain. None of us were equipped to be activists but here we are anyway. Keep fighting the good fight, because it is right fight and you will attract the right people to you anyway. You cannot worry much about… Read more »

Joanne Nelson
May 2, 2010 2:17 am

I’m the person who interviewed Doreen Hannes (Don Wittinger posted the link above) about Agenda 21 and the FDA and USDA efforts to control the food supply. I informed several Yahoo groups of which I am a member about the interview and provided a link.

How much discussion did it generate in these groups? NONE. They were more interested in swapping recipes and figuring out how to grow their kefir grains.

Jon Carlson
May 2, 2010 2:55 am

After WWII American traitors later to be honored by the Dulles Airport in DC combined Nazi Germany spies with US spies. As intelligence is the basis for decision-making, intelligence slanted for the good of Germany, that is the destruction of America, has been the order of the day ever since. FDR had a policy of neutrality toward the Arabs and friendship with Russia who lost 20 million dead in WWII. Proto with the MERGER OF SPIES these policies were switched. To understand what happened to America, UnAmerica, we put together a series of reports.

The Nazis in The White… Read more »