Suppose the U.S. Food and Drug Administration and its various local ag and public health minions had to show detailed laboratory evidence before declaring food contaminated.
Suppose the authorities needed to demonstrate that the bacteria being labeled as unfit for human consumption really were.
And suppose the presence of certain bacteria couldn’t automatically be equated with “adulteration” of food.
These challenges to the regulatory conventional wisdom about food contamination could become a reality if Missouri state court judge David Dunlap agrees with the arguments made in the case of Morningland Dairy, a producer of raw milk cheeses.They coincide with at least some of the arguments that have been put forth here by a number of people, like Ken Conrad, Dave Milano, Goatmaid, and Miguel, among others.
If you’ll remember, the Missouri Milk Board last August obtained an injunction to force Morningland to dispose of 50,000 pounds of cheese because a few samples supposedly contained listeria monocytogenes. No one who consumed any of Morningland’s cheese has ever shown signs of illness over the last thirty years. Indeed, it’s been understood from the beginning that this case was really about providing a justification to the U.S. Food and Drug Administration for its armed raid on Rawesome Food Club last June 30, during which Morningland Cheese was seized (along with $11,000 of other food).
Morningland, backed by the Farm-to-Consumer Legal Defense Fund, contested the state’s case, and last month, in a two-day trial, the sides made their respective cases. Following the trial, the Farm-to-Consumer Legal Defense Fund assembled a 39-page post-trial brief that challenges major tenets of the hysteria model used by the FDA and its surrogates in state agencies to justify seemingly arbitrary actions against small producers like Morningland Dairy.
Here are the key challenges made by the FTCLDF on behalf of Morningland:
* It termed the Missouri Milk Board’s action in condemning Morningland’s entire 2010 inventory of 50,000 pounds a case of “condemn first, investigate later.” The condemnation was based nearly entirely on a report from the California Department of Food and Agriculture that two samples of Morningland Dairy cheese seized in the Rawesome raid were contaminated with listeria monocytogenes. In questioning the head of the Missouri Milk Board, Gene Wiseman, the FTCLDF summary states: “Wiseman testified that he had no personal knowledge of how the cheese obtained by the California authorities was collected, handled, transported, or analyzed, or whether the California laboratory followed laboratory quality analysis/quality control protocols. Wiseman also testified that he had no personal knowledge of whether in fact the two pieces of cheese obtained by the California authorities was even from Morningland.”
* The FTCLDF challenged assertions by the state that Morningland’s cheese is dangerous. For example, it pointed to a state expert witness, epidemiologist Mary Glassburner: “In response to the Court’s questions, Ms. Glassburner testified that whether an individual gets sick or not depends on the amount of a bacteria that is eaten and on the individual’s own immune system. Ms. Glassburner also testified that getting sick is a matter of risk, from low to high and from never to always.”
On the Morningland side, retired pathologist Ted Beals “testified that the test results he reviewed…showed only the mere presence of L. mono. and Staph. A. The test results did not give any information regarding either (a) the types (whether harmful or harmless) of bacteria present, or (b) the amount sufficient to be potentially dangerous. In Dr. Beals’ expert opinion, therefore, there was nothing in Morningland’s cheese that made it a threat to the public’s health because there was no evidence of any enterotoxins or of any virulent form of L. mono. in Morningland’s cheese.”
* The FTTCLDF called into question the standard regulatory argument in such cases that the mere presence of certain bacteria constitutes product adulteration. It argued that for adulteration to occur, “three elements must be present: (1) a substance must beadded to a food, (2) the substance must be poisonous or deleterious, and (3) the added substance must render the food ordinarily injurious to health.”
The FTCLDF argued that “the State failed to prove that any of Morningland’s embargoed cheese was either adulterated, injurious to the public’s health, or prepared in unsanitary or unhealthy surroundings or held in unclean or unsanitary containers. The State relied on the alleged mere presence of L. mono. and/or Staph. A. to issue the embargo order.”
And even the “mere presence” wasn’t a certainty, because “the evidence that the State relied on was clear and utter hearsay. Indeed, the only evidence the State had at the time the embargo was issued
were the cheese sample results submitted by the California authorities, one of which
Denise Dixon [owner of Morningland] testified was not even sold by Morningland to the Rawesome food club in California. Other than the two sample results, the State Milk Board had no evidence whatsoever to place an embargo on all of Morningland’s cheese. Thus, the embargo was unlawful, unreasonable, arbitrary, or capricious or involved an abuse of discretion.”
In an article about the case in the latest FTCLDF newsletter, Pete Kennedy, the organization’s president, says, “The judge’s decision will turn on what he finds constitutes ‘adulteration.’ If the judge rules the entire inventory of cheese in the cooler is adulterated, then he will probably order it destroyed. At the beginning of the trial, Judge Dunlap indicated that the mere presence of L. mono. or S. aureus in the cheese would not be enough evidence to constitute adulteration; but later he vacillated somewhat by stating that the Milk Board would only have to show that the cheese was harmful to a susceptible population, such as the young, elderly, and those with compromised immunity. A more favorable standard for Morningland would have been that the Milk Board needed to show that the cheese must have the capability of sickening an average person.”
We may find out in the next few weeks if a judge agrees, and is willing to head down a path that no judge has yet dared go in requiring the public health and agriculture authorities to demonstrate real danger before putting a small enterprise out of business.