Morningland Challenges Standard Food Police Practices–Will a MO Judge Go Where No Judge Has Dared Go?

Morningland Dairy’s cheese storage room, where product awaits a Missouri judge’s decision on whether it should be destroyed. 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.

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38 Comments on "Morningland Challenges Standard Food Police Practices–Will a MO Judge Go Where No Judge Has Dared Go?"

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Bill Anderson
February 9, 2011 8:16 am

Ironic, isn't it, that this raw milk cheese is considered "adulterated" food, but the GMO chemically laced "phoods" are not?

Gary Cox
February 9, 2011 8:29 am

bill, it's also ironic that the definition of "adulterated" includes a food whereby "any valuable constituent has been in whole or in part omitted or abstracted therefrom." See 21 usc 342(b)(1).

i wonder why fda does not consider pasteurized milk to be "adulterated?"

Sylvia Gibson
February 9, 2011 8:58 am

"condemn first, investigate later."

So much for innocent until PROVEN guilty….

"i wonder why fda does not consider pasteurized milk to be "adulterated?"

Follow the money.

Mark McAfee
February 9, 2011 10:28 am

Amen to Gary on that comment…..

Make sure that you tell the judge that in the CFR 1240.61 suit….so much is missing from pasteurized milk. So many can not drink it. The judge needs to hear this loud and clear. If you need testimonials….I can just ask our 4000 member raw milk facebook following and they will flow in like crazy.

The OPDC " CFR 1240.61 FDA Citizens Petition" still languishes in Washington DC on some dusty FDA shelf or file…unanswered and lonely as all heck.

The truth at the FDA is so very inconvenient.


Mark McAfee
February 9, 2011 10:31 am

To Mr. Troll,

By the way….I have some pretty good company as a "lunatic farmer"…Joel is one of my hero's. Not so sure about the commie part…I am more of an earthy social justice liberaterian kind of guy.

Mark McAfee
February 9, 2011 10:45 pm


According to the FDA, pasteurization does not in any meaningful way, change the nutritional or digestive value of milk….as we all know this is a huge lie.

I posed this question to them years ago. YET….they ignorred the question ( they ignore anything they do not like ) and have yet to provide an answer. They are corrupt, arrogant, militaristic, totalitarian and just plain ugly.

Obama has begged the nations businesses to become more innovative, visionary and more connected to the consumers needs. He even pledged that his administration would take down any barriers to trade and consumer connection. The USDA seems to be well connected to this mission and vision with their Get to Know Your Farmer and Get to Know Your Food Initiative. But the FDA says that foods produced on farms are less safe than foods produced at factories. What a huge disconnect.

I know we have done our part of this effort at OPDC. Yet, the FDA fails to follow the leaders lead. They are bigger and badder than the president, because industry and government agencies change little with change of administrations. Industry changes with the all mightly dollar being taken from them. Dollar Voting changes industry.

Education, education , education and more education is the key. I give away free product continously so people can do their own Lactose Intolerance studies. The gut does not lie.

So….lets go bankrupt the bastards.


damaged justice
February 9, 2011 11:39 pm

How about "low-fat" milk? The fat is in there naturally. It has to be "processed" in order for the fat to be removed. That's adulterated.

Given the vital role of fat in human health, particularly brain function, and the demonstrated role of grains in obesity, inflammation and autoimmune disorders, it's no wonder so many people are starting to think that government wants people to be fat, sick and stupid. But hey, if it means more profit for their courtiers in Big Ag and Pharma, who cares about a few little diseases of civilization?

Bill Anderson
February 10, 2011 3:34 am

damaged justice-

If only reality were so simple. Have you heard that New Zealand's breeders are trying to develop a breed that produces skim milk straight out of the udder?

I kid you not…

This only reinforces the need to use traditional heritage breeds for raw milk production.
Using modern breeds and industrial farming practices to produce raw milk is a recipe for disaster. While we should use modern science to our advantage, it is imperative that we use it to validate and refine traditional/heritage dairying practices, NOT to throw them in the scrap pile in favor of the new high-tech system.

I would never drink the milk from this "skim milk cow", btw…

Violet Willis
February 10, 2011 8:43 am

Well then Bill . . . . as a modern big AG breed . . . . the Holstein is out.

As a modern breed – Holsteins sure give a great deal of milk but they have a very hard time giving birth to calves . . . .

I am all for using heritage breeds such as Jersey's, Brown Swiss, etc. as a preferred breed for raw milk.

The practice of taking calves from mom should be looked as a last resort as well. Milking once a day as a raw dairy is ideal for both the health of the herd (less stress on the cows and calves) and the customer and should be encouraged for humane reasons. You can get more $ for your raw milk that way too.

Kind regards,


Bill Anderson
February 10, 2011 10:20 am

Violet, there are older genetic lines of Fresians. Even Jerseys and Brown Swiss breeds have been modernized. It all depends where and who you get your genetics from, and what they were breeding for.

An example — In New Zealand, they don't breed for volume, they breed for components as a function of volume — i.e. when two cows that produce the same total amount of butterfat and protein, but one has a more concentrated milk, the cow that produces the more concentrated milk is preferred. (In the U.S. it woud be the other way around) The Kiwi's logic is that they don't want to be trucking a bunch of water around the countryside to the processing plant when its just going to be turned into cheese, butter, and powder for export markets anyways. Also, it has been suggested that New Zealand breeders unintetionally select for tolerance to protein toxicity, because they are primarily grass-based.

Its just an example… my point being is that you can't generalize that some breeds are modernized and others aren't. Most breeds have modernized genetic lines, as well as older "heritage" genetic lines.

My point about Jerseys as it regards to cheese making (which has caused such a stir around here…) is that their butterfat composition is not suited to cheese making because of the way it breaks down as the cheese ages. The Jersey breed was designed for buttermaking on the Isle of Jersey. Its going to take hundreds of years to get those genetics out of them, if that's what you are trying to do. Their butterfat is strongly biased towards the production of butyric acid, which is OK in moderation, but with a Jersey its way over the top.

I speak from firsthand experience, and from the experience of many cheese makers who are far more experienced than I — the guy who trained me is a second generation cheese maker. His father is from Switzerland. And he will tell you the same thing about Jersey's suitability for cheese making. As will the premier farmstead cheese maker in Vermont, if you ask him…

OK, sorry, I'm getting defensive here, because I know where this was going… no hard feelings though. I'm just sharing my experience and knowledge.

Mark McAfee
February 10, 2011 12:32 pm

Question for everyone,

I am thinking about attending the NCIMS again this year to try one more time to get the attention of the FDA on the issue of the pending Citizens Petition.

Also….just to stay on their radar and let them know we are alive in the Raw Milk Movement.

Any topics that any of you would like for me to bring up at the NCIMS CAFO PMO Church of Dead Milk? Let me know now because I have to get it on the agenda very soon.

I consider the activities and agendas of the NCIMS to be the early warning signs of greater activites soon to come with the FDA. Look at who sits on their committees….


February 10, 2011 2:00 pm

Mark said, "Any topics that any of you would like for me to bring up at the NCIMS CAFO PMO Church of Dead Milk?"

Since you asked…

1) drop the claims that raw milk cures everything from autism to asthma to lactose intolerance to erectile dysfunction (no doubt NCIMS know about the Stanford study results)
2) stop touring the country boasting about how the warning label about risks to children and immunocompromised people increases your marketing potential in CA
3) lop the emotional, dramatic descriptions of the people that you want to meet with at NCIMS that include terms like fascist, Nazi, Church of Dead Milk and so on
4) focus on your RAMP and state regulations with coliform limits in response to the 2006 outbreak and the fact that over 4 years later, there have been no illnesses or outbreaks linked to legal, regulated raw milk in your state (bingo)

February 10, 2011 3:02 pm
Smy Opin
February 10, 2011 9:10 pm


The dogma from the dead milk society is the constant claim that there is no difference between raw and cooked milk, and they keep saying there are not studies.

Yet clearly, there are studies. Dr. Theodore Beals cited numerous, specific differences.
I would go armed with those studies.

I'm sick of FDA saying there are no studies, when the truth is, there are no studies that they have bothered to look at. It's up to us to start throwing the data in their farces. I mean, faces.

Dave Milano
February 10, 2011 9:40 pm

the definition of adulterated includes a food whereby any valuable constituent has been in whole or in part omitted or abstracted therefrom. See 21 usc 342(b)(1)

So the question becomes, what exactly is a valuable constituent?

It is a high-stakes question indeed since the foundation of our modern agriculture paradigm (food is safer when dead, nutrient density is irrelevant, soil quality is irrelevant, no negative potentials are associated with genetic modification or systemic, historical diet alterations such as dramatic increases in processed carbs and seed oils) may be shaken by the answer. I think this judge, if he understands the question, may have his hands full.

Bill Anderson
February 10, 2011 10:25 pm

Dave, by that definition, we should define skim milk as adulterated.

So the question that follows… why isn't all that skim milk sitting on grocery store shelves condemed as adulterated?

February 11, 2011 3:16 am

The definition that the judge is bound to use is the one in the PMO.If I remember correctly there are words in there that make exceptions to the general definition of adulterate.These words make an exception for anything that might be taken out of the milk or added to it that is allowed and regulated by federal regulations.

The Complete Patient
February 11, 2011 3:52 am

As I suggested in my post, it will take quite an insightful judge to contradict the state's traditional interpretation of "adulteration" and ask questions of the sort you raise, about what constitutes a "valuable constituent" in food. That could open a pandora's box. I think what's significant here is that such questions are being raised in a court of law. They often have to be raised repeatedly, as part of an educational process, before finally some judge somewhere has an "a-ha moment." Even if this judge takes the easy way out and rules for the state, it's important that food producers and consumers continue to challenge the conventional wisdom on food safety and nutrition.

Granted, Mark has been known to be, shall we say, exuberant about raw milk's benefits in his public statements. However, he has played by the rules in bringing his citizen's petition to the FDA and seeking changes to the PMO. His citizen's petition has been ignored, though FDA rules require a response within six months. I was at the NCIMS meeting nearly two years ago, where he made his case about the PMO, and while he was completely respectful and businesslike in his conduct, he wasn't treated that way in return. I'd suggest that his public demeanor has nothing to do with the way he's treated by the bureaucrats. Their disgust with the business he's in comes through loud and clear in the way they treat him as a citizen seeking redress of grievances.


February 11, 2011 5:08 am


Love your choice of adjective for Mark. For those who don't know, exuberant originally meant an overflowing udder.


Bill Anderson
February 11, 2011 5:23 am

Excellent point Miguel.

It is very telling that the laws are written so that it is acceptable for a processor to ship skim milk into commercial markets, but it is adulterated if a farmer does so.

Ingvar Odegaard
February 11, 2011 7:08 am

This is a milk-opera.

Sophie Lovett
February 11, 2011 8:24 am

Mark M. said, "Obama has begged the nations businesses to become more innovative, visionary and more connected to the consumers needs. He even pledged that his administration would take down any barriers to trade and consumer connection. The USDA seems to be well connected to this mission and vision with their Get to Know Your Farmer and Get to Know Your Food Initiative. But the FDA says that foods produced on farms are less safe than foods produced at factories. What a huge disconnect. "

In case you missed the fine print, they're only talking about big businesses. Very big business. There is a disconnect inside the USDA itself, resulting in the deregulation of GMO alfalfa and GMO sugar beets. Both are ridiculous. Alfalfa has no problem growing and beets, well, their reasoning was that there's a sugar shortage! The Know your farmer folks must eat in a different lunchroom than the franken-phood deregulators.

Joseph Heckman
February 11, 2011 9:01 am

A third hearing on Raw Milk Bill A743 was held today in Trenton, New Jersey.

At pervious hearings Assemblyman Albano had asked if anyone had brought along some raw milk to drink. Today a consumer and a New Jersey dairy farmer each provided raw milk samples. Assemblyman Albano enjoyed his first taste of raw milk.

The committee voted to release A743. Three members of the committee voted yes and one abstained. The bill moves to the full Assembly.

For information on the New Jersey raw milk bill go to

Mark McAfee
February 11, 2011 9:26 am

As Raw Milk producers and consumers….it is essential to understand leadership and WHY people do things.

Raw Milk answers the dream of health for many of us….and yet it is being denied to many of us….that makes it a "We Moment" and a Dream to be passionately pursued. Our nutritional movement has all of the hallmarks of the civil-rights movement.


Steve Bemis
February 11, 2011 12:03 pm

It's all about the money. Skimming the cream, then homogenizing the milk, then metering specific amounts of cream back in (skim, 1/2%, 1%, 2%), then using the cream for value-added products is the way the dairy industry is built. That's how they make money.

Trouble is, homogenized milk will go bad within hours unless it's pasteurized. So, pasteurization is arguably more about money than it is about pathogens. Hence, Cheese Is Serious!! –

Bill Anderson
February 11, 2011 12:17 pm


IMO, the reasons for USDA's promotion of cheese have more to do with milk pricing under the FMMOS than with fractioning milk. Cheese being a class 3 or 4 product (depending which milk market order you are operating under), the farmers recieve a lower price if their milk goes into cheese than if it goes into fluid milk. Also, cheese is more shelf stable than fluid milk.

Being from Wisconsin, and being a cheese maker, I am partial to cheese… it is a more traditional (indeed, THE most traditional) method of dairy processing. BUT I recognize how it is being used to screw over dairy farmers here.

I do like that article of yours, though. That is my only critique of its analysis.

Mark McAfee
February 11, 2011 12:53 pm

Sorry Lykke. You will need to be a little more compelling than that to get me to stop preaching about immune system recovery. Have you ever thought why I speak arround this country. It is because I share a dream of health throuh nutrition with all those that come to listen.

Today I got three calls from moms with sick kids. Kids that have been abandoned by modern medical doctors. Kids with ruined immune systems. Kids that have been on antibiotics for long periods of time because their doctors believe that bacteria do not belong in the gut and play no part in health or immunity.

Even the most basic trained biologists know that 80% of the immune system is formed of the biodiversity of bacteria that colonize the gut.

I share a dream with moms that love their kids and come to OPDC as a last ditch hail marry to save their kids. That dream is that health should be driven by prevention and solid nutrition and not greed or FDA policy or Pharma sickos.

Lykke. My dream is a dream shared by WE and is far greater than your jealously and FDA driven connections. I actually apply the PARSIFAL study and watch as kids rid themselves of drugs and asthma. I watch as Crohns suffers heal using Dr Jordan Rubens fermented raw milk smoothies

I will save the speech.

Smy Opin
February 11, 2011 6:35 pm

It's important to remember that these FDA folks have been programmed by industry since earliest childhood:

Mark McAfee
February 12, 2011 1:15 am


What we need is a national families strike held at the FDA in Washington DC demanding that Egyptian type reforms take place at the FDA….namely the resignation of John Sheehan AKA "Milk Mafia Mubarek" and others….and that the FDA embrace health through food and not increased medication of our youth. What is it going to take to get people to stand up and get serious.

With the current anti-assembly goon squads and SWAT tactics of the FDA and others, my guess is that FOOD Inc…bankrupcy through Dollar Voting is probably more American. We are a bunch of whimps.


Bill Anderson
February 12, 2011 1:56 am

Couldn't agree with you more, Mark. Americans worship the almighty dollar. When we will wake up!? Everyone needs good food, not just those who are rich enough to afford it!

Bill Anderson
February 12, 2011 2:08 am

WOW! Videos of the Egyptian protests.

Incredible stuff…

Smy Opin
February 12, 2011 2:22 am

Diet soda found to increase risk of stroke by 48%

Another product endorsed as "safe" by our ever-vigilant FDA… gotta give em credit for being consistent.

Consistently Johnny-on-the-wrong-spot

samantha stevens
February 12, 2011 3:02 am

everyone call visliak at 202 720 3631, if you can, to tell him to stop gmo alfalfa and gmo sugar beets , not that itll have any affect though if enough people call maybe it will..cows eat alfalfa. there goes organic raw milk unless we do something about it.

Ingvar Odegaard
February 12, 2011 4:55 am

A recent model of revolution by the marketplace that may be relevant to what I and many here hope to see which is a serious and broad improvement in the foodstuffs of society (society writ large, as it is) sans the gaming of the law, the gaming of regulations, and outright propaganda and outright fraud, is the post WWII dominance of earth moving equipment by the hydraulic equipment manufacturers. At first they only displaced the shovel for digging utility trenches for suburban houses. That was all they could do and the cable-operated machinery manufacturers paid no mind. Of course hydraulics got better and better and essentially displaced the cable machines. The large metropolitan areas are many millions of souls each and only big dairy can "meet that need," however badly, today.

Steve Bemis's link above was very helpful to me ( Thank you. It helps to see the conundrum of the dairy industry.

But the dairy industry cannot exist and we be made to our hurt to service its deficiencies.

No. No. No. And 'the law" had better be on the side of the right or it too will be making us serve its deficiencies, to our hurt. No. No. No.

Mr. J. Ingvar Odegaard

Violet Willis
February 12, 2011 8:52 am


Point taken but I was not referring to cheesemaking with my post.

There are breeds of cattle, chickens, sheep, turkey's, etc. that are preferred for big AG. Holstein, Cornish X, Broad breasted White, etc. These breeds are not meant to be "husbanded" on a small family farm. Holstiens have problems giving birth . . . . Cornish X chickens fall under their weight over 16 weeks of age (they have a hard time walking) and you cannot breed Broad Breasted White Turkeys unless they are AI'd.

We are sustainable on our farm . . . . we raise heritage breeds with minimal inputs!

Anyone who raises the above breeds does not practice animal husbandry . . . . there I said it.

They may be in chicken tractors or on pasture are processed differently from Big Ag and they are marginally healthier for the consumer . . . . it is just not a sustainable practice.

It is very difficult to practice sustainable agriculture with modern breeds . . . . .

Kind regards,


Violet Willis
February 12, 2011 9:22 am

Lykke . . . . CP and all the regulators and especially Marler . . . out there who are "HOPING" for a mistake from a sustainable small farmer.

I have news for you . . . . . we have processed nearly 500 of our poultry at a state inspected facility over the last two years.

The inspectors check the entrails very carefully for disease.

Not one of our birds have been rejected.

Culinary excellence from egg . . . pasture . . . to plate is what whe practice on our farm.

Big AG does not come close to this.

Kind regards,


Bill Anderson
February 12, 2011 11:05 am


And my point is that a modern breed vs a heritage breed is not as simple as "Jersey is heritage, Holstein is modern."

There are modernized high-production Jerseys that need to fed grain or they will "milk off their back" (put their own body weight into the milk), and there are old heritage genetic lines of Holstein-Fresians who do well in a bio-dynamic farming system. It all depends on who and where you get the genetics from.

I would agree that, in general, Holsteins are a less preferable breed for a sustainable system… BUT it would be a mistake to over-generalize. I suppose I speak from a position of great privilege on this issue. I am from Wisconsin, America's Dairyland. We have more small dairy farms (actually, more dairy farms period) than any other state in the U.S. That is perhaps why I know small dairy farms that have heritage lines of Holsteins that use a very-low-input sustainable system. That's the only reason I say you shouldn't over generalize the issue. Not all Holsteins are the same. And not all Jerseys are the same either.

Sylvia Gibson
February 12, 2011 12:34 pm

"There are modernized high-production Jerseys that need to fed grain or "

geeze, Why has it become so difficult to obtain normal unadulterated foods?