Why is it that there are “no standards in place for other food providers, for example, beef, poultry, pork, eggs, vegetables, bakers, or fin or shell fish, to comply with a coliform limit in the food stuffs they produce”?
That is one of the key questions raised in the court suit promised yesterday by Mark McAfee, which was filed today in California’s San Benito County. The plaintiffs are Mark’s Organic Pastures Dairy Co. and the second main raw milk producer in California, Claravale Farm, against the state and the secretary of its Department of Food and Agriculture, A.G. Kawamura.
The suit charges the state with violating three key constitutional protections afforded OPDC and Claravale:
1. “Denial of due process.” The suit make an intriguing argument, pointing out that AB 1735, in seeking a ten-coliform-per-milliliter limit in raw milk, is intended to make California consistent with federal milk standards. Since the federal government bans interstate shipment of raw milk, AB 1735 is inconsistent, maintains the suit.
“If AB 1735 were consistent with federal interstate milk shipping guidelines it would prohibit the consumption of raw milk within the State,” argues the suit. “However, AB 1735 authorizes the consumption of raw milk and thus is unnecessary in order ‘ to be consistent with federal interstate milk shipment guidelines .’ AB 1735 is unconstitutional because it is not rationally related to a legitimate governmental interest.”
2. “Denial of equal protection.” The fact that raw milk is singled out for special regulation, unlike other foods, it has lost the constitutional guarantee of equal protection, argues the suit.
“Plaintiffs produce raw milk, a product that is different from pasteurized milk, yet Plaintiffs are subjected to the same coliform standard that is required for pasteurized milk. AB 1735’s effect, therefore, is to target raw milk producers because they do not pasteurize their milk.”
Moreover, argues the suit, “AB 1735 does not operate fairly and uniformly against all food producers who are similarly situated,” such as producers of shellfish, eggs, pork, and other foods.
3. “Regulatory taking without just compensation.” The U.S. Constitution’s Fifth Amendment is best known for prohibiting self incrimination, but it ends with this prohibition: "…nor shall private property be taken for public use, without just compensation."
The suit argues, "It is not technically possible nor economically feasible for Plaintiffs to meet the ten coliform limit at the bottle. Because they are not able to meet the requirements of AB 1735, Plaintiffs cannot operate their business and will suffer an adverse economic impact. Plaintiffs’ operation of their respective businesses constitutes a property interest that is protected by the United States and California constitutions.”
My initial impression is that this suit is very important. It may turn out to be moot if California repeals AB 1735. But in any event, it seems like an important template to challenge regulations that unreasonably target raw milk for special harsh treatment–in light of a safety track record that is pretty darn good compared to many other foods.