David Gumpert | Food Safety News

Hershberger Victory Sends Message That People Can, and Will, Fight Overbearing Regulators

David Gumpert — Fri, 31 May 2013 05:02:22 +0000

Make no mistake, Vernon Hershberger won a huge victory in Saturday’s early morning hours in Baraboo, WI. “It’s a beautiful day,” Hershberger told me that morning, after a few hours of sleep following the 1 a.m. jury decision that acquitted him of three of four criminal misdemeanor charges. Yes, it was a beautiful day, for farming and for food rights. The State threw everything it had at this humble father of ten children, and when it was over, its guys in the dark suits scampered out of the courtroom in the darkness of the night after a jury of twelve ordinary Americans handed them their heads on a platter. After less than four hours of consideration, those Americans told the hot-shot lawyers that their thousands of pages of legal documents and computer forensic experts and five days of arguing had failed miserably to convince a single one of them that Hershberger should be required to have any of three retail and dairy licenses insisted upon by the State. Hershberger had already heard through the grapevine that the jurors didn’t give a moment’s thought to going with the state’s charges. “They tried their best to set me free,” he said. The jurors convicted Hershberger only of something he publicly admitted to before and during the trial — that he had cut the regulators’ tape placed on his coolers and food shelves on June 2, 2010 so as to keep his food from rotting and to feed his 200 food club members — in other words, violated a holding order. I’ll return to the holding order matter. The State’s prosecutors rushed out of the courtroom because they knew they had lost on the stuff that mattered the most — their effort to equate Hershberger’s Grazin’ Acres member-only food club with a Sam’s Club or Costco box store membership operation. In making their crazy argument, they were trying to press a much larger point: that there is no such thing as privately-available food, that we are all under the thumb of “The Man” and his clipboards and forms…and orders. Moreover, the State lost on this same issue for the second time within a year. The State lost on pretty much the same charges against Alvin Schlangen in Minnesota last September when another jury similarly took just a few hours to tell the regulators to go find other ways to get their jollies than to harass owners of small farms and their private customers. Not only did the State lose for a second time in trying to convict farmers as criminals for selling food privately, but the State lost this time after its actors thought they had solved the “problems” of the Schlangen case. In the Schlangen case, the defense was allowed to discuss raw milk, the health benefits of good food, and food safety. The judge seemed fair. The prosecution was tough, but not hard as nails. For Hershberger, the State insisted on having the entire case tilted in its favor, and it got nearly everything it wanted from a compliant and biased judge. No discussion of the health benefits of food. No discussion of raw milk. No discussion of food safety. No discussion of criminal intent. No discussion of the merits of the holding order. The State thought it could sanitize the courtroom and the messages relayed to the jury as well as it oversees the sanitizing of our nation’s food supply. The only break the defense got was when the judge finally pushed back against the State’s demand that Hershberger not be allowed to have his food club members testify on his behalf–and the judge only relented when the defense challenged the judge publicly that he might as well end the trial before it began, with a conviction. Moreover, the prosecution this time wouldn’t just be tough, like the Minnesota prosecutor, but it would, indeed, be tough as nails. As for that guilty verdict on the holding order, I have a feeling it looks more ominous than it is. Yes, Hershberger can be sentenced to a year in jail and fined $10,000, as well as have to reimburse the state for the value of the food that was freed up (backwards as that sounds). As Amy Salberg, a member of the Hershberger legal team, explained after the verdict: “The order has no ongoing effect and his acknowledged breaking of the seals was a one-time thing. As it turns out, that holding order never should have been issued, based on the verdict of acquittal on the licensing violations. But, pre-trial motions by the State kept out any argument that the order was not valid. All the jury was told was that there was an order and it was violated.” I have to believe that after the humiliating defeat the State has just endured, it won’t be foolish enough to try another vindictive act against this man (though I have to admit I didn’t think the State would try a number of foolish actions). No, I suspect Mark McAfee is correct that there will just be a minimal penalty, and a whispered admonishment to Hershberger, “Just get the hell out of here, and out of our lives.” Essentially, Hershberger’s rag-tag legal team, put together by the Farm-to-Consumer Legal Defense Fund, won despite having one hand tied behind its collective back, and being pummeled by a seasoned and hardened opponent. Pretty amazing. It won for a number of reasons. It won partly because its lead defense attorney, Glenn Reynolds (together with Elizabeth Rich, Amy Salberg, and Ajna Sharma-Wilson), took advantage of every possible opening, creatively bringing up forbidden subjects like food healthfulness and regulator bias. It won because the local community united behind Hershberger, and people from around the country, led by the Farm Food Freedom Coalition and Liz Reitzig, took off from work and gathered in tiny Baraboo to lend support. Food and farming leaders like Joel Salatin, Mark Kastel, Mark McAfee, Max Kane, Aajonus Vonderplanitz, and Michael Badnarik showed up. Other farmers under attack like Mark Baker of Michigan and Alvin Schlangen of Minnesota showed up. The kind of media attention the trial received didn’t just happen by accident. But the Hershberger team won also because Americans are, by and large, fair-minded people. Fourteen of them (twelve jurors and two alternates) from the local area, who knew little about the particulars of the case, decided that the State’s case didn’t make sense. It’s only because our Bill of Rights, the Sixth Amendment of the Constitution, provides,”In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed…” As Dave Milano suggested following my previous post, this struggle is far from over. The State (not just Wisconsin, but around the country) will likely try to alter its strategy, and avoid jury trials at all costs. And Hershberger as well worries: “How soon before they come and put a holding order on the food in your refrigerator?” Still and all, as ever more people learn the State’s true intentions, its plans for ever-more control over our food are slowly and surely eroding. This article originally appeared on The Complete Patient on May 25, 2013.

How the Vernon Hershberger Food Licensing Trial Could Shift Views on Food Safety

David Gumpert — Mon, 20 May 2013 05:52:28 +0000

On its face, the upcoming trial of Vernon Hershberger, which starts today, is about food and dairy licensing and the Wisconsin farmer’s refusal to seek out certain permits. Hershberger is accused of four criminal misdemeanors. The first three include failing to have a retail food establishment license, operating a dairy farm as a milk producer without a license, and operating a dairy plant without a license. The fourth accusation is that Hershberger violated a holding order from the Wisconsin Department of Agriculture, Trade, and Consumer Protection (DATCP) in June 2010, when he cut the agency tape shuttering his farm store, and resumed serving his food club members. While some of Hershberger’s supporters have wanted to see the trial turned into a debate over raw milk, the judge in the case, Guy Reynolds, reaffirmed the narrow focus on regulation when he ruled during a pretrial hearing Tuesday that issues related to raw milk can’t be introduced by either the prosecution or defense. The technical legalities of the case, however, fail to convey the case’s national political importance. Other cases similar to Hershberger’s have sprouted around the country, from Maine to California, where owners of small farms are selling meat, raw dairy products, and other staples directly to consumers in search of wholesome food. The controversy, and attendant legal problems, stem from the fact that the farmers are increasingly selling their food via private contracts, outside the regulatory system of state and local licenses and inspections that govern public food sales. Federal and state regulators have responded by seeking legal sanctions against farmers in Maine, Pennsylvania, Minnesota, and California, as well as in Wisconsin. These sanctions include injunctions, fines, and even possible prison time. Food sold by unlicensed and uninspected food is potentially dangerous, say the regulators, since it can carry pathogens like Salmonella, Campylobacter, and E.coli O157:H7, leading to mild or even serious illness. While these cases are testing the limits of food regulation, they raise deeper and more fundamental questions. Why would hard-working, normally law-abiding farmers be teaming with educated urban and suburban consumers to flaunt licensing and permitting regulations and statutes that have held sway for decades? Why would parents, who want only the best for their children, be seeking out food that regulators say could be dangerous? Indeed, if you talk to individuals who belong to Hershberger’s food club, many of them from the Madison, WI, area, they talk about food choices and health rather than permits and licenses. Jenny DeLoney, a Madison, WI, mother of three young children., says she buys food from Hershberger because she wants food from animals that are treated humanely, allowed to roam on the pasture. “I really want food that is full of nutrients and the animals to be happy and content.” Jennifer Bell, a Madison mother of two children, has been buying eggs, beef, honey, and raw milk from Hershberger for the last three years. “I’ve seen a lot of improvements in my digestive system” during that time, she says. Her son’s stomachaches have disappeared as well. She believes Hershberger’s farm-raised food is more wholesome and nutritious than mass-produced food in the supermarkets, and that her and her family’s health improvements are testimony to that reality. Another member, Joy Martinson of Mt. Horeb, says the fact that her health has improved has reinforced her sense that she should have a choice in her food: “I am an informed consumer and I choose to obtain healthy food directly from the farmer without government intervention.” Hershberger himself talks about “the fundamental right of farmers and consumers to engage in peaceful, private, mutually consenting agreements for food.” These individuals are clearly interpreting “health” and “safety” differently than the regulators. The consumers have seen such things as videos of downer cows being prodded into slaughterhouses and chickens so crammed into coops they can barely breathe. They have seen the statistics showing that eight percent of children today have allergies and nine percent have asthma. To these individuals, safety is much more than the single-minded focus regulators place on pathogens. To many of them, who are parents, safety means not only food free of pathogens, but food free of pesticides, antibiotic residues, genetically modified (GMO) ingredients, and excessive processing. Some consumers are going further than claiming contract rights—they are pushing their towns and cities to legitimize private farmer-consumer arrangements. In Maine, residents of nine coastal towns have convinced town meetings to pass so-called “food sovereignty” ordinances that legalize unregulated food sales; towns in other states, including Massachusetts and Vermont, have passed similar ordinances. The new legal offensive hasn’t gone over well with regulators. Maine’s Department of Agriculture filed suit against a two-cow farmer, Dan Brown, in one of the food-sovereignty towns, Blue Hill, seeking fines and, in effect, to invalidate the ordinances. A state judge in late April sided with the state, issuing an injunction barring Brown from continuing his unregulated food sales, and in effect invalidating the Blue Hill ordinance. Brown is planning an appeal. At its heart, this is a struggle over a steady erosion of confidence in the integrity of our industrial food system, which has been hit by disturbing disclosures seemingly on a weekly basis. Members of Congress and the U.S. Centers for Disease Control have in recent weeks escalated warnings about the growing danger of antibiotic-resistant pathogens emerging from farm animals, which consume about 80 per cent of all antibiotics in the U.S. The Atlantic reported last summer that medical specialists are seeing a spike in women with urinary tract infections caused by antibiotic-resistant bacteria, likely transmitted by chicken meat. Voters in a number of states have mobilized to push for laws requiring labeling of foods for the presence of GMO ingredients. Eroding confidence in the food system is no small matter. It threatens large corporations in serious ways if long-established food brands come under prolonged and severe public questioning. It threatens economic performance if foods deemed “safe” become scarcer, and thus more expensive. And it is potentially explosive politically if too many people lose confidence in the competence and expertise of the food regulators, and encourages folks to seek private solutions. The battle seems almost certain to intensify, as more farmers like Hershberger hook up with consumers for private food sales and regulators hunker down to deter the end run around existing regulatory protocols. No matter what the jury’s decision in this case, we will hopefully see the emergence of a new broader view and discussion about the meaning of food safety.

FDA Hones in on Limited Raw Milk Cheese Despite Absence of a Single Documented Case in 23 Years

David Gumpert — Mon, 18 Feb 2013 06:05:48 +0000

(I have spent much of the last week reading a 189-page report issued jointly by the U.S. Food and Drug Administration and Health Canada, with the dry title, “Joint FDA/Health Canada Quantitative Assessment of the Risk of Listeriosis from Soft-Ripened Cheese Consumption in the United States and Canada”. The reading is as dry as the title suggests. It’s full of technical statistical and research terminology, terms like “risk characterization,” “sensitivity analysis,” “mitigation,” “rank correlation,” and on and on. What that meant was that I had to read everything two, three, and four times before I could begin to make sense of it. But the more I read, the more upset I became, because I realized this is a very important document, one that could have a huge effect on food availability. If the authors of this report are successful in accomplishing what they want to accomplish with brie and camembert cheeses, you can be sure they will continue on to other kinds of cheese, and then other entire categories of food products, in their endless search for supposedly serious pathogen dangers. Equally troubling, the FDA considers this report “science based and transparent,” when it is anything but. I wrote the following analysis to try to get my thoughts down in an orderly way. I encourage you, after you’ve read my assessment, to try your own hand at reading the report, or at least the summary, and then to take the opportunity the FDA is offering to provide comments, and let the agency know in no uncertain terms what you think about this particular piece of literature. ) Nearly 15 years ago, a business book came out with the strange title, Who Moved My Cheese? It was the story of mice in search of cheese that had disappeared, a parable about how people need to prepare for change, in their business and personal lives, and it became a huge best seller. The parable may be playing out literally in real life before too long for raw milk soft cheese, if regulators in the U.S. and Canada have their way. A newly released 189-page report from the U.S. Food and Drug Administration and Health Canada concludes that there is “a 50- to 160-fold increase in the risk of listeriosis from a serving of soft-ripened raw-milk cheese, compared with cheese made from pasteurized milk.” As a result, the regulators suggest they want to see raw milk cheeses like camembert and brie either subject to unprecedented testing, processing similar to pasteurization, or else banned completely. I should note they also offer the option of doing away with the 60-day aging requirement for cheese, as a possible way to reduce the time pathogens have to multiply in the cheese, but it’s offered as kind of a straw man, since it “does not consider the effect of removing the regulation on the risk of illness from other pathogens…” (That risk assessment should be worth another few lengthy reports.) The risk certainly sounds serious…until you read closely the full 189-page report and learn that the FDA-Health Canada conclusion about “a 50- to 160-fold increase in the risk” is based entirely on estimates and mathematical predictions, rather than real-life data on illnesses from the soft raw milk cheeses. Even more remarkable, the actual real-life data presented in the report of illnesses worldwide from listeriosis in soft cheese over a 23-year period between 1986 and 2008 show not a single documented illness in the U.S. from listeriosis due to tainted brie or camembert. That data, in a table on page 17, documents four outbreaks of listeriosis in cheese in the U.S. over the 23-year period, but all four are from raw milk queso fresco cheese, a soft cheese served fresh, without being aged the required 60 days, and thus illegal in the U.S. (It gets made illegally, often in the Hispanic community, sometimes even mixed in bathtubs, which has earned it the nickname “bathtub cheese.”) In Canada, two cheese-related outbreaks, which sickened 58 people, are attributable to “multiple types” of cheese. Indeed, the researchers were only able to document 20 outbreaks of illness from listeria in all cheesesfrom all kinds of milk worldwide over the same 23-year period—less than one per year…and, according to the report, “half involved cheese made from unpasteurized milk.” So in actuality, we’re talking about ten listeriosis outbreaks worldwide from raw milk cheeses over a 23-year period—a tiny number by any stretch of the imagination. By way of comparison, the U.S. Centers for Disease Control documents more than 1,000 outbreaks, resulting in between 15,000 and 30,000 illnesses, from all foods each year in the U.S. So, given the absence of a single documented illness from 60-day-aged soft raw milk cheeses over 23 years in the U.S., and just the possibility of a few dozen illnesses in Canada, how do the FDA and Health Canada come to their conclusion that such cheeses are up to 160 times more risky than pasteurized soft cheeses? As I recall my grade school math, zero times any number equals zero. The regulators do it via “mathematical / probabilistic modeling… to estimate the risk per serving of Camembert-like cheese in both countries,” according to the report. The source of their data? “Literature data, previous risk assessments …and expert sources” in Canada and the U.S. What about information from real-life farms and cheese producers? There is none: “Risk was expressed on a ‘per serving’ basis because (of) the lack of data on overall levels of cheese production (particularly for small cheese makers)…” In the absence of real-life farm or producer data, the report relied heavily on a single study published in 2003 “that include values for both the prevalence and the level of contamination of soft-ripened cheeses in the United States and Canada …from a random sample of cheeses obtained at retail in Maryland and California … as part of a larger survey of ready-to-eat foods.” Moreover, while the 2003 survey measured the presence of listeria monocytogenes (L. monocytogenes) in various foods, including deli meats and salads, along with assorted cheeses (the overall presence of L. monocytogenes. was 1.82%) there is no mention in the study of any illnesses resulting from the pathogens the researchers found, strongly suggesting that no illnesses resulted from the L. monocytogenes (the sample foods were collected over 14 to 23 months, plenty of time to have recorded illnesses). So essentially what happened is that the FDA-Health Canada report writers worked backwards, and extrapolated what might happen on farms and at cheese-making facilities, based on the presence of L. monocytogenes shown in the 2003 study of ready-to-eat foods in retail markets. And the summary report notes near the end: “The prevalence and level of contamination in Canada and in the U.S. rely on a single study to infer in-plant environmental L. monocytogenes contamination. Additional information about the prevalence of contaminated lots and contaminated cheeses within lots is needed.” Despite such obvious and serious limitations, the FDA-Health Canada report spends most of its 189 pages describing complex mathematical formulas and computations and providing diagrams of the cheese making process before, presto, spitting out its conclusion that anyone who consumes a serving of raw milk soft cheese has a significant chance of becoming ill, up to a 160 times greater chance than if he or she ate pasteurized cheese. All the fancy mathematical gyrations and fear mongering come in the face of a simple and seemingly successful public health initiative implemented after World War II, whereby both the U.S. and Canada require all soft and hard cheeses to be aged a minimum 60 days, to allow for any pathogens that might be present to die off. (Quebec has no aging requirement, meaning that soft cheeses can be sold immediately after production.) Serious makers of raw milk soft cheeses have long chafed under the 60-day aging requirement, since such cheeses don’t age well in terms of taste, and are best served shortly after production. But American and Canadian makers have learned to adjust—some even using pasteurized sheep, goat, and cow’s milk to avoid the 60-day aging requirement–and as the FDA-Health Canada’s own 23-year analysis showed, there have been remarkably few illnesses. But the problem gnawing at the FDA, in particular, has been the growing popularity of raw milk, including raw milk cheeses. Actual sales of soft raw milk cheeses in the U.S. aren’t known, but the American Cheese Society reported in a December 2012 survey that 59 per cent of more than 200 respondents to a survey it conducted of members last year said they make raw milk cheese. The ACS has grown to 1,500 members since its founding in 1983. The current assault on soft raw milk cheeses actually began nine years ago, when the head of the FDA’s dairy division, John Sheehan, concluded as the lead author of a 2004 article in Food Safety magazine, that there were fundamental problems with the FDA’s 60-day cheese-aging rule. New research, he wrote, suggested “that 60-day aging is largely ineffectual as a means of reducing levels of certain pathogens in cheeses. With this information in hand, FDA is now developing a risk profile for raw milk cheeses, which will aid in the Agency’s assessment of the requirements for processing these cheeses.” There was particular concern, he and his co-authors stated in the article, over listeria in cheese. They wrote about an “action plan” for cheeses that “have resulted in new efforts to improve the safety of cheeses.” Shift to the report just issued, of which Sheehan is an author. Instead of acknowledging the paucity of recorded illnesses from raw milk soft cheeses during the 23-year period covered by the report, it suggests there is some kind of lurking problem: “The United States and Canada continue to experience sporadic illnesses and outbreaks of listeriosis associated with the consumption of cheese, particularly soft and soft-ripened cheese.” Presumably the “sporadic illnesses and outbreaks of listeriosis” refer to the four outbreaks from queso fresco and the two outbreaks in Canada over the 23-year period. By the way, the report also notes that the overall incidence in the U.S. of listeriosis is “approximately 3 cases per 1 million individuals…” That is very low, especially when compared to something like autism rates, which have soared to one in each 88 children. As further justification, the report notes that over the same 23-year period “there were a total of 137 recalls of various types of cheeses, of which 108 (79%) were Listeria-related. In Canada from 2004 through mid-2009 there were 15 cheese recalls, of which 11 (73%) were Listeria-related. A wide variety of cheeses were involved in these recalls.” But as evidenced by the number of outbreaks and illnesses in the U.S. and Canada, those recalls were carried out after cells of L. monocytogenes were discovered in the cheeses, but not as a result of actual illnesses. Recalls nearly always occur well after whatever foods in question have been sold, and thus consumed. And it’s been well established that the presence of small numbers of L. monocytogenes cells rarely cause illnesses; for that reason, the European Union doesn’t institute recalls for food containing small numbers of cells. Now, I could accept a nearly completely conceptual analysis of this sort (aside from the terrible expense and time sink associated with it) if it was issued with the intent of sparking additional reality-based research. But it’s not. It’s not only a solution in search of a problem, but it has been issued with one intent and one intent only: to fear monger about the supposedly huge risk associated with eating raw milk soft cheeses like brie and camembert…as a lead-in to stricter rules against raw milk soft cheeses. And the report has succeeded in that respect. A number of publications that cover the food safety arena have picked it up and run with the fear mongering about raw milk cheeses as if it is fact, notably Food Safety News and Barfblog, among others. What’s most troubling is that the FDA has shown itself so completely opposed to raw milk and raw milk products under any circumstances that it would move to limit or ban such products even without evidence of a single illness. Talk about an ideological commitment. Consumers have until April 29 to submit comments on this study. I suggest you let the FDA know about any concerns you might have. If there aren’t many comments, you know the FDA will simply assume everyone supports their direction, and their direction is crystal clear after nine years of effort.

Without Fanfare, CDC Reports Sharp Decline in Foodborne Illnesses

David Gumpert — Thu, 31 Jan 2013 06:03:44 +0000

Wouldn’t you think that a one-third decline in reported foodborne illnesses would be a cause of celebration at the agency responsible for educating us about unsafe food? Well, if not a celebration, at least a slight smile, a teeny bit of self congratulation, maybe a soft exhale? The U.S. Centers for Disease Control just reported such an occurrence, but buried the encouraging trend in a brief footnote that seems to have escaped media and professional notice. Here is what happened. Last Friday, the CDC reported its “Surveillance for Foodborne Disease Outbreaks–United States 2009-2010.” This report, collecting “data on foodborne disease outbreaks submitted by all states, the District of Columbia, and Puerto Rico through CDC’s Foodborne Disease Outbreak Surveillance System,” is something the CDC has in the past issued on an annual basis, typically three years behind real time. So, the most recent previous report, issued in September 2011, was for the year 2008. If you read through the first-paragraph summary of the results, you might easily conclude, as I did, that the report covered just 2009, since the results aren’t all that different from 2008. The numbers in the latest report: 29,444 illnesses, 1,184 hospitalizations, and 23 deaths. In the most recent previous report, the CDC showed 23,152 illnesses, 1,276 hospitalizations, and 22 deaths. It’s when you stop yourself and realize, as I did a couple days later, that the report issued last Friday actually, for the first time ever, covers two years, that you go back and re-read the report. You have to examine the report very closely, and deeply — ten paragraphs into it, in an Editorial Note, to be exact — to find out exactly what occurred in the reporting. The CDC transitioned to a “new reporting form and online data interface,” the note states, and when the smoke cleared, “the number of foodborne disease outbreaks reported in 2009 and 2010 declined 32% compared with the mean of the preceding 5 years.” A new form and interface shouldn’t change the data, though, should it? No, suggests the CDC. But it indicates it isn’t sure why such a sharp decline occurred. Last Friday’s report speculates: “The decline in foodborne disease outbreak reporting was largely observed among norovirus outbreaks. Norovirus can be transmitted through a variety of routes, including direct contact between persons, through contact with contaminated surfaces, and ingestion of contaminated food or water. Distinguishing among these modes of transmission in an outbreak can be challenging; some outbreaks involve multiple transmission routes. The advent of NORS [the new National Outbreak Reporting System], which for the first time enables electronic reporting of nonfoodborne norovirus outbreaks, might have led to more appropriate classification of outbreaks previously reported as foodborne, resulting in fewer reports of foodborne norovirus outbreaks. Other possible explanations for the fewer foodborne disease outbreaks in 2009 and 2010 include resource limitations and competing priorities (e.g., the influenza A [H1N1] virus pandemic in 2009) for state epidemiologic and laboratory resources.” Bottom line, though, reported foodborne illnesses, outbreaks, and hospitalizations are down sharply. That seems like a cause for some congratulations in most areas of public safety, be it crime, accidents…or disease. Maybe because food safety is supposed to be experiencing a crisis, with foodborne illnesses out of control, congratulation isn’t politically correct.

Have the Feds Finally Found Food Producers They Can Throw the Book At?

David Gumpert — Wed, 30 Nov 2011 09:59:01 +0000

Though Peanut Corp of America has been cited for responsibility in nine deaths and more than 700 illnesses from Salmonella in its peanut butter, its president, Stewart Parnell, has remained seemingly immune from prosecution nearly three years after the fact.

Same with Austin “Jack” DeCoster of Wright County Egg, which was linked to as many as 1,700 illnesses from Salmonella in its eggs in 2010.

But a relatively small 2010 Midwest outbreak of 25 illnesses (and no deaths) from Campylobacter in raw milk seems to have brought the ire of law enforcement down on the owners of two tiny farms in Indiana and Michigan. A federal grand jury in Detroit is investigating bringing criminal charges against an Amish farmer in Indiana who produced the milk, and a Michigan farmer who helped distribute it to several private food clubs.

Under the U.S. Constitution’s Fifth Amendment. “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…” What might the “capital, or otherwise infamous crime” be in this case?

No one can say for sure, of course, since grand jury proceedings are highly secretive affairs. The names of jury members aren’t released, witnesses subpoenaed don’t have the right to have a lawyer present, and all involved on the prosecution side are cautioned not to disclose information about the events.

One thing that is known about grand juries in general is that prosecutors usually get their way. Quips one former assistant U.S. attorney now in private practice: “We used to joke, if a prosecutor asked a grand jury to indict a ham sandwich, they would.”

According to this former assistant U.S. attorney, the federal prosecutor in the Midwest raw milk case could be looking at a number of options leading to criminal indictments. Felony violations of the 1938 Federal Food, Drug and Cosmetic Act include adulterating or misbranding a food, along with putting an adulterated or misbranded food into interstate commerce.

Convictions “with the intent to defraud or mislead” are punishable by up to three years in jail, plus a fine of up to $10,000 on each count. “They could add conspiracy, aiding and abetting, fraud, money laundering, and other things,” he says.

If criminal felony indictments come from the grand jury, they could represent the harshest federal action yet taken against individual farmers in the six-year government war against raw milk, and possibly the harshest against any food producer associated with outbreaks of illness in recent memory.

Even though the grand jury proceedings are secret, several key aspects of the case have become known since the two farmers — David Hochstetler, owner of Forest Grove Dairy, Middlebury, IN, and Richard Hebron, owner of Family Farms Cooperative in Vandalia, MI –were originally ordered to testify last Wednesday, the day before Thanksgiving. The questioning was postponed at the last minute, and a new date is now being arranged. But the list of documents each farmer was asked to produce indicates the interest of prosecutors:

– “Any and all documents relating to or concerning the sale, purchase, delivery, receipt, production, packaging, transfer, disposal, marketing, promotion, furnishing, sharing, labeling, manufacturing, distribution, shipment, or transportation of milk…” from 2007 to 2010.

– “Any and all documents relating to laboratory testing of milk…” during the time in question.

– “Any and all documents relating to, or reflecting communications with, FDA…”

– “Any and all documents relating to, or reflecting communications with, Right to Choose Health Food or Aajonus Vonderplanitz…” Right to Choose Healthy Food is a network of private food clubs that enters into leasing arrangements with small producers of raw milk, pastured eggs, grassfed beef, and other items on behalf of food club members.

Hebron and Hochstetler first came to public attention in October 2006, when the Michigan Department of Agriculture confiscated $7,000 worth of raw milk and other food from Hebron, while he was on his way to deliver the products to Ann Arbor food club members. Michigan was the first state in the country to require pasteurization of all milk, in the late 1940s, and all raw milk sales and distribution were illegal at the time.

The Hebron case was referred to a local prosecutor, who after several months of investigation and an outcry by Michigan raw milk consumers, declined to prosecute. The MDA in early 2007 levied a $1,000 fine on Hebron, and Michigan’s attorney general approved herd share arrangements as a means for allowing raw milk distribution.

Since Hochstetler’s farm had produced the milk Hebron was distributing, the farm was visited by FDA agents in November 2006. Shortly after that, Aajonus Vonderplanitz of Right to Choose Healthy Food wrote a letter to the FDA, explaining that Hochstetler’s milk had been produced as part of private contracts: “We, Mr. Hochstetler and Cooperatives, have been accused by FDA employees of selling and buying raw milk. That is not possible. Since January 2006, Mr. Hochstetler leased the herd to Right To Choose Healthy Food’s Family Farms Cooperative (herein called “Cooperatives”). According to current law, lease is ownership. Therefore, Cooperatives’ sovereign members own all of the milk production at Forest Grove Dairy Farm. Additionally, Cooperatives contracted Mr. Hochstetler’s services of boarding, tending, milking, bottling and processing the milk production for Cooperative’s sovereign members to their standards established in our signed agreements and contracts.

“Cooperatives compensate Mr. Hochstetler for all of his many services by the volume of milk that he handles for Cooperatives…Since the club members own all of the milk produced by Cooperatives’ herd that Mr. Hochstetler boards and tends for Cooperative, there is no commerce involved. As Mr. Hochstetler explained when you visited his farm, since no commerce of buying or selling milk to the public is involved, the FDA has no jurisdiction over the production and use of the sovereign members’ own dairy consumed only by its members from Forest Grove Dairy Farm. Therefore, based on the facts that the milk is privately owned, and no milk is sold or given to the public, Mr. Hochstetler and Right To Choose Healthy Food’s Cooperatives’ members are not in violation of any laws of commerce.”

The FDA’s only response was to issue Hochstetler a warning letter in February 2007, asking him to discontinue raw milk shipments across state lines.

In 2009, FDA officials discussed in a conference call singling out Hochstetler and Hebron for legal action. Both Hebron and Hochstetler were mentioned in email accounts of meetings between FDA and state regulators from around the Midwest — emails obtained in an open-records request by Wisconsin food rights activist Max Kane in 2009. A February 2009 email with the subject, “FDA Raw Milk Conference Call,” summarized the call from the view of a participant from the Wisconsin Department of Agriculture, Trade and Consumer Protection. The call had included four DATCP officials, nine FDA officials, two representatives from the Indiana Board of Animal Health, three from the Illinois Department of Public Health, and one from the Michigan Department of Agriculture.

According to one email: “Scott MacIntire [District Director] and Bill Weissinger [Chicago District Special Assistant] discussed FDA-CHI activities. They have done some Internet searching and identified about 20 milk clubs in Illinois. They prefer to address one person or group at a time and want to start with Richard Hebron, Family Farm Co-o
p, in Michigan who may be pi
cking milk up at the Hochstetler Farm in Indiana for delivery in the Chicago area. Hebron has been prosecuted in Michigan for raw milk sales. Hochstetler was sent a warning letter for FDA Detroit for interstate delivery of raw milk.” (As noted previously, Hebron was never prosecuted.)

In March 2010, an outbreak of 25 illnesses from Campylobacter in Michigan, Indiana, and Illinois again focused attention on Hochstetler and Hebron. Public health authorities in those states used epidemiological evidence to pin the blame on Hochstetler’s dairy. However, extensive testing of milk, both from that preserved by victims of illness and by Hochstetler, showed no signs of Campylobacter.

According to a report (Hochstetler-MDCH Summary Report March 2010.pdf) from the Michigan Department of Community Health, “We were unable to confirm the presence of Campylobacter in any of the seven unpasteurized dairy products that were collected for testing, despite having the samples tested in three labs.” (Hochstetler-CDC and IEHA Reports.pdf) The testing included PFGE testing for Campylobacter “fingerprints” at a U.S. Centers for Disease Control lab.

During the 2010 outbreak, Hochstetler shut down his dairy for a week to conduct his own tests for Campylobacter. Those all came back negative as well, he says.

Hochstetler was also visited by FDA inspectors at the time of the illnesses. Shortly afterwards, the farmer says agency representatives engaged in negotiations with him, via the Farm-to-Consumer Legal Defense Fund, about a possible agreement whereby Hochstetler would withdraw from supplying food clubs in Illinois and Michigan.

“They (the FDA) wanted me to go away,” says Hochstetler. “We came very close” to an agreement whereby he would limit his production to Indiana, he says. One sticking point was that the FDA wouldn’t commit to granting him immunity for any possible past transgressions, such as those raised in the agency’s 2007 warning letter.

Without an FDA commitment to leave him be, Hochstetler says, there was no reason he could see to discontinue his normal operations, which he always felt were legal to begin with. “We felt because of our private contracts (with buying clubs and their members), geographical barriers did not pertain to private contracts.”

Hebron did not return a call seeking comment for this article.

According to Hochstetler, the November 23 subpoena before the grand jury was put off when it was communicated to prosecutors that “we were going to go with no records and plead our Fifth Amendment rights.” The grand jury appearance has now been re-scheduled for December 8, he says. Witnesses who fail to produce requested records can potentially be held in contempt of court, and jailed for the duration of a grand jury’s term, which typically extends for 18 months.

The cancellation of the November 23 grand jury appearance led to a testy email exchange between Vonderplanitz and Ross Goldstein, an assistant U.S. attorney in Michigan.

Goldstein suggested that Vonderplanitz shouldn’t be involved in advising Hochstetler because Vonderplanitz last August was denied by a federal judge any role in representing another Amish farmer, Daniel Allgyer. The U.S. Food and Drug Administration is seeking a permanent injunction against Allgyer shipping raw milk out of state, to a Maryland food club. It conducted a year-long undercover investigation of the food club prior to seeking the injunction.

Goldstein said in an email on Wednesday to Vonderplanitz, who was seeking confirmation of the re-scheduling of the two farmers to Dec. 8: “As Judge Stengel explained in his order denying your motion for intervention in United States v. Allgyer, No. 11-02651 (E.D. Pa. Jul. 18, 2011), ‘Mr. Vonderplanitz is not an attorney and cannot represent others in federal court . . . .’ Although your email of this morning implies that you represent the legal interests of other individuals or entities, you may not lawfully do so. Accordingly, the substance of your communication…is of no moment and is being disregarded in toto. Moreover, I can see no reason why you should have any need to further discuss this matter with the United States at this juncture.”

To which Vonderplanitz responded, just as huffily, “You wrote with the authority of a judge yet you are a prosecutor. As a U.S. attorney, shouldn’t you know more about law, especially the U.S. Constitution than you reveal? The decision by Judge Stengel in the Allgyer case does not set precedence in that case or any other case. I am simply waiting for the case to be resolved in Judge Stengel’s court so that I can appeal the decision.

“I and all members of Right To Choose Healthy Food club members contracted for ownership of the animals at those farms to produce the food we need for our health. We have the most righteous legal interest. Just because one judge made a bad ruling does not make it right or precedence. It is not over until all appeal processes have been exhausted, in at least 5 years from the date it is over in the lower court.

“I do not purport to represent anyone as an attorney however, if you study the U.S. Constitution, anyone can assist anyone of his or her choosing. Since I have contractual legal interest in the activities you are trying to end, I have every right in the world to assist the innocent people and farmers you harass and try to prosecute to deprive them of life, liberty, well-being and livelihood. My email stands as your notification for Mr. Hebron and Hochstetler that the Grand Jury Hearing set for today was postponed by you in your conversation with Mr. Hebron, and that any other Grand Jury Hearing will have to begin from a new process.

“You will hear from me anytime you try to harass or stop a farmer with whom I have a PRIVATE club contract to produce healthy food for me and members of our private clubs. You have no legal jurisdiction over private clubs. Your jurisdiction is with the public.”

————————

David Gumpert is a raw milk advocate and author of “The Raw Milk Revolution: Behind America’s Emerging Battle Over Food Rights” (Chelsea Green, 2009). His blog is www.thecompletepatient.com.

Getting Past ‘Religion’ in The Raw Milk War

David Gumpert — Wed, 30 Dec 2009 01:59:03 +0000

“…to him who preserves the life of a single individual it is counted that he hath preserved the whole race.” From rabbinic commentary on the Torah
 
 I was surprised recently to see a newspaper article out of Montana quoting me as saying I have fewer coughs and colds since I’ve been drinking raw milk.  
 
I hadn’t been interviewed by the paper. But then I remembered that I allude to my health experiences since beginning to drink raw milk, almost as an aside, in my book, The Raw Milk Revolution.  

I was caught off-guard by this particular quotation because I try to steer clear of promoting either the health benefits or safety of raw milk. I’m doing a fair number of radio and other media interviews these days in connection with the book, and interviewers will often try to lead me into saying things that fit with their preconceptions–for example, that raw milk is safer than pasteurized milk, or that raw milk is a terrible health hazard.  

 And therein lies an important explanation for why the debate over raw milk is so acrimonious, with name-calling and much worse among proponents and opponents of raw milk: most everyone involved has taken sides on either the risks or the health benefits of raw milk.  

Those who want to make raw milk difficult or impossible to obtain point to the stories of people who have become very sick from consuming raw milk. A good example is a recent article by food poisoning lawyer Bill Marler in Food Safety News about the dangers of raw milk, in which he strings together a series of five videos of individuals, several of them children, who have become quite ill from raw milk. Some of the children have suffered permanent kidney damage from hemolytic uremic syndrome brought on as part of illness from E. coli O157:H7 contained in raw milk. 

Those who want to ease or remove restrictions on raw milk have their own set of case examples–the stories of individuals, also including children, who are experiencing health benefits from raw milk. There is research out of Europe (pdf) suggesting strongly that children who regularly consume raw milk are less likely than other children to experience allergies and asthma. And there are endless case-examples of individuals who say their health has improved in important ways after drinking raw milk for extended periods.    

Why do discussions about these aspects of raw milk become so emotional? I keep thinking of the phrase from rabbinic commentary on the Torah that I quote at the start of this article.    

What it says to me is that those on either side of this issue are so passionate because they see themselves as potentially saving lives. Those who see excessive risk feel that if they prevent one serious illness, they’ve done a wonderful deed. And those who have seen people benefit from raw milk feel if even one individual who is sick regains his or her health, they have similarly done a wonderful deed.  

 With such mindsets, it’s not a huge leap to see opponents in a harsh light. Those who oppose raw milk availability may come to see proponents as not having a high regard for human life. Same with proponents–they can easily begin to see opponents as callously denying consumers the health-giving properties of raw milk.  

My solution is to try to satisfy both sides. The way you do that is to take a reasonable approach. That doesn’t mean you suddenly stop pasteurizing all milk any more than it means you ban raw milk.  

What it means is you treat raw milk as you would any food that can become contaminated, which is most foods. That is, you seek to ensure the safest possible production and distribution approach. In today’s highly charged atmosphere, that is the opposite of what happens in many states. As just one example of what could happen, state agricultural agencies could establish extension courses on safe handling practices for raw milk, instead of obsessively focusing on trying to scare consumers away from buying raw milk, or carrying out undercover sting operations against farmers producing raw milk, as a number have done. Not only have these tactics not worked, they seem to have done the opposite: stimulated ever more consumer interest in raw milk.  

I’ve come to conclude that tending to one’s health is a highly personal, and private, matter. Different treatments, and different foods, have differing effects on people. 

Raw milk is a prime example. I have heard enough testimonials from people who have benefited to believe that it helps some significant numbers of people. I have also met people who started on raw milk and still have the eczema or Crohn’s that they wanted to relieve. And very occasionally, individuals do become seriously ill from raw milk.  

To the extent that the government involves itself in trying to regulate our access to foods or alternative treatments that haven’t been shown to be untowardly dangerous, it infringes dangerously in our lives.  

You could say I’m an agnostic in this religious war in that I don’t believe in either side’s religion, either about dangers or benefits. My religion, if I might use that term, is a commitment to upholding the political and personal liberties our country’s founders so well articulated in the wake of British abuses, and that American soldiers have through the years died defending. 

 There’s another political value, attributed to Voltaire, that is relevant here. “I disapprove of what you say, but I will defend to the death your right to say it.” We can each have our views about whether raw milk is highly dangerous or a miracle cure-all. Just don’t try to forcibly impose either belief on me.  

 Let’s take a positive approach to this situation. Let’s make raw milk available to all who want it, and do all we can to educate dairy farmers on how to produce the safest possible product. Let’s also carry out serious research on both the risks and health benefits of raw milk to fill in serious voids in our knowledge. Religion is never a good subject for debate.