On April 20, two FDA agents, two federal marshals and one state trooper descended on the Kinzer, Pennsylvania farm (Rainbow Acres) of Dan Allgyer to execute an administrative search warrant against Allgyer’s premises. The group set foot on the farm at 5 a.m. to conduct the inspection even though the warrant called for the inspection to take place “at reasonable times during reasonable business hours.” The warrant allowed the FDA agents to inspect “all portions of Rainbow Acres facility (except for the private residence located therein) and all things therein, including all equipment, finished and unfinished materials, containers and labeling therein.” The warrant also called for the “use of reasonable force” to gain entry to any area the agents were authorized to search.
Later that day after the agents reported their findings to officials at FDA’s Philadelphia district office, Philadelphia District Director Kirk Sooter sent Allgyer a warning letter stating that FDA had determined that “you are causing to be delivered into interstate commerce, selling or otherwise distributing raw milk in final package form for human consumption, such distribution is a violation of the Public Health Service (PHS) Act, Title 42 United States Code, Section 264(a), and the implementing regulation codified in Title 21, Code of Federal Regulations (CFR), Section 1240.61(a).”
THE INTERSTATE BAN
The regulation [21 CFR 1240.61(a)] issued by FDA in response to a 1988 court order provides, in part, that “no person shall cause to be delivered into interstate commerce or shall sell, otherwise distribute, or hold for sale or other distribution after shipment in interstate commerce any milk or milk product in final package form for direct human consumption unless the product has been pasteurized.”
The statute [42 USC 264(a)] authorizing FDA to issue the regulation prohibiting raw milk for human consumption in interstate commerce provides, in part, “The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases…from one state or possession into any other state or possession.” In FDA’s view all raw milk is a communicable disease and is “adulterated”; so, a product that is legal to sell under the laws of two neighboring states is a “communicable disease” and illegal when it crosses from one neighboring state into another. The federal ban on raw milk is a prohibition on a product that is legal to sell or distribute in at least twenty-nine (29) states and legal to consume in all fifty (50).
FDA’S STRATEGY TO TARGET FARMERS & ACHIEVE STATE-BY-STATE BANS
In spite of the booming demand for raw milk, FDA’s position has not changed. The agency is at the center of the opposition to raw milk and wants a complete ban on the product’s sale and distribution. In the Chicago area, the FDA has targeted for enforcement (one at a time) twenty (20) different buying clubs the agency suspects of having obtained raw milk from out-of-state sources. FDA has a similar strategy for the states, with the plan being to pressure one state at a time to ban raw milk sales. If the food safety legislation currently before Congress passes, FDA will have increased leverage over the states so this threat will be greater; the agency does not have the manpower to conduct the inspections mandated by the food safety bill(s) and will in effect be putting state agriculture and health department employees on the federal payroll to carry out its workload.
In taking action against farms, like Rainbow Acres, whom FDA suspects of transporting raw milk across state lines, the agency is attempting to deny the people’s right to obtain the food of their choice from the source of their choice. FDA allows Vioxx, Avandia, melamine, aspartame, and genetically modified foods on the market but is now trying to take off the market a food that has benefited human health for thousands of years. Interestingly, there is nothing in the U.S. Constitution nor in any Supreme Court decision that specifically mentions freedom of food choice. Freedom of food choice is ‘the rights issue’ of the twenty-first century; ultimately, consumers will be the ones to win the fight.
RAW MILK & YOUR FREEDOM OF FOOD CHOICE
Raw milk is at the heart of the battle for food freedom. The key to securing the right to obtain raw milk from the source of choice is to overturn the federal ban; without the ban, FDA will not be able to put the pressure on states that it currently does to make raw milk sales and distribution illegal. Efforts are being made to overturn the ban. In February of this year, the Farm-to-Consumer Legal Defense Fund filed a lawsuit in federal district court seeking a court ruling that the federal ban is unconstitutional as applied to its members and other individual plaintiffs. Congressman Ron Paul last year introduced HR 778, a bill that would effectively overturn 21 CFR 1240.61.
Readers can do their part to help by contacting FDA and asking that the agency not harass farmers like Dan Allgyer whom the agency suspects of transporting raw milk across state lines. John F. Sheehan, the Director of FDA’s Division of Plant and Dairy Food, is the official most responsible for carrying out FDA’s agenda of completely banning the sale and distribution of raw milk. Sheehan has stated: “Raw milk should not be consumed by anyone, at any time, for any reason.”
Call, fax and/or write Mr. Sheehan at the contact information provided below, telling him to leave Dan Allgyer alone. Here are some points to make:
1. FDA should respect the right of consumers to obtain the food of their choice.
2. FDA has no business trying to deny consumers the right to drink raw milk since consumption of raw milk is legal in all fifty states.
3. Consumers are perfectly capable of making food choices for themselves and their families and don’t want FDA dictating what foods they should and should not consume.
4. If FDA has no choice but to “enforce the law” then the agency should advocate for overturning that law.
A sample letter to Mr. Sheehan can be found at
NOTE: FDA has never taken action against any individual obtaining raw milk for their own consumption from another State; but it is possible that FDA could interpret the ban to include prohibiting even consumers from crossing state lines to get raw milk. FTCLDF strongly disagrees with this interpretation and takes the position that people have the right to cross state lines to obtain the foods of their choice.
MR SHEEHAN’S CONTACT INFORMATION
John F. Sheehan, Director
Div. of Plant and Dairy Food
Office of Food Safety
Bldg. CPK-1, Rm. 3D-055
5100 Paint Branch
College Park, MD 20740
Main phone for Office of Food Safety
(If the receptionist refuses to put you through to Mr. Sheehan, respectfully leave a message.)
Pete Kennedy, Esq. – President
Farm-to-Consumer Legal Defense Fund