Page 85 - Spring2013

FEDERAL – MARK MCAFEE PETITION TO FDA
On February 26 FDA finally issued its response denying the citizens petition filed by Mark McAfee, president and founder
of Organic Pastures Dairy Company (OPDC), seeking to amend the regulation banning raw milk for human consumption
in interstate commerce. McAfee filed the petition in December 2008; federal law requires a response by the petitioned
agency within six months from the time of filing. The petition would have modified the ban by adding to the regulation
the statement, “raw milk that is tested, state inspected, state regulated, carries a ‘government warning statement’ and
labeled for retail sale in one state may be transported to another state if that other state allows the sale of raw unpasteur-
ized milk and/or dairy products.”

In rejecting the petition, FDA relied on the record that led to the establishment of the ban twenty-five years ago, maintain-
ing that the “petition fails to establish that current testing, state inspection, and state regulation programs can adequately
mitigate the dangers posed by raw milk. This conclusion is in keeping with the 1987 rulemaking, in which FDA declined
to permit the interstate distribution of certified raw milk, noting the association between the consumption of raw milk
and the outbreak of disease.”
In its letter denying the petition, FDA stated that no technological advances had been made to adequately substitute for
pasteurization, remarking that raw milk producers would not use technology to reduce pathogens anyway because “many
raw milk producers and advocates, including yourselves [McAfee and raw milk consumer and co-petitioner Christine Ches-
sen] consider the bacteria present in raw milk, including pathogens which might be present, to be ‘beneficial bacteria.'”

FDA rejected the assertion that warning labels would suffice instead of a ban. As it did in the initial rule-making estab-
lishing the ban, FDA continued its mantra that consumers need to be protected from themselves stating, “Consumers
are not generally expected to take any additional steps to reduce the potential risk and are poorly equipped to assess
the likelihood of infection. The infirm, the elderly, and the young are particularly susceptible to serious risks of infection
presented by consuming raw milk and raw milk products and, in many cases, may not have the ability or opportunity to
understand the risks identified in labeling.” While FDA was rejecting McAfee’s petition they were continuing their efforts
to “protect” children by entertaining a petition from the National Milk Producer Federation (NMPF) and the International
Dairy Foods Association (IDFA) that would allow “non-nutritive” sweeteners such as aspartame to be an ingredient in milk
and seventeen other dairy products. The petition also requested that the presence of the non-nutritive sweeteners not
be required to be included in the product label. NMPF and IDFA claim that school lunch programs would particularly
benefit from the petition’s approval because the dairy products with aspartame would promote healthful eating habits
for children and would reduce the incidence of childhood diabetes.

Following the letter to McAfee were some twenty-three pages of documents detailing foodborne illnesses attributed to
the consumption of raw milk products and recalls of raw dairy products. One document, “Table 5 – Outbreaks associated
with raw milk and raw milk products in California 1971 to September 2012”, claimed the Jalisco cheese foodborne ill-
ness outbreak was associated with raw milk; in the Jalisco outbreak, forty-eight people died from listeriosis by consuming
pasteurized cheese. FDA’s false claims are becoming more common among public health agencies these days with the
stepped up campaign to discredit raw milk. The government knows greater numbers of consumers are ignoring its attacks
against raw milk and are seeking access to the product.

WISCONSIN – VERNON HERSHBERGER
The criminal trial for Amish dairy farmer Vernon Hershberger of Loganville, Wisconsin has been rescheduled for May 20
at the Sauk County Courthouse in Baraboo. The trial is slated to run five days; it had been scheduled to start on January
7. A pre-trial hearing in the case has been set for May 7. The reason for the postponement was a freedom of religion claim
made at a pre-trial hearing by Hershberger’s attorney, Farm-to-Consumer Legal Defense Fund (FTCLDF) Vice President
Elizabeth Rich.

Hershberger has been charged with four misdemeanor counts for alleged violations of the Wisconsin food and dairy code.
The charges are (1) operating a retail food establishment without a license, (2) operating a dairy farm as a milk producer
without a license, (3) operating a dairy plant without a license and (4) violating a holding order issued by the Wisconsin
Department of Agriculture, Trade and Consumer Protection (DATCP). The holding order prohibited anyone from remov-
ing food products from refrigerators that had been taped in Hershberger’s farm store.

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