August 19, 2008

Some Like It Raw

By: John Schwenkler

We have always had to have “a good reason” for doing away with small operators, and in modern times the good reason has often been sanitation, for which there is apparently no small or cheap technology. Future historians will no doubt remark upon the inevitable association, with us, between sanitation and filthy lucre. —Wendell Berry, The Unsettling of America

The second time gun-toting, badge-flashing federal agents came to visit Amanda Hall, at least she had some idea of what it was about. A few weeks earlier, after she had gotten home from her job at the Organic Pastures dairy farm in Fresno, California, and was about to head off to school, a pair of men met her at the door and handed her a subpoena to testify before a grand jury of the United States District Court for reasons they chose not to divulge. (“Don’t talk about it to anybody,” she was told.) They had gotten her name, as well as that of one of her co-workers, who was similarly visited at home and subpoenaed, by calling the dairy and recording conversations in which they posed as potential customers. Now, with the subpoenas served and the court date coming up, they had a few preliminary questions to ask her.

Well, not exactly a few. Hall, a 23-year-old mother of one who manages Accounts Receivables and acts as a sales consultant for Organic Pastures, sat with the men—who identified themselves as special agents of the Food and Drug Administration’s Office of Criminal Investigations—for 15 minutes as they repeated the same question about the legality of her employer’s interstate shipping procedures, “trying,” she says, “to have me change my answer.” They didn’t get what they wanted from the session, but as they were about to leave, one of the agents suggested Hall wear a wire to a meeting with her boss. “It’s funny,” she says. “I’d been sitting there telling them that these people were basically my family,” and now she was being asked to spy on them. “How much is it worth to you?” she asked, just to see what they would say. The answer came (“It wouldn’t be millions, but we could make it worth your while”), Hall politely refused, and the agents went off into the night. A few days later, just 24 hours before the grand jury was scheduled to convene, Hall was informed that her testimony would no longer be needed.

Mark McAfee, who is Hall’s boss at Organic Pastures, makes no secret of his disdain for the FDA and what he calls its “oppression” of his business, claiming that the government’s investigation amounts to malicious prosecution. McAfee is brash, self-confident, and unwavering in his commitment to what he sells. He’s got to be: His farm, which is equipped with its own airplane landing strip and has recently been courting investments from venture capitalists, brings in millions of dollars a year from a product the FDA calls “inherently dangerous” and pegs as “a source of foodborne illness and even a cause of death within the United States.” McAfee has gotten under the government’s skin, it seems, by circumventing federal laws that ban interstate commerce in this product in forms intended “for direct human consumption” by slapping a “PET FOOD” label on the side, handing it off to UPS, and shipping it all over the world to the tune of $20,000 a week, intrastate sales not included.

“The Great White Poison”

That product in question is raw—unpasteurized—cow’s milk, which Reuters recently named the number one health-related “story to watch” for 2008. Since the early part of the 20th century, when tens of thousands of people in America’s cities were dying from tuberculosis, typhoid fever, and other diseases and infected cow’s milk was believed to be a primary culprit in making them sick, pasteurization has become standard practice in the dairy industry. The process of pasteurization, where milk is heated to a high temperature and held there briefly before being quickly cooled, kills whatever pathogens might be present in it, thereby ensuring that it is safe to drink. Pasteurization is widely credited with having saved—and, crucially, still being necessary to protect—hundreds of thousands of lives.

The FDA’s official position statement on the sale and consumption of raw milk, for example, warns of “a long history of the risks to human health associated with the consumption of raw milk,” and claims that “pasteurization is the only means to assure the destruction of pathogenic microorganisms that might be present” in cow’s milk. On the basis of this argument, in 1987, the federal government banned the shipment of raw milk in interstate commerce, and the latest revision of the FDA’s “Grade ‘A’ Pasteurized Milk Ordinance,” which sets standards for interstate milk shipment and for voluntary adoption by state governments, dictates that no unpasteurized milk or milk products “shall be sold to the final consumer, to restaurants, soda fountains, grocery stores or similar establishments.”

To be sure, there is a lot of truth in this standard account. Unpasteurized cow’s milk, like any other raw food, is far from perfectly safe, and the widespread use of pasteurization has clearly saved lives by making even very low-quality dairy products clean and drinkable. (A 2001 study published in the Journal of Dairy Science found pathogenic bacteria in 26.7 percent of bulk tank milk samples.) McAfee, whose farm was cited as the cause of a 2006 E. coli outbreak but ultimately given a clean bill of health after inspectors failed to turn up any hard evidence of contamination, admits that “guarantees just are not available when it comes to food,” and so tells me that the area of food safety is one where Organic Pastures doesn’t make any promises. But raw milk’s defenders insist that the risks that attend to the consumption of unpasteurized dairy products from animals raised in a healthy environment are not significantly greater than those involving any other unsterilized food.

Food writer Nina Planck, whose 2006 book Real Food is an apologia for the health benefits of traditional foods from butter, lard, and coconut oil to eggs, beef, and—yes—raw milk, is careful to distinguish “safe milk,” which “comes from healthy cows in a clean dairy,” from the milk that comes from industrial dairies. “That milk is pasteurized and should be,” she says, but that doesn’t mean that “clean raw milk” isn’t good enough even for her toddler son. Similarly, New York University nutritionist Marion Nestle, who believes people “have the right” to drink raw milk, writes in her 2006 book What to Eat that while her “personal preference” is to have most of the bacteria in her milk killed before they get to her, it’s “quite possible to consume [raw milk] safely, especially when … you know the ‘animal care standards and sanitary practices of your milk producers.’”

One crucial benefit of this more nuanced story is that it helps us make sense of how humans could happily drink raw milk for thousands of years before it became, in the language of early-20th century reformers, the “Great White Poison.” It was only with the rise of “industrialized” dairying methods—in which cows were increasingly kept indoors, milked with a much greater frequency, and given unnatural feeds instead of access to pasture—that their milk became so deadly. And it was primarily in cities, where crowding and poor sanitation prevailed and milk was shipped in over a great distance, that outbreaks of milkborne disease were the most heavily concentrated. Hence even as enthusiastic a pasteurization advocate as the New York department store magnate and philanthropist Nathan Straus could essentially adopt Planck’s and Nestle’s position in a 1907 speech: There would be “no need” to pasteurize,” he admitted, if “pure, fresh milk direct from absolutely healthy cows” could be secured. “But I am compelled to conclude,” he went on, “that these conditions are for the present absolutely impossible of attainment. It now remains only to determine how best to apply the remedy—pasteurization.”

The Milk Wars

When I relate this last quotation to Collette Cassidy and Ron Garthwaite, who run a raw milk dairy in Panoche, California, I can hear Cassidy’s astonished excitement turn into an audible groan when I get to the part about the impossibility of supplying clean raw milk. That’s what they’ve been doing for years, after all. Claravale Farm has been producing raw dairy products since 1927, and Garthwaite, who has a Ph.D. in biology from the University of California, Riverside, tells me that they have a “perfect history” when it comes to cleanliness and safety. But this hasn’t been enough to satisfy the California Department of Food and Agriculture, which in April 2007 proposed a bill to the State Assembly that would limit the levels of coliform bacteria permissible in unpasteurized milk to a standard the state’s two raw milk dairies claim is impossible for them to meet.

This legislation, which passed in October 2007 as AB 1735 but was shelved after a San Benito County Superior Court judge issued a temporary restraining order on its enforcement, provides a perfect window into the “milk wars” that are been being waged nationwide. State assemblywoman Nicole Parra, who chairs the committee where the bill originated, told the San Francisco Chronicle that she thought California’s raw milk producers “got rolled” by the CDFA. The dairies were never informed about the proposed limit or given a chance to oppose it, and Parra claimed in a public hearing that the CDFA “omitted—and in my opinion purposely omitted—that there would be opposition to the bill,” by having it placed on the “consent agenda” so that it could pass through the Assembly without hearing or debate. Meanwhile, the CDFA claimed in a press release that the new regulations wouldn’t have an impact on the availability of raw milk in California, and Parra initially said the same thing in an open letter. But Garthwaite argues that this was transparently false, claiming that “virtually none” of the milk from Claravale and Organic Pastures would be able to be bottled as raw under the new limits. (Claravale passed the first round of testing under the new law, but Organic Pastures did not.) The CDFA, he wrote in an open letter to his customers, had turned out to be “more devious, two-faced, and sinister than I could ever have imagined.”

The purported rationale behind AB 1735, Garthwaite tells me, was “spurious on any number of levels.” The official analysis of the bill from the Senate floor claims that each of its provisions “is necessary for the state’s milk safety and inspection laws to be consistent with federal interstate milk shipment guidelines.” In a sense, its limits on coliform bacteria do indeed accomplish that: The FDA’s Pasteurized Milk Ordinance allows no more than ten such bacteria per milliliter in milk products that receive the Grade “A” designation, exactly the coliform limit laid down in AB 1735. The problem is that the Code of Federal Regulations dictates that unpasteurized milk intended for direct human consumption cannot be shipped across state lines anyway, no matter its bacterial count; the only way that dairies like Claravale can sell their milk as anything other than pet food is by cooking it first.

Garthwaite goes on to say that once the fallacy in this initial rationale was pointed out, the CDFA was ready with plenty of other justifications for the new standard. It was, they suggested, a matter of public safety. But when raw milk advocates argued that coliform bacteria are not themselves a health threat and that raw milk dairies were already subject to extensive pathogen testing, this justification was abandoned. Instead, the CDFA claimed that, given the growing public concern over food safety, the new regulations were really being put in place for the good of the industry. (How Claravale, which had just spent 11 years and a million dollars building a new dairy to improve their product and help conform with the state’s preexisting regulations, was going to be “helped” by AB 1735 is anyone’s guess.) And on and on it went—“a lie on top of a lie on top of a lie.” It’s “a crock of shit,” Garthwaite tells me, a flagrant attempt to push the state’s raw milk producers out of business.

Why would the government want to shut these businesses down? McAfee describes it as a matter of “two paradigms in collision:” the push to eat “whole, unprocessed foods” that will fill our bodies with “a supply of good bacteria to help our immune systems” on the one side, and the idea that we have to sterilize bioactive foods on the other. And as soon as you try to get into the nitty-gritty details of the scientific debate, comparing for example FDA attorney John Sheehan’s 69-page anti-raw milk PowerPoint presentation with the über-crunchy Weston A. Price Foundation’s 71-page “point-by-point rebuttal,” you do indeed get the sense that you’re witnessing an ideological incommensurability along the lines of Aristotle-Galileo, Newton-Einstein, and Einstein-Bohr.

But even if this is right, it still doesn’t give a satisfactory answer to the specifically political question of why legislators and government officials are spending so much time, money, and political capital attempting to regulate the buying and selling of raw milk. In testimony before the Maryland House of Delegates in 2007, the FDA’s John Sheehan claimed that unpasteurized milk had been responsible for a total of 35 outbreaks of illness, or an average of less than two per year, from 1984 to 2002—a statistic which, even if sufficient to justify his claim that raw milk “should not be consumed by anyone, at any time, for any reason,” hardly accounts for the tremendous level of regulatory scrutiny it has received. If drinking the stuff is like “playing Russian roulette,” as Sheehan puts it, then the weapon involved has a lot more than five empty chambers. Why go after the raw milk dairies, which even in California—one of only a handful of states in the U.S. that allow unpasteurized milk to be sold in grocery stores—milk less than .02 percent of the state’s cows and sell milk to only one-tenth of a percent of its human population, while permitting the sale and marketing of so many other products that pose far more serious dangers?

One part of the answer, of course, is that it’s exactly the insignificance of the raw milk industry that makes it a perfect target for committed nanny-staters. When the California Senate Agricultural Committee and the Select Committee on Food-Borne Illness held a special joint hearing on milk safety and consumer choice on April 15th, the best that the state’s raw milk producers could do was agitate for a thousand families wearing “I heart raw milk” buttons to rally on the south side of the State Capitol Building, and “pack the hearing room with respectful yet passionate raw milk fans.” (The CDFA, for its part, refused to send a representative to the hearing, prompting the senator who chaired it to call the agency “extremely disrespectful,” and wonder out loud whether they might have something to hide.) Meanwhile, by this same point in the 2008 election cycle, the beer, wine, and liquor industry had made well over $700,000 in contributions to California’s politicians, and contributions from tobacco companies stood at just under $300,000. The raw milk revolution, in short, is just the place to direct your regulatory ire: Very few people drink the stuff, there’s no big industry behind it, and every now and then a public health scare comes along to reinforce the idea that if not for government’s watchful eye, we’d have an E. coli outbreak on our hands.

“The Whores of the Dairy Industry”

But there may be more to the story than that. In the midst of all this controversy, California’s “conventional” dairy producers—whose representatives have donated an average of just under $300,000 a year in the last five election cycles—have been strikingly silent. Ron Garthwaite argues that we should not take this at face value: “Big corporate dairy” has indeed been a factor in the controversy—but as a behind-the-scenes force aiding those who are against raw milk. Its representatives have been pushing legislation like AB 1735, and “spending lots of time and money” to do so. “That’s why the CDFA had to hide” behind bogus justifications for the legislation: They’re “the whores of the dairy industry,” he says matter-of-factly, “no question about it.”

Mark McAfee, too, gives serious consideration to the idea that California’s industrial dairy producers have been interfering in the market for raw milk. He tells me that the board of Western United Dairymen, an organization that lobbies on behalf of California’s dairy industry and has a representative that sits on the California State Board of Food and Agriculture, is “in strict opposition to raw milk, not because they think it’s wrong but because they don’t want competition.” The folks at WUD are “dinosaurs,” he says, and they “hate our guts.” He speaks angrily of an occasion when WUD “slammed” the raw milk dairies, testifying against them in a hearing even though he and Garthwaite had kept their promise not to say anything negative about pasteurization. They “mother-effed us all the way,” he says. The mindset at organizations like WUD is “not about consumers at all—it’s about industry, about their own philosophy, about creating profits within their own paradigm of thought.”

Reached for comment, Western United Dairymen CEO Michael Marsh denies that his organization is officially opposed to the sale of raw milk, but makes it clear enough that he thinks AB 1735 is a good law. “We’ve just been watching it,” he tells me, “and our position was to watch it to see where it was going.” He says, however, that it “does make sense for one national standard to apply” to all milk products, and expresses a concern that the health scares surrounding raw milk will damage the market for cow’s milk more generally, remarking that a dairy producer will “always want to be sure that consumers are supportive of the product, not running off in droves.”

But to the question of whether WUD has ever testified against raw milk, Marsh tells me that not since 1999, when he became CEO, has a WUD representative offered such testimony. When I follow up with the details of the hearing McAfee was referring to—a January 16, 2008 Agricultural Committee hearing on Assembly Bill 1604, which would have repealed the standards set in AB 1735—Marsh does recall that WUD had a lobbyist at the hearing, but says that he’s “pretty sure he did not testify.”

Either Marsh is lying, or his memory is surprisingly bad. At the hearing in question, WUD director of governmental relations and state lobbyist Gary Conover was not only present, but rose to testify that while WUD had not had a sufficient opportunity to review the legislation, he had been “advised to encourage the Assembly to reconsider” the repeal of AB 1735, adding that he was “pretty comfortable in saying” that WUD would “be concerned about complete repeal of the regulation itself.” He also testified that WUD “had notified the governor on December 26 that we were in support of the regulation of the current statute.” (When I sent him an email detailing these aspects of Conover’s testimony and requesting clarification, Marsh fired off a quick response accusing me of being “far more an advocate than an independent reporter,” but admitting—“having spent several hours researching the issue now”—that Conover’s testimony was “correct,” and attributing his own previous remarks to “confusion.” Conover declined to comment.)

The conventional dairy industry’s role in California’s milk wars does not stop there. The California secretary of state’s “Cal-Access” program, which publicizes information on the financial activities of candidates for office, donors, and lobbyists, shows that the Alliance of Western Milk Producers, an industry trade association of which WUD was a founding member, lobbied the CDFA on the issue of raw milk during the last three months of 2007 and the first three months of 2008. Like Conover, AWMP lobbyist Louie Brown also spoke before the Agricultural Committee against the repeal of AB 1735, testifying that “the idea of our [sic] repealing a health standard on a product like raw milk is something that our organization cannot support.” (The AWMP has not responded to repeated requests for comment.) Even if Garthwaite and McAfee may be going a bit overboard with their conspiracy theories, it’s pretty hard to blame them.

The Industrial Bargain

This sort of cozy relationship between regulating government and regulated industry is not uncommon, and its results are not always a loosening of the regulatory bonds. Lawrence Busch, director of the Institute for Food and Agricultural Standards at Michigan State University, explains that regulatory standards are often manipulated to key constituents’ ends. Busch points to the recent push by large juice manufacturers for laws requiring the pasteurization of juice—a demand which, he says, would make “lots of small cider producers, among others, incur considerable extra costs.” By taking a practice that they already have in place, or a standard they’ve already managed to meet, and making it mandatory across the board in the name of industry uniformity or public health, established corporations can use their political influence to put their rivals at a competitive disadvantage.

Tim Carney, whose 2006 book The Big Ripoff is an alternately hilarious and infuriating exposé of how the rich and powerful use taxation and regulation to enrich themselves at the expense of the rest of us, reiterates this point. (Full disclosure: Carney is a board member of the America’s Future Foundation, which publishes Doublethink.) “Regulation,” he tells me, “always helps the big guys by creating barriers to entry, but there’s a more important dynamic here: When you give the government power, you give the lobbyists power. It also works the other way: When only a handful of businesses dominate an industry, bureaucrats and politicians find it easier to control that industry.”

When it comes to regulation and food safety, the extent of the allegiances between government and industry forces is so obvious it’s almost laughable. For example, the CDFA’s press release on the establishment of the new coliform standards closed, as all of their press releases do, with a footer describing their mandate to “protect[] and promote[] California’s $31.8 billion agricultural industry.” The front page of, a consumer safety website co-sponsored by five different federal agencies, proudly displays the logo of the Food Marketing Institute, a “featured partner” that also happens to be an organization that represents food retailers and wholesalers, and which in 2007 spent nearly two million dollars lobbying federal officials.

Similarly, consider the National Association of State Departments of Agriculture, which pro-raw milk attorney Gary Cox points me to as the conductor of what he calls “an orchestrated effort by federal, state, and local government to put the raw milk industry out of business.” NASDA was founded in 1915 to promote “sound public policy and programs which support and promote the American agricultural industry, while protecting consumers and the environment.” (Take note of the apparent order of importance.) Their official position statement on milk quality recommends that “only pasteurized milk, milk products, and properly aged cheeses should be sold for human consumption,” and they advocate for “uniform and equivalent” regulatory standards across the U.S., as a means to promote national and international commerce. The nationwide institution of uniform health and safety standards, in other words—which was exactly what WUD’s Marsh raised as the primary justification for AB 1735—is a necessary step in eliminating barriers to “free” trade, while at the same time ensuring the continued predominance of favored methods of production. As Carney puts it: “For the central planner—and this includes many Hamiltonian ‘pro-growth’ ‘capitalists’—diversity equals redundancy, localism equals inefficiency, and real consumer choice equals chaos.” You don’t have to be corrupt to play this sort of game; you just have to think that industries need protecting, even if that means restricting the scope of consumer choice.

Cooperative Capitalism

All of this adds up to the creation of what University of California, Santa Clara sociologist E. Melanie DuPuis, in her 2002 book Nature’s Perfect Food: How Milk Became America’s Drink, calls the “industrial bargain:” “an alliance between consumers, mass-production capitalists, and intensive [read: industrialized] farmers in the creation of a system of cheap nutrition.” Under such a system, farmers are treated “as servants of the city, and no longer as political actors with their own contribution to the nation.” To DuPuis, the raw milk movement is another manifestation of what she terms the “anti-statist” response to the breakdown of the welfare state: “a rejection of state expertise, regulation and intervention” in favor of new forms of economic relationships detached from the state-sponsored industrial food system.

For example, Gary Cox’s Farm-to-Consumer Legal Defense Fund, a “social welfare” organization closely affiliated with the Weston A. Price Foundation, advocates for raw milk consumers in states where the sale of unpasteurized milk is illegal or heavily restricted by helping them circumvent regulations through what are called “herdshare” programs. In a herdshare, a dairy farmer sells his or her cows to a group of consumers, who then pay to board the animals at the farm and are able to obtain quantities of free raw milk directly from the farmer, in proportion to the percentage of the cows they own. At its official launch party, appropriately held on Independence Day, 2007, FTCLDF president Taaron Meikle told a crowd of 500 farmers and consumers at an Amish farm in Lancaster County, Pennsylvania that America’s founding fathers “saw family farms as the very backbone of American society. Yet today small farmers are an endangered species because of government laws and regulations that serve big agri-business and make it difficult for small farms to be profitable.”

The FTCLDF’s mission is not, however, just about profits. Cox, who argues that there is “always a need for government regulation any time you put a product into the stream of public commerce,” pegs himself a libertarian when it comes to the herdshare programs. “That is inherently private conduct,” he says. “It does not affect the public’s health or safety or welfare, so government has no role in regulating it.” The milk is not being sold or transported to others; the organization is simply “a bunch of informed citizens making a conscious choice as to the type of food we want to produce and consume.” This is, he argues, the kind of arrangement to which citizens have a “fundamental right,” and the state has “no vested interest” in regulating it.

Cox insists that even without governmental oversight it’s possible to ensure that the unpasteurized milk provided to consumers via herdshare programs is safe and clean. In starting such a program, each “Herd Manager” is encouraged to sign a contract that commits him or her to a set of rigorous standards and health protocols, including a series of 12 tests that are to be performed regularly on the milk to ensure the cleanliness of the milking and bottling equipment and the absence of harmful bacteria. Herd managers also agree to keep their cows in clean environments free of standing water or mud, to discard any milk from cows that are sick or have recently been treated with drugs, and to provide “a predominantly pasture or hay or forage-based diet,” in contrast to the industrial feeds relied on by big dairy. The presence of a direct relationship between farmer and consumer adds another motivation for vigilant quality control, since the consequences of producing infected or poor quality milk are likely to be immediate and quite severe. Ambiguous as it may be in the eyes of the law, herdsharing is a triumph of cooperative capitalism, a perfect example of the ingenuity that enables the David of small business to sidestep Goliath, increasing his profits and dignifying his work by disconnecting from the corporate-industrial grid.

So, while I still have the right, I head down to the corner store and buy myself a couple of quarts of the white stuff, one each from Claravale and Organic Pastures. (And just in time: A few days before this article was submitted, the raw milk dairies lost their court battle, and the new standards were scheduled to go back into effect in mid-June. The dairies have the opportunity to file an appeal, but it is likely that any solution will have to come by way of the state legislature.) Each container bears a government-mandated warning label on the side, and Claravale’s milk is sold in a beautiful, old-school glass bottle that allows you to see the thick layer of cream sitting on top. It tastes pretty damn good, too, but I have to admit that—save for the tiny globules of cream that cling to the sides of my glass—it’s not all that different from the whole, organic, pasture-fed milk I’m used to drinking. But it does have a distinctive aura of liberty about it, which is why I imagine I’d count myself a convert if I could afford to shell out four or five dollars a quart. Don’t take my word for it, though: Give Mark McAfee a call, and join up with the ranks of the raw milk revolutionaries. Just be sure to tell him it’s for your cat.

-John Schwenkler is a Ph.D. candidate in philosophy at the University of California, Berkeley.