California’s raw-milk bill — skimmed?
California’s ongoing drama about permitting raw (unpasteurized) milk to be sold in stores has turned sour once again this week. Just when it looked like proposed legislation palatable to the raw dairy industry — that would allow those that implemented a more holistic food-safety program to opt out of draconian bacterial counts — would flow smoothly through the legislature, some new twists threaten to shut off the tap once again.
Here's the back story. Since October, California raw milk advocates have been engaged in legislative battle over new sanitation requirements for raw dairies. Legislation was enacted in September of 2007 that required raw dairies to meet a much more strict sanitation requirement, based on a bacterial count that was so strict that California raw dairies question whether the new standards can be met. The raw milk community passed the hat to hire a law firm to challenge the bill and a lobbyist to try to get the legislation overturned. The legislative battle has been a surprisingly smooth one for a movement with anti-government tendencies, up until this week.
In January, an effort was made to change the new coliform limit from its low level of 10 coliform m/L to a more achievable 50 m/L. The bill was pulled by the author before it made the committee rounds.
In April Organic Pastures, California’s largest raw dairy, urged supporters to attend a “Raw Milk Showdown” in Sacramento. The Senate Select Committee on Food-Borne Illness had granted the dairies an audience, and they brought their biggest guns, including Weston A Price Foundation President Sally Fallon and an expert from as far away as Australia. While showdowns typically have big guns on both sides, the California Department of Food and Agriculture and the California Department of Health Services declined to appear. Besides the Senate Committee, the only non-raw milk drinkers in the room appeared to be two representatives from the Western Institute for Food Safety and Security. Perhaps this “showdown” was just a practice round. (Here's what I had to say about it in April.)
Out of that meeting came a new Senate bill – SB 201, promoted as an innovative food-safety plan for raw dairies. Senate Committee Chair Dean Florez said in the April 15 meeting that the bill would provide “a stronger standard” for consumer safety than the new coliform standard. SB 201 allows dairies to opt out of the 10 coliform standard and instead participate in a Hazard Analysis and Critical Control Point (HACCP), a more holistic approach to food safety that would require the dairy to identify potential points of contamination, protect them, and monitor them. A dairy might test sanitation levels during milking and/or during bottling, for example, to decrease the likelihood of contamination from the cows’ fecal matter.
Not one California interest group has opposed this new legislation. Holistic approaches to safety have great appeal and, indeed, every California legislator to date who has had the opportunity to vote on the legislation has voted in favor. But with any legislation, the devil’s in the details, and those details have bred opposition to the current version of SB 201.
The latest round began in earnest this week when food injury attorney Bill Marler issued a press release calling for the legislature and governor to oppose the bill. Marler’s secret weapon: A YouTube video featuring one of his clients sickened in the 2006 outbreak that was linked to products from Organic Pastures. The video ends with the sound of Marler’s then-seven-year-old client Chris Martin breathing with the help of a ventilator. The audio portion informs us that this child may face complications for the rest of his life.
Marler’s press release points out a key problem in the legislation:
Developing a HACCP protocol can take years, and if SB201 is signed as written, California raw milk will enter a black hole of regulation. Companies will be free to produce raw milk essentially unregulated until a HACCP plan is ready.
SB 201 allows dairies to opt into a HACCP path and, thereby, be relieved of the new coliform requirement. A gray area in the bill is whether the HACCP must be approved and implemented before the dairy can ignore the 10 coliform limit. It certainly is possible under the law that a dairy could opt in and take years to develop and implement a HACCP plan, all the while avoiding the 10 coliform requirement. It is not likely that this loophole (should it become one) was intended by the bill’s authors.
The bill has a number of areas that need tightening if it is actually going to be implemented:
- While it purports to offer protection against outsourcing, it offers little protection over current California law. I have written a letter to Senator Flores about this matter that spells out my concerns (PDF).
- It requires more pathogen tests than are currently performed but does not specify the type of test to be used (screening, confirmatory) nor the sensitivity of the test.
- It does not specify what to do in the case of a positive pathogen finding such as retesting or triggering a recall.
- It keeps the CDFA from acting on poor sanitation results even though the nature of HACCP programs is to measure sanitation levels.
The last three of the gray areas will likely cause a circus as the raw milk dairies and regulators attempt to reach an unlikely consensus over a HACCP plan. The circus would appear to offer no benefit except perhaps as entertainment for onlookers here at the Ethicurean.
Another problem for the bill is that since it was introduced this spring, current events have worked in favor of the original coliform legislation. Two suspected raw milk outbreaks have occurred that were accompanied by high coliform counts in the weeks leading up to the illnesses. One outbreak was an E. coli 0157:H7 cluster in Connecticut (as reported by reporter/blogger David Gumpert) and the other was a campylobacter cluster in California. Outbreaks linked to raw milk are telling the regulators’ story.
The video of Chris Martin and these additional outbreaks, combined with real concerns over the content of the legislation, probably mean there will be a struggle for the upcoming votes in the Assembly and Senate. Should the bill make it through those houses with the 2/3 vote it requires as an urgency item, it must still make it past Governor Arnold Schwarzenegger — one politician who has publicly supported the coliform requirement in the past.
Waiting for a resolution, California raw dairies hold their breath monthly as CDFA staff collect samples to test for coliform levels. The dairies must meet the strict standard in three out of five of the monthly tests, allowing some room for high counts. The consequence of getting a third high count is pulling their products from the shelves until the count is lowered.
As a result, the coliform standard could affect milk availability. Earlier this year, Organic Pastures cream missed the mark three times and was off the shelves for two weeks. The dairies then won a temporary injunction against the new law, a stay that was lifted in April. At this point, dairies are once again being held to the coliform standard. Perhaps the additional time brought by the injunction has allowed the dairies to batten the hatches, fix leaks in lines, and reduce coliform counts. Perhaps milk will continue to flow, perhaps not.
Avid raw milk drinkers may be tempted to increase their freezer stash of milk in preparation for empty store shelves. However, with E. coli 0157:H7 raging across the country, I wouldn't recommend stockpiling at least until the E. coli season comes to an end. Thirsty readers might instead select local honey mead, plum wine, and or a blackberry kefir for their probiotic fix if the milk supply runs dry.
Should things get bad, a bathtub still and a small herd of milk goats may be in order.
Update: This bill passed the Assembly yesterday and is on its way to the Senate.
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