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.

Practice round

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.

Shots fired

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.

Milk stockpile

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.

8 Responsesto “California’s raw-milk bill — skimmed?”

  1. Sophie says:

    It continues to baffle me why the battle against raw milk rages. Why can't there just be legitmate food safety tests and compliance with them? I've read stories from states where raw milk is illegal and people are crossing the state border to smuggle raw milk!

    I've been drinking raw milk for about a year and have no intention of going back to nuked milk. I take my chances with the family farm that produces my milk rather than any of the corporations that produce the other milk.

  2. David Kendall says:

    There would be few laws or regulations if each law had to achieve everything that everyone wanted it to accomplish.  SB 201 has passed through a well-defined legislative process and there have been no "NO" votes cast by any members of Senate or Assembly committees OR on the Assembly floor.  Concerns not covered by the bill can be dealt with later if they become significant.

    SB 201 apparently is a response to some last-minute midnight skullduggery last year by the Calif Dept of Food & Ag that involved adding some controversial words to a "Consent" bill that had no vetting by interested stakeholders. 

    (Consent bills pass almost automatically through committees and are signed almost automatically by the governor because they are warranted as non-controversial by all parties.)

    The added eight words would have had the probable effect of putting the state's only two raw milk dairies out of business.  This caper was, at minimum, a breach of protocol by the CDFA.

    Senator Flores' bill has made a purse out of a pig's ear by decreasing the likelihood that people will become ill.  He anticipates that this law will become a model for legislation in other states.

  3. Amanda Rose says:

    Hi David. You may not realize that I wrote the press release for the dairy and a number of blog articles last fall in the AB 1735 campaign. It’s always nice to know that people have read what I wrote.
    I worked on the issue before I realized the extent of the outsourcing and the actual sources of the product. I would not work with the dairy today.
    You and I do differ on our expectations for law. In my opinion, if the bill writer and supporters are going to pitch the legislation as protecting against outsourcing, it should do just that. It is also being billed as innovative in requiring pathogen tests. Well, OP tests for 0157:H7 using a rapid testing method approved for apple cider, not for raw milk. The law does not clarify if such a test would be acceptable. A lab will conduct just about any test you want if you pay for it.
    Consent bills are such because there is no dissent. It's not really as sinister as some would make it out. I watch legislation for my own business and if something were on the consent calendar, I'd pick up a phone and generate some dissent if that were my desire. If you don't have a friend in an agency, you've got to watch the legislation or these sort of things happen.
    Sophie -- I think we're going to get a small cow in a couple of years.
    Amanda
     

  4. Amanda Rose says:

    Here's a pretty thorough analysis of the potential implementation issues:
    http://www.marlerblog.com/2008/08/articles/lawyer-oped/raw-milk-debate-continues-with-sb201/
    I realize that raw milk drinkers aren't the biggest Marler fans, but it really is unfortunate that this legislation has left itself wide open to criticisms of implementation. It was the first thing I noted when I read the first draft. It went through a revision and did improve in this regard, but it still does really leave a lot of questions to be hashed out between the dairies and enforcement agencies. That's a real bad idea.
    Amanda

  5. David Kendall says:

    Amanda,
    Thank you for birddogging this issue with Organic Pastures and especially Senator Flores.  I truly agree that this bill could be a better bill in several ways, and the areas you have mentioned are two of them.  I'm also aware that fixing the law after Arnold signs the bill, or affecting how the law is administered is likely to be difficult for the public. 

    That said, I think the actual underlying issue today is:  Will consumers who don't have access to local raw milk have ANY access to raw milk.  It matters little to me how the bill is "pitched".  What this bill accomplishes is the security of raw milk supply in California and, by precedent, other places in the nation.  OP and Claravale, under current law, would probably be forced to close their doors.

    Many people have an informed understanding of the probable benefits and possible risks associated with raw milk.  Raw milk is adequately safe for those who choose to drink it, and current law (and its administration by CDFA) would effectively take away that choice for most people living in and near cities.

    To further the agenda of improving the safety of raw milk, I would like to have the law to specifically legalize cowshares and herdshares.  This would go a long way towards minimizing "outbreaks" since each dairy's production would be relatively small and owners would likely know just who produced and under what conditions their milk was produced.  Know your farmer.

    Incidentally,  the California "outbreak" you referred to in your original post primarily involved a woman who got her milk from the bulk tank of a dairy that sells most of its milk into the pasteurized market.  To call this an outbreak seems to overstate the case - and this milk was not specifically produced for consumption as raw milk.

    I tip my glass to the health and wellbeing of you and your family.
    David

  6. Amanda Rose says:

    Thanks again for the comment, David.
    We'll see about the milk supply. Claravale hasn't had any product degraded, so perhaps it is possible to meet the standard.
    On the California case, I believe there were fifteen people ill. Technically, it's two or three to make an outbreak. One woman is in the news because of her paralysis.  It's a pretty big number sick for a small herd share program.
    Amanda

  7. Amanda Rose says:

    David, I'm sorry I'm realizing now you are probably referring to the OP campy case -- the reference I make to the high bacteria counts. I would have to check the state report, but it seems like there were five to eight people in that one. One had the specific strain isolated that was linked to a strain in one of the cows at OP, so perhaps you're referring to that one person.  In any case, it was "outbreak" enough to warrant a report on it.
    Amanda

  8. Amanda Rose says:

    The bill has passed the Senate with enough votes for a veto over-ride. It will be interesting to see if it gets vetoed -- the governor and the bill author have a "history." If it is vetoed, it's possible that Republicans will be rallied to support the governor. It's pretty interesting that if this doesn't pass, it's likely nothing to do with raw milk.