Authored by food-safety-conscious Senator Dean Florez, and the bill would have allowed dairies to adopt Hazard Analysis Critical Control Point (HACCP) plans in lieu of abiding by the draconian coliform standard signed by the Governor one year ago.
Schwarzenegger wrote generic messages for most of the 400-plus bills he vetoed. The raw milk bill stands out among the crowd: it received custom disapproval by the governor. Schwarzenegger stated in his SB 201 veto message:
This bill weakens food safety standards in California, something I cannot support.… Based on fears with no basis in fact, the proponents of SB 201 seek to replace California’s unambiguous food safety standards for raw milk. Instead they have created a convoluted and undefined regulatory process with no enforcement authority or clear standards to protect public health.
The Governor’s comments echo concerns expressed by food-safety lawyer Bill Marler in late August as the legislation moved from the Assembly into the Senate. The bill passed with unanimous support in the Assembly and passed the Senate with only four votes in the opposition. I speculated in August that Marler’s opposition was critical in the fate of the legislation.
With a veto, there is a chance of a legislative override, but I put those chances at between slim and none, expecting strong partisan votes if the raw milk bill goes back to the legislature.
It might come as a surprise that a bill could have such strong support in the legislature and get chopped by the governor. The fact is, the Governor has been the least likely supporter of this bill since its inception, and bill supporters have done nothing to persuade him in the past year.
Raw milk movement goads governor
In January of this year, the governor’s office sent a letter to raw milk consumers disgruntled with the AB 1735 coliform requirement. The letter stated:
Raw milk has been known to be a source of foodborne illness for decades. For example, in September 2006, the California Department of Public Health linked six cases of infection with the deadly E. coli 0157:H7 to the consumption of raw milk…The standard does not ban raw milk but serves as an indicator of cleanliness and sanitation on facilities that produce and distribute the product to California consumers.
In response to the Governor’s letter, the Weston Price Foundation issued a press release with the headline “California Government Official Lies About Milk.” According to WAPF, the key “lie” in the letter was that the 2006 outbreak cited in the letter was “definitively tied to spinach,” not raw milk.
When the press release crossed my desk in January, I contacted Organic Pastures Dairy Owner Mark McAfee and WAPF President Sally Fallon and suggested that antagonizing the governor’s office was not the most politically savvy strategy. The release had not reached the wires and there was time for a rewrite. I pointed out the problem statement that the Sept. 2006 outbreak was “definitively tied to spinach” when, in fact, not all the affected children consumed spinach and none consumed the spinach recalled at the time. The response: “The outbreak was traced to spinach, but not necessarily in all cases.” And thus the press release marched forward and did not help the movement’s cause.
Senator goads governor
By the spring of 2008, California Senator Dean Florez was on the cause, inspired by raw milk lobbyist Rusty Areias, and organized what the raw milk side called a “Raw Milk Showdown.” The big guns of raw milk testified before the Senate Select Committee on Food-Borne Illness. Days before the hearing it became apparent that government staff in the California Department of Food & Agriculture (CDFA), through whose back-door efforts the new coliform requirement had been slipped into law, would not appear at the event.
Senator Florez issued a scathing letter to the departments calling for their attendance, along with an accompanying press release. His letter was addressed to CDFA Secretary and Schwarzenegger appointee A.G. Kawamura. There are in fact more delicate ways to seek input from the CDFA, and yet Florez asked the raw milk community to publicize the letter, further irking the government, reminiscent of the January press release by the WAPF.
The CDFA never commented on the Florez letter and did not attend the April 15 hearing. It also appears that the CDFA was never consulted in the drafting of SB 201 by the bill’s authors. Certainly no consultation was made public. Sure, CDFA had every opportunity to be involved, but they supported the current law of the land — they had no incentive to attend hearings. But bringing them in was critical to this legislation passing and yet there were no apparent attempts to bring them in, save the public letters and press release. Nor were there any attempts to strengthen the legislation. Heck, I have not even received a response about my outsourcing letter (PDF), even though I am one of the handful of Democrats in Senator Florez’s district.
Schwarzenegger has done some goading himself. The governor made a nasty little comment about rural legislators that ticked off Florez, who is in the run-up to a campaign for Lieutenant Governor: "They come from those little towns, and they don’t have that vision yet of an airport or of a highway that maybe has 10 lanes."
So who actually wanted this legislation to pass? Florez didn’t have a snow ball’s chance of his bill passing without communication with the CDFA. Now that the bill has been vetoed, he can blame Schwarzenegger for being close-minded on food safety and, frankly, he will be able to avoid the implementation problems that were inherent in his raw milk legislation in the first place. It sounds like a win to me.
The raw milk dairies have gotten a good deal of publicity as a result of this proposed legislation. Even though they would have preferred for the bill to pass, they are quite likely better off this year than they were a year ago if they can meet the new bacteria standard. The new standard is, of course, the rub.
The coming year, the new coliform standard
Since the coliform standard passed a year ago, the big debate has centered around whether dairies can actually comply. In an initial press release, the CDFA claimed that the raw dairies themselves had actually been meeting the standard 75% of the time before the law was passed. Inspectors tested for coliforms in anticipation of the legislation passing. Furthermore, the CDFA cited a Journal of Dairy Science article saying that 20% of samples in bulk tank milk (from generic dairies, not those involved here) would meet the strict coliform requirement. The raw dairy side (including us) cited the same article saying, “See, only 20% of milk would pass.”
Other states have other coliform requirements. Whether those requirements are met or enforced depend on who you ask. Whether it matters if product is tested in the bulk tank or bottle depends on who you ask. Whether a large dairy will have a more difficult time than a small dairy depends on who you ask.
Under California's coliform requirement, fluid dairy products must test in the bottled product at 10 coliform per mL or fewer, in three out of five tests. Tests are generally done monthly. Of the two raw dairies in California, both have tested higher than the 10 coliform limit, but Claravale Farms has managed to meet the 3 out of 5 requirement since January. Organic Pastures product was degraded in March and again in the summer. Its product was withheld from store shelves until it met the standard again.
Dairies will be challenged in the coming year to meet the new standard in order to stay in business. The political irony is that if they are successful in meeting the standard, they will have little leverage in introducing new legislation. The primary argument on the raw dairy side has been that the new standard is impossible to meet. I made the argument a year ago and I am downright curious if it has any basis. If the dairies cannot meet the standard, they will suffer loss of sales, but they may have a stronger argument for new legislation in the upcoming legislative session. They may have to lose to win.
As California raw dairies move forward and seek a resolution to AB 1735, I have a bit of advice: Play nice with public officials, at least publicly. Push them off the monkey bars when there is a big group of kids around. Point to the boy who looks like a bully. Shout, “HE DID IT!” Don’t throw sand in their eyes via e-mail. Don’t throw sand via press releases. And if you must throw sand, hire a fact checker.