By Steve Bemis, Esq. - Board Member, Farm-to-Consumer Legal Defense Fund
Originally posted on The Complete Patient as a comment on October 30, 2009 and reprinted here by permission.  Read related articles by Bemis, "What Is Life Without Risk" and "Elaborations on 11 Great Thoughts".   

Earlier this year on this blog I proposed "11 Great Thoughts" in an attempt to create a discussion framework for, among other things, voluntary standards for raw milk producers, coupled with clear warnings and helpful linkages to the public health system to assist in tracking problems when they occur. At the risk of boring everyone to tears, I've trimmed them a bit and repeat them here in the hope that they might do what I originally hoped, namely stimulate discussion with less heat and more light.

1) Mark McAfee's Citizens Petition to FDA on interstate raw milk shipments is modeled on Ron Paul's HR 778, which is still buried in the House Committee on Energy and Commerce. HR 778 is intended to get FDA totally out of regulating interstate commerce in raw milk simply based on its lack of pasteurization. 

2) There should be some kind of consistent identification of raw milk and raw milk products coupled with standard warning language, whether basic such as current restaurant-style warnings, or more elaborate such as current California warnings.

3) Claims for health benefits may be made by any customer in the producer's advertising or sales forum only if in the form of personal testimonials or peer-reviewed scientific papers; or by the producer in the producer's advertising or sales forum only if in the form of a statistically accurate summary of unsolicited customer testimonials or peer-reviewed scientific papers.

4) Sales at retail, where the consumer is likely not to know the producer, should have increased testing under state law.

5) Transactions (whether sales, cow shares or otherwise depending on state law) direct from farmer to consumer whether on the farm or otherwise, or from farmers with herds smaller than a yearly-average [100] milking cows, should not be regulated other than by individual agreement.

[precedent for a similar exemption of raw milk, is the federal Egg Products Inspection Act (Pub. L. 91-597, 84 Stat.1620 et seq.) which exempts eggs direct farm-to-consumer or any sales from flocks of less than 3000 birds. At the state level, some states permit sales to various degrees and at the other extreme, some few prohibit all kinds of raw milk transactions; these issues will have to be dealt with at the state level.]

6) Parents are free to feed their children whatever foods they choose.

7) Farmers and individuals who provide raw milk or raw milk products to "others" should have legal protection in litigation (absent reckless behavior or actual knowledge of pathogens or other significant risk factors) so long as the proper identification and warnings (as in, #2) were provided and, in the case of "others" who are minors, so long as the identification and warnings were effectively communicated to the minor's parent or guardian prior to consumption.

8) Educational materials (directed to both producers and consumers) for the safe production, handling and processing of raw milk and raw milk products should be developed and widely distributed generally and in the producer's advertising and sales media.

9) An open, collaborative, transparent and scientifically rigorous and neutral approach should be taken by producers, consumers and public health officials in all instances of disease outbreak with a common commitment both to protect public health and to protect continued viability of responsible producers. Public health warnings which are not connected to outbreaks of illness or warnings which prove to have been unfounded, shall be followed by public health advisory followups which are communicated with the same level and extent of publicity as the initial warning, including exoneration of producers as appropriate.

10) Independent research (including analyses of testimonials and other real-life evidence as well as traditional reductionist studies) should be publicly funded to examine the nutritional value, environmental impacts of production, and the acute and chronic impacts on human health from raw and traditional foods and from industrially-produced foods.

11) Broader insurance availability for producers and other risk-sharing approaches should be developed as a counterweight to regulation-by-litigation.

[Farmers might consider voluntary production standards such as various kinds of testing protocols or simply rely on many years of problem-free operation, so as to induce insurers to write policies, otherwise the insurers will want to "go automatic" and insist on compliance with various regulations which is their current typical mode. Similarly, a litigation defense which is founded in compliance with the testing protocols of a voluntary standard or in decades of trouble-free operation by simply "looking at the animals and watching what's in the filter," should help to defend against litigation, and ultimately, to reduce litigation.]

October 30, 2009 | Steve Bemis