“…..The FDA even suggests that it is being benevolent by not banning raw milk entirely, pointing out that the 1987 court decision that led it to implement a ban on interstate shipment and sale of raw milk asserted “that ‘it is within HHS’s authority…to institute an intrastate ban as well’… FDA could have…prohibited intrastate sales but concluded ‘that State and local authorities may be better situated to deal with the public health problems attributable to unpasteurized milk.’” Thank you, thank you, most wonderful FDA.
The brief is most notable for its view of the evolution of food safety regulations, and the emerging issue of food rights. In the FDA’s view, an assortment of court decisions backing up federal legislation give it pretty much carte blanche to decide what food is safe.
This is a view that pre-dates the U.S. Constitution, in the view of FDA lawyers-turned-historians. It says that “there is no ‘deeply rooted’ historical tradition of unfettered access to food of all kinds… To the contrary, society’s long history of food regulation stretches back to the dietary laws of biblical times…Modern food safety regulation in the United States has its roots in the early food laws of the American colonies, which themselves incorporated ‘the tradition of food regulation established in England.’” The brief then cites an 1873 Virginia law “that ‘made it an offense . . . [to] knowingly, sell, supply, or bring to be manufactured . . . milk from which any cream has been taken; or milk commonly known as skimmed milk’).’”
Yes, you read that FDA example correctly. Virginia prohibited sale of milk that had been fooled with in any way, such as removing cream. Under such a regulation, pasteurization and all the other things done to modern milk would be illegal. Is that the best the FDA can come up with in terms of historical precedents?…”