“The U.S. Food and Drug Administration is taking a lot of heat about its undercover investigation and court action against Pennsylvania Amish farmer Daniel Allgyer. The FDA’s number-two , Michael (Son of Monsanto) Taylor, was even asked about the matter at a corporate get-together, where he spouted the expected rhetoric about “doing our public health job” in connection with the legal assault, designed to prevent Allgyer from supplying a food club in Maryland with raw milk.
But Taylor made another interesting remark, noting that the campaign against Allgyer results from a “statutory directive” to the FDA. He presumably was referring to the FDA’s implementation in 1987 of the federal ban on interstate distribution and sale of raw milk (PHS law 1240.61), at the behest of a federal judge the previous year. The judge ruled on a consumer group’s suit, demanding that the FDA put an end to interstate sales of unpasteurized milk. At that time, at least one large producer, Alta Deena, was shipping raw milk from its home base in California to a number of neighboring states.
Now, in a response to the FDA’s brief filed last month arguing that the Farm-to-Consumer Legal Defense Fund’s legal challenge to the agency’s ban of interstate distribution and sales of raw milk should be dismissed, the FTCLDF maintains that the judge’s 1986 decision ordering the ban was inappropriate on several counts. It notes that the FDA had, ironically, resisted efforts to push it into the interstate ban, and suggests the agency didn’t have the authority even under a judge’s order.
“Not only did the (1986 court decision) substitute its judgment for that of the FDA, it ordered FDA to institute an interstate ban on the sale of raw dairy products under the PHSA (Public Health Services Act) when there is no authority under the PHSA for FDA to regulate ‘interstate commerce.’ Thus, this reinforces the notion that (the court decision) is wrong and is an extreme case of judicial activism.”
The FTCLDF brief makes yet a further legal and Constitutional argument challenging the FDA’s effort to eliminate the availability of raw milk. The FTCLDF filed suit last year on behalf of five plaintiffs who were admittedly purchasing raw milk in states where it’s legal, and bringing it back to their home states, where such sales are illegal. The FDA has argued that such interstate transport of raw milk is illegal, but has said it has no immediate intention to enforce such a ban on individual consumers.
The FTCLDF argues that the FDA’s prohibition on interstate shipments of raw milk amounts to a “mandate that if dairy products are going to be purchased, those products must be pasteurized rather than fresh and unprocessed….”