Farmer to Consumer has this blurb up. (This is the case of raw milk being transported across state lines and distributed in a type of raw milk buyer's club in Georgia. The case is depicted in the movie Farmageddon.)
"FDA's Views on Freedom of Choice
Here are some of FDA's views expressed in its response on 'freedom of food choice' in general and on the right to obtain and consume raw milk in particular:
"Plaintiffs' assertion of a new 'fundamental right' to produce, obtain, and consume unpasteurized milk lacks any support in law." [p. 4]
"It is within HHS's authority . . . to institute an intrastate ban [on unpasteurized milk] as well." [p. 6]
"Plaintiffs' assertion of a new 'fundamental right' under substantive due process to produce, obtain, and consume unpasteurized milk lacks any support in law." [p.17]
"There is no absolute right to consume or feed children any particular food." [p. 25]
"There is no 'deeply rooted' historical tradition of unfettered access to foods of all kinds." [p. 26]
"Plaintiffs' assertion of a 'fundamental right to their own bodily and physical health, which includes what foods they do and do not choose to consume for themselves and their families' is similarly unavailing because plaintiffs do not have a fundamental right to obtain any food they wish." [p. 26]
FDA's brief goes on to state that "even if such a right did exist, it would not render FDA's regulations unconstitutional because prohibiting the interstate sale and distribution of unpasteurized milk promotes bodily and physical health." [p. 27]
"There is no fundamental right to freedom of contract." [p. 27]"
Document Referenced: http://www.farmtoconsumer.org/litigation/ey100426--ds%20mtd%20memo%20in%20support.pdf
I find this paragraph particularly interesting:
"Plaintiffs argue that “FDA could use a less stringent means of regulating raw milk,” such as warning labels stating that the products are unpasteurized. Am. Compl. ¶¶ 79-81, 105-108. In promulgating 21 C.F.R. § 1240.61, FDA specifically considered “the use of labeling to ensure that consumers who voluntarily choose to consume raw milk are informed as to the risks inherent in that choice,” but FDA concluded, for reasons it explained, “that labeling is not an acceptable alternative approach.” 52 Fed. Reg. at 29,513 (explaining that “the risk of infection . . . does not arise from the misuse or abuse of the product but rather from its customary food use,” and those who “are particularly susceptible to serious risks of infection,” including the elderly and children, “may not have the ability or the opportunity to understand the risks identified in labeling”). FDA could have also 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.” Id. Whether FDA used the least restrictive means to accomplish its goal, however, is immaterial under a rational basis review. See Heller, 509 U.S. at 330 (holding that whether a less restrictive means exists to further the legislative aims “is irrelevant in rational-basis review”)."
Basically, warning labels are inadequate because children and elderly may consume this "risky" product.
Initial digging shows that individuals who travel across state lines to purchase raw milk will not have enforcement action taken against them by the FDA. (FDA's authority to regulate interstate commerce is challenged, and dismissed for lack of subject matter jurisdiction, in the United States District Court for the Northern District of Iowa Western Division.)
"(FDA’s response to the court’s questions ante); 3 Plaintiffs’ Appendix (as amended) at 292 (FDA’s press release, dated November 1, 2011, stating, inter alia, “With respect to the interstate sale and distribution of raw milk, the FDA has never taken, nor does it intend to take, enforcement action against an individual who purchased and transported raw milk across state lines solely for his or her own personal consumption.” (emphasis in the original))."
It appears that the GEORGIA Department of Agriculture ordered the dumping of Wagoner's raw milk, not the FDA. The FDA's code is as follows:
"(a) No person shall cause to be delivered into interstate commerce or shall sell, otherwise distribute, or hold for sale or other distribution after shipment in interstate commerce any milk or milk product in final package form for direct human consumption unless the product has been pasteurized or is made from dairy ingredients (milk or milk products) that have all been pasteurized, except where alternative procedures to pasteurization are provided for by regulation, such as in part 133 of this chapter for curing of certain cheese varieties."
Farm to Consumer Legal Defense Fund is apparently trying to use the dumping of Wagoner's milk in an argument against the FDA's code concerning distribution of raw milk in interstate commerce. The FDA has stated that farmers who sell to out-of-state consumers may attract regulatory action. The court system pretty much takes the stance that the case is not ripe.
At some point I'd like to dig further into the Morningland case, and read more of the Farm to Consumer papers.
Morningland Dairy's story
Case 5:10-cv-04018-MWB Document 11-1 (Brief in support of case dismissal)
Oh, and a local farm - Meadowsweet Farm
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