Risky Business - Why would a retailer, like Whole Foods, sell Raw Milk?
Raw milk, for its proponents, brings images of grandpa’s idyllic farm – Bessie being milked as the cats meow around her legs. For the FDA and state and local health officials, raw milk brings up a different image: people sickened – mainly children – sickened by E. coli O157:H7, Campylobacter, Listeria or Salmonella.
For me personally, raw milk generates mixed images. Growing up on a farm, milking cows and consuming raw milk in the 1970s is one image. Thirty plus years later, however, my mind is drawn to images of children sickened by drinking raw milk. These children were sickened by bugs that we did not know existed in the 1970s. Each and every one of the parents who bought or served the raw milk thought that they were doing something good for their child. They believed that the “organic,” “natural,” “fresh,” and “raw,” nature of raw milk meant that it had properties that would be good for their child, not bring them to death’s door.
Presently, raw milk cannot be sold across state lines for human consumption. However, there have been multiple instances where raw milk producers have violated the law directly or have sold the milk as animal food knowing that humans were likely consuming it.
In-state raw milk sales are limited to about a dozen states, with most states limiting raw milk sales to direct farmer to consumer transactions. Many of the states that allow these direct sales are quick to point out the exceedingly low price of pasteurized milk, touting the high price a farmer can get for raw milk as a method of “helping the small, family farmer” – a laudable goal I might add. This goal, however, is not without risks to the consumer.
Over the past several years, I have represented several families of children whose parents purchased raw milk directly from the farmer. The children came away with E. coli O157:H7 bacteria-mediated Hemolytic Uremic Syndrome, months of hospitalization, hundreds of thousands of dollars in medical expenses, and millions of dollars in risk of future complications – including end stage renal disease and the need for multiple kidney transplants.
Some states allow “cow-shares” or, as I call them, “cow condos.” This is where non-farmers “buy” a portion of the cow (and its milk) and attempt to get around any law banning the sale of raw milk. Again, states rationalize allowing this ownership fiction as another way of supporting the cost of maintaining the “small, family farmer” – also, a laudable goal.
I currently represent a woman in California who “purchased” raw milk as part of a “cow-share” – albeit, an illegal one. The milk she consumed was contaminated with Campylobacter and she subsequently developed Guillain-Barre Syndrome. She was hospitalized for months, much of the while dependent on a ventilator. She is now, in essence, a quadriplegic. Her past medical bills are nearly one million dollars. Her cost of future care is in the tens of millions of dollars.
There are also a handful of states that allow retail (grocery store) sales of raw milk and raw milk products. This is capitalism at its finest. Raw milk in retail sells for about eighteen dollars per gallon. Organic pasteurized milk sells for less than half of that. Farmers want to sell their raw milk to a larger market as efficiently as possible and there is demand from consumers who would rather shop at their favorite market than drive to the farm or own a “condo cow.” In short, selling raw milk in a retail setting is the raw milk farmer’s Holy Grail. Even retailers love it, seeing as how it creates a consumer draw and has a nice mark-up.
I have represented (and still represent) victims of E. coli O157:H7 cases linked to raw milk purchased (some illegally) in retail settings. In Missouri, one consumer purchased raw goat milk that was being sold illegally – the consumer did not know that the sale was illegal. This sale led to the consumer’s child suffering severe Hemolytic Uremic Syndrome, being hospitalized for a month, and spending weeks on dialysis to save his life. He now faces a lifetime of risks that may likely cost millions of dollars.
In California, E. coli O157:H7-tainted raw milk sold in small “health food” retail outlets sickened several children. Two children developed severe Hemolytic Uremic Syndrome. Both spent over a month in the hospital, both on dialysis and one on a ventilator. Medical bills were nearly one million dollars. One child may require a kidney transplant – the other surely ill. The future costs to these children may well be several million dollars.
I also presently represent two people (one child and one adult) from Connecticut who consumed raw milk purchased at a Whole Foods. The milk was tainted by E. coli O157:H7. Both developed Hemolytic Uremic Syndrome. Once again, hundreds of thousands of dollars in medical expenses have been incurred. One victim, a twenty-eight year old mother, will likely require a kidney transplant – again, at a multiple million-dollar cost.
Now for the risky part. Most, if not all, raw milk farmers have limited insurance and very few assets that are not owned solely by the bank. If they face litigation for poisoning a customer, bankruptcy is always an option and what insurance is available is paid.
But, what about the risk to the retailer? True, in selling raw milk they are “only” selling a product that has a history of sickening consumers – they did not manufacture it. So, is a retailer, like Whole Foods, liable for paying millions of dollars to its customers if they are sickened by raw milk? The short answer is – Hell yes!
The reality in most states is that the entire “chain of distribution,” whether you are a manufacturer (a farm is) or retailer, is responsible if a product (raw milk is a product) causes harm. That means the farmer, the shipper, and the retailer will be responsible (morally and legally) to the consumer for all damages caused by the product. It is true that, depending on the state, a court may apportion damages between various members of the “chain.” However, and this is key, if the original manufacturer (the farmer in this instance) is bankrupt or has limited assets (including insurance), the retailer may be left “holding the bag” – partially empty – that the retailer will need to fill.
By way of example – assume that raw milk sold at a Whole Foods sickens five people. Two develop Hemolytic Uremic Syndrome. Assume further that the farm has only one million dollars in insurance and limited assets. Also assume that the total value of all cases (settlement or verdict) is ten million dollars. Guess who pays the nine?
So, why would a retailer, like Whole Foods, sell raw milk? Perhaps eighteen dollars a gallon?
What about the liability of the other "cow share" owners? It makes sense to me if they are jointly responsible for things like vet bills then they are assuming some liability risk.
Is there any degree of personal responsibility applicable? e.g. if the customer knew they were getting a product that is not legal to sell, a reasonable person might say they shouldn't be buying it.
Do the safety inspectors have any liability? e.g. http://www.hedgebrook.com/cowboarding.asp says the milk is safe because it is regularly tested by the state and is USDA inspected.
Thank you for the information.
I do drink raw milk, but I do not buy it from the grocery store. When I tried, in the past, it had already soured because they are handling it the same way as they do the conventional, pasteurized milk. It needs to be in a separate, closed case, at the very least. I do agree with you that there is a certain amount of profit margin in the case of Whole Foods... they do see the $$.
Melanie, the problem with personal responsibility is that raw milk has become one of those things that is supposed to heal all illnesses, etc, so it does become one extreme or the other. There was a good article featured on Bitten, in the New York Times, that talked about the subject in a reasonable manner. (a little over a year ago).
Keep in mind, whether or not you drink raw milk: foodborne illness organisms and spoilage organisms are not necessarily one and the same. Raw milk could contain campylobacter, listeria, one of the many variations of E. coli, etc. and still look, smell, and taste perfectly fresh and fine. Furthermore, the dairy could appear to be clean, but may harbor all sorts of nasty bugs that are not visible to the naked eye.
If WholeFoods is selling raw milk, they are taking a huge risk of liability if customers become ill. Despite all the news about fooodborne illness outbreaks, whether associated with raw milk or other foods, retail food operators tend to think, "it won't happen to me."
Regarding liability on the part of inspectors: The safety claims Melanie linked to are made by the milk producer, not by the inspectors. The inspectors do not produce or distribute the milk or any other food products produced by facilities they inspect. By inspecting a food production facility, they are not making any claims that the facility is 100% in compliance at all times nor do they claim that the food produced therein is 100% safe at all times. An inspector's job is to write up what s/he sees on the day of inspection. Inspections happen only every once in a while, not every day. It is up to the manufacturer/producer to follow safe handling practices on a daily basis to ensure that their food is safe to consume. Inspections are not typically pass/fail, either, although that is a common misconception among both the public and food manufacturers. If an inspector saw critical violations and did not report them, or if the inspector accepted bribes to make a favorable inspection report, that would be different, and civil or criminal liability could result.
In my opinion, despite what its proponents claim, it is darn near impossible to ensure that raw milk is safe to drink, that's why I don't touch the stuff.
As for personal responsibility, I think Mr. Marler can speak to that more intelligently and articulately than I can, because I don't practice, BUT: legal liability regarding product liabiity issues typically rests with the manufacturer or distributor of the product in question. I'm way oversimplifying things, but under the doctrine of strict liability, if a defective product is put on the market and the consumer uses it and is harmed by such use, then the manufacturer and/or distributor is liable, period. The consumer is not liable if a defective product is given to him or her to use, or in the case of food, consume. The defective product should not be sold or distributed in the first place. Strict liability often applies in foodborne illness cases , and it should, because there is almost no way for an ordinary consumer to know whether food that looks, smells, and tastes good is unsafe to eat.
Not that anyone's reading this, but I should clarify: I should not have used the term "liable" when referring to the consumer. What I should have said is that under strict liability the consumer's possible contributory negligence is not considered.
The answer to Bill's question is simple: people will pay a lot of money for illegal substances to which they attach the sensation of an altered state.
If people are scared of milk pasteurization--raising its temperature to 161F for 20 seconds--then they'd just about die of fright at my sauna. 170 to 190 F, half an hour at a time. Sometimes hotter. Sometimes longer.
But then I suppose I am neither good, healthy, organic, natural, fresh, nor raw.
I am curious, does Marler answer any of these comments? Misha, I am not scared of pasterization I just don't choose to drink pasteurized milk because I believe I observe how much better raw milk is because of the enzymes and other life that hasnt' been killed off by pasteurizing. As far as Saunas, those are very healthy and I love to indulge in them.
As far as you being good or healthy, I couldn't say, but you are definitely natural, fresh (from your comments) and always raw (observe what happens to a body when the soul departs).
So my question is, are these E. coli O157:H7, Campylobacter, Listeria or Salmonella visible under a microscope? So could I just inspect the milk if I was concerned?
And I believe that in a free country we should be able to choose to eat products that haven't been overprocessed or even processed. As far as raw milk I have drunk gallons of it and so far have not had any of the contamination problems Marler makes his living off of.
I would like to know more info as to why these milks were contaminated, and did these same symptoms occur in people before Louis graced us with his brilliance.
Thanks and Marler please chime in as I did learn something from your post.