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Marler Blog Providing Commentary on Food Poisoning Outbreaks & Litigation

So, what’s the Beef with the New California Raw Milk Safety Rules?

I posted a few days ago that Claravale Farm of Paicines and Organic Pastures of Fresno have sued the State of California for setting standards for the quality of raw milk.  Here is the Complaint.

I was curious what the “beef” was really all about. According to the State of California, “the new standard sets a maximum amount of coliform bacteria at no more than 10 bacteria per milliliter (mL) in milk sold raw to the consumer, the same limit required for pasteurized milk. This level is consistent with both national and international public health and food safety requirements as reflected in standards set for pasteurized dairy products by the U.S. Food and Drug Administration, the United States Department of Agriculture (USDA), the Canadian Food Inspection Service, and the European Economic Community (EEC). It is also the same standard currently used for raw milk sold for direct consumption in several western states, including Nevada, Arizona, Utah, Idaho, and Washington.”

The State also suggested the following for reducing the risk of bacteria being in the raw milk:

• Properly managing manure, bedding, housing and pastures to prevent cows from arriving overly dirty at the milking parlor.

• Washing the udders and teats of cows, and ensuring they are clean and dry prior to milking.

• Ensuring the hands of milkers are clean and dry

• Use of an appropriate commercially available pre-milking teat sanitizer to further reduce the amount of bacteria contacting milking equipment.

• Milking any cows with infected udders last, and ensuring such milk is properly excluded from milk intended for consumption.

• Ensuring all equipment throughout the entire milking system is properly cleaned and sanitized after each milking.

• Ensuring detergents and sanitizers are used at effective concentrations, and that adequate amounts and temperatures of hot water are utilized.

• Establishing and adhering to a maintenance schedule for milking equipment to ensure proper operation and to replace worn out inflations, hoses, gaskets and other parts that can harbor coliform bacteria.

• Providing sufficient refrigeration to ensure milk is properly cooled and stored at 45 degrees or below.

• Ensuring the milk products plant where the raw milk is handled and finally packaged for the consumer is also properly constructed, clean and sanitary. Bottles of raw market milk must be mechanically capped to avoid contamination from workers’ hands.

So, the rules seem to work in other states and other parts of the world?  I certainly hope the State of California does not cave to pressure from the raw milk folks, who seem to spend as much time or more on the internet blogging and making Youtube videos as they do milking. Perhaps Arnold, “The Governator,” will call and ask me to come in to assist in the defense of the State? On the other hand, perhaps I should just stay out of the fight, let the raw milk people win and continue to provide me with work? I’ve always wanted to own land in Fresno and Paicines.  Perhaps I can give up my "Batman" title for "Bill the Barbarian?"

We are continuing to investigate the raw milk and raw milk product E. coli O157:H7 outbreak from the Fall of 2006 that the State of California linked to Organic Pastures.  What we have learned from Health Department records was that there were a total of 6 cases (5 culture confirmed, PFGE patterns indistinguishable) consisting of 4 boys and 2 girls.  The median age was 8 years (range 6 – 18 years).  All had bloody diarrhea – 3 were hospitalized, 2 with HUS.  5 had a history of consuming Organic Pastures raw milk products (one was raw chocolate colostrum).  No E. coli O157:H7 was detected in the product, but high fecal coliform counts were found in the colostrum and chocolate colostrum (at least 1 sample from each product had high standard plate counts).  199 Organic Pastures cows’ feces were tested, 3 were positive for E. coli O157:H7 but were different from the outbreak strain by PFGE.

I had posted earlier on "The Legal History of Raw Milk."  I was recently sent a very great PowerPoint from a presentation given at The Association of Food and Drug Officials by Joyce WeinIliya, Assistant Attorney General State of Texas in June of 2007 The PowerPoint PDF is here.

  • Amanda

    Hi Mr. Marler. When you say that no E. coli 0157:H7 was found in the product, do you mean the actual leftovers from what the children consumed or the milk off the shelf?
    What do you consider to be “high” coliform levels?
    Can you provide more information about who tested the cows at the dairy? How long after the outbreak?
    Amanda

  • Bill

    Hi Amanda Rose:
    Q1: From what I can tell, no product from the victims homes were tested (one child’s might have been, but it may not have been what she drank out of) – possibly not any left as is usually the case in outbreak investigations. However, testing of left-over product is always problematic. In our suit against ConAgra for poisoning over 700 people, we tested all our clients Peanut Butter – of 1,300 samples only 6 came back positive, and that included hundreds whose stools tested positive. The Dole spinach outbreak was unusual in that the same PFGE was found in stool, leftover product and on a nearby farm. Interestingly, other pathogenic E. coli was found in leftover product and victims’ stools but never was reported. The bottom line is that testing is only one part of epidemiology – the common connection, without any other likely source rules the day. It is never perfect, it is just what is more likely than not?
    Q2: I’m not a microbiologist – but the documents indicate that total coliforms, fecal coliforms, and standard plate counts were high – perhaps above the standards they have now set for raw milk?
    Q3: The tests were conducted after the illnesses by the California Department of Agriculture. It also appears that it was in conjunction with the California Department of Public Health.
    Hope that helps

  • Amanda

    Thanks for the quick response.
    The OP products were surely above a coliform count of 10; that’s a very low level. I was just curious how high “high” is.
    Amanda

  • Diane Reifschneider

    Dear Mr. Marler:
    You are clearly alleging that there was, in fact, a “raw milk and raw milk product E. coli O157:H7 outbreak” in September 2006. What is not clear is what exactly you are alleging about your PFGE pattern evidence that is “indistinguishable”? Said another way, what was “indistinguishable” from what?
    Were these PFGE data provided to you on film or in digital format? How did you authenticate these data?
    Thanks in advance for the clarifications.

  • mark

    Marler,
    Did you know that Nevada and Idaho do not have raw milk. It is currently illegal in those states. That is right not a single drop of raw milk is sold in a store or anyother place. In fact Idaho has a coliform standard of less than 50 not less than 10. The state of WA allows hand capping and does not provide any test resuls to their producers. When producers test their own raw milk it comes up much higher than the legal less than 10 coliform counts.
    Is there anyway that you can check on this. It seems like there is false data being used in the press and the public needs to know the truth.
    By the way, your client never had ecoli found in her stools. When I visited her in Loma Linda they thought that the illness had come from Spinach until they were asked if the child had had any contact with raw milk.
    All the best,
    Mark

  • Melissa

    Mr. Marler,
    Mark cant be talking about Lauren but must be because he is saying “HER” There were only two children at Loma Linda, Chris, and Lauren. Chris is a BOY.
    Lauren did not have spinach and Lauren had 100% confirmation of ecoli in her stool sample.
    I was not asked if my daughter had raw milk, I didnt even know she was given any raw milk. The doctors told ME she drank raw milk 8 days after arriving at the hospital.. I was unaware that Lauren had been switched to raw milk in another household.
    I cant help but wonder why that very important tidbit of information was being witheld for that long. It wasnt until Chris arrived at Loma Linda, that I knew Lauren even drank raw milk.
    Mark is very funny when he talks about false information. He has done nothing but state false information on these two cases from day one. He cannot change the outcome of the childrens e-coli testing no matter how much he wishes and hopes.

  • Lisa

    I have a question about the PFGE pattern and the raw milk products. The products consumed were raw skim milk, raw whole milk & raw chocolate colostrum. I’m assuming the colostrum is not mixed with the milk, so how would if have the same PFGE pattern as the milk? I’m just wondering why the same pattern wasn’t found in any of the other milk products or cows tested. Could it have been from shared equipment that was later cleaned?

  • Patrick Henry

    “I certainly hope the State of California does not cave to pressure from the raw milk folks, who seem to spend as much time or more on the internet blogging and making Youtube videos as they do milking.”
    You sir, are a threat to the Republic of California and the republic of the United States of America. You are a threat to your fellow citizens lives, liberty, and property.
    Go ahead and ban raw milk, along with every other truly natural and healthy foodstuff, and I will eat illegal black market food until the consequences of mandating nutritionally bunk factory farmed junk food catch up to everyone else.
    “On the other hand, perhaps I should just stay out of the fight, let the raw milk people win and continue to provide me with work?”
    Or you could gain a sense of morality and ethics and advocate that people bear responsibility for their own actions. If I get sick from the food I eat it’s my own dang fault or sometimes s**t happens.
    I read your “Legal History of Raw Milk” – is it incompetence or deliberate malfeasance that made you miss the first few decades of milk laws, including the “certified dairies” and the fact that the original certified dairies were raw milk dairies, and that pasteurization was originally used and required for factory farmed cows fed spent grain from breweries?
    If it was incompetence, there is a brief but decent and much more complete legal history of raw and pasteurized milk in Nina Plank’s “Real Foods”. If it was deliberate, then you have fulfilled the stereotype of an unethical lawyer who is more than willing to lie and commit lies of omission to “prove” their case.

  • Bill

    Patrick – I doubt any facts would ever change your beliefs in your point of view. I respect that. My point in posting about raw milk producers (or any producer of any food) that sickens children, it that they need to step up and deal with it. Sometimes it takes the legal system to do that.

  • Patrick Henry

    Dear Sir,
    Thank you for responding.
    You say they should play by the same rules – but those rules say it’s okay to feed cows just about anything. Those rules, particularly NAIS, but the whole of the regulation of agriculture is heavily biased in favor of factory farmed food products and against traditionally farmed real food. Those rules are much too arbitrary, contradictory, immoral, impossible, and far too often illegal under the state or federal Constitution or the laws of nature to be upheld as a standard.
    Your standard of “not sickening children” is also arbitrary. It seems more like an emotional pitch calculated to evoke an emotional response rather than a reasonable and logical standard based on objective and scientific study. With regards to the current standards being proposed, “10 coloform bacteria per millimeter”, I can find no evidence that this is a scientifically derived number. The CA gov press release (http://www.cdfa.ca.gov/egov/Press_Releases/Press_Release.asp?PRnum=07-090) says that 75 percent of the raw milk produced in California would pass such a standard. It seems that a modest increase to 15 or 20 coloform bacteria per milliliter that would not endanger public health would permit a much larger percentage of the milk already produced safely (In California, how many got sick from raw milk out of how many drank raw milk in the last five years?). The only basis cited for this standard that I’ve found so far is that it is the standard many other places – the fallacy of popularity raises it’s ugly head again.
    This standard would appear calculated to be just harsh enough to drive the raw milk dairies out of business. This would be in accordance with the rest of the state and national regulation of food in which that which is safe and natural and good is slowly destroyed and that which is unsafe and unnatural and evil (yes, evil, as defined by Merriam Websters) is protected and subsidized.
    This is more perversion of the law. I read the PDF by Joyce WeinIliya you posted. It was as terrifying as I expected. Instead of the law it quotes the anti-law, the decades of bad decisions and statutes that are in absolute conflict with the fundamental and supreme laws of the land. Curiously enough just as with your legal history of raw milk the PDF picks up at 1914, ignoring at least thirty or forty years of legal history regarding milk. Why is that both of you ignored the decades of laws regarding milk in America before 1914? Is it because those laws painted an absolutely different picture of both the law and milk (raw and pasteurized, real and factory farmed)? Or is it because by 1914 America was suddenly being thrust in a very different direction very fast (income tax, fiat money, the rule of Woodrow Wilson etc) much as is happening now (NAIS, REAL ID, TIP/Genesis, etc) and it’s former principles and practices were replaced by one more suited to your liking?
    Since you read “Real Food”, and knew of the earlier legal history, can you explain the ethics of lying by omission to conceal the legal history of milk while writing about it in public as an expert lawyer regarding food safety cases?
    I started reading through the raw milk dairies complaint. It would appear they have a strong legal case matching what I said above except in detail and at length. I hope they have the luck to have the law and not the government’s word decide the case.
    Regarding your above comment – only facts can change my beliefs and my point of view. I have no respect for anyone whose beliefs are changed by anything except facts. I came to believe in the safety of raw milk through facts derived from scientific research. And along with the agribusinesses, it is primarily the legal system in this country that is responsible for sickening children with bad food by consequence of bad laws.
    I shall see you in Sacramento, shortly after drinking a few raw milk cappuccinos.

  • Raw Milk Hearing

    On Wednesday, January 16, at 1:30 p.m. in Room 4202 of the California State Capitol Building there will be a hearing on already passed AB 1735. The bill changed the California’s Food and Agricultural Code to limit to 10 the…

  • Bill

    Your namesake, Patrick Henry of “Give me liberty or give me death” fame, would love to see you at the hearing wearing a t-shirt – “Give me raw milk or give me death.”

  • James Thomas

    Dear Bill,
    Are you a main stream public lobbyist for the milk and dairy industry? What business is of yours to tell me how or what I should eat? Mind your own business, and find another job fighting a better cause. I have ingested 100s gallons of Organic Pastures raw milk over the past four years, and have enjoyed the wonderful flavor and health benefits. If you are going to attack the culture of death, the are plenty of other food products out there that are certainly more detrimental. Its one thing for government or private interests to be a watch dog and make sound advice, its another thing to impose a law that restricts one’s freedom to choose.

  • Whatever

    James…
    Mind your own business? Find another job? Your comments are so utterly ridiculous, I had to write you.
    So, what you are saying is that if someone gets sick from meat, spinach, milk or something else..they should not hold the company that sells it responsible??? Companies should get away with poisoning or worse, killing people with their bacteria infested foods.???
    Im wondering if you would have the same reaction if it were meat or something else….or maybe if it were one of your children that got sick…or yourself???
    You really ought to re-think posting such mindless, stupid comments on a persons blog who represents people and families whos lives are torn apart by these dangerous illnesses that come from their products. Some people have lost their loved ones or almost lost their loved ones.
    Although money doesnt change what happened or repair the damage done.. it sends a message to these companies that just dont care what condition their products go out to the public in.
    James, there are other blogs that support drinking bacteria ridden milk…maybe your opinion will be better suited on one of them.

  • Dusty

    I think it is a shame that in America we have become a society of “it’s not my fault” from obesity to what we eat. Now the governement wants to regulate fat content! All packages have ingredients and most have it broken down for us. Why can’t we stop supporting lawyers with trivial lawsuits. Leave them to handle the important stuff.
    And before you say “if it was your child…” It WAS my child. Not from raw milk, but from chicken from Mexico (before we had country of origin labeling). It is a diet of raw milk from our own goats and cows that has improved her health until she is a beautiful, healthy little girl again. Do I have scientific proof, no; but then again I take the responsibility of her health on MY head. No lawyer will be heaering from ME if she gets sick. It has been over 4 years on raw, and no illnesses at all.