Marler Blog : Food Poisoning Lawyer & Attorney : Bill Marler : Marler Clark

Four deaths from mis-pasteurized milk or post-pasteurized contamination of milk on the East Coast and a raw milk campylobacter outbreak just up the road, makes me appreciate the benefits of single malt scotch.  As I posted a few days ago, the Raw Milk Hearings are set for Wednesday, January 16, at 1:30 p.m. in Room 4202 of the California State Capitol Building in Sacramento. And, despite the circus-like atmosphere that is everything politics – especially California – I am not sure I will be able to make it in person (parent/teacher conference conflict). Although not to disappoint the paranoid, I will have a lawyer in my office there listening to the testimony.  I hope he brings back a few buttons, t-shirts and protest signs.

Now talk about timing - In other raw milk news, Mary Gallagher of the Bellingham Herald reported this morning on “5 sickened by raw milk.”

Five people were sickened by the bacteria found in raw milk that was recalled last month from a local dairy, the Whatcom County Health Department announced Monday. Four Whatcom County residents and one Skagit County resident tested positive for the same campylobacter jejuni strain that was found in a routine sample of raw milk from Pleasant Valley Dairy. The dairy pulled that batch of milk from the shelves and has resumed its distribution of raw milk. The dairy has changed its testing procedures to reduce the risk of releasing contaminated milk, the health department said.

In an article I missed from a week ago (I admit I was focused once again on Big Beef poisoning us), Barbara LaBoe wrote on: “Dairy pays fine to settle tainted milk case.”

The owners of Woodland's Dee Creek Farm have paid their state fine, finally ending the 2005 E. coli outbreak case.??The dairy, owned by Anita and Mike Puckett, sickened 18 people when E. coli contaminated their raw, or unpasteurized, milk in December 2005. Five children were hospitalized, two in critical condition. While investigating the outbreak the state found several violations, such as not having a dairy license and not properly testing animals for diseases. The dairy was fined $8,000 for violations.

My bet is that the California State Legislature amends or repeals the law setting new standards for the sale of raw milk.  I guess I need to practice my frivolous lawsuits and tune up the ambulance to chase down those damn milk farmers - raw and pasteurized.

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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.

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According to Stephen Smith of the Boston Globe Staff in his article, “State test points to dairy as germ source:”

Coffee-flavored milk taken from a cooler at a central Massachusetts dairy carried germs identical to bacteria that killed two elderly men and made two other people sick….

Genetic fingerprinting conducted at the state laboratory has indicated that a milk sample collected at Whittier Farms dairy two weeks ago, a sample taken in November from a bottle in a victim's refrigerator, and blood drawn from the four patients all harbored exactly the same type of listeria.

Clearly, there was a failure in the pasteurization process or the contamination was introduced post-pasteurization.  Recent reports suggest the later.  Although outbreaks associated with mis-pasteurized milk have occurred, in nearly every instance it was a failure of the pasteurization process or post-pasteurization contamination that lead to illnesses. See by prior blog post, “More News on Massachusetts listeria Deaths Related to Whittier Farms Pasteurized Milk.”

So, before you go out and start buying raw milk because you are now worrying about mis-pasteurization, please take a hard look at the list of raw milk outbreaks put together by Barfblog and the below PowerPoint from the FDA:

Here is some interesting information on Raw Milk Production:  "Raw Milk Legal Status in Top 10 Milk Production States:"

1. California – 2903 million pounds in 2003 – Raw milk sales are legal in retail stores.

2. Wisconsin – 1852 million pounds in 2003 – In January, 2005, a raw milk bill was submitted to the Wisconsin legislature

3. New York – 1015 million pounds in 2003 – Raw milk sales are permitted on the farm.

4. Pennsylvania – 855 million pounds in 2003 – Raw milk sales are legal both on the farm and retail

5. Minnesota – 691 million pounds in 2003 – State Constitution stated in Article XIII, Section 7: Any person may sell or peddle the products of the farm or garden occupied and cultivated by him without obtaining a license therefor.

6. Idaho – 734 million pounds in 2003 – Raw milk sales are legal with a license

7. New Mexico – 565 million pounds in 2003 – Raw milk and raw milk products sales are legal both on the farm and in retail stores

8. Michigan – 511 million pounds in 2003 – Raw milk sales are illegal but the state condones cow sharing programs

9. Washington – 467 million pounds in 2003 – Grade A dairies may sell raw milk

10. Texas – 471 million pounds in 2003 – Raw milk sales are permitted

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I love a lawsuit......  The AP reported yesterday, “Dairies sue to stop enforcement of raw milk standard."  This one will be fun to watch.  The raw milk folks (who sell their product for $10.00 per gallon - pasteurized milk sells for about $4.00) better watch what they are stepping into.  You really have to wonder if charging $6.00 more a gallon has anything to with the lawsuit?  Or, is it really true that these multi-million dollar companies really care about raw milk for some other reason?  See YouTube interview of Organic Pastures owner.

For those of us that believe in the civil justice system, I expect "Raw Milk on Trial" to uncover the truth.  As the AP reported:

Claravale Farm, of Paicines, and Organic Pastures of Fresno that produce unpasteurized milk are suing to stop the state from enforcing strict new standards. The dairies hope to stop a law that would require raw milk to meet the same bacterial standards as pasteurized milk starting January 1. They say it's not technically possible to meet those standards and keep milk raw. Agriculture department officials haven't seen the suit. But they say raw milk producers in other states with similar standards have been able to comply.

We are also investigating a Fall 2006 E. coli O157:H7 outbreak that has implicated one of the plaintiffs in the recent lawsuit, Organic Pastures.  

Many of these families whose kids were sickened in these outbreaks thought they were doing something healthful (one of the children unknowingly drank raw milk at a friend's house), but the products (colostrum or raw milk) were reported  to contain a fecal pathogen (E. coli O157:H7) that nearly took the kids’ lives.

I actually spoke on the topic of “Issues Regarding Raw Milk Sales and Consumption” at the IAFP conference in 2006, and recently one of my law partners wrote “A Legal History of Raw Milk in the United States” published in The Journal of Environmental Health.  One thing milk producers (raw or pasteurized) need to remember, what they produce is a product, and if that product contains a deadly pathogen and it sickens or kills someone, you have no defenses and you will get sued.

Cheryl Clark of the San Diego Union-Tribune interviewed the owner of Organic Pastures, the largest supplier of organic raw milk in California, with $6 million in annual sales, for her story “E. coli suspected from Fresno dairy” on September 23, 2006:

Mark McAfee, owner of Organic Pastures, insisted during a phone interview yesterday that he does not believe his dairy farm produced contaminated products. “They don't know what it is,” he said, referring to the state officials. He added that he was told some of the children also ate poorly cooked hamburger or spinach and could have ingested the bacteria that way. “The state has told us this is a precautionary recall,” McAfee said. “They have to shoot first and ask questions later, and you can't blame the guys. And although we test our milk like nobody tests it for every pathogen, (the raw milk products industry has) a long history of people becoming sick.”

 Organic Pastures was glowingly profiled in 2003 in www.newfarm.org

The milk is a perfect metaphor: by keeping it raw, Mark encourages the beneficial bacteria that keep pathogens in check. Each batch of milk is tested for bad guys like salmonella and E. coli, and not once have they been found. He has even had researchers introduce such bacteria to test samples, and the pathogens have been unable to reproduce. In conventional milk they would be the dominant organisms and proliferate, but in the varied ecosystem within Mark’s milk, the competition stifles them.

I guess the metaphor is not always apt.  As part of our research into the sale and consumption of raw milk, I hope to do several posts in the next few months – stay tuned.  The folks at Barfblog have already done quite a bit of research already.  Originally, the last photo was of a nice picture of Organic Pastures milk.  However, the photo caught the ire of my friends at www.ethicurean.com.  I did find another photo.

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