Raw Milk Debate: Ground Zero For The Conflict Between Consumer Rights and Consumer Protection?
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First a disclaimer: Personally, I’m not convinced of the health benefits of raw milk, though I’m told many exist. I’m also not convinced of the argument that raw milk is less safe than pasteurized milk. After all, foodborne disease continues to be transmitted by pasteurized milk, despite its pasteurization.
Two weeks ago saw a significant legal decision in the raw milk debate. The superior court in San Benito County, California upheld new state regulations requiring raw milk to meet the same standards for bacteria counts as pasteurized milk. Essentially, the ruling puts the raw milk producers out of business (unless llegislation introduced this week is passed overriding the regulations).
By all accounts, raw milk will always have a higher bacteria count than pasteurized milk. Higher bacteria count is exactly what advocates of raw milk point to as one of its prime benefits. Most bacteria, these advocates will remind us, is “good” bacteria that makes us healthier. Many (if not most) raw milk producers pride themselves on their farming practices and wholesomeness of the product.
State health officials contend that the risks of raw milk outweigh the benefits. Pasteurization eliminates so much of the risk from foodborne illness that nothing can outweigh its benefits.
Consumer advocates and the plaintiffs' personal injury bar usually walk lock-step when it comes to food safety. Not true with the raw milk debate. Plaintiffs’ lawyers like Bill Marler are crusading against raw milk producers. Many of Marler’s allies—small-farming advocates and those against “corporate” food production—are his prime targets.
The dividing line is drawn between a culture of consumer rights and those who believe that responsibility for food safety lies solely in the hands of the court and regulators. In the world of the later category, consumers can’t be trusted. No amount of instructions or warnings, they would tell us, is sufficient to protect against risk.
Despite my own misgivings about raw milk, I suspect that San Benito judge may not have fully appreciated the debate (admittedly, I have yet to get a hold of the opinion) . I’m not at all sure that the judge consciously intended to pick a side between consumer rights and consumer protection. He may have seen this only as an issue of the state regulating an “unsafe” product.
A Cry for Federal Preemption?
In Arkansas, a putative class action has been filed by consumers who allege violations of consumer protection laws of four states because they purchased Tyson chicken products with packaging labeled, “Raised Without Antibiotics.” The plaintiffs claim that the packaging was “deceptive,” and they were “de-frauded” because the feed consumed by the chickens contained Ionophores, which is classified by the FDA as an antibiotic.
The putative class action follows a Lanham act case filed by Tyson’s competitors in the U. S. District Court, District of Maryland. The product labeling was approved by the USDA under its authority from the Poultry Products Inspection Act (“PPIA”), 21 U.S.C. § 451. Despite approval from the USDA, the court ruled that the competitor’s claims could proceed and enjoined Tyson from future use of such labeling. The court reasoned that the USDA regulates labeling, not advertising. Deciding that the labeling was also advertising, the court held the labeling was fair game for a Lanham act suit.
Effectively, the court opened the floodgates for class action litigation for labeling approved by the USDA. The decision is significant. It promises to energize the growing movement of consumer labeling class action work. The decision may also have a destabilizing effect on producers that rely on FDA and USDA rulings and regulations. Already, producers of organic milk face challenges under state consumer protection acts for alleged product mislabeling of milk as organic, despite organic certification approved by the USDA.
One of two things will happen: (1) full-time product-labeling litigation work for lawyers or (2) legislation by the U.S. Congress enabling federal preemption. The latter is obviously the more sane course. Nothing is more inefficient than regulation of product labeling through state consumer class action claims. Expert regulatory agencies such as the FDA and the USDA, not judges and juries, should decide what constitutes appropriate labeling and advertising of food products.
What Is the Utility of Microbiological Testing Data in Litigation?
As microbiological testing of products in the field or in processing plants becomes more frequent (even ubiquitous), there are questions about its usefulness. Microbiologists say that the utility of microbiological sampling as it is currently done is marginal at best. Current testing looks at only a small sample of a product for a small range of bacteria, meaning a contaminated product easily can test negative.
Testing is done largely because it can be, and because some testing is better than none. For meat and poultry plants, FSIS has announced that testing data will be posted on its Web site. In the event of a positive test result, food can be recalled or prevented from entering the marketplace.
Because a negative test result proves nothing, it is usually irrelevant in litigation (especially at trial). The negative result, therefore, is nothing more than a red herring.
Recent breakthroughs in technology may dramatically increase the utility of testing. These breakthrough technologies can be combined with methods that do not rely on actual culturing of the organisms, allowing microbiologists to examine the entire population of microorganisms present in an ecosystem. This “community profiling” concept entirely changes how microbiologists would interpret testing data. Microbiology promises us the ability to conduct “community profiling” of bacteria on food products. Dr. Andrew Benson of the University of Nebraska offered fascinating insight into this emerging technology at the April 11-12 food law conference at Seattle University Law School. While the approach cannot yet get around the limited sample size, the ability to examine the content of the entire community of microorganisms in a sample may offer industry more reliable information and the chance to use microbiological testing to reduce risk in a meaningful way. Stay tuned as technologies develop. . .
