Food Safety and Liability Lawyer & Attorney : Stoel Rives Law Firm : Food Safety, Organic Food, Recalls

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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 legislation 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.