Raw Milk Regulations:
Consumer Privacy Violations Required for Safety?
Part 3
To Read Part 1 CLICK HERE Part 1 - To Read Part 2 CLICK HERE
By Tom Kocal | Prairie Advocate News
In Part 2, published in the April 24, 2013 issue, the last proposal of the draft prepared and discussed at the February 22 conference call meeting of the Illinois Department of Public Health’s (IDPH) Food Safety Advisory Committee was discussed. It states “The dairy farm shall assume all liability involved with the sale and distribution of the raw milk.” This includes liability insurance, which O’Shaughnessy said is about $1000/year on the average.
Most agreed that obtaining liability insurance on any farm is a business decision, not a public safety issue.
But Molly Lamb, Division Chief of the IDPH Division of Food, Drugs and Dairies, clarified the intent of the IDPH. “This is definitely a statement that will be reviewed by our legal [department], as being appropriate [language]. It just supports IDPH’s not endorsing the sale of raw milk.”
Lamb referred to the last sentence of the first paragraph of the “Second Draft Amended Rules for the Sale of Raw Milk,” which clearly states, “This [amended rules proposal] is not an endorsement from the [IDPH] for the sale of raw milk.”
Several raw milk farmers have questioned that if it is already legal to sell raw milk in the State of Illinois, why does anyone need an IDPH “endorsement’?
Points of Consideration
This led to the additional “Points of Consideration” which were then discussed, and include the following:
- The term “cowshare” needs to be defined.
- The sale of raw milk is considered income and must be reported to the IRS.
- IDPH will provide laminated warning signs.
- The term “sanitary” needs to be defined.
- The IDPH will have a different permit number for those farmers that only sell raw milk to a consumer. The permit will end with the letter “R.”
- The farmer will be required to have a Grade A permit.
- The farmers will provide a label for the container, but the consumer is not required to put the label on the container.
- The farmer will be required to test for coliform, bacteria, somatic cell counts, temperature and drug residues.
- The standard for coliform will be less than or equal to 10, and for bacteria less than or equal to 20,000.
- Currently, there isn’t a validated test for drug residues for individual cow samples. Dr. Thomas Graham will be contacted about this matter.
- The log the farmer will be required to keep will include the date and volume sold. IDPH will need to check with the legal dept. to see if they can include customers’ names on the list.
According to several of the members of the Food Safety Advisory Committee that actually are raw milk farmers, these “Points of Consideration” are “directives” from the IDPH, rather than considerations for a committee to discuss.
Currently, the raw milk subcommittee membership is heavily weighed in favor of the pasteurized milk industry. According to O’Shaughnessy, there are many more “anti-raw milk proponents on the committee vs the one true raw milk farmer (me).” But O’Shaughnessy was not asked until after the “2nd Draft Amended Rules for the Sale of Raw Milk” was produced on Jan. 11, 2013. Other members include one from the Illinois Farm Bureau; Divincenzo and Lamb, who represent the IDPH; one representative of the University of Illinois Veterinary Clinical Medicine; one with the FDA; five (5) representatives from Prairie Farms; one is an Illinois Milk Producers Association board member; and two from Dean Foods.
Considerations, or Intentions?
When Divincenzo addressed the “points of consideration,” he stated that one of the IDPH’s “intentions” was to eliminate cow shares.
Currently, purchasing raw milk at a store, or from anyone other than the farmer directly from his farm, in your own containers, is not legal in the State of Illinois. However, it is perfectly legal to drink raw milk from your own cow. Many farmers have developed “cow share” programs where you purchase a portion of the cow and pay the farmer to milk him for you.
“We believe [cow shares] are circumventing the intention of our statute,” said Divincenzo. “Basically, we want the individual to physically go to the farm and pick up the milk . . . because we have these places where milk is being delivered to drop off points. We think that’s not what we had in mind when this statute was set up . . . it is our intention to eliminate this process.”
Leonard Sheaffer, the retired farmer and 25-year dairy producer, explained, “To me, a 5-year cow share does not mean they can deliver it, bottle it, or anything else. They still have to go to the farm and buy it.”
“That’s what we had thought as well,” said Divincenzo.
“The understanding we have of the regulation,” stated Sheaffer, “is that if a person owns a percentage of a cow, the raw milk sales can only take place on the farm, in their own container. But I’ve never seen the regulations. We tried finding it, and I don’t know where they are.”
“Yes, this is what is supposed to happen,” stated Lamb. “But we have been alerted to situations where they have this cow share, and they are taking the milk from farm to farm, being distributed that way. Therefore, not from the dairy farm. We want to capture that - say no to that.”
“States that allow cow shares, do allow raw milk sales,” said Donna O’Shaughnessy of South Pork Ranch LLC in Chatsworth, IL. “But there are no states currently that do not allow cow shares. I am sure that your regulatory department will look at that, too, because it is my understanding that cow shares are not subject to regulation. The farmers are providing the service to those shareholders, and they are the ones that have the cow shares - a property rights issue. It is not the farmer’s milk, it is the shareholder’s milk. It’s an area that the regulatory dept. might have a problem with.”
“We may need to figure out a better term,” Lamb countered.
“We know of several situations, especially up north, that this is going on, where there are drop-off points for milk that has already been packaged,” Divincenzo claimed. “This is a problem as far as we’re concerned. It’s not what our statute had intended.”
Sheaffer offered the observation that the cow share issue and the delivery issue are really two different issues; more of an enforcement issue.
“Just because there are cow shares doesn’t mean that milk can be delivered somewhere else. The point should be that it needs to be picked up at the farm. Cow shares were not implemented to circumvent the law. I don’t see that as an incentive to end cow shares here in Illinois.”
Divincenzo suggested that the wording needs to be more clear, and will prepare an altered definition to send out to the committee before the May 1 meeting.
Clear definitions needed
The terms “sanitary” and “unsolicited sales” were also discussed, and it was determined that they, too, need to be more clearly defined.
The IDPH’s suggestion to have a different permit number for those farmers that only sell raw milk to a consumer by ending the permit with the letter “R” was questioned for clarification by O’Shaughnessy.
“Is that for the farmer who only sells raw milk direct to the consumer? Then you have the farmer who is selling to a co-op as well as selling raw milk on the side. Is that farmer also required to have the permit with the “R” behind it?”
Divincenzo said yes, because it would help the IDPH track the numbers of farmers that sell direct to the public.
The “considerations” about the Grade A permit and testing requirements had been previously discussed. Some of the individual cow testing procedures used by the small raw milk producers came into question as not being “approved” procedures, despite the fact that they are effective. Large dairy producers’ milk is not individually tested. “We’ll test the co-mingled milk from the bulk tank,” Divincenzo confirmed. “But not individual cows.”
Most agreed that an invalidated test that comes up positive makes it validated and cause for action. The question was what if the invalidated test came up negative - does that make it validated? He said it was a matter that would have to be further discussed in order to come up with an agreement that is acceptable to everyone.
The last matter on the list, regarding the inclusion of customer names on the log that the farmer “will be required to keep,” was added in order to be able to notify raw milk consumers that may have purchased contaminated milk. Sheaffer had no problem with that, as long as the list of names was to be kept on the farm, and divulged only in the case of an emergency.
“There should be a way to protect it from being published, for example, if someone requests it through the Freedom of Information Act. It should be utilized only for what the actual purpose is.”
Divincenzo confirmed that they cannot give out consumer lists, since it is not a FOIA-able item.
But O’Shaughnessy had more serious concerns.
“I am very opposed to keeping any kind of consumer records. Customers will certainly ask why they are not required to give their names at a grocery store when they buy pasteurized milk, which could be tainted with E-Coli. Again, you keep stating that you are doing this ‘for the protection of the consumer,’ when there has not been a single outbreak that has been documented related to raw milk in Illinois since at least 1999.”
Lamb generalized the issue by claiming that most customers’ purchases are being tracked when they use their in-store “max” cards, or Preferred Customer cards in order to gain points for added discounts. “This is a way to get in touch with those customers if there is a product recall.”
“But not if they’re paying cash, or don’t have a card,” O’Shaughnessy countered. “Not everybody has those, because they choose to be anonymous.” She said they would be notified through the media in an emergency.
“The point is,” O’Shaughnessy stated, “is that the consumer should have the option. We know our customers very well. We can contact them immediately if there is a problem. That is by choice. Requiring that they have to leave their name, that they have to sign something, is certainly not going to bode well.”
O’Shaughnessy prefers that the responsibility remain that of the farmer, not the state, to warn their customers of any possible problems. Divincenzo believes it is a method to insure a quick notification, for the safety of the consumer.
O’Shaughnessy again used the example of customers at a grocery store who may have purchased bad meat, or the person that buys a head of lettuce at a farmer’s market that was tainted with E-Coli, who are not required to report their names to the producer or store.
One of the large dairy farmers said they are required to have the names of their customers, but Sheaffer said it is not the same thing. Because they pick up milk from their customers - several different farmers in bulk - they still do not have to report all the names of the customers at the store that happen to buy the milk bottled from that particular lot.
Dr. John Herrmann, Professor Veterinary Clinical Medicine/Director DVM/MPH at the University of Illinois, had the last word, using the CDC’s food outbreak database. He said that in Illinois, a raw, unpasteurized milk related report was recorded that 2 people had gotten sick in March 2010; 96 people reporting illness, with 36 hospitalized associated with salmonella in raw cheese in March 2006; and 18 people ill associated with raw milk consumption in January 2006. No other details of the incidents were reported by Dr. Herrmann.
In emails received after the Feb. 22 meeting, several members of the committee, the raw milk producers, have cited a few more studies that they say could contribute to the point of “if it’s not broke don’t fix it.” One is a CDC study that was published in March 2013 entitled “Attribution of Foodborne Illness, 1998-2008.” It points out that 46% of food borne illnesses caused by a single food (simple food) was from produce. Dairy was not specifically mentioned. Furthermore, even though the CDC admitted to produce causing near half of these illnesses, it is still endorsing the eating of unregulated, no permit required, produce.
Not a ‘Public Body’?
The Prairie Advocate (PA) received a response regarding its “Open Meetings Act (OMA) Request for Review” with the Public Access Bureau (PAB) of the Illinois Attorney General’s office on Tuesday afternoon, April 23. The Request for Review alleges that the IDPH did not comply with OMA concerning the posting of agendas for the Feb. 22 and April 4 meetings referenced in this series.
Darlene Linxwiler, who serves as the IDPH Freedom of Information Officer and Open Meetings Act Designee, stated that the PA’s request for the “IDPH - Farmers Market Task Force - Dairy Subcommittee” is “inaccurate in identifying a public body.” She stated that the Farmers Market Task Force is created by statute, and does not contest that it and any of its subcommittees are public bodies “pursuant to the OMA.”
“However, this statutory task force does not have a “Dairy Subcommittee,” Linxwiler stated. “Thus, the Requestor has identified a public body that does not exist.”
Linxwiler goes on to say that the IDPH “believes (but obviously cannot be certain) that the requestor meant to identify as a ‘public body’ the Dairy Subcommittee of the ‘Food Safety Advisory Committee (FSAC).’”
She went on to say that the FSAC is an informational body that the IDPH assembled to “receive information to assist it in building an integrated approach to food safety in Illinois.”
Despite the fact that the IDPH is operated by state employees, and funded with state tax dollars, Linxwiler claims that because the Dairy Subcommittee “has no formal authority to make recommendations to the [IDPH]” . . . “the Department takes the position that the FSAC and its subcommittees (including the Dairy Subcommittee) are not ‘public bodies’ as defined within the OMA.”
In the meantime, it has been noted that the January 11 and possible prior meetings held are also under scrutiny. It is important to note that the agenda for the May 1 meeting has been posted on the IDPH web site.
What’s next?
Renee Sheaffer Koster, the daughter of Leonard (quoted several times throughout this series), said in an email that “It seems to me that the Raw Milk Steering Committee has been a bit shady in its conduct. When I was trying to find out about the last meeting which was held on February 22, I had a very difficult time finding out about it . . . Illinois has an Open Meetings Act. When I looked on IDPH’s meeting schedule it was not listed and it was very unclear about if it was an open or closed meeting. Also, Donna (O’Shaughnessy) brought up that the committee could not produce a set of minutes to give her from the last two meetings that she did not attend.”
The PA had requested the same agenda and minutes from the January 11 meeting, as well as the agenda and minutes for the Feb. 22 meeting. On the morning of Feb. 22, in an email from Melaney Arnold, Illinois Department of Public Health Communications Manager, regarding the “IDPH - Farmers Market Task Force - Dairy Subcommittee,” she asked, “I understand you are inquiring about the dairy subcommittee. What questions do you have?” The PA was requesting the Conference Call-In and Access number for the meeting. Arnold sent it 12 minutes later, with no clarification or correction as to the proper name of the “Dairy Subcommittee.” The PA contends that the proper name of the committee would have been included, had they received the requested agenda and minutes, despite the fact that the IDPH claims that the Raw Milk Steering Committee does not need to comply with the OMA.
On March 19, Donna O’Shaughnessy contacted Molly Lamb, the Divison Director of Food Drugs and Dairies Department of IDPH, and spoke with her for about 45 minutes. A portion of her conversation is summarized here.
“I told her . . . our general reasons for not being able to support any changes in current IDPH proposed rules. I stressed those key points that were important to all of us, specifically, the requirement that all Raw Milk farmers have a Grade A permit, the limit of 100 gallons sold per month, and the elimination of cow share agreements. I clarified that to support any of those changes would, by process of elimination alone, affect numerous small farmers’ abilities to sell raw milk, produce income, support their families and communities, and maintain their farms.”
O’Shaughnessy said that Lamb disagreed, denying that any of the proposed rule changes were new, and stated that she and the committee wanted only to reorganize current rules in one document, as she had been instructed to do by her legal department.
“After pointing out to her - proposed rule by proposed rule - that ALL were indeed new, except two: the requirement that the consumer come to the farm for milk and the prohibition on advertising, she admitted that it was IDPH’s focus not to eliminate raw milk sales but to make them ‘safe’.”
When O’Shaughnessy asked again about the number of raw milk-related illnesses in Illinois, Lamb claimed that there were “several” and told O’Shaughnessy of one they were currently investigating, but no details of the case.
“She did tell me that Illinois Farm Bureau had contacted her and told her they would not support the 100 gallon limit suggested, but they still were in support of all the other changes proposed,” said O’Shaughnessy.
“I also discussed with her the large number of anti-raw milk proponents on the committee vs the one true raw milk farmer, myself, pulled in after two rule drafts were completed. [Lamb] responded that the department did ‘the best we could,’ and she felt that [the IDPH] had been ‘fair’ in representing all parties involved. She remains open to adding more committee members.
“When I reminded her of her statement that the committee would vote on May 1st regarding which proposed rules to send to her legal department, she clarified that she she mispoke, that a ‘vote’ would not be taken but rather ‘consensus of the group’.”
O’Shaughnessy said that Lamb “verbalized being disappointed that I seemed so ‘unwilling to compromise.’” O’Shaughnessy clarified that they did not see a reason to compromise on rule changes that:
1. Were not necessary in lieu of the fact there was no increase in documentation or verification of raw milk related illness;
2. Would affect raw milk farmers in a negative fashion, forcing them out of business or underground;
3. Would cause huge loses in revenue to the State as consumers would seek raw milk (and other products) in other states, as increased regulation would require increased IDPH staff to supervise, inspect, report, and regulate.
“In summary I told Lamb that I did not speak for all raw milk farmers in Illinois, but only for those I’ve been in touch with, and that we could not support ANY changes in the current IDPH rules for raw milk sales. Furthermore, we respectively requested that the rules be left as is, and if IDPH moved forward as indicated, we would be informing the public, our consumers, and all other raw milk farmers about the issue, and we would be present in large numbers at the May 1st meeting.”
O’Shaughnessy said that Lamb stated she would “share our conversation” with Steve Divincenzo, Public Service Administrator for IDPH, but “the wheels were already rolling” and she would not stop them.
“The conversation was much more detailed than this, but overall, it is clear to me that IDPH intends to move ahead,” O’Shaughnessy said. “They may allow a few more raw milk farmers and a raw milk consumer or two on the committee, but the May 1st meeting is the deadline [Lamb] wants to keep for the proposed rules to be finalized and sent to their legal department. The Grade A requirement is clearly, in my opinion, non-negotiable to them.”
O’Shaughnessy hoped that Lamb would contemplate their conversation, and while doing, suggested that the raw milk producers and consumers should submit at least 10 more names for consideration on the committee, “if for no other reason that to be able to relate factual information to the media, our consumers and the public in general as this committee moves forward.”
May 1 is the day the set for the IDPH Food Safety Advisory subcommittee’s Dairy Subcommittee meeting in Springfield. The Prairie Advocate will be present. Part 4 in this series will address that meeting.
