Raw Milk Regulations Sought by IDPH:
Consumer Protection or Producer Restriction?

Part 1 Part 2 CLICK HERE, Part 3 CLICK HERE, Part 4 CLICK HERE, Part 5 - CLICK HERE

By Tom Kocal | Prairie Advocate News

The Illinois Department of Public Health (IDPH) says it’s just doing its job; that they want only to reorganize current rules regarding the production and sale of raw milk into one document, as instructed to do by their legal department. A few of the recommendations developed in the past few months include the requirement that all Raw Milk farmers have a Grade A permit, be limited to 100 gallons sold per month, and the elimination of cow share agreements.

But other members appointed to the Raw Milk subcommittee - notably the members that either produce and sell raw milk or who purchase the product - do not see any reason to compromise on rule changes that they say are not necessary in lieu of the fact there was no increased documentation or verification of raw milk related illness. They also believe that new laws would only affect raw milk farmers in a negative fashion, forcing them out of business or underground, as well as cause huge losses in much-needed revenue to the State. Consumers, they contend, would seek raw milk (and other products) in other states because of the increased regulations that would simply require increased IDPH staff to supervise, inspect, report, and regulate.

The IDPH proposal

The IDPH Food Safety Advisory Committee held the third meeting of its Dairy Subcommittee on February 22, 2013, as a conference call. During the introduction to new participants, Steve DiVincenzo, Public Service Administrator for IDPH, who moderated the meeting, said “One of the issues we are addressing is the Raw Milk For Sale issue . . . this is just the first step, as far as these draft rules are concerned. There may be many changes made before they actually come to fruition as final rule as presented to JCAR (Joint Committee on Administrative Rules).”

JCAR, composed of 12 Illinois legislators who are appointed by the legislative leadership, is a bipartisan legislative oversight committee created by the Illinois General Assembly, and is authorized to conduct systematic reviews of administrative rules promulgated by State agencies. JCAR conducts several integrated review programs, including a review program for proposed, emergency and peremptory rulemaking, a review of new Public Acts and a complaint review program.

Two purposes of JCAR are to ensure that the General Assembly is adequately informed of how laws are implemented through agency rulemaking and to facilitate public understanding of rules and regulations. JCAR monitors legislation that affects rulemaking and conducts a Public Act review to alert agencies to the need for rulemaking.

“Once we finalize our draft rules here, they will be presented to the Illinois Food Safety Advisory Committee (IFSAC), who will make their recommendations to the legal department,” DiVincenzo said.

“The rules will then be presented to the Rules Committee of the Board of Health for their stamp of approval,” said Molly Lamb, Division Chief of the IDPH Division of Food, Drugs and Dairies. “It will then go to the full state Board of Health.”

“After that, there are two-45 day public comment periods,” DiVincenzo explained, “before the rules are finalized. Basically, we are just getting a start on this.”

DiVincenzo said the reason for pursuing these rule changes/additions was because the statutory language was very broad. They are attempting to specify Raw Milk Rules For Sale to make it more clear to the public and the producers. He explained that there are different sections of the rules that have parts of what they incorporated into their present statutory language.

At this point, they reviewed the “Second Draft Amended Rules for the Sale of Raw Milk,” updated from the Jan. 11, 2013 meeting. DiVincenzo stated that their main goal was to, by the end of May, finish the review and have the final draft ready for the IFSAC and get it approved in order to submit it during the fall regulatory agenda.

At this point, DiVincenzo said that there would be no meetings during March or April, but would meet in early May (the committee is slated to meet May 1 in Springfield). Several members of the committee, representing the Raw Milk producers, wondered why they were first invited to participate at the January meeting, then received a “Second Draft” of the Amended Rules for the Sale of Raw Milk. When was the first meeting?

The debate

DiVincenzo proceeded to the point where they left off in January - section f) of the draft, as well as other considerations and comments made about sections a) through e). Section f) addresses the proposed testing for several pathogens on a monthly basis, in a certified laboratory, then submitted to the Regulatory Agency. The group agreed to test for salmonella, rather than staphylococcus.

When the discussion began regarding f)1, which states that the raw milk samples shall be collected by a certified state evaluation officer, Leonard Sheaffer, a retired farmer and dairy producer for over 25 years, who has a daughter who is currently milking 7 cows and “has a lot of customers,” asked if there had been any problems with people getting sick from raw milk.

“Umm, yes, historically, yes,” said DiVincenzo.

“Historically; I mean in the past couple of years. Usually the [reports] hit the news media. I haven’t seen anything. I’m just curious,” Sheaffer said. “My point is, the people that buy raw milk are very fussy people. Every time they come to get milk they have an opportunity to inspect the farm. If the milk is not quality, it’s not going to keep, and most people buy milk once-a-week. If the bacteria count or cleanliness is not there, [the milk] will just turn sour, people will complain, and they are not going to buy the milk.

“I think this is self-regulating. I understand that the average consumer does not have the opportunity to inspect a [commercial] dairy farm. That’s why we have inspectors, to test their milk for quality.”

“Right,” DiVincenzo stated. “But there has been food borne illness outbreaks associated with raw milk.”

Donna O’Shaughnessy, who operates South Pork Ranch LLC in Chatsworth, IL, has been selling raw milk to customers for several years. Addressing the outbreaks comment, she stated, “It is my understanding that since at least 1999, there has not been a single outbreak that has been verified to be caused by an Illinois raw milk producer. I think it is really important that we don’t talk about ‘historical data’ unless we have true, specific data, and much of this data comes from CDC (Center for Disease Control) itself. Here in Illinois, currently, we just are not having a problem with food borne illnesses related to raw milk - unless you at IDPH have specific cases that we are not aware of.”

Larry Terando, who identified himself as being with the FDA (Food and Drug Administration), asked if they had seen any of the “outbreak information from Indiana, Michigan, and Wisconsin? They are not Illinois, but they are right next door. How specific are you going to get about narrowing down a geographical region, when we are talking about Listeria, which can cause pregnant women to lose their unborn fetus. There’s Campylobacter, Salmonella, E. Coli. . . . we’re not just talking about a stomach ache, or diarrhea.”

“I understand that,” O’Shaughnessy replied. “I’m a Registered Nurse for 25 years. Certainly, any time one person gets one of those illnesses, it needs to be taken seriously. But even though there have been some cases in other states, again, I think you have to look at the percentage of that, compared to other food borne illnesses.

“For example, it has been proven that on a per serving basis, deli meats are 10-times more likely to cause an illness than raw milk. So, do we eliminate all deli meats for sale? Or do we just work to improve safety of deli meats?

“In addition to that, you’ve got poultry problems,” O’Shaughnessy continued. “36% of food borne illnesses are related to poultry issues, yet the State of Illinois allows the farmer to process up to 20,000 birds on their own property without a permit. My point is - not that people can’t get sick or won’t get sick from raw milk - what we decide to do in this committee needs to be relative to the amount of people getting sick, instead of focusing on the fear-mongering aspect of it. We need to focus on educating the consumer, and the dairy farmer as well, so we can produce a better raw milk product.”

DiVincenzo agreed, saying that at a prior meeting it was suggested to produce an educational fact sheet for the consumer and producer. “I thought that was an excellent idea,” but he acknowledged that they have not begun to work on that concept yet. He said the points brought up by Sheaffer and O’Shaughnessy were “valid,” but stated that “we already have statutes in place allowing for the sale of raw milk. We decided early on that trying to ban this, or getting this statute removed, would require legislative action, which we did not feel was going to get anywhere. Rather than do that, we’re trying to clarify the existing statute concerning the sale of raw milk. A lot of these points in the documents come from research from other states that allow the sale of raw milk, patterned after existing rules and regulations that are already in place.”

DiVincenzo again mentioned the “excellent study” done by both Wisconsin and Indiana that “were very good guidance documents,” and that the IDPH was looking to include some of these recommendations as well.

“I’m not going to dispute the point that there are issues . . . with other types of products . . . that have food borne illnesses involved, I understand that,” DiVincenzo replied. “But what we are trying to do here is just to clarify the existing statutes, and to protect the public, as this is the health department’s goal in this respect.”

DiVincenzo said that section f)1 is already being enforced with Illinois’ Grade A producers, and manufacturer producers. The issue with sampling conducted by a certified sampler has to be done with both raw milk and Grade A producers. “We’re going to try to mirror those as far as what we do to make sure everybody is basically being treated the same.”

Leslie Cooperband with Prairie Fruit Farms in Champaign said, “I understand what IDPH is trying to do in terms of clarifying the rules to make them less ambiguous. But what Donna (O’Shaughnessy) and Leonard (Sheaffer) are also referring to is what impact this will have on the people who are currently selling raw milk and doing it responsibly. Are we going to be creating a situation that essentially would require them to have a Grade A permit? It really is excessive and burdensome, because most of the people we are talking about, like Leonard’s family member that has seven cows, will be affected by the excessive cost to become a Grade A dairy.

“And with the testing requirement, who is going to pay for the testing? Right now, with our current permit, the State is paying for this type of monthly sampling. I am wondering if the State has the resources to conduct this monthly testing for farms that are selling raw milk, but are not licensed as either manufactured milk processing facilities or Grade A dairies.”

DiVincenzo responded, saying that Lamb will need to discuss this issue with IDPH personnel at the Division Laboratory to see if it is possible for them to conduct the testing. For the routine samplings concerning the bacteria counts and somatic cells (somatic cell count is an indicator of the quality of milk) and drug residue, DiVincenzo suggested that if you are a member of a coop, they generally have certified laboratories available for testing.

“Granted, this pathogen testing is an additional safeguard, as I would consider it, because there are pathogens that may be present in raw milk. Again, our goal as the Health Dept. is concerned, is to make sure we produce the safest product that we possibly can, without getting ill.”

Regarding the reporting of outbreaks of food borne illnesses, DiVincenzo stated that one in ten incidents were actually reported, from both raw and pasteurized milk.

“If you get a stomach ache, or nauseated, you may interpret it as caused by something else, and not necessarily what you ate. It may be minor enough that it’s not actually reported to the Health Dept., or to some other type of agency, where it would be made known to everybody. These things are basically under the radar. I don’t have any that are, but certainly, I’m sure they do exist.”

Sheaffer countered, stating “We have customers that cannot drink pasteurized milk.” He explained that personally, he pasteurized his milk when he was in the dairy business. But people tell him that when they drink pasteurized milk, they get sick; when they drink raw milk, they don’t, because they say enzymes and other bacteria are killed during the pasteurization process.

“All those people are ‘under the radar,’ too,” he rebutted.

Sheaffer went on to say that although these regulations are meant to protect the consumer, part of the reason they are being developed is because there is a segment of the dairy industry that simply wants to do away with raw milk availability.

“We found out about this meeting a week ago (Feb. 14) and we had fits; we couldn’t find it on the IDPH web site. We called our state legislators, and they didn’t know anything about it. I think if this is to ‘protect’ the consumers, it would be nice if the consumers would be able to listen to what these regulations are, because most of the people that we are aware of do not want these regulations. I do not think they want to be ‘protected.’ They believe they are doing the job themselves, and they judge the quality of the product from who they are buying it from. My daughter has had people who say they do not want to buy milk from her, for one reason or another. But those are very few.”

Molly Lamb then addressed the fact that this was, indeed, an open meeting. She said the committee has been undergoing a “structural shift/change,” and that the “Committee is not legislatively, or statute-driven, meaning that we’re not [subject] to all the mandatory requirements of the Open Meetings Act, etc. However, we do also understand the importance of engaging all the partners and stake holders up-front in the processes of discussing some of these very controversial issues, such as what we are discussing today. Publishing on the web site, the overall committee agenda is published; we meet quarterly, and we are finalizing by-laws next month.

“I spoke with each Chair, which are program managers that report to me directly in the division here, about the need to eventually have all the meeting dates published also on the web site, for the public to see. We’re trying to get organized and get underway here, under the structure that we’ve been working to finalize the past 6 months.”

Lamb then reiterated several point made by DiVincenzo. “We understand both sides of the story. That’s why we are trying to engage all the stake holders, and try to listen as best we can to make this work holistically for everyone. There is regulation - it’s just piece-mealed all over the place. What we’re trying to do, as we’re the regulatory authority, and to make sure we’re doing what we’re supposed to be doing, we’re just trying to make it clear.”

Lamb spoke to LESLIE’s point, stating that it is hard for the IDPH to gauge any costs right now, because the raw milk producers are not mandated to have a permit.

“We really have no idea of the amount of farms selling raw milk. We would not be able to give you a number right now. That is one part that we are trying to get under control, too; we really don’t know.

“This is not going to be an easy process. We’d like to try to finalize this within the next couple of months, but if it doesn’t happen, we want to do what’s right. We want to do quality work here. We want to continue to have these conversations and just try to, on behalf of the regulations, and on behalf of the department, make sure that we’re doing what we’re supposed to do, and we’re becoming a little clearer in our procedures, as written in rules, which is our legal basis.”

Addressing the Grade A requirements, DiVincenzo said that the IDPH wants to make sure the milk is of a sanitary quality, and that the environment for the cows themselves are in compliance with the Grade A program.

“That’s more stringent, but as far as we’re concerned, this is, again, part of protecting the public.”

He said that the vast majority of producers in the State of Illinois - over 90% - are able to meet the Grade A standards. “It would be incumbent upon us to have these standards for all of the dairy farms, especially for those individuals producing raw milk.”

DiVincenzo did acknowledge that there was no correlation between the number of bacteria found in milk compared to the number of pathogens. “The number of bacteria does not relate to pathogens. You can have a million bacteria and no pathogens, or you can have a small number of bacteria count and may end up with some pathogens.”

O’Shaughnessy is concerned about the requirement for the Grade A permit, simply because the IDPH has no idea how many raw milk dairy farmers are in the state.

Watch next week’s issue for Part 2 of this report that will include what some of the corporate dairy representatives at the committee meeting on Feb. 22 have to say. Part 2 will also have comments and more information about the April 4th meeting.

The Prairie Advocate filed an “Open Meetings Act (OMA) Request for Review” with the Public Access Bureau (PAB) of the Illinois Attorney General’s office on April 5. A letter from Shari West, Assistant Attorney General PAB, sent to the IDPH Freedom of Information Act Officer Darlene Linxwiler and cc’d to this newspaper on Monday, April 15, states the PAB concludes that “further inquiry is warranted in order to determine whether the [IDPH] violated the requirements of OMA.”

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 article. Section 2.02(a) of OMA provides that “A public body that has a web site . . . shall also post on its website the agenda of any regular meetings of the governing body of that public body.” In the meantime, it has been noted that the January 11 and possible prior meetings held are also under scrutiny.

West asked IDPH to provide a written response to the allegations within 7 working days after receipt of this letter, which may or may not be included in next week’s Part 2.