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Farmer-Consumer Group Challenges FDA Authority to Ban Interstate Raw-Milk Sales

The Farm-to-Consumer Legal Defense Fund is taking on the Big Enchilada in the raw milk war: the U.S. Food and Drug Administration's prohibition on interstate shipment of raw milk.

The FTCLDF filed suit over the weekend in U.S. District court against FDA commissioner Margaret Hamburg, and the secretary of the FDA's parent agency, Health and Human Services, Kathleen Sebelius, challenging the constitutionality of the agency's prohibition, enacted in 1987. It filed the suit on behalf of consumers and a farmer from six different states; the consumers all travel from states where raw milk sales are illegal to buy it in states where it's allowed for sale and the farmer sells to out-of-state consumers.

The suit is notable for seeking to shift the focus of the interstate raw milk prohibition to consumers from farmers, where the FDA has focused its efforts, most notably in prosecuting the largest raw dairy in the country, Organic Pastures Dairy Co. in California, for selling milk outside its home state. The agency was behind a criminal case against the dairy, which ended with a guilty plea last year and an agreement by the dairy to confine its sales to California, and a civil case, which is still pending. The agency has also been active behind the scenes in urging crackdowns on raw milk in Michigan, Ohio, Wisconsin, Pennsylvania, and New York, among other states.

The case is also notable for the FTCLDF, which was formed less than three years ago to counter an aggressive FDA-led campaign against raw milk producers that began in 2006. While the legal organization has filed suits against state agriculture officials on behalf of raw dairy farmers in New York, Wisconsin, and California, as well as a suit against the U.S. Department of Agriculture on behalf of farmers affected by the National Animal Identification System (NAIS), this is its first encounter with the FDA, and as such, definitely the biggest case in its brief history.