The expanding battle over raw milk has come to be seen by many advocates as a battle over food rights.

Do we have a right to consume the foods of our choice? Or can the government restrict our access, or require processing and/or sterilization of certain foods, and simultaneously prohibit our access to the raw variety (as in milk, fruit and vegetable juices, almonds)? This is an issue that promises to become ever more prominent if food irradiation, already approved by the FDA for meats and leafy green vegetables, spreads in popularity by food producers.

Unfortunately, the U.S. Constitution doesn’t mention food. To food rights advocates, that’s because the framers of the constitution didn’t see the need-all foods were readily accessible in unprocessed form in those days, including milk. But to proponents of more control, the absence of a mention in the Constitution simply means that the framers were reserving the matter of foods for the legislators and regulators.

Government officials haven’t had much to say on the subject, aside from Rep. Ron Paul, who has sided with the raw milk advocates as a matter of individual rights. But now, the U.S. Food and Drug Administration has come out with a remarkable statement against any notion that consumers have an inherent right to the foods of their choices. Indeed, the FDA even questions whether we have “a generalized right to bodily and physical health.”

The FDA makes its case in a 30-page legal brief that amounts to a legal rebuttal to a suit filed in February by the Farm-to-Consumer Legal Defense Fund on behalf of raw milk consumers in half a dozen states, challenging the federal prohibition on transporting raw milk across state lines.

The FTCLDF in its suit had argued that the FDA’s ban on interstate shipment and sale of raw milk in effect deprived consumers in five states and a food buying group owner in Georgia of a number of constitutional rights. The suit charged that “all Plaintiffs are being deprived of their fundamental and inalienable rights of (a) traveling across State lines with raw dairy products legally obtained and possessed; (b) providing for the care and well being of themselves and their families, including their children; and (c) producing, obtaining and consuming the foods of choice for themselves and their families, including their children.”

At stake, it said, are “the Constitutional Right to Travel; the Constitutional Right of Privacy; the substantive due process clause of the Fifth Amendment of the United States Constitution; Article 1, Section 1 of the United States Constitution (the Separation of Powers/Non-delegation doctrine)…”

In countering each of the FTCLDF’s points, the FDA lawyers cite a variety of legal precedents they say upholds the agency’s right to prohibit raw milk shipments across state lines. It suggests that the interstate prohibition is merely one tactic at its disposal, that it could actually be doing more to limit raw milk availability. It notes that “the government has neither brought nor threatened to bring a single enforcement action against consumers who purchase unpasteurized milk for personal consumption or retailers of such products who do not engage in interstate commerce.”

The FDA even suggests that it is being benevolent by not banning raw milk entirely, pointing out that the 1987 court decision that led it to implement a ban on interstate shipment and sale of raw milk asserted “that ‘it is within HHS’s authority…to institute an intrastate ban as well… FDA could have…prohibited intrastate sales but concluded ‘that State and local authorities may be better situated to deal with the public health problems attributable to unpasteurized milk.'” Thank you, thank you, most wonderful FDA.

The brief is most notable for its view of the evolution of food safety regulations, and the emerging issue of food rights. In the FDA’s view, an assortment of court decisions backing up federal legislation give it pretty much carte blanche to decide what food is safe. This is a view that pre-dates the U.S. Constitution, in the view of FDA lawyers-turned-historians. It says that “there is no ‘deeply rooted’ historical tradition of unfettered access to food of all kinds… To the contrary, society’s long history of food regulation stretches back to the dietary laws of biblical times…Modern food safety regulation in the United States has its roots in the early food laws of the American colonies, which themselves incorporated ‘the tradition of food regulation established in England.'” The brief then cites an 1873 Virginia law “that ‘made it an offense . . . [to] knowingly, sell, supply, or bring to be manufactured . . . milk from which any cream has been taken; or milk commonly known as skimmed milk’).'”

Yes, you read that FDA example correctly. Virginia prohibited sale of milk that had been fooled with in any way, such as removing cream. Under such a regulation, pasteurization and all the other things done to modern milk would be illegal. As they say, what’s wrong with this picture?

The current prohibition on interstate raw milk shipments was implemented by FDA, according to the brief,  “in 1987, after spending thirteen years collecting and evaluating scientific information regarding the health risks of unpasteurized milk, holding a public hearing that resulted in over 300 comments, and…ultimately concluding that consumption of these products was linked to the outbreak of serious disease.” The brief neglects to mention what I describe in The Raw Milk Revolution–that among these hundreds of comments were many in favor of raw milk, and against the interstate prohibition. How could the FDA lawyers have missed that?

It gets worse. In recounting its version of the history of food safety and regulation, the brief concludes, “There is no absolute right to consume or feed children any particular kind of food.” The basis? “Comprehensive federal regulation of the food supply has been in effect at least since Congress enacted the Pure Food and Drugs Act of 1906… Thus, plaintiffs’ claim to a fundamental privacy interest in obtaining ‘foods of their own choice’ for themselves and their families is without merit.”

Bet you didn’t realize this, but according to the FDA lawyers, “There is no generalized right to bodily and physical health.” Here’s the rationale. The claim in the FTCLDF suit is “similarly unavailing because plaintiffs do not have a fundamental right to obtain any food they wish.” Guess if you can’t get healthy food, you automatically lose the right to bodily and physical health.

I kept trying to remind myself this is a legal document as I tried to make sense of the lawyers’ efforts to link the question of our right to bodily and physical health to Supreme Court pronouncements on abortion and end-of-life rights. But the whole issue of a right to bodily and physical health is moot in any event, since Big Brother is there watching over us: “Finally, even if such a right did exist, it would not render FDA’s regulations unconstitutional be
cause prohibiting the interstate sale and distribution of unpasteurized milk promotes ‘bodily and physical health.'” Got that? The whole issue of rights is irrelevant since FDA has decreed that pasteurized milk is health-giving and raw milk is dangerous. Well, guess we can all go home now and enjoy our pasteurized milk, and any other processed food the FDA determines promotes bodily and physical health.

Essentially, the FDA seems to be saying to the court: Congress gave us the authority to oversee the food supply, so we’re the ones in charge here. We decide what foods people have a right to eat, and we decide what is health giving. And don’t forget it.

One other thing: these rights-respecting people at the FDA are going to be getting a whole lot of additional power if so-called food safety legislation (Senate bill 510) passes, and together with previously passed House legislation (HB2749), is signed into law.