Schmidt in January 2010, after winning his court case.

Now, he says, he wants a personal meeting with Ontario’s premier, Dalton McGuinty. If he doesn’t get the meeting? “I am prepared to go all the way,” he says.

As of the start of this week, the hunger strike has mushroomed into a major drama in both Canada and the U.S. Many in the raw-dairy-centered “food rights” movement see Schmidt as their spiritual leader after he spent the last two years defending himself in Ontario courts, as well as traversing the U.S. and Canada speaking about what he sees as the stonewalling by public health authorities over raw milk availability and safety. Some supporters have tried hard to dissuade him from the hunger strike, worried that his sense of commitment could lead to his death, but he has steadfastly held to his tactic.

The office of premier McGuinty says the matter of a meeting with Schmidt is “under review,” according to a press spokesperson. When might the review be complete? “I wouldn’t want to speculate on that,” he says.

Schmidt’s reputation received a major boost in early 2010, when he won a case brought by Ontario public health officials and the Ministry of Natural Resources, under the direction of the Ontario Attorney General. He served as his own lawyer, and a judge ruled that because Schmidt’s herdshare members were privately organized, they fell outside the Ontario prohibitions on raw milk. The Ontario authorities appealed, though, and an appeals court reversed the decision earlier this month. Schmidt appealed further, and launched the hunger strike.

In just the last few days, a Facebook page called Support Michael Schmidt has blossomed from a few hundred to nearly 4,000 members, and the office of Premier McGuinty has been inundated with calls and emails. McGuinty’s staff has taken to removing messages of support for Schmidt on the premier’s own Facebook page.

The drama being played out in Canada is occurring against the backdrop of a number of recent incidents involving proponents of raw dairy, primarily in the U.S.

For example, the U.S. Food and Drug Administration has declared, in response to a federal suit by the Farm-to-Consumer Legal Defense Fund, that we “have no absolute right … to any particular food.” The strong message is that the government is the final arbiter of which foods are safe and unsafe.

The FDA stated in the same legal brief that it enacted a prohibition on interstate sale of raw milk in 1987 “after spending 13 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.”

As if to echo the FDA’s argument, a Wisconsin judge several weeks ago issued a ruling against two raw milk dairies in the state, not only declaring their operations illegal, but concluding, in part, that the plaintiffs “do not have a fundamental right to own and use a dairy cow or … a fundamental right to consume the milk from their own cow.” 

San Diego County’s Department of Environmental Health has lobbied against a city proposal to allow residents to keep miniature goats, arguing that milk from the goats present a potential health risk. In a letter to the San Diego City Council, the county department noted that the U.S. Centers for Disease Control has issued an advisory “that specifically states, ‘To protect the health of the public, state regulators should continue to support pasteurization and consider further restricting or prohibiting the sale and distribution of raw milk and other unpasteurized dairy products in their states.’”

As if to underscore these restrictive interpretations of food rights, government agencies have targeted other food clubs and farms that privately supply consumers with nutrient-dense foods. Earlier this year, for example, the FDA assigned agents to carry out an undercover sting operation involving a Maryland food club of 2,000 people. It resulted in a federal suit against an Amish farmer in Pennsylvania who had been supplying the club with raw milk. In bringing felony criminal charges against three associates of Rawesome Food Club in Venice, Calif., last August, the Los Angeles County District attorney accused the three of not only selling raw milk illegally, but of mislabeling eggs and meat products, as well.

The outrage among the Maryland food club members led them to team with other activists to form a new food rights organization of their own called the Farm Food Freedom Coalition. The new organization is planning an intentional violation of the federal prohibition on interstate sale and distribution of raw milk via a Raw Milk Freedom Riders caravan that will travel from Pennsylvania to Maryland next Tuesday. The scheduled guest of honor at a rally to follow in front of the FDA’s headquarters will be Michael Schmidt. That is, if he’s still able to make the trip by then.

Regardless, Schmidt is raising the profile of the movement, and posing a major question in the process: Are food rights worthy of giving your life for? 

President Obama has been talking up rural job creation even as his regulators discourage it.Photo: Will Merydith

It was refreshing because it was a stark contrast to covering the crackdown around the country by the U.S. Food and Drug Administration and other agencies on producers and distributors of nutrient-dense foods — in California against Rawesome Food Club and the operators of small raw dairy herdshares, and in Pennsylvania against Amish farmer Daniel Allgyer and the Maryland food club he serves. These actions, taken without the impetus of illnesses, or even food contamination, have come at huge costs in scarce budget dollars to finance intensive undercover investigations. Perhaps more significant, the enforcement actions dampen competition, and obliterate jobs.

At Rawesome alone, more than a dozen farmers and food producers have lost a key outlet for their production while the food club is shut down. When food producer revenues disappear, so do jobs.

One of the many ironies in the recent food-crackdown events is that on Tuesday, President Obama was talking up the importance of “rural economic development” at an Iowa conference. According to the Des Moines Register, “Obama announced a handful of initiatives Tuesday that he said would help foster rural economic growth. One would pump an additional $350 million in capital over the next five years to rural businesses, double the previous amount.”

The call for more funding of programs to add jobs in rural areas while his regulators are demolishing them in droves seems, somehow, the height of cynicism. The most significant irony may be that increasing numbers of today’s young people, discouraged by the lack of job opportunities in so many areas of the country, are attracted to the romance of farming. The New York Times‘ Mark Bittman describes this trend, inspired heavily by the success of Maine farmer Eliot Coleman and his all-season growing strategies.

But armed raids on private food clubs can only dampen this healthy trend that inevitably creates jobs. Who wants to enter an industry where regulators, on a whim, can and do cause death via a thousand cuts, and, at worst, throw food producers into jail? These actions are meant to intimidate producers, and would-be producers, at a time when our country can least afford to be trashing jobs and opportunity.

The Los Angeles County district attorney issued a criminal complaint, growing out of a year-and-a-half undercover operation, against James Stewart, the manager of Rawesome, along with Sharon Palmer, the owner of a farm that supplied Rawesome with eggs and chickens, and Victoria Bloch, an assistant to Palmer. The judge who finally released Stewart and Bloch (Stewart on $30,000 bail and Bloch on her own recognizance) clamped gag orders on the two and prohibited Stewart from being involved in raw milk sales and distribution. (Palmer was released separately, on $60,000 bail, a few days later.) The judge also indicated that Rawesome, because it had no permits (based on its contention that it is a private club), might be a legitimate target of Los Angeles officials aiming to shut it down.

Needless to say, many of the 2,000-plus members of Rawesome are extremely upset. Now, they have joined forces with members of a Maryland food club, Grassfed on the Hill, to form a new national association of food clubs, the Farm Food Freedom Coalition, intended to fight the federal and state crackdowns on private food groups and farmers. Grassfed on the Hill was hit with a 13-month undercover investigation by the U.S. Food and Drug Administration that resulted in an Amish farmer in Pennsylvania being sued in U.S. District Court, with the U.S. Justice Department seeking a permanent injunction preventing him from supplying the Maryland club.

Moreover, two of the defendants in the Rawesome case (Stewart and Bloch) are being represented by lawyers with the firm headed by Christopher Darden, who helped prosecute O.J. Simpson. Perhaps more to the point of the Rawesome case, he spent 15 years in the Los Angeles County district attorney’s office. Sharon Palmer is being represented by Ventura lawyer Matt Bromund. (Bloch is also being represented by Gary Cox, a lawyer with the Farm-to-Consumer Legal Defense Fund.)

And in a related case, three shareholders in a California herdshare arrangement — similar in certain respects to the Rawesome arrangement challenged by the Los Angeles County district attorney — have launched a suit against the California Department of Food and Agriculture along with the Santa Clara County district attorney. The suit is in response to a California Department of Food and Agriculture and district attorney cease-and-desist notice sent last April to the owners of the San Jose farm, Evergreen Acres.

According to the Farm-to-Consumer Legal Defense Fund, which filed the case, the suit “asks for a declaration by the court that [the shareholders] have the inalienable right to purchase, own, possess, and use a goat, that they have the inalienable right to consume the raw milk produced by their goat, and a declaration that they have the inalienable right to contract with the [San Jose farm] to board, care for, and milk their goats. The suit asks for a permanent injunction against the State of California and Santa Clara County, preventing defendants from commencing or continuing any enforcement action against plaintiffs ‘or against anyone else in California who wishes to engage in the conduct engaged in by plaintiffs.’ “

The new Farm Food Freedom Coalition organized by the California and Maryland food clubs is noteworthy because it is heavily represented by mothers among its organizers. Liz Reitzig, mother of five, says that while there are a number of organizations focused on food rights, “most are geared toward farmers. We want to give consumers more of a voice.”

The fact that it’s mothers leading the charge should give the bureaucrats and lawyers at the FDA and Los Angeles County district attorney cause for concern, says Mark McAfee, owner of Organic Pastures Dairy Co., the largest raw milk producer in the country. “Moms from the east and west coast and everywhere in between are uniting,” he says. “If a coalition of moms take on the behemoth FDA over food rights … oh Jesus.”

The consumers obtained the milk via a private food club that arranged delivery of the milk from South Carolina, where raw milk can be legally sold, to North Carolina, where it can’t.

A couple things were notable about the press release. First, it was issued on a Saturday, which isn’t normally an FDA workday. That suggested it was an urgent public safety matter … except that the illnesses occurred in mid-June.

Second, it was put out on PR Newswire, the largest, and most expensive, news release distribution service. Press releases on this and other services are priced [PDF] based on length: $715 for the first 400 words, and $195 per each additional 100 words — or $2,470 to issue that release. (According to an FDA spokesperson, the FDA has a contract with PR Newswire that presumably discounts the cost some, but she says it would take a Freedom of Information Act request to possibly elicit the details of that contract.) The FDA’s press release ran 1,214 words, not because the North Carolina situation was so complicated to explain, but because the FDA chose to include lengthy statements warning about the dangers of raw milk, and seeking to answer raw milk proponents. “Proponents of drinking raw milk often claim that raw milk is more nutritious than pasteurized milk and that raw milk is inherently antimicrobial, thus making pasteurization unnecessary. There is no meaningful nutritional difference between pasteurized and raw milk, and raw milk does not contain compounds that will kill harmful bacteria.”

The fact that the release was put out on a slow news weekend during the summer, by the most prominent PR news distribution service, increased the chances it would get picked up by the mainstream media, and indeed, a number did pick up the story, beginning with local newspapers and television stations.

The obvious question that comes up is: Does the FDA give this much attention to other foodborne illnesses? There are hundreds of foodborne illness outbreaks each year, from tainted sausages at church breakfasts, to bad pastries made at popular bakeries, to contaminated melons and other produce distributed by major corporations.

The FDA says there was nothing unusual in its scheme of things for putting out the North Carolina food contamination press release the way it did. All its press releases are posted on its site and placed on PR Newswire, a spokesperson says. As for the Saturday issuance, the spokesperson insists, “When there is a public health issue, FDA puts out a press release as soon as possible, regardless of whether it’s a normal workday or a weekend.”

Moreover, the spokesperson says, the FDA has issued press releases warning of other foodborne illness cases. She points to a press release warning people not to eat a particular brand of sprouts, based on 20 illnesses in five states; one warning people not to eat oysters from an area of Florida; and another warning of hazelnuts tainted with E. coli 0157:H7 that sickened seven people from four states.

But all those cases involved public distribution, via retailers or restaurants, of products found to be currently contaminated. The milk distributed in North Carolina wasn’t distributed via public channels, but rather through a private club within the state. And the South Carolina dairy where the milk was produced hadn’t been found to be contaminated, and the instances of people who might have become ill had occurred a month earlier.

The FDA tends not to issue press releases in cases in which the threat from illnesses is thought to have passed. Many of these other cases are broadcast on the websites of product liability lawyers. As one example, the Marler-Clark law firm summarized outbreaks involving tainted bakery and cantaloupe products earlier this year –which resulted in numerous illnesses — yet neither rated an FDA press release.

Why would the FDA feel compelled to get the word out far and wide about a relatively small, locally confined outbreak of food-borne illness that for all practical purposes ended a month earlier? It turns out there are two reasons, both having to do with the political hot potato that raw milk has become.

The FDA has a case pending in federal district court, filed in April, in which it is seeking a permanent injunction against an Amish farmer for serving a private food club that brings raw milk from Pennsylvania to Maryland. That case has been very controversial, and inspired a boisterous demonstration in Washington two months ago, featuring a cow outside the Capitol.

The FDA is also the target of a lawsuit filed by the Farm-to-Consumer Legal Defense Fund, which challenges the legality of the FDA’s ban on interstate sales of raw milk. The FDA has been unsuccessful thus far in its efforts to have the case thrown out, and perhaps has become frustrated in the process.

What makes the FDA’s press release last weekend especially ironic is that FDA warnings about raw milk seem to spur sales; many raw milk producers I’ve spoken with say that every time the agency puts out warnings about raw milk, they see a bump in sales.

CNN is milking the raw dairy angle for all it’s worth.

The “other shoe” is for some scientist or government public health official to seek to link the European tragedy to the battle here over raw milk.

Sound crazy? I’d say. Verge on the paranoid? Definitely. After all, among all the culprits publicly linked to the tragedy — cucumbers, tomatoes, and, most recently, sprouts — dairy products of any kind have been noticeably absent.

But sure enough, it finally happened, and from CNN no less. The major media outlet published an editorial that sought to elucidate lessons from the European outbreak, and the key lesson turns out to be that the U.S. should ban raw milk (and raw juices). “Though it (the European outbreak) is not a reason to panic, this incident should force us to rethink some important food safety issues,” the editorial began. “One good place to start would be to completely ban the sale of raw milk and juice.”

If you’re going to ban any food (and I have a difficult time imagining finding justification to do that), wouldn’t you think it would be sprouts, which has been most definitively linked to more than 2,000 European illnesses, and 36 deaths? But then, logic isn’t the strong suit of those obsessed with depriving 10 million Americans of the unpasteurized dairy products they enjoy. (More than 3 percent of the population regularly consumes raw dairy, according to federal data [PDF].)

Nor is reasonable statistical analysis part of the argument. The author, Alex Berezow, who is identified as “a Ph.D. in microbiology,” puts forward a bunch of half truths to make the CNN case.

“Unpasteurized milk has a greater chance of being contaminated with disease-causing bacteria than pasteurized milk,” writes Berezow.

But the reality is that dairy overall is one of the safest product categories around, according to the Center for Science in the Public Interest, with milk and milk products accounting for fewer than 1 percent of total outbreaks [PDF]. Yes, raw dairy is riskier than pasteurized dairy for carrying pathogens (and many of us who favor the availability of raw milk readily acknowledge this), but the reality is that neither food is especially dangerous. Raw dairy causes between 50 and 150 reported illnesses each year — this out of a total of between 20,000 and 25,000 illnesses reported by the U.S. Centers for Disease Control each year (there were 21,244 reported in 2007, the last year for which data is available). (And pasteurized milk does cause illnesses as well — as recently as 2007 it killed three people in Massachusetts.)

Then the editorial states that “raw milk could cause a massive E. coli outbreak within a single state.” We have had large-scale E. coli outbreaks in this country, involving ground beef and raw spinach, for example, but never involving raw milk. I suppose anything is possible, but to propose banning a food because of some far-fetched possibility? I don’t know how to characterize the idea, except as hysterical.

The Berezow/CNN editorial then seeks to suggest that people who consume raw milk and raw juices are delusional. “Proponents of raw food believe natural products are healthier. This is a myth.” It’s not at all clear what the editorial means by “natural products,” but I take it to mean food that hasn’t been processed or treated with chemicals, and there is all kinds of evidence to support the notion that natural products are healthier, or rather, that unnatural products are unhealthy. The latest example can be seen in the recent revelations about the presence of arsenic in much of the chicken produced in the U.S., apparently coming from a Pfizer drug that has for more than 60 years been fed to chickens to reduce parasites. The FDA recently announced that Pfizer had agreed to discontinue use of the drug. Consumer Reports had found that organic chickens didn’t have the arsenic. Since arsenic is a cancer-causing agent, I’d say the absence of arsenic made the “natural product” healthier.

There is a final irony associated with this editorial. Berezow in a previous CNN editorial bemoaning that we have become a nation of “germophobes” made reference to “a recent study that showed that children who grow up on farms, and are exposed to a greater diversity of infectious agents, are less likely to develop asthma.” He didn’t specify which study he was referring to, but I wonder if it’s the PARSIFAL study [PDF] done in Europe five years ago of nearly 15,000 children, comparing those who grew up on farms drinking raw milk and those in other places who didn’t. The study’s authors concluded that “the results of the present study indicate that consumption of farm milk is associated with a lower risk of childhood asthma and rhinoconjunctivitis.”

The reality is that both raw milk and raw juice are severely restricted in many places as it is. If anything, these nutrient-dense foods should be more widely available. To suggest banning them is a radical notion. If mainstream media are going to use supposedly credible scientists to make the argument, they should at least apply more than the fuzziest of logic.

Portrait of the farmer as a young man: Eliot Coleman with children, circa early 1970s.Reprinted with permission from Melissa Coleman.

Some background: As a Wall Street Journal reporter in 1971, I wrote a front-page profile of a middle-class family living off the land in coastal Maine — the family of Eliot Coleman, including his then-2-year-old daughter Melissa. That profile, headlined, “The New Pioneers,” was one of the WSJ‘s best-read features ever to that time, so popular that front page editors encouraged me to revisit the Colemans and do another piece two years later (sorry, that one seems to be unavailable online).

It was a major event for me personally — not only experiencing the Colemans’ vegetarian and no-electricity lifestyle, but meeting and getting to know the original trailblazers in the living-off-the-land movement, Helen and Scott Nearing; the authors of the classic Living the Good Life, who lived just down the road from the Colemans.

I lost touch with the Colemans after doing those profiles, though I did read articles here and there about Eliot’s own increasingly successful writing career, as one of the world’s foremost experts on growing organic foods year-round in hostile climates like in Maine. Contained in some of the articles I read were snippets suggesting family problems … but then, I figured, who doesn’t have family issues?

I reconnected with the family when Melissa contacted me a year-and-a-half ago to tell me about her upcoming book, and to request an interview to capture what I remembered about visiting her family in 1971 and living in a tiny trailer while reporting my story. It turned out that my initial WSJ article was a watershed event for the family, leading to a huge influx of both tourist and hippie visitors to the family’s isolated outpost on Maine’s Cape Rosier, and eventually to Eliot becoming a celebrity farmer.

Needless to say, it’s kind of strange to read now in a memoir the remembrances of my initial visit and the family’s impressions of me. “He had lived only in Chicago, New York, and Boston, so our lifestyle was an especially exotic contrast to his own. Quiet and easy to talk to, the young reporter adapted without complaint to the difficulties of using the outhouse and eating our vegetarian food, though he secretly thought the goat’s milk tasted of the barnyard … ” (I suppose that was my first exposure to raw milk.)

Eliot’s then-wife, Sue, expressed feelings of foreboding about my visit, noted Melissa. In a diary, Sue stated, “I realize now that the experience with the reporter was an unfortunate one. He was like an intrusion, making me feel uneasy and paranoid the three days he was here.” Melissa reports. She adds, though: “despite Mama’s fears, it turned out to be a favorable profile.” And more significantly: “The article … was a messenger of change, as more and more people became interested in a simpler way of life — people who would seek us out in droves … “

Some of the change was positive, as volunteers showed up, ready to pitch in and reduce the huge workload on Eliot and Sue. Some was stressful, putting the couple ever more under outside scrutiny. The intrusions were especially difficult for Sue, who was by nature a very private person. The breaking point occurred with the drowning of Melissa’s younger sister, Heidi, in a pond on the farm in 1976.

Aside from the fact that the tragedy tore the family apart, it also forced Melissa, in the course of writing the book, to confront larger issues associated with the family’s unusual lifestyle. Indeed, the entire situation carries important messages for today’s emerging class of professionally trained and city-raised young and middle-aged farmers. I won’t reveal any more about the book, except to say that it is an absorbing read that intelligently arrays the romanticism of living off the land against the emotional challenges of moving off the grid.

I’m from the government, and I’m here to take away your milk.

The U.S. Food and Drug Administration has just filed a complaint in federal court, seeking a permanent injunction against Amish farmer Dan Allgyer in Pennsylvania. It accuses him of violating a federal prohibition on interstate sales of raw milk by shipping unpasteurized milk to a Maryland buying club’s members.

As part of its complaint, the agency says it carried out a lengthy undercover investigation to acquire raw milk, and as part of it, “FDA investigators picked up each unpasteurized milk order at various private residences in Maryland.” All of which has me wondering …

Were the agents looking over their shoulders as they wandered onto decks and into garages of the private homes as they picked up their milk? Were they whispering into cell phones to comrades waiting outside, eager to get their hands on the contraband? Did they stop to admire deck furniture, barbeque grills, and lawn tools on their way into and out of the homes? And maybe do a little dumpster diving, checking the trash for clues to the family’s prescription drugs, nutritional supplements … whether there might be some leftover weed.

Perhaps more to the point, did the imposters feel any sense of remorse or shame by virtue of entering private residences to seize food — eagerly ordered and paid for by the club members — as part of a major federal investigation?

On this last point, the answer appears to be negative. According to the complaint filed in U.S. District court a couple weeks back, the FDA undercover effort has been going on for more than a year. “In late 2009, an investigator in FDA’s Baltimore District Office used aliases to join the cooperative that Allgyer’s farm was supplying in Maryland and Washington, D.C.” The complaint noted that the group “warns group members to ‘not share information about our group and certainly not about our farmer’ with government agencies or doctors … “

Over the 15 months between December 2009 and March 2011, additional FDA investigators used the cooperative’s “online ordering website and placed orders for unpasteurized cow milk on 23 occasions … Payment for each purchase was made in the form of a money order payable to Dan Allgyer. Payment was either mailed to Allgyer” or left inside a zip closure bag that was located at the pickup site in Maryland, the private homes where FDA investigators obtained their evidence.

These surreptitious pickups weren’t the end of the investigation, though. “An FDA laboratory analyzed twelve of the twenty-three samples of milk purchased by the FDA investigators and confirmed that all twelve were unpasteurized.”

Investigators also visited Allgyer’s farm on April 20, 2010, and “observed numerous portable coolers in the Defendant’s driveway and a walk-in cooler/freezer on the property that contained products that appeared to be milk and other assorted dairy products.” The coolers were labeled with the names of various locations within Maryland, including Takoma Park, Bethesda, Bowie, and Silver Springs.

Not surprisingly, members of the buying group in Maryland are upset by the FDA’s undercover tactics. The club has hundreds of members, “including bureaucrats, lobbyists, staffers on the Hill,” says Liz Reitzig, one of the club organizers. “It feels like betrayal,” she says. “The fact that they have been in some of our homes is mean. We trusted them, and they are totally betraying us.”

Reitzig argues that the milk being delivered to members wasn’t being purchased, and thus wasn’t part of interstate commerce. It was already owned by the members as part of their club membership agreements, and was merely being delivered to them. Indeed, the fact that it could only be obtained by entering private residences is testimony to the private nature of the transactions, she says.

Who knows, maybe some FDA staffers who weren’t privy to the undercover operation had their homes visited. It’s a tough business, this official effort to deprive people of food.

Photo: Chewonki Semester School

So Retberg shifted her focus to raw dairy instead, selling directly to local neighbors. When she received a notice last year from the Maine Department of Agriculture that she needed a permit, requiring investment way above what she could ever hope to justify with her minimal sales, she’d had enough. She got together with four neighbors similarly upset with the new regulator aggressiveness and, after concluding that state legislators weren’t especially interested in tackling the problem, they decided to seek help closer to home.

They drafted proposed ordinances for four neighboring towns that would sanction direct sales of farm products between farmers and consumers, without the involvement of regulators, and even without the involvement of lawyers, if everyone agreed. This spring, they began presenting their ordinances at town meetings — that New England institution that has stood the test of time — allowing all of a town’s citizens to vote yea or nay on proposed ordinances governing town spending, along with other purely local laws.

First up on a Saturday morning town meeting in early March was Sedgwick, Maine (population approximately 900), where they’ve been holding these meetings in the town hall since 1794.

Citing America’s Declaration of Independence and the Maine Constitution, the ordinance proposed that “Sedgwick citizens possess the right to produce, process, sell, purchase, and consume local foods of their choosing.” These would include raw milk and other dairy products, and locally slaughtered meats, among other items.

It wasn’t just a declaration of preference. The proposed warrant added, “It shall be unlawful for any law or regulation adopted by the state or federal government to interfere with the rights recognized by this Ordinance.” In other words, no state licensing requirements prohibiting certain farms from selling dairy products or producing their own chickens for sale to other citizens in the town.

What about potential legal liability and state or federal inspections? It’s all up to the seller and buyer to negotiate. “Patrons purchasing food for home consumption may enter into private agreements with those producers or processors of local foods to waive any liability for the consumption of that food. Producers or processors of local foods shall be exempt from licensure and inspection requirements for that food as long as those agreements are in effect.” Imagine that — buyer and seller can agree to cut out the lawyers. That’s almost un-American, isn’t it?

The approximately 120 Sedgwick citizens in attendance discussed the proposal briefly. (You don’t have a huge amount of time when there are 78 different proposals under discussion, as there were that Saturday morning.) When the discussion was over, all 120 raised their hands in unanimous approval of the ordinance.

Local farmer Bob St.Peter said afterward that he feels the vote creates favorable conditions for beginning farmers and cottage-scale food processors to try out new products. “My family is already working on some ideas we can do from home to help pay the bills and get our farm going.”

Next up, a few days later, was Penobscot, another tiny coastal town. About 100 people in attendance there, where a similar discussion to that of Sedgwick was held, and another unanimous vote.

But on the same Wednesday evening that Penbscot was having its vote, some residents of the nearby town of Brooksville were dividing on the proposal. There, the town’s Ordinance Review Committee had, a few weeks earlier, expressed concerns about the ordinance’s enforceability, should the state challenge the lifting of regulations, and also about potential liability issues and legal costs if anyone became ill from the unregulated food.

When the vote came up at town meeting, the committee’s recommendation was included with a secret ballot the 300 or so town citizens used to vote. The food ordinance lost by nine votes, 161 to 152.

But wait. Local organic grower and author Eliot Coleman discovered a possible glitch — that the proposed ordinance was preceded with a statement expressing the ordinance committee’s opposition, a bit of inappropriate electioneering, in his view. The ordinance may well get a do-over vote, likely by the end of April. A fourth town, Blue Hill, is due to vote on the ordinance in early April.

The notion of food sovereignty that has sprouted in coastal Maine may be gaining traction. Deborah Evans, one of the organizers of the Maine effort, says that since the Sedgwick and Penobscot votes, she’s heard from farmers around the country — some as far away as Texas — interested in proposing similar ordinances in their towns.

As demand for locally produced food expands, the pressures for such ordinances can be expected to expand as well, as small farms seek to avoid stifling regulation. The true test of their workability may well come when state or federal regulators decide that some local ordinance clashes with state requirements. In that case, we may see a court test of who has precedence. Given the pressures on farmers and regulators, such a clash and court test are probably inevitable.

Italy’s celebrated Pecorino di Farindola, pictured here, is now and has always been made from raw milk. We can get this right, people

The FDA is certainly concerned. It has been considering significantly tightening the rule that allows producers to sell unpasteurized cheeses to the public, so long as they have been aged 60 days. Major changes to the 60-day rule could severely damage the growing artisanal cheese industry, some of whose products command $20 to $25 a pound.

What none of these sources discussed is how the illnesses attributed to raw milk cheese last year compared to other years. The 60-day aging rule for raw milk cheese has been in effect since 1949, partially in response to outbreaks of typhoid attributed to raw milk cheese. All of which prompts this question: Have illnesses from raw milk cheeses been a serious public health problem since then?

Since none of the articles or the Marler Clark study addressed that question, I decided to do some searching through the data. I examined the data from the U.S. Centers for Disease Control (CDC) from 1973 throgh 2008 — a period of 36 years. For data covering 1998-2008, I used the online CDC database on foodborne illnesses, and scrolled through all the reported illnesses year by year, beginning in 1998 (the first year covered) looking for those attributed to unpasteurized and pasteurized milk cheeses. I didn’t count those attributed to queso fresca, a soft cheese that isn’t aged and thus isn’t legal under FDA regulations.

For data going back to 1973, the CDC provided a table [PDF] on illnesses from raw milk and associated products in response to a Freedom of Information Act request by the Farm-to-Consumer Legal Defense Fund in 2007.

Here’s what I found:

• Remarkably, from 1973 to 1999, a period of 26 years, there’s not a single report of illness from either raw milk or pasteurized milk cheeses.
• It’s only in 2000 that we see the first illnesses from raw milk cheese — one outbreak in 2000 that sickened 18, then two outbreaks in 2001 leading to 31 illnesses, and one outbreak sickening 18 in 2003.
• Thereafter, the pace of illnesses picks up, though sporadically. After no illnesses were reported in 2004 and 2005, the data in 2006 show 121 illnesses from raw milk cheese, and in 2007, the number has increased to 162. Then, there were no reported illnesses in 2008.
• Interestingly, illnesses from pasteurized milk cheese begin showing up in recent years as well. In 2006, there were 41 illnesses from pasteurized milk cheese, and 161 in 2007. In 2008, when there were no illnesses from raw milk cheese, there were 45 from pasteurized milk cheese.

Pulling it all together, the CDC data show 350 illnesses from raw milk cheese over the nine years from 2000-2009, or an average of 39 per year. (If you average the number out over the entire 36-year period, the average goes down to nine per year.) While there were fewer illnesses from pasteurized milk cheeses during that same nine-year period — 247 — there was one death.

What does it all mean? A piece this week on National Public Radio termed the increase in illnesses from raw milk cheeses “a wake-up call.” Certainly the growing popularity of raw milk cheeses must have some bearing on the situation. The American Cheese Society, which was only started in 1983 and has since grown to more than 1,400 members, figures more than half of its 300 cheese producer members specialize in raw milk cheeses. (I reported on Grist last December about its survey of members being inspected by the FDA in connection with the agency’s assessment of the cheese rule.)

With fast growth can come pressure to rapidly increase production. Bill Marler of Marler Clark, which did the study of illnesses in 2010, says the 60-day aging requirement likely has little relationship to whether there are illnesses or not. “From what I have read, it is far more about how the raw milk cheese is made and the care that is taken in its manufacture.”

Similarly, Bill Anderson, a Wisconsin cheese expert and proponent of raw milk cheese, says, “Most outbreaks associated with cheese occur because of post-production contamination.”

That helps explain why the American Cheese Society is offering online safety classes for its members, along with instruction on putting together HACCP plans (Hazard Analysis Critical Control Points).

The problem here may be over what the FDA substitutes for the long-standing 60-day aging rule for cheese. If it extends the aging period to, say, 90 or 120 days, it will make illegal many of the soft raw milk cheeses that many consumers most highly value.

While the FDA could require cheese producers to conform with certain testing and sanitary standards — much like occurs in Europe — that seems unlikely given the agency’s long-standing hostility to raw milk in general. More likely, the FDA will use the data suggesting an increase in illnesses from raw milk cheese in recent years to simply eliminate production altogether. It has explicitly stated on any number of occasions — most recently last month while opposing the legalization of raw milk sales in California’s Humboldt County — that “raw milk is inherently dangerous.”

Even though an average of 39 reported annual illnesses is not indicative of a serious public health problem by any stretch of the imagination, the FDA can use the trend line of an increase in recent years to justify its preconceived bias against raw milk cheeses. That would be unfortunate, since it would deprive consumers of an enjoyable and nutritious food, plus it would likely put out of business a significant number of small artisanal producers. That’s not a favorable outcome at a time when jobs are at a premium and the general business climate is ever more uncertain.

A week ago, Pennsylvania dairy farmer Edwin Shank did something no other producer of raw milk in recent memory has seen fit to do: he halted sales to his more than 1,800 customers, without any urging by local regulators.

He made his decision based on private lab tests — tests over and above those periodically conducted by the Pennsylvania Department of Agriculture — that showed the presence of the pathogen campylobacter in one sample. While no one has reported illnesses to Shank or state authorities in the three weeks since the questionable milk went out into the marketplace, the owner of The Family Cow, the largest raw dairy east of the Mississippi with 275 cows, said he took the step out of “an abundance of caution.” [Updated, Feb. 3, 1:12 EST: On Thursday, Shank announced he had received two tests on more recent milk samples that showed no pathogens, and thus he planned to resume sales tomorrow.]

The notion of raw dairy farmers establishing their own private safety standards and testing protocols over-and-above existing state regulation is a new one in a world where there is often bitter conflict between regulators and producers. Regulators tend to be wary of raw milk, often seeing it as inherently dangerous, and producers tend to be fearful that the regulators are over-zealous in their enforcement of dairy laws and regulations.

Yet Shank’s approach, while a departure from the norm, is representative of an emerging trend among raw dairy producers, who are serving what appears to be a fast-growing market. (No one knows how many raw dairy consumers there are, though the Weston A. Price Foundation, an advocate organization, estimates 1 to 2 million.) At least three initiatives, in addition to that pushed by Pennsylvania farmer Shank, have emerged to promote the notion of raw dairy safety standards that are over and above existing regulatory protocols.

The most prominent initiative comes from an ad hoc group of raw dairy supporters pushing for national standards, led by Tim Wightman, president of the Farm-to-Consumer Foundation, an offshoot of the Farm-to-Consumer Legal Defense Fund. He has been working with three other raw dairy experts — a farmer, a lawyer, and a consumer activist — for more than a year to develop written standards based on the assumption that improved animal and soil health are essential underpinnings of safe milk. He says the proposed standards, which are due to be made public within a few weeks, will “set levels of known safety that can be met by any number of husbandry practices … designed to eliminate the guess work of what is safe and nutrient dense, while evaluating soil and herd health programs for the effective production of excellent, safe, raw drinking milk.”

If you listen to the U.S. Food and Drug Administration, such initiatives are a waste of time, since the agency is convinced it is impossible for dairies to produce safe raw milk. The agency made this statement in January, as part of a debate in Humboldt County, Calif., about whether to permit the sale of raw milk: “The sanitary procedures described in a food safety plan under HACCP [Hazard Analysis Critical Control Points] might help to reduce the probability of raw milk contamination but they will not ensure that raw milk is pathogen-free.” The agency added:

Further, testing raw milk for the various pathogens prior to consumption can not be used as an alternative to pasteurization. The potential pathogens present in raw milk can be diverse, variable, and unpredictable … Typical milk quality indicators, such as standard plate counts and somatic cell counts, do not provide information on the presence or absence of pathogens. Seemingly high quality raw milk based on these routine quality indicators can still contain pathogen.

Not surprisingly, raw milk producers behind the safety push take sharp exception to the FDA’s assessment. They argue, first, that no food, including pasteurized milk, can ever be guaranteed pathogen-free. Scott Trautman, a Wisconsin raw milk producer who has been pushing the adoption of tough safety standards in that state, says that under the protocol he envisions, “The probability of an illness ‘event’ is reduced as close to ‘never’ as is possible.” He agrees with Wightman of the Farm-to-Consumer Foundation that animal health and safe milk go hand in hand. He also advocates complete “transparency” of the sort illustrated by Edwin Shank, the Pennsylvania dairy producer who voluntarily shut down production.

Behind the safety drive is a desire to reduce the number of illnesses from the recent 100 to 150 reported annual illnesses — not a large number in a public health system with up to 25,000 reported illnesses in recent years. The illnesses that have occurred are enough to stir the FDA and Centers for Disease Control (CDC) to adamantly oppose raw-milk sales and discourage its consumption. The CDC even came out with a new anti-raw-milk website in the last week.

The producers involved in the new safety initiative worry that outbreaks associated with a few producers give all producers a black eye. “I don’t want to be penalized because some other guy isn’t doing it right,” says Scot Trautman, the Wisconsin dairy producer pushing for tough safety standards. Two weeks ago he held a pow-wow for supporters at his farm near Madison, that included Michael Schmidt, a Canadian raw dairy producer, who is behind a Canadian standards-setting effort.

Raw milk producers say their main motivation is to protect, and reassure, consumers. Initial indications are the motivation is well placed. Ed Shank of Pennsylvania reports that the reactions from consumers over this past weekend were “amazing and tremendously moving.” He forwards one response that states, “I have not ordered from you yet, but because of this I most definitely will in the future. This is EXACTLY the reason why I believe all food should be kept as local as possible and why we all have a responsibility to know where your food comes from.”

An existing customer wrote him, “Your honesty and faith make the milk sweeter! We will sorely miss the milk, but are grateful for all of you.”

Mark McAfee, owner of Organic Pastures Dairy Co., the nation’s largest raw dairy, based in California, and promoter of his own safety standards, has this prediction for Shank: “You watch …. Your sales are about to skyrocket.”