Why Raw Butter Producers Are Suing the FDA

Late last month, the Farm-to-Consumer Legal Defense Fund (FTCLDF)—a nonprofit membership organization that advocates on behalf of independent farmers, artisanal food producers, and their consumers, and that counts me as a board member—sued the Food and Drug Administration (FDA) to overturn the agency’s wrongheaded, illegal, decades-old ban on the interstate shipment and sale of raw (unpasteurized) butter. The Raw Milk Institute, Weston A. Price Foundation, and FTCLDF helped to fund the lawsuit.

FTCLDF filed suit along with Mark McAfee, a California member who founded Organic Pastures Dairy Company, which sells raw butter in California and which would sell outside the state—if only the FDA allowed them to do so. As the lawsuit notes, FTCLDF members across the country are in the same boat as Organic Pastures; they want to sell raw butter across state lines but cannot do so legally thanks only to the FDA.

The suit, filed in U.S. District Court in Washington, D.C., asks the court to compel the FDA to amend its regulations, which currently prohibit the “transportation of unpasteurized ‘milk or milk products’ across state lines, to explicitly exclude unpasteurized butter from the prohibition.” It also seeks to force the FDA to excise butter from its definition of “milk products.” As the lawsuit notes, Congress has already done this last thing. 

Congress, via the Food, Drug, Cosmetic Act (FDCA), precluded the FDA from adopting regulations to define butter. That’s due in part to the fact Congress itself codified the definition of butter nearly a century ago as a “food product… made exclusively from milk or cream, or both, with or without common salt, and with or without additional coloring matter, and containing not less than 80 per centum by weight of milk fat.” 

Though that definition explicitly excludes any pasteurization requirements, the FDA ban on interstate shipment of raw butter has been in place since 1987, when a federal court ordered the FDA to prohibit the interstate shipment or sale of unpasteurized fluid milk and cream.

FTCLDF filed the lawsuit last month only after the FDA ignored a petition the group filed in 2016, asking the agency

You can read the rest of this article at: https://reason.com/2019/11/09/why-raw-butter-producers-are-suing-the-fda/