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Over the past two decades the organic food industry has experienced an explosion in popularity that has resulted in total sales increasing from $1 billion in 1990 to $24.8 billion in 2009—an increase of 2380 percent! The success of the organic push has undoubtedly had a cascading effect on the raw (unpasteurized) foods industry. A raw food diet consists of foods (plants, meats, and dairies) that are uncooked or have been cooked to a temperature less than 104˚F and 115˚F. The biggest subset of the raw foods industry is raw dairy and specifically raw milk. Raw dairy products, such as cheese and ice cream, are made with milk that has not been pasteurized or homogenized—processes that expose milk to high temperatures in order to kill germs and bacteria.
The raw food surge has been wrought with controversy. Creating and enforcing food safety regulations is one of the prime functions of federal, state, and local governments. At the federal level, numerous departments, agencies, and sub-agencies are responsible for performing this role (The FDA, CDC, USDA, and HHS just to name a few at the national level). In 1987, the Food and Drug Administration began restricting, and eventually banning, interstate sales of unpasteurized foods. However, the FDA regulation, 21 C.F.R. 1240.61, leaves consumers some wiggle room by allowing the intrastate (within an individual state) sale of such products. The legal landscape for intrastate sales of raw foods is a hodgepodge of approaches.
Which parts of this debate have to do with the Constitution? In short, all of it!
When Elena Kagan was testifying before the Senate during her confirmation hearings, the then-Solicitor General was asked by Sen. Tom Coburn if the Commerce Clause (Article 1. Section 8.) allowed the federal government to regulate an individual’s diet. America bans the sale of a wide variety of plants and meats that are regularly eaten, sold, and used in other countries (such as sassafras and horse meat). Despite the prohibition, a black market may exist: South Florida is in the midst of combating a ring of illegal horse slaughterhouses that sell discounted horse meat to local restaurants who in turn serve the banned food.
Even at the state and local level, constitutional issues enter the discussion. Numerous states completely ban the sale of unpasteurized milk and dairy (though, more than half of all states allow raw milk sales). Raw foodists have establishing “herd shares” in order to side step this regulation. The shares allow customers to own a portion of the resources on a farm. As a benefit of ownership, the customers receive access to the raw dairy products produced. Some states have begun to crack down on these food shares, with several conducting armed raids of share property. Are such laws in violation of a person’s right to associate?
Another issue at the heart of this controversy is whether the FDA can ban the interstate distribution of a product when the two (or more) states involved in the transaction allow the sale of the product.
The debate over raw milk is far from over, especially if the popularity of organic foods, local farm shares, and “green” living continues to rise
What do you think is the answer to the raw food debate? Should federal, state, and local governments regulate the sale of foods that can be harmful to a person’s health? Should this decision be made by the individual?
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