In the waning months of 2010, the battle over food safety and food rights reached a full boil. In late October, FDA officials, accompanied by federal marshals, seized the entire contents of the cheese cave at the Estrella Family Creamery, a 36-cow and 40-goat operation in Montesano, Washington. Twice during the preceding 8 months, portions of the creamery’s award-winning cheese had tested positive for listeria, though no one had been sickened.
Following the first positive test, the creamery voluntarily recalled the affected cheeses and conducted a thorough cleaning. Following the second positive test, the FDA requested a recall of all the cheese from the facility, but the Estrella family refused. The listeria, they pointed out, had been found only in the soft cheeses and could only survive in soft cheeses. Why, then, should they have to recall thousands of dollars’ worth of hard cheeses, too? The FDA was not amused by the family’s lack of cooperation and quickly obtained a court order forcing the seizure of the creamery’s entire inventory, valued at about $100,000.
The backlash was instantaneous and seemed centered around two basic points: First, no one had complained that Estrella’s cheese had made them sick. Second (and relating to the first), since no one had complained, why was the FDA poking its nose into a small family cheese business? The testing had been conducted as part of a listeria-testing initiative at soft cheese production facilities, many of which were family-scale operations. Was the FDA really concerned about contamination, or was it just looking for an excuse to put the squeeze on artisanal cheese producers, most of which deal in raw milk cheeses?
The food-rights community believed it was the latter, in large part because listeria is an exceptionally common bacterium. “You’re dealing with a ubiquitous pathogen,” Catherine Donnelly told me. Donnelly is a professor of nutrition and food sciences at the University of Vermont and an internationally renowned expert on listeria. “If you look for it hard enough, you’re almost certainly going to find it.” This does not make life easy for US cheese makers, who must comply with the FDA’s zero-listeria-tolerance policy.
Complicating matters is the fact that there are numerous subtypes of listeria, many of which have not been implicated in human illness. “The FDA is relying on the initial positive test for listeria without doing further testing to determine if the subtype is one that causes illness,” Pete Kennedy complained when I called him. Kennedy is an attorney with the Farm-to-Consumer Legal Defense Fund, and he is assisting the Estrellas in their defense. “Even if it is, we don’t know if it’s present in enough quantities to cause illness.”
Kennedy’s latter point is particularly intriguing, given that not all industrialized countries employ a zero-tolerance policy to listeria. In Europe, where small-scale, artisanal cheese makers are about as common as NASCAR fans at a Kid Rock concert, the bacterium is acknowledged and allowed, up to 100 organisms per gram. Are Europeans dropping in the streets from listeria poisoning? Not according to Cathy Donnelly. “Their rate of incidence is about the same as ours,” she told me.
As for the Estrellas, they were living in a sort of cheese-makers’ purgatory. When I spoke with Kelli Estrella in late November, she sounded enormously tired. Her voice was shaky, as if she were fighting back tears. The FDA had remained mute following the seizure; she had no idea what the future of her family’s farm and business held. For the time being, they were milking the cows (the goats had been dried off for the winter) and filling their freezer with butter, but this was an untenable situation over the long haul. “We don’t yet know how we’re going to survive it,” she told me. “My husband might go back to logging, and maybe I’ll do some cheese-making classes.”
But mostly, Kelli Estrella was angered by what she views as the FDA’s trampling of her rights and the rights of the people who want to purchase her cheese despite the positive test results. “If someone wants to eat food that’s approved by the FDA, they should have that right. And if someone wants to eat food that’s not approved by the FDA, they should have that right.”
As it turned out, I spoke with Kelli Estrella only days before S 510, the FDA Food Safety Modernization Act, passed the Senate. The bill was the first major overhaul of the FDA’s food-safety oversight in many decades and, assuming it made it through the House, would greatly strengthen the agency’s authority over producers. For the first time ever, the FDA would have recall authority, and food producers would have to write detailed food-safety plans. The bill would also establish stricter standards for imported food and increase inspections of domestic and foreign facilities.
I’d been following S 510’s progress for many months, a task that was especially onerous because the bill was living up to an infamous quote by the 19th-century poet John Godfrey Saxe: “Laws, like sausages, cease to inspire respect in proportion as we know how they are made.” To S 510 watchers, it seemed as if the bill shifted form on a near-daily basis, as did the perception of its prospects for survival.
Its fortunes were aided by wide-ranging support from numerous consumer advocacy groups, victims of foodborne illness, and progressive food thinkers like Michael Pollan and Eric Schlosser. Attorney Bill Marler was throwing his full weight behind it. Even the corporate food producers seemed to be along for the ride. Everyone seemed to think it was imperfect but less imperfect than most legislation that comes so close to becoming law. An amendment had been attached to the bill; sponsored by Democratic Senators Jon Tester and Kay Hagan, it would exempt producers with less than $500,000 in annual sales if they sell the majority of their food directly to consumers within a 275-mile radius of where it was produced. The amendment seemed to placate many of the local food activists who had previously vilified the bill.
And yet I couldn’t muster much excitement. It felt to me as if S 510, with its focus on increasing regulatory oversight and quest for “science-based” risk analysis and production methodology (the term science-based appears in the bill 11 times), was the legislative equivalent of not seeing the forest for the trees. The bill was clearly written to address the issue of foodborne pathogens, a consequence that was nothing if not predictable, given the recent spate of outsize outbreaks. But it would do nothing to heal the structural deficiencies in our food system that cause so much long-term pain and suffering.
I was a little surprised to find that Bill Marler agreed with me. Oh sure, he was an enthusiastic, almost rabid supporter of S 510; he’d used his political and industry connections to lobby hard for the bill and had, by his own accounting, spent nearly a decade trying to get something like it passed. “I think the food system is completely fucked,” he told me when we talked in early December 2010. By this time, the bill had passed the Senate but was hung up on a legal technicality and was looking as if it might die on the vine. The resistance was “for structural reasons like farm subsidies, cheap food, obesity; S 510 was never intended to address those things,” he said. If the bill didn’t pass soon, Marler knew, there would be nothing like it for years to come, as the Republican party, which had expressed little enthusiasm for the bill, was about to assume control of the House.
Marler was right, of course. Even if S 510 failed to address the many tens or even hundreds of thousands of deaths included in a more holistic articulation of food safety, what could be wrong with trying to save a few of the 5,000 or so lives that are cut short every year by foodborne illness?
Perhaps nothing, but I couldn’t help feeling as if, Tester-Hagan amendment or no, S 510 would only further the trend of consolidation and opaqueness that permeate our food and agriculture industries. Increased regulatory oversight almost never leads to increased transparency. The very existence of the bill seemed to perpetuate the bad bacteria mania that has—quite understandably—gripped US food consumers. Fear was festering, and all of that fear was being directed at “bad” bacteria. It’s no secret that when people are scared, they more readily surrender their rights. Although I had not bought into any of the locavore hysteria surrounding S 510—that it would make gardening illegal, for instance—my concern was that it could lead to collateral damage. And that, ironically, such damage would only perpetuate the very problem the legislation was intended to address.
But then, maybe I was crazy. I mean, how could I not agree with Michael Pollan, the current high priest of sensible agriculture and food practices? So I decided to check in with Joel Salatin, the Swoope, Virginia–based farmer who famously introduced Pollan to the joys of chicken processing during the author’s research for The Omnivore’s Dilemma. In the intervening years, Salatin has become something of an agricultural celebrity, in part for his progressive farming methodology and in part for his outspoken views on anything food related. Salatin was in New Zealand when I contacted him by e-mail to get his thoughts on the matter. He was only too happy to weigh in, which is to say, he wasn’t happy with the bill at all.
Never before has the government codified, as a food safety issue, its interpretation of production models. Until now, food safety was separate from production practices. In other words, if the tomato came from a compost pile, a fumigated field in California, or a hydroponic greenhouse in Milwaukee, the government didn’t care as long as it was free of E. coli or whatever.
Now, that will not be the case. The government will codify its science-based production paradigm, and that will jeopardize every alternative production practice out there. Consider what the official government science has encouraged over the years: organophosphates, chemical fertilizer, DDT and other pesticides, mandatory vaccinations, indoor housing for poultry, feeding dead cows to cows, rBGH injections, irradiation, genetically modified organisms, cloning.
The list could go on and on, but the point is that for several decades, official government science has assaulted everything the biological community holds dear. Before now, nobody asked if the chicken was outside or inside. All anybody cared about was that it was pathogen free. With this legislation, production freedom will no longer exist. The test will no longer be measurable contamination but production models that conform to the official government agenda.
In short, Salatin’s point was that S 510 or any legislation that addressed the issue of foodborne pathogens was likely to create only a larger divide between consumers and the source of their food. Furthermore, the potential implementation of “science-based” protocols would lead to methodology that would, in almost every way other than pathogenic bacteria, make our food less healthy and ultimately more dangerous.
Still, as 2010 wound down and the new year approached, it was beginning to look as if Salatin and the other opponents of S 510 would be spared. After a brief spurt of momentum, the bill seemed to slide onto the back burner of the legislative agenda. In an e-mail, Marler told me he was “brokenhearted.” Still, he did have something to be upbeat about: He’d collected a handful of the moist orbs of manure excreted by his laying hens and sent them out for testing. The results were in, and Marler’s chickens harbored neither salmonella nor campylobacter. The chickens were still too young to lay, but when they finally started, Marler could eat with impunity.
Over the course of writing this book, I have been asked many times if my research has made me more fearful of my food or more cautious of how I prepare it. My response to these questions, which typically generates a great deal of surprise, is always “no.” In fact, if I were asked to rate my anxiety level as it pertains to food, I’d have to admit that researching and writing this book has made me less fearful, not more.
Some of this can be explained by the eating habits my family and I adopted many years ago. We tend voluminous gardens and raise much of our own meat. We are fortunate to live in the center of a small-scale agricultural hotspot, where it’s entirely possible to go a full year without purchasing a single food item from a chain grocery store. Our region is lousy with farmers’ markets, food cooperatives, and roadside stands, all overflowing with goods that surely were not produced according to “science-based” procedures but that somehow manage to nourish us without making us sick.
But equally, my attitude toward foodborne illness has been shaped by my evolving understanding of bacteria and their role in human life. I now know that, on a physical level, I am not me: I am them. The bacteria residing in my body outnumber my human cells by at least 10 to one. Modern science has woefully little to say about the relationship between our inner ecology and our overall health and even less to say about how the food we eat affects our gut biology. Of course, the approval of the modern scientific community has not always been the best litmus test of what is healthful for us over the long haul. Simply understanding the crucial role bacteria play in supporting human health and life is enough to take the edge off my fear of these microbes.
This does not mean I will never become a victim of foodborne illness. After all, there is only one way to eliminate all of the physical risk associated with food: Stop eating. There’d be no salmonella, no E. coli, no listeria, and, because I’d soon be dead, no concern for the long-term threats associated with our food. The truth is this: As long as we choose to eat, we choose to accept a certain degree of risk. We can decide to eat in ways that we believe will minimize that risk, or we can hang out with folks like Edward Gunny. Either way, there is an unknowable degree of risk, and I much prefer that risk to be of my choosing rather than foisted on me by faceless multinational corporations and government agencies. This is my body. I want to feed it and the countless billions of bacteria living within me as I please.
What I have chosen, therefore, is a style of eating that affords me as much transparency as possible. To the extent that I am able, I purchase my family’s nourishment from producers operating on a scale or with an ethos that provides a clear view of the where, how, and why of production and processing methods. Admittedly, this is no panacea; the cost associated with this food is often higher than the price of products that come from further up the ladder of consolidation and opaqueness. And as Bill Marler is fond of saying, “Just because you can shake the hand of the guy who sold you your dinner doesn’t mean he’s not going to poison you.”
Indeed. I know that the risk of contracting pathogenic bacteria from my food is small but real. I accept it with every bite I take and with every bite I feed my two young sons, in part because I know that of all the risks associated with the way we eat, this risk is by far the smallest. And I accept it because there is no practical alternative. My food is teeming with bacteria because the world is teeming with bacteria. In this way, food is not so different than me. I find this strangely comforting.
We live in an era marked by a great divide between humankind and the natural biological world. The evidence of the divide can be found at almost every juncture of our relationship to nature, but perhaps no more profoundly than in the way we produce and take our nourishment. The assumption that we can eliminate all potentially harmful bacteria from our food is itself evidence of this divide. This is not to say that we shouldn’t utilize commonsense practices to avoid becoming ill, only that attempts to systemically expunge bacteria from our food are certain to fail and likely only to propagate the structural deficiencies that cause the vast majority of suffering associated with the way we eat. Indeed, no one will tell you that S 510 or any legislation can eliminate pathogenic bacteria; no one can say with any confidence to what degree such legislation might reduce the risk. Perversely, such attempts to control bacteria may only exacerbate the danger of pathogenic bacteria by encouraging further consolidation in the food industry.
To anyone who has been affected by acute foodborne illness, the notion that we must accept a certain degree of risk in relation to pathogenic bacteria must sound insane. But we accept risk in many facets of our lives. We strap into seatbelts, submit to TSA (Transportation Security Administration) pat downs, and wear cycling helmets, knowing full well that these measures do not make us immortal. We accept that truth because we understand that life without the risks these measures can reduce but not eliminate would be greatly diminished. To eliminate them would require living a life that most of us would find oppressive and, quite simply, not very much fun. We accept the risk because the only way we know to eliminate it is unacceptable.
Already, we live in a time of greatly diminished quality of food and an almost utter lack of food rights. Many of us do not recognize this, because this situation is all we have ever known, but the facts tell the story. If we truly wish to make our food safer, not merely for ourselves but for the generations to come, we will acknowledge and accept the slim risk of pathogenic bacteria. And then turn our attention to the real dangers that affect us all.
As it happens, S510 did pass, and on January 4, 2011, President Obama signed the bill into law. This was surprising, but not nearly as surprising as what would soon transpire on David Gumpert’s pro–raw milk/food rights blog, thecompletepatient.com or http://www.davidgumpert.com/, where, it appeared, the ice between Bill Marler and the raw milkers was thawing.
In fact, Marler revealed on January 28 that he’d been in contact with raw milk producers and was interested in helping them evolve their production methodology. “I spent about an hour today on the phone with one of your frequent commentators (I am sure he would prefer not to mention his name) and I learned a lot about raw milk safety from someone who clearly understands it. I wish him the best and offered to connect him with someone who might be of help in developing a raw milk HACCP,” Marler wrote.
This provoked the following, from one of Gumpert’s frequent commentators: “Maybe the force is in you after all. Eating pasteurized cheese and wine is like having sex in body condom. Those bubble boy folks smell like latex and rubbing alcohol. Break out and breathe the real air,” to which Marler replied, “Now, you have my interest.”
It was all so unexpectedly sweet and chummy that I felt compelled to give Marler a call. “I give them tons of credit,” he said, referring to the producers who’d been in touch with him about the possibility of establishing a HACCP plan specific to raw milk production. “They’re not just sitting around on a blog, bitching about shit. I think their hearts are in the right place.”
I was a little stunned, but not as stunned as I was about to be, as our conversation unfolded into the realm of bacteria and risk. “The problem is, you’re dealing with a very complex ecosystem,” noted Marler. “Trying to have some rational level of safety in the context of this ecosystem and an industrial food system sometimes just doesn’t compute. I wish I had the answer. I wish I had the power to enforce a tax that would force corporate agriculture to get small.”
Whoa. Had Marler really undergone a transformation? Were his views on bacteria changing? Was he really thinking of linking arms with the raw milkers to forge a new way forward? He chuckled at my naïveté. “Oh, don’t worry. When the next raw milk outbreak happens and I end up representing the families, they’ll be calling me a fascist again.”
S510 and the Marler/raw milker love fest weren’t the only food safety stories of late 2010 and early 2011. Of course, there were still outbreaks happening: carrot juice, sprouts, ground beef, lettuce, and more sprouts. Not a week passed without news of an outbreak or recall. “It’s just ridiculous,” Marler told me, and I had to agree. It did seem ridiculous.
It was against this backdrop that the CDC quietly released its revised numbers on foodborne illness. There had been widespread speculation that the numbers would be at least somewhat lower, but the drop was precipitous. Rather than the 76 million illnesses, 325,000 hospitalizations, and 5,000 deaths associated with foodborne agents, as had been the previous estimates, the numbers had tumbled to 48 million, 128,000, and 3,000 respectively. Roughly speaking, the CDC had acknowledged that the previous numbers reflected twice as much illness and death due to foodborne agents as actually existed.
Of course, the new numbers were still heavily reliant on extrapolation and assumptions. Indeed, barely 20 percent of the 48 million illnesses were due to known foodborne pathogens; the rest, said the CDC, were the result of “unspecified agents, which include known agents without enough data to make specific estimates, agents not yet recognized as causing foodborne illness, and agents not yet discovered.” Apparently, the agency was accounting for not only the “known unknowns” but the “unknown unknowns” as well.
So, despite the radical revision to the numbers, I couldn’t help feeling that the CDC’s report was more whimper than bang. It was still an exercise in guesswork. It would likely be amended again in coming years, though whether up or down was anyone’s guess. About the only thing I was certain of was that it still didn’t tell the whole story of food safety.