Law For Food: The law affects what you eat. What you buy to eat affects the law.

A Bright Side

Is American Cheese the new American Wine? Is the faltering dollar good for the domestic artisanal food industry — or at least those parts of it which don’t rely on imports?

What has been good for wine has been good for cheese. The rising wealth and strong dollar of the 1990s sent Americans flocking to Europe, returning with a new understanding and appreci­ation of continental eating. Food has emerged as hip entertainment, with its own vibrant press, TVnetworks, and rock-star chefs. Movies about food and wine have found large, sophisticated audi­ences (“Eat, Drink, Man, Woman,” “Sideways,” “Big Night,” “Like Water for Chocolate,” “Ratatouille”). Increased concern for health and a growing sus­picion of conventional agriculture, spurred by crises like mad cow, bird flu, and tainted spin­ach, have focused the nation on small-scale local farming and the sustainability and traceability of our food supply. Meanwhile, Whole Foods Market has planted 263 stores around the country (many through acquisitions of regional chains) since the first opened in 1980. And who could have pre­dicted the French Paradox—the notion, according to a bestseller about the eating habits of France, that you can eat plenty of fat and stay slim? Or Dr. Atkins urging eager dieters to eat pork and but­terfat? More recently, the flaccid dollar and robust euro have made American wines and cheeses seem veritable bargains.

I have for a while maintained that there is more excitement and energy in the U.S. artisanal cheese industry than there is in European cheese. In part, this is surely due to our having farther to go: try speaking, reading, or typing the words “American cheese” without picturing something gummy, preternaturally orange, oversalted and individually wrapped.

However, I also suspect that european cheesemakers and regulators have done the industry a disservice in the long term due to the AOC/PDO/DOP/DOC system of trademark regulation. (Each of these terms, in a different language, stands for “Controlled Name of Origin” and I shall refer to them all under the term “DOP” for simplicity’s sake.) The DOP system sets characteristics that must be met if a product is to be referred to under a traditional name; i.e., if you want to call your blue cheese Stilton you have to use milk from these sorts of cows, and make it into wheels this big and age them for this long and so on. In a number of cases, qualification is tied to a region: you can’t call your blue cheese Rocquefort, for instance, unless you have made it from sheep’s milk and then aged it in caves in the department Aveyron, where they will be exposed to the airborne, naturally-occurring penicilium rocqueforti that lives there. This system allows for the same sort of protection that individual firms get through trademark law, but enables the protection to be shared by every firm that makes a product meeting the qualification.

However, there are times and occasions in which the DOP system can backfire. Because the definitions are backed by law, it can be difficult to adapt them to new circumstances. Last year, Newcastle Brewing Company ran into this problem. Newcastle had successfully petitioned for the creation of a DOP defining “Newcastle Brown Ale” as ale that was, inter alia produced in the city of Newcastle-upon-Tyne. When the brewco decided to move its operations across the river to Gateshead, it was required to petition again to expand the legal defintion of “Newcastle Brown Ale” so that ale produced in its new facilities could be marketed under the same label.

As another example: the DOP for Stilton was written some years ago and requires that “Stilton” be made with pasteurized milk, despite the fact that pasturized Stilton is a historical latecomer, and that the cheese had been made with raw milk for centuries prior to industrial cheese production. When Joe Schneider and Randolph Hodgson revived the traditional stilton recipe, they were prohibited by law from calling the product “Stilton” and instead have had to market it under the name “Stichelton”, which is the Middle English name for the city of Stilton.

DOP protection has done some good in protecting quality standards for traditional food products, and I certainly do not oppose its use. However it seems to me that, absent DOP protection, artisanal cheesemakers in the U.S. have more opportunities to innovate in their cheesemaking techniques which are driving quality and variety in American artisanal cheesemaking. I have little doubt that if the DOP system were introduced into the U.S., it would in short order be co-opted by industrial producers, and thereby used to constrain this innovation, and I have some fears that European cheesemaking, which enjoys DOP protection, doesn’t have the same opportunities to innovate.

Pasturization and School Lunches

New to me, but back in 2003, Maciej over at compared a week’s worth of school lunches in the U.S. to a week’s worth of school lunches in France. His observations are twofold: 1) in France, all meals have cultural significance, and 2) pasturization has had the effect of lowering our standards as to what’s consumable by humans.

First, and briefly, the article notes that the French lunch is highly structured in a way that leads him to conclude that it is considered a part of the education. The U.S. lunch, on the other hand, is centered around a bread-and-meat entree (usually a hamburger, chicken fingers, or pizza) with optional (usually terrible, readers will recall) hot vegetables or salad. What is interesting is that school lunches prove to be a part of the U.S. education as well, but because teachers and administrators don’t think about it as education, we wind up sending all kinds of terrible messages about food:

Finally, notice how hard it is to eat a healthy diet at the American school. You would be relegated to a ghetto of garden salads, ‘soups of the day’, and whatever nutritious innards you could pull out of the breaded main dish. The message American kids get is that healthy food is second-rate and tastes bad, that they should eat lots of meat, cheese and potatoes, and that eating fast food every day is a normal diet.

(Emphasis added.)

The second observation is related to something I posted yesterday about pasteurization and accountability. Pasteurization, as you know, is a way of killing the bacteria that are on or in our food by heating the food to above 160° fahrenheit. Pasteurization can reduce our exposure to bacteria that will cause illness by reducing our exposure to bacteria period. However, the economics of commodity food production have turned pasteurization into a panacaea for any and all structural flaws in the production of food. Because they can cook the germs off, producers don’t take the same care with food. From the article:

The dirty fact about American school lunches is that they are a dumping ground for surplus and substandard beef, chicken and dairy products. Many of these foods cannot be served fresh because they would be too dangerous to eat. This is especially true for ground meat, which is at times so contaminated with bacteria that it would not be legal to sell it in a supermarket. A couple of hundred years ago, Louis Pasteur (a Frenchman, of course) discovered that you can kill bacteria in many foods by heating them to an elevated temperature for a certain period of time. Pasteur’s discovery was revolutionary. Pasteurized foods (like milk, honey, cider or wine) could be stored longer without going off. And of course pasteurization can render dubious foods safe. But the legacy of Pasteur’s invention, in this country, has been perverted. Instead of improving the quality of our food supply, we’ve used techniques like pasteurization and antibiotic prophylaxis to make it possible to create food on an industrial scale, artificially fighting back the disease and contamination that would otherwise make modern factory farming impossible.

The process shows no signs of slowing, either. The current push for irradiating meat (under the euphemism of ‘cold pasteurization’) is an attempt by the beef industry to make meat safer not by improving hygiene at the slaughterhouse, but by rendering contaminated meat harmless. Presumably, it doesn’t matter whether meat in school lunches has been in contact with cowshit, as long as it is no longer infectious.

I haven’t looked at the specifics, but I suspect that pasteurization is one of the reasons we have seen so many millions of pounds of meat recalled in the last few months. If that seems counterintuitive, just bear with me.

Pasteurization does not eliminate bacteria from food. What it does is yeild a logarythmic reduction bacteria counts. When you have an ordinary amount of bacteria, reducing them to a fraction of their number by pasteurization may render the food safe because your immune system can handle the bacteria in this smaller amount. However, since in 2002 the FDA approved the use of the term “cold pasteurization” to refer to irratiation of meat, meat producers have been able to rely on irradiating their meat as a means of killing bacteria. Meat packing is a highly competitive business, with ever-narrowing margins and faster production times. Because we can use cold pasteurization to kill bacteria at the end of the process, it is not worth the expense of introducing safeguards against bacteria throughout the process.

However, as noted above, pasteurization isn’t a catch-all. It doesn’t kill all the bacteria, only the vast majority of them. So, the more bacteria that the meat is exposed to before pasteurization, the more that will be there after pasteurization. Between this and the absense of colonisation effects discussed yesterday, I think we are looking at a cure that costs more than it benefits.

Probiotics, from the Dept. of Breaking Stuff, and then (Maybe) Fixing it.

From the Dairy Reporter, a story on probiotic dairy products intended to replenish the sorts of gastrointestinal flora that we used to get from food. Money quote:

[Walker] said that measures intended to improve public health, such as food pasteurisation and sterilisation and use of antibiotics means that there is a decreased exposure to micoorganisms – leading to a gap in colonisation and weaker defences against disease.

First of all, while this research doesn’t surprise me, I am a bit bothered by the fact that Nestlé is profiting off of mandatory pasturization and sterilization of food.

The sequence of events seems to go like this: unpasteurized foods contain a great deal of bacteria, most of which is harmless. Exposure to these bacteria would promote the immune system. (Note: I don’t have a scientific background, but my understanding is that these bacteria compete for resources with harmful bacteria in the gastrointestinal tract, which means that harmful bacteria wind up fighting a two-front war against both the immune system and these other bacteria. This means that the immune system doesn’t get overwhelmed by harmful bacteria. Any biologists care to comment?)

As it is now, a great many foods are pasturized or sterilized, either by regulation or voluntarily, and do not expose the consumer to these harmless bacteria. Which means that consumers’ immune systems get weaker. Thank god there’s Nestlé to put back in the stuff that was in the food to begin with.

I am reminded of something that Ari used to talk about when I worked at Zingerman’s. He was presenting on raw milk cheeses and he said that pasteurization was a bad idea is because it enables producers to lower their production standards, because they know that any bacteria that get into the milk will be cooked when they pasturize it. Pasturization destroys accountability because the dairy co-op or factory cheesemaker doesn’t know and doesn’t care whose milk might have been dirty: they can put it all into the same big vat and heat it up and it doesn’t matter.

Only, turns out it might matter.

Comment Thread on the Raw Milk Ban
14 September 2007, 2:19 pm
Filed under: FDA, Food Policy, Pasteurization, Raw Milk, Regulation

The Complete Patient has a fine post on the recent recall of raw milk from Organic Pastures which gives some good details. I thought that the comment thread was also worth reading if you want to get up to date on the raw milk debate.

On that raw milk recall, it looks like Organic Pastures may have been selling cream from other raw milk producers alongside or mixed with its own cream. Since so much of the raw milk greymarket relies on trusting that your producer is taking the necessary steps to prevent contamination, this was a terrible move on the part of Organic Pastures.

In some states, it is illegal to sell raw milk, but you can drink it yourself from a cow that you own, which has led to the practice of selling raw milk under “cowshare” programs in which raw milk drinkers will pool their resources and purchase a portion of a cow, and will pay the farmer for pasturing instead of “purchasing” the milk. While this practice seems unnecessarily complicated, I suppose it prevents shenanigans such as what Organic Pastures has done.

The Complete Patient’s ultimate answer to the comment thread linked above is also worth reading.

Raw Milk May Be Safer

Very interesting: this statement by Mark McAfee of Organic Pastures. The topic is raw milk and the minimal public health risks it poses to consumers. Money quote:

Dr. Caterina Berge, DVM and PhD candidate at UC Davis, tested our milk cows’ fresh manure and did not find any human pathogens. That’s right. . . no Salmonella. She was able to show that when antibiotics are not ever used on the herd (as stipulated in the organic standards) and when cows are not stressed (grass-fed and kept healthy) they simply do not slough off pathogens in their manure. The data collected at Organic Pastures was quite different from that found at other dairies. The typical conventional milk tank had either salmonella or E. coli O157:H7 detected about 30 percent of the time. In comparison, Organic Pastures has never had one pathogen—ever.

To study this issue further, Organic Pastures contracted with BSK labs in Fresno to perform multiple challenge and recovery tests on our raw milk and raw colostrum. When 7 logs (10 million counts) of pathogens were added to one-milliliter samples of organic raw milk they would not grow. In fact they died off. The salmonella was so badly out-competed that it could not be found less than 24 hours later. The listeria drop was less dramatic and was similiar to the E. Coli O157:H7 samples that were studied, but they also did not grow and declined substantially over time.

I am looking for these studies now. I haven’t really worked on raw milk on this website in a while as I am exploring the myriad of legal issues that surround the food industry. It seems that everywhere I look there another area of law or policy is involved in food production (e.g., labeling and consumer protection; product liability; labor and immigration; energy policy) and it’s difficult to narrow down my focus. I had thought that food law would be kind of a niche but I am surprised by its breadth.

(Link via the very informative comments following Meg’s post on eating while pregnant.)

Is there an institutional bias against raw milk?
11 June 2007, 10:52 am
Filed under: food politics, Pasteurization, Raw Milk, Regulation

David at The Complete Patient seems to think so, and is documenting evidence that bias may be causing food inspectors and government epidemologists to blame raw milk when it is present despite the milk testing negative for the relevant pathogen.

Maryland milk can’t become cheese in Maryland
8 May 2007, 8:01 am
Filed under: food politics, Import/Export, local v. industrial, Pasteurization

An otherwise local cheesemaker has to ship her own milk to Pennsylvania in order to turn it into cheese, due to state pasteurization requirements in Maryland.