FDA backs down on wood aging of cheese

by Walter Olson on June 11, 2014

Yes! Following an enormous outcry from cheese makers, commentators, and the general public, the agency beats a hasty retreat. Commentator/ Pepperdine lawprof Greg McNeil has the details at Forbes (and his earlier commentary on the legalities of the agency’s action is also informative). Earlier here.

In a classic bureaucratic move, the agency denied it had actually issued a new policy (technically true, if you accept the premise that a policy letter from its chief person in charge of cheese regulation is not the same as a formally adopted new policy) and left itself the discretion to adopt such a policy in future if it wishes (merely declaring itself open to persuasion that wood shelving might prove compatible with the FSMA).

McNeal:

This is also a lesson for people in other regulated industries. When government officials make pronouncements that don’t seem grounded in law or policy, and threaten your livelihood with an enforcement action, you must organize and fight back. While specialized industries may think that nobody cares, the fight over aged cheese proves that people’s voices can be heard…

There is a less optimistic version, however. It happens that a large number of editors, commentators, and others among the chattering classes are both personally interested in the availability of fine cheese and familiar enough with the process by which it is made to be un-cowed by claims of superior agency expertise. That might also be true of a few other issues here and there — cottage food sold at farmer’s markets, artisanal brewing practices — but it’s inevitably not going to be true of hundreds of other issues that arise under the new Food Safety Modernization Act. In a similar way, the outcry against CPSIA, the Consumer Product Safety Improvement Act, rose to a politically effective level only on a selected few issues (publishers and libraries got a fix so that older children’s books would not have to be trashed; youth motorsports eventually obtained an exemption, and so forth) but large numbers of smaller children’s products and specialties whose makers had less of a political voice simply disappeared.

More: Andrew Coulson, Cato, and on the trade aspects, K. William Watson; Chuck Ross, Daily Caller (quoting me at length for which thanks). On the FDA’s new statement: “Typical bureaucratic doublespeak that seems meant to maximize uncertainty for the regulated community” [Eric Bott of Wisconsin Manufacturers and Commerce] “This was the worst possible outcome. It reinforces elites’ view that regulators are reasonable and wise and will fix mistakes.” [@random_eddie] “Pay no attention to the Leviathan behind the cheesecloth” [Scott Lincicome, in an exchange after a writer at Slate observed that "Libertarians aren't the only ones" who might want to keep board-aged cheese legal] (Vox, Reason, Carly Ledbetter/HuffPo; & welcome Instapundit, Alexander Cohen/Atlas Society, Q and O readers)

{ 8 trackbacks }

Cheeseboarding (Update FTW) | Simple Justice
06.11.14 at 7:57 am
CheezeUs!! How Much More “Good Government” Can We Take | clever nicknames
06.11.14 at 3:55 pm
The FDA, Cheese, and Wooden Boards | The Common Room
06.11.14 at 4:55 pm
That ain’t microbial pathogens, that’s flavor – Redux | Because, Science!
06.11.14 at 7:02 pm
Don’t take my cheese… | A Moral Outrage
06.11.14 at 7:02 pm
Morning Reads — Thursday, June 12, 2014 — Peach Pundit
06.12.14 at 7:01 am
Flashback: when the FDA banned Mimolette - Overlawyered
06.14.14 at 11:15 am
Advice Goddess Blog
06.16.14 at 12:06 am

{ 17 comments }

1 Pencils 06.11.14 at 10:02 am

Did we actually just win a small victory over the administration? Did not think that was possible in the current climate we live in. Great news.

2 SafeTea 06.11.14 at 11:27 am

Don’t mess with our cheese or we’ll give you something to wine about.

3 Brian 06.11.14 at 12:08 pm

Blessed are the cheesemakers.

4 imax 06.11.14 at 12:22 pm

They can take our lives, but they can never take OUR CHEESES!!!

5 No Name Guy 06.11.14 at 12:42 pm

I’ll remind the audience of the foolishness of the EPA in wanting to treat spilled milk the same as spilled crude oil. Hmmm….I wonder, since milk is what cheese is made from, and the EPA was going to treat milk as a haz mat spill, then would dropping a piece of (shock – wood aged) cheese, which after all is nothing but processed milk (like acetone or gasoline being nothing more than processed oil) on the ground require a Superfund cleanup? Would the wood boards that the cheese is being aged on need to be dealt with as one would contaminated by oil products? I jest, but this is the “logic” where these kinds of proposals comes from.

6 Dale 06.11.14 at 2:02 pm

Milk spills into water bodies are quite harmful. Dissolved oxygen is always in scarce supply in water and as milk is broken down by bacterial action a large amount of oxygen is used. The result is a fish kill. I’m an aquatic biologist. – Be careful about rushing to judgements without knowledge of the subject matter.

But as far as the reversal on the cheesemaking issue – excellent!

7 TxDan 06.11.14 at 2:24 pm

This was just a test. Make no mistake, the other shoe is forcing all cheese makers to use Pasteurized milk. This was just a warm up run to practice for the big one.

8 Some Cheesehead 06.11.14 at 3:40 pm

The numbskulls responsible for this stupidity need to be fired – there is simply no disincentive for regulators to keep expanding their reach.

9 Pamela Gordon 06.11.14 at 6:47 pm

Does this mean I get my much longed-for French Mimolette cheese back??? God, I hope so! This insanity has gone on long enough.

10 Mannie 06.12.14 at 9:33 am

According to a f(r)iend of mine who is in the public health field, this started with a US artisanal cheesie with a major Listeria problem; a genuine public health issue. It wasn’t about wood, other than perhaps dirty wood. The cheesie launched an Internet campaign which bloomed.

It appears that, in reaction, the Feds doubled down and created a crisis.

11 richard40 06.12.14 at 2:37 pm

“Did we actually just win a small victory over the administration? Did not think that was possible in the current climate we live in. Great news.”
We only won because a lot of lefties like that kind of cheese as well. If it had been a product that only conservatives and libertarians liked, we still would have been up a creek. Its a hollow victory until the power of the agency that regularly perpetrates these outrages is finally curbed, which the leftists will never do, since now they know the agency will never issue a ruling that they do not also like.

12 richard40 06.12.14 at 2:45 pm

Note to Dale. Sure, a very large milk spill (say 50 gallons) could be harmful. But a spill of a few gallons wont hurt anybody, as long as you clean it up before it goes bad. These idiots were treating it like they spilled a can of a highly poisonous petrochemical, or high level radioactive waste.

13 wfjag 06.12.14 at 3:31 pm

@Mannie:
“According to a f(r)iend of mine who is in the public health field, this started with a US artisanal cheesie with a major Listeria problem; a genuine public health issue. *** The cheesie launched an Internet campaign which bloomed.”

So, now it’s “Guns don’t kill people, Cheese kills people” ? I must have missed that one. Fortunately, you can tell your “f(r)iend” that “We’ll always have Cheez Whiz” (because it appears capable of defying the Rule Against Perpetuities).

14 No Name Guy 06.13.14 at 12:37 pm

Dale

I’ll pour 55 gallons of milk into a creek. You pour in 55 gallons of used motor oil.

Which will do more damage, both long and short term, and what will the relative damage be?

I’ll pour 55 gallons of milk onto my front lawn. You pour 55 gallons of crude oil onto yours.

Which will do more damage, both long and short term, and what will the relative damage be? I think my damage would be mostly from the neighborhood cats trying to lap up the bounty.

Dairy Farmer “A” spills 1,000 gallons of milk into his farmyard from a ruptured storage tank. Dairy Farmer “B” spills 1,000 gallons of diesel fuel for his tractor from a ruptured storage tank into his farmyard. Which one has a real hazmat problem?

QED – milk isn’t hazmat. And aging cheese as it has been done for thousands of years isn’t dangerous. Stupid, power hungry idiots in DC that come up with these harebrained ideas on the other hand SHOULD be classed as hazmat.

15 Dale 06.13.14 at 2:46 pm

No Name Guy

In terms of potential for harm to aquatic life a sizable spill of milk into a water body is a serious matter. The obvious cases would be a failed milk tank next to a river or an accident involving a milk transport truck on a bridge. Surface waters typically contain 12 or less mg O2/L.

Consider the following from http://www.ecifm.rdg.ac.uk/bod.htm

Biological Oxygen Demand (BOD)
If the organic material contained in manure, slurries, silage effluents, waste milk or vegetable washings enters a water course, it is broken down by micro-organisms. This process removes oxygen from the water and in severe cases of contamination, aquatic life can be killed through oxygen starvation rather than direct poisoning.
Wastes from agriculture tend to have a high B.O.D. when compared with treated and untreated domestic sewage:
BOD (mg O2/litre of pollutant)
Treated domestic sewage 20 – 60
Raw domestic sewage 300 – 400
Vegetable washings 500 – 3000
Dirty water (parlour washings, yard run off etc.) 1000 – 2000
Cattle slurry 10 000 – 20 000
Pig slurry 20 000 – 30 000
Silage effluent 30 000 – 80 000
Milk 140 000
The severity of an organic waste pollution incident will depend on the volume of waste and the amount of dilution once in a watercourse.

***
I wasn’t referring to land spills. I don’t believe that milk spills onto land are a matter for concern. Oil spills onto land are bit of a concern but bacterial action will degrade oil over time. One of the tricks of remeditating oil spill contaminated soil is to plow in manure to speed up the bacterial action.

I’m not trying to be confrontational just wanting to educate a bit. Thank you for that opportunity.

Do bureaucrats overreach and need to be questioned? Absolutely.

16 No Name Guy 06.13.14 at 9:29 pm

The EPA was wanting to treat land spills (and water spills) of milk the same as oil spills – requiring spill prevention plans, extra storage tanks, training “first responders”, etc…

I’m well aware of the fact that organic matter uses oxygen in water. I never said that willfully pouring milk into waterways is a good thing – just that it’s a trivial harm compared to the real damage that an oil spill would do – and that the EPA was talking of treating both the same and were shouted down, same as with this equally ridiculous proposal. The stupidity that flows from DC boggles the mind.

By your own numbers by the way, using the mid range for treated waste water, a million gallons a day of that is the same as about 2800 gallons of milk. That would have to be whole tanker truck(s) per day to equal what a small / mid size city would typically outfall in terms of BOD. Fair amounts of dairy farmers here in Western Washington – can’t recall the last time there was a major milk spill into a local creek.

17 alan 06.15.14 at 4:00 am

In a sane world this decision would have been made on science alone. not opinion. Science should have justified the so called policy in the first place.

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