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Morningland Cheese Trial

On January 11-12, 2010, a trial was held at the Howell County Courthouse in West Plains, Missouri, to determine whether approximately 29,000 pounds of cheese held at the facility of Morningland of the Ozarks, LLC (d/b/a Morningland Dairy) should be destroyed despite no reports of illness. Morningland’s entire inventory of cheese has been under embargo since August 26, 2010.

Morningland is a farmstead cheese operation located in Mountain View, Missouri, that has been in business for more than 30 years without any reported illnesses from the consumption of its products. [For more information on the Morningland case, read “FDA’s Ace in the Hole”.]

On October 22, the Missouri State Milk Board filed a petition in the Circuit Court for Howell County for an injunction that would order the destruction of the embargoed cheese. On October 1, the Milk Board had issued a letter to Joe and Denise Dixon, owners of Morningland, requesting that the dairy destroy its entire cheese inventory because some pieces of cheese sent off by Morningland for testing on August 27 came back positive for Listeria monocytogenes (L. mono.) and others came back positive forStaphylococcus aureus (Staph aureus or S. aureus).

Judge David Dunlap, who presided over the trial, also heard counterclaims filed by attorney Gary Cox, general counsel for the Farm-to-Consumer Legal Defense Fund, on behalf of Morningland asking the court to lift the August 26 embargo and to vacate the October 1 destruction letter. The trial went for 10 hours each day. At the end of the proceedings, it was far from clear with whom Judge Dunlap would side.

The judge’s decision will turn on what he finds constitutes “adulteration.” If the judge rules the entire inventory of cheese in the cooler is adulterated, then he will probably order it destroyed. At the beginning of the trial, Judge Dunlap indicated that the mere presence of L. mono. or S. aureus in the cheese would not be enough evidence to constitute adulteration; but later he vacillated somewhat by stating that the Milk Board would only have to show that the cheese was harmful to a susceptible population, such as the young, elderly, and those with compromised immunity. A more favorable standard for Morningland would have been that the Milk Board needed to show that the cheese must have the capability of sickening an average person.

The only evidence the Milk Board presented against Morningland was that pieces of cheese from only twelve different dates of production had tested positive for L. mono. and S. aureus even though the cheese in the cooler was from over 100 different dates of production. There was, however, no evidence as to the type of L. mono. and S. aureus found in the pieces of cheese (there are types of these bacteria that have never been found to have caused illness in humans), nor was any evidence presented as to the amount of these bacteria found in the cheese.

Retired pathologist Dr. Ted Beals, an expert witness for Morningland, testified that it cannot be presumed that a food is adulterated just because it contains L. mono., but that it must be shown it is a type of L. mono. that is capable of making people ill. In addition to there being no record as to the type or amount of L. mono., the State had stipulated during a deposition that all 100 environmental swab samples collected by FDA last September at Morningland’s cheese plant had all tested negative for L. mono. This was significant evidence because even though all of Morningland’s goat cheese and cow cheese was produced from the same equipment, only the cow cheese had any evidence of L. mono. contamination; and since all of the swab samples came back negative for L. mono., it could not have been the equipment that was the cause of the contamination.

One interesting development at the trial was that attorneys for the Milk Board repeatedly objected when witnesses for Morningland mentioned the U.S. Food and Drug Administration (FDA); the agency has been driving the actions of the Milk Board right from the start. FDA’s position has been that the presence ofL. mono. is enough to constitute adulteration, with there being no need to determine the type or amount that is present.

FDA’s position is all the more dangerous with the mandatory recall power Congress recently gave the FDA by passing the FDA Food Safety Modernization Act (H.R. 2751) in December 2010. The Morningland case is about whether state and federal agencies must afford food producers due process, or whether they can arbitrarily put them out of business through recalls and food destruction orders simply because of positive pathogen tests when there are no reports of illness nor evidence that the specific type of the bacteria found is capable of making people sick.

Cox and attorneys for the Milk Board filed post trial briefs on January 28. Judge Dunlap’s decision is expected sometime later this winter.

Those wanting to help Morningland Dairy can make a donation through the "Uncheese Party" at Pledgie.com 

This article was originally written by Pete Kennedy for the February 2011 edition of Graze Magazine under the title, “Morningland Dairy Trial”, and has been edited for posting by the Farm-to-Consumer Legal Defense Fund.  Those interested in learning more about Graze may go to www.grazeonline.com or call 608-455-3311. Reprinted by permission. 

 

Last Updated: 2/6/2011