Farm-to-Consumer Legal Defense Fund
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Behind the Thanksgiving consumer alert on Blue Marble Dairy

By Linda Falkenstein |

For Nick Kirch, owner and operator of Blue Marble Dairy, it's time to take a break from the dairy business and "explore all options."

Kirch's Blue Marble operation, in Barneveld, was one of the few dairy farms in Wisconsin doing its own pasteurization and bottling, trying to produce product that was "as close to raw milk as possible," says Kirch.

But problems with the inspection process of the dairy's milk came to a head on Wednesday, Nov. 25, the afternoon before Thanksgiving. A Department of Agriculture, Trade and Consumer Protection (DATCP) inspector came to the farm, saying there was a problem with a test result.

Dairy inspections like these take place routinely every month, says Donna Gilson, spokeswoman for DATCP. In this case, the milk showed the presence of phosphatase, "an enzyme that occurs naturally in milk but which pasteurization usually destroys," says Gilson. Test results, she notes, "can be a fluke. We don't take them as gospel."

So the next step is to look at the records the dairy keeps, then take a second sample. In the case of Blue Marble, "the pasteurization records were not in order," says Gilson, so taking a second sample would not have necessarily cleared up the problem. The records linking the actual bottles of milk to the pasteurization weren't there. Kirch acknowledges that the one chart concerning the milk in question was missing.

Kirch says that when the inspector told him of the test result problem, he told her, "I've already let employees go, I'm done bottling for a time, I'm not going to bottle anymore." The inspector suggested that he could voluntarily surrender his license at that time, and "you're not going to see us [DATCP] again," says Kirch, in a phone interview.

However, later that day, two of that inspector's superiors proceeded to retest Blue Marble product that was on store shelves. The results came back from the lab showing that the phosphatase was present in the product, indicating that "pasteurization was incomplete," says Gilson.

At that point, DATCP tried to contact Kirch so that he could issue a product recall, but "we had three different phone numbers, two were disconnected, and on the third, we got voicemail and left several messages," says Gilson. When DATCP was unable to contact Kirch, it issued the consumer alert press release on the eve of Thanksgiving.

Kirch suggests that the night before Thanksgiving is naturally a difficult time to reach someone and, moreover, that he was originally told that only whole milk dated 11-27-09 was the source of the potential problem, whereas the press release issued by DATCP on Thanksgiving eve instructs consumers not to drink Blue Marble products including "whole milk, skim milk, chocolate milk, heavy whipping cream, half and half, buttermilk and eggnog in a variety of sizes."

DATCP's Gilson says that's because all of the milk would have gone through the same pasteurization equipment, and without the proper records, there was "no way to rule any product out."

Kirch says that he understands why, from DATCP's point of view, the consumer alert was put out, especially right before Thanksgiving -- to cover "What if someone got sick? I understand that, if something had happened." Nonetheless, in a post on The Daily Page Forum, Kirch's disappointment at this turn of events is clear.

Ultimately, the issue may come down to differing opinions about pasteurization. There was, Kirch believes, "nothing wrong with the milk." Pasteurization, as the growing number of raw milk advocates argue, is "killing something that is good for you."

Currently, Kirch is still milking his cows, but sending the milk off "hundreds of miles away, where it's mixed with a billion other cows' milk," exactly the scenario he started Blue Marble to get away from.

But he is also in the process of selling his cows. He needs the money, he says, but even more, he needs the rest to spend more time with his family -- he has five kids -- and consider the future: "When you're spending 10 hours a day milking and doing chores, you can't really think about things."

Kirch feels he needs a partner, admitting that "the barn, bookkeeping and distribution" is too much for one person to handle, and he'd like someone with a "vested interest" in the project.

He thinks the raw milk movement presents one possible avenue. "The raw milk people need a facility to bottle milk," Kirch says. Currently, these underground operations might consist of a raw milk advocate showing up in somebody's garage saying "here's my jug" to pick up their milk. That, Kirch says, is unsanitary, yet any problems with the milk would unfairly get traced back to the farmer, not the jug. "The raw milk issue will be coming up again and again until they [the Legislature] pass something," says Kirch.


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