“It’s about raw butter, but not JUST about raw butter.”
A recent FDA ruling on the interstate sale of fresh, unprocessed butter potentially threatens the sale of other raw foods. Farm-to-Consumer Legal Defense Fund (FTCLDF) is appealing the ruling to push back against government overreach.
A recent appellate court decision means that butter made from unpasteurized milk or cream (i.e. raw butter) still cannot be sold across state lines.
On June 10, 2022, the United States Court of Appeals for the District of Columbia Circuit rejected an appeal challenging the legality of Food and Drug Administration (FDA) regulations prohibiting interstate commerce in raw butter.
Oral arguments on the ban of interstate sales of raw butter were held April 8, 2022 in Washington, D.C. FTCLDF attorney Mahesha P. Subbaraman argued the case before the U.S. District Court of Appeals The main plaintiff, California dairyman Mark Mcafee and FTCLDF Executive Director, Alexia Kulwiec, joined Mr. Subbaraman in D.C.
Live Oral Arguments from the U.S. District Court of Appeals (April 8, 2022)
Listen to the FTCLDF oral argument and the FDA response argument HERE.
Our Attorney’s Reaction (April 8, 2022)
View a short video of Mr. Subbaraman and Mr. McAfee’s reaction to the oral argument from just outside the D.C. District Court of Appeals HERE.
The Campaign for Raw Food is a story more than five years in the making. It’s a story of how government overreach banning the interstate sale of one nutrient-dense, unprocessed, whole food—in this case, raw butter—can impact access to many other raw foods, and limit our freedom to select, obtain, and purchase the foods of our choice from the producers of our choice.
FTCLDF and member Mark McAfee, owner of RawFarm, LLC, are heading back to court to appeal a ruling made by U.S. District Court District Judge Rudolph Contreras on May 24, 2021, that upheld the FDA’s ban on the interstate transport, distribution and sales of fresh, unprocessed butter.
Latest: Oral arguments were held April 8, 2022 at the D.C. District Court of Appeals. The FDA has filed a response brief dated 02/07/2022, which argues for unlimited authority to regulate foods under the Public Health Services Act. Under such rule the FDA could prohibit all raw food such as oysters and sushi.
The district court’s judgment that the PHSA allows FDA’s raw-butter ban in effect grants FDA unlimited power to ban any fresh, unprocessed food.” – MARK MCAFEE AND FARM-TO-CONSUMER LEGAL DEFENSE FUND, Plaintiffs–Appellants in appellate briefs filed January 7, 2022
2016 – Citizen Petition filed by FTCLDF and member, Mark McAfee, but the FDA failed to respond.
2019 – FTCLDF and McAfee sued to compel the FDA to respond to petition.
02/2020 – FDA issued decision denying petition, upholding ban on interstate sales of raw butter. Legal document
05/2020 – FTCLDF and McAfee amended federal lawsuit to now try and overturn the FDA’s 02/2020 decision. Legal document
05/2021 – Judge Contreras upheld the FDA’s 02/20 decision. Legal document
12/2021 – FTCLDF and McAfee filed appeal of Judge Conteras’ 05/21 decision to uphold the ban.
01/07/2022 – FTCLDF and McAfee filed initial appellate briefs. Legal document
2/07/2022 – The FDA’s response brief, which argues for unlimited authority to regulate foods under the Public Health Services Act. Under such rule the FDA could prohibit all raw food such as oysters and sushi. Legal document
2/09/2022 – D.C. District Court of Appeals orders that the case be scheduled for oral argument on April 08, 2022, at 9:30 A.M. Legal document
3/14/2022 – The reply brief of the appellants, Mark McAfee and FTCLDF, which lays out the argument that raw butter is safe, and can be made safely. Legal document
4/8/2022 – Oral arguments were held at the U.S. District Court of Appeals in Washington, D.C. We are currently awaiting the judge’s decision. Listen to the live oral arguments. See a video of our attorney’s reaction just after oral arguments.
6/10/2022 – U.S. District Court of Appeals in Washington, D.C. upholds the district court ruling on banning the interstate sale of raw butter. Legal document
What is Happening Right Now?
In late 2021, FTCLDF and McAfee filed an appeal with the D.C. Circuit Court of Appeals. On January 7, 2022, they filed their initial briefs to the appellate court arguing that the Court should reverse the decision of the district court to uphold the FDA ban on the interstate sales of raw butter.
Oral arguments were held April 8, 2022 at the D.C. District Court of Appeals. The FDA has filed a response brief dated 02/07/2022, which argues for unlimited authority to regulate foods under the Public Health Services Act. Under such rule the FDA could prohibit all raw food such as oysters and sushi.
In his decision, U.S. District Court Judge Rudolph Contreras determined that the FDA has the power to ban foods indefinitely under a public-health law meant only for emergencies. Not so, says FTCLDF attorneys.
“We appealed this ruling to protect our members from extraordinary government overreach,” says FTCLDF Executive Director Alexia Kulwiec. “Without either legislative approval or scientific justification the FDA has prohibited the interstate sale of a safe, and nutrient-rich product, and suggested the agency has nearly limitless authority to do so.”
The FDA ban rests on the Public Health Service Act (PHSA). FTCLDF attorney Mahesha Subbaraman disagrees with the ruling.
Congress has long excluded butter from the FDA’s authority,” says Subbaraman. “If the FDA can use the PHSA to evade this key limit, the FDA is free to ban not only raw butter but also apples, oysters, sushi, and every other raw food that Americans hold dear.”
“The use of public health law by the FDA to ban raw butter access represents an unfounded abuse of authority,” agrees McAfee. “This must stop for the health of our consumers and the right of farmers to produce safe, whole, unprocessed, nutrient-dense foods to feed us all.”
What is the Campaign for Raw Food?
The Campaign for Raw Food is a growing coalition of the Farm-to-Consumer Legal Defense Fund, independent farmers and artisan food makers, who produce, harvest or sell raw foods, like raw milk, raw butter, raw fish and shellfish, and even raw vegetables; plus a growing group of organizations and concerned consumers around the nation calling on policymakers to commit to science-driven food laws. Specifically, the Campaign for Raw Food will do the following:
- Appeal a court ruling that upheld the FDA’s ban on the interstate transport, distribution and sales of raw butter.
- Ask the court to overturn the May 24, 2021 ruling by U.S. District Court Judge Rudolph Contreras which determined that the FDA has the power to ban foods indefinitely under a public-health law meant only for emergencies, the Public Health Service Act (PHSA).
- End the FDA’s “extraordinary government overreach” that can affect the production and sale of many common raw foods.
- Not allow the FDA to use the PHSA to ban raw butter which could potentially be used to ban other raw, healthy foods, such as lettuce, oysters, and sushi, that Americans regularly and safely consume.
- Stop the use of an emergency public health law by the FDA to ban raw butter which represents an unfounded abuse of authority.
- Push back against government overreach to protect the individual liberties of American citizens to obtain the foods they want from the producers they choose.
Here are a few ways to get involved in this important campaign for access to raw foods.
- Sign up! For our Action Alerts to receive the latest news about raw foods.
- Join us! Besides receiving all of the benefits of membership, your dues help support all of our work, including direct legal services for farmers and cottage food producers. You can join as a farmer, homesteader, artisanal food producer, or consumer.
- Donate! To this campaign, or to our general fund. Any amount helps!
- Keep the issue front & center. Write a letter to the editor of your local paper or submit an OpEd. Post the issue on your social media. Decisionmakers pay attention to media coverage! If you are a member of the media, or have media contact, please reach out to us.
- Build momentum. Talk to your friends, family, neighbors about the importance of keeping healthy, raw foods accessible, and protecting independent farmers and artisanal food producers. Ask them to join this campaign too!
- Buy the raw foods of your choice from your local producers. A strong market is vital to keeping access to these traditional foods. Help keep your independent farmers and local food producers in business!
Want to learn more? Read below for additional details and background about the Campaign for Raw Food.
Want to help out? Donate to the Campaign for Raw Food.
Independent American dairy farmers want to sell their unpasteurized butter across state lines. The Food and Drug Administration (FDA) is standing in the way. Mark McAfee, owner of Raw Farm by Organic Pastures Dairy, and Farm-to-Consumer Legal Defense Fund (FTCLDF) have been litigating the issue against FDA. On January 7, 2022, McAfee and FTCLDF filed their brief with the D.C. Circuit Court of appeals, seeking to overturn a lower court ruling that upheld the FDA’s ban on the interstate transport, distribution and sales of raw butter….
Mark McAfee, owner of Raw Farm by Organic Pastures Dairy, has teamed with Farm-to-Consumer Legal Defense Fund (FTCLDF) to appeal a court ruling that upheld the Food and Drug Administration’s (FDA) ban on the interstate transport, distribution and sales of raw butter. The parties are appealing a May 24, 2021 ruling by U.S…