A bitter legal fight is heating up over the mildest of drinks — milk: the kind that comes straight from the cow, drunk “raw” without pasteurization.

Selling raw milk is illegal in 20 states, and the U.S. Food and Drug Administration bans all interstate shipments, concerned that unpasteurized milk can easily be contaminated by illness-causing bacteria.

But raw-milk devotees claim pasteurization also destroys beneficial enzymes, and that raw milk can help treat everything from asthma to cancer to lactose intolerance. Buoyed by the local/organic/unprocessed food movement, raw-milk drinkers are growing in number and becoming increasingly vocal about demanding the freedom to drink milk of their choosing.

It’s an unlikely civil rights movement, but raw-milk fans have recently staged “freedom rides” to bring milk across state lines, and filed suit in Iowa federal court challenging the FDA’s restrictions as unconstitutional. Republican presidential candidate Ron Paul has introduced legislation to repeal the FDA ban, and in campaign speeches has said he’s “all for raw milk.”

As David Cox, general counsel of the pro-raw milk Farm-to-Consumer Legal Defense Fund, put it, “The question is: Who decides what you can eat and drink? If I want to eat road kill, can the government tell me I can’t? What if I want to eat tree bark? Are we all wards of the state? Or are we individuals with our own cognition and ability to make decisions for ourselves?”

The FDA in court papers bluntly asserts that there is “no generalized right to bodily and physical health” and “no right to consume or feed children any particular food,” according to agency lawyers. “There is no ‘deeply rooted’ historical tradition of unfettered access to food of all kinds. To the contrary, society’s long history of food regulation stretches back to the dietary laws of biblical times.”

While the agency has made it clear it’s not interested in prosecuting individuals who bring raw milk across state lines for their personal consumption, FDA agents have gone after farmers and distributors who sell it, conducting undercover sting operations and raids and bringing criminal charges.

Plaintiffs’ lawyers are not far behind. They’ve sued farmers after people have allegedly been sickened by bacteria such as E. coli, salmonella and campylobacter from raw milk. Seattle plaintiffs’ lawyer Bill Marler, a name partner at food-poisoning litigation boutique Marler Clark, describes his clients as “parents who really tried to do the right thing for their kids and wind up nearly killing them.”

HOT STUFF

Pasteurization — heating milk to 161 degrees for at least 15 seconds — became widespread in the early 1900s, at a time when “swill milk” from filthy dairies killed 8,000 children a year, according to The New York Times. The first law requiring pasteurization was passed by the city of Chicago in 1908.

The federal government, however, stayed on the sidelines. It took a 1984 lawsuit by Public Citizen to force the FDA to act.

In the suit, Public Citizen v. Heckler, Judge Norma Holloway Johnson of U.S. District Court for the District of Columbia found it was “undisputed that all types of raw milk are unsafe for human consumption and pose a significant health risk.” She ordered the FDA to write regulations (enacted in 1987) prohibiting interstate sales.

It’s not illegal to actually drink raw milk in any state, but selling it is another matter. Thirty states allow some form of in-state sales, though in many cases, the milk can only be purchased at the farm, not in a store. Plaintiffs’ lawyer Marler observed that there are “arguably more restrictions on the sale of raw milk than a fifth of whiskey.”

Proponents stress that raw-milk dairies nowadays are typically small and family-owned, with pasture-fed, hormone-free cows. The milk — which sells for as much as $18 a gallon — is no more dangerous than other foods, they say.

“I haven’t heard anyone suggest we should ban hamburger, spinach or cantaloupe, or even limit their availability,” said author and raw-milk activist David Gumpert, speaking at a Harvard Law School debate last month. “Common foods we take for granted can and do kill people. But there has not been a single death attributed to raw milk since the 1980s.”

Gumpert and others assert that raw milk has considerable countervailing health benefits, citing studies showing, for example, that children who drink it are less likely to develop asthma and allergies.

But even a farmer with the best intentions simply can’t guarantee pathogen-free milk, said Heidi Kassenborg, director of the Dairy and Food Inspection Division of the Minnesota Department of Agriculture, speaking at the debate sponsored by the Harvard Food Law Society. It’s “the practical reality of a dairy cow. Milk and manure are produced at the same end,” she said, noting that a dairy cow can produce a staggering 125 pounds of manure each day. “It’s not a sterile environment.”

The Centers for Disease Control and Prevention (CDC) in February found that people are 150 times more likely to be sickened by raw milk than pasteurized.

PERSONAL LIBERTY?

To raw-milk activists, it all comes down to personal liberty. The FDA is “trying to criminalize people who hold different beliefs of what a health food is,” said Peter Kennedy, president of the Farm-to-Consumer Legal Defense Fund. “The agency has said on the record that they don’t respect freedom of choice.”

The Falls Church, Va.-based nonprofit filed suit in the Northern District of Iowa in 2010 on behalf of seven people who live in states where the sale of raw milk is banned. The plaintiffs bought raw milk in neighboring states where it’s legal, then transported it over state lines. One plaintiff, who operates a “virtual farmers’ market,” had 110 gallons of raw milk seized by state officials when he crossed the border from South Carolina to Georgia.

In the suit, the plaintiffs allege that the government has infringed on their right to “travel across state lines; their right to feed themselves and their families the foods of their choice; [and] their right to raise their families in accordance with their beliefs about food” in violation of the substantive due process clause of the Fifth Amendment. The FDA’s ban is also arbitrary and capricious, they say, and violates the Administrative Procedure Act.

“Fresh, unprocessed raw milk does not present a threat to a person’s health,” wrote Cox, the fund’s general counsel, and local counsel Wallace Taylor of Cedar Rapids, Iowa, noting that the CDC found one out of every four people have some kind of food-borne illness every year, but only one out of every 20,000 who drink raw milk get sick from it. Activists estimate 3 percent of the American population drinks raw milk.

The plaintiffs suggest that, instead of a ban, the FDA could require a raw-milk warning label, similar to those found on unpasteurized juices.

The FDA in court papers countered that it has the authority to ban interstate shipments of raw milk under the Public Health Service Act, which authorizes it to “make and enforce regulations to prevent the introduction, transmission, or spread of communicable diseases from one state to another.” Further, the Federal Food, Drug, and Cosmetic Act charged the agency with ensuring that “foods are safe, wholesome, sanitary, and properly labeled.” In 1973, the FDA defined milk as a cow’s “lacteal secretion” that has been pasteurized. That means any product labeled as milk that isn’t pasteurized is misbranded, according to the FDA.

“As a matter of law, FDA’s regulations do not represent an impermissible delegation of legislative authority.…Plaintiffs’ assertion of a new ‘fundamental right’ under substantive due process to produce, obtain and consume unpasteurized milk lacks any support in law,” according to court papers signed by FDA counsel, who included Assistant U.S. Attorney Martha Fagg in Sioux City, Iowa; Department of Justice trial attorney Roger Gural; FDA Deputy Chief Counsel Eric Blumberg; and Associate Chief Counsel Jennifer Zachary.

In August 2010, Judge Mark Bennett denied the FDA’s motion to dismiss the suit, ruling that the plaintiffs had standing and the issue was ripe for review. Most recently, in January he refused the plaintiffs’ bid to enjoin the FDA from enforcing the regulations while the suit continues, finding there was “absolutely no showing” of irreparable harm.

AMISH ALERT

Indeed, the FDA has stressed that “[t]he government has neither brought nor threatened to bring a single enforcement action against consumers who purchase unpasteurized milk for personal consumption.”

But the FDA has aggressively pursued raw-milk producers who sell their products to out-of-state customers. For example, the agency spent two years on an undercover sting operation targeting an Amish farmer in Pennsylvania, Daniel Allgyer, who sold raw milk to consumers in Maryland and the District of Columbia.

FDA agents placed a series of online orders for raw milk from Allgyer’s Rainbow Acres Farm, then sent Allgyer a warning letter that he was violating federal law. According to court papers, Allgyer on his Web site responded that he would continue to sell raw milk by leasing his cows through a private organization, the Rawsome Club.

In February, Judge Lawrence Stengel of the Eastern District of Pennsylvania granted the FDA’s motion for summary judgment for a permanent injunction preventing Allgyer (who was not represented by counsel) from selling raw milk in interstate commerce. The judge found the cow-share agreement was “merely a subterfuge to create a transaction disguised as a sale of raw milk to consumers. The practical result of the arrangement is that consumers pay money to Mr. Allgyer and receive raw milk.”

There are no reported illnesses in connection to Allgyer’s milk, but milk from The Family Cow in Chambersburg, Pa., has sickened at least 80 people since Jan. 17, according to state health officials — the largest outbreak in state history. Laboratory tests found the milk was contaminated with campylobacter, which causes cramps, fever and diarrhea, with rare complications such as paralysis. At least nine people have been hospitalized.

Plaintiffs’ lawyer Marler is among those who sue farmers and retailers after such outbreaks. He represented a woman and child in Connecticut who consumed raw milk purchased from Whole Foods in 2008 that was contaminated with E. coli. Both developed Hemolytic Uremic Syndrome, which causes kidney damage, and ran up hundreds of thousands of dollars in medical bills. The matter settled on confidential terms — and Whole Foods, which was named in several suits, no longer sells raw milk.

To Marler, a total ban on raw milk “probably doesn’t make a whole lot of sense. Prohibition didn’t work either.” But he said there should stronger warning labels, more inspections and farm-only sales to help keep people safe.

As for raw-milk proponent Gumpert, he argues it’s here to stay. “People are increasingly seeking out unprocessed, untreated food, and fresh, unprocessed milk is a big part of it.”

Jenna Greene can be contacted at jgreene@alm.com.