Small cheese makers are outraged over a new agency order from Food and Drug Administration (FDA) that has hit the industry like a thunderbolt. Monica Metz, Branch Chief of the FDA’s Center for Food Safety and Applied Nutrition’s Dairy and Egg Branch, issued an order that appears to end the centuries old practice of aging cheese on wooden boards. Banning the use of wood would threaten the American artisan cheese industry and could even bar some of the most prized imported cheeses. Worse yet, small cheese makers say that the new rule favors large manufacturers like Leprino and Kraft and Metz happens to be a former Leprino employee. [Update: The FDA appears to be backing off Metz’s statement and now denies that there is a new policy.]

The whey hit the fan after the New York State Department of Agriculture asked the FDA for clarification as to whether wooden surfaces were acceptable for the aging of cheese. Metz then responded with the following:

“The use of wooden shelves, rough or otherwise, for cheese ripening does not conform to cGMP requirements, which require that “all plant equipment and utensils shall be so designed and of such material and workmanship as to be adequately cleanable, and shall be properly maintained.” 21 CFR 110.40(a). Wooden shelves or boards cannot be adequately cleaned and sanitized. The porous structure of wood enables it to absorb and retain bacteria, therefore bacteria generally colonize not only the surface but also the inside layers of wood. The shelves or boards used for aging make direct contact with finished products; hence they could be a potential source of pathogenic microorganisms in the finished products.”

That one line effectively ended centuries of cheese making without any vote of Congress or a hearing or a scientific study. One administrator appears to have rendered a decision that would decapitate an industry. I recently wrote about the rise of a “fourth branch” within our system and the dangers that it poses for a tripartite system. There has been a gravitational shift in our system toward this fourth branch which now has a surprisingly degree of executive, legislative, and judicial powers. This issue is also raised in the recess appointment context and the diminishing control of Congress over agency actions. I have previously testified and written about President Barack Obama’s use of recess appointments, which I viewed as flagrantly unconstitutional. Recently, the D.C. Circuit agreed with that view and found that the Obama Administration had violated the recess appointment powers. Then a second appellate court has joined that view, the United States Court of Appeals for the Third Circuit. I have two law review articles that discuss the abuse of recess appointment powers in modern presidencies within the context of this changing federal system. See Jonathan Turley, Recess Appointments in the Age of Regulation, 93 Boston University Law Review (2013) and Jonathan Turley, Constitutional Adverse Possession: Recess Appointments and the Role of Historical Practice in Constitutional Interpretation, 2103 Wisconsin Law Review (2013). We are currently awaiting a ruling in Noel Canning v. NLRB, No. 12-1115 (D.C. Cir. 2013).

Metz cites 21 CFR 110.40(a). However that provision does not mention wood shelves or equipment:

All plant equipment and utensils shall be so designed and of such material and workmanship as to be adequately cleanable, and shall be properly maintained. The design, construction, and use of equipment and utensils shall preclude the adulteration of food with lubricants, fuel, metal fragments, contaminated water, or any other contaminants. All equipment should be so installed and maintained as to facilitate the cleaning of the equipment and of all adjacent spaces. Food-contact surfaces shall be corrosion-resistant when in contact with food. They shall be made of nontoxic materials and designed to withstand the environment of their intended use and the action of food, and, if applicable, cleaning compounds and sanitizing agents. Food-contact surfaces shall be maintained to protect food from being contaminated by any source, including unlawful indirect food additives.

Cheese makers have been cleaning and maintaining safe conditions for centuries with wood. Moreover, many artisan cheese makers strongly believe that wood is a critical element in the taste and maturation of cheese. Rob Ralyea of Cornell University’s Department of Food Science, commenting on the FDA’s action noted “the great majority of cheeses imported to this country are in fact aged on wooden boards and some are required to be aged on wood by their standard of identity (Comte, Beaufort and Reblochon, to name a few). Therefore, it will be interesting to see how these specific cheeses will be dealt with when it comes to importation into the United States.”

I fail to see how such a decision can be made unilaterally by this official or her department without more support. Under the same logic, the FDA could ban oak barrels for wine and insist on stainless steel or ban the traditional drying techniques of peat used in Scotch (often on the floor of a barn).

I am a great lover of artisan cheese and, once you have been to Europe, most store bought cheese from companies like Kraft seem rather pathetic like jug wine. Our artisan cheeses are just now coming into international acclaim and recognition. In this sense, cheese is where American wines were a few decades ago. Just as we are emerging as a major supplier of artisan, high-value cheeses, the Obama Administration appears poised to cut off these small makers at the knees.

Update: The Administration is backpedaling on Metz’s statement but not entirely. It released a statement that “The FDA will engage with the artisanal cheese-making community to determine whether certain types of cheeses can safely be made by aging them on wooden shelving.” That still leaves some worried about new regulations forcing metal production areas like Kraft. The change also raises the question of why the Administration would release the policy stated by Metz and cause such a worldwide industry panic.

Source: Forbes