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
Cheese & the FDA, affordable electricity & the EPA, firearms & the FDIC.
The “fourth branch” is indeed growing in size, scope and power daily.
“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” James Madison Federalist Paper No. 51 (02 1788 06)
The whole “oblige it to control itself” isn’t working so well. Is it working at all?
At what point do we acknowledge that the Constitution was a nice piece of work that helped during our “evolution” as a nation?
One HUGE problem with this blog is that the main blogger, a rightly noted scholar, only delivers us the problem without any help in understanding the principles and fundamentals of what has gone wrong with “the system.” Prior to the Enlightenment, these kinds of guild rules dominated–as well as the total regulation of human life and penalty for minor “moral failings” written about constantly on this blog. These have been picked up by the Progressive movement, which now dominates BOTH sides of the isle. What did the Enlightenment achieve (in legal terms, which is mainly the gist of these blogs) that has now been lost? Then, and only then, can we move towards a solution. Comment upon comment by the demos, ranting that “this just ain’t right” gets us no where. Who better than this blogger to give us that vital fundamental information. AND, if he doesn’t know off hand, what better way to sharpen his scholarly skills then to pursue the answers?
Michael – It is not Prof Turley’s method to lead us by the hand. He presents the problem, then we debate it to death. Often moving to tangents which we also debate to death.
Dredd, the earthly representative of The Cheezus of Green Bay. Pope Cheddar the 3rd.
http://www.jerseyal.com/GBP/wp-content/uploads/2010/09/St-Vince-1a.jpg
BFM, Your great point about plastics is probably what is @ the core of this. Kraft and those other multinational companies have dealt w/ having to compete w/ artisanal cheese makers for decades. They cannot get them out of business because there is a tradition going back CENTURIES. The artisanal cheese movement in the US has exploded over the past decade. They now compete w/ Kraft junk cheese and kick it’s ass. So, the Kraft’s and the plastic makers grease the palms of bureaucrats and you have new rules, Voila!
Whenever you see new regulations that thwarts competition it is large industries “lobbying” the govt. to thwart competition. Another good example is the taxi industry trying to put car services out of business.
BFM: “What ever will science come up with next.”
Don’t worry, BFM. I’m sure there’s something coming down the pike right now. The cheese debate is a flag the FDA raised to simply see which way the wind was going to blow. Sort of like a good magician, while your eyes are diverted to the waving flag, the real dastardly deed goes unnoticed. Bait and switch. Works every time.
” Now, anyone who knows ANTHING about pickling knows that the vinegar takes care of any bacteria. ”
I agree with you Nick.
Isn’t that weird. Traditional forms of food preservation such as the use of acetic acid in vinegar or lemon juice, and salt are no long adequate to protect us.
What ever will science come up with next.
I suppose the risk from the use of vinegar or salt is ever so much greater than the risk from plasticizers and other industrial solvents and chemicals leaching into our food.
Maybe the FDA should focus on a threat greater than terrorism – antibiotics fed to livestock – estimated to kill more than 20,000 Americans each year.
In a nutshell they’re saying “forget about practices that proved fine for centuries and eat Velveeta”… 🙁
Tasty – I think if you read the label Valveta is processed cheese food product.
Exactly my point – such regulations are all in favor of large companies that manufacture commercial processed “foods”, that only ruin people’s health – and all this is done while pretending to care about our health. 🙁
“commercial processed “foods”, that only ruin people’s health –”
True, except for Tastykakes and GooGoos which are a kind of ambrosia handed down form the gods.
😀
Next thing you know they will be saying you can’t make whiskey using wood. Good luck with that.
If you have any kind of regulation, this will establish such powers. I have had some bad experiences with the FAA where the people did not know their own regs. Thankfully, there are others higher up who DO know what they are doing. It seems like the system worked quite well in this case, and stopped some dumb rules from being enforced.
Now if you are doctrinaire libertarian or Ayn Randian, I am sure that you will object to ANY governmental role in such things and leave it up to the capitalists to do their thing, no matter how many people die or are screwed. The FACT is that we tried that once, which is why we put such regulatory agencies there.
Just leave the cheese alone. It’s already made of bacteria. You know how difficult it is to get good blue cheese?
My cheese maker friend says you CANNOT make artisanal cheese w/o wood.
There’s a company, Van Holten pickles, about 8 miles from my house. Many of you may know them. They have become semi famous for their “pickles in a pouch.” This company, for GENERATIONS, cured their pickles in large, oak casks. Not any more. The FDA made Van Holten switch to plastic. Now, anyone who knows ANTHING about pickling knows that the vinegar takes care of any bacteria.
On the artisan cheese. I know a guy who is an award winning artisan cheese maker. The FDA has been on them for several years. They also are after them for using raw milk. I can tell you these very apolitical people are going to ignore these rules and are, as you see here, taking their plight to the people. BASTA, as my Italian grandma would say.
Metz happens to be a former Leprino employee.
If he can pull this off he will be rewarded with a great do nothing job at leprino. It’s just another revolving door of the criminals in govt. and corp.
Never, never take the FDA at their word.
Cheezus of Green Bay will not smile about this.
“[Update: The FDA appears to be backing off Metz’s statement and now denies that there is a new policy.]” – JT
Or maybe not.
I am really big on good practices to prevent food borne illness.
And this regulation sounds plausible.
But in actual practice, over centuries this does not seem to be much of a problem.
I would like to know what is the incidence of food borne illness actually traced to this practice?
Is this a real threat to consumers of is this one more instance of thoughtless regulation?
BTW, I am all for regulation that solves a real problem.
First, does the FDA understand that cheese is formed through a bacteria process? And they’re worried about the wood the cheese is resting on? What’s next — no oak casks for wine and whiskey aging?
Second, if the feds want to improve the health of US citizens, they could start by banning smoking outright and levying an obesity tax on fast food. Oh, I forgot, the Prez smokes, and Bill Clinton is a fan of McDonalds. Never mind.
A rule that benefits industrial chees makers? What a shock. I wonder. How that happened. Could it be that the lobbyists for big food actually wrote those rules?
Is there any aspect of life the federal government doesn’t want to control?
This was an unnecessary action by those who do not know what they are doing and have too much time on their hands.
Professor Turley is also correct about European cheese. Once you have had this returning to the United States will make one respect the corporate cheese much less. I heard one quote that summed it up quite well. “Americans measure a good cheese by how well it melts in a microwave.”
But it is nothing to expect anything different from this fourth branch of gov’t. Sometimes it does seem they are trying to knock out small businesses in favor of very large ones. I suggest being extra suspicious when a politician tells you they are a big supporter of small business. Many are not.