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Providing leadership in public health management

2/17/2010

Hon. Chris Bentley Attorney General McMurtry-Scott Building 720 Bay Street, 11th Floor Toronto, ON M5G 2K1

Honourable Minister,

Re. Public Health and Raw Milk – Appeal of Court of Justice Judgment on R. v. Michael Schmidt

On behalf of member Medical Officers of Health, Boards of Health and Affiliate organizations of the Association of Local Public Health Agencies (alPHa), I am writing today to express our support for the appeal of the decision of the Ontario Court of Justice to allow Michael Schmidt to distribute unpasteurized milk, based on a legal interpretation that we believe is contrary to the intent of the law, and that we are certain would increase risks to public health in the future if allowed to stand.

While we recognize that the final decision was based on an interpretation of whether or not Mr. Schmidt was in strict compliance with existing Ontario statutes and made no judgment to invalidate them, we are troubled by several elements of the interpretation itself.

First, we disagree that such a clear statement as “No person shall sell, offer for sale, deliver or distribute milk or cream that has not been pasteurized or sterilized in a plant that is licensed under the Milk Act or in a plant outside Ontario that meets the standards for plants licensed under the Milk Act” (R.S.O. 1990, c. H.7, s. 18 (1)) should be subject to the “liberal interpretation” that is cited in the ruling.

Further, the Justice’s assertion that “there is no evidence that anyone ever became ill as a result of the consumption of the defendant’s milk products” not only ignores the significant potential risk that the law is designed to mitigate, but also ignores the substantial evidence that many people have become ill as a direct result of consuming unpasteurized milk products in general. In fact, just six months ago, the Wisconsin Department of Agriculture confirmed 35 campylobacter infections resulting from the consumption of unpasteurized milk including 21 patients under age 18. The milk was provided by a farm through a cow-share program.

Using the same logic, the Justice appears to question the HPPA implication that unpasteurized milk is in and of itself a health hazard. The stock-in-trade of public health is to reduce or eliminate health hazards, and pasteurization is a safe and proven means of minimizing very real health hazards such as bovine tuberculosis, and enteric diseases caused by listeria, E.coli, salmonella, and campylobacter that are known to be transmitted by raw milk. These diseases are all capable of causing hospitalization, permanent chronic conditions and death. They are also significantly more prevalent in jurisdictions where raw milk is more available to the public.

The Justice also appeared satisfied that all participants in Mr. Schmidt’s “cow-share” operation are duly informed of the risks and choose to accept them. Again, while this may be true in this case, permission to increase the availability of raw milk – even with the provision of information about risks – would

undermine protection of the public as there is no guarantee that all consumers would fully understand those risks. Children of parents who insist that they drink only raw milk is an obvious example, especially considering their particular vulnerability to the more serious health impacts of the infectious agents listed above.

It is the strict control over the sale and distribution of unpasteurized milk and derived products that we can thank for the relatively few illnesses that are reported as a result of their consumption. This ruling will only open the door to similar operations, thereby increasing risk to the general population.

In 2008, a motion in the Ontario Legislature to examine issues around the distribution of raw milk, including consideration of weakening the current prohibition, was defeated. At that time, alPHa expressed its gratitude that a clear majority of our elected Provincial representatives agreed that pasteurization is one of the most significant developments in the history of preventing food-borne disease and recognized the perils of weakening such an important public health law. We hope that you will take the necessary steps to ensure that the appeal of this decision is successful, to ensure that the health of Ontarians is not compromised by a legal decision that ignores the fundamentals of health protection legislation.

Sincerely

ORIGINAL SIGNED

Valerie Sterling President

Copy: Hon. Dalton McGuinty, Hon. , Minister of Health and Long-Term Care Hon. Margarett Best, Minister of Health Promotion Hon. Carol Mitchell, Minister of Agriculture Food and Rural Affairs Hon. , Minister of Natural Resources Mr. Bjorn Christensen, President, Association of Supervisors of Public Health Inspectors (Ontario) Mr. Peter Heywood, President, Canadian Institute of Public Health Inspectors (Ontario Branch) Dr. Arlene King, Chief Medical Officer of Health (Ontario) Chairs, Ontario Boards of Health