The Raw Cheese Panic and the FDA's Regulatory Overreach Problem

The Facts, First

Florida health officials are investigating an E. coli outbreak connected to raw cheese. Several people have fallen ill. The investigation is ongoing. These are real events and the public health response is appropriate — trace the source, identify the contaminated product, remove it from shelves, treat the sick. That's what competent public health infrastructure does, and when it works, it deserves credit.

What concerns me is what comes after the investigation closes. Because if you've watched the federal regulatory apparatus operate for any length of time, you know the pattern. A localized incident becomes the predicate for a national rule. A national rule becomes a precedent for an agency to claim authority it was never explicitly granted. And suddenly, farmers in Wisconsin and artisan cheesemakers in Vermont are filling out compliance paperwork because someone got sick in Florida.

Raw Milk and the Regulatory History

The FDA's posture toward raw dairy has been hostile for decades. The agency banned interstate sale of raw milk in 1987, a rule that was legally challenged and upheld in courts that deferred heavily to agency expertise. That deference — essentially courts saying "the regulators know best" — has been the engine of administrative state expansion across virtually every regulatory domain.

But here's what the raw milk debate actually shows us. Thirty-nine states currently allow some form of raw milk sales. Millions of Americans consume raw dairy products every year by choice, informed by their own risk assessment. The FDA's position is that these adults cannot be trusted to make that assessment correctly and therefore the federal government must make it for them. That's not a public health argument. That's a paternalism argument wearing a lab coat.

The constitutional question is genuine. Where in Article I does Congress grant the FDA authority to regulate purely intrastate commerce in traditional food products? The honest answer is: it doesn't, directly. The agency built its authority through expansive readings of the Commerce Clause, compounded over decades of congressional neglect and judicial deference. The Supreme Court's 2022 West Virginia v. EPA decision — which held that agencies cannot claim major authority without clear congressional authorization — opened a door to challenging exactly this kind of regulatory sprawl. That door is worth walking through.

The Difference Between Safety and Control

I want to be precise about the distinction I'm drawing, because it matters. Investigating an E. coli outbreak is a legitimate exercise of public health authority. Identifying contaminated product and pulling it from sale is appropriate. Prosecuting producers who knowingly sold adulterated food is absolutely appropriate. None of that is what I'm objecting to.

What I'm objecting to is the reflexive conversion of every incident into a regulatory expansion opportunity. The FDA has a documented history of using high-profile food safety events to push rules that were already in the pipeline — rules that often impose compliance costs that small producers cannot absorb, that large industrial producers can, and that therefore systematically disadvantage small-scale artisan food operations in favor of consolidated industrial agriculture. That's not an accident. It's a feature of how regulatory capture works.

I interviewed a small cheesemaker in a Southern state several years ago who walked me through her compliance costs. The paperwork. The testing regimes. The facility requirements that were calibrated for industrial operations and made no practical sense at her scale. She was still in business, barely, because she had a loyal direct-to-consumer customer base. She estimated that another major federal rulemaking would end her operation. She had been making cheese for twenty-two years without a single illness linked to her product.

What the Right Response Looks Like

Address the outbreak. Find the contaminated source. Hold liable producers accountable. Publish the findings so consumers can make informed decisions. Then stop. Don't use this as the predicate for a new national rulemaking that punishes producers who had nothing to do with this incident and consumers who have been making their own dietary choices safely for years.

The constitutional architecture of this country was designed to keep regulatory power limited, local where possible, and always accountable. An FDA that treats every food safety incident as an opportunity to expand its footprint is an FDA that has lost sight of its mandate. The mandate is safety, not control. The distinction matters, and conservatives need to hold the line on it — even when, especially when, the agency is pointing at a genuine public health event to justify the overreach.