Opinion
NOT TO BE PUBLISHED
San Benito County Super. Ct. No. CU0700204
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
Plaintiffs Organic Pastures Dairy Company, LLC and Claravale Farm, Inc. (hereafter, plaintiffs) are the only California producers of raw milk sold to consumers. Plaintiffs filed an action against defendants State of California and A.G. Kawamura, Secretary of the California Department of Food and Agriculture (collectively hereafter, the State), in which they challenged the constitutionality of Food and Agriculture Code section 35781, subdivision (a)(1), which was amended effective January 1, 2008, to require that raw milk sold to consumers contain no more than 10 coliform bacteria per milliliter of milk. Coliform bacteria are a group of bacteria that includes species that come from the intestinal tract of animals.
All statutory references hereafter are to the Food and Agriculture Code unless otherwise indicated.
Section 35781, subdivision (a)(1) provides in pertinent part, “Except as otherwise provided in this article, market milk shall not contain any of the following: [¶] [M]ore than 10 coliform bacteria per milliliter if to be sold as raw milk to the consumer.” The amendment to section 35781, subdivision (a)(1) adding the 10-coliform bacteria limit became effective on January 1, 2008. The 10-coliforma bacteria standard is also codified at section 35861, subdivision (d), in reference to “guaranteed raw milk,” and at section 35891, subdivision (c), in reference to “grade A raw milk.”
In this appeal, plaintiffs challenged the trial court’s order denying plaintiffs’ motion for a preliminary injunction staying enforcement of the 10-coliform bacteria standard imposed by section 35781, subdivision (a)(1) prior to trial. The trial court denied injunctive relief on the ground that plaintiffs were not likely prevail at trial in their constitutional challenge because there is a rational basis for the 10-coliform bacteria standard: the Legislature’s intent to make raw milk products safer for consumers by monitoring the adequacy of dairy sanitation.
For the reasons stated below, we will grant plaintiffs’ motion to dismiss the appeal, which they filed shortly before the date the case was calendared for oral argument.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Complaint
The record lacks a copy of plaintiffs’ complaint. In their opening brief, they describe their complaint as follows: “[A] three count complaint against [the State] alleging a denial of due process, a denial of equal protection, and a regulatory taking.” Plaintiffs sought “a temporary restraining order, a preliminary injunction, a permanent injunction, and just compensation for the regulatory taking of their business.”
B. The Motion for a Temporary Restraining Order
On March 7, 2008, plaintiffs filed a motion for a temporary restraining order enjoining the enforcement of the 10-coliform bacteria standard imposed by section 35781, subdivision (a)(1). Plaintiffs argued that injunctive relief was warranted because plaintiffs anticipated that they would fail three of five tests for the 10-coliform bacteria standard and as a consequence they would be ordered to stop the sale of raw milk, which is their principal business.
On appeal and in the proceedings below for injunctive relief, the parties refer to Assembly Bill 1735 (2007-2008 Reg. Sess.) §§ 2, 5, 6), which contained the provision amending section 35781, subdivision (a)(1), section 35861, subdivision (d), and section 35891, subdivision (c), to require the 10-coliform bacteria limit per milliliter of raw milk sold to consumers.
The declarations submitted in support of the motion included two declarations by Mark McAfee, the owner and operator of Organic Pastures Dairy Company (hereafter, Organic Pastures), both dated March 7, 2008. McAfee stated that Organic Pastures is located in Fresno, California; has 40 employees and 450 head of livestock; and has annual sales of raw milk and raw milk products in excess of $5 million dollars. According to McAfee, no one has reported becoming ill from drinking Organic Pastures raw milk, and no pathogens have been found in its raw milk products.
A pathogen is “a specific causative agent (as a bacterium or virus) of disease.” (Merriam-Webster’s Collegiate Dict. (10th ed. 2001) p. 852, col. 1.)
McAfee further stated that between January 1, 2008, and March 7, 2008, Organic Pastures failed three coliform bacteria tests for cream products and was required to stop their sale, which caused a loss of $10,000 per week in cream sales. During the same time period, Organic Pastures failed two coliform bacteria tests for raw milk and passed two tests. McAfee believed that if Organic Pastures failed a third coliform bacteria test for raw milk, he would have to cease selling raw milk and his business would collapse. McAfee also asserted that coliform bacteria are “highly beneficial” and their presence does not indicate an unsafe condition.
Ron Garthwaite, the owner and operator of Claravale Farm, submitted a March 7, 2008 declaration in support of the motion for a temporary restraining order. Claravale Farm is located in Paicines, San Benito County, California. Its annual sales of raw milk and raw milk products total more than $800,000. Before section 35781, subdivision (a)(1) was amended to include the 10-coliform bacteria standard, state law did not impose a coliform limit on raw milk or raw dairy products. The State tests for pathogens and no pathogens have been found in Claravale Farm milk. Garthwaite did not believe that Claravale Farm could consistently meet the 10-coliform standard imposed by section 35781, subdivision (a)(1), despite having recently moved into a new dairy with state of the art equipment. Claravale Farm’s whole raw milk had failed the coliform test once and passed it once, while its cream and non-fat milk had failed the test twice. Garthwaite believed that Claravale Farms would not be able to meet the 10-coliform standard and therefore he anticipated that his business would be shut down.
Plaintiffs also submitted the declaration of Theodore F. Beals, M.D., filed March 7, 2008, in support of their motion for a temporary restraining order. Dr. Beals is a resident of Michigan who is board certified in anatomic pathology. In his opinion, the “vast majority” of coliform bacteria are not pathogenic. While Dr. Beals acknowledged that coliform bacteria “may be an indicator of environmental contamination,” he believed that their presence did not indicate the presence of pathogens. Dr. Beals also believed that the number of coliform bacteria in packaged raw milk may increase over time due to inadequate refrigeration, and therefore a “more proper standard would be the absence of pathogens in the bulk tank where the raw milk is stored prior to packaging.” Dr. Beals’ opinion was that the coliform standard in section 35781, subdivision (a)(1) does not have a scientific foundation, is arbitrary, and does not protect human health.
The State filed opposition to the motion for a temporary restraining order on March 12, 2008. The State’s principal argument was that plaintiffs’ constitutional challenge lacked merit because there is a rational basis for the 10-coliform bacteria standard set forth in section 35781, subdivision (a)(1), in light of the legislative history indicating that the 10-coliform standard was added to address concerns regarding raw milk safety after two outbreaks of illness due to Escherichia coli (hereafter, E. coli) 0157:H7 that was linked to raw milk, as well as the absence of a coliform standard for bottled raw milk. The State also argued that balancing the hardships favored denial of the temporary restraining order, since a greater injury would result to consumers than to the plaintiffs if enforcement of the 10-coliform bacteria standard was enjoined due to the public health hazard posed by raw milk.
In support of its opposition, the State submitted the declaration of Stephen W. Beam. Dr. Beam has a Ph.D. in animal science and is branch chief of the Milk and Dairy Food Safety Branch of the California Department of Food and Agriculture (hereafter, the Department). In his declaration, Dr. Beam explained the testing procedures for raw milk sold to consumers. Pursuant to section 36123, the Department tests raw milk for compliance with the 10-coliform bacteria standard. If the raw milk producer fails two of the last four consecutive tests, a notice is sent and a third sample is taken between 3 and 14 days later. If the raw milk producer fails three of the last five tests, the Department must restrict use of the milk and may prohibit sale of the milk to consumers in a fluid state.
Section 36123 provides in part, “Whenever two of the last four consecutive bacteria counts, coliform determinations, or cooling temperatures taken on separate days exceed the limit of the standard for market milk or products of market milk, or both, the health authority or secretary shall send a notice thereof to the producer or distributor concerned. This notice shall be in effect as long as two of the last four consecutive samples exceed the limit of the standard. An additional sample shall be taken within 14 days of the sending of the notice, but not before the lapse of three days. Immediate restricted use of the market milk or product of market milk or exclusion of the market milk or product of market milk shall be instituted whenever the standard is violated by three of the last five bacteria counts, coliform determinations, or cooling temperatures, provided that no action required by this section shall be based upon a sample that is over 180 days old.”
Regarding the Department’s testing of Organic Pastures’ raw milk products, Dr. Beam noted that Organic Pastures had failed the 10-coliform test for raw whole milk and raw cream in January and February of 2008 and was sent a notice of violation of the regulatory standard. When a third test was conducted in February 2008, Organic Pastures’ raw whole milk sample was found to be in compliance with the coliform bacteria standard, but the raw cream sample failed. As a result, the Department issued a “Dairy Degrade Notice” that restricted the use of Organic Pastures’ raw cream to manufacturing products such as butter and cheese. Subsequent testing of Organic Pastures’ raw cream samples in March 2008 included two samples in compliance, which allowed reinstatement of Organic Pastures’ raw cream from restricted use.
In Dr. Beam’s opinion, elevated coliform counts in milk suggest unsanitary conditions in the production, processing or packaging of the milk. Also, some coliform bacteria, such as E. coli 0157:H7, can cause serious illness. The Department’s survey of all 50 states regarding each state’s regulation of raw milk showed that only 13 states, including California, allow the sale of raw milk at retail stores separate from the farm. Seven of these states require that raw milk sold at retail stores contain no more than 10 coliform bacteria per milliliter of milk.
In reply, plaintiffs argued that the State had failed to rebut their claim that they will suffer immediate and irreparable harm if the 10-coliform bacteria standard is enforced. They also argued that the constitutionality of section 35781, subdivision (a)(1) must be evaluated under the strict scrutiny standard because “they have a fundamental, constitutional property right in having access to and expecting customers.” Based on the opinion of their expert, Dr. Beals, plaintiffs maintained that the coliform bacteria standard imposed by section 35781, subdivision (a)(1) could not survive strict scrutiny since “the presence or absence of coliforms has nothing to do with the public’s safety or health and limiting coliforms to no more than 10 does nothing to ensure the safety of dairy products.” Plaintiffs also submitted a third declaration by Mark McAfee, in which he reiterated his belief that enforcement of the 10-coliform bacteria standard would cause Organic Pastures to go out of business because it cannot consistently comply with the standard.
After a hearing held on March 19, 2008, on plaintiffs’ motion for a temporary restraining order, the trial court issued the following order from the bench: “I will grant the temporary restraining order as to the enforcement of the [10-coliform bacteria] limits but deny the temporary restraining order request as to the ongoing testing.” The trial court found that balancing the hardships favored the plaintiffs, who indicated that they could not comply with the coliform bacteria standard, while there was no urgency with respect to the public health concern. The court also stated that testing for the 10-coliform limit should continue in order to determine if plaintiffs could comply. No written temporary restraining order was included in the record on appeal.
C. The Motion for a Preliminary Injunction
Plaintiffs filed a motion for a preliminary injunction on the same day, March 7, 2008, that they filed their motion for a temporary restraining order. They filed points and authorities in support of the motion for a preliminary injunction on April 7, 2008, in which they requested that a preliminary injunction issue to enjoin enforcement of the 10-coliform bacteria standard imposed by section 35781, subdivision (a)(1) pending trial of the action. They argued that the preliminary injunction was necessary because enforcement of the 10-coliform bacteria standard would force plaintiffs out of business, while there would be no harm caused to any interest of the State. Plaintiffs also argued that they would prevail on the merits at trial, because, as they had previously argued, the 10-coliform bacteria standard imposed by section 35781, subdivision (a)(1), would not pass the strict scrutiny test since the standard did not ensure the safety of raw milk.
In support of their motion for a preliminary injunction, plaintiffs submitted the declaration of Donna T. Parkinson, filed April 7, 2008. Parkinson stated that she is a daily consumer of raw milk who believes that raw milk provides more health benefits than pasteurized milk. Plaintiffs also submitted a fourth declaration from Mark McAfee, filed April 7, 2008. McAfee attached to his declaration a number of testimonials from Organic Pastures’ customers. He also stated that the State Veterinarian had illegally quarantined Organic Pastures’ raw dairy products except cheese in 2006 and as a result the Department had entered into a stipulation and release that settled Organic Pastures’ claim of loss due to the quarantine.
D. Opposition to the Motion for a Preliminary Injunction
The State filed opposition to the motion for a preliminary injunction on April 18, 2008. The State expanded its previous argument that the enforcement of the 10-coliform bacteria standard imposed by section 35781, subdivision (a)(1) should not be enjoined as unconstitutional because there was a rational basis for the standard and balancing the relative hardships favored enforcement to protect public health. Regarding the rational basis for the standard, the State asserted that raw milk is inherently less safe than pasteurized milk because no steps are taken to kill the bacteria in raw milk. The 10-coliform standard is a reasonable means of reducing the health risk of raw milk consumption because, according to the State, the standard measures whether a raw milk dairy has an effective sanitation program, which will reduce bacterial contamination. In the State’s view, testing raw milk samples for pathogens is an ineffective means of ensuring food safety because pathogens are shed intermittently from the cow’s udder and the tests available to detect the presence of pathogens are of limited utility.
The State also argued that enforcement of the 10-coliform bacteria standard would not cause great and irreparable harm to plaintiffs, since the standard is attainable. The test results for Claravale Farm in 2008 were mostly excellent, according to the State, while no restrictions had been imposed on Organic Pastures’ products since March 2008. The State also noted that Organic Pastures had not claimed that previous restrictions had caused a significant impact on its sales.
In support of its opposition, the State submitted several declarations that were all filed on April 18, 2008. The State Veterinarian, Richard Breitmeyer, stated in his declaration that he has extensive experience performing microbial evaluation of milk, which can be contaminated by human pathogens in the cow and dairy environment such as salmonella, E. coli O157:H7, campylobacter, listeria, brucella, and mycobacteria. In Dr. Breitmeyer’s opinion, the presence of coliform bacteria is a very good indicator of manure and environmental contamination. Dr. Breitmeyer authorized a quarantine of all raw milk products manufactured or packaged by Organic Pastures in September 2006 because he was convinced by the epidemiological findings of the California Department of Health Services, which linked illness in several children to their consumption of raw milk products from Organic Pastures. Dr. Breitmeyer also authorized a recall of all of Organic Pastures’ raw cream products with quality assurance dates of September 14, 2007, through September 21, 2007, due to the detection of the dangerous pathogen listeria in raw cream.
In her declaration, Linda Harris stated that she has a Ph.D. in microbiology and is employed as a cooperative extension specialist in the Department of Food Science and Technology at the University of California, Davis. She is also the associate director of the Western Institute for Food Safety and Security at the same campus. Dr. Harris stated that coliform bacteria include species from inside and outside the intestinal tract of animals, including the foodborne pathogen E. coli. In addition to E. coli O157:H7, the organisms associated with outbreaks of illness from raw milk consumption are of fecal origin, such as campylobacter, listeria monocytogenes, and salmonella.
Dr. Harris asserted that testing finished raw milk products for specific pathogens is an ineffective means of ensuring food safety, due to the sporadic nature of pathogen contamination, the difficulty in recovering the organisms from food, the cost of the tests, and the length of time for test results. In her opinion, the 10-coliform bacteria standard is “an effective means of verifying that a dairy has an effective sanitation program in place, thereby improving the safety of raw milk” and is attainable through “routine cleaning and sanitation procedures.”
The declaration of Hailu Kinde stated that he has a doctorate in veterinary medicine and a master’s degree in preventative veterinary medicine with an emphasis on food safety. He is the branch chief of the California Central Milk Laboratory and is responsible for ensuring that laboratory testing of milk is done according to established policies and procedures. The Central Milk Laboratory performs the required coliform bacteria tests on raw milk. In Dr. Kinde’s opinion, the “presence of coliforms in finished products [is] indicative of unsanitary conditions during production, processing, or storage of the product.” It is also Dr. Kinde’s opinion that the 10-coliform standard improves the safety of milk for public consumption and is a good, although not perfect, management tool for his agency to monitor the “contamination of a product.”
The State also submitted the declaration of Michael Allen Payne, who is a doctor of veterinary medicine and the outreach coordinator for the Western Institute for Food Safety and Security at the University of California, Davis. Dr. Payne’s opinion is that unpasteurized dairy products are “inherently less safe than pasteurized products.” The scientific literature shows, according to Dr. Payne, that although sales of raw milk are less than one-half of one percent of total fluid milk sales, raw milk causes almost twice the number of disease outbreaks that are caused by pasteurized milk. The disease outbreaks associated with raw milk or raw cheese include, among others, more than 20 deaths from salmonella and illness due to campylobacter.
Dr. Payne further stated that the most common causes of high coliform counts in raw milk are milking wet or dirty cow udders and contaminated milking or storage equipment. In his opinion, “[w]hile an imperfect measure of sanitation, consistently high coliform counts are widely recognized as suggesting inadequate cow, equipment or milking procedure hygiene.” Also, “[h]igh coliform counts are an indication of fecal or other contamination of milk, which is, in turn, an indication that the milk may be unsafe to consume.” Dr. Payne believed that the 10-coliform bacteria standard in section 35781, subdivision (a)(1) would not shut down California’s raw milk industry, because the literature regarding the raw milk industry indicates that the industry operates in several states with a 10-coliform limit.
The State also submitted the declaration of Eric Stein, deputy secretary for legislation and policy for the Department. He stated that in 2006, the Assembly Committee on Agriculture requested the Department to provide proposed microbial standards for certain dairy products, including the coliform standard for raw milk that was incorporated in Assembly Bill 1735. According to Stein, the proposal was “intended to update dairy farm and milk product standards bringing California requirements into greater conformity with national standards and helping ensure the continued safety and high quality of California’s milk and dairy food supply.” Stein also outlined the legislative process by which Assembly Bill 1735 was passed by the Assembly and the Senate, made available for public review, and ultimately signed by the Governor on October 8, 2007.
The declaration of Lucy Valenton, a Department legal assistant and Public Records Act officer, stated that a true and correct copy of memoranda regarding Organic Pastures’ government claim was attached. Included in the documents attached to the memoranda was a “STIPULATION AND RELEASE,” executed by Mark McAfee on July 6, 2007, and the Department’s chief counsel on July 11, 2007. The stipulation and release provided, among other things, that the Department would pay Organic Pastures $11,418.50 in exchange for a release of Organic Pastures’ claim of financial loss due to the State Veterinarian’s recall of Organic Pastures’ products in September 2006.
The final declaration submitted by the State was the declaration of Steven McGinnis, a dairy food specialist for the Department’s Fresno region. McGinnis has been making routine inspection visits to Organic Pastures’ facility since July 2006. The problems he has seen there, and documented in photographs attached to his declaration, include “Dirty product contact surfaces, such as milk silos, separators and separator discharge lines”; “Poor manufacturing practices, such as labeling milk bottles in a room that is not protected from the wind and dust from outside”; “Use of flexible milk hoses, intended for tanker unloading and emergency use, where permanent sanitary stainless piping should be used”; “Lack of proper cleaning and sanitizing practices”; “Environmental conditions that do not meet cleanliness standards,” including “rat tailings on the floor of the cold storage room,” “rat feces on a bottle of milk,” and a “mouse in a mouse trap on the floor in the cold storage room”; “Mold on walls and ceiling”; “Dirty milk cases”; “Floors not smooth and cleanable”; and “Storing product containers outdoors.”
McGinnis further stated that it is his “belief that Organic Pastures Dairy can meet the new coliform standard by correcting items observed during inspection and improving overall cleaning and sanitizing practices. Their ability to attain this standard would be significantly improved by making these changes.”
E. Reply to Opposition to Motion for a Preliminary Injunction
In their reply, plaintiffs reiterated their arguments that the presence of coliform bacteria is an indicator of food quality rather than food safety, that “running a business” is a fundamental right under the California Constitution, article I, section 1, and balancing the equities in this case favors the plaintiffs who cannot meet the new coliform bacteria standard and will go out of business if forced to comply. Further, plaintiffs complained that “the foundations upon which AB 1735 was passed was not true” because there is no federal guideline for raw milk consumption and Organic Pastures products had not been responsible for any outbreak of foodborne illness caused by E. coli 0157:H7.
In support of their reply, plaintiffs submitted the April 24, 2008 declaration of Sally Fallon, president of the Weston A. Price Foundation, “a nonprofit nutrition education foundation” that “advocates the consumption of unpasteurized whole milk from pasture-fed cows.” Price is also the “Secretary of the Farm-to-Consumer Legal Defense Fund, which provides legal defense of farms engaged in raw milk production and direct farm-to-consumer sales.” She attached to her declaration the arguments of the Weston A. Price Foundation in response to “testimony that has previously been provided by Michael Payne and John Sheehan.”
Plaintiffs also submitted a fifth declaration of Mark McAfee, filed April 24, 2008, in which he stated that Organic Pastures had been conducting weekly tests for “E. coli O157” on its raw milk and raw dairy products since February 2006 and had “never detected a pathogen” in its dairy products.
Finally, plaintiffs submitted the April 24, 2008 declaration of Timothy C. Ibbeson, a paralegal in the office of plaintiffs’ attorneys, who attached to his declaration his transcription of an audiotape of a January 16, 2008 hearing of the Assembly Agriculture Committee.
F. The Evidentiary Hearing on the Motion for a Preliminary Injunction
An evidentiary hearing on plaintiffs’ motion for a preliminary injunction took place on April 25, 2008, and May 23, 2008. Each side presented two expert witnesses.
Plaintiffs’ first witness was Theodore F. Beals, M.D. Dr. Beals received his M.D. in 1966 and was board certified in anatomic pathology in 1971. Prior to his retirement in 2001, Dr. Beals was employed as chief of pathology for the Veterans Administration Medical Center in Ann Arbor, Michigan, and taught pathology at the University of Michigan. He was also appointed national director of pathology and laboratory service for the “VA Medical Administration.” Earlier in his career, when he was a deputy medical examiner, he testified in criminal cases for the prosecution.
Dr. Beals does not have any professional experience in the dairy industry. Since his retirement, he has been actively involved with producers of “fresh unprocessed milk” in Michigan. In Dr. Beals’ opinion, raw, unpasteurized milk contains bacteria that are beneficial to the human immune system and is safe for human consumption. He also believes that there “is no association between a standard for coliforms and the presence of pathogens, which is what safety is all about.” It was also Dr. Beals’ opinion that the State did not base the 10-coliform bacteria standard on any statistical analysis of samples of raw milk. He agreed, however, that the presence of coliform bacteria may be an indicator of environmental contamination.
Plaintiffs’ second witness was Ronald R. Hull, who lives in Melbourne, Australia, and received a Ph.D. in microbiology from the University of Adelaide in 1971. He was employed for 20 years in Australia by the Commonwealth Scientific Industrial Research Organization, most recently as head of the dairy section in the division of food science. Since 1994, Dr. Hull has been a private consultant to the dairy industry.
In Dr. Hull’s opinion, raw market milk is “a living food,” because it “contains a number of live components” that are beneficial to humans, while pasteurized milk is “a dead food.” Dr. Hull believed that the 10-coliform standard for raw milk imposed by section 35781, subdivision (a)(1) was not an appropriate standard because a better standard would be “end-product testing for known pathogens.” Additionally, Dr. Hull believed that cleanliness measures alone are not an effective method of controlling pathogens in raw milk.
The State’s expert witnesses included Linda Harris and Michael Payne. Dr. Harris received a Ph.D. in microbiology from North Carolina State University. She is currently a cooperative extension specialist in the Department of Food Science and Technology at the University of California, Davis, specializing in microbial food safety. She is also associate director of the Western Institute for Food Safety and Security. Her experience in the dairy industry includes working for two years as a microbiologist performing quality control in a dairy, as well as researching a probiotic organism used in some dairy products.
Dr. Harris stated that the most of the organisms associated with illness caused by raw milk are of fecal origin, including salmonella and E. coli O157:H7. In her opinion, there are several problems with testing milk for pathogens, since pathogens are present in low levels, are randomly distributed, and are sporadic, such that looking for a pathogen “is rather like looking for a needle in a haystack.” Therefore, Dr. Harris explained, “we tend to lean towards using indicators of sanitation or indicators of the potential presence of pathogens as a monitor rather than testing for pathogens themselves.” Coliforms are used because not only is it easier to test for coliforms, they are an indicator of overall sanitation and the potential for pathogen contamination. Dr. Harris further explained that higher levels of coliform bacteria are associated with a greater probability that pathogens are present, and that controlling dairy sanitation reduces the probability that the raw milk will be contaminated with pathogens.
The State’s second expert witness was Michael Alan Payne, who received a doctorate in veterinary medicine from the University of Georgia in 1985. He also received a Ph.D. in comparative pathology from the University of California, Davis in 1997. Dr. Payne is presently employed as outreach coordinator for the Western Institute for Food Safety and Security. His experience with the dairy industry includes examining sick animals, implementing mastitis programs, examining milking machine apparatus, and doing research.
In Dr. Payne’s opinion, sanitation and hygiene are the only things that stand between the consumer of raw milk and the pathogens excreted by a cow. He believes that there was a strong association between the consumption of raw milk products from Organic Pastures and the outbreak of illness caused by E. coli in 2006, based on the illness in five or six children whose only common factor was consuming Organic Pastures products. The fact that the subsequent genetic fingerprinting of the E. coli inside Organic Pastures’ cows did not exactly match the E. coli found in the children did not change his opinion, because there can be a genetic drift over time. Dr. Payne also believes that Organic Pastures products were the source of an outbreak of illness caused by campylobacter bacteria.
As to the 10-coliform bacteria standard, Dr. Payne does not believe that a statistical analysis is necessary to set a coliform standard for raw milk. The 10-coliform limit was chosen because it has been determined that a 10-coliform limit in pasteurized milk indicates an “outstanding level of sanitation” and, when used in combination with inspection and bacteria plate counts, ensures “fairly safe milk.” Dr. Payne explained that coliform bacteria are not naturally present in milk from a healthy cow because an uninfected healthy udder should be sterile and the bacteria occasionally found on the tip of the opening of the udder are typically not coliform bacteria. He stated that the scientific literature indicates that the most likely cause of high coliform counts are milking wet or dirty cows, inadequate sanitation of milking equipment, “milker hygiene,” and inadequate sanitation of the vehicles in which the milk is placed.
In Dr. Payne’s opinion, raw milk dairies need to be held to a higher level of sanitation to keep their consumers safe. He believes that raw milk is inherently less safe than pasteurized milk because, although raw milk represents about 0.5 percent of the total fluid milk consumption in the United States, raw milk is responsible for twice as many outbreaks of illness as pasteurized milk. Dr. Payne observed that the 10-coliform standard holds raw milk to the same level of sanitation as pasteurized milk. He also believes that compliance with the standard indicates that the dairy is hygienically run. Further, Dr. Payne stated that data from other states, including Washington and Maine, indicate that the 10-coliform standard is achievable. He also holds the opinion that testing for pathogens alone would be inadequate for providing the data necessary to show that the milk is safe. Dr. Payne acknowledged, however, that it is possible for milk to contain pathogens but no coliform bacteria.
G. The Trial Court’s Order
The record on appeal does not include a written order denying the motion for a preliminary injunction. The trial court ruled from the bench on May 23, 2008, that the motion was denied. The court also ordered the temporary restraining order to remain in effect until June 16, 2008, to give plaintiffs the opportunity to seek a writ from this court. The record does not reflect that plaintiffs sought writ relief from the denial of their motion for a preliminary injunction, and therefore it appears that the temporary stay was vacated as of June 16, 2008.
In making its ruling, the court determined that the constitutionality of the 10-coliform standard imposed by section 35781, subdivision (a)(1) should be evaluated under the rational basis test. The court further determined that there was “a rational basis between the intention of the legislature and the means of reaching that result.”
H. Proceedings on Appeal
Plaintiffs filed a notice of appeal on June 5, 2008. Their petition for a writ of supersedeas staying the trial court’s order pending appeal was denied on October 10, 2008. Plaintiffs requested oral argument and on August 14, 2009, this court notified the parties that oral argument was set for September 29, 2009. Thereafter, on September 8, 2009, plaintiffs filed a form request for dismissal of the appeal.
III. DISCUSSION
Plaintiffs’ request for dismissal of the appeal failed to state any grounds for the request. However, after receiving a telephone inquiry from this court regarding the grounds for the dismissal request, plaintiffs’ counsel filed a responsive declaration on September 21, 2009. In his declaration, plaintiffs’ counsel stated that the dismissal of the appeal was requested because plaintiffs had filed a request for dismissal of the underlying superior court action on September 3, 2009, and therefore the appeal was moot.
After receiving the declaration of plaintiffs’ counsel, we requested supplemental briefing from the parties regarding whether this court “should exercise its inherent discretion to resolve the issues raised in the appeal, although events occurring during the pendency of the appeal have rendered the matter moot, because the appeal poses issues of broad public interest that are likely to recur. [Citations.]”
Plaintiffs submitted a letter dated September 22, 2009, in which they requested that this court exercise its inherent discretion to resolve the issues raised in the appeal. According to plaintiffs, the continued enforcement of the 10-coliform standard was likely to put Organic Pastures and Claravale Farm out of business, which suggested that “the issues in this case will likely recur and are not moot.” Plaintiffs also asserted that they had no recourse other than their appeal because efforts to obtain a legislative overturn of the 10-coliform limit had failed. A file-endorsed dismissal without prejudice of the underlying superior court action, dated August 24, 2009, was attached to plaintiffs’ letter.
Defendants submitted a letter dated September 24, 2009, in which they stated that there was little likelihood that the issues raised in the appeal would be raised in the future. They noted that the 10-coliform limit applied to the only two California producers of raw milk sold to consumers, the plaintiffs had continued to operate their raw milk dairies under the new limit, the rational basis standard for evaluating the constitutionality of legislation was settled law, and the underlying action had been dismissed.
Having carefully considered the matter, we will dismiss the appeal. We agree with defendants that, based on plaintiffs’ voluntary dismissal of the underlying action and the very limited nature of the California dairy industry that produces raw milk for sale to consumers, the appeal does not pose an issue of broad public interest that is likely to recur. (In re William M. (1970) 3 Cal.3d 16, 23; Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 746-747.)
IV. DISPOSITION
The appeal is dismissed. Costs on appeal are awarded to respondents.
WE CONCUR: MIHARA, J. DUFFY, J.