Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West

Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Vriens v Director of Regulatory Compliance, Ontario Raw Milk Quality Program

Vriens v Director of Regulatory Compliance, ORMQP 1999 ONAFRAAT 35

STATUTE:

Ministry of Agriculture, Food and Rural Affairs Act

HEARING:

December 2, 1999

DATE OF DECISION:

December 21, 1999

1999-35

NEUTRAL CITATION:

1999 ONAFRAAT 35

Vriens v Director of Regulatory Compliance, Ontario Raw Milk Quality Program

IN THE MATTER OF THE MILK ACT AND SECTION 16 OF THE MINISTRY OF AGRICULTURE AND FOOD ACT.

AND IN THE MATTER OF:

An Appeal to the Farm Products Appeal Tribunal by Mario and Jose Vriens, Arthur, Ontario from the decision of the Director of Regulatory Compliance, Ontario Raw Milk Quality Program, dated August 31, 1999, not to cancel the positive inhibitor test result on a sample of milk taken from the Vriens farm on July 20, 1999.

Before:

Jim Rickard, Chair; Denis O’Connor, Alternate Chair; Moira Connell, Member.

Appearances:

Mario Vriens, appellant.

Peter Gould, Director of Regulatory Compliance, Raw Milk Quality Program.

George MacNaughton, Manager of Farm Policies and Programs, Dairy Farmers of Ontario.

DECISION OF THE TRIBUNAL

This appeal was heard in Guelph, Ontario on Thursday, December 2, 1999. Mario and Jose Vriens, Arthur, Ontario appealed to the Farm Products Appeal Tribunal (the Tribunal) from the decision of the Director of Regulatory Compliance, Ontario Raw Milk Quality Program (the Director), dated August 31, 1999, not to cancel the positive inhibitor test result on a sample of milk taken from the Vriens’ farm on July 20, 1999.

The Background

The sections of Ontario Regulation 761 that apply to this appeal are as follows:

Section 5(1) states:

"No producer shall sell or offer for sale milk or cream that,

(a) is obtained from an animal,

(ii) to which an inhibitor has been administered, during the period of medication and for such period following the last treatment as is sufficient to ensure that the milk or cream does not contain an inhibitor when tested by an official method at a laboratory approved by the Director”.

(h) contains an inhibitor when tested by an official method at a laboratory approved

by the Director."

Section 52(1) states:

"The milk of every producer,

(a) shall be tested at least once in each month,

(iii) for the presence of an inhibitor by an official method at a laboratory approved by the Director."

Section 54 states:

"(1) Where milk of a producer is tested under section 52 and found to contain an inhibitor, a fieldperson shall place under detention all milk of the producer.

(2) Where a fieldperson places milk under detention under subsection (1), such samples of milk as are necessary shall be taken and delivered to a laboratory approved by the Director for testing for the presence of an inhibitor by an official method.

(3) The results of the testing of a sample under subsection (2) shall be made known to the producer within 24 hours of the time the milk was placed under detention.

(4) Where the testing of a sample under subsection (2) shows that the milk does not contain an inhibitor, the fieldperson shall release the milk from detention."

Section 55 states:

"(3) Where the milk of a producer is tested under section 52 and found to contain an inhibitor, the producer is, in respect of the milk marketed in the same month as the milk that was tested, liable to a penalty of,

(a) $6 per hectolitre where there has been no previous detention of the producer's milk under subsection 54(1);

within any twelve-month period.

The Issue

The issue before the Tribunal is: should the positive inhibitor test result on the sample of milk taken from the farm of Mario and Jose Vriens on July 20, 1999 be allowed to stand?

Preliminary Matters

Mario Vriens raised the preliminary issue of whether the Tribunal’s decision was final and, if so, he may want his lawyer present. The Tribunal Chair responded by saying that if he was not satisfied with the Tribunal decision he had two options:

1. request that the Minister review the decision. The Minister does not normally hold a hearing, he reviews the decision and can confirm, vary, rescind, or request that the Tribunal hold a new hearing to reconsider its decision.

2. apply for a judicial review of the process the Tribunal used in arriving at its decision.

The Tribunal offered to adjourn the hearing if Mr. Vriens wished to have his lawyer present.

After considering all of this information, Mr. Vriens decided to proceed with his appeal without his lawyer present.

Peter Gould, Director, raised three preliminary issues:

1. He requested that the Tribunal tell him how many raw milk quality appeals to the Tribunal have been heard in the past year.

2. He asked if there were any panel members who have a personal bias related to the milk quality program that is in effect.

3. He asked if the Tribunal could identify those factors it would be taking into consideration during the hearing and whether the decision would be limited only to those factors presented during the hearing.

In response to Mr. Gould’s question, the Tribunal said it had held one raw milk quality hearing in the last year. The Tribunal responded to Mr. Gould’s bias question by stating that if he wanted to raise a bias or apprehension of bias issue, it was up to him to raise it and make specific allegations. In response to his third question, the Tribunal said it will hear the evidence presented and make its decision based on the evidence before it.

Mr. Gould declined to identify any apprehension of bias in the members of this panel of the Tribunal.

The Evidence and the Findings

Mario Vriens told the Tribunal that his farm is located just outside Arthur and he has farmed there for 3 ½ years. He said he does all of the milking. His wife takes care of the calves and his oldest child helps put shavings in the barn. He has a double six-milking parlour where he milks between 55 and 60 cows twice a day.

Mr. Vriens said he strives to produce good quality milk. His family also drinks this milk so he does not want inhibitors in his milk. He said he does not think the milk sample taken on July 20, 1999 is indicative of the milk he shipped that day.

He said he received a copy of a memo, dated 11/10/99, from the University of Guelph Laboratory Services (the Lab) to George MacNaughton, Manager of Farm Policies and Programs, Dairy Farmers of Ontario (DFO). That report indicated that his milk sample was found to be Code 2 positive (Penicillin G) and the sample was suspicious for a low level of sulfamethazine (SMZ). He said he does not have any drugs or products on his farm that contain SMZ so the milk sample could not have been his.

He also stated that the test result did not detect Garasol which had been used in cow #22, along with Ethacilin, during the time period when the sample was taken.

Mr. Vriens testified that whenever he treats a cow she comes into the milking parlour in the last group of six. Treatments are administered in the milking parlour. He said when he treats a cow he puts a red leg band on each leg. Her milk is not put in the tank. He writes the treatment on the temporary chart which is a white board. When she is treated for the last time, he marks on the permanent calendar the date her milk can go in the tank and what drugs she was treated with. He said the cow that was treated on July 20, 1999 was not put on the permanent calendar as she did not get better so he shipped her to market. Since he does all of the milking, there couldn’t have been a mistake that someone else put the milk from the treated cow in the tank. If he is unsure whether to put a cow’s milk in the tank he goes to the neighbor or the veterinary clinic to get a sample tested for inhibitors.

He also submitted into evidence a copy of a veterinary report which forms part of his permanent treatment records. The report shows when an animal was treated, the recommended method of treatment and the drugs administered.

Mr. Vriens said cow #22 calved on July 13, 1999. She was dry-cow treated with Nova Dry February 26, 1999. This was her third calf. He said he first treated her July 16, 1999 with Pirsue in both hind quarters. She had a temperature of 106.5F. On July 18, 1999 her temperature was still high so he called his veterinarian. He infused into her hind quarters a mixture of 60cc Ethacilin and 60cc of Garasol. She was also injected with 10 ml of Flucort and was given an I.V. transfusion of 50% Dextrose with Vitamaster added. 40 ml of Borgal was given in the neck intramuscularly that same day. He said on the 19th and 20th of July he continued the treatment. He said the cow did not get better so he shipped her to market on July 27, 1999.

He said that on July 21, 1999 he was still treating the same cow. When Gordon Johnson, DFO Field Representative, tested the milk that day it was negative. Therefore, he does not believe the sample of milk taken July 20, 1999 was representative of the milk he shipped that day.

Mr. Vriens submitted into evidence pictures of his milking parlour. He said the hose that leads from the weigh jar to the milk line can be closed off by two valves. One valve closes automatically as soon as the cows come in. The second valve is closed manually when required. He said he always takes the milk out of a weigh jar containing milk to be withheld, before he releases the cows from the milking parlour. The milk is allowed to run into a pail on the floor. When a treated cow has been milked into a weigh jar and the milk has been discarded into a pail, the claw and jars are rinsed twice with water so that no milk residue is left.

Mr. Vriens said that his milking parlour serviceman checks his equipment twice a year. The last check was in August 1999 and before that was January 1999. He said the manual valves on the hoses leading from the weigh jar were replaced in January 1999.

He said his drugs are stored in a fridge and he treats an animal with the dosage recommended on the label or as prescribed by his veterinarian. He follows withdrawal recommendations. He then withholds the milk from that cow for one extra milking than the withdrawal period shown on the label. He said he does not treat an animal with an increased dosage or a combination of drugs unless recommended by his veterinarian. If the veterinarian suggests he test the milk before putting it into the tank, he gets the milk tested at his neighbors or at the veterinary clinic. He said it is not often that he has to test the milk.

Mr. Vriens said his treated cows are not kept separately from the milking herd. However, those treated cows that are very sick are kept in a separate pen. At milking time, the cows move into the parlour six at a time on either side. The milk from the treated cows is fed to the calves. The calf hutches are situated outside the barn.

He said if the load tested suspect positive he does not understand why all of the producer milk samples on that load were not tested at the Lab. Only his sample of milk was sent to the Lab for an official test.

In response to a question of the Tribunal about treatment for cow #22 not showing on the permanent record, Mr. Vriens responded that he made the decision to sell cow #22 on July 21, 1999 so her treatment records were not transferred to the permanent records as her milk was never put back into the tank.

Mr. Vriens said the Raw Milk Quality staff accused him of making a mistake but stated they also make mistakes. In the August 31, 1999 letter he received from Peter Gould, Mr. Gould refers to the July 20, 1999 sample that tested positive for an inhibitor and later in that same letter he referred to the date as August 20, 1999.

Peter Gould, Director, told the Tribunal that:

1. On July 20, 1999, a sample of milk from a bulk milk truck was suspected positive for veterinary drug residues on two SNAP BL tests conducted at Neilsons Dairy in Halton Hills.

2. Samples of milk taken from the farms making up the load of milk were tested by DFO Field Services Representative, Gordon Johnson. The sample of milk taken from the Vriens’ farm tested positive on both the SNAP BL and the Delvotest P.

3. All of the other producers’ samples on the load were negative on the SNAP BL test.

4. The Vriens’ sample was taken to the Lab for the official Disk Assay test where it was confirmed the zone of inhibition was 1.9 centimetres, exceeding the regulatory threshold of 0.01 IU/ml which is equivalent to a zone of inhibition of 1.6 centimetres for Penicillin G.

5. The samples of milk were collected by a licensed Bulk Tank Milk Grader (BTMG) and were in the possession of the BTMG until collected by the DFO Marketing Officer.

6. The samples were tested to determine the source of veterinary drug residues on the load. Sample integrity was maintained during storage and testing.

7. There was an animal on the Vriens’ property that was treated with Pirsue (pirimycin) and Borgal (sulphadoxine). This animal was also treated with a prescribed mixture containing Ethacilin (Penicillin G Procaine) and Garasol. Penicillin G was detected in the sample that was tested by the Lab.

As a result of the positive inhibitor, Mr. Vriens was penalised $6/hl amounting to a penalty of $2,601.12 which was assessed on the 433.52 hl shipped in July 1999.

Mr. Gould read into evidence Regulation 761, Sections 5(1)(a)(ii), (l) (h); Section 52(1)(iii); Sections 54(1), (4) and Section 55(3). These regulations are concerning the quality of milk and give him the authority to impose a penalty if an inhibitor is found in the milk.

He said that Gordon Johnson visited the Vriens’ farm on July 21, 1999 and placed the milk under detention. At that time, he tested a sample of milk from the bulk tank containing two milkings and the test result on the milk detention sample was negative on both the SNAP BL and Delvotest P. The producers’ milk detention was then lifted.

Rena Hubers, Program Manager, Dairy Food Safety, OMAFRA said it is her responsibility to audit and monitor administration of the raw milk quality program. She said the approved Lab for official testing is the Lab at the University of Guelph. Various field type tests are also approved. However, the Disk Assay test is the approved test for official purposes.

Ms. Hubers said that if a load tests positive at the plant, normal procedure is that all producer samples from that load are tested at the Lab using the official test. In this case, the load tested suspect positive using a screen rapid test. No load sample was tested at the Lab. The DFO representative tested each of the samples on the load using the SNAP BL test. Only Mr. Vriens’ sample tested positive. That is why only Mr. Vriens’ sample was sent to the Lab and tested using the official test.

Gordon Johnson told the Tribunal that when he received the five producers’ samples, the produces’ bar code labels and the tamper lock tabs were all in place. He conducted the SNAP BL test and it was negative for four of the samples. Mr. Vriens’ sample tested positive on both the SNAP BL and Delvotest P tests. He then delivered the Vriens’ sample to the Lab for official confirmation testing.

Mr. Gould said good management practices are encouraged through producer mailings, Ontario Milk Producer Magazine articles, etc. He referred to the DFO factsheet entitled “Do you have good inhibitor prevention practices or good luck?”. That factsheet recommends keeping permanent treatment records for individual cows and displaying a barn treatment chart in an obvious location in the barn or milkhouse. He also referred to a section which states that the manufacturer’s label provides the recommended dosage and that if you follow all manufacturer’s dosage recommendations, you will be able to calculate the withdrawal period. If you administer more than the recommended dosage, the milk withdrawal period will be longer. The only sure way to know that milk is free of drug residues, after a cow has been treated, is to test the cow’s milk before it is put in the bulk tank. Mr. Gould said it is important to be vigilant about keeping drugs out of the milk. Raw milk quality and human food supply are critical issues to human health.

Mr. Gould said that cow #19 freshened on July 14, 1999 and she had been dry treated. However, that treatment record did not show on Mr. Vriens’ permanent calendar. Cow #22 was also being treated from July 16 to 20, 1999 but her treatment record did not show on the calendar. Mr. Gould suggested the method of recording treatments used by Mr. Vriens is not considered a permanent record.

He said the July 20 and 21, 1999 producer samples were tested for milk composition and SCC. Those results were compared to other results in the same period. Vriens’ other results, July 18 and 26, 1999 closely match the results of the positive sample for milk composition. Therefore,he is convinced the July 20, 1999 sample was representative of the milk shipped that day.

Mr. Gould said on July 20, 1999 there were veterinary drugs on the Vriens’ farm that could have caused the Penicillin G positive test. At the time, cow #22 was being treated with a penicillin based drug. There are a variety of possible ways of treated milk getting into the system – milk leaking past air and manual valves during milking, milk leaking past manual valve due to incomplete closure or wear, incomplete flushing of the system including all inflations, hoses, receiver jar and contact surface of the valve.

He said he is confident that the sample was properly taken and transported. He is confident the sample that was tested is indicative of the milk offered for sale on the date in question.

In response to Mr. Vriens’ question about the Lab test showing traces of SMZ, Mr. Gould said that test could have been a false positive test. It was not an official test. The official Disk Assay test, however, was positive for penicillin. Confirmatory testing for SMZ was not conducted as the level present, as indicated by the screening test, was not in the violative range and the test costs about $200.

In response to a question of the Tribunal about his August 31, 1999 letter to Mr. Vriens referring to the fact that a test at the Lab showed it contained traces of sulphadoxine, Mr. Gould responded by saying that he can’t explain why the word sulphadoxine was in the letter.

Mark Mitchell, Scientist at the Lab, said when Mr. Vriens’ sample arrived at the Lab July 21, 1999 it was tested using the standard Disk Assay and was found that it was Code 2 positive (ie. Penicillin G). The fact that the sample, when tested using the LacTek test, indicated very low levels of SMZ was of no consequence and was considered a false reaction. An official HPLC test for sulpha was not conducted.

In response to a question of the Tribunal, Mark Mitchell said when dealing with regulatory issues you have to complete an official test. Using the HPLC test, SMZ can be detected at two or three parts per billion. The safe level is 10 ppb. He was not requested to conduct an official test for SMZ.

The Findings

The Tribunal reviewed the evidence and noted the following facts:

1. The July 20, 1999 sample of milk taken from the Vriens’ farm tested positive on both the SNAP BL and the Delvotest P. The sample also tested positive (for Penicillin G) at the Lab using the Disk Assay test and was in a penalty position.

2. The sample was also tested by the Lab using the LacTek test for SMZ and was found suspicious for low levels of sulphamethazine. An official test was not completed.

3. Sample integrity was maintained during storage and testing.

4. There was an animal on the Vriens’ property that was being treated with Pirsue and a prescribed mixture containing Penicillin G at the time when the positive sample was taken. Penicillin G, at a penalty level, was detected in the official test conducted by the Lab.

5. Sampling procedures used by the Bulk Tank Milk Grader were not in question.

6. Mr. Vriens had some permanent treatment records however not all cows that were treated

were on the permanent records.

7. Treated cows are put in the holding area along with the rest of the milking herd. This is not a

recommended management practice.

The Tribunal was convinced that Mr. Vriens would not knowingly ship milk that contained an inhibitor. However, the official test at the Lab did confirm there was penicillin in the milk. There was a cow on the Vriens’ farm that was being treated with penicillin in an off-label manner.

Therefore, there was an opportunity for penicillin to have contaminated the milk on the farm. In the opinion of the Tribunal, responsibility for the milk produced and shipped from the farm must remain with the producer.

The Tribunal recommends that Mr. Vriens keep permanent treatment records in the method recommended by the DFO.

The Tribunal can appreciate how there could be some confusion created in the mind of the producer when he received the letter from Mr. Gould dated August 25, 1999. There were inconsistencies in this letter. The sampling date was incorrectly recorded in one sentence and the statement that sulphadoxine was present in trace amounts was not accurate.

Evidence was presented at the hearing suggesting that there were trace amounts of sulphamethazine in the milk sample and that this was likely a false positive reaction. However, no official test was conducted to confirm or deny this finding. Mr. Vriens did not have any SMZ based drugs on his farm and so was convinced that the milk sample could not have been his. In the opinion of the Tribunal, in situations like this when there is a reported suspicion of an inhibitor present, there should be an official test to determine the amount of drug present.

Decision and Reasons

After careful consideration of the evidence presented and the submissions made, the Tribunal decided to deny the appeal for the following reasons:

1. The appellant’s milk sample was the only sample on the load that tested positive for inhibitory substances.

2. The Tribunal was not presented with any evidence that Penicillin G could have entered the milk from any source other than the farm.

3. There were antibiotics present on the farm and antibiotics that had been administered to a

cow that could have caused the positive test result.

The reason for this decision is that, in the opinion of the Tribunal, producers must accept responsibility for the quality of the milk produced on their farm.

The Tribunal recommends that Raw Milk Quality Program staff and staff at the Lab investigate the possibility of holding producer samples for a longer period of time when a dispute and/or appeal has been filed concerning the test results of a sample.

Dated at Guelph, Ontario this 21st day of December, 1999.