At the end of September, I posted draft citizen petitions asking FDA to put a warning on two foods the agency has told vulnerable people to avoid for years: cheese made from unpasteurized milk, and raw and lightly cooked sprouts. I asked cheesemakers, sprout growers, seed suppliers, retailers, restaurant operators, public health officials and people who have been sickened to tell me what I got wrong. Many of you did, and the drafts are better for it.
The revised drafts are posted here: I have extended the comment window to Thursday, October 15, and I will file both petitions shortly after.
What the petitions ask
Neither petition asks FDA to ban anything, lengthen anything or restrict who may buy anything. Both ask the agency to add a paragraph to 21 CFR 101.17, the regulation that has required a warning on unpasteurized juice since 1998 and a safe handling statement on shell eggs since 2000.
For cheese made from unpasteurized milk:
WARNING: This product is made from unpasteurized (raw) milk and may contain harmful bacteria that can cause serious illness in children, older adults, pregnant women, and persons with weakened immune systems.
The cheese petition also asks FDA to finish something it started. In 2013 the agency said it would reevaluate the 60-day aging rule for raw milk cheese. In 2015 it took public comment on that question. Eleven years later there is no proposed rule and no explanation. The petition asks for one or the other within a year, and for publication of the raw milk cheese sampling data FDA already collects, including its 2025 H5N1 testing.
https://www.marlerblog.com/files/2026/10/Raw-Milk-Cheese-Petition_CLEAN_10-12-26.pdf
For raw and lightly cooked sprouts:
WARNING: Sprouts may contain harmful bacteria, such as Salmonella, E. coli and Listeria, that can cause serious illness, kidney failure or death. These sprouts have not been cooked or pasteurized, and the bacteria may be inside the seed, where washing cannot reach them. Children, the elderly, pregnant women, and persons with weakened immune systems should not eat raw or lightly cooked sprouts.
The sprout petition would also reach seed sold at retail for home sprouting, and sprouts served at delis, salad bars and restaurants, by a sign, placard or menu statement.
What has happened since the first drafts
On October 5 the American Academy of Pediatrics issued a policy statement on raw milk and milk productsstating that aged cheese sold under the 60-day exception still poses an infection risk and naming warning labels among the measures pediatricians should push for. The Academy also described that cheese as “clearly labeled as unpasteurized.” It is not required to be. FDA has said so itself. When the nation’s pediatricians assume a label the law does not require, the case for requiring one makes itself.
On October 7 FDA reported that a seed sample from the supplier in the Evergreen Fresh Sprouts broccoli sprout outbreak matched the outbreak strain by whole genome sequencing. The same day a second retail seller recalled broccoli seed packed from that lot and sold online and on Amazon. Home sprouters bought that seed in packages that said nothing.
The outbreaks that prompted these petitions are still open. The Graziers raw milk cheese outbreak has sickened 13 people in nine states, eight hospitalized and three with hemolytic uremic syndrome; the median age is five. The Everything Sprouts alfalfa outbreak stands at 76 sick in 16 states, and the Evergreen broccoli sprout outbreak at 32 sick in six states.
Your comments changed the drafts. A restaurant culinary director with twenty-one years in professional kitchens pushed me on point-of-sale statements and the FDA Food Code, and the sprout petition now asks FDA to carry the warning into the Food Code’s consumer advisory, the same menu notice already required for a hamburger cooked to order. The sprout warning itself was rewritten to say plainly that these sprouts have not been cooked or pasteurized. And rather than sweeping in microgreens and soil-grown shoots now, the petition asks FDA to take that question up on the record.
What I still want to hear
Cheesemakers: Is a single prescribed sentence, with a placard option during the transition, workable for a farmstead operation? What would a label change actually cost you?
Cheese counters and online sellers: Will a placard at a cut-to-order counter work in practice? Is showing the warning on the product page before checkout the right rule for online sales?
Sprout growers and seed suppliers: What validated process, measured in the finished sprouts rather than on the seed, should earn an exemption from the warning? Should the warning eventually reach microgreens and shoots?
Restaurant operators: Is a menu or placard statement for sprouts workable, and does folding it into the Food Code consumer advisory make sense?
Physicians and public health officials: Have I named the right groups at risk, in the right words?
How to weigh in
Email me at bmarler@marlerclark.com or comment below by Thursday, October 15. After I file, FDA will assign each petition a docket number on regulations.gov, where anyone can comment formally, and the agency has 180 days to respond.
In the interest of full disclosure, and as the petitions themselves state, I represent people sickened in the Graziers, Twin Sisters Creamery and Evergreen Fresh Sprouts outbreaks.
Adults who want raw milk cheese or raw sprouts can keep buying them. These petitions ask for one thing: that the advice the government already gives in press releases and on web pages show up where the decision is made, on the package.
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