Buyers Club Crackdown Continues: WI Moves on 5th Amendment Rights Illustrate Need for Clarity on Raw Milk
The buyers club crackdown, which saw members of a Georgia buyers club being forced to pour out their own milk, has now moved to Wisconsin. There, Max Kane, the head of the Belle’s Lunchbox buyers club that supplies raw milk customers in Chicago, has a court date December 21 to tell a judge why he shouldn’t answer questions from the Wisconsin Department of Agriculture, Trade, and Consumer Protection.
The Wisconsin DATCP previously subpoenaed Max Kane last spring, seeking information about the buyers club. He showed up at the session with copies of the U.S. and Wisconsin constitutions, and protested that he wouldn’t testify in violation of the Fifth Amendment’s protection against self incrimination.
He says the Wisconsin authorities have since responded that they are willing to grant him immunity against prosecution, in exchange for his testimony. When he refused that, he says, they offered him a further deal: just shut down your buyers club and we’ll forget the whole thing. He’s refused that as well.
He says that providing any information about his buyers club will potentially open him up to prosecution by the federal government, via the U.S. Food and Drug Administration. “I know that once I give them information, I will have a big target on my back, because the FDA will be waiting to go after me. They haven’t given me immunity.”
Max Kane has reason to fear the FDA. If you’ll recall, he obtained emails that incriminate the FDA in a plan hatched earlier this year to crack down on Midwest buyers clubs. And the judge on December 21 could conceivably rule that Max Kane is in contempt of court, and throw him into jail. There are precedents for such action, particularly against reporters and editors who refuse to hand over lists of sources in new stories involving suspects in criminal actions.
Clearly, Wisconsin is on the war path against raw milk. A number of raw dairy farmers in the state are understood to have received warning letters about their sale of raw milk.
Part of the problem in Wisconsin is that the rules about distribution and sale of raw milk are unclear. At times, the state has been permissive about herd shares and buyers clubs, and at other times (like now) it hasn't been. It allows so-called “incidental sales” of raw milk by dairy farmers--sales supposedly not central to the dairy--but the exact meaning of that term has never been spelled out in court.
A number of states operate like Wisconsin. They prohibit or don't specifically allow raw milk sales, but at different times they tolerate such sales to varying degrees via herdshares and buyers clubs.
That ambiguity, which allows regulators to crack down whenever the mood strikes them, is part of what makes disagreements about raw milk so complicated. One of the things I especially liked about food poisoning lawyer Bill Marler’s proposal a few days ago about allowing sales of raw milk directly from farms was his backing of a clear approach for distributing raw milk. I don’t think his way is necessarily the best, but it is clear and understandable, and in the current atmosphere of high emotions and rancor, clarity counts for a lot. That’s what the various sides should be working towards: clarity, rather than trying to get small-time distributors like Max Kane to violate Constitutional protections and forcibly testify against themselves.
As mentioned in the comments following my previous post, there is an interesting assessment of the raw milk debate (with some controversial comments about Mark McAfee of Organic Pastures), along with quotes from The Raw Milk Revolution.