The Laws on Raw Milk Are Vague for a Reason...So They Can Be Used to Harass and Intimidate--Why the Private Option Is Looking Ever More Attractive; Morningland Case Salvo
There was an article in the Washington Post a few days ago saying that the new food safety legislation passed by Congress last month and just signed into law could well not be funded enough to allow the U.S. Food and Drug Administration to enforce its provisions. The implication was that the legislation could well be irrelevant.
I found myself wondering: Why would Congress go through all the fancy footwork of votes and re-votes, and legislative deals (we still don't know what kind of benefits the legislation's key Senate opponent, Tom Coburn of Oklahoma, received in return for changing his mind at the last minute to support the legislation) if Congress wasn't going to fund the legislation. Seems strange.
But then it occurred to me that, even if the FDA can't hire all the new inspectors it wants right away, it will have the legislation on the books--in the vault, so to speak--ready and waiting to be enforced as the agency wishes. Regardless of funding, the FDA now has the authority to go searching around any food producer at its discretion, to order food recalls whenever it desires. It has the authority to quarantine large areas of the country and to establish agricultural guidelines. It has the authority to collect the names and key data about all small food producers, in the name of a study it is supposed to do on food safety.
Now consider the situation in Colorado. Even though government agencies really have no business in herdshare arrangements (they are private arrangements between farmers and investors who buy shares of animals in return for milk) Colorado public health officials gained regulatory authority over Colorado cowshares five years ago.
The law was kept vague in key respects, notably in terms of exactly which dairy products can be produced. Lola Granola can say she knows what the law says, but she only knows how she inteprets the law. Different people, including judges, interpret the same law differently. We're getting a good illustration of that in Missouri, in the case of Armand Bechard, where the state has come down on the Bechards for allegedly selling raw milk in a parking lot in 2009, and now a local judge has overturned a municipal judge and is suggesting, in dismissing the case, that what the Bechards did wasn't illegal.
The more vague the law, the more interpretations you'll have.
Moreover, the more vague the law, the more arbitrarily it can be enforced. So Colorado public health officials were all lovey-dovey the first four years the cowshare law was in force. Everyone thought they were such open-minded public health people.
But maybe they weren't so open-minded. Maybe they were just biding their time, waiting for the excuse of a few illnesses attributed to raw milk. Or maybe they need financial support from the FDA. Or maybe it's suddenly become in their interests to support the Health People 2020 goal of reducing the number of states that allow raw milk.
It almost doesn't matter what their goal is. The reality is that by having a vague law at hand, they can just decide from one day to the next to make life miserable for producers. We've seen the same routine in any number of other states. Wisconsin and Minnesota allow "occasional" sales of raw milk, whatever that means. Not surprisingly, the definition of "occasional" changes over the years, according to the state and federal political agendas, and the people running various public health and agriculture agencies at particular times. Now there's talk of passing a law in Wisconsin that allows raw milk sales...so long as it "protects" the established dairy industry. How the heck do you do that? Easy, by keeping things vague and arbitrary.
Massachusetts doesn't even have official prohibitions against herdshares and buying clubs, yet state agriculture officials have decided on a lark that they have authority over such private matters, and threatened to shut people down.
Increasingly, I am being asked by farmers and food club managers how I think they should handle these arbitrary enforcement actions like in Colorado. I used to hedge, but no longer. Situations like those in Wisconsin, Minnesota, Colorado, and other places all contain a single message. Public health authorities are intent on disrupting access to raw dairy, local meats, and other nutrient-dense foods. By harassing farmers and buyers clubs, the officials increase the cost of doing business. By intimidating consumers, the officials confuse and sometimes scare off customers.
Armand Bechard was quoted in the article I linked to above as saying, "They took me to court and tied up my life for over a year and a half." And he's not done. A farmer in Oregon some months ago who abandoned the conventional dairy route for a private arrangement expalined it well in this article.
It's great that the Farm-to-Consumer Legal Defense Fund is fighting these encroachments (including the Bechard case), because surely the legal challenges are slowing the official pace of harassment and intimidation. And maybe eventually FTCLDF will win some some cases (and I'm not saying that sarcastically, merely as an indication of what huge forces it is fighting). But while its efforts are moving forward, I have begun advising farmers and consumers to look toward private arrangements, leasing and buying club and investment arrangements.
Yes, these arrangements will make it tougher to access food. But maybe we were deluded for too long in thinking access to quality food would just keep becoming more convenient, and ever cheaper. Whether we are producers or consumers, we need to understand that real-food food production and distribution is hard work. Moreover, it's not cheap. It's going to get tougher, until the new private system establishes ever firmer roots. But it will. It has to, if we are going to maintain access to good food.
The Morningland Dairy case is due to open in a Missouri court next Tuesday. When it does, Morningland, a tiny raw milk cheese producer caught up in the multi-agency raid against Rawesome Food Club last June, will be seeking about $85,000 in damages from the state, in connection with cheese that has spoiled and refunds made to customers. The state is seeking to force Morningland to destroy its entire
$250,000 worth of inventory.
Morningland, which is being represented by the Farm-to-Consumer Legal Defense Fund, will also be seeking a ruling from the judge on a new motion arguing that the state must make a conclusive case that the company's cheese is unsafe via listeria contamination.
"It is not (Morningland's) burden to prove that its cheese products ARE safe or fit for human consumption. In essence, (Morningland) seeks a ruling that the State cannot merely present evidence 'suggesting' that Defendant's cheese IS NOT safe, thereby requiring Defendant to prove its cheese IS safe."
Morningland is also seeking a jury trial. This promises to be a complex, and possibly precedent-setting case.