Defiance in KY, As Food Club Members Grab "Quarantined" Raw Milk; Allgyer Claims FDA Search Warrant "Null and Void" Because Agency Lacked Farm Authority
On Friday afternoon, as the administrator of a Kentucky buying club was setting out raw milk and other food for pickup by members, an inspector for the Louisville Metro Department of Health and Wellness appeared at the church basement storage site. He presented two pieces of paper: a cease-and-desist order (from the Louisville Metro Department of Health and Wellness) and a quarantine order (from the Kentucky Department of Health Services), and placed "Quarantine" notices on each of several coolers containing 76 half gallons of milk. (See the quarantine order below.) The order is made out to one of the administrators along with the Farm-to-Consumer Legal Defense Fund, apparently because the buying club administrator called a FTCLDF lawyer while the inspector was present.
By the time members arrived, a new piece of paper had been placed on the coolers, stating:
I, the undersigned, hereby declare that I have taken my milk that comes from cows I own via private contract under the protection of the KY constitution (articles 1,2,4,6,10,16,26), and if the county health department would like to speak with me about this matter, I can be reached at the number given below.
Before the afternoon was out, about 40 members of the buying club had signed the statement, and taken their quarantined milk. "A large number of my members pulled in today and ignored the cease-and-desist and quarantine orders," John Moody, a co-administrator of the buying club, told me.
In other words, these buying club members openly defied the Louisville public health authorities. In so doing, I believe they are the first consumers to sign on to such an act of group defiance to protect and preserve their food.
We've seen any number of farmers defy official notices, one of the most notable being Vernon Hershberger, the Wisconsin farmer, who last year cut the quarantine tapes on his fridges, and pronounced himself open for business; he continues in business to this day, as no prosecuting authority has seen fit to follow up with legal action. We've also seen the administrators of the Rawesome Food Club in Venice, CA, immediately re-open after a local health department order ostensibly shut the place down. There was also the humiliating scene in Georgia in September 2009 where members of a buying club poured out many gallons of raw milk they had previously purchased, on orders from the Georgia Department of Agriculture, under the watchful eye of a U.S. Food and Drug Administration official.
In none of these cases did consumers sign on to take places on the front line as have those in Kentucky.
The action by Louisville public health officials might be seen as an isolated event, were it not for the Rawesome case, and the FDA's undercover investigation of a Maryland food club served by Amish farmer Dan Allgyer. In that vein, it's worth noting that the Kentucky order says it is to "Quarantine all milk products until such time they are shown to be in compliance with FDA and state of Kentucky food code."
FDA food code on raw milk? I must have missed that particular code, but it is certainly notable that the FDA is front and center in this inspector's mind, especially since this is entirely an intrastrate situation, with the milk having come from a Kentucky dairy. (Kentucky law forbids the sale of raw milk, but is silent on the matter of herd shares, leasing, and other such private arrangements between farmers and consumers.)
The Kentucky consumer action is potentially a very important development in the war that is raging between the government and its citizens who desire to consume various foods the government disapproves of. The FDA has indicated in its responses to the court suit over raw milk by the Farm-to-Consumer Legal Defense Fund that it is desperate to avoid involving consumers in its offensive against raw milk, that it wants to confine the battle to farmers it can harass and try to force out of business.
Now that consumers have joined the fray, a few questions come to mind:
* What is the penalty for a consumer who violates a quarantine?
* Will the authorities go after everyone who signed the statement and took their milk?
* Will the authorities seek to make an example out of one or two of the rebellious consumers?
* Presuming the authorities can impose a fine, will the consumers band together to fight the government offensive in court?
* Might the public health authorities slither back to their cubicles and quit while they're ahead, leaving consumers to access their food?
* What will the government do when many dozens, and possibly hundreds of others sign on to the Kentucky food club's defiance?
If the Kentucky food club members can stick together, this bit of defiance could turn out to be a turning point in the government's assault on food rights.
Amish farmer Dan Allgyer has filed several documents in federal district court in Pennsylvania contesting the FDA-Justice Department effort to obtain a permanent injunction against him serving buying club members in Maryland. He makes three objections:
1. That the issuance of a, FDA warning letter prior to the court case was illegal. "Nowhere in FDA statutes or regulations does it permit or authorize the FDA to issue 'Warning Letters' as part of their administrative procedures concerning investigations or procedures. Therefore, the Warning Letter concerning our farm was bogus, illegal and should not have been issued. FDA Warning Letters were never intended to be final demands, but intermediate requests for voluntary compliance....this is misrepresentation and fraudulent error of omission causing inferences and allegations that are damaging to the integrity, well-being and future success of our farm."
2. The buying club members are outside the FDA's purview. "The raw milk that is produced at Rainbow Acres Farm is only consumed by private persons that own or lease the cow. These private persons are not the public which the FDA agency has a mandate to protect. The FDA's jurisdiction and authority is limited to situations which present an imminent hazard to the public health."
3. The FDA had no right at the time it obtained a search warrant early last year to inspect farms. "There is no statutory right to inspect 'farms,' thus there is not a legal basis for the application or granting of an Administrative Warrant by the Honorable Court to Rainbow Acres Farm." (The Food Safety Modernization Act passed early this year did give the FDA new authority to regulate farms.)
Allgyer does suggest in one of his filings that he might have inadvertently sold milk to the public. "This Answer is intended to inform the Court and the FDA agency that any and all manufacturing and sale of our products to the public is hereby terminated. We now understand that the FDA agency has a mandate from Congress to protect the public...Be it known that we will fully comply with FDA statutes, regulations and orders in the future. We are also aware that the FDA's jurisdiction and authority is limited to the public domain..."
In addition, Aajonus Vonderplanitz, the head of Right to Choose Health Food, filed a cross-complaint in federal court on behalf of Allgyer and the Maryland food club. It was Right to Choose Healthy Food that oversaw the farm leasing arrangements under which food was made available to the food club members.
In his cross complaint, Vonderplanitz argues that pasteurized milk is more dangerous than raw milk, based on a number of sizable outbreaks, including one affecting 197,000 people during the 1980s. He also argues that the Maryland buying club members "contracted with Amish farmer Dan Allgyer to caretake members’ animals, and
produce, package and deliver products from members’ animals to members. Contract signed May 2010. RTCHF members oversee that the products from members’ animals were grown, processed, packaged and delivered to its members with specific natural standards far removed from the typical chemical standards adopted by health departments." He seeks a permanent injunction against the FDA to stop "further actions" against Dan Allgyer and Right to Choose Healthy Food, along with $498,000 in damages.