Despite Long Odds, FTCLDF Appeals Federal Judge's Dismissal of Raw Milk Case; Deception in ME Sovereignty Case?

The U.S. Food and Drug Administration caught a big break from U.S. District Court Judge Mark Bennett, when he dismissed the suit by the Farm-to-Consumer Legal Defense Fund against the agency (as described in my previous post).

But we shouldn't be surprised. The entire system is tilted in favor of the regulators, and against the people. I'm not saying this in a whining tone, but rather as a fact of life.

Judges say repeatedly that they give wide latitude to the regulators. The situation isn't unlike criminal cases, where the judges are more inclined to believe the police than anyone accused of a crime, even if there is serious evidence of police or prosecutor wrongdoing.

Moreover, the FDA knew all this going in. Now we can appreciate why the FDA tries to fudge its association with regulator and other enforcement actions. It knows the ban on interstate milk shipments is based on a weak foundation, so it needs to dance around the law, and enforce it only in situations where it's unlikely to encounter serious resistance (such as the case against Dan Allgyer, where it knows an Amish farmer is inhibited by his religious beliefs in legally contesting government actions).

So even though the FDA was up to its eyeballs in the October 2009 Georgia milk-dumping fiasco involving food-club manager Eric Wagoner, the judge gave the benefit of any doubt to the FDA. (Watch the video of consumers dumping their milk, and you'll hear food club owner Eric Wagoner state that he was told by the FDA official in attendance at the milk dumping that it would be illegal even for individual consumers to travel to South Carolina and bring their milk back to Georgia.)

The FTCLDF is appealing to Judge Bennett for a reconsideration of his dismissal last week of the challenge to the interstate ban on raw milk. The FTCLDF says in its appeal: "Specifically, on page 3 of its Opinion, the Court believed that FDA had 'made abundantly clear that it has not and does not intend to enforce the regulations against any of the plaintiffs.' With all due respect to the Court, FDA made it clear that it has no intention of enforcing the law against an individual who travels across state lines with raw milk in their possession. With respect to farmers and agents, however, FDA made it clear that it would, under appropriate circumstances, take an enforcement action against either of these entities.

"For example, FDA states in its answers to the Court’s questions...that an agent who makes a 'single delivery' of raw milk to an out of state consumer would 'not likely' be the subject of an enforcement action.." Wagoner had made any number of deliveries, the FTCLDF notes, when an FDA employee ordered him to destroy 110 gallons of milk in the fall of 2009. "Consequently, and with all due respect to the Court, this Court erred when it dismissed Mr. Wagoner’s claims, as agent for third parties, when it concluded that his claims were conjectural."

Moreover, the FTCLDF argues in its appeal that another plaintiff, dairy farmer Michael Buck, "regularly sells raw milk that is ultimately transported across state lines" from his dairy in South Carolina to consumers from North Carolina and Georgia. The "court erred when it dismissed Mr. Buck's claims, as a farmer who distributes raw milk to out of state customers..."

The FTCLDF appeal to the judge who dismissed the case is a long shot, at best. For now, the lesson out of this case, along with other courtroom defeats, is threefold:
1. The FTCLDF, or any other plaintiff, will need to have overwhelming and irrefutable evidence of serious government wrongdoing if it's going to have any chance of winning.
2. The FDA knows exactly what it is doing in working with the U.S. Justice Department in fending off challenges to its authority. 
3. The legal struggle is going to be a long and winding road. Long, as in years. I believe that ultimately it will be successful, but only after any number of discouraging setbacks, and only if supporters of food rights are willing to make needed adjustments to their cases and remain resolute.
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Backers of the Food Sovereignty Movement that originated in Maine more than a year ago claim they have evidence the state prosecuted dairy farmer Dan Brown to test one town's ordinance.

The organization Food for Maine's Future issued a press release in which it said it obtained internal emails from the Maine Department of Agriculture, including one in which an inspector referred to Brown as the state's "first test case" of the food sovereignty law by the town of Blue Hill. All this five months before the state charged Brown with three counts: selling milk without a distributor's license; selling unpasteurized milk without proper labeling; and operating a retail food establishment without a license."

Concluded Food for Maine's Future: "According to public statements by Department of Agriculture officials, the case has nothing to do the ordinance. Agriculture Commissioner Walt Whitcomb, who is listed as a plaintiff in the suit against  Brown, is quoted in at least two media sources downplaying the connection between the case and the ordinance."

Brown backers are planning a demonstration in the state capital of Augusta at 11 a.m. April 17, at the Maine Department of Agriculture, followed by a march to the state house to deliver a petition to the governor asking the state to drop the suit against Brown.