Maine Food Sovereignty Prosecutors: If Private Food Sales Are Allowed, Why, There'll Be....There'll Be...There'll Be...
I've spent the last few days reading through the most recent filings in the Maine Food Sovereignty case.
If the potential importance of a food rights case could be measured in the heavy weight of the many pages of these initial arguments, this is a serious case. In this initial phase, each side has moved for summary judgment--that the judge in the case decide in its favor as a matter of law.
In the 170-plus pages (I've included in the link here the most recent 75 pages, in which the sides are answering each other's previous arguments), lawyers for the Maine Attorney General spar with defense lawyers for Blue Hill farmer Dan Brown over whether Food Sovereignty ordinances passed by Blue Hill and seven other towns in the state, which allow farmers to sell food directly to individuals, without having to worry about state regulations, should be allowed to stand. Lawyers for Brown, including Gary Cox of the Farm-to-Consumer Legal Defense Fund, argue that the state effectively allowed the private sale of raw milk by small farms that didn’t advertise, for many years prior to 2009; that's when it began targeting all raw dairies for licensing.
Central to the case, the lawyers offer their divergent interpretations about Maine's home rule provisions, which allow wide municipal independence. Brown's lawyers argue that the Maine constitution, and home rule laws growing out of it, provide clear precedence for Maine towns to enact laws independent of state regs. The state argues, essentially, that the home rule provisions were never intended to be applied so as to interfere with the state's broad powers to regulate food, and especially dairy. Food, after all, is a special area, since it is so dangerous.
The state maintains that "the Blue Hill Ordinance frustrates the clear purpose of the law--that is, to protect the public by assuring that the sale of milk and milk products in Maine is regulated by the State in a manner consistent with inspection and examination, licensing, permitting, testing, labeling and sanitation standards established by the U.S. Food and Drug Administration--and the Blue Hill Ordinance prevents the accomplishment of this purpose...were the Ordinance to be effective to prevent the State from enforcing the licensing and inspection requirements of the law, it would allow the Defendant to continue the sale of raw milk and raw milk products to the public for consumption without any regulatory oversight and without any assurance that the milk was collected, bottled or held in a safe and sanitary manner. Again, such a result cannot be permitted as it could have serious public health consequences in contravention of State law."
What is the state's supporting evidence for playing the fear card?
The largest single chunk--about 15% of the paper volume-- consists of printouts from the U.S. Centers for Disease Control about all the ways people can get sick from pathogens, how dangerous raw milk supposedly is, how people can "protect" themselves from foodborne illness, and on and on. It also includes the now-familiar "estimates" about the amount of food-borne illness in the U.S., that 48 million people get sick and 3,000 die each year from foodborne illness, and detailed breakdowns of these "estimates" according to pathogen.
The only problem with the 27-plus pages of CDC information is there's no hard data anywhere--in the CDC printouts or in the state's many pages of arguments--to back up its case about the public health danger. For example, getting to the case at hand, how many people have become sick from tainted food in Blue Hill and other Maine towns since they enacted the Food Sovereignty ordinances, most of them well over a year ago? How many illnesses from raw milk in the state of Maine over the last five years, what with many dairies having opted out of the state's supervision? For an answer to both questions, try zero, as in none, zilch.
It's quite astounding, when you think about it. It's one thing that the CDC uses those totally inflated guesstimates about 48 million people getting sick and 3,000 dying each year from food-borne illness as part of its media propaganda to justify its existence . But to use such propaganda in a serious legal case, where everyone is bound to "tell the truth, the whole truth, and nothing but the truth," is another matter.
The CDC does have hard data, but the agency buries it in its own reams of reports and announcements. Like this 2011 report on the actual 2008 data (the most recent available). It begins with the same-old-same-old--that there are 48 million illnesses from contaminated food. But then it provides the real data: "During 2008, the most recent year for which data are finalized, 1,034 foodborne disease outbreaks were reported, which resulted in 23,152 cases of illness, 1,276 hospitalizations, and 22 deaths."
You read that right--23,152 illnesses, not 48 million; 22 reported deaths from foodborne illness, not 3,000. Even if you allow lots of leeway because of all the different pathogens and varying reporting capabilities of some locales, deaths are an entirely different matter. Deaths are the easiest cases to monitor because each person who dies must have a death certificate, and a stated cause of death. All the CDC has to do is monitor death certificates to find out the real number, and these are publicly available. Or, even easier than that, just monitor the media, especially the product liability lawyer web sites, which play up each and every death from foodborne illness. Nothing gets by their $$$-trained eagle eyes. But all that would be much more dangerous than any danger from foodborne disease because it would reveal the truth--that the number of deaths was much closer to 22 than to 3,000.
I believe it was Amanda Rose who was recently throwing around accusations of "fraud." The CDC's use, or misuse, of food safety illness and death data, is much more fraudulent than anything any farmers might have pulled. Actually, in legal parlance, the misdeed would be "perjury."
The problem with these Maine filings seeking summary judgment is that a judge, not a jury, rules on them. A nod of the head by a judge and a signature on a piece of paper could render this case moot before it gets argued before a jury. Judges have demonstrated in other cases around the country how easily they can be snowed by public health fear mongering.
Let's not forget, this case is about allowing owners of small farms in a few towns where the citizens have approved it to engage in private food transactions. It's a tiny matter. But it could set important legal precedent by lifting the stranglehold the regulators have over the entire food system, including private food distribution. That's why the state of Maine (probably with oversight from the U.S. Department of Justice and the FDA) is taking it so seriously. Let's hope it gets a proper hearing.
A reviewer of my book, The Raw Milk Revolution: Behind America's Emerging Battle Over Food Rights, takes an intriguing first-person approach to comparing his own experiences with some of mine, and assessing the attention I give to food safety. And there is an opportunity to win a free book.
An alliance growing out of regulator excesses --in "celebration of food freedom and voluntary exchange"--will feature Lemonade and Raw Milk Freedom Day in Washington next week. The two-day event will include a half day of "Rights Training" on Friday by a group of experts in civil disobedience, court procedures, and organization (with dinner from Polyface Farm), followed on Saturday by a demonstration at the Capitol Reflecting Pool.
See activist Max Kane extend a personal invitation to the event to John Sheehan, head of the FDA's dairy division.