Happy Anniversary to the FTCLDF...and Three Reasons I Believe It Has Succeeded; Dan Brown Suit Response
I want to be the first to wish the Farm-to-Consumer Legal Defense Fund a happy fifth anniversary.
The FTCLDF launched, quite appropriately, on July 4, 2007. It sprang up in response to the coordinated crackdown launched the previous year by state and federal authorities against raw dairy farmers, to ensure they had legal representation to defend themselves against the new aggression. The government's campaign has since expanded to include makers of raw milk cheese and other foods, along with consumers, especially members of food clubs.
The FTCLDF will celebrate the anniversary with a gathering Saturday at the Maryland farm home of Sally Fallon, head of the Weston A. Price Foundation. The obvious question at such an anniversary is, what has FTCLDF accomplished during its five years of existence?
The obvious way to answer the question is to tally up court wins and losses. If you do that, it's easy to conclude that the FTCLDF hasn't been very successful. It has failed to win any notable cases. Most have either been losses, dismissals of its motions, or an unwillingness by judges to take seriously its arguments. Some have suggested that the FTCLDF's legal efforts have been counterproductive, because the negative opinions in places like Wisconsin and New York have set precedents that will make life even more difficult for other farmers going forward.
The outcomes have been especially disappointing because there was so much hope when the FTCLDF launched. Finally, it was thought, farmers would get their cases in front of judges, and surely the judges would see the injustice of the campaign against dairy farmers. But alas, the optimists (and I was one of them) failed to account for the fact that the judges were employed by the people who launched the offensive against farmers. Moreover, they are inclined in any event to favor government enforcers (which they are upfront in admitting).
Yet despite the disappointment felt by many, I would argue that the FTCLDF has overall been a success, for three reasons:
1. It is still around. Not only has it managed to survive, but it has been successful enough in raising funds that it has two full-time lawyers (Pete Kennedy and Gary Cox), and is able to provide local lawyers in a number of cases, as needed. (Here is more information on its current fund-raising appeal.)
2. Its legal challenges force government regulators and prosecutors to explain themselves. These people like to operate in the darkness. When they have to file briefs answering motions and suits, they are forced to provide a rationale for what are often flimsy cases. Without the FTCLDF cases, we wouldn't have heard from the U.S. Food and Drug Administration its view that we have no rights to the foods of our choice, or from a Wisconsin judge that farmers in that state don't even have the right to the milk of their own cow. The government arguments and declarations have taught us the seriousness of the opposition to food rights, and encouraged organized opposition.
3. It has gained more than is often obvious. Simply by advising farmers of their rights, the FTCLDF has helped forestall aggressive actions. One of the most noteworthy such cases involved the attack on Nevada farmer Laura Bledsoe as she was about to serve a farm-to-fork dinner at her Nevada farm. She salvaged her dinner when she took FTCLDF advice and asked the health department agent for a search warrant. Its major suit against the FDA in 2010 seemingly ended in defeat when a federal judge dismissed it. But recently, the American Bar Association's magazine has published an article about the case suggesting that the FTCLDF succeeded in forcing the FDA to admit it doesn't enforce the ban on interstate raw milk shipments on consumers bringing it across state lines for personal use, thus pressuring the FDA to accept that reality as policy. Noted the article: "The federal judge hearing the fund’s milk challenge dismissed the case on standing grounds since the fund could not prove injury because the FDA, in the course of litigation, said it does not enforce the interstate sales ban on raw milk. And with that, the group saw a small victory."
The reality is that it often takes much longer than expected to convince judges that some people's rights are being violated, and the enforcers are abusing their authority. The most notable example is the courts' treatment of blacks, beginning with judges who upheld slavery in the 1800s and the "separate but equal" concept during the 1900s.
My suggestion this July 4: Let's drink a raw milk toast to the next five years of the FTCLDF.
In its latest case--that of defending Maine farmer Dan Brown in a challenge to the Food Sovereignty ordinances--the FTCLDF has filed briefs seeking summary judgment on behalf of the farmer. The main brief that the judge in the case should reject the challenge by the Maine Department of Agriculture for two main reasons: the state allowed private sales of raw milk for many years prior to the Food Sovereignty ordinances for those farms that didn't advertise, and because the ordinances qualify under the state's liberal "home rule" provisions from interference by the state.