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A chapter in my new book on food rights is entitled, “Since When Are We Afraid of Food?” I detail some of the reasons for the sometimes irrational concerns about food dangers that have developed over the last twenty years, resulting in what sometimes seems like endless regulatory and media warnings about the dangers of getting sick from food.

 

I’m not sure I fully appreciated how deeply the fear has embedded itself into our culture until I learned what the Wisconsin judge in the criminal case against Vernon Hershberger had to say about his food fears at the pretrial hearing in Baraboo last week. 

 

I have pieced together the judge’s remarks from several sources who were present when the judge, Guy Reynolds, went on what can best be characterized as a rant about food safety. The lawyers in the case were sparring at the hearing over the extent to which Hershberger’s lawyers would be able to question regulators from the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) about their decision in June 2010 to issue a holding order against Hershberger that had the effect of shutting down his tiny farm store. The defense lawyers want to inquire about what concerns the regulators might have had about the safety of Hershberger’s food that prompted them to raid the farm, place tape on his store’s refrigerators, and pour blue dye into a vat containing his dairy’s raw milk. 

 

Nothing doing, said Judge Reynolds. The jury is “not going to hear evidence concerning the disputed quality of this food…That is not what this trial is about.” 

 

Why would the judge deny defense lawyers the opportunity to question the state about specific concerns the regulators had about the safety of Hershberger’s food such that they felt compelled to shut his farm down? 

 

It seems as if Reynolds has determined the state has absolute  and unquestioned authority over making the determination that any food in Wisconsin could potentially make people sick. “The policy of the state is, as I understand the law, is that the agents of the state are trained to make that call (about whether food might be unsafe) because it is food,” the judge stated. Should unsafe food make it into people’s hands, “there is no remedy. What is the remedy if someone is seriously ill or dead? It is one of those things…”

 

As a result, he concluded, no evidence can be presented about “was it good food or was it bad food.” 

 

When one of Hershberger’s lawyers pleaded that the stakes were so high–that Hershberger “could go to jail”–that the lawyers should be allowed to explore what drove the investigators to determine that Hershberger’s food was potentially dangerous, the judge cut him off. “We aren’t going there.” 

 

In other words, DATCP’s decisions are beyond questioning when it decides, for whatever reason, that even a slight possibility exists that individuals could get sick from particular food. 

 

The judge’s conclusion has already had a ripple effect. In a motion filed today, the Wisconsin Department of Justice asked the judge to quash a subpoena issued by Hershberger’s lawyers requiring two state officials–Cheryl Daniels, a DATCP lawyer; and Steve Ingham, who in June 2010 was head of DATCP’s Division of Food Safety and signed the holding order against Hershberger’s farm–to testify as witnesses at the trial. As part of its argument that the two individuals’ testimony would be “not relevant,” the prosecutors noted that “to the extent that the defendant would seek to have either of these witnesses testify regarding the grounds, or basis for the holding order, this Court has already ruled that such testimony is not relevant and is inadmissible in this matter.” 

 

The judge’s endorsement of DATCP’s complete authority over Wisconsin food seems to clarify his string of pretrial decisions seriously limiting what the jury will be allowed to hear on the case. He has already ruled that there be no consideration of whether Hershberger had criminal intent when he defied the holding order, or whether raw milk is inherently so dangerous that the regulators felt compelled to shut down his farm. 

 

I wouldn’t want to bet against Judge Reynolds excusing the two state officials from having to testify at the trial.