Raw Milk Not Necessarily an Allowed “Local Food,” Says Maine Judge in Ruling Against Food Sovereignty Ordinance

Dan Brown of Blue Hill, MaineMaine’s food sovereignty movement took a hit when a state judge ruled earlier this week that farmer Dan Brown must have a license to sell raw milk, despite his town’s ordinance exempting local farmers from state food regulations. 


The judge was ruling in response to requests from both the prosecution and the defense last June for summary judgment--a ruling before the case might come to trial, based on acceptance by both sides of the basic facts of the case. 


The logic behind the decision of Judge Ann Murray of the Maine Superior Court had supporters of Brown scratching their heads. Murray states in her decision that "the Court does not necessarily agree that the Blue Hill ordinance cited by Brown authorizes him to sell milk without a license by its express terms...Nothing in the Blue Hill ordinance clearly states that the town intended to include milk within the definition of ‘local food,’ and considering the ordinance in the context of Title 22 [state law that exempts farm stands and farmers markets from having to be licensed as food establishments, except for sale of dairy and meat products], one could easily conclude that it was not intended to exempt dairy products from licensure.”

 

The head scratching has to do with the Blue Hill ordinance, which couldn’t be any clearer about its intent: “Producers or processors of local foods in the Town of Blue Hill are exempt from licensure and inspection provided that the transaction is only between the producer or processor and a patron when the food is sold for home consumption. This includes any producer or processor who sells his or her products at farmers’ markets or roadside stands...” 

 

Since Dan Brown’s farm stand selling raw milk is in Blue Hill, he would seem to qualify.

 

If the town of Blue Hill had had the foresight to anticipate such legalistic wrangling, it’s unlikely the judge would have been persuaded in any event.  She notes that “the [state’s] legislative intent that milk products be subject to stricter regulation than other products...support the State’s contention that Blue Hill may not exempt individuals selling milk from the statutory licensure requirement.” 

 

The judge also declined to bend on Brown’s argument that the Blue Hill ordinance was legal under a liberal home rule provision in Maine law. “In light of the clear language of the statute and the legislative intent manifested through a complete reading of the statutory scheme, the Court declines to permit Brown to take shelter under the Home Rule. It is axiomatic that a municipality may only add to the requirements of the statute, it may not take away from those requirements unless permitted to do so.” 

 

Seems another case of...Heads, I win, tales, you lose. 

 

Brown’s lawyer, Gary Cox of the Farm-to-Consumer Legal Defense Fund, said it’s uncertain if the farmer will appeal. 

 

Blue Hill is one of nine Maine coastal towns that passed similar ordinances allowing unregulated sales of food direct from farms to consumers over the past two years. The movement has had wide popular appeal in the state and the ordinances have been used as models in an unknown number of towns and cities around the country, as far as Santa Cruz, CA. It’s uncertain what effect this ruling will have on those ordinances--whether it will prompt other agriculture and public health departments to go after them as well.  

 

Probably part of the answer hinges on what the U.S. Food and Drug Administration decides. Maine agriculture officials stated a number of times during their campaign against unlicensed raw milk sales that they were driven to go after Dan Brown because of fears the FDA might take action prohibiting intrastate sales of raw milk--trying to convince farmers that the devil you know is better than the devil you don’t know. 

 

Maine had, for many years, allowed small farms like Brown's two-cow dairy to be exempt from the state's permitting law, under the rationale that they weren't advertising and were selling small amounts of milk within their communities and shouldn't be hit with the costs associated with obtaining a permit. These costs can include construction of separate milking and storage facilities that are not proportional to the revenues the farmers may be realizing. But beginning in 2009, the state inexplicably changed, and notified all milk producers they had to be licensed. The state hadn't had any illnesses from raw milk for at least the previous five years, and likely much longer. 


rawmilkmike's picture

It seems to me that Dan Brown only needs to prove that the people of Blue Hill what his raw milk and that the people of Blue Hill want their ordinance to apply to Dan's raw milk.

David Gumpert's picture

Mike, you are thinking too clearly and logically. You'll never make it as a regulator or a judge.  

Ora Moose's picture

David, I don't know if it was intentional typo but "Seems another case of...Heads, I win, tales, you lose" is very apropos in this case.

I wonder what part of "This includes any producer or processor who sells his or her products at farmers’ markets or roadside stands” the judge didn't understand, in ruling that raw milk is different than any other food and claiming "Nothing in the Blue Hill ordinance clearly states that the town intended to include milk within the definition of ‘local food.’

Is "legislative intent" something that is spelled out somewhere in state law?

I'd say this is another case that needs to go before a jury and hope they pursue it, these judges need to be shown up for their pervasive obtuse bias towards Big Ag interests, and shamed in the local press at minimum and in the major media as pawns of corporate greed. But that will never happen unfortunately.

rawmilkmike's picture

The only thing that is axiomatic it that no food regulation is meant to prevent consumers from finding and obtaining the food of their choice.

rawmilkmike's picture

This is what the CDC passes off as an out break of foodborne illness:

1. Illness; only diarrhea and not cancer, heart disease, osteoporosis, lactose intolerance etc. etc. etc.
2. Food; only agricultural commodities and not canned food, cakes, cookies, candy, soda, chocolate milk etc. etc. etc.
3. Outbreak; 73 cases in 3 months, while the nearly 300 million other cases of diarrhea are not even acknowledged.
4. Association; cucumbers, because 67% of the 45 ill interviewed ate cucumbers while only 44% of the well people surveyed ate cucumbers and not because of any actual Salmonella contamination found.
5. Blame; 2 Mexican producers because 6 of the 45 ill interviewed eat their cucumbers and not because of any actual Salmonella contamination found.

Posted April 25, 2013 12:30 PM ET
http://www.cdc.gov/salmonella/saintpaul-04-13/index.html

mark mcafee's picture

Bottom line to me on this is this....education will spread information. Information will spread demand and markets will respond. In states where this demand is suppressed conscious leaders will emerge and lead legislative change. As the FDA and industry attempts to block inevitable change they will lose public support. In time they will change or be changed.

Time, heat and pressure creates diamonds. All of these things are very uncomfortable.

As RAWMI gathers momentum and more and more raw milk dairymen apply to become LISTED more and more raw milk becomes a part of the very high ground, transparent database that is unrefutable and undeniable. There are seven raw milk dairies in the pending pipeline to become LISTED. Each is internally driven to be the very best possible and create this track record and show the way forward.

As each legislature looks for examples of a proven record of standards and safety...RAWMI LISTED farmers will lead the way. That's the way I see it and it is happening right now!

deborah evans's picture

"Bottom line to me on this is this....education will spread information. Information will spread demand and markets will respond. In states where this demand is suppressed conscious leaders will emerge and lead legislative change. As the FDA and industry attempts to block inevitable change they will lose public support. In time they will change or be changed.
Time, heat and pressure creates diamonds. All of these things are very uncomfortable."

This is all so true and while we see the heat increasing on Farmer Dan Brown, we also see a body of intelligent and forward thinking Legislators in Augusta who ARE making a difference! There are several bills before our Legislature that CAN change things dramatically for Patrons and Farmers alike - ending the outrageous persecution of small farms by state bureaucrats as in Dan Brown's case.

Here are just three (there are more) examples of the exemplary work many of our Legislators are doing at the behest of the Citizens during this session:

LD-475 An Act To Increase Food Sovereignty in Local Communities Sponsored by Representative Hickman, is on its way to the House floor for consideration. If you live in Maine, NOW is the time to contact your local Representative and Senator and tell them it's important to you that this bill PASS!
Bill Summary:
This bill proposes to enact measures designed to:
1. Preserve the ability of local communities to produce, process, sell, purchase and consume local foods;
2. Ensure the preservation of family farms; and
3. Enhance the economic, environmental and social wealth of local communities by supporting family farms and sustainable agricultural practices and promoting the unimpeded ability of individuals, families and other entities to process or prepare foods for home consumption.

Next Tuesday is a PUBLIC HEARING on BOTH of the bills below - EVERY citizen of Maine should plan to attend; it makes a HUGE difference when we SHOW the Agriculture Committee we care about the outcomes!
The meeting is @ 1p in room #214 of the Cross Office Building. If you can't go to the hearing, you can send testimony to the Committee's Clerk natasha.irving@legislature.maine.gov .

1. LD-1282 An Act To Help Small Farmers in Selling Raw Milk and Homemade Food Products Sponsored by Senator Saviello of Mt. Vernon.
Bill Summary:
This bill exempts from state licensing and inspection requirements homestead food operations and raw milk producers who sell small quantities of certain food products or raw milk products made or produced at the person's residence or farm if the food products or raw milk products are sold directly from the person's home or farm or farm stand or at a farmers' market within the State.

2. LD-1287 An Act To Deregulate Face-to face Transactions between the People and Small Farms and Small Food Producers, Sponsored by Representatives Chapman of Brooksville and Hickman of Winthrop.
Bill Summary:
This bill facilitates direct sales between Maine farmers and consumers. It allows persons preparing food in their own homes to sell directly to consumers or to offer homemade food at certain events without being licensed as food establishments.

"This train is leavin' the station; ya betta hop on board or get otta the way!"

rawmilkmike's picture

Why should there be testing or a 20 gallon limit on face to face transactions?

How disheartening. This is really unbelievable. Rawmilkmike's comment succinctly says everything that needs saying.

Your observation, David, that judges tend to side with regulators has been proven once again. Many thanks to Dan Brown for sticking his neck out and trying. We just need more and more cases like his so that the food rights movement continues to gather momentum.

Barney Google's picture

With all due respect Shawna,

"...that judges tend to side with regulators has been proven once again."

People make that statement over and over again. That's why I find the past few days interesting. Bildo and Lola have made some very interesting points, for you, me and others on this site to look up for ourselves. It's so easy to dismiss what they are trying to point out as fallacies because we don't understand; what I find very interesting that no one from FTCLDF EVER tries to clarify anything to its members or the discussion group, but still people complain they aren't getting the results they are paying for. So if you pay more to FTCLDF for a longer amount of time would you have better results???
Someone please tell me!! Maybe you should ask them.

Over the past few years there have been many posters - Will Wallace, Pete, Hugh Betcha, Violet, Milk Farmer, Flim Flam, and a few others I have forgotten - who have tried to discuss and try to get to the bottom of this problem of this very question, the legal issues, our freedom, only to have folks get upset for even trying to bring this up much less even questioning our "leaders". But the problem still remains, myself and others have asked some very pointed questions and have stepped on some toes, and have done a lot of research to get answers; I guess you will have to do the same.

Barney Google

[quote from David's article above]:
"Maine had, for many years, allowed small farms like Brown's two-cow dairy to be exempt from the state's permitting law, under the rationale that they weren't advertising and were selling small amounts of milk within their communities and shouldn't be hit with the costs associated with obtaining a permit. These costs can include construction of separate milking and storage facilities that are not proportional to the revenues the farmers may be realizing. But beginning in 2009, the state inexplicably changed, and notified all milk producers they had to be licensed. The state hadn't had any illnesses from raw milk for at least the previous five years, and likely much longer."
[end quote]

We need to find out what changed this and why. What was the impetus?