How Do You Spell “Legitimacy”? Regulators May Be Tested by Schmidt Decision
You’d think food regulators throughout North America would be celebrating the emphatic endorsement they received from Ontario’s Court of Appeal in the Michael Schmidt raw milk case. The three justices agreed with everything their government told them to agree with—that cow shares aren’t allowable, that private sales of raw milk outside legislative dairy rules are illegal, and that people don’t have the right to determine what foods to put into their bodies.
But I wonder if the regulators are actually celebrating.
I wonder because the U.S. Food and Drug Administration three years ago made declarations similar to the Ontario judges—most notably in the federal court suit by the Farm-to-Consumer Legal Defense Fund’s challenge to the agency’s control of interstate sale and shipment of raw milk….and a federal judge went along with its reasoning. Wisconsin judge Patrick Fiedler made a similar declaration in 2011.
And look what’s happened since. Consumption of raw milk appears to be growing by leaps and bounds. Legislative proposals to expand raw milk availability are popping up all over the country. Small towns are passing food sovereignty ordinances to allow the private sale of food by producers, outside of regulatory authority.
Juries in two states—Minnesota and Wisconsin—have acquitted farmers of criminal charges in connection with doing what Michael Schmidt has been doing for more than twenty years, which is to sell food privately to a discrete group of eager buyers.
Indeed, the prosecution in the Vernon Hershberger case in Wisconsin made a big deal that the farmer’s tiny store was no different than a membership box store like Costco or Sam’s Club, which charge an annual fee for the privilege of shopping at the store. Jurors afterward said they didn’t take the comparison seriously—there simply isn’t much of a comparison between Hershberger’s tiny farm store and 200-member food club, and a big-box membership store with thousands of individuals that fall into and out of membership.
Yet the Ontario justices took pains to quote the appeals court judge who had previously convicted Schmidt, on just that subject: “As the appeal judge put it, ‘the cow-share arrangement approximates membership in a “big box” store that requires a fee to be paid in order to gain access to the products located therein.’ This court has resisted schemes that purport to create ‘private’ enclaves immune to the reach of public health legislation….”
There is an important concept in politics known as “legitimacy”. It was partly formulated in the late 1600s by the English political philosopher, John Locke, whose ideas underlie our Declaration of Independence and Constitution. His notion was that governments gain legitimacy only through the consent of the governed. Conversely, once the governed (us) begin ignoring what the government is saying, or ordering, then the government has a problem.
There are signs that regulators around the U.S. have pulled back, in the face of the growing clamor for food rights. Farmers in Wisconsin and Minnnesota, among others, are going about their business of selling raw milk and other foods directly from the farm. We saw Michigan’s Department of Natural Resources give in to hog farmer Mark Baker last week, rather than go through a public trial. In Maine and California, legislative proposals that sanction sales of raw milk from unlicensed small farms are making headway. Virginia in just the last few days enacted a law allowing farms to sell meat, produce, and other products from other farms, outside of normal local regulatory restrictions.
Sure, there are exceptions. One of the most onerous is South Dakota, where the agriculture regulators appear to be working with the dairy cartel to scuttle any legislative compromise and force raw dairy producers out of business.
As I noted in my previous post, Michael Schmidt has committed to to keeping the raw milk flowing to his cow share members. Other Ontario farmers with cow shares will no doubt take his lead.
Each time people ignore a government edict, and dare the enforcers to make them do or not do something, legitimacy unravels just a little bit more. The last time this kind of food-related scenario unfolded in full was in the early 1900s, in bans on alcohol. Between 1900 and 1920, many of Canada’s provinces banned alcohol. And between 1920 and 1933, the U.S. banned alcohol. Both countries gave up, fearing the threat to their legitimacy by the growing numbers ignoring the bans.
That’s why I have to doubt whether the regulators are celebrating the Ontario court decision against Michael Schmidt. Now they are in a position where they have to decide whether to enforce unenforceable laws and regulations—to intentionally deprive people of healthy food.