How Do You Spell “Legitimacy”? Regulators May Be Tested by Schmidt Decision

Each time Michael Schmidt and other farmers resist government efforts to eliminate raw milk, legitimacy unravels just a little more. 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. 

rawmilkmike's picture

Most industries, when they get big enough, try to force consumers to buy their products. This is common knowledge. Also there is always an endless list of middlemen demanding their cut. These companies lobby for regulation and refuse to sell directly to consumers. Why would milk be an different? And remember raw milk's competitors, the medical industry, the cheese industry, and the supplement and health food industry, especially anyone who sells retail, the competitors of direct farm sales.

ingvar's picture

“…This court has resisted schemes that purport to create ‘private’ enclaves immune to the reach of public health legislation….”

schemes / purport / ‘private’ enclaves / immune / reach

Inalienable rights established by the creator God cannot legitimately be abrogated with this or any choice of words. If there is a scheme afoot, it is a scheme to suppress the knowledge about and exercise of the inalienable rights. If we have not collapsed from being a nation of laws, not men, at the denouement those so oppressed are likely to be shown some document or other that, it will be explained to them, is just that place and time wherein they agreed to be oppressed, or perhaps failed to object, whether they were cognizant of their assent, or lack of objection or not, and are likely to be told that if their knowledge and memory of that event of personal diminishment is defective, they are at fault, being responsible to know such things, as possessors of such potent and valuable inalienable rights. The wicked earn their final place by the practice of such immoral legerdemain. If these are inalienable rights, they can neither be modified nor tossed aside. Each possessor of these rights has the duty to take the rights seriously, to protect and respect them in themselves and in others. Answer in these areas will be given personally to the one that established these rights. Courts have great responsibilities. Much will be required of them.

Perhaps bearing on this would be Phil Weingart's essays on the Theological Foundations of a Just Revolution (TFJR in the Topical Index) at his

Mr. J. Ingvar Odegaard

mark mcafee's picture

I would like to remind everyone that Mike Schmidt has literally given his life so that children and families in Canada can eat real food. He has paid a massive, exhaustive price personally. He paid with his first wife and that marriage. He paid with the loss of emotional tranquility and loss of mental rest. He has paid a dear price and we should all remember this each and every day. I certainly do.... I remember when Mike arrived at OPDC 9 years ago to recover from one of his raids and just rest a bit....he was exhausted but he was also focussed and determined. The personal price and cost paid by leaders of the fight to liberate foods and reconnect whole foods back to consumers is an unsung human cost paid narrowly by few....but more and more are now venturing out to pay this price because of the examples made Mike, Vernon Hershberg, and Mark Baker to name just a couple.

Mike is a special hero....always will be.

mark mcafee's picture

For once I am very happy with the coverage provided by our friends at Food Safety News regarding the Stanford Study of lactose intolerance. The coverage was fair and balanced. Thank you Bill....

Surely Mark can attest to the fact that this sort of resistance takes a ton of energy, especially risking the confines of court and the shear weight of criminal trial for promoting health freedom for our community. There is a place in my heart for every human that has taken the point position, and there are many, that they may have much peace in their future - at some point there will be reinforcement by those who also now understand that we have no real option to health freedom. It is truly a decision of life vs death. We are recovering from more than three years of major harassment here in Minnesota where many of the above mentioned point men and women gathered to battle the corruption of MN courts. The spread of information is the only way to secure this new food/health freedom movement! The commitment to the production and connection to local food systems is an objective of as well as WAPF and FTCLDF. Please put your food dollars where your mouth is and support access to truth and wellness as they are one! Be well, Alvin in MN

Mr Gumpert. I am sorry, but I somewhat disagree with your first paragraph above.
Firstly, I have no reason to believe that the Justices were 'told' by Government to agree with anything. As far as I could tell, they considered the appeal simply in the context of the prevailing legislation (the HPPA and Milk Act). Secondly, I do not believe their decision says anything about the allowability of cow sharing arrangements. They correctly concluded that Mr Schmidt still owned the cows that were supposedly shared, and therefore, in my mind, the allowability of true, arithmetically accurate, cow ownership-sharing then became completely moot. Thirdly, you were correct though that private sales of raw milk outside the legislated dairy rules are illegal. Fourth, I do not read into the ruling that people here don't have the right to determine what foods to put in their bodies. To limit this discussion to raw milk only. In this country, anyone who owns a cow can consume it's milk and it is not illegal to consume raw milk. Yes, for most it might not be easy to obtain raw milk as a result, but their 'right' to consume it is still available to them.

IMHO I rather doubt if raw milk will be legalized in this Country. Even if it is, there will likely be stringent facility standards, extensive testing and traceability requirements and potentially a separate quota pool. Under these circumstances, it might be very tempting for raw milk farmers to reject this option also.


MisterJohn ... no, you "don't have any reason to believe the judges were "told" by Government to agree with anything", because you're still living in a Disney-esque worldview = blissfully ignorant how corrupt it is here in the trenches. You can "presume regularity" all you like, but those of us on the ground, confronting the Powers-that-Be, eventually figure-out that the whole thing is rigged.
.... you fail to appreciate that the charge Michael Schmidt faced at the bottom rung of that particular case, was : contempt of an Order of a provincial administrative body, equivalent to a Court. Thus, onus was on him to DIS-prove the allegation. The very opposite of the presumption of innocence in real criminal trials. See the difference? Self-represented at that time, and, being a man of goodwill himself, presuming good will from the system, he did not get in the basic evidence necessary to prove joint ownership of the herd. So he's "toast" on that one. But you'll notice that he and his fellow dairy enthusiasts changed to a model in which they can each prove they are farming co-operatively, since 2006
... the laws in each Province differ, concerning raw milk for human consumtion. I can tell you for sure that the position of the Province of BC, is ; a person does not have any 'right' to use and enjoy his or her own personal property, if that stuff happens to be raw milk FROM A COW / GOAT /SHEEP that person owns. Reason I know that, is : that's the offical response to a Petition I brought in early 2007.
... there are 546 dairy farms in BC, which hold quota in the dairy supply racket. We know from the survey conducted by the Canadian Veterinary magazine, that the majority of those farmers DO drink milk from the bulk tanks on their farms. Since that raw milk is, at that point - in the bulk tank - the property of the Govt. of Canada, then those people are stealing govt. property. But no matter. Cross-examining Fraser Health Authority Inspector George Rice, ( a year ago) I asked him if there was any hazard posed to the public by those people consuming raw milk. He declined to answer = saying that it was not the mandate of Fraser Health to go to dairy farms!
... where I'm going with this is, dismissal of the Schmidt appeal is one more proof that the ultimate monolithic enemy of the Campaign for REAL MILK, is : communism. The trial and subsequent appeals were just an up-dated version of the way it used to be done by Josep Stalin and his gang. We're so much more sophisticated here, now! the commies learned to use the velvet glove to cover their anti-christ nature. But they haven't changed a bit, their determination to implement the First Plank of their Manifesto : elimination of private property. ....

Sylvia Gibson's picture


"I do not read into the ruling that people here don't have the right to determine what foods to put in their bodies."

Why limit this conversation to JUST raw dairy? Are people informed on how milk is processed? Do they know that it comes from 1000s of different cows in that gallon container? Do they know how the milk in broken down and separated and flavorings, etc added/taken out? Are they informed of the living/feeding/chemically added crap to the cows in that gallon of boiled milk? Are they informed about exactly how their milk is processed? By adding chemicals to drinking water, those in power have taken away my freedom to determine what goes into my body. By allowing processing plants to adulterate foods; meats, dairy, etc, without informing me exactly what they have done, they have taken away my freedom to choose what goes into my body. The powers that be have taken peoples freedoms to choose what they consume, they do not inform the public on exactly how things are processed, etc. People are not making informed choices because they do not know the details, and those details are a secret from the masses.

The fight about GMO labeling is another issue. How can I have freedom to choose something if I am not informed about it?

Making it difficult for people to own cows prevents them from the freedom of choice to consume raw dairy. I have 2 acres and was told in the state of Arkansas you have to have 5 acres for one small Jersey. Making if cost preventative to even produce raw dairy with over regulation, is just another way to control what people consume.

If cow shares are illegal, why are shares in race horses legal? Or shares in bulls? Or even race cars? raw dairy is singled out.

Tis a shame that many haven't learned from prohibition, people obtained their booze any way they could. The laws did not stop them, raw dairy will be the same. I don't need nor want anyone to be my keeper.

rawmilkmike's picture

MrJohn, there are many people in the US who believe “that private sales of raw milk outside the legislated dairy rules are illegal” but they are most certainly wrong. What do you think “legislated dairy rules” are for(legally)?
If “private sales of raw milk outside the legislated dairy rules are illegal” in Canada then most certainly “people there don't have the right to determine what foods to put in their bodies.”

But of course you are right, it is not likely “raw milk will be legalized in this Country. Even if it is, there will likely be stringent facility standards, extensive testing” and limited availability.

Even though you can't truthfully say raw milk is illegal, you really can't say it's legal either.

David Gumpert's picture

On the cow share, the justices suggested that if the members owned an interest in the farm or the animals, then that might change things....but no guarantee.  "This court has resisted schemes that purport to create “private” enclaves immune to the reach of public health legislation..." they said. 

 The justices also suggested strongly that people only have the right to ingest foods the justices disapprove of if people can prove well enough to satisfy the justices that it will improve their health; people's own belief or experience isn't enough. The decision states: "The impugned legislation prohibits the appellant from selling or distributing a product that certain individuals think beneficial to their health.(ital added)

Finally, on the freedom argument, based on Canada's Charter, the justices were equally dismissive: "Lifestyle choices as to food or substances to be consumed do not attractCharter protection..." 

I made the assumption that the justices did what they were told by the government based on the fact that they didn't disagree in any shape, manner, or form from the government argument. Usually, appeals justices will throw a bone or two to the individual charged, even if they disagree in total. Not in this case. The government lawyers might as well have written this opinion.  

Mr. Gumpert. The defence lawyer was clearly a poor choice, and did a poor job of making any case. In fact, went about reminding the judges that the case law does not support his argument. The truth be told, it is because he facts of the case are not in support of the defence.

Another operation, that had a clear concise private arrangement, and maintained its activities to a clearly private domain might have a real argument on such facts. The powers of public agency executed actions that were in their control based on the facts of the case.

That said, Public agency has immense powers and is greatly influenced by public corporate agendas. I suspect that such corporate power is such, that it can in fact do away with private ownership, while it has control over public policy. For control of public policy makes actual ownership redundant, or holds a potential for competition or the future loss of such power. So, when one has attained power over the law, the next strategic stage would be to create more laws, thus reduce the potential of future competitors.

David Gumpert's picture

Jack Brody, 
I'm not sure any defense lawyer could have convinced these judges. I am convinced they had their minds made up before the lawyers completed their arguments. No judge in the last seven years has gone with the farmer....with the exception of  the judge who ruled in favor of Schmidt back in 2009. And who was the defense lawyer? None other than Michael Schmidt himself. The judge in Vernon Hershberger's case was salivating to convict the Wisconsin farmer, but a jury overruled him. No, the judges are nearly unanimous in their support of the government in cases like this, which they view as essentially licensing/food safety cases, except when a jury forces their hand, or a farmer like Schmidt makes an overwhelmingly personal case. 

mark mcafee's picture

When others see regulation as intrusive...I see it as a barrier to competition. When others see regulatory testing and tough standards....I see an opportunity to show off new innovations that exceed the stringent standards...when others see government inspection...I see transparency and an opportunity to post the most sensitive data about testing on a website for all the world to see.

As we proceed into the brave new future of FSMA and other impositions of regulatory burden....these are the bitter lemons that pioneers will make into super value-added sweet organic lemonade.

Knowledge is power...consumer connection with integrity forms the basis for branding. Easy is not a formula for success. Making hard look easy is a far better approach and formula for sustainable success for many generations to come.

Why do I say all of this? There are so many that hide away and refuse to engage the powers that be. These people fear engagement because of the mental push-ups required to compete.

Sylvia Gibson's picture

" These people fear engagement because of the mental push-ups required to compete."

Wow, you can read everyone's mind? Now that's impressive.

Ken Conrad's picture

In Ontario Michael is not only in violation of Ministry of health regulations but of the Milk Act as well which is very explicit as to what a producer of milk can and cannot do.
The Milk Act is administered via joint action between Dairy Farmers of Ontario (DFO) aka the Ontario Milk Marketing Board (OMMB), a body of elected producer board members, and the Ministry of Health. It is a well thought out mechanism that exerts absolute control over milk production. It is designed to give the impression that milk producers are in control, which couldn’t be further from the truth. Milk producers are a slave to this act and are paying for the privilege of this enslavement.


Hey Ken, I am interested in your comments. I wonder if you might able to expand ...maybe with some examples. Like what things might a DFO producer wish to do but be restricted to do? would it be to sell raw milk?

Ken Conrad's picture


If you follow the links below to David’s articles and scroll down you will see where I elaborated on the restriction placed by DFO on producers in Ontario.’s-10-year-pursuit-raw-dairy-farmer
“It all hinges on the quota system. Eliminate the quota and the act has no real teeth.
The threat of losing quota is substantial if a farmer has to spend about 30,000 dollars per cow for the mere right to produce milk.
They will do everything in their power to protect the quota system. Consider Michael Schmitt, he was producing milk without a quota and is therefore considered a threat to the supply management system.
The intent of the act was to give the impression that dairy farmers were in control of the quota system, when in fact the system was controlling them.
Dairy Farmers of Ontario has become an elitist organization that cares little about the family farm. Past and current policy is a testimony to this fact. It is easier to control a small group of large farms then it is to control a large group of small family farms.”
“In Ontario dairy farmers are required by law to sell their milk to the milk board, otherwise known as the DFO (Dairy Farmers of Ontario). They are paid an average gross of 74 cents/liter or $2.96 /gallon before deductions. It is ill advised to ship beyond ones allotted quota.
Farmers with excess milk in order to avoid paying the over quota penalty have chosen to either dump it or sell it as a livestock feed.
After deductions, which include administration, research, DHI, transportation, market expansion, and CQM the average net price is 74 cents/liter or $2.81/gallon.
A typical jersey herd due to the higher total solids of the milk should gross about an extra 10 cents or more per liter. In other words 84 cents/liter or $3.19/gallon.
The above milk prices are not adequate. They haven’t been adequate for the last 20 years and that is why so many small farms have disappeared in this province.
In Chisholm Township where I live there used to be over thirty small commercial milk producers… now there are none.”


rawmilkmike's picture

What does size have to do with it. Why wouldn't Sam's Club be able to sell raw milk if that's what their customers wanted? Of course Sam's club has no desire to sell raw milk unless they can control it's production and raw milk consumers have no desire to buy raw milk from Sam's Club unless they, can control it's production.
Aren't US and Canadian law both based on the same British/Roman system? When a Judge says “This court has resisted schemes that purport to create ‘private’ enclaves immune to the reach of public health legislation….” isn't he admitting to an illegal intent? Isn't “public health legislation” enacted on behalf of the people? “Governments gain legitimacy only through the consent of the governed.”
There is no legal bases for “public health legislation” “immune to the reach” of the “public”. Maybe what the judge meant to say was “This court has resisted schemes that purport to create ‘private’ enclaves immune to the overreaching of public health legislation….”. It is not legal to “to intentionally deprive people of healthy food.”.

How do you “enacted a law allowing”? Don't laws prohibit?

Prohibition was pushed through by the same pharmaceutical industry that lobbies against raw milk and other health products. It's purpose was to destroy labor unions and create the anti-health bureaucracy we have today. Their intention was never to eliminate or to even reduce alcohol consumption.

Ora Moose's picture

I've missed you Mike, welcome back. As to laws allowing, just look at the new VT law basically saying, hey if this shit grows wild we can't stop it. What does size have to do with it? You're kidding right>?

ingvar's picture

Ora Moose, you're a wit.

(I miss RMM too BTW)


I have to agree with John. Those who actually know the details of the case and the law, and that are not just bias around supporting raw milk, will also agree. Did he sell milk to the public? Well, someone got on the bus and made up a story and left the bus with raw milk, not paying for a cow share. Sounds like selling to the public to me. And the regulations are around protecting the public, not the private arrangments made by private individuals that take responsibility for their actions.
Arguing the cow share as a legitimate arrangement, though heard by the courts, actually did not really relate to this case (though may have been the only chance of winning). I wonder if forcing the courts to rule on the cow share scheme had an affect on the process of regulatory acceptance of raw milk in general? What also occured, because cow shares were included in the proceedings, in a case that was really undefendable (selling to the public) the loss essentially created case law against cow shares. If the cow share scheme was left out, and the case was made soley on selling to the public, then no such case law would exist and we would all have an easier time with our cow share arrangements.
I would like to say that this does not take anything away from Michael Schmidt, but the reality is it probably does. No one is denying the struggle and fortitude that Michael put forth. It is debatable whether it was actually in the best interest of raw milk and personal freedoms.
The public protects those that are not deemed to be able to protect themselves. And that is not a bad thing. I think the points made by John are entirely sound in terms of the intent and contruction of law.

Commenting on the text...I would have to say that what happens in the US in terms of raw milk directly affects the politics in Canada. Canada has moved in recent Harper years to align our laws and regulatory bodies in line with those of the US and International agencies. Where those agencies actually have more power over our regulations and regualtory processes then our own national bodies do. So, when the FDA and regulatory bodies in the US allow for greater access to pure foods, like raw milk, it trickles down to the beaurocrats in Canada.

So while the trial was actually lost based on the law. The attention and overall acceptance of raw milk has increased where it warrants more investigation as to how to legitimize it and bring it into the fold of a "value added" economic schemes. Generally if the public wants it, then there is income to be derived and economics to consider. Like how will the various domains of power get their cut? Our dependence on economic growth has taken our increased productivity and included costs to support various economic groups in various economic sectors so that innovations and growth could be shared amongst many. What this did over the time of expanding into associative economic realms is grow into the realm of personal right s and freedoms, but could only do so as it relates to the public sphere. However, since the measure and competence to comprehend the difference between private and public is not apparent, disclosed or made clear certain strategies of acquiensing these right has emerged.
Presently, there is so much dependance on public agency, through the failure to declare full responsibility of private citizens, that a kind of beaurocratic power exists that may forcibly deny personal choice by indirect means. Which, unfortunatly, makes politics an appropriate consideration in the case of raw milk.

What we are clearly seeing in the acceptance of raw milk are moves to regulate it, under such rhetoric as public safety, or food risk. such terms legitimize the position of various economic stake holders that hold power over such domains. The fact that there is insufficient research where there is a public demand for a product warrants funding models. Such value added domains are always looking for funding. So, raw milk offers a good case for funding and so public health and associated economic realms are willing to use it for their own purposes. What they need, is for the "stake holders" to come to the table.

There is a market here, and that is really what it is about. Where personal choice lies in the maelstrum of various interests is not so clear.

there is power and then there is law, where they meet is the compremise.

Ora Moose's picture

wordy maelstrom of various, I saw them back up the comprmisers and bad drugs way bck whn? Or maybe noot btw jack, therere's only one e in compromomomise/ You write a good tune wish I could

‘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.’

The real problem with most cow share schemes is that they fail to denote "full Responsibility" instead merely being a shared equity arrangment. In this sense, all the decisions about the care, feed, housing, philosophical approach and so forth are decided by the Agister/farmer and not by the cow share owners. For a cow share to be in fact a private arrangement that opts out of public concern the decisions around the cow share operation must come from the cow share owners and directed to the hired agister. The cow share owners must do their due diligence to ensure that their own milk is suitable for thier own personal use ( in respect to testing and best practices).

There seems to be a challenge of finding balance between Private "full responsibility" and respect for public mandate. Because, theoretically, once a third party is hired to make assurances of best practices and quality, then responsibility is no longer full. While such a development opens up the market to include the public economic sphere, it weakens the true notion of Private responsibility.

Another approach, might be to execute due diligence by hiring consultation on best practices and releasing the consultant of any liability. By voluntarily developing suitable farming and production practices for the operation while maintaining the "full responsibility" of private ownership/contract. This of course means that there will be no engagement into the public market, such as marketing or distribution. Which raises the question of how do private organization exist and maintain membership? how do they grow without informing the public of their existance?

It does seem that any body that promotes best practices through any kind of certification program is well suited for the public market. The use of such a body in the private sphere I imagine would require an entirely different approach.

Sylvia Gibson's picture

If I purchase a cow share, or beef share or poultry share to be consumed by me and my family. I expect that the monies paid to the farmer (other than the purchase fees) are for their expertise in the care and feeding of those animals for me. If the farmer wants to do labs, I have no problem with that, if it makes the farmer feel better that's fine, it won't change my opinion of the farmer who cares for my shares and assists me with obtaining my dairy, or beef, or poultry or eggs.

I see all the testing conventional farms do and they still sell contaminated products. Which shows that the testing is a waste of money.