Will You Continue Allowing the FDA to Dictate What Foods You’re Allowed to Eat?

By Pete Kennedy, Esq

People’s access to raw milk is determined by state law,¹ and there are many differences among the states. Raw milk sales or distribution are legal in a majority of the states, and there has been a trend towards improving access in recent years.

Two major holdouts to this trend are Minnesota and Wisconsin; criminal trials centering on raw milk are scheduled to take place later this year in each state. If the farmers are acquitted, it would not only improve raw milk access in those states, but could accelerate legalization in the states that still ban raw milk sales.

Minnesota, the Worst Offender

Minnesota has been the most draconian state in terms of raw milk enforcement the past several years. At the urging of the Minnesota Department of Agriculture (MDA), the Stearns County District Attorney has brought six criminal charges against farmer Alvin Schlangen.

Alvin serves as the volunteer manager for the Freedom Farms Coop (FFC), a private food buyers club, delivering raw milk and other nutrient-dense foods to club members in the Twin Cities area. He makes his living primarily through selling eggs produced on his farm in Freeport, Minnesota.

In 2010 and 2011, Alvin was raided three times by MDA, which embargoed and seized thousands of dollars of food from his farm, his truck, and the warehouse space he leased in Minneapolis.

These are not the first criminal charges that the MDA has sought to impose on Alvin. The MDA also convinced the Hennepin County District Attorney to charge Alvin with three criminal misdemeanor counts for alleged violations of the state food and dairy code. A jury of Minnesota citizens acquitted Alvin on all the charges last September. Half of the charges that Alvin now faces in Stearns County are the same as the charges he has already been acquitted on in Hennepin County!

On February 6, Stearns County Circuit Court Judge Thomas P. Knapp rejected a motion filed by Alvin’s attorney, Nathan Hansen, to have the three charges dismissed. Hansen argued that the charges should be thrown out because they amount to “serial prosecution.” Alvin’s trial has already been postponed twice; a pretrial hearing is now set for March 15.

The MDA’s persecution of Alvin doesn’t stop there. The agency has also brought an administrative case against him, seeking an order suspending his deliveries to the buyers’ club. The administrative proceedings have been contentious. In order to make their case, MDA has to show that Alvin is not just delivering to members of a private members-only club, but is selling to the general public.

MDA Inspector Jennifer Ericksen submitted an affidavit that states she placed a food order on FFFC’s website, but she failed to mention that she never paid for nor received the order – the website was simply a convenience for actual members of the club. Hansen has asked the judge to reject Erickson’s affidavit because she lied by omission.

Second Raw Dairy Farmer Being Persecuted in Minnesota

MDA has also targeted another Minnesota farmer, Mike Hartmann. The department’s feud with Hartmann has extended over the last 12 years, during which MDA has been unsuccessfully trying to stop Hartmann’s sales of raw dairy products and other nutrient-dense foods.

Last spring, MDA stooped to bringing criminal charges against Mike’s wife Diana for violations of the state food and dairy code. The Sibley County District Attorney brought the same charges against Hartmann, his brother Roger, and 68-year-old Linda Schultz who was allegedly a drop-site coordinator for the farmer’s deliveries.

In return for having the charges dropped against his wife, brother and Schultz, Mike pleaded guilty on October 15 to two misdemeanor counts of illegally selling raw milk and raw milk products and selling other foods without a food handler’s permit. Under the plea bargain he reached with the District Attorney, Mike was put on six months unsupervised probation and paid $585 fine. He also agreed to comply with all state food licensing and labeling laws within 60 days.

The state has not let up in going after Mike. On January 15 the Sibley County District Attorney charged Hartmann with illegally selling raw milk and selling improperly labeled cheese.

On February 11, the DA followed up by bringing three more charges against the farmer: (1) illegally selling raw milk, (2) selling without a food handlers permit, and (3) selling misbranded food. Minnesota law permits the sale of raw milk on the farm. Prosecutors are going after both Mike and Alvin for delivering raw milk.

The power of the state dairy industry, the influence of the Minnesota department of health and the large agribusiness concentration in Minnesota (Cargill, General Mills, Land o’ Lakes, Hormel and Pillsbury all have their corporate headquarters in the state) all combine with MDA’s enforcement tactics to make for the worst regulatory climate in the country for raw milk producers and consumers.

Wisconsin, Next in Line

The other state that is pursuing a farmer with criminal prosecution is Wisconsin, where Loganville dairy farmer Vernon Hershberger is scheduled to be tried on May 20 for four misdemeanor violations of the state food and diary code.

Vernon leased cows to a private food buyers club, and distributed the dairy products from the club members’ cows, along with other foods, to the members at his store. In June 2010, the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) raided Vernon’s store and taped the refrigerators shut. In December 2011, the agency brought four criminal charges against Vernon, including:

1. Operating a retail food establishment without a license
2. Operating a dairy farm as a milk producer without a license
3. Operating a dairy plant without a license and
4. Violating a holding order by removing the members’ food from the embargoed refrigerators

DATCP and the Wisconsin Department of Justice (DOJ) are so intent on pursuing these misdemeanor criminal charges that they are even trying to force journalists to testify against Vernon. Last November, DOJ attorneys filed a motion with Judge Guy Reynolds requesting that he order Capital Times reporter Jessica Van Egeren, WISC-TV News reporter Marc Lovicott and NBC15-WMTV reporter Chris Woodard to testify at the trial; the reporters covered Hershberger shortly after the tape DATCP inspectors had place on the refrigerators pursuant to the hold order had been broken.

In ruling against the state’s motion, the judge held that the government hadn’t shown that the information sought was only available from the reporters, since quite a few people were at the Hershberger farm when the reporters were there and saw the same things. Usually, the government only seeks to compel journalists’ testimony in cases with serious crimes, such as murder, not for misdemeanor violations which have no victims.

The trial date for the Hershberger case has already been postponed twice as pretrial developments have been contentious and complex. The latest postponement occurred as a result of a freedom of religion claim made by Hershberger’s attorney, Elizabeth Rich. Rich made the claim in response to a ruling by Judge Reynolds that excluded an expert witness, Dr. Ted Beals, from testifying on the safety of raw milk.

The hearing on the freedom of religion motion is set for March 18. DATCP’s policy since 2009 has been to limit consumer access to raw milk by only allowing a single sale from any one farm. If Vernon is acquitted, it could have a major impact on opening up and increasing raw milk sales in the state.

FDA Claims You have 'No Right' to Your Own Health!

While Minnesota and Wisconsin are leading the state-level efforts against raw milk, the heart of the opposition to raw milk and all raw dairy products remains FDA. Twenty-five years ago, FDA issued a regulation banning raw milk for human consumption in interstate commerce. In response to a 2010 lawsuit filed by the Farm-to-Consumer Legal Defense Fund (FTCLDF) and eight of its members challenging the ban, the FDA made its draconian views on food freedom part of the public record, stating that “there is no absolute right to consume or feed children any particular food” and there is no fundamental right to one’s “own bodily and physical health.”

The suit was eventually dismissed, but Organic Pastures Dairy Company (OPDC) recently sued the FDA in federal court over the FDA's denial of an OPDC petition to partially lift the ban, allowing the shipment of raw milk from one state where the sale is legal to another state where the sale is legal. At the same time, the FDA was denying the petition, the agency was considering another petition that would allow the addition of aspartame as an ingredient to milk and to 17 other dairy products without a labeling requirement.

In February 2012, the FDA obtained an injunction prohibiting Pennsylvania farmer Dan Allgyer delivering raw milk across state lines, depriving hundreds of families in Washington D.C. and Maryland of a long-time food source. Shortly after the court order, Allgyer made the decision to get out of the dairy business.

FDA Targeting Raw Milk and Artisan Cheese Producers

Since that time there has been little news on any FDA enforcement against raw milk producers, but what has been in the news lately is the agency’s handiwork in shutting down raw cheesemakers.

On January 25 at Morningland Dairy, officials of the Missouri State Milk Board carted off to a landfill and destroyed 36,420 pounds of cheese. Morningland’s cheesemaking operation, owned by Joe and Denise Dixon, had been shut down and the cheese embargoed since August 2010, after samples of cheese that had been seized at a private buyers club in California tested positive for pathogens. An inspector from the Missouri milk board initially told the dairy that the shutdown would last just a few days, but that quickly changed when FDA stepped in and pressured the milk board not to let the dairy reopen.

The Milk Board embargoed the cheese despite the fact that none of the cheese in the Morningland facility were part of the same batch of cheese as the cheese that tested positive in California. Neither the FDA nor the Milk Board ever tested a single sample of the Morningland cheese during the entire time the embargo was in effect. In September 2010, FDA took one hundred environmental swabs at the Morningland plant to test for listeria; all of the tests came back negative. Yet the Milk Board, spurred on by FDA, pursued and obtained a court order that led to the cheese’s destruction.

In 30 years of being in business, Morningland’s cheese had never made anyone sick nor had there ever been a complaint filed against it. The following video was taken the morning of the cheese destruction.

Around the same time, on the other side of the county, the FDA shut down the Estrella Family Creamery, a Monticello, Washington business that had won numerous domestic and international awards for the quality of its cheeses. Like Morningland, Estrella has never been accused of making anyone ill with their cheese. Estrella had some samples of its cheese test positive for Listeria monocytogenes early in 2010 but was on its way to resolving whatever issues it had with the Washington State Department of Agriculture when the FDA stepped in. In October 2010, FDA executed a seizure order against the entire inventory of raw cheese at the facility; the cheese was later disposed of at a loss of over $100,000.

It has been 2-1/2 years since the Kelli and Anthony Estrella last produced cheese, but they were trying to get back into the cheesemaking business. Even though they intended to sell only within Washington, and not across state lines, the FDA continued to hound them. This past fall, FDA obtained a court order enabling the agency to continue to inspect and have jurisdiction over the creamery even though Estrella would no longer be in interstate commerce. Negotiations with the U.S. Attorney’s office and FDA over terms to enable the farm to get back into business continued until February 2013 when the Estrellas put their farm up for sale. Financially strapped and unable to get definite answers from FDA about the limits of the agency’s jurisdiction over their business, the couple decided it was time to move on.

Liability Insurance Providers Pose a New Obstacle

While the FDA is the biggest obstacle to raw milk access in the government sector, the biggest choke point in the private sector is the lack of affordable product liability insurance for producers. A few years ago a raw milk producer could obtain a standard product liability insurance policy for less than $1,000 per year; those premium levels are rapidly disappearing. Most of the national insurance companies are no longer underwriting raw milk product liability. Nationwide Insurance stopped coverage within the past year. The smaller insurance companies still underwriting are frequently charging $5,000 in annual premiums, with at least one quoting policies as high as $10,000. Some farmers who can’t afford the higher premiums and who don’t want to risk their farms are getting out of the raw milk business.

Several companies like Nationwide that have stopped writing raw milk product liability policies have ties to the American Farm Bureau Federation. Farm Bureau, which bills itself as the “unified national voice of agriculture,” purports to represent the interests of small farmers while doing little of the kind. Insurance companies connected to Farm Bureau have recently threatened to cancel the insurance policies of farmers that continue to produce raw milk, even if the policies are for other, unrelated products. On January 15 delegates at AFBF’s 94th Annual Meeting approved a new policy to support only pasteurized milk and milk products. It remains to be seen whether Farm Bureaus at the state level will lobby their legislatures to try to ban the sale of raw milk in their respective states.

Consumer Demand for Raw Dairy Continues to Rise

In spite of the government agencies and private organizations that continue to oppose freedom of choice for raw milk consumers, the demand continues to grow and the number of farmers producing raw milk is increasing, especially at the micro-dairy level. Efforts to increase freedom for producers and consumers continues to progress on a state-by-state basis.

The legislative highlight of 2012 occurred in New Hampshire when a bill was passed that allows the unlicensed sale of raw milk and raw milk products (such as yogurt, cream, butter and kefir) on the farm, at a farmstand and/or at a farmers market as long as the raw milk farmer produces less than 20 gallons of raw milk per day (the farmer may also process that same amount of raw milk into other dairy products).

FDA tried unsuccessfully to stop the bill by submitting written testimony about the supposed dangers of raw milk. The new law is a significant step forward in opening up new markets for small-scale raw milk producers.

The greatest success at the regulatory level in 2012 took place in Wyoming. It started inauspiciously, when the Wyoming Department of Agriculture sought to ban herdshares, a boarding arrangement in which those with ownership interest in dairy animals can obtain raw milk from those farmers boarding and caring for the animals. Herdshares are not “sales” of raw milk – they involve people being able to drink milk from their own animal. Farm-to-Consumer Legal Defense Fund members, State Representative Sue Wallis and her brother Frank Wallis, led the effort marshalling opposition around the state. At a series of hearings on the proposed rule, not one person spoke in favor of the agency’s proposed ban.

The grassroots effort ultimately resulted in an order by Governor Matt Mead to WDA to issue a regulation expressly legalizing herdshare agreements.

Legislation to Legalize or Expand Sale of Raw Milk Introduced in Several States

The current legislative session in state houses promises to be active for raw milk bills. Legislation that would either legalize or expand the sale of raw milk has been introduced in Arkansas, Hawaii, Iowa, Indiana, Kansas, Massachusetts, Montana, Oklahoma, Rhode Island, Texas, Vermont, and Wyoming. A bill is also expected to be filed shortly in Wisconsin. Another bill introduced in 2012 in New Jersey is still alive with that state having a two-year legislative session.

Some states are trying to follow Wyoming’s lead by expressly legalizing herdshares, as proposed in a second Indiana bill, a Maryland bill and the Montana bill.

Only New Mexico has legislation that is trying to roll back the clock; a bill has been introduced there that would ban the sale of raw milk. Another anti-raw milk measure to watch out for is a proposed regulation in Illinois that is currently in the drafting stage that would restrict access to raw milk. Those in Illinois wanting to be updated on the status of the proposed regulation, be sure to sign up for the mailing list at www.farmtoconsumer.org.

At the federal level, a bill that would repeal the interstate ban has been introduced the last two sessions of Congress and will likely be reintroduced this session; the bill would allow raw milk to be taken across state lines either by consumers or their agents who obtain it in another state or by producers or their agents delivering it to consumers in another state. The bill would not affect the power of states to determine whether the sale of raw milk would be illegal within its borders.

The fight over raw milk stands as a symbol of the much larger fight for food freedom. Who gets to decide what you eat? You? Or the FDA?

If the FDA and state agencies are allowed to impose their view of “safe food” on consumers, raw milk won’t be the only thing lost – all our food will be pasteurized, irradiated, and genetically engineered. The effort to reclaim our right to buy and consume raw milk is leading the way for everyone who wants to be able to obtain the food of their choice from the source of their choice.

Get Involved! I urge you to get involved with the following action plan to protect your right to choose your own foods:

1. Get informed: Visit www.farmtoconsumer.org or click here to sign up for action alerts.
2. Join the fight for your rights: The Farm-to-Consumer Legal Defense Fund (FTCLDF) is the only organization of its kind. This 501(c)(4) nonprofit organization provides a legal defense for farmers who are being pursued by the government for distributing foods directly to consumers. Your donations, although not tax deductible, will be used to support the litigation, legislative, and lobbying efforts of the FTCLDF. For a summary of FTCLDF’s activities in 2012, see this link.
3. Support your local farmers: Buy from local farmers, not the industry that is working with the government to take away your freedoms.