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Farm-to-Consumer Legal Defense Fund Files Appeal in Wisconsin Raw Milk Case

Raw Milk

Story at-a-glance -

  • Wisconsin dairy farmer Vernon Hershberger was charged with four criminal misdemeanors for supplying a private buying club with raw milk and other fresh produce
  • He was acquitted of three of the four charges and the Farm-to-Consumer Legal Defense Fund (FTCLDF) is appealing the jury verdict of the fourth charge on claims that key information was withheld that would have exonerated him
  • The hold order, which Hershberger was found guilty of violating, stated his food was “misbranded or adulterated” when in fact the food was neither; attorneys for the case believe this missing piece of information would have been enough for the jury to clear him of all charges
  • The fight for food freedom isn’t just for those who love raw milk – it’s for everyone who wants to be able to obtain the food of their choice from the source of their choice

By Dr. Mercola

The state of Wisconsin is one of a handful of states that is aggressively targeting raw-milk farmers, seeking to criminalize their methods of food production.

Wisconsin dairy farmer Vernon Hershberger was among the latest targets, charged with four criminal misdemeanors for supplying a private buying club with raw milk and other fresh produce.

He was acquitted of three of the four charges, and now the Farm-to-Consumer Legal Defense Fund (FTCLDF) is appealing the jury verdict of the fourth charge…

Was This Wisconsin Raw Milk Farmer Unfairly Charged?

After Hershberger was acquitted of three of the four charges, the Wisconsin Department of Justice (DOJ) filed a motion to revoke Hershberger’s bail and instead send him to jail for a fourth charge of violating a holding order.

This required that he not sell any food or milk from his store as a condition of his bail. Hershberger openly admitted that he had violated the order and broke seals to get into his coolers, in part to retrieve food to feed his own family.

As a result, jurors had no choice but to find him guilty of this charge, and he was sentenced to pay a $1,000 fine plus $513 in court costs. Hershberger avoided jail time and the maximum possible fine of $10,000, but several of the jurors noted that state prosecutors and the county judge withheld key information that would have exonerated him of even the hold-order charge.

According to FTCLDF, the jury received a heavily redacted hold order, which stated Hershberger’s food was “misbranded or adulterated” when in fact the food was neither.

Attorneys for the case believe this missing piece of information would have been enough for the jury to clear Hershberger on all charges. According to attorney Elizabeth Rich:

“Had the jury been given enough information to understand the totality of the circumstances, we believe they wouldn’t have convicted Vernon of violating the holding order. His conviction was not consistent with the jury’s acquittal on the other three count.”

Jurors Angered Over Blatant Injustices

Several of the jurors were so moved by the case that they now want to join Hershberger’s buying club to be able to access raw milk for their families, noting that this is an issue of food freedom. Not only does it seem a precious waste of state resources to target a man supplying wholesome food to informed and willing buyers, several of the jurors stated they felt the trial, and specifically the holding order charge, was unjust.

Specifically, the jury only determined whether Hershberger had violated the hold order… not whether the holding order was valid. Since he had been acquitted of the charges that led to the holding order being placed, it means that the state had no right to be barring Hershberger from accessing his food in the first place. Baraboo News Republic reported:1

“ '… we weren’t allowed to judge whether the holding order was valid,' [juror Michele] Bollfrass-Hopp said. She added that since Hershberger was acquitted of the other charges that the state used as its basis for placing the holding order, the order itself should have been a moot point. ‘You have to have common sense when you apply the law.’”

With FTCLDF’s appeal, it’s possible that Hershberger may still be cleared on all charges and receive the justice he deserves.

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Raw Milk Continues to be Unfairly Targeted While Other Foods Are Making People Sick

One of the most significant potential  ‘threats’ from raw milk is listeria; this is the disease the US Food and Drug Administration (FDA) often uses as its ‘poster child’ in its warnings against drinking raw milk. The US Centers for Disease Control and Prevention (CDC) estimates that 2,500 Americans become seriously ill from listeria each year and, among these, 500 will die.

While listeriosis is generally a mild illness in healthy people, causing few or no symptoms, people with compromised immune systems and pregnant women are at more serious risk. In pregnant women, listeriosis can cause miscarriage, premature delivery, infection or death to the newborn. But how many cases of the 2,500 a year actually come from raw milk?

According to the FDA and the CDC, from 1998 to May 2005 there were 45 outbreaks of food-borne illness that implicated unpasteurized milk, or cheese made from unpasteurized milk. These outbreaks accounted for 1,007 illnesses, 104 hospitalizations, and two deaths.2 This works out to 144 cases a year. And that is assuming that EVERY person who got sick from raw milk that year got sick from listeria, which is highly unlikely.

So it is likely far fewer than 144 people a year who have gotten listeriosis from raw milk. The remainder of the 2,500 illnesses a year are then coming from, as the report noted, primarily deli meats.

Hot dogs, refrigerated pre-prepared meat spreads, pasteurized cheeses and pre-made meat and seafood salads have also been implicated in listeria outbreaks. Just this month, for instance, three types of Crave Brothers cheese were recently removed from store shelves because of possible listeria contamination – and these cheeses are made from pasteurized milk!

Is Milk Even a ‘Necessary’ Food?

The war against raw milk is clearly an issue of government and big business trying to interfere with your right to access pure food from the producers of your choice. Another issue entirely is whether milk of any kind is actually the healthful food it’s made out to be. Personally, I don’t drink much milk, raw or otherwise (although I do currently use about one pound of raw butter a week).

But many view milk as a dietary staple, essential for adding calcium and fat to their diets, especially for kids. Several US government agencies even recommend the consumption of three cups daily of reduced-fat milk for most age groups. But a recent article in JAMA Pediatrics3 questions the scientific rationale for promoting milk consumption for both children and adults, and reconsiders the role of cow’s milk in human nutrition.

The authors state:

“Humans have no nutritional requirement for animal milk, an evolutionarily recent addition to diet. Anatomically modern humans presumably achieved adequate nutrition for millennia before domestication of dairy animals, and many populations throughout the world today consume little or no milk for biological reasons (lactase deficiency), lack of availability, or cultural preferences. Adequate dietary calcium for bone health, often cited as the primary rationale for high intakes of milk, can be obtained from other sources.”

Far from being healthful, the researchers suggest that the consumption of reduced-fat milk, which is high in milk sugar, may instead be contributing to the obesity epidemic (one cup of 2 percent milk contains more than 12 grams of sugar – nearly as much as a chocolate chip cookie). But whether or not you choose to drink milk, most would still agree that attempting to criminalize a raw-milk farmer for supplying this food to private buyers is a dangerous assault on food freedom.

Small Heritage-Breed Pig Farmers Are Also Being Targeted

It’s not only raw-milk farmers who are facing the ‘food police.’ Small farmers raising heritage-breed hogs are also being targeted, particularly in the state of Michigan where the Invasive Species Order (ISO) went into effect last year.

The ISO prohibits anyone in the state from possessing what they define as "invasive species of swine," which the state says are carriers of many parasites and disease, and a major source of damage to forests, agricultural lands and water resources. While the dictionary definition of "feral" refers to an animal running wild, Michigan authorities have taken it a step further and extended the definition to include enclosed private hunting preserves and small farms that are raising heritage-breed pigs.

There is no genetic test to determine whether the species on these farms are truly invasive, so authorities are basing their cases against these farmers solely on visual observations and characteristics so vague that virtually any pig other than the familiar pink domestic breed raised on CAFOs (concentrated animal feeding operations) could potentially be deemed "feral."

Any farmer or other individual found to be in possession of such a hog could be charged with a felony and subjected to up to two years in jail and fines of up to $10,000 per violation. In one case against farmer Mark Baker of Baker's Green Acres, who raises Mangalitsa "wooly" hogs, the Michigan Department of Natural Resources (DNR), through the Michigan Attorney General, is asking the judge to impose fines of $700,000 for his 70 “illegal” pigs. Baker, however, is fighting back and has filed suit against the state of Michigan for loss of livelihood due to the ISO. He told FTCLDF:4

“Because of the ISO, I have not been able to process or sell any pork in Michigan since April 2012 or sell the live pigs. This threatens the viability of my farm, my income and the health and well-being of my family. The ISO is a threat to genetic diversity and freedom of choice as well as the ability of small farms to make a living. This order denies consumers their rights to access foods of their choice and violates property rights and the right to make a living. Farmers and other hog owners in Michigan must either get rid of their now ‘prohibited’ property or become felons.”

Are You Willing to Fight for Your Food Freedom?

The fight for food freedom isn’t just for those who love raw milk – it’s for everyone who wants to be able to obtain the food of their choice from the source of their choice. Now heritage-breed pigs are being targeted and there’s no telling what other small-farm, niche foods may be next. So please, get involved! I urge you to embrace the following action plan to protect your right to choose your own foods:

  1. Get informed: Visit 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.