Raw Milk Updates, Fall 2011
by Pete Kennedy, Esq.
President, The Farm-to-Consumer Legal Defense Fund
CALIFORNIA: THE RAWESOME RAID
On August 3, 2011 federal, state and local government officials raided the Rawesome Foods store in Venice, seizing food, records, computers and cash from the store. The officials seized almost the entire food inventory at the store, dumping out all the raw milk on the premises and carting the rest of the seized food out on trucks that were suspected to be heading towards a county landfill. At the same time this was going on, police were arresting James Stewart, Sharon Palmer and Victoria Bloch.
Stewart, the owner of the Rawesome store in Venice, had defied an order by the Los Angeles County Health Department prohibiting the re-opening of the store after it was temporarily shut down by a government raid on June 30, 2010 (see Wise Traditions Fall 2010 issue for background). He believed the court had no jurisdiction over the club and reopened the next day. Government officials seized records and a computer from Stewart’s home as well, in addition to taking nine thousand dollars in cash he had on his person. Stewart was charged with thirteen felony and misdemeanor counts, the majority of which related to the production and sale of raw milk and raw milk products. Bail was originally set at one hundred twenty-three thousand but was later reduced to thirty thousand dollars. Before he was released, Stewart had to prove to the judge that the bail money did not come from his business proceeds, a treatment mostly reserved for drug dealers.
Palmer, the owner of Healthy Family Farm in Santa Paula, had been raided three times before by government officials and had been arrested in 2008 for the production and sale of raw dairy products. Like Stewart, the majority of the ten felony and misdemeanor counts she was charged with were related to the production and sale of raw dairy products. Bail was set at over one hundred twenty thousand dollars but later reduced to sixty thousand dollars. Palmer also had to prove to the judge that the bail money did not come from her business proceeds.
Bloch, the Weston A. Price Los Angeles chapter leader, worked for Palmer as an independent contractor taking orders, signing members up for Palmer’s CSA and being responsible for communications for the farmer. Bloch was charged with three felony conspiracy counts related to the sale and distribution of raw dairy products and labeling violations. The three underlying crimes that Bloch was charged with “conspiring to commit” were misdemeanors. Bail for the WAPF chapter leader was initially set at sixty thousand dollars but she was released on her own recognizance.
Much of the illegal activity the three were accused of centered on a herdshare contract the Rawesome Club in Venice had with Palmer. Rawesome owned forty goats that were boarded at Palmer’s farm. As part of the contract, Palmer was to provide raw dairy products to the Rawesome members. Criminalizing Rawesome’s use of its property is an ominous development for food freedom of choice and the sanctity of private contract. An agreement like the one Rawesome had with Palmer was the only way its members could obtain raw goat milk and raw goat milk products within the state of California (see Wise Traditions Summer 2009 issue for background).
There were nine different government agencies taking part in the investigation of Rawesome and Healthy Family Farms including the U.S. Food and Drug Administration (FDA), the California Department of Food and Agriculture (CDFA), the Los Angeles County Department of Public Health, and the California Franchise Tax Board. The questions now arising involve who funded the investigation and why the state of California is putting so much time and resources into the investigation at a time when the state is in such poor condition financially. There had not been any complaint about anyone becoming sick from consuming the food produced at Rawesome. The Rawesome raid was the most extreme police state action taken yet in an effort to criminalize the activities of those who have opted out of the government-sanctioned food system.
A pretrial hearing has been scheduled for the Rawesome defendants in the Los Angeles County Superior Court October 6.
CALIFORNIA: EVERGREEN ACRES GOAT FARM
CDFA enforcement actions weren’t limited to Rawesome. The agency sent a cease-and-desist letter to a Mendocino County herdshare operation and worked with the district attorney’s offices in El Dorado and Santa Clara Counties in investigating shareholder dairies. The DA’s office in both counties each sent a letter to a shareholder dairy within its jurisdiction warning the dairy that it was violating state laws. In the case of the Santa Clara County dairy, Evergreen Acres Goat Farm of San Jose, the letter demanded that the dairy stop distributing raw milk immediately with the threat of criminal prosecution if it didn’t.
The May 18 letter to Mike and Jane Hulme, owners of Evergreen Acres, accused the Hulmes of illegally manufacturing and selling dairy products. The letter informed the Hulmes that “the unlicensed manufacturing or processing for resale of any milk or milk product is a crime, punishable by a fine of up to ten thousand dollars and/or imprisonment of up to one year in the county jail.”
In a subsequent meeting at the Santa Clara County District Attorney’s Office, an official from CDFA informed the Hulmes that while it was legal for goat owners to board their goats at the farm and to have the Hulmes milk their goats, the owners could only drink the milk from their goats at the Hulmes’ farm; once they left the farm with the milk, Evergreen Acres had become a dairy processing plant and was violating the law since it did not have a license. The official did not give the Hulmes any public health reason for this distinction.
With licensing not being an option due to cost and zoning issues, the Hulmes and San Jose goat owners Ian Gerbode, Sara-Jane Skiwski and Sarah Sullivan filed a lawsuit against CDFA and the County of Santa Clara, asking for a declaration by the court that the boarding contract the goat owners had with the Hulmes was legal. The suit, filed July 22 in the Superior Court of Santa Clara County, asks for a permanent injunction against the State of California and Santa Clara County to prevent Defendants from commencing or continuing any enforcement action against the Plaintiffs “or anyone else in California who wishes to engage in the conduct engaged in by Plaintiffs.”
In commenting on the threatened prosecution that led to the lawsuit, Mike Hulme pointed out, “There is no injury here; no one has become sick from milk produced at the farm. There have been no complaints from either the goat owners or the city of San Jose. The only conclusion I can draw is that this is a politically motivated action by the district attorney and CDFA to effectively put a small family farm out of business.”
CDFA has drawn widespread criticism for its stance on herdshares and there is evidence the agency is reevaluating its position on shareholder dairies. At a meeting held with raw milk producers and consumers on August 23, CDFA Secretary Karen Ross said that she wanted to form a working group on herdshares in California and have the group draft a report with recommendations on the issue. An attorney for CDFA admitted at the meeting that there was no law on the books covering herdshares. Ross said that she wanted the report from the working group to be finished four months after the members of the group get started on the project.
SOUTH CAROLINA: TUCKER ADKINS DAIRY
A prime example of FDA bias against raw milk occurred in South Carolina at the expense of Tucker Adkins Dairy. On July 16, the Food and Drug Administration (FDA) issued a press release stating that three confirmed cases of campylobacteriosis in North Carolina were associated with the consumption of raw milk obtained on June 14, 2011 from Tucker Adkins Dairy of York, South Carolina. As far as is known, public health officials investigating the outbreak did not look for other possible causes of illness after discovering that the three individuals drank raw milk.
FDA issued the press release prior to receiving test results of a milk sample the agency had taken from a container obtained on June 14 by one of the individuals allegedly ill from the milk. Any threat of illness from the milk produced by the dairy had already passed by the time FDA issued its press release. The agency could have waited until the test results were in but did not. Shortly after the press release was issued, FDA acknowledged the milk suspected of harboring campylobacter tested negative. FDA’s press release was more a statement of its policy on raw milk and did nothing to promote or advance the public health; the agency’s accusations against the dairy were based more on its position that “no one should drink raw milk at any time for any reason” than on any evidence.
Contrast the actions of FDA with those of the South Carolina Department of Health and Environmental Control (DHEC), the agency that has the hands-on responsibility for insuring that Tucker Adkins Dairy produces a safe product. The department could have suspended the dairy’s license or suspended raw milk sales if it suspected the dairy was responsible for making people sick; it did not.
The department took two samples of its own, each of which tested negative for campylobacter. DHEC found that the dairy did nothing wrong. In its seven years of operating as a licensed dairy, Tucker Adkins Dairy has never been cited for a violation by the department nor has a complaint ever been made against the dairy for the raw milk it produces.
Like FDA, the department advises the public that raw milk has inherent risk and that all milk should be consumed pasteurized. Unlike FDA, DHEC waits until the facts are in and does not carry out an anti-raw milk action at the expense of the reputation of a hardworking family farm.
WISCONSIN: GRASSWAY ORGANICS & ZINNIKER FARMS
On August 12 Dane County Circuit Court Judge Patrick J. Fiedler denied the motions of Grassway Organics Farm Store LLC and Zinniker Farms—and the respective private associations doing business with the two entities—for a ruling in their lawsuits against the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) that the distribution of raw milk by Grassway and Zinniker to the members of the respective associations was legal. (See Wise Traditions Fall 2010 and prior issues for background on the cases.)
Grassway Organics Farm Store LLC, which has a Grade A milk producer license in its name, issued stock in the LLC to Grassway Association and its members. Under 2002 and 2004 administrative law decisions in the state, those purchasing shares in the entity holding a milk producer license could purchase raw milk from that entity. Grassway Organic Farm Store LLC hired Wayne and Kay Craig of Grassway Farm to run the dairy operation and the farm store. The Craigs were also plaintiffs in the suit.
Mark and Petra Zinniker had an agreement with Nourished by Nature LLC to board, care for and milk cows wholly owned by the LLC. In addition to the LLC’s herd, the Zinnikers also boarded a cow co-owned by Gayle Loiselle and Robert Karp. The farm does not hold a Grade A milk producers license. The Zinnikers, the LLC, LLC member Phillip Burns, Loiselle and Karp were all plaintiffs in the case. The Grassway and Zinniker lawsuits had originally been filed separately but were consolidated by Judge Fiedler last fall.
In his opinion, the judge went out of his way to rule against the plaintiffs. Under the 2002 and 2004 administrative law decisions, those purchasing stock in an entity holding a Grade A milk producer license could obtain raw milk in the regular course of business from that entity so long as the license was used for “its proper purpose of producing milk . . . which will be sold or distributed into the public, human food chain” (that is, sold to a processor unpasteurized for eventual distribution to the public human food chain).
The judge held that the Grassway plaintiffs were not entitled to a judgment since they were not in compliance with the law because they used their license “solely for the purpose of allowing the Association members to purchase nonpasteurized milk.” In making this finding, the judge ignored the fact that, under state law, an entity holding a Grade A milk producer license will have its license revoked if it goes more than sixty days without shipping milk to a processor. Grassway Organic Farm Store LLC has held the same Grade A milk producer license it was issued in 2005.
As for the Zinniker plaintiffs, the judge ruled that they were not entitled to a ruling because they did not own a milk producer license. What the judge held, in effect, was that it is the state’s business on where any owner of a dairy animal boarded that animal; dairy livestock owners obtaining milk produced by that livestock if the animals were boarded on an unlicensed farm would be violating the law. The judge dismissed all the Zinniker plaintiffs’ arguments on their property rights, right to contract, and right to privacy. The judge did not indicate how a private livestock boarding contract had anything to do with DATCP’s responsibility to protect the health of the general public. Plaintiffs have ninety days to appeal the judge’s decision.
For the latest developments on raw milk issues, go to thecompletepatient.com. Those who have not joined the Farm-to-Consumer Legal Defense Fund are encouraged to do so. Membership applications are available online at farmtoconsumer.org or by calling (703) 208-FARM (3276); the mailing address is 8116 Arlington Blvd, Suite 263, Falls Church, VA 22042.
Pete Kennedy is an attorney from Sarasota, Florida and president of the Farm-to-Consumer Legal Defense Fund (www.farmtoconsumer.org). He compiled the state milk laws posted at realmilk.com. He advises many farmers and members about legal issues surrounding raw milk.
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