Ohio
Young's dairy, the last remaining raw-milk dairy, stopped selling raw milk in January 2003 when a recent outbreak of salmonella sickened 47, 16 of whom worked at the dairy. The strain originated elsewhere in the state and officials could not positively attribute the problem to Young's. Nevertheless, the state put considerable pressure on the dairy (threatening to take away their Grade A license and close down the pasteurized portion of their business) which then closed down the raw milk portion of their operation.
The outbreak and subsequent decision by the dairy came just a week after the Ohio Farm Bureau Federation voted to support an effort aimed at permitting more people to sell raw milk. The majority of the more than 400 delegates to the group's annual meetings, all active or retired farmers from across the state, said that anyone who wants to should be given a licence to sell raw milk. Then came the incident at Young's Dairy. Coincidence? We think not.
But the decision by Young's could actually be a boon to other farmers in the state who want to set up cow-share or farm-share programs. Laurie Smith of Cridersville is trying to put something together. She can be contacted at .
Update 10 JAN 04: If you live in the state of Ohio and support the right to purchase raw milk at the farm, please join the Yahoo group titled "Ohio WAPF" (http://health.groups.yahoo.com/group/Ohiowapf/) to stay informed of grass roots efforts to legalize the sale of raw milk in Ohio. A postcard campaign to legislators is currently in the works and we need to know who you are!
Update 24 AUG 05: This state has some of the strictest laws on the books and the most reactionary agriculture bureaucracy. In March, Dan & Nancy Kremer of E.A.T. Food for Life Farm received a cease and desist order for selling raw pet milk from their farm store. We believe that this action of the Ohio Department of Agriculture is subject to challenge in the courts. However, for the moment, the Kremers are currently complying with the order, but giving the milk away to “anyone who determines that raw milk is a medical necessity for themselves or their loved ones.” Meanwhile, a group headed by Warren Byle is spearheading a movement to legalize raw milk in Ohio. See www.wantmilk.org.
Update 17 AUG 06: A lot has happened in Ohio since the Dan and Nancy Dremer episode from august 2005. Two investigatory subpoena were issued by the Ohio Department of Agriculture (ODA) and depositions taken; a permanent injunction hearing on Arlie Stutzman's case was held; a decision on Arlies's case was issued that suggests herdshares are not regulated in Ohio; another subpoena has recently been issued by ODA for a deposition of a herdshare producer; we are filing a motion to quash the subpoena; and we have also filed a complaint against ODA seeking a ruling from the court that one of ODA's commercial feed statutes is unconstitutional. Finally, one producer has received a "proposed revocation" order from ODA. The proposed order seeks to revoke the producers grade a license for allegedly selling raw milk. This is completely bogus because the producer's raw milk goes to herdshare owners. The farmer and owners will have to request an administrative hearing on the proposed revocation, which should take place sometime in September, 2006. The farmers are on the offensive and fighting back.
Ohio raw milk farmers and consumers are ably represented by David G. Cox of Lane, Alton & Horst, LLC.
Update Winter, 2006: Arlene Setzer, sponsor of H. B. 534, which would legalize on-farm raw milk sales in Ohio, has proposed emergency bill H. B. 650, which would place a moratorium on the Ohio Department of Agriculture's (ODA) ability to deny, suspend or revoke a dairy farmer's license simply because that farmer engages in herd-share arrangements. In spite of very favorable response on the part of Ohio legislators to our testimony for H.B. 534., the ODA has engaged in systematic harassment of herd-share operators. For example, in Hamilton, the ODA has issued an investigatory subpoena against a farmer operating a herd-share program with only four cows. The subpoena, among other requests, asks for the farmer to produce copies of all herd-share contracts with his shareholders and to produce all bottling records related to his herd-share program. The ODA does not have a shred of evidence that the farmer in question has ever sold raw milk. The only information the Department has about the farmer is that he manages a herd for his shareholders. Since the ODA has no proof whatsoever of wrongdoing, they are attempting to get the farmer to incriminate himself. In Darke County, the ODA has issued a revocation of the license of Paul Schmitmeyer, one of the largest herd-share Ohio producers. In the Schmitmeyer case, the ODA is basing action on multiple laws that are dependent on the fact that the milk is being sold. The Ohio Dairy Code only applies to sales of milk for human consumption. Pressure is definitely coming from the dairy industry. Mega-dairy company Dean Foods has told dairy co-ops that they will not buy their milk if involved in a herd-share program. The Farmers' Union voted to support the raw milk efforts in Ohio, but there is a special meeting in early September to pressure those members to reverse their vote. Fortunately, farmers in Ohio have excellent legal representation and are optimistic that they can end-run the ODA's actions. We have sent out an Action Alert to our Ohio members on this issue, urging them to contact the governor, candidates for governor and their elected representatives.
Judge rules careful herdshare arrangements are a legal deal in Ohio
Ruling overturns state's aggressive campaign against raw milk operators.
By David G. Cox
Posted March 15, 2007: Judge Jonathan P. Hein of Ohio's Darke County Court of Common Pleas issued a decision on December 29, 2006, in the case of Carol Schmitmeyer, a Versailles, Ohio dairy producer who had been operating a herdshare program in order to make raw milk legally available to people who wanted to consume it.
Judge Hein's decision vacated an earlier decision of the Director of Agriculture that revoked Ms. Schmitmeyer's dairy producer's license because Director Dailey believed Ms. Schmitmeyer's herdshare operation constituted an illegal "sale" of raw milk. In his decision, however, Judge Hein stated that there are "various deficiencies" in the law which are "fundamental to a correct interpretation of the law" and that the Director's decision to revoke Ms. Schmitmeyer's license was similarly deficient.
A herdshare operates on the principle that persons (usually city dwellers) buy an ownership interest in a herd of dairy cows; they board those cows at a farmer's farm; and they pay a periodic boarding fee to the farmer in exchange for the farmer taking care of, tending to and providing feed to the herd. The herdshare owners in essence become "shareholders" in the dairy farm and receive as a dividend on their investment the raw milk that comes from their share.
The farmer earns extra income by receiving the boarding fee and the purchase price of the "shares" in the herd, while the shareholders receive raw milk in accordance with the law and have the satisfaction of knowing where their milk comes from and how it is produced. It is an arrangement that pleases everyone involved.
Everyone, that is, except the Ohio Department of Agriculture (ODA). In 2006, the ODA relentlessly and ruthlessly pursued herdshare operators throughout the state, claiming they were illegally selling raw milk and putting the entire public's health at risk. For example, just in 2006 alone, ODA revoked the license of an Amish farmer who took a $2 donation for one gallon of raw milk; arrested in conjunction with federal authorities a farmer in Cincinnati who was delivering raw milk to his shareholders (and who was carried away in an ambulance because he suffered a mild heart attack); attempted to revoke the commercial feed registration of two Washington County women who use raw milk as an ingredient in their pet food products; and attempted to conduct a secret investigation into a herdshare program operated by a married couple in Butler County.
And in September, ODA revoked the producer's license of Carol Schmitmeyer which could have put her out of business because her family derived 87 percent of its economic livelihood from her producer's license.
Ms. Schmitmeyer argued in her appeal that because the law was so vague, i.e., "sale" or "sold" were not defined, that there was no way to determine whether ODA's interpretation and application of the law was reasonable, arbitrary or capricious. ODA had gone on record in the past as allowing a farmer and his family to consume raw milk from the family farm's cows, but insisted that shareholders in a herdshare did not have similar rights.
Judge Hein in his decision stated that “if the herd share agreement is a circumvention of the law, so is the Department's inexact practice of allowing owners and their families, etc. to consume raw milk. Consequently, too much subjectivity results from the "Department's practice of allowing some as yet undefined persons (owners, family members, etc.) to consume raw milk at as yet undefined locations (on farm, etc.)."
Ms. Schmitmeyer also argued that before her license could be revoked, ODA was required by law to provide her with “a reasonable amount of time to correct the alleged violations. Indeed, and as a precautionary measure, Ms. Schmitmeyer had sent two letters to ODA in the spring of 2006 requesting assistance and guidance from ODA on what her herdshare operation needed to do to comply with the law, yet both letters were ignored by ODA.
As it turned out, the first time Ms. Schmitmeyer had a hint that something was wrong was when she received a letter in the mail from ODA proposing to revoke her license. Judge Hein stated in his decision that "the Department avoided its duty to [Ms. Schmitmeyer] by not engaging in discussion with her (and other herdshare owners) regarding the issues now before this Court. Due to the failure of the Department to articulate specific problems with the herdshare agreement, ODA failed to provide Ms. Schmitmeyer with an opportunity to correct the alleged violations.
In essence, Judge Hein's decision vindicates Ms. Schmitmeyer in her ordeal. Judge Hein's decision also validates herdshare agreements in Ohio when they are drafted in a manner consistent with contract law and when they provide for a transfer of ownership in the herd, whether partial or complete transfer, from the farmer to the shareholder. Therefore, unless and until the statute is changed or administrative regulations are issued to provide clarity on the issue, herdshare agreements appear to be legal in Ohio.
Ms. Schmitmeyer has filed with Judge Hein a motion to recover her attorney's fees and costs from ODA. She hopes for a favorable ruling given the facts of this case.
Editor's Note: Atty. Cox reported in late February that the ODA is appealing Judge Hein's decision. The department also submitted to Schmitmeyer what was termed a settlement offer, and she is preparing a counter offer. Briefs on the appeal are due by both sides by the end of April.
David G. Cox is an associate with the Columbus, Ohio, law firm of Lane, Alton and Horst LLC where he practices agricultural and environmental law. This article is not intended to be nor should it be construed as either legal advice or the opinion of the firm. It first appeared in the Winter 2007 edition of the Ohio Ecological Food and Farm Association News (www.oeffa.org) and is reprinted with permission.
SOURCE: http://www.newfarm.org/features/2007/0307/rawmilk/cox.shtml
Update, August 2007
Ohio: A major victory in Ohio: the state government now recognizes
cow/herd shares as legal. On September 28, 2006, the Ohio Department of
Agriculture (ODA) revoked the Grade A milk license of Carol and Paul Schmitmeyer
because the agency determined that the operation of Schmitmeyers’
herd share program constituted a sale in violation of state law. The Schmitmeyers
appealed the
revocation to the Darke County Court of Common Pleas; and on December
29 Judge Jonathan Hein overturned ODA’s revocation order, ruling
that the herd share could not be termed a sale due to the lack of a clear
definition of “sale” in the state dairy code. ODA initially
appealed the judge’s decision but on March 20, on the orders of
newly elected Governor Ted Strickland, the agency withdrew its appeal.
Strickland has made clear that while he does not support the legalization
of the sale of raw milk, he has no problem with the operation of cow/herd
share programs in the state. Congratulations to Paul and Carol Schmitmeyer
and their attorney Gary Cox!
Update, Spring 07
A Darke County, Ohio, judge has ruled that the Ohio Department of Agriculture
(ODA) exceeded its authority when it issued a revocation of Carol Schmitmeyer’s
Grade A license. In addition to selling milk in the commercial market,
the Schmitmeyer’s dairy serves as one of the largest Ohio herd-share
operations. Unfortunately, ODA appealed at the last minute, so the case
is still in limbo. Meanwhile, raw milk consumers are working for the passage
of a bill to legalize the sale of raw milk in Ohio. HB-52, which creates
a subcommittee of the milk sanitation board to oversee raw milk sales,
has been introduced in the Ohio House. The bill stipulates eight members
of the subcommittee, all of whom shall be either raw milk producers or
raw milk consumers.
Update, March 2007
I have a DVD of 20+ testimonies of WAPF members in southwestern Ohio.
Many are families speaking to the general health improvement of their
children, allgeries, dental cavity reduction, fewer doctor visits and
(what they they thought was) milk intolerance (really was pasteurized
milk intolerance). Two of the testimonies are life threatening medical
illnesses. One lady had been instructed to sell everything she had and
prepare for her funeral (that was three years ago before
she started raw milk).
I also have two DVDs by a doctor who teaches microbiology to doctors in the Wright State University Medical school. One covers raw milk generally, and the other DVD is Nutritional Impact of Real Milk for Children. In the latter DVD he testifies to the benefit he has noted in his younger children compared to the older where real milk was not in their diet. Most of these DVDs are recorded in our chapter meetings.
I sell all of these DVDs for $10 apiece and all proceeds are sent to
our Ohio Raw Milk producers to pay legal defense fees. So far those monies
have been used to defend two of the Ohio farmers who were cited for bogus
issues. One Amish farmer was cited for not having proper labeling on a
milk jug the inspector provided out of this van. The other farmer was
cited for a diease for which no evidence was detected on his farm. Ohio
is blessed with a governor now who was raised on
the farm and recognizes the benefits of real milk. He has instructed the
Ohio Dept of Ag to back off if a herd share contract is in place. If Ohioans
are willing to purchase a (usually refundable) contract to purchase part
of a herd of cows, then they are consuming milk from their own herd and
that is legal in Ohio. Our push in Ohio is to grow the community of real
milk consumers.
If you wish to have copies of any of these DVDs, you may either send
a check for $10 each (covers shipping) to me at Jim Roberts, 3999 Honeybrook
Ave, Dayton, OH 45415. OR send me a payment with PAYPAL to
, be sure to include your address. If you need
to reach me, my phone number is (937) 898-5063.
A Campaign for Real Milk is a project of The
Weston A. Price Foundation
PMB 106-380, 4200 Wisconsin Ave, NW, Washington DC 20016
Phone: (202) 363-4394 | Fax: (202) 363-4396 | Web: www.westonaprice.org
General Information/Membership/Brochures: info@westonaprice.org
Local Chapters and Chapter Leaders: chapters@westonaprice.org
Executive Director: bsanda@westonaprice.org
Website: webmaster@westonaprice.org