Wisconsin

Winter 2009: State Representative Chris Danou (D-Trempealeau) and State Senator Pat Kreitlow (D-Chippewa Falls) have introduced a bill that would legalize the on-farm sale of raw milk and raw milk products in Wisconsin. Under the bill, any milk producer who has a Grade A dairy farm permit shall be issued a permit by the Department of Agriculture, Trade and Consumer Protection (DATCP) upon the producer's request. Specifically, a milk producer may sell raw milk, buttermilk, butter and cream directly to a consumer on the producer's farm if all of the following requirements are met:

1. The producer has a permit to sell raw milk and raw milk products;
2. Either milk producer or the consumer provides a sanitary container for the product that has been prepared in a sanitary manner and the container is filled in a sanitary manner; and
3. At the place where products are sold, the milk producer displays a sign that is easy for a consumer to read and that states, "Raw milk products sold here. Raw milk products do not provide the protection of pasteurization."

The bill stipulates that a milk producer who sells a product in accordance with these requirements "is immune from civil liability for the death of or injury to an individual caused by the product, unless the death or injury was caused by willful or wanton acts or omissions."

Introduction of the bill comes at a time when DATCP has been stepping up enforcement actions against those farmers the agency believes are selling raw milk. DATCP has issued orders to two dairies-Trautman Family Farms of Stoughton and Zinniker Farm, LLC of Elkhorn-prohibiting them from making raw milk available to anyone not either residing or working on the dairy farm. In the case of Zinniker Farm, DATCP also made a criminal referral to the Walworth County District Attorney, requesting that the DA investigate the Zinnikers for the illegal sale of raw milk; the agency is holding the farm responsible for thirty-five cases of food-borne illness attributed to Campylobacter jejeuni (see Wise Traditions Fall 2009 for background on the case). Subsequently, Zinniker Farm, DATCP and the Walworth DA entered into a stipulation in which the farm, to avoid prosecution by the DA, agreed not to violate the Wisconsin laws prohibiting the sale of raw milk. Scott Trautman has requested an administrative hearing to overturn the DATCP order against his farm; the hearing is scheduled to take place this spring. Since issuance of the stop order, Trautman has been an outspoken critic of DATCP and has helped focus the public's attention on the fact that the agency is no friend of family farms.

DATCP did not limit its enforcement action to farmers; it has also been conducting an investigation of Max Kane, the owner of Belle's Lunchbox (a food buyers club based in Viroqua). Kane was refusing to comply with DATCP's request to turn over business records to the agency, including the names and addresses of Belle's Lunchbox members, on the grounds that the request violated his right against self-incrimination and also that the club was not within DATCP's jurisdiction. A rally for Kane took place on December 21 in Viroqua with David Gumpert, Mark McAfee and David Schmidt scheduled to speak.

DATCP has indicated its policy will be to take action against anyone it suspects of selling raw milk. The agency's campaign against raw milk could not come at a worse time for the state's dairy farmers, many of whom are desperately in need of the additional income that selling raw milk and raw milk products would provide. Prices being paid to farmers by dairy processors for milk have increased slightly in recent weeks but are still below the farmers' cost of production. There are more dairy farms in Wisconsin than in any other state in the country but that number is fast decreasing. According to Wisconsin's Agricultural Statistics Service as of the first week of November, there were 12,965 dairy herds in the state, a drop of over 500 herds from just a year earlier. In 1995 there were about 29,000 dairy farms in the state.

In 2008, DATCP issued an administrative regulation entitled, "Raw milk sales prohibited; exemption." The regulation stated that the general prohibition on the sale of raw milk did not apply to "[a]n individual who has a bona fide ownership interest in the milk producer . . . if the producer is a legal entity other than an individual or married couple." When the agency proposed this regulation, it stated that the regulation would clarify "current statutory prohibitions against the sale of raw milk consistent with administrative law decisions." Grade A dairies selling raw milk to their shareholders believed that they could continue to sell raw milk to their shareholders even though the Orders of Exemption for a number of the dairies expired around the time that the regulation went into effect. There was little or no opposition to the regulation when it was proposed.

The status quo on raw milk sales continued for a little over a year after the regulation became law. In the spring of 2009, the agency began moving against those selling raw milk, making it clear that it had changed its interpretation of the 2002 and 2004 decisions. In April, DATCP sent warning letters to two shareholder dairies that had been recently featured in local media and advised them that they were engaged in the illegal sale of raw milk. A third dairy that had recently applied for a retail food establishment permit for its on-farm store was denied the permit because they were selling raw milk to shareholders; the department warned that the farm store would not be given a permit until all sales of raw milk ceased.

In June, each of the producers who had previously been issued Orders of Exemption by DFI received a letter from that agency. The letter stated the following: "[The] determination to issue such Orders of Exemption in past years was based on the language of DATCP statutes and rules in place at that time, as well as language of DATCP administrative hearing decisions that interpreted those statues." The letter went on to state: This is to inform you that in view of DATCP's interpretation of its "bona fide ownership interest in the milk producer rule above, and because a Wisconsin farming operation's status under the Wisconsin Securities Law is an issue separate from a farming operation's required compliance with Wisconsin law prohibiting the sale or distribution of raw milk except in conformance with exemptions established by rule of DATCP, the DATCP rules for incidental sales of raw milk override and supersede any authorization under the previously-issued Securities Exemption Order for your farming operation to continue to sell raw milk to existing holders of Equity Shares. Thus, the previously issued Securities Exemption Order cannot continue to be used as a basis for selling raw milk or raw milk products to existing holders of the Equity Shares in the absence of compliance with the 2008 DATCP Raw Milk rules."

DATCP's interpretation of the "bona fide ownership interest in the milk producer" rule is basically that only farmers can drink the raw milk produced by a cow. The agency's change in interpretation could not have come at a worse time for shareholder dairies-not only have the prices farmers get for conventional milk collapsed but the prices paid for organic milk have declined as well, in some cases, significantly. There are certified organic dairies in the state being paid as little as $12 per hundred-weight which is less than half of what they were typically making. Most of the shareholder dairies are certified organic.

DATCP subsequently followed up on DFI's letter by sending an investigator out to several of the shareholder dairies to find out whether those dairies were selling raw milk. By the end of August, there were at least nine dairies in the state that had received warning letters and/or visits from the agency. There is concern that DATCP will attempt to have criminal misdemeanor charges brought against the dairies for the illegal sale of raw milk. A group of raw milk producers has hired a lobbyist to help pass a raw milk bill in the Wisconsin legislature. The lobbyist will also work to convince DATCP not to bring enforcement action against the producers while the bill is making its way through the legislature.

A second issue at stake in Wisconsin was whether the shareholder dairies needed a retail food establishment permit to operate the on-farm stores they have. Several of the shareholder dairies are operating without the permit, arguing that a permit is not needed since the stores sell only to their shareholders and not to the general public. Wisconsin law requires that "a permanent facility from which food is sold to consumers at retail" needs a permit. "Consumer" is defined under Wisconsin law as a person who is a member of the public. Resolution of this issue holds implications for buyers clubs around the country, with most states having a Food Code similar to Wisconsin's. A precedent could be set as to whether the reach of the Food Code extends to such private contractual arrangements for the distribution of food.

In the midst of the dispute between shareholder dairies and DATCP, an outbreak of foodborne illness linked to raw milk consumption occurred in the state. On August 28, DATCP issued a press release stating that thirteen confirmed cases of illness in southeast Wisconsin were caused by the consumption of unpasteurized milk. The individuals have tested positive for campylobacter jejeuni. According to the release, there were other people in the same households who were ill but their test results were not yet available. The release disclosed that the onset of illness was between August 14 and 20; all victims had consumed raw milk obtained from a Grade A dairy in Wisconsin or had been in households where someone who was sick had consumed raw milk from that dairy. Campylobacter can be passed between people as well as become contracted from adulterated food.

Most victims of the illness recovered quickly; however, one was not so fortunate-initially suffering from intermittent paralysis including the inability to talk along with severe gastroenteritis. More than two weeks after contracting campylobacter, the victim was still having trouble walking. The dairy suspected of being responsible for the illnesses had samples of raw milk test negative for campylobacter at both state and private labs; but the state did not exonerate the dairy, continuing its investigation by conducting tests on the dairy's cows. As of the first week of September, DATCP and the Department of Health Services had not released the results of their investigation.

August 2007: The Department of Agriculture, Trade and Consumer Protection (DATCP) has issued a proposed rule that would prohibit farm share programs from selling raw dairy products other than milk and cream to their shareholders. Currently, farm share operators can sell any raw dairy product to their shareholders under exemption letters issued them by the state permitting the sale of shares in the farm without having to comply with securities registration laws. Not only did DATCP approve the exemption letters before they were sent out but previously, a state administrative law judge had recognized the right of the farm share operators to distribute raw dairy products to their shareholders. In issuing the proposed rule DATCP claimed the rule was consistent with previous administrative law decisions.

The public comment period on the proposed rule has ended; and the rule is due to go to legislative committees in the Wisconsin House and Senate for final approval. Those opposing the rule should contact their legislators and demand that the legislative committees reviewing the rule hold public hearings.

Winter 2006, from Tim Wightman: Several farms are now operating very successful farm-share programs, which allow them to supply raw dairy products to farm-share owners. These programs have been sanctioned by the courts, but one farm recently received a letter questioning its authority to operate in this manner. The farm has replied, citing the court ruling and arguing that the state has no jurisdiction. The state has not answered the reply. We'll keep you posted on developments.

18 MAR 2004, from Tim Wightman: In a clarification hearing on November 22, 2003, the raw milk farms of Wisonsin met with the Wisconsin Department of Agriculture, Trade & Consumer Protection (DATCP) at the request of the Food Safety Division and the legal department of DATCP. The meeting was to discuss and gather information on the implementation of legally formed corporations of the raw milk farms in Wisconsin and its legal structure as it pertains to the interpretations of the division of Food Safety’s decision of October 2002 regarding cow share agreements.

It was found that the Wisconsin Division of Securities that approved the raw milk/Grade A permit holding corporations was comfortable with the arrangements outlined for the corporations holding the Grade A permits sanctioned by DATCP.

DATCP had a problem with the fact that the shareholders of the corporations had only purchased a right and not actual property of the corporations in order to obtain raw milk. In short DATCP held the view, and convinced the Division of Securities, that the Grade A permit could only be held by the actual Entity that owned the cows and actually did the work. In essence the Grade A permit holding corporations in which people purchased shares in order to purchase raw milk was in fact a distribution company, not a licensed dairy farm.

DATCP also said that the raw milk farms were free to devise corporations that were based on the actual farms and farm property if they were the permitted entities that produced the milk. Each shareholder must own a proportionate share of the farm as to TAKE raw milk from the farm in which they are part owners. In short if a raw milk drinker wanted to fork over $30,000.00 and take milk over a period of 20 years the raw milk farms were free to do so.

In a further development of the hearing DATCP said if all owners of the farm and or cows consumed all of products produced by said cows that DATCP has no jurisdiction over that consumption. The raw milk farms were free to do so and not have to hold a Grade A permit for no milk would be offered to the general public. The raw milk farms were also free to lobby for a change in the dairy code to allow the sale of raw milk.

It is the opinion of the raw milk farms of Wisconsin that it doesn’t matter what legal entity we form, DATCP will find fault with it. The farms in question are pursuing the customers needed to drop the Grade A permits and sell the cows to the consumers of raw milk and remove ourselves from the regulations of DATCP.

The flow of milk has not stopped, nor has the interest of new customers/owners who arrive every day, and the movement is growing despite the overwhelming negative press that the farms of Wisconsin and other States have endured over the past four years. Tim Wightman talks to farmers and consumers on a daily basis who are greeted with the same levels of interest in nearly every state of the Union.

In January 2005, a raw milk bill will be submitted to the Wisconsin legislature for the availability of a farmer to sell his milk to the people he wishes to with conditions of safety yet to be ironed out. Tim Wightman is currently drafting the legislation with the help of eight legislators and (at press time) one Senator. Passage will not be easy but as more time passes more people will have experienced the benefits of raw milk, and the farmer who provides it.

Spring 2004: What’s happening in Wisconsin? Hard to say and hard to describe. We’ve been following the saga of Tim Wightman and the several farms who set up cow-share programs in Wisconsin, then when the state found fault with the cow-share programs, interpreted their edicts as permitting farm-share programs. At a meeting last year, the State declared the farm-share program they had set up as unacceptable. As Wightman said in a recent interview with AcresUSA (May 2004), “It doesn’t matter what we do, the state doesn’t want us to do it. . . “ However, the good news is that all three farms are still providing raw milk, their membership is growing and all are in agreement “that we are going to do what our consumers want us to do. The state really doesn’t have a right to get between a farmer and his product or the people who want to buy it.” One state representative, Barbara Gronimous, is working to propose legislation legalizing on-farm raw milk sales in the state, a move that would solve the problem for both bureaucrats and consumers.

Milk Direct Program: The Milk Direct program is the brainchild of Tim Wightman and Gleta Martin of Clearview Acres farm in Hayward, Wisconsin. Working with the Department of Agriculture, Trade and Consumer Protection (DATCP), Tim and Gleta set up a cow-share program that had been pioneered by another farmer in the state. However, Tim and Gleta were not satisfied with the two-page contract that DATCP suggested, finding that it did not provide enough provisions for testing and safety. Tim revised the contract to allow for greater safety provisions and their program was soon supplying milk to 300 individuals.

As reported in Wise Traditions, on September 24, Clearview Acres received a complaint from the state of Wisconsin stating that the provision of raw milk to cow-share owners posed "an imminent public health hazard, " singling out Clearview Acres as the culprit in a local campylobacter outbreak even though only two of the four confirmed cases drank Clearview Acres raw milk, and Clearview Acres milk consistently tested negative for the disease. The outbreak followed on Thanksgiving which means that consumption of underdone turkey was the likely cause—72 percent of turkey is infected with campylobacter.

When Clearview Acres counsel requested documents from DATCP, including any lab tests indicating campylobacter contamination, the state stalled. Finally, on March 18, the department released several inches of documents. No lab tests for camphylobacter were included in the documents. (Tim and Gleta suspect that no tests were actually done.)

The documents indicated that DATCP had encouraged several farmers in the state to set up cow-share programs expecting someone to get sick from raw milk so they could shut the whole program down. Tim's insistence on safety protocols defeated this plan. As Tim and Gleta went ahead with their program, the state sent a spy to buy a cow share and pick up milk weekly. The released documents reveal that the milk was tested for over a year for the presence of listeria and salmonella and that DATCP complained when the tests turned out negative. Then the state tried to take away Gleta's Grade A permit, but was stymied for lack of jurisdiction. Finally, DATCP blamed Clearview Acres milk on the local campylobacter outbreak and sent the cease-and-desist order.

So basically the Wisconsin agency responsible for food safety has been caught deliberately promoting raw milk sales with improper safety protocols in an attempt to cause an outbreak of illness. Tim and Gleta are continuing to defend themselves in administrative proceedings. They expect the case to end up in civil court and result in complete exoneration. After that they will sue the state for harassment and lost income. They have had very positive media coverage in the local press, which has published convincing arguments to counter DATCP's deliberate disinformation campaign (including an article entitled "Raw Milk Should Not Be Considered Health Food") but negative press in the major papers. Meanwhile, about 1100 individuals in the State of Wisconsin are consuming raw milk available through other cow-share programs—with plenty of reports of improved health and none of food-borne illness.

27 APRIL 03: We have reported on the Department of Agriculture, Trade and Consumer Protection's (DATCP) efforts to prohibit cow sharing programs they once endorsed. However, during court proceedings Judge Cheryl Daniels acknowledged that bona fide owners of a milk producer license may consume raw milk directly from the farm. With financial help from the Weston A. Price Foundation, a model corporation has been set up at Clearview Acres in Hayward, Wisconsin. Those desiring raw milk can become nonvoting members of a corporation holding a Grade A licence or the dairy operation of a farm. The language of this corporation will be made available to farmers throughout the country for a modest fee and then can be tailored to the particular state. The completion of these documents has generated intense interest and we are hopeful that this model will be used to bring dairy farmers and raw milk consumers together in many states. For more information, contact the Farm-to-Consumer Legal Defense Fund, farmtoconsumer.org, (703) 208-FARM (3276), .

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