More States Allowing Farmers to Sell Raw Pet Milk
January 19, 2023Raw Milk Risks from a Microbiologist’s Perspective
March 31, 2023By Pete Kennedy, Esq.
December 15, 2024 Update
Since 2016, the meat and poultry sales of Amish farmer Amos Miller have been subject to federal investigation and enforcement. The obvious question has been: when would the government move against his raw dairy operation?
That shoe dropped on January 4, 2024, when agents from the Pennsylvania Department of Agriculture (PDA) raided Miller’s Organic Farm in response to two cases of foodborne illness linked to Miller’s products.
On December 19, 2023, the New York State Department of Health informed PDA of the illness of a child who consumed raw eggnog contaminated with shiga toxin producing E. coli (STEC) “reported to be from MOF” [Miller’s Organic Farm]. The PDA claimed it also had a report of illness from Michigan.
QUALITY OF THE EVIDENCE
According to PDA, the eggnog tested positive for STEC. There are many strains of STEC, but the state did not test to find out whether the strain found in the sick child’s stool sample was a match to the strain in the eggnog; nor did the department look for other possible sources of the contaminant (such as the local water), or check to see whether other individuals were hospitalized for STEC at the same time.
Subsequently, the Michigan Department of Health attributed to STEC the illness of a child whose parents purchased MOF products; test results of the Miller Farm products that the child’s family had on hand were all negative.
After some dairy products on the farm tested positive for listeria, PDA followed up with a Notice of Detention order on January 11, prohibiting the removal of an estimated $100,000 worth of food products from the premises of Miller’s farm on the grounds that all the detained foods were either adulterated or misbranded under Pennsylvania law. PDA later issued a destruction order for all the food under detention.
INJUNCTION
On January 25, after filing an emergency motion, PDA obtained a temporary injunction from Judge Thomas Sponaugle in the Lancaster Court of Common Pleas prohibiting Miller from selling raw milk and cheese until he obtained a permit from PDA and further prohibiting him from selling any food until he registered as a food establishment with PDA and obtained a retail food facility license from the department. The judge granted the injunction ex parte, meaning Miller and his attorney Robert Barnes had no opportunity to present the farmer’s side of the case before Judge Sponaugle issued his order granting the injunction.
COURT PROCEEDINGS
On February 29, the judge held a hearing to determine whether to lift the injunction. Hundreds of Miller’s supporters rallied outside the Lancaster County courthouse. Before the hearing, Barnes submitted testimonials from 354 members of Miller’s food buyers club stating how food from MOF had benefited their health. In addition, four members testified at the hearing on how foods from Amos Miller had improved their own or family members’ health. Judge Sponaugle said that he didn’t doubt the sincerity of those submitting testimonials, but asked, “Why doesn’t he just go get a permit?”1 Barnes’ response was that Miller would get a permit, but that dairy farmers obtaining one can sell only milk and aged cheese, and not other products like butter, kefir and yogurt that Miller’s patrons want.
One of Barnes’ expert witnesses was Margaret Coleman, a medical biologist who formerly worked with the U.S. Department of Agriculture. She reviewed all of the 33 samples that PDA took from Amos’ farm. Eight out of 33 samples showed evidence of harmful microbes, according to PDA. However, Coleman countered by saying that it is not the “presence” of these microbes that matters, but rather the “percentage” of microbes within the cell mass of the sample. The percentage of microbes present were well below the limits of what is considered to be harmful, according to Coleman and FDA standards.
Barnes said during the hearing that maintaining the injunction would be an extraordinary move and that it could make an eventual ruling in favor of Miller meaningless with the injunction having put the farmer out of business long before. Nevertheless, the following day, the judge ruled that the January injunction prohibiting sales of MOF raw milk products would stay in place, amending its terms to allow Miller to sell all other foods.
The judge stated in his opinion that “. . .this court cannot ignore the commonwealth’s regulations requiring a permit to sell raw milk.”2 Judge Sponaugle did leave open the possibility of lifting the injunction if Miller at least began the process of applying for a permit. Barnes had tried to persuade the judge to limit the scope of the injunction to Pennsylvania, disclosing that nearly all the farmer’s sales were to out-of-state customers.
Barnes issued the following statement after the ruling:
“The court correctly found no safety risk from any Amos Miller food, and expressly recognized the sincere testimony of Amos Miller’s food consumers of the real benefits of his food. The court correctly pulled back on the scope of the injunction so that it only prohibits marketing and sale of raw milk products and exempts family and noncommercial use. The court accepts the need people have for Amos Miller’s products, but claims the legislature must fix that need. While we welcome the call for legislative remedy, we will appeal the order, and the members will be filing a civil rights suit against Secretary Redding for violating their constitutional rights. Secretary Redding has annointed himself the Pope of food for the entire country; if he doesn’t bless your food, you’re not allowed to eat it or even possess it. Would anyone in their right mind choose PDA plane food over Amos Miller Amish farmed food? PDA does not have the legal authority to govern the choices of people in Minnesota, North Carolina, Tennessee and every other state of the union outside Pennsylvania. This case will define the future of food freedom in America and it has only just begun.”3
WHAT’S NEXT
After surviving a seven-year federal investigation and enforcement action against his meat and poultry sales, there’s no doubting Miller’s resolve to make it through his battle with PDA.
Miller’s case can help other Pennsylvania farmers. PDA agreed almost five years ago to issue regulations legalizing raw butter sales but has yet to do so. PDA arguably also has the power to issue regulations legalizing sales of other raw dairy products like kefir, cream and yogurt without any further authorization from the legislature. Miller’s case could be the catalyst to make those changes in the regulations happen. The case could spur the legislature to act as well; it used to be the law in Pennsylvania that PDA didn’t regulate an on-farm store as long as over half the sales in the store were for products from that farm. Reinstatement of that law or a similar measure could do away with the need for many farms to register as a food establishment with PDA and to obtain a retail food facility license from the department.
Barnes is pursuing several different tracks of litigation. He has filed a motion to stay (not enforce) the injunction while Miller is appealing the trial court’s decision. As part of the Notice of Appeal, Barnes has filed a motion to modify the injunction so it would no longer apply to interstate commerce in raw dairy products. He is also filing a motion to set aside PDA’s destruction order on the food detained at Miller’s farm.
Finally, he will be filing a federal class action lawsuit (a 1983 suit) on behalf of Miller’s members against Pennsylvania Secretary of Agriculture Russell Redding and other employees of the department for deprivation of their civil and constitutional rights4; the members owned some of the food PDA detained.
The main purpose of the class action lawsuit is to establish a fundamental constitutional right to privacy and bodily autonomy protecting the individual’s right to decide their own diet; that right includes the ability to purchase unregulated traditional foods such as dairy, meat, and poultry direct from the farm unless the government can show that the food is either dangerous or being marketed in a deceptive way. The traditional foodways in America were unregulated farmer-to-consumer direct commerce; the Miller case has a chance to strengthen the legal protection for that way of life.
UPDATE
On March 19, Judge Sponaugle modified the injunction so that it only applies within Pennsylvania, lifting the ban on raw dairy sales outside the state. The modified injunction could stay in effect until the appellate court makes a ruling on Miller’s case.
A GiveSendGo fundraiser has raised over $285,000 of the $800,000 goal. To donate, visit givesendgo.com/supportamosmiller.
REFERENCES
1. Gruber, P. (2024, February 29). Amos Miller Remains Under Raw Milk Injunction as Judge Deliberates. Lancaster Farming. https://www.lancasterfarming.com/farming-news/dairy/amos-miller-remains-under-raw-milk-injunction-as-judge-deliberates/article_8584eb00-d75b-11ee-a6b7-cf32ece6ca36.html
2. Barr, B. (2024, March 4). Judge rules that Lancaster County farmer can’t sell raw milk to the public. WGAL8. https://www.wgal.com/article/lancaster-county-judge-says-farmercant-sell-raw-milk-to-the-public/60050558
3. Weaver, J. (2024, March 1). Judge makes ruling in Lancaster County farmer’s raw milk case. MSN. https://www.msn.com/en-us/news/crime/judge-makes-ruling-in-lancastercounty-farmer-s-raw-milk-case/ar-BB1jcct8
4. The Shepherdess. (2024, March 7). “AMISH FARMER MOVES TO TRIAL” Robert Barnes on Next Steps 2024 | Amos Miller Organic Farm. YouTube. https://www.youtube.com/watch?v=qyKUIVE7Uzw
March 4, 2023 Update
In 2016 the United States Department of Agriculture (USDA) began investigating Lancaster County dairy farmer Amos Miller for alleged violations of federal meat and poultry inspection laws. The civil court action the USDA subsequently launched against Miller1 and his business, Miller’s Organic Farm, is closer to a final resolution. The latest development in the case opens the way for the farmer and the department to resolve the case.
On December 9, Miller and the United States government entered into a settlement (“Consent Decree”) over fines and reimbursement to the USDA for expenses incurred related to Miller being in civil contempt of a 2019 injunction the court entered against Miller prohibiting the farmer “from committing continued violations of the Federal Meat Inspection Act. . . . And the Poultry Products Inspection Act. . . .”2 In a prior court action, Judge Edward G. Smith had levied a $250,000 fine against Miller and awarded USDA reimbursement of over $55,000 in the case.
Under the December 9 agreement, Miller will reimburse USDA its expenses and pay $30,000 of the assessed fine to the court with the remainder of the fine being “held in abeyance.” The consent decree leaves open the possibility that the court could rescind the remainder of the fine if Miller complies with the terms of the agreement. Miller currently has thousands of dollars of meat and poultry products in inventory that USDA orders prohibit him from selling or releasing in any way. The consent agreement provides that he could sell some of the inventory to members of his buyers club by December 31. As for the remainder of the product in inventory under the agreement, Miller has the options of either separating some of it for his personal use, selling it to a licensed pet food manufacturer or voluntarily destroying it. After December 31, 2022, all product still in Miller’s inventory will be subject to immediate denaturing and destruction. Under the agreement, once the product is denatured “acceptable destruction methods and means include (a) deposit in a landfill, (b) deposit in compost, (c) rendering and (d) diverting the product to pet food.”2
Once Miller carries out the terms of the consent decree, the path should be clear for him to reach agreement with the USDA on a custom slaughter plan that will allow him to slaughter and process animals on his farm without inspectors being present. The custom slaughter plan could set a favorable precedent for farmers and custom slaughter operators around the country. With the widespread publicity the Miller case has received, the USDA and the court know that many are watching what they do, something that bodes well for Miller to be able to continue making a living producing healthy food for his grateful patrons.
1. United States of America v. Miller’s Organic Farm and Amos Miller. The case is in the United States District Court for the Eastern District of Pennsylvania.
2. “Second Consent Decree,” United States of America v. Miller’s Organic Farm and Amos Miller, Civil Action No. 19-cv-1435.
