On February 2 Federal District Court Judge Lawrence F. Stengel ordered a permanent injunction against dairy farmer Dan Allgyer prohibiting Allgyer from distributing raw milk and raw milk products across state lines; under Judge Stengel’s order, the injunction was to be in place for a minimum of five years (see Wise Traditions Spring and Summer 2010 and Summer 2011 issue for background).
In a memorandum opinion accompanying the order, Stengel found that Allgyer sold raw milk to members of Grassfed On The Hill, a food buyers club, at various distribution points in Maryland and the District of Columbia in violation of federal labeling laws (the milk containers Allgyer distributed were unlabeled) and the federal regulation prohibiting raw milk and raw milk products (other than raw cheese aged at least 60 days) in interstate commerce. In his opinion the judge took a broad view of what constituted interstate commerce, stating, “the purchase of raw milk by one who traveled between states to obtain it, or traveled between states before consuming it or sharing it friends or family members implicates commerce….” Similar to other rulings in recent food rights cases, Judge Stengel refused to recognize the distinction between public and private distribution, rejecting the argument that the sale of milk through a private membership association cannot be regulated by FDA.
Among other terms of the judge’s order, Allgyer was required to keep a customer list of all people to whom he sold raw milk (under the injunction the farmer could still sell raw milk within the state of Pennsylvania); to this list, FDA was to have immediate access upon the agency’s request. FDA unsuccessfully sought for the order to include giving the agency the power to conduct unlimited inspections of Allgyer’s farm and to be paid for the inspections and other work monitoring Allgyer’s business operation at rates of up to over one hundred dollars per hour. Judge Stengel held that these requirements were not necessary since the violations in the case did not involve adulterated food.
Shortly after the judge ordered the injunction, the Allgyer family made the decision to close their farm, shutting down a dairy that had benefited the health of hundreds of families without a single accusation that raw milk produced by the farm had ever made anyone sick. FDA’s investigation of Allgyer is further evidence that its agenda has little to do with protecting the public health. FDA is more interested in prosecuting raw milk producers than it is in holding companies like Wright County Egg and Peanut Corporation of America accountable for their actions. The agency’s misuse of taxpayer money in attacking freedom of food choice is becoming more obvious all the time.
Dan Allgyer Court Decision (138KB PDF)
On April 26, the Food and Drug Administration (FDA) issued a press release announcing that the U.S. Department of Justice (DOJ), at the agency’s request, had filed a complaint for a permanent injunction against Dan Allgyer, owner of Rainbow Acres Farm, in Kinzers, Pennsylvania for distributing unpasteurized milk for human consumption in interstate commerce. In seeking the injunction, DOJ alleged that Allgyer’s sale and distribution of raw milk in Maryland violated the federal ban on raw milk for human consumption in interstate commerce, as well as violating federal law on misbranding since the containers of raw milk the undercover agents purchased did not have any labels. [See Wise Traditions Summer 2010 issue for background.]
The complaint disclosed that in late 2009 an investigator in FDA’s Baltimore District Office used aliases to join Grassfed On The Hill, a buyers club consisting of members from Maryland and the District of Columbia who were obtaining food from Rainbow Acres. “Between December 2009 and March 2011, an FDA investigator visited the Grassfedonthehill user group website and the Rainbow Acres online ordering website and placed orders for unpasteurized cow milk on 23 occasions.” FDA investigators picked up the raw milk orders at private residences of Grassfed On The Hill members in Maryland. An FDA laboratory analyzed twelve of the milk samples obtained by the investigators and confirmed all were unpasteurized.
The public reaction to the FDA press release and complaint for injunction was immediate outrage. There had never been a case of foodborne illness attributed to Rainbow Acres; there had never been an accusation the farm was distributing adulterated food. With the federal budget crunch and unaddressed problems in so many other areas of the food system, why was FDA spending taxpayer dollars on raw milk enforcement when there was no claim that the food Allgyer produced had made anyone sick? The FDA’s action only served to focus more of the public’s attention on raw milk, a food that has already received widespread media attention and is at the center of the ongoing battle over food rights in this country.
In response to the FDA enforcement, Liz Reitzig and Karine Bouis-Towe, the leaders of Grassfed On The Hill, organized a “Rally for Food and Farm Freedom,” which was held in Washington, DC on May 16. The rally, which drew around four hundred people on a Monday morning, was successful in bringing to the public’s attention the ongoing denial by FDA of raw milk consumers’ freedom of choice and the agency’s harassment of raw milk dairies. There was significant media coverage of the event, getting the word out about FDA’s contempt for those wanting to obtain the food of their choice from the source of their choice. In the days following the rally, numerous articles in the mainstream media were critical of FDA’s actions against Rainbow Acres Farm.
The outrage against FDA’s actions extended to Congress as well. On May 11 Representative Ron Paul of Texas introduced H.R. 1830, a bill that would effectively overturn the federal prohibition on raw milk for human consumption in interstate commerce. Paul, who had introduced the same bill in the last session of Congress, remarked, “Hard as it is to believe, the federal government is actually spending time and money prosecuting small businesses for the “crime” of meeting their customer’s demand for unpasteurized milk! . . . Americans have the right to consume these products without having the federal government second-guess their judgment about what products best promote health.”
While FDA is going after a farmer whose products have done nothing but benefit the health of thousands, more evidence is emerging that the agency’s disproportionate use of resources on raw enforcement is for reasons other than protecting the public health. In a talk given at the recent Third Annual International Raw Milk Symposium in Minneapolis, Dr. Ted Beals, a retired pathologist and expert witness in several raw milk court cases, noted that over the past twelve years (1999-2011) there have been seventeen foodborne illness outbreaks that have been attributed to fluid raw milk consumption in this country—the number of people sickened from raw milk consumption averaged out to forty-two per year. CDC data has indicated that as of 2008 there were over nine million raw milk drinkers in this country—a figure that is higher today. In Dr. Beal’s words, “From the perspective of a National Public Health professional looking at an estimated total of 48,000,000 foodborne illnesses each year [CDC’s current estimate]; or from the perspective of a healthcare professional looking at a total of 90,771 confirmed bacterial foodborne infections each year; there is no rational justification to focus national attention on raw milk which may be associated with an average of forty-two illnesses among the more than nine million people who have chosen to drink milk in its fresh unprocessed form.
The public reaction to the FDA’s attempted shutdown of Rainbow Acres should remind FDA that it efforts to ban raw milk sales and distribution are failing more than ever. The agency has continually refused to listen to anyone with a view on raw milk that differs from its own—it needs to respect freedom of choice. FDA’s position on raw milk is increasingly losing credibility; it is becoming more clear that the interstate ban is an economic regulation disguised as a public health measure. It is time for FDA to transfer resources from raw milk enforcement to other areas where the agency could actually protect the public health, e.g., the regulation of imported food.
Those supporting H.R. 1830 are encouraged to send a message to their legislators through the online petition at www.farmtoconsumer.org/HR1830 (STATUS: CLOSED).
Pete Kennedy is a Florida attorney who has worked on issues governing raw milk production and distribution since 2004. He compiled a summary of raw milk laws in each of the fifty states and is currently a consultant for WAPF on, among other things, policies and laws regarding raw milk. Pete was a founding board member of the Farm-to-Consumer Legal Defense Fund (FTCLDF) and served as vice president and then president for many years. He has consulted on and drafted raw milk, cottage foods, and food sovereignty legislation; drafted and reviewed herdshare agreements; worked on embargo, seizure, and recall cases involving raw dairy products; worked on foodborne illness outbreaks attributed to raw milk consumption; handled issues involving on-farm slaughter, custom meat, and poultry processing as well as problems with zoning and local ordinances.