On June 17, the Maine Supreme Court upheld a lower court ruling that Blue Hill Dairy farmer Dan Brown had violated state law by selling raw milk without a license, selling raw milk without labeling it as such, and operating a food establishment without a license. Brown had contended that the state was estopped (prohibited) from requiring him to obtain a license when Brown had relied on the pre-2009 state policy of allowing the unlicensed on-farm sale of raw milk to start up his dairy; the farmer claimed he would have to spend up to sixty-two thousand dollars to be in compliance with licensing requirements. He also claimed that the Blue Hill food sovereignty ordinance allowing the unlicensed, unregulated sale of food direct from producer to consumer controlled over any conflicting state food and dairy laws (see Summer 2014 update below for background).
In rejecting Brown’s estoppel argument, the Supreme Court held that Brown had reasonably relied on the state’s former position on unlicensed on-farm raw milk sales in leaving his former job and spending thousands of dollars on starting up a dairy; but since the state was not guilty of misrepresentation when it told Brown in 2006 that he could sell raw milk without a license, there was no estoppel. In other words, the government can change its policy on a matter anytime it wants and as long as it didn’t misrepresent its original policy there is no estoppel no matter how much individuals relied on a government statement about its policy—the court’s message, in effect, is that it’s too bad for Brown that he trusted the government.
Regarding the farmer’s argument that the Blue Hill food sovereignty ordinance controlled over state law, the court did not strike down the ordinance but instead construed it to read that it only exempted “local food producers and processors only from municipal licensing and inspection requirements.” The court went on to state, “The ordinance would be constitutionally invalid and preempted only to the extent that it purports to exempt from state or federal requirements the distribution of milk and operation of food establishments.” Once again a court backed the government line that the state needs to regulate direct commerce between farmer and consumer to protect people from themselves. Maine, like other states, continues to cater to corporate interests under the guise of protecting the public health. Brown remarked, “This isn’t about Dan Brown or Farmer Brown anymore; they’re telling you that you don’t have the right to come get milk from a farmer.”
There have been bills before the last two sessions at the Maine legislature that would allow the unlicensed on-farm sale of raw milk; Heather Retberg, one of the principal leaders in the Maine food sovereignty movement, indicated there will be another raw milk bill before the legislature this next session. Dan Brown might not have been successful in court but the publicity and interest generated by his case can still lead to advances in food freedom of choice in Maine and elsewhere.
On May 13 Blue Hill Dairy farmer Dan Brown had his case heard before the Maine Supreme Court. Farm-to-Consumer Legal Defense Fund General Counsel Gary Cox argued Brown’s case before the court.
Brown was appealing a lower court ruling finding him guilty of selling raw milk without a license, selling raw milk without labeling it as such, and operating a retail food establishment without a license. Brown and his wife Judy sold raw dairy products and other foods at the couple’s farm stand. In 2011 the town of Blue Hill passed a food sovereignty ordinance allowing the direct sale of food from farmer to consumer without licensing or inspection requirements. Later that year, the Maine Department of Agriculture, Conservation and Forestry (DACF) filed suit against Brown in a challenge to the food sovereignty ordinance seeking an injunction against the farmer as well as fines for violations of the state food and dairy code. In April of last year, Hancock Superior Court Judge Ann Murray fined Brown $1,000 and enjoined him from further violations of the laws she found him guilty of violating.
During the hearing, the Supreme Court justices did not spend any time on the issue of whether a local food ordinance controlled over conflicting state laws but rather focused on a change in the state policy on raw milk sales. Until 2009, the state allowed the unlicensed sale of raw milk on the farm as long as the farmer did not advertise. That year, DACF required those selling on the farm to get a Milk Distributor Permit even though the laws on the books had not changed. Before 2009, the term “milk distributor” had never been applied to a raw milk producer selling on the farm.
During the hearing, Cox argued that the state was estopped [prohibited] from changing the law when there hadn’t been any change in Maine statutes and regulations because Brown had relied on the state policy in effect when he had started up his operation in 2006. The attorney claimed that it would have cost the farmer up to $62,000 to be in compliance with the licensing requirements and that Brown should not have to spend that money since he only started up a dairy due to the state allowing unlicensed on-farm sales of raw milk. Both Brown and his wife had quit their jobs to start up the dairy farm.
Maine Assistant Attorney General Mark Randlett spent most of his time arguing before the Supreme Court that Brown needed to get licensed to protect the public health and that the public health interest controls over any detriment Brown might have suffered in relying on a policy the state had for 30 years. Justice Joseph Jabar responded to Randlett’s argument by asking, “So the government never has to stand good by its stated policy, as long as it has a legitimate interest?”
Brown no longer has the dairy and has shut down his farm stand. He deserves credit for seeing the case through to the end; it’s an important one for the right to buy direct from unlicensed, unregulated producers without government interference. The Supreme Court could be issuing a ruling on the case sometime this summer.
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.