On August 2 Pennsylvania State Senator Mike Folmer hosted the “Real Deal About Real Milk” Freedom and Liberty Seminar in Lebanon; approximately three hundred raw milk consumers and farmers heard presentations on science, health and legal issues pertaining to raw milk. The primary focus of the seminar was on the question of whether it is necessary for raw milk producers in Pennsylvania, selling directly to consumers, to obtain a permit from the Pennsylvania Department of Agriculture (PDA). Talks were given by representatives of four different organizations: the Communities Alliance for Responsible Eco-farming (C.A.R.E.), a private buyers club consisting of over 3800 consumers and farmers; the Pennsylvania Independent Consumers and Farmers Association (PICA), a group formed in response to the PDA-led raid at Mark Nolt’s farm last August; the Weston A. Price Foundation (WAPF); and the Farm-to-Consumer Legal Defense Fund (FTCLDF). At the end of the day, it was clear that all four organizations were united in their support of the right of Pennsylvania farmers to sell raw milk and raw milk products they produce direct to consumers without a permit.
Bill Reil, Vice President of PICFA and an expert on the Constitution of the Commonwealth of Pennsylvania, was persuasive in arguing that the right to sell raw milk direct to consumers without a permit was already guaranteed by the commonwealth’s constitution. Reil cited the Declaration of Rights contained in Article 1 of the Pennsylvania constitution which provides: ”All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and pursuing their own happiness.”
He explained that these rights are forever protected by Section 25 of the Declaration of Rights which states: “To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate.”
At the time the Pennsylvania constitution went into effect, the right of dairy farmers to sell direct to consumers without a permit was recognized—meaning that any subsequent requirement of a permit for a producer to sell raw milk directly to the consumer would violate the constitution. Riel’s talk had the attention of the farmers in the audience. By the end of the seminar, a number of licensed farmers were speaking to him about the possibility of dropping their permits.
In attendance at the seminar was Bill Chirdon, Director of PDA’s Bureau of Food Safety and Laboratory Services. Chirdon is trying to convince unlicensed farmers selling raw milk to get permits. He has issued warning letters to at least fifteen farmers, eleven of whom are C.A.R.E. members, informing them that they must obtain a raw milk permit to be in compliance with Pennsylvania law. There is evidence that FDA is putting considerable pressure on Chirdon to get all Pennsylvania farmers selling raw milk licensed.
Glen Wise is an important test case for the agency in their attempts to get all milk producers licensed. Glen is facing a hearing before a magistrate on a charge of selling raw milk without a permit at a farmers’ market in Palmyra (see Wise Traditions, Summer 2008). The hearing has been postponed while the agency is paying for all the testing the farmer needs to have in order to get licensed. Glen has been pressured to get a permit by members of the Mennonite community in which he resides. Even if Glen obtains a permit, it still would not allow him to sell all of the raw milk products he currently provides to his customers. Pennsylvania law prohibits the sale of all raw dairy products other than raw milk and raw cheese aged more than sixty days.
It is unclear at this time whether the four organizations will resort to the courts or the legislature to get the right to sell direct without a permit recognized by the state. Senator Folmer indicated it would be difficult to pass legislation codifying an exception to the permit requirement in a statute. If Bill Reil is correct, the exception is already guaranteed in law and all that is needed is for PDA to change its enforcement policy on the permit requirement to one that obeys the commonwealth’s constitution.
Pennsylvania dairy farmer Glen Wise has also been charged with selling raw milk without a permit. Unlike Mark Nolt, Elizabethtown dairy farmer Glen Wise is a member of the private milk club CARE (Community Alliance for Responsible Eco-farming). Glen sells raw dairy products to CARE members only. Since last fall, there appeared to be a truce between CARE and PDA. Last October PDA suspended an action attempting to convict Bird-In-Hand dairy farmer Levi Miller on the charge of offering to sell raw milk without a permit. Since that time, the agency had not taken any other action against CARE farmers until April of this year when Glen received three citations for selling raw milk without a permit.
Glen’s hearing was held on May 6. Glen acted as his own attorney and did an excellent job, getting two of the three citations dropped and the fine on the third citation reduced to from $300 to $50.
PDA’s main witness at the hearing was Joe Goetz, an employee of the department’s Bureau of Food Safety and Laboratory Services. Goetz testified that he purchased raw dairy products from Glen on three occasions (November 14, January 8 and March 8). On cross-examination Glen elicited testimony from Goetz that the PDA employee was a CARE member and that he had signed the CARE contract. Clause 7 of the CARE member contract reads as follows: “P.C.M (private CARE member) certifies under penalty of perjury that he/she is not a government agent, informant, contractor or other party that is trying to entrap or hurt P.F. (private farmer) or his farm in any way. P.CM. shall hold P.F. harmless and shall indemnify him from any and all losses, costs, claims, damages, actions, causes of action, demands or liabilities including reasonable attorney’s fees, arising in any way whatsoever out of this Agreement.”
Since taking over as chief of the Bureau of Food Safety and Laboratory Services, Chirdon has frequently resorted to the tactic of having undercover agents purchase raw dairy products from unlicensed farmers. PDA agents have purchased products from Mark Nolt on at least ten different occasions and from Glen at least four times as well. Contrast this with Chirdon’s predecessor Bobby McLean who regarded the CARE farmers as not being under PDA’s jurisdiction, leaving them alone.
Shortly after his hearing, Glen received a fourth citation from PDA. The citation was for the alleged sale of raw milk at a farmers’ market on September 15, 2007. In October 2007 Chirdon gave Glen a license application encouraging him to obtain a retail raw milk permit. This latest citation raises two questions: (1) why Glen received this citation after the others when the other citations concerned alleged violations occurring at times after September 15; and (2) why PDA issued a citation for an alleged violation occurring a month before giving the farmer a license application. It appears that this latest citation was issued out of vindictiveness for Glen’s success at the May 6 hearing.
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.