Charter Challenge to Canada’s Raw Milk Ban

In Ontario, a constitutional (charter) challenge to a national and provincial ban on the sale and distribution of raw milk is nearing the finish. In November, attorneys for the 19 consumers and 2 farmers (applicants) who filed the challenge, and attorneys for the Attorney General of Ontario, the Attorney General of Canada, the Dairy Farmers of Ontario and the Dairy Farmers of Canada will argue the case before the Ontario Superior Court of Justice in what should be the final phase of the litigation. Among those challenging the ban in court is dairy farmer Elisa Vander Hout whose husband is Michael Schmidt, the one who has done more to promote and increase access to raw milk than anyone in Canada.

The main claim of the applicants is that the ban violates the provision in the Canadian Charter of Rights and Freedoms guaranteeing freedom of conscience and religion. A brief filed in the case states that the two farmers, Vander Hout and Paul Noble, “each believes as a matter of conscience in the health benefits of raw milk and that they have a duty to provide it to consumers who share their beliefs.” The 19 consumers have purchased raw milk, consumed it, and provided it to their families because “they believe as a matter of conscience in the health benefits of raw milk. They further believe that as a matter of conscience that they and their families need to consume raw milk because doing so protects their health.”

The case boils down to a battle of dueling experts over the safety and risks of raw milk consumption. Thanks to affidavits from microbiologist Peg Coleman and Dr. Nadine Ijaz, the record in the litigation establishes more strongly than ever that the Canadian raw milk ban is not about public health but rather about protecting the market share of the country’s powerful dairy cartel. Their testimony shows how the science on raw milk safety and benefits has strengthened considerably in recent years. Applicants’ attorney, Queen’s counsel Ian Blue, points out in a court filing that calling raw milk a public health risk:

  • ignores the fact that raw milk has unique health benefits not possessed by pasteurized milk;
  • is based on dated and incomplete pathogen prevalence and outbreak reports;
  • ignores that in the western world illnesses from raw milk are a de minimis food safety and public health issue;
  • ignores the role of openness, scrutiny and food safety management programs in minimizing the health risk of raw milk; and
  • ignores that almost everywhere else and in the western world, the sale and distribution of raw milk is legal; and
  • misses that over the last 20 years, the legalization of the sale of raw milk [in the U.S. and elsewhere] has significantly increased while outbreaks of illnesses from raw milk have significantly decreased.

At issue in the case has been a 2018 study finding that “the rate of unpasteurized milk-associated outbreaks has been declining since 2010, despite increasing legal distribution. Controlling for growth in population and consumption, the outbreak rate has effectively decreased by 74% since 2005” (the study looked at outbreaks from 2005 to 2018). The government has not been able to discredit the study during the litigation.

The government’s position during the litigation has been that the prevalence of pathogens in raw milk is reason enough to maintain the ban; this is a double standard applied to raw milk–if it’s not perfect then sales should be illegal. The applicants’ response has been to show that pathogen prevalence alone is not a reliable indicator of risk because of risk-mitigating factors such as the dose of the pathogen (is there enough in the milk to make someone sick); the consumer’s immunological status; production, storage and transport conditions of the milk; and the mitigating presence of beneficial bacteria. In her affidavit, Ijaz noted, “The risk per serving of foodborne illness…associated with consumption of milk procured in its raw state –while not negligible–is significantly lower than that from other foods commonly implicated in foodborne outbreaks, i.e., leafy green vegetables, ground beef hamburger, home cooked chicken.”

The government has moved to exclude evidence provided by Coleman and Ijaz, among others, on the grounds that they are biased in favor of raw milk. In commenting on the motion in a court document, Blue observed that “the lawyer’s law is sometimes phrased as when the facts are against you, argue the law. When the law is against you, argue the facts. And when both the law and the facts are against you, call the other side names.” When asked by Blue during cross-examination, two of the government’s witnesses acknowledged that informed consumers should have the freedom to consume raw milk.

Blue, a litigator with 50 years’ experience in the courts, has estimated that there are over 30,000 pages of documents in the case. The dairy cartel has a strong influence in the country but, with a fair-minded judge, this is a winnable case. Kudos to Ian Blue and his law firm of Gardiner Roberts LLP for providing representation for applicants at a substantial discount.

2 thoughts on “Charter Challenge to Canada’s Raw Milk Ban

  1. I can’t say that this would definitely be the case, but I wonder if this case would have a better chance of success if it was proposing legalization within supply management, under supervision of the provincial milk marketing boards, rather than exempted from marketing board oversight? Would the DFC and DFO still have stepped in to be intervenors for the opposition?

    If this were done under supply management, perhaps marketing boards could create a new class of “specialty quota” for unpasteurized dairy (fluid milk, yogurt, kefir, butter, etc.), for distribution via either farm-gate sales or herdsharing for example.

    Raw milk could be legalized within supply management and still maintain safety. It is important that conventional dairy farms NOT be selling conventionally-produced milk to the public. Thus, a rule for licensing could be that a farm can be licensed to supply to processors, OR licensed to distribute raw milk for direct consumption, but not licensed to do both. You can’t serve two masters. Milk produced by industrial methods has a much higher risk of containing pathogens. See the “Two Types of Raw Milk” article on the RAWMI website: https://www.rawmilkinstitute.org/updates/two-types-of-raw-milk

    Criteria for licensing should be that this new quota is only available to grass-fed micro-dairies. A limit on herd-size is appropriate, but this should be reasonably large enough to allow the farmer to make a living. I.e. the three cow upper limit under Oregon law is B.S.

    And none of this pitiful “75% grass-fed” standard that the DFC has set for their conventional farmers. Ever wonder why “grass-fed butter” in Canada is a sickly pale yellow in colour whereas NZ grass-fed butter is a vivid bright yellow? Grass-fed should mean at least 90% or 92% of diet is long-stem forage by dry weight, closer to NZ standards. There must be an appropriate minimum standard for acreage per animal and time on the pasture (which depends on climate of course), plus nutrition management during months when animals can’t be pastured.

    And having raw milk specific food safety standards which all licensees must follow, such as RAWMI Common Standards will also ensure safety. As well as farms publishing their milk sample test results on-line as some raw milk farms in the U.S. do.

    I wish the applicants success in winning this case, because it will be a win for all raw milk farmers and consumers across Canada. But if they don’t win, then maybe the DFO and DFC should sit down with them and discuss legalization under marketing board supervision. That would be the compromise.

  2. The farmers deserve to win!
    The Canadian Government position in prohibiting the sale of raw drinking milk is not based on science, but is political and supportive of big business whilst penalising most dairy farmers and the general public.
    The same situation exists in Australia and is hypocritical. Hypocritical because the peak Federal food standards agency, FOOD STANDARDS AUSTRALIA NEW ZEALAND ( Regulations 1986 to current to harmonise food standards between Australia and New Zealand ), allows New Zealand Dairy farmers but not Australia’s farmers to sell raw drinking milk.
    This is just one example of the non scientific arguments being used against raw drinking milk.

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