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December 1, 2012AB1735 California Coliform Standard
December 17, 2012
By Pete Kennedy, Esq.
A hearty thank you for all your support during our recent raw milk episodes (see Wise Traditions, Summer and Fall, 2008. Thank you for all the cards, letters and phone calls, for participating at the rallies and for your offers to help at the farm. Thank you for your contributions and understanding.
Special thanks to Lyn Rales and her son Matt for hosting the fund-raiser last summer. Thank you to the speakers Sally, Joel, Bill and others. Thanks for all for attending and your many contributions.
Thank you to our many loyal patrons for standing with us in our time of trials. This is life but we continue to strive for a better tomorrow. To everyone, your kindness was and continues to be greatly appreciated! — Mark and Maryann Nolt and Family
Bill Chirdon, Director of PDA’s Bureau of Food Safety and Laboratory Services, and other agency employees raided Newville farmer Mark Nolt for a third time, once again confiscating thousands of dollars worth of food.
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.
Meanwhile, PDA is continuing its efforts to shut down another unpermitted farmer, Mark Nolt. On August 12, PDA filed a motion in the Commonwealth Court of Pennsylvania seeking a hearing for the issuance of a permanent injunction against Mark selling all raw dairy products. The department has abandoned any hope of convincing Mark to obtain a raw milk permit and is set on trying to take away the farmer’s livelihood.
Previously, on July 2, 2007, the Commonwealth Court of Pennsylvania had issued a preliminary injunction enjoining Mark from selling raw milk without a permit and from selling manufactured raw dairy products. After PDA employees had purchased raw milk and raw milk products twice from Mark at a Carlisle farmers’ market on July 6 and 13, the Commonwealth Court issued a contempt order on August 2, 2007 authorizing PDA to seize and discard any and all raw milk and raw milk products in Mark’s custody and control. The order also authorized the Attorney General of the Commonwealth of Pennsylvania to arrest Mark and incarcerate him until such time as he indicated to the Court that he would no longer offer for sale “any dairy manufactured from or containing raw milk without obtaining the proper permit.” Pursuant to the order, the agency executed two raids on Mark’s farm on August 10, 2007 and this past April 25, confiscating over $100,000 in product, supplies and equipment (see Wise Traditions Summer 2008).
On June 24, 2008, the Commonwealth Court issued an order directing PDA to show cause why the contempt order should not be dismissed for want of prosecution. The order gave the agency thirty days to respond. When the deadline passed without any response from PDA, the Court issued another order on August 1, dismissing the contempt order due to PDA’s failure to file a timely reply to the June 24 order.
PDA reacted to the dismissal of the contempt charge by sending undercover agents to Mark’s farm to purchase raw dairy products on August 4 and 8. Mark was present on the farm for the first attempted buy and asked the two agents, “Did Bill send you?”—meaning Bill Chirdon; the agents left red-faced and empty-handed.
Four days later when Mark was not present, Pennsylvania State Trooper Kirk Perkins had more success. Perkins was able to purchase two gallons of raw milk from Mark’s son, telling him that Mark’s friend and PICFA President Jonas Stoltzfus had mentioned that Mark was selling raw milk. Stoltzfus had never talked to Perkins. An affidavit from Perkins was included in the August 12 motion for a hearing to consider a permanent injunction against Mark.
No date as of this writing had been set for a hearing to consider the agency’s motion. The court could reject the motion because the issues PDA wants the court to address could have been brought up by a timely response to the June 24 show cause order. Mark’s customers are afraid that if the permanent injunction is granted, PDA will be raiding his farm again.
Protesters at the hearing for raw milk dairy farmer Mark Nolt, organized by Gettysburg chapter leader Maureen Diaz and Kimberly Hartke, WAPF public relations pro, who saw to it that the event was publicized in 17 newspapers, two national magazines, five television newscasts and over 50 internet blogs.
Pennsylvania Department of Agriculture (PDA) officials (including Bill Chirdon, Director of PDA’s Bureau of Food Safety and Laboratory Services) and state police raided the farm of Newville dairyman Mark Nolt on April 25, arresting Nolt and seizing up to $50,000 worth of product, supplies and equipment. Mark was taken to a hearing before a magisterial district judge in Mount Holly Springs where he was charged with five counts of selling raw milk without a permit. After the hearing, Mark was released, returning to his farm on foot rather than accepting a ride in a police car.
The state’s treatment of Mark and the peaceful gathering of onlookers was a disgrace. At one time there were six state police cars on the premises. When Mark tried to ask a policeman what the state’s authority was for being on his property, the policeman kept cutting him off as if he were trying to provoke a confrontation. The police threatened to arrest anyone who set foot onto Mark’s property, even denying access to Mark’s father and brother who live on the same lane.
In executing the search warrant, PDA seized items they were not authorized to take. The warrant stated that the agency was to seize only equipment used to bottle or package milk and products manufactured from milk. PDA ignored the warrant, taking parts to a cream separator and pieces of cheesemaking implements.
In applying for the warrant, Chirdon also ignored the department’s own conditions for seizure recently set forth in a PDA guidance document entitled “Permits Allowing the Sale of Raw Milk for Human Consumption” (dated March 20, 2008). According to the document, PDA is only to seize raw milk and raw milk products when, in the opinion of the Secretary of the department, the products are either “considered unsafe or a menace to public health.” There was no allegation in Chirdon’s application that any product produced by Mark was unsafe. The agency had tried unsuccessfully in the past to link Mark’s products to foodborne illness.
On May 5 Mark had a hearing in Mount Holly Springs in connection with the five citations for selling raw milk without a permit. The magistrate found him guilty on four of the five counts, fining him $4300. Mark indicated that he planned to appeal the fine. Unfortunately, this was not the end of Mark’s troubles.
In an appearance April 30 before a magistrate at the Newville Magisterial District Court, Mark was informed by the judge that he was facing two additional charges for selling raw milk without a permit. A hearing has been scheduled for June 3 in Newville. Mark has also been informed that there are an additional three citations pending against him for selling raw milk without a permit.
It is possible that the FDA may also take action. Two FDA officials were present at Mark’s May 5 hearing. In August 2007, the agency sent Mark a warning letter informing him that he was selling unpasteurized milk and milk products in interstate commerce for human consumption in violation of 21 CFR 1240.61.
Efforts have been made to help Mark, his wife Maryann and their eight children. The Farm-to-Consumer Foundation has donated money to Mark. In addition, a June 21 fundraiser has been planned for them (see details at www.westonaprice.org/calendar/MarkNoltWebInvite.pdf).
The April 25 raid was the second time PDA executed a seizure against Mark. On August 10, 2007, the agency took over $25,000 of product, supplies and equipment, executing the seizure shortly after the Commonwealth Court found Mark in contempt for violating an injunction prohibiting him from selling raw milk and raw milk products without a permit. Since dropping his raw milk permit in 2006, Mark has contended that he was not subject to the state licensing requirement because he is exercising his right to sell via private contract to his customers.
Mark is considering becoming a member of both CARE (Community Alliance for Responsible Eco-farming) and the Farm-to-Consumer Legal Defense Fund (FTCLDF), but as of this writing he had not yet joined either organization. For the latest developments on the cases covered in this update, go to www.thecompletepatient.com. Those who have not joined the Farm-to-Consumer Legal Defense Fund are encouraged to do so. Membership applications are available online at www.farmtoconsumer.org or by calling (703) 208-FARM (3276); the mailing address is 8116 Arlington Blvd, Suite 263, Falls Church, VA 22042.
While Mark battles it out in the courts, two bills are working their way through the Pennsylvania legislature. One would require the Department of Agriculture to expand the raw milk permitting process to allow the sale of any dairy product made from raw milk including butter, “soft” cheese, ice cream, yogurt, etc. Currently these products are not allowed even though they are in great demand. The second bill takes a different approach to the same matter by requiring the department to issue permits for the sale of raw milk and products made from raw milk by members of certain entities registered with the department. Those entities would then be responsible for their own inspection and testing under guidelines approved by the Pennsylvania Department of Agriculture.
The case of Newville dairy farmer Mark Nolt has drawn national attention. In August 2006 Nolt gave up his raw milk permit and continued to sell raw dairy products. He contends that he sells to customers pursuant to private contracts that are not under the state’s jurisdiction. On May 7, 2007, Nolt was found guilty by a magistrate of selling raw milk without a permit. Nolt appealed the conviction while continuing to sell raw dairy products. He sold milk to undercover agents from the Pennsylvania Department of Agriculture (PDA) on three separate occasions; and on June 21, PDA filed for an injunction to restrain Nolt from further selling any raw dairy products. The injunction was granted on July 2, but Nolt continued to sell raw dairy products to his customers. On August 2 the judge ordering the injunction found Nolt to be in contempt and authorized PDA to “seize and discard” any raw milk products under Nolt’s “custody or control.” The order authorized the Pennsylvania Attorney General to “arrest Mr. Nolt for civil contempt and incarcerate Mr. Nolt until such time as Mr. Nolt indicates to the Court that he will not offer for sale any dairy products manufactured from or containing raw milk without obtaining the proper permit(s)” from the PDA. The order further stated, “The execution of this Order shall be suspended for 20 days during which time Mr. Nolt may apply for the appropriate permit(s)” (Office of Attorney General v. Nolt, No. 308 M.D. 2007). On August 10 a group of ten state police along with agents from FDA and PDA raided Nolt’s farm, confiscating about $25,000 worth of dairy products, equipment and packaging supplies. As of October, nothing had been returned to the farmer. Nolt refused to apply for any permit. PDA claimed that Nolt’s products made several people ill but provided no proof to substantiate the allegations. The farmer’s courageous stand has intensified the debate in Pennsylvania about what PDA’s jurisdiction should be over producers who sell directly to their customers. There has been discussion among several state legislators and those in support of a statutory exemption for farmer-to-consumer direct sales. Waiting to see whether the legislature resolves the controversy over unpermitted direct sales, PDA has postponed taking enforcement action for the present time against other farmers like Nolt who have been selling raw milk without a permit.
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What is the update as of 2016?