Ontario–Charter Challenge to Raw Milk Ban

Update Published Summer, 2020

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 2019, attorneys for the 19 consumers and two 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 believe 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 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.
The 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• Is based on outdated and incomplete pathogen prevalence and outbreak reports;
• Misses the fact that over the last 26 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;
• Ignores the fact 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 the fact that almost everywhere else and in the Western world, the sale and distribution of raw milk is legal.

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 percent 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, such as leafy green vegetables, ground beef hamburger and 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 around 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.