Real Milk in Wisconsin

By Pete Kennedy, Esq. and Tim Wightman

Update, Fall 2014–GrassWay Organics & Zinniker Farms

After sitting on the cases for nearly three years, a Wisconsin appellate court rubber-stamped a lower court ruling denying motions for summary judgment by plaintiffs in the Zinniker Farms and GrassWay Organics cases (see Fall 2011 update below for background). Plaintiffs in both cases were seeking rulings that they were legally distributing raw milk.

In one case, Zinniker Farm owners Mark and Petra Zinniker were distributing raw milk to members of Nourished by Nature LLC (NBN); NBN had complete ownership interests in cows boarded at the farm. The Zinnikers also boarded another cow owned by Robert Karp and Gayle Loiselle. The Zinnikers, NBN, NBN member Phillip Burns, Karp, and Loiselle were all plaintiffs in the case. The Zinnikers do not have a milk producer license.

In the other case, GrassWay Organics Farm Store LLC, holder of a Grade A milk producer license and co-owned by farmers Wayne and Kay Craig, sold raw milk at the store to members of the GrassWay Organics Association, which was also an owner of the store. The farm store was private and open only to members of the association. The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) claimed the food store needed a retail food establishment license but the Craigs declined on the grounds that the license was only required for those selling to the general public. The Craigs, GrassWay Farm Store LLC, and GrassWay Organics Association were all plaintiffs in the case.

In the Zinniker case, the appellate court upheld the lower (circuit) court ruling that since the Zinnikers operated a dairy farm under Wisconsin law they could not distribute milk unless DATCP had issued the farm a license. The court found that “a dairy farm (as defined by Wisconsin statute) is any place…where one or more cows…is kept for the production of milk…“and therefore any contractual agreement among the Zinnikers, Nourished By Nature, and its members, under which the Zinnikers board dairy cows owned by Nourished By Nature and distribute milk produced by the herd to members of Nourished By Nature is void as a matter of law.” The court ruling stretches reach of the nanny state to its limits, holding in effect that DATCP has jurisdiction over anyone boarding a family cow.

Regarding the GrassWay case, Wisconsin administrative law decisions have held that those purchasing stock or a membership interest in an entity holding a Grade A license could obtain raw milk from that entity as long as the license was used for “its proper purpose of producing milk…which will be sold or distributed into the public, human food chain” (that is, sold to a processor for eventual distribution to the public). The appellate court upheld the lower court’s erroneous finding that this condition was not met since all the milk produced by the dairy went to the association members. The courts have ignored the fact that, under state law, an entity holding a Grade A license will have the license revoked if it goes more than sixty days without shipping milk to a processor. GrassWay has continuously held the same license it was issued in 2005. The court compounded its error by holding that GrassWay Store needed a retail food establishment permit because the contract between the store and the association “is not a valid agreement sharing ownership in the milk producer license (quoting the lower court) and therefore the association’s members qualified as the general public.” Once again, the court ignored the evidence that GrassWay was selling milk that was being sold or distributed into the “public human food chain.”

Plaintiffs in the Zinniker and GrassWay cases will be appealing the rulings to the Wisconsin Supreme Court. The search continues for an American court that will recognize the distinction between public and private when it comes to food distribution and that people have the right to waive the protection of the public health laws.

Update, Summer 2012–Vernon Hershberger Case

Update, Spring 2012–Vernon Hershberger Case

Update, Spring 2012

SB 108, which would allow the on-farm sale of raw milk and raw milk products, was referred last May to the Senate Committee on Agriculture, Natural Resources and Higher Education. Under the bill either an unlicensed or a Grade A dairy farm can sell raw milk if the farm registers with the state Department of Agriculture, Trade and Consumer Protection (DATCP) and if the prescribed labeling, bottling and testing requirements are followed. The farmer must also post a sign at the place where milk and milk products are sold stating, “Raw milk products sold here. Raw milk products are not pasteurized.” No hearing has been scheduled yet for the bill. For the latest developments on raw milk issues, go to 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 farmtoconsumer.org or by calling (703) 208-FARM (3276); the mailing address is 8116 Arlington Blvd, Suite 263,
Falls Church, VA 22042.

Press Release, March 6, 2012: Farmer Accused Of Selling Raw Milk Stays Free

Update, Fall 2011—Grassway Organics & Zinniker Farms

On August 12 Dane County Circuit Court Judge Patrick J. Fiedler denied the motions of Grassway Organics Farm Store LLC and Zinniker Farms—and the respective private associations doing business with the two entities—for a ruling in their lawsuits against the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) that the distribution of raw milk by Grassway and Zinniker to the members of the respective associations was legal. (See Wise Traditions Fall 2010 and prior issues for background on the cases.)

Grassway Organics Farm Store LLC, which has a Grade A milk producer license in its name, issued stock in the LLC to Grassway Association and its members. Under 2002 and 2004 administrative law decisions in the state, those purchasing shares in the entity holding a milk producer license could purchase raw milk from that entity. Grassway Organic Farm Store LLC hired Wayne and Kay Craig of Grassway Farm to run the dairy operation and the farm store. The Craigs were also plaintiffs in the suit.

Mark and Petra Zinniker had an agreement with Nourished by Nature LLC to board, care for and milk cows wholly owned by the LLC. In addition to the LLC’s herd, the Zinnikers also boarded a cow co-owned by Gayle Loiselle and Robert Karp. The farm does not hold a Grade A milk producers license. The Zinnikers, the LLC, LLC member Phillip Burns, Loiselle and Karp were all plaintiffs in the case. The Grassway and Zinniker lawsuits had originally been filed separately but were consolidated by Judge Fiedler last fall.

In his opinion, the judge went out of his way to rule against the plaintiffs. Under the 2002 and 2004 administrative law decisions, those purchasing stock in an entity holding a Grade A milk producer license could obtain raw milk in the regular course of business from that entity so long as the license was used for “its proper purpose of producing milk . . . which will be sold or distributed into the public, human food chain” (that is, sold to a processor unpasteurized for eventual distribution to the public human food chain).

The judge held that the Grassway plaintiffs were not entitled to a judgment since they were not in compliance with the law because they used their license “solely for the purpose of allowing the Association members to purchase nonpasteurized milk.” In making this finding, the judge ignored the fact that, under state law, an entity holding a Grade A milk producer license will have its license revoked if it goes more than sixty days without shipping milk to a processor. Grassway Organic Farm Store LLC has held the same Grade A milk producer license it was issued in 2005.

As for the Zinniker plaintiffs, the judge ruled that they were not entitled to a ruling because they did not own a milk producer license. What the judge held, in effect, was that it is the state’s business on where any owner of a dairy animal boarded that animal; dairy livestock owners obtaining milk produced by that livestock if the animals were boarded on an unlicensed farm would be violating the law. The judge dismissed all the Zinniker plaintiffs’ arguments on their property rights, right to contract, and right to privacy. The judge did not indicate how a private livestock boarding contract had anything to do with DATCP’s responsibility to protect the health of the general public. Plaintiffs have ninety days to appeal the judge’s decision.

Update, Spring 2011

Legislation is set to be introduced that would allow the on-farm sale of raw milk and raw milk products by Grade A dairies and by unlicensed dairies if the farm is milking fewer than twenty cows; all sellers of raw milk and raw milk products would have to register with the state. Current law allows only the incidental sale of raw milk on the farm; “incidental” has been defined by state regulation as meaning only those sales that are not in the regular course of business.

Update, Fall 2010

On June 10, Department of Agriculture, Trade and Consumer Protection (DATCP) officials Jackie Owens and Cathy Anderson along with local police raided Vernon and Erma Hershberger’s Loganville Grazin’ Acres farm for a second time.The purpose of the raid was to execute an inspection warrant to check the Hershberger’s farm store to see whether there had been a violation of a holding order that prohibited the Hershbergers from moving any food located in freezers that the DATCP agents had taped during a June 2 raid of the farm [see Wise Traditions Summer 2010 issue “Raw Milk Update” for background]. The store was locked at the time the officials arrived; when asked to open the door, Vernon said he would if there was something in the warrant requiring him to do so. There was not and with the warrant not authorizing the use of force, Owens and Anderson left the farm empty-handed.Four weeks later on July 8, the two officials returned—this time with eight policemen and a criminal search warrant. This time the officials were able to execute the warrant and search the store, taking a computer and business records with them back to Madison. DATCP has since turned over the evidence it has on the Hershberger’s case to the state attorney general’s office. There continue to be no cases of illness attributed to Grazin’ Acres nor have any consumer complaints been filed. There is no public health issue in this case; the only health issue is the loss of a source of healthy food for people who willingly entered into a private contract with the Hershbergers to obtain nutrient-dense food products. For the latest developments on raw milk issues, go to www.thecompletepatient.com.

Update, Summer 2010

The most significant developments in the raw milk movement continued to occur in Wisconsin. First, the Governor vetoes a bill that passed in a landslide through the legislature; then a dairy farmer openly defies an order from the state Department of Agriculture, Trade and Consumer Protection (DATCP) to stop distributing raw milk and raw milk products. Until a March 10 public hearing in Eau Claire on raw milk legislation before the General Assembly and the Senate, it did not appear that a raw milk bill would pass in the current legislative session (see Wise Traditions Winter 2009 for more background). That all changed with the hearing; around seven hundred people attended the hearing and the testimony was overwhelmingly in favor of the legislation.

Shortly after the hearing, the Senate Agriculture Committee amended the original version of the bill; the new version was not as favorable as the original but still allowed for the on-farm sale of raw milk by Grade A dairies. SB 434 passed out of committee with a unanimous vote and then was passed by the full Senate 25 to 8. The General Assembly adopted the Senate version of the bill; SB 434 was voted out of the Assembly Rural Affairs Committee with eight of nine members in favor. It then passed the full Assembly by a vote of 60 to 35 on April 23, the last day of the legislative session. Initially, Governor Jim Doyle said that it was likely that he would sign the bill. That was before the dairy lobby and public health officials stepped up their pressure on the Governor.

On May 19, Doyle vetoed the bill, ignoring the wide margins by which SB 434 had passed in the legislature. In his veto message, the Governor stated, “The sale of unpasteurized milk has become an increasingly contentious issue in Wisconsin and around the country. I recognize that there are strong feelings on both sides of this matter, but I must side with public health and the dairy industry.”

Shortly after issuing the veto, Doyle told reporters that he had to “rely on what the public health people are telling me.” If all governors followed Doyle’s reasoning, there would be hardly a State around that would have a law on the books legalizing the sale of raw milk. State health departments are lockstep with FDA in the desire to ban all distribution and consumption of raw milk.

As for the “safety of the dairy industry”, Doyle went on to say in the veto message, “The dairy industry is the centerpiece of Wisconsin agriculture. . . An outbreak of disease from consumption of unpasteurized milk could damage the State’s reputation for providing good, healthy dairy products, and hurt sales of pasteurized milk and other dairy products, resulting in significant financial loss for the entire dairy industry at a time when dairy farmers are already suffering.”

Yet, there is no evidence that any outbreak of foodborne illness attributed to raw milk consumption has ever hurt the dairy industry. As State Senator Glenn Grothman (R-West Bend) asked, “Where is the drop in sales caused by the hundreds of thousands of members of dairy families, their employees, and visitors to the farms who drink raw milk now? There is none. The only danger to the reputation of milk is coming from the Dairy Business Association that is exaggerating the dangers of raw milk.”

If the Governor were interested in reversing the suffering of dairy farmers he would have signed the bill; the prices dairy farmers could get selling raw milk direct to consumers are more than double what they are getting from the processors. Continuing on with the existing system means more of the failed policies that have been responsible for the number of dairy farms in the State declining from 29,000 in 1995 to between 12,000-13,000 today.

In response to Doyle’s veto, Senator Pat Kreitlow (D-Chippewa Falls), the principal sponsor of SB 434, issued a press release which stated, in part, “The Governor’s veto is disappointing to the thousands of farmers and consumers who will continue to be treated like criminals for wanting nothing more than to buy or sell fresh milk off the farm. . .The fairness to family farmers is lost because of today’s veto and that is why I call on DATCP to suspend its efforts to treat farmers as criminals when they try to meet the demands of customers for their products on the farm.”

Kreitlow wasn’t the only legislator asking DATCP to stop enforcement actions against raw milk producers. Grothman supported a return to the policy of the past, noting that even though the general prohibition against the sale of raw milk has been the law for many years, “DATCP, bowing to common sense, largely did not enforce the law until 2009 when new bureaucrats got a toehold in the Division of Food Safety.” The new bureaucrats are Steve Ingham, the administrator for the Division of Food Safety, and Cheryl Daniels, assistant legal counsel for DATCP. Ironically, as an administrative law judge for DATCP, Daniels issued rulings in 2002 and 2004 that enabled anyone who purchased shares in an entity operating a dairy farm and possessing a Grade A permit to purchase raw milk and raw milk products from that farm. Thousands of people took advantage of the ruling to obtain raw milk from the shareholder dairies.

DATCP was not listening to the Senators. On June 2, just two weeks after Doyle’s veto, agency inspectors along with Sauk County Health Department officials and deputies of the County Sheriff descended upon Vernon and Erma Hershberger’s dairy farm, Grazin’ Acres in Loganville, to execute a ‘special inspection’ warrant. DATCP inspectors taped freezers in the Hershbergers’ farm store and placed a hold order on thousands of dollars of food in the store, mostly raw milk and raw milk products.

Under the hold order, the Hershbergers were prohibited from selling or even moving any of the food in the taped freezers. DATCP sent inspectors out to the farm because the Hershbergers had refused to comply with an intrusive request by the agency for documents and information going back over seven years. The Hershbergers’ on-farm store only sold products to members of a private buying club. DATCP has referred the matter to the Sauk County District Attorney. There have been no complaints against Grazin’ Acres nor any record of food produced at the farm ever making anyone ill. DATCP’s pursuit of victimless crimes was not limited to the Hershbergers. The agency was still attempting to obtain business records of Belle’s Lunchbox, the food buyers club operated by Max Kane[see Wise Traditions Spring 2010 issue for background]. On December 21, Vernon County Circuit Court Judge Michael Roseborough ruled that DATCP had jurisdiction to subpoena the records. Kane filed a notice that he was appealing the decision but DATCP filed a motion to compel Kane to turn over the records before his appeal could be heard. In a March 18 hearing on the matter, Kane and his attorney Elizabeth Rich were victorious as Judge Roseborough ruled that DATCP could not obtain any records from Kane until the appeal had run its course. Kane’s appeal will likely be heard sometime this fall.

Press Release, April 20, 2010: Wisconsin Raw Milk Activist Wins Important Court Victory

Update, Spring 2010

Wisconsin remains at the center of the battle over raw milk. The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) has continued enforcement actions against raw milk producers with an order on January 26 to the Siegmann farm of Rubicon, prohibiting the farm from selling or distributing raw milk. That same day, DATCP initiated official investigations of three other farms suspected of selling raw milk and raw milk products; the investigation of Midvalleyvu Farm was eventually dropped.

DATCP was also on the receiving end of two lawsuits. On December 16, Grassway Organics Farm Store, LLC of New Holstein and Grassway Organics Association filed suit against DATCP asking for a court ruling confirming that the farm store could legally sell raw milk to the members of the association; the association invested in the LLC [see Wise Traditions, Fall 2009 issue for more information]. The suit also is seeking a ruling confirming that the Craigs do not need a food establishment permit to operate the on-farm store since it is not open to the general public. Under state law anyone with that permit can sell only pasteurized milk in the establishment.

On February 25, Mark and Petra Zinniker of Zinniker Farm, Inc. in Elkhorn, along with Nourished By Nature, LLC filed a lawsuit seeking a court ruling confirming that the Zinnikers could enter into a boarding agreement with Nourished By Nature, LLC to board and care for cows owned by the LLC and to distribute raw milk to the LLC members. Earlier, Zinniker Farm Inc. had signed a consent order with DATCP and the Woolworth County District Attorney, agreeing not to sell or distribute raw milk in violation of the Wisconsin dairy code. The question for the judge is whether the boarding agreement is in compliance with the dairy code.

In addition to its actions against farmers, DATCP has continued its investigation of Belle’s Lunchbox operated by Max Kane. In June 2009, Kane had refused to turnover business records requested by DATCP on the grounds that the agency did not have jurisdiction over his operation and that he would be waiving his right not to incriminate himself. DATCP responded to Kane’s refusal by filing a petition with the Vernon County Circuit Court in Viroqua to get an order that the agency had the jurisdiction to subpoena the records. A hearing on DATCP’s petition was held on December 21, Judge Michael Roseborough ruled in favor of the agency.

Kane has filed notice with the Vernon County Court that he will appeal the decision. DATCP was not deterred by the notice of appeal and set a March 18 hearing for Kane to turn over the records. Kane has made it clear to the agency that he will not surrender the records and that any further proceedings should be stayed pending his appeal. Before Kane’s hearing on December 21, a rally was held outside the courthouse in Viroqua. Among the speakers were Michael Schmidt, Mark McAfee, David Gumpert, Scott Trautman, Kathryn Pirtle and 2004 Libertarian Party presidential candidate Michael Bednarik. Bednarik summed up the struggle for food freedom when he told the crowd, “This is what it’s all about; either you own your own your own body and you are a free person or the government owns your body and you are a slave.” In Schmidt’s words, “What we saw here was a galvanizing of a movement” (http://www.thecompletepatient.com, December 22, 2009).

Shortly after the rally, Alliances for Raw Milk (ARMs) were formed in the U.S. and Canada to promote alliances at the state, national and international level to support consumer freedom of food choice and the right of farmers to market products they produce. Formed through Facebook, ARMs have been established in at least thirty states and seven countries.

With DATCP’s continued enforcement actions, passage of raw milk legislation is more important than ever. A joint hearing on the General Assembly bill (AB 628) and the Senate bill (SB 434) was scheduled for March 10 in Eau Claire (see Wise Traditions Winter 2009 issue for more information about the bills). In the weeks before the hearing, media attention on the bills was increasing. Wayne and Janet Brunner of Midvalleyvu Farm gave a number of interviews on their ten-year struggle to sell raw milk legally in Wisconsin and the importance of the bills’ passage for the survival of small dairy farms in the state. State Representative Chris Danou (D-Trempeauleau), sponsor of the Assembly bill, also gave a number of interviews publicly criticizing DATCP for its treatment of small dairy farms like Midvalleyvu.

One response of DATCP to criticisms of its raw milk enforcement policy was for Secretary Rod Nilsestuen to convene in January a twenty-person committee to study the legalization of raw milk sales in Wisconsin. The committee is comprised of farmers, representatives of the dairy industry, government officials and academia; the first meeting was to take place on March 15 with monthly meetings to continue until July. One farmer estimated that fifteen of the committee members were against legalizing the sale of raw milk. Many suspect that the committee was formed to give legislators an excuse not to vote for any raw milk bill until they receive the committee’s final report sometime this summer; the current legislative session ends April 22.

Update, Winter 2009

State Representative Chris Danou (D-Trempealeau) and State Senator Pat Kreitlow (D-Chippewa Falls) have introduced a bill that would legalize the on-farm sale of raw milk and raw milk products in Wisconsin. Under the bill, any milk producer who has a Grade A dairy farm permit shall be issued a permit by the Department of Agriculture, Trade and Consumer Protection (DATCP) upon the producer’s request. Specifically, a milk producer may sell raw milk, buttermilk, butter and cream directly to a consumer on the producer’s farm if all of the following requirements are met:

  1. The producer has a permit to sell raw milk and raw milk products;
  2. Either milk producer or the consumer provides a sanitary container for the product that has been prepared in a sanitary manner and the container is filled in a sanitary manner; and
  3. At the place where products are sold, the milk producer displays a sign that is easy for a consumer to read and that states, “Raw milk products sold here. Raw milk products do not provide the protection of pasteurization.”

The bill stipulates that a milk producer who sells a product in accordance with these requirements “is immune from civil liability for the death of or injury to an individual caused by the product, unless the death or injury was caused by willful or wanton acts or omissions.”

Introduction of the bill comes at a time when DATCP has been stepping up enforcement actions against those farmers the agency believes are selling raw milk. DATCP has issued orders to two dairies-Trautman Family Farms of Stoughton and Zinniker Farm, LLC of Elkhorn-prohibiting them from making raw milk available to anyone not either residing or working on the dairy farm. In the case of Zinniker Farm, DATCP also made a criminal referral to the Walworth County District Attorney, requesting that the DA investigate the Zinnikers for the illegal sale of raw milk; the agency is holding the farm responsible for thirty-five cases of food-borne illness attributed to Campylobacter jejeuni (see Wise Traditions Fall 2009 for background on the case). Subsequently, Zinniker Farm, DATCP and the Walworth DA entered into a stipulation in which the farm, to avoid prosecution by the DA, agreed not to violate the Wisconsin laws prohibiting the sale of raw milk. Scott Trautman has requested an administrative hearing to overturn the DATCP order against his farm; the hearing is scheduled to take place this spring. Since issuance of the stop order, Trautman has been an outspoken critic of DATCP and has helped focus the public’s attention on the fact that the agency is no friend of family farms.

DATCP did not limit its enforcement action to farmers; it has also been conducting an investigation of Max Kane, the owner of Belle’s Lunchbox (a food buyers club based in Viroqua). Kane was refusing to comply with DATCP’s request to turn over business records to the agency, including the names and addresses of Belle’s Lunchbox members, on the grounds that the request violated his right against self-incrimination and also that the club was not within DATCP’s jurisdiction. A rally for Kane took place on December 21 in Viroqua with David Gumpert, Mark McAfee and David Schmidt scheduled to speak.

DATCP has indicated its policy will be to take action against anyone it suspects of selling raw milk. The agency’s campaign against raw milk could not come at a worse time for the state’s dairy farmers, many of whom are desperately in need of the additional income that selling raw milk and raw milk products would provide. Prices being paid to farmers by dairy processors for milk have increased slightly in recent weeks but are still below the farmers’ cost of production. There are more dairy farms in Wisconsin than in any other state in the country but that number is fast decreasing. According to Wisconsin’s Agricultural Statistics Service as of the first week of November, there were 12,965 dairy herds in the state, a drop of over 500 herds from just a year earlier. In 1995 there were about 29,000 dairy farms in the state.

Update, Fall 2009

For more than six years, Grade A dairies in Wisconsin have been selling raw milk to shareholders who invested in their dairies under an exemption to the general prohibition against the sale of raw milk in that state. The exemption had been clarified by administrative law decisions in 2002 and 2004,which established that Grade A dairies “are free to devise valid agreements sharing ownership in their milk producer license under applicable law that may include allowing actual owners to take a share of the ungraded raw milk produced under the license.” Shortly after the 2002 decision, the Division of Securities for the Wisconsin Department of Financial Institutions (DFI) issued Orders of Exemption to a number of Grade A dairies allowing those dairies to sell equity shares to investors without having to comply with state security registration requirements. This enabled the dairies to sell raw milk to those persons purchasing the shares. The Orders of Exemption were good for two years at a time; the last was issued in 2006. The state Department of Agriculture and Consumer Protection (DATCP) approved each of the Exemptions issued by DFI.

In 2008, DATCP issued an administrative regulation entitled, “Raw milk sales prohibited; exemption.” The regulation stated that the general prohibition on the sale of raw milk did not apply to “[a]n individual who has a bona fide ownership interest in the milk producer . . . if the producer is a legal entity other than an individual or married couple.” When the agency proposed this regulation, it stated that the regulation would clarify “current statutory prohibitions against the sale of raw milk consistent with administrative law decisions.” Grade A dairies selling raw milk to their shareholders believed that they could continue to sell raw milk to their shareholders even though the Orders of Exemption for a number of the dairies expired around the time that the regulation went into effect. There was little or no opposition to the regulation when it was proposed.

The status quo on raw milk sales continued for a little over a year after the regulation became law. In the spring of 2009, the agency began moving against those selling raw milk, making it clear that it had changed its interpretation of the 2002 and 2004 decisions. In April, DATCP sent warning letters to two shareholder dairies that had been recently featured in local media and advised them that they were engaged in the illegal sale of raw milk. A third dairy that had recently applied for a retail food establishment permit for its on-farm store was denied the permit because they were selling raw milk to shareholders; the department warned that the farm store would not be given a permit until all sales of raw milk ceased.

In June, each of the producers who had previously been issued Orders of Exemption by DFI received a letter from that agency. The letter stated the following: “[The] determination to issue such Orders of Exemption in past years was based on the language of DATCP statutes and rules in place at that time, as well as language of DATCP administrative hearing decisions that interpreted those statues.” The letter went on to state: This is to inform you that in view of DATCP’s interpretation of its “bona fide ownership interest in the milk producer rule above, and because a Wisconsin farming operation’s status under the Wisconsin Securities Law is an issue separate from a farming operation’s required compliance with Wisconsin law prohibiting the sale or distribution of raw milk except in conformance with exemptions established by rule of DATCP, the DATCP rules for incidental sales of raw milk override and supersede any authorization under the previously-issued Securities Exemption Order for your farming operation to continue to sell raw milk to existing holders of Equity Shares. Thus, the previously issued Securities Exemption Order cannot continue to be used as a basis for selling raw milk or raw milk products to existing holders of the Equity Shares in the absence of compliance with the 2008 DATCP Raw Milk rules.”

DATCP’s interpretation of the “bona fide ownership interest in the milk producer” rule is basically that only farmers can drink the raw milk produced by a cow. The agency’s change in interpretation could not have come at a worse time for shareholder dairies-not only have the prices farmers get for conventional milk collapsed but the prices paid for organic milk have declined as well, in some cases, significantly. There are certified organic dairies in the state being paid as little as $12 per hundred-weight which is less than half of what they were typically making. Most of the shareholder dairies are certified organic.

DATCP subsequently followed up on DFI’s letter by sending an investigator out to several of the shareholder dairies to find out whether those dairies were selling raw milk. By the end of August, there were at least nine dairies in the state that had received warning letters and/or visits from the agency. There is concern that DATCP will attempt to have criminal misdemeanor charges brought against the dairies for the illegal sale of raw milk. A group of raw milk producers has hired a lobbyist to help pass a raw milk bill in the Wisconsin legislature. The lobbyist will also work to convince DATCP not to bring enforcement action against the producers while the bill is making its way through the legislature.

A second issue at stake in Wisconsin was whether the shareholder dairies needed a retail food establishment permit to operate the on-farm stores they have. Several of the shareholder dairies are operating without the permit, arguing that a permit is not needed since the stores sell only to their shareholders and not to the general public. Wisconsin law requires that “a permanent facility from which food is sold to consumers at retail” needs a permit. “Consumer” is defined under Wisconsin law as a person who is a member of the public. Resolution of this issue holds implications for buyers clubs around the country, with most states having a Food Code similar to Wisconsin’s. A precedent could be set as to whether the reach of the Food Code extends to such private contractual arrangements for the distribution of food.

In the midst of the dispute between shareholder dairies and DATCP, an outbreak of foodborne illness linked to raw milk consumption occurred in the state. On August 28, DATCP issued a press release stating that thirteen confirmed cases of illness in southeast Wisconsin were caused by the consumption of unpasteurized milk. The individuals have tested positive for campylobacter jejeuni. According to the release, there were other people in the same households who were ill but their test results were not yet available. The release disclosed that the onset of illness was between August 14 and 20; all victims had consumed raw milk obtained from a Grade A dairy in Wisconsin or had been in households where someone who was sick had consumed raw milk from that dairy. Campylobacter can be passed between people as well as become contracted from adulterated food.

Most victims of the illness recovered quickly; however, one was not so fortunate-initially suffering from intermittent paralysis including the inability to talk along with severe gastroenteritis. More than two weeks after contracting campylobacter, the victim was still having trouble walking. The dairy suspected of being responsible for the illnesses had samples of raw milk test negative for campylobacter at both state and private labs; but the state did not exonerate the dairy, continuing its investigation by conducting tests on the dairy’s cows. As of the first week of September, DATCP and the Department of Health Services had not released the results of their investigation.

Action Alert, Aug. 31, 2009: Urgent Wisconsin Raw Milk Action Alert

Update, August 2007

The Department of Agriculture, Trade and Consumer Protection (DATCP) has issued a proposed rule that would prohibit farm share programs from selling raw dairy products other than milk and cream to their shareholders. Currently, farm share operators can sell any raw dairy product to their shareholders under exemption letters issued them by the state permitting the sale of shares in the farm without having to comply with securities registration laws. Not only did DATCP approve the exemption letters before they were sent out but previously, a state administrative law judge had recognized the right of the farm share operators to distribute raw dairy products to their shareholders. In issuing the proposed rule DATCP claimed the rule was consistent with previous administrative law decisions.

The public comment period on the proposed rule has ended; and the rule is due to go to legislative committees in the Wisconsin House and Senate for final approval. Those opposing the rule should contact their legislators and demand that the legislative committees reviewing the rule hold public hearings.

Update, Winter 2006 by Tim Wightman

Several farms are now operating very successful farm-share programs, which allow them to supply raw dairy products to farm-share owners. These programs have been sanctioned by the courts, but one farm recently received a letter questioning its authority to operate in this manner. The farm has replied, citing the court ruling and arguing that the state has no jurisdiction. The state has not answered the reply. We’ll keep you posted on developments.

Update, Spring 2006

Raw milk sales are illegal in Wisconsin, so farmers have organized farm share programs, where consumers own a share in the farm and can benefit from the farm’s products. So far, four farms are operating very successfully under this model. Janet Brunner of Midvalleyvu Farms reports that they now have 475 shareholders, up from 100 in 2004. Their new 900-square-foot farm store, open only to farm share owners, provides not only raw milk but value-added products like butter, buttermilk, cream, kefir and yogurt.

Update, March 18, 2004 by Tim Wightman

In a clarification hearing on November 22, 2003, the raw milk farms of Wisconsin met with the Wisconsin Department of Agriculture, Trade & Consumer Protection (DATCP) at the request of the Food Safety Division and the legal department of DATCP. The meeting was to discuss and gather information on the implementation of legally formed corporations of the raw milk farms in Wisconsin and its legal structure as it pertains to the interpretations of the division of Food Safety’s decision of October 2002 regarding cow share agreements.

It was found that the Wisconsin Division of Securities that approved the raw milk/Grade A permit holding corporations was comfortable with the arrangements outlined for the corporations holding the Grade A permits sanctioned by DATCP.

DATCP had a problem with the fact that the shareholders of the corporations had only purchased a right and not actual property of the corporations in order to obtain raw milk. In short DATCP held the view, and convinced the Division of Securities, that the Grade A permit could only be held by the actual Entity that owned the cows and actually did the work. In essence the Grade A permit holding corporations in which people purchased shares in order to purchase raw milk was in fact a distribution company, not a licensed dairy farm.

DATCP also said that the raw milk farms were free to devise corporations that were based on the actual farms and farm property if they were the permitted entities that produced the milk. Each shareholder must own a proportionate share of the farm as to TAKE raw milk from the farm in which they are part owners. In short if a raw milk drinker wanted to fork over $30,000.00 and take milk over a period of 20 years the raw milk farms were free to do so.

In a further development of the hearing DATCP said if all owners of the farm and or cows consumed all of products produced by said cows that DATCP has no jurisdiction over that consumption. The raw milk farms were free to do so and not have to hold a Grade A permit for no milk would be offered to the general public. The raw milk farms were also free to lobby for a change in the dairy code to allow the sale of raw milk.

It is the opinion of the raw milk farms of Wisconsin that it doesn’t matter what legal entity we form, DATCP will find fault with it. The farms in question are pursuing the customers needed to drop the Grade A permits and sell the cows to the consumers of raw milk and remove ourselves from the regulations of DATCP.

The flow of milk has not stopped, nor has the interest of new customers/owners who arrive every day, and the movement is growing despite the overwhelming negative press that the farms of Wisconsin and other States have endured over the past four years. Tim Wightman talks to farmers and consumers on a daily basis who are greeted with the same levels of interest in nearly every state of the Union.

In January 2005, a raw milk bill will be submitted to the Wisconsin legislature for the availability of a farmer to sell his milk to the people he wishes to with conditions of safety yet to be ironed out. Tim Wightman is currently drafting the legislation with the help of eight legislators and (at press time) one Senator. Passage will not be easy but as more time passes more people will have experienced the benefits of raw milk, and the farmer who provides it.

Update, March 15, 2004

The “farm share” program in Wisconsin is in limbo after a frustrating meeting with officials of the Department of Agriculture, Trade and Consumer Protection (DATCP). The agency insisted that farmers are not allowed to sell milk but stated that shareholders in the farm can “take” products of the farm “if they have reasonable equity, responsibilities and risk.” No one really knows what this means and a court case to find out would be extremely expensive. A preliminary interpretation indicates that only those who can afford a sizeable share in a farm can be allowed to “take” raw milk, meaning that raw milk would only be available to the well-off and out of reach for most. Agency officials did admit that they have no jurisdiction to rule against cow-share or farm-share programs if the farm does not have a Grade A permit. Farms near population centers with lots of customers for raw milk do not need the Grade A permit that allows them to sell to the dairy companies; but small farms in remote areas still rely on income from the dairy company and need the Grade A permit. Thus the law as currently interpreted by DATCP strongly militates against small farms providing milk to the average consumer.

Meetings have been arranged with state representatives to discuss changes in the law and we are hopeful that a solution can be reached. Meanwhile, we will be using 100 percent of donations to A Campaign for Real Milk to help with legal fees incurred by Clear View Acres in their valiant fight to allow farmers all over the country a means to provide raw milk to consumers. We are also looking into setting up a Real Milk Legal Fund, similar to the Home School Legal Defense Association. All donations to A Campaign for Real Milk are tax-deductible to the full extent of the law and can be addressed to the Weston A. Price Foundation.

Update, Spring 2004

What’s happening in Wisconsin? Hard to say and hard to describe. We’ve been following the saga of Tim Wightman and the several farms who set up cow-share programs in Wisconsin, then when the state found fault with the cow-share programs, interpreted their edicts as permitting farm-share programs. At a meeting last year, the State declared the farm-share program they had set up as unacceptable. As Wightman said in a recent interview with AcresUSA (May 2004), “It doesn’t matter what we do, the state doesn’t want us to do it. . . “ However, the good news is that all three farms are still providing raw milk, their membership is growing and all are in agreement “that we are going to do what our consumers want us to do. The state really doesn’t have a right to get between a farmer and his product or the people who want to buy it.” One state representative, Barbara Gronimous, is working to propose legislation legalizing on-farm raw milk sales in the state, a move that would solve the problem for both bureaucrats and consumers.

Update, Winter 2003

The “farm share” program in Wisconsin is in limbo after a frustrating meeting with officials of the Department of Agriculture, Trade and Consumer Protection (DATCP). The agency insisted that farmers are not allowed to sell milk but stated that shareholders in the farm can “take” products of the farm “if they have reasonable equity, responsibilities and risk.” No one really knows what this means and a court case to find out would be extremely expensive. A preliminary interpretation indicates that only those who can afford a sizeable share in a farm can be allowed to “take” raw milk, meaning that raw milk would only be available to the well-off and out of reach for most. Agency officials did admit that they have no jurisdiction to rule against cowshare or farmshare programs if the farm does not have a Grade A permit. Farms near population centers with lots of customers for raw milk do not need the Grade A permit that allows them to sell to the dairy companies; but small farms in remote areas still rely on income from the dairy company and need the Grade A permit. Thus the law as currently interpreted by DATCP strongly militates against small farms providing milk to the average consumer.

Meetings have been arranged with state representatives to discuss changes in the law and we are hopeful that a solution can be reached. Meanwhile, we will be using 100 percent of donations to A Campaign for Real Milk to help with legal fees incurred by Clearview Acres in their valiant fight to allow farmers all over the country a means to provide raw milk to consumers. We are also looking into setting up a Real Milk Legal Fund, similar to the Home School Legal Defense Association. All donations to A Campaign for Real Milk are tax-deductible to the full extent of the law and can be addressed to the Weston A. Price Foundation.

Update, Spring 2003–Milk Direct Program

The MilkDirectTM Program is the brainchild of Tim Wightman and Gleta Martin of Clearview Acres farm in Hayward, Wisconsin. Working with the Department of Agriculture, Trade and Consumer Protection (DATCP), Tim and Gleta set up a cow-share program that had been pioneered by another farmer in the state. However, Tim and Gleta were not satisfied with the two-page contract that DATCP suggested, finding that it did not provide enough provisions for testing and safety. Tim revised the contract to allow for greater safety provisions and their program was soon supplying milk to 300 individuals.

As reported in Wise Traditions, on September 24, Clearview Acres received a complaint from the state of Wisconsin stating that the provision of raw milk to cow-share owners posed “an imminent public health hazard, ” singling out Clearview Acres as the culprit in a local campylobacter outbreak even though only two of the four confirmed cases drank Clearview Acres raw milk, and Clearview Acres milk consistently tested negative for the disease. The outbreak followed on Thanksgiving which means that consumption of underdone turkey was the likely cause—72 percent of turkey is infected with campylobacter.

When Clearview Acres counsel requested documents from DATCP, including any lab tests indicating campylobacter contamination, the state stalled. Finally, on March 18, the department released several inches of documents. No lab tests for campylobacter were included in the documents. (Tim and Gleta suspect that no tests were actually done.)

The documents indicated that DATCP had encouraged several farmers in the state to set up cow-share programs expecting someone to get sick from raw milk so they could shut the whole program down. Tim’s insistence on safety protocols defeated this plan. As Tim and Gleta went ahead with their program, the state sent a spy to buy a cow share and pick up milk weekly. The released documents reveal that the milk was tested for over a year for the presence of listeria and salmonella and that DATCP complained when the tests turned out negative. Then the state tried to take away Gleta’s Grade A permit, but was stymied for lack of jurisdiction. Finally, DATCP blamed Clearview Acres milk on the local campylobacter outbreak and sent the cease-and-desist order.

So basically the Wisconsin agency responsible for food safety has been caught deliberately promoting raw milk sales with improper safety protocols in an attempt to cause an outbreak of illness. Tim and Gleta are continuing to defend themselves in administrative proceedings. They expect the case to end up in civil court and result in complete exoneration. After that they will sue the state for harassment and lost income. They have had very positive media coverage in the local press, which has published convincing arguments to counter DATCP’s deliberate disinformation campaign (including an article entitled “Raw Milk Should Not Be Considered Health Food”) but negative press in the major papers. Meanwhile, about 1100 individuals in the State of Wisconsin are consuming raw milk available through other cow-share programs—with plenty of reports of improved health and none of food-borne illness.

Update, April 27, 2003

We have reported on the Department of Agriculture, Trade and Consumer Protection’s (DATCP) efforts to prohibit cow sharing programs they once endorsed. However, during court proceedings Judge Cheryl Daniels acknowledged that bona fide owners of a milk producer license may consume raw milk directly from the farm. With financial help from the Weston A. Price Foundation, a model corporation has been set up at Clearview Acres in Hayward, Wisconsin. Those desiring raw milk can become nonvoting members of a corporation holding a Grade A licence or the dairy operation of a farm. The language of this corporation will be made available to farmers throughout the country for a modest fee and then can be tailored to the particular state. The completion of these documents has generated intense interest and we are hopeful that this model will be used to bring dairy farmers and raw milk consumers together in many states. For more information, contact the Farm-to-Consumer Legal Defense Fund, farmtoconsumer.org, (703) 208-FARM (3276), info@farmtoconsumer.org .

Update, Spring 2003

The legal costs of battling the state of Wisconsin and of setting up the new farm share program totalled $34,500 for three farms combined—not to mention the loss of income during periods where the farms were not allowed to sell raw milk. If you would like to help these brave farmers clear their debt, please make contributions to Clearview Acres (715-462-3076) or Midvallyvu Farms, Inc. (715-285-5331). To receive full tax-deductibility, donations may be made to the Weston A. Price Foundation, earmarked for A Campaign for Real Milk. All funds donated for these legal expenses will be made over to the law firm involved.

Update, Winter 2002:

As we have reported in these pages (Spring 2002), several Wisconsin cowshare programs initially approved by the Department of Agriculture, Trade and Consumer Protection (DATCP) were advised to cease after an outbreak of campylobactor in the state was falsely blamed on Clearview Acres, one of the participating farms. Cowshare owners began a letter-writing and media campaign that got under the skin of state officials, culminating in a notice from DATCP stating that such programs could continue if organized differently—as “farm-share” programs rather than “cow share” programs.  Thanks to several extremely generous donations from Wisconsin cowshare owners, we have been able to launch a Real Milk Legal Fund.  Our first check went to a Wisconsin lawyer with considerable corporate experience who is currently creating an LLC for Clearview Acres that would serve as a model for the other farms.

The LLC will be created to do one thing: hold a Grade A milk permit. Shareholders would purchase shares in the company for the sole and explicit purpose of being able to obtain raw milk and raw milk products. The company would have a manager whose purpose is to manage the company and monitor the Grade A status of the permit. The manager (usually the farm owner or owners) would be the sole and explicit person to whom is entitled any profit. An offering circular will be issued shortly and the share system will be underway again in the state of Wisconsin. It is hoped that this model will be used in other states where the authorities have made it particularly difficult to obtain raw milk.

Press Release, July 14, 2002: Wisconsin Campylobacter Outbreak Falsely Blamed on Raw Milk

Update, Spring 2002:

The Milk Direct program is the brainchild of Tim Wightman and Gleta Martin of Clearview Acres farm in Hayward, Wisconsin. Working with the Department of Agriculture, Trade and Consumer Protection (DATCP), Tim and Gleta set up a cowshare program that had been pioneered by another farmer in the state. However, Tim and Gleta were not satisfied with the two-page contract that DATCP suggested, finding that it did not provide enough provisions for testing and safety. Tim revised the contract to allow for greater safety provisions and their program was soon supplying milk to 300 individuals.

As reported in Wise Traditions, on September 24, Clearview Acres received a complaint from the state of Wisconsin stating that the provision of raw milk to cowshare owners posed “an imminent public health hazard,” singling out Clearview Acres as the culprit in a local campylobacter outbreak even though only two of the four confirmed cases drank Clearview Acres raw milk, and Clearview Acres milk consistently tested negative for the disease. The outbreak followed on Thanksgiving which means that consumption of underdone turkey was the likely cause—72 percent of turkey is infected with campylobacter.

When Clearview Acres counsel requested documents from DATCP, including any lab tests indicating campylobacter contamination, the state stalled. Finally, on March 18, the department released several inches of documents. No lab tests for camphylobacter were included in the documents. (Tim and Gleta suspect that no tests were actually done.)

The documents indicated that DATCP had encouraged several farmers in the state to set up cowshare programs expecting someone to get sick from raw milk so they could shut the whole program down. Tim’s insistence on safety protocols defeated this plan. As Tim and Gleta went ahead with their program, the state sent a spy to buy a cowshare and pick up milk weekly. The released documents reveal that the milk was tested for over a year for the presence of listeria and salmonella and that DATCP complained when the tests turned out negative. Then the state tried to take away Gleta’s Grade A permit, but was stymied for lack of jurisdiction. Finally, DATCP blamed Clearview Acres milk on the local campylobacter outbreak and sent the cease-and-desist order.

So basically the Wisconsin agency responsible for food safety has been caught deliberately promoting raw milk sales with improper safety protocols in an attempt to cause an outbreak of illness. Tim and Gleta are continuing to defend themselves in administrative proceedings. They expect the case to end up in civil court and result in complete exoneration. After that they will sue the state for harassment and lost income. They have had very positive media coverage in the local press, which has published convincing arguments to counter DATCP’s deliberate disinformation campaign (including an article entitled “Raw Milk Should Not Be Considered Health Food”) but negative press in the major papers. Meanwhile, about 1100 individuals in the State of Wisconsin are consuming raw milk available through other cow-share programs—with plenty of reports of improved health and none of food-borne illness.

Update, Feb. 1, 2002: The MilkDirectTM Program

Pete Kennedy

Pete Kennedy is an attorney from Sarasota, Florida and president of the Farm-to-Consumer Legal Defense Fund (farmtoconsumer.org). He compiled the state milk laws posted at realmilk.com. He advises many farmers and members about legal issues surrounding raw milk.

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Tim WightmanTim is a founder and board member of the Farm-to-Consumer Legal Defense Fund and president of its education and charitable arm, the Farm-to-Consumer Foundation. He is the author of the Raw Milk Production Handbook, a handy resource guide for farmers interested in producing quality raw milk who wish to implement testing and safety standards, used in thousands of small dairies worldwide.

Tim is best known for pioneering one of the earliest herd sharing programs in the U.S. to help his customers legally obtain raw dairy products. He has actively worked with state legislators to write more sustainable, farm-friendly laws. He is an instructor in Cow Share College & Goat Share University where he now trains and consults with small farmers on quality food production, food safety, herd management and direct marketing to consumers. A lifelong farmer, Tim is on the forefront of our nation’s transition back to a local farm economy. Over the last two decades, Tim has launched several CSAs, organic cooperatives and farmers’ markets, and was the owner/operator of a major organic farm and store, bakery and restaurant that featured locally produced foods.

Tim has been profiled in the Wall Street Journal, and interviewed by numerous other media outlets nationwide. He has appeared in such national publications as Acres USA, Agri-View, Country Today, and Milkweed.

Tim lives in Western Ohio with his daughter, Anastasia, and works on national local food policy and sustainable agriculture issues.

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