Raw Milk Legalization — What Is New Jersey Waiting For?


The New Jersey Department of Health (NJDH) has been busy recently on the raw milk front. In one investigation NJDH sent cease and desist letters to various dropsites at private residences. The dropsites were allegedly distributing raw milk and raw milk products to customers of an out-of-state dairy. In another action NJDH was investigating a New Jersey based food buyers co-op sourcing raw milk from multiple out-of-state producers. The department was trying to determine which of the producers was responsible for an illness caused by the consumption of raw milk. The two cases represent an opportunity for the state to evaluate its law prohibiting the sale and distribution of raw milk and acknowledge that the law needs changing.

The cease and desist letters threatened the families operating the dropsites with fines for distributing raw milk. This isn’t the first time NJDH took this kind of action. In 2007 NJDH also sent cease and desist letters to individuals having dropsites at their residences. The difference from the investigation eleven years ago is that NJDH sent letters to considerably more dropsites this time around; not surprising since demand for raw milk has been consistently increasing for years. Otherwise law-abiding citizens will do what they have to in order to obtain raw milk in states like New Jersey where the sale is banned; whether NJDH will admit that or not, it’s the reality.

In the case of the food buyers co-op, NJDH was having a difficult time trying to determine which dairy was responsible for making a member of the club ill with brucellosis. There were media reports discussing the NJDH investigation but none reporting that the department had identified the producer responsible for the illness; it is clear that NJDH was having problems with traceability.

If you combine the growing demand for raw milk among New Jersey residents along with the traceability issue NJDH has been having with out-of-state dairies it would be a good move for the state to consider legalization. A good first move for the state would be to allow by policy the distribution of raw milk through herdshare agreements; under herdshare contracts raw milk consumers obtain an ownership interest in the dairy animal(s) enabling them to obtain raw milk and hire the farmer to board, care for and milk those animals. Herdshare programs are closed-loop arrangements in which there is a high level of traceability if there is a suspected illness; something NJDH should appreciate after what it has been through.

New Jersey dairy farmers have lost millions of dollars in potential revenues to Pennsylvania raw milk producers (there are less than 70 Grade A dairies left in the state) but that never moved the state government to end the prohibition on raw milk sales and distribution. What could change the state’s position though is the difficulty its health department had in conducting an investigation of foodborne illness combined with the fact that demand for raw milk among New Jersey residents will only continue to further increase. Allowing the distribution of raw milk through an arrangement outside the stream of public commerce would be a good first step for the state.

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They are Rounding Up the Raw Milk Drinkers

Republished by permission from Bernadette Barber, originally posted 25 January 2018 at Virginia Food Freedom.

Twin bills in the Virginia legislature, SB 962 by Sen. Mark Obenshain (R-26) and HB 825 by Del. Barry Knight (R-81) are the first steps in destroying the very farm operations that allow people to access cream line raw milk (farm fresh, unpasteurized, unhomogenized).

In the 1950’s it was common to purchase raw milk in VA. Over the course of time, industrialization forced smaller dairies out of the countryside. By the 70’s and 80’s people were missing that good old real milk. They sought it out and by default, since by then outright purchase was illegal, they found that it was not illegal to drink milk from your own cow. So it began, cow shares and herd shares sprang up in Virginia.

People chose raw milk for a myriad of reasons, taste, healthfulness and ability to know the farmer who milks the cow are three major ones.

To understand the gravity of the situation, one must understand the power hungry milk processors at the state level and the national level. They have well paid lobbyists. The lowly dairy farmer him or herself does not make a fortune on milking cows. They might make a dollar a gallon (it is measured by weight not volume). On the other hand the processors, who manufacture the creams, yogurts, butters, flavored milks, cheeses and more are making a fortune. Sometimes the margins are so slim on items they constantly must create new items to appeal to the masses. Over the course of time competing industries have interfered with profit margins. Enter protein and power beverages, designer teas, gatorade, coconut milk, almond milk, designer juices and more. They all command attention at the grocery store and the dairy industry is losing the customer base it once had.

Citing USDA Agricultural Marketing Service Data from 2012 to 2016, annual conventional milk sales declined by 8%, (that’s 4 billion pounds) and organic milk sales increased by 20%. The decrease in fluid milk sales transfers to an annual decline of $1.7 billion dollars as reported by the American Farm Bureau Federation.

So there it is, the bottom line. Fluid milk sales is a mult-billion dollar trade. And they don’t want to share. So in come the RINO republicans and industry advocates, Barry Knight and Mark Obenshain to kill off a small thriving community of cow-sharing- organic-raw-milk drinkers and farmers.

Do yourself a lovely favor this day, consider acquiring some raw cream for your coffee. And do some online research. In one search use the word CAFO and in another use the words cow share. See which model you would like to use for your personal food consumption. And ask yourself why Knight and Obenshain want to destroy small farm operations.

If you have more time, please call Del. Knight 804-698-1081 and Sen. Obenshain 804-698-7526 and ask them to withdraw the bills. Because they are both on the Agriculture Committees, they do represent ALL Virginians in that aspect, please don’t let the gatekeeper deny your voice. It will help some small farmers.

For more information on the issue and to get involved, please view and join www.vicfa.org 

Thanks for all your help,

Bernadette Barber

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A Wishlist of Just Laws for Those Who Feed Our Families


At the end of 2017 there were several enforcement actions and investigations underway against raw milk distributors. In a Kansas City district court the U.S. Food and Drug Administration (FDA) was seeking an order allowing it to seize and destroy $70,000 of camel milk and camel milk products, most of it unpasteurized. Government agencies in four different states were investigating a New Jersey food buyers club in connection with an illness attributed to raw milk consumption. In a separate investigation the New Jersey Department of Health sent cease and desist letters to a number of private residences in that state that were allegedly serving as dropsites for the distribution of raw milk and other nutrient-dense foods.

Out of the three cases, the only illness involved was traced to the administration of a brucellosis vaccine to a cow that resulted in active brucella showing up in the raw milk. In the FDA and New Jersey Department of Health investigations there were no allegations of adulterated raw dairy or other foods being distributed. Still, distributors in all three cases could be subject to criminal and/or civil penalties for distributing food their customers believed best for their health and well-being. As the new year gets underway what laws could be passed to better protect producers and distributors of nutrient-dense foods and improve the chances of those individuals getting justice if the government brings a formal administrative or judicial action against them. Here are some suggestions towards making this happen.

    Jury Nullification
    Jury nullification is the legal concept where the jury has the right to acquit the defendant even if the law points toward guilt if the jury believes that it would be unjust to apply the law given the facts of the case. Jury nullification can take place in either criminal or civil trials. The Alvin Schlangen and Vernon Hershberger trials, respectively in Wisconsin and Minnesota, were jury nullification cases where the juries refused to convict the two for violations of the food and dairy laws even though under the letter of the law either could have been found guilty.

    The U.S Supreme Court has recognized the right of a jury to acquit a defendant when it believes that the application of the law to the facts of the case would be unjust.1 The trouble with jury nullification at the federal level and in nearly all states is that even though the jury has the right to judge the law as well as the facts in a case, judges and defense attorneys are prohibited from informing juries that this right exists. States need to pass laws lifting this prohibition.

    In 2012 the New Hampshire legislature passed a law stating, “In all criminal proceedings the court shall permit the defendant to inform the jury of its right to judge the facts and the application of the law in relation to those facts.” In a 2014 case, State v. Paul2 the New Hampshire Supreme Court held that this law did not impose any obligation on the court to “instruct the jury as to jury nullification.”2,3

      In response to the supreme court’s ruling a bill (HB 133) was introduced in the 2017 New Hampshire legislative session that read: In all criminal proceedings the court shall inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy. At the request of the defendant or the defendant’s attorney, the court shall instruct the jury as follows: “If you have a reasonable doubt as to whether the state has proved any one or more of the elements of the crime charged, you must find the defendant not guilty. However if you find that the state has proved all the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty. Even if you find that the state has proved all of the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case a guilty verdict will yield an unjust result, and you may find the defendant not guilty.”

    The 2017 New Hampshire bill is the type of legislation that needs to pass to strengthen the juror’s right of nullification. At a minimum it makes no sense that a defense attorney cannot even inform the jury of this right. Jurors should not have to work in the blind as to their nullifying rights as they did in the Hershberger and Schlangen cases where the law prohibited the judge and the defense attorneys from telling the jury directly about jury nullification. Jury nullification is a bedrock of our justice system; jurors should be educated about it.

    Jury Trials in Food Condemnation Cases
    Government agencies generally have to petition courts to destroy food the agencies have seized. The government usually does this on the grounds of protecting the public health but in nearly all cases there is no evidence that the food from the same production batch under seizure has made anyone sick. For some producers or distributors a single court order to destroy food can put them out of business. In cases like the Kansas raw camel milk seizure the government hasn’t even alleged that the milk is adulterated or a threat to human health.

    In one Missouri case, a court ordered the destruction of over 30,000 pounds of raw cheese even though the cheese manufacturer, Morningland Dairy, had never been accused of making anyone sick in 30 years of doing business and neither FDA nor the Missouri Milk Board had tested any of the cheese subject to the destruction order. FDA had taken 100 environmental swabs at the facility all of which were negative for the pathogen. Judges who rule against destroying food are in a no-win situation even if the facts of the case favor the food producer or distributor; they are under tremendous pressure to err on the side of protecting the public health even if there is no real health threat at all. A jury would better take into consideration the evidence on the side of producers and distributors in these cases.

    Jury Trial for Cases Where the Government Seeks a Permanent Injunction Against Food Producers and Distributors
    An injunction is a court order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury. A permanent injunction is a final court order that is permanently in effect unless the court lifts the order. Those who violate the injunction can face contempt charges with the possibility of fines and/or jail time.

    In Michigan the past couple of years the Michigan Department of Agriculture and Rural Development (MDARD) has brought court actions for injunction against two different raw milk producers, Hill High Dairy and Dairy Delight Cow Boarding, for matters that should not have been any of MDARD’s business. In the Hill High Dairy case the department tried to stop individuals leasing cows from having the leaseholders hire someone to process their own raw milk into other dairy products; in the Dairy Delight case the department tried to stop those in a herdshare program from selling, among other foods, oatmeal cookies and apple muffins to other shareholders without proper labeling. Both cases involved private, closed-loop transactions far outside the stream of public commerce; in the Hill High Dairy case, MDARD not only obtained an injunction against the dairy prohibiting it from violating state food and dairy laws but brought contempt charges against the dairy when its leaseholders continued to have their raw milk processed into other dairy products. Thankfully, the judge hearing the case brought some common sense to the matter when he ruled the dairy was not in contempt.

    Agencies like MDARD would be less likely to bring actions for an injunction and contempt suits for violation of an injunction in these type of cases if they knew that food producers and distributors would be entitled to a trial by a jury of their peers.

    Right to Jury Trial for Appeals of Administrative Rulings
    Government agencies seeking to punish food producers with penalties such as license revocation or fines can resort to administrative hearings where the odds of success are not as great for producers as they would be in a judicial court. Several raw milk producers have found out firsthand that administrative hearings are often one-sided proceedings in which those the agency is trying to punish are afforded little due process.

    One Ohio farmer had his dairy license revoked at an administrative hearing for taking a $2.00 donation for a gallon of raw milk he gave to an undercover officer from the Ohio Department of Agriculture. Raw dairy producers have been through administrative hearings where, even if the person presiding over the hearing ruled against the government agency, the agency had the power legally to ignore the ruling and issue the order it wanted to anyway.

    Parties can appeal the ruling to a judicial trial court; the courts sits as an appellate court for the appeal but is limited to reviewing just the record from the administrative proceeding. The system needs to change so that the trial court would sit as a trial court trying the matter from the beginning as if it had never been heard in the administrative proceeding (the legal term is de novo trial) to give the individual the agency seeks to punish a fresh start in a less biased proceeding. To further discourage government harassment there should be a right to a jury trial in the appeal of an administrative proceeding to a judicial court.

Even if a state currently has a favorable regulatory climate for the production and distribution of nutrient-dense food, it is still the right move to pass the laws suggested above in case the enforcement policy of the agencies ever change.

Producers and distributors of raw milk and other nutritious foods who take the risks they do to make those foods available deserve to get justice and not just law if a court action is brought against them. Greater protection is needed for those who provide for our sustenance.

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[1] Spanf v. United States 156 U.S. 51 (1895)
[2] State v. Paul 167 N.H. 39,42
[3] The jury instruction the trial court judge gave in the Paul case was: “You should follow the law as I explain it regardless of any opinion you may have as to what the law ought to be. If you have a reasonable doubt as to whether the State has proved any one or more of the elements of the crime charged, you must find the defendant not guilty. However, if you find that the state has proved all elements beyond a reasonable doubt, you should find the defendant guilty.” Paul, p. 41.

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FDA Antibiotic Test Requirement Threatens to Cut Raw Milk Supply in Pennsylvania


Controversial antibiotic test requirements imposed by the U.S. Food and Drug Administration (FDA) will be going into effect next month in Pennsylvania. According to the Pennsylvania Department of Agriculture (PDA), Pennsylvania will be the last state to implement the testing requirements; FDA initially issued them in 2011.1 The requirements will especially impact raw milk farmers who sell part of their production to dairy cooperatives for pasteurization as well as selling raw milk direct to the consumer or through retail stores. The main reason that the FDA testing mandate has received much more attention than in any other state is that there are more producers in Pennsylvania than any other state whose raw milk goes for both pasteurization and for direct consumption. Thanks to laws in neighboring states that either restrict or prohibit raw milk sales or distribution to consumers in both the northeastern and mid-Atlantic regions rely on Pennsylvania raw milk producers for their sustenance.

The antibiotic testing requirements are that farmers producing either raw milk for pasteurization or raw milk to be manufactured into other dairy products (such as raw or pasteurized cheese) must test every batch of raw milk produced for antibiotic residue even if the producer’s dairy operation is certified organic. Producers who only produce raw milk for human consumption are not subject to the FDA testing requirement. Producers subject to the testing mandate will either have to do their own testing on equipment that could cost thousands of dollars to purchase, pay thousands each year for testing by a state-approved lab or, in the case of producers selling to a co-op, wait to get test results (milk haulers transporting milk for co-ops collect samples for testing of each batch of raw milk they pick up from a farm belonging to the co-op). Producers cannot commingle any milk from a subsequent batch until they get test results back from the co-op; further complicating matters is the fact that co-ops typically do not report test results to member farmers at all, much less on a timely basis. PDA has gotten reports of producers working with co-ops to create a process for timely reporting of test results but it remains to be seen how these efforts pan out.

Dairy Farmers of America, a co-op with a history of strong opposition to legalizing raw milk sales for human consumption, controls a substantial percentage of raw milk produced for pasteurization in Pennsylvania, possibly over one-half of the total. Trickling Springs Creamery, a well-known Pennsylvania co-op, has already notified its members that one hundred percent of their production must go to the co-op; members will not be able to retain any raw milk for retail sales or for manufacturing into any other dairy product. If a farmer selling raw milk to a co-op for pasteurization is found to violate the antibiotic testing requirements, FDA can not only stop the farmer’s shipments to the co-op, it can shut down the co-op from making any shipments in interstate commerce.

To its credit, PDA (with FDA’s approval) has established a variance process, where those dairies it grants a variance will be exempt from the antibiotic testing requirements.2 Forty farmers have applied for the variance so far; out of the sixteen applications PDA has reviewed, it has approved seven for a variance. Those eligible for the variance include those farmers that pasteurize and bottle all the raw milk they produce and those manufacturing other dairy products only from raw milk produced on their farm. Producers selling any of their raw milk production to a co-op are not eligible for a variance per order of FDA; the nine applications PDA rejected were all from those selling part of their production to a co-op.

A PDA official estimated that as many as one-half of the 68 Pennsylvania dairies permitted to produce and sell raw milk for human consumption are Grade A dairies that sell some of their milk production to a co-op. If these dairies aren’t able to make a workable arrangement with their co-ops on reporting test results, the cost of antibiotic testing could drive many to drop their permits and get out of the raw milk business when antibiotic residues in the milk was never a problem for any of them to begin with. The FDA testing requirement, in their cases, has nothing to do with protecting the public health.

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[1] Public Health Service/FDA, Appendix N Drug Residue Testing and Farm Surveillance, “Grade A” Pasteurized Milk Ordinance 2015 Revision; pp. 374-379. Note: the PMO is a document governing the production distribution, and transportation of raw milk intended for pasteurization; Pennsylvania and nearly all other states have adopted the PMO and the other states must have standards at least as strict. Accessed 12/20/2017 at https://www.fda.gov/downloads/food/guidanceregulation/guidancedocumentsregulatoryinformation/milk/ucm513508.pdf
[2] PDA Commissioner Russell Redding, Letter to Pennsylvania Milk Permitholder, 4 October 2017. Subject: Update on Implementation of Drug Residue Testing Requirements of FDA’s Appendix N of the Pasteurized Milk Ordinance”

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Pride & Joy Creamery Closes Down Raw Milk Operation


For the past 10 years Allen and Cheryl Voortman of Pride and Joy Creamery in Granger, Washington, have produced high quality raw milk that has benefited the health of thousands of their customers. At the beginning of 2017 Pride and Joy Creamery was one of the largest raw milk dairies in Washington, distributing their nutrient-dense product throughout the state. Long certified as a 100% grassfed organic dairy, Pride and Joy received the highest rating given by the nonprofit organic industry watchdog Cornucopia Institute to organic milk producers–a rating given only to ten other dairies in the country.

Sadly, today, Pride and Joy Creamery is out of the retail raw milk business and only produces raw milk for pasteurization. The Voortmans no longer have the herd that produced raw milk for direct consumption. Two shutdowns of the dairy engineered by the Washington State Department of Agriculture (WSDA) led the Voortmans to make the decision to end their raw milk operation.

In February 2017, WSDA and the Washington Department of Public Health accused the dairy’s raw milk of making two people ill with salmonella poisoning. It is not known whether public health officials tried to find any other foods the two sick individuals might have consumed in common once it was discovered that each drank the dairy’s raw milk. WSDA sent samples of the dairy’s raw milk to the state lab; while the samples were negative for salmonella, two samples were positive for shiga-toxin producing e-coli (STEC), a result the department used to pressure the Voortmans into conducting a voluntary recall of the dairy’s raw milk which ultimately resulted in the dairy being shut down for over two months. WSDA produced no evidence that the STEC it found in the milk samples was capable of making anyone sick.

In September, milk samples taken by WSDA tested positive for salmonella, eventually leading the department to suspend the dairy’s license to produce raw milk. When samples WSDA took in October were also positive for salmonella, the Voortmans shut down their raw milk operation for good rather than incur the tremendous expense it would have taken to get WSDA’s approval to start up again. Samples from the same batch of milk that the Voortmans sent to an accredited laboratory in Idaho were all negative for salmonella. During this time, there were no reports of illness caused by the consumption of raw milk. A November post on the Pride and Joy Facebook page announcing the end of the dairy’s retail raw milk business noted, “the bureaucracy, financial burden and uncertainty of this business is now too much for us.”

There is something wrong with the Washington regulatory system when one of the state’s most popular dairy is forced out of business even though its raw milk has arguably made no one sick. Pride and Joy is not the only Washington raw milk dairy to go out of business in recent months; since around the middle of the year three other dairies have turned in their permits. The four farms account for about ten percent of the total number of licensed Washington raw milk dairies.

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Photo below by Yevgeniy Novozhilov posted November 13, 2017, on the Facebook page for Pride and Joy Creamery with the comment: “Thank you Pride and Joy, for the best-tasting raw milk. My family really enjoyed it for the past several years. Will miss your products very much!”

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Michael Schmidt out on Bail; Moving Forward with Appeal of Conviction


On November 22 Durham Ontario dairy farmer Michael Schmidt was granted bail and released from serving a 60-day jail sentence pending the farmer’s appeal of a conviction for obstructing a peace officer; Schmidt posted a $2,500 bond to secure his release. Schmidt had been convicted on October 19 for the offense; subsequently, Justice Ronald Minard of the Ontario Court of justice sentenced Schmidt to sixty days in jail with time to be served over fifteen consecutive weekends. The farmer had served eight days of his sentence at the time bail was granted. Four others–Enos Martin, Robert Pinnell, George Bothwell and John Schnurr–were charged with a similar offense; Schnurr was found not guilty and charges were dropped against Martin, Pinnell and Bothwell.

The charge against Schmidt stems from an October 2, 2015, raid of his farm. Schmidt and 70 supporters were at the farm when government officials possessing a warrant were blocked from leaving the premises in a van containing equipment and dairy products. The officials left only after leaving the seized materials at the farm; multiple provincial and municipal government agencies participated in the raid.

The government obtained a warrant to search the farm on the grounds that it needed to investigate Schmidt to determine whether the farmer was violating the Ontario Milk Act. The Act prohibits the sale or distribution of raw milk for human consumption; many believe this provision only applies to raw milk sold or distributed to the general public.Schmidt only distributes milk to individuals who own shares in his farm; he distributes no milk to anyone who isn’t a shareholder.

Schmidt is appealing the conviction for the obstruction of a peace officer as well as a court ruling holding that the 23 months the case went on did not violate the speedy trial provision contained in the Canadian Charter of Rights and Freedoms. The Canadian Supreme Court has interpreted this provision to mean that, if it takes more than 18 months between the time charges are brought and the end of trial in provincial court cases, there is an automatic presumption the delay is unreasonable. In Schmidt’s case the Justice agreed with the Crown’s argument that the presumption shouldn’t apply because there were exceptional circumstances in the case.1

A petition on Change.org to free Schmidt that drew over 7,500 signatures helped draw greater attention to the draconian sentence given the farmer who was only trying to keep the government from confiscating the private property of his shareholders; property the government arguably didn’t have jurisdiction to take. The petition noted that when tainted meat from Maple Leaf Foods was found to have killed 22 people and sickened many more in 2008, the Crown never brought charges against anyone with the company. Schmidt has produced raw milk for over 30 years; no one has ever accused him of making anyone sick.2

For the last 23 years the government has unsuccessfully tried to shut down Schmidt’s efforts to provide healthy dairy products to educated and informed consumers; its endless harassment has cost taxpayers millions of dollars and made a North American icon out of a small farmer in the process. Schmidt might not have been able to change the law but he has had a huge impact, substantially increasing the demand for and supply of raw milk since the time the government started persecuting him. There are significantly more dairy farmers in Canada today distributing raw milk through herdshare and farm-share programs; Schmidt’s decades long campaign of non-violent resistance to unjust laws has emboldened them. The situation in Canada with the prohibition on raw milk sales in all provinces is becoming more similar to the situation in the U.S. with the interstate raw milk ban; greater numbers of otherwise law abiding citizens are violating these laws with regularity. It’s time for provincial and municipal governments in Canada to acknowledge reality, leave Schmidt alone, and stop interpreting provincial raw milk laws to cover distribution to farm and dairy animal owners.

Michael and Elise Schmidt are trying to raise funds to cover the cost of his court battle. Those supporting freedom of choice are encouraged to back Schmidt’s fight by donating at GoFundMe.com/foodrights. The farmer is a little more than halfway to reaching his goal of raising $100,000.

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Top photo from Owen Sound Sun Times by Don Crosby, “Raw milk advocate Schmidt released pending obstruction appeals”, November 23, 2017. Accessed 12/1/2017 at http://www.owensoundsuntimes.com/2017/11/23/raw-milk-advocate-schmidt-released-pending-obstruction-appeals

1. Don Crosby, “Raw Milk Advocate Schmidt Found Guilty of Obstruction”, The Owen Sound Sun Times, 20 October 2017. Accessed 11/30/2017 at http://www.owensoundsuntimes.com/2017/10/20/raw-milk-advocate-schmidt-found-guilty-of-obstruction

2. Laura Redman, “FREE Ontario FARMER Michael Schmidt – CHANGE CANADA’s ARCHAIC RAW MILK LAW”, Change.org, November 2017. Accessed 11/30/2017 at https://www.change.org/p/kathleen-wynne-free-ontario-farmer-michael-schmidt-change-canada-s-archaic-raw-milk-law

Michael Schmidt in front of the Walkerton Court House at an earlier stage of the Obstruction trial on August 25th, 2017. [Source: The Bovine Press, “Michael Schmidt was Convicted in Walkerton Court of Obstruction”]

Raw milk activist and farmer Michael Schmidt was convicted yesterday (Oct. 19th, 2017) in Walkerton court of obstructing a peace officer. The charge arises from a raid on Glencolton Farms on October 2nd, 2015 in which investigators were prevented — by the crowds of supporters — from leaving the farm with equipment which they had seized. They were eventually allowed to leave once the equipment had been removed from the truck. Read the full post


Graphic from Facebook post by the Natural Health Products Protection Association (NHPPA) shared 11/14/2017 on Glencolton Farms. Here’s the opening excerpt from that post:

Chances are slim any of you spent the weekend in jail. At 6:00 pm Friday November 10, 2017 raw milk farmer, food rights advocate and social activist Michael Schmidt entered the Central North Correctional Centre, a maximum security prison in Penetanguishene, Ontario. It is both a remand facility and one where time is served for a range of minor offenses and serious crimes. For Michael, it was the first of a 60 day “rehabilitation and deterrence” sentence to be served on weekends.

NHPPA connected with Michael before his 3 hour drive from farm to prison and asked him to send this post’s accompanying selfie. “When I was there to get processed [earlier in the week] I was asked by a guard what my obstruction of an officer was for and I just said one word, “Milk”. Then the whole high security dynamic of what they were doing suddenly changed. Other guards came up to me and said “You’re the one!” I heard a guard say “you are the most ridiculous inmate we’ve got from the government”. We had wonderful talks and a couple shared that they that they had grown up on farms and drank raw milk. It was a remarkable experience so that, in a way, I’m looking forward to going in there because of what it does. It reflects back to the intention of the government that they want to punish. And for the wrong things. At the same time it brings out exactly what’s wrong with government. I have no idea what kinds of inmates I’ll be with but it doesn’t worry me at all.”

NHPPA asked about where his younger children were told that their father was going on weekends. “The night before I had to leave we had a really exciting time! We went on the computer together and looked up all the pictures we could find of the jail. I told them, “Look, this is where I’m going to sleep, and this is where I’m going to play with the other inmates, and that’s the room where we all eat and so on”. They asked if I will get to go outside. I said, “No, no. They want to make sure that I will stay warm. There’s also a big fence around it so that no one can come in and steal Papa”. So, they were totally fine. I also told them if “they don’t clean up your rooms, then Papa can’t go to jail!” They cleaned their rooms quickly that night. It was completely turned around. It’s an excitement now. I promised I will tell them everything about how it is on the inside, and if possible, that I would take them with me next time but that they might not be let in because only Papa has done “so much work to be there.”

“All I can say about my adult children and how they feel comes from one comment from my daughter in Germany. She read that I got sentenced and that the judge had said that he has to send a warning to others and a deterrent to Mr. Schmidt that his behaviour and actions are unacceptable. My daughter wrote something like, “as if this is going to stop my dad”. So, they’re all totally fine.”

Original item posted on NHPPA Facebook page

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FDA Files Lawsuit to Seize Healthy Food

On October 19, 2017, the United States Food and Drug Administration (FDA) filed a complaint with a federal district court in Kansas to seize and condemn around $70,000 of raw camel milk, pasteurized camel milk, raw camel milk colostrum, and raw camel milk kefir.[1] The camel milk products are currently being held at a frozen food warehouse, My Magic Kitchen, located in Kansas City. The Kansas Department of has placed all the products under embargo, prohibiting their movement from the warehouse.

All labels on the frozen products FDA wants to seize bear the name Desert Farms; the Santa Monica, California based company is the largest raw milk distributor in the U.S. According to the complaint, Hump-Back Dairys of Miller, Missouri produced nearly all of the product being held at the warehouse; the dairy is, by far, the largest camel milk producer in the country.

There has been a thirty-year ban on raw dairy products (other than aged raw cheese) in interstate commerce; FDA interprets the ban to extend to raw milk camel products. In December 2016 Samuel Hostetler, the owner of Hump-Back Dairys, received a warning letter from FDA.[2] The letter to Hostetler warned that he was violating the interstate ban by shipping both raw camel milk and raw camel milk products in interstate commerce; Hostetler responded to the warning letter by informing the agency that he would be complying with the federal regulation establishing the ban.

Walid Abdul-Wahab, the president of Desert Farms, also received a warning letter from FDA in September 2016 but the letter did not mention the interstate raw dairy ban; instead the letter accused Desert Farms of violating the law by shipping “new drugs” that were not approved by FDA in interstate commerce.[3] The letter noted that Desert Farms was making health claims on its website and facebook page about how camel milk was being successfully used to treat various diseases, especially autism. The letter warned that the camel milk products were drugs because “they are intended for use in the care, mitigation and treatment of disease”. As such they were “new drugs” that needed approval from FDA before they could be marketed. The FDA approval for new drugs processing can cost in the hundreds of millions of dollars.

The FDA suit filed for the seizure and destruction of the camel milk products alleges that Desert Farms’ social media pages (Facebook, Twitter, YouTube and Instagram) linked to the company’s website contain claims that “demonstrate that the camel milk products are intended for use in the diagnosis, cure, mitigation, treatment or prevention of disease, including autism, diabetes, multiple sclerosis, Crohn’s disease, viral infections such as hepatitis, the genetic disorder Machado-Joseph, depression, gastrointestinal disease, heart problems, attention deficit disorder, autoimmune diseases, Hashimoto’s disease and cancer.”[4]

What neither the warning letters nor FDA’s complaint for seizure allege is that the camel milk products are adulterated or a threat to human health. As far as is known there has never been a case of foodborne illness in this country attributed to consumption of camel milk. Destruction of the camel milk products at the warehouse would be an absolute waste of healthy food.

It is estimated there are over 10,000 families with autistic children in the U.S. that purchase raw camel milk; many of these families pay $18 a pint or more for the product. There is a reason for that; parents of autistic children have found that raw camel milk and camel milk products can alleviate the symptoms of the condition known as autism spectrum disorder. The science backs them up [5]; pasteurized camel milk can be effective in alleviating the symptoms of autism as well though not to the same degree.

Earlier this year FDA released an article on its Consumer Updates page titled, “Autism: Beware of Potentially Dangerous Therapies and Products.”[6] In the article FDA warns about taking camel milk as a treatment for autism and autism-related symptoms. When FDA warns about taking a product for a disease, it is often because the product is a threat to the profits of the pharmaceutical industry.

FDA is seeking a court order to destroy over 4,300 8- and 16-ounce bottles of camel milk products; product that can help autistic children cope with their condition. The judge hearing the case has the discretion to release the product to Desert Farms.[7] If Walid Abdul-Wahab shows the court that any health claims are no longer on the Desert Farms website and social media and that he is willing to pasteurize the camel milk (with the interstate ban, he would have no choice if he wants the product released) and label the milk containers accordingly the judge could release the product to Desert Farms. Healthy food like this should not wind up in a landfill.

A court date for a hearing on the seizure petition has not been set yet.

—————-
[1] United States of America v. Camel milk products, et al, Kansas Civil Action No. 17-2609 (2017). Access docket files via Pacer.gov for Case #: 2:17-cv-02609-CM-KGS. Retrieved 11/18/2017 from Justia.com at https://dockets.justia.com/docket/kansas/ksdce/2:2017cv02609/118800

[2] FDA warning letter to Samuel P. Hostetler (DBA) Hump-Back Dairys, dated 12/19/16. Retrieved 11/18/2017 at https://www.fda.gov/ICECI/EnforcementActions/WarningLetters/2016/ucm534108.htm

[3] FDA warning letter to Desert Farms, dated 9/15/16. Retrieved 11/19/2017 at https://www.fda.gov/iceci/enforcementactions/warningletters/2016/ucm524663.htm

[4] United States of America v. Camel milk products, et al

[5] “Casualties of the Raw Milk Ban”, January 17, 2017, Farm-to-Consumer Legal Defense Fund website. Retrieved 11/18/2017 at https://www.farmtoconsumer.org/blog/2017/01/17/casualties-raw-milk-ban/

[6] FDA, “Autism: Beware of Potentially Dangerous Therapies and Products”, www.fda.gov updated April 12, 2017; originally published April 25, 2014 (see https://www.actcommunity.ca/resource/3565/). Retrieved 11/18/2017 at https://www.fda.gov/ForConsumers/ConsumerUpdates/ucm394757.htm

[7] United States Code, 21 USC 334(d). Accessible at https://www.law.cornell.edu/uscode/text/21/334

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Michigan Raw Dairy – How One Consumer Made an Impact


Michigan raw dairy consumers and producers owe Mike Lobsinger a debt of gratitude. Lobsinger, a retired businessman and leaseholder in a herd lease arrangement, along with farmers Joe and Brenda Golimbieski are the ones most responsible for a favorable court ruling establishing that consumers can obtain raw dairy products other than milk under a herdshare or herd lease agreement. 1 Thanks mainly to Lobsinger and his attorneys, John Stiers and Elise Arsenault, legal action taken by the Michigan Department of Agriculture and Rural Development (MDARD) to stop the distribution of cream, butter and other raw dairy products to leaseholders at the Golimbieski farm was not successful, establishing a case law precedent. The case shows the power to make an impact that consumers have.

Lobsinger believes it is the consumer’s right to select the farmer from whom they get their food but also that it should be the consumers’ responsibility to do what they can to back up their farmer when the farmer is facing an enforcement action from a government agency. Lobsinger, who is a member of both the Weston A. Price Foundation (WAPF) and the Farm-to-Consumer Legal Defense Fund (FTCLDF), went far beyond what consumers would typically do to protect their farmer in supporting the Golimbieskis.

In March 2013, MDARD issued a written policy, Policy 1.40 which legalized the distribution of raw milk through a written herdshare or herd lease agreement. Policy 1.40 stated that herdshare programs were to include distribution of only raw whole milk and that products such as butter, yogurt and cheese, etc., could only be sold or distributed by licensed producers. The “catch 22” is that Michigan law prohibits even licensed producers from selling products such as raw butter, cream and yogurt.

The Golimbieskis, who have a Grade A dairy operation, Hill High Dairy, were distributing raw butter and cream under their herd lease program to consumers who had signed a herd lease contract. Lobsinger, who obtains raw cream to put in his coffee was one of them.

Whenever the MDARD inspector was conducting her semi-annual inspections of Hill High Dairy, she would seize raw dairy products she found in a refrigerator located in a utility room, on the farm. In 2015 MDARD filed a court action against each of the Golimbieskis, Hill High Dairy and B.J.’s Boarding, an entity that was formed to lease cows to those wanting to get raw milk. The department petitioned the court to issue an injunction prohibiting the four parties from among other things, distributing raw dairy products other than milk to leaseholders.

Lobsinger entered the fray by successfully intervening as a third-party defendant in the case, claiming that MDARD was interfering with his property right to have milk produced by his cow separated into cream. Despite the successful intervention into the case, Judge James Jamo issued an order enjoining the Golimbieskis, Hill High Dairy and B.J.’s Boarding from violating any applicable Michigan food and dairy laws. The Judge did state in the opinion granting the injunction that there was no proof the defendants had violated any laws.

During a June 2016 inspection of Hill High Dairy, inspectors again seized and confiscated raw dairy products, including Lobsinger’s cream; subsequently, MDARD petitioned Judge Jamo to find the four defendants in contempt of court for violating the injunction. Lobsinger successfully intervened in the case again as a third-party defendant in the contempt petition and also filed a separate action against MDARD in the Michigan Court of Claims, suing the agency on the grounds that seizure of his cream violated his due process rights. The relief Lobsinger sought included a ruling that “another individual or agent may separate Lobsinger’s cream and skim milk on Lobsinger’s behalf without MDARD licensure or oversight and may deliver Lobsinger’s cream and skim milk to Lobsinger as long as the milk and cream are used exclusively for the personal consumption of Lobsinger and his family.”

In December 2016 Judge Jamo ruled that the defendants were not in contempt, establishing a legal precedent that raw dairy products other than milk can be distributed under a herd lease or herdshare arrangement without violating Michigan law. Ironically, at the time the Golimbieskis received word about the ruling on MDARD’s inspection, MDARD inspectors were once again seizing raw dairy products at the farm as they conducted an inspection.

When the inspectors finished their next scheduled inspection in June 2017 without seizing Lobsinger’s cream (or any other raw dairy products), Lobsinger withdrew his lawsuit figuring that he already had a favorable ruling in the contempt case that he didn’t want to jeopardize and seeing that MDARD was no longer confiscating products it once saw as contraband during its inspections of the Golimbieski farm. Lobsinger made it clear that if MDARD tampered with his cream in the future, he wouldn’t hesitate to sue the department again for its violation of his rights.

Lobsinger hired attorneys to fight MDARD because he wanted the public to know that the department was going after individual property rights in seizing dairy products from the Golimbieski farm. A look at the transcripts in the Golimbieski court case shows the contempt MDARD had for the leaseholders’ property rights. MDARD’s attorneys characterized Lobsinger retaining another leaseholder to separate Lobsinger’s own milk into cream as an illegal activity. The attorneys claimed the case was about a Grade A dairy violation and had nothing to do with property and contract rights. MDARD’s position was that there was no difference between sales of cream to the general public and distribution of cream to the owner of the milk from which the cream was processed. The department was in effect claiming that if someone went to Lobsinger’s house to separate milk into cream that it would have jurisdiction and could stop this “illegal transaction.”

Fortunately, Judge Jamo wasn’t buying into what Lobsinger called MDARD’s “jibberish”. He asked MDARD attorney Danielle Allison-Yokum if there was any case law to back up this assertion; the attorney admitted there was not.

Lobsinger’s intervention changed the dynamic in the Golimbieski case. Instead of the focus of the case being on a Grade A dairy violation, it was on property rights. Lobsinger’s willingness to hire attorneys to protect those rights made that happen. It shows the impact one individual can make.

1 A herdshare agreement involves someone purchasing an ownership interest in a dairy animal or animals and hiring the farmer to board, care for, and milk the animal(s); the difference in a herd lease agreement is that someone leases the dairy animal(s) and has ownership rights in the animal(s) for the term of the lease.

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Montana Becomes 43rd State to Legalize Raw Milk Distribution

FOR IMMEDIATE RELEASE

FALLS CHURCH, VA—August 1, 2017—Montana has become the 43rd state to legalize raw milk distribution, doing so through a method that no other state has adopted. Montana residents can now get legal access to raw milk through purchasing securities, giving them ownership interest in a dairy animal or dairy animals. Dairy farmers wanting to sell stock in their animals need to obtain an exemption from the state securities registration requirement; the farmers fill out an application for the exemption with the Office of the Commissioner of Securities and Insurance (OCSI). Please do not contact OCSI.

OCSI has granted exemptions for stock offerings of dairy animals in the past including one in 2016 for an FTCLDF member selling ownership interests in dairy goats, but the Montana Department of Livestock (DOL), which has jurisdiction over dairy production and sales, had left open the possibility of taking enforcement action against producers under the exemption. During recent communications with OCSI officials, DOL leadership indicated it would honor the exemptions, changing its prior policy. DOL would still have oversight over raw milk producers operating under the exemption. FTCLDF member Chris Rosenau was instrumental in forging the breakthrough on the DOL policy. Rosenau has led the effort to pass a raw milk bill the last three legislative sessions in Montana. OCSI limits stock offerings to ownership in four cows with 25 solicitations (meaning a maximum of 25 stockholders) per offering. It is not clear at this point how many goats could be included in an offering, but the number is probably around the same as for cows.

DOL will likely continue to regard the typical herd share arrangements existing in Montana (and many other states) as illegal even though Montana law provides a strong argument for their legality.

Rosenau, who has spent thousands of uncompensated hours working for a change in the state raw milk laws, regards the new DOL policy as a foot in the door and a step towards expanding raw milk access in the state. She plans on working with legislators to introduce another raw milk bill in the next legislative session.

FTCLDF drafted documents for the farmer member mentioned earlier who successfully obtained the exemption in 2016. Montana dairy farmers interested in applying for the exemption can contact FTCLDFAgain, please do not contact OCSI.

Delaware, Hawaii, Iowa, Louisiana, Nevada, New Jersey, Rhode Island—seven states to go.

Attorneys for FTCLDF have spent a substantial amount of time working to legalize raw milk distribution in Montana. The goal of legal raw milk in all 50 states is in sight. Please help us continue our push towards making this happen by attending our fundraiser or by making a donation.

Media Contact:
Farm-to-Consumer Legal Defense Fund
703-208-3276, info@farmtoconsumer.org

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FDA Boxed in on Interstate Ban

For some time now, enforcement on the interstate ban of raw milk and raw milk products by the United States Food and Drug Administration (FDA) has looked to be an exercise in futility (only raw cheese aged 60 days or more is legal in interstate commerce). Thousands of otherwise law-abiding citizens violate the ban in this country on a regular basis. FDA has stated that it will not enforce the ban against individuals transporting raw milk across state lines for their own consumption; to the FDA, it is dangerous when someone is transporting raw milk for consumption by a group of people but is somehow safe when it is only for an individual.

FDA’s last enforcement action against a raw milk producer, concluded over five years ago, has not deterred demand; more consumers want raw dairy products than ever. FDA has never publicly acknowledged that the ban has been a failure but once again it has the opportunity to do so and respect consumer freedom of choice. There are currently two petitions before FDA on the regulation (21 CFR 1240.61) establishing the interstate ban—one filed by Organic Pastures Dairy Company (OPDC) and the Farm-to-Consumer Legal Defense Fund (FTCLDF) and the other filed by the Real Food Consumer Coalition (RFCC). Repeal of the interstate ban is long overdue; granting of the two petitions would be a significant step toward making that a reality. No matter what FDA decides, it is going to have to answer once again why it has not repealed a law that does not work.

On June 22, 2016, FDA received a petition from OPDC and FTCLDF requesting that FDA lift the interstate ban on raw butter. FDA’s only response to date has been a December 13, 2016 letter stating it needed more time to reach a decision on the petition. Federal law requires that FDA respond to a citizen petition within six months of its filing; unfortunately, the courts regard a statement from the agency that it needs more time as a satisfactory response.

More than anything the raw butter petition is a request to FDA that the agency obey the law; in establishing the raw butter ban, FDA violated and continues to violate the Federal Food, Drug, and Cosmetic Act (FFDCA). The FFDCA contains a statute governing standards of identity for foods. Standards of identity are requirements prescribing what a food product must contain to be marketed under a certain name in interstate commerce. For instance, the standard of identity for milk in final packaged form requires that it be pasteurized or ultra-pasteurized and that it contain not less than 8.25% non-fat milk solids and not less than 3.25% milkfat.1 FDA’s long held position is that the pasteurization requirement can be part of the standard of identity. Standards of identity are intended to promote honesty and fair dealing for the benefit of consumers.

Congress has given FDA power to issue regulations establishing standards of identity for most foods, but there are exceptions and one of those is butter. The FFDCA specifically prohibits FDA from establishing a standard of identity for butter; Congress has passed a law defining butter that serves as a standard of identity for the product. That definition does not require butter to be pasteurized. The petition asks FDA to abide by the statutory standard of identity and to stop breaking the law in the name of the law.2

FDA justifies the ban on the grounds that it has the power to regulate communicable disease, a claim the federal government’s own statistics show has no foundation. If raw butter can be banned under this power, just about any other food could be, as well. The citizen petition notes that since the Centers for Disease Control (CDC) created the Foodborne Outbreak Online Database in 1998, not even one foodborne illness outbreak has been attributed to the consumption of commercially produced raw butter.3 There is one 2007 outbreak in Utah where homemade butter was listed as a possible cause for an outbreak as were raw milk and homemade soft raw cheese; given butter’s food safety history, it is likely that the milk or cheese was the cause.

The irony is that possibly more than any other raw dairy product, consumers purchase raw butter for its health benefits. FDA can do better than violate the law by banning a product that doesn’t make people sick.

The RFCC petition, sent to FDA on April 26, 2017, requests that:

“FDA exercise its enforcement discretion to avoid taking, and to cease taking, enforcement action against those who distribute unpasteurized milk and milk products in interstate commerce when the milk products bear labels that include in conspicuous bold face type prominently displayed on the statement of identity for the product: (1) a warning regarding the health risks of unpasteurized milk and milk products; and, when applicable, (2) instructions for safe handling, including self-pasteurization.”4

There is a precedent for the warning label requirement; another regulation, 21 CFR 101.17(g) requires that there be a warning label with a specific statement for juice that has not been pasteurized. The warning label and safe handling statements are intended to provide information and education to the consumer to address FDA’s concern that the agency needs to protect people from themselves.

The petition notes that the request it is making is in line with presidential executive orders issued earlier this year to reduce the regulatory burden on a Regulatory Reform Task Force that is required “at a minimum” to identify regulations that “eliminate jobs, or inhibit job creation; are outdated, unnecessary, or ineffective; impose costs that exceed benefits; create a serious inconsistency. . .”5 The quote is a good description of the interstate raw milk ban.

The RFCC consists of members of some of the bigger food buyers clubs around the country obtaining raw milk, including many mothers who will do whatever it takes to access the foods they believe best for their children’s health, even if that means violating ill-conceived regulations banning foods they have a legal right to consume.

The two petitions are pushing FDA to reevaluate the ban and do the right thing by repealing it. It is time for the FDA to honor freedom of choice and get rid of a regulation a federal judge once described as being in a state of “desuetude,”6 a word meaning “not being used.” A law not worth enforcing is not worth having on the books.

FTCLDF Code of Regulations states that a goal of the organization is “overturning the federal regulation banning the interstate shipment of raw milk (and raw milk products) for human consumption.” That day is getting closer. Thanks to  your support, FTCLDF and other raw milk advocates are winning this battle. Help us continue our push towards ending the ban by attending our fundraiser or by making a donation.

Footnotes:
1 Farm-to-Consumer Legal Defense Fund. Raw Butter Is a Communicable Disease. June 23, 2016. Posted online at https://www.farmtoconsumer.org/blog/2016/06/23/raw-butter-communicable-disease/
2 Mark McAfee and Farm-to-Consumer Legal Defense Fund. Citizen Petition to Lift Interstate Ban on Raw Butter. p. 5 Posted online at
https://www.farmtoconsumer.org/wp-content/uploads/2016/06/1-CitPetFDA-Butter-062216-1.pdf
3 Centers for Disease Control and Prevention. Foodborne Outbreak Online Database. Posted online at https://wwwn.cdc.gov/foodborneoutbreaks/
4 Emord & Associates. Citizen Petition to Exempt from 21 C.F.R. § 1240.61(a) Certain Unpasteurized Milk and Milk Products if Properly Labeled. Posted online at http://hartkepr.com/wp-content/uploads/2017/05/2017-4-26-RFCC-Petition-GoFundMe.pdf
5 Ibid.
6 Judge Mark Bennett. Memorandum Opinion and Order Regarding Plaintiffs’ Motion to Amend Judgment. May 1, 2012. [PDF]

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