FTCLDF Challenges Iowa’s Strict Anti-Raw-Milk Stance By Filing Suit on Behalf of Two Cow-Share Owners

Iowa Secretary of Agriculture Bill Northey, the target of a suit by the Farm-to-Consumer Legal Defense Fund, on behalf of Iowa cow-share owners. Can the Farm-to-Consumer Legal Defense Fund find a judge in this country willing to take a strong stand endorsing the right of individuals to organize privately to obtain raw milk? After a sixteen-year battle, raw dairyman Michael Schmidt found a judge who last month took a strong stand in his favor, dismissing 19 counts of violating Ontario’s dairy laws.

But in this country, the FTCLDF has failed thus far in New York with Meadowsweet Dairy, both in arguments before New York’s Department of Agriculture and Markets and before a state judge; the case is now awaiting a verdict from state appeals judges.

Now, in a new tack, the FTCLDF has filed suit on behalf of individual cow-share owners rather than farmers, seeking an endorsement of private contractual access to raw milk.

According to the suit, an Amish farmer boarding cows owned by Iowa raw milk drinkers Mindy Slippy and Charles Freitag received a letter from Iowa’s Department of Agriculture and Land Stewardship stating “that unless the farmer stopped doing what he was doing, i.e. participating in the Agistment Agrements, by February 13, 2009,the Department would ‘terminate your milking permit.’ Upon receipt of this letter from IDALS, the farmer stopped taking care of, tending to and managing the cows on behalf of the Plaintiffs. Since the issuance of the February 2009 letter from IDALS, Plaintiffs have not been allowed to enjoy the benefits of their property and the fruits of their contracts they entered into with the farmer, i.e., they have not been allowed to obtain or consume the unpasteurized, inprocessed milk and other dairy products from their own cows. Plaintiffs have not bought and do not buy raw milk or raw dairy products from the Iowa farmer. Plaintiffs are being damaged and are suffering an injury in fact by the action taken by IDALS. Specifically, Plaintiffs are being deprived of their fundamental and inalienable right of (a) using their own property; (b) providing for the care and well being of themselves and their families by consuming the food of their own choice; and (c) enjoying the benefits of their contracts with the farmer.” (The Amish farmer, who is unnamed, didn't want to join in the case, the suit indicated.)

The FTCLDF case cites both the Iowa Constitution’s Inalienable Rights Clause and the U.S. Constitution’s provision of a right to privacy.

The defendant in the case is Iowa Secretary of Agriculture Bill Northey, who is described on his department’s web site as “a fourth-generation Iowa farmer that grows corn and soybeans on his farm near Spirit Lake. He started farming with his grandfather, Sid Northey, after graduating from Iowa State University in 1981.”

Interestingly, Northey is one of the few agriculture administrators to be elected. According to the web site, “The people of Iowa elected Northey to be Secretary of Agriculture in November of 2006 and he was sworn in on January 2, 2007. Northey ran on a platform of expanding opportunities in renewable energy, promoting conservation and stewardship, and telling the story of Iowa agriculture.”

I wonder how “the story” of Iowa denying individuals access to milk from their own cows is going to play on the farms of Iowa?

The suit should encourage further the emergence of raw milk as a political issue in the corn and soybean state. Newly introduced legislation would allow raw milk sales and delivery from farms.

I see this suit as building on Steve Bemis’ recent distinction (following my Feb. 5 post) between consumers and individuals who organize themselves privately. He noted that “the laws more and more talk about ‘consumers’ and then define the word broadly - as anyone who ‘consumes’ anything, which is eventually argued to mean any human with a pulse. This blurring of distinctions then morphs into talk about ‘consumers’ this and ‘consumers’ that, effectively obliterating the distinction between ‘public’ and ‘private.’

“If the state has an interest, it should be limited to ‘protecting’ the ‘public.’ This was a critical part of Michael Schmidt's case, in which the judge carefully took the health statute apart and revealed that it was designed to protect the public. Not the private.

“The word ‘consumer’ blurs this distinction, and I believe should be avoided. Let's talk about people who enter into cow-shares as ‘private contracting parties’ …Those that purchase at retail in stores are arguably the ‘public’ and may require more regulation to protect them.”

I agree. And if a judge can be persuaded to seriously examine the distinction, the suit could plow new legal ground in the food rights arena.

***

I’ve just posted an assessment at Grist of shift in tactics at the federal and state levels in seeking to clamp down on raw milk producers.

What Are We to Make of the NAIS "Victory"?...And the WAPF's Push to Boycott Whole Foods?

One of the sad realizations I’ve come to over the last few years in writing about raw milk is that proponents can’t let their guards down in battling with government officials.

Farmers and consumers alike want so badly to believe that public officials are decent, reasonable, and benevolent, and I have no doubt that some are. But if you look at what’s happened in Wisconsin—and it’s not an isolated example—the relationship between the regulators and the people being regulated is totally adversarial. The regulators are cold, hard-edged battlers who see the people as an enemy, to be beaten into submission. Any pulling back by the people is interpreted as weakness, an opening to be exploited. 

Formal and informal understandings are made to be broken.  Farmers in Wisconsin who had worked out arrangements for herdshare agreements some years ago have seen those arrangements arbitrarily ended. The same thing happened in Georgia last October when officials confiscated milk from a buying club after five years of allowing the club to operate. A similar scenario for buying groups is unfolding in Massachusetts.

I raise this point because now we are being told that the National Animal Identification System (NAIS) is dead. But is it?

When you read the press release from the U.S. Department of Agriculture, you have to wonder. It doesn’t say NAIS is dead, or being abandoned. Rather, the first sentence of the announcement states “that USDA will develop a new, flexible framework for animal disease traceability in the United States, and undertake several other actions to further strengthen its disease prevention and response capabilities.”

The release goes on to quote Agriculture Secretary Tom Vilsack as saying: "I've decided to revise the prior policy and offer a new approach to animal disease traceability with changes that respond directly to the feedback we heard."

In fact, nowhere in the release is there any vocabulary approximating such notions as “abandoning” or “discarding” or “pulling back from” or “starting anew” or anything else that might be taken as a recognition that NAIS was a bad joke.

The closest USDA officials come to saying NAIS was ill-advised is in a separate question-and-answer document that reports on “a listening tour” last fall conducted by USDA. “Some people were in favor of NAIS, but the vast majority of participants were highly critical of the program. Some of the concerns and criticisms raised included confidentiality, liability, cost, privacy, and religion. There were also concerns about NAIS being the wrong priority for USDA, that the system benefits only large-scale producers, and that NAIS is unnecessary because existing animal identification systems are sufficient.”

Who gets the blame for these criticisms? Why, the previous president, of course. “Under the previous Administration, USDA tried to implement NAIS. USDA spent more than $120 million, but only 36 percent of producers participated. It is no secret that there are concerns about and opposition to NAIS.”

So the solution appears to be to gain more participation moving forward, not to start fresh and examine how we best deal with the problem of fast-spreading animal diseases. “The benefit of Secretary Vilsack’s decision to move forward with a new approach to animal disease traceability is that USDA will not be creating the framework alone. USDA will partner with States and Tribal Nations to create the framework for the new approach.”

Like Lykke in her comment following my previous post, Vilsack has already decided on both the problem (animal disease outbreaks) and the solution (traceability)—the “new approach” has to do with implementation.

Many NAIS opponents are so relieved at the apparent pullback that they see a huge victory. It’s gotten so that the best we can hope for from mass opposition to a government initiative is delay in its implementation, not a commitment to examine underlying challenges and issues.

In such an atmosphere, questions and issues of the sort Tim Wightman raises in his comment following the previous post—about soil and animal health-- never get addressed. 

I guess what I find frustrating is that the underlying issues aren't even acknowledged, and we’re expected to go along with the agenda set out by the bright minds at USDA and DATCP. I think Wayne Craig is likely correct that much of the NAIS situation, like much of the so-called “food safety” legislation ready to be enacted by Congress, is being driven by global marketing considerations. If American agribusiness is going to be “competitive,” it must be able to guarantee compliance with international agricultural standards. The rest of us are expected to go along for the ride.

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What to make of the ongoing battle between the Weston A. Price Foundation and Whole Foods over the benefits of a vegetarian diet? Actually, it’s more a protest effort by the Weston A. Price Foundation, objecting to Whole Foods’ emphasis on the low-fat vegetarian-oriented diet, at the expense of WAPF’s animal/dairy-based approach.

Now, in a press release, the Weston A. Price Foundation is advising its members to avoid shopping at Whole Foods stores. (The release hasn't yet been posted to the foundation's web site.)

I’d have more of a problem if Whole Foods stopped selling meat and dairy products, but I’ve seen no sign it will. In fact, it was early to the game of restricting itself to meat products free of antibiotics. And in some of its stores, it sells grass-fed meat; moreover, in Pennsylvania and California, it sells raw milk products.

The real problem comes in trying to fight the battle over which type of diet is healthier. The Weston A. Price Foundation’s press release quotes a member who became ill with a vegetarian diet, and recovered her health with the Weston A. Price approach.

In my experience, diet is a personal matter. I know people who thrive on a vegetarian diet. And I know people who thrive on the Weston A. Price approach. I personally draw on both approaches. I sense it’s all a matter of body type, metabolism, genetics, and other factors we don’t fully understand.

The matter definitely won’t be settled by arguing that one diet is “better” than another. 

The Comeback Kid: The Inside Story of How the Authorities Turned the Raw Milk War Around

Mark McAfee and Scott Trautman rally demonstrators outside courthouse in Viroqua, WI, for Max Kane last December 21. Nearly two months ago, I reported on an imaginary job review of the head of the U.S. Food and Drug Administration’s Division of Plant and Dairy Food Safety, John Sheehan. It was a negative review, given all the marketplace and political inroads being made by raw milk. Since then, the political landscape has shifted to such an extent that I can imagine Sheehan being  called back for a followon session with FDA Commissioner Margaret Hamburg, and the conversation going something like this:

Margaret Hamburg: John, I know it hasn’t even been three months since your last review, but I wanted to tell you how impressed we all are with the way you’ve turned this raw milk thing around. Especially since I was kind of tough on you during your performance review.

John Sheehan: Yes, you were a little rough. But we’re a tough bunch at Plant and Dairy Food Safety. I passed your criticisms on to members of my crew, and we’ve all been more resolute than ever about this raw milk situation. One of my staffers even worked half a day on a Saturday on this.

Hamburg: Well, I wanted to hear directly from you how you turned things around. I mean, you are kicking ass, pardon my French, in Wisconsin. That is turning into a total rout. And now you’re even making hay in Massachusetts. Things must be changing there—first they put a Republican into Ted Kennedy’s Senate seat, and now they’re shutting down raw milk buying groups.

Sheehan: First of all, I’ve made some personal adjustments. Most of these state people don’t agree with me that we need a total ban of raw milk, period, end of discussion. So I’ve tried to put that aside, or delay that goal, in the interests of the current priority, which is to harass the small dairies producing raw milk and the people who help them distribute the milk, especially these buying clubs. We’re trying to disrupt the raw milk supply chain as much as possible. If we can create enough pain for these small dairies, maybe we can discourage other farmers and entrepreneurs who might be thinking that raw milk offers a market opportunity.

Hamburg: Is that something you just came up with in the last couple months?

Sheehan: No, we hatched this out in discussions in the Midwest a little over a year ago. That protester, Max Kane, got ahold of some emails where we laid it out. I didn’t like the fact that those emails were made public, but we decided to ignore that, and just stay with the plan.

Hamburg: But why does it seem to be working so well now, when it wasn’t just a couple months ago.

Sheehan: Excellent question. We’ve learned some important lessons. Our biggest concern has been negating the raw milk leadership, especially this Mark McAfee in California and Scott Trautman in Wisconsin. These guys are wild men, loose cannons. You know as well as I do, Madame Commissioner, that we hate loose cannons. So we’ve been trying to put them both in a box, shut them up tight. Now, McAfee is tough, because he has such a market presence, and so many devoted customers out there in la la land. But we’ve been pushing hard on this civil suit to become his “partner,” if you know what I mean. We want to be able to come in and inspect his dairy whenever we want, for the rest of his life, and just to show him who’s boss, we get him to pay us for the inspections. How cool would that be? He says the most awful things about me, it’s terribly humiliating. If we get this suit to come out the way I think it will, he’ll be treating me with respect, probably calling me “sir.”

Now, on the Trautman guy, he seems like a McAfee clone. The raw milk people had a rally up there in Wisconsin in front of the court house in late December, and he turns out to be a barn burner, had the crowd all worked up. Then, the really scary thing, he chained himself to the fence outside the governor’s mansion on Christmas Eve. He didn’t stay long, but anyone who would do that, well, you just don’t know what else he might do. He had the people at DATCP, even the governor, all upset.

Hamburg: Okay, I understand what you’re doing with McAfee, but what about Trautman? How have you boxed him up?

Sheehan: There we have to credit the other side. His own people let him down. That rally for the Max Kane guy at the courthouse December 21 was actually a dud. Only 150 people showed up. Our Wisconsin people thought 500 might show, but not all the farmers seemed to support it, and so didn’t encourage their customers to attend. Then, when Trautman chained himself to the fence, they totally hung him out to dry. Only one person showed up in support, Max Kane’s brother. Can you imagine if 50 or 100 people had come out to support him? The whole thing, poor farmers and raw milk consumers out in front of the governor’s mansion on Christmas Eve, it could have been a media circus. Instead, Trautman gave up after a few hours and we all breathed a big sigh of relief.

Hamburg: That still doesn’t explain how we took the offensive.

Sheehan: There I have to give credit to the guy in charge of DATCP. Rod Nisteuen, or whatever the hell, I can never get his name right.

Hamburg: It's Rod Nilsestuen. Yes, he's a comer. We might be recruiting him here at FDA one of these days before long.

Sheehan: Right, Nilsestuen. Anyway, the guy is a genius. An absolute genius. After the Trautman fiasco, he came up with this plan for a “working group” to study raw milk. When I first heard the idea, I thought it smelled of capitulation. Something like that Michigan working group that eventually concluded raw milk is good for you. What a joke that was. But no, Nilsestuen is much smarter than that. His working group is perfectly positioned to be whatever he needs it to be. He can use it to delay any legislative action on raw milk. If the opposition gets its act together, he can have it recommend some narrow and very strict from-the-farm sale permit. Or, since it's stacked with anti-raw-milk people, he can have it affirm Wisconsin's ban on raw milk. Or he can have it do nothing, just kind of disappear into the ether, like so many government initiatives. No matter how you cut it, it's a win. And he's distracted the raw milkies into thinking he's doing something positive.

Added to that, the raw milkies continue to help our cause. They can’t settle on a consistent strategy in Wisconsin. First they’re quiet about the legislation. Then they tell their people to call the legislators and DATCP. Then they say to be quiet. Supporters don’t know what the hell is going on. Now we hear they’re fighting among themselves. I thought at first it was a mistake to go after this guy Dan Siegmann, since he’s a leader for the legislative push to legalize raw milk sales from farms. But now he’s blaming other farmers for informing on him and causing the shutdown of his business, and is pissed at the Farm-to-Consumer Legal Defense Fund. So other farmers are mad at him for only rallying the troops when his own business came under attack. On top of that, this other group, the Wisconsin Independent Consumer and Farmers Association, has come out against the legislation that would legalize raw milk sales for Class A dairies. So the legislature has a good excuse to avoid the whole thing, and say it was the raw milkies who couldn’t get their act together. It’s a classic case of all-for-one and none-for-all. Beautiful. I couldn’t have choreographed it any better.

Hamburg: But that’s just Wisconsin. Granted, it’s a big dairy state, but how does it affect other places?

Sheehan: Excellent question. The really good news is that the Wisconsin situation tells us this movement lacks leadership. So our people in other states can use the Wisconsin scenario to mount a counter-offensive, and reduce raw milk consumption, or drive it underground. If it goes underground, and people start getting sick, we can just say, “We warned you.”

Hamburg: You should be feeling good, John. You’ve totally turned this situation around. If you keep this up, we’ll be looking to you for bigger and better things. Maybe put you in charge of our meat and veggie irradiation program, figure out ways to speed up acceptance of that cleanup effort.

Sheehan: I’m very optimistic. Time is on our side. The new food safety legislation looks likelier than ever to pass, since it has bipartisan support. Obama needs a win after the Massachusetts Senate race derailed his health care legislation. When the food safety legislation passes, we’ll have gobs of new funding we can use to grease the skids with the states, which are desperate for funding, and will prostitute themselves no matter how they might feel about raw milk. We will definitely be in the driver’s seat.

Wisconsin’s Raw Dairy Producers Discover That Peace Isn’t Nearly At Hand, As DATCP Regains Initiative

A few weeks ago, with lots of fanfare, the head of Wisconsin’s Department of Agriculture, Trade and Consumer Protection (DATCP) announced a “working group” on raw milk, “to decide whether raw milk sales should be allowed in Wisconsin, and if so, under what conditions.”

It sounded like peace was nearly at hand. Farmers who had been organizing themselves and encouraging consumers to protest with their legislators as well as with DATCP, over the agency’s assault on people like Max Kane and Scott Trautman, let up, assuming they were about to enter a quiet period before the working group made its recommendations.

But like a nation at war that announces a peace initiative, and then seeks to inflict as many casualties on its adversaries as possible to maximize its negotiating position later, DATCP has intensified its war on Wisconsin raw milk producers.

As one example, it has filed a “Summary Special Order” against Dan Siegmann, one of the leaders of the effort to change Wisconsin’s dairy laws. The order describes the investigation of his dairy, and concludes that Siegmann sold raw milk unlawfully, and must discontinue the sales.

In an email to supporters of the Wisconsin raw milk protest, Dan Siegmann said a few days ago: “They have been aware of the possibility of raw milk being available from our farm because we worked with them many years ago to provide it according to their terms. The terms since then have been revoked and the state law stands as written back in 1957 and 1958. We received a summary special order from Steven C. Ingham, the administrator of the division of food safety at DATCP. We have been officially notified and ordered to cease all raw milk distribution. If they discover any distribution of raw milk
from our farm, they have threatened to revoke the retail food establishment license we have for Back to the Best Country Store. If this happened it would be shut down.”

DATCP has also filed requests for detailed information with three other farmers to determine whether or not they have been selling raw milk. These are often prelude to the summary special order Dan Siegmann received.

DATCP’s spokesperson, Donna Gilson, adamantly denies there is any connection between the announcement of the working group three weeks ago and the seeming step-up in enforcement activities against raw dairies. “We don’t have the authority to declare a moratorium. If people think that’s what the working group is about, they’re mistaken.”

Certainly a number of Wisconsin advocates of raw milk have made that assumption. They had cautioned protesters to remain quiet, mainly to allow for legislation that would legalize some on-farm sales to work through legislative hearings, which haven’t yet been held.

Now, a number are advocating a reversal. Dan Siegmann, for instance, in his email, is encouraging supporters to phone DATCP officials like Ingham as well as their legislators to protest the state’s crackdown.

Others are in the process of trying to determine the best ways to challenge DATCP. the Farm-to-Consumer Legal Defense Fund is in the midst of its own determination of how to handle the additional cases being cranked out by DATCP.

One thing is clear: in such an intensive battle with a determined enemy like DATCP,:you can’t ever let up the pressure. Any letup is interpreted as weakness, a lack of resolve. DATCP only understands two considerations: pressure and fear of more pressure.

***

Speaking of regulators in relentless pursuit of raw dairy producers, the U.S. Food and Drug Administration continues to apply the heat to Mark McAfee of Organic Pastures Dairy Co.  As part of its settlement of a civil suit against the dairy, it wants not only to conduct regular inspections of the dairy, but it wants to charge Organic Pastures for the privilege. All this according to a detailed report in Food Safety News that is well worth reading. Thanks to Don Neeper for the original link.

When It Comes to Raw Milk, Joseph Heckman Finds That Academia Not the Best Place for Open Debate

Joseph Heckman of Rutgers University.Joseph Heckman often feels very lonely in his position as a professor specializing in soil fertility at Rutgers University in New Jersey. That’s because he’s a big believer in the virtues of raw milk, and in what he calls “informed choice” by consumers to have access to raw milk.

He feels most isolated when he schedules individuals to appear at a series of lectures on raw milk he first launched in 2008. Among a number of speakers, he’s had Gary Cox of the Farm-to-Consumer Legal Defense Fund and Mark McAfee of Organic Pastures Dairy Co. speak in 2008. I just spoke on Friday. 

Each time he organizes one of his lectures, he encounters tension from other professors in the food sciences arena at Rutgers. Sometimes they send emails around to other faculty questioning whether the lectures amount to advocacy of raw milk consumption by the university, which could endanger funding by New Jersey, which doesn’t allow the sale or distribution of raw milk; sometimes they question whether opponents should be invited to attend; and sometimes they simply question the safety of raw milk. He says colleagues have attempted to attract opponents from the U.S. Food and Drug Administration to lecture, but, of course, they won’t attend once anyone in favor of raw milk has been at a university lectern.

Initially, Heckman says, the lectures were well attended by Rutgers faculty, but attendance has gradually fallen off to the point where only two Rutgers professors besides Heckman attended my talk on Friday. “I’m not sure what this means, whether it’s moved from hotly contested topic to boredom, or maybe to a boycott.”

My sense is that the hostility isn’t unusual. Academics in public health and agriculture tend to be anti-raw-milk, because that is what they have been taught. More often than not, they don’t have to deal with dissenters like Joseph Heckman in their midst, so raw milk never comes up as a debatable issue.

In any event, we had a good group of about 35 students, farmers, and professionals attending the Friday talk, and afterwards there was animated discussion about what raw milk proponents need to do to encourage wider acceptance. A psychiatrist in attendance, Richard Schwartzman, compared the FDA’s approach to raw milk to its approach to the jailing of psychiatrist Wilhelm Reich during the 1950s for his writings and teachings on psychiatry.

A photo from the Selman Waksman Museum at Rutgers.Afterwards, Heckman gave everyone a tour of the tiny Selman Waksman Museum, which was the soil laboratory at Rutgers where scientist Selman Waksman developed the streptomycin antibiotic and was awarded a Nobel Prize in 1952. The gold Nobel Prize is also in display. Ironically, the exhibit includes the photoabove of tuberculosis patients from the early 1900s, who were treated with raw milk.

I want to personally thank Joseph Heckman and his wife, Joyce, for their gracious hospitality in hosting me Friday and Saturday.