“Daddy” Patrick Hooker, commissioner of the New York Department of Agriculture and MarketsWhen I give talks about my book, The Raw Milk Revolution: Behind America’s Emerging Struggle Over Food Rights, and explain the legal tenuousness of herdshare arrangements in many states, I’m sometimes asked: “What if you decide to just give your milk away. Surely that must be legal.”

It’s hazy legal territory, I answer, even here, in the land of the free and the home of the brave. Well, a New York appeals court just provided an unequivocal answer, repeated several times, in a long-awaited decision in connection with Meadowsweet Dairy, and its owners, Barb and Steve Smith.

In ruling against Meadowsweet and the Smiths, the court went even further in backing government regulators than the original judge who ruled in favor of Patrick Hooker, commissioner of the NY Department of Agriculture and Markets, in 2008. The three-judge appeals court ruled that NY Ag and Markets controls all aspects of milk distribution, including giving milk away. The Smiths’ challenge has no merit… because the Department has jurisdiction over petitioners. The Agriculture and Markets Law grants broad authority to the Commissioner over, among other things, farms used in the ‘production, manufacture, storage, sale or transportation within the state of any dairy products or any imitation thereof’…as well as any person or corporation that manufactures, produces or possesses any adulterated or misbranded article of food (see Agriculture and Markets Law § 199-a). While Meadowsweet contends that it does not sell milk products to its members – a contention that we do not necessarily accept – the Department’s authority is not limited to items offered for sale, but includes articles of food given to another person.”

The judges characterized the limited liability company the Smiths established to distribute unpasteurized milk to shareholders as “purposely designed to avoid cash sales of dairy products in an attempt to circumvent the Department’s regulations.”

But what the heck, the “circumvention” didn’t really matter, stated the judges. “Even if it was not sold, a permit is required if raw milk is otherwise made available to consumers, and Meadowsweet admits that its raw milk products are made available to its members. Considering the common sense meaning of undefined terms along with the regulatory definitions, petitioners were making raw milk available and were thus required to obtain a raw milk permit.”

Says Gary Cox of the Farm-to-Consumer Legal Defense Fund, which represented the Smiths through the entire case, “This decision stands for the proposition that no individual in the state of New York can consume any raw dairy of their choice unless they first obtain permission from their government.  This decision turns the notion of democracy on its head.” I’d say it goes even further, since it grants Ag & Markets authority over “articles of food,” not just dairy.

I write at length about the Smiths and their effort to get out from under the hard thumb of the New York Department of Agriculture and Markets in my book. NY state allows the sale of raw milk to holders of raw milk permits. But despite this seeming permissiveness, it has since 2006 been harassing a handful of permit holders with questionable charges of listeria in their milk.

Though they were permit holders, the Smiths were never found to have listeria, but experienced ever-more-strict inspections that led to large fines. When the Smiths decided to turn in their permit and organized a limited liability company to distribute raw milk in the Ithaca, NY, area in 2007, Ag & Markets began a sustained campaign of harassment against the Smiths, which included ever-more-intense inspections and rising fines. 

A hearing officer hired by NY Ag and Markets ruled against the Smiths following a Jan. 2008 hearing, and then a state judge ruled against them as well, in defining anyone who drinks raw milk, including LLC shareholders, as “a consumer.”

The only potential opening apparent in this appeals court decision is a suggestion that the limited liability company is part of the legal problem, and could possibly be dealt with by giving shareholders direct ownership of the cows and their milk. “Meadowsweet must sell or give its dairy products to its members because they only have a property interest in shares of the limited liability company (hereinafter LLC); they do not have an ownership interest in specific property of the LLC, namely the milk or milk products themselves.” So if the shareholders actually owned part of the cow, as is the case with shareholders of the Canadian raw dairy owned by Michael Schmidt, then the implication is that that might be a different story. But then again, maybe not, given the strong statements against even giving away milk without a permit.

I can’t help but think of a sports analogy. Back in 2004, when then-Red-Sox-pitcher Pedro Martinez was beaten by the New York Yankees in the American League Championship series, and it seemed as if the Yankees would sweep the Red Sox yet again, he remarked after he was beaten in a game, “I just tip my hat and call the Yankees my daddy”. Whenever he has pitched in New York after that, including last season for the Philadelphia Phillies, fans chanted at Martinez: “WHO’S YOUR DADDY?”

Now, we can all chant to New Yorkers: WHO’S YOUR DADDY?

The answer? Patrick Hooker, commissioner of the New York Department of Agriculture and Markets.

Gee, you have to try to find some humor in what is an otherwise totally depressing situation. Especially when you contrast the NY judges’ decision with that of the Ontario judge in the Michael Schmidt case last month. There, in a country often seen as socialist oriented, a judge recognized the right of private individuals to organize a cowshare arrangement to acquire raw milk. Here, in the supposed bastion of private property, a country that fights wars to preserve the sanctity of capitalism, three learned judges tell us we can’t even give food away without a permit. Pretty amazing.