Judge Opts Out of FTCLDF Challenge to Interstate Raw Milk Ban By Dismissing Suit –Door Open to New Suit?


The two-year-old legal challenge to the ban on interstate shipments of raw milk ended with a whimper late last week when a federal judge dismissed the suit.

U.S. District Judge Mark Bennett threw out the suit filed by the Farm-to-Consumer Legal Defense Fund on behalf of eight consumer plaintiffs against the U.S. Food and Drug Administration. He did so, at the FDA’s request, without ruling on the substance of the challenge by the FTCLDF that the ban violated various plaintiff rights, including the right to freely travel between states and equal enforcement of the law.

He indicated that not only could he not rule on the substance of the case, but that he was obligated to dismiss it because there was no evidence any of the plaintiffs had actually suffered measurable injury because of FDA enforcement of the raw milk ban. “It is now clear that the plaintiffs have no ‘injury in fact’ and no ‘actual or imminent’ ‘threat of injury in fact,’ but only a ‘conjectural or hypothetical’ threat of injury.”

The case generated substantial, and substantive, back-and-forth with the FDA, including the now-famous FDA declaration that “There is no absolute right to consume or feed children any particular kind of food…”

The case also led to charges and counter charges about the FDA’s role in a raid by the Georgia Department of Agriculture on a Georgia food club managed by Eric Wagoner after he brought raw milk back from South Carolina for his members. After at first denying as “a bizarre allegation” Wagoner’s contention that the FDA was involved in the raid, the FDA was forced to admit that one of its agents was present during forced disposal of consumers’ milk following the raid, based on video showing the agent.

According to the judge, the Wagoner confrontation with the GDA and FDA came closest to demonstrating an injured party. Close, but no cigar, said the judge. “Wagoner’s allegations that the FDA, rather than the GDA, enforced the embargo and destruction of his raw milk do not generate reasonable inferences, because
they are conclusory and speculative.” In other words, the FTCLDF didn’t quite close the loop that the FDA had been instrumental in planning and/or ordering the raid.

The judge also bought into the FDA’s contention that it had no plans to enforce the ban onto consumers. “Moreover, the record is now clear that there is no ‘threat of injury in fact’…to establish standing for any of the plaintiffs, where the FDA has made abundantly clear that it has not and does not intend to enforce the regulations against any of the plaintiffs.” Trusting guy, that judge is, to accept the FDA’s word.

Yet the fact that the judge failed to rule on the legality of the ban would seem to leave the door open for a followup suit on behalf of a plaintiff that has been injured. There are a number of those, most recently Amish farmer Dan Allgyer, and all the food club members denied access to his milk as a result of the FDA’s action in seeking a permanent injunction against Allgyer that resulted in putting him out of business late last year.

The judge had, six months after the suit was filed, rejected an FDA request to dismiss the suit. In acceding now, the judge has given a victory to the FDA, and a loss to the Farm-to-Consumer Legal Defense Fund, and all who support food rights.

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28 Comments on "Judge Opts Out of FTCLDF Challenge to Interstate Raw Milk Ban By Dismissing Suit –Door Open to New Suit?"

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joelie hicks
April 3, 2012 11:52 pm

Sorry to put this here. Not sure what to do with it.


Sylvia Gibson
Sylvia Gibson
April 4, 2012 1:38 am

What about those who died recently from consuming pasteurized milk? They are neglectful in not mentioning that.

mark mcafee
April 4, 2012 1:41 am

Sorry to here about this loss…time to start another lawsuit. How about injury to farmers? OPDC has injury from the FDA after being ejected from 20 stores in Nevada. How about injury to consumers from the side effects of asthma drugs when it has been shown by PARSIFAL and GABRIELA studies in EU that raw milk prevents asthma. Both studies peer reviewed, published and un refuted.

Our routes continue to show massive increases in raw milk sales…..As the FDA oppresses….sales inversely increase.

The people of this country reject the FDA dogma. All the lies just stimulate sales.

FDA keep on… Read more »

mark mcafee
April 4, 2012 2:36 am

Here is the basis of injury…..the number #1 most allergenic food in America is Pasteurized Milk….listed at the top spot on the FDA website. The dangers are clear….how about anaphylactic shock and resulting death….if a judge can not see the dangers and injury from consumption og the most allergenic food in America then we have an even bigger problem.

I suggest an appeal. There are real injuries to consumers that are denied access to raw milk. If left with one option…the most allergenic food in America, death is a potential injury.

Perhaps, sitting on the toilet for hours is also an… Read more »

mark mcafee
April 4, 2012 5:11 am

Can you sue the FDA for lying?

mark mcafee
April 4, 2012 5:11 am

Can you sue the FDA for lying?

Shana Milkie
April 4, 2012 12:54 pm

This is discouraging news. I think we citizen-consumers need to test that assertion of the FDA; that it won’t enforce regulations against any of the plaintiffs [or presumably other raw milk drinkers who are not farmers].

So the FDA gets to hide behind the state departments of agriculture? I hope that won’t last for long. As the pattern of repression grows in frequency, it will become more obvious and irrefutable.

Sylvia Gibson
Sylvia Gibson
April 4, 2012 12:59 pm

Mark, The gov can be sued…..

“Under the Federal Tort Claims Act, the United States may be held liable in tort “for injury or loss of property … caused by the negligent or wrongful act or omission of any employee … under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). That waiver of sovereign immunity is subject to a number of exceptions. If an exception applies, sovereign immunity is not waived, and no subject… Read more »

Sylvia Gibson
Sylvia Gibson
April 4, 2012 1:11 pm

Oh yeah, there was a big stink in, I think 2009, Bush et al was pushing to make the fda immune from suits regarding any drugs that are “approved” by the fda…. The statement of ‘protecting the health and safety of humans and the environment’ goes out the window is bogus.

“the FDA depends upon drug companies for nearly half of its $680million review process for new drugs.”

Is this a true statement? If so it show exactly why they don’t care about the people. It’s all about money.

Imagine what would happen if numerous people… Read more »

Barney Google
April 4, 2012 3:00 pm

(From previous post)


You do not understand the problem with FTCLDF. Behind all of the “good work” they do is an organization which continues to convince farmers, through their Cow-Share College, to give up the rights they have as individuals under the Constitution in favor of incorporation. As creations of the state, corporations only have the rights granted to it by the state.

Countless farmers have gotten themselves into way more trouble than they could have imagined thanks to FTCLDF, and as farmers find themselves in legal limbo due to these cow-shares, FTCLDF has the nerve to recruit even… Read more »

Barney Google
April 4, 2012 3:11 pm

From the article:

“Because many consumers have a desire to purchase milk directly from a dairy, Garcia recommends that if they purchase raw milk, they take steps to reduce the likelihood of foodborne illness by pasteurizing the milk at home.

“‘You can pasteurize milk at home by heating it briefly on the stove-top to 161 degrees Fahrenheit for approximately 20 seconds, and cool quickly. And, in-home pasteurization machines can be purchased,’ said Joan Hegerfeld-Baker, SDSU Extension Food Safety Specialist.”

I had suggested this same idea a few months ago. There are many ways to support local farmers, and home pasteurization is… Read more »

April 4, 2012 4:31 pm

the pattern of repression is already as obvious and irrefutable as can be, to those with eyes to see.

sounds to me like you’re ready to go ‘bear-baiting’ . Listen to George Gordon explain what’s necessary for setting up a sting to get a good set of facts for a constitutional challenge

what you want is a bunch of people who live in a state where REAL MILK is illegal, who individually pay someone to cross the state line, into a state where REAL MILK is legal. WITH A LETTER OF AGENCY FROM EACH… Read more »

April 4, 2012 8:54 pm

barney, i’m pretty positive that’s NOT what the legal defense fund advocates. to the contrary, we suggest that individuals, not “corporations,” own the cows. and in the instant case involving 1240.61, “cow shares” were not even an issue.

April 4, 2012 8:56 pm

the problem with the judge’s decision is that fda’s “plans” for “not enforcing” the law are not binding. thus, we have to wait until fda does indeed enforce the law again and we will probably be back in court trying to put a stop to it. if anyone gets a visit or a letter from fda threatening an enforcement action let us know and we’ll take appropriate action.

April 4, 2012 8:59 pm

exactly shana. if any state agency tries to “embargo” raw milk coming across state lines then let the legal defense fund know about it. if such a situation should happen i would advocate that the state agency lacks authority to embargo a product that crosses state lines, and that any such embargo order should be immediately challenged. so, if anyone does receive an “embargo” or condemnation order from a state agency related to raw milk crossing state lines, let the legal defense know and we’ll take appropriate action. state agencies lack the authority to regulate… Read more »

Sylvia Gibson
Sylvia Gibson
April 4, 2012 10:20 pm
mark mcafee
April 5, 2012 12:07 am

Las Vegas seems like the logical place to do this. A buyers club that rendezous with the OPDC truck in CA and takes special orders across the state line. That could work.

My injunction does not address selling inside of CA…I just can not drive across the state line.

I am so sick and tired of the FDA. The Sushi comment by Sylvia, brings it all home. Sounds so “fishy” to me. I love Sushi…

Perhaps all raw milk consumers should make a pact, if you ever get diarrhea from anything….claim everything. Claim, sprouts, sushi, spinach, salsa, hamburger, deli meats,… Read more »

Ora Moose
Ora Moose
April 5, 2012 1:13 am

Thanks for the link Sylvia. Remind me why I like food in it’s unprocessed state rather than for example, spicy salmon burger mix.

“FDA spokesman Curtis Allen would not confirm or elaborate on the information, saying the memo “contains numbers of cases and hospitalizations that cannot be confirmed at this time. It is too early to speculate on the cause of the outbreak,” Allen said. “The memo notes there is likely a 30-day lag time between when people become sick and when cases are reported to health officials.”

Right… unless it might involve raw milk, in which case the… Read more »

Sylvia Gibson
Sylvia Gibson
April 5, 2012 3:54 am


I strongly encourage people to buy from local farmers, if you must, learn to cut your meats… Butchering chicken is easy, as is grinding your own ground beef…Sharp knives are terrific! Many years ago, my parents had my brothers friend raise a calf for beef on his small farm, My brother and his friend butchered the steer.

April 5, 2012 2:26 pm

turtles have been banned for decades. no turtles in interstate commerce.

mark mcafee
April 5, 2012 3:36 pm

The FDA has made this abundantly clear and the extension specialist Garcia is an extension educational mouthpiece of the FDA. They have pledged a full-on educational effort to discourage raw milk consumption across America. You see it here.

I was part of a conference call with the State of Washington regulators and several raw milk producers last week in an effort to smooth over and discuss some issues that WA state is having with some irrelevant Q fever issues and raw milk. The CDC reports one case in 9,000,000 people nationally and they call for action about… Read more »

Ora Moose
Ora Moose
April 5, 2012 4:55 pm

What’s your strategy?

A few quick links for your reading pleasure, or perhaps to extend your exasperation:




David: Hope these are ok to post here, feel free to delete if not.

Ora Moose
Ora Moose
April 5, 2012 5:06 pm

One more, this one’s for Mark. Guess I’m going to have to go see this movie soon, sounds very interesting:


April 5, 2012 5:57 pm

in BC we have the precepts of “officially-induced error” and “bureaucratic indifference”, as defences. Last year, the Fraser Health Authority published an official statement here, that it would not enforce the regulation which outlaws raw milk for human consumption, pending our constitutional challenge. But last week the Inspector slapped cease+ Desist Orders on an employee of our cowshare, then the owners of the farm we rent. Who’s running the show?

Sylvia Gibson
Sylvia Gibson
April 5, 2012 7:23 pm


“This is not a health issue,” said Bill Marler, a prominent food safety lawyer. “This is an ‘I’m grossed out by this’ issue.”

Yes, it is a health issue. It is fraud, out right lies to the public. The public was never given the information of what was put in and on the product. It was sold as ground up beef. NOT adulterated meat scraps. Consuming ammonia is NOT healthy.

“The food supply is full of all sorts of chemical additives that people don’t know about,” said Michele Simon, a public health lawyer and president of… Read more »

mark mcafee
April 5, 2012 11:52 pm

None of us should be shocked or grossed out by the methods and ways that is game is played.
It is all FOOD INC food spin. Nothing is beyond corporate America when it comes to making money and burying the truth behind their FDA approved labels. Change takes a true disaster to come to pass. The worse the incident the faster the change.

We should embrace the sick humor and get really good at exposing the dark side to bright light.

joelie hicks
April 6, 2012 3:14 am

Besides farming my dh and I own a movie theatre in our small town. We are showing that movie and it has promoted interesting discussion, especially with middle school/high school students. The only power people have over you, is what you give them. A very easy thing to say, often a difficult thing to live. But it is true.

Ora Moose
Ora Moose
April 7, 2012 7:40 pm

Mark, I think it’s really great that you post here despite frequent attacks and present your perspective, I find it extremely valuable. It would be much easier for you to dictate to one of your workers and have them post here under a pseudonym… which some of us choose to do but should not be interpreted as being cowardly. If anyone wants to know my real name or more, just contact me. ( I am not in the milk or farm business.)

I do however sometimes wonder about how you straddle the line between “corporate America when… Read more »