Piercing a State Lab’s Armor: Judge Orders NY Ag & Markets to Allow Questioning of Lab Workers by FTCLDF Lawyer

It’s our way of the highway. That’s essentially been the position of New York’s Department of Agriculture & Markets over the last nearly five years, when New York raw dairy farmers have questioned the agency’s testing procedures for listeria in raw milk.

Ag & Markets has, during that time, shuttered half a dozen or so dairies for days on the basis of having supposedly found listeria in raw milk. In a couple cases where dairies have had private tests of split samples they’ve held in reserve that disputed the state’s findings, the response was always the same: Our test is the only one that counts. End of discussion.

Now, Ag & Markets will have to pull back the veil on its testing procedures. That’s because a state judge has ruled that lawyers from the Farm-to-Consumer Legal Defense Fund, representing dairy owner Chuck Phippen, can cross examine state lab workers.

The whole case stems from repeated shutdowns by Ag & Markets of Chuck Phippens’ Breese Hollow dairy in Hoosick Falls–eight in total, for one to three weeks each time–for the presence of listeria in its milk. No one has become ill from his milk, or that of any of the other dairies that have been shut down. Phippens refused to pay $800 in fines from two shutdowns, arguing that the state hasn’t provided important details about the lab findings of listeria, and whether the type or amount of listeria actually comprised a health danger. The state brought suit against Phippen.

As part of the suit, the state has fought tooth-and-nail to avoid having its lab workers questioned about not only the details of the findings about listeria at Phippens’ farm, but about the lab’s overall practices.

Now, County Judge Robert M. Jacon ruled that the state must comply, and allow its lab workers to be questioned. He said in a brief opinion that NY Ag & Markets “has made a general application requesting that [Phippen] be precluded from disposing or seeking any disclosure from any Department employee regarding facts relating or relevant to collection, handling and transportation of the samples and facts relating or relevant to the analysis of the samples by the Food Laboratory. [Ag & Markets] fails to provide a specific basis to the Court to issue such a blanket protective order.”

Depositions will probably begin next month. There should be some interesting Q&A sessions.
Bigger picture, this is a small but significant victory. It is often the way legal attitudes change–gain a small edge, and enlarge on it. I don’t agree with lola granola’s repeated argument against FTCLDF, expressed most recently in a comment following my previous post, that “back-and-forth with the government is just show (notice how FTCLDF doesn’t really get anywhere?).”  

It’s important partly because it has occurred in New York, a large dairy producing state, where the Meadowsweet Dairy case showed the judges having little inclination to examine and place limits on state regulatory power. It’s also important because the state labs have been a big mystery in many places, with huge power, and no outside oversight. Hopefully, a shift is under way. ?

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10 Comments on "Piercing a State Lab’s Armor: Judge Orders NY Ag & Markets to Allow Questioning of Lab Workers by FTCLDF Lawyer"

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Bill Anderson
March 1, 2011 1:47 am

This is great news David. Governmental transparency is essential to democracy. Hopefully FTCLDF can make the most of this opportunity to draw into question the validity of the test. I'm sure that prof. Ted Beals' expertise will be a valuable asset in this case. At the very least, it will provide a precedent for transparency in protocals used to regulate raw milk. We ought be asking ourselves what it is they are so afraid about?

Mark McAfee
March 1, 2011 4:04 am

Very nice post David

In CA we have same lab doctrine prevailing. It is CDFA or the highway. We have argued many times that private tests many times have different results. With tolerances so close often milk on the store shelf hangs in the balance and safety is not an issue.

The genius of collective strength through collective donation and the work of FTCLDF efforts is changing our food democracy already. We are much stronger than the FDA it is just a matter of we the people being able to speak. FTCLDF does just this.

I read an article in Food Manufacturing journal this morning about the emergence of foods that heal and the industry challenges with FDA claims.



Gordon Watson
March 1, 2011 10:58 am

the phrase, "We, the People" is part of the heritage of the Republic of the united states of America" … which model is the very opposite of mob-ocracy, often called "democracy". they're anti-thetical … so which do you prefer?
Ham-merica today, is a classic case of what happens to a democracy …the parasites out-vote the producers of wealth. The contest is exactly the same today as it was in 11775 = putting the bureacrats back in their proper places as civil servants, rather than tyrants.

Bill Anderson
March 1, 2011 11:38 am

The parasites are a tiny minority, but they are very well organized and for good reason. Our ability to reclaim our rights and the wealth we produce is a function of our organization and militancy. Without labor, capital is nothing.

Mark McAfee
March 2, 2011 12:31 am

I hate to ruin your day ( or your life )…..but this should make your ulcer bleed.

Here is the FDA in all their military, sterile, protocol driven glory. The way they speak tells all. It is robotic and drug manufacture driven . It is no wonder that food as a mode of healing is irrelevent to them.



Smy Opin
March 2, 2011 1:50 am

LOL. Thanks for the laugh.
IT reminded me of some old fashioned after-school-special –
where a group of pre-teens used to have an "impromtu, deep discussion" about
some issue they wanted to preach about.
Back then we called them dorks.

So now we know what became of those losers when they grew up!
The costumes are hysterical, too.

Mark McAfee
March 2, 2011 6:33 am


I started to laugh before I started to cry…..

It is really a sick joke about our health. Those military uniforms are used to gain authority and power. That is the entire purpose of military uniforms and rank.

They are used to gain position, dictate edicts, control the lower ranks and just plain "be in charge" and not have to answer to the non-uniformed minions. Ever tried to speak with a person that is dressed in high ranking uniform?.. It is damn hard. The uniform speaks before the mouth ever opens.

That uniform and its authority is being used to dominate and regulate with out the democratic controls placed on power.

I just got off of a webinar that was all about the New FDA Food Safety Modernization Act and all of its provisions. It is scary as hell. The FDA has been given all sorts of powers never given to an agency of government before.


Alyssa Pellicano
March 2, 2011 7:29 am

Mark, et al,

Yes, the FDA surely does look like it wants to "join the military," and I have no doubt that it will act that way given a modicum of a chance, but what is even scarier to me is what is happening to our countries' overall economy/Washington's policies/FED's handling of the value of our dollar, ect. As a consumer and my Farmer's customer, and at the rate our monitary health is sliding into oblivion, I won't be able to afford farm fresh milk or anything else farm fresh.

http://www.uncommonwisdomdaily.com/urgent-10-steps-to-save-america– 10108 – Cached

I'm not sure if these are viable solutions, (it seems so drastic and scary also), but what's the alternative when our dollar is finally and completely "flushed away?"

Fighting the FDA from the bottom up isn't going to work, we need to take this government back in a constitional, auhoritative, sane, and respectable manner…and that will (by default) disarm these out-of-control, disconnect regulators.

Violet Willis
March 2, 2011 10:19 am

I have been super busy these past few weeks and have not had a chance to post but I just wanted to say that Cheyenne . . . your Holsteins are beautiful and I am so glad that there are 100% grass based genetics for this breed out there. I have always been told that this breed cannot be raised on grass/hay alone and keep condition and production up. You have proved this wrong and I hope you capitalize on these genetics so that other farmers out there understand that you can have a 100% grass based dairy raising Holstiens:) All of the other farmers out there ~ thank you so much for your posts.

Lola . . . agree with all your posts . . . keep it up . . . I hope that Bill does answer all of your questions. We pay over $10,000 per student per year here in a very rural county in Maine for public education (teachers are all in a union) and we are not getting our $ worth. I am terrified as we are not educating the next generation of top quality engineers and scientists. We are broke as a country and all of the perks that public workers are getting on our tax dollars are unsustainable. Good paying private sector jobs are not to be found and tax revenues are shrinking. We cannot afford all of these public workers. It is a death spiral.

Let me tell you the reality in the private sector . . . . all major Fortune 500 companies are offshoring and outsourcing all of positions they can to India and China as they don't have all of the red tape and regulations/taxes to go through with regards to benefits, etc. Our manufacturing sector is gone. All of the guts of our factories have been sold, dismantled, crated and shipped to China. Even with a big education push . . . . there are no good job opportunities for any of our children for the forseeable future. . . This is globalism that has been embraced and envisioned by both of our political parties.

I see very hard times ahead. For those of us who have farms and are able to feed ourselves and our local communities we will do okay for a while. In a few years the FDA will not have the money to enforce any of the draconian laws on the books. It is all beginning to break down and Wisconsin is just the start.

Sorry to sound so defeatist but I have spent so much energy fighting NAIS and SB 510 that I can't do much more. It really hit me when our own MOFGA Director Russell Libby told me that he was for SB 510 and lobbied all of our lawmakers in Maine to vote for this POS Bill. He actually said that it was going to happen and the bill was the best they could do ~ hopefully they could sway the rulemaking. As a farmer, I will never join MOFGA because of this and I don't have the time to fight anymore. I am so tired of all this back and forth because in the end, very little is going to change. Our legislators in both parties are being swayed by big $ from Monsanto, Cargill, Tysons, etc.

I will keep drinking my raw milk and raising my heritage breeds and OP produce to feed my family and my community. Like Mark McAfee . . . I teach. But I also teach others to be self sufficient. We will need this more than anything in the next few years.

Kind regards,


Ingvar Odegaard
March 2, 2011 1:26 pm

At coyoteblog.com the posts have been a general encouragement. Although he seems to have pins for many different balloons, running parks in various states has given him a keen eye for shenanigans, particularly governmental. To me it is encouraging because the clearer-eyed our analysis, the more quickly headway will be made in this war to allow nutrient-dense food efforts to take root, to the long-term benefits of health and of the commercial well being of our various states.

Mr. J. Ingvar Odegaard