When history records the events of the current war on raw milk, that compendium may well identify February 14, 2006, as the day the opening salvos were fired, on two small farms in Ohio.
For it was on that day, a special Valentine’s Day, that an inspector of the Ohio Department of Agriculture, Dennis Fravel, issued orders to Linda Fagan and Donna Betts, two farmers in Washington County, prohibiting them from using raw milk as pet food. Since all sales of raw milk to consumers are illegal in Ohio, getting it via pet food is one of the few ways for consumers to access raw milk, in addition to herdshares.
Within a few months, Ohio had broadened its campaign, going after other farmers, including Gary Oaks (in a violent Cincinnati parking lot confrontation) and Carol Schmiteyer-both for using herdshare arrangements to distribute raw milk. (Carol eventually won a landmark case endorsing her herdshare arrangement.)
Then, late in 2006, we saw Michigan’s sting operation against Richard Hebron and California’s temporary shutdown of Organic Pastures Dairy Co. By 2007, the crackdown had spread to New York and Pennsylvania, even as it was continuing in California.
The February 2006 ODA action in Ohio led to an obscure court suit filed in a county court by Gary Cox of Farm-to-Consumer Legal Defense Fund fame. There were a number of problems with the ODA’s orders to the two farmers, according to the suit–they had each been legally selling their pet food for more than four years prior to the order without incident, the ODA didn’t give them a reasonable way to challenge the order, and a national organization monitoring pet food ingredients had no prohibition against raw milk as pet food.
Yesterday, an Ohio judge issued a judgment rescinding the original ODA orders and demanded that the ODA pay the two farmers’ legal fees of nearly $20,000. In the process, the judge, Ed Lane of Common Pleas Court of Washington County, castigated the ODA for flagrant violations of the farmers’ rights as well as of Ohio law. Here is a sampling from his opinion:
–“The (ODA’s) actions in this matter clearly violate the guarantees of the equal protection clauses of the Constitutions of the State of Ohio and the United States of America.”
–“It is not illegal in the State of Ohio to use raw milk as an ingredient in a pet food product…”
–“The ODA’s interpretation (of an Ohio law) as prohibiting raw milk as an ingredient in a pet food is illegal rulemaking.”
–“The Plaintiffs have not been afforded a hearing on the validity of their labels because of the unconstitutional actions of the (ODA)…”
–On this last point, the judge even turned the ODA’s “protection” responsibilities against the agency: “Had (the farmers) not been law-abiding citizens and proceeded to manufacture and sell their pet food products containing the raw milk, the agency contends that in that event, the Plaintiffs would have been entitled to a hearing on the stop order. This policy clearly puts the consumer at risk and demonstrates a callous disregard for the safety of the pets of the consuming public. This policy is a violation of the duty and policy of this state to protect the citizens of this state.”
Here is how Gary Cox, the farmers’ lawyer, sees the case: “Once again, government was caught in illegal conduct and acting beyond its authority. The importance of this decision lies in the fact that two women were willing to confront and challenge the government in the protection of their rights to be free from overzealous government bureaucrats overstepping the bounds of their authority.”
This decision fits in neatly with the recent discussion here about whether it’s possible for raw-milk consumers and regulators to somehow negotiate compromises around raw milk–based on discussions currently going on in Michigan– that satisfy everyone’s concerns. I think what this case says is that, even if both parties are amenable to discussion, it’s difficult to arrive at an appropriate arrangement if the bureaucrats have already established in their minds that raw milk is a target for “special” consideration.
Thanks for the good news! Sweet Justice! Illegal rule-making – scary – I’d like to learn more about that. Kudos to these strong, persistent women and to Gary Cox!
It took me a while to understand the cowardly club behind ODA’s actions. They must have jumped out of their chairs when they saw a label with raw milk on it. Let’s go drown two women in court for making pet food with raw milk as an ingredient.
I wonder if ODA will reconsider priorities, or is this just the usual way to spend tax dollars? I wish the court costs had been as vicious as their intentions. No wait – that’s our money!
-Blair
Thinking of the last topic, how to regulate raw milk in an appropriate fashion, if there can be a balance that gives credit to both the regulatory impulse and the freedom to eat what we choose. I’ve been thinking about the simple process of labelling raw milk as such……period. The precedent for this approach actually comes from California, where for many years they’ve had "Proposition 65" in effect, which simply requires businesses selling consumer products in California to label them if they contain certain substances which the state has determined affect reproductive health, etc. if the consumer can be exposed when using the product. The products aren’t banned, they are labelled. We’ve all seen these warnings, since most large manufacturers end up placing the language on products sold in all states, it being too difficult to label things that just go to California. An example would be anything containing lead (example: brass doorknobs, brass hinges, even brass keys) or hundreds of other substances contained in thousands of products.
The theory behind this statute is that the state has done its job by requiring the warning, and then it’s up to the consumer, who presumably is smart enough to weigh the risks and rewards (OK, I like brass doorknobs enough that I’ll assume the small risk associated with handling them). Why wouldn’t the same theory work for raw milk?? Just label it. Let the regulators sleep soundly at night that they’ve done their job, and thereby get them off their guilt hook (here, giving benefit of the doubt that guilt is all that is driving them), and let the consumers take it from there.
One of the arguments that we’ve often heard from our lovely Ohio state regulators is the fear that a disease outbreak linked to raw milk consumption will taint all milk products in the minds of consumers and hurt the sales of commercial milk. And the commercial milk and dairy industry is just too important to the state’s economy to risk damaging it just because some nutcases want to drink milk straight from the cow. (That’s a paraphrase of Dairy Chief Lewis Jones’ response to Danna Seevers, when she made the mistake of trying to engage the ODA back in 2005 or so.)
So, I have the feeling that a simple warning label isn’t going to be good enough protection to please these folks. Didn’t you negotiate the use of a warning label with the MDA officials, or am I not remembering correctly?
In addition to fearing that tainted raw milk products will hurt sales of pasturized milk products, I believe that regulators also fear consumption by unconsenting individuals.
I am thinking of the house guest who drinks a glass of raw milk, either assuming it is pasteurized, or realizing that it is raw but not understanding the state’s concerns. I have had numerous guests sample raw milk at my house,without hearing the state’s point of view (because I don’t agree with it).
I am also thinking of the child who samples my childrens raw milk at lunch. I must admit to experiencing some pleasure in "getting away with" packing illegal raw milk in their lunchboxes every day. I often wonder how the schools would react if they knew.
I am wondering how Proposition 65 adresses these concerns. I don’t know much about Proposition 65. Are other food/agricultural products covered under it?
Sometimes I think state regulators would be much calmer about all of this if raw milk were labeled with a very different name ("disgusting udder beverage") or looked different than pasteurized milk (hence the attempts to enforce dyeing)..
http://www.britannica.com/EBchecked/topic/212684/food-preservation/50563/Pasteurization
http://www.fao.org/docrep/v5030e/v5030e0e.htm
http://www.fao.org/docrep/v5030e/V5030E00.htm#Contents
The best plan is to whittle down the rules to a bare minimum, and and allow education and information to flow free. Then at least the inevitable abuses will be merely human-sized, as opposed to the thudding, freedom-stealing, system-sized abuses of big business and massive government. Steve’s suggestion would help do that. (Of course, even if government agreed to such a thing, in no time there would be a mandate to promote education, which would turn quickly degenerate into government over-promoting a certain point of view, and from there a ban on what they deem inappropriate information.)
___________________________
* The impossibility of getting the truth out of our business/government machines is demonstrated by the obfuscation surrounding MSG labeling. The USDA states this:
MSG is classified as a flavor enhancer by Federal regulation. When it is added to a product, it must be identified as ‘monosodium glutamate’ on the label… MSG is the sodium salt of glutamic acid. Glutamic acid is an amino acid, one of the building blocks of protein. It is found in virtually all food and, in abundance, in food that is high in protein, including meat, poultry, cheeses, and fish. Hydrolyzed proteins, used by the food industry to enhance flavor, are simply proteins that have been chemically broken apart into amino acids. The chemical breakdown of proteins may result in the formation of free glutamate that joins with free sodium to form MSG. In this case, the presence of MSG does not need to be disclosed on labeling. Labeling is required when MSG is added as a direct ingredient.
What the USDA does not tell us is that synthesized, free glutamate, unlike the natural variety, is a known neurotoxin.
That said, I always make it clear that raw milk is what we have in our refrigerator, and probably half my guests choose not to drink it. I’m past the point of trying to convince nonbelievers. There’s plenty of momentum for people to examine the issue, and then someday to try it if they choose to. After all, choice is all that we ask for, and those who choose differently should have that right too. Free choice is the better way, with the result that all parties are more comfortable – not to mention, better educated. I often find myself helping someone who initially said no, and then weeks or months later (sometimes with an intervening wake-up call in their failing health) checks back to ask for help in locating a cow share to join. There’s steep growth in demand for raw milk in any case, and I’d rather see growth in responsible and reliable sources of supply, rather than a huge rush and "bubble" phenomenon with the well-known risks in such market behaviors, due to demand which is un-naturally driven.
Concerning the risk perceived by big-ag milk producers, i.e., their concern that problems with raw milk spill over to damage demand for all milk; this might have made more sense several years ago than it does now. With recent publicity about the raw milk movement, I think the risk to big ag may be more fundamental now, namely that raw milk is seen as a superior product due to its local, organic and more natural characteristics. With the continuing drumbeat of warnings about mass-produced, centrally distributed and imported food problems, it seems only natural that people will continue to look at their food sources ever more carefully. People will vote with their feet, forks and dollars, and that is the big risk for big ag. Raw milk and other locally produced foods are simply emerging as attractive and highly desired alternatives.
Could this be one of many things that are contributing to the increase in MS/ALS?
http://timesofindia.indiatimes.com/World/Shanghai_to_inspect_fish_for_melamine/articleshow/3655249.cms
http://www.theglobeandmail.com/servlet/story/RTGAM.20081031.wlmelamine31/BNStory/specialScienceandHealth/home
http://in.reuters.com/article/worldNews/idINIndia-36252520081031
http://www.msnbc.msn.com/id/27475188/
What happens when a country goes bankrupt? (Economies are created and destroyed by TPTB.)’
Iceland was the country referenced. But we may well be headed in the same direction. How might this affect producers of raw milk both locally produced and California milk? Will winter fodder become so expensive that dairies cant sell raw milk at prices that consumers can afford? Will incomes fall enough that consumers have to make the hard choice between more expensive, health-producing raw milk and other foods, and affordable, poorer-diet food? What dairies can stay in business if many of their customers disappear?
Our wealth is in the process of being decimated. But because, for the most part, the US population still earns enough to get along and lives within its comfort zone (though not as comfortably as we did a few years ago), few people have been asking themselves what their long-range future holds. Most have a time horizon of (plan for) maybe six months or a year at most. So far we are (barely) in economic balance.
Not so for the one quarter of homeowners whose homes are worth less than they paid for them. TPTB created the financing mechanism (ARMs) for the housing bubble and now rates have moved up enough that everything is fragile. Much home equity has disappeared and if incomes move down, a lot more equity will go down too. Our other major source of wealth is stock-based (personally owned stocks, 401Ks, pension plans, mutual funds, etc.). Their value is disappearing before our eyes if youre watching.
This next may be too detailed for some readers.
Ive been following the Dow Futures market for quite some time. It is based in the Dow 30 industrials and is a manipulated market (by TPTB represented largely by the Fed and by the worlds largest banks). It is where the really big money is made.
Bettors who have placed their bets that the Dow Futures market will go down, usually place a stop-loss order above the price of their bet to protect them from losing too much money. This cluster of Stop orders is what the big players shoot for. If the market rises enough to activate a Stop, then the order is to buy back their bet at a loss. When someone buys, another entity sells. The big players like to sell at the top of a descending market.
TPTB have manipulated the Dow market in such a way that a very reasonable place for bettors (who think the market will go down) to protect their bets from too much loss is to set their Stop somewhere above 9250. Yesterday, 10/31, yes Halloween, the manipulators moved the market up about 9450 to activate many, many stops. At this point the market is likely to descend, and the next pause-point on the way down is probably around 7500.
Since October 10th the Dow has roughly been trading between 8000 and 9250 down from about 11500 just a month and a half ago. (The high was 14217 just 1 year ago. Go look at a monthly-nearest chart of the Dow. You can play around with this site and see whats happening in other markets too.)
http://customer1.barchart.com/cgi-bin/mri/vsnchart.htx?page=chart&showcc=yes&sym=DJZ8&cc=DX&mon=&year=&data=H&date=110108&size=d&den=med&jav=adv&expm=0&sly=N&ch1=011&arga=&argb=&argc=&ov1=&argd=&arge=&argf=&ch2=&argg=&argh=&argi=&ov2=&argj=&argk=&argl=&code=vsn&org=com&crea=Y
Some traders believe 8000 is a bottom, and indeed a case, based only on the charts, could reasonably be made. A family member who often does well trading stocks apparently is thinking this way. However, last Wednesday, Fed chairman, Ben Bernanke, came right out and said for the first time that we can look forward to some very difficult times ahead and that major structural changes in our economy may occur. Since Bernanke is a member of TPTB, and it is TPTB that mostly moves the markets, it was time for them to make their move thus Fridays market action.
The chart has also created the classic picture of a bottom at about 8200 and this is a signal that the market will move up; which is why many believe that this *is* the bottom. But, if the overseas markets on Sunday night activate the cluster of stops that were set on Friday, then this is another signal that the Dow will move down thru the 8000 level. (on the above website, change the *Enter Symbol* field in the dialog box to *ZDZ8* to view the Futures price of the Dow as it is traded around the world.)
If the Dow slips through the 8000 level, I think it will set off other major dynamics causing consumers to really feel the pinch pretty soon. The Dow could be used as a proxy for the strength of the job market. If the Dow were to tank, the dollar is likely to follow at some point and then foreign goods and oil would become very expensive relative to incomes.
Thus, my concern about the viability of business in general and dairies in particular.
My milk is produced locally and this group of consumers is committed to supporting our source. I hope your situation is the same.
.
I never sent that letter to the editor. I have been conflicted about it. My regret in not doing so in time for the election is that in the event that Fred Daily is elected to national congress, and in the event that he actually agrees with the NAIS and increased regulation of dairy, he will not have been put on the spot and called on for the overzealous actions that transpired while he was the head of the ODA. I couldn’t be sure he agreed with those actions. I researched and reread, and his direct hand is absent from any account, even though he was the director. In the end, some of those farmers were almost overcompensated for the grief caused them. So I have to wonder how much of his hand was involved, and for what, and what he really does believe should be the role of the ODA and the Federal government in the regulation of agriculture. In particular, I’ve been mesmerized to some extent by the actions of Republicans, who claim to be for "less government," and yet institute action that clearly increases, not decreases governmental involvement! What "less government" exactly are Republicans for?
Judging from past experience with such conversations with my uncle, I can be pretty positive that Daily got some message regarding dissatisfaction with the actions under his management. What I can’t be sure of, nor have any clue of, is of what he believes or stands for. I’d like to know.
This is why Marler and his crusade has at least an equal potential to chill the raw milk movement as does any heavy-handed regulation, at least until something sexier comes along which better justifies the use of his time.
So, the question is how do small farmers producing raw milk get the benefit of regulation without the cost the way big ag does? My proposal is that they be required simply to label their product as raw milk. The temptation then will be to go further and ask for some kind of legislated immunity from litigation in return for such labeling. However, I fear that way lies the briar patch, since it is highly unlikely that any legislator will confer immunities without much more in return (standards, regulation, inspections, etc.). In fact, the loudest voice calling for regulation in exchange for a litigation shield would be the big ag lobby, since even with pasteurization they don’t get the litigation shield (in fact, they typically don’t get much more than a slap on the wrist from regulators when they screw up, and therein lies the well-known tale of the discriminatory harsh treatment applied to small farmers).
It’s a tough choice, therefore, to do something in this society for which one actually has to take responsibility. Without thinking this through more thoroughly – something this blog thankfully actually permits us to do – I would conclude that if raw milk producers can get the regulatory cat off their collective backs by the simple expedient of labeling raw milk, then that should be enough as a first step; and then to deal with occasional litigation risk as needed. There are important factors which tend to mitigate the risks with raw milk, including the substantial health benefits conferred by raw milk, the generally highly personal and ethical relationships between small farmers and their customers, and the tight feedback loop in small producer/consumer systems which give quick warning of problems. All of these factors are absent from the big-ag/pasteurized picture. Further, as the society generally begins to re-experience raw milk, driven by these many benefits, that the small risk of consuming it will also become manifest. In fact, we may even come to appreciate that the risk may be as much in the person consuming the milk due to a deficient nutritional landscape, as it may be in the inherent qualities of the food. Wouldn’t that be step in the right direction to Utopia :-). In such an evolving context, the very fact that the product was labeled would become a significant defense to any claim. This, of course will not make the occasional litigation experience any more pleasant, and will require people to actually be careful since they will be responsible for their actions. This will include consumers, whose handling and serving of raw milk also carry responsibilities.
Thanks for your intriguing analysis. It sounds prescient. As for the manipulation, it’s very difficult to prove and, in the long run, markets inevitably express themselves as markets are wont to do. The main source of manipulation we can more easily observe is the Fed’s (government’s) efforts to inflate, which will be taken to new extremes as deflation threatens. Either way, though, as you suggest, foreign goods will become ever more expensive, making locally produced goods, especially food, more attractive than ever…in many more ways than just price.
David Gumpert