Today’s Lesson in Constitutional Law: CA Raw Milk Suit Alleges Three Key Infringements

Why is it that there are “no standards in place for other food providers, for example, beef, poultry, pork, eggs, vegetables, bakers, or fin or shell fish, to comply with a coliform limit in the food stuffs they produce”?

That is one of the key questions raised in the court suit promised yesterday by Mark McAfee, which was filed today in California’s San Benito County. The plaintiffs are Mark’s Organic Pastures Dairy Co. and the second main raw milk producer in California, Claravale Farm, against the state and the secretary of its Department of Food and Agriculture, A.G. Kawamura.

The suit charges the state with violating three key constitutional protections afforded OPDC and Claravale:

1. “Denial of due process.” The suit make an intriguing argument, pointing out that AB 1735, in seeking a ten-coliform-per-milliliter limit in raw milk, is intended to make California consistent with federal milk standards. Since the federal government bans interstate shipment of raw milk, AB 1735 is inconsistent, maintains the suit.

“If AB 1735 were consistent with federal interstate milk shipping guidelines it would prohibit the consumption of raw milk within the State,” argues the suit. “However, AB 1735 authorizes the consumption of raw milk and thus is unnecessary in order ‘ to be consistent with federal interstate milk shipment guidelines .’ AB 1735 is unconstitutional because it is not rationally related to a legitimate governmental interest.”

2. “Denial of equal protection.” The fact that raw milk is singled out for special regulation, unlike other foods, it has lost the constitutional guarantee of equal protection, argues the suit.

“Plaintiffs produce raw milk, a product that is different from pasteurized milk, yet Plaintiffs are subjected to the same coliform standard that is required for pasteurized milk. AB 1735’s effect, therefore, is to target raw milk producers because they do not pasteurize their milk.”

Moreover, argues the suit, “AB 1735 does not operate fairly and uniformly against all food producers who are similarly situated,” such as producers of shellfish, eggs, pork, and other foods.

3. “Regulatory taking without just compensation.” The U.S. Constitution’s Fifth Amendment is best known for prohibiting self incrimination, but it ends with this prohibition: "…nor shall private property be taken for public use, without just compensation." 

The suit argues, "It is not technically possible nor economically feasible for Plaintiffs to meet the ten coliform limit at the bottle. Because they are not able to meet the requirements of AB 1735, Plaintiffs cannot operate their business and will suffer an adverse economic impact. Plaintiffs’ operation of their respective businesses constitutes a property interest that is protected by the United States and California constitutions.”

My initial impression is that this suit is very important. It may turn out to be moot if California repeals AB 1735. But in any event, it seems like an important template to challenge regulations that unreasonably target raw milk for special harsh treatment–in light of a safety track record that is pretty darn good compared to many other foods.

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10 Comments on "Today’s Lesson in Constitutional Law: CA Raw Milk Suit Alleges Three Key Infringements"

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December 28, 2007 7:27 am

Great news: Using Constitutional arguments is the way to go, seeing as this entire thrust by corporations to use executive agencies of the government to destroy all who threaten their monopolies is an unconstitutional usurpation and abuse of government power.

Why is it that those who have been telling us for nearly forty years that ‘government is the problem’ find it oh so convenient to use government authority to tilt the playing field to their own advantage, instead of just competing in the so-called ‘free market’ against the raw milk producers? If these mega-corporations are providing superior products, then… Read more »

December 28, 2007 8:57 am

Just a note about e-coli. As they are feeding spent distiller’s grain from ethanol production to beef cows they are finding an increase in e-coli. Are they going to stop feeding spent distiller’s grain to beeves? Lawds, no. They, those bright bright scientists, are going to come up with an vaccine against e-coli. Neat, huh?

December 28, 2007 9:41 am

isn’t that the way unpasteurized milk got its bad name — from cows being fed distillers’ grain? my goodness, how the circle turns…

December 28, 2007 10:27 pm

There is another interesting and even more relevant parallel to argument 2 – denial of equal protection – "pasteurized" cider is okayed when the producer uses equipment significantly less expensive than the equipment required to pasteurize milk. Why? What’s the difference? No explanation – that’s just the way they do it. Probably there are no gigantic cider monopolies trying to quash small producers. The same ag inspector who inspects my farm would never approve the type of pasteurizing equipment he approves for the orchard two miles away. More info here –

Scroll down to the financial analysis section… Read more »

December 28, 2007 11:54 pm

If this suit shows any traction at all expect them to yank AB 1735 very very quickly and the state to suddenly play nice. This is more than just a counter attack, its a shot across the bow. If #2 holds it could wipe out any regulation of raw milk beyond what eggs have. I don’t know what California has, but that typically only amounts to basic grading standards (that is grading to size, which for milk would mean simply making sure a gallon really is a gallon).

Bob Hayles
December 29, 2007 1:57 am

I concur with pete. This suit will make California fold like a house of cards, so AB1735 will be overturned in a NY second so the suit never sees the light of day in a court.

I would imagine that not only is California feeling the pressure from Californians, but also from agriculture departments across the country, because if the suit ever goes to trial, California, and the rest of the country’s raw milk regulators lose big time on constitutional grounds.

With a precedent set in favor of the plaintiffs in this suit, especially if it is decided in Federal… Read more »

December 29, 2007 2:11 am

Here are a few excerpts, and my commentary, from the Cornell Law link provided by David, above, pertaining to the ‘regulatory takings’ claim:

"A taking may more readily be found when the interference with property can be characterized as a physical invasion by government than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.269"

Lacedo: It may be argued that AB 1735 is intended "to promote the common good". It will be interesting to see how the courts deal with the very obvious fact that the government is merely being… Read more »

Bob Hayles
December 29, 2007 7:30 am

Lacado says, "Unlike Bob Hayle, I don’t wish protracted litigation on the McAfees."

Nor do I. My point is that, as I have said before, we are in a war with government officials and corporate agriculture over raw milk and nutrient dense foods specifically, and our right to make our own food choices in general. Given that war, this case can be a battle won if the new law is repealed, or a huge step towards our winning the whole war if it goes to court because the law isn’t repealed.

This is not the first time, nor will… Read more »

December 29, 2007 9:42 am

Mark, you got a story on Fox News.,4670,FarmSceneRawMilk,00.html
Dude! If you were responsible for them picking up the article, can you help us get Fox News to pick up NAIS?