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"

December 28, 2007

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 they should be able to compete on a level playing field in the free market, without buying a government goon squad to kneecap the small guys who are merely attempting to live the American dream of honest work for a day’s pay.

I understand the first two Constitutional arguments, but number three is over my head. How is it that the Count 3 5th Amendment argument is articulated? Is it that an arbitrary law was passed whose sole intent was specifically to deny the McAfee’s and other raw milk producers their business/means of livelihood? If so, then it seems to me (IANAL) that this third count relies on Count 2.

Just because the thought occurs to me, I point to the new regulations on greens being promulgated, in response to the E. coli on spinach. These regulations will also serve to shut down small farms’ ability to sell fresh greens. It’s looking more and more like fear of E. coli (never mind that we all have it in our guts) is being used in parallel fashion to fear of ‘Islamofascism’ to force policy that favors big business. Of course the real cause of the deadly E. coli is not fresh greens, but CAFOs, another of big business’ unnatural and immoral business practices.

December 28, 2007

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

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

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 – fully legal vs heat treat systems – I (milk producer) must have the full dairy system. My neighbor (cider producer) is only required to have a heat treat system.

The difference is basically the instrumentation – chart recorders (sophisticated thermometers) – not the process.

What’s hilarious is that the PMO (pasteurized milk ordinance) itself dictates that all approved pasteurizers must have a chart recorder – very expensive for a small farmer – but then goes on to say that since it is widely known and acknowledged that chart recorders are inaccurate, approved pasteurizers must also have a backup regular thermometer (cheap).

So essentially they require you to have a very expensive piece of equipment that even they acknowledge DOESN’T WORK. Why? Why can’t you just have the $100 thermometer that they know does work? The layers of inequity are baffling, but the underlying reasons are clear – keep the little guys out.

December 28, 2007

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

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 court due to appeals if the state initially wins, it will turn all state regulations regarding raw milk out into the trash bin.

For this reason, despite my wanting Peaceful Pastures and Claravale to continue to be profitable farms, I kind of hope that AB1735 stands in the legeslative session. Repeal of 1735 will only delay the inevetable…the continued battles against raw milk nationwide. It will make California back off…for now…but they will be back with another bunch of BS, along with other states continuing the war against raw dairy and other nutrient dense foods. Instead, a court win on the constitutional points brought up in the suit has the potential to win the war for our side in one fell suit.

California is going to back down and change the law, but, for the above reason, I kind of hope they don’t.

(side note: Cathy says "Hi pete")

Bob Hayles
Thornberry Village Homestead
Jasper, GA

Thornberry Village Homestead…a small goat dairy, owned by God, managed by Bob and Tyler.

December 29, 2007

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 used as a tool by Monsanto to restrain trade in raw milk.


"On the other hand, a federal ban on the sale of artifacts made from eagle feathers was sustained as applied to the existing inventory of a commercial dealer in such artifacts, the Court not directly addressing the bans obvious interference with investmentbacked expectations.278 The Court merely noted that the ban served a substantial public purpose in protecting [the public from E. coli] the eagle from extinction, that the owner still[p.1388]had viable economic uses for his [dairy] holdings, such as [operating his dairy in the corporate fashion] displaying them in a museum and [selling his milk to the bottlers] charging admission, and that he still had the value of possession.279"

Lacedo’s rewrite: "The Court merely noted that the ban served a substantial public purpose in protecting the public from E. coli, that the owner still[p.1388]had viable economic uses for his dairy, such as operating his dairy in the corporate fashion and selling his milk to the bottlers, and that he still had the value of possession."

"…there are two possible constitutional objections to be made to regulations that go too far in reducing the value of property or which do not substantially advance a legitimate governmental interest. The regulation may be invalidated as a denial of due process, or may be deemed a taking requiring compensation, at least for the period in which the regulation was in effect."

"The process of describing general criteria to guide resolution of regulatory taking claims, begun in Penn Central, has reduced to some extent the ad hoc character of takings law. It is nonetheless true that not all cases fit neatly into the categories delimited to date, and that still other cases that might be so categorized are explained in different terms by the Court. The overriding objective, the Court frequently reminds us, is to vitalize the Fifth Amendments protection against government forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.307 Thus a taking may be found if the effect of regulation is enrichment of the government itself rather than adjustment of the benefits and burdens of economic life in promotion of the public good.308 Similarly, the Court looks[p.1394]askance at governmental efforts to secure public benefits at a landowners expensegovernment actions that may be characterized as acquisitions of resources to permit or facilitate uniquely public functions.309

On the other side of the coin, the nature as well as the extent of property interests affected by governmental regulation sometimes takes on importance. The Court emphasizes that the taking of one strand or stick in the bundle of property rights does not necessarily constitute a taking as long as the property as a whole retains economic viability,310 but some strands are more important than others."

Lacedo: AB1735 could be interpreted as intended as an "adjustment of the benefits and burdens of economic life in promotion of the public good", and is not an "enrichment of government itself", and therefore only one "strand….in the bundle of property rights" is being taken (the one the state deems counter to the public good).
Lacedo: I didn’t read of any cases that were not about taking of real property, rather than taking of the right to use the property for a specific purpose, something the state regularly does via zoning. This is why it seems to me (IANAL) that the first claim is the most important hurdle, upon which the other two claims would seem to depend.

I hope the law is repealed, but if not, this case may be a landmark that prevents piecemeal legislative attempts to destroy small-holder sustainable farming. The key would seem to be to prove that the state has shown no public health interest in preventing people from drinking raw milk on spurious grounds (the intentionally low coliform limit), and that by the state’s reasoning in passing AB1735, commercial hamburger (and probably many other corporate foods) should be prohibited, etc.

Unlike Bob Hayle, I don’t wish protracted litigation on the McAfees. This case could last ten years and cost millions of dollars in attorney fees. I’ve had personal experience suing the government on 5th Amendment grounds, and note that it is the taxpayers who pay the tab, and the crooked government employees (in my case; I’m not saying that all government employees are crooks) who will fight tooth and nail to bankrupt the plaintiff, and further abuse their power in order to assert their impunity. It ain’t pretty, no matter how righteous you are in your cause. It’s emotionally draining as well. We already know the corporate backers of AB1735 will use every lever of power to fight the McAfees.

Bob Hayles
December 29, 2007

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 it be the last, that Mark has had the Calif ag people cause him problems UNLESS they are shut down at the judicial level. A repeal of this law will only let them back off for now, only to come back with a whole new strategy later.

Basically, I see the choice as whip them now or whip them later, but whip them we must to avoid a constant barrage of new battles to fight.

Bob Hayles
Thornberry Village Homestead
Jasper, GA

Thornberry Village Homestead…a small goat dairy, owned by God, managed by Bob and Tyler.

December 29, 2007

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?