I’ve spent the last few days reading through the most recent filings in the Maine Food Sovereignty case.
If the potential importance of a food rights case could be measured in the heavy weight of the many pages of these initial arguments, this is a serious case. In this initial phase, each side has moved for summary judgment–that the judge in the case decide in its favor as a matter of law.
In the 170-plus pages (I’ve included in the link here the most recent 75 pages, in which the sides are answering each other’s previous arguments), lawyers for the Maine Attorney General spar with defense lawyers for Blue Hill farmer Dan Brown over whether Food Sovereignty ordinances passed by Blue Hill and seven other towns in the state, which allow farmers to sell food directly to individuals, without having to worry about state regulations, should be allowed to stand. Lawyers for Brown, including Gary Cox of the Farm-to-Consumer Legal Defense Fund, argue that the state effectively allowed the private sale of raw milk by small farms that didnt advertise, for many years prior to 2009; that’s when it began targeting all raw dairies for licensing.
Central to the case, the lawyers offer their divergent interpretations about Maine’s home rule provisions, which allow wide municipal independence. Brown’s lawyers argue that the Maine constitution, and home rule laws growing out of it, provide clear precedence for Maine towns to enact laws independent of state regs. The state argues, essentially, that the home rule provisions were never intended to be applied so as to interfere with the state’s broad powers to regulate food, and especially dairy. Food, after all, is a special area, since it is so dangerous.
The state maintains that “the Blue Hill Ordinance frustrates the clear purpose of the law–that is, to protect the public by assuring that the sale of milk and milk products in Maine is regulated by the State in a manner consistent with inspection and examination, licensing, permitting, testing, labeling and sanitation standards established by the U.S. Food and Drug Administration–and the Blue Hill Ordinance prevents the accomplishment of this purpose…were the Ordinance to be effective to prevent the State from enforcing the licensing and inspection requirements of the law, it would allow the Defendant to continue the sale of raw milk and raw milk products to the public for consumption without any regulatory oversight and without any assurance that the milk was collected, bottled or held in a safe and sanitary manner. Again, such a result cannot be permitted as it could have serious public health consequences in contravention of State law.”
What is the state’s supporting evidence for playing the fear card?
The largest single chunk–about 15% of the paper volume– consists of printouts from the U.S. Centers for Disease Control about all the ways people can get sick from pathogens, how dangerous raw milk supposedly is, how people can “protect” themselves from foodborne illness, and on and on. It also includes the now-familiar “estimates” about the amount of food-borne illness in the U.S., that 48 million people get sick and 3,000 die each year from foodborne illness, and detailed breakdowns of these “estimates” according to pathogen.
The only problem with the 27-plus pages of CDC information is there’s no hard data anywhere–in the CDC printouts or in the state’s many pages of arguments–to back up its case about the public health danger. For example, getting to the case at hand, how many people have become sick from tainted food in Blue Hill and other Maine towns since they enacted the Food Sovereignty ordinances, most of them well over a year ago? How many illnesses from raw milk in the state of Maine over the last five years, what with many dairies having opted out of the state’s supervision? For an answer to both questions, try zero, as in none, zilch.
It’s quite astounding, when you think about it. It’s one thing that the CDC uses those totally inflated guesstimates about 48 million people getting sick and 3,000 dying each year from food-borne illness as part of its media propaganda to justify its existence . But to use such propaganda in a serious legal case, where everyone is bound to “tell the truth, the whole truth, and nothing but the truth,” is another matter.
The CDC does have hard data, but the agency buries it in its own reams of reports and announcements. Like this 2011 report on the actual 2008 data (the most recent available). It begins with the same-old-same-old–that there are 48 million illnesses from contaminated food. But then it provides the real data: “During 2008, the most recent year for which data are finalized, 1,034 foodborne disease outbreaks were reported, which resulted in 23,152 cases of illness, 1,276 hospitalizations, and 22 deaths.”
You read that right–23,152 illnesses, not 48 million; 22 reported deaths from foodborne illness, not 3,000. Even if you allow lots of leeway because of all the different pathogens and varying reporting capabilities of some locales, deaths are an entirely different matter. Deaths are the easiest cases to monitor because each person who dies must have a death certificate, and a stated cause of death. All the CDC has to do is monitor death certificates to find out the real number, and these are publicly available. Or, even easier than that, just monitor the media, especially the product liability lawyer web sites, which play up each and every death from foodborne illness. Nothing gets by their $$$-trained eagle eyes. But all that would be much more dangerous than any danger from foodborne disease because it would reveal the truth–that the number of deaths was much closer to 22 than to 3,000.
I believe it was Amanda Rose who was recently throwing around accusations of “fraud.” The CDC’s use, or misuse, of food safety illness and death data, is much more fraudulent than anything any farmers might have pulled. Actually, in legal parlance, the misdeed would be “perjury.”
The problem with these Maine filings seeking summary judgment is that a judge, not a jury, rules on them. A nod of the head by a judge and a signature on a piece of paper could render this case moot before it gets argued before a jury. Judges have demonstrated in other cases around the country how easily they can be snowed by public health fear mongering.
Let’s not forget, this case is about allowing owners of small farms in a few towns where the citizens have approved it to engage in private food transactions. It’s a tiny matter. But it could set important legal precedent by lifting the stranglehold the regulators have over the entire food system, including private food distribution. That’s why the state of Maine (probably with oversight from the U.S. Department of Justice and the FDA) is taking it so seriously. Let’s hope it gets a proper hearing.
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A reviewer of my book, The Raw Milk Revolution: Behind America’s Emerging Battle Over Food Rights, takes an intriguing first-person approach to comparing his own experiences with some of mine, and assessing the attention I give to food safety. And there is an opportunity to win a free book.
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An alliance growing out of regulator excesses –in “celebration of food freedom and voluntary exchange”–will feature Lemonade and Raw Milk Freedom Day in Washington next week. The two-day event will include a half day of “Rights Training” on Friday by a group of experts in civil disobedience, court procedures, and organization (with dinner from Polyface Farm), followed on Saturday by a demonstration at the Capitol Reflecting Pool.
See activist Max Kane extend a personal invitation to the event to John Sheehan, head of the FDA’s dairy division.
There is good and bad, or should I say honest and dishonest, people in every profession. Some honestly believe their beliefs are correct and cannot see any other view. Some follow blindly. Some are at the other end of the spectrum and trust no one. Trust is earned, isn’t it?
Fraud is fraud and it matters not who commits it, nor the degree of fraud that was committed. It diminishes the trust of others and trust is very hard to recoup once lost.
For many, farmers are right up there with nurses, doctors, firemen, police, etc; people who are to be trusted. I do believe that most of these people are honest. When one of these persons commits fraud or other infractions, it slides that profession closer towards the hypocritical and fraudulent government. Transparency and honesty keeps one above the slime of those who live in their fraudulent world.
People will gravitate towards that transparency and honesty and in time the majority will support the transparency and honesty side. The healthy food movement has been slowly growing for years and, I think more so, in the last 5 or so years. I think the govt, big ag, etc. sees this and has pumped up their scare tactics against those who want healthy foods. For them, it’s all about profits and they are unable to make those profits when people don’t want their trash.
Again, education is imperative. Pink slime is a good example, it has been changed in many venues, because people didn’t want it, many had no clue they were consuming it, many were angry that they had not been informed of what they were purchasing. Short factual bullet statements with pictures is key to change. You plant the seeds and watch them grow.
“Dirigo” is the motto of the State of Maine. Latin for “I Lead” or “I Guide,” a clue as to the true purpose of law. Dirigo is now said to mean “I Direct” which is more in keeping, frankly, with the loss of both Liberty and Freedom. Liberty and Freedom was paid for with a dear price, why should it be surrendered? What do the “directed” citizens of the Great State of Maine have to say to the would-be “Directors” of their daily board? More pointedly, what will the Mainers do? Observe, comment, accept? Or change?
Good point, Sylvia, on fraud. Value judgments about which is better or worse aren’t very useful.
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Posted by Drew Falkenstein on July 30, 2012
Neff’s Lawn Care E. coli Outbreak: at least one still hospitalized with HUS
The devastating E. coli O157:H7 outbreak that has sickened at least 75 people in Germantown, Ohio, is continuing to cause a lot of pain. A 73-year-old man died last week, and a 14-year-old boy was just released from the hospital, and is likely home recovering from the effects of hemolytic uremic syndrome. A 4-year-old girl remains hospitalized in serious condition with HUS.
The outbreak began with people who ate at a July 3 customer appreciation picnic for a lawn care business in Germantown, about 15 miles southwest of Dayton. Fourteen people have been hospitalized.
The Ohio Department of Health’s Outbreak Response and Bioterrorism Investigation Team (ORBIT) is still trying to figure out exactly what the source of infection was. What we know is that the outbreak has been linked to a July 3 carry-in picnic at Neffs Lawn Care in German Twp. An estimated 300 people attended the picnic, and many brought food to share. The hosts supplied and prepared some of the meat that was served.
For resources on hemolytic uremic syndrome, see http://www.about-hus.com.
I would bet money, that the Maine Constitution, like the US Constitution does NOT delegate to the State the power to regulate what one puts into their body. It is probably a stretch of one of the clauses just as is done in the US Constitution.
I would argue, that even if it did, that it would illegitimate as a power that the citizen does not have can not be delegated to the State, or anyone else for that matter. What foods I eat is an inalienable right. I can not tell my neighbor what to eat so how can I have ever delegate a power I do not have to the State?
People also have an absolute right to contract with one another.
If we had anything that even closely resembled proper, and legitimate government, any one of the above 3 arguments would vindicate these towns. But then again Government rather than being the protector of rights has become the destroyer of rights.
1. The Blue Hill Ordinance is preempted by 7 M.R.S. §2901-C.
The Maine Legislature has created a comprehensive regulatory scheme governing the sale of milk and milk products in this State.
It is telling that they describe their own regulatory rules concerning the sale of milk and milk products in Maine a SCHEME the word scheme has the connotation of being devious with intent to do something illegal or wrong. Then they describe their SCHEME which is based on licenses and permits.
First of all, I thought it was common practice for local government to in act their own regulations, just as the state does.
Next they use the word important. If bacterial contamination were an important issue, that would be all the more reason that the consumer and the local government would have the final word, rather than an under staffed state agency with admitted ties to the food processing industry. The food processing industry is a direct competitor to anyone selling raw healthy food. Speaking of healthy food, I think everyone would agree processed foods are unhealthy.
The fact is, bacterial contamination is not an important issue especially when it comes to raw milk and especially direct farm sales and especially when the only complaints come from competing businesses. It is only raw milk competitors that say a person could get diarrhea from raw milk. Doctors, who by the way are one of raw milks most fierce competitors, admits that diarrhea is not a serious illness and is in fact the most common illnesses in the united states.
The next words factual determination; The fact that the customers are getting exactly what they came for, says it all, because that is the only purpose for the regulations in the first place. All the testimonials, no matter how convincing are not really necessary or even relevant.
Pg 4. They us the phrase depending on the totality of the particular circumstances. That is exactly what the people of the state are asking the court to do, step back and look at the big picture.
The state regulates on behalf of the consumer. It’s authority comes from the consumer. How can they legally ignore the consumers wishes. In Wisconsin the sole purpose of our regulations are to eliminate misbranding and unfair business practices yet the state seems to think their job is the exact opposite.
I don’t believe the state has ever said they have the the authority to stop us from buying raw food. They simple insist that they have the authority to stop someone from selling it. They choose to ignore the spirit and intent of the law and forget who they work for. They pick and choose the laws they want to enforce and sometimes even break them. These laws were written to insure food choice not prevent it.
They also say the estoppel should only be carefully and sparingly applied. Well I can’t think of a more appropriate time. This is precisely what this law was written for.
Again they us the word important and then the phrase serious public health consequences. There are nearly a billion cases of diarrhea a year in the US. Only a few dozen are being blamed on raw milk. That’s nothing, with three percent of the people in the eleven states where raw milk is illegal still drinking it and probably twenty percent in the states where it’s legal. Remember these accusations come from raw milk competitors. If this were the criteria for making a product illegal everything would be, but in fact nothing is, including raw milk.
Then they say chapter 329 protects the public health and welfare. Well, that isn’t their job but if it were they would certainly have to ban the pasteurization of anything sold as food for human consumption. Just look up why doctors warn against feeding pasteurized milk to infants, furthermore when they recommend breast milk they are actually recommending raw milk aren’t they? I think most Americans know that pasteurized dairy products cause cancer, heart diseases, arthritis, allergies, osteoporosis, and serious diarrhea. Now that’s a what I call serious public health consequences. Not even the raw milk competitors are accusing raw milk of that. So in actuality this issue is much more important than the state says it is. When it comes to evidence all you need to do is apply a little logic to the states own expert testimony.
Lastly they talk about inspections, inspections designed for pasteurized milk which are not needed or wanted by the raw milk consumers. What would be the purpose of a monthly state inspection of a totally transparent operation where the consumer buys direct from the farm weekly. The state inspections do not address any of the issues which concern health minded consumers.
Also it looks like they’re repeating themselves already and we’re only on page four.
What is foodpoisoningbulletin.com. I recently got this message (You Are Banned.) after leaving one too many really good comments.
When the state ignores the wishes of the consumer and comes down on the farmer selling him fresh milk, the state is then representing its self and not the people of the state.
3: a plan or program of action; especially : a crafty or secret one
http://www.merriam-webster.com
The day will come when a bit of water is going to splash onto the wicked witch of the industrial food world. How can you stop life?
Instead of Food Poisoning Bulletin, cant you just see a Food Freedom Bulletin
with a Coercive Regulations Outbreak map instead of Pritzkers View Food Poisoning Outbreaks map?
Mr. J. Ingvar Odegaard
I didn’t get angry or say anything bad. I just figured out the only way to leave comments was to make them short because they would pick one sentence, respond to it with a bunch of lies and ignore the rest. So I left a separate comment for each lie. I don’t think I was talking to a real person or at least not this Linda Larsen in the picture. These are the two pages I left comments on as;
“grim says:”
foodpoisoningbulletin.com/2012/cdc-asks-states-to-regulate-raw-milk
foodpoisoningbulletin.com/2012/organic-pastures-outbreak-is-fifth-raw-milk-outbreak-this-year
I would like to respond to three paragraphs starting with; the home rule provisions were never intended to be applied so as to interfere with the state’s broad powers to regulate. This is only partly true. I realize the federal, state, and local government often try to work together with inspection and regulation but often times local regulations are deferent. Milk is a perfect example. Every state has different milk regulations despite FDA guidelines. Every municipality has different electrical regulations despite state guidelines and electricity is much more dangerous than diarrhea. Besides what other purpose would there be for a home rule provision? Then there’s the word intended. None of our regulations were intended to block access to the foods of our choice. In fact their only purpose is to insure food choice. And again diarrhea is not dangerous, look it up.
2. The state maintains that “the Blue Hill Ordinance frustrates the clear purpose of the law–that is, to protect the public by assuring that the sale of milk and milk products in Maine is regulated by the State in a manner consistent with inspection and examination, licensing, permitting, testing, labeling and sanitation standards established by the U.S. Food and Drug Administration…
Regulation is not a purpose. Regulation has a purpose. That purpose is to insure the consumer gets the product they are looking for. Besides there are currently no raw milk regulations or inspections so what are we talking about. Raw milk consumers have much higher standards and specifications than the state. Is there any other producer that allows customers access to there production facility as in the case of on farm sales.
3. The largest single chunk–about 15% of the paper volume– consists of printouts from the U.S. Centers for Disease Control about all the ways people can get sick from pathogens, how dangerous raw milk supposedly is, how people can “protect” themselves from foodborne illness, and on and on.
I’m glad you bring it up. The raw milk discussion always goes off track and it always seems to be in the wrong forum. The safety of raw milk is irrelevant. Our food regulations are not intended to prohibit or promote unsafe foods. The state has only been given the authority to force producer to properly label there products and they seem reluctant to do even that.
If you open up the discussion to include food safety you will need hard unbiased data and than we have to discuss conflict of interest, antitrust, and libel; and all of this needs to take place in front of a judge.