Raw Milk Raids and Court Cases Enter New Territory

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This is the first in a series of articles about raw milk by the Center for Media and Democracy's Food Rights Network.

The nationwide battle over the right to consume foods produced on local farms entered a new phase this summer.

Rawesome Food Club and Healthy Family Farms

In August, the Los Angeles Police Department arrested three individuals -- James Stewart, manager of the private Rawesome Food Club in Venice, Sharon Palmer, owner of Healthy Family Farms, LLC, and her associate Eugenie Bloch -- "on criminal conspiracy charges stemming from the alleged illegal production and sale of unpasteurized goat milk, goat cheese and other products" after "a year-long investigation" during which "investigators made undercover purchases of unpasteurized dairy products."

This was the second raid of Rawesome Foods by armed officers in the space of a year. The June 2010 raid was caught on the security camera, with officers pointing guns as though they were breaking up a drug ring:

The criminal charges against Stewart, Palmer and Block this August, according to food rights expert David Gumpert in his blog "The Complete Patient," make this "the first criminal case involving food rights that I am aware of. Everything else has been in the civil arena, where the rules of evidence are less strict, and the stakes not as high." Southern California Public Radio reported that, "If convicted, James Stewart faces up to eight years in state prison."

Gumpert pointed out that, in the case of Rawesome Foods, "this huge police action has occurred without a single case of illness from pathogens. As a few people have noted, while this huge undercover investigation and crackdown has been occurring, Cargill's products have made dozens of people ill, including one death, with turkey poisoned with antibiotic-resistant salmonella."

According to a press release by the Farm-to-Consumer Legal Defense Fund (FTCLDF), "The issue seems to be the club's use of a herdshare or boarding agreement for its dairy goats. Recently, the California Department of Food and Agriculture issued a cease-and-desist order to a farmer boarding dairy animals for the animal owners. Another farmer, Mike Hulme of Evergreen Acres Goat Farm in San Jose, received a cease-and-desist letter from the Santa Clara County District Attorney's office."

Evergreen Acres Goat Farm

Three shareholders in a herdshare arrangement with Evergreen Acres Goat Farm are plaintiffs along with FTCLDF in a suit against the California Department of Food and Agriculture and the Santa Clara County district attorney.

It seeks "a proper interpretation of applicable law that would provide prospective relief ... that would allow Plaintiffs to engage in ... a private, separate contract with the Hulmes for the purchase of an interest in a dairy goat."

It also seeks "declarations that (1) they have the inalienable right to own a goat, (2) they have the inalienable right to consume the milk from their own goat, and (3) they have the inalienable right to enter into an Agistment agreement with the Hulmes to provide for, tend to, take care of and manage their goat." (To agist is, in English law, to take cattle to graze, in exchange for payment.)

Grassway Organics and Zinniker Family Farm

In Wisconsin, similar herdshare cases brought by FTCLDF were recently decided by a Circuit Court. In August, the cases of Kay and Wayne Craig and Mark and Petra Zinniker (which had been consolidated into a single case), who sought to distribute raw milk to herd shareholders through farm stores, were decided by state court judge Patrick Fiedler. He ruled against them on all counts (pdf). He broadly rejected the claims of the farmers and their patrons that "they have a fundamental right to privacy to consume the food of their choice for themselves and their families and therefore have a fundamental right to consume unpasteurized milk from their cows," declaring that "plaintiffs' arguments are wholly without merit." The state Department of Agriculture, Trade and Consumer Protection (DATCP) interpretation of the applicable state statute, he said, "does not affect or interfere with a fundamental right and therefore is not subject to strict scrutiny" of the regulation, a legal standard which would make it difficult for the regulation to be upheld. The Craigs and FTCLDF filed a motion to reconsider (pdf) on August 25th.

The cases of the Hulmes, Craigs and Zinnikers have all been civil cases, unlike the criminal case against Rawesome and Health Family Farms.

An Issue of Human Rights?

Is this about food safety? Gumpert pointed out in another blog post that "Cargill's foods have killed people, yet not only is the company operating as normal, not even any officials are being accused of crimes."

Or is this about rights? The FTCLDF filed a lawsuit against the Food and Drug Administration (FDA) for its bans on interstate sales of raw milk in February 2010. The FDA's brief in support of the United States' motion to dismiss the complaint made clear (pdf) its views on food rights:

The interest claimed by plaintiffs could be framed more narrowly as a right to "provid[e] them[selves] and their families with the foods of their own choice." Am. Compl. ¶ 120. But there is no "deeply rooted" historical tradition of unfettered access to food of all kinds. See Glucksberg, 521 U.S. at 721. To the contrary, society's long history of food regulation stretches back to the dietary laws of biblical times. ... [P]laintiffs do not have a fundamental right to obtain any food they wish.

Some have expressed surprise that the FDA would embrace a seemingly theological justification for governmental regulation.

However, the International Covenant on Economic, Social and Cultural Rights (ICESCR) calls the right to food a human right. The UN Special Rapporteur on the right to food in 2002 defined the right to adequate food as follows:

Right to adequate food is a human right, inherent in all people, to have regular, permanent and unrestricted access, either directly or by means of financial purchases, to quantitatively and qualitatively adequate and sufficient food corresponding to the cultural traditions of people to which the consumer belongs, and which ensures a physical and mental, individual and collective fulfilling and dignified life free of fear.

This international rights document emphasizes "qualitatively adequate" food "which ensures a physical and mental, individual and collective fulfilling and dignified life free of fear." This, combined with the emphasis on cultural traditions, makes a strong case that the individual's choice of what food to eat is an important part of this human right.

Armed raids of private food clubs, especially when there has been no case of illness from pathogens connected to food distributed amongst club member-owners, according to citizens concerned about their freedom of choice, flies in the face of the inherent food rights of people, rights which precede and supersede mere statutes.