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Local Food Sovereignty Rights on Trial Before Maine Supreme Court

Dan Brown Blue Hill
Dan Brown Blue Hill [1]

The State of Maine spent considerable time prosecuting farmer Dan Brown for selling raw milk from his 2 cows without a license, even though nobody ever complained or suffered from his milk.
Photo courtesy of the Complete Patient [1].

by John P. Thomas
Health Impact News

Raw milk advocates and those concerned about the survival of small farms in Maine rallied Tuesday in Portland to show their support for farmer Dan Brown before his State Supreme Court hearing.

This case is much more than a question of whether farmer Brown has the right to sell raw milk from his small dairy farm to people in his local community. It represents the nationwide effort to eliminate local independent food producers from the marketplace.

It’s not just the sale of raw milk that is under attack. It is about the authority of a local community to decide how to manage the sale of locally produced food.

It is about food sovereignty. Do people have the right to independently produce food using methods of their own choosing and to sell that food to people who want their food grown or prepared according to those standards despite what state or national bureaucrats think is best?

When Dan Brown first approached state officials in Maine in 2006, he was told that he did not need a license to sell milk from his farm. He and his wife established their small dairy farming business and began selling raw milk to the local community in Blue Hill, Maine. They did this for 4 years until state regulators decided to change the rules.

In 2011, the Town of Blue Hill passed a local food sovereignty ordinance (see:“Food Sovereignty” law passed in small Maine town to allow sale of locally produced food without interference of regulators [2]). Dan Brown was one of the farmers that town leaders were thinking about when they considered adopting the ordinance. Blue Hill was the third town in Maine to adopt this type of ordinance. There are now eleven communities in Maine that have adopted local ordinances permitting unlicensed sales of farm products to people within the community. The Blue Hill ordinance provides, in part, that local food produced by a farmer and sold to a consumer for home consumption need not be licensed or inspected. [1]

The Bangor Daily News described the history of the case on 5/13/2014:

Brown sold raw milk from his Gravelwood Farm from 2006 to 2013. In 2011, state officials ordered him to cease selling his product without proper licensing. Citing a local ordinance that permitted the sale — contradicting state law — Brown continued his operation. The state sued, and last summer [2013], the Hancock County Superior Court ruled against Brown, ordering him to stop selling raw milk without a license and pay more than $1,000 in fines and court fees. [2]

WABI TV 5 News in Bangor Maine described the key questions under consideration by the Supreme Court:

Do local food ordinances allowing farmers to sell products directly to consumers exempt those farmers from state licensing requirements? If the court sides with Brown, this case could have a ripple effect nationwide in terms of food sovereignty.

Gary Cox with the Farm to Consumer Legal Defense Fund is assisting farmer Brown. Cox stated, “If we win here in Maine, it’s going to be huge. Not only in the state of Maine where anybody and everybody can now enact local ordinances, but other states as well can do it.”

According to Cox, the issue of food sovereignty has been a growing concern across the country and now all eyes are on the Maine Supreme Judicial Court. [3]

The Farm-to-Consumer Legal Defense Fund News described the specific issues involved with the Brown case as follows:

The State had alleged that Dan was (1) selling raw milk without being in possession of a milk distributor’s license, (2) selling raw milk without having the necessary warning label, and (3) selling other foods prepared in his home kitchen without being in possession of a retail food license. Dan had argued that for over 30 years the Department of Agriculture had a policy of allowing small, unlicensed milk producers like him sell raw milk from their farm as long as they did not advertise or solicit the sale. He also argued that the Town of Blue Hill, Maine’s local ordinance exempted him from licensing requirements. [4]

The Maine Public Broadcasting Network went into greater depth in its description of the 5/13/2014 Supreme Court hearing:

 “The question the court will be deciding in this case, among others, is whether the state should be prevented from enforcing laws that protect the public from the threat of illnesses that could be caused by contaminated and unsafe milk and food products,” Randlett said [attorney for the State of Maine].

Randlett acknowledged that the state erred when it originally told Brown that he and his wife could sell raw milk from their farm stand in 2006 without a license. And they did so for about five years. But since then, Randlett says inspectors in the Maine Agriculture Department have told Brown numerous times that he needed to meet sanitary requirements and to get a distributor’s license.

 But Brown’s attorney, Gary Cox of the Ohio-based Farm-To-Consumer Legal Defense Fund, says Brown spent $22,000 on his farm stand business on the basis of the state’s original instructions. Cox says Brown was then advised he’d need to spend another $20,000 to $60,000 making improvements to meet the state requirements.

 Cox asked the court to consider what’s known as estoppel, a legal doctrine that would preclude the state from enforcing a license that it previously told Brown was unnecessary. Justice Ellen Gorman pressed Brown’s attorney on the criteria for estoppel.

[Supreme Court Justice Gorman asked,] “Our case law, I believe, says that it’s not just a statement. It needs to be a misrepresentation. What misrepresentation are you asserting the state made here?”

[Attorney Cox answered] “Initially, when they say you can sell raw milk without a license as long as you don’t advertise or solicit, apparently that’s a misrepresentation, according to the state. The state is now taking the position you can’t do that. You do need to get the license.” [5]

Dan Brown and his attorney discussed the origin of the lawsuit against Brown and the consequence of the legal action. WABI TV 5 reported the remarks:

Brown and his attorneys believe the state began cracking down on farmers like Dan Brown after the USDA threatened to withhold federal funding provided to the state to pay for meat and dairy inspectors.

“That’s when they started coming after us,” Brown said. “It was a direct result of them being worried about losing their funding for other programs.”

Brown says the three year ordeal has taken a serious financial toll on the Brown’s farm. His farm stand remains closed, he’s filed for bankruptcy and now he’s working part time as a stern man on a lobster boat to make ends meet. [6]

David Gumpert reported farmer Brown’s remarks about the future of local farming:

Prior to the hearing, Brown spoke to about 60 demonstrators and a cadre of about twenty media representatives gathered in front of the state courthouse in downtown Portland. When he began selling milk and other food from his farm stand in 2006, “There were three families selling on my road. They are all gone now. If this keeps up, there won’t be any small farms or farm stands….When they are done with me, they are not going to stop.”

Brown told me prior to the demonstration that he has had difficulty finding work since shuttering his farm stand. … Would he resume dairy farming if he wins his case? “That would be the best case,” he said. “Even though I worked 100 hours a week, I loved it.” He still has three milk-producing cows, whose milk is just used by his family.  But he has difficulty imagining re-establishing the business he had selling from his farm stand and going to farmers markets. “I don’t know that it can ever go back to the way it was,” he said. [7]

The Maine Supreme Court does not have a time table for providing a decision in the Brown case. The general estimate is that it will be two to three months before we will learn about the future of food sovereignty in Maine.

Conclusion

The farmer Brown case illustrates a deeply alarming trend in public health policy. The trend is to use public policy to expand the market share for agribusiness by cutting out small locally owned farmers and food producers. Small locally owned businesses are targeted by state and Federal regulators to get them to comply with unnecessary rules and regulations, which supposedly will protect the public health.

The Bangor Daily News made an important observation about the Brown case:

No one has claimed that anyone got sick from drinking Brown’s milk. His supporters say they’re more likely to trust a local farmer than big corporate farms, which have been the source of all the headline-grabbing food-borne disease outbreaks in recent years. [8]

The truth is that food contamination cases almost always involve food that is produced by major corporations. In cases where small businesses have been targeted, such as raw milk producers and raw cheese artisans, the accusations from state regulators about contamination inevitably have been proven to be false. Yet the harassment continues even though there is abundant evidence that raw dairy products are healthier than pasteurized dairy products, and contamination is a very rare occurrence. [9]

We will all have to wait for the Maine Supreme Court to make its decision. Until then, it is worth keeping in mind that we live in a time where the formerly unquestioned basic right to control what we put into our bodies is being challenged by corporate interests that are working through various agencies of government. We should not assume that our right to choose the types of food that we wish to eat is permanent or secure. When we purchase our food directly from the farm or at farmers markets, we are strengthening local businesses, which will help them survive in a climate where food freedom is being threatened.

More info on Dan Brown and Maine Food Sovereignty [3]

Resources

[1] “Dan Brown Hearing in Maine Food Sovereignty Case: Judge Finds Raw Milk Not a Local Food,” Farm-to-Consumer Legal Defense Fund News, Updated 5/14/2014. http://www.farmtoconsumer.org/news_wp/?p=7718 [4]

[2] “Farmer Brown goes to court: Justices hear oral arguments in unlicensed raw milk case,” Bangor Daily News, 5/13/2014. http://bangordailynews.com/2014/05/13/news/state/farmer-brown-goes-to-court-justices-hear-oral-arguments-in-unlicensed-raw-milk-case/?ref=BusinessBox [5]

[3] “Farmer Brown” Brings Local Food Sovereignty Fight To Maine Supreme Court,” Rob Poindexter, Bangor, Maine News, Sports, and Weather – WABI TV5, posted Tuesday, May 13th, 2014 at 4:33 pm. http://wabi.tv/2014/05/13/farmer-brown-brings-local-food-sovereignty-fight-maine-supreme-court/ [6]

[4] “Dan Brown Hearing in Maine Food Sovereignty Case: Judge Finds Raw Milk Not a Local Food,” Farm-to-Consumer Legal Defense Fund News, Updated 5/14/2014. http://www.farmtoconsumer.org/news_wp/?p=7718 [4]

[5] “Maine’s Raw Milk Battle Moves from Farm House to Court House,” Susan Sharon, Maine Public Broadcasting Network, 05/13/2014. http://www.mpbn.net/Home/tabid/36/ctl/ViewItem/mid/5347/ItemId/33726/Default.aspx [7]

[6] “Farmer Brown” Brings Local Food Sovereignty Fight To Maine Supreme Court,” Rob Poindexter, Bangor, Maine News, Sports, and Weather – WABI TV5, Posted Tuesday, May 13th, 2014 at 4:33 pm. http://wabi.tv/2014/05/13/farmer-brown-brings-local-food-sovereignty-fight-maine-supreme-court/ [6]

[7] “At Intense Maine Supreme Court Hearing, Justices Divided on Farmer Dan Brown’s Raw Milk Rights,” David Gumpert, The Complete Patient, Tuesday, 05/13/2014, posted 13:26. http://thecompletepatient.com/article/2014/may/13/intense-maine-supreme-court-hearing-justices-divided-farmer-dan-brown%E2%80%99s-raw-milk [8]

[8] “Farmer Brown goes to court: Justices hear oral arguments in unlicensed raw milk case,” Bangor Daily News, 5/13/2014. http://bangordailynews.com/2014/05/13/news/state/farmer-brown-goes-to-court-justices-hear-oral-arguments-in-unlicensed-raw-milk-case/?ref=BusinessBox [5]

[9] “Fresh, Unprocessed (Raw) Whole Milk: Safety, Health and Economic Issues | A Campaign for Real Milk,” http://www.realmilk.com/safety/fresh-unprocessed-raw-whole-milk/ [9]

 

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