The Ominous Warnings in Morningland Case–Why Farmers Must Move from Defense to Offense; VT Group Plans “Butter Appreciation Day” to Challenge Ban on Raw Dairy Teaching

by David E. Gumpert
The Complete Patient

In baseball, it’s three strikes and you’re out. The raw dairy/food rights movement has had three cases come up for serious judicial consideration over the last three years, and it’s lost each one. And not just lost by a whisker, but lost resoundingly.

The cases are the Meadowsweet Dairy case in New York, the Michael Hartmann case in Minnesota, and most recently, the Morningland Dairy case in Missouri. Three judges, three different areas of the country, and three losses in which the judges issued opinions that were nearly disdainful of the farmers involved, and not only backed the regulators, but seemed to give them more power than what they started with.

In the Meadowsweet case, there wasn’t even an inference of pathogens or illness, yet the original judge indicated that farmers couldn’t even give milk away without the approval of the NY Department of Agriculture and Markets.  I’m not sure the Hartmann case deserves to be considered here, since it was pretty much a foregone conclusion which way the judge was going to rule, given that there were illnesses clearly associated with the farm’s milk, but I think it’s worth making the mention because a judge listened to arguments for five days, and couldn’t find a single positive thing to say about the plaintiff’s arguments.

At Morningland, no regulator had ever cited the cheese producer for sanitation problems, yet the judge called the place “unsanitary” because the owners sold 15 of their 65 cows last fall. The “inference” was that the owners were trying to reduce high somatic cell counts brought on by mastitis in some cows. The owners never got the chance to explain that they sold the cows, which were dry, to raise cash, desperately needed because the Missouri Milk Board, with the U.S. Food and Drug Administration’s backing, had forced a recall and were pushing for destruction of the entire $250,000 of inventory.

And now, smelling blood, the Missouri regulators are pushing for destruction of the Morningland inventory by next week, even though Missouri law and legal precedent allow for an automatic 30-day stay for imposition of sentence.

In a letter to Gary Cox of the Farm-to-Consumer Legal Defense Fund, assistant attorney general Jessica Blome stated that “requesting a new trial does not stay execution of the Court’s Final Order of Permanent Injunction and Judgment and Order, entered February 23, 2011. Accordingly, this letter serves to provide your client with seven days notice that the Missouri State Milk Board will assist your client in the destruction of ‘all of its cheese products condemned by the Missouri State Milk Board on August 26, 2010’…Pursuant to the court’s Final Order, three inspectors from the State Milk Board will arrive at Morningland Dairy of the Ozarks in Mountain Grove, Missouri, at 10:00 a.m. on Wednesday, March 9, 2011, continuing to Thursday, March 10, 2011, to supervise your client in the destruction of the condemned cheese. The State Milk Board has made arrangements with a local, sanitary landfill for the disposal of the cheese.”

The Morningland situation, in particular, has the sounds of a witch hunt, not unlike what occurred in Salem, Massachusetts, during the 1600s. The authorities are treating the cheese, which remains in storage, almost like it’s radioactive. As Doreen Hannes, a food rights activist and spokesperson for Morningland, puts it, “More and more, they’re treating our food as if it’s a controlled substance.”

But maybe the key question is this: What do farmers do to respond, given that not only the regulators, but the judges, are on the warpath?

Since most farmers and consumers aren’t about to engage in civil disobedience, I can see only one answer, and that is to develop food safety plans and be able to demonstrate nose-to-the grindstones in terms of safe food. Yes, I know safety isn’t the real issue in many of these cases involving raw dairy, but farmers need to be focused on it all the same.

In the one significant victory for a dairy farmer–that involving the case of Michael Schmidt in Canada–the fact that there hadn’t been any illnesses or hint of regulatory complaint about sanitation counted for a lot with the judge. Or, to put it another way, if there had been any suggestion of safety problems, it’s a not unreasonable conclusion that the decision would have been different.

I’m not saying that improved attention to safety will get the regulators off dairy farmers’ backs, but it will give farmers a powerful argument in the event they get into a situation like that of Morningland. Let’s not forget how the Morningland situation came about–from the multi-agency gun-toting raid last June 30 on Rawesome Food Club in Los Angeles. It’s clear now that the agencies put the $11,000 worth of food they seized under the microscope, quite literally. They came up empty, except for Morningland.

It’s reasonable to assume more raids and surprise inspections are in the offing. If there are no offending pathogens, there is less likely to be a problem. And improved attention to safety reduces the number of illnesses, which helps the overall regulatory climate.

I’ve advocated previously for some kind of association of raw dairy producers to take the lead on safety. I don’t know the exact form this association should take–there are all kinds of possibilities and they don’t all have to be threatening to farmers in terms of government involvement. But the time has definitely come to move off of defense and onto offense.

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Back to baseball…A Vermont food rights organization is stepping up to the plate on the state agriculture department’s intimidation effort to halt classes on making raw butter and cheese. If you’ll remember, Rural Vermont, a separate organization that promotes sustainable agriculture, two weeks ago suspended three classes on making raw dairy products in response to a threat by the state to legally challenge the classes because of a state law that prohibits farmers from selling raw milk to consumers who are planning to make other dairy products like butter and yogurt.

The Vermont Coalition for Food Sovereignty says it is holding “Butter Appreciation Day” next Tuesday from 9:30 – 11:00 am at the Statehouse (Room 10) in Montpelier.

“We will be making butter in a jar, and discussing the unintended consequences of some of the language in Act 62 with state legislators,” the organization says in a press release.

“VCFS believes every Vermonter should be able to grow, process, and serve their own food, sharing meals and know-how with family, friends and neighbors.” Sounds pretty radical. Given that the U.S. Supreme Court just yesterday sanctioned an organization’s right to stand outside military funerals and root for more soldiers being killed, it’s difficult to imagine that instructing people about making butter might be ruled illegal. But the way things are going in the food rights arena, anything is possible.

Read the Full article here: http://www.thecompletepatient.com/journal/2011/3/4/the-ominous-warnings-in-morningland-case-why-farmers-must-mo.html