The time has come for Canada to begin allowing the sale of raw milk to those ready to risk consuming it, and in the process put an end to “a peculiar form of Canadian exceptionalism,” a lawyer argued in an Ontario court Monday .
It was the first day of hearings into a case that could lead Canada to finally follow the lead of the rest of the world in legalizing raw milk sales. The lawyer, Jonathan Nehmentallah, represents the owners of two Ontario raw dairies, as well as a handful of their raw milk consumers, who filed suit in early 2018 seeking to legalize the sale of raw milk to Ontario residents after decades of a ban on all sales.
As part of his argument, Nehmentallah pointed out that 43 American states allow raw milk sales in some form (direct from farms, via herdshares, via retail), and if you include states that allow pet food sales, you get to 49 states. Moreover, raw milk is available in nearly all European Union states.
The Ontario case is a continuation of a legal saga that began 26 years ago with a raid on the raw dairy farm owned by Michael Schmidt, then a young and idealistic émigré from Germany committed to biodynamic farming methods. Likely it is the last chapter of the saga, one that has seen multiple raids on Schmidt’s dairy, several trials, lengthy court appeals, hunger strikes and even the jailing of Schmidt.
Three years ago, it appeared as if Schmidt was at a dead end legally, when he was threatened with extended jail time following legal setbacks in his long crusade to legalize raw milk sales in Ontario and elsewhere in Canada. But he was convinced by supporters and legal experts that he should pursue a new path to legalization—one that involved seeking an exemption to the raw milk ban based on newly published scientific evidence about raw milk’s benefits, and also on the legal argument that Canadians have the right under the Canadian Charter to consume raw milk as a matter of conscience if they believe it is essential to maintaining good health.
Ironically, Schmidt is not technically part of this latest legal push—it is being pursued by his wife, Elisa Vander Hout, along with the owner of a second Ontario dairy and a group of some 20 long-time raw milk drinkers. But in a Facebook post Monday, Schmidt stated: “There are 21 people who are challenging the law prohibiting the distribution of raw milk. They firmly believe that this law is discriminatory and goes against the Canadian Constitution and the Charter of Rights and Freedoms. Please understand that this case is not only of the essence to milk-drinkers, but to anyone who wants to be free to make their own (informed) choices about what to eat, drink and inject into their own bodies.”
Further background about the court initiative is available at a GoFundMe page set up at the start of the case.
Despite the fact that much of the rest of the Western world now accepts raw milk, Canada isn’t likely to slide easily into a permissive raw milk era. Even before the trial got under way Monday, some 18,000 pages of expert testimony, research data, and other background, pro and con on raw milk, has been accumulated over the past nearly three years since the case was filed in Ontario Superior Court. A good deal of the initial arguments by lawyers Monday centered on the professional qualifications of witnesses who have submitted affidavits or given depositions in the case.
Government and dairy industry lawyers questioned the qualifications of three witnesses who gave depositions in favor of raw milk: Pete Kennedy, a lawyer for the Weston A. Price Foundation; Peggy Coleman, an expert in risk assessment; and Nadine Ijaz, a Canadian expert in alternative medicine regulation. At the same time, these lawyers played up the qualifications of two American witnesses who have provided testimony questioning raw milk’s safety: John Sheehan, who oversees dairy industry regulation for the U.S. Food and Drug Administration; and Michele Jay-Russell, a food safety expert at the University of California, Davis.
The judge in the case, Shaun O’Brien, indicated that the criticisms of the raw milk proponents registered with her, when she questioned the plaintiff lawyer to explain more fully than he seemed prepared to as to what especially qualified these individuals.
The judge didn’t react immediately to the opening arguments by the plaintiff lawyer Nehmentallah that “the newest scientific evidence” suggests three health benefits from raw milk: that it protects children from hay fever, asthma, and other auto-immune reactions; that it contains probiotic and prebiotics that help strengthen the microbiome; and that it provides a “protective effect on infants” for mothers who drink it.
The case can be viewed via live feed online each day this week, from 10am-4pm Eastern.
Tuesday, November 17, 2020: https://youtu.be/lGwVYdS_1Fs
Wednesday, November 18, 2020: https://youtu.be/jQiP2E0YUmQ
Thursday, November 19, 2020: https://youtu.be/pDxX4swkISA
Friday, November 20, 2020: https://youtu.be/4YXGKgi7weg
I am very proud that the RAW Milk Institute played a very important part of this effort. Two Peer reviewed and published evidence based studies based on RAWMI work were submitted in this trial. Michael deserves this win. All Canadians deserve this win. Peg Coleman and her Risk Analysts team did very important work as well.
Paramount in this effort was the submission of peer reviewed hard evidence. Prior to this case, there had been scarcely any legal battles that could access literature that could pass the peer review test. Now it exists.
It is time !!
Mark Mcafee: The Canadian judge has just asked a very important question today as to “What is the proper definition of De minimis risk” in relation to raw milk in Canada ? The farm lawyer has asked to delay his answer til after lunch . I hope that one of the raw milk scientists and researchers from your team can come up with a good answer. This is absolutely critical otherwise the judge will conclude that raw milk has MORE THAN a de minimis risk.
I think Mr. Nehmetallalh already answered this well by pointing out the relative risks of other foods: chicken, turkey, prepacked salad, oysters, Romain lettuce, etc. Anyone hearing this would think to themselves, “Good point.” Also, he followed up by pointing out that the DFO (Dairy Farmers of Ontario) were interveners but had done nothing to indicate whether they’d be prepared to regulate this if raw milk sales were legalized. I think that calls into question why they’re even there. In my view, they are ONLY concerned with maintaining their cartel and ensuring that quotas don’t disappear.
As a friend of Michael Schmidt, I am very interested to see how this plays out. I was able to watch only a small portion of Monday’s proceedings due to other commitments. However, I thought the argument was over the admissibility of the evidence due to the qualifications of the expert witnesses, not the credibility of the evidence per se. In any event, the judge will have seen the evidence, and once having read it, she can’t un-read it. So if it is truly credible, she may be more likely to admit it.
Good point, Karen. I’ve changed my wording to be more accurate.
Karen: I really hope you are right .
My first impression was wondering if this was a cross-examination of the farm’s star witnesses : Coleman, Kennedy and the brilliant Nadine Ijaz or a CHARACTER ASSASSINATION ? Here these scientists and lawyer are sharing the most outstanding and leading edge information on the health benefits and safety of raw milk , all the latest huge cohort studies, and the de minimis risks, and instead Nadine was being hammered on whether or not she thinks Michael Schmidt is a “national hero” or not ? Like that the clock has been run on trivialities for 1.5 days of court time costing the applicants $50 000 to $100 000 per day at a minimum. You would think after 30 years and all the evolutions of the science, that the government would find a more constructive approach to these issues for the mutual benefit and empowerment of all ? I am concerned that we have to rely only on a lone judge , who is a bureaucrat , and knows nothing about the science because our own government in Canada, its food scientists and legislators, have abdicated their role so drastically and for so long.
2. The government’s scientific experts have consistently failed to review the latest studies proferred by the farm’s star experts over the past 8 years. Do they live in a time warp ? This shows their arrogance . They don’t feel they have to do anything to change the status quo and feel no responsibility to lead. As if it rests on farmers to do their job of Food safety science and legislation all out of their own pocket.
The lawyer for the farm was struggling with describing Nadine’s outstanding credentials. There is an attempt to over-define her expertise and put it in a box so that her testimony is fully or partially excluded. I hope somebody can shoot him an email that it makes no difference and that Nadine must be given as much as breadth as possible to speak her truth. That once you are a food scientist and know how to read the studies and lab reports , you can interpet the data. But somebody like Nadine will know where to look outside of the box for causation and benefits that your standard scientist will not know about.
The other area of weakness of Lawyer Nehmentallah’s DAY 1 presentation was when the judge reminded him that the first step was to address the constitutional argument i.e that the current laws violate people’s religious, philosophical and cultural beliefs and convictions. She said that is STEP ONe before diving into the science, safety and health benefits. He struggled and only proferred Bryant’s affidavit that in the Essene Teachings it is said that one should strive to eat food as much as possible in its original state. And that being forced to drink pasteurized milk violates his culture, belief and conviction. I hope that Nehmentallah does better and more to draw on the hundreds of affidavits from the raw milk lay person drinkers . It is ironic that the judge i giving us an opportunity to speak from the heart about why we love RAW MILK before doing the head stuff . Supposedly that is the focus of this charter law invoked i.e your personal beliefs and values are violated even if not based on science.
Let us send light to Michael Schmidt, Elisa Van der Hout, Glencolton Farms , the coop and the other farm applicant. They need it. The truth is on their side. They have all the science, health benefits , facts and science to prove their case. But something else is going on here. There are some egos in the DFO selfishly blocking the way to the detriment of 15 million people . So Divine Grace is need to push through this block. Somebody needs to explain to them that all dairy farmers in Ontario would benefit if they produced a healthier product. Milk consumption overall is decreasing in Canada exactly for the reason that their product is a dinosaur a relic from 50 years and people have gone beyond their logic and understanding.
The opponents certainly came out blazing at Wednesday ^s hearing , not seeming to belive one shred of evevidence from he legalization side, yes we all know that dairy quota is really the sacred cow in the room , as fluid milk consumption continues to drop, minus a temporary bump from Covid 19.
The judge is going to have to get up the courage to depart from staid old definitions of who can be an expert witness. I really can’t imagine why Pete Kennedy’s political views should have the slightest bearing on whether or not he’s right about the US laws on raw milk, especially when the Crowns have brought no evidence to contradict him.
Especially when John Sheehan, the most political of all in his views on raw milk, gets the designation of expert witness.
I support you all the way, Michael, and look forward to hearing positive results!
I am walking example of raw milk safety. I brought up my granddaughter strictly on raw milk home made formula, after her mother was not able to nurse her. I am member of Weston A Price Foundation since the beginning and they are the most knowledgeable source on raw milk. Sally Fallon, the president of the foundation, dedicated her life work on benefits and safety of raw milk. It’s about knowledge and unfortunately we have been stripped of these life supporting information. Michael Schmidt is incredible farmer , leading in organic farming. I pray for him and his family for the positive outcome. My daughter in law sent me this message and I was so pleased that finally things are moving in Ontario for health and benefits of people specially children.
Best wishes to the raw milk farmers and drinkers in Canada – may your case prevail!