For those people expecting the upcoming trial of Vernon Hershberger to provide a jury verdict on the benefits of raw milk, there’s been a glitch. The judge in the case, Guy Reynolds, said yesterday at a pretrial hearing that the words “raw milk” can’t be uttered (uddered?) during the trial, scheduled to begin May 20 in Baraboo, WI. 

As a result, indicated the judge, there can be no mention of “adulterated” products, or of raw milk being inherently dangerous–favorite government code. 


Those hoping to see a jury vindicate raw milk as a healthy and nutritious product as part of Hershberger’s acquittal may be disappointed. But could it be that removing the contentious matter of raw milk will work to the dairy farmer’s benefit?. To my un-legal mind, it seems as if the judge’s decision will allow the trial to focus on the issues of licensing, permits, and government regulation of food, possibly addressing the larger question of whether farmers and consumers can engage in private contractual transactions, outside the public regulatory system. 


But then, the prosecution has worked hard to maneuver the upcoming trial so as to keep the trial narrowly focused on the question of whether Hershberger violated the law by failing to obtain dairy and retail food permits. And the judge seems to have helped the state by ruling yesterday that the state needn’t prove that Hershberger demonstrated criminal intent by failing to obtain permits. That should theoretically make it easier for the prosecution to convince a jury of Hershberger’s guilt. 


But jury behavior can be difficult to predict, in any case, and especially in highly dramatic ones like the Hershberger case. Besides the prosecution energy given over to severely limiting what can be discussed at the trial, an  indication of the trial’s likely contentiousness is the fact that the county has summoned about 130 prospective jurors to show up on the morning of May 20. That is more than the entire courtroom in Baraboo can hold. And the two sides have submitted witness lists totaling 75, also a very large number. 

In expectations that the trial will attract much interest, the county has also set aside at least two overflow rooms for video streaming of the proceedings. There is a Facebook page with specifics about the trial. 



Ed Shank, the owner of The Family Cow dairy in Pennsylvania, says he wasn’t surprised that government scientists used an outbreak of illnesses from his dairy as supposed proof that raw milk can’t be produced safely (via an article in the journal, Clinical Infectious Diseases, described in my previous post). 


A Family Cow food drop point in Pennsylvania--each customer's food is in a specific cooler, to make for easy pickup. (Photo by Joseph Heckman)It’s just further evidence of the regulators’ efforts to hold raw milk to different standards than other foods, he says. “When dozens of people actually die (not just get diarrhea) from cantaloupe in both 2011 and 2012, I guess it proves that it’s an absolute impossibility to grow and produce raw cantaloupe. It just cannot be done.  Might as well stop trying. This settles it. Those facilities also were all state inspected and passing at the time of the outbreaks. So yup…it is proven. All cantaloupe must be cooked from here on out.”


His request: “Just treat raw milk farmers like all other food producers is all I ask. No preferential treatment. No discrimination either. Our own government maliciously, boldly, intentionally, openly, unfairly discriminating against us is what creeps me out. Equally creepy is that so many of the academia consider this discrimination just and normal treatment of fellow Americans. So normal that they can’t even see the discrimination.”


He points out that he has already taken it upon himself to implement the study’s main recommendation (aside from making raw milk illegal) to conduct more testing. The study noted: “Although the [Family Cow] dairy had tested for Escherichia coli O157:H7 more frequently than required, testing for other pathogens, such as Campylobacter, was only performed biannually (per PDA requirements). State officials should consider additional regulations, such as monthly pathogen testing.” 


Shank says he has implemented a protocol whereby his dairy now holds all milk for a day and tests it in-house to confirm his milk meets the same standards as pasteurized milk. The advanced protocol didn’t come from the state, however.  “Our advice and problem solving team during that time was almost entirely the raw milk farmer community. The regulators did nothing to help or educate. They had no ideas. Mark McAfee on the other hand was positively a rock of support and practical solutions. He instantly pin-pointed the possibility of our water heater failing.  He gave us an action plan, and also mentored us in setting up our own on farm laboratory to do test and hold. We are forever grateful.”


In fact, “After being recipients of that kind of productive support, we feel inspired, even obligated to do the same for other raw milk farmers. Farmers come to us for advice since the recall. No one wants to go through what we went through to learn what we learned.”


The dairy’s openness and commitment to reducing risk has played well with its customers, to the extent that business has expanded 50 per cent since last year’s illness episode, according to Shank. “Our current monthly raw milk sales is 110,000 servings (16 servings per gallon). So if you extrapolate backwards (use 80,000 as the average month since we have been growing all along) in the last 15 months since the recall, The Family Cow safely supplied an estimated 1,200,000 servings of raw milk to our growing tribe of ecstatic East Coast moms.  Maybe those who say it cannot be done need to get their heads out of the sand and come for an interview!”



That effort by Illinois public health officials to do an end run around existing state law allowing raw milk sales, and clamp limits that would effectively end raw milk sales in the state, is being promoted by the U.S. Food and Drug Administration. 


The FDA works extremely hard to remain in the background of the various state campaigns to limit and ban raw milk, trying to project the image that such efforts are random efforts of individual states. But behind the scenes, it hands out grants and cooperative agreements to state public health and agriculture departments in desperate need of budget dollars.

The web site “Prairie Advocate” captured a piece of this FDA maneuvering via a lengthy report, including video segments, of a May 1 hearing by the Dairy Working Group organized by the Illinois Department of Public Health. It turns out that the FDA is not only funding the state’s Dairy Working Group, but it had a representative on hand at the hearing. Its rep was caught off guard, as you will appreciate from this report of an exchange by a questioner on the DWG with the FDA’s representative:

“The Food Safety Modernization Act was explained by Larry Trandel of the FDA. The Act is legislated by Congress and ‘directs FDA to further enhance their program to supply a safe food supply to our nation.’

“This was a point of contention with several of the DWG committee members, especially Kevin Reid, board member from Chicago. ‘I understand that the FDA has not approved the interstate sale of raw milk, which begs the question: Why are you here?’

“The question caught Trandel a bit off guard, but he responded that he was an ‘advisor under the Food Safety Committee for 2 or 3 years.’ Reid again questioned that since this was a ‘state’s rights issue; why are you advising the states?’

“Trandel stated that one of the reasons for his advisory role was that ‘Raw Milk is considered by FDA as potentially hazardous food,’ and recognized that most of the audience would object to that statement, since most were raw milk advocates and lived to tell the tale.

“Reid said that he sees a ‘conflict of interest’ with the FDA granting operating funds to the IDPH, when this is not a federal issue, as the role of the FDA is only in an ‘advisory’ role, confirmed previously by the FDA’s Trandel. ‘It is a federal issue, in that the FDA is very much concerned about public health,’ Trandel said. ‘Many times, our authority is involved with Interstate Commerce,’ Trandel replied. ‘We try to work with the states where possible.’

“ ‘But hasn’t the federal government taken themselves out of the raw milk game by banning the interstate commerce of raw milk?’ Reid asked. ‘Can you have it both ways?’

“ ‘We do not consider raw milk safe for human consumption. All raw milk is considered potentially adulterated,’ Trandel claimed.