Elizabeth Rich, who will be defense lawyer for Vernon HershbergerThe principle of private food should get a test in front of a jury of ordinary citizens when raw dairy farmer Vernon Hershbeger goes on trial in Wisconsin on  Jan. 7. 

I should say the principle should get a test, because initial indications are that the state will work like the dickens to sidestep that issue in favor of a ton of fear mongering designed to scare the jury that raw milk is too dangerous to distribute publicly, privately, or any which way, and thus seek to justify both the state’s ban on raw milk sales and its relentless prosecution of Hershberger, a farmer who provides raw milk and other food to more than 100 members of a private food club around his town of Loganville. 

The court has scheduled five days for the proceedings. The Wisconsin Department of Agriculture, Trade, and Consumer Protection has already presented the defense with a list of 30 witnesses it plans to call in the trial, including the state veterinarian and a number of public health experts. 

That list of witnesses, many with no direct knowledge of Hershberger’s food club or the issue of food rights, suggests strongly that the state will be seeking to turn the trial into a case against raw milk, and argue that raw milk distribution can’t be allowed by anyone, including Hershberger. 

But Hershberger has no doubt given pause to the state by engaging an experienced Wisconsin lawyer, Elizabeth Rich, through the Farm-to-Consumer Legal Defense Fund (of which she is vice president). The state would much rather have faced off against just Hershberger as he went through the proceedings thus far, representing himself, despite the fits he gave them in successfully defying their efforts to claim he had violated his bail terms and in forcing the videotaping of all proceedings. 

Hershberger has been charged with operating a retail food establishment without a license, operating a dairy farm as a milk producer without a license and violating a holding order issued by  DATCP. The holding order prohibited anyone from removing food products from coolers that had been taped in Hershberger’s farm store. He pronounced himself back in business serving his food club back in early 2010, following a DATCP raid on his farm.  If convicted, he could be sent to jail for a year or more.    

The Hershberger case has opened up serious divisions within the Wisconsin business and legal communities. To get a taste, take a look at the video of Wisconsin businessman Brendan Connelly speaking in Virginia earlier this year to a food group. It turns out Connelly is not only a member of Hershberger’s food club, but of the Wisconsin Free Masons.

Connelly doesn’t like what the state is doing to his food club, by possibly endangering his supply of nutrient-dense food. In the talk, he points out that one of the Wisconsin prosecutors, Phillip Ferris of the state’s Department of Justice, is also a Free Mason, and thus a “brother”. Note Connelly’s remarks beginning at about the seven-minute mark, where he states, “A brother in my mason lodge is one of the prosecuting attorneys…I called him.” Connelly says he has been trying to contact the Wisconsin attorney general about the craziness of the Hershberger case as well. A principle of Masonry, he states, “is to be a good guy, honest, ethical. How this jibes with that, I just want them to answer this. I do not know.” 

The odds against Hershberger are long, even with the advantage of the first jury trial in a raw milk-related food rights case, and the divisions in the Wisconsin ruling class. The defense has already been prohibited by the judge from mentioning jury nullification, which allows the jury to refuse to back laws it regards as unjust. And the judge can be counted on not to restrict fear mongering by the prosecution. Because the prosecution is coming in all guns blazing, this will be an expensive case to defend, requiring all the financial support possible to the Farm-to-Consumer Legal Defense Fund to provide a full defense.


One of the last places I would have expected to see a regurgitation of government-based fear mongering over raw milk was Mother Jones. 

The magazine positions itself as a purveyor of “smart, fearless journalism… journalism not funded by or beholden to corporations. ..you can count on us to take no prisoners, cleave to no dogma, and tell it like it is.” 

But its foray into the world of raw milk (“Got E-Coli?  Raw Milk May Taste Great, But Pasteurization Was Invented for a Reason”) in the September-October issue comes off as just the opposite. It might as well have been crafted by the U.S. Centers for Disease Control–it even uses one of its poster moms against raw milk, Mary McGonigle-Martin, whose six-year-old story is featured on the CDC anti-raw-milk web site.  

Actually, the Mother Jones article is more cleverly constructed than anything the CDC has done, because it is more subtly suggestive in its anti-raw-milk language than CDC (or FDA), which just hit you over the head with their views. If I was going to stick a label on it, I’d call the piece disingenuous–the writer, Kiera Butler, certainly knows more about the deep rights and political implications of this subject than she lets on in the article. I can’t link to the article, since it isn’t online, but here is a taste of some of its many low points. 

* It trivializes the decision to consume raw milk. For most people, the decision to serve to their families raw milk, and other nutrient-dense foods, comes after much reading and consideration.  The Mother Jones  author presents herself as someone who has been drinking raw milk for a year, and suddenly gets religion. 

“But I’d also heard it could make you sick, so after catching a news program about an E. coli outbreak in California, I decided to do some digging. What I learned was not terribly appetizing: Milk that hasn’t undergone pasteurization-a heating process that kills pathogens-can harbor bacteria such
as Campylobacter, listeria, and E. coli-all of which can cause severe illness and even death. That’s why selling raw milk is illegal in 18 states.”

Sorry, but as they say in Texas, that dog won’t hunt. No one who has been drinking raw milk for a year is so naïve about the food safety aspects as to decide from a news program to investigate. It gets worse from there.

* It trivializes the European research on raw milk. Its reporting about the PARSIFAL and the GABRIELA studies indicating that raw milk helps reduce allergies and asthma, is off base when it says that “the existing studies hinge on surveys of farm families, whose exposure to a diverse range of bacteria and allergens makes the cause of the benefit tricky to pinpoint.” 

Those weren’t small-scale studies, as suggested, but large-scale studies. One was of 8,000 children and the other nearly 15,000. The studies screened for a number of “farm” factors (like dirt, animals, etc.), so there was little doubt it was the milk making the difference. 
* It trivializes the people who drink raw milk by alluding to the “near-religious fervor” with which they defend raw milk.  In other words, they are a bunch of nut cases. Lots of people I know don’t defend it that way. They drink it because they feel it is healthier than pasteurized milk. They are reasonable, rational people concerned about their health, and about the dangers of factory-produced food. 
* It trivializes the food rights issue by failing to stand up for our rights to make our own choices, by noting  very positively that many states have banned raw milk, as if others should do the same.  Food club managers are being thrown in jail and dairy farmers and cheese makers are having their livelihoods ruined over this issue, and all Mother Jones can suggest is that more states should ban raw milk?

I’m a long-time admirer of Mother Jones, and its willingness to carry out the noble mission it ascribes to itself, which is why I made the effort to critique the raw milk article. If it had appeared in a metropolitan daily, or a major consumer magazine, I wouldn’t have bothered, since it would have been predictable.  Unfortunately, this article  is essentially a piece of government and Big Ag propaganda, and as such is a sad exception to the Mother Jones mission.