Lawyers for Maine farmer Dan Brown say a judge who issued an injunction last April barring him from selling raw milk completely overlooked that he would have had to spend $62,500 to comply with regulations to obtain a state permit for his one-cow dairy.
As a result, The injunction has put Mr. Browns farm out of business, according to a brief filed on behalf of Brown by the Farm-to-Consumer Legal Defense Fund to appeal the decision by Superior Court Judge Ann Murray. In addition, Brown was assessed $1,132 in fines and court costs.
That judicial error was one of a series of mistakes alleged by Browns lawyers in two briefs filed with an appeals court. Among the errors alleged:
* That Judge Murray refused to recognize the fact that Brown was selling his milk without a license based on advice he received from state dairy regulators. It was consistent with the fact that for 30 years prior to the judges decision, Maines Department of Agriculture had told small producers like Brown that they didnt need to obtain a milk producers license so long as they didnt advertise their raw milk and sold it only from the farm.
* As a result of the 30-year policy allowing small farms to sell milk without a license, the health consequences the state argued to justify Brown needing to obtain a license are without any basis. It defies credulity to think that the Department would have for over 30 years knowingly exposed the consuming public to what are now being described as serious public health consequences by not requiring farmers like Mr. Brown to obtain a milk distributors license.
* The judges reference to public health implications as a major reason for ruling against Brown were in error because the issue was never argued by the two sides. According to Browns appeal, the public health implications of the case were not even developed, as they were considered irrelevant by the State to begin with. Defendant did not engage in discovery on this issue, neither did the State, and thus there was an incomplete record before the trial court on the public health implications of selling raw dairy products.
In essence, the trial courts judgment in favor of the State was factually insufficient because it failed to present any factual findings that the consumption of raw milk and raw dairy products presents any risk of harm to the consuming public, let alone the unlicensed sale of milk presents a risk.
* The states argument that there are public interests of the State in requiring Brown to obtain a license hasnt been defined. The appeal argues that there was no evidence that any of the milk sold by Mr. Brown was improperly handled, collected, bottled or held in an unsafe or unsanitary manner. There was no evidence that any of the milk sold by Mr. Brown was contaminated by any bacteria, parasite or virus. There was no evidence that any of the milk sold by Mr. Brown made anybody sick or ill. If there were such evidence, the Department would have presented it, and its failure to do so is fatal to its argument.
To the contrary, the unrebutted evidence was that Mr. Brown and his family had consumed his milk for over 5 years and had never once become sick. The unrebutted evidence was also that for over 5 years, nobody who was a customer of Mr. Browns ever made any complaints that they became sick or ill from consuming Mr. Browns milk.
Consequently, the Departments whole .argument is akin to the parable of Chicken Little, a hypothetical fear of a hypothetical event that has yet to occur. That hypothetical fear is not enough to overcome the detriment to Mr. Brown, i.e., being put out business after relying on what the Department told him.
* The judge erred in suggesting that Brown could easily obtain a license by simply paying a nominal licensing fee. Moreover, the trial courts conclusion that the injury to Brown is minimal because he [could] obtain a license for a mere $25 was not supported by the facts. To the contrary, Mr. Brown originally estimated it would cost him $62,500 to comply with all of the requirements
The $62,500 was detailed this way: Mr. Brown would have to spend approximately $10,000 to comply with the milking barn requirements; approximately $3,500 to comply with the cowyard requirements; approximately $25,000 to comply with the milk house requirements; approximately $5,000 to install an additional toilet room; and an additional $19,000 to install and construct separate rooms for processing, packaging and cooling the milk.
* The accusation that Brown failed to comply with the states raw milk labeling requirements shouldnt have been allowed. In this case, Mr. Brown sold raw milk from his farm stand and always had a sign that stated the following: this milk is not pasteurized. The sign measured 8 1/2 by 11 and was hung at his farm stand. It was visible to all of his customers and clearly informed them that the milk they were purchasing was not pasteurized. As a result, each time anyone purchased raw milk from Mr. Brown they were put on notice of its contents, just as if their bottle or jug had a label on it. As a result, there was no need for Mr. Brown to place a label on each container of raw milk that he sold because he had substantially complied with the label requirement.
* Finally, there is the matter of the Food Sovereignty ordinance that Blue Hill had adopted, and which Brown was operating under at the time the state filed suit against him. Passed in 2011, it expressly allows local farms and food producers to sell food directly to consumers, outside of any state and federal regulations. According to the appeal, there is nothing in Maines regulatory system over dairy products or food establishments that expressly preempts local municipalities from regulating raw milk or other food. If there were such an express preemption, which there is not, the trial court and the State would have cited to it. The trial courts and States inability to cite to an express provision that preempts local regulation of dairy products or food establishments means that the Blue Hill ordinance is not preempted by State law. Thus, it was an error for the trial court to conclude that Blue Hills ordinance was preempted.
Blue Hills local ordinance also does not frustrate the purposes of agriculture or food. To the contrary, the Blue Hill ordinance fosters the Legislatures intent in regulating agriculture and supports its purposes. Specifically, the Blue Hill ordinance contributes to the states overall economy, it strengthens rural life and values, helps ensure the survival of the family farm, and enables local producers of the family farm to prosper, while producing an abundance of high quality food and fiber, all of which the Maine legislature has found to be specific purposes of agriculture in the State .Thus, the Blue Hill ordinance should have been upheld and not preempted. A court is prohibited from reading words into a statute when those words are not there.
The states response to the appeal focuses heavily on public health risks allegedly posed by Brown operating without a dairy license. Even if he relied on a government worker that may have erroneously advised him nothing in the law or the record supports the notion that (Brown) should be allowed to continue to create public health risks.
The frequent references to public health risks clearly scared a judge the first time around, to the extent she interpreted the Blue Hill Food Sovereignty law to not apply to dairy products, even though it makes no mention of them. The state figures the appeals court judges will react similarly.
New CDC study suggests raw milk does not cause foodborne illness. Food safety professor Ben Chapman of North Carolina State University agrees raw milk has a negative risk factor. David Gumpert says the CDCs 1.7% per year negative risk-factor for Minnesota raw milk is way off and that he believes Minnesota’s raw milk has a negative risk-factor below 0.5%.
David’s exact words on Don and Ben’s podcast #55(01:03:47 to 01:04:05) – Minnesota’s raw milk foodborne illness risk factor is way south of 17% per 10 years like the CDC Minnesota study purports because he’s met “a couple hundred” Minnesota raw milk consumers who have said they’ve never been sickened by raw milk. Ben seemed to disagree by saying(01:04:03) I assume you don’t know everyone that drinks raw milk. By making this statement he was in fact agreeing, you’d need to meet all 163,000 raw milk consumers in Minnesota if you wanted to find the one that got sick. These are negative risk-factors because the average non-raw milk drinking public has a 15% per year chance of acquiring a foodborne illness and raw milk’s numbers are way south of that. A negative risk-factor means raw milk is preventing foodborne illness not causing it. So why shouldn’t we feed it to your kids Don? Doesn’t this put an end to the raw milk debate once and for all?
Health officials in Minnesota warned Wednesday that based on a 10-year study. They estimated that more than 17% of the states residents who drank raw milk got sick during the 10-year study. http://www.latimes.com/science/sciencenow/la-sn-minnesota-raw-milk-20131211,0,1666103.story#axzz2tOoRRo3j
About 48 million people (That’s 15% or1 in 6 Americans) get sick, 128,000 are hospitalized, and 3,000 die each year from foodborne diseases, according new estimates from the Centers for Disease Control and Prevention. http://www.cdc.gov/media/pressrel/2010/r101215.html
Food Safety Talk 53: Raw Milk Hamsterdam – The gist of the show. We want to stop people from consuming healthy food but we can’t just tell them to stop because we don’t have the authority so we must convince authorities to put a stop to health-food consumption and they can’t do that if it is illegal so it must be legalized and them eliminated through regulation. http://foodsafetytalk.com/food-safety-talk/2014/1/food-safety-talk-53-raw-milk-hamsterdam
When food safety professors, Don Schaffner of Rutgers says that isn’t what I said he’s not really denying that that is in fact what he meant.
Mary, adults get stomach flu twice as often as children and raw milk loses it association with childhood illness when children go to daycare or school.
Mary, what makes you think Twinkies and Coca Cola are better than fresh milk?
The obvious question to me is, if Mr. Brown’s unlicensed operation is presenting a public health risk, why isn’t the State of Maine hard at work figuring out how to get this guy a dairy license? Why aren’t they talking about how to make the dairy-regs scaleable for a one-cow farm? Because anyone with an ounce of common sense knows it does not take a $25,000 facility to pour 4-7gallons of milk out of a bucket and into jars each day.
In any case, I will tell you first hand you do not need a $62,500 worth of improvements to safely handle milk from a “herd” this size. Assuming Mr. Brown already has a place to milk his cow, a plan for chilling his milk, means to clean jars, and a place to feed his cow, one-cow infrastruction can be creative and still very quality and safe. One cow can be milked in a garage or a shed. The manure from one cow can be gathered by hand each day. One cow can be staked to a pole to graze, or managed with about $100 worth of portable electric fence.
The State of Main needs to make sure Mr. Brown has received training on how to produce low-risk raw milk and then set testable benchmarks for him. For example, bacteria thresholds and regular surveillance testing. Cooling times and temperatures. Evidence that his cow is disease free. I would also recommend a written Grass-to-Glass operations plan to address all the aspects of his quality milk production, which hopefully Mr. Brown already has. And then they need to give him a license.
I would encourage his community and his customers to demand this of their State. The dairy regulators and food safety experts work for the people, and together we need to figure this out. We need innovation and common sense. Stop checking boxes and instead get out to the barn, engage brains, talk to the farmer, and look around at what is really going on at the one-cow farm.
RAWMI representatives could visit that farm and in a couple of hours give extremely constructive feedback on what, if any, safety improvements are needed. And I guarantee you, they would not cost $62,500. Raw milk safety is much more about mindset and information than facilities.
This one is close to my heart. This represents our situation in California as well.
… on Mister Marler’s website
… < http://www.foodsafetynews.com/2014/02/publishers-platform-raw-milk-a-risky-elixir/#.UwJWFm39wrU >
all the knee-jerk objections are coming off pretty thin – laughable that the best they can do is cite conditions in big cities, from over a century ago! One interesting mention is : Louis Pasteur said ‘the process ought not to be used for food’. That one’s worth tracking-down
Suggest civil dialogue and just keep on producing extremely high quality raw milk. Our raw milk food safety track record speaks so much louder than anything that can be verbally spoken.
….As the media hoax of the purported “Sandy Hook shooting” comes apart, it would not surprise me to find out that this professional opponent of the Campaign for REAL MILK, is a “crisis actress”. “The lie is halfway ’round the world, before the Truth gets its boots on”. her tale of woe now unraveling, : “the cover-up becomes the story”… I’d sure like to see the money-trail = who paid her, and to do what, precisely?
… no, I’m not saying the boy never really suffered all that trauma. I’m saying that it is less logical than ever, that his distress arose from him having consumed raw milk. Bear in mind that that was never proven. His case just happened to be perfect for hammering Organic Pastures Dairy, at a critical moment in the contest for public opinion. If we know one thing fer sure, it’s that Big.GaG is not the least bit concerned with veracity, let alone anyone’s health
Treating E. Coli Hemorrhagic Colitis
Inflammatory bowel diseases like ulcerative colitis and Crohns disease can also cause bloody diarrhea, but they are long-lasting diseases. E. coli colitis usually clears up on its own within about one week, said LoSavio.
Symptoms of E. coli hemorrhagic colitis usually begin about three days after the bacteria get into your digestive system. Symptoms can range from mild diarrhea and cramping to severe diarrhea, abdominal pain, bloody stools, nausea, and vomiting. Severe diarrhea can lead to dehydration and weakness, said LoSavio.
Symptoms usually last for 5 to 10 days, and most people get better by just taking it easy and drinking plenty of fluids. But serious cases do occur and HUS is a rare but dangerous complication. Symptoms of HUS are decreased urine output and dark-colored urine.
On day four, they did a sigmoidoscopy on Chris. I have a picture of his inflamed colon. He was diagnosed with colitis.
I’m surprised you’ve been in medicine for 30 years and don’t know about hemorrhagic colitis.
On Don and Ben’s podcast #55(01:04:03) Ben said, you’d need to meet all 163,000 raw milk consumers in Minnesota if you wanted to find one that would say they got sick from raw milk. This is a negative risk-factor because the average non-raw milk drinking public has a 15% per year chance of acquiring a foodborne illness while Minnesota’s raw milk drinkers only have a 1.7% per year chance. A negative risk-factor means raw milk is preventing foodborne illness not causing it.
Health officials in Minnesota said Wednesday that based on a 10-year study, they estimate that a little over 17% of the states residents who drank raw milk got sick during the 10-year study. http://www.latimes.com/science/sciencenow/la-sn-minnesota-raw-milk-20131211,0,1666103.story#axzz2tOoRRo3j
According to new estimates from the CDC, about 48 million people (That’s 15% or1 in 6 Americans) get sick, 128,000 are hospitalized, and 3,000 die each year from foodborne diseases. http://www.cdc.gov/media/pressrel/2010/r101215.html
“The two items pushed on our elderly for good health are Ensure and flu shots. My grandmother was healthy until she started drinking Ensure everyday. No wonder she started having bowel issues for the first time in her life. And for the flu shots, 4 years ago my Grandmother was diagnosed with Alzheimer’s.” Who: Mary McGonigle-…| when: Tue, 05/01/2007 – 23:2
Mary, raw milk prevents foodborne illness because it has a negative risk factor.
Minnesota’s raw milk drinkers only have a 1.7% per year(17% per 10 years) chance of getting sick from foodborne diseases. http://www.latimes.com/science/sciencenow/la-sn-minnesota-raw-milk-20131211,0,1666103.story#axzz2tOoRRo3j
According to the CDC, about 48 million people (That’s 15% or1 in 6 Americans) get sick each year from foodborne diseases. http://www.cdc.gov/media/pressrel/2010/r101215.html
“Well, children in the studies who received Lactobacillus had about a half a day (0.7 days to be exact) decrease in the duration of their diarrhea, and 1.6 fewer episodes of diarrhea after the second day of treatment.” http://pediatrics.about.com/cs/pediatricadvice/a/lactobacillus.htm
“PROBIOTIC PROPERTIES OF LACTOBACILLI STRAINS ISOLATED FROM RAW COW MILK IN THE WESTERN HIGHLANDS OF CAMEROON” http://bioaliment.ugal.ro/revista/9/paper%2092.pdf
It is tragic that Marlers team at Food Safety News does not prtomote and integrate the pioneering efforts of RAWMI after and before the Foundation Farms event. That is the real news here!!! Instead… the sick kids are paraded arround the internet as an example of how bad ALL RAW MILK IS!!!
Meanwhile the real story is that within 30 miles of Foundation Farms, two of the worlds best RAWMI LISTED producers thrive as examples to the world. This just shows how sick this entire paradigm is….how wrong minded the writers are at Food Safety News. Just have absolutely biased and ignorant they all are.
I am sorry Mary and Bill. I work to be kind, build bridges, share and professional with both of you, but this is unethical, immoral and wrong.
I ask you to balance your parading portrayal of Foundation Farms with a article about RAWMI and what it has done in Oregon that is good. Truly…we must all admit, Foundation Farms was the perfect storm of ignorance and neglect that was borderline if not crimal in its severity. I reviewed the official report on the outbreak. It was crazy horrible. If you would do everything the oposite of RAWMI RAMP…that was Foundation Farms plus some added extra effort to be dirty. And Food Safety News writes about it as some great apology to the world for all raw milk begging for the greatest excuse for filthy milk as the solution…pasteurization???!!
As has been noted, this is a plea to emotionally hijack anyone that is willing to read this junk! This is a missinformation WAR and pioneers will be hit with this kind of yellow journalism. Unfair….incomplete, not representative, unfactual, biased and all emotion. What a crock!!
Check this out from three years ago and also be sure to see the comment section (towards the bottom especially).
Mary had the absolute gall to accuse Deborah and me of “spending a ridiculous amount of time” on this subject. I guess it all depends which side of the subject you’re on, how you define ridiculous, and how many people actually find out how much time SHE has spent on this subject. To be sure, it’s likely more than three years.
You are correct, Dan Brown not really a raw milk issue–it’s a Food Sovereignty issue….about the right of local communities to control their food, outside state and federal regulations. The legal case against Brown is most fundamentally a challenge to the ten Maine communities (including his, in Blue Hill) that passed Food Sovereignty ordinances. Maine communities have organized actively to support local farmers–just search out “Food Sovereignty” on this blog, and you’ll find a lot about their efforts. They even got legislation passed to allow small farms like Brown’s to sell raw milk with less regulation than is required for permitted farmers, and the governor vetoed it last summer.
Mark, the Foundation Farms article is probably just the beginning. You see, RAWMI and dialog and education are all huge threats to the dairy industry. They want the 100-year war on raw milk to continue at a low boil. If reasonable people on both sides of this issue are exchanging ideas for how to work together to produce safe milk….well, that is a huge threat to Big Dairy….huge threat as in billions of dollars. Then, they just turn up the flame, as in ultra-high-temp pasteurization. They know there can’t be any kind of reasonable exchange of views when the focus is on recriminations. It is sabotage.
I totally agree… It is sabotage.
On the positive note, I caught a 50 kt tail wind to San Diego today. I spoke to 35 medical practitioners and guests for 2 hours and held a focus group all about our new creamery plans at OPDC. I left them all with raw milk and kefir samples. Got hugs from tons of moms that love what OPDC raw has done for their families and kids. Yes. Kids especially kids.
No matter what sabotage and what cheap shots are taken, No one can mess with that solid as a rock farmer to consumer trust and relationship. That one is earned by safety and time.
This a war of attrition ( fluid pasteurized milk decline ) and education ( knowledge of nutrition ) with a whole lot of consistent RAWMI RAMP work. Nothing can sabotage that.
Deborah, your comment here about the corruption of pasteurization went off into an argument with Mary McGonigle Martin. But I can tell you what the response would be to your query: “I would like to hear what Marler has to say when he is finally confronted with documented facts & evidence of successfully treated allergies, ADT, autism, digestive disorders & so on within children & adults.” It will be denial, not just by Marler, but pretty much the entire anti-raw-milk crowd. There is already serious research out of Europe indicating that raw milk helps relieve allergies and asthma, but the deniers have all kinds of excuses–supposed flaws in the research model, it wasn’t raw milk that conferred the benefits, the researchers wouldn’t recommend that children consume raw milk, and on and on. It will be the same as more research comes forth. Because their agenda isn’t about health and safety, it is about $$$, pure and simple.
Why is it that the there are two surrogates that seem to stand out more all others. They are Bill Marler and Mary. All others stay generally quiet and speak little.
Knowing politics it is hard to imagine a paycheck being sent to either of these surrogate anti raw milk fighters. I think it is just passionate altruism. If we stick to our vision and simple out educate them and provide a rock solid track record of safety excellence. The surrogates will starve from lack of food to prey upon. Stop feeding the surrogates.
Or is the idea some kind of 1984 thought-crime?
. . .
Has their abuela project worked?
It sounds lake no one wants to end the raw milk debate.
Can you tell us more about this, Mark? Do you have info/documents that you can share (announcements, reports, years, how much, which researchers got the money and which projects they worked on, etc?)
I thought I had my act 100% together, but I must admit that I can not provide the link and the evidence that I thought that I had. In 2008, when I testified in the Dean Florez raw milk hearings ( there were several of them ) in Sacramento during the SB 201 initiative, I made a big deal about FDA funding of Healthy America 2020 initiatives. This national Healthy America 2020 initiative funded state programs that had been specifically ear tagged with funds for decreasing the number of states that allow raw milk access. The anti-raw milk portion of this national initiative was amended after a huge public outcry. Now that you have asked me to come up with the actual WIFSS FDA anti- raw milk grant fund uses….I can not. It has been five years and the links that I followed to discover this information are now broken and missing.
To anyone offended including Dr. Michele Russell, before I make claims of anti-raw milk funding by the FDA…I will find and state my sources. I intend to be 100% beyond reproach in all that I say and do.
In the vacuum of not having the evidence…I must retract by contention and comment that WIFSS recieved FDA funds with the specific ear tag of decreasing the number of states that allow raw milk access. WIFFS was funded with millions of dollars of FDA grants for a broad range of uses. I just can not find the link data and connection that I cited in 2008. My apologies.
“International Association for Food Protection / July 31-August 3, 2011 / Milwaukee, WI / Linda Harris, Michele Jay-Russell, Xunde Li, Tyann Blessington and Lisa Benjamin attended the IAFP annual meeting. This year marked the 100th anniversary of the organizations founding in Milwaukee by dairy sanitarians (the original name was International Association of Dairy and Milk Inspectors). The 2011 annual meeting attracted over 2500 individuals from 46 countries, 44 states, and 6 Canadian provinces. A video of food safety professionals (including Linda Harris) offering toasts to the organization has been posted on the IAFP website. Papers authored by WIFSS staff and their students included the following (abstracts available online): …… “P3-96 Real Raw Milk Facts: An Innovative Evidence-based Food Safety WebsiteMICHELE T. JAY-RUSSELL, William D. Marler, Katherine Feldman, Michael Payne, Patti Waller and Ronald H. Schmidt, WIFSS, University of California-Davis, Davis, CA, USA” – http://dhs.wifss.ucdavis.edu/headcontent/newsletter/2011Aug_newsletter.php
The comment section is interesting, and there were a couple of good links posted by readers.