The two-year-old legal challenge to the ban on interstate shipments of raw milk ended with a whimper late last week when a federal judge dismissed the suit.

U.S. District Judge Mark Bennett threw out the suit filed by the Farm-to-Consumer Legal Defense Fund on behalf of eight consumer plaintiffs against the U.S. Food and Drug Administration. He did so, at the FDA’s request, without ruling on the substance of the challenge by the FTCLDF that the ban violated various plaintiff rights, including the right to freely travel between states and equal enforcement of the law.

He indicated that not only could he not rule on the substance of the case, but that he was obligated to dismiss it because there was no evidence any of the plaintiffs had actually suffered measurable injury because of FDA enforcement of the raw milk ban. “It is now clear that the plaintiffs have no ‘injury in fact’ and no ‘actual or imminent’ ‘threat of injury in fact,’ but only a ‘conjectural or hypothetical’ threat of injury.”

The case generated substantial, and substantive, back-and-forth with the FDA, including the now-famous FDA declaration that “There is no absolute right to consume or feed children any particular kind of food…”

The case also led to charges and counter charges about the FDA’s role in a raid by the Georgia Department of Agriculture on a Georgia food club managed by Eric Wagoner after he brought raw milk back from South Carolina for his members. After at first denying as “a bizarre allegation” Wagoner’s contention that the FDA was involved in the raid, the FDA was forced to admit that one of its agents was present during forced disposal of consumers’ milk following the raid, based on video showing the agent.

According to the judge, the Wagoner confrontation with the GDA and FDA came closest to demonstrating an injured party. Close, but no cigar, said the judge. “Wagoner’s allegations that the FDA, rather than the GDA, enforced the embargo and destruction of his raw milk do not generate reasonable inferences, because
they are conclusory and speculative.” In other words, the FTCLDF didn’t quite close the loop that the FDA had been instrumental in planning and/or ordering the raid.

The judge also bought into the FDA’s contention that it had no plans to enforce the ban onto consumers. “Moreover, the record is now clear that there is no ‘threat of injury in fact’…to establish standing for any of the plaintiffs, where the FDA has made abundantly clear that it has not and does not intend to enforce the regulations against any of the plaintiffs.” Trusting guy, that judge is, to accept the FDA’s word.

Yet the fact that the judge failed to rule on the legality of the ban would seem to leave the door open for a followup suit on behalf of a plaintiff that has been injured. There are a number of those, most recently Amish farmer Dan Allgyer, and all the food club members denied access to his milk as a result of the FDA’s action in seeking a permanent injunction against Allgyer that resulted in putting him out of business late last year.

The judge had, six months after the suit was filed, rejected an FDA request to dismiss the suit. In acceding now, the judge has given a victory to the FDA, and a loss to the Farm-to-Consumer Legal Defense Fund, and all who support food rights.