I know a lot of people here don’t much care for Food Safety News, feeling that it is biased in many respects, particularly against raw dairy, but I’ve just had an uplifting experience with the publication, and its publisher, Bill Marler.

He encouraged me recently to write about the uneven food safety enforcement activities of the U.S. Food and Drug Administration between large and smaller food producers, in particular, how the big boys are treated with kid gloves and the smaller producers hit over the head. I decided to take him up on his idea, and focused on the grand jury investigation currently under way in Michigan against Richard Hebron, a Michigan farmer, and David Hochstetler, an Indiana raw dairy farmer.

My article describes the current grand jury investigation–in particular, the documents being sought by the grand jury, the potentially serious penalties facing the farmers, and the testy communication between parties in the case. I also provide an account of the circumstances that led up to the grand jury proceedings, much of which I’ve written about on this blog in recent years. The events include Richard Hebron’s encounter with Michigan authorities in 2006, the FDA’s targeting of Hebron and Hochstetler as revealed in emails in 2009, the association of Hochstetler’s dairy with a campylobacter outbreak in the Midwest in 2010, and negotiations between the FDA and Hochstetler following the outbreak.

I decided it was important to write the article for FSN because many of its readers are government regulators,maybe even some high-ranking decision makers, who may not be fully aware of the aggressive campaign against small producers of nutrient-dense food, especially in the raw dairy arena. I have to believe that many of them are fair-minded decent individuals whose sense of fair play should rebel against what’s happening to Hebron and Hochstetler, among others, right now. (Then again, I may well be naive, and they mostly know, and accept, the current scorched-earth policy against small raw dairy producers.)

I also think it’s important to try to air the different perceptions of the legal challenges affecting small food producers. As I’ve said before, there is a dearth of legal precedent affecting food rights. At the same time, there is impatience with the ability of lawyers, most notably the Farm-to-Consumer Legal Defense Fund, to gain as much legal traction in this arena as people would like.

On that score, there is a reference in my FSN article to negotiations that occurred between the FDA, and the FTCLDF, representing Hochstetler, early last year–in the wake of an outbreak of 25 campylobacter illnesses attributed by public health authorities to his dairy. It was an episode I had some knowledge about, but not enough to feel comfortable writing about, partly because I didn’t feel I understood the full story, and partly because I didn’t want to possibly upset a sensitive legal situation that hadn’t concluded.

The disclosure about the grand jury investigation changed all that, essentially confirming that any negotiating was over, and that the FDA had decided to pursue aggressive legal action against the two farmers. When I spoke with Hochstetler on Monday, he clarified the situation, from his perspective, and you can see from the FSN article that he was close to acceding to FDA demands that he abandon the many hundreds of food club members he serves, and confining his milk distribution to Indiana…and that he was being encouraged to do so by the FTCLDF.

Why did he finally decide against an agreement with the FDA? He says it was because the FDA wouldn’t agree to a complete amnesty from prosecution over possible past transgressions. He also suggests he felt a contractual obligation to his food club members in Illinois and Michigan.  

That last point may be key. According to Aajonus Vonderplanitz, the head of Right to Choose Healthy Food, which oversees Hochstetler’s food clubs, there was more than a sense of contractual obligation. He says that at the time of the negotiation, he let Hochstetler know he couldn’t just walk away from his food club members. “I told him that since he was under contract, that if he stopped producing milk from our cows, RTCHF would collect the cows and board them elsewhere until the contract ended,” says Vonderplanitz. So Hochstetler walked away from the FDA, instead, to fulfill his contractual obligations, Vonderplanitz suggests.

This is a very important point because part of the regulator legal argument against food club memberships and lease contracts, as well as herdshares, is that they are sham agreements, designed to circumvent government restrictions on raw dairy. Judges have sided with this view. The fact that Vonderplanitz was prepared to take legal action to enforce a leasing arrangement potentially adds important weight to the legitimacy of such arrangements.  

One other thing: The Hochstetler and Hebron situation is a vivid illustration of what the Raw Milk Freedom Riders are all about. The group is seeking to ease or eliminate the federal ban on interstate milk shipments, especially those related to private contractual arrangements of the sort Hochstetler and Hebron are engaged in. And another reason to attend its second event in Chicago December 8. That is the same day, by the way, when Hochstetler and Hebron may well be appearing before a federal grand jury in Detroit.

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I’d like to make reference to the complaint lodged by a Maine Congresswoman to the FDA, which Deborah Evans linked to following my previous post. In the letter. Rep. Chellie Pingree takes the FDA to task over its raids on raw milk dairies and its “overly zealous enforcement” of the ban on insterstate sale of raw milk. She complains as well about the use of “scare resources” on the FDA raids and undercover activities. It’s the first time I’m aware of that a member of the U.S. Congress has specifically complained to the FDA about its war on raw dairy.

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Talk about adding insult to injury. There’s news from the Canadian Constitution Foundation that Ontario Dairy Farmer Michael Schmidt was assessed a “victim surcharge” of $1,945 on top of his original fine of $9,150 for violating Canada’s dairy laws. That’s got to hurt, especially when 135 people had written or provided statements to the effect that Schmidt’s raw milk helped them, and no “victims” ever came forward.