Denise Dixon of Morningland Dairy, outside Howell County Courthouse.For those seeking hints for how the judicial winds might be blowing on go-private approaches to distributing nutrient-dense food, a Missouri judge provided some strong ones yesterday. Unfortunately, they weren’t the hints a lot of people will want to hear.

The judicial insights were provided by Howell County judge David Dunlap in the Missouri Milk Board offensive against Morningland Dairy, a cheesemaker that had about $250,000 worth of raw milk cheese embargoed by the state last August. When the company resisted the state’s orders to destroy the cheese–its entire inventory–the state sued and earlier this year won its case after a two-day trial in January.

Before the trial even started, though, Morningland’s owners, Denise and Joseph Dixon, closed down Morningland Dairy LLC and established a private member-based association to distribute raw-milk cow and goat cheese from two out-of-state producers. When two Missouri Milk Board inspectors showed up at the farm and cheese plant in Mountain View in April, while the January decision was under appeal, to check on the embargoed cheese, Joseph Dixon told them they could only view the embargoed cheese in a refrigerated cooler, and that if they attempted to search the rest of the cheese plant and farm, he’d call the sheriff to have them arrested.

That encounter and the discovery that a member of the private association member was selling Morningland cheese from a Missouri retail store led the state to file contempt of court charges against the couple last month.

At one point in the nearly six-hour proceedings, Gary Cox, a lawyer for the Farm-to-Consumer Legal Defense Fund, told the judge his view that the Milk Board inspectors weren’t entitled to do an inspection of a private association’s facilities, and explained how the LLC had been turned into a private association.

“This sounds like word games to me,” the judge stated…This is befuddling to me. Your clients woke up one day and said we are going to change our name?”

Jessica Blome, a prosecuting attorney with the Missouri Attorney General, stated, “They are doing something with the cheese and they won’t let us inspect and it is all very suspicious. Maybe they are producing cheese or maybe not. You cannot form some other entity and expect us not to be able to inspect.”

Gary Cox responded: “I’m saying you can have a private association that is not subject to inspections based on freedom of association, freedom of speech…I’m prepared to cite the cases that support this.”

At that point, the judge began a rant. “None of these rights is unlimited,” he said. Cheese production at Morningland “would be illegal. The abstract right of association would not immunize you from regulation. I was not born yesterday.”

Gary Cox then cited a case out of Arizona in which the National Association for the Advancement of Colored People (NAACP) wanted to consult an attorney who wasn’t a member of the bar, and a court ruled that legal.

“But that lawyer could not come into court and argue the case,” Judge Dunlap said, his voice rising. “You can get any advice from any crackpot you want to. If you are going to bring them into a court of law, they have to have a license. It is a settled question. You have to have a license to appear in court and you have to have a license to produce and sell cheese. I’m not gong to sit and listen to some babble you have about some new interpretation of federal law. If that is your contention, I’m not going to waste this court’s time. This is something that would be absurd…I don’t have the patience for it.”

You had to feel badly for Gary Cox, standing in front of the black-robed judge, seemingly on the verge of being tossed out of court. Adding insult to injury, Cox was standing there in shorts, t-shirt, and sandals because U.S. Air had lost his luggage the previous day on the trip to St. Louis.

The judge didn’t toss Cox, but later in yesterday’s session, reiterated his contempt for the Morningland Dairy private association when Cox attempted to introduce a copy of its contract as evidence. This came when Cox questioned a manager at a retail food store, who joined the association and then sold Morningland Dairy cheese he purchased at the store. Cox said the retail sales were a violation of the private association’s rules, but the judge wasn’t sympathetic. “If the intent of the (contract) is to say we are doing this privately, the court doesn’t think so. The state is saying the same thing…I’ll let you put it (the contract) in as evidence…I’ll let you go down an obviously barren path to nowhere.”

As Jan Steinman noted following my previous post, freedom of association seems to be fine for FDA and corporate execs. But for a food-related organization? Not so fast.

Just to make matters even worse, an inspector with the Missouri Milk Board said that tests done on one piece of the outsourced Morningland Dairy cheese obtained at the local food store showed the presence of staphylococcus aureus. Missouri has no guidelines about what is an allowable quantity of this commonly occurring bacteria, but the inspector noted that the amount present slightly exceeded guidelines of the U.S. Food and Drug Administration.

The state in its contempt request sought the authority to search the Morningland Dairy facilities whenever it wants, as well as to gain access to all the private association’s records, including a list of all members. It looks like a pretty solid bet the state will get whatever it wants from a judge who doesn’t seem like he’s about to join a herdshare or food club any time soon.

As for the Dixons, the judge’s attitude seems to put the kabosh on their attempt to get back into business. They’ve already had to fire six workers who helped make cheese at the plant–a not-insignificant loss in a rural area desperate for jobs–and were losing money running the private association. None of that, including the fact that no one ever became ill from any Morningland Dairy cheese, seems to have any bearing. It seems to be all about carrying out the FDA’s agenda.

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This report from Brigitte Ruthman, a dairy farmer who runs a two-cow herdshare  (just recently up from one) in Massachusetts, on a legislative hearing today on a bill to explicitly legalize herdshares in the state:
“Gary Latta from the Northeast Dairy Foods (who mumbled quietly and never looked up to face the panel) and Brad Mitchell of the Massachusetts Farm Bureau Federation testified in opposition. A few snippets from Mr. Mitchell, who spoke on behalf of the membership in opposition to 3273-cowshare because, he said, it would allow milk production to go unregulated. ‘In very few instances are these individuals involved in the routine care of these animals,’ he said. ‘It is simply a ruse by which to bypass regulations.’
“The regulations these indivduals (me) are seeking to bypass, he said, are designed to do two things–protect public health and protect the market. ‘A single incident of illness from a product can erode consumer confidence in a product. This has been shown time and time again with issues with spinach, eggs etc.’
“Passage of this bill, he said, would put both public health and the market at risk. MFBF cannot support its passage and would encourage the committee to vote unfavorably on its passage.
“I testified that the federal government believes 3 percent of the population consumes fresh milk and that only 50-150 illnesses are documented annually- far less of a risk than the eggs I legally transport over state lines to a farmers market. I also offered that although my herdshare members are thrilled to have a relationship with their cow, not all are able to tangle with a 900-pound animal learning just now how to be milked by machine. A mistake and a swift hoof kick could land you in the hospital far quicker than the safe milk collected by machine.

“In the shadows sat the deputy commissioners of agriculture and their henchman, Michael Cahill, director of the Massachusetts Department of Agricultural Resources, silently watching.”

Like the Missouri judge, none of these representatives of government or industry seem to appreciate the benefits of making food available via private associations of consumers. What could be so threatening?