The U.S. Food and Drug Administration’s two-year undercover investigation of a Maryland food club has led a federal District Court judge to impose a permanent injunction against the Pennsylvania Amish farmer who supplied the club with raw milk.
Federal Judge Lawrence Stengel officially issued a permanent injunction last Friday. It prohibits the farmer, Dan Allgyer, from sending raw milk across state lines to supply the Grassfed on the Hill club. It specifically does not affect him making milk available in Pennsylvania, nor does it prohibit him from supplying other food to the Maryland club. But, of course, the club members most of all want their milk, and they are in Maryland, not Pennsylvania. Raw milk can’t be legally sold, or made available via a cowshare, in Maryland.
Judge Stengel gave no credence to the private contractual arrangement between Allgyer, Grassfed on the Hill food club, and a third organization, Right to Choose Healthy Food, which is run by Aajonus Vonderplanitz. At the time the injunction was requested, RTCHF had leased Allgyer’s cows, and the members of Grassfed on the Hill were members of RTCHF, having signed individual agreements and paid annual dues. Members picked up their milk and other food from members who volunteered their homes as drop points.
In his footnotes accompanying the decision, the judge mistakenly labeled the arrangement “a cow share” and stated, “The contract between Mr. Allgyer and persons entering into a cow share agreement is merely a subterfuge to create a transaction disguised as a sale of raw milk to consumers. The practical result of the arrangement is that consumers pay money to Mr. Allgyer and receive raw milk, which is transported across state lines and left at a ‘drop point.’ As such, despite any artful language, the agreement involves the transfer of raw milk for consideration, which constitutes a sale and is lawfully regulated by the FDA.”
It seems doubtful that the judge would approve of the milk moving from Pennsylvania to Maryland even if it was in their pudding or cereal. He suggested in a footnote that individuals who traveled to Allgyer’s farm to pick up their milk and bring it back to Maryland would be in violation of federal law. He said that “the purchase of raw milk by one who traveled between states to obtain it, or traveled between states before consuming it or sharing it with friends or family member, implicates ‘commerce between any State…” He noted that courts have interpreted the purpose behind the interstate commerce provision of federal Food, Drug and Cosmetics Act to be to “safeguard the consumer from the time the food is introduced into the channels of interstate commerce to the point that it is delivered to the ultimate consumer.”
Judge Stengel seemed to be saying that the FDA, which has said it won’t enforce the interstate prohibition on raw milk for individuals bringing it across state lines for their own use, would be derelict in its obligation to uphold the law. In other words, it should be going after individual consumers bringing raw milk across state lines for their own use, since that comprises interstate commerce.
To Allgyer’s argument that the FDA did not comply with the Privacy Act of 1974 when it investigated and inspected Rainbow Acre Farms twice in 2010, the judge said, “I disagree. The Privacy Act simply does not apply under these circumstances. The purpose of the Privacy Act is to protect privacy of individuals identified in computerized information systems maintained by federal agencies by enabling individuals to obtain their personal records and permitting the agency to retain information relevant to a specific and legal purpose.”
The main hope put forth by the judge for lifting of the order is, “If the FDCA (Food, Drug and Cosmetics Act) is amended or modified to allow the interstate sale of raw milk or raw milk products…” In other words, Rep. Ron Paul’s proposed legislation needs to pass, or the Farm-to-Consumer Legal Defense Fund’s legal challenge to the interstate ban on raw milk, in a separate federal court, needs to be upheld.
The only other good news for Allgyer was that the judge refused to grant the FDA its request for open-ended inspections of his farm, and to be able to charge Allgyer expensive hourly fees for the privilege. The judge cited the 2009 case involving Organic Pastures Dairy Co., in which the FDA requested similar wide-ranging oversight of his dairy, and was turned down.
“Like Organic Pastures Dairy Co., I find that the proposed injunction submitted by the government in this case is overly broad…Further, Mr. Allgyer is not prohibited, under state law, from selling raw milk in Pennsylvania, and his operations are permitted to continue in that vein.”
Judge Stengel indicated that Allgyer didn’t do himself any favors in not having a lawyer represent him. He said in the footnotes that Allgyer’s answer to the government’s original request “fails to specifically deny the allegations of the Complaint for Permanent Injunction. Because the defendant is unrepresented by counsel, I will not view all allegations in the Complaint as deemed admitted…However, defendant’s Answer and Motion in Opposition to the Government’s Motion for Summary Judgment corroborate many of the statements of fact innumerated in the Government’s Statement of Undisputed Facts.”
Appealing the case won’t delay the injunction from taking effect, a Washington lawyer who practices food-and-drug law told me. “Usually an injunction goes into effect as soon as it is issued unless the court issues a stay order. This is true even if a defendant appeals the injunction–he needs a stay order to delay the injunction form becoming effective.”
I wish Judge Stengel adn the FDA guys would read some of the discussion following my previous post about nutrient density and soil depletion and food strength. Guess that is fantasyland thinking.
No, I imagine there are a lot of high-fives and backslapping over at FDA and Justice over this victory. Carrying out that brave undercover operation on the private Maryland food club by the FDA, and then the hotshot lawyers at Justice outsmarting an Amish farmer. And Judge Stengel? I sense he has no recollection of what he learned in law school about freedom of association and contracts. In his view, the government could have dispensed with all the investigative shenanigans and just said two words– “interstate commerce”–and this George W. Bush appointee would click his heels. Shame, guys, shame.