Dan Brown of Blue Hill, MaineMaine’s food sovereignty movement took a hit when a state judge ruled earlier this week that farmer Dan Brown must have a license to sell raw milk, despite his town’s ordinance exempting local farmers from state food regulations. 

The judge was ruling in response to requests from both the prosecution and the defense last June for summary judgment–a ruling before the case might come to trial, based on acceptance by both sides of the basic facts of the case. 

The logic behind the decision of Judge Ann Murray of the Maine Superior Court had supporters of Brown scratching their heads. Murray states in her decision that “the Court does not necessarily agree that the Blue Hill ordinance cited by Brown authorizes him to sell milk without a license by its express terms…Nothing in the Blue Hill ordinance clearly states that the town intended to include milk within the definition of ‘local food,’ and considering the ordinance in the context of Title 22 [state law that exempts farm stands and farmers markets from having to be licensed as food establishments, except for sale of dairy and meat products], one could easily conclude that it was not intended to exempt dairy products from licensure.”


The head scratching has to do with the Blue Hill ordinance, which couldn’t be any clearer about its intent: “Producers or processors of local foods in the Town of Blue Hill are exempt from licensure and inspection provided that the transaction is only between the producer or processor and a patron when the food is sold for home consumption. This includes any producer or processor who sells his or her products at farmers’ markets or roadside stands…” 


Since Dan Brown’s farm stand selling raw milk is in Blue Hill, he would seem to qualify.


If the town of Blue Hill had had the foresight to anticipate such legalistic wrangling, it’s unlikely the judge would have been persuaded in any event.  She notes that “the [state’s] legislative intent that milk products be subject to stricter regulation than other products…support the State’s contention that Blue Hill may not exempt individuals selling milk from the statutory licensure requirement.” 


The judge also declined to bend on Brown’s argument that the Blue Hill ordinance was legal under a liberal home rule provision in Maine law. “In light of the clear language of the statute and the legislative intent manifested through a complete reading of the statutory scheme, the Court declines to permit Brown to take shelter under the Home Rule. It is axiomatic that a municipality may only add to the requirements of the statute, it may not take away from those requirements unless permitted to do so.” 


Seems another case of…Heads, I win, tales, you lose. 


Brown’s lawyer, Gary Cox of the Farm-to-Consumer Legal Defense Fund, said it’s uncertain if the farmer will appeal. 


Blue Hill is one of nine Maine coastal towns that passed similar ordinances allowing unregulated sales of food direct from farms to consumers over the past two years. The movement has had wide popular appeal in the state and the ordinances have been used as models in an unknown number of towns and cities around the country, as far as Santa Cruz, CA. It’s uncertain what effect this ruling will have on those ordinances–whether it will prompt other agriculture and public health departments to go after them as well.  


Probably part of the answer hinges on what the U.S. Food and Drug Administration decides. Maine agriculture officials stated a number of times during their campaign against unlicensed raw milk sales that they were driven to go after Dan Brown because of fears the FDA might take action prohibiting intrastate sales of raw milk–trying to convince farmers that the devil you know is better than the devil you don’t know. 


Maine had, for many years, allowed small farms like Brown’s two-cow dairy to be exempt from the state’s permitting law, under the rationale that they weren’t advertising and were selling small amounts of milk within their communities and shouldn’t be hit with the costs associated with obtaining a permit. These costs can include construction of separate milking and storage facilities that are not proportional to the revenues the farmers may be realizing. But beginning in 2009, the state inexplicably changed, and notified all milk producers they had to be licensed. The state hadn’t had any illnesses from raw milk for at least the previous five years, and likely much longer.