When you go to buy a car or insurance, the sales people nearly instantaneously print out all the documentation you need. All you have to do is sign on the bottom line. No need to bother with all the fine print.
Well, the U.S. Department of Justice has kind of done the same thing in its prosecution of Pennsylvania dairy farmer Dan Allgyer, on behalf of the U.S. Food and Drug Administration. The FDA announced last April that it planned to seek the permanent injunction, as the outcome of its more than year-long “undercover” investigation of a Maryland food club.
In this instant-injunction package, there’s the cover page with the authoritative Department of Justice emblem (shown here, unfortunately screwing up the splashy cover by misspelling Allgyer’s name); the government’s formal motion for summary judgment, including the list of ten lawyers and big-wig bureaucrats from the DofJ and the FDA presumably involved in this high-priority case; the 19-page memorandum in support of the government’s motion; a six-page statement of “undisputed facts”; and then the “order of permanent injunction”. All the U.S. District Court judge on the case, Lawrence Stengler, needs to do, is sign and date the “order”…and, presto, Allgyer is forever prohibited from sending milk to members of Grassfed on the Hill in Maryland…and essentially is out of business.
Actually, he doesn’t just get to be put out of business. The proposed injunction provides for the added privilege of having his farm inspected whenever FDA agents are bored or just have the urge, AND he gets to pay big time for the privilege (at rates of $87.57 or $104.96 per hour, plus 51 cents a mile for their travel, plus the regular government “per diem” for meals and hotels). One inspection that lasts a day or two, and involves two or three agents, who, of course, have to write up a detailed report afterwards, could cost $10,000. Maybe they decide to do it once a year, maybe once a month, maybe once a week. Whatever their pleasure.
At the end of five years, Allgyer can tell the court he’s been a good boy, and appeal to have the injunction lifted, and maybe it will be and maybe it won’t. If not, the inspection arrangement continues.
The government lawyers argue that, based on the “undisputed facts” of the case–that Allgyer was distributing raw milk to the Grassfed on the Hill food club in Maryland–the judge should issue the permanent injunction.
The most interesting part of the whole neatly wrapped package is the argument in the memorandum in support of the government’s motion, that members of a private association are engaged in commerce and are subject to the interstate ban on raw milk. Neither the federal agencies nor their regulations “recognize an exception to the prohibited conduct based on the nature of the contractual arrangement between the distributor and consumer of unpasteurized milk or between so-called ‘private’ consumers and the general public. In broad and unequivocal terms (the prohibition on interstate raw milk shipments) bans the interstate delivery, sale, or distribution of pasteurized milk in final package form for direct human consumption.”
In a footnote, the government’s brief observes: “Although no federal court has yet addressed whether private membership association or cow-share arrangements violate federal law, a few state courts have addressed these issues in the context of state laws banning intrastate sales of unpasteurized milk.” As its only example, the footnote cites the Wisconsin decision last August (and introduces it as an exhibit) that concluded in part that a herdshare arrangement there was “purposely designed to avoid cash sales of dairy products in an attempt to circumvent” state law.
Interestingly, the government’s brief neglects to mention the 2006 Ohio case that sanctioned herdshare arrangments. Presumably, the federal lawyers knew about the case, because they referred to “a few state courts” that have addressed the issue. Strange oversight, that the Ohio case isn’t mentioned.
And because “performance of these agreements would violate federal law…the contracts are unenforceable…” concludes the government brief.
There is another oversight in the government’s “statement of undisputed facts” in the case. It reports that “over the course of the investigation, 12 samples were sent to an independent laboratory for analysis. All of the samples were confirmed to be unpasteurized milk.”
What the “statement of undisputed facts” neglects to mention is that the independent laboratory checked for the presence of four major pathogens–listeria monocytogenes, E.coli O157:H7, salmonella, and campylobacter–and everything came out negative. I know because I obtained the lab tests via a Freedom of Information Act request.
As an aside, the lab tests also show some seemingly high results for coliforms…from a low of 38 to “greater than” 160,000. The coliform counts are way above the legal limits specified in some states; for example, California requires raw milk to be at less than 10 coliforms per milliliter. Coliforms are harmless bacteria, and the counts are thought to be reflective of overall sanitation, and milk quality. I am told by food club members who drink the milk that the Allgyer milk tastes excellent and usually lasts up to a couple of weeks.
The fact that no pathogens were found over an extended period of testing was no doubt a big disappointment to the FDA. Definitely not worth alerting the judge to, from the FDA’s viewpoint.
Allgyer now needs to try to convince the judge not to sign on the dotted line. Like many Amish who face legal challenges, he is representing himself…up against the full judicial firepower of the United States government.
Wisconsin dairy farmer Vernon Hershberger reports he was just served with the summons to appear in court January 4, following the reports yesterday of the criminal complaint. He will be answering to four misdemeanor charges of violating Wisconsin dairy and retailing laws.
Hershberger is the farmer who, a year-and-a-half ago, cut the tape placed on his farm’s coolers by the Wisconsin Department of Agriculture, Trade and Consumer Protection, and returned to serving his 150 or so food club members.
In the meantime, he is seeking to gain the support of his county’s sheriff. He has offered to send the sheriff to a national convention of up to 200 county sheriffs being in Las Vegas next month. He says he has already raised the funds necessary to send the sheriff, Chip Meister, to the convention, and is now trying to convince him to attend.
He has put together a petition, which can be easily filled out and returned to Hershberger. In addition, or alternatively, Hershberger is encouraging supporters to call the sheriff and encourage him to attend the conference, and ensure that Hershberger’s rights are respected during any criminal proceedings. Here is what Hershberger suggests: “Call or email Sauk County Sherriff Chip Meister at firstname.lastname@example.org, or 608-355-3208. Please be very courteous and respectful in your message or speech. Just let him know that you are supporting him fully if he stands up against the State to protect the Hershberger Family. I will stress it again, be courteous and respectful, he is our family’s friend and we want to keep it that way!”