There was a lot of legal and public health talent on display at the hearing on the legal challenge by Ontario raw milk drinkers to get the long-standing ban on raw dairy declared unconstitutional.
Some half dozen lawyers argued for the entire past week on all aspects of the constitutional precedents and legalities. And the lawyers referred to lengthy depositions from about a dozen esteemed public health and farming experts of various persuasions, which all the lawyers except the one representing the raw milk drinkers used, as fodder to argue that raw milk remains so unsafe that Ontario can’t make the slightest change to its nearly total ban on raw milk sales and distribution.
The government and industry lawyers argued that so long as raw milk potentially makes even a few people sick, allowing its sale and distribution, even on a limited basis, constitutes an unacceptable risk. They smeared researchers who published convincing evidence a couple years back showing that raw milk has become safer over the last decade, suggesting darkly that the data had somehow been manipulated, or that the researchers were “lobbyists” (as if none of the public health experts have ever done well paid consulting for corporations, nonprofits, or government agencies). And, of course, their favorite argument: raw milk is most dangerous to children.
But missing from the nearly five days of court arguments was anything about how the dairy business is shifting, and how, without significant changes to how dairy is marketed and distributed, the dairy farms that underlie it face ever greater danger of failure. It would have been useful if the lawyers had featured an expert or two on the collapse of the American dairy monopoly personified by Dean Foods–provided testimony about how a company with a major industry monopoly managed to go bankrupt, as Dean did last year. The culprit, of course, was declining sales of dairy products as more people shift to plant-based products like almond, soy, and oat “milk.”
Even more provocative would have been evidence about how raw dairy sales have helped revitalize a small segment of American dairy farming. The lawyer for the Ontario plaintiffs pointed out that 43 American states now allow some sort of raw dairy distribution and sales—via herdshares, direct-from-farm sales, retail sales—but he only made the argument in the context of demonstrating that raw milk can be sold safely. The lawyer didn’t discuss how dairy farming in many areas has been revitalized, for the benefit of farm families, the communities they live in, and their many happy and healthier customers.
I’m not sure such a tale would have had much impact on the lawyers arguing against raw dairy, on behalf of Canada, Ontario, and the Dairy Farmers of Ontario marketing cartel (the Canadian equivalent of Dean Foods—a monopolistic enterprise that controls the pricing, distribution, and marketing of raw milk in Ontario). It’s on a similar downward sloping sales cycle as Dean Foods, though perhaps not as steep. And like Dean Foods, it won’t entertain changes to its model, like promoting sales of raw dairy products to help spark renewed interest in the dairy category as a health food.
While the lawyer for raw milk farms and consumers made a good pitch in positioning raw milk as an increasingly safe and nutritious product, he and his clients are up against a legal system that has consistently ruled against raw dairy farmer Michael Schmidt since he began fighting Canadian restrictions in 1994; lawyers for Canada and Ontario used some of his previous cases as precedent to argue against change. And while the case is based on the plaintiffs being entitled to raw milk as a matter of conscience, the matter of safety seemed to underlie everything else.
The proverbial elephant in the courtroom was the judge, Shaun O’Brien. She’s been a judge for less than two years. According to a writeup about her from her law school, she is in her mid-40s, with three children, and is a runner and yoga enthusiast. She’s also been active professionally in promoting human rights, including women’s rights issues.
During the course of the nearly five days of hearings, she didn’t ask any questions I heard about raw milk’s health benefits, risks, or other dietary issues raised by the lawyers and public health experts that a mom might have had. Given all the previous court decisions against Michael Schmidt over the last 24 years, it’s difficult to imagine a Canadian court suddenly ruling in his favor, but then again, he’s never been before a young woman judge who has shown an interest in human rights.
Thanks to Raoul Bedi for providing reports on the courtroom proceedings in his comments.