The Farm-to-Consumer Legal Defense Fund is asking a federal judge to intervene and halt three separate efforts to enforce the ban on interstate raw milk shipments.
The organization has filed a motion for a preliminary injunction against the U.S. Food and Drug Administration. It made the filing with Judge Mark Bennett, who is presiding over the case the FTCLDF filed nearly two years ago, challenging the ban on interstate raw milk shipments on behalf of eight plaintiffs who obtain milk in states where it is allowed, and transport it back to states where it is banned.
The FTCLDF is asking Judge Bennett to intervene based largely on two cases that have received much attention–one in which the FDA is trying to obtain a permanent injunction on out-of-state raw milk shipments from the farm owned by Pennsylvania Amish farmer Dan Allgyer; the other involves a federal grand jury investigation of Richard Hebron, a Michigan farmer who is being investigated for bringing milk from Indiana to Michigan food club members. (The investigation by the same grand jury of Indiana farmer David Hochstetler has been at least temporarily halted.)
Then there is a third case, which hasn’t been previously disclosed. According to the FTCLDF’s brief, it involves “a consumer member of the Farm-to-Consumer Legal Defense Fund (“FTCLDF”) who resides in Northern Virginia (and) is using her home as a drop off location for raw milk that is being purchased in Pennsylvania from another Amish farmer (not Mr. Allgyer) who is being investigated by FDA.” The complaint indicates that both the Virginia consumer and a FTCLDF lawyer had conversations with an FDA investigator earlier in December to confirm that the investigation involves the interstate shipment of raw milk.
The request for a preliminary injunction rests on the possibility that the original FTCLDF case might be decided in favor of the plaintiffs.
The brief argues: “Clearly, if this Court decides that Plaintiffs’ arguments are correct, then all three of the FDA cases mentioned above would be inconsistent with this Court’s decision. If this Court decides that Plaintiffs’ arguments are correct, then none of the three individuals who are mentioned above could be prosecuted for engaging in the same conduct that the Plaintiffs themselves are engaged in.”
The FTCLDF brief suggests that the three could be unfairly penalized as a result. “To allow FDA to continue to conduct investigations, bring civil actions and possible criminal actions against citizens who are engaged in conduct that has yet to be declared illegal would be for FDA to usurp the jurisdiction of this Court to decide what is and what is not legal conduct. In effect, if FDA is not enjoined, innocent individuals could be fined, imprisoned or enjoined for engaging in activities that this Court finds are lawful.”
We should know within several weeks whether the judge is persuaded by the FTCLDF’s intriguing argument. The FDA has 15 days to answer the request, and then the judge should rule shortly after that.
Painful as it has been, the debate about the Raw Milk Institute (RAWMI) has overall been a positive exercise, in my view. Better to get a number of important matters on the table sooner rather than later.
The biggest issue seems to be how to reconcile food safety standards between private access of food directly from farmers and the public system involving retail sales or officially sanctioned/permitted farm-based sales. Somehow we need to preserve (or get back, in many cases) the right to buy food privately from farmers without government interference, and at the same time, reassure the public/legislators/regulators that we are serious about food safety.
As I indicated in my previous post, I thought Michael Schmidt put it very well in his recent interview on the Bovine, speaking about the private segment: “We have allowed a bureaucracy to get out of control and expect that we simply can remove ourselves from the system to evade the dictatorial powers, (which) does not work.”
I’m wondering ever more if the best approach isn’t voluntary standards for raw milk, which those in the public or private spheres will be free to adopt or not adopt. Those who adopt these standards can alert consumers, who will increasingly seek out those providing the necessary information about their products. This will also be reassuring the “bureaucracy” out there that producers are serious about safety.
RAWMI could have an important role, if it can figure out a way to develop standards so that producers and consumers truly have a say in what they are, and how they will be used. That comes back to process–what exact steps will RAWMI follow to ensure that everyone who wants gets a say? So far, RAWMI hasn’t gotten its arms around answering that question. It’s still early in the game, and there is still time for RAWMI to recover.