When history records the events of the current war on raw milk, that compendium may well identify February 14, 2006, as the day the opening salvos were fired, on two small farms in Ohio.
For it was on that day, a special Valentine’s Day, that an inspector of the Ohio Department of Agriculture, Dennis Fravel, issued orders to Linda Fagan and Donna Betts, two farmers in Washington County, prohibiting them from using raw milk as pet food. Since all sales of raw milk to consumers are illegal in Ohio, getting it via pet food is one of the few ways for consumers to access raw milk, in addition to herdshares.
Within a few months, Ohio had broadened its campaign, going after other farmers, including Gary Oaks (in a violent Cincinnati parking lot confrontation) and Carol Schmiteyer-both for using herdshare arrangements to distribute raw milk. (Carol eventually won a landmark case endorsing her herdshare arrangement.)
Then, late in 2006, we saw Michigan’s sting operation against Richard Hebron and California’s temporary shutdown of Organic Pastures Dairy Co. By 2007, the crackdown had spread to New York and Pennsylvania, even as it was continuing in California.
The February 2006 ODA action in Ohio led to an obscure court suit filed in a county court by Gary Cox of Farm-to-Consumer Legal Defense Fund fame. There were a number of problems with the ODA’s orders to the two farmers, according to the suit–they had each been legally selling their pet food for more than four years prior to the order without incident, the ODA didn’t give them a reasonable way to challenge the order, and a national organization monitoring pet food ingredients had no prohibition against raw milk as pet food.
Yesterday, an Ohio judge issued a judgment rescinding the original ODA orders and demanded that the ODA pay the two farmers’ legal fees of nearly $20,000. In the process, the judge, Ed Lane of Common Pleas Court of Washington County, castigated the ODA for flagrant violations of the farmers’ rights as well as of Ohio law. Here is a sampling from his opinion:
–“The (ODA’s) actions in this matter clearly violate the guarantees of the equal protection clauses of the Constitutions of the State of Ohio and the United States of America.”
–“It is not illegal in the State of Ohio to use raw milk as an ingredient in a pet food product…”
–“The ODA’s interpretation (of an Ohio law) as prohibiting raw milk as an ingredient in a pet food is illegal rulemaking.”
–“The Plaintiffs have not been afforded a hearing on the validity of their labels because of the unconstitutional actions of the (ODA)…”
–On this last point, the judge even turned the ODA’s “protection” responsibilities against the agency: “Had (the farmers) not been law-abiding citizens and proceeded to manufacture and sell their pet food products containing the raw milk, the agency contends that in that event, the Plaintiffs would have been entitled to a hearing on the stop order. This policy clearly puts the consumer at risk and demonstrates a callous disregard for the safety of the pets of the consuming public. This policy is a violation of the duty and policy of this state to protect the citizens of this state.”
Here is how Gary Cox, the farmers’ lawyer, sees the case: “Once again, government was caught in illegal conduct and acting beyond its authority. The importance of this decision lies in the fact that two women were willing to confront and challenge the government in the protection of their rights to be free from overzealous government bureaucrats overstepping the bounds of their authority.”
This decision fits in neatly with the recent discussion here about whether it’s possible for raw-milk consumers and regulators to somehow negotiate compromises around raw milk–based on discussions currently going on in Michigan– that satisfy everyone’s concerns. I think what this case says is that, even if both parties are amenable to discussion, it’s difficult to arrive at an appropriate arrangement if the bureaucrats have already established in their minds that raw milk is a target for “special” consideration.