Mark McAfee in his comment on my previous post about the federal case against him advises would-be dairy farmers to set up small herdshares as an economically feasible way to make raw milk more widely available.
Just don’t try that tactic in New York.
In a blunt decision issued Thursday that no doubt has the tough guys at the New York Department of Agriculture and Markets doing high-fives, state judge John C. Egan Jr. sided completely with the agency in its long-running feud with Meadowsweet Dairy LLC, and owners Barb and Steve Smith (pictured above at their dairy, last January). The Smiths set up a limited liability company to serve the herdshare role for 120-plus shareholders in the Ithaca, NY, area, who wanted access to such unpasteurized dairy products as yogurt, butter, and cream, which are prohibited for dairies that obtain raw milk permits from the state. NY Ag & Markets didn’t take well to the idea of a small dairy operating outside its grasp, nor of setting a precedent that other dairies might look to.
The immediate issue was Meadowsweet’s request for a preliminary injunction to prohibit NY Ag & Markets from conducting seemingly arbitrary searches of the dairy and seizures of Meadowsweet’s products, and to allow the LLC’s members regular access to their products. At one point, NY Ag & Markets threatened to lock the couple up.
The judge essentially ruled against each argument offered by Meadowsweet’s lawyer, Gary Cox of the Farm-to-Consumer Legal Defense Fund:
–To the Meadowsweet argument that the state’s arbitrary seizures of raw dairy products threatened to put the dairy out of business, the judge stated: “…the Court finds the plaintiffs’ allegations that they ‘run the risk of’ losing product, being searched at any time and having their personal belongings seized at any tie, speculative. Furthermore, any financial injuries sustained as a result of the loss of product do not establish irreparable harm. Thus, the plaintiffs have failed to establish irreparable harm…” Guess he thinks they have a money tree in the back yard to keep replacing the thousands of dollars worth of product NY Ag & Markets doused with bleach.
–To the Meadowsweet argument that its limited liability company should be outside the regulation and arbitrary inspections of NY Ag and Markets, the judge stated: “The Commissioner is entitled to full access to Meadowsweet, and may also examine and open any package or container of any kind…” In other words, NY Ag & Markets can conduct searches whenever it wants, any time of day or night. Never mind the U.S. Constitution’s Fourth Amendment.
–To Meadowsweet’s argument that its shareholders aren’t purchasing dairy products, and thus aren’t “consumers,” the judge cited various dictionary definitions of the term “consumer” and concluded: “The Court further determines that the LLC members are ‘consumers’ of raw milk products based on the plain meaning of the word.” So much for Article 1, Section 10 of the U.S. Constitution that “no state shall…pass any…law impairing the obligation of contracts…” (This is the same clause that prohibits use of anything except gold and silver coin as money.)
In sum, the judge fell back on the tired old argument of protection: “Finally, the Court holds that a balancing of the equities weighs the State’s favor, based on the broad powers of the Department of Agriculture and Markets and the State’s interest in regulating the dairy industry for the safety of consumers.”
Barb and Steve Smith in an email to their shareholders today said, “It seems very possible that we will have to stop distributing raw milk and yogurt … and that our friendly inspectors will be watching soon.” The Farm-to-Consumer Legal Defense Fund is considering whether to appeal. Given the judge’s forceful decision, an appeal would seem to be more of a long shot than ever.
NY Ag & Markets is already licking its chops–in a press release posted Friday the agency indicated its inspectors are already organizing squads “dedicated to administering and enforcing the State’s food safety laws and regulations to protect the public health…” Yes, I’d say the Smiths can expect visitors.
Clearly, the whole herdshare approach has been called into question. While the concept has received backing in Ohio cases, a negative decision in a major population center and dairy state like New York is a big blow against raw milk.
I don’t know if I’m projecting too much here, but watching the parade of Clinton-era Establishment big shots being appointed by President-elect Barack Obaa doesn’t give me a lot of confidence that we’ll see a push for change coming from the top down, either. For now, the regulators are still calling the shots.