When agent Jim Roettger of the Minnesota Dept. of Agriculture was caught on video confiscating raw milk last December in suburban Minneapolis, he could be heard at one point telling a complaining consumer to bug out. “I don’t have to respond to your questions. You’re not part of this investigation.” In other words, we may be taking your milk, but it’s none of your business if we bring the wrath of the law down on your farmer supplier.
I get the same feeling reading through the U.S. Food and Drug Administration’s response to the FTCLDF federal suit challenging the agency’s prohibition on interstate sale and distribution of raw milk. I’ve gone through the FDA’s response several times during my travels since it came out a couple weeks back, trying to make sense of it beyond its legalese—after all, the FDA rarely reveals much about its real strategy, except when forced to in legal confrontations like this one.
The first thing that’s curious is the FDA’s explicit assertion that any consumer who brings raw milk across state lines is breaking the law. “It has been settled law for nearly a century that an article that is purchased by a consumer and transported across state lines for his or her consumption is in interstate commerce,” the brief states, citing a case involving the purchase of alcoholic beverages that are brought from one state to another. “In light of the foregoing case law, it is apparent that the sale of unpasteurized milk to a customer who intends to transport it out of state, either directly or through an intermediary, constitutes delivery into interstate commerce.”
Also interesting is that the FDA makes sure there are no ambiguities in its contention. “Not only do direct shipments across state lines to consumers constitute interstate commerce, but…a person who purchases unpasteurized milk in one state with the intent to take it to another state (either for personal use [emphasis added]or to distribute to others) is engaging in interstate commerce.”
But, benign dictator that it is, it has has chosen not to enforce that interpretation of the law, the FDA then states. Of course, the agency doesn’t put it that way, suggesting instead that its approach is to “make efficient use of agency resources” by targeting farmers who distribute raw milk across state lines. It refers to “enforcement discretion” in its decision not to target consumers. “Producers and distributors of raw milk in interstate commerce…have been the object of the agency’s enforcement action,” it states, and cites several cases in which it has either sought prosecution or sent warning letters to dairies.
I’d like to suggest the FDA is being totally cynical in its response. The business about making effective use of resources is a cop-out—if raw milk is the “significant public health hazard” that the FDA claims it is, and consumption is rising rapidly and likely involving millions of Americans, then the agency should be going after every single consumer who crosses state lines with raw milk, using its broad authority to protect consumers from themselves.
No, the agency doesn’t want to foment out-and-out rebellion. So it seeks to keep consumers pacified by making an implicit bargain: We won’t hassle you directly, but rather indirectly. Your supplier is always in danger, but if we take action, you, the consumer needn’t worry about being caught in the roundup. Just poor farmers.
Of course, we are all victimized when the agency targets dairy farms and confiscates milk or prevents it from being produced. Perhaps a federal judge will see through the FDA’s hypocrisy and call a halt to the entire charade.
Chalk up another victory for the Maine farmers promoting food sovereignty statutes. Deborah Evans, one of the farmer proponents, reports that Blue Hill joined two other towns in voting for a local ordinance allowing farmers to sell their dairy and other products directly to consumers, without the burden of state regulations. That makes three of four towns in which the ordinance was proposed have adopted it. And the fourth town, Brooksville, which had narrowly defeated the proposed ordinance last month, is likely to take it up again within the next few months.