Ontario Judge Paul KowarskyI spoke last evening before a group of about 35 attendees at the Weston A. Price Foundation’s Princeton, NJ, chapter. I try in my talks, as I do here on the blog, to emphasize my belief that raw milk is a proxy issue for food rights.

Yet last evening, a number of the questions and comments concerned raw milk’s supposed protective and health-giving powers. Doesn’t good bacteria in raw milk from pasture-fed cows overwhelm pathogens that might be present? Doesn’t that mean you can’t become seriously ill from raw milk? Isn’t pasteurized milk more likely to contain pathogens than raw milk?

I tried to explain that there is very limited data on the first question, and what little there is doesn’t support the notion that milk from pasture-fed cows won’t allow pathogen growth. I also said that people can become seriously ill from raw milk, as they can from pasteurized milk. And, once again with incomplete data, I said I thought that what there is indicates raw milk is riskier than pasteurized milk, but that the entire category of dairy products is low on the food-borne illness totem pole.

Given the dearth of data, and the fact that raw milk doesn’t appear to be a serious health risk in its own rite, then the real issue is food rights, which brings me back to the Michael Schmidt decision in Ontario last week. And that is where I thought Judge Paul Kowarsky began to set some interesting parameters.

He may not have spoken about food rights, but he spoke to an area very close: the right of individuals to enter into private contracts in order to access the foods of their choice. More Americans are choosing private arrangements—for example, C.A.R.E., the largest buying group in the U.S. in Pennsylvania, has grown to 5,500 members over the last few years.  The right to private arrangements is mentioned in the U.S. Constitution (Article 1, Section 10) and known as “the Contract clause”, though admittedly it was included for different reasons at the time; food rights wasn’t much of an issue in the late 1700s. 

Repeatedly in his decision, Judge Kowarsky affirmed the right of individuals to enter into private agreements to access raw milk:

  • “Is the defendant guilty of the offences with which he is charged or does the fact that he sells his milk and milk products only to paid-up members of his Cow Share Program exculpate him?”
  • “If the ultimate purpose of regulatory legislation is to protect those who are unable to protect themselves, especially those who are particularly vulnerable, do those members of society who expressly waive the need for protection, still need the protection?” …if, in consuming raw milk per se the cow share members are not committing an unlawful act and they wish to continue to do that within the parameters of the essentially private cow share program, why should they be forced to be bound by legislation which is intrinsically aimed at the vulnerable—those who need the protection?”
  • “These findings support the existence of a valid private agreement between the defendant and the cow share members in terms of which he is responsible for the upkeep of the cows and the provision of milk for the membership. The responsibility of the members is to pay a fee for the upkeep of the cows, the production of the dairy products, and their delivery.”
  • “In my view, the establishment of the cow-share program creates a sharing of ownership of the cows amongst the members…”

It’s interesting that the Dairy Farmers of Ontario are advocating an appeal of the Michael Schmidt case since, as Steve Bemis suggests in his comment following my previous post, the judge didn’t make any changes in legislation. Quite the opposite, as the judge concluded his decision by stating: “Indeed, the milk marketing legislation remains of full force and effect until such time as it is amended or revoked by the Legislature…”

And Canadian dairy farmers shouldn’t be worried about too many of their brethren selling raw milk. They have a much sweeter deal, I am told, than American dairy farmers, with price supports that enable them to receive on the order of $3 to $4 a gallon for their conventional and organic milk, versus $1 to $1.50 a gallon in the U.S.

I can only assume the Ontario dairy organization is worried that Judge Kowarsky’s decision could begin to erode its complete control of the dairy system. Control is what a lot of this is about, and only guarantees and exercise of rights can counter the forces of control.