I know I’m one of the few people on this blog who hasn’t been reading Gary Taubes’ book, “Good Calories, Bad Calories”. But I’ve been busy reading something else over the last few days: the U.S. Constitution. (I actually did just purchase a copy of Taubes’ book, and it’s next on my list.)
I was a political science major in college, and spent a lot of time studying the Constitution. One of the things I always liked is that it’s straightforward and logical. But it’s been a few years (ahem), and I wanted to review what the document has to say that is potentially applicable to the sustainable food movement and, in particular, to cowshares and other such direct arrangements between farmers and consumers.
I’ve been talking in recent days with a few lawyers who are representing farmers under government attack, and they suggest the important action will be moving into the legislatures and courts where, presumably, the U.S. Constitution will count for something. No guarantees on that in our country’s current political climate though.
The lawyers say that local agriculture and health officials argue that in enforcing animal slaughtering and milk permit regulations they are only trying to protect consumers from potentially tainted meat and pathogens in unpasteurized juices and milk. They are also trying to ensure that everyone plays by the same rules—that some don’t go to extra expense for slaughtering animals or obeying permit requirements, while others get off with lower costs.
What about the fact that consumers who buy direct aren’t asking for the protection? Some regulators compare their efforts to enforcement of seat belt laws, which help ensure that careless or unsuspecting individuals don’t do harm to themselves or, worse yet, their children.
Consumers say the seemingly arbitrary enforcement of agriculture regulations is much different from seat belt laws. Driving a car (or a horse-drawn carriage) isn’t dealt with by the U.S. Constitution, while buying food is. The latter is best viewed as a direct contract between private parties, covered by Article 1, Section 10, which states, “No state shall…pass any…Law impairing the Obligation of Contracts…” Behind that clause, of course, lie a couple centuries worth of court cases that often amount to requests for exemption from the contract clause. We see the matter coming in connection with the sub-prime mortgage problem, with various states and Congress considering laws that would essentially override the mortgage contracts and give consumers more leeway in re-paying.
It’s important to remember that versions of the contract argument have already won the day for farmers in two major states. In Ohio late last year, a state court overturned an Ohio Department of Agriculture’s revocation of a dairy farmer’s milk license, ruling her “herdshare” arrangement, whereby 150 consumers bought shares in the farmer’s cows so as to gain access to raw milk, was legitimate.
And Michigan, which bans the retailing of raw milk, the state’s attorney general sanctioned herdshare arrangements earlier this year as part of a settlement with Richard Hebron after he was threatened with felony charges for making raw milk available to herdshare owners. The contract argument still counts for something in this country, given that contracts underlie trillions in commerce–and especially in places like Ohio, and upcoming in New York, which don’t prohibit cowshares.
The Washington Post has an interesting feature article about a couple of the cases covered on this blog—that involving Richard Bean and Jean Rinaldi, along with that of Greg Niewendorp. It quotes the Virginia Independent Consumers and Farmers Association (VICFA) as advocating legislation that would allow small farms exemptions from certain regulations for direct-to-consumer sales when a product carries a label that it is "not for resale, processed and prepared without state inspection."
That sounds fair enough to me. But I can’t imagine the agriculture authorities condoning anything so simple. After all, what would they do for a living?
Seatbelts make sense in the vehicles the vast majority of Americans drive: cars, trucks, vans. But they don’t make sense in all vehicles (I believe they experimented with motorcycle seatbelts at one time– and killed two test drivers), so seatbelt laws do not apply to all vehicles– you don’t have to wear one if you are riding a lawnmower, a horse cart, a motorcycle, a city bus, or a host of others.
Food regulations are similar in that respect: they’re made to ensure the safety of the food the vast majority of Americans eat (ie the mass-produced kind). But they don’t make sense for things like cowshares and small local farms, so, like seatbelt laws, they shouldn’t apply where they aren’t logical.
In the DRAFT document in every section there is a subheading PUBLIC HEALTH REASON, for every topic category, from smooth walls to milk plant surroundings. This is especially evident under the category of Pasturization, where Health officials unanimously agree upon the public health value of pasteurization
One category of legal theory that can over-ride the right to contract clause, cited by David, is a compelling government or public interest. If I was going to litigate (as a government prosecutor) against the cow-share concept and raw milk, I would focus on negating the Constitutional basis of my opponents position by arguing a compelling government interest in promoting the general welfare, i.e. public health. I would lay-out a strategy where the necessity for public health was clear and validate the Constitutional basis of the regulatory issues. This basis certainly is clear in the MDA draft-we are on notice as to the public health reasons for everything involved in the handling, transportation and processing of fluid milk and products.
Well know more after our first meeting regarding the Small-scale producer. It seems to me that logical or not, the compelling interest in public health argument that would be asserted is a tough barrier for the Constitutional contract defense. Carving our exceptions that promote local production and distribution would need to anticipate that particular challenge to the right to contract.
Steve, is this assessment correct? Did you have to argue these issues in your representation of Richard Hebron?
We can only hope that the judges and lawmakers that are being asked to reaffirm the model that is cow sharing, will look at the long history of agister agreements, rather than the short existence of heat processing milk. Either side of the argument will be able to twist the constitution to fit their end.
One must remain confident that what is right and proper will eventually persevere.
regulating every facet of American life. They must tax it or outlaw it. Homeland security is a joke. Those who want to destroy
our way of life have partly succeeded in taking away our freedom.
In Michigan governmental authority is not simply to protect the Public Safety the phase is actually protect the public health, safety and welfare. In our ongoing discussions with the officials in the Michigan Department of Agriculture (MDA) a couple of points that will be the focus of some interesting dialogue will be how to distinguish public from private interests. And does the authority also mean responsibility and is public health, safety and welfare limited to protecting us from things like pathogens, toxins, adulteration, or does it also mean protecting us from the side effects of manufacturing/processing on the nutritional benefits of foods. I look forward to discussing how much unhealth is directly attributable to the removal or reduction of nutritional benefit of milk by current governmentally acceptable (licensed) manufacturing processes. And how government balances these adverse effects from every ounce of Grade A milk on the public health, safety and welfare, with the rare possibility that an occasional sample of milk might become contaminated with a human pathogen. They need to be concerned about our health as well as sickness. As some of us are well aware the single most effective approach to minimizing infections is to stay healthy.
It seems apparent that government concern about the fact of declining health of the public is taking a backseat to looking for incredibly rare instances when some human pathogen is thought to be present in some food. Mark McAffee cites the obvious disconnect on the focus of declaring unprocessed fresh milk unhealthy when some rapid lab test purports to find preliminary evidence of Listeria monocytogenes in milk from some small dairy farm, when there are NO instances of death or even people getting sick . when almost 250 people die each and every day from hospital acquired infections, and no one in government is clamoring to close down hospitals to protect the public health.
Ted Beals