A bottle of farmer Dan Brown's raw milk. The photo was taken by the Maine Department of Agriculture as part of its suit against Brown. Two more Maine towns—Appleton and Livermore– have passed food sovereignty ordinances in the last few days during the current town meeting season. This brings to eight the total number that have legally sanctioned private food sales by local farmers over the last year.

In the meantime, the state’s prosecution of Blue Hill farmer Dan Brown for selling raw milk under his town’s food sovereignty ordinance, passed last spring, continues apace, with depositions being taken of key participants. A trial is possible by late fall.

The dissonance implied in the Dan Brown case–between the expanding will of the people, as expressed via the adoption of food sovereignty ordinances, and the resistance of the bureaucrats–isn’t just a chance occurrence. Now it can be tracked and at least partially explained, thanks to a treasure trove of nearly 700 pages of documents obtained by the Farm-to-Consumer Legal Defense Fund from the state of Maine under its Public Records Act, in connection with the Dan Brown case (which it is helping Brown defend). The documents include email communication between officials within the Maine Department of Agriculture and with the U.S. Food and Drug Administration, as well as between the regulators and farmers, along with various policy statements. It’s not the most scintillating reading—lots of stuff about upcoming meetings and depositions and who can attend and can’t attend, for example—but buried within the tedium are important statements that enable an outsider to track the motivations of key participants.

Because the documents touch on a number of important areas—the evolution of Maine’s stiffening policy, an effort to pin the blame for illnesses on raw dairy farmers, and the important role of federal regulators–I’ll be writing about the revelations from these documents in several installments. In this first one, I track the evolution of the Dan Brown case—a major suit against a two-cow dairy– as an outgrowth of the federal government’s ever more intense war on small dairies in general, and raw milk in particular.

I should say at the outset that Maine has long had one of the more liberal approaches to raw milk in the country, being one of some ten states that allow sales by permitted dairies, not only from the farm, but at retail outlets. As part of that liberal approach, it has long allowed tiny dairies that don’t advertise to sell raw milk privately without requiring a permit. This is what the Food Sovereignty movement has been seeking, for the sale of all farm-produced foods.

Departing from History. For raw milk producers, the first inkling of a shift came in a letter they all received in late November 2009. In that letter, Hal Prince, director of the Division of Quality Assurance and Regulations of the Maine Department of Agriculture, Food and Rural Resources, said “there seems to be confusion among businesses and inspection staff alike as to whether or not a license and inspection is needed by those ‘not pasteurized’ (raw) milk processors who do not actively advertise the sale of ‘not pasteurized’ (raw) milk. In the rule, there is no exemption of any kind that allows the sale of milk or milk products without a valid license. As such we will begin immediately to identify those processors who are operating without a license and assist them into compliance through proper inspection and licensing.”

Why the sudden change? Maine’s chief veterinarian, Donald Hoenig, said in a 2011 email answering an inquiry on this subject, “In talking with one of the dairy inspectors who has worked for the state for 30 years, I’m told that this policy (no need to be licensed if you did not advertise) was in place when this person began work in 1981. When oversight of the program switched from my division (Animal Health) to Quality Assurance in July 2009, a decision was made to take a new look at the enforcement of all the dairy rules and that’s when the policy changed.”

I love that expression, “…a decision was made…” As if it was made by robots in a vacuum.

In the Maine Agriculture Department documents, a couple of explanations are offered for what happened. In August 2010, a laboratory evaluation officer, Cathleen Cotton, sent an email that seems to have gone to everyone in the department, stating, “There has been a misconception that if you didn’t advertise, you didn’t need to license. This is not true now, nor has it been. It was simply a problem of resources—with only 2 Dairy Inspectors it was impossible to check every place that may be selling milk without a license. Now the Dairy program is with Quality Assurance and Regulations and we have many more inspectors around the State to keep their eyes open for unlicensed sellers of milk of milk products.”

But just at the time the letter was going out to dairy producers in late November 2009, the state vet, Donald Hoenig, wrote in an email to Hal Prince, the department director, “My recollection is that when the determination was made to only license those folks who ‘advertised’, it was on the advice of our assistant AG…I believe it was the AG’s office who probably advised us that ‘offer for sale’ could be interpreted to mean ‘advertise’. I’m sure there could be other interpretations also but what you’re proposing is a significant change in policy which could impact dairy farmers who may just sell a few gallons out of their tank sporadically. We made the decision to not require those people to be licensed since the practice was widespread at the time. It’s probably not as common now as most dairy farmers are scared of the liability and think it’s just a pain in the neck.”

Hmmm. Nothing to do with number of inspectors. Rather, the practice of private sales was sanctioned by the state attorney general because it was perceived to be legal, and part of a long-standing tradition.

Sparks Fly. It was this decision to eliminate the long standing private sales that would most directly spark the Food Sovereignty movement that took hold in Maine, and led to the formation of the “Five Musketeers” I wrote about a little over a year ago. They would organize themselves to push through food sovereignty ordinances in six small Maine towns last spring, and the concept took hold in Vermont, Massachusetts, and as far away as Santa Cruz, CA.

The Five Musketeers were far from alone. So intense was the opposition to the elimination of the no-advertising provision in Maine that the state’s governor, Paul LePage, began hearing from upset dairy farmers. He didn’t like what he was hearing, and last September wrote a memo to the head of the Maine Department of Agriculture, Walt Whitcomb. “I am particularly concerned about over regulating the small farms with large capital investments and costly licensing. In recent weeks I have received letters, emails and constituent visits concerning regulations involving intrastate commerce.”

Attached to the memo was a proposed bill in the Maine legislature “that a license is not required of any person who produces and sells milk only on the premises of the producer and seller.” Underneath the text of the proposed legislation was a note that appears to be from the governor or an aide: “This statute sounds reasonable. Please advise the problem you see with it?”

Also attached was a letter from a Maine farmer, John O’Donnell, who wanted to let the governor know what was behind the Food Sovereignty movement, and why the FDA was out to stamp out small dairies. “As you may know, several Maine towns passed food sovereignty resolutions last year. This was mainly driven by small farmers experiencing unfair regulations that are barriers to entry, and restraint of trade. Many of these farmers fought for the same Maine bills I did, and saw how the Subcommittee on Agriculture was mainly under the control of the large farm and dairy interests and would never let small farm bills out of committee favorably. We also saw how the Department of Agriculture testified in these hearings that there would be repercussions from the USDA or FDA if we relaxed the standards for selling poultry, milk, and other products in our local communities and state.”

Under this paragraph was a hand-written note, presumably from the governor or an aide, “Why would this concern us, if the products are sold intrastate.”  

A State Department Goes Its Own Way. The Maine Department of Agriculture’s response?  There is no direct response to the governor’s memo that I could find in all the material. The Department of Agriculture appears to have simply ignored the governor, and instead made its views known in a form letter from Walt Whitcomb, the Department of Agriculture’s commissioner, to everyone like farmer John O’Donnell who “shared…thoughts with the Administration regarding local food sovereignty ordinances.

It stated in part: “Local food sovereignty ordinances leave the false impression that residence in certain towns exempt individuals from food licensure and inspection requirements. Because the ordinances conflict and would frustrate the purposes of state food licensing and inspection laws, these ordinances are preempted by state law…persons who fail to comply (with state laws) will be subject to the Department’s statutory responsibility to enforce state law, including the removal from sale of products from unlicensed sources and/or the imposition of fines.”

Why would the governor’s own executive department ignore the boss? It appears that several months before the governor wrote his memo, in the spring of 2011, the Maine Department of Agriculture enthusiastically accepted emailed overtures from the FDA to help defeat the legislation the governor liked. John Sheehan, the head of the FDA’s dairy division, submitted an 18-page tirade against raw milk as “testimony” against the legislation.

The Maine Department of Agriculture appears to have cast its fate with a federal agency rather than with its own constitutional superior. Interesting matter of sovereignty, it would seem.

But understandable from a practical point of view. Bureaucrats know well that politicians come and go, while the bureaucrats remain, always having to scrounge for budget to promote their own ongoing employment. The Maine ag regulators appear to understand well that their best opportunities for future revenue growth are going to come from the FDA as a reward for their good-ol’-boy approach in supporting John Sheehan and all the guys and gals at the FDA.  (The FDA hands out funds to states in the form of “co-operative agreements” up to $500,000 each, which are highly prized by state ag and public health regulators. Many of these aren’t publicized; as one federal report states: “There is a long history of federal collaboration with state and local food safety agencies, with the result that federal, state and local programs are today intertwined and interdependent in many ways.” In other words, the money is often buried in budgets and can’t be easily identified.)

Maine’s Department of Agriculture has made an investment in its future.