I spent last evening reading through a week’s worth of emails. I had figured late August would be a good time to take a week off, as in completely off everything–not only email, but cell phone, Internet, radio, television, etc., etc. More about what I did on my summer vacation another time, but obviously, the pace of legal developments around raw milk, and food rights, did not abate. Far from it.
The struggle for access to nutritionally-dense food has evolved itn a multi-front war, and the action is becoming hot and heavy, with little respect for vacation timetables…or individual rights. Counteroffenses are being fought, where skilled attorneys are willing to take up the struggle. Here are three key developments over the last week:
— The government opts for a harassment strategy–for now–in the Rawesome Foods case. The Rawesome Foods case in the Venice section of Los Angeles bears very close watching in the food rights war. Remember, the June raid on Rawesome included law enforcement representatives from all government levels–local (Los Angeles District Attorney and Department of Public Health), state (California Deparment of Food and Agriculture), and federal (U.S. Food and Drug Administration, Federal Bureau of Investigation). It was a totally coordinated surprise assault, with agents’ guns drawn. In other words, the full power of The State apparatus being brought to bear to eliminate one community’s access to raw milk, raw honey, fermented foods, pastured eggs, and so forth. So you have to assume that any follow-on action will continue to be carefully coordinated at all State levels, with approval by all parties.
The big question following the raid was what The State’s follow-on action would be. A California challenge to the food club’s lease arrangements? An FDA challenge to the interstate shipment of raw milk? No, The State has opted for a simple local tactic: harassment, in the form of a building code challenge.
Here is how Aajonus Vonderplanitz, a founder of Rawesome, explains the latest development: “The government is trying every means to close us so that we cannot provide our members with their own healthy food that we have worked so hard to make available. Because they have not been able to close us on health-issues and our Right to Association, they are trying building-safety-violation tactics. The Los Angeles Department of Building and Safety (LADBS) has issued a closure notice…Since this is not a residence or public food venture, this entire issue is probably moot and can be dismissed by a judge when applying for an injunction against LA City.
“To buy time, I am reluctant to ask for an appeal because that may give it jurisdiction that they do not have because we are not selling anything (as stated in its notice) and we are not open to public. Right to Choose Healthy Food/Rawesome has a charity-based agreement with the owners of the property to use the lot as a distribution center and our members have agreed that the buildings that exist are adequate for their needs as per membership agreement (see attached).”
Vonderplanitz concludes with an appeal for “all willing attorneys to help us fight this fast.” I know Rawesome has some attorney members who were outspoken in their outrage immediately after the raid. Hopefully one or more of them will take up the appeal. If anyone else is interested, get in touch with me for contact information to reach Vonderplanitz.
2. Massachusetts retracts the Cease-and-Desist order against Brigitte Ruthman’s single-cow herdshare. As Vonderplanitz indicates, the war is at a stage where skilled lawyers are more important than ever in fighting the government assault. Ruthman has engaged a lawyer, and in response to her request for discussions, and threat to file suit, the Massachusetts Department of Agricultural Resources has rescinded the order hand-delivered by an agriculture inspector to the dairy farmer last month.
The letter and MDAR response are worth reading. Essentially, Ruthman threatened to file suit unless MDAR engaged in discussions on the herdshare question, and MDAR quickly responded by withdrawing the cease-and-desist and agreeing to discussions. The MDAR’s letter, however, insists that its position in going after the herdshare is the correct one–even citing the New York case involving Meadowsweet Dairy to back up its claim. Still, should negotiations fail, the suit can be filed.
3. The FTCLDF survives round one in its suit against the FDA, and wins points in the process. At first glance, it appears as if the federal district judge is providing only a slender opening to the FTCLDF by suggesting in his 56-page decision that the legal organization file a citizen petition to the FDA over the interstate ban on raw milk sales. Of course, everyone knows the FDA wants to continue enforcing its ban. But the judge leaves open continuation of the suit should the FDA do the expected.
Moreover, the judge indicates in the decision that he doesn’t approve of key aspects of the FDA’s argument. As one example, he uses the case in which Eric Wagoner and other Georgia consumers were forced to dump raw milk transported from South Carolina last September to take issue with FDA claims it hasn’t enforced the interstate raw milk ban on individual consumers.
He states: “The direct purchaser plaintiffs also contend that the FDA’s direction that plaintiff Wagoner destroy the raw milk that he had purchased for himself, along with all of the other raw milk that he was transporting from South Carolina to Georgia for distribution to members of his virtual farmers’ market, demonstrates that there is not only a credible threat that the FDA will enforce the regulations against a direct purchaser plaintiff, but that the FDA has actually done so. On the present record, the court must take as true the plaintiffs’ allegations that Wagoner was told to destroy the raw milk that he was transporting across state lines for himself, because he had purchased it for himself, as well
as the raw milk that he was transporting across state lines to distribute to others. The FDA has made no attempt to present evidence that it neither ordered Wagoner to destroy the raw milk, state officials did, nor ordered Wagoner to destroy the raw milk because he was attempting to transport some of the raw milk across state lines for his own consumption. Thus, on the present record, the direct purchaser plaintiffs have made sufficient showing that they face a credible threat of injury to have standing.”
In a number of other places, the judge seems similarly skeptical of the FDA’s assertions. Perhaps most important, he seems to take the case seriously. That’s not good news for the FDA.
Although there are some encouraging developments over the last week, it’s important to remember that our government is quite adept at waging war. And key elements of the government establishment are lusting for action–how else do you explain Los Angeles bureaucrats spending time in late August going after a tiny food distributor? Slash-and-burn, shock-and-awe, diversionary tactics–they’re all part of the repertoire. It promises to be a long-term struggle.
While I view the struggle as a war, Wisconsin buying club owner Max Kane, who has been the subject of several direct assaults, likes to view the enemy as akin to a mafioso family. He’s assigned mafia roles to key officials of the Wisconsin Department of Agriculture, Trade and Consumer Protection in a new video that opens in dramatic fashion. This one is devoted to examining the three raids intended to shut down Wisconsin raw dairy farmer Vernon Hershberger.? (If you have trouble viewing the video here, you can see it here on YouTube.)
Thanks again to Steve Bemis for an excellent blog post last week.