Michigan farmer Richard Hebron in 2007. Sometimes, it’s important not to lose sight of the forest for the trees. 


One of those times is occurring in Michigan right now, where there seem to be a lot of trees—in the form of different people with different understandings about what is and isn’t “legal” for the assorted raw-milk herdshares that have taken hold around the state. Overlaying the trees is a complex history, and different views of what it means, as is evident from some intense discussion following my previous post about what people think is and isn’t allowed in Michigan for herdshares. 


The history goes back to the late 1940s, when Michigan became the first state to require that all milk sold at retail be pasteurized, in effect banning the sale of raw milk. However, as in many states, there are no laws relating to private contractual arrangements covering raw milk, including herdshare arrangements.


Fast forward to October 2006, when the Michigan Department of Agriculture (as the agency was then known) executed a “sting” and confiscated some $8,000 worth of raw milk being delivered by farmer Richard Hebron to herdshare owners in Ann Arbor. The MDA then went to a county prosecutor, Victor Fitz, urging him to file charges against Hebron, in hopes hitting the farmer with a severe enough penalty that he, and others involved with raw milk, would see the error of their ways. 


Instead, members of Hebron’s herdshare mounted a campaign to persuade the prosecutor that not only were they doing nothing illegal, but that they were doing something very positive by drinking raw milk. They inundated the prosecutor with their personal stories of healing and good health from raw milk. 


Fitz carried out an extensive investigation, in Indiana, where an Amish farmer provided the milk for Hebron’s herdshare, and even in Pennsylvania, where another Amish farmer provided raw milk cheese. 


Eventually, the U.S. Food and Drug Administration would become involved, and issue the Indiana farmer a warning letter for sending milk across state lines. 


In the end, though, the case blew up on the MDA. Fitz concluded in 2007 that no crimes had been committed, and gave the case back to the MDA. To save face, the MDA worked out a deal with Hebron: he would pay a fine of $1,000, obtain a retail license, and the Michigan attorney general would sanction his (and other) herdshares. 


But there was more. The MDA also agreed to sanction a working group of regulators, agriculture experts, farmers, and others to develop information and recommendations for dealing with raw milk going forward. The result was the Michigan Fresh Unprocessed Whole Milk Workgroup. Little did anyone realize that the workgroup would need six years to complete its mission. Two years after its launch, in 2009, it provided the first inklings that its orientation was entirely different than anything of an official or semi-official nature ever conceived on raw milk. “Milk fresh from the cow is a complete, living, functional food…the full benefits…are only realized when all of these components function as a complex interdependent and balanced process,” the workgroup stated. 


When the Michigan workgroup finally issued its full report last year, it included as an addendum the now-famous policy statement from the Michigan Department of Agriculture and Rural Development governing herdshares. 

In the meantime, a number of herdshares took hold in Michigan besides the one run by Richard Hebron. One of those was operated by dairy farmer Kevin Hicks and his then-girlfriend, Jenny Samuelson. The Detroit News carried an article about the 350-member herdshare in 2009….when things were going well. (Samuelson says the two dated initially, but she “was never romantic with him.”)


Things stopped going well between Hicks and Samuelson in 2012, however. Had their relationship simply ended, that would have been the end of the story as far as Michigan raw milk drinkers were concerned, but there was more to it. In a he-said-she-said falling out, Samuelson moved the herdshare to a different herd, at High Hill Dairy. 


Herdshare members were left to figure out whether to stay with Hicks or move on with Samuelson. Most seem to have moved on with Samuelson, which left Hicks with lots of milk and not many raw milk drinkers. 


Hicks, though, resolved to re-build the herdshare, and thanks to the growing demand for raw milk in Michigan, he says he has built up a new herdshare and recovered financially. But in a conversation a couple days ago, he told me he is upset with Samuelson’s actions in running her current herdshare. He contends she was warned by the MDARD months before the raid on her truck last month, to discontinue producing cream and butter, per the MDARD policy statement. 


“I’m not big on a lot of rules,” Hicks told me. “But sometime you have to have a few rules.” By defying the MDARD, Samuelson runs the risk of encouraging a further crackdown on raw dairies in Michigan and “of ruining this for everyone,” Hicks argues. 


Samuelson confirms that High Hill Dairy was warned some months ago about the cream and butter, but contends that the agency has no authority over whether members receive such products. After the warning, she says, “The members let the state know this was their milk and they have a legal contract that they gave the farm the right to make products with their milk….Remember they seized my items and ILLEGALLY searched my truck because of a food license issue, correct?”


Samuelson says she knows of other Michigan herdshares producing raw cream and butter, “yet we are the one being targeted because a POLICY IS NOT A LAW that (the Fresh Unprocessed Whole Milk Work Group) came up with! Cream is milk separated. It doesn’t make any logical sense!! If (shareholders) want pay that farm to make butter, that is their right!!” 


Samuelson adds that under regulators no longer with the MDARD, she was allowed to have both dairy and non-dairy products on the same truck; now, different regulators are saying raw milk can’t be delivered in the same truck as other foods covered under a retail license. 


“It seems every time we get new people in charge, I have something to deal with. This time, they really over stepped their authority. I been doing this for 6 yrs and 8 months, and nothing has changed besides growth.” 


There is obviously a lot of confusion about what Michigan allows and doesn’t allow. And that is part of what the authorities want, especially if they can get farmers and other food producers fighting among each other, rather than fighting the authorities.

There were references in the comments following my previous post about Michigan’s laws covering herdshares, but as Samuelson correctly points out, we are talking about herdshare policies, not laws, in Michigan. There are no laws governing herdshares, except as there are laws governing contracts of all goods and services.  There is no raw milk permit process enacted into law, as there is in Pennsylvania, Vermont and Massachusetts, providing for safety inspections and testing. 


The problem with policies is that they can be interpreted differently by different regulators. That is exactly what has happened in Michigan—some regulators turned the other way on the production of cream and butter, while some now want those restricted. Some regulators didn’t object to delivery of herdshare milk together with licensed eggs and meat, while others now say such combinations are illegal. 


I wish I could agree with Kevin Hicks, that if Michigan’s raw milk producers just “behaved” themselves, everything would be okay. I am not sure it would be. I have little confidence that the current crop of MDARD regulators truly backs herdshares, and I fear that they may interpret everyone “behaving” themselves as weakness, requiring ever more regulation. 

If you go back to the beginning, when Michigan enacted laws requiring pasteurized milk for retail sale, you will likely find nothing in the laws restricting the private contracting for food. It may be the state’s dairy farmers need to go back to the beginning to find their way out from among all the trees blocking their view.