FTCLDF 2008 YEAR IN REVIEW

The Farm-to-Consumer Legal Defense Fund (FTCLDF) provided representation in four major cases this year in an effort to defend the right of farmers to make a living and the right of consumers to have access to the foods of their choice. The Fund’s ultimate goal is for farmers to be able to legally sell the products of the farm direct to consumers without a permit. With the increased attempts by federal and state governments to make life more difficult for small farmers and restrict consumer freedom of choice, we have a ways to go before that day arrives. No matter what the timetable, the Fund’s mission will not change. Here is a brief recap of each of the Fund’s cases.

CALIFORNIA - AB1735

In October 2007 AB1735 was signed into law. Among other requirements, the bill mandated that milk produced by the state’s licensed raw milk dairies (Organic Pastures and Claravale) have a coliform count of 10 or less at the final container when tested. If a dairy’s milk fails three out of five consecutive tests, the dairy’s sales of raw milk are suspended.

In December 2007 FTCLDF General Counsel Gary Cox filed a lawsuit against the California Department of Food and Agriculture (CDFA) in San Benito Superior Court to permanently enjoin the agency from enforcing the coliform standard. Once the standard went into effect on January 1, 2008, both dairies had numerous tests where their milk had a coliform count higher than the legal limit; so, on March 6 Gary followed up on the initial lawsuit by filing for a temporary restraining order (TRO) and a preliminary injunction against the enforcement of the coliform standard.

On March 19, San Benito Superior Court Judge Harry T. Tobias granted the TRO in favor of the dairies, prohibiting CDFA from enforcing the coliform standard. Even though the judge later reversed his position and denied the dairies a preliminary injunction in a subsequent hearing on May 23, the successful suit for the TRO helped jumpstart the legislative process.

On April 15 the California Senate Agriculture Committee and the Select Committee on Foodborne Illness held a public hearing in Sacramento on Raw Milk Safety. The hearing led to the commission of a Blue Ribbon panel to draft legislation that would supplant AB1735. On June 5 State Senator Dean Flores introduced SB201, a bill that eliminated the coliform requirement imposed by AB1735. SB201 passed in the General Assembly 63-0 and in the Senate 31-4 before Governor Arnold Schwarzenegger vetoed SB201 on September 30, ignoring the widespread support for the bill.

Unless a bill eliminating or modifying the coliform requirement is passed in the next legislative session which starts in January, the trial to permanently enjoin CDFA from enforcing the coliform standard of AB1735 should take place sometime next summer.

NEW YORK - MEADOWSWEET DAIRY

FTCLDF has been providing legal representation to Meadowsweet Dairy LLC since the fall of 2007. Farmers Stephen and Barbara Smith, member-managers of the LLC, had been distributing raw milk and raw milk products to their LLC members without a permit. The Smiths gave up their permits with the state in March 2007, frustrated by state regulations limiting the sale of raw milk to on-farm and prohibiting the sale of raw dairy products other than cheese aged sixty days. The Smith’s position is that since they are distributing products to members of a private entity and not the general public, they are not under the jurisdiction of the New York State Department of Agriculture and Markets (NYSDAM) and do not need a permit. The Smiths had been subjected to harassment by NYSDAM since they gave up their raw milk and milk plant permits. In December 2007 Gary Cox filed a suit on behalf of the Smiths and the other members of the LLC asking the court to permanently enjoin the agency from interfering with the LLC’s operations on the grounds that what they were doing was not regulated by the state.

The case was transferred to the Albany County Supreme Court. On November 18, 2008 Judge John C. Egan Jr. denied the LLC’s request for a permanent injunction holding that Meadowsweet was under the authority of NYSDAM.

The judge’s ruling turned on the definition of “consumer”. Under state law anyone selling, offering for sale or “making available raw milk to consumers” must have a permit. The definition of “consumer” the judge used in his decision was so broad that even someone with only a family cow would be required to get a permit. In addition to holding that the Smiths were required to obtain a raw milk permit, the judge ruled that they were required to have a milk plant permit as well. Under New York law, those holding a dairy plant permit can only sell or otherwise distribute pasteurized milk products.

The Smiths have until December 20 to decide whether to appeal Judge Egan’s ruling. Regardless of whether an appeal is made, the Fund remains committed to establishing the legal right of raw milk producers in the state of New York to enter into private contractual arrangements without government interference in the distribution of raw milk and milk products.

OPDC FEDERAL CRIMINAL INVESTIGATION

Organic Pastures Dairy Company (OPDC) and its CEO Mark McAfee are currently the subject of a federal criminal investigation into the dairy’s distribution of raw milk and raw milk products in interstate commerce. There is a federal regulation prohibiting raw milk and raw milk products for human consumption in interstate commerce. FDA, through the U.S. Attorney in Fresno, is trying to have Mark prosecuted for “misbranding” under the Federal Food, Drug and Cosmetic Act (FFDCA). “Misbranding” in this case, under FDA’s interpretation of the law, would be knowingly selling products for human consumption that were labeled for pet consumption only. What is unjust about FDA’s action is that the agency appeared to give its tacit approval on the dairy’s labels when it originally OPDC’s interstate shipping back in 2004 and 2005.

Gary Cox is negotiating with the U.S. Attorney in Fresno over a possible plea bargain in Mark’s case. The Fund has also been working with Congressman Ron Paul’s office to introduce legislation that would repeal the ban on raw milk and raw milk products for human consumption in interstate commerce. Lifting the ban would benefit raw milk producers and consumers around the country tremendously.

NAIS – MICHIGAN

The National Animal Identification System (NAIS) was developed by USDA and is being implemented through the department’s Animal and Plant Health Inspection Service (APHIS) and various state agencies, including the Michigan Department of Agriculture (MDA). The alleged purpose of NAIS to provide a comprehensive program of animal tracking whose goals are to:

1. assign and register in a nationally coordinated database a unique premises identification number (PIN) for every farm with any livestock or poultry;

2. assign and register in a nationally coordinated database every animal on each “premises” a unique animal identification number (“AIN”) or group identification number (“GIN”); and

3. track and trace the movement of all such animals.

At the state level NAIS is being implemented primarily through memorandums of understanding (MOUs) and cooperative agreements between APHIS and the state departments of agriculture. Michigan is the furthest along among the states in implementing NAIS, requiring premises ID numbers for all farms with cattle and radio-frequency identification (RFID) tags placed on all cattle. RFID tags constitute an acceptable form of AIN according to APHIS. There are no statutes or regulations in place at this time specifically authorizing either APHIS or the USDA to mandate PIN or AIN at either the federal level or in the state of Michigan. The implementation of NAIS by both APHIS and MDA amounts to an end-around on the process of representative government.

On May 14, 2008 Gary Cox, on behalf of FTCLDF, sent a letter to USDA and MDA notifying the agencies of the Fund’s intent to sue them unless “legal deficiencies associated with the development and implementation of the National Animal Identification System” were cured. Neither USDA nor MDA ever formally responded to the letter; so, on September 8 the FTCLDF filed a lawsuit in the federal district court of the District of Columbia to enjoin the implementation and enforcement of NAIS by USDA and MDA. The complaint alleges violations of the following federal and state laws in the implementation of NAIS:

1. The federal Administrative Procedures Act;

2. The federal Regulatory Flexibility Act;

3. The procedural and substantive due process clauses under the Fifth Amendment to the U.S. Constitution;

4. The procedural and substantive due process clauses under the Fourteenth Amendment to the U.S. Constitution;

5. The National Environmental Policy Act;

6. The federal Religious Freedom Restoration Act;

7. The Michigan Administrative Procedures Act; and

8. The free exercise clause of the Michigan Constitution.

Listed as plaintiffs along with FTCLDF were six Michigan cattle farmers who are members of the Fund.

USDA and MDA filed responses to the complaint on November 13 and November 17, respectively, with each agency filing a motion to dismiss the Fund’s lawsuit. This usually happens in this type of case. The Fund has until January 12 to file a response.

In its response to the complaint, USDA claimed NAIS was a voluntary program. We now know that is not true. A memo USDA-APHIS issued September 22 to its “Veterinary Services Management Team” makes clear that premises registration would be required for those who participate in any of the various disease program activities. Participants who refuse to voluntarily register their premises would have their premises involuntarily registered for them. The Fund’s lawsuit against NAIS will be a difficult fight but as more evidence emerges about how USDA is trying to force NAIS on farmers, the chances for success increase.

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Aside from the cases FTCLDF has taken on, we provide daily consultation to our members on matters ranging from setting up herd share programs to answering questions about the interpretation of various state and federal food laws. The Fund is particularly active in getting farmer members started in distributing raw milk legally through animal share agreements. To date the Fund has generated documents for over one hundred members starting up herd share/lease programs. The number of farmers selling products of the farm direct to consumers continues to grow. The Fund looks forward to working for increased freedoms for farmers and consumers in 2009.