'Milk Wars' from The Nation

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More on the WAR against raw milk.

Milk Wars

by E. Gumpert

For the past sixty years, there hasn't been much good news for America's

small dairies. Thanks to rising land costs and intensifying price

pressures, the bucolic sight of cows grazing in the countryside has

become ever less common. Since 1970 alone, the number of dairies has

plunged an astounding 88 percent, to 75,000, according to the US

Department of Agriculture. The consolidation means that factory-style

dairies with between 1,000 and 5,000 cows have become increasingly

common.

The one bit of encouraging news for small dairies has been the growing

market among health-conscious consumers for unpasteurized milk and dairy

products like yogurt, butter and cream. There may be a half-million or

more raw-milk drinkers in the United States, with the number growing

" exponentially, " says Sally Fallon, co-founder of the Weston A. Price

Foundation,

which encourages consumption of raw milk for its healthful enzymes,

bacteria and proteins.

Small dairies have rushed to meet this need via a completely new

business model. Instead of selling milk in bulk to processors who offer

take-it-or-leave-it prices of $1.50 to $2 a gallon, some small dairies

sell directly to consumers at whatever price the market will bear,

typically from $5 a gallon to as much as $10 a gallon. At those prices,

dairy farmers actually begin thinking in terms of a long-forgotten word:

profit.

In New York state, which regulates direct sales of raw milk to consumers

by issuing permits to dairies, the number of raw-milk dairies with

permits has doubled to twenty from ten in 2005. The same sort of

minirevival has occurred in other states that allow raw-milk sales

direct from the farm, like Pennsylvania and Massachusetts. In

California--one of the few states that allow sales of raw milk via Whole

Foods Market and other retail outlets--the largest raw-milk dairy, the

350-cow Organic Pastures Dairy Company, has seen its annual sales climb

by 25 percent annually, to more than $5 million.

Arguing that raw milk isn't safe and that consumers must be protected

from its dangers, some government regulators and legislators are

targeting small raw-milk dairies for tough enforcement actions, focusing

most intensively on dairies in New York and California.

State regulators have supplemented inspections by obtaining search

warrants, pushing restrictive legislation and even threatening to throw

dairy farmers into jail. They've been encouraged by the US Food and Drug

Administration, which in a sixty-four-slide

PowerPoint presentation posted on its website last March, exhorted

" everyone charged with protecting the public health to prevent the sale

of raw milk to consumers.... "

Barb and Steve see New York's ever-harsher tactics against their

tiny Meadowsweet Farm as closely related to the rising demand for raw

milk. They obtained a raw-milk permit in 1997 because they were

desperate to extricate themselves and their nine children from the

commodity bondage that dominated their lives from the time they

purchased the farm in 1995. " We figured by selling milk to the processor

we were getting about $1 an hour for our work, " says Steve.

The raw-milk option was slow going until 2005 and 2006, when demand

began rising sharply. Anywhere from twenty to thirty customers would

regularly visit their lonely outpost near Lodi, most of them from

Ithaca, the home of Cornell University, which is about forty-five

minutes away.

" But our customers always wanted more things raw--butter, kefir, cream, "

says Barb. New York's Department of Agriculture and Markets prohibits

the sale of any raw dairy products except milk and cheese that has been

aged at least sixty days.

The expanding customer demands coincided with what the s say was a

change in the department's inspection procedures, beginning in the

summer of 2006. Minor violations like a tear in a screen door or

excessive weeds outside the barn, overlooked in earlier years, now meant

fines of a few hundred dollars and automatic thirty-day re-inspections.

One day in February 2007, they received four letters from Ag and Markets

announcing violations and fines. On that day, Barb says, she and Steve

concluded, " They were not giving us any way to achieve compliance. "

Ag and Markets declined recent requests for comment about the s'

case, but last July, when a number of dairy farmers with raw-milk

permits began complaining about intensified inspections, agency

spokeswoman Chittenden told me, " Even though there is a demand

for this product and we have regulations that allow for the sale of raw

milk, food safety must come first. Therefore, we take our responsibility

in safeguarding consumers from food-borne illness very seriously. "

The s decided over the next few months to pursue an increasingly

popular avenue among dairies in states that don't allow the sale of raw

milk or have very restrictive policies: issuing " herd shares " or " cow

shares, " legal agreements under which consumers acquire partial

ownership of the dairy herd and receive milk and other dairy products

from " their " cows.

While some state agriculture officials have challenged these

arrangements, they have held up to legal tests in two major states. In

Ohio, a small dairy sued the Ohio Department of Agriculture in 2006 over

efforts to shut down its herd share, and won in state court. The

Michigan Department of Agriculture last year backed off on seeking

criminal charges against a farmer who formed a herd share for Ann Arbor

consumers, in the face of widespread public opposition.

Last spring, the s established a herd share, in the form of a

limited liability company. Simultaneously, they gave up their raw-milk

permit. They spread the word in Ithaca that buying shares in the LLC

would entitle owners to raw milk and the other high-demand raw-milk

products, along with delivery to easy-access drop-off points.

By the summer, they had 130 shareholders paying $50 each for shares,

plus the equivalent of $6 a gallon for milk, in the form of fees to feed

and house the cows; thirty more customers joined a waiting list for

future shares. The s were able to reduce their herd to fourteen

cows from thirty, generating the same cash flow but with reduced fuel

and feed costs.

New York's Ag and Markets immediately showed its displeasure by stepping

up its inspection and enforcement efforts. In late August, the

department notified the s that fines for " unsanitary plant

conditions " totaled $1,700 and needed to be paid within fifteen days to

avoid legal action.

Arguing that they no longer had a raw-milk permit and were serving only

private shareholders, the s resisted. That led to steady escalation

by Ag and Markets, including the quarantining in October of 130 quarts

of yogurt, twenty bottles of buttermilk and five gallons of whole milk

in the s' cooler.

On December 13, with the support of the recently formed Farm-to-Consumer Legal

Defense Fund,

the s filed suit against the department and two of its officials.

They asked the court to allow members of the dairy LLC to continue to

pick up their raw-milk products without harassment from regulators.

The same day, in the middle of a snowstorm, two Ag and Markets

inspectors showed up to force the s to dump the quarantined milk,

yogurt and buttermilk into buckets while the inspectors poured in

bleach. The inspectors returned yet again just before Christmas with a

search warrant, but the s' lawyer advised them to refuse the

inspection since the warrant didn't allow for breaking into the s'

locked cooler.

The entire affair has evolved into a three-front legal battle: an

additional Ag and Markets regulatory complaint to shut the s'

dairy, the s' lawsuit and, most recently, a show-cause order in

state court as to why the s shouldn't be held in contempt for

refusing to allow the inspectors access to their locked coolers. If the

judge rules in favor of the state and if the s continue to resist,

they could be thrown in jail. At a hearing February 28, a state judge

took under advisement both the state's request for a contempt finding

and the s' request to quash the show-cause order.

While New York agriculture officials have been fighting small dairies

via regulations and the courts, California regulators have been fighting

a legislative battle. There, the marketplace is much different, since

retail sales of raw milk are allowed. But because of high capital costs

and the state's tough regulations (for example, requiring automated

bottling equipment), only two dairies serve the entire market.

Business was growing so quickly for the largest, Organic Pastures, that

at one point last fall, the owner, Mark McAfee, said he was in

negotiations with a venture capital firm for funds to significantly

expand the dairy.

All that's on hold now. This past October, at the recommendation of

California's Department of Food and Agriculture (CDFA), the State

Assembly quietly passed tough new standards for nonpathogen bacteria

counts that the two dairies argue could make a significant portion of

their current milk production unacceptable. The chair of the State

Assembly's Agriculture Committee said she hadn't realized the

implications of the legislation, and last month she backed an effort to

repeal the standards.

At hearings in Sacramento in January, about 700 raw-milk consumers

showed up to back the repeal, and the Agriculture Committee unanimously

passed it. But it died in the Appropriations Committee, where

large-dairy and medical industry interests opposed what they termed a

watering down of toughened food-safety standards.

The CDFA has already begun enforcing the new standards, and Organic

Pastures failed two of its initial three tests. The dairy can continue

selling raw milk, but if it fails one of its next two tests in the

coming months, it could be forced to at least temporarily halt

production. McAfee argues that the bacteria being measured, coliforms,

have no bearing on milk safety, and that the state should focus its

efforts on monitoring potential pathogens like E. coli O157:H7. " This is

destabilizing; it's a game of harassment, " he says.

His dairy and the other California raw-milk producer, Claravale Farm,

have joined forces to sue the state and CDFA to block implementation of

the regulations. Among their claims: a " denial of due process " because

the tough standard " is not rationally related to a legitimate

governmental interest. "

While the FDA and most state agriculture and health authorities have for

many years opposed raw-milk consumption and fill their websites with

warnings about its dangers, the crackdown on dairies represents a change

in tactics, says Pete Kennedy, a lawyer for the Weston A. Price

Foundation. " They're now going after the supply side, " he says, since

growing numbers of consumers are ignoring the warnings.

Part of the reason for the growing skepticism is that Kennedy last year

used the Freedom of Information Act to obtain data from the US Centers

for Disease Control showing that from 1973 to 2005, an average of

fifty-nine people became ill from raw milk each year--a drop in the

bucket compared with the 14 million the CDC says are known to contract

food-borne illnesses each year.

Absent a serious health risk, agriculture agencies are charged with

encouraging expansion of local farming. New York's Ag and Markets says

its " mission is to foster a competitive food and agriculture industry

that benefits producers and consumers alike. " CDFA says it " strives to

support...innovation and agricultural diversity. "

Hundreds of small dairies could benefit financially from agriculture

department assistance in making the transition to raw-milk production.

The Farm-to-Consumer Legal Defense Fund estimates it helps two or three

dairies each week convert from conventional production to raw-milk

herd-share legal arrangements. But when it comes to small dairies trying

to take advantage of an opportunity to become viable businesses, mission

statements seem to get tossed out the window.

This article can be found on the web at:

http://www.thenation.com/doc/20080317/gumpert

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