Setbacks and Bizarre Turns in the Raw Milk Saga

Advocates for the right to choose raw milk still face an uphill battle.

Got raw milk? Increasingly that question appears difficult to answer in the affirmative.

For fans of raw milk and those who, like me—a non-consumer of either raw or pasteurized dairy milk—fight for food freedom in all its forms, the past year or two have been notable for several setbacks on the unpasteurized dairy front.

The FDA has increased pressure on states to crack down on raw milk within their own borders. And the Centers for Disease Control and Prevention recently stepped up its efforts against raw milk after the agency claimed its recent analysis "found that the incidence of dairy-associated disease outbreaks caused by nonpasteurized dairy products was 150 times greater per unit consumed than that from pasteurized products."

Farmers and others across the country who provide raw milk to consumers—from the Mid-Atlantic to the Midwest, the Northeast to the West Coast—have been hauled into federal and state courts and charged with illegally selling raw milk.

In one instance last year, Pennsylvania Amish farmer Dan Allgyer, whose farm was raided by armed sheriffs, U.S. Marshals, and FDA agents—something I wrote about last year—was forced by court order to stop providing raw milk to consumers in Maryland and the District of Columbia.

In another well-known instance, federal and state agents carried out two raids on the Rawesome cooperative in Venice, California. After the latter raid, the owner of Rawesome, James Stewart, was jailed and his bail set at more than $100,000.

(Article continues below video "Raw Foods Raid: The Fight for the Right to Eat What You Want")

While S.W.A.T. raids on food coops may strike you as the height of absurdity, the Rawesome saga took an even more bizarre turn last week. Stewart, who had missed two court dates and who some believed was in the process of jumping bail, was seized and handcuffed by bounty hunters on a Los Angeles-area street—a capture that was caught on video.

Odder still was news about who called in the bounty hunters: Marc McAfee—the owner of California's largest unpasteurized dairy, Organic Pastures, and the man who had put up his family home as collateral in order to get Stewart out of jail in the first place.

"I was the one who hired the bail agents to arrest James," McAfee told Food Safety News.

And who could blame McAfee, who stuck his neck out for Stewart only to see Stewart thank him Assange-style by putting McAfee at risk of having a lien placed on his home.

David Gumpert, author of the definitive book Raw Milk Revolution, has an excellent post on Stewart's capture at his blog The Complete Patient. Cookson Beecher of Food Safety News has an equally good write-up.

All of this drama and politicization of raw milk wasn't always the case in this country (especially, for obvious reasons, prior to the advent of pasteurization). In fact, it was just about 100 years ago—1908, to be precise—that the first American laws began requiring some dairy milk to be pasteurized. (For those interested in learning more about the politics and other machinations behind the early bans, I recommend Alan Czaplicki's easily accessible 2007 article, "Pure Milk is Better Than Purified Milk," in the journal Social Science History.)

At the national level, it wasn't until 1987 that FDA regulations mandated that unpasteurized milk could no longer be sold across state lines. The agency had successfully bucked pressure to implement such a ban but was forced to do so thanks to a federal judge's 1986 ruling in a lawsuit launched by Public Citizen, the group founded by Ralph Nader. Without that lawsuit, it's at least debatable whether a federal ban would be in place today.

In spite of all of these very real recent setbacks, there are some bright spots. For example, last year's successful Lemonade Freedom Day, now rebranded as Lemonade and Raw Milk Freedom Day, is taking place across the country on August 18.

Another bright spot I'll highlight here—a 2011 Wisconsin state court case—is typically viewed by most advocates and raw-milk consumers as a detestable affront and setback. In that case, Judge Patrick J. Fiedler wrote famously that the plaintiffs had no fundamental right "to consume the milk from their own cow" or "to produce and consume the foods of their choice."

Raw milk proponents were outraged. But in Judge Fiedler's words I see more than a glimmer of room for hope. Why?

Because the judge—now in private practice—also wrote in his decision that the plaintiffs' "constitutional claims are 'wholly without merit' because they are extremely underdeveloped" and that the court is therefore "unwilling to declare that there is a fundamental right to consume the food of one's choice without first being presented with significantly more developed arguments[.]" (Emphasis added.)

To a student and scholar of constitutional law, I most certainly read such wording as a foot in the door for backers of food freedom. It doesn't take any reading between the lines to see that that Judge Fiedler's much-criticized holding was practically inviting raw-milk proponents to go back to the drawing board and craft a better argument that he and fellow jurists might be able to embrace so as to tie raw milk sales (and larger issues of food freedom) to enumerated or unenumerated fundamental rights.

Am I reading the holding correctly? I asked Mr. Fiedler (who had already left for private practice) in an email earlier this year:

I believe your words do not paint you as unsympathetic to the right the plaintiffs claim. If I have read your holding and clarification correctly, you are exercising judicial restraint in the area of fundamental rights—a practice I admire—rather than slamming the door on the notion of a fundamental right to food choice. In fact, I read your holding not as an attack on [food] freedom but as an invitation to advocates to craft a better argument that might compel you (and other judges at the state and federal level) to support the claimed right.

Fiedler's reply was a polite one in which he indicated his general unwillingness to comment on this (or any other) decision he had handed down.

While that's unfortunate—as are the many examples of setbacks over the past year or two—I'm heartened by the notion that there are judges like Fiedler who appear open to the idea of food freedom of choice, even if they are not yet willing to embrace that right as one protected by the Constitution.

For fans of raw milk and advocates of food freedom, our job over the next year is to get past these setbacks and work to craft legal arguments grounded in history, liberty, and precedent that will convince courts to embrace the rights that seem so obvious to many of us now.