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The Fight for Food Rights

Will a crackdown on unregulated farm goods ignite a new civil rights movement?
Food Rights

Over the past two decades Americans have taken unprecedented interest in the way food is produced. Those who discover the grim facts tend to move toward traditionally and locally produced foods. Some are motivated by health concerns, others by environmentalism or alarm at the ill treatment of animals in factory farms. Many also appreciate the sheer sensual pleasure of a more traditional diet and way of life. As it happens, the neatly packaged wares lining supermarket aisles usually aren’t as tasty or nourishing as what you get from local farms.

Small farmers and food producers welcome the newfound interest in their work, given that industrialization and consolidation have imperiled their craft. As David Gumpert notes in Life, Liberty, and the Pursuit of Food Rights, “The United States lost nearly 90 percent of its dairy farms between 1970 and 2006, even while the number of milk-producing cows declined only 25 percent.” Now farmers increasingly sell directly to consumers, freeing themselves from the relentless downward pressure on prices that comes with selling to large distributors.

That merciless pressure gave us the $1 double cheeseburger and the factory farm—otherwise known by its creepy acronym, CAFO, for “Concentrated Animal Feeding Operation.” As we’ve become accustomed to dirt-cheap prices at the supermarket, the drive-through, and just about everywhere else, we’ve overlooked the costs imposed by the CAFOs’ filthy conditions, toxic waste products, and confined, sickly cows pumped full of antibiotics. In that light, the $1 cheeseburger seems like an awful swindle. And when consumers pay more for high-quality meat from a nearby farm, interacting with people who raised the animals humanely and with a sense of stewardship toward the land, it makes economic sense.

But farmers and consumers who want to secede from America’s industrialized food system eventually cross swords with state and federal regulators. Originally intended to oversee large, capital-intensive operations, these regulators now police small producers who often can’t afford to abide by requirements designed for much larger ones. Amid the intensifying clash between regulators, police, and big agriculture on one hand and small farmers and their customers on the other, Gumpert’s titular “food rights” concept was born.

America’s food regulatory system heavily favors the goal of eliminating pathogens from the food supply over promoting health broadly understood. One could subsist entirely on Mountain Dew, Slim Jims, and Lucky Charms without any interference from the government—which is as it should be in a free society. Of course, the gas-station gourmand invites chronic disease, stratospheric costs for medical care and prescription drugs, and an early death. But should he eschew his modern diet for traditionally produced farmers’ goods, he is likely to encounter all sorts of legal obstacles. If he develops a taste for raw milk, he may as well have a target on his back.

Much of Gumpert’s book focuses on this forbidden commodity—unpasteurized and non-homogenized (“raw”) milk—and the rebellion of milk-drinkers and producers amid crackdowns and legal struggles. Gumpert skillfully tells the story of the food-freedom movement, and of raw-milk producers in particular, here and on his blog, “The Complete Patient.”

Raw milk is uniquely fraught. Small farmers do face obstacles in selling naturally raised meats, but they benefit considerably from the rise of farmers’ markets across the country. Raw milk, on the other hand, is impossible to buy legally in many states and has been subject to draconian crackdowns, sometimes involving undercover investigators and SWAT-style raids. Raw-milk drinkers, undeterred, circumvent the law through novel contractual arrangements of uncertain legality.

Why the intransigence on both sides over something as mundane as milk? The industrialized production system requires the sterilization of milk through pasteurization. The system demands that milk have a long shelf life and travel great distances from cow to fridge—and betray no sign of its less-than-sanitary origins. In the process, raw-milk partisans say, it’s stripped of a broad array of health benefits. Many of their claims are as yet unsubstantiated by scientific research—though a large 2006 study of 15,000 children in Europe (where raw milk remains generally legal) suggested that those who consumed raw milk had lower incidences of asthma and allergies. The authors of a similar 2011 study concluded that certain whey proteins in raw milk, which are reduced or destroyed by pasteurization, probably account for the difference. Raw-milk advocates also claim that pasteurization kills off not just pathogens but also beneficial, health-promoting bacteria in milk.

Regulators and their allies, however, dismiss health claims for raw milk as fantasy and pseudoscience, condemning the product as inherently unsafe. Indeed, a number of outbreaks of foodborne illness have been associated with raw milk. According to the Centers for Disease Control, raw milk has been responsible for two deaths and hundreds of illnesses in the United States between 1993 and 2006. Gumpert concedes the heightened risk but dismisses CDC estimates of foodborne illnesses in general as “wild extrapolations.” Many enthusiasts suspect that hostile regulators are quick to home in on reports of illnesses associated with raw milk, thus inflating the reported number of outbreaks in relation to other foods.

While the health claims and concerns alike remain nebulous, the law regarding raw milk is a thicket of detailed federal and state regulations. The act of drinking raw milk is legal in every state, and farmers and their families can consume milk produced from their own cows. But that’s where the simplicity ends. Federal regulations bar the transport of raw milk across state lines for sale. In some states, all sales of raw milk for human consumption are illegal. Among those states, though, several allow raw milk to be sold as “pet food”—even when it’s clearly intended for human consumption. Other states bar retail sales of raw milk but allow it to be sold directly from the farm. Several states, including California, allow for regulated retail sales of raw milk.

Farmers and consumers have responded by circumventing the regulated food system, with limited success. One method is the private food club, in which members pay an annual fee to gain access to farmers’ products. An early example was the Washington, D.C., group Grassfed on the Hill, which distributed milk, meat, eggs, and fermented vegetables from a Pennsylvania Amish farmer named Daniel Allgyer. He had previously supplied milk to large dairy processors for $2 to $2.50 per gallon but was able to more than double his price by selling directly to consumers. He also found a market for yogurt and cheese for the first time. (Large processors tend to buy only milk, preferring to make derivative products themselves). Following a lawsuit by the FDA, a 2011 ruling barred Allgyer from continuing to supply food to Grassfed on the Hill, and he became a carpenter.

Another model for distributing raw milk is the cowshare or herdshare, in which the consumer purchases a share of a dairy cow or herd. The price paid for a gallon of milk is said to be the fair value of the farmer’s labor in caring for the herd and producing the milk. Technically, no retail sale has taken place: members are taking delivery of products they already own. A handful of states that prohibit the retail sale of raw milk have ruled herdshares legal by statute, regulation, or court decision. In others, the legality is ambiguous.

Over the past several years, small farms and buying clubs have come under attack, with numerous raids, arrests and prosecutions by state and federal agencies. Gumpert offers a number of reasons for the apparent crackdown. First, highly publicized outbreaks of foodborne illness stemming from dangerous conditions at factory farms raised alarm. In 1992, beef from the fast-food chain Jack in the Box tainted with a virulent strain of E. coli sickened hundreds of people and killed four children. Lawmakers and the media brought intense scrutiny to the issue of food safety after that. This period also saw the rise of a young attorney named Bill Marler, who had landed record-breaking settlements for victims of the outbreaks. “The publicity made Marler the go-to lawyer for food safety cases,” writes Gumpert, arguing that the tactics by which he made a name for himself have contributed to “an ever-mounting—and at times unwarranted—climate of fear around food safety.”

In a post-9/11 climate that favored stronger law enforcement, the 2002 Bioterrorism Act granted new powers to the FDA with the ostensible goal of protecting the food supply from terrorist attacks. Mission creep soon set in, Gumpert writes, and he details evidence of FDA coordination with state prosecutions of food clubs in Minnesota, Wisconsin, and Georgia.

In one high-profile case, after an undercover investigation by the FDA, the California Department of Food and Agriculture, and the L.A. County Health Department, a food club called Rawesome was raided by state, county, and federal agents. Three of those arrested became known as the “Rawesome Three”: James Stewart, who co-founded and headed Rawesome; Sharon Palmer, a small farmer and supplier of eggs and dairy; and Eugenie Bloch, who helped Palmer sell her goods to local farmers’ markets. A year later, Rawesome was shut down for good. The prosecutions gained widespread attention but never became a cause célèbre, thanks to infighting among Rawesome’s founders and erratic behavior among the Rawesome Three. James Stewart skipped court appearances and thus violated bail and was arrested by three bounty hunters in an incident captured on YouTube. Sharon Palmer was accused of outsourcing eggs represented as having been produced on her farm and obtaining loans from Rawesome members under fraudulent pretenses.

In another recent case that attracted national attention, a Wisconsin farmer named Vernon Hershberger—who “had been born into an Amish community but left to live a more conventional life”—had organized customers of dairy and meats from his Grazin’ Acres farm into a private club. In 2010, his farm store was raided by Wisconsin officials who sealed refrigerators in his store and poured blue dye into a huge vat of his farm’s raw milk. Following a jury trial, in May 2013 Hershberger was acquitted of three of the four charges against him, which involved operating his business without retail and dairy licenses required by the state. (The fourth charge was for violating a holding order and continuing to sell his goods, which Hershberger had admitted.)

In addition to courtroom battles against state and local regulators, farmers are taking their cause to the voters. In Maine, new restrictions on small dairy farms met with spirited resistance. Opponents launched a campaign for town ordinances that would essentially nullify state law, allowing farms to sell unregulated food directly to consumers. Sedgwick, Maine in 2011 became the first town to pass a Food Sovereignty ordinance, and five other Maine towns soon followed its lead. The movement hit a roadblock in May, however, when a judge ruled that municipalities do not have the power to exempt themselves from state licensing requirements.

Throughout Life, Liberty and the Pursuit of Food Rights Gumpert expresses sympathy for the idea that “food rights”—the principle that consumers should be able to obtain the food of their choosing—constitute rights on par with others guaranteed by the Constitution. Indeed, this liberty was so self-evident at the time of Constitution’s drafting that no one saw the need to codify it. Like many other champions of an embattled cause, Gumpert invites comparisons to the civil rights movement, wondering when the food-rights movement will see its “Rosa Parks moment.”

Activists, then, look forward to a future in which “food rights” take their place beside religion, speech, and guns in the American pantheon of Constitutional liberties. But theirs is perhaps a better rhetorical strategy than a legal one: in a society thickly webbed with commercial regulations, courts are unlikely to recognize such absolute claims.

July/August 2013Nor are judges likely to accept the legal loopholes of food clubs and herdshares in which consumers own cows and pay farmers for their board, care, and milking at a price charged per gallon of milk. Thus no goods are technically bought or sold—but to the naked eye, the arrangement looks uncannily like customers buying milk from farmers, and judges can’t be blamed for seeing things that way. And food-rights activists are unlikely to attract wide support from a supermarket-faring public that is easily spooked by potentially unsafe foods. Most people don’t know or don’t care about the travails of eccentric refugees from the domain of Big Ag and Big Food. The invocation of novel rights to unregulated foods and lofty appeals to the civil rights movement are not going to foment a revolution against America’s regime of state and federal food regulations.

There’s reason to be skeptical of the localist ideal, too. Many members of private food clubs live in big cities and place their orders online, and their food will be transported hundreds of miles over several states. These buyers may be reassured by the fact that their milk and pork is coming from Amish farms, but the circumstances of its faraway production might be as opaque as those of products at the local Whole Foods. This commerce is happening on a large enough scale, and with goods traveling long enough distances, that it’s unlikely to escape scrutiny—and even sympathetic observers might question whether it should.

Raw-milk advocates nostalgically point to a time in the early 20th century when raw milk was legally sold throughout the country alongside the pasteurized variety. This milk came from dairies certified by an industry organization called the American Association of Medical Milk Commissions. The establishment of a similar organization to certify the producers supplying today’s private buying clubs could offer the public assurance that this milk was produced according to the industry’s best practices of sanitation. Similarly, if USDA standards for slaughtering animals or state permit requirements are designed for large producers, it’s conceivable that small producers wishing to operate outside that system could devise and adhere to an alternative set of reasonable but fair standards.

This isn’t to suggest that the stamp of approval from a private certification board will prompt the FDA and USDA to abandon their enforcement efforts: change at these agencies only comes from above. But we’ve seen court cases, such as Vernon Hershberger’s, in which juries prove to be less concerned with the letter of the law than with safe products and responsible producers, and are therefore willing to leave the parties to these buying arrangements to their business. If off-the-grid food producers were certified by third parties to have submitted to rigorous safety procedures, public opinion and the legislative climate might begin to turn.

Whatever the future holds for food-culture fringe-dwellers, Life, Liberty and the Pursuit of Food Rights is a compelling account of their clashes with government. Gumpert fosters a sense of justified outrage at the plight of the farmers who have lost their livelihood after these prosecutions. It shouldn’t be an ordeal, or require shady legal arrangements, to purchase or supply high-quality food.

There will be deaths from pathogens when people skate around regulations, whether on the farm or the factory floor. The industrial food system carries considerable health risks of its own, of which the public is only now becoming aware. We should be allowed to evaluate and act on these tradeoffs, as we do in other areas of life. These decisions shouldn’t be made for us, particularly not by regulators who are bound up with the industrialized food system that has made Americans so sick in the first place.

Mark Nugent is a TAC senior editor. 



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