The Complete Patient

Okay, I never pretended to be a poet. But I was prompted to try some alliteration because of a new development in the Farm-to-Legal Defense Fund case against the U.S. Food Administration in federal court.

This case is still at such an early stage that an FDA motion to dismiss hasn't been decided, but I would venture that the judge, Mark W. Bennett, is beginning to raise his eyebrows a bit about the sanity of this world of raw milk.

The judge in the last few weeks heard arguments via phone from the two sides about the FDA's motion to dismiss the case (already famous for its "no absolute right...to any particular food" claim). Now, the FTCLDF has filed a "motion to admit newly discovered evidence" in the case.

The evidence is a series of emails between a reporter with Iowa Public Radio and an FDA press official in which the FDA first admits it's okay for consumers to transport raw milk across state lines, and then changes its mind.

The reporter, Sarah McCammon, in late May inquired into the FDA's position on consumers bringing raw milk from a state where it can be sold into a state where it can't be sold. The FDA press person, Michael Herndon, at first put off the question: "We don't comment on on-going lawsuits publicly."

Three weeks later, McCammon came back with another tack: "One factual question--is it illegal to purchase raw milk in a state where buying raw milk is legal, and bring it into a state where raw milk sales and purchase are illegal, for one's own use?"

To which Herdon responded the same day: "Illegality is introducing the raw milk into interstate commerce. Federal regulation prohibits the introduction into interstate commerce of any unpasteurized milk product in final package form, intended for human consumption..."

To which McCammon stated: "OK, that's pretty technical language--would it be illegal for me to buy raw milk in Nebraska (where sale is legal) and bring it back to Iowa (where sale is not legal)?"

Which elicited this surprising admissions from Herndon: "The federal law prohibits the sale and transport of raw milk products across state lines. It does not prohibit an individual from purchasing a raw milk product for personal use so the answer is no."

McCammon, quite understandably, didn't fully believe what she was reading, so tried to confirm: "So an individual can purchase milk for personal consumption and bring it across state lines for his or her own use?"

At which point Herndon must have become uneasy about the information someone at FDA was feeding him, because a few hours later he wrote: "After discussing your question with others here at FDA my interpretation of the law was totally incorrect. As you are aware one of the issues of the pending litigation in Iowa speaks to this very question so it would be inappropriate for me to respond while the case is pending. I apologize for any confusion my previous emails may have caused you because of my ignorance of the facts. I suggest that you read the government brief in the Iowa case..."

Herndon is an experienced and professional press person, so one can only begin to imagine the tenor and tone of conversations he was having with different officials within the FDA, but they can't have been very pleasant...or logical.

It should be noted that the actual FDA position stated in its first response to the FTCLDF suit last April was somewhere in between the two positions Herndon suggested. It noted that “the government has neither brought nor threatened to bring a single enforcement action against consumers who purchase unpasteurized milk for personal consumption or retailers of such products who do not engage in interstate commerce.” It thus seemed to cast itself as benign dictator.

The FTCLDF in its request to admit this late evidence says that if the FDA's motion to dismiss is upheld, FTCLDF "would need to conduct discovery on the FDA's change of interpretation" on the prohibition of interstate raw milk sales.

To say that the U.S. Food and Drug Administration is an opaque agency is an understatement. Maybe because it has screwed up so often in approving drugs that later turn out to be highly dangerous, its officials are not inclined to speak out or, when they do speak out, to depart from the party line.

That's why the confusion about the interstate raw milk prohibition is so noteworthy. More likely, it's not confusion but rather disagreement within the agency about what it can and can't do. We may be seeing the interstate prohibition on raw milk shipments crumbling before our eyes. 

Video scene from the multi-agency raid on Rawesome Foods June 30. It's often said that a picture is worth a thousand words. So it is with the video showing officers from the Los Angeles District Attorney entering the Rawesome Foods warehouse with guns drawn.  Though there have been a number of raids on farms and buying organizations, this is the first time I'm aware they've been captured on video. Seems the agents didn't cover up the surveillance cameras quickly enough...or maybe they wanted to be seen in battle mode, for the full intimidation effect.

I spoke with James Stewart, the manager of the Rawesome Foods warehouse (which he launched together with Aajonus Vonderplanitz in 2005) on Friday, and he told me that even before the raid, membership growth had been steady and accelerating. It grew to 500 over the first three years, and in the last two years has increased to 1,500 member. Just since the raid took place three weeks ago, membership increased by 200. And that was before the video of the raid became public. I can only presume membership growth will continue to accelerate.

And in that dynamic, the dilemma facing the authorities becomes clear. They desperately want to make the food clubs go away, but their raids have the opposite effect: they serve as better marketing than any advertising or special promotion ever could.

It's not unlike what Mark McAfee of Organic Pastures noticed in 2006 and many other raw dairies have noticed since as a result of being shuttered for possible pathogens: their business increases in the aftermath. The regulators are discovering that the more they turn up the heat on producers of real food, the more they educate the market about the seriousness of the official desire to deprive people of access to nutrient-dense foods, and the desperation inherent in their raids and other actions.

In the wake of the recent raid, Stewart tells me, "People have confided in me that they are ready to take a stand...They are ready to stand up. You have the entire Baby Boom generation concerned about health." So much for the intimidation effect.

All of which raises another risk in these raids: Each time the authorities come in pretending they are Wyatt Earp or The Lone Ranger, the greater the chances become for a provocative incident. Increasing numbers of people are going to become ever more aggravated, and some angry consumer somewhere is eventually going to refuse an order to move out of the way or put down the raw honey or kimchee, and an officer's revolver is going to go off.

What then? For starters, we'll have the ultimate bureaucratic dilemma: Does that injury or death from gunshot wounds count as a victim of food safety, or assault/murder? In our ever-more-repressive enforcement atmosphere, don't rule out the former.

***

Canadian raw milk producer Michael Schmidt continues to surprise. First he shows off his legal skills by representing himself in court and beating back a team of government lawyers to get himself exonerated on charges of violating the Ontario dairy laws. Next he displays his musical skills by writing an opera. Now Schmidt is letting Canadians know about his political skills as he declares his candidacy for a seat in the Ontario parliament in. Good luck!

Last week, following my July 15 posting, Barney Google addressed a sharp complaint my way about the Farm-to-Consumer Legal Defense Fund.

"You keep promoting a legal team that has yet to show a victory in the raw milk battle...They keep promoting these herdshare/cowshare/farmshare programs, but everyone that has come under fire is still under fire or tied up in court...We farmers are in worse shape now than we were before because of the legal advice the FTCLDF is giving. Look at the cease-and-desist orders, look at the warrants and confiscations. In Wisconsin, Ohio and New York it's all the same. Meadowsweet has been tied up in court for three years...If this is a valid business model, where are the victories?"

Before I provide my response, let me say that Barney Google isn't alone. Complaints about FTCLDF seem to crop up every so often from various people.

One of latest objectors is Aajonus Vonderplanitz, the raw food advocate who runs a nonprofit organization, Right to Choose Healthy Food. One of the organization's food distribution sites, Rawesome Foods in Venice, CA, was the site of a multi-agency raid three weeks ago.

Vonderplanitz and his RTCHF push a different "business model" than FTCLDF--a lease-based model. Quite simply, RTCHF leases the land and/or animals of about 40 farms around the country, which provide products, including raw dairy, to many hundreds of RTCHF members.

As I understand it, the lease-based model differs in a number of ways from the herdshare/cowshare model. A lease is akin to rental, while a herdshare/cowshare is akin to ownership, which would seem to be an advantage for the herdshare/cowshare. But leases have a lot more solid legal standing in business than herdshares/cowshares.

Land and buildings, not to mention cars, trucks, and machinery, are commonly leased every day around the country, and have a long history in agriculture, going back to sharecropping, which became common in the days following the U.S. Civil War. Herdshares and cowshares? The main court test in this country has been in Ohio, where a state court upheld the concept in 2006, and the state decided not to appeal the case. I explore the distinctions in my latest article on Grist.

For these reasons, Vonderplanitz is frustrated that the FTCLDF has shied away from the lease concept, especially given that he's now taking considerable official heat. "I've shown Sally Fallon and the Farm-to-Consumer Legal Defense Fund people the lease agreements," he says. They've declined to embrace the idea and the result, in his view, has been something akin to what Barney Google described.

The lawyers at FTCLDF said they didn't want to comment publicly about the Vonderplanitz assessment, in the interests of not sowing divisions in the food rights movement. But they have made clear previously that they think the ownership privileges conferred by herdshares and cowshares are preferable to the more limited privileges of leases.  

Since I'm not a lawyer, I can't say which approach is best. I do find the long history and strong standing of leases in our legal system to be reassuring. RTCHF has been using the lease model for eight years and, as far as I know, its farmers haven't been legally challenged by authorities. Yes, there have been raids. Aajonus' Rawesome foods endured one in 2005 in Venice, and no charges resulted from it.

As one farmer has pointed out to me, Wisconsin dairy farmer Vernon Hershberger, who has embraced the lease model, is producing raw dairy products for consumption, while the Zinnickers are dumping their milk and trying to get Wisconsin courts to sign on to the couple's hershare model, with backing from FTCLDF.

If it's results you want, then you have to say RTCHF is getting the better results...up to now.

Now, no one can say what might result out of the recent raids of Rawesome Foods and Sharon Palmer's farm (she has a RTCHF lease). There could be indictments and long court battles, forcing them to fight the feds for years.

Then again, the feds may well confine themselves to harassment, perhaps working with local officials seeking the less risky tack of trying to force RTCHF outlets to obtain health and retail licenses. But even here, a loss could encourage private groups to widely expand their distribution of nutrient-dense foods--something Big Ag would definitely not approve of. And a direct government challenge to the leasing model--for example, challenging RTCHF on the basis of the ban on interstate commerce in raw milk--could be more risky than the feds will tolerate, since they could well lose. Then, the raw milk spigots everywhere would be opened wide.

Now, some individuals in the food rights movement don't like me doing such public analysis and assessment. But I've come to realize that one of the big advantages we have over the government overlords is our transparency. They work in secret, trying to figure out ways to stymie the public will. We are upfront about what we want, and gain ever more supporters.

Moreover, they are cowardly. All you have to do is view the video from Rawesome Foods of the agents entering the premises in Venice three weeks ago, with guns drawn, to get an idea of how pathetic they are. Guns drawn coming into a food outlet? Maybe they worry about getting too many fumes from healthy food. No, they are so distant from their subjects that they are afraid of ordinary unarmed citizens.

I see the division between RTCHF and FTCLDF as healthy. Just as we are entitled to choices in our food, we should also have choices about which legal course to choose and support. I support both RTCHF and FTCLDF, and whomever else comes forward to lend a hand to farmers and consumers in this ever expanding struggle. It's going to be a long and tough battle, and the enemy has become increasingly aggressive.

When I hear the stories, and see the videos like that of the agents at Rawesome Foods, I find myself thinking about Winston Churchill's eloquent and, ultimately electifying, rallying cries to his countrymen during 1940, following the worst defeats against the Nazis. Do yourself a favor, listen to this recording. If you don't have time for the whole ten minutes, listen to the last 70 seconds, beginning at the 8-minute-50-second point, where he concludes, "We will fight in France..." Our situation isn't nearly so desperate...yet.

My list of suggestions for handling a food raid, posted on Grist, have attracted lots of additional suggestions, beyond the five I listed. Among the most frequent suggestions among the 99 comments are various techniques for backing up computers, including ideas for handling backup disks and encrypting data. I've had several farmers tell me, in effect, "Yeah, I know I should do these things, but I'm so busy, I keep putting it off."

If nothing else, at least subscribe to an online backup service that automatically backs up your data each day. (One such service is Carbonite, which charges $55 a year to back up your data onto its servers.)

In the technology arena, I was reminded by several people about something I didn't discuss: how to handle web sites for private food and buying clubs. The problem is that regulators, being basically lazy people, spend a lot of their "investigative" energy surfing web sites seeking easy targets. If you don't have a web site, or at least limit your web presence to a password-protected site, they'll have much more difficulty finding you.

If you do keep a web presence, be sure the data, like members' names, are stored off-site, and that the information is highly encrypted. Ideally, you want it to be very difficult for the police and regulators to access your member data.

The down side of not having a web presence, of course, is that it's much more difficult to communicate with members beyond email. I don't have the best answer for this--don't think anyone does. We'll have to see via experience whether having a Facebook page is worth the risk. Yes, risk assessment will be big.

A few people have written or posted items at Grist to the effect that trying to take videos of police can lead to heavy intimidation. Taking videos is generally legal, but cops can tell you it isn't, and later it's your word against theirs. Wayne Craig forwarded a very interesting ABC News report about the inconsistencies, intimidation, and legalities of video recording.The main thing I take out of it is to ignore police threats to charge you with some additional offense related to taking a video.

My suggestion, based on my journalistic and public relations experience, is to simply try to take your videos without saying anything. Ideally, use one of the tiny video cameras that aren't much bigger than a flash drive. Don't worry about legalities. The main value of a video is for public relations purposes, in any event. If you are charged, be prepared to put a segment of your video on Youtube, and to hand it out to the news media. Remember, the person who took the video of Rodney King being beaten by Los Angeles police in 1991 didn't ask permission.

Finally, one farmer chastised me for giving away too many good tips, and thereby providing the regulators with insider info. Believe me, the regulators and cops know all the things I suggested, and more. They're in the business of intimidating and brow-beating citizens. They don't appreciate the kind of suggestions I and others are putting out there, since it levels the playing field, which is the last thing they want. They like to keep their work quiet and mysterious. 

***

Why are the federal, state, and local authorities so upset about raw food advocate Aajonus Vonderplanitz that they would send nearly the equivalent of an army division to raid his Rawesome Food warehouse in Venice, CA,  three weeks ago? Maybe it has something to do with the fact that he's figured out a legal mechanism to protect private food buying groups and the farms that supply them. I describe the Vonderplanitz approach, and how it's held well legally, in a new post at Grist.

It's that special time of year in the Northeast, when the corn, tomatoes, beets, Swiss chard, blueberries, raspberries, and even peaches are resplendent in their ripeness. For a couple months now, we'll have an assortment of locally produced delicacies.

But this year, I've noticed some new products showing up at farmers markets in Vermont and New Hampshire. Lots more sellers of chicken, for example. And more fresh chicken, in addition to the flash-frozen variety.

Also, more sellers of eggs. And not just chicken eggs, but duck eggs as well. I sampled some duck eggs, and they sure are voluptuous (see my attached photo showing a chicken and duck egg frying side by side, though granted, the chicken egg isn't as orange as some are). The chicken eggs still strike me as tastier, though it could be I'm just more used to them.

And last but not least, I'm seeing more sellers of raw milk at farmers markets, at least in New Hampshire, where it is legal to sell raw milk at such outlets. One farmer, in his first year selling at a farmers market, told me he milks two cows, and works a full-time job as a kitchen aid at a local college; the other milks five cows and is in his second year selling at the farmers market. I like to see entrepreneurs of all types, but it's especially encouraging to see raw milk entrepreneurs. You gotta be gutsy to push ahead in the current political environment.

***
Further on the business considerations, Tim Wightman makes an important point in the numbers he presents on farmer costs following my previous post--"Bulk buying can not be utilized, and you pay through the nose for everything." This is a truism for pretty much any artisinal food product, or any artisinal product of any type.

Because artisinal producers are committed to producing top-quality products, they use top quality ingredients, and avoid cutting corners like the big-volume producers.

In the end, consumers receive a product impossible to purchase via the factory system-- milk from a particular cow or group of cows that have been fed real food and treat respectfully, or even lovingly. The result nearly inevitably has to be a more nutritious product. As Alice Riccabona captured so well in her comment about the doctors following my previous post, some people care a lot about such differences, and others don't.

***
I gave a presentation Sunday about my favorite subject at the SolarFest gathering in Tinmouth, Vermont.

A highly energetic crowd of more than 50 people showed up at 9 a.m. on Sunday, which I thought was pretty impressive (since I'd be hard pressed to be at many presentations at such an hour on Sunday). Lots of questions and comments about such things as the safety of pasteurized milk, A1/A2 milk, the future of food sterilization efforts.

When I talked about the harassment of New York raw dairy farmers like Chuck Phippen, who's been shut down nine times for listeria contamination (even though no illnesses), a man interjected that he was a customer of Phippen's dairy who happened to be at the farm one of those times when two inspectors from the N.Y. Department of Agriculture and Markets showed up with their listeria findings. "They warned me that I might not want to take the milk I had bought. I told them I wanted the milk and would take my chances."  

In that vein (sensitivity to the regulators) my Grist article about the quickening pace of farm and food club raids remains the site's most viewed post, five days after it went up.

In new media coverage, there's this from NPR--educational, I suppose, for the total newbie, but disappointing journalistically. Interestingly, though, the anti-raw-milk "expert" quoted, David Acheson, was someone I quoted extensively in a post last month, seemingly offering an olive branch. The raw milk consumer, Liz Reitzig of Food Network fame, does a great job once again of explaining her reasons  for consuming raw milk and feeding it to her family.