The Complete Patient

The notion that a hearing officer engaged by New York’s Department of Agriculture and Markets would recommend a ruling in favor of the agency, and against Barb and Steve Smith, is no big surprise. What is surprising is the logic the officer, Susan Weber, used in her 21-page report--just sent last week to the Smiths--which is based on two days of hearings held last January concerning charges against the Smiths and their Meadowsweet Dairy LLC. The Smiths established a limited liability company—really, a type of herdshare—and argued that the LLC placed them outside the tentacles of NY Ag & Markets. (For previous postings about Meadowsweet and the Smiths, use the search function.)

Even less of a surprise is that the Ag & Markets Commissioner, Patrick Hooker, accepted the hearing officer’s recommendations and ordered the Smiths to abide by state regulations, including obtaining a raw milk permit, if they want to make unpasteurized milk available to their shareholders. Of course, that would mean they couldn’t make other products like yogurt, cream, butter, and buttermilk available. Hooker actually went further than the hearing officer, ignoring even her two modest favorable conclusions for the Smiths-- that no raw-milk sales had occurred, and that the Smiths' milk hadn't violated coliform standards, since none exist  in NY for raw milk.

What’s interesting about Weber’s report is that it seems to be telling the Smiths: You may be doing everything correctly in using an LLC to distribute milk to shareholders, but it’s illegal all the same.

For example, to the argument by the Smiths' lawyer, Gary Cox (of the Farm-to-Consumer Legal Defense Fund) that New York’s milk laws don’t prohibit herdshare-type arrangements, hearing officer Weber states: “There is the definition of raw milk, which appears to require a sale; there is the consumer who must apparently purchase in order for the milk she or he drinks to be regulated under law; there is the milk plant which must apparently receive milk intended for pasteurization or not qualify as a milk plant. Respondents would have us hang our hats upon these inconsistencies, find them dispositive, and dismiss the State’s case. To do so would fly in the face of common sense and defeat the clear legislative intent to cover the field of dairy regulation for the protection of public health.”

Yes, “protection” over all.

Similarly, she states: “I conclude that the arrangement between its members and Meadowsweet for the distribution of raw milk and raw milk products is not a purchase and sale transaction, but is a distribution of profit based upon the value of the members’ contributions.”

But then she adds, “It is well established that the law cannot be employed for an illegal purpose…Consequently, while members may obtain raw milk and raw milk products at the farm as a distribution from the LLC, I find that the LLC must be in compliance with applicable laws governing manufacture, processing, handling, and distribution of dairy products.”

Shades of Catch-22?

Finally, she expresses concerns about sanitation violations discovered by Ag & Markets, including “the north wall is caked with old manure, chickens were found roaming free in the milking barn,” along with flies, mouse droppings, and spider webs observed. Even though she allows that “the Department offered no evidence that there was any actual injury to the public or any intent to deceive consumers by offering product which was not what it was purported to be,” the claim about unsanitary conditions “was the most compelling”to her.

To Weber, “The Department’s evidence establishes beyond doubt that the conditions at Meadowsweet in October of 2007 were not sanitary, that the products produced, processed and manufactured there may have been contaminated with filth or rendered diseased, unwholesome or injurious to health.”

Never mind that real farms have for ages had chickens intermingling with cows, and have had spider webs and mouse droppings around…or that no members of the LLC-herdshare have become ill, or even made a single complaint to any governmental authorities, after numerous visits to the dairy to pick up their milk.

It’s easy to dismiss this report as inherently biased and also point out that it isn’t yet enforceable because the Smiths have a court case pending against Ag & Markets in state court seeking exemption from Ag & Markets of the LLC-herdshare model.

But the fact is that a quasi-legal opinion has moved the nation's second-largest state a large step closer to rendering herdshares illegal. You can be sure the judge in the Smiths' case will read the hearing officer's report. This NY decision comes after a court in the largest state sided with the California Department of Agriculture a few months ago in refusing to suspend enforcement of the state’s 10-coliform-per-milliliter coliform standard.

In both cases, the voices of the judiciary were essentially saying: You raw-milk people may have logical arguments, but we mortal judge types don’t pretend to really understand this stuff, so we’re accepting everything the regulators tell us, whether it’s true or not, because...they're regulators and, doggon it, we trust them to protect our health. And you few who don’t trust them to protect your health, well, that’s your problem.