Buyers Club Crackdown Continues: WI Moves on 5th Amendment Rights Illustrate Need for Clarity on Raw Milk
Thursday, October 29, 2009 at 09:37PM 
The buyers club crackdown, which saw members of a Georgia buyers club being forced to pour out their own milk, has now moved to Wisconsin. There, Max Kane, the head of the Belle’s Lunchbox buyers club that supplies raw milk customers in Chicago, has a court date December 21 to tell a judge why he shouldn’t answer questions from the Wisconsin Department of Agriculture, Trade, and Consumer Protection.
The Wisconsin DATCP previously subpoenaed Max Kane last spring, seeking information about the buyers club. He showed up at the session with copies of the U.S. and Wisconsin constitutions, and protested that he wouldn’t testify in violation of the Fifth Amendment’s protection against self incrimination.
He says the Wisconsin authorities have since responded that they are willing to grant him immunity against prosecution, in exchange for his testimony. When he refused that, he says, they offered him a further deal: just shut down your buyers club and we’ll forget the whole thing. He’s refused that as well.
He says that providing any information about his buyers club will potentially open him up to prosecution by the federal government, via the U.S. Food and Drug Administration. “I know that once I give them information, I will have a big target on my back, because the FDA will be waiting to go after me. They haven’t given me immunity.”
Max Kane has reason to fear the FDA. If you’ll recall, he obtained emails that incriminate the FDA in a plan hatched earlier this year to crack down on Midwest buyers clubs. And the judge on December 21 could conceivably rule that Max Kane is in contempt of court, and throw him into jail. There are precedents for such action, particularly against reporters and editors who refuse to hand over lists of sources in new stories involving suspects in criminal actions.
Clearly, Wisconsin is on the war path against raw milk. A number of raw dairy farmers in the state are understood to have received warning letters about their sale of raw milk.
Part of the problem in Wisconsin is that the rules about distribution and sale of raw milk are unclear. At times, the state has been permissive about herd shares and buyers clubs, and at other times (like now) it hasn't been. It allows so-called “incidental sales” of raw milk by dairy farmers--sales supposedly not central to the dairy--but the exact meaning of that term has never been spelled out in court.
A number of states operate like Wisconsin. They prohibit or don't specifically allow raw milk sales, but at different times they tolerate such sales to varying degrees via herdshares and buyers clubs.
That ambiguity, which allows regulators to crack down whenever the mood strikes them, is part of what makes disagreements about raw milk so complicated. One of the things I especially liked about food poisoning lawyer Bill Marler’s proposal a few days ago about allowing sales of raw milk directly from farms was his backing of a clear approach for distributing raw milk. I don’t think his way is necessarily the best, but it is clear and understandable, and in the current atmosphere of high emotions and rancor, clarity counts for a lot. That’s what the various sides should be working towards: clarity, rather than trying to get small-time distributors like Max Kane to violate Constitutional protections and forcibly testify against themselves.
***
As mentioned in the comments following my previous post, there is an interesting assessment of the raw milk debate (with some controversial comments about Mark McAfee of Organic Pastures), along with quotes from The Raw Milk Revolution.
And this nice review of my book. Thanks also to Gwen Elderberry for her very complimentary words in the reader comments on Amazon.
Reader Comments (46)
Max called me this week and asked me to speak and rally with him on the 21st of December in Wisconsin just before his court appearance. I will be there. I also told Max that I want very much to testify for him about the normalcy that can be the reality when raw milk is out in the open available to everyone and tested and inspected with standars, laws and regulations....like here in California.
I want the judge to hear from me in person so that there is no mistaking that raw milk can be a normal thing and available to everyone that chooses to drink it. The more normal raw milk can be treated the better for us all. We will see what Max's lawyer says to my offer.
This is a time when we must take a chapter from Martin Luther King and Cesar Chavez. This is a time when the consciuos must awake the sick and unconscious to teach them and lead them from the darkness of immune depression and the drug induced biologically paranoid pharma coma that America's citizens find themselves. Lets all turn out to show our support for Max as he places himself at the very foot of all our health liberties. In CA we fought our raw milk fight at the SB 201 hearings and we won our political battle when CDFA and the FDA refused to show themselves and Dr. Ron Hull, Dr. Ted Beals, Walter Robb ( COO of Wholefoods ), Mike Schmidt ( Blue Bus Raw Milk Freedom Fighter ) of Canada and even friends from France, Italy came and 1000 raw milk retailers and consumers testified and were counted at several hearings that were held. Now it is time to defend our nutritional rights where ever they are being denied to us. We are all Americans and we must fight like our lives depend on it....because it does. For some weirdly strange reason Raw Milk is our Wounded Knee ( taken from Joel Salatins words in Davids book ) and we must seize this time and this purpose to make a stand. If not we will find ourselves even more dependent on the sicko dead food immune depressing construct that threatens to dominate us all.
December 21st is the day.....be conscious, be active, be there.
Camera crews.... this is your chance to hear and see the raw milk peoples voices speaking truth to power from the heart and the gut. Guaranteed the FDA will not be there neither will the oposition....they are cowards. They can not stand against the people....they have no spines to hear the testimonials from the mother lions.
I have seen this before.
Mark McAfee
Also at our SB 201 hearings were David Gumpert, Liz Reitzig ( pregnant as ever ) and Sally Fallon....and so many other unnamed good people. That was a very good battle and it made all the difference in CA.
Now there are many assemblymen and senators and staffers in CA that drink raw milk. It was a turning point. Lets show them how normal raw milk can be. I will bring ten half gallons of CA Raw Milk with me and drink it with the demonstrators on the steps of the Wisconsin court house steps.
They will not take my raw milk from me...no matter were I physically stand on Americas soil.
Mark
Earlier this year on this blog I proposed "11 Great Thoughts" in an attempt to create a discussion framework for, among other things, voluntary standards for raw milk producers, coupled with clear warnings and helpful linkages to the public health system to assist in tracking problems when they occur. At the risk of boring everyone to tears, I've trimmed them a bit and repeat them here in the hope that they might do what I originally hoped, namely stimulate discussion with less heat and more light.
1) Mark McAfee's Citizens Petition to FDA on interstate raw milk shipments is modeled on Ron Paul's HR 778, which is still buried in the House Committee on Energy and Commerce. HR 778 is intended to get FDA totally out of regulating interstate commerce in raw milk simply based on its lack of pasteurization.
2) There should be some kind of consistent identification of raw milk and raw milk products coupled with standard warning language, whether basic such as current restaurant-style warnings, or more elaborate such as current California warnings.
3) Claims for health benefits may be made by any customer in the producer's advertising or sales forum only if in the form of personal testimonials or peer-reviewed scientific papers; or by the producer in the producer's advertising or sales forum only if in the form of a statistically accurate summary of unsolicited customer testimonials or peer-reviewed scientific papers.
4) Sales at retail, where the consumer is likely not to know the producer, should have increased testing under state law.
5) Transactions (whether sales, cow shares or otherwise depending on state law) direct from farmer to consumer whether on the farm or otherwise, or from farmers with herds smaller than a yearly-average [100] milking cows, should not be regulated other than by individual agreement.
[precedent for a similar exemption of raw milk, is the federal Egg Products Inspection Act (Pub. L. 91-597, 84 Stat.1620 et seq.) which exempts eggs direct farm-to-consumer or any sales from flocks of less than 3000 birds. At the state level, some states permit sales to various degrees and at the other extreme, some few prohibit all kinds of raw milk transactions; these issues will have to be dealt with at the state level.]
6) Parents are free to feed their children whatever foods they choose.
7) Farmers and individuals who provide raw milk or raw milk products to "others" should have legal protection in litigation (absent reckless behavior or actual knowledge of pathogens or other significant risk factors) so long as the proper identification and warnings (as in, #2) were provided and, in the case of "others" who are minors, so long as the identification and warnings were effectively communicated to the minor's parent or guardian prior to consumption.
8) Educational materials (directed to both producers and consumers) for the safe production, handling and processing of raw milk and raw milk products should be developed and widely distributed generally and in the producer's advertising and sales media.
9) An open, collaborative, transparent and scientifically rigorous and neutral approach should be taken by producers, consumers and public health officials in all instances of disease outbreak with a common commitment both to protect public health and to protect continued viability of responsible producers. Public health warnings which are not connected to outbreaks of illness or warnings which prove to have been unfounded, shall be followed by public health advisory followups which are communicated with the same level and extent of publicity as the initial warning, including exoneration of producers as appropriate.
10) Independent research (including analyses of testimonials and other real-life evidence as well as traditional reductionist studies) should be publicly funded to examine the nutritional value, environmental impacts of production, and the acute and chronic impacts on human health from raw and traditional foods and from industrially-produced foods.
11) Broader insurance availability for producers and other risk-sharing approaches should be developed as a counterweight to regulation-by-litigation.
[Farmers might consider voluntary production standards such as various kinds of testing protocols or simply rely on many years of problem-free operation, so as to induce insurers to write policies, otherwise the insurers will want to "go automatic" and insist on compliance with various regulations which is their current typical mode. Similarly, a litigation defense which is founded in compliance with the testing protocols of a voluntary standard or in decades of trouble-free operation by simply "looking at the animals and watching what's in the filter," should help to defend against litigation, and ultimately, to reduce litigation.]
RE your “11 Great Thoughts”: These points make such obvious sense to me that I think “Of course they should become incorporated into regulations regarding real milk.” Problem is, it takes two parties to have a discussion. I suspect most here would find little fault with them.
Perhaps others who would like the availability of real milk diminished, or significantly more regulated could chime in and sharpen them a bit further.
As more and more people have rediscovered the benefits of real milk, demand pressures increased (including from out-of-state visitors) and farmers responded by selling more than the allowed amount of the same product that they had been selling before with little regulatory oversight. The new law allows farmers to sell up to 40 gallons of raw milk daily directly to consumers – perhaps 8 to 10 cows worth.
Vermont has a small population and is a state where historically “all politics is local”. Vermonters are traditionally independent-minded, but have not been particularly activist oriented. The Rural Vermont organization and others have slowly been waking people up. I believe this new law, the “Unpasteurized Milk Bill”, gained the governor’s signature on its second attempt through the legislature – quite a defeat for BigDairy.
Lykke asked in the last post if this was a “win:win; lose:lose; win:lose; lose:win” compromise. I’d vote for win/lose… A win for the ability to sell enough real milk to be very modestly economically viable (provided that you already own the land, and the pasture plus the out-buildings are in decent shape), but a loss because they must more clearly deal with unreasonable regulations.
I say unreasonable because small producers have been offering significant quantities of real milk to consumers in Vermont for a long time – and to my awareness, there have been no outbreaks (remember, an “outbreak” is only two or more in number) attributed to small Vermont producers for a VERY long time. Their method/model of production (including some not-so-spotless dairy barns/parlors) has a long, safe track record (Lykke, please correct or confirm this record.) and now they must deal with new regulations where there previously had been no significant problem.
I say a loss, also, because the farmers have to deal with the VT Department of Health and the Agency of Agriculture which “view the concept of letting farms sell raw milk as a potentially dangerous health risk.” (Notice the weasel-word “potentially”) Also, “Patsy Kelso, state epidemiologist of the Vermont Department of Health, describes the department’s stance: “people shouldn’t drink raw milk.”
With helping friends like this, who needs enemies?
But what constitutes a scientific approach?
We are now in the throes of a supposed influenza disaster. We hear from our government and our scientists that tens of thousands die each year from flu. But look carefully at the CDC’s own data and a different picture emerges. Check page 32 of this CDC document, which lists death rates from selected causes:
http://www.cdc.gov/nchs/data/nvsr/nvsr55/nvsr55_19.pdf
You will see that in 2004 there were 1,100 deaths attributed to influenza. Where are the tens of thouseands? Well, it turns out that the commonly reported influenza death rate is actually deaths from influenza + pneumonia. Now influenza and pneumonia are certainly linked, but it is very apparent that establishment “science” is quite uninterested in figuring out exactly why. A reasonable person might wonder why pneumonia is a sometimes complication of flu. Could it be that immune function is compromised? And why should that be?
I’d suggest that it’s because of medical care’s dogged promotion of antibiotics and environmental sanitization, reluctance to investigate the causes of infection while so much money can be made by managing infectious diseases, and promotion (with agribusiness) of the idea that live food is no better and sometimes worse than processed food. Are we to trust this sort of narrowly paradigmatical group of “neutral” scientists to search out the cause of disease, or to declare whether health benefits can be enjoyed from drinking raw milk? Are we being responsible when we allow that group to influence the “authorities” now after Max Kane? What about the document pictured in David’s post?
Let me remind you that “Trust your Farmer” is the foundation of the raw milk movement. I put my trust in you when I purchased raw milk from OPDC in 2006. How was I to know that you were outsourcing for some of your raw milk products and using your bottling equipment to bottle this non OPDC product? E.coli 0157:H7 is a particularly feisty bacterium which can require a few as 10 cells to make a person ill. I want to believe you when you say you have stopped the practice of outsourcing, but other evidence is suggesting a different picture.
If you choose not to respond to my question, I will assume you have continued to outsource for some of your raw milk product sin the year 2009.
This was my previous comment:
I thought Jill Richardson did a fair job of presenting both sides of the issue regarding the raw milk debate. What caught my attention was this statement about Mark McAfee and OPDC:
[He sells his product in retail locations like Whole Foods (within California only), and he outsources some of his production as his demand outstrips his supply. However that means that he does not have direct control over all of the dairy products sold under his label, and it also means that his customers have relatively little information about where their raw dairy products come from.]
Now the way this information is presented, it sounds like Mark is currently outsourcing for some of his products. Now I’m confused. Earlier this month (actually October 22nd) I asked Mark this question:
[Over this past year, have you outsourced raw milk to meet the demand of selling your raw milk products? Have any of your raw milk products been packaged with the OPDC label, but created from outsourced raw milk? The products I’m referring to are butter, cream, qephor, & cheese; not fluid raw milk.
The same question goes for colostrum also. Over this past year, have you outsourced colostrum and bottled it with the OPDC label?]
This was Mark’s response:
[I think I have answered this question several times and in several places. But....no problem I will answer it again.
In California all Grade A Raw Market milk must come from TB tested and CDFA approved cows. We do not outsource raw milk to make our Grade A products. Yes...in 2006 we did buy some colostrum (not a grade A product but rather a DHS dietary supplement) from other organic dairies to meet our demand. Yes...in the past we have bought some raw milk from other grass fed raw milk dairies to make some of our truly raw cheddar cheese ( which is aged for 60 days and allowed to be sold across state lines by the FDA and not a Grade A product either ). At present ( and for quite some time ) OPDC only makes our products from our own raw milk. This is what I have said in the past and the story is still the same.]
I’ve become quite interested in the topic of OPDC outsourcing practices, so I revisited Amanda Rose’s blog and reread her Elephant in the Raw Milk Room article.
http://www.rebuild-from-depression.com/blog/2008/04/the_elephant_in_the_raw_milk_r.html
I was quite surprised at the note that was added September 27, 2009. Notice the year….2009. This is what it states:
[Note added September 27, 2009:
About six months before I wrote this entry in April of 2008, when I was working on the AB1735 campaign for raw milk in California, I urged Mark McAfee at Organic Pastures to make his outsourcing public by including a page on his website with the products that are made from outside dairies and with information about those dairies. I offered to write the content for him. Over the following months, our conversation continued. While I did not tell him in advance that I would be posting this particular piece, we had a six-month-long discussion of the topic.
Mark does state in the comments here that he no longer outsources, but I did confirm from him in June of 2009 that OPDC does continue to bring in outside product for butter. He purchases milk from a milk broker who brokers milk intended for pasteurization. Under California law, it is illegal for a raw milk dairy to bottle milk (whole and skim) and cream that was intended for pasteurization. There is no such reference in the law to butter, cheese, or colostrum-related products.]
It is clear that in the past, Mark McAfee has outsourced for colostrum, butter and to make cheese and packaged it with the OPDC label. Based on the information above, it is still unclear if Mark continues the practice of outsourcing. So I’m going to ask Mark McAfee one more time about the outsourcing issue. Mark, are you currently or have you anytime in the year of 2009 outsourced for any of your raw milk products or colostrum?
Mary McGonigle-Martin
http://www.lavidalocavore.org/diary/2674/sue-me-sue-me-what-can-you-do-me
What will the supporters in the raw milk movement think if OPDC has been outsourcing for butter (or any other raw milk/colostrum products) in 2009 and not informing the consumers? What will the consumers think? Trust you farmer. What does that exactly mean?
cp
There was an E. coli O157:H7 outbreak investigated in VT in 2008:
http://caledonianrecord.com/Main.asp?SectionID=1&SubSectionID=1&ArticleID=41896
No others since 2000 looking at this table:
http://tinyurl.com/yeurj72
Mary/cp,
Outsourcing - meaning he buys raw milk from other dairies that was destined to be sent for pasteurization to make OPDC raw butter or other raw dairy products? Is that legal?
http://www.sciencedirect.com/science?_ob=ArticleURL&_udi=B6T6S-4RNJ8MB-3&_user=10&_rdoc=1&_fmt=&_orig=search&_sort=d&_docanchor=&view=c&_searchStrId=1071299929&_rerunOrigin=google&_acct=C000050221&_version=1&_urlVersion=0&_userid=10&md5=afaadb3cd7a80ab99ca50d5e0d52abac
"Prerequisite to this model are thorough studies to understand how L. monocytogenes and other pathogens adapt their cellular physiology to overcome heat and other stresses."
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC107882/
" Bacterial invasion of mammalian cells is a complex process which involves active participation by the microbe and the eukaryotic target (17, 20). Current models indicate that pathogenic bacteria use several different mechanisms to sense their microenvironment and adjust expression of their virulence factors accordingly (reviewed in reference 17). Thus, it is possible that blockade of invasion could prevent elaboration of bacterial products critical for stimulating adhesion molecule expression. Recent data show that expression of L. monocytogenes hly, plcB, actA, and plcA and production of their respective proteins is upregulated by incubation under stress conditions, such as a shift from rich to minimal medium, heat shock, or growth within mammalian cells (3, 25, 43). In the experiments presented here, these virulence factors were not directly responsible for HUVEC stimulation. Nevertheless, regulation of L. monocytogenes virulence genes in response to microenvironmental cues supports the concept that invasion could trigger expression of the gene or genes necessary for stimulating HUVEC."
A rough translation of this would be that whether or not the microorganism becomes "pathogenic" or virulent in someones body depends ENTIRELY on the microenvironment it finds itself in and the stresses it has been subject to in it's immediate previous generations.What does this mean in our every day choice of foods to eat?Using bacteriocidal agents in food production is counterproductive.These things eliminate harmless bacteria and make harmless bacteria virulent.Heat shock, irradiation and high pressure treatments do the same.
Those who insist that we must kill microbes in order to have safe food are pressuring food producers to use increasingly more deadly methods to eliminate microbes.If we want safer food we will have to stop thinking this way.We don't need to add any steps to the process of sterilizing the food we eat.We need to remove most of them.Starting with the way farmers treat the soil.We have created these problems ourselves by looking at food production as a business,separating it into too many stages and insisting that profit is the reason that we are involved in food production.Don't be led astray,health is the goal not money.
Mary ,cp,Lykke and Amanda ,
While you work tirelessly to keep our minds focused on those frightening bacteria that might be in our food,behind your back the people who produce your food are responding to the fear of bacteria by adding ever increasing amounts of toxins to your food.These toxins are what is making people sick and no one is testing to see how big a dose we are getting now.
Yes. That is what outsourcing is. In the past, Mark McAfee has purchased raw milk and colostrum from an organic dairy intended for pasteurization and bottled colostrum, cream, and made butter and cheese from this milk. It was all sold with the OPDC label as if it came from his cows. The practice of outsourcing for raw milk products and colostrum is not illegal, but it is certainly a deceitful, unethical and dangerous business practice.
However, outsourcing fluid raw milk from an organic dairy intended for pasteurization and then selling it as fluid raw milk is illegal.
I do question what category kefir falls under. It is a raw milk product, or considered fluid raw milk? If is it is considered a raw milk product, then technically outsourced raw milk could be used. The milk is fermented with grains and now sold as kefir. If kefir is considered fluid raw milk, using outsourced milk would be illegal.
miguel,
I think you would enjoy reading Slow Death By Rubber Duck: How the Toxic Chemistry of Everyday Life Affects our Health. Another good book is Detoxify or Die. People are testing. Using a far-infrared sauna can get these toxins out of your body. http://www.sunlightsaunas.com/
miguel, do you support the practice of outsourcing for raw milk products? I would be shocked if your answer was yes.
Mary McGonigle-Martin
Can you direct me to any information about antibacterial,disinfectant or antibiotic testing that is routinely done on food?I know that milk is tested for antibiotic residue,but only six antibiotics out of the 80 or so that are used on dairy cows can be tested for and only 4 of those are routinely tested for.Of course dairy farmers are very careful about any use of those 4.I sincerely doubt that food producers are at all concerned about residues of antibacterials.In fact I see everyday that processors and regulators believe that the residues are harmless if not beneficial because they reduce the number of bacteria in our food.They also upset the balance in our gut.
We outsource a lot of things,the salt and cultures used in cheesemaking,for a while we got butter from another farm because we didn't have enough.It wasn't really outsourcing in that we made it very clear that it wasn't from our cows.It was just an attempt to get more of something that people wanted.As long as there is full disclosure to those eating the food ,I see nothing wrong with farms working together to provide what people want.As long as you are just worried about BACTERIA! in your food you are just distracting people from very real problems in food production.
Bob Hayles
www.juicymaters.com
Mari's Climb
http://www.triplicate.com/20091029107351/News/Local-News/MARIS-CLIMB
This is interesting too:
Special Digest: Have a raw milk shake, “he said/she said” style
http://www.ethicurean.com/2009/10/30/raw-milk-shake/
"until I decided to smoke some recreational herbs to commemorate my late brother's"
Recreational herbs? hahaha
"he outsources some of his production as his demand outstrips his supply. However, that means that he does not have direct control over all of the dairy products sold under his label, an" "McAfee's unique practices (like outsourcing), "
Alluding to something that can harm a business or persons character makes one libel. Where is the proof?
David,
Why is there a limit on how much raw milk can be sold?
cp
By the way, when you outsourced to make butter, did you purchase milk that was intended for pasteurization? Considering that you taste your milk to make sure it doesn’t have a pathogen (you can tell by the taste if is off), I would have a hard time believing you were cavalier about outsourced product you chose for your customers.
miguel, people are becoming ill from drinking raw milk that is contaminated with a pathogen. This is a fact. Antibiotics are in our food supply and water supply. Everyone is exposed to them on some level if they do not eat food that is grown in their own gardens or raised on their own farms (or purchased from farmers that do this for you). What is the point you are trying to make?
Mary
I was not aware of this incident. Thank you researching illness outbreaks “attributed” to raw milk in Vermont – a place where milking cows used to be a major occupation and now is a major industry. Orleans County is one of Vermont’s poorest counties and many of these rural families sell a little extra milk from their single cow to help make ends meet. The cows’ premises are likely to have lots of flies and cobwebs, mud all around the “milking parlor’s” entrance, and lots of quality grass and hay.
I read your linked article and question how seriously VT Public Health took this outbreak. Apparently, there were no serious consequences. Legalistically, an “outbreak” is two or more illnesses from a single source. Again, a regulating agency publicized a real milk “outbreak” before they had conclusive facts. Three people became ill. Two of them were at a picnic where ice cream from real milk was served. (Who knows what else they ate in common. Did these illnesses actually stem from a single source?
From the article: “The name of the raw milk producer is not being released, because the state cannot be sure that the milk was the source, she said” (Patsy Kelso, the Health Department’s epidemiologist. ) In other words, the Department made a guess that the source was raw milk. - - Another regulatory agency giving a bad rap based only on circumstantial evidence?
Only three people have been known to become (moderately?) ill from raw milk in 9 years in Vermont - a time when regulators, generally, were being particularly vigilant. But more important than pointing out likely regulatory bias, A LOT of people drank real milk over that period of time in Vermont and just three ill people could be found? My, my. We’ve got a really bad problem / epidemic here!! These folks spent time and resources that would have been better spent pursuing something really relevant. What a bummer.
The Raw Milk Revolution: The Civil Rights Movement of Food
Makenna Goodman interviews our gracious host David Gumpert
HMMM The civil rights movement of food.
Our greatgrandparents fought for their right to choose to freely drink a glass of whiskey. Our greatgrandmothers had to fight for their right to vote. 40 years ago our black fellow citizens had to fight for and even shed blood to obtain their natural born rights. Today we are also fighting for our right to choose what we place in our mouth or have injected into our bodies. What does this bit of history reveal about they that rule over us?