Reflections on the Tyranny of the Majority: Handling Whole Foods One Thing, But the Judges Are Something Else
Monday, March 15, 2010 at 12:41AM 
The assaults on food rights disclosed Friday were especially discouraging because they came from two seemingly opposite directions.
First, there was the corporate assault, from Whole Foods. Corporations, of course, can never be trusted to keep their commitments. Whole Foods, despite all its high-sounding rhetoric about sustainability and organic food, is a large New York Stock Exchange corporation. And it took the typical corporate approach of waiting until late on a Friday afternoon to make an unpopular move, and then didn’t officially announce its action. Mark McAfee of Organic Pastures Dairy Co. put out the word. Whole Foods clearly hoped it could get away with placing little signs by the dairy case, and that consumers would shrug their shoulders and quickly forget that Whole Foods ever carried raw milk. Now there's talk of Whole Foods wanting some sort of national standards on raw milk. Sounds nice. Anyone want to wager how long those might take to develop?
Then there was the judicial assault in the decision against Meadowsweet Dairy, and that is, in my estimation, a more serious matter. I can remember in one of the first hearings in the Meadowsweet case in early 2008, when Gary Cox argued before a New York state judge. that the search warrant being used by agents from the New York Department of Agriculture and Markets to harass Barb and Steve Smith contained errors and was being misused. It was being used in essentially an open-ended manner, when search warrants are designed under the Fourth Amendment of the U.S. Constitution, affirmed in many legal decisions, to be used only under strict judicial supervision.
Got ‘em, I remember thinking. This is the Bill of Rights we’re talking about. This is the red line that no agency crosses without risking the entire case. This is one of the beauties of our system, teachers of constitutional law like to say (I’m sure Barack Obama taught this in his constitutional law classes at the University of Chicago)—that our system so respects individual rights that guilty individuals will be freed rather than abridge their rights. Indeed, judges have in the past thrown out serious criminal cases, in which the suspect is very likely guilty, because of misuse of search warrants.
So what happened when Gary Cox pointed out all the problems? Nothing. Absolutely nothing. The case was allowed to continue to its inevitable conclusion last week, with a panel of appeals court judges very nearly laughing at the notion that citizens have the right to privately contract for access to food. No, they said. The regulators make all the rules covering the transfer of food between people. Make some honey from your backyard hive to give to work colleagues? Hand out eggs from your backyard chicken coop? Make some kefir from the raw milk you bought at a licensed dairy and give it to friends? Better watch out—that’s Ag & Markets’ turf, and the regulators decide whether you can or can’t engage in such activities. We’ll see how much authority Ag & Markets grabs—it’s all there for the taking.
What’s disturbing is that our Constitution is being rendered irrelevant. Rep. Ron Paul made this argument most pointedly at last Wednesday’s lobbying day when he noted that the Congress doesn’t declare war any more, as required by the Constitution. The President just decides to fight a war, and Congress goes along. Know when we last declared war? December 1941, after the attack on Pearl Harbor. Even though we’ve fought at least five wars since then, and launched numerous invasions of Caribbean/Latin American nations.
Actually, Ron Paul has been making this argument for many years. But sometimes you just have to see it up close and personal before it truly becomes real.
I’ve long thought there had to be some sort of middle ground to settle the raw milk problem, as well as other similar problems. But I’m beginning to realize that there probably isn’t a middle ground. Tyranny allows no middle ground. So long as the anti-raw-milk side has the judges, regulators, legislators, insurance companies, university professors, and medical communities on their side, why should it negotiate? Why settle when you can have everything you want? Lykke can rail about some examples of unsanitary conditions at raw dairies, but there was never any hint of illness at Meadowsweet Dairy. New York Ag & Markets and the judges didn't care about illness. It seems as if things can never be cleaned up enough for the people in control, because sanitation isn't part of their agenda.
And because the tyrants aren’t ever satisfied with their level of control, there isn’t really a place to hide. The emotional plague articulated so well by Richard Schwartzman is running rampant. Yes, Dave Milano, you are right to worry when they might come after you and your cow.
Certainly California and New York consumers have gotten a dose of that reality medicine. No matter where you live, the move toward tyranny will either hit you directly, as it has Barb and Steve Smith and Mark McAfee, or it will test your resolve—if you’re a Californian, are you willing now to drive an hour for your raw milk, now that the Whole Foods a couple blocks away has banned your raw milk?
There’s no easy way to fight tyranny. Yes, we can join the Tea Party movement and just throw the bums out next election. But the bureaucrats and judges will still be in place, working against freedom, and as we know, they make the key decisions.
I have to think that the most effective immediate step we as citizens and “consumers” can take is to use our economic power. I wrote a few weeks ago how a grocery chain customer can easily be worth $100,000 or $150,000 over twenty years. I guarantee you the executives at Whole Foods aren’t going to be pleased if ever greater numbers of $100,000 customers divvy up their Whole Foods business to co-ops, farmers markets, online health food and supplement suppliers, and so forth. Remember, Whole Foods stocked raw milk in California, Pennsylvania, Washington, and Connecticut not because they're good guys, but to lure health-conscious shoppers in the expectation they would buy much more than just milk. Yes, Whole Foods took a risk, but it was a business risk designed to differentiate the chain from other chains. Now, Whole Foods has decided for whatever reasons it doesn’t want to take the business risk any longer. Well, if you get rid of a big market differentiator, you essentially become just another grocery chain, and you’ve got to put up with the consequences.
Blair McMorran puts it well: “I think this is just the beginning of a little tidal wave of change that is happening, and Whole Foods just lost their foothold on a terrific opportunity.” I hope she’s right.
On the legal side, I’m not so sure what to do. Judges are there in part to protect our rights. One of the great strengths of this country has been its willingness to respect the rights of minorities—to allow people of different beliefs to do their thing, so long as they weren’t harming outsiders. The country’s most serious problems—most notably racial relations—have come when we allowed the tyranny of the majority. It took a civil war, endless legal cases, civil disobedience, sending in soldiers, and huge protests to move toward legal respect for racial minorities.
Americans who want to consume raw milk, even via strict private financial arrangements, apart from any contact with outsiders, are being treated as if they were scam artists. It’s not unlike what went on in the South after the civil war, when the police and judges allowed the indiscriminate persecution of blacks. The only choice is to keep fighting, with more court suits, more food freedom legislation, and more lobbying. Or else move to Canada, where they seem to have at least one judge who respects the food rights of the minority.
***
Speaking of corporate creepiness, Wal-Mart is positioning itself as a supporter of locally-produced food. It got the Atlantic to write a favorable article, but you know where this story is going. Wal-Mart will do wonderful promotion, and then, when local producers are signed up and committed to filling those fast-growing orders, they’ll learn the Wal-Mart way of doing business—continually lower your prices till you become something like a conventional dairy producer, selling at or below your cost of production. A modern-day slave. My advice to small farms: read the fine print in any contracts you sign with Wal-Mart.
Reader Comments (44)
Michael was indeed fortunate to have this particular judge preside over his case however, there is little to differentiate in the battle for food rights between Canada and the United States.
Bill
I know of an exceptionally physically and mentally fit 87 year old man who went into hospital for surgery to have a malfunctioning heart valve repaired. The man appeared to be recovering well until he was administered an antibiotic for an apparent infection. He ended up on dialysis several hours later and eventually succumbed to kidney failure.
I don’t believe I need to explain to you the effect that various drugs and chemicals have on our immune systems and kidneys etc. That being said however the ambiguity surrounding cause and affect with respect to disease and sickness can only be truly addressed via respect for the laws of nature and free will. Attempting to control natural process and a human beings free will is futile and destructive.
Outlawing ambiguities in the food industry would be a gargantuan and impractical task that would in many instances end up causing more harm then good.
I don’t question your sincerity Bill I do however disagree at least in part with all six of your points in the previous post.
Ken Conrad
I would be very interested to hear what evidence you have that Sally Fallon is making "a bunch of money" from raw milk sales. It reminds me of the vegetarians who absurdly insist that the WAPF is making money on grass fed meat. Neither the foundation nor Sally is getting rich from promoting what they sincerely believe to be a healthy diet.
On my blog, the issue is addressed under the heading "The Raw Milk Wars". Wars. That is what this is...a war for out rights as given by God...so stated in the constitution.
With due respect for conciliatory efforts recently by raw milk proponents in CO, WI, and CA...wars are not won with appeasement. Neville Chamberlain proved that. Nor are they won with negotiation. Viet Nam proved that.
Wars are won with scorched earth tactics...no quarter asked or given. The civil war, WWII Europe, and WWII Pacific proved that. Japan knuckled under to the atomic bomb and nothing else, not negotiations or conciliation...period.
Are you awake yet?
Bob Hayles
http://www.JuicyMaters.com
http://www.dunnconnect.com/articles/2010/03/13/agriculture/doc4b9acff6166cb267216882.txt
A $26 billion dollar dairy industry and their pathogen red flag waving mercernaries with important sounding acronyms on their shields and swords. The fierceness of their war on raw dairy and the small producers is indeed astonishing. And they do state in the link it is all about the money.
Ken as for BMs 6 points I guess they might pass the UCC muster but I did not see where their would be any unfettered freedom of choise not sure the 6 points would pass the Constitutional muster either?
I read your points in the last posting and I agree with many of them. Number three made me laugh out loud, though. How self-interested can you get? You use fear, uncertainty and doubt as your main tools to collect money from insurance companies to make your living. There was not a shred of positive evidence that OP's milk caused the 2006 illnesses of two children. There was ample evidence, however, that one of the mothers was an exceedingly educated consumer. Yet you used FUD to bring home the bacon in that case. I don't call that justice.
"1. Raw milk should be sold only on farms that are certified by the state and inspected and tested regularly. Make ambiguous black market milk/cheese sales and "pet food sales" meant for human consumption clearly illegal;"
Are you really too damn stupid to understand constitutional rights, or are you just smug in your belief that the country, in large part because of lawyers like you, will never again live by constitutional law?
BH
I don't see the Whole Foods thing as a bad thing. Consumers MUST reject the grocery stores as the primary supplier of foods. They are part and parcel of the present food system that centralizes the food system, enslaves farmers, and sickens consumers. It must be replaced. We will all be much better off if the average consumer got their food direct from a farmer with the things not locally producible being imported and sold by co-ops and dry good stores.
Wrong. There is no "may" to it. That is what it WILL take...and it will happen. The extraordinary expansion of government power of the last year plus has awakened a sleeping giant. Now, we must focus that power and take the people's country back.
And we will.
BH
http://www.JuicyMaters.com
1. Raw milk should be sold only on farms that are certified by the state and inspected and tested regularly. Make ambiguous black market milk/cheese sales and "pet food sales" meant for human consumption clearly illegal;
2. Raw milk should not be sold in grocery stores or across state lines--the risks of mass production and transportation are too great; the risk of a casual purchase by someone misunderstanding the risks is too great, as well;
3. Farms should be required to have insurance coverage sufficient to cover reasonable damages to their customers;
4. Practices such as outsourcing (buying raw milk from farms not licensed for raw milk production) should be illegal;
5. Colostrum should be regulated as a dairy product, not a nutritional supplement;
6. Warning signs on the bottles and at point-of-purchase should be mandatory. An example: "WARNING: This product has not been pasteurized and may contain harmful bacteria (not limited to E. coli O157:H7, Campylobacter, Listeria and Salmonella). Pregnant women, infants, children, the elderly and persons with lowered resistance to disease (immune compromised) have the highest risk of harm, which includes Diarrhea, Vomiting, Fever, Dehydration, Hemolytic Uremic Syndrome, Guillain-Barre Syndrome, Reactive Arthritis, Irritable Bowel Syndrome, Miscarriage, or Death, from use of this product."
Kirsten, as for No 3 being self-serving to me, I agree with your point in part, but honestly, don't you think that a farmer should be responsible for the injury to his or her customer, whether it is a direct consumer or a retail outlet like Whole Foods?
And, as for the Organic Pastures E. coli Outbreak in 2006, the evidence that it happened is overwhelming. See - http://www.marlerblog.com/2009/03/articles/lawyer-oped/organic-pastures-dairy-e-coli-o157h7-raw-milk-product-outbreak-2006/ - download the attachment. Also, send a FOIA to the California Department of Health and the CDC. Frankly, I would bet at this point even Mark would be willing to admit that it happened and that he is working his ass off to make sure that it never happens again. Right Mark?
I have to say that you aren't sounding very rational here.
This massive expansion of government power is not unique to the last year. It has been happening since 2001.
re: your reference to Vietnam, perhaps I am misunderstanding you? Are you telling us that the U.S. lost Vietnam because of a conciliatory stance? So does this would mean you were in favor of further atrocities, chemical attacks, and bombing of the country?
I think the U.S. lost Vietnam because the Vietcong engaged in an asymetrical warfare, and had the popular support of the Vietnemese people against an imperialist aggressor.
This raw milk war is also an asymetrical warfare, and we are the Vietcong.
Regulation is what got us in this mess, regulation will not and can not make food safe.
There are a growing number of individuals (scientist and lay people alike) who recognize the inadequacies of the germ theory and are riled by the militaristic, tyrannical attitude that it spawns. All of your suggestions (numbers1,2,3,4,5&6,) are in essence asking me as well as those who think likewise to subject ourselves to a belief and system that we view as fundamentally flawed. This would be like asking Galileo to deny what he knew to be true for the sake of placating the powers that be.
Ken
I made two statements...that either you were too stupid to understand constitutional rights or that you were smug in your belief that such rights are forever dead. Which do you and I agree on...that you are stupid or that you are smug?
BH
http://www.JuicyMaters.com
As for Viet Nam, my point is it was a war not fought to win...as indicated by how we were jerked around in Paris...beginning with a lot of crap about the shape of the damn table.
Politicians should decide IF we go to war, and if so, what the objective is. After that they should shut up and let the experts...the military...do what they are trained to do. Ugly as it is, the purpose of the military is to break things and kill people. That's ugly, but that's what war is...ugly.
BH
http://www.JuicyMaters.com
#1...no, based on rights. #2...half of it. #3 and #4 yes...if you place the same insurance requirement on every business in the country. #5 no...(same reason as #1) #6, yes with two caveats. First, your proposed lable is overreaching, and second, the same qualification I put on #3.
BH
http://www.JuicyMaters.com
PS...as for stupid vs smug, YOU are the one who said I agreed in a previous comment, and I only said those two things, so which is it? Stupid or smug...or a reading comprehension problem?
Re this:
"I gotta ask, is this debate really about small farms and the constitution, or Sally Fallon's quest to put raw dairy in every kid/person's stomach and make a bunch of money?"
Leave Sally Fallon alone. She is an advocate, dispensing information. The world is full of them, and we are all (supposedly) free to take their advice or not. (As I think about it, advocacy may very well be a trait shared by 100% of the population. Certainly you and I fit the mold.)
Regulators (including you?), legislators, bureaucrats, and even judges when they go astray, on the other hand, carry sticks to enforce their opinions, often at the expense of inalienable rights. In America, advocates, even wrong ones, are (supposedly) free to express their opinions. Weapon-wielding bullies are (supposedly) not allowed.
1. Here in WI the rules got changed because a new bureacrat took over @ DATCP. This puts us farmers at the mercy of the next regulator with emotional plaque that comes along.
2. I fail to see what a state line has to do with whether raw milk is safe or not.
3. Less insurance and I would guess there would be less lawyers, always a good thing.
4. Transparency is key, people need to be able to make good decisions. That being said we presently allow people to drink themselves to death.
5. I am against raw milk regulation, same goes for colostrum.
6. If the same sign appears on pasteurized milk, raw fish, conventional chicken, etc. sounds good to me.
Lastly, I was wondering if Marler would post an obit for each the 3 men who died from pastuerized dairy in Mass. in 2007. I can not find any info on them anywhere. I figure he probably has that info on file.