Review published July 31, 2013
There is no absolute right to consume or feed children any particular food. . . . There is no ‘deeply rooted' historical tradition of unfettered access to foods of all kinds. . . . Plaintiffs' assertion of a “fundamental right to their own bodily and physical health, which includes what foods they do and do not choose to consume for themselves and their families” is similarly unavailing because plaintiffs do not have a fundamental right to obtain any food they wish. . . . There is no fundamental right to freedom of contract.
— U.S. Food and Drug Administration (FDA), in a legal brief supporting the dismissal of a lawsuit by the Farm-to-Consumer Legal Defense Fund
The 18th century was the century of political rights; the 19th century was the century of women's rights; the 20th century was the century of civil rights. The challenge of the 21st century will be the struggle for food and farming rights.
— Sally Fallon, president of the Weston A. Price Foundation
David E. Gumpert, author or co-author of eight other books, and formerly a reporter for the Wall Street Journal and editor for Inc. and Harvard Business Review, has written for us a fascinating exposé of the emerging movement to produce and consume local, high-quality, nutrient-dense foods outside of the industrial agriculture system, and the costly and invasive actions taken by the FDA and assorted state agencies intended to contain, suppress, or perhaps even wipe out this movement entirely.
In Life, Liberty, and the Pursuit of Food Rights: The Escalating Battle Over Who Decides What We Eat, Gumpert gets down and dirty, sifting through thousands of pages of documentation, obtained through a combination of helpful sources in government and requests under the Freedom of Information Act and state open records laws. These pages document a bizarre world into which we are now entering.
This is a world in which government agencies spend literally millions of dollars ostensibly to strengthen food safety, often using the most outrageous tactics imaginable: sending undercover agents to farmers' markets to entrap farmers into selling cheese to the wrong people, charging ordinary citizens with multiple felony conspiracy counts for distributing farm-fresh products, secretly surveilling email conversations for months on end, raiding private food clubs with guns drawn, ordering the destruction of hundreds of thousands of dollars of perfectly good food, and sending U.S. Public Health Service agents to inspect small-scale cheese plants dressed in intimidating camouflage fatigues and combat boots. Gumpert provides us with strong indications, moreover, that all of this is being coordinated at the highest levels within the FDA, all the while intended to appear as an assortment of unrelated and independent actions taken by state and local agencies.
Yet this tale is not woven only in tears, nor is it even slightly defeatist. Advocates of food rights have won many legal victories, and even as these legal struggles continue, many people are recovering their health by shifting to locally produced, high-quality, nutrient-dense foods.
Nor is it a one-sided tale that tells only half the story. Gumpert masterfully fills the roles of both journalist and advocate. His support for the food rights movement is clear and explicit. Yet he provides extensive quotes from government agencies and food safety advocates, critiquing their views but delivering them with fairness and clarity. And while the food rights movement has its share of valiant heroes, as in any true story, or really any story worth its salt, there is no shortage of personal conflict, quirky characters, and disappointing behaviors. Gumpert never shies away from any of it. Rather, he beautifully seams together all these loose fabrics to form a three-dimensional story where the characters truly come alive.
Is There Such a Thing as Private Food?
At the heart of this conflict is whether there is such a thing as private food. Does anything we produce and consume automatically fall under the jurisdiction of state and federal regulators? Even if we drink the milk from our own cow or eat the tomatoes from our own garden? Or is there some sphere of privacy in which we can operate independently of these regulators, and if so, how large is this sphere?
The question is critical. Most of our food is produced in large-scale industrial operations prone to both nutrient depletion, contamination with pathogens, and terrible abuse of animals. State and federal regulations are aimed at minimizing the risk of acute illness from pathogens. They do nothing to encourage nutrient density, and in many ways worsen the problem, thereby contributing to the epidemics of chronic degenerative disease sweeping modern society. They certainly do nothing to support the well being of animals on industrial farms. The surging wave of consumer demand for healing, nourishing, and humanely produced nutrient-dense foods has led to demand for foods that these regulations have largely shut out of the market.
Raw Milk and the Politics of Private Food
Principal among these foods — though by no means the only such food — is unpasteurized or “raw” milk from grass-fed cows. Such milk is in high demand because of research suggesting it protects against allergies and asthma, and is richer in certain vitamins and minerals, biologically active whey proteins, and probiotic bacteria. According to a recent CDC survey, as many as nine million Americans may drink raw milk.
On the other side of the coin, the prospect of producing raw milk attracts producers because they can better make a living selling it. America lost 90 percent of her dairies between 1970 to 2006, and downward pressure on dairy prices in 2009 and 2010 led several dairy farmers to commit suicide, including one who massacred his 51 cows before turning his rifle on himself. By cutting out the middle man and selling raw milk from grass-fed cows at a premium, farmers can double their revenue per gallon, leading to greener pastures in more ways than one.
Laws governing the sale of raw milk are highly variable and differ from state to state. In many cases the sale of raw milk is completely prohibited; in many others it is allowed direct from the farm but not in retail stores; and in a handful it is allowed even in retail stores. Yet in many cases where sales are legal, the required permits prohibit the production of value-added products such as butter, cream, or fermented milk — all in high demand among consumers conscious of the need for food-based sources of fat-soluble vitamins and probiotic bacteria.
Overlaying the variation in state regulations, the FDA prohibits commercial transport of raw milk across state lines. In the 1970s and early 1980s, the FDA resisted pressure to institute such a ban, preferring to let states regulate raw milk themselves. In response to a 1984 lawsuit from the American Public Health Association and Ralph Nader's Public Citizen, however, a federal judge ordered the FDA to institute the ban. The ban has been active since 1987, and the FDA now defends it, having gone so far as to successfully argue for the dismissal of a lawsuit to repeal it by claiming that there is “no fundamental right” to “freedom of contract,” to “bodily and physical health,” or for consumers to choose “what foods they do and do not. . . consume for themselves and their families.”
Producers and consumers who wish to obtain raw milk and value-added products made from it have pursued several types of contractual arrangements intended to place their exchanges outside of the regulated system of retail sales. These include cowshare or herdshare arrangements, where the consumers own a share in the animal or herd and are therefore simply obtaining milk from their own cow rather than purchasing it. Alternatively, in the similar but distinct leasing model, a private food club signs a lease agreement with a farmer, through which it obtains exclusive rights to the animals and their products for a period of time. In all cases, the members pay the farmer fees for services such as boarding and caring for the animals, milking, and bottling.
These arrangements have enabled the private exchange of raw milk and value-added products derived from it in most states where these products are otherwise illegal. They have also enabled the private exchange of raw milk products across state lines, which is especially critical in Maryland, home to the FDA and completely intolerant of raw milk, where even herdshares are explicitly prohibited.
Food Rights Is About More Than Raw Milk
The pursuit of food rights, however, is about a lot more than raw milk. The motivations to pursue some private food arrangements may seem quite obvious to us. School bake sales and roadside lemonade stands, for example, are something most of us grew up with. Applying retail sales regulations and licensing requirements to these ventures would swiftly bring them to an end, and the thought of doing so immediately strikes many of us as absurd.
Less obvious to many of us, extensive regulations make it costly for small farmers and artisan vendors to start businesses, which limits the availability of high-quality foods, especially near urban areas where zoning laws and the high cost of land add additional difficulties. Farmer Joel Salatin, who wrote the forward to Gumpert's book, has described some of these factors in more detail elsewhere. For example, requirements to sell retail foods in supermarkets involve preposterously expensive insurance policies that discourage pasture feeding, and the purchase of expensive equipment that is completely irrelevant to small-scale operations.
Sales direct from the farm or private contractual arrangements offer alternatives that allow small-scale farmers to operate outside of the industrial agriculture model. Consumer-supported agriculture (CSA) systems, which have been around for decades, are a form of private arrangement where individuals buy a share of a farmer's production for a season. More recent models like private food clubs allow communities to form broader networks that include multiple farmers and artisan producers.
San Francisco's Underground Market, for example, was a private club that allowed consumers to connect with vendors selling foods ranging from foraged seaweed to Belgian waffles. Iso Rabins launched the club at the suggestion of local health department officials in 2009, although in 2011 they changed their tune and shut the club down. Gumpert quotes Rabins describing the rationale for the market:
I started the Underground Market in 2009 as a reaction to the high bar of entry that has been created to start a food business, something that I experienced personally. Starting in a house in the Mission with seven vendors and 150 eaters, the market has grown to feed over 50,000 people and help over 400 vendors get their start.
Private arrangements, then, not only allow the exchange of foods otherwise directly prohibited, but also allow an increase in the availability and diversity of high-quality foods produced in small-scale operations that are otherwise cost-prohibitive because of regulations that favor large-scale, industrial, and confinement operations.
The Heavy-Handed Crackdown on Private Food
In the last few years, the government has quietly launched an undeclared war on private food. Perhaps the pettiest and most absurd examples are the crackdowns that have targeted nursery school bake sale fundraisers and lemonade stands for selling foods without retail licenses. The increasingly common crackdowns on lemonade stands, in fact, inspired the creation of Lemonade Freedom Day in 2011, which joined forces with raw milk supporters for the 2012 event.
Some of the more destructive incidents seem like isolated, local occurrences. Gumpert describes a 2011 incident, for example, where a health inspector sabotaged a Nevada farm's first ever farm-to-fork dinner. Nearly all the food was produced on the farm itself, yet the inspector showed up right before the food was to be served to guests who had paid in advance, and ordered it all to be destroyed — not even fed to the pigs — because of the lack of receipts, labels, and evidence of USDA certification. The farmer thinly escaped the total collapse of her event when local police failed to support the inspector and, despite the destruction of huge amounts of food, her chefs masterfully improvised delicious meals for the guests.
Gumpert opens the book by describing an incident on June 17, 2012, however, that ends much less happily. Enforcement agents at a weigh station on a Florida interstate pulled over a refrigerated truck carrying food from two Pennsylvania farms for members of three private food clubs in Florida. Because of bottles containing brown liquid, labeled “kombucha,” a lacto-fermented health drink containing infinitesimal levels of alcohol, the agents called in the Florida Department of Alcohol, Tobacco, and Firearms, arrested the driver, and charged him with a third-degree felony for illegally shipping alcoholic beverages into the state. The inspectors judged the rest of the food on the truck — beef, chicken, dairy, eggs, and fermented veggies — to be “poisonous” and destroyed it by burying it in a local landfill the following morning. The prosecutor dropped the charges, but the farmers and food club members were collectively out $45,000 for the destroyed food, $2,000 for the dumping fee charged to the farmers, and had to find a new trucker.
Other seemingly isolated incidents include the closing of San Francisco's Underground Market in 2011, and a 2008 armed raid of an Ohio private food club. In the latter case, the Ohio Department of Agriculture sent inspectors along with officers from the county sheriff's office dressed in full tactical armor, to the home of the food club's owners. With weapons drawn, they herded the owner, her in-laws, and her eight small children into the living room and kept them under armed guard for seven hours while they confiscated cell phones, computers, business records, and meat.
A common thread running through many of the other incidents links them in some way to Aajounus Vonderplantiz's organization, Right to Choose Healthy Food (RTCHF). Vonderplanitz, a raw food advocate with an arguably cultish following, some rather idiosyncratic beliefs about bacteria, and conflicting stories about his introduction to raw foods that often sound like tall tales, had masterfully carved out a niche for himself as an unlicensed legal advocate after playing a major role in the liberalization of raw milk regulations in LA County in the early 2000s. Around the same time, he organized RTCHF as an umbrella group of private food clubs based on the leasing model.
Among the many RTCHF food clubs was Rawesome, later the target of two armed raids. James Stewart, an aging hippy rebel who had worked closely with Vonderplanitz since 1998, started Rawesome out of his garage in 2001 when it was simply named “The Garage.” Vonderplanitz and Stewart both played a role in helping Mark McAfee launch Organic Pastures Dairy Company, a major California producer of raw milk. McAfee would later offer substantial financial and moral support for Stewart and other Rawesome members arrested in the raid of 2011.
The story of the Rawesome raid begins with undercover investigations targeting Sharon Palmer, a farmer marked by a criminal past trying to make a fresh start. She ran a CSA program and provided foods to Rawesome. Undercover agents from the California Department of Food and Agriculture (CDFA) repeatedly approached her or her staff, at her farm or at farmers' markets, attempting to entrap her into selling CSA-destined cheese to them as a retail product. The investigators learned of Rawesome through this undercover work.
Police, district attorney investigators, and agents from CDFA, the LA County Health Department, and the FDA raided Rawesome in 2010 with guns drawn, wearing bulletproof vests. They confiscated $8,000 of food, closed the club, served Stewart with a summons, and raided Palmer's farm the same day. They sealed all investigation details from the public for months while they secretly surveilled thousands of emails from the accounts of Vonderplanitz and others.
Vonderplanitz had successfully defended RTCHF clubs from government intrusion for almost a decade by insisting that they were private clubs and not retail establishments, and that the regulators therefore had no jurisdiction. Rawesome continued this approach and reopened its doors, leading to a second raid in 2011.
The second time around, an even more expansive number of government agencies raided Rawesome, leading to the confiscation of $80,000 worth of food and the arrest of Stewart, Palmer, and Victoria Bloch, who worked part-time for Palmer. The prosecutors charged them with multiple felony counts of “criminal conspiracy charges stemming from the alleged illegal production and sale of unpasteurized goat milk, goat cheese, and other products,” seeking preposterous bails ranging from $60,000-$123,000, which were later greatly reduced in court.
Some of the story lines that converge on the Rawesome raid involve farmers who joined RTCHF for legal protection after experiencing their own raids. Amish farmers, whose religion encourages shying away from battles of all kinds, including court battles involving aggressive defenses and lawyers, were particularly fond of Vonderplanitz in the mid- to late-2000s because his lawyer-less legal approach — to simply warn government officials they had no jurisdiction over his private clubs and watch them back off in silence — had been successful for years and was more amenable to their religious beliefs than other approaches.
Daniel Allyger, for example, an Amish farmer from Pennsylvania, provided raw milk to Grassfed on the Hill, a private food club based in Washington, DC and Maryland. In 2010, following infiltration of Grassfed on the Hill by undercover agents, he was raided by FDA agents, US Marshals, and a Pennsylvania state trooper. After this event, Allyger moved his arrangement with Grassfed on the Hill under the umbrella of RTCHF.
Similarly, Vernon Hershberger, a Wisconsin farmer with an Amish background, had worked with the Wisconsin Department of Agriculture, Trade, and Consumer Protection (DATCP) in 2003 to establish a private arrangement that allowed him to legally produce and distrubute raw milk. DATCP pulled an about-face in 2009 and began aggressively persecuting Hershberger, destroying hundreds of gallons of his milk and forbidding him from using or distributing large quantities of food. Like Allyger, Hershberger moved his club under the umbrella of RTCHF.
Other story lines converge on the Rawesome raid as fallout from the event, since the raid led to the targeting of many other farmers connected in one way or another to RTCHF or to Rawesome itself. These include actions against Amish farmers from Pennsylvania and Indiana, Amos Miller and David Hochstetler, as well as an earlier but more vicious attack on Missouri-based Morningland Dairy:
- FDA agents and a US Marshal spent hours searching Miller's farm in April, 2011 during his absence, over the objections of one of his associates that the farm was involved in private food production only and therefore outside of the FDA's jurisdiction.
- In October of that year, the Department of Justice summoned Hochstetler before a federal grand jury, required by the Fifth Amendment whenever anyone is “held to answer for a capital, or otherwise infamous crime.” The summons required Hochstetler to produce “any and all documents relating to or concerning the sale, purchase, delivery, receipt, production, packaging, transfer, disposal, marketing, promotion, furnishing, sharing, labeling, manufacturing, distribution, shipment, or transportation of milk during the Relevant Time Period.”
- In August of 2010 in the immediate aftermath of the first Rawesome raid, two agents assigned to the FDA from the U.S. Public Health Service, part of the Department of Defense, showed up to the Missouri-based Morningland Dairy in intimidating attire replete with camouflage fatigues and combat boots, eventually leading to aggressive state-level legal tactics to run the dairy out of business.
The Crackdowns Aren't Just About Private Food
Although the recent heavy-handed crackdowns have been largely aimed at private food, their scope has been expanding to include bans on heritage breeds of animals used by pasture-based farmers. The clearest example is the Michigan Department of Natural Resources' (DNR's) prohibition of so-called “feral” pigs and persecution of Mark Baker and Bakers Green Acres. Gumpert briefly describes the action as an outgrowth of the Food Safety Modernization Act, which President Obama signed into law in 2011, and which empowered regulators to prevent wild animals from defecating on produce, but notes the controversy that soon ensued:
In late 2010, Michigan's Department of Natural Resources issued an order (to take effect in April 2012) prohibiting the possession of feral pigs, supposedly to protect crops. But the matter turned into a controversy when the state began going after small artisinal farms that raised feral pigs as premium sources of pork and was accused of using the order to favor corporate pork producers. Even if they were kept confined, the pigs were still outlawed. Other states watched Michigan to determine if it made sense to implement a similar ban.
The case against Bakers Green Acres is developing as of the writing of this review, and Gumpert has been devoting attention to it on his blog, The Complete Patient.
The Bakers argue that there is nothing “feral” about the “feral pigs” the DNR is banning. A “feral” animal is one that is descended from domesticated animals but has gone wild. The DNR's ban targets pigs because of characteristics like straight or curly tails; or erect, folded, or floppy ears; it has absolutely nothing to do with whether the pigs are wild, how they are used and treated on the farm, or how well they are enclosed. The Bakers argue that the ban is so ambiguous that “any hog can meet the criteria” laid down by the DNR for prohibition. By labeling their domesticated heritage Mangalitsa hybrid pigs as “feral” simply because of their physical characteristics, and by applying the ruling to heritage foraging breeds in general, they further argue, the DNR's application of the ruling “effectively eliminates genetic diversity in the Michigan hog population, leaving us with the less hardy, non-foraging hybrids suited only for large hog-house production.”
As of this writing, the DNR is pushing to have the Bakers fined $700,000 for not destroying their pigs. On July 12, 2013, the case went before a judge, and the Bakers' attorney argued that this fine is “outside the realm of comprehension.” The case is pending a written opinion from the judge and may go to trial on August 27.
Is the FDA Hiding Behind State Agencies?
The war against non-industrial food is undeclared in more ways than one. Not only has no one representing the FDA or other government agencies involved ever publicly and plainly stated their intention to shut down private food or explained their rationale for doing so, but Gumpert has compiled a considerable amount of evidence that the FDA is intentionally hiding behind state-level agencies to make it appear as if the war does not even exist, at least in any cohesive form. “The FDA appears to have launched the campaign nationally,” Gumpert suggests, “with enforcement actions made to appear as if they were occurring randomly around the country, initiated by state regulators in an uncoordinated fashion.”
The FDA's initial attack on private food began in 2008. The Wisconsin Department of Trade and Consumer Protection (DATCP) went after a food club managed by Max Kane because of a possible case of brucellosis in a child, tied to the club's raw milk. Extensive tests showed that the child did not, in fact, have brucellosis at all, but DATCP continued demanding extensive information from Kane, who felt the demands violated his constitutional freedoms and refused to cooperate. Kane eventually used Wisconsin's Open Records Law to obtain eight pages of email documents proving DATCP was not acting alone, and had in fact been coordinating its investigation with the FDA and other state agencies in the Midwest.
A separate case in 2009 also revealed hidden FDA involvement. Eric Wagoner, a part-time farmer, ran a food club in Georgia that supplied fresh meat and vegetables to several hundred members. Georgia only allows the sale of raw milk for consumption by pets, and has hassled farmers accused of selling it for human consumption. Wagoner made trips to South Carolina to pick up legally produced raw milk and deliver it to his members. He insisted the members pay for it in advance as an attempt to head off any accusations of selling the milk or transporting it for commercial purposes. He made the trips for five years without encountering a problem, until one Thursday in October of 2009 when Georgia Department of Agriculture (GDA) agents stopped him at the border and ordered him to destroy all the milk, totaling over a hundred gallons. Since he didn't own the milk, he had the dozens of club members who owned the milk come to his farm and destroy their own milk the following Monday, captured on video and in the presence of GDA agents.
In 2010, the Farm-to-Consumer Legal Defense Fund filed suit against the FDA, alleging in part that the FDA had been involved in the Wagoner affair. Lawyers from the U.S. Justice Department called these “bizarre allegations,” but the FDA changed its tune and stopped denying involvement after raw milk supporters presented video evidence of an FDA agent present at the dumping. The FDA admitted the presence of the agent but insisted her only role was to silently supervise the proceedings.
The clearest evidence of FDA meddling is from the case of Daniel Allyger and Grassfed on the Hill. Gumpert obtained documents through the Freedom of Information Act (FOIA) showing that the FDA had assigned an undercover agent to pose as a member of Grassfed on the Hill, with over a dozen FDA officials sharing information about the group, apparently under the direction of John Sheehan, head of the agency's dairy division.
Three Minnesota events occurred in 2010 with no direct evidence of FDA involvement, but a very rich money trail leading in the FDA's direction. That June, the Minnesota Department of Agriculture (MDA) went after Rae Lynn Sandvig, by background a teacher and at that time a homeschooling mom who picked up food from farms for her neighbors. The MDA issued her a cease-and-desist order and threatened her with criminal charges for “reselling food without a license.” Only days later the MDA launched an intimidating investigation of Traditional Foods Minnesota, a buying club that distributed a wide variety of hard-to-find artisinal products, shutting it down permanently, even despite efforts by its management to negotiate licensing acceptable to the state. The raid of Traditional Foods Minnesota led to the targeting of Minnesota farmer Alvin Schlangen over the course of 2010 and 2011, whose 2012 trial is discussed below.
Was the FDA involved? Gumpert writes that “there is no smoking gun,” but the MDA received 1.6 million dollars from the FDA to strengthen “food safety” during this time period, and the FDA reported to Congress that it had 74 employees in Minnesota working closely with the MDA.
Similarly, in the Wisconsin cases where DATCP went after Max Kane and Vernon Hershberger, open records requests revealed that those crackdowns corresponded to a more than doubling of FDA funding for DATCP between 2007 and 2009.
The FDA even has a Division of Federal-State Relations and boasts of handing out more than 41 million dollars a year and working with over 1,300 state and local officials to strengthen these relations. Gumpert suggests this should worry us, and I agree:
Why should anyone care about such a seemingly upstanding goal? Traditionally, state and local public health agencies have been independent, much like school systems and fire departments. We don't hear talk about “a national public school system” or “a national fire-fighting system,” even though the latter have much to do with safety. The funding and statement suggest growing FDA control over local public health agencies to achieve federal goals.
Where Did This Attack on Food Freedom Come From?
Gumpert notes that the present attacks on food rights have a deep history dating back to mandatory pasteurization laws in the 1950s and 60s and Secretary of Agriculture Earl Butz's repeated calls on farmers to “get big or get out” through the 1970s, but identifies key factors over the last decade that have fueled the hardcore crackdowns that have become increasingly common since 2008.
The first of these is the 9/11 terrorist attacks, after which many feared America's food and water supplies could become targets of bioterrorism. The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (the Bioterrorism Act) led to increasing centralization of food safety control, even as consumer interest in local, decentralized food surged in parallel.
The second of these is the efforts of the personal injury lawyer Bill Marler, whose high-profile lawsuits, mastery of the internet, and creation of the food safety blogosphere fueled the growth of a broad-based fear of food pathogens. Marler's advocacy also helped push through the Food Safety Modernization Act, which further accelerated the national centralization of food safety measures.
Where is the role of “Big Ag” in all this? Gumpert covers the consolidation of the food industry into the hands of just a few corporations, the widespread perception among many small farmers and consumers that legislators are in the pockets of industrial food producers, and the terrible toll that regulations designed for these industrial operations take on small producers. As a direct contributor to the regulatory crackdown on small-scale, pasture-based and private food, however, he mainly indicts the industry for inspiring such a suffocating regulatory environment through its own bad examples, whether it be the puss-filled milk from sick cows fed whiskey distillery waste that originally inspired pasteurization laws or the modern concentrated animal feeding operations (CAFOs) that gave birth to pathogens like E. coli O157:H7 and inspired deeper and broader fears of foodborne illness.
Gumpert does point out that the National Milk Producers Federation lobbied the FDA in November 2011 to “stand firm” and “hold fast” in its defense of its ban on interstate transport of raw milk, but such direct examples of clear evidence that Big Ag has been supporting the crackdown on food rights seem few and far between. From reading this book it would appear that there is scant evidence supporting the idea that industrial agriculture is behind the crackdown on small food, using it as a means to secure its own marketshare from competition.
The ban on interstate transport of raw milk does emphasize, however, the diversity of motivations behind the heavy-handed regulations. Ralph Nader's anti-corporate Public Citizen played a critical role in forcing the FDA to institute the ban, while the corporate milk producers played an important role in defending the ban more than two decades later. Caught in the middle, the FDA flip-flopped from fighting lawsuits aimed at forcing the ban in the 1980s to fighting lawsuits aimed at repealing it just recently. Does this flip-flopping reflect a simple resistance to change within the FDA, a territorial defense of its regulatory status quo, or does it reflect a change in ideology or personal leadership within the agency?
Such a question would be easier to answer if it were clearer who among the regulators is pulling the strings. Gumpert's FOIA requests traced the sting operation against Grassfed on the Hill as far up as FDA dairy division chief John Sheehan, whose tenure at the FDA traces back to 2000, stretching across three presidential administrations, and whose public and active stance against raw milk dates at least as far back as 2005, stretching across two. Has Sheehan entered government through its revolving door with industry? As Gumpert has blogged about in the past, FOIA requests into Sheehan's connections to the dairy industry revealed nothing more impressive or nefarious than his experience as a pizza cheese quality control manager. Though Sheehan did migrate to the FDA from industry, such a revelation hardly exposes him as a chief architect of the Dairy-Industrial Complex.
It is easy to imagine that somewhere businessmen from industrial agriculture are reading the signs of the times, seeing rapidly growing interest in local and traditional methods of food production as a threat to future marketshare, making backroom deals with legislators and regulators to use the threats of terrorism and foodborne illness as pretenses to pursue policies that will contain this interest before it gets out of hand. Gumpert rarely speculates deeper than the evidence runs, however, and hard evidence of these backroom deals is lacking.
Light at the End of the Tunnel — Hope for the Future of Food Rights
Some of the stories in Life, Liberty, and the Pursuit of Food Rights end sadly, while some are continuing sagas that Gumpert is covering on his blog as time marches forward and new twists in the storylines emerge. Yet others are cause for celebration and provide us with hope for real progress in the fight for food rights. These include legal victories for herdshares, organized resistance on the part of local law enforcement to federal regulators overstepping their bounds, the emerging food sovereignty movement, and major victories in jury trials.
While the legal status of herdshares and cowshares is variable and sometimes ambiguous, suffering numerous setbacks in some states, there have been several cases vindicating these models. These include decisions by an Ohio judge, Michigan's attorney general, and the Colorado state legislature rendering the models legal.
Once a federal grand jury subpoenaed David Hochstetler, as described above, his prospects for escaping the compulsion to testify were slim. His summons required him to produce documentation not only about his own milk production but “any and all documents relating to, or reflecting communications with, Right to Choose Helathy Foods or Aajonus Vonderplanitz.” If the FDA and Department of Justice were after information about Vonderplanitz, his organization, or the Rawesome affair, the grand jury could have granted Hochstetler immunity and compelled him to testify.
Hochstetler happened to live, however, in a county whose sheriff was involved in the County Sheriff Project, organized to defend local law enforcement from federal encroachments on their authority. The sheriff recognized Hochstetler as an upstanding and law-abiding citizen. He wrote to the Justice Department threatening that, if any federal agents forced an inspection of Hochstetler's farm without a warrant signed by a local judge based on probable cause, he would arrest them for trespassing. The Justice Department lawyer wrote back with similar threats, claiming the supremacy clause of the U.S. Constitution nullifies local law whenever it conflicts with federal law. Yet before the sheriff could respond, Hochstetler received a letter from the very same Justice Department lawyer letting him off the hook, releasing him from the grand jury subpoena and respecting his right to silence.
While there is no way to know what role the sheriff's defense of Hochstetler played in this victory, the story at least hints that local law enforcement are a more important check and balance on federal power than we generally recognize, and may be an important ally in the fight for food rights.
Several changes in Maine agricultural policy dating to 2009 that negatively impacted small farmers gave birth to the “food sovereignty” movement. These included the sudden emergence of licensing requirements for the sale of small amounts of raw milk to neighbors, in contrast to long-standing state policy exempting such arrangements from regulation, and cost-prohibitive regulations for small chicken farmers that appear to have contributed to nearly a quarter of chicken processors exiting the business by 2011.
Disenchanted farmers then began organizing to declare themselves independent of state and federal food regulations. Sedgwick passed the first “food sovereignty” ordinance in March of 2011. About 120 of the town's citizens attended, roughly ten percent of its population, and the ordinance passed unanimously. Five other Maine towns quickly followed, and Santa Cruz, California was not far behind as the movement spread out of state. By the spring of 2012, eight towns had passed food sovereignty ordinances. Although such ordinances are unlikely to gain legitimacy in the eyes of state and federal courts, they provide an important organizing principle for the food rights movement to rally around, and only time will tell where municipalities, like county sheriffs, hang in the balance of power.
The most promising tool so far within the food rights movement's tool belt appears to be good old-fashioned trial by jury. The first food rights case to go to trial was that of Minnesota farmer Alvin Schlangen. The state charged him with selling raw milk on more than an “occasional” basis, selling unlabeled and adulterated products, and selling food without a retail license. He could have pled guilty to a misdemeanor and walked out of court a free man, but instead risked two years of jail time and thousands of dollars of fines by pleading not guilty. He was tried in 2012 and acquitted on all charges.
Although Gumpert admits the food rights movement is more analogous to the homeschooling movement than to the civil rights movement, he provides the tentative but hopeful suggestion that the Schlangen trial may prove in retrospect to be the movement's “Rosa Parks moment.” Time will tell.
Another jury trial victory occurred in 2013, after the book went to press. Gumpert covered the case extensively on his blog. Wisconsin farmer Vernon Hershberger was tried for producing milk without a license, operating a dairy plant without a license, operating a retail establishment without a license, and violating a holding order. He had worked with the state to establish his private food club back in 2003 as a way to legally sell raw milk, but the state changed its tune in 2009 and attempted to shut him down. Even though the case revolved around raw milk — the product for which no license was available and which could not be sold in a retail establishment — the judge supported the prosecution's request to banish all mention of raw milk from the trial. Despite such heavy biases against Hershberger during the proceedings, the jury acquitted him of all charges except violating the holding order.
Overall, the trial was a major victory: the jury fully vindicated the private food model. Hershberger's sole conviction, however, was illogical when paired with the rejection of the other charges levied against him. The state had ordered Hershberger not to move food out of his refrigerators, but as a Christian he considered it a sin to let the food go to waste, so he distributed it between his family and the members of the food club. The holding order was based on the very charges the jury had rejected. After the trial, several jurors expressed regret for convicting Hershberger of violating the holding order. During the trial they were only able to see a version of the order so heavily redacted that they didn't realize it was based on the very charges they had acquitted him of, and the judge instructed them not to consider the legitimacy of the order. While the prosecution urged the judge to throw Hershgberger in jail, several jurors wrote to the judge, pleading with him to give Hershberger a light sentence. The judge read the letters aloud, saying in all his years on the bench he had never received anything like them. Hershberger escaped unscathed with nothing but light fines, though he is now appealing the conviction to remove it from his record. After the trial, several jurors decided to speak on behalf of food rights, join Hershberger's food club, or begin growing their own food.
These cases show that juries made up of common American citizens simply don't buy the argument that there is no such thing as private food and no nook or cranny of American soil exempt from state and federal regulators. The right to a jury trial may prove to be one of the movement's most important assets.
Who Should Read This Book?
Life, Liberty, and the Pursuit of Food Rights is a fascinating read. It treats the themes discussed in this review in much more depth, often delving into historical context, whether it be nineteenth century debates about germ theory or the late twentieth century surge in American imprisonment; often delving into personal stories, whether it be the poisonous infighting in some corners of the food rights movement, the strain and stress imposed on the families of persecuted farmers, or the inspiring searches for solutions to medical problems that has propelled many people into the world of traditional, nutrient-dense foods.
This is an excellent introduction to the history of the food rights movement. It ties together many seemingly disconnected events into a single, coherent story, and provides a foundation for a much-needed societal discussion about food and our liberty to consume it.
Who should read it? If you are interested in food or you are interested in liberty, you are bound to enjoy the book. If you are interested in both, it is a must-read.
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