Defending Small Farmers with Peter Kennedy (Part 2)

Defending small farmers
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In the second half of our interview with Peter Kennedy of the Farm-to-Consumer Legal Defense Fund, he talks about the Great Apple Muffin and Oatmeal Cookie Confiscation in Michigan. This was just one in a long, long list of abuses by the powers that be. Learn how Peter’s role at the Fund helps real farmers make a living and thoughtful consumers get access to health-promoting foods.

Did you miss the first half of this interview with Peter when he described the outrageous cases in which he has to defend small farmers and what the FDA thinks about your right to consume healthy food? Click over to listen now.

Peter Kennedy

Peter Kennedy is an attorney in Sarasota, Florida and served as President of the Farm-to-Consumer Legal Defense Fund from 2008-2016. He has represented or assisted in the representation of dairy farmers facing possible state enforcement action in Florida, Wisconsin, Ohio, Michigan and Indiana. He has helped farmers get started in the business of distributing raw milk and raw milk products in many other states. He is currently working with others to challenge the federal ban on the interstate shipment of raw milk for human consumption.

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The danger Behind 18 Oatmeal Cookies and 17 Apple Muffins

ADRIENNE HEW: We focused clearly on raw milk so far, I’m going to read this headline, “Michigan MDARD seeks destruction order for 18 oatmeal cookies and 17 apple muffins.What’s going on?

NIKOLA POPOVIć: That’s a bit dramatic.

AH: Now cookies and muffins? I don’t eat a lot of cookies, I’m not the biggest fan of sugar; however, what’s going on there?

PETER KENNEDY: Well that really did happen. That case originated when one of these herd-share dairies in Michigan described earlier was accused of making several people sick and again it looks to me like it’s typical. You get one, two, or three people that get sick and somehow they blame the dairy where there’s really not that much evidence, and that was true in this case. Initially these investigators came to the farm and they insisted that they see farmer’s shareholder list and they saw that as an intrusion of privacy, which given the lack of evidence they had that the dairy was responsible. The farmer refused to let them on so they came back with a warrant and in the process of their search, this farmer has a milk room, there’s a table there. She produces high quality milk and people come from an hour or more in some cases to pick up the milk. There are other leaseholders there that might make their own foods and maybe want to make a little money at the same time; they provide the lease holders something to eat when they’re producing their milk. This inspector saw these cookies and muffins and usually they are exempt from regulation under the Michigan Cottage Food Bill, except there has to be a label saying this has been prepared in an uninspected kitchen and the name of the producer. The only people who really came to that farm were leaseholders. 

We always thought there should be a distinction between the public and private distribution of food. And if ever there was a case of where there should be that distinction it was this one, but the inspector didn’t use a whole lot of common sense. He took the cookies, he took the muffins. The farmer had a bottle of kombutcha for her own consumption there; he took that because it wasn’t labelled. Then someone had paid for a couple of dozen eggs that one of the other lease holders had dropped off. So he confiscated the eggs and said if she wanted to continue that arrangement she needed a food warehousing permit. The whole thing was this farmer didn’t make a dime out of any of the foods that were confiscated; she was just doing it as an accommodation to her leaseholders. 

It was just over the top and the trouble is that some of these food laws are just so broad, like the Michigan food law; technically maybe it was a violation, but how about a little common sense and how about reforming the law? There is a clear distinction between the two because this is crazy, these people aren’t interested in the government’s protection, they’re interested in not having their food confiscated.

AH: Given the nature of these items that were taken, it’s making me think of church and school bake sales. Sometimes here when people have a yard sale they’ll also do a little bit of a bake sale, their kid will put up a little stand with some brownies and lemonade. Is all this going to be under attack, too?

PK: They’ve shut down lemonade stands before. There was one where, I think this was in California, they were initially thinking of fining the stand a significant sum of money until someone restored sanity somehow. The legislature needs to understand that you got more and more of these private-types of models for the distribution of food. 

Lemonade stand

There are more of these buyers clubs where someone meets at somebody’s house. Different members of the buyer’s club make products for only members of the buyer’s club. They get a little money out of it. That’s really none of the government’s business unless there’s some kind of credible evidence that adulterated product is being distributed. If that’s the case then sure the government has the power to break up a church picnic. But until then it’s really none of their business. It just seems like a waste of resources when you see all the imported food that’s coming into this country right now. That’s where focus shifting their attention should be I think.

Bogus Claims About Real Food

AH: Or reigning in the GMO. Let’s start at home. Between the pesticides and all the other stuff we’re letting into our food system, yeah let’s look in our own back yards first.           

PK: Right, and unfortunately it doesn’t look like the GMOs are going to be reigned in at all.

AH: We’re very sensitive to it here in Hawaii where they admit we have a very fragile eco-system. The British brought over things, the Portuguese brought over things, the Americans, the Japanese, yada, yada. However, while people are getting detained at the airport for having an apple from the mainland, Monsanto is freely growing their GMO papaya on many of the islands. They tried to GMO the taro; they tried to GE many of the foods down here. You can’t tell me that my apple is worse than any of this crap you guys are bringing in.

PK: Oh yeah, and unfortunately it seems like a wise kind of a laboratory experiment for companies like Monsanto.

AH: It’s criminal.

PK: Yeah, it is, there’s no science behind it all and they’re trying to pass it off as regular food when it’s not. It doesn’t look like that’s going to be changing with the new administration, unfortunately. 

AH: Yeah, exactly. You brought up Sally’s name, she mentioned something decades ago, I’m not sure if this was ever true. Was it true at one point that there was a law being proposed that people could not let their dogs outside? And on the back end the idea was that they would reign in grass farming.

PK: I don’t know. I haven’t heard that so I can’t tell you. We’ve dealt with a number of crazy laws, but I haven’t heard about that.

AH: Okay, so what are the other things? Some people listening here might not care because they don’t drink raw milk. No matter how much you and I know people have been healed by this; we’ve even got Nikola on the raw milk train since listening to this and the Weston A. Price Podcast. What are some of the surprising places people don’t realize their food freedom is being assaulted and that one day the only choice they’re going to have if this continues in this direction. The only choice they’re going to have is the nasty swill that’s made from puss and blood-infected milk. The packaged nonsense, the GMOs, etc. What are some of the surprising places that you think people just aren’t even considering right now?

Accountability for Large Processors

PK: One area we’re working on right now is to in effect repeal the Wholesome Meat Act from an amendment to the Federal Meat Inspection Act in 1967. What happened was when they passed that amendment the USDA basically took over state meat and poultry regulating. The state could do their own inspections instead of the feds, but their standards had to be at least as strict as the feds and what happened was it just drove the bust up of complying with the law. I think back in 1967 there were about ten thousand slaughterhouses in this country and today there are less than three thousand. 

What that’s done in states like Florida where I am is a lot of these states don’t have state-inspected slaughterhouses, they only have federally inspected slaughterhouses and custom houses. In Florida it’s difficult to get access to the federally inspected slaughterhouses. Some of them are just for the bigger outfits, these vertically integrated food companies that control everything from start to finish including the slaughterhouses. Then you have these custom houses where the only people who can get meat are the people who own the animal at the time of slaughter. Most states limit the number of owners you can have and what that does is it cuts down the market for small grass-space farmers. There are plenty of people who would be willing to buy meat from them by the cut but they can’t get into the slaughterhouse. They can’t get access to the slaughter house. 

There are some states where they do have some access, where I’ve heard they have to make a reservation to get their animals slaughtered a year before time. So what you have is that the demand for this local grass-fed meat isn’t being met in a lot of areas in the country so your freedom of choice in those areas is, do you want McDonald’s or do you want Burger King? It’s not the way many people think it is. Again this is Representative Massey; he’s working on a bill that would allow the sale of custom-processed meat by the cut if the state legislature passed the law. That’s one area where people think they might have food choices but in many areas of the country they’re much more limited than they realize.

AH: Tell us a little bit, because I’ve asked you so much about the laws and the milk and the meat and all these things, tell us what your role is at Farm-To-Consumer and how you support both the farmer as well as the consumer.

PK: Right now I work on the day-to-day member services. If there’s a problem with a regulator they’ll call up and I’ll deal with that. I’ve worked on these food seizure type cases before. The one thing I forgot to say about the muffins and the cookies is before that just about all the food seizures were dairy so this was new for us. The other thing I do is work on policy; I work with members’ rights in drafting legislation to create a more favorable regulatory climate. One of the things we found out is that you can have healthy soil, the healthiest livestock, a great marketinging plan, but if you have poor regulatory climate it doesn’t matter. Ultimately our goal is to give people the choice to buy directly from an unlicensed, unregulated producer if that’s what they want. 

Success Stories in Favor of Real Food

Now on a day to day basis we’re just trying to create more favorable regulations for producers to operate in. On the policy level we’ve basically been working in four or five core areas. One is these cottage foods where people who are producers are able to sell baked goods, jams, jellies, maybe fermented vegetable products with little or no regulation. Most of the states have passed cottage food laws by now, some are definitely better than others but it’s a trend that’s gone in the right direction. 

Then a second area would be unfarmed processed poultry. There’s a federal law that allows farmers to slaughter and process up to 20,000 birds a year on their property without inspection. Inspection means no one has to be present when the slaughtering’s taking place. For people who are interested, we just put up a poultry map on our website detailing the exemptions; 1,000 birds and 20,000 birds and we’re detailing which states have adopted both exemptions, which have adopted just the 1,000, what states have adopted a hybrid, and which states that haven’t adopted any. The only state that hasn’t adopted either exemption is surprise, surprise, Arkansas, the home of Tyson Foods. That’s secondary, there’s a federal exemption that’s up to the states to adopt it. We work on legislation where a state does formally adopt it. This federal poultry exemption is one of the better food bills that congress has ever passed. 

And then a third area would be on farm slaughter meat animals and custom slaughter. This bill we were talking about, which is called the Prime Act is one of our efforts, but the federal exemption allows more leeway than a lot of the states are using right now. You can slaughter animals on your own farm; what I’ve been told by USDA is that as long as you have at least a partial ownership, you being a farmer, other people can have an ownership interest in that animal, too, and as long as the interest was there at the time slaughter took place you can distribute meat to those other folks. 

Raw milk products

And then we have raw milk and raw milk products as a separate area all on its own. Most of the states have allowed the legal distribution of raw milk in one form or another. Surprisingly, not that many have allowed the sale or distribution of cream or butter or not nearly as many other products. I think overall raw milk has a good track record for safety. Almost no one gets sick off butter, from what I’ve seen, and very few people from raw cream. It’s kind of two steps in that area; get the raw milk laws out of the way and try and get the laws for the sale or distribution of value-added raw milk to their products. Even though it’s definitely not a safety issue value-added is worthless, so the dairy industry is reluctant to let raw milk farmers a piece of that action. 

And then finally, the fifth area, the one you’d ultimately like to see, I just call super-cottage foods, which is practically any food you can sell. There are some exceptions because of the federal Meat Inspection Act and the federal Poultry Act. Short of that, just about any food can be sold. For instance, we were talking about the unaged raw cheeses, the states can sell those. You can sell those with intra-state commerce right now, but just not that many states have passed laws on that, probably due to pressure from FDA, USDA, or both agencies. Wyoming actually passed a bill a couple of years ago that, except for meat and meat products, anything else can be sold without a permit direct farmer-to-consumer. Or from home kitchen-to-consumer.

So from a food safety standpoint you’ve got the food safety people calling for transparency or traceability. It’s not like getting sick on a hamburger in a restaurant where the meat comes from eight different countries and ten different states. With this local food it’s a matter of picking up the phone and calling the producer. So you have this tight loop and in some cases, this herd-lease example I gave you earlier. I call it the closed-loop transaction where there’s complete transparency and traceability. I’ve seen cases where it did look like someone could get sick from consuming raw milk and it was through one of these herd-share agreements and there’s no need to put out a public announcement. Usually when there’s a recall there’s a suspicion people got sick from a particular food; they’ll announce it on the nightly news, they’ll put it in the papers, the department will issue a press release, and sometimes the producer will issue a press release. A couple of these herd-share cases where there’s no need to issue any release; all the people who could have been affected were covered. Either by the farmers giving a heads-up or the investigators.

AH: It doesn’t even make sense for that to hit the public eye if it’s twenty people involved. It’s one thing when you’re crossing seven states to get your spinach or scallions to people, and then definitely you need to know plus having it on the news.

Number of Farms Driven Out of Business by the Government

PK: One other thing I was going to say, Adrienne, was that the one of the things we’re worrying about is the FDA Food Safety Modernization Act which is exemptions through which, fortunately, most of our members qualify from some of the worst provisions of it. It is something that can put a lot of people out of business if they are subject to those provisions. 

There’s a food safety plan requirement for food processing which is very onerous if you’re subject to it and there’s a national produce safety standard for many produce growers. What this is going to do is increase our reliance on imported food. Supposedly they’re going to inspect the foreign firms too, but they’re not going to inspect them as much; they may rely on a third party where maybe a job isn’t as done as thoroughly as the inspection should have been.

Listen to this episode and learn how Farmers can make a viable living!

The Difference in Safety Between Imported and Local Food

NP: Sorry to cut in, but this is what is happening here in Croatia because there was a recent outbreak of salmonella. I’m not sure how to say it in English, but the thing is it’s the same thing Peter was talking about happened here. A lot of our own food doesn’t get used. We used to produce all of our food and now more than half, if not more than 70% of food is being imported. What happened was that the chicken that came through customs wasn’t properly inspected so there were major failures in both chicken and eggs and that caused quite a bit of illness, I think around three or four people died from it. It was a major mistake and it was really showing the difference between how domestic products are being inspected and handled and how imported goods are being inspected because they don’t go by the batch, they take one sample and they do just not a really thorough job with it. And if everything is alright then the whole shipment can go in, there’s no problem whatsoever. They are far more scrutinous with domestic products and you’re less likely to encounter any disease with our products, but since the majority of the produce is being imported it’s less likely to run into our own products that are being sold as domestic as a product of this country.

PK: I don’t think FDA has ever said they’ve inspected more than something like two percent of the imported food, it might even be one percent so you’re getting all this food possibly made under unsanitary conditions coming in from thousands of miles away, these long supply chains. Food production is the first part of your national defense; I think you want your communities and regions to be as self-sufficient in food production as possible. The farmers who are members, I look at them as front-line healers; they produce the quality that benefits health, doesn’t hurt it, and this reliance and emphasis on exports and imports, these trade deals are really destructive to our nation’s agriculture.

NP: Because we are in the European Union and it is part of the deal when you step in. You have these regulations; how much you must, how much you are obliged to import. There’s that question as well and most of the things that we import are completely unnecessary because we can produce all of them right here and with far better quality.

AH: The last I went to Spain I noticed the same thing, you cannot get a Spanish-grown vegetable. Pretty much everything comes from some other part of Europe or Africa. Just very, very little. Actually, I did find a few grapes one day; I think it was in Barcelona. I was told they were local and they were all moldy. That was the extent of it, but everything else, of which there wasn’t that much variety to begin with, was all imported from France, England, North Africa, etc.

PK: I think that there are policies out there that are designed to make countries more dependent on imported food. One example of that is the International Monetary Fund gets part of this illusion that the World Bank or IMF comes up with is to help them pay down the debt by producing food for export so they cut down the production of foods that are consumed in their own countries and ramp up the foods produced for export. That doesn’t promote food security at all.

AH: Right, ugh, it’s pretty entangled for sure.

Why You Should Become a Member of the Farm-To-Consumer Legal Defense Fund and Help Small Farmers

Now one of the things that you also do at Farm-to-Consumer Legal Defense Fund is you help the farmers when they get accosted by government agency to see through their legal bills, correct?

PK: Right, our members get a lot for what they pay. Our annual fees for farmers are $125.00 a year and what they get unlimited consultation with attorneys on matters that are within our mission statement. We have a toll-free hotline if there’s an unfriendly visit, a surprise visit from a government inspector; we usually have an attorney available to help them through that. We also have a farmer that gets farm consultations with us and if there is a formal judicial or administrative hearing, what usually happens and with very rare exceptions, is that we have a legal committee, and if they vote to take on the particular case it’s not going to cost the farmer a dime beyond their membership.

The best example I can give you is our acting president, Elizabeth Rich, won a case in Wisconsin a few years ago. She was a co-council on with another Wisconsin attorney; we had a member, Vernon Hershberger, that was charged with four criminal misdemeanors for violating the state food and dairy law. There was a five day trial; there were all kinds of pre-trial hearings. He wound up getting acquitted on three or four counts and the one count he was found guilty of didn’t stop him from continuing what he was doing. Our expenses through that trial were probably $60-65,000. I’ve had attorneys tell me that if that was handled by a private firm it might have been eight to ten times that, maybe more. I’m sure the state of Wisconsin spent a lot more on that case than we did. We try and level the playing field and we’re representing someone just as state’s chances of depleting the farmer of their resources are going down. We can’t pay their feed bill or their personal expenses, but we can take all their legal expenses so the chances of the state winning some kind of war of attrition decrease.

Defending Small Farmers interview with Peter Kennedy

AH: Thank you so much for the work that you do. You’re an attorney, you could have gone in any direction. Not you, personally, necessarily, but many people get into it for the money and it’s incredibly heartening to know that you’re truly standing up for the little guy and probably the most integral person in our collective lives is our farmers. Whether or not people want to believe that, even if they think they’re comfortable eating all imports, these food freedoms are incredibly important to safeguard. There are implications for other countries as well because so many countries use the US model whether through bullying on our part or just wanting to be part of this so-called progressive modern society. I saw a lot in the Caribbean, I saw a lot of countries that were adopting a lot of similar laws. So thank you so much.

PK: One thing I can tell you for sure, Adrienne, is we are a true grass-roots organization; we’ve never taken a dime in government funding. The only corporate money I know that we’ve taken is through small like-minded business and the bulk of our revenue is membership fees and individual donations, most of which are not tax-deductible. Thankfully within the past year or so we’ve formed a sister 501C3 foundation which is meant to help out with our litigation efforts. We just maintain our independence and haven’t let any corporate or government money get in the way of us carrying out our mission.

AH: Congratulations on that and thank you, any parting words before we let you go? 

PK: I encourage anyone to join, everyone eats; even if you’re not a farmer you are still a consumer. You can go to our website at you can join online. If you have any questions about our organization there’s an email address and a number there you can call. We are people who are passionate about what we do and I think we make an impact and want to make a bigger one.

AH: Thank you so much again. Everybody, please go to to find out more and to donate. Remember from the episode with Charlotte Smith, every two years she was shopping for milk and meat again because her farmers were going out of business and not only for the financial issue of not charging enough for their products, but also possibly because some of them were put out of business by corporations and our own government. check it out. Thank you so much, and keep us up to date, Peter, with your developments and your successes.

PK: I will, thanks for having me, Adrienne.

AH: Thank you.

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