Farm-to-Consumer Legal Defense Fund (Part 1)

Farm-to-Consumer Legal Defense Fund (Part 1)
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The FDA has made it extremely difficult for many people to procure, produce, and consume raw milk, and in a lot of cases this has caused people to be denied their freedom to choose what they put into their bodies. The Farm-to-Consumer Legal Defense Fund is an organization that is trying to help.

Peter Kennedy

That’s why our Peter Kennedy, an attorney for the Farm-to-Consumer Legal Defense Fund, has dedicated his work to protecting both family farms and consumers who want to consume the life-affirming foods they provide.

Listen in as Peter describes the outrageous cases in which he has to defend small farmers, how the government protects corporate food operations from responsibility, and what the FDA thinks about your right to consume healthy food.

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.

In the second half of this interview, Peter Kennedy talks about what makes muffins so dangerous to the US government, more secrets about food freedoms, and Peter’s role working with Farm-to-Consumer Legal Defense Fund.

Other Links In This Episode:

NIKOLA POPOVIĆ: And we’re back, I don’t know if you recognize this voice but the last time you heard me I wasn’t so good sounding, I was really bad, you could say. Okay, I can hear Adrienne laughing, what’s so funny?

ADRIENNE HEW: It’s you, you’re funny.

NP: So it seems like among other things, I got resurrected on this show, so we better get rolling. 

AH: I’m sorry for not including you on the Nutrition Heretic podcast recently, for the last couple of months. I’ve been running around like a chicken without a head; just trying to get through the holidays, trying to just keep my head afloat, and then my husband was down from San Francisco for six weeks. So that just kept me distracted, and trying to keep up with life. But you know my pet peeve, don’t you?

NP: Oh yeah.

AH: And you know that I have this pet peeve that in the United States I can buy a gun legally but I cannot buy milk without going to jail. And when I say milk, I mean real milk not the swill from the puss and blood-infected stuff that’s on the regular supermarket shelves. I’m talking about real milk from a real farm.

NP: Raw.

AH: This is an increasing problem in this country and a lot of people are pretty much fed up with it. As you remember, we had Charlotte Smith on the show and she’s with the Farm-to-Consumer Legal Defense Fund. She recommended we speak with today’s Guest Heretic, who is Peter Kennedy. He is also Farm-to-Consumer Legal Defense Fund, and he is an attorney for them. Peter, welcome to the show.

PETER KENNEDY: Glad to be here Adrienne, Hi Nikola.

AH: Thank you so much for being on the show because as I’ve stated before, when people get on this track and they want to improve their health, usually the first thing they do is they cut out meat and dairy because they think those are the devil. But then after a couple of years they think, “Well, my body needs it, I need to stop cleansing and I need to start building,” and they’re looking for options. One of the entry foods as I like to call it, is dairy. Many farmers, and it’s not just limited to dairy, but that is the big area, raw milk. Where farmers are continually being raided and their families are held at gunpoint, their herds being shot, and they are basically driven out of business by the US government. Talk to us about it. 

Why Didn’t the Founding Fathers Protect Food?

Peter, what do you think the founding fathers of this country would have done differently with regards to the constitution or whatever bill they would have had to pass if they knew that food would be under attack two hundred years later?

PK: Well that’s a good point you bring up, Adrienne, because I’ve heard a number of people say the reason the founding fathers didn’t bring anything up about a right to the food of your choice was that it was just assumed at that time. Back then, as far as I know, there were some aspects of food production and sales that were regulated but for just going out to the local farm, purchasing raw milk, the best I can tell, that kind of activity was hardly regulated at all.

But just as years have gone on, I mean there was a time in this country a hundred years ago when you had these swill dairies and a number of people were getting sick from raw milk that was produced in very unsanitary conditions. But I think since then there’s been the advent of refrigeration, stainless steel bulk tanks, that kind of thing. That’s long in the past and just a lot of these public health people carry on like it isn’t in the past but it is. Milk’s an unusual food because it’s the only food I know of that’s actually banned in inter-state commerce. 

FDA issued regulation banning it thirty years ago. What that it does is it affects the state laws. In most foods the laws are pretty uniform like in meat and poultry, the state governments have to at a minimum adhere to certain federal standards that are spelled out; the Federal Meat Inspection Act and  the Federal Poultry Products Act, but with milk it’s basically up to the states. So you have some states where maybe you can sell up to a hundred gallons a month. You have some states where goat milk is legal but not cow milk. You have a couple of states where you can only purchase milk with a note from a doctor. You have states where it’s legal in retail stores, states where it’s just legal on the farm, states where the sale is illegal, but it could be legal through what’s known as a herd-share arrangement where someone purchases an ownership interest in a dairy animal or a herd of dairy animals and as a result of that interest can get milk. And then you have other states where it’s only legal as pet milk. 

What’s happened is in spite of this ban, I think there’s legal acts, through either statute regulation or court decision, or just departmental policy. They made a decision not to enforce against it where any law prohibiting raw milk sales, where I’d say there’s legal access in over forty states right now. So eventually this federal ban isn’t going to ban that much if it’s legal in every state anyway. 

We worked with Ron Paul’s office about nine years ago on introducing a bill that would get rid of the interstate ban. He’s no longer in congress now but he’s got a great successor on this issue, Thomas Massey out of Kentucky, who has introduced two different bills. One that would introduce the last session. From what I understand, he’s going to reintroduce in this session. One would completely get rid of the interstate ban, one would at least modify where you could ship it from a state from where it is legal to another state where it is legal. I don’t know when it will happen, but I think that eventually the ban will be no more.

AH: Wow. Okay, so that’s just the ban for interstate. I live in Hawaii; I can’t get to the next state. And it’s illegal.

PK: I know there’s been a raw milk bill introduced in Hawaii the last few sessions and I think there’s going to be another one introduced this session. So it’s available, there are some of these herd-share programs out there. I don’t know if there are a lot. Based on what I hear from Hawaii, something has a chance of passing the next couple of sessions. And as you know, I mean, why not, because there’s hardly any dairy industry out there, right? As far as I can tell there’s only one Grade A dairy in the whole state.

AH: Yeah, that would be Meadow Gold.

PK: Right.

AH: Their dairy is quite scary. Besides the fact it’s ultra-pasteurized and homogenized, they put so many fillers in it I don’t even know how they call it milk.

PK: Ultra-pasteurized milk is like sludge and a lot of this pasteurized milk is like watered-down chalk.

AH: Oh, don’t even get me started on that stuff. I already wasn’t drinking it, but when I found out how it was made I was telling all my friends who are like “I can only drink the skim stuff” and I was like, “Do you know what is in there?”

PK: That’s actually something the dairy industry has been good at, encouraging the consumption of skim milk and low-fat milk. The nutrients are in the fat but in the meantime they get to take that cream and make another product out of it and get paid twice instead of once.

AH: Right, exactly. One thing that I always tell people because they’re on these clean diets so they want the low fat and skim milk, I tell them it’s the expired milk, the infected milk, and all these other undesirable forms of milk that have been desiccated and then added to it. Considering that the leg the FDA is trying to stand on is one of safety, it’s so contradictory not only because of the thing I said about having a gun, but also because they’re putting the rejects in that skim milk.

PK: When you look at some of the things the FDA has legalized like aspartame, high fructose corn syrup, MSG, yeah, it just doesn’t make any sense at all, it’s just driven by industry. I think there are really two food systems. There’s the industrial food system and the local food system, and really more than any other food, raw milk is the gateway to both systems. If you go to a supermarket, you go initially to get the perishable items of which milk is one. When you’re in the supermarket you’ll buy other foods, other products there, and the same principle holds true more often than not with the farm. They’ll go there to get raw milk and when they’re there they might buy meat, eggs, poultry, and produce. But raw milk a good bit of the time is what gets the customer on the farm in the first place.

These raw milk bans are just competitive regulation disguised as health regulations. People can get sick drinking raw milk, it’s happened. They get sick on any food if it’s improperly produced or improperly handled.

AH: I think of so many of our more recent food scares. First of all they’re covering entire regions of the country; California, the North East, what have you, and the vast majority came from vegetable products. Occasionally you hear about a ground beef one or maybe chicken. There was a chicken thing in California with Foster Farms. For the most part they’ve tried to incriminate raw milk several times but many of these so-called outbreaks didn’t even consist of everyone consuming raw milk.

PK: It’s interesting because we had a number of calls over the years over food-borne illness. Food-borne illness is blamed on raw milk but what we get a lot is where there’s one illness that’s not officially a food-borne illness and they’re still trying to pin it on raw milk. Number one, they wouldn’t do that on any other food I don’t think, and then the second thing is when you’re sick and you have to fill out these intake sheets if you go to a doctor or something like that and they ask you about all these different products you’ve consumed. From what we’ve seen happen again and again is as soon as the sick individual puts down on the intake sheet that he or she’s consumed raw milk, the investigation ends right there. They don’t put any other possibilities, they just zero in on that. On these cases where there are one or two illness and they blame raw milk, what we’ve seen far more often than not is raw milk had nothing to do with the illness

AH: Right, and I think there are a number of consumers who kind of straddle the line so they want to do more back to the farm. They want to source their food locally but there’s that nagging voice; it might be the mother-in-law or whomever saying, “Oh, it’s that milk”, so those people might also be like, “Well I don’t know, I had some raw milk,” because otherwise I would just say ‘milk’. I would be filling out the form, yeah I had some milk, and I had green peas, whatever.

PK: A lot of it initially is just breaking down the walls in your mind because you hear so much of this raw milk propaganda from the public health departments. But what we’ve seen is a lot of people who have health issues and raw milk is part of their protocol for recovery, so they’re desperate enough where they put all the rhetoric against it aside and try it. Not in every case, but in many cases it does help them. 

One example I can give you, lactose intolerance is a big problem in this country and we commissioned this polling firm to survey a number of people to find out how many people they estimated were lactose intolerant and it came to something like twenty-nine million. Aside from that, we have this retired MD who is our raw milk expert and he did a poll of his own and surveyed about fifteen hundred raw milk drinkers in the Mid-West. One of the questions on his survey was, “Have you ever been diagnosed with a health care professional as having lactose intolerance?” There are well over a hundred that said they had and out of that number 82% of them said they could drink raw milk without a problem. Conventional milk is a highly problematic food, highly allergenic. It’s showing in the bottom line; they’re losing market share every year. I think about fifty years ago there were something like 500,000-600,000 dairies in the country and today it’s right around 50,000 and that figure I saw was a few years ago so it might be lower than that.

Market share down

AH: So about how many family farms, not just raw milk farms, but family farms in general are going out of business every year?

PK: I can give you an example. The state that has more raw milk dairies is Wisconsin. Wisconsin has more raw milk dairies by far than any other state, I think. Raw milk is legal there but in a very limited way, farmers really can’t make a living selling it for the most part. I think it was a little over twenty years ago they had close to 30,000 dairy farms and now from what I understand there are under 10,000.

The conventional milk system is just complex enough so these farmers can’t quite figure out they’re getting done over. If you’re a small farm and you’re still in it, you need to get out of it. There are three ways I see that they can get out of it. Number one, they can get their own bottling and pasteurization equipment, but that’s a big capital investment. Second, they could start making value-added products; yogurt, butter, things like that. Again, that’s a big investment. The third way, which is not nearly as big an investment, is just to be able to sell raw milk direct to the consumer instead of selling it to the co-op. What the co-op might pay you a $1.50 for if you’re not organic, you might get $6.00 selling direct to the consumer. In some areas of the country you could probably get a good bit more.

What Happens When the FDA Raids a Farm

AH: I’m wondering if you could describe for us what some of the raids on these farms look like. People think they should be stopped. What kind of gear? Which departments are going into these farms first of all, or have jurisdiction in these different states and what are they doing? Again, I’m comparing this to cocaine possession or something like that. How does this think?

PK: What often happens is it just starts as a routine inspection. The inspector will go in, say in a conventional dairy. We have a member in Michigan where these herd-share agreements are legal, the caveat being that only fluid raw milk can be distributed to someone who has an ownership interest or ownership rights in the cows in the farm. Butter, cream, none of that can be distributed. Legally that distinction, I think, is made to protect the dairy industry because the value-added products are where the money is. But at the same time if you say that this is the share-holder’s or lease holder’s milk, why can’t they retain someone to have that milk made into another dairy product? Because what you’re saying is it’s their property when it’s milk, but all of a sudden when it becomes butter it’s the state’s property or it’s an illegal transaction, which doesn’t make any sense from a property rights standpoint.

What had happens to this guy in Michigan, every time he gets inspected as a Grade A dairy twice a year, pretty close to every time he goes, the inspector comes up in there and they go in this one room which is just reserved mainly for people who have leased cows that are actually separate from his Grade A herd and get the milk from those cows which they have the ownership rights in made into another product. I think this has happened three or four times now. They will go into this room that’s leased out to the lease holders of the cows; it’s not part of the Grade A operation. They’ll take product every time and what happened after a while was the Department of Agriculture went to court and got an injunction prohibiting this farmer from violating the Michigan Food And Dairy laws.

What happened was they came back after the injunction was in place, found more of these products and filed a petition in court to have this farmer held in contempt. The court initially was hearing this testimony from the Department’s attorney; that this guy was violating the Grade A dairy laws, you can’t do this and this. The interesting part about it was that one of his lease-holders intervened as a party because he was getting cream made and it was being taken every time in these raids or seizures. Because this guy was in there, all of a sudden the focus of the court turned to, let’s not look at whether it’s a violation to Grade A dairy laws so much, but let’s start concentrating more on whether it’s a violation of the lease-holder’s property rights.

You may also be interested in Ensuring Access To Real Food With Food Rebel, Charlotte Smith

They had a hearing on this contempt of court action in October and last month the judge ruled that the farmer was not in contempt of court. The interesting thing about it was that the day the farmer found out about it he was talking to his attorney, and while he was talking he was getting raided again because it was the semi-annual inspection date. They cleaned out this refrigerator of the butter and cream and whatever other products there were in this lease-holder room. As it turns out the inspectors weren’t aware of the court decision. Hopefully that will be the end of it, but you never know.

AH: So when you say they cleaned out these value-added products, what kind of monetary amounts are we looking at here?

PK: It depends, sometimes it can be in the hundreds of dollars and sometimes it can be over a thousand. Thankfully you don’t get as many of these raids, but there was one about ten years ago where they not only raided the farm where raw milk was kept, but they pulled the farmer’s truck over on the highway and they wound up taking $7,000 worth of product. It’s just a total waste of good food; they usually wind up dumping it

NP: Not to mention the financial loss.

AH: Right the financial loss to these farmers who already are probably not meeting the poverty line many times. What I was going to say was, I remember the case of Mark Nolt in Pennsylvania and he is probably the most famous Amish man in the country now. They handcuffed him in front of his kids; he had ten to twelve kids. I was told at one point, and maybe this was a collective because they’ve gone in numerous times, that they’ve taken well into five figures worth of dairy.

PK: I definitely think that’s accurate and I think they tried to fine him a bunch of money and I think there still might be outstanding fines against him. He had so many different cases at one time trying to unravel them is pretty complex. It’s difficult to just try to figure out everything he had going on with the state of Pennsylvania at one time. Bottom line is I think they’ve left him alone for number of years now and wisely so. Hopefully he’s still feeding his community.

AH: Just for people who don’t know, Land O’Lakes, the butter people are huge in Pennsylvania and you see their signs all over the dairies, the farms that sell them their milk. Throughout Pennsylvania you see this and I know that another farmer that I was purchasing from was dealing with the state as well. Searching his property constantly for what was there. If people think that the Amish may get a pass for this because they do have very different ways of living, but no, most of these people don’t go beyond fourth grade education and they are being treated like common criminals. It reminds me of Boardwalk Empire and prohibition and the sale of alcohol.

What the FDA Says About Citizens’ Rights to Consume Foods

PK: That’s a good comparison, Adrienne. Prohibition is a dismal failure and I think just this interstate raw milk ban is too. To me the sign of a bad law is one that otherwise law-abiding citizens violate with regularity and that’s what you get with raw milk. That law is so strict that I’d say that technically there might be thousands of people each week in this country that violate it, most of them being consumers. 

We filed a lawsuit challenging the interstate ban about half a dozen years ago. We got some very interesting things out of the lawsuit. The FDA responded to our complaint. Our complaint basically said the law was unconstitutional. Their views on the freedom of food choice became a matter of public record and one of the things they said in their reply to our complaint was that there is no absolute right to consume or feed children any particular food. And then they also made a claim where they basically said that we don’t have a fundamental right to our own physical and bodily health, so that woke a lot of people up as to what the agency’s views on a fundamental importance to all of us.

How the FDA Violates Congressional Statutes

AH: And I think most of us, whether or not we even believe in God would think that’s a God-given right to be healthy and eat food.

PK: They’re basically saying that they want to give you a vaccination and if you don’t want to get the vaccination that’s too bad. This is more than just about food, it gets to the question of who has the right to determine what we put in our bodies, is it us or is it the government? The FDA made their views pretty clear. That was one thing, and it’s out there now. People suspected that long before our case, but it’s on the public record now and I don’t think they’ve changed their views at all.

That was one aspect of the case, and then another aspect of the case was that the FDA just said in the court documents that they weren’t going to enforce the law against individuals who cross state-lines to pick up raw milk. If it’s really that dangerous a product why wouldn’t you try to enforce it? There are all kinds of individuals who go across state lines, there are all kinds of groups who go across state lines. To me, making a statement like that is at least somewhat of an admission about the weakness of the law.

Then finally the judge hearing the case ultimately dismissed the case. He said the FDA really hadn’t taken an enforcement action against any of our plaintiffs. One of our plaintiffs was subject to a state-enforcement action, but when the judge dismissed the case he said something to the effect that this law was in a state, the word he used was desuetude and I’d never heard of that word before, but I think the basic meaning of it is not worth a flip. You just pointed out that this really hadn’t been enforced at all. Since we’ve been in existence we’ve seen it enforced once so why bother challenging it when FDA isn’t enforcing it?

We do continue to challenge it, because there’s always the threat of some kind of enforcement but it’s just a bad law in a number of respects. One of the unusual things about the law was that congress had no involvement in this ban becoming law. There was a court decision where the judge ordered the FDA to issue a regulation banning raw milk in interstate commerce. FDA issued the regulation, there’s no input from congress at all.

A sideline to that is we currently have a petition with FDA to lift the interstate ban on raw butter and we’re a co-petitioner along with Organic Pastures dairy in California, which is the largest raw milk dairy in the country. One of the things we discovered doing the research on this was the FDA is powered to issue what is called standards of identity for different foods. With milk the FDA standard of identity is it has to be pasteurized, it has to be at least 3.25% milk fat, and so on. But there are exceptions to FDA having this power to issue standard of identity regulations and one of them is butter. The Food, Drug And Cosmetics Act specifically says that the FDA could not issue a standard for identity to butter. Congress has through a definition where they basically say it can be raw or it can be pasteurized, so issuing this blanket interstate ban on all dairy products the FDA is has contravened this congressional statute on raw butter being able to be either pasteurized or unpasteurized.

AH: Interesting, and we know that the soft cheeses, particularly the ones coming from Europe, those aren’t allowed to be raw. We used to be able to get raw like Brie and Camembert, and things like that.

PK: That brings up another interesting aspect to this, there is a federal regulation that says that raw cheese has to be aged at least 60 days before it can be sold and with a cheese like Camembert my understanding is that in France its shelf life expires at the 57th day. So technically you can’t even sell it in this country. But again, it’s another ban. Different cheeses have different aging requirements so this blanket 60 day aging requirement seems like it was a political solution to something; a dispute over what should be and what shouldn’t be pasteurized among cheeses, and from a scientific standpoint it doesn’t make any sense.

The Problem with Studies

AH: I’m glad you said scientific standpoint because people who do not understand food, who are not in the sciences will say well, science says, but the science doesn’t say that. And you can’t trust science when it comes from the people who stand to gain from it. Science can be faked; they can just slap whatever conclusion they want on something and say its science and 75% of the population will swallow that.

NP: Especially when it’s funded by the corporations.

AH: Oh yeah, for sure.

PK: It’s heavily politicized. To give you an example of that, there have been these pure view studies where conventional dairies have had samples taken out of their bulk tanks and there could be a thousand cow or five thousand cow dairies and these pure views said there was a pretty high positive pathogen rate out of the samples taken. That was produced for pasteurization that that they tested that wasn’t milk produced for direct human consumption. The dairy industry refuses to make a distinction between the two but we have records of a number of different states that do require pathogen testing and the rate for positive pathogen testing with raw milk that’s produced for direct consumption is far lower than the rate was for raw milk produced for pasteurization, so it’s just another example of the science getting politicized. The pure view journals are on part of this raw dairy ban for the most part so it will probably be tough to publish the data, at least at this point. There are some signs things could be softening up a bit.

AH: I always say that peer review journals just mean that the conclusion agrees with whoever’s advertising the study that’s being reported on.


PK: Oh sure, yeah, at one time the tobacco companies were heavy advertisers in the Journal of the American Medical Association. You know how that goes.

AH: Exactly, it’s just to let everybody out there know, don’t just think, “Oh, it’s a study.” And another thing, too, a lot of times, particularly when looking online, they don’t make the entire study available, for example, on Pub Med without a subscription. Many times I’ve seen when I’ve had my medical journals and reading through the actual studies; what the studies report and the design of the study is often in complete opposition to the summary of said study. In other words, their summary and their conclusion does not always reflect the actual data that is in the study. And I found that as well when I went to school for nutrition, we used standard dietetics books which would talk about the vitamins or minerals in a particular food or fat content or what the structure of a sugar molecule looks like and then at the end they would summarize it by telling you; we said this but there’s these new fake fats, you remember Olestra? There are these new fake fats on the market, and these are much better for you. Under a microscope they look like olive oil or what have you but you should just eat this instead. I’m painfully aware of the fact that the data is out there but it’s not necessarily the take-home message given to the consumer, or to the doctor, for that matter. 

Farm-to-Consumer Legal Defense Fund, Interview with Peter Kennedy

How the Dairy and Pharmaceutical Industries are on the Same Team

PK: The saying goes; you have to follow the money.

AH: For sure.

PK: The dairy industry definitely has a stake in eliminating access to raw milk and I think in a lot of ways the pharmaceutical industry does, too. It might be a little bit more indirect, but I’m sure you’ve had someone from the Weston Price Foundation on.

AH: I’ve had Sally herself.

PK: Well there you go. I have gone to a number of their conferences and you just talk to people. Some of them credit raw milk for a cure when they might have had Crohn’s disease or something like that. They credit raw milk for being part of the reason they were cured. But more often than not, what you get when you talk to people there is a lot of them don’t go to the doctors but even more than that they don’t take medication. In that respect I definitely think raw milk is a threat to the pharmaceutical industry, which is about the most powerful lobby there is right now.

AH: Absolutely, it was totally handed over in the eighties and continued in the nineties so I’m extremely aware of how insidious of how that industry is.

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