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Food Safety Is One Thing, But Don’t Use Safety To Promote Collusion and Restraint of Trade

May 29, 2010

Raw Milk Safety Is One Thing, But When It Comes to Collusion and Restraint of Trade, Count Me Out

DateStory from The Complete Patient.  The Business of Your Health.
Saturday, May 22, 2010 at 03:52PM

A reader emailed me questioning how I could suggest farmers partake of civil disobedience. “It strikes me as somewhat irresponsible to be recommending farmers break the law to make a point about rights.  Easy for you to recommend that since it doesn’t affect your income….”

I’d like to answer that, but before I do, I think an explanation of how I got to where I am is in order. Even though I’ve extolled civil disobedience as an option at different times, I’ve mostly encouraged farmers and consumers to work through the system to gain acceptance for raw milk. Heck, I’ve even come down against farmers I thought might be cutting corners that could lead to illnesses, and against the Weston A. Price Foundation for being overly defensive in denying outbreaks.

My sense was that the overall regulatory and legislative situation could be evolving toward a quid pro quo–more emphasis on safety and safety-related education in exchange for expanding access to raw milk.  As Lykke notes, we even had an involved debate and discussion on this blog between lawyers Steve Bemis and Bill Marler on key components of legislation and regulations that would make safe raw milk available from farms. I expressed concerns at that time about whether Marler’s heart was really in the right place–his crowing on the Wisconsin veto suggests I was more correct than I ever would have wished on that one.

Nowhere was the new thinking, if that is what it was, more in evidence than in the legislative effort to allow Grade A dairies to sell raw milk directly from the farm in Wisconsin. As the legislation made its way through the process, it was adjusted ever more to the liking of regulators (names of customers required), public health people (all kinds of testing), even product liability lawyers (by removing a prohibition on liability suits).

The legislation passed by lopsided majorities in both legislative bodies, and the governor said in late April that he was inclined toward signing it. But then the dairy lobby got involved. We don’t know what was said and who promised what to whom, but we don’t have to let our imaginations run very wild to come up with plausible scenarios.

Even if the dairy industry’s excuse–illnesses from raw milk threaten the “brand” of all milk–had even the slightest tinge of truth, would that be enough reason to ban the competition? Can Ford get Toyota’s cars taken off the market because of fears that Toyota’s safety problems threaten the “brand” of all cars? Of course not.

Yet that’s exactly what the dairy industry argued, and succeeded in obtaining.
Mark Kastel of the Cornucopia Institute described the situation well: “The dairy industry, from lobbyists representing Kraft and Dean Foods on down, circled the wagons and killed this bill. Their smokescreen, about health concerns and harming the industry, represented a diversion from an obvious agenda to crush a rapidly growing competitive threat — a product and marketing alternative that rewarded farmers and cut out profits for middlemen and processors.”

The lawyers out there can tell you the exact terminology for such offenses, but I think a few of the terms are “collusion” and “restraint of trade”. Illegal under various antitrust laws in this country for any variety of reasons, one of them being that they often involve side deals whereby politicians and regulators are granted favors to look the other way. I don’t know the exact deal here, but there had to be a deal for the governor to sabotage the raw milk industry. Forget about what the public health people were saying. They object to lemonade stands, and Doyle knew that going in, when he said he was ready to sign the legislation. After all, he has regulators who have been crying about raw milk safety concerns for years.

So here we have the governor of the second-largest dairy state vetoing legislation to protect the market share of one industry over a smaller competing industry (raw milk). Not to protect the state’s economy, since the raw milk industry generates cash that stays in the state and doesn’t get siphoned off by Big Ag processors.

I’m all for the best possible safety standards. I’m totally against corrupt practices like collusion and restraint of trade. In fact, those practices make me sicker than any raw milk ever could. Our soldiers aren’t fighting in Afghanistan and Iraq to protect politicians and regulators so they can line their pockets or arrange cushy jobs in industry for protecting the dairy industry. They aren’t fighting so these creeps can deprive our families of nutritious fresh milk.

Wisconsin Sen. Glenn Grothman said it very well:

“I think (Doyle’s decision) was a combination of the agribusiness industry who, whatever they say, were afraid of losing a little market share, and the public health establishment that is instinctively afraid of freedom of any sort, I have a tremendous amount of sympathy for all the people with stomach ailments, autism and other ailments who are going to have to try to obtain a product illegally because their government doesn’t believe in freedom.”

Remember, the issue of protecting the dairy industry came up a few weeks ago in the Massachusetts battle. Why are regulators and politicians in such widely divergent places like Massachusetts and Wisconsin suddenly so concerned about protecting the dairy industry? Let’s just say that because fearmongering about safety has only driven more people to demand raw milk, now they’re bringing the big guns. If fear mongering doesn’t work, just go to out and out corruption. I think Lykke is correct: we have entered a new phase of this struggle.

Here’s what Martin Luther King had to say about unjust laws:”One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that ‘an unjust law is no law at all’.”

There are a number of unjust laws here. There’s the Wisconsin law the prohibits nearly all sales of unpasteurized milk. There’s the federal law that prohibits interstate transport of raw milk. There are numerous other state laws that similarly prohibit consumer access to raw milk. There is Massachusetts, which is using the police powers of the state to enforce laws that don’t exist to further limit already limited access to raw milk.

Some states, Michigan in particular, have dealt with prohibitions by sanctioning herdshares, which have sprung up by the dozens, and that seems to be working well. But a Wisconsin resident who joins a Michigan herdshare is technically violating federal law to go fetch milk. The fact that the federal government has chosen not to currently enforce that prohibition because it knows it can’t enforce it is irrelevant. Or maybe that’s the government’s version of civil disobedience. The law is on the books and could be enforced at any time, but isn’t because the regulators fear an uprising if they did.

So getting back to the comment at the opening of this post, I was referring to all the laws that effectively limit access to raw milk, affecting consumers and farmers alike. They are being ignored to a significant extent by both the government and the people. But they are being enforced on a highly selective basis  for deterrent value.

Depending on when and where the government decides to enforce the laws, there could be financial penalties, even jail penalties. Consumers will have to become involved, and possibly risk arrest. The Civil Rights movement required both white and black deaths. That’s what civil disobedience is about. The more people willing to make the stand, though, the more difficult it is for the overseers to deprive us of our food. When you think of it in those terms–regulators engaging in collusion and restraint of trade, and using the police powers of the state to enforce their private deals so as to prevent us from ingesting fresh wholesome milk, it’s not a complicated decision.

If that makes me “a radical,” as Gary Cox puts it, then I’d say, “That was easy.”

***

Cars circling for parking at the Norwich farmers market.I was at my favorite farmers market today in Norwich, VT, and it was more crowded than I’ve ever seen it…and the season hasn’t truly begun. The main parking lots filled up and people had to park in far-off fields. Demand for local foods is skyrocketing. Raw milk is definitely a proxy issue.

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