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Have the Feds Finally Found Food Producers They Can Throw the Book At?

Though Peanut Corp of America has been cited for responsibility in nine deaths and more than 700 illnesses from Salmonella in its peanut butter, its president, Stewart Parnell, has remained seemingly immune from prosecution nearly three years after the fact.

 

Same with Austin “Jack” DeCoster of Wright County Egg, which was linked to as many as 1,700 illnesses from Salmonella in its eggs in 2010.

 

But a relatively small 2010 Midwest outbreak of 25 illnesses (and no deaths) from Campylobacter in raw milk seems to have brought the ire of law enforcement down on the owners of two tiny farms in Indiana and Michigan. A federal grand jury in Detroit is investigating bringing criminal charges against an Amish farmer in Indiana who produced the milk, and a Michigan farmer who helped distribute it to several private food clubs.

 

Under the U.S. Constitution’s Fifth Amendment. “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…” What might the “capital, or otherwise infamous crime” be in this case?

 

No one can say for sure, of course, since grand jury proceedings are highly secretive affairs. The names of jury members aren’t released, witnesses subpoenaed don’t have the right to have a lawyer present, and all involved on the prosecution side are cautioned not to disclose information about the events.

 

One thing that is known about grand juries in general is that prosecutors usually get their way. Quips one former assistant U.S. attorney now in private practice: “We used to joke, if a prosecutor asked a grand jury to indict a ham sandwich, they would.”

  

According to this former assistant U.S. attorney, the federal prosecutor in the Midwest raw milk case could be looking at a number of options leading to criminal indictments. Felony violations of the 1938 Federal Food, Drug and Cosmetic Act include adulterating or misbranding a food, along with putting an adulterated or misbranded food into interstate commerce.

Convictions “with the intent to defraud or mislead” are punishable by up to three years in jail, plus a fine of up to $10,000 on each count. “They could add conspiracy, aiding and abetting, fraud, money laundering, and other things,” he says.

 

If criminal felony indictments come from the grand jury, they could represent the harshest federal action yet taken against individual farmers in the six-year government war against raw milk, and possibly the harshest against any food producer associated with outbreaks of illness in recent memory.

 

Even though the grand jury proceedings are secret, several key aspects of the case have become known since the two farmers — David Hochstetler, owner of Forest Grove Dairy, Middlebury, IN, and Richard Hebron, owner of Family Farms Cooperative in Vandalia, MI –were originally ordered to testify last Wednesday, the day before Thanksgiving. The questioning was postponed at the last minute, and a new date is now being arranged. But the list of documents each farmer was asked to produce indicates the interest of prosecutors:

- “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…” from 2007 to 2010.

- “Any and all documents relating to laboratory testing of milk…” during the time in question.

 

- “Any and all documents relating to, or reflecting communications with, FDA…”

 

- “Any and all documents relating to, or reflecting communications with, Right to Choose Health Food or Aajonus Vonderplanitz…” Right to Choose Healthy Food is a network of private food clubs that enters into leasing arrangements with small producers of raw milk, pastured eggs, grassfed beef, and other items on behalf of food club members.

 

Hebron and Hochstetler first came to public attention in October 2006, when the Michigan Department of Agriculture confiscated $7,000 worth of raw milk and other food from Hebron, while he was on his way to deliver the products to Ann Arbor food club members. Michigan was the first state in the country to require pasteurization of all milk, in the late 1940s, and all raw milk sales and distribution were illegal at the time. 

The Hebron case was referred to a local prosecutor, who after several months of investigation and an outcry by Michigan raw milk consumers, declined to prosecute. The MDA in early 2007 levied a $1,000 fine on Hebron, and Michigan’s attorney general approved herd share arrangements as a means for allowing raw milk distribution. 

Since Hochstetler’s farm had produced the milk Hebron was distributing, the farm was visited by FDA agents in November 2006. Shortly after that, Aajonus Vonderplanitz of Right to Choose Healthy Food wrote a letter to the FDA, explaining that Hochstetler’s milk had been produced as part of private contracts: “We, Mr. Hochstetler and Cooperatives, have been accused by FDA employees of selling and buying raw milk. That is not possible. Since January 2006, Mr. Hochstetler leased the herd to Right To Choose Healthy Food’s Family Farms Cooperative (herein called “Cooperatives”). According to current law, lease is ownership. Therefore, Cooperatives’ sovereign members own all of the milk production at Forest Grove Dairy Farm. Additionally, Cooperatives contracted Mr. Hochstetler’s services of boarding, tending, milking, bottling and processing the milk production for Cooperative’s sovereign members to their standards established in our signed agreements and contracts.

“Cooperatives compensate Mr. Hochstetler for all of his many services by the volume of milk that he handles for Cooperatives…Since the club members own all of the milk produced by Cooperatives’ herd that Mr. Hochstetler boards and tends for Cooperative, there is no commerce involved. As Mr. Hochstetler explained when you visited his farm, since no commerce of buying or selling milk to the public is involved, the FDA has no jurisdiction over the production and use of the sovereign members’ own dairy consumed only by its members from Forest Grove Dairy Farm. Therefore, based on the facts that the milk is privately owned, and no milk is sold or given to the public, Mr. Hochstetler and Right To Choose Healthy Food’s Cooperatives’ members are not in violation of any laws of commerce.”

The FDA’s only response was to issue Hochstetler a warning letter in February 2007, asking him to discontinue raw milk shipments across state lines.

 

In 2009, FDA officials discussed in a conference call singling out Hochstetler and Hebron for legal action. Both Hebron and Hochstetler were mentioned in email accounts of meetings between FDA and state regulators from around the Midwest — emails obtained in an open-records request by Wisconsin food rights activist Max Kane in 2009. A February 2009 email with the subject, “FDA Raw Milk Conference Call,” summarized the call from the view of a participant from the Wisconsin Department of Agriculture, Trade and Consumer Protection. The call had included four DATCP officials, nine FDA officials, two representatives from the Indiana Board of Animal Health, three from the Illinois Department of Public Health, and one from the Michigan Department of Agriculture.

According to one email:  ”Scott MacIntire [District Director] and Bill Weissinger [Chicago District Special Assistant] discussed FDA-CHI activities. They have done some Internet searching and identified about 20 milk clubs in Illinois. They prefer to address one person or group at a time and want to start with Richard Hebron, Family Farm Co-op, in Michigan who may be pi
cking milk up at the Hochstetler Farm in Indiana for delivery in the Chicago area. Hebron has been prosecuted in Michigan for raw milk sales. Hochstetler was sent a warning letter for FDA Detroit for interstate delivery of raw milk.” (As noted previously, Hebron was never prosecuted.)

In March 2010, an outbreak of 25 illnesses from Campylobacter in Michigan, Indiana, and Illinois again focused attention on Hochstetler and Hebron. Public health authorities in those states used epidemiological evidence to pin the blame on Hochstetler’s dairy. However, extensive testing of milk, both from that preserved by victims of illness and by Hochstetler, showed no signs of Campylobacter.

 

According to a report (Hochstetler-MDCH Summary Report March 2010.pdf) from the Michigan Department of Community Health, “We were unable to confirm the presence of Campylobacter in any of the seven unpasteurized dairy products that were collected for testing, despite having the samples tested in three labs.” (Hochstetler-CDC and IEHA Reports.pdf) The testing included PFGE testing for Campylobacter “fingerprints” at a U.S. Centers for Disease Control lab.

 

During the 2010 outbreak, Hochstetler shut down his dairy for a week to conduct his own tests for Campylobacter. Those all came back negative as well, he says.

 

Hochstetler was also visited by FDA inspectors at the time of the illnesses. Shortly afterwards, the farmer says agency representatives engaged in negotiations with him, via the Farm-to-Consumer Legal Defense Fund, about a possible agreement whereby Hochstetler would withdraw from supplying food clubs in Illinois and Michigan.

 

“They (the FDA) wanted me to go away,” says Hochstetler. “We came very close” to an agreement whereby he would limit his production to Indiana, he says. One sticking point was that the FDA wouldn’t commit to granting him immunity for any possible past transgressions, such as those raised in the agency’s 2007 warning letter.

 

Without an FDA commitment to leave him be, Hochstetler says, there was no reason he could see to discontinue his normal operations, which he always felt were legal to begin with. “We felt because of our private contracts (with buying clubs and their members), geographical barriers did not pertain to private contracts.”

 

Hebron did not return a call seeking comment for this article.

 

According to Hochstetler, the November 23 subpoena before the grand jury was put off when it was communicated to prosecutors that “we were going to go with no records and plead our Fifth Amendment rights.” The grand jury appearance has now been re-scheduled for December 8, he says. Witnesses who fail to produce requested records can potentially be held in contempt of court, and jailed for the duration of a grand jury’s term, which typically extends for 18 months.

 

The cancellation of the November 23 grand jury appearance led to a testy email exchange between Vonderplanitz and Ross Goldstein, an assistant U.S. attorney in Michigan.

 

Goldstein suggested that Vonderplanitz shouldn’t be involved in advising Hochstetler because Vonderplanitz last August was denied by a federal judge any role in representing another Amish farmer, Daniel Allgyer. The U.S. Food and Drug Administration is seeking a permanent injunction against Allgyer shipping raw milk out of state, to a Maryland food club. It conducted a year-long undercover investigation of the food club prior to seeking the injunction.

Goldstein said in an email on Wednesday to Vonderplanitz, who was seeking confirmation of the re-scheduling of the two farmers to Dec. 8: “As Judge Stengel explained in his order denying your motion for intervention in United States v. Allgyer, No. 11-02651 (E.D. Pa. Jul. 18, 2011), ‘Mr. Vonderplanitz is not an attorney and cannot represent others in federal court . . . .’  Although your email of this morning implies that you represent the legal interests of other individuals or entities, you may not lawfully do so.  Accordingly, the substance of your communication…is of no moment and is being disregarded in toto. Moreover, I can see no reason why you should have any need to further discuss this matter with the United States at this juncture.”

To which Vonderplanitz responded, just as huffily, “You wrote with the authority of a judge yet you are a prosecutor. As a U.S. attorney, shouldn’t you know more about law, especially the U.S. Constitution than you reveal? The decision by Judge Stengel in the Allgyer case does not set precedence in that case or any other case. I am simply waiting for the case to be resolved in Judge Stengel’s court so that I can appeal the decision.

“I and all members of Right To Choose Healthy Food club members contracted for ownership of the animals at those farms to produce the food we need for our health. We have the most righteous legal interest. Just because one judge made a bad ruling does not make it right or precedence. It is not over until all appeal processes have been exhausted, in at least 5 years from the date it is over in the lower court.

“I do not purport to represent anyone as an attorney however, if you study the U.S. Constitution, anyone can assist anyone of his or her choosing. Since I have contractual legal interest in the activities you are trying to end, I have every right in the world to assist the innocent people and farmers you harass and try to prosecute to deprive them of life, liberty, well-being and livelihood. My email stands as your notification for Mr. Hebron and Hochstetler that the Grand Jury Hearing set for today was postponed by you in your conversation with Mr. Hebron, and that any other Grand Jury Hearing will have to begin from a new process.

“You will hear from me anytime you try to harass or stop a farmer with whom I have a PRIVATE club contract to produce healthy food for me and members of our private clubs. You have no legal jurisdiction over private clubs. Your jurisdiction is with the public.” 

————————

David Gumpert is a raw milk advocate  and author of “The Raw Milk Revolution: Behind America’s Emerging Battle Over Food Rights” (Chelsea Green, 2009). His blog is www.thecompletepatient.com.  

© Food Safety News
  • http://www.marlerblog.com bill marler

    David, thanks for writing this. I continue to be disgusted that prosecutions have not happened in cases like PCA and DeCoster and many others. Although selling raw milk across state lines is against the law, and in my opinion should be prosecuted, we need some proportion here.

  • http://www.kombuchakamp.com Hannah Crum

    Yet again they are seeking to blame raw milk even though the tests acquit it. We have been experiencing a raw milk recall here in California, and its legal here. Yet again, the tests are coming back clean. I appreciate your point about all the other processed food manufacturers whose products have been proven to be deadly or illness causing and yet they remain out of court and out of jail. Very frustrating and nefarious the way in which healthy, life giving foods are targeted.

  • http://www.thecompletepatient.com dgumpert

    Bill, I certainly appreciate the opportunity to write for FSN, and reach your regulator audience. I would expect that many of these individuals are unaware of the activities described in my article, and will be moved by a sense of fair play to adjust the scorched-earth policy currently being applied to small raw dairy producers.
    One other important difference between PCA and DeCoster, and the raw dairies discussed here: the former sold commercially in interstate commerce, while the two dairies distribute to food club members who receive their milk under private contractual arrangements. I think this whole arena of private contractual distribution is something the courts are going to need to consider, in determining whether these two dairies, and many others, are in fact violating the law.

  • Joel

    Great Article, I live in Michigan so I have seen many people (including my mother) start to go for organic foods. They are oftentimes more nutritious, and safer for your body than ingesting hormones and antibiotics.
    I wish our system were less corrupt, our presidents continue to stress the importance of “new businesses” and “entrepreneurs”, but they attack any new idea they don’t like and say stuff like it’s a hazard to our health, in this case it was, but so are many of the antibiotics and hormones our government lets us consume. Our government has been last among the developed countries to outlaw unsafe antibiotics, most of these have come from China and have been outlawed by European countries first…
    Go organic!

  • Ben Mark

    DeCoster’s are selling their egg business. They are not waiting until they get procesuced maybe one day.
    http://sanfrancisco.grubstreet.com/2011/11/salmonella_villain_jack_decost.html

  • http://www.rawmilk.org Aajonus Vonderplanitz, Ph.D. Nutrition

    The only problem with this article is that it states 25 people were sickened by campylobacter in raw milk. That statement is completely incorrect. The fact is that, those “health” departments accused and tried to frame raw milk for the 25 campylobacter cases. However, the many very expensive tests it commissioned could not find even a trace (bacterial fingerprint) of Campylobacter in any of the numerous raw milk products tests. Raw milk did not cause those illnesses.
    In my 43 years of work with raw milk and raw foods, I have never seen bacteria in food cause disease. We are 99.5% bacteria. Every function in our bodies is the result of bacteria. Digestion in healthy animals, including humans, is 90% bacterial. We take the feces, urine and perspiration of bacteria and absorb it to reconstruct it for our bodily constitution and activities. If you can at least fathom that, you will realize how ridiculous the theory that bacteria causes disease is.
    We have janitorial bacteria. The medical profession calls those bacteria pathogenic because they observe them consuming cells. However, those cells that the janitorial bacteria consume are dead, damaged or contaminated.
    The entire germ theory is nonsense. The pharma/medical industry needs an enemy for everyone to believe in so that people can be terrorized into taking medication. Is about the money just like 95% of all wars; this war is waged against defenseless janitorial bacteria? Believe the bacteria-theory and fear will overtake you and you will not know truth. You will harm yourself by being conned by the slight-of-mind “scientific” jargan.
    To illustrate how inane the bacteria theory is, live on a farm for about 1 week. Spend your waking hours with the animals. How many lick their own butts and others through each day? How many wash before eating? How many eat their food splattered with fecal matter and urine? How many get sick?
    The cause of any food-poisoning is industrial chemical additives, antibiotics, pesticides, herbicides, dewormers, vaccines, hormonal supplements, fed or injected, and industrial processes. The health departments are directed to look for bacterial problems rather than chemical contamination. Because raw food is resplendent with bacteria, as it naturally should be for our bacterial bodies, health departments condemn raw foods. The health departments are a farce when they look for raw food as the scapegoat for illness caused by industrial pollution.

  • Michelle

    While I believe any responsible adult should be able to choose any food to eat, I feel strongly that the government has a responsibility to protect minor children. While some may disagree, I think pasturization has long been accepted as the safest way to process milk. The fact that other food producers who have caused illness or even death have not been fully prosecuted should not be a reason for the government not to proceed against raw milk commerce across state lines.

  • http://www.thecompletepatient.com David Gumpert

    Bill, I certainly appreciate the opportunity to write for FSN, and reach your regulator audience. I would expect that many of these individuals are unaware of the activities described in my article, and will be moved by a sense of fair play to adjust the scorched-earth policy currently being applied to small raw dairy producers.
    One other important difference between PCA and DeCoster, and the raw dairies discussed here: the former sold commercially in interstate commerce, while the two dairies distribute to food club members who receive their milk under private contractual arrangements. I think this whole arena of private contractual distribution is something the courts are going to need to consider, in determining whether these two dairies, and many others, are in fact violating the law.

  • http://www.RawMilk.org Dr. Aajonus Vodnerplanitz, Ph.D. Nutrition

    Hi, Michelle. As I alluded in my brief epistle above to a very complex subject, raw milk has never, ever been scientifically associated with any outbreak. All reports of incidents by CDC and FDA claiming that raw milk caused illness are false and unscientific. Those reports were based on surveys of what people who got sick at, not scientific processes. In fact, ALL of the outbreaks associated with milk have been with pasteurized processed milks, one incident effected 197,000 people.
    Please help us stop this unscientific, irrational and harmful attack on raw milk by reading and studying Dr. William Campbell Douglas, Jr. M.D. and my Report In Favor of Raw Milk at http://www.RawMilk.org. You will discover that even raw milk that showed 100 times the “safe” level of bacteria was healthful and reduced infant-deaths in one hospital by nearly 90%.

  • mmconiglemartin

    Aajonus,
    I’m not sure quite how to respond to your perceived version of raw milk safety; also not sure how you got Dr. in front of your name. Maybe you purchased it online. Not to be hurtful, but I think you are a little nutty and no one should be listening to advice from you about raw milk safety.
    I have all the scientific proof I need about the damage contaminated raw milk can do to the human body. I observed it for 2 months while my 7 year old son almost died. So don’t give me this BS about raw milk not causing any outbreaks or illnesses.
    If you as an adult want to drink raw milk, go for it. But don’t try and convince people to give it to their children. It is wrong and dangerous.

  • Mary McGonigle-Martin

    Aajonus,
    I’m not sure quite how to respond to your perceived version of raw milk safety; also not sure how you got Dr. in front of your name. Maybe you purchased it online. Not to be hurtful, but I think you are a little nutty and no one should be listening to advice from you about raw milk safety.
    I have all the scientific proof I need about the damage contaminated raw milk can do to the human body. I observed it for 2 months while my 7 year old son almost died. So don’t give me this BS about raw milk not causing any outbreaks or illnesses.
    If you as an adult want to drink raw milk, go for it. But don’t try and convince people to give it to their children. It is wrong and dangerous.

  • Nancy

    Raw milk from good clean organic farms and pastured animals being raised properly is NOT dangerous.
    It is the parent’s responsibility to protect their children, NOT the government’s. Government already has too much power and control over our lives.
    One can get sick and die from drinking pasteurized milk (have), or other foods. One can get sick and die from vaccines (many have), one can get sick and die from pharmaceutical drugs (many have).
    You play russian roulette eating the crap phood that the FDA and USDA ALLOW. But that is your right to CHOOSE that phood just as it is my right to CHOOSE raw milk or oysters or sushi or steak tartar or beef carpaccio. Where do you draw the line as to what is allowed or not?
    Answer this: What is your favorite food? Now, imagine I (the government) came along and took it away from you telling you it’s bad for you and you cannot have it anymore.
    While cafos and giant corporations that have produced ecoli laden meats and other things, THEY are not shut down like these good small organic farmers doing it right – by the FDA. They are given a slap on the hand and continue on merrily. They bribe members of Congress, president, FDA, USDA to get their bills passed and to continue harassing and oppressing and shutting down good organic farmers, artisinal cheese makers completely ruining their livelyhoods. When will this nonsense stop?
    HYPOCRISY at it’s best.
    If you want to poison your body with vaccines and phood and pharmaceuticals, go right ahead. Keep your head in the sand and keep believing the lies.
    As for me and MANY others, we CHOOSE the foods we want, including raw milk. We are educated and think outside the box. We don’t continue believing the lies pushed by the establishment. We woke up and began questioning why and started learning and educating ourselves. We don’t live in fear. The germ theory was just that, a theory. You don’t get sick because you “catch someone else’s bug”. You get sick because your immune system (your gut) is not being nourished properly as God meant it to be. YOU have control over your health, can’t blame getting sick on anyone or anything else. This is being responsible.
    Why did Rockefeller push allopathic medicine yet he only allowed to be treated with homeopathic medicine? Hmmm.
    There is no money in wellness. It’s all about the money. Government and allopathic medicine does not want you well, the pharmaceutical companies would go out of business . Yes doctors in ER rooms who handle true medical emergencies are needed.
    Don’t go quoting CDC stats or any other government funded stats on things, they don’t fly with me.

  • nancy