On November 3, the state of Maine filed a lawsuit against raw milk producer Dan Brown for allegedly selling raw milk without a license and for not labeling the raw milk as unpasteurized. The complaint identifies five separate instances in which an inspector from the Maine Department of Agriculture, Food, and Rural Resources observed Brown selling or offering to sell milk and milk products at two farmers’ markets and at his own farmstand.
What makes this lawsuit more interesting is that the town of Blue Hill is one of five Maine towns that recently passed a Local Food and Community Self-Governance Ordinance. This ordinance — sometimes referred to as food sovereignty — exempts small local producers from state and federal licensure and inspection laws as long as the transaction is between the producer or processor and the consumer, and the food is sold for home consumption (not for resale). It is a declaration of the municipality’s supposed right to self-government. The preamble to the Local Food Local Rules Ordinance template reads:
We the People of the Town of (name of town), (name of county) County, Maine have the right to produce, process, sell, purchase and consume local foods thus promoting self-reliance, the preservation of family farms, and local food traditions. We recognize that family farms, sustainable agricultural practices, and food processing by individuals, families an non-corporate entities offers stability to our rural way of life by enhancing the economic, environmental and social wealth of our community. As such, our right to a local food system requires us to assert our inherent right to self-government. We recognize the authority to protect that right as belonging to the Town of (name of town).
We have faith in our citizens’ ability to educate themselves and make informed decisions. We hold that federal and state regulations impede local food production and constitute a usurpation of our citizens’ right to foods of their choice. We support food that fundamentally respects human dignity and health, nourishes individuals and the community, and sustains producers, processors and the environment. We are therefore duty bound under the Constitution of the State of Maine to protect and promote unimpeded access to local foods.
In addition to asserting an exemption from state and federal licensure and inspection requirements, the ordinance asserts a right to access and produce food, a right to self-governance, and a right to enforce the ordinance. The ordinance also states that any state or federal law or regulation that interferes with the rights set forth by the ordinance is unlawful and should any level of government attempt to preempt, amend, alter or overturn the ordinance, the town will assemble to decide a course of action to protect what it claims as a right to self-government.
When the town of Blue Hill was deciding whether to approve this ordinance in April, the debate that ensued illustrated the difficult balancing test faced by advocates for local food and local control over food systems. One concern focused on whether enforcement of FDA regulations (which largely exempt small farms and producers) may be a threat to local food traditions and activities, such as bake sales and church suppers.
Another significant concern raised during the discussion surrounded the town’s own responsibilities and liability in enforcing an ordinance that takes a strong stance against what some term as state and federal interference in local food decisions. Selectman John Bannister expressed sympathy for the farmers and indicated there were many areas where the state and federal governments were allegedly over-regulating individuals and business. However, Bannister also was concerned that enacting the ordinance might force the town into a costly legal battle to defend a challenge. Those present at the meeting also expressed apprehension about the drastic measures the town is permitted to take to protect what it defines as its rights, which include “the partial or complete separation of the town from other units and levels of government.” In the end, voters in Blue Hill passed the ordinance by an overwhelming voice vote.
The lawsuit filed by the State of Maine just seven months after the ordinance passed may provide an opportunity to test whether assertive action taken by local governments to support food systems of their choosing, or to exempt themselves from food-safety regulations, will hold up in court. In the meantime, support surrounding Farmer Brown is mounting and includes a Facebook page entitled “We Are All Farmer Brown” and a YouTube video “Farmer Dan Brown Tells His Story.”
On Friday, November 18, the Blue Hill Board of Selectmen held a meeting to decide what to do about the lawsuit filed against resident dairyman Dan Brown. With 150-200 Farmer Brown supporters gathered outside the Blue Hill Town Hall, the three-member Board of Selectmen unanimously voted to ask the state to drop the charges against Brown and to respect the town’s local food ordinance. Brown said he plans to fight the injunction and continue selling raw milk from his dairy without a license because of the local food ordinance passed in Blue Hill last spring.
Despite the show of support for Brown, the raw milk industry in Maine is divided over the issue. There is at least one other raw milk producer, Heather Retberg, who supports the local food ordinance and Brown – her perspective is that the community has “asserted the right to choose what food we eat and feed our families.” However, Brian Call and Joan Gibson, who own an organic farm in Maine and are licensed to sell raw milk, feel that the state’s licensure and inspection process is not overly burdensome. Gibson acknowledged that there are circumstances in which FDA over-regulates farmers, but that requiring raw milk farmers to comply with health and safety requirements is not unreasonable.
Brown has until Wednesday, November 23, to file a written response to the lawsuit.
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Alli Condra is pursuing her LL.M. in Agricultural and Food Law at the University of Arkansas. She is the 2011-12 recipient of the Marler Clark Graduate Assistantship.