Outside Maine’s Supreme Judicial Court this week, Dan Brown was being celebrated as another raw milk outlaw, but inside, one justice was comparing him to Nevada rancher Cliven Bundy. Bundy is the guy who has refused for years to pay U.S. Bureau of Land Management fees for the right to graze his cattle on federal land.
State of Maine v. Dan Brown was one of about 20 cases the Maine Supreme Court heard this week during tightly clocked oral arguments. There’s no way of knowing exactly when the high court will render its decision, but it’s likely to be before it hears another group of oral arguments in June.
Brown is a Blue Hill farmer told by the Maine Department of Agriculture in 2005 that he did not need a license to sell raw milk from an on-the-farm stand. Based on that advice, both he and his wife quit their day jobs and went at making a living from a $22,000 farm stand they built. About six years later, different Maine agriculture officials decided the department made a mistake and operations such as those run by the Browns should be licensed and the raw milk products they sell should be labeled with consumer warnings.
In between, Blue Hill became one of those Maine “food freedom” towns that passed local ordinances stating that small-scale farmers selling products directly to consumers are exempt from state and federal food safety regulations.
Brown decided to thumb his nose at both the state licensing and labeling requirements — although he put up a warning sign on his farm stand — and, after losing at the trial court level, he appealed to the state’s high court. That resulted in Maine’s Superior Court entering a summary judgment in favor of a state complaint alleging that Brown unlawfully sold milk without a milk distributor’s license in containers that were not properly labeled, and that he operated without a food establishment license, which is required to sell other products such as bakery items.
Before Maine’s high court, Ohio attorney David G. Cox argued that the summary judgment by the trial court was improper on the basis that the state is equitably estopped from requiring the license, the local “food freedom” ordinance, Brown does not fit the definition of a milk distributor, and the posted warning sign means he “substantially complied” with the labeling requirements.
In the clocked arguments that lasted just under 33 minutes, lawyers answering questions from the justices mostly focused on whether the state’s interest in preventing foodborne illnesses and potential deaths is enough to override the “esstoppel doctrine.”
“This is an essential policy,” Assistant Attorney General Mark Randlett told the court, referring to the state’s interest in regulating the deadly pathogens often associated with illnesses linked to raw milk.
Brown, who started out with one dairy cow and now has eight, filed an affidavit with the trial court claiming that complying with state licensing and labeling requirements would cost him an additional $62,500 in improvements. Maine has 150 licensed raw milk producers, and the legality of raw milk sales was not one of the issues before the high court. Only the state’s interest in regulating raw milk to prevent or control illnesses was in play before the justices.
Brown’s Gravelwood Farm sold raw milk without a license and sold other items without a food establishment license required to sell such products. In addition to sales at his own farm stand, Brown was known to sell products at the Blue Hill farmer’s market.
The trial court ordered Brown to pay a $1,000 fine and $132.86 in court costs. During the oral arguments, justices asked why, if Brown was damaged by the advice he received from state officials, he did not file a claim with the state. Brown’s attorney said he probably would.
The Maine Legislature did consider a bill during the recent session that would have made on-the-farm raw milk sales easier, but it still would not have allowed sales at farmer’s markets. Farms with raw milk for sale could not advertise or solicit sales. The bill was drafted to get Maine Gov. Paul LePage to sign it, but it didn’t make it through the legislature.
In a recent update, the U.S. Centers for Disease Control and Prevention said that 81 outbreaks traced to raw milk occurred between 2007 and 2012, and 51 of those occurred between 2010 and 2013. Nearly 1,000 people were sickened and 70 were hospitalized in those raw milk-related outbreaks.© Food Safety News