Kansas Attorney General Derek Schmidt and Agriculture Secretary Mike Beam are going along with a consent judgment issued last week by Kansas District Judge Richard Anderson that allows off-the-farm advertising of raw milk in the state for the first time in 52 years.

A Republican, Schmidt and the non-partisan Beam, who was appointed as Kansas secretary of agriculture in January by Gov. Laura Kelly, a Democrat, say they will ask the 2020 Kansas Legislature to repeal the statute that made off-the-farm advertising of raw milk illegal in the Sunflower State.

Beam said Kansas law restricting the distribution of raw, unpasteurized milk to the producer’s farm has not changed.

Judge Anderson approved the consent judge ending litigation about the Kansas ban on any raw milk advertising beyond on-the-farm signage.

Two goat farmers sued Beam in his official capacity as the Kansas Agricultural Secretary. Mark and Coralee Bunner, owners of Shepherd’s Gate Dairy near Pfeifer, filed the legal action asking the state to cease enforcement of the statue.

Then an unusual thing happened. The state agreed with the goat farmers.

Under the terms of the settlement, the parties agree the advertising ban violates the First and Fourteenth Amendments to the U.S. Constitution and the Kansas Constitution Bill of Rights Section 11 and is therefore unenforceable.

The Kansas statute was enacted in 1967 before the U.S. Supreme Court interpreted the First Amendment to protect commercial speech in the manner it does today, according to Schmidt.

“The statute restricting advertising of raw milk does not comply with the U.S. Supreme Court’s modern application of the First Amendment to commercial speech and is plainly unconstitutional,” Schmidt said.

“While we typically provide a rigorous defense for every statute enacted by the Legislature, in this case where there exists no plausible legal defense the better and less-costly course of action is for the Department of Agriculture to work with the Legislature to modify the statute so it complies with the U.S. Constitution.”

The Department of Agriculture intends to propose legislation next year regarding the uniform labeling of raw milk products, which would address the constitutionally defective regulation of advertising at issue in this case.

“We look forward to the opportunity to clarify this statute and remove the unconstitutional restriction on the advertisement of raw milk,” Beam said. “The on-farm sale of raw, unpasteurized milk continues to be the only allowable method of distribution for raw milk (in Kansas), as a means of protecting public health and safety due to the high degree of risk associated with unpasteurized dairy products.”

The statute in question is currently codified as K.S.A. 65-771(cc). The specific provision in question, which dates back to 1967, reads: “. . . so long as the person making such sales does not promote the sale of milk or milk products to the public in any manner other than by the erection of a sign upon the premises of the dairy farm.” The statute makes violation of the advertising prohibition a misdemeanor.

A copy of the consent judgment is available at https://bit.ly/32sY6fK.

The ban lifted by the judge’s order was comprehensive, covering all advertising forms, be it print or broadcast, direct mail or social media

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