Pennsylvania Department of Agriculture v. Amos and Rebecca Miller is advancing in the Court of Common Pleas of Lancaster County, Pennsylvania.

In the latest round of arguments, the attorneys for the Millers, Bradford L. Geyer and Robert E. Barnes, have put forth their view of what the Pennsylvania Department of Agriculture (PDA) is attempting to do to the Millers. They produce and sell unpasteurized, raw milk and other agriculture products that have been found to be in violation of state law.

It is not something the state will likely agree with, but it does show how far apart the Millers and their state are from one another.

“The PDA asks this court to do precisely what the court told all parties and the public the court would not do, usurp the legislature and amend the law, “ the defense brief opens. “The PDA goes even further: it also demands the court amend the United States Constitution. The court has already rejected this same argument made by the PDA in their opposition to Defendants’ motion for modification, and they cite no new fact or argument to reverse the court’s decision.”

“The PDA seeks this court’s license to usurp Congress as well as the state legislature,” it continues. “The law is clear: it only applies to sales to Pennsylvania customers within the state. By contrast, the language the PDA wants to add — “from the Commonwealth” & “regardless of where customers reside” — does not exist in the statute. Nor could it exist Constitutionally.”

“The food laws govern access to Pennsylvania customers because that is what the legislature chose to do and what the Constitution allows them to do; the laws do not regulate producers, processors, or possessors of food intended for export to out-of-state markets,” it argues.  “Consider the absurd havoc created by the PDA’s amendment of the law they ask this court to do — anyone traveling through Pennsylvania with food intended for sale outside the state is now subject to PDA jurisdiction and restrictions, such that someone traveling from West Virginia through Pennsylvania to another state with food intended for sale outside Pennsylvania can be stopped, searched, seized, fined, enjoined, penalized, and imprisoned. Food producing, processing, and transporting facilities for export outside Pennsylvania — of which thousands of people employed in Pennsylvania — would now be banned overnight and wake up criminals. This is not what the legislature authorized nor what the Constitution allows. Contrary to PDA’s claims, food intended for export is already regulated by Congress, as the Defendants’ half-decade of litigation reflects.”

“The PDA goes even further—it would redefine the word “sells” to include mere “exchange” or “delivery” regardless of intent to sell or actual sale… it continues. “The PDA’s judicially engrafted amendment of the law would make every potluck meal, every Thanksgiving lunch, every Christmas dinner, and every Easter brunch illegal in Pennsylvania. This is precisely why the legislature limited the scope of the law. Agriculture Secretary Redding may think the legislature gave him the power to be the Food Pope of Pennsylvania – no one can eat any food anywhere until and unless Pope Redding blesses it first—but the legislature did no such thing, nor could it Constitutionally.”

“The PDA asks this court to make up a new law that would also violate the Supremacy Clause, the Commerce Clause, the Right to Travel Clause, the Privileges and Immunities Clause, and the Due Process Clause of the United States Constitution. The Fourth and Fifth Amendments prohibit state seizure of property without due process of law, probable cause, or just compensation. The right to travel, privileges and immunities, and the due process clause assure access to traditional foods essential to health and consumed with the informed consent of a willing consumer. The PDA’s permitted scope of police power is to protect Pennsylvania consumers concerning Pennsylvania-made products, not Tennessee consumers from themselves.

The PDA would make criminals of all those who produce, process, or possess food intended exclusively for export to out-of-state markets. People produce, process, and possess food products unlicensed by PDA at Pennsylvania farms, processors, shippers, transporters, and distributors for daily export. PDA would make them all criminals merely because the food product at some point is within Pennsylvania’s borders. Congress governs interstate commerce, not the PDA. The Constitution says so. The FDA preempts the PDA, and the PDA does not get to roleplay the FDA or replace the FDA if the PDA does not like the law; appeal to Congress, not the courts.

The defense attorneys also say, “Of note—the PDA’s testing showed no e-coli, and the leading raw milk safety expert in the nation testified that the raw milk products of defendants were safe for human consumption at the evidentiary hearing. Despite extensive testing, invasive surveillance, and access to a global database, the PDA could provide not a single witness who consumed the Defendants’ food products to testify otherwise. As every PDA official confessed under cross-examination, no customer of the defendants has ever complained about any food product of the defendants despite the millions of food products distributed to tens of thousands of Americans over decades. The only harm would come from people denied access to defendants’ products.”

Attorneys for the Millers also quote RFK Jr. and Rep. Congressman Thomas Massie to support their clients.

Robert E. Barnes, a Los Angeles-based attorney, said the Amos Miller case could be in the state courts for as long as two or three years.

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