USDA has failed to follow any of the administrative procedures required to create enforceable regulations when it issued this new step in NAIS. So the legality of the memo is highly questionable. Regardless of its enforceability, however, the memo clearly sets out USDA's plans for implementing NAIS. Here are some excerpts from the memo:
· USDA is requiring NAIS premises registration "as the sole and standard location identifier" for activities relating to any disease regulated through the Code of Federal Regulations, for emerging or re-emerging disease, and for foreign animal diseases (page 1)
· People who refuse to voluntarily register their properties in NAIS will be registered against their will: "If the person responsible for the premises chooses not to complete the form to register his/her premises, either the animal health official or an accredited veterinarian will collect the defined data fields." (page 2)
· The memo applies to federal animal health authorities, state animal health authorities, and private veterinarians who are accredited for federally regulated diseases (page 1)
· Any veterinarian who is accredited for a federally regulated disease is subject to the USDA's edict to involuntarily register his or her clients: "A PIN is required for activities performed at a premises by a State or Federal animal health authority or an accredited veterinarian for any disease that is regulated through Title 9 of the Code of Federal Regulations." (page 4)
· The listed disease programs for which a PIN will be required include:
o Low pathogenic Avian Influenza of the H5/H7 strains
o Communicable diseases in horses, asses, ponies, mules, and zebras, which would include equine Infectious Anemia
o Texas (splenetic) fever in cattle
o Exotic Newcastle disease and chlamydiosis
o Poultry health as addressed in the National Poultry Improvement Plan
o Swine Health
· USDA states that PIN's are not required for "participation in voluntary programs," but does not explain which those would be (p.6)
Four Critical Cases
NAIS - MICHIGAN
Important Dates:
May 14, 2008 - Gary Cox, on behalf of FTCLDF, sent a letter to USDA and MDA notifying the agencies of the Fund's intent to sue them unless "legal deficiencies associated with the development and implementation of the National Animal Identification System" were cured.
September 8, 2008 - the FTCLDF filed a lawsuit in the federal district court of the District of Columbia to enjoin the implementation and enforcement of NAIS by USDA and MDA. The complaint alleges violations of federal and state laws in the implementation of NAIS.
September 22, 2008 - In its response to the complaint, USDA claimed NAIS was a voluntary program. We now know that is not true. A memo USDA-APHIS issued to its "Veterinary Services Management Team" makes clear that premises registration would be required for those who participate in any of the various disease program activities. Participants who refuse to voluntarily register their premises would have their premises involuntarily registered for them.
November 13 and November 17 - USDA and MDA filed responses respectively, with each agency filing a motion to dismiss the Fund's lawsuit. This usually happens in this type of case. The Fund has until January 12 to file a response.
The Fund's lawsuit against NAIS will be a difficult fight but as more evidence emerges about how USDA is trying to force NAIS on farmers, the chances for success increase.
CALIFORNIA - AB1735
Important Dates:
October 2007 - AB1735 was signed into law. Among other requirements, the bill mandated that milk produced by the state's licensed raw milk dairies (Organic Pastures and Claravale) have a coliform count of 10 or less at the final container when tested. If a dairy's milk fails three out of five consecutive tests, the dairy's sales of raw milk are suspended.
December 2007 - FTCLDF General Counsel Gary Cox filed a lawsuit against the California Department of Food and Agriculture (CDFA) in San Benito Superior Court.
March 6, 2008- Gary followed up on the initial lawsuit by filing for a temporary restraining order (TRO) and a preliminary injunction against the enforcement of the coliform standard.
March 19, 2008 - San Benito Superior Court Judge Harry T. Tobias granted the TRO in favor of the dairies, prohibiting CDFA from enforcing the coliform standard.
April 15, 2008 - the California Senate Agriculture Committee and the Select Committee on Foodborne Illness held a public hearing in Sacramento on Raw Milk Safety. The hearing led to the commission of a Blue Ribbon panel to draft legislation that would supplant AB1735.
June 5, 2008 - State Senator Dean Flores introduced SB201, a bill that eliminated the coliform requirement imposed by AB1735. Unless a bill eliminating or modifying the coliform requirement is passed in the next legislative session which starts in January, the trial to permanently enjoin CDFA from enforcing the coliform standard of AB1735 should take place sometime next summer.
For our full report on AB1735, please visit FTCLDF AB1735.
NEW YORK - MEADOWSWEET DAIRY
Important Dates:
December 2007 - Gary Cox filed a suit on behalf of the Smiths and the other members of the LLC asking the court to permanently enjoin the agency from interfering with the LLC's operations on the grounds that what they were doing was not regulated by the state.
November 18, 2008 - Judge John C. Egan Jr. denied the LLC's request for a permanent injunction holding that Meadowsweet was under the authority of NYSDAM (New York State Department of Ag and Markets).
The judge's ruling turned on the definition of "consumer". Under state law anyone selling, offering for sale or "making available raw milk to consumers" must have a permit. The definition of "consumer" the judge used in his decision was so broad that even someone with only a family cow would be required to get a permit. In addition to holding that the Smiths were required to obtain a raw milk permit, the judge ruled that they were required to have a milk plant permit as well. Under New York law, those holding a dairy plant permit can only sell or otherwise distribute pasteurized milk products.
The Smiths have until December 20 to decide whether to appeal Judge Egan's ruling. Regardless of whether an appeal is made, the Fund remains committed to establishing the legal right of raw milk producers in the state of New York to enter into private contractual arrangements without government interference in the distribution of raw milk and milk products.
OPDC FEDERAL CRIMINAL INVESTIGATION
Organic Pastures Dairy Company (OPDC) and its CEO Mark McAfee are currently the subject of a federal criminal investigation into the dairy's distribution of raw milk and raw milk products in interstate commerce. There is a federal regulation prohibiting raw milk and raw milk products for human consumption in interstate commerce. FDA, through the U.S. Attorney in Fresno, is trying to have Mark prosecuted for "misbranding" under the Federal Food, Drug and Cosmetic Act (FFDCA). "Misbranding" in this case, under FDA's interpretation of the law, would be knowingly selling products for human consumption that were labeled for pet consumption only. What is unjust about FDA's action is that the agency appeared to give its tacit approval on the dairy's labels when it originally OPDC's interstate shipping back in 2004 and 2005.
Gary Cox is negotiating with the U.S. Attorney in Fresno over a possible plea bargain in Mark's case. The Fund has also been working with Congressman Ron Paul's office to introduce legislation that would repeal the ban on raw milk and raw milk products for human consumption in interstate commerce. Lifting the ban would benefit raw milk producers and consumers around the country tremendously.
Aside from the cases FTCLDF has taken on, we provide daily consultation to our members on matters ranging from setting up herd share programs to answering questions about the interpretation of various state and federal food laws. The Fund is particularly active in getting farmer members started in distributing raw milk legally through animal share agreements. To date the Fund has generated documents for over one hundred members starting up herd share/lease programs. The number of farmers selling products of the farm direct to consumers continues to grow. The Fund looks forward to working for increased freedoms for farmers and consumers in 2009.
Shop at our Online Store.
All proceeds benefit the Fund. Our newly designed on-line store has something for every farm-lovin', NAIS-fightin', raw milk drinkin' person to enjoy! There's something to wear, hear, read and stick on your bumper! If you want an interesting conversation, wear one of our "I Love Raw Milk" T-shirts to the office. The kids love our smart and sassy youth designs. There's something for everyone, except of course if you work for the USDA... Check it out at our
FTCLDF Online Store
Taaron Meikle, a Farm-to-Consumer Legal Defense Fund Board member, found out how easy activism can be. She wore her raw milk t-shirt to church and started up a conversation with her minister. Soon, Farm Fresh Food was the subject of a Sunday sermon, and Taaron was asked to start a fresh farm food ministry. It's that easy. So, have some FUN and support the FUND this season. Click here to Start Shopping or call 703-208-FARM (3276) (Monday - Friday; 10 a.m. - 6:00 p.m.). There is free shipping with orders over $75.00, discounts for volume purchases.
The Farmer's Voice by: Barbara Smith of Meadowsweet Dairy
Thirteen years ago Steve left a successful career as a physicist with NASA to become a fulltime dairy farmer. Many times we have answered the question, why did you do it? Each time we give a slightly different answer, and maybe over time our answer is getting a bit more confident. At first we were tentatively following a dream, now we have created a life for ourselves that we won't give up come hell or high water.
So why do we farm? We farm to be close to our 9 children and to raise children who can have the joy of working hard alongside their parents in meaningful work. We farm so we can be together day in and day out. We farm because it is deeply satisfying: to do our best to care for a piece of the Earth and to leave it in better shape than we found it, to provide superior quality food to grateful people, to take good care of our animals and to be in partnership with them in this enterprise. We farm because it is endlessly interesting and challenging mentally, physically and emotionally and we never tire of it - it is new every day.
Steve's favorite answer is that he has the privilege of participating in the miracle of conversion of sunshine into healthy food - and what occupation could be more meaningful and gratifying than that!
While our farming changes annually - numbers of animals, kinds of animals, markets etc. - we are committed to dairy farming for many reasons. We like the intimate connection with the animals in dairying that is missing in raising other livestock. We have a relationship with our cows that we do not have with the beef herd or with the chickens. We like the daily routine, the chores, and the rhythm. Small dairy farming enables children to be involved with the animals up close and to get to know them. There are many child-size chores to be done in a dairy barn and all help is appreciated. We love the smell and the snug feeling of a dairy barn in mid-winter, full of contented cows and sweet-smelling hay.
Providing milk and milk products to people is satisfying in a way that just raising meat would not be. While our customers appreciate our meat and eggs, they are indebted to us for the milk, yogurt, cheese and butter! We hear over and over that their children have started drinking milk again now, after practically stopping dairy altogether. We hear one health testimonial after another as customers tell us their tales of healings and improved wellbeing on our milk. Perhaps because milk is the mother food, symbolizing care and nurturing, we feel a strong sense of responsibility to our milk customers and realize how much they need us. (And everyone wants to be needed.)
Our farming journey has been long, hard and winding. From the rocky beginning of knowing pretty much nothing about farming except how to read farming books to where we are now has been an amazing road. We have taken many detours, or maybe those were the path and not detours, as we tried out milking a larger herd, tried shipping milk (conventional and then organic), tried selling yogurt through the stores (12 years of that), made farmstead cheeses, and then finally realized our dream of having a "dairy CSA" of committed raw milk enthusiasts for whom we could provide all the raw milk products we could make.
This really was a dream come true! We had wanted a closer connection with our customers than we had had when we retailed our yogurt; we had wanted to do only raw milk products, and we had wanted to encourage folks to buy more of their products locally. These ideas all came together in Meadowsweet Dairy, LLC. Though our group is small (around 100 members) it has been an amazing success on all sides. The gratitude of our members for the delicious milk has made it all worth it and keeps the whole family feeling appreciated and motivated. All hands are part of the business, from the 9 year old to the 18 year old. We all make yogurt, care for the animals, do the deliveries, and keep the records.
Someone on a blog recently said of our legal troubles that she hoped we found something else satisfying to do if we could no longer be dairy farmers! Nothing could be farther from our minds than doing something else! Though we have given this much thought in the last week, we realized that at this time of our life there is nothing else in the world we would rather do. In spite of the trials of never having vacation time, and the stressful times with sick animals etc., dairying is what we are meant to do now and we will not give it up if we have any choice about it. It has been gut wrenching in the last week to even entertain the idea of having to stop, to sell our herd, to leave our land. Now in our mid-fifties we have found much meaning in this livelihood and intend to keep at it as long as our bodies will allow.
Our children, those here and especially those who have moved away, are who they are today because of this farm and the part they had in it. Though our balance sheet doesn't always reflect that we are being "successful" at farming, listening to our older children talking with friends or with each other about their experiences here on the farm proves to us that we have been very successful and made the right choice in leaving that NASA career thirteen years ago.
