Farmer says he is exempt from food-safety law, selling only through private membership
By Ioannis Pashakis
BridgeTower Media Newswires
A Lancaster County Farmer's contention that private group sales free him from government regulation will likely not sway the courts in an upcoming lawsuit.
A past court ruling may have already set a legal precedent that would prove counter to the farmer's argument.
Earlier this month, the federal government filed a lawsuit against Amos Miller, owner of Miller's Organic Farm in Upper Leacock Township. The government lawsuit, filed in U.S. District Court in Philadelphia, contends Miller can't skirt federal food-safety laws by contending that he is selling products through a private membership.
Miller argues that his private buyers know the risks associated with buying unprocessed and untested foods when they buy from him and that his products shouldn't be tested the same way as products sold through a public market.
In an interview, Miller said his customers want unprocessed dairy products and he said he's worried that if he opens his doors to federal inspection of his meat and poultry products, the state Department of Agriculture, which has jurisdiction over dairy production in the state, will shut down his dairy operations.
"Right now you can't have access to raw dairy unless you have your own cattle and there are so many people in the city that want access to nutrient-dense, grass-fed, raw dairy," Miller said, citing research from the Weston A. Price Foundation, a nonprofit organization that promotes the benefits of animal-based fats.
The Eastern District of Pennsylvania ruled in 2012 in a similar case involving a Lancaster County farmer. Daniel Allgyer, a dairy farmer in Salisbury Township, faced a suit from the U.S. Attorney after trying to sell raw dairy products across state lines.
Like Miller, Allgyer argued that because he sold his unprocessed and untested dairy through a private online group, he did not need to be regulated by the FDA.
Allgyer's argued that he was further shielded from FDA rules because members in his private group were paying for a share of the ownership of the cattle, not for the milk itself.
The court ruled in favor of the U.S. Attorney and barred sales of Allgyer's dairy products similar to what the U.S. Attorney is asking of the court for Miller.
"The contract between Mr. Allgyer and persons entering into a cow share agreement is merely a subterfuge to create a transaction disguised as a sale of raw milk to consumers," the judge wrote in the trial's decision. "The practical result of the arrangement is that consumers pay money to Mr. Allgyer and receive raw milk, which is transported across state lines and left at a 'drop point.' As such, despite any artful language, the agreement involves the transfer of raw milk for consideration, which constitutes a sale and is lawfully regulated by the FDA."
In the suit against Miller, the U.S. Attorney compares Miller's case to the Allgyer case, stating that there is precedent to overrule Miller's defense.
"The government is contending that there is legal precedent to suggest that just because one uses a membership association, that on its own, is probably not going to be enough to relieve you of regulatory compliance obligations," said Jonathan Havens, an attorney specializing in FDA-regulated products. Havens is an attorney in the Baltimore office of Philadelphia-based law firm Saul Ewing Arnstein & Lehr.
Pennsylvania has some of the most lenient laws in the country when it comes to the sales of raw dairy, according to Hannah Smith-Brubaker, executive director of the Pennsylvania Association of Sustainable Agriculture. The Centre County-based organization promotes farming methods that improve the land and people's health.
State laws govern the selling of dairy products within state lines while products like meat and poultry are regulated by the U.S. Food Safety and Inspection Service, a branch of the USDA.
The state allows farmers to sell raw milk if they register for a permit with the Pennsylvania Department of Agriculture and allow for quarterly inspections by the Bureau of Food and Safety.
Miller is not registered by the state to sell raw milk. Farmers might decide to forego the state's raw-milk permitting process if they distrust the government or feel that their business models could be affected, Smith-Brubaker said. She added that the state could agree at some point to change its raw-milk laws to allow the product in grocery stores rather than just through farmers, but farmers would still need permits.
"If farmers like Mr. Miller insist on operating completely under the radar, if they don't have a relationship with the Department of Agriculture, they will be shut out of the market," she said.
Miller and his farm have been under scrutiny since 2015 when bacteria in the farm's dairy was found to be genetically similar to bacteria in raw milk that gave two people listeriosis, killing one of them. The farm was seen as a likely source of the bacteria, according to a news release announcing the lawsuit, but the release didn't state whether any more cases of listeriosis were traced back to the farm.
The farm's clients are aware of possible bacteria in its dairy products and are warned that they should ingest the product at their own risk, according to Miller.
"They educate themselves on the raw dairy before consuming," he said.
The U.S. Food Safety and Inspection Service followed up to ensure that meat and poultry at Miller's were not infected with the same bacteria. The release stated that Miller did not allow the service to inspect his farm's facilities, even after he was served a subpoena in 2017, claiming that his sales to private members were beyond the reach of federal food-safety regulation.
The suit asks the court to prohibit Miller and his farm from selling or shipping any products that have not gone through federal inspection, even if those sales are to private members.
In a press release, William McSwain, U.S. Attorney for the Eastern District of Pennsylvania, said Miller is still selling his products commercially and should be held to the same standards as other farmers.
"We will not allow commercial sellers to ignore the rule of law, make up their own sets of rules, and attempt to hide behind a private-membership-association structure in an effort to thwart federal laws," McSwain said.
Published: Mon, Apr 29, 2019
