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Action Alert: Ohio Raw Milk
WESTON A. PRICE FOUNDATION
ACTION ALERT
February 27, 2006
WAPF foundation members have never failed to answer the call when the
consumer's right to purchase the foods of their choice, including the
right to consume raw milk, has been challenged in states like Pennsylvania,
Colorado and Florida. Your help is now needed in Ohio. The Ohio Dept.
of Agriculture (ODA) is trying to eliminate the availability of raw
milk to the consumer. While the sale of raw milk is illegal in Ohio,
there is no law prohibiting cow share or herd share agreements; and
a number of herd shares currently exist. The ODA is threatening to put
an end to one of the biggest herd share programs in the state and needs
to
be stopped. The ODA is investigating Paul and Carol Schmitmeyer and
has scheduled a deposition of them on March 3 in Columbus.
ACTION TO TAKE
Read the lengthy BACKGROUND report below. It is important to
understand what is happening in Ohio and the background to this case.
Call, email, fax, or write (or do all the above) the state officials
listed below and demand that the ODA end their fishing expedition into
the private dealings of the Schmitmeyers with their shareholders. Demand
that the ODA stop their investigation and cancel the deposition.
BACKGROUND
Paul and Carol Schmitmeyer own and operate a Grade A licensed dairy
farm located in Versailles in Dark County, Ohio. They have held the
Grade A license for 23 years. Paul is also the herd manager for a herd
share program at the farm that consists of over 150 shareholders and
their families, representing some 400-500 consumers of raw milk.
Many of Paul's shareholders live in neighboring Montgomery County and
to make life easier for them, Paul has arranged for the pick up of milk
and the payment of boarding fees there, with the boarding fees being
paid to Paul's agent at a farmer's market in that county. In January
2006, a sixty-two-year old shareholder and the four-year old son of
another shareholder, both of whom live in Montgomery County, became
ill. While the four-year old recovered quickly, the sixty-two-year old
man was in the hospital for about two weeks before being released. The
symptoms in both cases were bloody diarrhea, cramping, fever, and vomiting.
Both were diagnosed with campylobacter and prescribed antibiotics by
their respective doctors. Under state law doctors prescribing antibiotics
for campylobacter are required to contact the county health department;
and the doctors did this.
Under Ohio law (and CDC guidelines) as little as two cases of a
bacterial illness like campylobacter constitute a "food-borne illness
outbreak" and so the Montgomery County Health Dept. (MCHD) was
required to conduct an investigation. The one common denominator in
the two illnesses that the MCHD found was that individuals drank raw
milk produced on the
Schmitmeyer's farm. As far as is known, the MCHD did not look any further
to find any other common links once they discovered this one.
The milk the two drank at the time they became sick was from milk produced
either the week of Jan. 7 or Jan. 14, 2006. The MCHD took a sample of
milk produced the week of Jan. 21 from the boy's parents; and it tested
negative for campylobacter. At the same time, Paul also ran a test on
the farm's milk for campylobacter, salmonella, and E. coli; the milk
tested negative for all three pathogens.
Shortly after taking the sample, the MCHD requested that the
Schmitmeyers release to the them a list of all their shareholders and
the farm's milk production records for January 2006-this in spite of
only two of upwards of 500 people consuming the milk from the Schmitmeyer's
farm becoming ill. In addition, the boy's mother had said that her son
had been eating snow the day before he became sick. Water is a common
vector for campylobacter. The Schmitmeyers complied with the MCHD's
request and at that time the MCHD Director informed Paul that there
were no other campylobacter cases reported.
The ODA did not hesitate in responding to the "food-borne illness
outbreak." On Feb. 1, Lewis R. Jones, the ODA Dairy Division Chief,
sent a memorandum to Health Commissioners and Directors of Environmental
Health in each county in the state reminding them that the sale of raw
milk was illegal in Ohio and asking them to notify the ODA if they found
evidence of or suspected such activity. The memo did not mention the
distinction between sales and cow/herd shares. What Dairy Division Chief
Jones did say in the memo was that "recent cases of campylobacter
resulted with Ohio consumers who drank unpasteurized milk purchased
at a farmer's market in Dayton"-a claim that has no proof.
Next, the ODA took aim at the Schmitmeyers. On Feb. 13, the ODA faxed
the Schmitmeyers a subpoena requiring their appearance at a deposition
on Feb. 17 (since postponed to Mar. 3) "in reference to the production,
handling, labeling, sale, holding or offer for sale and distribution
of milk and other dairy products." The ODA asked that the Schmitmeyers
bring the following documents to the deposition:
All boarding contracts, cow share agreements, herd share agreements,
and all other agreements to which Carol Schmitmeyer and/or Paul Schmitmeyer
is a party, pertaining to (a) the care and milking of dairy cows, and
(b) the bottling, handling, sale, or other delivery or distribution
of milk and other dairy products. [The ODA had previously been provided
with a copy of the herd share agreement that the Schmitmeyers use.]
All bills of sale or other documents referring to the transfer of ownership
in any dairy cows executed by Carol Schmitmeyer and/or Paul Schmitmeyer
for the period from January 1, 2005 to the present. All weight slips,
logs, and any other records regarding milk production and milk distribution
maintained by Carol Schmitmeyer and/or Paul Schmitmeyer for the period
from January 1, 2005 to the present. All documents referring to the
purchase or other acquisition of milk containers and caps by Carol Schmitmeyer
and/or Paul Schmitmeyer for the
period from January 1, 2005 to the present. All documents referring
to the purchase or other acquisition of other
milk bottling equipment by Carol Schmitmeyer and/or Paul Schmitmeyer.
All receipts, ledgers, spreadsheets, and other documents referring to
the receipt of money by Carol Schmitmeyer and/or Paul Schmitmeyer during
the period from January 1, 2005 to present, for (a) the sale of milk
and other dairy products, (b) acquisition by any party of an ownership
interest in any dairy cows or dairy herd, and (c) reimbursement on boarding
expenses or any other expenses pertaining to the care of dairy cows
and the handling and distribution of milk and other dairy products.
It's clear that the ODA's request is not for the purpose of finding
the source of the campylobacter. Requests for bills of sale dating from
January 2005 have nothing to do with a "food-borne illness outbreak"
occurring in January 2006. The deposition is nothing more than a fishing
expedition that has nothing to do with protecting the public health
and everything to do with shutting down the Schmitmeyer's herd share
program with the eventual goal being the elimination of all cow/herd
share operations in the state. The Schmitmeyers are the test case on
the issue of whether cow/herd shares involve the sale of raw milk. There's
been a report elsewhere in the state that ODA agents have told farmers
that they will prosecute anyone trying to form a cow share agreement
to set the judicial precedent making cow shares (and herd shares) illegal.
There has even been a report that a farmer running a cow share program
outside of Dayton with just three milking cows was told by an ODA agent
that he will be receiving a letter from the Department ordering him
to
stop. The constitutional right to contract and the fourth amendment
right of shareholders to be free from unreasonable searches and seizures
of personal records mean nothing to the ODA.
The ODA will use whatever means at their disposal to put farmers out
of business who provide raw milk to consumers, whether it be through
entrapment schemes, general harassment, or dragging financially-strapped
farmers through administrative hearings and/or judicial court proceedings.
Further evidence of this-and what the Schmitmeyers are facing-can be
found in the recent case of Arlie Stutzman.
Arlie Stutzman is an Amish dairy farmer from Millersburg, who until
recently had been operating a small herd share program on his farm that
had about 20 shareholders. Until earlier this month, he had also held
a Grade B manufactured milk producer's license that enabled him to sell
milk to cheese manufacturing plants.
On Sept. 20, 2005, an undercover enforcement agent from the ODA visited
the Stutzman farm in an attempt to purchase raw milk. After asking several
questions about how the visitor found out about the farm, the visitor's
background, and the reasons for purchase, Arlie asked the agent if he
knew that the sale of raw milk was illegal in Ohio. The agent lied and
said he did not. Arlie asked the agent if he had a container and when
the agent said "yes", he told him to get it from his car and
give it to his son to fill with milk from the farm's bulk tank. The
agent asked what the cost for the milk was and Arlie said that there
was no charge but that he could make a donation if he wanted.
Before the son filled the container, the agent told Arlie that he did
not want to get him in trouble. Arlie believed that this transaction
was not a sale and said that he did not believe anyone would get in
trouble. After the son filled the container, the agent again asked what
the price was; Arlie replied "whatever you think it is worth."
The agent gave Arlie two dollars asking "is this all right?"
Arlie put the money in his pocket and the agent then left.
The timeline for the rest of Arlie's case is as follows:
Dec. 5, 2005 - Lewis R. Jones, ODA Dairy Division Chief, sends a letter
to Arlie advising him that the ODA proposed to revoke his Grade B manufacture
milk producer license for selling milk that was in violation of labeling
laws under the Ohio revised code. Selling milk in an unlabeled container
constituted misbranding under state law. The ODA also claimed that Arlie
sold adulterated milk in violation of state law. The ODA proposed revoking
Arlie's license despite the fact that in over 12
years as a license-holder Arlie had not been penalized a single time
by the ODA for any violation.
Dec. 19 - The ODA files for a preliminary injunction in the Holmes
County Court of Common Pleas to restrain Arlie from committing further
violations of the food adulteration and misbranding laws.
Jan. 11, 2006 - After an earlier postponement, an administrative
hearing on the proposed revocation of Arlie's Grade B license is held.
Arlie represented himself at the hearing.
The ODA undercover agent testified against Arlie at the hearing,
admitting that Arlie told him there was no charge for milk but that
the agent could make a donation if he wanted.
Dairy Chief Jones testified at the hearing that the milk "sold"
was misbranded because it did not have a label containing the name,
weight and product identification. He indicated that the milk was adulterated
because it was not tested for bacteria and there were questions regarding
the cleanliness of the container and the cleanliness of the person filling
the container.
When it was his turn to testify, Arlie said that he had been taught
that if any person asks for food, one should give it if he has such.
His training is that he should share food with anyone that asks. Arlie
said that he did not realize there was a requirement to label other
people's containers.
Arlie admitted that the testimony of the agent about the Sept. 20 transaction
was correct. He did testify that he asked the agent if he knew that
selling raw milk was illegal. Interestingly, this last testimony was
not included in the report of the hearing examiner (the ODA-appointed
attorney who was conducting the proceedings).
Jan. 17 - The hearing examiner issues a report recommending that the
ODA revoke Arlie's Grade B license.
Also on this day in the Holmes County Court of Common Pleas, the judge
hearing the ODA's motion for the injunction filed Dec. 19, grants the
ODA a preliminary injunction against Arlie restraining him from violating
state food adulteration and misbranding laws.
Feb. 6 - Arlie (through an attorney) asks the ODA to reduce the penalty
revoking his Grade B license to a 60-day license suspension for the
following reasons:
- Arlie did not realize the failure to label a container provided
to him was improper.
- His Amish culture taught him to give food to those in need.
- He had pledged to adhere to all laws in the future.
- The preliminary injunction against him, which he does not contest,
will assure that he will comply with all laws in the future without
need for license revocation.
- The ODA's actions constituted entrapment (the Ohio Supreme Court
has held that "the defense of entrapment is established where
the criminal design originates with the officials of the government
and they implant in the mind of an innocent person the disposition
to commit the
alleged offense and induce its commission in order to prosecute").
Arlie never solicited a sale of milk, never set a price for the milk,
never requested compensation of any kind for the milk, and never provided
an unlabeled container.
- State law requires that a licensee be given the opportunity to
correct any violation charged before a dairy license can be revoked.
This has been done because Arlie has never committed another violation
and there is no evidence that he intends to do so.
Feb. 8 - ODA Director Fred L. Dailey adopts the hearing examiner's
recommendation and issues a final order revoking Arlie's license. [The
ODA is prosecutor, judge and jury on the administrative side of the
law.]
Feb. 23 - Arlie has 15 days to appeal the Director's final order to
the Holmes County Court of Common Pleas but declines to do so because
of the cost involved among other reasons.
And so a farmer who had never had a penalty levied against him by the
ODA and who had never had a complaint filed against him in over 12 years
of business had his license revoked because he was entrapped into accepting
two dollars for a gallon of milk. The ODA's treatment of Arlie Stutzman
makes clear what the Schmitmeyers are confronting.
WHAT YOU CAN DO
The Schmitmeyers are presently in a difficult situation. If they
uphold the privacy (4th amendment) rights of their shareholders and
refuse to provide the requested documents at the deposition, the ODA
will likely initiate administrative proceedings to revoke their Grade
A license for failure to cooperate with an investigation. Additionally,
the law provides a judge with the power to fine the Schmitmeyers up
to $500 per day for each day they have refused to comply with all terms
of the subpoena.
If the Schmitmeyers do turn over whatever documents they have that the
ODA is requesting, it is likely, given their past actions, the ODA will
find something in their records as a pretext to file for an order in
judicial court enjoining the Schmitmeyers from operating their herd
share program, claiming it constitutes the illegal sale of milk.
The only way to halt the momentum of the process the ODA has begun against
the Schmitmeyers is PUBLIC PRESSURE. The ODA has broad legal powers
to conduct investigations of dairy farmers but only those parts of a
dairy farmer's business that pertain to sales of milk, not to private
contractual arrangements with shareholders consuming their own milk.
Call, email, fax, or write (or do all the above) the state officials
listed below and demand that the ODA end their fishing expedition into
the private dealings of the shareholders with the Schmitmeyers. Demand
that the ODA stop their investigation and cancel the deposition.
Ask these officials why the ODA would deny the right of citizens to
legally consume their own food, food they believe is critical for their
health and the health of their families. Please send them testimonials
as to how raw milk has benefited your health and the health of your
family (please also email any testimonials to the Schmitmeyers at
).
Ask them why the tax dollars of the citizens of the state of Ohio fund
the harassment and intimidation tactics of the ODA, tactics that have
no place in a free society. Tell them you want an end to the climate
of fear the ODA has created for health-conscious consumers and for small
farmers producing healthy food.
The Schmitmeyer's deposition is scheduled for Friday March 3. PLEASE
ACT NOW.
WHOM TO CONTACT
Fred L. Dailey, Director Governor Bob Taft
State Dept. of Agriculture 30th Floor
Bromfield Administration Bldg 77 South High Street
8995 East Main Street Columbus, OH
43215-6117
Reynoldsburg, OH 43086-3399 Ph: 614-466-3555 or
Ph: 614-466-2732
614-644-HELP
Fax: 614-466-6124
Lewis R. Jones, Chief Senator Larry A. Mumper
Division of Dairy Chair,
Senate Agriculture Committee
State Dept. of Agriculture Senate Building
Bromfield Administration Bldg Room #222,
Second Floor
8995 East Main Street Columbus, OH 43215
Reynoldsburg, OH 43086-3399 Ph: 614-466-8049
Ph: 614-466-5550
Fax: 614-728-2652
Senator Joy Padgett
Vice Chair, Senate Agriculture Committee
Senate Building
Room #035, Ground Floor
Columbus, OH 43215
Ph: 614-466-8076
Senator Charlie Wilson
Ranking Minority Member, Senate Agriculture Committee
Senate Building
Room #226, Second Floor
Columbus, OH 43215
Ph: 614-466-6508
Senator Larry A. Mumper
Chair, Senate Agriculture Committee
Representative Jim Aslanides
Chair, House Agriculture & Natural Resources Committee
77 S. High St.
12th Floor
Columbus, OH 43215-6111
Ph: 614-644-6014
Fax: 614-644-9494
Representative Jim McGregor
Vice Chair,
House Agriculture & Natural Resources Committee
77 S. High St.
11th Floor
Columbus, OH 43215-6111
Ph: 614-644-6002
Fax: 614-644-9494
Representative John Domenick
Ranking Minority Member,
House Agriculture & Natural Resources
Committee
77 S. High St.
10th Floor
Columbus, OH 43215-6111
Ph: 614-466-3735
Fax: 614-644-9494
Ohio residents can also contact their state and local representatives
found in the links below:
http://www.senate.state.oh.us/
http://www.house.state.oh.us/
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