Page 88 - Fall2010

FDA LAWSUIT
In a complex federal district court ruling, Judge Mark W. Bennett refused to grant a motion by the United States Food
and Drug Administration (FDA) to dismiss a lawsuit filed against the agency by the Farm-to-Consumer Legal Defense
Fund (FTCLDF) and eight other named plaintiffs. The lawsuit argues that federal regulations (21 CFR 1240.61 and 21
CFR 131.10) prohibiting raw milk for human consumption in interstate commerce are unconstitutional as applied to
FTCLDF’s members and the other plaintiffs named in the suit.

In his August 18 decision, Judge Bennett denied part of FDA’s motion to dismiss while reserving judgment on the re-
mainder. As part of his ruling, the judge ordered proceedings in the case to be stayed sixty days to allow plaintiffs time
to decide whether to file a “citizen petition” with FDA. The petition would ask FDA to clarify its interpretation of the
authorizing statutes and regulations giving the agency power to ban raw milk for human consumption in interstate com-
merce. If plaintiffs choose to file the citizen petition, the court would continue to delay the suit until the administrative
proceedings were completed or until FDA failed to take action within the time the law requires. If plaintiffs declined to
pursue the citizen petition, Judge Bennett indicated the court would reconsider FDA’s motion to dismiss.

In Judge Bennett’s view, the main question FDA needs to answer in the petition process is “whether § 1240.61 applies
to and proscribes the conduct of (1) persons who travel from one state, where it is not legal to purchase raw milk, to
another state, where it is legal to purchase raw milk, legally purchase raw milk, then return to the original state where
they consume the raw milk themselves or give it to their friends or family members; or (2) a principal and agent who
agree that the agent will obtain raw milk out-of-state, where it is legal to do so, and to deliver it to the principal in the
principal’s home state, where sales of raw milk are not permitted; or (3) a producer of raw milk who sells raw milk in
an intrastate transaction to persons that he knows are from out of state.”

All of the individually named plaintiffs in the lawsuit fit into one of the three scenarios described above. Section 1240.61
provides in part, “No person shall cause to be delivered into interstate commerce or shall sell, or otherwise distribute,
or hold for sale or other distribution after shipment in interstate commerce any milk or milk product in final package
form for direct human consumption unless the product has been pasteurized. . . ”

Judge Bennett sees the citizen petition as a way to resolve the question of “whether the plaintiff’s conduct involves or
affects ‘interstate commerce’ sufficiently to fall within the proscriptions of § 1240.61, and, still more specifically, whether
the plaintiffs’ conduct constitutes ‘delivery [of raw dairy products] into interstate commerce’ or ‘distribution’ of raw
dairy products after shipment in interstate commerce.”

Plaintiffs have survived the first round in the case. They have until October 18 to determine what their next course of
action will be.

AMERICA’S FIRST COW SHARE PROGRAM?

An alert member found the following fascinating tidbit: Devon and Cornwall were the last ports of call for sailing ships
departing for Britain’s colonies abroad. In 1623, the British ship Charity brought “red cattle,” one bull and three heifers to
Edward Winslow, agent for Plymouth Colony, making Devons the first British cattle to set hoof on American soil. Cattle
became an important source of wealth in the colony; the average cow sold for 28 pounds in 1628. So valuable were they
that in 1627, Edward Winslow “sold unto Capt. Myles Standish his sixth share in the red cow,” indicating that one cow
was often shared by several families (ww.hobbyfarms.com/farm-breeds/others-profiles/devon-2.aspx).
To agist is, in English law, to take cattle to graze, in exchange for payment. Agistment originally referred specifically to
the proceeds of pasturage in the king’s forests, but now means either (a) the contract. . . for taking in and feeding horses
or other cattle on pasture land, for the consideration of a weekly payment of money, or (b) the profit derived from such
pasturing. An agister is defined as “a farmer, ranchman, herder of cattle, livery and boarding stable keeper, veterinarian,
or other person, to whom horses, mules, cattle, or sheep are entrusted for the purpose of feeding, herding, pasturing,
training, caring for, or ranching.”
Thus, agistment agreements have considerable historical precedent in English law; all but one American state recog-
nizes the validity of agister contracts; and in many states, particularly Colorado, Virginia, Indiana and Tennessee, where
sales of raw milk are illegal, many people are obtaining raw milk from their own cows, cared for by a local farmer through
an agistment agreement.
88 Wise Traditions FALL 2010