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BIG & small – TWO VIEWPOINTS ON FOOD SAFETY 

Steve Bemis, Esq., Board Member, Farm-to-Consumer Legal Defense Fund

November 20, 2009

Steve Bemis

Different solutions may be applicable to different circumstances. The different circumstances in raw milk and other local food discussions involve principally issues of scale: controls which may be needed for large (or foreign) producers are not needed for the small. The "11 Great Thoughts" which I posted on October 29 (see third comment at http://tinyurl.com/yd4p2da) on David Gumpert's blog www.thecompletepatient.com anticipate these differences in points #4 and #5 (the 11 Great Thoughts are my attempt to foster reasoned discussion concerning the freedom to choose raw milk): 

"4) Sales at retail, where the consumer is likely not to know the producer, should have increased testing under state law. 

"5) Transactions (whether sales, cow shares or otherwise depending on state law) direct from farmer to consumer whether on the farm or otherwise, or from farmers with herds smaller than a yearly-average [100] milking cows, should not be regulated other than by individual agreement.

[precedent for a similar exemption of raw milk, is the federal Egg Products Inspection Act (Pub. L. 91-597, 84 Stat.1620 et seq.) which exempts eggs direct farm-to-consumer or any sales from flocks of less than 3000 birds. At the state level, some states permit sales to various degrees and at the other extreme, some few prohibit all kinds of raw milk transactions; these issues will have to be dealt with at the state level.]" 

Enforcement against (read: Shut-down of) small dairies producing raw milk are blatantly unfair in the context of nearly-total lack of similar sanctions against large operations. Fine, if the regulators don't want to shut down large operations, then regulators should stay in that universe and manage large operations according to whatever priorities seem important. If FDA and/or national safety standards arrive on the scene to manage large operations even more tightly, then that may be the will of the people, and the fate of large operations. Surely, if cargo-ships of melamine-laced milk powder are supplying the factories of big-ag food producers (as seems to be a factor in the current dairy crisis), then FDA ought to be on the case. More power to them. 

The problem is not with small operations, however, and fundamentally consumers who enter into private contracts to obtain the foods of their choice are simply exercising the freedom which the Founders forgot to include in the Bill of Rights simply because it was too obvious to think about. 

It's all about choice: businesses or consumers who want to live the big ag life should be free to do so, with both the assurance and protection of the government's rules where bigness piggybacks on all of the advantages of a complex, interconnected, mass-advertising society. You can't be big and get all those advantages without playing by some rules. 

On the other hand, consumers and farmers who choose to stay small also should have a choice. The rules of large scale should not be applied where the freedom to choose, with its greater responsibilities and benefits, reigns. In this zone of freedoms, government should not tread. 

Freedom is scary. Lawyers may peek into the tent and sue when something goes wrong. High levels of voluntary standards, models of best practice, whatever you want to call them, will help. It's hard work. What we don't need are suffocating layers of rules and enforcement targeted at the small-scale segment of the market which is innovating, meeting new consumer demands, and helping this country regain and preserve its health.

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