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Follow file: Raw milk dairy gets help from defense fund in case over state's regulation

Article from the ithacajournal.com

A small Lodi dairy is getting help in its appeal of a court decision siding with the state agriculture department in a case over selling unpasteurized milk.

Steve and Barbara Smith, operators of Meadowsweet Dairy in Lodi, are being represented in their appeal of a lower court ruling by a lawyer with the Farm-to-Consumer Legal Defense Fund, Steve Smith said last week. The attorney has filed a notice of appeal to a state appeals court in their case.

In November, Judge John Egan Jr. of state Supreme Court in Albany County ruled against the Smiths on their challenge to the state Department of Agriculture and Markets action against their dairy.

Agents locked their cooler in October 2007, saying the Smiths were in violation of laws prohibiting sale or distribution to the public of unpasteurized milk.

The Smiths went to court in Seneca County seeking an order against the agency's action, and the case was subsequently moved to the county of the state capital.

The Smiths contend they are selling not to the public but only to members of an organization in which members pay a fee to join.

They want operate like a community-supported agriculture farm, where members pay to join in return for a share of the produce through the harvest.

They had sold raw milk under a state permit allowing them to do so but had heard indications that might no longer be allowed, and an attorney suggested the herd-share approach, Smith said.

“We thought that was perfectly clear,” he said.

Egan, however, agreed with Ag and Markets, ruling, among other points, that the term “consumer,” as described in the relevant state law, should be defined broadly so that in effect the Smiths were distributing milk in a way that gave the agency jurisdiction.

He also ruled that the state's interests in food safety weigh heavily against other concerns. Pasteurization is intended to kill bacteria that can cause potentially serious illness.

Advocates of raw milk, however, believe the process destroys many beneficial nutritional components of milk.

“New York State Supreme Court, Albany County, acknowledged the department's broad authority over the production, processing and distribution of food and dairy products, and in this case, raw milk,” Agriculture and Markets Commissioner Patrick Hooker said in a statement on the case. “The department remains dedicated to administering and enforcing the state's food safety laws and regulations to protect the public health and help assure that consumers have access to wholesome and nutritious food and dairy products.”

Smith said the judge applied a definition to “consumer” that is broader than spelled-out in the law.

“He redefined ‘consumer' to mean anybody that eats,” Smith said.

The Farm-to-Consumer Legal Defense Fund has an Ohio attorney who has filed a notice of appeal to the state appellate division, Smith said.

The Smiths pay an annual fee to be in the organization, which is also pursuing a similar case in California over raw milk, and cases over other state farm-product regulation.

It is also challenging a federal measure requiring an identifying electronic chip in farm animals intended to track disease in livestock as placing the burden unfairly on small farms, Smith said.

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