A trial that has become a symbol, in Wisconsin and across the U.S., of government criminalization of farmers for providing food directly to consumers has been rescheduled for January.
But the delay from the previously scheduled September court date is expected to focus even more attention on the dispute that has dragged Wisconsin dairy farmer Vernon Hershberger to the courtâ€™s defendantâ€™s table in the Sauk County Circuit Court, presided over by Judge Guy Reynolds.
The stateâ€™s case against the Loganville farmer has him accused of four misdemeanor counts of violating Wisconsinâ€™s food and dairy code.
Officials with the Farm to Consumers Legal Defense Fund said Hershberger will be represented by the fundâ€™s attorneys in the case, which already has created ripples across the industry.
In Wisconsin, while the state Department of Agriculture, Trade and Consumer Protection â€œonce supported farmers who offered raw dairy through direct-to-consumer sales,â€ officials said the state agency reversed its position under pressure from the Food and Drug Administration.
When the state legislature tried to block the newly developing crackdown on farmers who provide their products directly to consumers, the governor vetoed the proposal.
That leaves Hershberger facing the January trial on the four misdemeanor counts. He will be represented by Elizabeth Rich, the vice president of the fund, and a Wisconsin attorney.
â€œHershberger has been charged with operating a retail food establishment without a license,â€ explains the fund, â€œoperating a dairy farm as a milk producer without a license and violating a holding order issued by the Wisconsin Department of Agriculture, Trade and Consumer Protection. The holding order prohibited anyone from removing food products from coolers that had been taped in Hershbergerâ€™s farm store.â€
The organization explained that whatever the result of the case, it could â€œhave a huge impact on the availability of raw milk for Wisconsin consumers.â€
The state agency â€œhas been attempting to limit consumer access to raw milk; a ruling in Hershbergerâ€™s favor would be a major setback for the agency.â€
Likewise, a ruling in favor of the stateâ€™s regulations could leave consumers without access to some of the natural farm products they desire.
In short, the state of Wisconsin is arguing it can regulate when consumers gain access to such products through private deals.
Pete Kennedy in a Farm-to-Consumer Legal Defense Fund commentary on the case wrote that the evidence will reveal that Hershberger had private contractual arrangements with the purchasers to provide the food.
â€œIf Hershberger is convicted of the charges against him, it could have a chilling effect on consumer access to raw milk for those who donâ€™t own and board their own cows. The farmer currently is leasing his cows to the Right to Choose Healthy Food Buyers Club,â€ he said earlier as the case was beginning to develop.
Kennedy noted that in a similar argument, a Dane County Circuit Court judge ruled simply that â€œowners of cows boarded at the Zinniker farm in Elkhorn could not legally obtain raw milk produced by their own cows at the farm.â€
Hershberger earlier told the Weston A. Price Foundation that, â€œThere is more at stake here than just a farmer and his few customers. This is about the fundamental right of farmers and consumers to engage in peaceful, private, mutually consenting agreements for food, without additional oversight.â€
WND previously reported when the Price Foundation criticized a federal study about outbreaks of illness blamed on raw milk. The Centers for Disease Control report said outbreaks because of raw milk were 150 times greater than outbreaks attributed to pasteurized milk, citing statistics from a 13-year period ending in 2006.
But the Price Foundation said the results were skewed because of the way federal report authors â€œcherry pickedâ€ data.
Sally Fallon Morell, president of the Weston A. Price Foundation, said the study listed an average of 315 illnesses a year â€œfrom all dairy products for which the pasteurization status was known.â€
â€œOf those, there was an average of 112 illnesses each year attributed to all raw dairy products and 203 associated with pasteurized dairy products,â€ she said of the study period ending in 2006.
â€œThe CDCâ€™s data shows that there were significant outbreaks of foodborne illness linked to pasteurized dairy products the very next year, in 2007: 135 people became ill from pasteurized cheese contaminated with e.coli, and three people died from pasteurized milk contaminated with listeria,â€ the Price Foundation report said.
And shortly before the time frame for the study, there were 16,000 confirmed cases of Salmonella traced to pasteurized milk from a single dairy, the foundation reported.
The foundation suggested that the time frame was picked by government reporters to portray raw milk in a negative light.
It was in another case that the judge ruled that Americans simply do not have a right to choose their food, not even when they own the cows and the milk.
The judge decided in a fight over familiesâ€™ access to milk from cows they own that Americans â€œdo not have a fundamental right to consume the milk from their own cow.â€
Circuit Court Judge Patrick J. Fiedler said the families who reported they were boarding their cows for a fee and then getting the milk instead were running a â€œdairy farm.â€
â€œItâ€™s always a surprise when a judge says you donâ€™t have the fundamental right to consume the foods of your choice,â€ said Kennedy.
The judge wrote:
The court denied plaintiffsâ€™ motion for summary judgment, which means the following:
(1) no, plaintiffs do not have a fundamental right to own and use a dairy cow or a diary (sic) herd; (2) no, plaintiffs do not have a fundamental right to consume the milk from their own cow; (3) no, plaintiffs do not have a fundamental right to board their cow at the farm of a farmer; (4) no, the Zinniker plaintiffsâ€™ private contract does not fall outside the scope of the stateâ€™s police power; (5) no, plaintiffs do not have a fundamental right to produce and consume the foods of their choice; and â€œ(6) no, the DATCP did not act in an ultra vires manner because it had jurisdiction to regulate the Zinniker plaintiffsâ€™ conduct.
Kennedy said, â€œThe judge said people have no fundamental right to acquire, possess and use your own property.â€