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Maine Judge Sides with State in Raw Milk Sales Dispute
05/01/2013   Reported By: Susan Sharon

A Hancock County Superior Court judge has sided with the Maine Department of Agriculture in a dispute with a Blue Hill farmer who sells raw milk. Dan Brown had argued that he was not required to have a license for selling vegetables and unpasteurized milk products, in part because he was protected or exempted by a local ordinance. The court disagreed and has issued an injunction against Brown, which could have implications for other food producers. Susan Sharon has more.

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Maine Judge Sides with State in Raw Milk Sales Dis Listen

It all came to a head two years ago when an inspector from the Maine Department of Agriculture encountered farmer Dan Brown selling produce and unpasteurized milk. The inspector advised Brown that the sale of milk and milk products requires a license.

But Brown continued his practice without getting one. And so, in August of 2011, the department sent Brown a letter demanding that he get a license, and offering to expedite the process for him. Despite repeated warnings, Brown acknowledges that he continued to sell milk from his farm stand and at local farmers' markets.

"It just doesn't make sense to become a milk distributor for milking one, two cows," he says.

The state maintains that because Brown sells milk to the public he falls within the definition of "milk distributor" and is required to obtain a license under the law. Brown says prior to 2011, he was advised by the Agriculture Department that he didn't need a license as long as he was a small farmer who sold raw milk from a farm stand at his house.

But then there was a change in administration, and Brown says the rules also changed. "We know now through the FOIA requests we did and stuff that the feds came in and told them to crack down on this raw milk sales or they were going to lose their funding for the meat inspection program," he says.

Brown thought he would get a boost when the town of Blue Hill passed an ordinance that exempted local food producers selling directly to consumers from inspection and licensing requirements. But in her decision and order, Hancock County Superior Court Judge Ann Murray said nothing in the Blue Hill ordinance clearly states that the town intended to include milk within the definition of "local food."

In addition, the judge ruled that even if the ordinance were to include milk products, it would essentially be circumventing state law. She declined to permit Brown to take shelter under what's known as "Home Rule" of the Maine Constitution, which permits local municipalities to enact regulations under certain circumstances.

And she issued an injunction to prevent Brown from selling milk without a license, selling unpastueurized milk without labeling it as such and operating a food establishment without a license.

"We thought that the evidence was in his favor, certainly," says Gary Cox, Dan Brown's attorney. Cox had not yet read the order but says he is disappointed in the result, especially as it relates to Home Rule.

"She's not reading the case law the way I read the case law," Cox says. "The Supreme Court of Maine has clearly said there has to be an express prohibition stated in the law prohibiting municipalities from regulating in an area."

At least half a dozen Maine towns have passed ordinances similar to Blue Hill's. And for the Maine Department of Agriculture, the decision is a victory in what's been largely regarded as a "food sovereignty" test case.

A dairy farmer himself, Agriculture Commissioner Walt Whitcomb says the safety of Brown's products has been a concern. "The samples that we took from his product was very, very unhealthy," Whitcomb says. "Part of his argument was that that was a mistaken sample or something, but that seems to be the case."

Whitcomb says it's not his department's intent to put Dan Brown out of business. Brown says it's too soon to say whether he'll appeal the decision, but he still doesn't think getting a milk distributor's license is an option for him. The judge has scheduled a meeting with the parties to address civil penalties later this month.


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