FDA Dragon Slayer Speaks Out on Amish Raw Milk Sting

Attorney Jonathan Emord has brought down FDA eight times in federal court, six on grounds of First Amendment rights, including cases on health claims on dietary supplements. Congressman and Dr. Ron Paul calls Jonathan “a hero of the health freedom revolution” and says “all freedom-loving Americans are in [his] debt . . . for his courtroom [victories] on behalf of health freedom.”  I asked permission to post his article published today at Newswithviews.com and he immediately responded positively. Coincidentally, the rally in support of the Amish family busted was held today on Capitol Hill in D.C. Even a cow was brought in and raw milk from across the state line was enjoyed by all in defiance of FDA’s sting.–Augie

FDA TYRANNIZES AMISH FARMER

By Attorney Jonathan Emord
Author of “The Rise of Tyranny” and
“Global Censorship of Health Information”
May 16, 2011

Dan Allgyer, an Amish farmer from Pennsylvania, finds himself an enemy of the state. He is an enemy not because he is a violent man, not because he performs acts that threaten the lives or properties of others, and not because he is involved in some plot to overthrow the government. Dan Allgyer is a humble farmer whose “crime” consists of selling raw milk harvested from his cows to people who ask for it, including those who want it from Maryland and the District of Columbia.

In late 2009, FDA agents began a sting operation designed to catch Dan “in the act” of selling to out of state residents refrigerated (but unpasteurized) milk harvested from his own cows. FDA does not contend that any of Dan’s milk is contaminated with harmful pathogens and, indeed, none of it has resulted in a single complaint of injury. Rather, FDA’s case is based on the fact that the raw milk Dan sells is unpasteurized. Believe it or not, the sale of unpasteurized milk interstate is a federal crime. FDA views the crime as a very serious matter without regard to whether the milk sold is in fact unsafe. Indeed, FDA is pleased to spend tax dollars imposing the full weight of federal power on any dairy farmer who dares sell fresh, refrigerated milk from healthy cows to someone from out of state. Never mind that this practice is as old as the republic and, but for discrete instances when industrial farms sold milk from sick cows, raw milk has been as safe, if not safer than, pasteurized milk.

The case of Dan Allgyer is a quintessential example of abuse of federal power. Only a government possessed of too much unconstrained power would view an Amish dairy farmer as a public enemy. This nation was built by yeoman farmers who are Dan Allgyer’s immediate predecessors. The nation they constructed was instituted among men to protect the rights of the governed, not to deprive an honest working man of his living. The Constitution made defense of individual liberty the paramount objective. Liberty, as Thomas Jefferson aptly defined it for an entire generation of American Whigs, consisted of unobstructed action according to our will within limits defined by the equal rights of others. Liberty, as the FDA operationally defines it, consists of action according to our will within limits defined by anti-competitive regulations.

The government proceeds against Dan Allgyer not because the raw milk he sells is in fact contaminated with harmful pathogens but because it could become so. That is a distinction without a difference, however, because pasteurized milk too can become contaminated with pathogens if not properly handled. All animal products (pasteurized milk, pasteurized cheese, beef, poultry, and fish) are inherently at risk of contamination unless kept refrigerated and consumed before reasonable expiration dating. The critical factor determining that risk depends on from whence the products come (healthy and clean or unhealthy and unclean animals) and how the products are handled (refrigerated or not). Every year thousands of Americans become ill and hundreds die from ingesting pasteurized milk and cheese contaminated with listeria, salmonella, or other harmful pathogens.

What then motivates this government to single out raw milk producers for elimination? There are certainly many ways to ensure that a raw dairy product is safe, including making sure that it comes from healthy, grassfed cows and is kept refrigerated and sold within a reasonable period. The government could elect to demand that those reasonable measures be taken. Instead, however, the government has created a rule that favors large dairy producers and manufacturers over small, independent farmers like Dan Allgyer. That rule, commanding that all dairy products be pasteurized, ensures that small organic dairy farmers pose little or no competitive threat to the large mass manufacturers of pasteurized dairy.

The government proceeds by one of the modern regulatory state’s favorite means of depriving all of freedom for the sake of supposedly nabbing wrong-doers: prior restraint. No one may lawfully sell raw milk in interstate commerce, not even the majority of sellers whose raw milk is safe to consume. The law punishes the majority of honest sellers on the basis that a minority of dishonest ones have in fact sold contaminated milk. Thus, FDA does not argue that Dan Allgyer’s milk will in fact cause you injury if you drink it, only that it could cause you injury. But that is not a distinguishing principle, so if one were to apply FDA’s reasoning universally virtually no food could be sold because almost all food is liable to become contaminated. We may thus see that FDA applies its prior restraint selectively—here to the grave detriment of small organic farmers in favor of large industrial concerns (precisely those that can reward the agency’s leadership with lucrative post-government employment).

The Commissioner of the Food and Drug Administration chose to devote FDA resources to taking down a harmless dairy farmer from Pennsylvania on a trumped up charge that his milk “could” become contaminated. Indeed, it could, but so could all milk sold in this country, if not properly handled.

To entrap Dan, an FDA investigator from the FDA’s Baltimore District Office fraudulently posed as a customer from Maryland and placed 23 orders for Dan’s unpasteurized milk from December 2009 to March 2011. FDA investigators retrieved the milk at various private residences in Maryland where Dan and a fellow farmer delivered them. They tested the milk and confirmed that it was unpasteurized but not that it contained any harmful pathogens. Having their proof of a lack of pasteurization, the FDA then proceeded in a manner fit for the taking down of a drug lord.

On April 20, 2010, before sun-up, two black SUVs with lights off and dark tinted windows meandered down the long dirt road that leads to Dan Allgyer’s dairy farm. Tending to his cows as he does every morning, Dan walked out of one of his barns, catching a glimpse of the slowly approaching vehicles. Because few travel to his farm and none in black SUVs with lights off before sunrise, Dan suspected the worst. But, consistent with his religion, Dan is a nonviolent man, so he continued tending to his cows. While in the middle of his morning chores Dan was confronted by a lone federal agent. “Where do you keep the milk?” he was asked as other agents began rummaging through the farm. Dan then showed the agents portable coolers and a walk-in cooler/freezer where the wholesome stash lay. There it was, the awfully healthy “contraband” that the federal agents sought.

The FDA tested the milk from Dan’s farm, confirming that it was unpasteurized but finding no evidence of harmful pathogens. Then on April 19, 2011, one year after it raided Dan’s farm, the FDA filed suit in the United States District Court for the Eastern District of Pennsylvania seeking an order barring Dan from selling his unpasteurized milk in interstate commerce and commanding him to pay for the federal investigation of his farm and for the government’s legal fees and costs.

Not everyone is deaf to the plight of a hard working American. On May 11, Congressman Ron Paul did his part to end the abuses. He introduced HR 1830, the Unpasteurized Milk Bill, which would forbid the federal government from banning the sale of unpasteurized dairy in interstate commerce. The bill restores a presumption of innocence that the FDA has taken away. No one in this country who sells a food product should be condemned as a purveyor of adulterated food without proof that the food is in fact unsafe for consumption. Dan Allgyer is one of the latest victims of precisely that kind of false condemnation.

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Jonathan W. Emord is an attorney who practices constitutional and administrative law before the federal courts and agencies. Congressman Ron Paul calls Jonathan “a hero of the health freedom revolution” and says “all freedom-loving Americans are in [his] debt . . . for his courtroom [victories] on behalf of health freedom.” He has defeated the FDA in federal court a remarkable eight times, six on First Amendment grounds, and is the author of Amazon bestsellers The Rise of Tyranny, and Global Censorship of Health Information. He is also the American Justice columnist for U.S.A. Today Magazine. For more info visit Emord.com.

Picture is from the Rally– I wonder if the butt end of that cow is facing the FDA building.

Leah Mack of Union Bridge, Md., milks a cow across from the Capitol at a protest in favor of raw milk. (By James Buck/The Washington Post)

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