Tuesday, May 18, 2010
Last week there was a raw milk rally and drink-in on the Boston Common, followed by a public hearing with Commissioner Scott Soares of the Massachusetts Department of Agricultural Resources (MDAR).
Mainstream press covered the events (Boston Globe; Fox News).
I believe the most important testimony in the hearing came from Harvey Schwartz, a Boston-area attorney and raw milk drinker. He urged Commissioner Soares to reconsider the course that the MDAR has charted with respect to raw milk buying clubs. (The MDAR is simultaneously claiming that they are already illegal, and trying to create a regulation making them illegal.)
Schwartz spoke of the legal notion of agency. He stated that the buying club arrangement was a principal/agent relationship. He observed that under Massachusetts state law, you can contract an agent to perform all sorts of transactions for you, including writing checks, executing legal documents, buying cars, buying real estate, making end-of-life decisions, and buying vodka, cigarettes, and prescription drugs. And you can have an agent buy a cow full of milk for you. Or an entire farm, including its contents. So why should it be illegal specifically for an agent to buy you a gallon of milk?
Schwartz's argument convinced me that the legality of buying clubs in Massachusetts will ultimately be confirmed. It may just be a question of finding someone who's willing to challenge the law, and someone who's willing to foot the legal bill. I don't think it will be hard to fill these roles.
For those of you who like to have the whole picture, below is a wrap-up of the event, with lots of context (because I love context).
Selling raw milk is one of the best (and indeed only) ways for a small dairy farm in New England to stay in business. Raw milk drinkers pay $6-$10/gal directly to farmers for raw milk, while processors pay farmers only $1-$2/gal. People have been buying milk on-farm for many years in Massachusetts. They have also formed raw milk associations and buying clubs of various sorts. One motivation has been that most of the people are in the east of the state, while most of the milk is in the west. A milk-drinker who wanted raw milk could give their money to someone who would go to the farm to buy it for them. In some cases, these arrangements were informal, with groups of friends taking turns driving to the farm. In other cases, small businesses were formed to do the errand, generally charging a fee to cover the cost of operations and to support a small staff. These buying clubs extended the reach of raw milk sales considerably, and saved many driving miles, too.
In December, Commissioner Soares sent a letter in support of Eastleigh Farm's bid for a license to sell raw milk in the town of Framingham, Massachusetts, citing the above observation about the economics of small dairy in Massachusetts. Soares has historically been a faithful ally to Massachusetts farms; indeed, part of the state purpose of the MDAR (on their website) is "[w]orking to keep Massachusetts agriculture economically and environmentally sound".
In February, the MDAR started sending cease-and-desist orders to some of the more visible Massachusetts buying clubs. The clubs receiving these orders seem to have complied.
It's not clear what prompted these orders, if anything. There was no public health crisis or outbreak. David Gumpert, a leading expert on raw milk policy, shares his thoughts here. Importantly, many of the dairy farms rely on the business provided by buying clubs. The farms are in financial danger without the clubs.
In April, the MDAR published a notice announcing a hearing for public comment on some proposed changes to the regulations governing raw milk in Massachusetts. Among other things, these proposed changes appeared to make it illegal for anyone to distribute raw milk anywhere but on its farm of origin. I wrote about this here. Interestingly, the MDAR claims that even at present, raw milk sales are only legal on-farm; yet if this is indeed the case, then the reg changes should be unnecessary. Boston Localvores address this point in greater depth here.
The MDAR's move caused quite a stir in the raw milk community. A pre-hearing rally was scheduled, and key raw milk activists made plans to fly in from out-of-state.
The MDAR hearing would take place Monday, May 10, at 10AM.
At 5:10PM on Friday, May 7, the MDAR announced that they were withdrawing the proposed changes regarding the distribution of raw milk, and that they would not hear public comment on the withdrawn changes; instead, they would hear comment only on some other, much more technical changes having to do with disinfection procedures for bottle caps, composition of barn floors, and so on.
Reactions to the MDAR's last-minute change were mixed, as I wrote here. NOFA, for instance, saw this as a sign that the people had been heard. David Gumpert saw it as a sign that the people had been denied the chance to be heard, and the government would try to go ahead with its original plans regardless.
The morning of the rally was clear and crisp. Local and national raw milk advocates gathered on the Boston Common, along with a bluegrass band, and most importantly Suzanne, a cow from Eastleigh Farm farmer Doug Stephan's herd. Suzanne was certainly the first cow to have grazed on the Boston Common in a long time. An impromptu press conference was held, we milked Suzanne, and we drank some milk.
We walked the few blocks to the municipal building where the hearing would take place. The room was inadequate for the number of people who wanted to attend the hearing; many were turned away. Beyond that, the room was not configured well. Comments were taken at one end of the long room, and there was no microphone or amplification system, so it was difficult to hear at times.
The MDAR heard perhaps five or so comments on the proposed changes regarding milk caps, barn floors, etc. After that was done, they agreed to hear comments on the withdrawn changes.
The hearing lasted about three and a half hours, which was twice as long as originally planned. Commissioner Soares, his staff, and the public all showed great patience, even during a sometimes emotional hearing.
Many, many people offered their comments, many of them quite insightful. I offer grateful acknowledgment to them all, and I regret that I cannot reproduce the comments here. Anyone who is interested can get a full transcript by calling 617-626-1700 and asking for a transcript of the MDAR public hearing of May 10, 2010, regarding raw milk. If you are curious, I would encourage you to do so.
Commissioner Soares said that the MDAR would review the public comment, and announce its plan of action within the next 30 days. Needless to say, I am curious to see what will happen!