Do Americans Have the Right to Eat Healthy Food?

Nov 13, 2013 by Chris Masterjohn, PhD

A Review of Life, Liberty and the Pursuit of Food Rights: The Escalating Battle Over Who Decides What We Eat, by David E. Gumpert (Chelsea Green Publishing, 2013) Review by Chris Masterjohn, PhD Review published July 31, 2013 There is no absolute right to consume or feed children any particular food. . . . There is no 'deeply rooted' historical tradition of unfettered access to foods of all kinds. . . . Plaintiffs' assertion of a "fundamental right to their own bodily and physical health, which includes what foods they do and do not choose to consume for themselves and their families" is similarly unavailing because plaintiffs do not have a fundamental right to obtain any food they wish. . . . There is no fundamental right to freedom of contract. — U.S. Food and Drug Administration (FDA), in a legal brief supporting the dismissal of a lawsuit by the Farm-to-Consumer Legal Defense Fund The 18th century was the century of political rights; the 19th century was the century of women's rights; the 20th century was the century of civil rights. The challenge of the 21st century will be the struggle for food and farming rights. — Sally Fallon, president of the Weston A. Price Foundation David E. Gumpert, author or co-author of eight other books, and formerly a reporter for the Wall Street Journal and editor for Inc. and Harvard Business Review, has written for us a fascinating exposé of the emerging movement to produce and consume local, high-quality, nutrient-dense foods outside of the industrial agriculture system, and the costly and invasive actions taken by the FDA and assorted state agencies intended to contain, suppress, or perhaps even wipe out this movement entirely. In Life, Liberty, and the Pursuit of Food Rights: The Escalating Battle Over Who Decides What We Eat, Gumpert gets down and dirty, sifting through thousands of pages of documentation, obtained through a combination of helpful sources in government and requests under the Freedom of Information Act and state open records laws. These pages document a bizarre world into which we are now entering. This is a world in which government agencies spend literally millions of dollars ostensibly to strengthen food safety, often using the most outrageous tactics imaginable: sending undercover agents to farmers' markets to entrap farmers into selling cheese to the wrong people, charging ordinary citizens with multiple felony conspiracy counts for distributing farm-fresh products, secretly surveilling email conversations for months on end, raiding private food clubs with guns drawn, ordering the destruction of hundreds of thousands of dollars of perfectly good food, and sending U.S. Public Health Service agents to inspect small-scale cheese plants dressed in intimidating camouflage fatigues and combat boots. Gumpert provides us with strong indications, moreover, that all of this is being coordinated at the highest levels within the FDA, all the while intended to appear as an assortment of unrelated and independent actions taken by state and local agencies. Yet this tale is not woven only in tears, nor is it even slightly defeatist. Advocates of food rights have won many legal victories, and even as these legal struggles continue, many people are recovering their health by shifting to locally produced, high-quality, nutrient-dense foods. Nor is it a one-sided tale that tells only half the story. Gumpert masterfully fills the roles of both journalist and advocate. His support for the food rights movement is clear and explicit. Yet he provides extensive quotes from government agencies and food safety advocates, critiquing their views but delivering them with fairness and clarity. And while the food rights movement has its share of valiant heroes, as in any true story, or really any story worth its salt, there is no shortage of personal conflict, quirky characters, and disappointing behaviors. Gumpert never shies away from any of it. Rather, he beautifully seams together all these loose fabrics to form a three-dimensional story where the characters truly come alive. Is There Such a Thing as Private Food? At the heart of this conflict is whether there is such a thing as private food. Does anything we produce and consume automatically fall under the jurisdiction of state and federal regulators? Even if we drink the milk from our own cow or eat the tomatoes from our own garden? Or is there some sphere of privacy in which we can operate independently of these regulators, and if so, how large is this sphere? The question is critical. Most of our food is produced in large-scale industrial operations prone to both nutrient depletion, contamination with pathogens, and terrible abuse of animals. State and federal regulations are aimed at minimizing the risk of acute illness from pathogens. They do nothing to encourage nutrient density, and in many ways worsen the problem, thereby contributing to the epidemics of chronic degenerative disease sweeping modern society. They certainly do nothing to support the well being of animals on industrial farms. The surging wave of consumer demand for healing, nourishing, and humanely produced nutrient-dense foods has led to demand for foods that these regulations have largely shut out of the market. Raw Milk and the Politics of Private Food Principal among these foods — though by no means the only such food — is unpasteurized or "raw" milk from grass-fed cows. Such milk is in high demand because of research suggesting it protects against allergies and asthma, and is richer in certain vitamins and minerals, biologically active whey proteins, and probiotic bacteria. According to a recent CDC survey, as many as nine million Americans may drink raw milk. On the other side of the coin, the prospect of producing raw milk attracts producers because they can better make a living selling it. America lost 90 percent of her dairies between 1970 to 2006, and downward pressure on dairy prices in 2009 and 2010 led several dairy farmers to commit suicide, including one who massacred his 51 cows before turning his rifle on himself. By cutting out the middle man and selling raw milk from grass-fed cows at a premium, farmers can double their revenue per gallon, leading to greener pastures in more ways than one. Laws governing the sale of raw milk are highly variable and differ from state to state. In many cases the sale of raw milk is completely prohibited; in many others it is allowed direct from the farm but not in retail stores; and in a handful it is allowed even in retail stores. Yet in many cases where sales are legal, the required permits prohibit the production of value-added products such as butter, cream, or fermented milk — all in high demand among consumers conscious of the need for food-based sources of fat-soluble vitamins and probiotic bacteria. Overlaying the variation in state regulations, the FDA prohibits commercial transport of raw milk across state lines. In the 1970s and early 1980s, the FDA resisted pressure to institute such a ban, preferring to let states regulate raw milk themselves. In response to a 1984 lawsuit from the American Public Health Association and Ralph Nader's Public Citizen, however, a federal judge ordered the FDA to institute the ban. The ban has been active since 1987, and the FDA now defends it, having gone so far as to successfully argue for the dismissal of a lawsuit to repeal it by claiming that there is "no fundamental right" to "freedom of contract," to "bodily and physical health," or for consumers to choose "what foods they do and do not. . . consume for themselves and their families." Producers and consumers who wish to obtain raw milk and value-added products made from it have pursued several types of contractual arrangements intended to place their exchanges outside of the regulated system of retail sales. These include cowshare or herdshare arrangements, where the consumers own a share in the animal or herd and are therefore simply obtaining milk from their own cow rather than purchasing it. Alternatively, in the similar but distinct leasing model, a private food club signs a lease agreement with a farmer, through which it obtains exclusive rights to the animals and their products for a period of time. In all cases, the members pay the farmer fees for services such as boarding and caring for the animals, milking, and bottling. These arrangements have enabled the private exchange of raw milk and value-added products derived from it in most states where these products are otherwise illegal. They have also enabled the private exchange of raw milk products across state lines, which is especially critical in Maryland, home to the FDA and completely intolerant of raw milk, where even herdshares are explicitly prohibited. Food Rights Is About More Than Raw Milk The pursuit of food rights, however, is about a lot more than raw milk. The motivations to pursue some private food arrangements may seem quite obvious to us. School bake sales and roadside lemonade stands, for example, are something most of us grew up with. Applying retail sales regulations and licensing requirements to these ventures would swiftly bring them to an end, and the thought of doing so immediately strikes many of us as absurd. Less obvious to many of us, extensive regulations make it costly for small farmers and artisan vendors to start businesses, which limits the availability of high-quality foods, especially near urban areas where zoning laws and the high cost of land add additional difficulties. Farmer Joel Salatin, who wrote the forward to Gumpert's book, has described some of these factors in more detail elsewhere. For example, requirements to sell retail foods in supermarkets involve preposterously expensive insurance policies that discourage pasture feeding, and the purchase of expensive equipment that is completely irrelevant to small-scale operations. Sales direct from the farm or private contractual arrangements offer alternatives that allow small-scale farmers to operate outside of the industrial agriculture model. Consumer-supported agriculture (CSA) systems, which have been around for decades, are a form of private arrangement where individuals buy a share of a farmer's production for a season. More recent models like private food clubs allow communities to form broader networks that include multiple farmers and artisan producers. San Francisco's Underground Market, for example, was a private club that allowed consumers to connect with vendors selling foods ranging from foraged seaweed to Belgian waffles. Iso Rabins launched the club at the suggestion of local health department officials in 2009, although in 2011 they changed their tune and shut the club down. Gumpert quotes Rabins describing the rationale for the market: I started the Underground Market in 2009 as a reaction to the high bar of entry that has been created to start a food business, something that I experienced personally. Starting in a house in the Mission with seven vendors and 150 eaters, the market has grown to feed over 50,000 people and help over 400 vendors get their start. Private arrangements, then, not only allow the exchange of foods otherwise directly prohibited, but also allow an increase in the availability and diversity of high-quality foods produced in small-scale operations that are otherwise cost-prohibitive because of regulations that favor large-scale, industrial, and confinement operations. The Heavy-Handed Crackdown on Private Food In the last few years, the government has quietly launched an undeclared war on private food. Perhaps the pettiest and most absurd examples are the crackdowns that have targeted nursery school bake sale fundraisers and lemonade stands for selling foods without retail licenses. The increasingly common crackdowns on lemonade stands, in fact, inspired the creation of Lemonade Freedom Day in 2011, which joined forces with raw milk supporters for the 2012 event. Some of the more destructive incidents seem like isolated, local occurrences. Gumpert describes a 2011 incident, for example, where a health inspector sabotaged a Nevada farm's first ever farm-to-fork dinner. Nearly all the food was produced on the farm itself, yet the inspector showed up right before the food was to be served to guests who had paid in advance, and ordered it all to be destroyed — not even fed to the pigs — because of the lack of receipts, labels, and evidence of USDA certification. The farmer thinly escaped the total collapse of her event when local police failed to support the inspector and, despite the destruction of huge amounts of food, her chefs masterfully improvised delicious meals for the guests. Gumpert opens the book by describing an incident on June 17, 2012, however, that ends much less happily. Enforcement agents at a weigh station on a Florida interstate pulled over a refrigerated truck carrying food from two Pennsylvania farms for members of three private food clubs in Florida. Because of bottles containing brown liquid, labeled "kombucha," a lacto-fermented health drink containing infinitesimal levels of alcohol, the agents called in the Florida Department of Alcohol, Tobacco, and Firearms, arrested the driver, and charged him with a third-degree felony for illegally shipping alcoholic beverages into the state. The inspectors judged the rest of the food on the truck — beef, chicken, dairy, eggs, and fermented veggies &mdash to be "poisonous" and destroyed it by burying it in a local landfill the following morning. The prosecutor dropped the charges, but the farmers and food club members were collectively out $45,000 for the destroyed food, $2,000 for the dumping fee charged to the farmers, and had to find a new trucker. Other seemingly isolated incidents include the closing of San Francisco's Underground Market in 2011, and a 2008 armed raid of an Ohio private food club. In the latter case, the Ohio Department of Agriculture sent inspectors along with officers from the county sheriff's office dressed in full tactical armor, to the home of the food club's owners. With weapons drawn, they herded the owner, her in-laws, and her eight small children into the living room and kept them under armed guard for seven hours while they confiscated cell phones, computers, business records, and meat. A common thread running through many of the other incidents links them in some way to Aajounus Vonderplantiz's organization, Right to Choose Healthy Food (RTCHF). Vonderplanitz, a raw food advocate with an arguably cultish following, some rather idiosyncratic beliefs about bacteria, and conflicting stories about his introduction to raw foods that often sound like tall tales, had masterfully carved out a niche for himself as an unlicensed legal advocate after playing a major role in the liberalization of raw milk regulations in LA County in the early 2000s. Around the same time, he organized RTCHF as an umbrella group of private food clubs based on the leasing model. Among the many RTCHF food clubs was Rawesome, later the target of two armed raids. James Stewart, an aging hippy rebel who had worked closely with Vonderplanitz since 1998, started Rawesome out of his garage in 2001 when it was simply named "The Garage." Vonderplanitz and Stewart both played a role in helping Mark McAfee launch Organic Pastures Dairy Company, a major California producer of raw milk. McAfee would later offer substantial financial and moral support for Stewart and other Rawesome members arrested in the raid of 2011. The story of the Rawesome raid begins with undercover investigations targeting Sharon Palmer, a farmer marked by a criminal past trying to make a fresh start. She ran a CSA program and provided foods to Rawesome. Undercover agents from the California Department of Food and Agriculture (CDFA) repeatedly approached her or her staff, at her farm or at farmers' markets, attempting to entrap her into selling CSA-destined cheese to them as a retail product. The investigators learned of Rawesome through this undercover work. Police, district attorney investigators, and agents from CDFA, the LA County Health Department, and the FDA raided Rawesome in 2010 with guns drawn, wearing bulletproof vests. They confiscated $8,000 of food, closed the club, served Stewart with a summons, and raided Palmer's farm the same day. They sealed all investigation details from the public for months while they secretly surveilled thousands of emails from the accounts of Vonderplanitz and others. Vonderplanitz had successfully defended RTCHF clubs from government intrusion for almost a decade by insisting that they were private clubs and not retail establishments, and that the regulators therefore had no jurisdiction. Rawesome continued this approach and reopened its doors, leading to a second raid in 2011. The second time around, an even more expansive number of government agencies raided Rawesome, leading to the confiscation of $80,000 worth of food and the arrest of Stewart, Palmer, and Victoria Bloch, who worked part-time for Palmer. The prosecutors charged them with multiple felony counts of "criminal conspiracy charges stemming from the alleged illegal production and sale of unpasteurized goat milk, goat cheese, and other products," seeking preposterous bails ranging from $60,000-$123,000, which were later greatly reduced in court. Some of the story lines that converge on the Rawesome raid involve farmers who joined RTCHF for legal protection after experiencing their own raids. Amish farmers, whose religion encourages shying away from battles of all kinds, including court battles involving aggressive defenses and lawyers, were particularly fond of Vonderplanitz in the mid- to late-2000s because his lawyer-less legal approach — to simply warn government officials they had no jurisdiction over his private clubs and watch them back off in silence — had been successful for years and was more amenable to their religious beliefs than other approaches. Daniel Allyger, for example, an Amish farmer from Pennsylvania, provided raw milk to Grassfed on the Hill, a private food club based in Washington, DC and Maryland. In 2010, following infiltration of Grassfed on the Hill by undercover agents, he was raided by FDA agents, US Marshals, and a Pennsylvania state trooper. After this event, Allyger moved his arrangement with Grassfed on the Hill under the umbrella of RTCHF. Similarly, Vernon Hershberger, a Wisconsin farmer with an Amish background, had worked with the Wisconsin Department of Agriculture, Trade, and Consumer Protection (DATCP) in 2003 to establish a private arrangement that allowed him to legally produce and distrubute raw milk. DATCP pulled an about-face in 2009 and began aggressively persecuting Hershberger, destroying hundreds of gallons of his milk and forbidding him from using or distributing large quantities of food. Like Allyger, Hershberger moved his club under the umbrella of RTCHF. Other story lines converge on the Rawesome raid as fallout from the event, since the raid led to the targeting of many other farmers connected in one way or another to RTCHF or to Rawesome itself. These include actions against Amish farmers from Pennsylvania and Indiana, Amos Miller and David Hochstetler, as well as an earlier but more vicious attack on Missouri-based Morningland Dairy: FDA agents and a US Marshal spent hours searching Miller's farm in April, 2011 during his absence, over the objections of one of his associates that the farm was involved in private food production only and therefore outside of the FDA's jurisdiction. In October of that year, the Department of Justice summoned Hochstetler before a federal grand jury, required by the Fifth Amendment whenever anyone is "held to answer for a capital, or otherwise infamous crime." The summons required Hochstetler to produce "any and all documents relating to or concerning the sale, purchase, delivery, receipt, production, packaging, transfer, disposal, marketing, promotion, furnishing, sharing, labeling, manufacturing, distribution, shipment, or transportation of milk during the Relevant Time Period." In August of 2010 in the immediate aftermath of the first Rawesome raid, two agents assigned to the FDA from the U.S. Public Health Service, part of the Department of Defense, showed up to the Missouri-based Morningland Dairy in intimidating attire replete with camouflage fatigues and combat boots, eventually leading to aggressive state-level legal tactics to run the dairy out of business.

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