UPDATE 3/9/15: Judge temporarily refuses to grant agency’s petition for contempt – Read more
|Dave Berglund and family|
On March 9, Minnesota raw milk farmer Dave Berglund will have a hearing before the Sixth Judicial District Court in Grand Marais to determine whether he is guilty of contempt of court for refusing to let Minnesota Department of Agriculture (MDA) officials, possessing an administrative warrant, conduct an inspection of his farm. While the case has received national attention because the county sheriff refused to participate in the execution of the warrant, another important aspect of the Berglund case is that it represents an opportunity to right a Minnesota Supreme Court ruling made ten years ago on the power the State has to regulate farm-to-consumer direct commerce.
At stake in the case is the issue of whether a provision in the Minnesota Constitution exempts Berglund from MDA’s jurisdiction. Under Article 13, Section 7 of the state constitution, “Any person may sell or peddle the products of the farm or garden occupied and cultivated by him without obtaining a license therefor.”
Berglund sells raw milk, raw butter, raw yogurt and other dairy products direct to consumers at his farm store; he does not sell any products off of the farm. Berglund, who, prior to denying MDA officials entry on the farm with a warrant, refused to let the agency conduct two warrantless searches of his property, is claiming that the state has no jurisdiction due to the constitutional provision. MDA claims that, even if Berglund doesn’t need a license to sell the products of the farm, he is still subject to inspection and other regulations, that he can’t sell products made illegal by statute (e.g., raw butter, raw yogurt—state statutes only allow the “occasional” sale of raw milk and cream) and that he can’t sell legal food products without a license if those products contain even one ingredient not produced on the farm.
The March 9 hearing is a chance to revisit the Minnesota Supreme Court’s 2005 decision in State vs. Hartmann. In that case the State brought criminal charges against farmer Mike Hartmann for selling meat products without a license and for the unauthorized sale of custom-processed meat. In a close 4-3 decision, the Court held that while Hartmann did not need a license to sell meat since it was a product of the farm under the state constitution, he could not sell custom-processed meat since that was prohibited by Minnesota statute. The court held that Article 13, Section 7 “exempts farmers from licensure to sell products but not from substantive regulation of the production or sale of their farm products.” In other words, farmers were exempt from licensing but not from inspection or other regulatory requirements.
In issuing its decision, the Court ignored the historical context in which Minnesota voters passed the constitutional provision in 1906. At that time, there was no inspection and regulation of farms in Minnesota; licenses were only a way to raise revenue, not a means to mandate inspection of food producers and sellers. The constitutional amendment was introduced because of a 1904 court case in which a farmer selling produce grown at his farm from a wagon along the streets of Minneapolis was found guilty of selling without a peddler’s license.
The dissent in the Hartmann case pointed out that “the distinction the majority draws between licensure and substantive regulation is real, but it cannot be employed, without more, to circumvent constitutional provisions and the intent of the people of Minnesota.” The dissent acknowledged that “ensuring the safety of the food supply is a valid” purpose but indicated that the State had to make a case on why regulation was necessary to protect the public. It noted, “the State makes no showing that the small-scale sale of custom-processed meats by livestock farmers presents a public health risk.” Minnesota law allows the farmer and his/her family to consume custom-processed meat; the question the dissent raised was that, if it was safe to consume, why wasn’t it safe to sell? The same question could be asked about the raw butter and yogurt Berglund produces on his farm. Aside from showing that the intent of the people of Minnesota at the time of the amendment was not to regulate farmers who sell the products of the farm direct to consumers, if Berglund can make the case that his long track record for producing safe, quality food makes regulation of his small-scale operation unnecessary, his chances of a favorable ruling from District Judge Michael J. Cuzzo increase substantially.
At the time of the amendment, throughout the nation there was little or no regulation of farms selling direct to consumers. The increase in food regulation in the U.S. started with the passage in 1906 of the federal Meat Inspection Act and the federal Pure Food and Drug Act—legislation passed not due to food safety problems on the farm but issues with urban food production. Small farms have been drawn into the regulatory scheme over the past century—a development that has not benefited the public health but has instead put farms producing healthy food out of business. The Berglund case presents a chance for small farmers selling direct to consumers in Minnesota to get out of the current regulatory system and revert to a time when the government left farmers and consumers engaging in direct commerce alone.
Attorney Zenas Baer is representing Farm-to-Consumer Legal Defense Fund (FTCLDF) member Dave Berglund. FTCLDF is providing funding for Dave’s representation.
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