The Michigan Department of Agriculture and Rural Development (MDARD) has filed a complaint with the Livingston County Circuit Court asking that the court order the destruction of, among other foods, 18 homemade oatmeal cookies and 17 homemade apple muffins.1 MDARD seized the cookies, muffins, and other foods during a September 1, 2016 raid of Dairy Delight Cow Boarding, LLC, a herd share dairy farm owned and operated by Kris Unger in Cohoctah Township.2
FTCLDF members have been subject to food seizures since the organization’s inception, but just about all of the seizures have been of either meat or dairy products; the enforcement action at Dairy Delight marks the first seizure of baked goods. The Unger case is great testimony for why a legal distinction needs to be established between the public and private distribution of food and why government agencies should leave the private distribution of food alone.
The events leading to the raid trace back to August 23, 2016 when the Michigan Department of Health and Human Services (MDHHS) contacted the Livingston County Department of Public Health (LCDPH), informing it that two children had been infected with E. coli O157:H7 and that MDHHS had determined that raw milk was the potential source of the childrens’ E. coli. On August 26th, an MDARD inspector along with an inspector from LCDPH arrived at the farm to investigate the potential source of the E. coli. By this time, the father of one of the sick children had spoken to Unger about the illnesses; the other sick child had been with his son shortly before they both became ill. The father told Unger that he believed the illnesses had come from the consumption of tacos and that he was “pretty sure” that his son’s friend had not consumed raw milk. When the inspectors showed up, Unger answered several of their questions about her herd share operation and told them she had been in contact with herd shareholders and that none of them were sick. When the officials insisted on obtaining the contact info for all the herd shareholders, Unger told them they weren’t welcome and refused to let them inspect the farm.
On September 1st, inspectors from MDARD and LCDPH, accompanied by two deputies from the Livingston County Sheriff’s Department, returned to the farm with an administrative inspection warrant. While conducting the inspection of the dairy, the officials seized the baked goods and other foods including honey, eggs, kombucha, and sauerkraut. The inspectors seized the products because they were “not properly labeled” and because they “were not from regulated sources and were being offered for retail sale.” MDARD’s position is that if a food is supposed to be from a regulated source and is not, it is adulterated.
If anyone should not have been regulated for the sale of the seized foods, it was Unger. The foods were only for sale to herd share members. Unger did not make any money off the sale of the seized foods. Most of the foods were produced by herd share members. Unger was only allowing the sale of the products as an accommodation to them.
The shareholder who made the baked goods only sold them to the other shareholders, no one else. The two dozen eggs that were seized had already been paid for by the shareholders who ordered them, but Unger was told she needed a warehouse permit to continue with that arrangement. The partially consumed bottle of kombucha taken was Unger’s and for her own consumption. When she informed the inspector seizing the product of that, she was told the product was illegal because it wasn’t labeled. Unger lives a mile down a dirt road; the only people who stop by her farm, with rare exceptions, are shareholders. She doesn’t deliver milk or any other product to anyone; all the shareholders drive to the farm. Many shareholders drive an hour or more to the farm; the milk produced by Dairy Delight is highly favored. None of the raw milk samples that Unger sent to a lab due to the illnesses tested positive for E. coli. It is likely that none of the samples MDARD sent did, either. Over three months after getting the test results, MDARD still had not informed Unger whether or not the tests were positive for E. coli.
In addition to asking for the seized foods to be destroyed, MDARD is seeking a court order permanently enjoining Unger from selling food without a license, selling food that is not from an approved source, and selling food that is either adulterated or misbranded.
The sale and distribution of foods at the Unger farm amounts to a closed-loop transaction, which is none of the state’s business. MDARD could have used its enforcement discretion and left the foods it seized alone when its inspector was at the farm.
Unger’s herd share members do not want MDARD’s protection; they want to be left alone. The legislature needs to look at changing the law so that private contractual arrangements outside the stream of public commerce are not regulated. The Michigan Food Law is very broad and applies to nearly all distribution of food; selling a pumpkin pie to a neighbor requires a license. With the growth of private contractual arrangements like private member associations, food buyers clubs, and herd share agreements, the law is antiquated and has not kept up with these distribution models. Due to the high degree of transparency and traceability in many of these models, MDARD could better spend its time regulating in other areas like imported food. The Unger case, along with the recent Michigan court ruling on herd shares, is a wake up call on what needs to happen.
1 Under Michigan law, MDARD cannot destroy the seized foods without a court order.
2 One of the other foods seized was poultry; MDARD has released the seized poultry to its producer, Chad Erway, who is no longer a party to the case.
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