The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) is commissioned by the state legislature to promote the interests of Wisconsin agriculture. The DATCP’s mission statement describes their effort to “partner with all citizens of Wisconsin to grow the economy by promoting quality food, healthy plants and animals, sound use of land and water resources, and a fair marketplace.” However, as many of our Wisconsin members can attest, DATCP behavior is far from consistent with their virtuous mission statement. Instead, in several documented cases, the DATCP has used intimidation, threats of raids and seizures, and a command and control technique to enforce their regulations of farm producers and butchers in the state of Wisconsin.
In several cases the DATCP has demonstrated that their first action in “partnering” with the citizens of Wisconsin is shutting down the small agriculture businesses they are meant to regulate. A prime example of this heavy-handed approach is the handling of Smith Bros. Meat and Catering, a family-owned business in Wisconsin that offers butchering at their full service retail store. A dispute arose when a Smith Bros. customer placed an advertisement on Craigslist for the sale of meat that was processed at the Wisconsin facility. The DATCP got wind of the advertisement and requested additional records beyond what Smith Bros. is legally required to submit. Instead of subpoenaing the information, providing due process for the Smith Bros., the DATCP ordered for the business to be shut down.
The official behind the shutdown of Smith Bros. is Paul Pierce, the Director of Regulatory Services in the Bureau of Meat and Poultry Businesses for DATCP. Pierce is notorious in his harassment of small animal processing operations in Wisconsin. Since FTCLDF’s inception in 2007, we have received more complaints about Pierce than any other regulator. Instead of Pierce using his position to further promote the interests of small operators in Wisconsin, he applies an oppressive approach leaving many processors with years of costly legal battles and lost business.
Arlin Bender, an FTCLDF member, has been routinely harassed by the DATCP and Pierce in particular. Bender relocated to Wisconsin from New York where he had operated a custom meat processing plant. Bender continued his operations in Wisconsin and set up shop soon after he relocated. As a new resident to the state, Bender was unaware he did not have the proper licensing for his operation. The DATCP came down hard on Bender. Instead of offering education and guidance on the proper channels to become licensed, they took Bender to court. After a year and a half of litigation, and finally enlisting the help of FTCLDF, Bender was able to settle his case. Since Bender’s first encounter with the DATCP in 2011, he continues to struggle with the agency and Pierce. Most recently in November of 2017, Pierce detained two pigs from Bender’s cooler and was unable to provide a consistent reason for the seizure.
Inconsistent reasoning is a common theme among criticisms about the DATCP. Several complaints from FTCLDF members describe a set of “secret rules” the DATCP enforces. Oftentimes producers are punished for rules that are not orally documented, cited for violations without explanation, or subjected to fluid interpretations of the law like in Bender’s case. Our members spend an extraordinary effort in understanding the “secret rules” of the DATCP, and if they are not followed, punishment ensues. Another FTCLDF member, Greg Sage, describes the “secret rules” issue in a letter to DATCP:
“The irony is we live in a nation of laws that are written, which we, the public, have access to. You have been given the power to enforce the laws but you choose to make oral rules which the public does not know. It takes extraordinary efforts for us to learn your hidden rules. You then punish those who don’t follow your secret rules.”
As for Bender, the harassment continues, and he is afraid of the impact Pierce and the DATCP are having on Wisconsin’s butchering industry and the future of the industry itself:
“Why is Mr. Pierce so intent on putting people out of business, rather than helping small enterprise? Some butchers get fed up with this nonsense, and just quit. It is creating a shortage of custom meat cutters, since young people are afraid to start because of all the hassle and harassment. The DATCP is meant to help regulate small businesses, but instead they seem intent on diminishing the very businesses they are meant to help and protect.”
The command and conquer approach used by the DATCP is unjust and leads to unnecessary harassment, stress and lost income for many small butcher operators in Wisconsin. The DATCP should operate with the intent of helping the producer while also helping to protect public health. In many of the cases Pierce has handled, there has been no threat to public health but the producer is put out of business, hurting the local economy and dismantling a service that is vital to farming communities.
In several states, regulators sincerely want to help small farmers and artisan food producers succeed. They work with the farmers to educate them about the rules, which can be confusing and difficult to understand. When an issue does arise, regulators communicate clearly regarding their concerns, then try to reach a resolution that addresses both the compliance issues and the farmer’s concerns. This is accomplished without threats and intimidation, but rather with education and clear communication. A collaborative approach would be welcomed by small farmers and artisan producers, including Arlin Bender:
“I would welcome regulation and routine inspections with the intent that the organizations are helping and looking for ways to improve my business. But, what I have encountered is a department that abuses their authority, instills fear in the businesses they regulate, and continues to force unnecessary harassment on butcher shops.”
In a statement from Elizabeth Rich, Executive Director at the Farm-to-Consumer Legal Defense Fund, she encourages the DATCP to take a different approach to regulation:
“We would like to see a collaborative approach that supports and encourages our hard-working food producers and processors and assists them in understanding and complying with the State’s many rules and regulations. We are also calling for an end to DATCP’s ‘secret rules.’ These unwritten rules violate the requirement that the agency go through the public rule-making process before implementing new regulations. Consistent, constitutional enforcement is impossible under the current system.”
For now, Bender is still battling the state of Wisconsin. In the latest correspondence, the DATCP contends they have provided “guidance” to Bender, and are committed to working with him to uphold Wisconsin’s regulatory laws and compliance measures.
YOUR FUND AT WORK
Services provided by FTCLDF go beyond legal representation for members in court cases.
Educational and policy work also provide an avenue for FTCLDF to build grassroots activism to create the most favorable regulatory climate possible. In addition to advising on bill language, FTCLDF supports favorable legislation via action alerts and social media outreach.
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