Raw milk lawsuit in Wisconsin

I know people who go to great lengths to obtain raw milk.  And I know people who think all sales of raw milk should be strictly illegal.  Most states fall somewhere in between, allowing consumption of milk from one's own cows,  sometimes allowing on-farm sales to consumers who come with their own containers, and more rarely, allowing certified producers to sell in stores.  I find the legal tightrope intriguiging.  When I first became interested in food, I wondered whether there was anything that was illegal to eat. 

A lawsuit filed this week in Wisconsin seeks declaratory judgment and construction of Wisconsin's raw milk statute, particularly as it applies to "cow shares." According to the complaint, the Wisconsin Department of Agriculture Trade and Consumer Protection has interpreted sec. 97.24 Wis. Stats. to permit :

"agreements sharing ownership in [a] milk producer license under applicable law that may include allowing actual owners to take a share of the ungraded raw milk produced under the license.”

The issue in the case is whether this sort of "cow share" agreement can extend to a members-only farm store.  Here's the Farm-to-Consumer-Legal-Defense-Fund news announcement:

The Farm-to-Consumer Legal Defense Fund (FTCLDF) has filed a complaint for declaratory judgment on behalf of Wisconsin farmers Kay and Wayne Craig and related entities against the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP).  The complaint seeks declarations that the Craigs,  the farm store they operate (GrassWay Organics Farm Store LLC) , and GrassWay Organics Association and its members who have invested in the LLC are not engaging in the illegal sale of raw milk in violation of Wisconsin laws, and that the farm store does not need to obtain a “retail food establishment” license in order to operate.  “Kay and Wayne Craig, their LLC and their Association members have been harassed long enough by DATCP.  We are asking the court to declare that the Craigs, the LLC, and the Association are operating within the law,” said Pete Kennedy, President of the Fund.  “We hope the Court issues an injunction that will prevent DATCP from taking enforcement action against what we believe to be lawful activity, “  Kennedy continued.

The complaint alleges that DATCP, over a period of several years, has been changing its interpretation of what constitutes an “incidental” sale of raw milk, which are legal under Wisconsin law.  The complaint also alleges that the LLC operated by the Craigs (the farm store) is not a “retail food establishment” because it does not sell to the general public.  The farm store is open only to members of the Association that has purchased an interest in the LLC.  “In Wisconsin, it is legal for an entity that holds a Grade A  permit to sell interests or shares in the entity.  This is a legal arrangement that is lawful in all respects, yet it is being threatened by DATCP,” said the Fund’s General Counsel, Gary Cox.  “We hope the court agrees that DATCP cannot be arbitrary and capricious in their interpretation and enforcement of the law against law-abiding citizens, and try to force them out of business,” said Cox.

The complaint was filed on December 16 in Dane County Circuit Court, Wisconsin and names the Secretary of DATCP as a Defendant, Rod Nilsestuen.

Post by Professor Donna M. Byrne, William Mitchell College of Law.