FARMER IN THE DOCK

05.12.13

Wisconsin Farmer to Stand Trial for Selling Raw Milk

A Wisconsin dairy farmer is set to go on trial for a strange offense: selling raw milk to a group of consumers who were members of a private buyer’s club. Sarah Begley reports on the clash between regulators and foodies.

So in many parts of America, it’s basically legal to grow, sell, and smoke pot. But you can go to jail for selling people fresh milk?

Wisconsin dairy farmer Vernon Hershberger, a 41-year-old father of ten, will go on trial later this month for three counts of licensure violation and one count of violating a hold order. The maximum combined penalty: $13,000 and/or two and a half years’ jail time. All for 300 gallons of raw milk.

Hershberger started a private buyer’s club for raw milk in 2003 after “some friends from town—who were retired farmers—wanted to continue getting this raw milk that they had for years. By word of mouth,” he told The Daily Beast, “it grew from there.” By the time of his arrest in 2010, over 100 families were members.

Technically, these club members were not customers of the farm, but partners: they legally leased animals from Hershberger, and in return for his family boarding and caring for their cattle on his 157 acres of farmland, they paid certain agreed-upon fees each time they came to pick up the products of those cattle—namely, raw milk. So Hershberger felt he didn’t need a license as a retail food establishment, because there was no retail going on; the milk already belonged to the club members.

In June 2010, the Wisconsin Department of Agriculture, Trade and Consumer Protection paid a visit to Hershberger’s farm in Loganville, about 50 miles northwest of Madison, and found Hershberger’s raw milk in tanks. Deeming it to be “adulterated and misbranded,” they dyed the milk blue. Retail sale of raw milk is only legal in 10 states, and Wisconsin is not one of them. So the state put a hold order on the milk, essentially condemning it to spoil.

Hershberger grew up milking cows by hand on a small Amish dairy farm, and this hold order violated his religious values: though no longer Amish, he’s a non-denominational Christian, and opposes waste. “We can plainly read in the Bible that we are to be good stewards of what God has provided for us,” he says (though the court has ruled he cannot introduce any evidence relating to his religion). He broke the hold order and allowed the members of the buyers club to collect what he felt was theirs.

Hershberger Family
Vernon and Erma Hershberger and their ten children. (Hershberger Family)

So what’s the big deal about raw milk, and why are some states so upset about it? Above all, regulators want to protect consumers from germs like salmonella and E coli, which can infect the milk from the cows’ waste or udders. Pasteurization kills these off, and regulators can’t understand why anyone would want to sacrifice that protection. “Pasteurization has been one of the greatest public health advancements since the industrial revolution,” says Chris Galen, senior vice president at the National Milk Producers Federation. “We’re seeing a backlash in its use and the belief that it performs a public health service.”

The CDC warns against drinking raw milk, citing it as a cause of 148 outbreaks of illness from 1998 through 2011, which resulted in two fatalities.

The CDC warns against drinking raw milk, citing it as a cause of 148 outbreaks of illness from 1998 through 2011, which resulted in two fatalities. Yet the Wisconsin Raw Milk Association cites the same figure on its website—as an endorsement of the product’s safety. Considering that 3,000 Americans die of a foodborne illness each year, it says, two deaths in 14 years makes raw milk a comparatively low-risk option.

What’s more, advocates say, raw milk is tastier and more nutritious. Pasteurization does kill bad bacteria, but it also kills good bacteria and other nutrients. It’s the potential health benefit that drew people to Hershberger’s farm in the first place. “Maybe someone in the family has some health issues,” he says, “and they get to talking to their friends and they’ve heard about trying fresh milk from the cow and they want to try it, too. A lot of people have very good results.”

Raw milk has the added benefit of being better for the environment, too. Since it’s usually organic, the process of caring for the cows introduces fewer chemicals into the ground, and skipping the pasteurization process means fewer gas emissions from transportation.

But it’s the nutritional superiority that attracts people like Hershberger’s lawyer, Elizabeth Rich, of the Farm-to-Consumer Legal Defense Fund. In a previous raw milk case, she argued that “the framers of the Constitution didn’t include food freedom or the right to produce and consume food of our choice because they didn’t think they had to.”

This idea serves as a bridge between the originalism of rural conservatives and the back-to-the-earth philosophy of liberal urban foodies. Certainly, a supermarket shopper should be protected against buying a product that could be unsafe. But if a consumer seeks out a farm where she can have a relationship with the farmer and feel she knows exactly what’s going into her food, shouldn’t she have the option to drink at her own risk?

In this spirit, advocates are expected to turn out for Hershberger’s trial beginning May 20. “Many of them don’t drink raw milk,” says Rich. “Many of them think it’s gross to drink raw milk. But they are interested in the ability to opt out of the agribusiness system.”