How BigAg’s Regulation Game Hurts Consumers and SmallAg Alike

My background is in regulatory compliance and litigation for financial institutions. I decided to give up my representation of BigBanks last year and start my own practice so that I could apply that skill set to representing small businesses, including small agricultural producers and related entities. In my experience, money worldcommercial regulation tends to benefit the largest and most politically connected companies, to the detriment of their smaller competitors and consumers. I know what you’re thinking: “Yes. And????” Okay, perhaps the commercial slaying of David by Goliath through the use of governmental intervention in the marketplace is self-apparent, but the precise way in which the Bigs achieve their domination may not be as apparent. One of the primary methods I’ve seen used by big companies to crush the little ones is not by getting governmental public works contracts (although that happens) and not by competing with them on price (although that also happens), and not by ensuring that the laws do not apply to them (although that certainly happens, too), but by lobbying for and getting regulations enacted that they are happy to comply with because they know the smaller competitors cannot.

The Bigs write off the cost of compliance as a cost of doing business. What are these costs? These costs include lobbying for the regulations, analyzing the regulations to determine how to apply them to their operations, and defending against alleged violations of those regulations (whether those allegations are brought by bureaucrats or in litigation brought by a private party, such as consumer lawyers against financial institutions). The competitive advantage enjoyed by the Bigs comes to fruition when smaller companies find compliance overly costly and very difficult to achieve. Continue reading

6 Lessons from the Criminal Conviction of a Minnesota Farmer

8-14-13 Schlangen Trial Sketch by Lynn Maderich. Used with permission of the artist.

8-14-13 Schlangen Trial Sketch by Lynn Maderich. Used with permission of the artist.

By now, you know that Alvin Schlangen was convicted of all 5 counts brought against him by the Minnesota Department of Agriculture, discussed here. Driving back from Minnesota when I heard the news by phone, I pulled over in Western Wisconsin and posted about it on my Facebook page as soon as I knew about it. I also shared a link to David Gumpert’s article about it. But, until now, I haven’t detailed my response to the verdict.

Having returned home late Thursday with other obligations and events on my calendar since then, this is my first chance to share my thoughts on the outcome of Alvin’s trial, from the perspective of an attorney who observed it but was not on the legal team.

One Armchair Attorney’s Perspective on Lessons
Learned from the Trial of Alvin Schlangen
:

1. Never underestimate the opponent. The state has excellent lawyers and knowledgeable bureaucrats on its side. We must not underestimate their ability to learn from past mistakes and put on better cases as they learn. Continue reading

An Attorney’s-Eye View of a Real Food Trial: Day 2, Trial 2 of Minnesota Farmer Alvin Schlangen

 

8-14-13 Schlangen Trial Sketch by Lynn Maderich. Used with permission of the artist.

8-14-13 Schlangen Trial Sketch by Lynn Maderich. Used with permission of the artist.

We left off with the end of Day 1 of the second criminal trial of Alvin Schlangen for essentially the same charges in a different county. Day 1 ended with the prosecutor completing his examination of Minnesota Department of Agriculture (MDA) inspector John Mitterholzer. As mentioned yesterday, Mr. Mitterholzer is multi-lingual; he’s fluent in Minnesotan, bureaucratese, and prevarication. He continued speaking all of these languages on the stand today.

A Convenient . . . um . . . Truth???

First, the prosecution took advantage of the overnight recess to reform his witness’ testimony from yesterday regarding the exhibit that was not allowed into evidence because Mitterholzer could not recall where it came from or how he got it (in legalese, we say it lacked foundation).

8-14-13 Schlangen Trial Sketch by Lynn Maderich. Used with permission of the artist.

8-14-13 Schlangen Trial Sketch by Lynn Maderich. Used with permission of the artist.

Well, wouldn’tya know that a good night’s sleep and review of certain undisclosed files (which should have been included in connection with the testimony, but weren’t) would “refresh his recollection” and now he remembers exactly where the exhibit came from, precisely how he got it, and where it went from there! How convenient. The exhibit was allowed in after all. Continue reading

Minnesota Department of Agriculture: Justifiably Tenacious or Willfully Obstinate?

Start with a peaceful farmer trying to serve his community by distributing food to those who unable to get to a farm. Enter the Minnesota Department of Agriculture (MDA) with the typical BigGov-prompted-by-BigAg “food safety” vendetta against raw milk and small, sustainable farmers, targeting the farmer in two separate cases in different counties. Add the Farm-to-Consumer Legal Defense Fund, with whose help the farmer is represented by an experienced trial attorney, and the result is a victory in the first case. On to case number 2.

Alvin Schlangan Trial Sketch by Lynn Maderich

Alvin Schlangen Trial 2, Day 1. 8/13/13. By Lynn Maderich. Used with the artist’s consent.

The second trial against Minnesota farmer Alvin Schlangen began today in St. Cloud (Stearns County). Added to the cast of characters mentioned above is an old-school prosecutor in cowboy boots who doesn’t seem to like his client very much, but will zealously advocate for it anyway. Otherwise, the cast is largely the same as the first trial. Alvin continues to be represented by Attorney Nathan Hansen with support from the Farm-to-Consumer Legal Defense Fund, and his friends and co-op members continue to attend trial in support of him. I, too, am in attendance at his trial.

Brief Re-Cap of Trial 2, Day 1

Two witnesses for the prosecution testified today. One was a Veterinarian from the Minnesota Department of Health with a background in food safety and infectious diseases. The other was an inspector from the Minnesota Department of Agriculture (MDA), who has spent his entire adult life in food inspection bureaucracies, with 35 years at the USDA’s FSIS and 7 years at the MDA. Continue reading

BakerFamily

Michigan’s Gone Hog Wild: Update on Mark Baker’s Case Against the DNR.

BakerFamily

Baker Family

After the Michigan DNR, prompted by BigAg, outlawed heritage hog breeds by administrative fiat in late 2011, a handful of Michigan farmers fought back against the DNR’s attempt to destroy their livelihood. An important hearing in Mark Baker’s case will be heard on July 12 at 2:00 p.m. in the Missaukee County Courthouse. I will be there, together with dozens of friends in the food rights movement from around the country.

Mark and Jill Baker raise Mangalista hogs to support their family. Their livelihood has been under attack for well over a year and a half now. As first chronicled in this blog post from last April describing the DNR’s aggressive tactics under color of – but violating the rule of – law, the Michigan DNR has attacked heritage hog farmers under the guise of protecting the public from feral pigs – in other words, “public safety” (a term I inherently distrust because of how it has been used to justify all sorts of abusive government actions). Continue reading

Wisconsin: Proposed Legislation Would Remove Restrictions on The Sale of Raw Milk and Raw Milk Products in the Dairy State

Wisconsin License Plate - Raw MilkThe ability to sell raw milk and raw milk products on Wisconsin dairy farms is currently quite limited. All of that could change if legislation about to be introduced by State Senator Glenn Grothman (who just happens to be my State Senator) is adopted. Senator Grothman circulated the proposal to the rest of the legislature this Wednesday in an effort to get co-sponsors. It does not yet have a bill number, but the Legislative Reference Bureau (LRB) Number is 2542/1 – Allowing the Sale of Raw Milk.

The bill is a long way from becoming lawRaw Milk from Grazin Acres and is unlikely to slide through the legislative process without amendment, but it is worth analyzing the current proposal as a baseline for evaluating future amendments to it. I appreciate Senator Grothman’s support and really want to be excited about this bill, but I also want to be realistic about what this may mean for Wisconsin dairy farmers and consumers alike. This post represents my attempt to unpack it for myself, which I share with my readers as a service to them. Continue reading

Book Review: David Gumpert’s “Life, Liberty and the Pursuit of Food Rights”

Book - Life Liberty and the Pursuit of Food RightsAs suggested by the title of David Gumpert’s new book, Life, Liberty and the Pursuit of Food Rights, the food rights movement is as much about freedom as it is about food.

I received my copy of the book hot off the presses on May 23, 2013 - the evening before the last day of the Vernon Hershberger raw milk trial, where I was serving as one of Vernon’s lawyers.  Although the book became widely available just this week, those of us at the Hershberger trial were blessed with advance Amy David Gumpert and Joel Salatincopies graciously signed by the author of the book, David Gumpert, and the author of the foreword to the book, Joel Salatin, both of whom were in Baraboo, Wisconsin in support of Vernon Hershberger. The struggles faced by Vernon, along with many other farmers and consumers from around the country, are detailed in the book.

Continue reading

“All Natural” High-Fructose Corn Syrup???

foodlabel - natural2Most foodies agree that the process yielding high-fructose corn syrup (HFCS), ubiquitously found in highly-processed, decidedly UN-real foods, results in anything but a “natural” ingredient. Common sense would tell us, as Joel Salatin said about many such practices in his book by the same title, “Folks, This Ain’t Normal.” But, while many consumers are beginning to realize that HFCS is unnatural, companies continue to use the terms “Natural” or “All-Natural” on the labels of food containing it.  How do they get away with that? (And, why? If we know it’s meaningless, shouldn’t we ignore this claim?) Well, in the absence of definitive action by the FDA or the courts, and in the absence of a knowledgeable consumer base, companies are simply pushing the misleading labeling as far as they can, and consumers are eating it up (er . . . so to speak).

Did you know that “Natural” is the single most frequently-used marketing claim on U.S. food products, despite the fact that it is virtually meaningless? I think its general appeal and brevity make it an enticing word for food marketers, particularly on the package label, which is prime real estate. Brevity is not only the soul of wit – it is the soul of marketing. Continue reading

Jury Finds Wisconsin Dairy Farmer Does not Need State Licensing to Privately Share Food – Including Raw Milk.

America's DairylandWisconsin’s license plates tout it as “America’s Dairyland.”  But, the State’s case against Vernon Hershberger leads to the inevitable assumption that this means BigAg only. The State brought everything it had to bear against this quiet farmer in a criminal case alleging three licensing violations and one holding order violation. The jury saw through the State’s game on the licensing violations, finding Vernon not guilty of all three. As to the holding order violation, due to pre-trial rulings, all the jury was told was that there was an order (never mind whether it was valid – the State never had to prove it was; it was simply assumed) and that Vernon violated it (which he acknowledged on the stand). Thus, they found him guilty on this one count. More on that here.

In June, 2010, the State conducted an armed raid on the quiet farm where Vernon Hershberger, his wife Erma, and their 10 children live and work. As a result of the “findings” from this raid, the State declared that the food in the Hershbergers’ farm pantry was “adulterated or misbranded” and “dangerous to health” – based solely onVernonHershberger the fact that he did not have a license to sell it. In other words, the State’s position seemed to be that the food would have somehow been transmogrified from being a threat to the human race into perfectly healthy food by the wave of the State’s licensing wand. Without that magic touch, the State determined that the food had to be placed under a holding order. (Note: none of the food was ever found to be unsafe.)

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FDA’s Historic Inaction on Defining a Ubiquitous Food Marking Term

“Natural” is the most frequently-040used claim on new U.S. food products, perhaps because of its general appeal and ease of use directly on food labels (brevity is the soul of  marketing, as well as wit). Yet, it is almost completely meaningless. The term does not connote anything about the nutritional value of the food to which it is attached. In fact, the foods most likely to be labeled “natural” are foods that are maximally processed, not the whole or minimally-processed foods to which many consumers believe the term more “naturally” applies.

In an effort to capitalize on the popularity of organic foods, many food marketers couple the term “natural” with the term “organic.” But, the term “organic” has a legal meaning. The National Organic Program establishes standards for foods to be labeled organic. “Natural,” on the other hand, means very little. Continue reading