Herd share agreements are private contractual arrangements in which someone purchases an ownership interest in a dairy animal (or herd of dairy animals) and pays a fee to a farmer for boarding, caring for and milking the animal(s). The owner has the property right to obtain raw milk from the animal(s). It’s legal to purchase ownership in a dairy animal and it’s legal to obtain milk from a dairy animal you co-own; currently, there is nothing in the Virginia Code on herd shares. Herd share programs have been thriving in Virginia for many years.
In 2017 an amendment to a food freedom bill was introduced that would have banned herd shares; the inducement for the ban was the legalization of the regulated on-farm sale of raw milk. The Virginia Independent Consumers and Farmers Association (VICFA) and others–including the bill’s original sponsor, Nick Freitas–was successful in killing the legislation.
VDACS has long had a hands-off policy towards regulating herd share agreements but there have been reports of agency inspectors telling farmers that herd share agreements are illegal. Having a statement in writing from VDACS should help increase the sizable number of herd share programs in the state that already exist. The position of VICFA and its members has always been that the state has no jurisdiction over property rights in dairy livestock acquired through private contract, but there are others who were more hesitant to enter into herd share agreements without something in writing from VDACS on herd shares; they now have it.
In the past VDACS has been reluctant to acknowledge the legality of value-added products distributed through a herd share agreement, but recent precedent in other states shows the wisdom of VDACS current hands-off policy towards the distribution of raw dairy products other than milk.
In 2012 the Office of the Tennessee Attorney General issued an opinion finding that an “independent or partial owner of any hoofed mammal” may use a dairy product made from the milk produced by such animal for the owner’s personal consumption or other personal use.”5 Tennessee has a herd share statute recognizing that anyone who has an ownership interest in a dairy animal can use “the milk from such animal for the owner’s personal consumption or other personal use.”6 When the Tennessee Department of Agriculture claimed that the statute only allowed the distribution of raw milk and no other dairy product, State Senator Frank Niceley, the sponsor of the herd share bill that passed into law in Tennessee, sought the attorney general opinion.
Herd share programs are at the heart of Virginia’s local food system; the written statement of policy from VDACS should only strengthen that. Hopefully, it will help convince herd share opponents not to introduce legislation again in the next legislative session; if they do, the grassroots will be there once more to contest them.
On March 21 Governor Gary Herbert signed the Home Consumption and Homemade Food Act (House Bill 181 – HB 181) into law, making Utah the fourth state after Wyoming, North Dakota and Maine to adopt food freedom legislation. Utah, with a population over 3 million, is the most populous state to pass a food freedom bill so far. The population of the capital, Salt Lake City, is a little under 200,000; the Salt Lake metro area population is over one million.
Two days prior, on March 19, Herbert signed Senate Bill 108 (SB 108), legislation increasing opportunities for the permitted sales of raw milk as well as expanding consumer access to the product. It’s been some week for supporters of local food in the state. The mother-daughter team of farmers Symbria and Sara Patterson were the driving force behind both bills. Both pieces of legislation go into effect immediately.
HB 181 allows the unregulated sale of all foods within Utah except raw dairy and meat products direct from the producer to an “informed final consumer.” There are two exceptions to the prohibition on the unregulated sale of meat products. Producers can sell poultry and poultry products under the bill as long as they slaughter less than 1,000 birds a year. Producers of domesticated rabbit meat are also able to sell direct to consumers without regulation “pending approval from the United States Department of Agriculture that the state’s role in meat inspection is preserved”–approval that shouldn’t be more than a formality.
Sales under the bill can be made at a farm, ranch, “direct-to-sale farmers market”, home, office or any location agreed upon between the producer and consumer. The only requirement for producers is that they inform consumers that the food sold has “not been certified, licensed, regulated or inspected by state or local authorities.” If producers are selling at a farmers market, they must display signage indicating this information; producers selling without regulation at the farmers market must be separated from other vendors at the market.
SB 108 allows producers with a permit to deliver and sell raw milk “from a mobile unit where the raw milk is maintained through mechanical refrigeration at 41 degrees Fahrenheit or a lower temperature.” Under prior law licensed dairies could only sell raw milk on the farm or at a retail store if the dairy had a majority ownership interest in the store–only two of the state’s ten permitted dairies meet this requirement.
Symbria and Sara Patterson have taken time off from the farm each of the last four legislative sessions to lobby for legislation they have developed promoting unregulated producer-to-consumer direct trade. The Pattersons are respectful but persistent. In 2015 they were successful in getting micro-dairy herdshare legislation passed despite opposition from Utah Farm Bureau, the state dairy industry, and UDAF. In 2016 and 2017 they worked on food freedom legislation that did not make it out of committee–showing the tremendous progress they have made in a short period of time. As the session went on, opposition to HB 181 and SB 108 steadily decreased; HB 181 passed unanimously in the Senate and SB 108 did the same in the House.
The Pattersons have put together a formidable team to work on local food legislation consisting of Representative Marc Roberts, lobbyist Royce Van Tassell and farmer/analyst Paula Milby. Roberts has been the champion of food freedom in the Utah legislature the past four years, patiently staying the course when the opposition to the bills he introduced looked to be overwhelming. He, the Pattersons, Van Tassell and Milby showed a knack this past session for crafting legislation that would minimize opposition while not compromising what they were trying to accomplish. Connor Boyack, the president of the non-profit Libertas Institute, has helped significantly since 2015.
The Pattesons received earlier funding to help their legislative work from the Farm-to-Consumer Legal Defense Fund and State Policy Network but thanks to their formation of the non-profit Red Acre Center (RAC), they are now able to pay for lobbying and other expenses related to legislative efforts through donations to RAC–among expenses is paying for a farm manager when the Pattersons are away lobbying in the capital, Salt Lake City. Their Red Acre Farm in Cedar City operates a thriving vegetable CSA and sells meat and poultry products as well. The RAC is an education and advocacy nonprofit center that holds an annual conference in January; it has quickly become part of the conversation about who the influential organizations are in Utah food and agricultural policy. The Pattersons are building Red Acre Center for the long haul to be part of the political and educational landscape of food and agriculture in the state.
An interesting dynamic in SB 108 was that the bill likely would not have passed without the support of the Utah business empire, Redmond Inc. Redmond is primarily known for its manufacture of salt but it also has a raw milk operation, Redmond Heritage Dairy, that sells raw milk in several stores Redmond owns throughout Utah. Redmond wanted SB 108 to pass so it could deliver around the state. The company was the driver behind 2007 legislation that banned herdshares while allowing the sale of raw milk retail stores by a permitted producer that held a majority ownership interest in the store selling the raw milk. The Pattersons partially rectified the ban on herdshares with the 2015 legislation legalizing micro-dairy herdshare programs; they worked with officials from Redmond on the passage of SB 108.
RAC has joined Redmond, Utah Farm Bureau, the conventional dairy industry and UDAF as a player in Utah food and agriculture legislation. For Red Acre Center it shows the success that can result when you have a few dedicated individuals that don’t take “no” for an answer.
Michigan raw dairy consumers and producers owe Mike Lobsinger a debt of gratitude. Lobsinger, a retired businessman and leaseholder in a herd lease arrangement, along with farmers Joe and Brenda Golimbieski are the ones most responsible for a favorable court ruling establishing that consumers can obtain raw dairy products other than milk under a herdshare or herd lease agreement. 1 Thanks mainly to Lobsinger and his attorneys, John Stiers and Elise Arsenault, legal action taken by the Michigan Department of Agriculture and Rural Development (MDARD) to stop the distribution of cream, butter and other raw dairy products to leaseholders at the Golimbieski farm was not successful, establishing a case law precedent. The case shows the power to make an impact that consumers have.
Lobsinger believes it is the consumer’s right to select the farmer from whom they get their food but also that it should be the consumers’ responsibility to do what they can to back up their farmer when the farmer is facing an enforcement action from a government agency. Lobsinger, who is a member of both the Weston A. Price Foundation (WAPF) and the Farm-to-Consumer Legal Defense Fund (FTCLDF), went far beyond what consumers would typically do to protect their farmer in supporting the Golimbieskis.
In March 2013, MDARD issued a written policy, Policy 1.40 which legalized the distribution of raw milk through a written herdshare or herd lease agreement. Policy 1.40 stated that herdshare programs were to include distribution of only raw whole milk and that products such as butter, yogurt and cheese, etc., could only be sold or distributed by licensed producers. The “catch 22” is that Michigan law prohibits even licensed producers from selling products such as raw butter, cream and yogurt.
The Golimbieskis, who have a Grade A dairy operation, Hill High Dairy, were distributing raw butter and cream under their herd lease program to consumers who had signed a herd lease contract. Lobsinger, who obtains raw cream to put in his coffee was one of them.
Whenever the MDARD inspector was conducting her semi-annual inspections of Hill High Dairy, she would seize raw dairy products she found in a refrigerator located in a utility room, on the farm. In 2015 MDARD filed a court action against each of the Golimbieskis, Hill High Dairy and B.J.’s Boarding, an entity that was formed to lease cows to those wanting to get raw milk. The department petitioned the court to issue an injunction prohibiting the four parties from among other things, distributing raw dairy products other than milk to leaseholders.
Lobsinger entered the fray by successfully intervening as a third-party defendant in the case, claiming that MDARD was interfering with his property right to have milk produced by his cow separated into cream. Despite the successful intervention into the case, Judge James Jamo issued an order enjoining the Golimbieskis, Hill High Dairy and B.J.’s Boarding from violating any applicable Michigan food and dairy laws. The Judge did state in the opinion granting the injunction that there was no proof the defendants had violated any laws.
In December 2016 Judge Jamo ruled that the defendants were not in contempt, establishing a legal precedent that raw dairy products other than milk can be distributed under a herd lease or herdshare arrangement without violating Michigan law. Ironically, at the time the Golimbieskis received word about the ruling on MDARD’s inspection, MDARD inspectors were once again seizing raw dairy products at the farm as they conducted an inspection.
When the inspectors finished their next scheduled inspection in June 2017 without seizing Lobsinger’s cream (or any other raw dairy products), Lobsinger withdrew his lawsuit figuring that he already had a favorable ruling in the contempt case that he didn’t want to jeopardize and seeing that MDARD was no longer confiscating products it once saw as contraband during its inspections of the Golimbieski farm. Lobsinger made it clear that if MDARD tampered with his cream in the future, he wouldn’t hesitate to sue the department again for its violation of his rights.
Fortunately, Judge Jamo wasn’t buying into what Lobsinger called MDARD’s “jibberish”. He asked MDARD attorney Danielle Allison-Yokum if there was any case law to back up this assertion; the attorney admitted there was not.
Lobsinger’s intervention changed the dynamic in the Golimbieski case. Instead of the focus of the case being on a Grade A dairy violation, it was on property rights. Lobsinger’s willingness to hire attorneys to protect those rights made that happen. It shows the impact one individual can make.
1 A herdshare agreement involves someone purchasing an ownership interest in a dairy animal or animals and hiring the farmer to board, care for, and milk the animal(s); the difference in a herd lease agreement is that someone leases the dairy animal(s) and has ownership rights in the animal(s) for the term of the lease.
The story of Michele Reneau serves as an example of how a consumer can make an impact in advancing freedom of food choice. Reneau, who along with Nate and Anju Wilson manages a Chattanooga food buyers club, was the one most responsible for turning a potential enforcement action by the Tennessee Department of Agriculture (TDA) into a legislative breakthrough and a new law benefiting food buyers clubs throughout the state.
Reneau, a Weston Price chapter leader and Farm-to-Consumer Legal Defense Fund (FTCLDF) member, has the right temperament and personality to take on government regulators. She doesn’t accept their general assertions of authority, contesting the regulators point by point—asking for specific citations in the law to back up their claims. She gives up ground to regulators grudgingly and is a strong believer that there is a legal distinction between the private and the public distribution of food.
Reneau, along with the Wilsons, manages the Weekly Fig, a private membership association. Among other foods, Weekly Fig distributes meats, eggs, raw dairy and baked goods to its members. On May 4, 2016, an official from TDA attempted to inspect the Weekly Fig’s facility for the storage and distribution of food. TDA had discovered Weekly Fig through the inspection of a neighboring licensed facility in the same complex. Reneau refused to let TDA conduct the inspection of the buyers club facility claiming TDA did not have jurisdiction over her operation. On June 6 counsel for TDA sent Reneau and the Wilsons a warning letter identifying violations the Weekly Fig had allegedly committed, including operating an unlicensed establishment, offering for sale raw juice, and offering for sale raw milk and raw milk products.
With there not being favorable case law on a legal distinction between public and private distribution of food, Reneau took the legislative route to fight back against the threat from TDA. On February 8, 2017, Tennessee State Senator Frank Niceley and State Representative Kevin Brooks introduced, respectively, Senate Bill 651 and House Bill 702, legislation providing that no permit is required to operate “a farm to consumer distribution point” (e.g., food buyers club). The bills were amended to add that the facility must register with the state department of revenue for purposes of paying sales tax 1 and must agree to only allow deliveries of meats produced by farmers who comply with the Tennessee Meat and Poultry Inspection Act; these are both existing requirements the facility is expected to comply with anyway. On May 11, 2017, SB 651 was signed into law. Reneau testified at the Senate committee hearing on the bill and, according to Senator Niceley, did a great job. FTCLDF worked on the development of the bill.
SB 651 is a big help for farmers; consumers like their convenience and will go more often to a centrally located buyers club site to spend their food dollar than they would going to a farm. Unless there was an exemption from the permit requirement, many food buyers clubs would not bother having a fixed central location for the distribution of food.
It would be great to end by saying the government is leaving Weekly Fig alone with the new law in place but that hasn’t been the case. Even though state regulatory agencies have stopped bothering the food buyers club 2, for the past several months USDA’s Food Safety Inspection Service (FSIS) has been requesting that FSIS personnel be allowed to conduct an inspection of the Weekly Fig facility. FSIS has broad jurisdiction to inspect firms handling meat products but almost never uses it to inspect a facility like the Weekly Fig’s. The agency is asking for customer records detailing meat purchases and sales. The Weekly Fig’s charter prohibits the sharing of member information with anyone.
Reneau doesn’t know who made the complaint to FSIS but it doesn’t look like a coincidence the complaint was made shortly before SB 651 became law. Reneau, as she did with TDA, is contesting FSIS jurisdiction to inspect the facility by requesting that the agency give her specific citations in the law giving it the authority to inspect Weekly Fig; she is not giving FSIS an inch until it does so. To this point the agency has yet to attempt an inspection.
What Reneau and the Wilsons have done is to realize the potential consumers have to make changes in the laws governing local food. They have shown it doesn’t take many to make a difference.
1 Food sold for human consumption is taxable in Tennessee.
2 TDA has stopped pursuing any action against the Weekly Fig over the allegation that it was selling raw milk. The Weekly Fig does not sell raw milk and raw milk products, rather it distributes them to its members pursuant to a herdshare agreement; herdshare contracts are legal in Tennessee.
FALLS CHURCH, VA—August 1, 2017—Montana has become the 43rd state to legalize raw milk distribution, doing so through a method that no other state has adopted. Montana residents can now get legal access to raw milk through purchasing securities, giving them ownership interest in a dairy animal or dairy animals. Dairy farmers wanting to sell stock in their animals need to obtain an exemption from the state securities registration requirement; the farmers fill out an application for the exemption with the Office of the Commissioner of Securities and Insurance (OCSI). Please do not contact OCSI.
OCSI has granted exemptions for stock offerings of dairy animals in the past including one in 2016 for an FTCLDF member selling ownership interests in dairy goats, but the Montana Department of Livestock (DOL), which has jurisdiction over dairy production and sales, had left open the possibility of taking enforcement action against producers under the exemption. During recent communications with OCSI officials, DOL leadership indicated it would honor the exemptions, changing its prior policy. DOL would still have oversight over raw milk producers operating under the exemption. FTCLDF member Chris Rosenau was instrumental in forging the breakthrough on the DOL policy. Rosenau has led the effort to pass a raw milk bill the last three legislative sessions in Montana. OCSI limits stock offerings to ownership in four cows with 25 solicitations (meaning a maximum of 25 stockholders) per offering. It is not clear at this point how many goats could be included in an offering, but the number is probably around the same as for cows.
DOL will likely continue to regard the typical herd share arrangements existing in Montana (and many other states) as illegal even though Montana law provides a strong argument for their legality.
Rosenau, who has spent thousands of uncompensated hours working for a change in the state raw milk laws, regards the new DOL policy as a foot in the door and a step towards expanding raw milk access in the state. She plans on working with legislators to introduce another raw milk bill in the next legislative session.
FTCLDF drafted documents for the farmer member mentioned earlier who successfully obtained the exemption in 2016. Montana dairy farmers interested in applying for the exemption can contact FTCLDF. Again, please do not contact OCSI.
Delaware, Hawaii, Iowa, Louisiana, Nevada, New Jersey, Rhode Island—seven states to go.
Attorneys for FTCLDF have spent a substantial amount of time working to legalize raw milk distribution in Montana. The goal of legal raw milk in all 50 states is in sight. Please help us continue our push towards making this happen by attending our fundraiser or by making a donation.
The Farm-to-Consumer Legal Defense Fund is asking those who believe in food freedom and consumer choice to make their voices heard during a Day of Action on Tuesday, May 6.
If you believe that Americans have the right to buy wholesome, natural foods from local farms, please contact your state representatives on Tuesday, May 6 and urge them to support bills HB 4307 and HB 4308 to end federal crackdown on the distribution of raw milk.
A short video by the Farm-to-Consumer Legal Defense Fund provides a brief glimpse into the contentious history between public health officials and raw milk producers, and explains what these two bills will do to alleviate the persecution of raw milk producers.
Happy Birthday, Farm to Consumer Legal Defense Fund!
Happy Independence Day for Farmers and Consumers!
Today is the 6th birthday of Farm-to-Consumer Legal Defense Fund. Their mission is to promote wider consumer access to nutrient dense foods such as raw milk. We want to thank them for all they are doing to help spread the raw milk sunshine around our world!
Support their annual fundraising appeal by making your contribution to their great efforts.
The Campaign for Real Milk is a project of The Weston A. Price Foundation.