Ohio Department of Agriculture loses challenge over legal uses of raw milk

Check out this story by Tom Lotshaw of the Marietta Register. Here’s an excerpt:

“Ohio Department of Agriculture [ODA] officials engaged in illegal rulemaking and violated the constitutional rights of two local farmers in order to stop them from legally using raw milk as an ingredient in their pet food products, a Washington County judge ruled last Wednesday in Marietta.

Common Pleas Judge Ed Lane’s ruling, wholly against the ODA, ends at least for now a two-year struggle against the ODA by Washington County farmers Linda Fagan and Donna Betts.

The ruling orders the State of Ohio to pick up the tab for attorney fees and court costs that were incurred by Fagan and Betts, and leaves the two women free to resume production of their pet food products using raw milk.

In February 2006 the ODA issued stop orders against each of the two women for selling pet food products “made from milk, [which] is not recognized as a feed ingredient under the definition of [the] Association of American Feed Control Officials.”

There had been no complaints against the pet food products, and Fagan and Betts had both been licensed by the ODA to produce them using raw cow and goat milk, per ODA-approved labels, for nearly five years.

Judge Lane found that AAFCO does not prohibit raw milk as an ingredient in pet food products, as the ODA alleged, and that raw milk is not prohibited as a pet food ingredient by AAFCO, the FDA, or Ohio Administrative Code.

Raw goat’s milk is actually now an approved pet food ingredient by AAFCO.

But even that fact didn’t stop ODA Feed and Seed Chief David Simmons from saying in court he would issue new stop orders and another proposed commercial feed registration revocation against Fagan and Betts if either of the two women resumed producing their pet food products using raw milk.

The ODA had previously threatened to revoke their commercial feed registrations, but ultimately withdrew that threat – without notifying one of the women – after both Fagan and Betts had requested a hearing and hired legal counsel.

“There is nothing in Ohio law that prohibits the use of raw milk (goat or cow) as an ingredient in a pet food product,” Judge Lane wrote in his ruling.

The ODA ultimately gave three different reasons in court for issuing the stop orders against Fagan and Betts, none of which held up in Judge Lane’s ruling.

Further, by refusing Fagan or Betts any chance to challenge the stop order in the past two and a half years, as both of the women had attempted to do, the ODA violated their rights under both the equal protection and due process guarantees of the Ohio and United States Constitution, Judge Lane’s ruling states.

“In essence…it [took] away their livelihood without a hearing,” Judge Lane wrote.

Judge Lane’s ruling rescinds the ODA stop orders, finding them without basis in either fact or law, and orders the ODA to pay $20,000 of attorney fees and court costs incurred by Fagan and Betts for their legal challenge to the ODA.

“The whole thing was bogus from day one. All two and a half years of it,” Donna Betts said of her case against the ODA last Wednesday.

Betts said she and Fagan had been told upfront that they would not be able to recoup any revenue lost as a result of ODA stop orders, which could not be challenged for more than two years.

“In my case, with the goats, I couldn’t start up business again until next spring,” Betts said….”

Here’s the whole article on the Marietta Register website.

We previously reported on this story from the defense lawyers’ point of view in this post.