Max Kane v. DATCP — in court today

This story, by Chris Hubbuch, is excerpted from the Lacrosse Tribune, although we found it on the Farm to Consumer Legal Defense Fund news page:

Max Kane, the man at the centre of this particular raw milk fight. Peter Thomson photo.

“VIROQUA, Wis. – Max Kane Farley believes unpasteurized milk saved his life.

The Chicago native, who goes by Max Kane, was diagnosed with the chronic digestive disorder Crohn’s disease at age 10.

He suffered abdominal and joint pain. He had thin bones and only 110 pounds on his 5 foot 10 frame.

“I looked like someone who came out of a German concentration camp,” Kane said.

After 13 years, he heard about the primal diet – raw meat, raw eggs, raw milk. He gained 80 pounds, and his symptoms went away, he said. He hasn’t needed medication or seen a doctor in five years.

He credits raw milk and has devoted himself full-time to promoting its benefits and helping others get it. He rode his bike 3,600 miles, mostly on a raw dairy diet. He’s working on a film about raw milk.

The 32-year-old, who now lives in Viroqua, also founded a Chicago-based club through which members could buy unpasteurized dairy products.

That’s put him at the center of a legal battle over the state’s authority to regulate food sales.

The thirst for raw milk has been growing over the past decade, attracting the notice of both lawmakers and health officials. Even as a bill to legalize the sale of unpasteurized milk makes its way through the Wisconsin Legislature, the state is cracking down on black market sales.

Kane’s case started in March, after the mother of an ill 16-year-old told health officials he’d drank raw milk she got from Kane’s club, Belle’s Lunchbox. Although lab tests did not link the illness to milk, Illinois officials notified the Wisconsin Department of Agriculture, Trade and Consumer Protection.

Just after finishing a cross-country bike tour promoting raw milk, Kane received a letter requesting details about his club, his providers, processing and handling practices, and licenses, as well as his tax returns.

Kane responded with a “cease and desist” letter stating DATCP had no jurisdiction over his private club and accusing officials of violating the Constitution and state law. He threatened to sue.

The state subpoenaed him.

The day before his deposition, Kane delivered a four-page letter to Assistant Attorney General Phillip Ferris that accused him, among other things, of violating his oath to uphold the Constitution.

The deposition itself went off the rails, as Kane attempted to argue the constitutionality of the investigation even as Ferris tried to explain that a judge was the proper person to make that decision.

Kane will get his chance Monday in Vernon County Circuit Court.

Benefits and risks

Raw dairy proponents say unpasteurized milk is tastier, healthier and easier to digest. It has been touted as curing everything from asthma to lactose intolerance and childhood behavior problems.

Federal and state health officials say uncooked animal products are inherently dangerous and can carry bacteria capable of causing illness and death.

“All it takes is a fleck of manure on a cow’s teat and you’ve got contamination,” DATCP spokeswoman Donna Gilson said.

Raw milk advocates say the benefits far outstrip the risks.

State Rep. Chris Danou last week introduced a bill with bipartisan support that would allow farmers to sell raw milk directly to consumers. The Trempealeau Democrat points to a study that showed people are more likely to get sick from deli meat than raw milk.

“Any raw food has some risk to it,” he said. “It’s … a freedom of choice issue. It’s about allowing adults to make informed, rational decisions about what they choose to eat and drink.”

American raw milk consumption has swelled in the decade since the Weston A. Price Foundation began campaigning for it, President Sally Fallon Morell said. She estimates a million people consume raw milk.

Twenty-eight states allow on-farm sale. In nine, consumers can buy raw milk in stores. Another four allow raw milk to be sold as pet food.

Wisconsin allows “incidental” sales but not on a regular basis or with advertising.

Though the Cornucopia Institute officially is neutral on raw milk, founder Mark Kastel of La Farge said direct-to-consumer sales do offer farmers an opportunity.

Kastel describes an “almost religious fervor” on both sides of the issue and said both have scientific evidence to support their views.

He points out that when pasteurization was introduced, dairies weren’t as clean as they are today and lacked modern refrigeration and protocols.

“The people who are really scared of this are stuck in a time warp of sorts,” Kastel said.

Scrutiny of open sales

DATCP estimates a couple dozen Wisconsin farmers sell raw milk.

The department initially sends a warning letter that usually is sufficient to stop sales, Gilson said. If not, the state can revoke licenses, assess fines or seek criminal charges, though no one yet has been prosecuted.

The state has seven open investigations, including Kane’s.

Gilson said DATCP stepped up enforcement after several media stories last winter about cow-share programs, in which consumers “buy” part of a cow in exchange for milk. While some farms advertised their products online, believing the share model was a loophole, the state does consider it illegal.

“It’s not a loophole,” Gilson said. “They are being misled.”

Weston Price’s Morell said the enforcement is a sign the milk industry is “freaking out” as raw milk demand grows.

“They want to be able to pay all farmers this ridiculously low price for their milk,” she said, “and they don’t want consumers thinking their milk is bad or unhealthy.”

Self-incrimination?

Kane said he’s being forced to provide evidence that Wisconsin, Illinois or the federal government could use against him, a violation of his Fifth Amendment rights. But officials argue that state and federal law prohibits using his answers in future prosecutions.

Kane also contends the state has no authority because Belle’s Lunchbox is a private club….”

Read the whole story on the Lacrosse Tribune.com