Raw-milk advocates say they’re filing petitions with the Wisconsin Supreme Court in cases they say are about the rights of consumers and food groups to buy raw, unpasteurized milk direct from a farm.
Two of the petitions were expected to be filed Monday, said plaintiff Gayle Loiselle, a food-rights activist from Dousman. They stem from cases brought by dairy farmers Mark and Petra Zinniker of Walworth County and Grassway Organics Farm Store in New Holstein.
Earlier, a state appeals court ruled against the Zinnikers and Grassway Organics in disputes with the state Department of Agriculture, Trade and Consumer Protection, but the court sidestepped the issue of whether a person has a right to purchase and consume unpasteurized milk.
“The Wisconsin appellate court refused to rule on the question before them regarding the constitutionality of food rights and instead deflected the issue to license violations,” Loiselle said.
A third petition was filed with the state’s highest court earlier this summer involving a case stemming from dairy farmer Vernon Hershberger of Loganville.
“The plaintiffs in all three cases, along with thousands more seeking fresh food directly from the farm, believe they have a fundamental constitutional right to choose what they eat and to choose where that food comes from. We have constitutional rights to conduct business directly between farmers and citizens without government interference and without middlemen like food processors or distributors,” Loiselle said.
With the exception of limited, incidental sales, state law prohibits the sale of unpasteurized milk to the public because it may carry bacteria that cause food-borne illnesses.
Raw-milk advocates say they want access to fresh, unprocessed milk that contains beneficial bacteria. They claim the beneficial bacteria are destroyed by pasteurization, in which milk is heated to a high temperature to destroy pathogens.
“This is about basic rights,” Loiselle said. “We believe the Supreme Court has an obligation to the people of Wisconsin to review these three cases on the merits of these constitutional rights now under question.”
In early 2010, a limited liability coalition formed by raw milk supporters, called Nourished by Nature, entered into a contract with the Zinniker farm to purchase a herd of dairy cows. Nourished by Nature agreed to pay a fee to the Zinnikers, and members would then visit the farm and collect raw milk for their own consumption at home.
The Zinnikers’ attorney asked the state whether that arrangement was legal, and the Department of Agriculture responded with a letter saying it was a “sham arrangement” that could result in civil and criminal penalties. The Zinnikers then filed a lawsuit, seeking a court ruling that their operation was indeed legal.
State regulators argued, and the appeals court agreed, that the Zinnikers were breaking the law because they were distributing milk produced on their farm without a milk producer’s license.
Because of that conclusion, it wasn’t necessary to determine whether a person has a right to consume raw milk, the court said.
“Even assuming that the members of Nourished by Nature have a right to consume unpasteurized milk, the Zinnikers do not have a legal right to operate a dairy farm as milk producers without a license,” the court said.
In the Grassway Organics case, the appeals court said the operators of the farm store needed a retail license to sell milk to members of an association who paid a fee to buy from the store. State officials had told Grassway they couldn’t sell or distribute raw milk from the store.
Store owners Wayne and Kay Craig sued, seeking a circuit court ruling that selling raw milk to members of the association was legal.
The appeals court agreed with the circuit court, which determined the Craigs needed a retail food establishment license. The ruling did not address whether the sale of raw milk would be legal if a retail license were obtained.