By Peter Kennedy
June was a great month for food freedom in New Hampshire–one in which the state did right by its motto, “live free or die”. Two different bills were signed into law which will potentially set a favorable precedent elsewhere for those producers selling raw milk and those consumers trying to obtain the food of their choice from the source of their choice.
RAW DAIRY PRODUCTS
On June 7 the state dairy code was amended to provide that “a milk producer-distributor who daily produces for sale less than 20 gallons of raw milk or processes less than 20 gallons of raw milk into cheese aged at least 60 days, yogurt, cream, butter, or kefir shall not require a milk producer-distributor license, provided these products are offered as direct sales from the producer-distributor’s own farm, farm stand, or at a farmers’ market to the food consumers within the state of New Hampshire only.”
The dairy amendment creates an opportunity for producers to increase their income by selling value-added products, something very few other states allow. It is difficult to see why states have not legalized the sale of raw dairy products other than milk and cheese aged 60 days because in the states where the sale of raw butter, cream and yogurt have been legal there are few, if any, cases of foodborne illness attributed to the consumption of these products. The sale of aged raw cheese is legal in every state but even small-scale cheese producers are subject to burdensome dairy plant requirements to be in compliance.
In addition to expanding the kinds of raw dairy products that can be sold, the bill also allows the sales to take place at farmers’ markets. Most states that have legalized the unlicensed sale of raw milk have limited sales to the farm, decreasing the producer’s potential customer base. The bill (HB 1402) is a significant step in opening up new markets for small-scale raw milk producers.
JURY NULLIFICATION AFFIRMED
The other important law enacted in New Hampshire in June has nothing directly to do with food rights but can still be a precedent that could substantially impact the right to obtain raw milk and other foods of choice. On June 18 a bill strengthening the jury’s power to engage in jury nullification was signed into law. The bill (HB 146) requires that “in all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.”
The U.S. Supreme Court has held that the jury has the power to engage in jury nullification and acquit the defendant even if the law and the facts of the case point towards the defendant’s guilt; under the nullification power, the jury can acquit the defendant if it believes the law is unjust as applied to the facts of the case. The trouble with jury nullification is that in most juries the jurors don’t even realize they have the power to exercise it. Courts have consistently rejected the right of defendant’s counsel to inform the jury of its power to engage in nullification, leaving juries in the dark on a power every juror should know about.
JURY NULLIFICATION & FOOD RIGHTS
The importance of jury nullification to raw milk and other food rights issues is that judges in this country have refused to recognize that there is a fundamental right to obtain the foods of choice, that there is a difference between public and private distribution of food, and that people have the right to waive the protection of the public health laws. Further, the courts have indicated that if raw milk producers and consumers don’t like their rulings, they need to convince the legislature to change the law.
This article originally appeared in the August-September 2012 edition of Graze Magazine. Those interested in learning more about Graze may go to www.grazeonline.com or call 608-455-3311.