A farmer in Loganville, Wis., sometime in the next few months will go to trial in Sauk County on four misdemeanors, and Vernon Hershberger could face up to three years in jail for providing milk and other products to members of a dairy buying club.

The state of Wisconsin says it can regulate when consumers gain access to such products through private deals.

But the idea isn’t sitting well with natural foods advocates, and they are planning a rally at Hershberger’s next court appearance, scheduled Friday. One supporter even has suggested that it might be hoped that the jury would acquit the farmer “no matter what the facts and the law of the case are.”

“Can the jury hearing the case legally engage in jury nullification and return a verdict of not guilty on the charges no matter what the facts and the law of the case are? The answer is yes,” writes Pete Kennedy in a Farm-to-Consumer Legal Defense Fund commentary on the case.

“Hershberger had been charged with operating a retail food establishment without a license, operating a dairy farm as a milk producer without a license, operating a dairy plant without a license and violating a holding order issued by the Wisconsin Department of Agriculture and Consumer Protection,” he wrote.

But the facts of the case are that Hershberger had “private contractual arrangements with food buyers clubs to provide food.”

“If Hershberger is convicted of the charges against him, it could have a chilling effect on consumer access to raw milk for those who don’t own and board their own cows. The farmer currently is leasing his cows to the right to Choose Healthy Food Buyers Club,” he said.

But Kennedy noted that a Dane County Circuit Court judge ruled last that “owners of cows boarded at the Zinniker farm in Elkhorn could not legally obtain raw milk produced by their own cows at the farm.”

The Weston A. Price Foundation said a rally will be held at a court hearing for Hershberger Friday, March 2, to launch a “Declaration of Food Independence.”

It will be at the courthouse in Baraboo, Wis., where food activists from around North America will gather to support Hershberger.

“The Wisconsin Department of Agricultural Trade and consumer Protection targeted Hershberger for supplying a private buying club with fresh milk,” the Price Foundation report said.

“There is more at stake here than just a farmer and his few customers,” Hershberger told the foundation. “This is about the fundamental right of farmers and consumers to engage in peaceful, private, mutually consenting agreements for food, without additional oversight.”

Food-rights activists plan to read and distribute the “Declaration of Food Independence” that day. The document asserts inherent rights in food choice.

The organization said Hershberger and other farmers around the country have been facing state and federal charges for providing fresh foods to customers.

“In recent months the FDA has conducted several long undercover sting operations and raids against peaceful farmers and buying clubs that have resulted in farms shutting down and consumers without access to their food,” the report said.

WND reported only a few days earlier when the Price Foundation criticized a federal study that warned about outbreaks of illness blamed on raw milk. The Centers for Disease Control report said outbreaks because of raw milk were 150 times greater than outbreaks attributed to pasteurized milk, citing statistics from a 13-year period ending in 2006.

But the Price Foundation said the results were skewed because of the way federal report authors “cherry picked” data.

Sally Fallon Morell, president of the Weston A. Price Foundation, said the study listed an average of 315 illnesses a year “from all dairy products for which the pasteurization status was known.”

“Of those, there was an average of 112 illnesses each year attributed to all raw dairy products and 203 associated with pasteurized dairy products,” she said of the study period ending in 2006.

“The CDC’s data shows that there were significant outbreaks of foodborne illness linked to pasteurized dairy products the very next year, in 2007: 135 people became ill from pasteurized cheese contaminated with e.coli, and three people died from pasteurized milk contaminated with listeria,” the Price Foundation report said.

And shortly before the time frame for the study, there were 16,000 confirmed cases of Salmonella traced to pasteurized milk from a single dairy, the foundation reported.

The foundation suggested that the time frame was picked by government reporters to portray raw milk in a negative light.

It was in the Zinniker case that a judge ruled that Americans do not have a right to choose their food, not even when they own the cows and the milk.

The judge decided in a fight over families’ access to milk from cows they own that Americans “do not have a fundamental right to consume the milk from their own cow.”

Circuit Court Judge Patrick J. Fiedler said the families who reported they were boarding their cows for a fee and then getting the milk instead were running a “dairy farm.”

“It’s always a surprise when a judge says you don’t have the fundamental right to consume the foods of your choice,” said Kennedy.

The judge wrote:

The court denied plaintiffs’ motion for summary judgment, which means the following:

(1) no, plaintiffs do not have a fundamental right to own and use a dairy cow or a diary (sic) herd;
(2) no, plaintiffs do not have a fundamental right to consume the milk from their own cow;
(3) no, plaintiffs do not have a fundamental right to board their cow at the farm of a farmer;
(4) no, the Zinniker plaintiffs’ private contract does not fall outside the scope of the state’s police power;
(5) no, plaintiffs do not have a fundamental right to produce and consume the foods of their choice; and
“(6) no, the DATCP did not act in an ultra vires manner because it had jurisdiction to regulate the Zinniker plaintiffs’ conduct.

Kennedy called the ruling outlandish.

“Here you have a situation where a group of people, a couple of individuals, boarded their cows which they wholly owned, with Zinniker farms, and paid them a fee for the boarding.”

He continued, “The judge said people have no fundamental right to acquire, possess and use your own property.”

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