Betcha didn’t know muffins can become so unruly that a state government will have to go to court for a judge’s order that they be destroyed.
That’s the bottom line of a case in Michigan, where the Department of Agriculture and Rural Development has filed a complaint against the Dairy Delight Cow Boarding operation, and Kristal Unger, Gary Unger and Chad Erway.
The case actually is an old one, over unpasteurized milk. Some farm producers and consumers believe such “raw” milk is healthy and drink it regularly, without ill effects. Government agencies insist that it is more likely to carry disease, and they want everything that they haven’t had a chance to inspect and oversee restricted or simply destroyed.
Often state agencies raid providers of raw milk – even those that produce it only for themselves – and crack down on farm-butchered meat products.
But this, according to the experts, is the first time that muffins and cookies have been in the government bull’s-eye.
The group Farm to Consumer Legal Defense Fund said its members “have been subject to food seizures since the organization’s inception, but just about all of the seizures have been of either meat or dairy products; the enforcement action at Dairy Delight marks the first seizure of baked goods.”
“The Unger case is great testimony for why a legal distinction needs to be established between the public and private distribution of food and why government agencies should leave the private distribution of food alone,” said lawyer Pete Kennedy at the organization’s website.
He said the complaint in Livingston County Circuit Court seeks the destruction of a variety of food products that were found at the herd share dairy farm operation in Cohoctah Township, including “gluten free oatmeal cookies, apple muffins, honey, shell eggs, Kombucha tea, kraut and frozen chicken.”
The products were not properly labeled, the legal complaint states.
“These products were not from regulated sources and were being offered for retail sale.”
Kennedy explained the Michigan Department of Health and Human Services targeted the farm for inspection after alleging two children had been infected with E. coli. The farm offers herd-sharing opportunities for consumers.
“The father of one of the sick children had spoken to Unger about the illnesses; the other sick child had been with his son shortly before they both became ill,” Kennedy said. “The father told Unger that he believed the illnesses had come from the consumption of tacos and that he was ‘pretty sure’ that his son’s friend had not consumed raw milk.”
State inspectors demanded of Unger the contact information for shareholders, and when she declined, they returned with two deputies with a warrant for an inspection.
“While conducting the inspection of the dairy, the officials seized the baked goods and other foods including honey, eggs, kombucha and sauerkraut. The inspectors seized the products because they were ‘not properly labeled’ and because they ‘were not from regulated sources and were being offered for retail sale.’ MDARD’s position is that if a food is supposed to be from a regulated source and is not, it is adulterated.”
But the food items were not for public sale; they were being sold only to the other shareholders.
So the case is over whether private individuals can exchange and share food they produce with their friends and neighbors if they choose – not whether such items will be offered for public sale, Kennedy said.
“The sale and distribution of foods at the Unger farm amounts to a closed-loop transaction, which is none of the state’s business. MDARD could have used its enforcement discretion and left the foods it seized alone when its inspector was at the farm,” he said.
“Unger’s herd share members do not want MDARD’s protection; they want to be left alone. The legislature needs to look at changing the law so that private contractual arrangements outside the stream of public commerce are not regulated. The Michigan Food Law is very broad and applies to nearly all distribution of food; selling a pumpkin pie to a neighbor requires a license. With the growth of private contractual arrangements like private member associations, food buyers clubs, and herd share agreements, the law is antiquated and has not kept up with these distribution models. Due to the high degree of transparency and traceability in many of these models, MDARD could better spend its time regulating in other areas like imported food. The Unger case, along with the recent Michigan court ruling on herd shares, is a wake up call on what needs to happen.”
Kennedy said none of the raw milk samples that Unger sent to a lab due to the illnesses tested positive for E. coli.
“It is likely that none of the samples MDARD sent did, either. Over three months after getting the test results, MDARD still had not informed Unger whether or not the tests were positive,” Kennedy said.
The state, which wants to destroy the food inspectors took, seeks a “court order permanently enjoining Unger from selling food without a license, selling food that is not from an approved source, and selling food that is either adulterated or misbranded,” Kennedy said.
The state requests a judicial declaration that the food products “are misbranded and/or adulterated” and an order for them to be destroyed at “defendants’ expense.”
It alleges that Michigan law prohibits the sale of unpasteurized milk, but it has had to recognized that owners have a right to milk from their own cows, and it exercises “enforcement discretion” involving herd share programs.