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Cow Farmer Can’t Sell Raw Milk in Other States

(CN) - A Pennsylvania man cannot sell raw, unpasteurized milk across state lines, but in-state sales are perfectly legitimate, a federal judge ruled.

The decision wraps up a two-year investigation of Daniel Allgyer, owner and operator of the Rainbow Acres farm in Kinzer, Pa.

Prohibitions against unpasteurized milk trafficking have a long history and are intended to prevent the spread of milk-borne illnesses. But the market for such products has been growing with consumers eager to harness purported health benefits or to make their own yogurt, buttermilk and cheese.

According to a complaint filed on behalf of the U.S. Food and Drug Administration, Allgyer sought to slake at least some of the desire for fresh, grass-fed and hormone free dairy by marketing his raw milk for sale in Maryland and the Washington, D.C., area. He created a group on Yahoo called "grassfedonthehill."

Members who joined the group to buy the milk had to sign agreements and join an organization called the Communities Alliance for Responsible Eco-farming (CARE) "in order to protect [the] farm ... from ongoing harassment" by the Pennsylvania Department of Agriculture," according to the court's summary of the case.

Allgyer also warned grassfedonthehill members not to share information about the group with government agencies or doctors.

Federal authorizes nevertheless caught wind of the interstate business. After joining the Yahoo group in 2009, investigators bought 23 gallon and half-gallon containers of raw milk and had an independent laboratory authenticate the products were not pasteurized.

In the spring 2011, the FDA secured a warrant and inspected Rainbow Acres farm, collecting evidence that Allgyer was engaged in milking cows and packaging the unpasteurized milk in unlabeled containers for out-of-state delivery.

Following the inspection, Allgyer received a warning letter informing him of his various violations of federal law and the legal repercussions in store for him.

Allgyer allegedly took to the web after receiving the warning letter, telling his Yahoo group members that the government was trying to shut him down and that he was going to continue to sell raw milk by "leasing cows through a private organization."

The FDA says its investigators once again visited the Rainbow Acres Farm website in September 2011 and found that Allgyer was still offering unpasteurized milk for direct human consumption to out-of-state consumers, in violation of the Public Health Services Act and the Food, Drug and Cosmetic Act.

It filed a complaint seeking declaratory and injunctive relief against Allgyer in December 2011.

The dairyman initially responded to the lawsuit by claiming he was not the owner of the farm or in control of the CARE organization, according to the court.

Allgyer also fought summary judgment on several other grounds. These included his contention that his membership in a private cow-sharing organization precludes FDA involvement in his activities, and that the potential for sanctions makes the action against him "quasi-criminal" rather than civil. For a criminal case, the government would need probable cause and an official complaint, Allgyer said.

Allgyer also characterized the FDA warning letters as illegal and said the agents must provide "oaths of office."

U.S. District Judge Michael Baylson found, however, that the case and Allgyer's potential punishment revolved around a much simpler question: whether the farmer was in violation of federal law.

On this question, Allgyer raised no disputed issues of material fact, Baylson said. In fact, his responses to the request for summary judgment corroborated rather than diminished the government's allegations.

"Here, the evidence shows that Mr. Allgyer violated the FDCA by distributing misbranded raw milk," the Feb. 3 decision states. "As of Sept. 28, 2011, the investigators from the FDA found that Mr. Allgyer continued to sell raw milk across state lines."

"Defendant's violative conduct has continued despite notices from the FDA and this action," Baylson added. "Moreover, the defendant maintains the attitude that his participation in private membership associations, which sell raw milk in interstate commerce, cannot be regulated by the FDA, and he failed to recognize the wrongfulness of his conduct. Because of Mr. Allgyer's history, I find that he is likely to continue to violate the FDCA and injunctive relief is warranted."

The government cannot, however, prevent Allgyer from selling raw milk within Pennsylvania, as such prohibition would be overly burdensome on the defendant, the judge concluded.

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