Yesterday I described the pending food bill
in some detail, discussing its many dubious and sinister features. I established that it cannot accomplish the food safety goals it claims to seek and can’t even be intended to accomplish such goals. Its intent must lie elsewhere.
If there’s a constitutional right to privacy, to be let alone, implicit in the Constitution, enshrined by the SCOTUS, interpreted in so many ways, then there’s certainly a right to food freedom. That right is simply so obvious that the framers thought it absurd to write it down. Even the so-called Anti-Federalists (i.e. the real federalists), who had to fight for a Bill of Rights and were able to force its inclusion, didn’t think to mention food. Although they have been proven all too correct about the need for a Bill of Rights (and we should consider them the real citizen activists among the framers, not the “Federalists” like Madison and Hamilton who scoffed at the idea), even they never had it cross their minds that they should need to explicitly write in “food”. It appears they should have. No matter – the 9th and 10th amendments, as well as the 1st, 4th, 5th, and 14th, sure cover it. As well as the Commerce Clause, although the brief will cite the wrongful Wickard decision against Commerce Clause federalism. The brief argues both the standard bureaucratic authoritarianism as well as a sweeping repudiation of the very concept of the constitution as the rightful sovereignty of the people. The FDA rejects constitutionalism even according to the diminished principles of “representative democracy”.
When I first read about Farm-to-Consumer’s lawsuit and saw these headings in the article:
a. There is No Right to Consume or Feed Children Any Particular Food
b. There is No Generalized Right to Bodily and Physical Health
c. There is No Fundamental Right to Freedom of Contract
I thought they were interpretative summaries. But nope – they’re verbatim from the brief’s outline.
When reading claims by the FDA, and wherever we see it claiming powers and even obligations the way it does in this brief, we should keep in mind that it has consistently refused to exercise such powers where it comes to large producers. So right there they’ve proven they’re lying when they claim to have “obligations”. It proves they’re using their alleged powers selectively and maliciously against small producers only. It gives the lie to every claim of reasonability, proportionality, that actions are “warranted”, and so on. Every claim in the brief is a lie on its face since all depend upon the FDA’s protestations of being a good government citizen, exercising power in good faith on behalf of the citizenry and carefully within the bounds delineated by the many decisions it cites. It also claims that the suit is speculative and, implicitly, paranoid. But all that was said in April, and if there were any doubt then, the aggressive, wanton enforcement actions over the summer against Rawesome, Morningland, and other raw milk participants has rendered it all moot. The entire FDA argument falls to pieces, and all that’s left is the naked assertion of brute power, and the vile anti-American ideology the brief expresses.
In the introduction they play innocent, disclaim aggressive intentions and blandly assert (p.4) that the plaintiffs are claiming a “new” right. But the right is of course as old as humanity; the only thing new is the need to fight for it against a corrupt and oppressive US government. The FDA makes imperial executive claims about the courts lacking jurisdiction. Starting on p.5 there’s much noise about “communicable disease”, fighting which is supposed to be the basis of FDA authority. But I’m not aware of which communicable disease (by which people using the English language tend to mean something spread by casual contact, not by voluntarily ingesting a substance) is supposed to be spread by raw milk. Then I have to remember the standard Humpty Dumpty
attitude of bureaucracy – “When I
use a word, it means exactly what I want it to mean, no more, no less…The question is who is to be master.”
On page 6 the brief arrogates a theoretical right to ban intrastate commerce. (The food bill would explicitly confer this as a discretionary power.) The FDA reiterates (p. 8-9) its bureaucratic definition of milk as “pasteurized”, and the corollary criminalization of “misbranded” raw milk as a status offense, accomplished by arbitrary fiat. (On p .7 we find the lie about the FDA’s bogus ”obligation” to persecute raw milk.)
Starting on p. 10 we come to textbook Kafka. By now it’s routine for the government to respond to every challenge first by simply denying the citizen’s right to a day in court
. Thus the FDA claims the plaintiffs ”lack standing”, and that their claims aren’t “ripe”:
Plaintiffs cannot make the requisite showing of injury in fact. They claim that
they are presently suffering an injury because FDA’s regulations deprive them of their
constitutional rights, but as explained in Section IV.C below, plaintiffs’ constitutional
claims fail as a matter of law.
Notice how the alleged lack of standing is based on the alleged lack of a constitutional right, which is of course what’s in question here. This is the logical fallacy of “begging the question”.
Plaintiffs have not made such a showing. They do not point to a single
enforcement action the government has brought against others similarly situated (i.e.,
individuals buying unpasteurized milk for personal consumption or retailers of
unpasteurized milk purportedly not engaging in interstate commerce), nor do they
allege that FDA has in any way signaled an intention to enforce the challenged
regulations against plaintiffs.
There’s also, on p. 11, a messy argument involving FDA “warning letters”, which also evidently mean exactly what the FDA wants them to mean, depending upon the context. Outside of court, they’re to mean enforcement is imminent. Inside court, as in this brief, they suddenly mean nothing. The warning letter is sufficient for an enforcement action to be considered ”imminent”, except where it’s not. That’s quite a Catch-22 they’ve got going there. How vile is it when what’s supposed to be “our” government sets up such paradoxes against us? Right there is proof of a government’s illegitimacy.
As I mentioned earlier, this entire line of argument is rendered moot and void by the government’s actions in the Rawesome raid and elsewhere. Even by the FDA’s own bogus arguments, the claims are now as ripe as autumn apples.
On p. 13-14 the FDA refuses to give an answer as to what it thinks the law is, and asks the court to refuse to make them answer. This is another arrogated prerogative of autocratic bureaucracy, this fraudulent power to write the law as it goes along, leaving the real state of the law always vague and uncertain in the eyes of the benighted, awed peasantry. It’s the essence of administrative tyranny, as Arendt discussed in great detail in The Origins of Totalitarianism.
Here’s the FDA’s nightmare scenario – accountability:
In contrast, FDA has a strong institutional interest in having this Court withhold
review. If any person who could construe an FDA regulation in a manner that was
unconstitutional or in excess of the agency’s statutory authority could bring suit against
FDA, then FDA—and the courts—would be required to devote a substantial proportion
of their resources to litigate—and decide—those hypothetical cases. Dedicating scarce
judicial and agency resources to theoretical disputes would necessarily leave the courts
with less time to resolve actual cases and leave FDA to devote less time to protecting
the public health.
Sounds good to me. I don’t think you’d be dragged into court so many times if you actually did your job as public servants instead of assaulting the people on behalf of anti-sovereign corporations.
Starting on p.16 they claim to be above enjoinment prior to enforcement. Only once enforcement is underway can it be challenged. As with previous arguments, this has been mooted by this summer’s enforcement actions. Enforcement is now at full sail. How much of this brief hasn’t the government already retracted with its actions? It would be easier to list the parts that even could still be logically argued.
There’s more weaselly assertions of sham ”authority” and unaccountability. I’ll just single out (p. 20-21) the “honesty and fair dealing” scam. Compare this sleazy marketing with the FDA’s hostility toward both forms of truth-in-labeling
: They refuse to order GMO labels, and they wish to censor GMO-Free labels. So here again, since it’s proven that the FDA is not a ”fair and honest” dealer, their alleged authority is invalid according to their own argument.
Undaunted, on p. 21 the bureaucrats beg for “deference”. Speaking with common sense, I’d say by now the record is clear that the FDA’s actions and intent are entitled to nothing but suspicion.
Starting on p. 24 we get to the core of the tyrannical ideology, the assault in principle on due process and the integrity of the constitution.
a. There is No Absolute Right to Consume or Feed Children Any
This is phrased tendentiously. The FDA itself cites a court decision prohibiting “unwarranted” restrictions. So they concede that there is an absolute right to any particular food unless there’s a legitimate warrant to abridge that right. Contrary to the contention of their bureaucrat ideology, the burden is on them to claim such a warrant, not upon the American people to prove it invalid.
Going beyond this, are the bureaucrats who wrote this so immersed in the autocratic administrative mindset that they really can’t see the truth, that the right to food freedom is so obvious, no one in 1788 who wanted to be taken as sane would’ve suggested it be written into the Constitution? Even the idea that freedom of the press or to due process had to be written down was subject to controversy. That freedom to choose one’s food had to be written down was simply beyond anyone’s ken. Until our own “enlightened” times.
Here’s my favorite passage in the whole thing:
But there is no “deeply rooted” historical tradition of unfettered access to
food of all kinds. To the contrary, society’s long
history of food regulation stretches back to the dietary laws of biblical times. See Peter
Barton Hutt & Peter Barton Hutt II, A History of Gov’t Regulation of Adulteration &
Misbranding of Food, 39 Food, Drug & Cosmetic Law J. 2, 3 (1984) (citing Leviticus 11,
17 and 19, and Deuteronomy 14).
They cite the Lord issuing food taboos as precedent for their own comparable authority. They claim to be on the same level as God.
At least they’re admitting their prohibitions have no scientific basis. Indeed, this implicitly admits these aren’t real “food safety” regulations, but authoritarian taboos, in this case used to enforce political and economic power instead of religious. It also highlights how the only ”tradition of fetters” is that of political and religious tyranny, the exact thing from which our true forefathers achieved independence.
b. There is No Generalized Right to Bodily and Physical Health.
Plaintiffs’ assertion of a “fundamental right to their own bodily and physical
health, which includes what foods they do and do not choose to consume for
themselves and their families” is similarly unavailing because plaintiffs do not have a
fundamental right to obtain any food they wish. In addition, courts have consistently
refused to extrapolate a generalized right to “bodily and physical health” from the
Supreme Court’s narrow substantive due process precedents regarding abortion,
intimate relations, and the refusal of lifesaving medical treatment. See Glucksberg, 521
U.S. at 721 (warning that the fact “[t]hat many of the rights and liberties protected by the
Due Process Clause sound in personal autonomy does not warrant the sweeping
conclusion that any and all important, intimate, and personal decisions are so
protected”); see also Cowan v. United States, 5 F. Supp. 2d 1235, 1242 (N.D. Okla.
1998) (rejecting a claim that the plaintiff had the fundamental “right to take whatever
treatment he wishes due to his terminal condition regardless of whether the FDA
approves the treatment”). Finally, even if such a right did exist, it would not render
FDA’s regulations unconstitutional because prohibiting the interstate sale and
distribution of unpasteurized milk promotes “bodily and physical health.”
This again is obviously false. The proposition that one could have freedom of speech where one’s health makes that possible, but have no right to seek the underlying health, is philosophically bizarre and logically invalid. As everywhere else in life, if a contingency isn’t stipulated, then if you will the end, you must will the means. Good health is the necessary condition for a healthful state for all citizen and human rights. (I speak of the citizenry and humanity as a whole, not necessarily each and every individual; but for the species to flourish, each individual must have the freedom to seek.) So it follows that we have the underlying right to pursue health. It’s implicit in the pursuit of happiness, which also isn’t explicated in the written Constitution, but lies at the core of the sovereign people’s constitution.
And to descend again to the nuts and bolts, the bureaucratic assertion that unpasteurized milk is harmful is not only asserted without evidence, but the evidence proves that the FDA’s (and USDA’s) refusal to sufficiently regulate big producers like Wright Eggs is an infinitely more dangerous threat. Here the FDA is a rogue acting against this “bodily and physical health.”
c. There is No Fundamental Right to Freedom of Contract.
It’s ironic that they cite Lochner
as a discredited un-precedent, when these actions (and bills) are just Lochner
by other means. The point of society eventually rejecting Lochner
was to reject predatory “contracts”. That’s no precedent for the government assailing true contracts between equals. The pivotal difference is whether or not something is a predatory contract of adhesion
. It was true of Lochner
“contracts”, but it’s false when applied to the raw milk co-ops.
And now we get to the big finale:
5. FDA’s Regulations Rationally Advance the Agency’s Public Health
Because the interests asserted by plaintiffs are not fundamental rights, FDA’s
regulations are not subject to strict scrutiny. Instead, plaintiffs have the burden of
showing that the regulations do not bear a rational relationship to legitimate
This is completely upside down! It’s not we the people who have to prove the government is wrong, but the government, in theory our “public servant”, which has to prove it is correct in any given case. But that inversion of truth and lie, morality and immorality, is all too typical of today’s kleptocratic government.
The finish up by repeating their lies about the “risk” of raw milk and the ”rationality” of the government restrictions. But we know the only danger is to corporate Big Dairy, and the only pseudo-rationality here is that of power and greed.
All this lays bare the FDA and government’s sweeping mindset regarding power and prerogative and contemptuous attitude toward the people. And then this summer’s raw milk persecution
proves their aggressive intent, and reveals their preferred tactics.
how the flunkeys of corporate dairy have admitted the real provenance of these enforcement actions.
Recently in Massachusetts, for example, the state’s Department of Agricultural Resources (MDAR) has been targeting raw milk buying clubs that purchase raw milk from rural dairy farms and have it delivered to urban drop-off points where many of the customers live. Raw milk sales are legal in Massachusetts as long as they are done at the farm, and the state has long tolerated buying clubs, which are convenient for customers and technically perfectly legal.
But this situation now seems to have changed. MDAR recently sent cease-and-desist letters to four buying clubs even though there is no Massachusetts law that prohibits their existence. When club members challenged the legitimacy of the warnings, MDAR decided to propose a new regulation to specifically outlaw buying clubs.
Scott Soares, a Massachusetts legislator who is friends with the MDAR commissioner, held a preliminary meeting in advance of the May 10th proposal hearing to discuss the matter with interested parties. Fifteen educated and passionate consumers and farmers of raw milk showed up to challenge Soares, who ended up revealing to them that “large dairy producers” had contacted him to push for raw milk restrictions.
To make matters worse, it was revealed that Soares failed to follow proper protocol by not opening a docket to keep a record of all interactions relating to the proposal. So not only did Soares reveal that he’s basically bowing to political pressure from Big Dairy by supporting the restrictions, but he’s also violating proper legislative procedure in the process.
So what we have here is a classic case of a large and powerful industry pushing government regulators to outlaw competing products so that it can monopolize the market. It’s the same thing that Big Pharma does in getting the FDA to destroy nutritional supplement companies. But now it’s happening with raw milk, too.
What’s next? Will all farmer’s markets be outlawed because the veggies haven’t all been irradiated or pasteurized?
As usual, it’s all about the money, and as you follow the money trail all the way up to the federal level, you find the same thing happening everywhere: At the FDA, USDA, FTC and so on. U.S. government regulators have become monopoly market enforcers for Big Business, and they won’t let anything get in their way… not even personal health freedoms or just basic access to food.
I’m sensing a Gandhi moment coming on here. Somebody is going to have a powerful public demonstration against tyranny by drinking raw milk in the same way that Gandhi led his followers to harvesting salt. People have a natural-born right to real food, and the FDA is violating human rights by attacking producers of raw milk.
Lawlessness, corruption, monopoly. Motive, intent, opportunity, and crime. We put all this together, the openly proclaimed ideology of the government, its aggressive lawlessness in its enforcement actions, and the language and substance of the pending food bill, and we can conclude that the intent is totalitarian. The purpose of the food bill is to render this FDA, the holder of this ideology, more empowered to pursue the kind of action we saw in this summer’s raw milk raids. But since the bill is focused not on dairy but on produce, we must conclude that raw milk is just the template for persecution, while the real frontier for repressive action is against fruits and vegetables themselves.
This is a fight for political freedom and economic self-determination. Our enemies want to destroy freedom for the sake of power, and even more for the sake of economic domination. We’re trying to find ways to first survive at all, and then to redeem our economic freedom and prosperity and our political democracy. We’re trying to do this through the ways of relocalization, decentralization, sustainability. But this is a mortal threat to the corporate power and an insult to the central government power. The violence of their reaction proves the righteousness and efficacy of our action. They will try to prevent our resurrection by force. We must not let them. Their way has been proven a complete and hideous failure. Theirs is history’s worst record of practical destruction, moral turpitude, and spiritual devastation. We fight for the real achievement and fulfillment of the human promise. We fight against those who wish to quench this promise forever.
Our major action must be outside the system. We’re already doing this, as we seek to relocalize our food production, our economies, and our polities. But at the moment we can perhaps also do some targeted good within the system. Citizen pressure already helped improve
the Senate version of the food bill, so we should continue keeping up this pressure. Farm-to-Consumer has a petition page
where the people can demand passage of a bill ending all interstate restrictions on raw milk.
Finally, we should ponder how truly effective pressure groups like the NRA work. Surely if people can be so motivated to support and punish based on a politician’s support for or attack on gun rights, we could muster the same fervor where it comes to our own food.
But in the end any dealings within the system are stopgaps. There’s only one way to recover our food freedom, just as there’s only one way to recover all our freedoms. That’s not to look to leaders, and definitely not to look to politicians, but to look to ourselves. We must live these freedoms, every day, relentlessly, with assurance and confidence, cooperating and striving to make them real. Only that will in the end crush the resistance of corporate and government elites, who are really puny little things, however big a fist they momentarily seem to wield. In the long run the size of that fist is proportional to our willingness to fear and submit, and inversely proportional to our resolution and our unquenchable will to live, as undyingly expressed every day through our living action.