The latest attempt at legislating unregulated raw milk and milk product sales died in the Maine Senate in April, but the issue itself lives on and will for the forseeable future.

This is one of those Hungry Goldilocks dilemmas – the bill, as put forward by Rep. William Noon, D-Sanford, and amended (and again and again in committee), was too liberal for some, too conservative for others, and ultimately not quite right for the majority. And this week, on Tuesday, the Maine Supreme Judicial Court will hear oral arguments on the case of Dan Brown, a Blue Hill farmer and food sovereignty supporter who was shut down by the state and still disputes whether his raw milk should have been subject to any regulation.

The issue is not about whether the Maine consumer with a craving for the high-fat, unpasteurized product can obtain raw milk or cheese made from it. That is, relatively speaking, easy. Ten states allow the retail sale of raw milk, Maine among them. (It’s flat-out illegal in 10 states; the others have various, more restrictive permutations allowing sales or turning a legislative blind eye.) I can get raw milk at my favorite farm or my farmers market, where a gallon costs about $8. It might feel like contraband, but it’s not.

But here is the catch, a provision that is good or bad depending on your viewpoint about the safety of raw milk. The raw milk I buy comes from producers who have paid to be licensed and who can, at any time, be visited by a state inspector. It’s a cheap license, but some dairy farmers object to it; they say implementing its provisions is prohibitive.

Noon’s bill attempted to set guidelines for exemptions to the current licensing arrangement. He himself is a licensed producer of raw milk, so he is sympathetic to producers’ needs. He thought he’d tailored the bill for swift passage, working with the Department of Agriculture and writing it with Gov. Paul LePage in mind. Last year LePage vetoed a similar bill that would have allowed unlicensed sales at farms and farmers’ markets, saying he wasn’t comfortable with the farmers’ market piece of it.

That’s why Noon left the farmers’ market out of it; his bill would have allowed raw milk and raw milk products to be sold on the farms where they were produced, as long as farms did not advertise or solicit sales and the consumers understood what they were buying (the legislation required that each container be labeled as “produced at a facility that is exempt from licensing and inspection by the State of Maine”). In other words, the customer would have to find the farmer. Also the consumer would have been allowed to inspect the premises. An amendment would have required producers to take a course through the University of Maine in basic sanitation.

Alternatively, the producer could get a license. For $25 per year the Maine Department of Agriculture, Conservation and Forestry issues licenses to producers; it tests the milk roughly monthly for possible bacterial contamination, and tests water quality twice a year. For cheesemaker Eric Rector, who owns and operates the Monroe Cheese Studio and is president of the Maine Cheese Guild, this seems better than reasonable.

“It’s a very big bargain,” Rector said. “And the beauty of the Maine inspectors is, they do not immediately shut you down,” he added. “You’ve got a hot test? They say, ‘Let’s test again to make sure,’ and if it is still positive they say ‘Let’s look at the process and see what is going on.’” The inspectors work with the producer until the milk is safe to sell again.

He called Maine “incredibly progressive” in regard to licensing raw milk. Get Rector going on the topic of “Farmer Brown” and the food sovereignty movement and his indignation is apparent. “They tell vast untruths,” he said. “If you believed what they said at those hearings you would believe that the state does not allow sales in any way, at all.”

There are 150 licensed raw milk producers in Maine, said Ron Dyer, the Director of Quality Assurance and Regulations for the state’s agriculture department. Ten years ago, he said there were about 40. “We are always looking for ways to support small dairy,” Dyer said. “And the numbers prove us out. It’s quite a boom.”

Rector uses raw milk himself to give his cheese depth and flavor. He believes in licensing for safety’s sake. And for business reasons, he’d like to see all sellers of raw milk licensed. If someone gets sick or dies from drinking unlicensed raw milk carrying bacteria like Salmonella, E. coli, or Listeria, it could have an impact on him and other members of the Maine Cheese Guild who also use raw milk. “We might be painted with a broad brush,” he said.

But the licenses do come with restrictions. Pulling up a bottle to Bessie’s teat, filling up and handing it to a paying customer isn’t going to fly. To get the license, Maine requires some sanitation measures, including a floor that can be washed down, stainless steel tanks, the right refrigeration conditions and running hot water.

“That’s where they balk,” said Jim Dill, the chair of the Agriculture, Conservation and Forestry committee. In testimony, the committee heard from producers who found the costs associated with these measures prohibitive. “One person would say, ‘I can do that for a $1,000,’” Dill said. “And then another person stands up and says, ‘Oh no, that would take me $15,000.’”

Gary Cox is the attorney representing Dan Brown, the farmer who got into trouble with the state in 2011 for selling unlicensed raw milk at the Blue Hill farmers market. He’s based in Ohio but is working on Brown’s case on behalf of the Farm-to-Consumer Legal Defense Fund. He said Brown consulted with contractors and concluded that bringing his facility up to state standards would have cost him $65,000.

According to Cox, Brown is on the verge of bankruptcy. Cox appealed to the Supreme Court on Brown’s behalf, saying that the state switched gears on Brown after telling him he could sell raw milk without a license in 2006 as long as he didn’t solicit sales or advertise. He did so for five years, happily, and then in 2011 was told he needed a license. Tests of his product at that time showed excessive levels of bacteria, although Cox said the state did not present any evidence it caused any harm.

“They were treating Dan like Shaw’s or Hannaford, even though he sold products right from his farm,” Cox said.

Brown’s situation – fined $1,000 and no longer able to run his farm stand because of state intervention – has made him something of a rallying force for the food sovereignty movement. Ten towns in Maine have declared themselves unbound from state or federal regulations if farmers or producers are selling directly to consumers.

Brown is lobstering now but would like to go back to farming, Cox said.

A bill like Noon’s might have made it easier for him to do so. Noon was recently diagnosed with a blood cancer and had to travel to Boston for treatments as the session was nearing its close. Conditions kept getting added to the bill, and as they were, Noon lost key supporters.

“That is the kind of thing that goes down in the end,” Noon said. “You’ve got to be right there saying ‘Come on. Let’s stick together on this.’”

Dill, who voted against the bill, pointed out that the farther Maine goes out on a limb to protect the right to sell without regulation, the more the state risks drawing the attention of the FDA, no fan of raw milk.

“Maybe the feds would step in and either inspect it themselves or shut down the whole raw milk industry,” Dill said. So better safe than sorry. But expect another round in the hot raw milk debate, come the 127th Maine Legislature.

“I would expect that it would probably be worked again and come back next year,” Dill said.

Contact Mary Pols at 791-6456 or at:

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