ONTARIO’S RAW MILK producers are essentially in the same position today as the province’s paralegals used to be. Despite last week’s victory by Michael Schmidt, they remain at risk of prosecution because of laws either restricting or banning their activity altogether.
After decades during which unregulated paralegals challenged laws barring them from doing work reserved for lawyers, the Province finally agreed to permit them to perform a fairly wide range of legal services, but only if they subjected themselves to regulation by the Law Society of Upper Canada.
The legislative policy change seems to be working well, with most if not all the province’s paralegals now law society licensees and new entrants being required to complete community college courses. Client complaints against the more than 2,000 licensed paralegals have been amazingly few.
When it comes to the matter of raw milk, laws in Ontario and elsewhere in Canada currently bar its sale, but in the wake of last week’s ruling by a justice of the peace in Newmarket, non-farmers can at least temporarily acquire raw milk by purchasing shares in producing cows at Mr. Schmidt’s farm and a few others in the province.
In dismissing charges alleging that Mr. Schmidt was breaking the Ontario Milk Act and the Health Protection and Promotion Act, JP Paul Kowarsky simply found that the laws as they stand don’t ban cow-sharing.
The decision clearly leaves the provincial government with several choices, and in a knee-jerk reaction last Friday, the Toronto Star published an editorial simply urging the government to appeal the ruling.
The editorialist could not have given any serious thought to the potential ramifications of the government making that choice.
One obvious one would be a long period of uncertainty, as the complex legal issues wended their way through the courts, potentially leading to a decision by the Supreme Court of Canada.
Another would be a decision by other Ontario dairy farmers to get on the Schmidt bandwagon, with thousands of Ontarians signing up in the belief the raw milk is just another form of pesticide free organic food.
But in the absence of any regulation, another potential consequence would be serious illness and even death from raw milk produced in unsanitary conditions.
A second choice the government might make would be simply to change the existing laws to outlaw the cowsharing. But that would carry with it the risk that Mr. Schmidt and others would devise some other means of meeting a fairly obvious consumer demand.
Vastly preferable would be a third choice: careful regulation.
That option could involve simply adopting legislation already found in California, Washington and several other U.S. states that permits the sale of raw milk by licensed producers and retailers who are subject to tough regulation.
Although there’s a mountain of evidence that pasteurization has made milk a much safer commodity, supporters of raw milk contend that it has better flavour and provides health benefits, among them improvements in the body’s immune system resulting from exposure to low levels of pathogens.
To us, it’s both passing strange and wholly unacceptable that raw milk sales should be banned altogether at a time when tobacco products known to cause cancer and other illnesses can be sold, legally consumed by young adults and used by vast numbers of teenagers.
Let’s face it, conditions have changed a lot since pasteurized milk was introduced in the late 19th Century and the current laws requiring it were enacted in Ontario.
In today’s circumstances it should be possible to devise a regulatory scheme under which licensed dairy farmers would have to adhere to the strictest conceivable sanitation rules, including daily provision of samples of their raw milk, and suspension of their licences whenever testing shows bacterial counts above the amounts allowable.
The regulation should also extend to packaging and transportation of the milk, and labeling of the product both as to its potential risks and the need for immediate refrigeration and speedy consumption.
Obviously, such tough regulation would be costly, and the costs would have to be passed on to the consumer, making raw milk a lot more expensive than the pasteurized alternative.
However, since that’s already the case with most, if not all, products carrying the “organic” label, there’s little doubt that a significant minority of supermarket shoppers would opt for the raw alternative.
One of the most interesting aspects of the litigation before and since the Ministry of Natural Resources raid on the Schmidt farm in 2006 is the fact there hasn’t been a shred of evidence of any ill effects from consuming the farm’s products, no doubt thanks to Mr. Schmidt’s self-regulation. (The JP noted that public health tests of the Schmidt milk products showed “no disease,” and the Crown had produced no evidence of anyone getting sick.)
So why not just regulate, and give consumers one more choice?
Cow sharers see ruling as raw milk precedent
Members of a controversial Lower Mainland raw milk co-op hope an Ontario court ruling will force B.C. health officials to stop trying to stamp out their use of unpasteurized dairy products.
The Fraser Health Authority is in B.C. Supreme Court next Monday seeking a court injunction to block the packaging and distribution of raw milk and other products from Home On The Range dairy in Chilliwack to its 400 members around the region.
It's illegal to sell unpasteurized milk in B.C., but not for farmers to drink it, so the cow-sharing scheme skirts the law by charging not for the milk but for shares in the operation, which give members a flow of milky dividends.
The Ontario ruling found a similar cow-share model where nobody pays directly for the milk does not violate health regulations there.
Gordon Watson, a Home On The Range member who is defending the operation in court, said it's a precedent that leaves Fraser Health with no jurisdiction to seek an injunction.
"What it does is it protects our cow share from the health authorities," he said.
Because the ruling accepts the co-op structure as creating a wall between the general public and those who want to be members, Watson said, the Public Health Act does not apply to the cow share.
"The rules for public health don't apply to that private situation."
Fraser Health spokesperson Joan Marshall said the authority is studying the Ontario ruling but the injunction application is going forward.
The Ontario ruling has fanned hopes among raw milk enthusiasts there that more cow shares could be set up and those now operating underground could do so more openly.
Home On The Range has continued distributing milk despite what provincial health officials say were extremely high fecal coliform counts in some samples of raw milk seized and tested in December.
The investigation was triggered by one case of sickness in a young girl from the Fraser Valley, who has since recovered.
Fraser Health had previously issued orders to the dairy to cease distributing to members. Several commercial outlets have stopped serving as distribution points.
Those who drink unpasteurized milk believe it conveys probiotic and other health benefits, but officials maintain any benefits are far outweighed by the elevated risks of bacterial infection.
Watson states in his legal filing that cow share members believe "that fresh whole unadulterated raw milk is necessary for our health."
Raw milk can be sold in the majority of U.S. states, including Washington, and can legally be brought into B.C.
He also contends enforcement here is an attempt to block outside competition for milk producers in the mainstream "dairy cartel."
"Consumers are now farming co-operatively after losing confidence in what comes out of factory farms," his filing said, adding government enforcement against cow shares is effectively imposing communism by bolstering a "Stalinist model of a centrally dictated food system."
By Jeff Nagel - BC Local News
Published: January 27, 2010 1:00 PM
Updated: January 27, 2010 1:01 PM