|A Raw Deal
ALTHOUGH SELLING RAW milk is illegal in Wisconsin, that fact doesn’t stop plenty of people from buying, selling, and drinking it. Many of those transactions are overlooked, but there are some sellers around the state who have come under fire from the state agency that regulates farming and food regulations.
One of those sellers, a private food club operating out of Viroqua, is fighting back.
Max Kane runs a private food club selling raw milk, cheese, butter and other products. He sells his products to members of Belle’s Lunchbox, which operates in the Chicago area. Kane doesn’t believe in the laws governing food safety and production and he is convinced that the constitution protects his rights to sell milk.
The club is coming under intense scrutiny from the Wisconsin Attorney General’s office, which has subpoenaed Kane, asking him to provide names, addresses and other information about all his clients with Belle’s Lunchbox. Kane is refusing to do so, saying that the subpoena is asking him to incriminate himself, thereby depriving him of his constitutional rights. The standoff came to a head on June 18, at the Vernon County Courthouse.
Call it the deposition that wasn’t. Kane was summoned by subpoena to appear before assistant Attorney General for Wisconsin, Phillip Ferris to provide testimony in the deposition. Wisconsin’s Department of Justice (DOJ) is investigating on behalf of the Department of Agriculture, Trade and Consumer Protection (DATCP) possible violations committed by Belle’s Lunchbox.
Cheryl Daniels, DATCP’s assistant legal counsel and Jacqueline Owens, field services director for DATCP’s Bureau of Food Safety and Inspection were also present.
There were other area raw milk farmers and Kane’s own “Raw Milk Party” members were also present to record the proceedings with a digital video camera.
Each side came with their own agenda. DATCP wanted Kane to answer questions pertinent to the investigation and Kane wanted those present to recognize his constitutional rights. In the end, both sides could only agree on one thing – no one was getting what they wanted.
DRINK to your health
As the founder of the “Raw Milk Party,” Kane has committed his life to spreading the word on the health benefits of raw milk products. He runs Belle’s Lunchbox as a way to help spread the word about its benefits by giving members the opportunity to taste and see for themselves exactly how raw milk can do a body good.
This past winter, he took his raw milk message on the road. In an attempt to raise money for a documentary on raw milk, Kane rode his bicycle from coast to coast, living off the kindness of raw milk farmers along the way.
“This bike ride is my way of expressing what I believe in,” he said at the time. “Right now there’s a huge social shift in the country where people are becoming more awake as far as organic and healthy foods are concerned. I think raw dairy goes hand in hand with organic.”
Early in life, Kane suffered from what he calls “a toxic gut,” but after discovering the health benefits of raw dairy products his gut—and his health in general—made a remarkable recovery.
In fact, these days he swears by raw milk. But at his June 18 deposition, he swore by something equally beneficial to the body politic.
Mason jar mission
Though he toted a mason jar of raw milk to the deposition and at one point placed it on the table as a silent reminder of his mission, Kane came to the deposition to talk instead about his constitutional rights—and he stood firmly on them throughout the nearly hour-long meeting.
Even before Kane and Ferris sat down at the table in the conference room on the court house’s second floor, the meeting soured quickly. The two sides couldn’t even agree on which side of the table to sit as they shuffled seats around to accommodate Kane’s preference for facing all three representatives from DATCAP and the DOJ.
“I’m going to need to see a chiropractor after sitting in this chair,” Kane complained.
It wasn’t just the seats which became uncomfortable. As Ferris began handing around a sheet for all present to sign, Kane challenged the DOJ’s request to identify witnesses present. Ferris tried to explain.
“My view is that if you know everyone on my side I should know who is present today,” Ferris said. “That seems only fair, doesn’t it?”
“I’d like to state off the record that the people here are not witnesses but observers,” Kane replied. “They’re
here of their own accord and they have the right to do so.”
Ill in Ill.
According to DATCP’s public information officer Donna Gilson, the DOJ investigation is the result of a report from an unidentified Illinois resident “whom it was believed was ill due to drinking raw milk that had organisms in it causing the illness.”
Gilson also says that after the milk was traced to farms in Wisconsin, a local veterinarian tested the farm’s cows for brucellosis—a food-borne disease usually associated with raw milk—and tuberculosis.
“One of (DATCP)’s Animal Health Division veterinarians was called in to administer confirmatory testing,” she adds. “That testing came up negative for brucellosis and TB but information given to the AH vet from one of the farmers linked his milk to Max Kane and Belle’s Lunchbox.”
While DATCP finds raw milk generally suspect, Gilson says that in this specific case, the department is not concerned with inherent safety of raw milk but violations of various state statutes and administrative rules.
According to a copy of the Kane’s subpoena obtained by the Kickapoo Free Press, DATCP is investigating whether Kane’s private club violated state statutes on the regulation of dairy products (Chap. 97) and the marketing and trade practices involving dairy products (Chap. 100.) In addition, DATCP is also investigating whether the club violated ATCP administrative rules for selling raw milk (ATCP Chap. 60) and contracting to milk producers (ATCP Chap. 100).
The meeting came to a standstill after Kane insisted on his constitutional rights and he and Ferris could reach no agreement on the issue.
“I’d like you to point where in this document, the (US and Wisconsin state) constitutions that you swore an oath to uphold, where do you have the power to bring me in here to testify against myself under threat, duress or coercion?” Kane said, “which are obviously displayed in the subpoenas that you sent me in bold print telling me that I would be jailed and fined if I don’t forfeit my constitutional rights.”
Hanging on the wall behind Ferris was a facsimile copy of the Declaration of Independence and Kane used it to his advantage.
“This document is here for a reason,” he pointed out. “And until you can show me the authority I’m not going to move forward in any way.”
Repeatedly throughout the course of the meeting, Ferris asked Kane if he would like to file a declaratory judgment – allowing a Vernon County judge to decide whether DATCP’s subpoena was constitutional.
“If you’re going to assert your constitutional rights, including the right not to testify against yourself, and as a result you decide you’re not going to answer any questions, then we can stop this deposition right now,” Ferris said. “We’ll file a declaratory judgment. You can make your arguments to the judge, and I’ll make my arguments to the judge, and we’ll let the courts decide
whether or not this (deposition) is constitutional and appropriate to go forward under the laws and statutes of the state of Wisconsin as well as the laws of the federal constitution.”
Citing state statutes which permit the holding of hearings and preliminary investigations (Chap. 93.14-16), Ferris also stuck to his guns and there the case stands to this day.
Raw milk, raw power
After the meeting, Kane said that “raw milk speaks for itself…when you drink raw milk, there’s a promise, and it lives up to its claim and that’s what generates the movement behind it.”
But the meeting was not, as far as he was concerned, about raw milk—but about corralling the raw power of the government.
“It could be about raw milk, it could be about marijuana, it could be about which way you want to tie your shoe laces,” he says. “It doesn’t matter, though, because they swore the oath (to uphold the constitutions) and they’re not living up to it.”
Kane refused to say what he thought had instigated the subpoena for his deposition.
“I’m not going to comment on what provoked (the investigation),” he says. “The only fair way to ask that question is to direct it to (Ferris). Anything we’re going to say is just hearsay and won’t be worth publishing.”