PORTLAND, Maine — A Blue Hill farmer’s fight to sell raw milk and other food items from a farm stand and at a local farmers market moves Tuesday to the Maine Supreme Judicial Court, but he won’t be alone.
Dan Brown of Gravelwood Farm is appealing a decision by Superior Court Justice Ann Murray that he sold milk without a license, sold unpasteurized or “raw” milk without marking it and operated a food establishment without a license.
He will be joined by other small farmers before oral arguments begin at a 10 a.m. press conference outside the Cumberland County Courthouse. Supporters of the Blue Hill farmer have organized under the name, “We are all Dan Brown,” which is part of the Green Initiatives Education Fund and Food for Maine’s Future, according to a Facebook post.
The major conflict outlined in briefs filed by Brown’s attorneys and lawyers for the state centers on the concept of Home Rule, outlined in the state’s Constitution. The central question for the justices is: Does Blue Hill’s local ordinance, passed in 2011, that allows farmers to sell products directly to consumers exempt him from state licensing requirements?
Home rule permits municipalities to enact their own regulations when permitted to do so by the Legislature, so long as the regulation “is not denied expressly or by clear implication,” according to briefs filed in the appeal.
While lawmakers carved out an exception for small farmers who sell produce at farm stands and farmers markets, the state excluded milk products, making it clear that “the legislative intent [is] that milk products be subject to stricter regulations than other products.”
Murray ordered Brown to stop selling raw milk and other products produced on the farm. She also ordered the farmer to pay $132.86 in court costs and $1,000 in penalties. His attorneys appealed the decision in June.
Brown began selling raw milk in 2006 from a farm stand located on his property, according to a previously published report. An 8-by-11-inch sign stated that the milk was “raw.” He also sold his products at farmers markets after Blue Hill adopted its Local Food and Community Self Governance Ordinance in 2011.
The Blue Hill farmer has claimed he was told in 2006 by state officials that he did not need to be licensed to sell raw milk from his farm. That changed in 2009, when the regulation of the dairy industry was transferred from the Division of Animal Health to the Division of Quality Assurance and Regulations of the Maine Department of Agriculture, according to the brief filed by Brown’s attorney Sandra Hylander Collier of Ellsworth.
When the regulatory dairy inspection program was transferred from one division to the other, the department “changed its interpretation of the law,” Collier wrote. Brown was informed by letter that he would have to obtain a license.
He continued to sell raw milk at his farm until Sept. 15, 2011, when a letter from the department was hand delivered to him telling him he had to obtain a license to sell raw milk at his farm, the brief said. Brown believed it would have cost him $62,500 to comply with the regulatory requirements to be licensed, which he could not afford.
“The Town of Blue Hill Ordinance is preempted by [state statutes] because its provisions directly conflict with and frustrate the public health purposes of those statutes, which create licensing and inspection requirements to protect the public from unsafe milk and food products,” Assistant Attorney General Mark Randlett said in his brief.
Both sides agree that no one has reported becoming ill after consuming Brown’s products.
Small farmers around the state have rallied around Brown.
“We are farmers who are supported by our friends and our neighbors who know us and trust us, and want to ensure that they maintain access to their chosen food supply… We are all Farmer Brown,” Heather Retberg of Quills End Farm in Penobscot and organizer for the Food Sovereignty movement, said in an announcement about Tuesday’s rally on Facebook.
There is no timetable under which justices must issue a decision.
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