March 12, 2010
Appellate Division Supports State’s Regulatory Jurisdictionrelating to The Sale Of Raw Milk
Court’s Unanimous Decision Uphold’s Previous Judgment in Meadowsweet Case
New York State Agriculture Commissioner Patrick Hooker today commended the decision of the Appellate Division Third Department of New York State Supreme Court dismissing Meadowsweet Dairy LLC’s challenge to the Department’s jurisdiction over and regulation of the farm’s raw milk operation, upholding the November 2008 judgment of the Supreme Court Albany County.
“Raw milk does not provide the protection of pasteurization, and while New York allows the sale of raw milk on permitted farms, regulations are in place in order to help ensure the safety of what some consider a high-risk food,” the Commissioner said. “I greatly appreciate this Court reaffirming what the others before it have found in that this farm is not exempt from our regulations that are in place to help protect public health.”
Meadowsweet had argued that it was not subject to regulation because its operations were confined to its members and there was no sale of raw milk and raw milk products to them. In a unanimous decision, the Appellate Division rejected Meadowsweet’s appeal in a seven page memorandum decision and order finding that:
1. New York’s Agriculture and Markets Law grants the Department broad authority over farms which produce dairy products and food generally and that authority is not limited to food offered for sale, but also includes food given away. Since Meadowsweet must either sell or give away its products, it is subject to regulation and, the Court said, the Department properly exercised that authority and may continue to do so.
2. Meadowsweet operates a milk plant and must obtain a milk plant permit from the Department. The Court said that a milk plant receives milk products and makes milk products, and therefore the milk plant must hold a milk plant permit. In this instance the milk plant received raw milk from Meadowsweet and made raw milk butter, raw milk cheese and raw milk keifer.
3. Meadowsweet must obtain a raw milk permit from the Department because the Court said Meadowsweet, in effect, sold its raw milk to its members. The Court looked at Meadowsweet’s operation and said, “The financial arrangements [of Meadowsweet] appear…to have been purposely designed to avoid cash sales of dairy products in an attempt to circumvent the Department’s regulations.”
The Court noted that Meadowsweet’s members pay to it a quarterly contribution reflecting the member’s consumption of dairy products in the quarter and that Meadowsweet’s brochure lists different prices for different types of products. The value of the products the member received was deducted from this quarterly contribution. Thus, the Court said, “this arrangement appears to be a system of prepayment for the sale of dairy products.”
The Court also said Meadowsweet would need a raw milk permit even if the raw milk was not sold because simply making its milk available to its members is within the Department’s jurisdiction.
The Court’s decision effectively ends Meadowsweet’s challenges to the Department’s regulation of its raw milk related operations. In October of 2007, the Commissioner ordered the destruction of dairy products made from raw milk by Meadowsweet as they were considered adulterated products. In 2008, Meadowsweet was ordered to either discontinue its raw milk operation or, if it chose to continue operating, obtain and maintain the required permits and approvals. Meadowsweet did not properly challenge that determination and with the Court’s decision reported on today, Meadowsweet must comply with New York’s regulation of raw milk and dairy product standards if they wish to continue operation.
New York dairy producers who sell raw milk to consumers must have a permit to do so from the New York State Department of Agriculture and Markets, must sell directly to consumers on the farm where the milk is produced and must post a notice at the point of sale indicating that raw milk does not provide the protection of pasteurization. Farms with permits to sell raw milk are inspected by the Department monthly. There are currently 26 farms permitted to sell raw milk in New York State.
Attached is a copy of the Appellate Division’s Memorandum and Order.
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