Oregon Raw Milk - Background

Litigation Backgrounder

Got Free Speech?

Oregon Dairy Farmer Challenges Censorship of Raw Milk Advertising
 

The Issue in a Nutshell

In Oregon, it is perfectly legal for Christine Anderson, owner of Cast Iron Farm, about an hour outside of Portland, to sell raw—that it, unpasteurized—milk . . . so long as she does not talk about it.  That is because the state flatly bans the advertisement of this lawful product.  This means Christine is prohibited from putting flyers on the bulletin board of the local health food store or price information on her farm’s website.  She is not even allowed to have a roadside sign at the farm saying, “We’ve Got Raw Milk.”  In fact, engaging in such speech would subject Christine to a fine of $6,250 and civil penalties as high as $10,000—plus a year in jail.

Oregon’s censorship of truthful commercial speech harms farmers and consumers alike.  Consumers, who increasingly seek out raw milk for its unique taste and nutritional benefits, have an incredibly difficult time finding the product because farmers are not free to promote it.  Farmers are also forbidden from promoting the safety and testing measures they undertake in producing their milk and consumers, in turn, are deprived of the ability to know exactly how a farmer’s milk is produced.  Oregon’s ban has resulted in a market where the free flow of information from farmer to consumer is not only impeded, but outlawed. 

Oregon’s farmers have a constitutional right to promote the products they offer.  That is why the Institute for Justice is joining with Christine to take on Oregon’s dairy censors.  On November 19, 2013, they filed a First Amendment challenge in federal court to strike down Oregon’s raw milk advertising ban so that farmers can freely and proudly speak about the wonderful products they have to offer.


Introduction

People have been consuming “raw,” or unpasteurized, milk for thousands of years, since the practice of raising and keeping livestock became a common custom in modern civilization.  Not until the late 1800s was the process of pasteurization advanced to address health problems caused by the increasingly intensive, confined, and industrialized farming practices of the day. 

Today, however, more and more famers and consumers are returning to tradition.  Small-scale, family farmers such as Christine Anderson of Cast Iron Farm in McMinnville, Ore., are rediscovering traditional farming methods.  Coupling these methods with modern quality controls, they are producing raw milk in a humane and safe manner.  Consumers, in turn, are rediscovering the benefits of raw milk—from its unique taste to the beneficial enzymes, vitamins and bacteria it provides, which are degraded or destroyed by pasteurization.

Oregon, like a majority of states, allows farmers to produce, and consumers to purchase, raw milk.  Bizarrely, however, the state prohibits farmers from advertising it.  That means a conscientious farmer like Christine cannot inform would-be customers about the farming practices she employs and the testing procedures she follows to provide the safest product possible.  In fact, she cannot even post the selling price of her milk.  In late 2012, the Oregon Department of Agriculture ordered here to remove price information from the Cast Iron Farm website. 

Oregon’s raw milk advertising ban harms farmers like Christine, who cannot run a successful business if they cannot talk about it.  It also harms consumers by preventing them from obtaining accurate information about legal products in the marketplace.  The U.S. Supreme Court has made clear that censorship of this sort is unconstitutional.  The First Amendment protects not only political and artistic speech, but commercial speech, as well, and government therefore cannot prohibit entrepreneurs like Christine from advertising a perfectly legal product.  

 

Raw Milk in Oregon

“Raw milk” is a generic term that refers to milk that has not undergone pasteurization—the process by which a substance is heated to kill microbes and bacteria.  Although pasteurization can kill potentially harmful bacteria and help milk keep a bit longer, it can also alter the taste of milk and inactivate, reduce or destroy some of the enzymes, vitamins, proteins and beneficial bacteria in it.[i]  An increasing number of consumers prefer the taste and nutritional benefits of raw milk.

Although the federal government prohibits the interstate sale of raw milk for human consumption,[ii] states are free to allow intrastate raw milk sales, and more than half the states in the nation allow them in some form.[iii]  Oregon is one of those states.  It allows what it terms “small-scale on-farm sales.”[iv]  Specifically, direct-to-consumer sales are allowed on-site at farms with no more than two producing dairy cows.[v] 

But there’s a catch:  Sales of raw milk are only allowed if the farmer “does not advertise the milk for sale.”[vi]  In other words, Oregon imposes an absolute ban on speech concerning a perfectly lawful product.  Were that not bad enough, violating the ban comes with a hefty price:  A farmer who speaks about the raw milk he or she produces faces a Class A misdemeanor conviction punishable by up to a year in jail, $6,250 in fines, and civil penalties up to $10,000.[vii]

 

Christine Anderson and Cast Iron Farm

Oregon’s raw milk adverting ban makes running a successful business difficult, if not impossible, for farmers like Christine Anderson.  Christine is a hardworking mother of two with a third child on the way.  She is also a seventh-generation farmer.  She owns and operates Cast Iron Farm, a small farm in McMinnville, Ore., where she and her family raise a number of different animals.  Among them is a Brown Swiss dairy cow named Willow and a Jersey named Hazel.

Christine is passionate about her cows and the milk they produce.  She is also meticulous about providing her customers the safest product possible.  That begins with treating her cows well.  For most of the year, they are kept on pasture that is rotationally grazed.  That means the cows return to a new, clean piece of ground after every milking.  The pasture contains a mixture of orchard  and timothy grass, as well as alfalfa and clover—legumes that provide high-quality nutrition to the cows and, in turn, to Christine’s customers.  From November to March, the cows are kept in a dry lot in Christine’s barn.  When they are brought to the milking parlor for milking each day, their pens are cleaned and re-bedded with fresh straw.  Even during these winter months, the cows go out to pasture a couple of times per week. 

The quality of Cast Iron Farm’s milk is attributable not only to the cows and the way Christine treats them, but also to Christine’s careful milking and bottling protocol, as well as regular testing.  Christine sends milk samples to an independent lab monthly, and she posts the test results for everyone to see.  She also keeps daily samples for a full month so that milk remains available for additional testing if the need ever arises.  

The final key to the quality milk at Cast Iron Farm is transparency.  Christine is so committed to responsible farming practices that she maintains an open-door policy at Cast Iron Farm.  There is a standing invitation to anyone who wishes to visit the farm and watch Christine care for and milk her cows. 

Christine’s meticulousness has paid off.  In fact, Cast Iron Farm is one of only four dairies listed with the Raw Milk Institute, a nationwide organization that provides training and promotes common standards to safely guide the raw milk market.

Naturally, Christine is proud of Cast Iron Farm’s milk and the measures she takes to ensure her customers get the best product possible.  She would love to be able to promote the milk and inform consumers about these measures so that they, in turn, can know exactly what they are getting when they purchase from Cast Iron Farm.   But she cannot.

 

Oregon’s Advertising Censors

In August 2012, an agent from the Oregon Department of Agriculture showed up at Cast Iron Farm to “investigate . . . raw milk advertising on a farm website.”[viii]  It turns out the Department had been perusing the farm’s website for evidence of illegal advertising and found prices that Christine had posted for her milk.  The agent instructed her to remove the information, which Christine did immediately.  Tucked away on another page of the website was additional information describing milking practices and testing procedures.  Christine later removed this information, as well, fearful that it would be construed as advertising if discovered and result in substantial fines or jail time.   

Being unable to advertise has caused significant harm to Christine and other farmers like her.  Because of the advertising ban, she cannot put up a flyer at her local health food store.  She cannot promote her milk at fairs or farmers’ markets.  In fact, she cannot even put a sign in front of Cast Iron Farm saying that it is a raw milk dairy.  There have been times when new customers have driven by the farm not knowing they were in the right place.

Then there is the fact that Christine cannot even mention the price of her milk on the farm website, in emails to customers, or anywhere else, for that matter.  This is particularly problematic when she has surplus milk.  During certain times of the year—around Christmas and the Fourth of July, for example, when many of her regular customers are traveling—Christine has a considerable amount of extra milk.  She would like to be able offer a discount during such times and send out emails to her customers who are not out of town, as well as to potential new customers, letting them know about the discount.  But because of the advertising ban, she is banned from doing so.  Instead, she winds up dumping the excess milk or feeding it to her pigs.  This is milk that consumers would be happy to purchase—if only they knew about it.

Finally, because of the advertising ban, Christine is not free to talk about how she produces her milk and the lengths she goes to in order to ensure her customers receive the highest-quality product.  Explaining why a product is unique or special is perhaps the most basic form of advertising there is, but also the most useful for a business.  Because Christine cannot engage in such speech, her business necessarily suffers.  So, too, do consumers, who, as a result, are unable to differentiate between milk that comes from Cast Iron Farm and milk that comes from some other source that may not take as much care in its operation.    

In short, farmers and consumers alike are harmed by Oregon’s senseless advertising ban . . . but not for much longer.  Christine is fighting back.

 

The First Amendment’s Protection of Christine’s Speech 

The First Amendment undoubtedly protects commercial speech.[ix]  In fact, the U.S. Supreme Court has repeatedly stressed the importance of advertising to our free enterprise system, noting that a “consumer’s interest in the free flow of commercial information . . . may be as keen, if not keener by far, than his interest in the day’s most urgent political debate.” [x]  As the Court has explained:

Advertising . . . is . . . dissemination of information as to who is producing and selling what product, for what reason, and at what price.  So long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions.  It is a matter of public interest that those decisions, in the aggregate, be intelligent and well informed.  To this end, the free flow of commercial information is indispensable.[xi] 

Given the importance of commercial speech and the protection that the First Amendment affords it, the Supreme Court has routinely struck down restrictions on the advertising of lawful products.  “[S]o long as the sale and use of [a product] is lawful,” the Court has held, the producer “has a protected interest in communicating information about it[]” and “customers have an interest in receiving that information.”[xii]  In that light, the Court has even struck down advertising restrictions on inherently dangerous or unsafe products, such as tobacco, alcohol and pharmaceuticals.[xiii]  Restricting the advertisement of a wholesome, nutritious product such as milk is all the more troublesome. 

Oregon’s regulation is particularly problematic for an additional reason:  It is an absolute ban, effecting a “complete suppression of truthful, nonmisleading commercial speech” [xiv] concerning raw milk.  Such restrictions trigger even “more stringent constitutional review,”[xv] which Oregon’s law cannot survive.

Finally, although the state of Oregon may have its own policy preference that people drink pasteurized, rather than raw, milk, the First Amendment “places limits on policy choices available to the States.” [xvi]   “[B]ans against truthful, nonmisleading commercial speech” violate those limits because they “usually rest solely on the offensive assumption that the public will respond ‘irrationally’ to the truth.” [xvii]   Government has no permissible interest in “keep[ing] legal users of a product or service ignorant in order to manipulate their choices in the marketplace,” [xviii] and the “First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good.”[xix]  

 

The Institute for Justice Team

The lead attorney in this case is Institute for Justice Senior Attorney Michael Bindas,[xx] who is also heading up IJ’s National Food Freedom Initiative.  He is joined by IJ Attorney Ari Bargil.[xxi]  Local counsel for the case is Melinda Davison of the Portland law firm Davison Van Cleve. 

Founded in 1991, IJ is the national law firm for liberty.  The Institute for Justice advances a rule of law under which individuals can control their destinies as free and responsible members of society.  To that end, IJ litigates to secure economic liberty, school choice, private property rights, freedom of speech and other vital individual liberties, and to restore constitutional limits on the power of government.

 

IJ’s National Food Freedom Initiative

Christine Anderson is part of a nationwide movement of small-scale food producers and consumers who are tired of the government making their food choices for them—of government dictating what foods they can grow, raise, eat, or, in this case, even talk about.  To end such governmental meddling in our food choices, IJ is today launching its National Food Freedom Initiative:  A nationwide campaign that will bring property rights, economic liberty and free speech challenges to laws that interfere with the ability of Americans to produce, market, procure, and consume the foods of their choice.[xxii]  In addition to Christine’s free speech challenge to Oregon’s raw milk advertising ban, IJ is filing two other cases today to inaugurate the initiative. 

The first is an economic liberty challenge to severe restrictions on “cottage food” producers in Minnesota.  The state allows entrepreneurs to make certain inherently safe foods, such as baked goods, in home kitchens, but it:  (1) prohibits the sale of such homemade foods anywhere other than farmers’ markets and community events; and (2) limits revenues to $5,000 annually, which averages only $96 per week.  IJ is challenging these restrictions under the Minnesota Constitution on behalf of cottage food entrepreneurs Jane Astramecki from Farmington, Minn. and Mara Heck from Minnestrista, Minn.  Learn more about their case at: www.ij.org/MNCottageFood.

The second is a property rights challenge to a ban on front-yard vegetable gardens in Miami Shores, Fla.  IJ is challenging that ban on behalf of Hermine Ricketts and Tom Carroll, a married couple who grew vegetables on their own property for their own consumption for nearly two decades before Miami Shores officials ordered them to tear up the very source of their sustenance.  Learn more about their case: www.ij.org/FlVeggies.

Through these and future cases, IJ’s National Food Freedom Initiative will end unreasonable and intrusive governmental interference with our food choices and usher in real food freedom for all Americans.

For more information, contact:

Shira Rawlinson
Assistant Director of Communications
Institute for Justice
901 N. Glebe Road, Suite 900
Arlington, VA  22203
(703) 682-9320, ext. 229

srawlinson@ij.org



[i] See P. Walstra et al., Dairy Technology:  Principles of Milk Properties and Processes 189, 199, 403 tbl. 14.3 (1999); Edmund Renner, “Effects of Agricultural Practices on Milk and Dairy Products,” in Nutritional Evaluation of Food Processing 210, 212 tbl. 8.6 (Endel Karmas & Robert S. Harris eds., 3d ed. 1988).

[ii] See 21 C.F.R. § 1240.61.

[iii] See Farm-to-Consumer Legal Defense Fund, State-by-State* Review of Raw Milk Laws, http://www.farmtoconsumer.org/raw_milk_map.htm.

[iv] Or. Rev. Stat. § 621.012 (section heading).

[v] Or. Rev. Stat. § 621.012(2), (3).

[vi] Or. Rev. Stat. § 621.012(1).

[vii] Or. Rev. Stat. § 621.991, .995; id. § 161.615(1), .635(1)(a); Or. Admin R. 603-024-0920.

[viii] Or. Dep’t of Agric., Inspection Report, Aug. 2, 2012 (on file with Institute for Justice).

[ix] See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 762-65 (1976).

[x] Thompson v. W. States Med. Ctr., 535 U. S. 357, 366-67 (2002) (omission in original; internal quotation marks and citation omitted).

[xi] Va. State Bd. of Pharmacy, 425 U.S. at 765.

[xii] Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 571 (2001).

[xiii] See, e.g., id. (restrictions on location of outdoor tobacco advertisements and height of point-of-sale tobacco advertisements); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (prohibition on advertising liquor prices); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (prohibition on mention of alcohol content on beer labels); Thompson, 535 U.S. 357 (prohibition on advertising compounded drugs); Va. State Bd. of Pharmacy, 425 U.S. 748 (prohibition on advertising prescription drug prices).

[xiv] 44 Liquormart, 517 U.S. at 508 (opinion of Stevens, J., joined by Kennedy, Souter, and Ginsburg, JJ.).

[xv] Id.; see also id. at 501-04 (opinion of Stevens, J., joined by Kennedy and Ginsburg, JJ.); Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 566 n.9 (1980).

[xvi] Lorillard Tobacco Co., 533 U.S. at 571.

[xvii] 44 Liquormart, 517 U.S. at 503 (opinion of Stevens, J., joined by Kennedy and Ginsburg, JJ.) (citation omitted).

[xviii] Id. at 518 (Thomas, J., concurring in part and concurring in the judgment).

[xix] Id. at 503 (opinion of Stevens, J., joined by Kennedy and Ginsburg, JJ.).

[xxii] For more information on IJ’s National Food Freedom Initiative, please visit our website at www.ij.org/FoodFreedom


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