Originally published in The Weekly Packet, December 22, 2011
‘Farmer Brown’ lawyer says settlement with state unlikely
by Jonathan Thomas
It appears that the State of Maine’s lawsuit against East Blue Hill farmer Dan Brown (a.k.a. Farmer Brown) will go to trial. Brown’s lawyer Gary Cox told The Weekly Packet on December 21, “Settlement discussions have fallen through. There’s no way we can settle the case now. The state has taken the position that ‘its our way or the highway.’ There’s no compromise from their position.”
Brown, who has one dairy cow, has become the center of attention after being sued by the State of Maine for selling milk without a milk distributor’s license, for not labeling his containers as “non-pasteurized,” and operating an “unlicensed food establishment.” (See November 23 issue of The Weekly Packet.)
Cox, Brown’s lawyer, is an attorney with the Farm-to-Consumer Legal Defense Fund. The formal answer to the state’s complaint is due on Thursday, December 29.
Brown’s concern has been the negative publicity he has received regarding the quality of his milk. One four-line paragraph in the “Factual Background” section of the seven-page complaint refers to laboratory test results of samples taken by an inspector from Brown’s farm stand on July 26. One sentence reads, “The milk and cottage cheese samples, in particular, had bacteria counts ten to fifteen times greater than allowable limits.”
This information was repeated in an op-ed column by Hal Prince, director of the Division of Quality Assurance and Regulations at the Maine Department of Agriculture in the December 2 issue of the Bangor Daily News.
Earlier, in a letter dated November 23, Maine Commissioner of Agriculture Walter Whitcomb sent a letter to the National Family Farm Coalition, with copies to the governor and all four members of Maine’s congressional delegation, giving further details about the July 26 test.
Brown says he has “serious reservations about the credibility of the samples.” He said laws and regulations for testing say that the owner is to be present when the sample is taken. He said he did not learn until much later that samples had been taken, not by a dairy inspector, but by a home kitchen inspector.
When he sought an official copy of the test results, Brown learned that the samples were not delivered to the lab until the following day, and there was no legally required temperature control log showing that the samples were properly handled during its overnight transport to the lab for testing. Brown said that without a temperature control log, the samples were “useless.”
Brown also questioned the reasonableness of some of the test numbers themselves. One of the tests was for somatic cell count, which would indicate whether or not the cow has a mastitis infection. Brown said that if numbers were as high as the test result showed, the cow would have had to have been under a vet’s care, and might even have died.
Dan Brown and his wife Judy said that it was not until late September that dairy inspector Jim Bartlett came to their house and laid a packet on the counter saying it was something for them to read, and left.
In the packet they found the results of tests of samples they did not know had been taken. Brown said he does not understand why, if the results were so serious, he was not notified immediately back in July to protect the health of his customers and family.
Brown, whose previous experience included working for large commercial dairies, said he has had no reason to test because of the procedures he follows—and because of the fact that his family and the families of his three regular customers, have never had any health problems related to his products.
Brown cited his close relationship to his cow, which he raised from her birth on his farm. (The cow is nicknamed Sprocket, and is the daughter of Pilot and Rocket, animals he no longer has.)
Brown described the care he takes in the milking process, and said he is sensitive to the health and wellbeing of this one cow. When the cow is not feeling well, any milk produced is not used. He compared this to a large commercial dairy, where staff members are less likely to be aware of the condition of each cow, and any milk with potential problems may be diluted by being mixed with milk from many other cows.
Brown said that he has made some changes since the lawsuit, such as replacing an open milk bucket with a covered bucket, using new, rather than recycled, milk bottles, and attaching labels identifying the milk as non-pasteurized.
When asked why he doesn’t get the licenses the state is asking for, Brown claims he is not a “milk distributor” as defined in one section of the statutes. Brown cites a sentence in section 2955 of Maine Revised Statutes Title 7 that reads, “No license shall be required of any person who produces or sells milk for consumption only on the premises of the producer or seller.”
Brown said it is significant that violations alleged in the lawsuit are about licensing and not the quality of his milk. He said he has no problem with his milk being regularly tested. His problem is with the cost of meeting the standards the state requires for obtaining licenses, and becoming eligible for free state testing.
Brown said state officials have told him that necessary improvements could be done for about $1,000, a figure far different from the $40,000 estimate from Cox.
Cox told The Weekly Packet that state officials declined an invitation to visit Brown’s farm to show him how inexpensive the needed improvements could be. Cox said that state officials would only visit the farm if they could use whatever they saw there as evidence against Brown in a trial. Cox said that this was unacceptable.