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Dairy challenges Oregon raw milk ad ban

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Mateusz Perkowski
A small Oregon dairy producer has filed a federal lawsuit against the Oregon Department of Agriculture challenging the constitutionality of a prohibition against advertising raw milk.

A McMinnville dairy owner is challenging an Oregon ban on advertising the sale of raw milk.

Raw milk producer Christine Anderson said she’s been second-guessing herself since the Oregon Department of Agriculture told her to stop advertising her product last year.

While selling raw milk isn’t illegal in Oregon under certain conditions, state law prohibits producers from advertising it.

Since an ODA inspector told Anderson to remove information about raw milk from her farm’s website in August 2012, her free speech has been chilled, she said.

“I would love to speak freely about my milk and farm without fearing someone will construe that as advertising,” said Anderson, who owns a farm in McMinnville, Ore.

On Nov. 19, Anderson filed a lawsuit against the agency seeking to invalidate the prohibition, claiming the law violates free speech rights and is unconstitutionally vague and overbroad.

Bruce Pokarney, ODA’s communications director, said the Oregon legislature banned most raw milk sales in 1999 but created an exemption for on-farm sales from dairy producers with a small number of animals.

The prohibition on advertising was among the conditions that small producers have to follow if they wanted to sell raw milk, he said.

“This isn’t by administrative rule or anything we did. We’re just enforcing the law,” said Pokarney.

Even when commercial-scale raw milk production was allowed in Oregon, unregulated small farmers weren’t allowed to advertise by law, he said.

The lawsuit notes that advertising raw milk is a Class A misdemeanor punishable by a year in jail, a criminal fine of $6,250 and a civil penalty of $10,000.

In reality, though, the Oregon Department of Agriculture hasn’t ever issued a penalty for advertising, and only rarely asks producers to refrain from advertising, Pokarney said.

Typically, the ODA asks a producer to stop advertising if there has been a complaint or the agency becomes aware of it in relation to some other action, he said.

“We have not made it a high priority for us,” Pokarney said.

Anderson claims that the advertising ban has prevented her from reaching out to new customers when she has a milk surplus. The prohibition has also stopped her from explaining the milking, bottling and testing procedures she uses, according to the complaint.

The lawsuit claims that her Cast Iron Farm is among a select few listed with the Raw Milk Institute, a national organization that’s trying to standardize practices for raw milk production.

Properly cleaning udders and milking equipment prevents manure from getting into the milk, reducing the food safety risk, Anderson said.

Routine tests of Anderson's milk have never detected the presence of coliform bacteria, she said.

"There are people who genuinely don't understand the risks involved," Anderson said, noting that she'd like to educate the public about safety measures but is afraid of violating the advertising ban.

Selling raw milk is a viable option for her farm, which is too small to support commercial-level production of milk, she said.

Anderson said she filed the lawsuit because she doesn’t want to live in worry about promoting her farm.

“I believe banning the advertising of a legal product is a violation of the First Amendment,” she said.



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