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The Milk Warriors of British Columbia

From raids to writs, how did selling unpasteurized milk become a battle now raging all the way to BC's Supreme Court? A special report.

By Evan Duggan 24 Jan 2011 | TheTyee.ca

Evan Duggan is a Vancouver-based journalist and pursuing a Masters degree at the University of British Columbia Graduate School of Journalism.

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Michael Schmidt, left, and Alice Jongerden protest health authorities in Chilliwack, B.C. Photo: The Valley Voice.

Three agents wearing HAZMAT masks and gloves arrived at the restaurant on 1600 MacKay Road in North Vancouver flashing badges. They demanded that the staff lead them to the back. They seized some samples, and dumped the rest down the drain and down the toilet.

The agents were from the Fraser Health Authority, and the place was Barbara Schellenberg's Ethical Kitchen.

The contraband was milk. Raw milk.

A day later a second group of agents executed a similar search and destroy at Schellenberg's other location, the Controversial Kitchen on Commercial Drive in East Vancouver.

Though neither location used or sold raw milk, both offered a space for private raw milk exchanges, beyond the gaze of the authorities.

That was until Schellenberg's restaurants became targets of a country-wide crackdown on the distribution of unpasteurized milk -- a product considered hazardous by government and mainstream food scientists, but considered an immune-boosting, natural health product by raw milk enthusiasts.

Schellenberg's source of raw milk -- a Chilliwack dairy farm called Home on the Range, formerly run by Alice Jongerden and backed by more than 450 shareholders -- became the scene of another crackdown.

On her leased property in the Fraser Valley Jongerden milked 20 Jerseys, filtered the milk, jarred it, and then her husband, Bert Jongerden, would deliver it to depots throughout the Lower Mainland where shareholders could pick it up.

In the last two years the health authority served Jongerden with two cease and desists and the courts eventually charged her with contempt of court for continuing to distribute milk to the depots. She resigned as manager of Home on the Range. But the courts still found her guilty of contempt on Dec. 2.

The raw milk movement did not succumb. Instead it accelerated, and last week, on Jan. 20, Jongerden raised the fight to a new level, filing a constitutional challenge to the Supreme Court of B.C. that, were it to succeed, would change the public health act, and open the door to a legal raw milk industry.

How did British Columbia become ground zero in the battle over where the government belongs when it acts to get between what's raised on a farm, and what goes into people's bodies?

A biologist's perspective

Kevin Allen, a microbiologist at the University of British Columbia, says pasteurization -- the process of heating milk near its boiling point -- kills off milk-transmitted diseases like tuberculosis, typhus and Q fever, and extends its shelf life.

Allen says that at the beginning of the 20th century, food-related outbreaks were much higher than today, with an average of 26 documented outbreaks a year in the United States -- most caused by raw milk. By the 1980s, the U.S. suffered only a couple of raw milk-related outbreaks annually.

In the last two decades, though, raw milk-related outbreaks resurged, says Allen. As interest in the benefits of raw milk grew, more farmers started pumping it for willing drinkers. As consumption rose, so did the number of outbreaks caused by pathogens like e. coli 0157:H7, salmonella, campylobacter and Listeria monocytogenes (the same pathogen that causes problems in deli meat -- remember Maple Leaf's headache a few years ago?) These days, there are around five or six major raw milk-related outbreaks a year in the U.S.

Allen, who once worked for the food processing giant Mead Johnson testing milk quality for infant formula products, says people with weak immune systems like small children, the elderly, cancer patients or people with HIV, could get sick if they drank raw milk.

"When we look at a lot of the deaths that have actually been attributed to raw milk in the past decade, almost all of them are linked to Listeria monocytogenes," Allen says, adding that the mortality rate from that disease averages 30 per cent.

"I think we've been cooking foods since we were hunter-gatherers," he says.

Raw milk enthusiasts, many inspired by the Weston A. Price Foundation's campaign for real milk -- a raw milk advocacy initiative out of the U.S. -- believe that the benefits of raw milk greatly outweigh its dangers, though they warn that you need to trust your farmer and their milking conditions. The foundation collects a dizzying amount of literature, including a 132-page report challenging dozens of studies critical of raw milk.

The main thrust of the foundation is to show how raw milk's pro-biotic nature boosts the human immune system, and how raw milk can defend against conditions like arthritis, asthma, and digestion problems. They also link to a list of nearly 20 raw milk sources in Canada. (Most are in B.C. and Home on the Range is on the list).

"The only issue I have with those [views] is I think a lot of it is based on misconceived ideas," Allen says. As far as he knows, there hasn't been much scientific proof that raw milk is any better than pasteurized milk. He acknowledges that there are immune-boosting qualities to raw milk, but he says the antibodies are bovine in nature and probably have little effect on a person’s immune system.

"Your stomach is gonna destroy probably about 90 per cent of these things," he adds.

"I really do get the farmer's perspective," he continues. "You know the dairy farmer has been drinking this milk for decades, their families had it." (He suggests that I, having grown up on a dairy farm, probably have an unusually robust immune system since I was exposed to so many microorganisms on a regular basis.)

"You drink this milk, no issue," Allen says. "You bring me out for an afternoon to play with you -- say we're seven-year-olds -- I drink that milk and next thing you know I'm in the hospital on dialysis needing a kidney transplant."

'A real fiasco': raw milk seller Schellenberg

Schellenberg's Ethical Kitchen deli/café sits off Marine Drive in North Vancouver marked by a blue awning and a hand-painted sign advertising "Stabilizing food culture." Just beyond the patio grow corn, carrots and other vegetables near a statue of Buddha.

An old blue bus sits in the parking lot. Schellenberg wants to use it as a motor home during her trips to the family ranch and abattoir, located west of Williams Lake in the Chilcotin -- the source of many of the Ethical Kitchen’s organic meat and poultry products.

As Schellenberg closes the restaurant for the evening, she recalls the raw milk raid as "a real fiasco." She says that after the raid the authorities told her not to keep raw milk on the premises. She capitulated, but came to an agreement with the Jongerdens and let Bert continue distributing the raw milk in her parking lot.

Fraser Health said if anyone got sick then Schellenberg would be liable because it's her property, she pays the insurance. It's like she's selling it. The Jongerdens suggested she complain to the health authority that it overstepped its jurisdiction, but she resisted.

"I have a business, and I intend to stay in business," she says. "I don't want to have enemies in the health authority if I can help it."

Schellenberg parted ways with the Jongerdens -- she says they were making a spectacle out of the issue. But the health authority continued to harass her by showing up for inspections every couple of weeks.

"I was called into a meeting with [the health authority] and I was lectured about how dangerous this is," Schellenberg explains. She says she was scolded for putting the public at risk, and they warned that if she continued to do it they would have her business license revoked.

The Ethical Kitchen started getting strange phone calls, and visits from shoppers they hadn't seen before, asking about the price of the raw milk. "It seemed like they were fishing for something," Schellenberg says.

At one point, agents camped out across the street in their car watching the place. "It got to the point where we had to be rude to people [asking about raw milk], even if sometimes they turned out to be legitimate shoppers."

Healthy or hazardous?

Home on the Range is situated on Prairie Central Road, on a 24-acre leased property, tucked among some of the largest commercial dairies in the entire country. What began with a single cow in Alice Jongerden's back yard developed into an operation pumping nearly 1,800 litres of raw milk a week for private shareholders.

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Alice Jongerden with one of her Jerseys: Headed for court. Photo: E. Duggan

In June of 2008 an inspector from the Fraser Health Authority dropped by to check things out. Following the inspection, the health authority slapped Jongerden with a cease and desist order for distributing a hazardous product.

Home on the Range continued to pump milk and by December 2009, the health authority struck Jongerden with another injunction. In court, presiding Justice Miriam Gropper said there was no doubt that Jongerden breached the Public Health Act, and that it wasn't up to the courts to decide if raw milk was hazardous, (a special B.C. regulation in 2009 deemed raw milk as such).

Jongerden argued she was not providing milk for human consumption (they even wrote that on the milk jars), and she also claimed that she wasn’t distributing the milk to the public because Home on the Range was a private cow share and the milk was owned by each individual member.

Justice Gropper didn't buy it. Nor did she accept precedence from a similar Canadian case, where Michael Schmidt was acquitted of 21 charges stemming from a raid at his own cow share operation in Durham, Ontario in 2006.

In January 2010 the Ontario courts decided that Schmidt's cow share was a private operation and in no way constituted harm to the general public.

Schmidt had been advising Jongerden throughout, and hearing of the contempt charge, he could wait no longer. Fresh off his own victory (it's currently under appeal), Schmidt burst onto the B.C. raw milk scene eager to help Home on the Range, as part of his mission to carve out a safe place in the Canadian dairy industry for raw milk farmers.

A 20-year fight

Michael Schmidt looks out the window of my car as we drive past the largest dairy farm in the province, down the road from what used to be known as Home on the Range. "That's where the problems start," he says, pointing at the monolithic glass, steel and concrete structure home to more than a thousand Holsteins. Dairies like that, he suggests, are too big for their own good.

In many of B.C.'s commercial dairies, herds spend their entire lives on concrete, indoors no matter the season. That lifestyle often causes hoof problems, and despite industrial-scale efficiencies, farmers afford less time to individual cows and their needs.

Jongerden and Schmidt believe that smaller, manageable herds, like theirs, benefit from fresh air and produce a better product. In fact, cows that pasture do often render higher quality milk and lactate more times throughout their lives.

Jongerden says her shareholders appreciate personally knowing the cows and the farmer that provides the milk.

In 1990, Schmidt started a raw milk cow-lease program. At its peak, over 200 families paid into the lease to drink his milk.

"We got raided the first time in 1994," Schmidt says. At the time they had 600 acres and 50 cows. A year and a half later, after legal fees, fines, and lost revenue due to the raid, Schmidt had lost all but three cows and 100 acres.

Quickly, Schmidt regained a herd and rebuilt the business -- this time a cow share with members investing in the cows directly as part owners. This ran smoothly until 2006 when more than 20 armed officers from Ontario's Ministry of Natural Resources stormed the farm.

"They came in uniforms and HAZMAT suits and basically ransacked us," Schmidt says. "They had put a mole into our operation." Probably one of the shareholders, he speculates. Though he won, Schmidt suffered through another round of costly litigation. "We never broke the law."

Schmidt says that different regulations in Ontario and B.C. (specifically one in B.C. that deems raw milk as a health hazard and disregards whether it's distributed privately,) gave Jongerden no way out. He believes that officials in B.C. were watching his situation closely and didn't want to lose control of raw milk in their province.

Cleopatra Bath Wash

In order to maneuver around provincial regulations, Schmidt and business partner John Schnurr took over Home on the Range, pulling it under the umbrella of Cow Share Canada. Jongerden resigned as manager, and they started labeling the milk as enzymatic bath lotion called Cleopatra Bath Wash -- a cosmetic product they say will fall under federal, not provincial, jurisdiction. It's a temporary solution.

With hopes of building an alternative raw milk national industry, the pair is touring the country visiting cow shares in every province. Schmidt and Schnurr are hosting meetings, making plans, talking to the media, and developing a framework of regulation.

"If you suddenly have a national organization which involves 5000 people, you become an entity [the government] has to deal with," Schmidt says.

The minister of raw milk

By uniting as many raw milk cow shares as possible, Schmidt and Schnurr hope to shield individual farmers from tedious and expensive litigation whenever health authorities or the government decide to step in.

Cow Share Canada is going to regulate how and where cow shares access cows. It stipulates how to feed the cows, how to milk, how to process the milk (into bath wash), and how to bottle and transport it. Schmidt says members make decisions as a group.

Yet the Canadian milk industry is already monopolized by a powerful network of provincial marketing boards and by the federal Canadian Dairy Commission.

In B.C., like in other provinces, marketing boards manage the supply of milk by licensing dairy farmers and facilitating transfers of total milk production quotas between farmers.

It's a system that has stabilized the price of milk and has kept the Canadian milk industry protected from foreign dairy products since the 1970s. It has also kept the price of quota on a steady increase ever since -- sort of like a milk stock market, without the crash, (and for licensed farmers only.)

The board oversees production, transportation and processing, and works with the federal government to ensure that enough fluid milk is turned into cheese and ice cream and other dairy products.

Schmidt thinks that system is unfair and that he can create a better one, only his would be for raw milk. So far he's had little response from the marketing boards.

"It's not automatic that raw milk is a safe product," Schmidt readily acknowledges. "It's the way you produce it that makes it safe or not."

Indeed, raw milk can get contaminated at the dairy in many ways including pumping milk from a cow that has just given birth (they have high bacteria counts), by milking in dirty conditions, or by including milk from a medicated cow.

Which is why he wants to bring the raw milk movement into the official light of day. He says the worst-case scenario would be if people continue to set up underground cow shares to avoid the wrath of the authorities only to do it improperly. He says that's when people will start getting sick.

A glass half full?

Barbara Schellenberg worries the desire of Michael Schmidt and others to keep escalating the controversy over producing and selling raw milk may prove counter-productive.

She says after Schmidt got involved, the raw milk activists became as aggressive as the health authority. She wishes the activists could have gone about their business more discreetly rather than make a national debate out of it.

"I'm probably considered a health freak myself by many people," Schellenberg says. "But people in this community, I think, routinely discredit themselves by radical opinions and really radical actions."

Schellenberg could be talking about a September 28 protest when Schmidt and Jongerden posed together in front the Fraser Health Authority drinking and serving glasses of raw milk. (The health authority didn't respond.)

Things have quieted down lately for Schellenberg and her day-to-day business in ethical foods. She's had enough of big brother, but she's also fed up with raw milk activism. "It's just making a lot of conflict, and conflict isn't healthy for anyone," Schellenberg says.

Jongerden and Schmidt disagree. For them, it's a matter of constitutional rights and the freedom of choice. In her January 20 notice of application, Jongerden challenged the ruling that upheld the Fraser Health Authority’s injunctions against her and set her contempt charge in motion.

She also called on the courts to overturn the portion of the public health act that deems raw milk hazardous and outlaws its distribution.  [Tyee]

Read more: Rights + Justice, Food

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