L&L-2-14-Got Free Speech? IJ Challenges Oregon's Ban on Raw Milk Advertising

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If IJ client Christine Anderson were to promote her legal product, she would face jail and fines for each advertisement.  


 

By Michael Bindas

You might not think that free speech has much to do with food freedom, but it does. Christine Anderson, a small-scale producer of “raw”—or unpasteurized—milk found that out the hard way. Christine owns Cast Iron Farm, a small, family farm in McMinnville, Ore. She is part of a seventh-generation farming family and is committed to the traditional, sustainable farming practices of her forebears. She combines these tried-and-true practices with modern quality controls to produce raw milk in a manner that is safe for consumers and humane to her Brown Swiss and Jersey cows Willow and Hazel.

But Christine faces a significant problem in trying to run her farm and support her family. Although it is perfectly legal for her to sell raw milk at Cast Iron Farm, one mention of this lawful product can land her in jail. Why? Because Oregon flatly bans the advertisement of raw milk. One advertisement can result in a year in jail and $6,250 in fines.

What does this mean for Christine? It means she can’t distribute flyers at farmers’ markets, fairs or the local food co-op. She can’t send emails to potential customers letting them know she has milk available. She can’t put a sign up in front of the farm saying, “We’ve got raw milk.” She can’t even mention the prices of her milk on the farm’s website. In fact, in the summer of 2012, an agent from the Oregon Department of Agriculture showed up at the farm after perusing its website and coming across a page that simply listed prices for Christine’s milk. The official ordered her to remove the prices, as even that constituted illegal advertising.

Perhaps most perversely, Oregon’s advertising ban harms consumers. Because of the ban, Christine cannot inform potential customers about the measures she takes to provide the best, safest product possible. Customers, in turn, are unable to differentiate between milk from Christine’s farm and milk from other farms that may not be as committed to safe and humane farming practices.

Needless to say, it should not be a crime to talk about something that is legal to sell. Entrepreneurs like Christine, after all, cannot run successful businesses if they cannot talk about their products. In fact, there have been numerous occasions when Christine has had surplus milk that she was forced to dump or feed to her pigs—milk that consumers would have been happy to buy, if only they knew about it.

Christine decided to fight back for her own free speech rights and those of other farmers and entrepreneurs like her. On November 19, she teamed up with IJ to file a federal free speech challenge to Oregon’s raw milk advertising ban. It is one of the three inaugural cases of IJ’s National Food Freedom Initiative.

Christine’s case demonstrates that free speech is essential to food freedom. If people are not free to speak, they are not truly free to produce, market, procure and consume the foods of their choice. Of course, the government knows this, and it is precisely why the advertising ban exists in the first place; by banning access to truthful information, Oregon is really trying to manipulate the food choices of its residents. Thankfully, that is something the First Amendment does not allow.

Michael Bindas is an IJ senior attorney. 



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