Oregon Farmer Challenges Ban on Raw Milk Advertising

J. Justin Wilson
J. Justin Wilson · November 18, 2013

Portland, Ore.—In Oregon, it is perfectly legal for farmers to sell raw—or unpasteurized—milk . . . so long as they don’t talk about it. If they do, they face huge fines and jail time. But a major federal lawsuit filed this morning by the Institute for Justice (IJ), the national law firm for liberty, and Christine Anderson, owner of Cast Iron Farm in McMinnville, Ore., seeks to change that.

Oregon flatly bans the advertisement of raw milk, a perfectly legal product for farmers like Christine to sell. That means Christine and other farmers are prohibited from posting flyers at local stores, advertising sales online or via email, or even having a roadside sign at the farm saying “WE SELL RAW MILK.” If Christine does advertise that she sells raw milk, she faces a fine of $6,250 and civil penalties as high as $10,000—plus a year in jail.

Oregon’s advertising ban means less revenue for farmers and more wasted product: Because Christine is unable to promote discounts on excess milk, she winds up dumping it or feeding it to her pigs. This is milk that consumers would be happy to purchase—if only they knew about it. Consumers are also harmed because they are denied access to information about how milk is produced, which makes it impossible to differentiate between milk from Christine’s farm and milk from other sources.

“Advertising is essential to the success of small businesses and Oregon’s ban on the advertisement of raw milk makes it difficult, if not impossible, for farmers like Christine to run a successful business,” said IJ Senior Attorney Michael Bindas and lead counsel on the case. “The ban also harms consumers by preventing them from obtaining accurate information about a legal product.”

“I work hard every day to create the best milk that I can for my customers,” said Christine Anderson, owner of Cast Iron Farm. “I am restricted from communicating to the public what I do to create fresh, clean, raw milk. All I’m asking is that, just like other businesses, my constitutional right be honored to communicate what I do that is special.”

Christine’s lawsuit, filed in the U.S. District Court for the District of Oregon, argues that Oregon’s advertising ban violates the free speech protections of the First Amendment. Serving as local counsel is Melinda Davison of the Portland law firm Davison Van Cleve.

“The First Amendment protects commercial speech, including advertising, and the U.S. Supreme Court has made clear that this type of censorship is unconstitutional,” continued Bindas. “The state cannot make it a crime to talk about something that is legal to sell.”

IJ’s challenge to Oregon’s ban on raw milk advertising is part of its new 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. To launch the initiative, IJ is today filing two additional cases: a challenge to Minnesota’s location restriction and sales cap for home bakers and a challenge to Miami Shores, Fla.’s ban on front-yard vegetable gardens.

According to Bindas, who also heads the initiative, “Christine is part of a nationwide movement of small-scale food producers who are tired of the government dictating what foods they can grow, sell and eat. Her case and others in IJ’s National Food Freedom Initiative will put an end to government’s meddlesome and unconstitutional interference in our food choices.”