Illegal: raw milk can't be sold to the public in B.C. but a court challenge argues the ban runs counter to citizens' right to nutritional choice.

Dairy farmer to argue raw milk a right

Challenge seeks freedom of nutritional choice

A new legal front has been opened by advocates battling for the right to drink and distribute raw milk.

Farmer Alice Jongerden, the founder of Chilliwack-based Home On The Range cow-sharing co-op, is mounting a constitutional challenge of a 2010 court order that bars her from producing or distributing unpasteurized milk, which B.C. law deems a public health hazard.

“We want the freedom to make our own nutritional choice,” Jongerden said. “We just want to be able to have the right to consume fresh milk if we so desire.”

Her court challenge argues the prohibition against unpasteurized milk in B.C. is a violation of her right to liberty and security of the person under the Charter of Rights and Freedoms and that the stiff criminal penalties are unjust. Violators can be jailed for three years and fined up to $3 million.

If she succeeds in overturning the section of the Public Health Act that bans distribution of unlicensed and unpasteurized milk, Jongerden said she intends to resume operation of the raw milk dairy, which she handed over to Ontario raw milk advocate Michael Schmidt last fall to avoid contempt-of-court sanctions.

Alice Jongerden hopes the courts will allow her to once again distribute raw milk to her cow share members.

Jenna Hauck/Chilliwack Progress

Schmidt has continued the operation under the name OurCows and claimed he is distributing the milk not for food but as a line of cosmetics.

Fraser Health planned to send inspectors to determine whether OurCows is merely a new attempt to sidestep the ban, as Jongerden had initially attempted by labeling raw milk ‘not for human consumption.’

However, Fraser Health spokesman Roy Thorpe said the health authority will hold back on further enforcement action until the new court challenge is complete.

Jongerden said she doesn’t aim to market raw milk directly to the public but only to the cow share’s 450 Lower Mainland members, as she had previously.

Since farmers can drink milk from their own cows, members had argued they were merely collecting liquid dividends from the cows they own and that there was no public sale of milk.

However, victory in court might effectively legalize raw milk dairies.

Jason Graatl, Jongerden’s lawyer, said the province should simply regulate unpasteurized dairies, apply a regime of inspections and require warning labels.

B.C.’s insistence on pasteurization is less about safety, he said, and more about extending the product shelf life and protecting “industrial” milk producers from raw milk competition.

A U.S. pathologist has sworn an affidavit in support of the safety of raw milk, adding pasteurization reduces beneficial enzymes and bacteria and lactose intolerant people can drink raw milk without problems.

B.C.’s provincial health officer maintains unpasteurized milk is dangerous because it can be contaminated by bacteria and other pathogens that have caused serious outbreaks of illness in other jurisdictions.

Samples of Home On The Range milk tested in early 2010 contained what public health officials said were high colliform and E. coli levels.

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