Slavery. Women prohibited from voting. No home schooling allowed. No interracial marriage.

These were all official government policy at one time in America’s history, and have since been rejected by the courts.
Now, the courts should break with another major taboo: restrictions on our access to food, most notably, raw milk. That’s the argument being presented by the Farm-to-Consumer Legal Defense Fund, on behalf of a group of consumer and farmer plaintiffs suing top officials of the Department of Health and Human Services and the U.S. Food and Drug Administration.

In a response to a government motion in April to dismiss their case–based largely on an argument that consumers have “no absolute right to consume or feed children any particular kind of food”–the FTCLDF portrays the case as one emblematic of an emerging rights issue on a par with other momentous rights cases: “Plaintiffs represent the tipping point of a food rights movement that involves knowing one’s source of food; becoming responsible for what foods go into one’s body; becoming responsible for ones health; ensuring that one’s family and children grow up healthy with an excellent immune system; and engaging in conduct with similar like minded individuals to promote a healthier and happier America. Since ‘you are what you eat,” literally, the choice as to what foods to consume is fundamental to one’s bodily integrity and is one of the foundations of family life.”

Specifically, says the defense fund: “Plaintiffs have no interest in consuming pasteurized milk that comes from cows injected with artificial hormones and antibiotics that is processed and packaged at large industrial facilities under confinement conditions and then transported hundreds of miles across the country only to sit on store shelves under artificial lighting in plastic bottles and jugs. Instead, Plaintiffs wish to consume fresh, unprocessed, wholesome milk and similar dairy products, and wish to patronize the pasture-based farmers that make these products directly available to the consumer.”  The FDA’s regulation prohibiting interstate shipment of raw milk “is preventing Plaintiffs from enjoying their rights to health
and food choice. Therefore, this is an issue of private choice, not the public’s health, safety or welfare.”

But the FTCLDF argument goes beyond arguing that growing numbers of consumers have a preference for non-industrial food. It makes the case that consumers are potentially being injured by being denied access to such foods: “FDA’s regulatory program has no application to Plaintiffs’ conduct because Plaintiffs are not injuring the public’s health, safety or If anyone is being harmed in this case it is Plaintiffs themselves because they are being prevented by their government from exercising their fundamental right to consume the food of their choice and instead are being forced by their government to participate in a food production system that they truly believe is harmful to their health.”

In backing up its argument, the FTCLDF takes issue with the FDA’s motion to dismiss on several points:

– To the FDA’s argument that it isn’t interfering with consumers who transport raw milk from states that allow it to states that prohibit it, FTCLDF offers several cases in which the FDA has interfered via prosecution, warning letters, and forced confiscation–notably in milk brought privately from South Carolina to Georgia, from Indiana to Michigan, and from Oregon to Washington state.

– It takes issues with the FDA’s contention that the federal prohibition doesn’t interfere with freedom to travel, by arguing “Although this national ‘food rights’ movement was probably not contemplated by the Founding Fathers, it should now be recognized by this Court as a component of Plaintiffs’ liberty interest in having access to the foods of their choice. Accordingly, the right to travel should include the right to have raw dairy products in one’s possession.”

– To the FDA’s contention that a “citizen’s petition” to the FDA challenging the ban on interstate shipment of raw milk should have preceded a court action, FTCLDF points out that raw dairy owner Mark McAfee of Organic Pastures Dairy Co. already tried that in 2008. “FDA had a duty to act on the petition in six months yet as of this date (nearly one year to the date after FDA should have taken action on the petition) FDA has failed to take any action on that petition. Consequently, exhaustion does not apply because FDA has shown itself to be ‘biased or has otherwise predetermined the issue before it’.”

– And to the FDA’s contention that it was ordered in 1986 by a federal court to implement a regulation banning raw milk, FTCLDF says the court order only applied to the “sale” of raw milk across state lines. “In addition, FDA banned the interstate transport of raw dairy across states lines even when the conduct involved did not involve ‘interstate commerce’…”

The FTCLDF suit has always been a long shot. But by challenging the “rights” aspects of the suit, the FDA may have inadvertently opened the door to a broad consideration of food rights in the context of civil rights.