Earlier this month, on August 4th, Jill Fudala and her husband got a sternly written letter from the Department of Health and Human Services telling them that their sale of Raw Milk Ice Cream was illegal, and needed to stop immediately, or else they’d face fines of $500 per day, with $1,000 to start.
Like any good “law-abiding” citizen, Jill immediately pulled her raw milk ice cream out of the “honor system” freezer at their road side farm stand, and started to wonder who ratted them out to the government. As far as she and her husband knew, the practice was entirely legal – after all, New Hampshire state law allows for the sale of raw milk up to 20 gallons per day direct to consumer, and the sale of raw milk products, so long as they’re properly labelled, which hers were.
RSA 184 is the statute in question, that regulates the inspection and sale of dairy products. Scanning through the RSA, many of the sections have been repealed as recently as 2018, or as long ago as 1961. The specific section referred to by DHHS Dairy Sanitation Supervisor Chuck Metcalf is RSA 184:30-a;
184:30-a Pasteurization Required. – No milk or milk products as defined in RSA 184:79 shall be sold, offered for sale or served unless pasteurized. This shall not serve to prohibit the direct sale of raw milk or cream from the producer, store or milk pasteurization plant to the final consumer, or milk or cream from a producer to stores, nor the sale, within the state, of cheese made from raw milk when such cheese has been aged a minimum of 60 days at a temperature above 35 degrees Fahrenheit, and is clearly labeled as unpasteurized. This section shall not prohibit the direct sale of yogurt made with raw milk by the producer in this state, provided that such yogurt is clearly labeled as having been made with raw milk.
So, the government granted permission to the people to produce and sell their own milk to consumers willing to buy the product. Thank God! But, apparently the government in its infinite wisdom limited the raw milk products legally allowable to milk, butter, cream, yogurt, kefir, and cheese.
V. A milk producer-distributor who daily produces for sale less than 20 gallons of raw milk or processes less than 20 gallons of raw milk into cheese aged at least 60 days, yogurt, cream, butter, or kefir shall not require a milk producer-distributor license, provided these products are offered as direct sales from the producer-distributor’s own farm, farm stand, or at a farmers’ market to the food consumer within the state of New Hampshire only.
The government, as always, doing yeoman’s work.
If you, like I did, search through RSA 184 you will not find the definition for “ice cream”, nor will you find any regulation on it. The bill writers, committees, sponsors, or ammenders didn’t think to mention it at all. So, the DHHS apparently is left with a lot of creativity in how to enforce this law, and like big government does, it chose to harass and threaten ordinary citizens in the name of “public safety.”
What did Jill and her husband do wrong? They tried to make a living without permission.
Lately, this story has gotten a lot of local news coverage from the Boston Globe, the Concord Monitor, WMUR, and more. And I’m thankful for that, cases like this are slam dunks in the court of public opinion (except for the few crazies that think you need every single vaccine the government suggest, and those that believe pasteurization sits on a shelf next to Godliness.) Cases like this show how important liberty actually is, and how often the government will step all over it any chance they “lawfully” can.
Thankfully, many legislators have rushed to Jill’s aide – including some very knowledgable liberty oriented representatives, in hopes of fixing this government manufactured problem, but it won’t come in time to salvage their lost revenues from this year. The community, too, has rallied around Jill and the Little Red Hen Farm and Homestead, and shown great support. The Fudala’s know they have the community and legislature at their back, and are prepared to do whatever is necessary to protect their farm and anyone else that may suffer this fate in the future. The main point is, they shouldn’t have to.
Here’s the original post from the Little Red Hen Farm Facebook Page:
Ok so here’s the scoop about our ice cream…
Let’s get the ugly part out of the way first. I was contacted by the state dairy inspector, Chuck Metcalf, who was a very nice guy and just doing his job. He said that another farm reported me for selling raw milk ice cream. That’s the ugly part 😕
Really hurts my heart that another small farm would report me and put me on the state’s radar rather than just have a conversation with me. But oh well. Nothing I can do about that. Don’t care who it was. They know who they are.
What does this mean?
The current law says farmers can sell up to 20 gallons a day of raw milk & cream. And that we can also process that raw milk & cream into raw butter, raw yogurt, raw kefir and raw aged cheeses.
It doesn’t explicitly list ICE CREAM. But it doesn’t explicitly exclude it either. It does, however, list raw milk & cream. Our ice cream is just that! Raw milk & cream—frozen.
Granted we add sugar and what’s needed to create our flavors, but we do the same for the yogurt. There’s nothing in the current law that says we can’t add ingredients or that it must be “plain”.
I explained this and he admitted that “makes sense” but that since ice cream isn’t listed, it’s inferred that it’s prohibited. Hmmm…inferences in the law leave an awful lot of gray area open to interpretation.
His interpretation is that since it’s not included, I can’t.
My interpretation is that since it’s not included, I can. (And I should note that the law does include a list of things we can’t do with raw milk so I think it’s reasonable to interpret the exclusion of ice cream in the law either way—can or can’t)
Anyway, here’s the interesting part…
I told him that I pulled all my ice cream until we get this sorted out. But that I left my frozen yogurt. He paused…I asked, isn’t that ok? It’s simply the yogurt I’m allowed to make and sell under the current law—I just churned it and froze it. He said, yeah that’s ok.
I then asked why we could apply that logic to the yogurt but not the ice cream? After all, my ice cream is simply raw milk & cream which I’m allowed to sell under the law. It’s just frozen.
He couldn’t answer that 🤷🏻♀️
So what do we do now?
Based on the current law that says we can sell raw milk and cream, we don’t believe we are breaking the law and I’m currently waiting to hear back from Chuck again to argue that case further.
In the meantime, I’ve contacted our district’s House Representative, James Allard.
He agrees that we’re not breaking the current law but he has agreed (with great enthusiasm) to take this on and propose a house bill to amend the current RSA to include these two silly little words…ice cream.
So that’s the scoop!!! Unfortunately we can’t sell the ice cream until this is all sorted out as we could incur some pretty hefty fines for it until we can prove that we’re not breaking the law as it is currently written.
We could use your support!
Please comment with your thoughts. I’d love to be able to show James how much support we have from the community on this.
You’ve all shared how much you’ve enjoyed the ice cream and we appreciate that so much!!
Let’s win this!
In other news…there’s plenty of meat, milk, eggs, yogurt, honey and some veggies & blueberries at the stand today!
Open dawn til dusk daily. Self serve honor system.
85 Norris Rd. Pittsfield.