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INTERVIEW

Food Rights Under Fire
Author David Gumpert Discusses Growing Crackdown on Small Farmers, Food Safety
Isolated battles in the raw milk wars are a harbinger of a vital and emerging struggle in this country over what we may as well call food civil rights. David Gumpert is the leading chronicler of this saga, writing for a number of online publications including Grist and Huffington Post. He is the author of two essential books, the recently published Life, Liberty, and the Pursuit of Food Rights: The Escalating Battle Over Who Decides What We Eat and The Raw Milk Revolution: Behind America’s Emerging Battle Over Food Rights from 2009. Also maintaining a popular blog called The Complete Patient (www.thecomplete patient.com), he aggressively covers a number of health and food rights issues, focusing on regulatory excesses involving raw milk and food safety. Gumpert plays an instrumental role in spurring a national discussion about restrictions on the availability of unpasteurized dairy products, as well as highlighting an emerging debate over food rights. He entered the political food fray at a time of life when many people choose to slow down, and the skills he brings to bear were seasoned over many years of reporting, including a stint with The Wall Street Journal.
— Chris Walters

David Gumpert

ACRES U.S.A. Before we get into broader issues, what is the significance of the Vernon Hershberger case that recently concluded in Wisconsin? DAVID GUMPERT. It’s a complicated case, as are many of what I call “foods rights” cases. I think part of the idea is to make life complicated for the farmer and create a situation where he becomes the kind of example you as a farmer want to avoid. That’s part of what they call the deterrent effect — he has been dealing with Wisconsin regulators, agricultural regulators primarily on and off for about six years. The case is about the fact that he sells food privately to members of a food club, and he sells items that are highly regulated, primarily raw milk and meat and related items — butter, eggs, chicken, pork. Because he sells privately, he feels he doesn’t need any kind of license. In Wisconsin, not only are there licenses for conventional producers of dairy and
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meat, but there’s also pretty much a prohibition against the sale of raw milk. The milk can’t be sold except on what they call an incidental basis. He has a small farm store, and they told him in 2007, 2008 and 2009 that he needed a retail license and dairy permits. He told them he didn’t think he needed those. If he did apply for the permits, of course he wouldn’t be able to sell his members raw milk because raw milk is basically illegal in Wisconsin. It’s kind of a Catch-22, trying to make him get licensed for something that he can’t sell. The whole thing came to a head in 2010 when the Department of Agriculture, Trade and Consumer Protection obtained a search warrant, came to his store, and together with public health officials and the local sheriff, did an assessment of his place. They took a tally of what he was selling and threw blue dye into a vat holding about 300 gallons of raw milk, making it basically undrinkable.

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ACRES U.S.A. Why did they throw in the blue dye? GUMPERT. It was all part of what they called a hold order. They put tape and seals on the refrigerators and freezers, essentially prohibiting him from selling anything. The blue dye was to prevent him from selling his milk. ACRES U.S.A. They’re allowed to destroy stock? GUMPERT. They say that technically they weren’t poisoning the milk, they weren’t tainting it, they were just making it unappetizing. You could feed it to the animals, for example. He wasn’t supposed to move any of the food, including the milk, for at least 14 days, and then at the end of 10 days they put a permanent hold on it. Basically he was supposed to let the food sit there and rot until he at least applied for a retail license or else filed some kind of an appeal. He was raised as an Amish, and remained an Amish until just a few years ago, which prohibited him from initiating legal cases on his own behalf. So he did not appeal. The day after getting this hold order, he cut the seals and the tape and then announced to his members that he was open for business. He went about his business until December of 2011, when they charged him with four criminal misdemeanors; three having to do with not having the retail and dairy permits and one for violating the hold order. It took from December 2011 until late May of this year before he finally went on trial. There were all kinds of pre-trial hearings about what could and could not be admitted and who could and could not testify. The state went after this case very, very aggressively. I don’t know how they could be any more aggressive. They decided that it was going to be a trial about licensing. It would not be a trial about whether his food was fit, whether there should be an exemption for the permit laws, or whether the raw milk was suitable for private distribution. They moved to eliminate all those issues and make it just whether or not he violated the licensing laws and whether he violated the hold order. The judge agreed with all the state’s requests to limit the trial, making it essentially about licensing. ACRES U.S.A. How did the ruling affect his defense? GUMPERT. The defense could not even mention raw milk, and they could not even mention the issue of whether his food was healthy. They couldn’t talk about whether it was a private club, and whether he had some sort of special exemption because he’d made an agreement directly with members. Now, as it turned out they were able to discuss some of these issues, for instance, he was able to talk about his member agreement at the trial. But the discussion of raw milk and why members wanted to obtain food from him, which usually had to do with their perception of the healthfulness of the food — those kind of matters were prohibited, and the jury was ushered out of the room every time the defense tried to talk about them. Then there were arguments between the lawyers in front of the judge about what could be discussed and couldn’t be discussed, so it made for a tedious event. The trial went on for a full five days and then well into the night because they wanted to conclude before Memorial Day weekend. The jury didn’t get the case until about 9 in the evening. They came back with a verdict at 1 a.m., Saturday morning. The lawyers for both sides were very intense. In the end Hershberger was acquitted of the three licensing charges, so basically he’s allowed to run a private membership club and make his raw milk available. At least that’s what the acquittal seems to mean. But he admitted to the violation of the hold order, and that carries a maximum penalty of a year in jail and $10,000 fine. A day or two after the trial the state filed a motion to have Hershberger arrested and thrown in jail — the reason being that he had admitted in a newspaper interview to violating the terms of his December 2011 release on recognizance. It looked like just pure retribution because they lost on the permit stuff. As it turned out, the judge refused to hear that particular motion. At the sentencing hearing on June 13 he only fined Hershberger $1,000 plus $513 in court costs and no jail time. ACRES U.S.A. The judge said in effect that he’d suffered enough? GUMPERT. Right. His lawyers will have to decide whether they want to appeal
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that or not. They want to just say enough is enough. ACRES U.S.A. A victory for raw milk, but what’s the blowback? State prosecutors — all prosecutors — don’t like losing. And why did the state of Wisconsin pursue this inoffensive man so relentlessly? GUMPERT. There was a similar case involving another farmer last September in Minnesota. He had similar charges against him, three misdemeanors, and he was acquitted as well. The state took it badly, saying it was just an isolated case that establishes no precedent. There is another case against him for the same thing in another county, and they’re pursuing that. The reason I mention it is that the reaction in both Wisconsin and Minnesota from the state officials is so similar. They’re very unhappy about losing these cases because they seem to sanctify the private realm. That’s really what these cases are about in the bigger picture. Is there a private realm for food sales, particularly for highly regulated foods like milk, meat and eggs? ACRES U.S.A. Do you expect them to come back in the legislature and write tighter regulations? GUMPERT. That’s certainly a possibility. They could try to plug the holes from their point of view, make licensing laws stricter and make it clear there aren’t any exceptions, which would be unfortunate. Now, I think these trials gave a lot more publicity to the whole private-public realm issue. People are more informed about it, and a movement has grown up around these cases and some other cases as well. I think getting legislation passed isn’t the slam dunk it might have been a couple of years ago. They could try to avoid having criminal cases, because a big problem from the state’s point of view is that these particular farmers are very determined. They can just disobey the orders and invite criminal charges, since their main hope seems to be getting in front of a jury which is sympathetic to the private realm argument. That argument has proved itself now on two occasions in two different places with two different kinds of demographics. The one in Minnesota was an urban jury, it was in Minneapolis. Hershberger had a

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rural jury north of Madison. Ordinary people seem inclined to want to maintain a private realm for food availability. ACRES U.S.A. What seems interesting about the Wisconsin case is that juries are sympathetic to the whole notion of food civil rights. They aren’t willing to throw the book at people for violating statutes that read like something out of Kafka or Heller. Do the juries seem to get it even when they’re not allowed to hear the arguments? GUMPERT. Yes. We have a long tradition in this country of people being able to obtain food privately. Until the supermarkets sprang up after World War II, that’s how people obtained a lot of their food, direct from farmers or other food producers or small stores that obtained it directly from farmers. I grew up in Chicago and we always had food people coming around. In fact, even in suburban Boston through the 1970s we had a chicken man, an egg man and a milk man. Especially when you get into rural areas like Hershberger’s part of Wisconsin, a lot of people grew up on farms or their parents or grandparents had farms. That creates some understanding of the informality that goes on where

“We have a long tradition in this country of people being able to obtain food privately. Until the supermarkets sprang up after World War II, that’s how people obtained a lot of their food, direct from farmers or other food producers or small stores that obtained it directly from farmers.”
you might have a small farm store. The family obtains its food from the store, or regular customers take their food from the store and just leave the money in a jar. It’s all a kind of tradition. ACRES U.S.A. What you describe seems to fit the definition of incidental sales. Do most states have an exception for incidental sales, barter and the like? GUMPERT. Wisconsin is one of the few states that actually has that. The incidental issue did not come up in the Hershberger case. Hershberger was pretty clearly not selling on an incidental basis. All or most of his members were buying milk, and milk was a regular staple available to everyone who joined his food club. Farmers in Minnesota can sell raw milk directly from the farm on what’s called an occasional basis, and there hasn’t been much objection to regular farm sales. The objection was to farmers delivering the milk because people didn’t want to travel an hour or two out to the farm. ACRES U.S.A. As urban and suburban farming take hold and spread, they may not have to drive that far. You could have somebody with an acre or two in a suburb, or a short distance from town, who owns a cow. A dozen of their neighbors might drive by and pick up raw milk. Is that an incidental sale? You can’t call it occasional. GUMPERT. Those situations are springing up. I know a guy in suburban Philadelphia who saw my blog and invited me over. He has one cow, and he may have a goat now. He just wanted it for himself and his family. Of course the neighbors saw it. “Any chance we can get some?”
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Now he has four or five neighbors who regularly come and get it. I don’t know about his arrangement with the state, if any. Pennsylvania is a pretty liberal place for raw milk, so it’s probably less of an issue there. Apparently there are more people all the time who are doing this one or two cow thing. They may have two or three acres, and it’s for themselves and a few neighbors, and now they don’t worry about where their milk comes from. ACRES U.S.A. As long as they don’t advertise, could they fly under the state radar for quite a while? GUMPERT. Exactly. ACRES U.S.A. The devil’s advocate position, then, is what do you do when one of those people, however well intentioned, gets sloppy? It’s an interesting issue. GUMPERT. It is, and that’s what I get at in my book Life, Liberty and the Pursuit of Food Rights. I try to explore, both historically and in terms of recent cases, issues that have come up and changed our perception of food regulation and food safety. We have a lot of trends coming together here, and I think they are driving this whole business. ACRES U.S.A. Could you briefly list those major trends that you think are coming together? GUMPERT. We have a lot more awareness about food safety. Some might call it fearmongering about food safety, but certainly there’s been a lot more attention given to food safety beginning in the mid- to late 1990s, and it has grown in importance and attention. It has become

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a big issue in the legal arena. You’ve had people getting sick from tainted food, followed by major lawsuits yielding multimillion-dollar awards. By winning these big awards, the lawyers are putting pressure on the big food producers to sanitize their operations so people don’t get sick. It’s questionable whether more people are actually getting sick, but certainly there are more cases of serious illness, primarily involving E. coli O157:H7, which seems to be a result of the CAFO operations where much of our livestock is raised. That trend started in the 1980s and 1990s, and has grown for all animals. ACRES U.S.A. Then food illnesses caused by industrial food production have paradoxically spurred a crackdown on nonindustrial food providers? GUMPERT. Yes, it is one of the unintended consequences or ironies of this whole trend. You have these food safety and product liability lawyers making a big stink out of illnesses resulting mostly from large farming operations. The regulators feel the heat, and what happens when they try to crack down, of course, is that the big industrial producers have batteries of lawyers at the ready. It’s more difficult for the regulators to bring enforcement against the big guys, so a lot of them are going increasingly after the little guys. Not just because it’s easier pickings, though that’s certainly part of it. The other part is what’s happened in the marketplace. Small, local producers are attracting a lot more interest from consumers. People are ever more nervous about the industrial food supply. They’re worried about GMOs, they’re worried about antibiotic residues, they’re worried about hormones, and they’re worried about the cleanliness of meat raised under these unsanitary conditions. People are looking for alternative supplies of food that is going to be safer, encompassing more factors than just pathogens. They’re also looking for food that they think is going to be healthier. I think there’s a sense that much of the industrial food is riddled with all these drugs and hormones and so forth, that the animals aren’t fed appropriately and the food is processed a lot more. Remember pink slime? I think that was a wake-up call for a lot of people. They saw not only this leftover stuff being recycled, but the food being treated with ammonia. There was a big yuck factor. What people are saying to themselves is, “I don’t know what’s in that, I don’t know what they’re doing to the food, I don’t want any part of it, so I want to go to someone like Vernon Hershberger where I can see the farm. I can see how the food is being raised, I can see how the animals are treated, and I can see how the milk is produced.” That’s what’s happening in a lot of places. That is a threat. It might not seem like much — Vernon Hershberger has 200 members and that may not seem like a serious threat to Dean Foods or the other producers, but they see the big picture, and they see that the 20- or 30-year trend for pasteurized milk is a slow downward trend. They see that farmers’ markets are becoming more popular. They see the handwriting on the wall so they’re putting pressure on the regulators to make the little guys follow the rules and stop threatening their market. ACRES U.S.A. These regulators can really come on like a freight train, can they not? GUMPERT. When they went after Rawsome Food out in California, they filed 30 felony counts against the manager and one of the farmers. That’s not something they would do against an executive of one of the big ag companies. If they can file against James Stewart, a guy who runs a 1,000-member food club in Los Angeles, why can’t they do it against the president of a major producer involved in one of those episodes where many people got really sick? Nobody got sick in California, just like nobody had gotten sick in Minnesota or Wisconsin. They’re going after people but they don’t even have a good excuse, a good precipitating incident. ACRES U.S.A. That brings up an interesting historical question. In your research have you found any evidence from the old world of dairy distribution, when raw milk was commonly delivered to the doorstep, of epidemics or poisoning incidents on a big scale? Or did industrialization and public relations play the biggest part in the drive to pasteurize everything? GUMPERT. The history of milk in particular is a complicated one. From what
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I can find there were large-scale illnesses that could be attributed at least in part to bad milk, but they could also be attributed in part to bad water and bad meat and a number of products that suffered in the process of industrialization. You had huge numbers of people moving to the cities, and you had food producers organizing to serve them. The first CAFOs were really in the midst of big cities, Brooklyn, Chicago, and so on. They’d be located right next to distilleries that were fermenting their grains, so they’d feed the leftovers to the cows, and the cows became unhealthy. You had those sorts of situations. ACRES U.S.A. Does history show us that clean, genuine milk straight from the cow doesn’t scale up gracefully? GUMPERT. It doesn’t scale up very easily. Milk is susceptible to contamination, no question about that. But in those days you not only had these marginal operations, you also didn’t have a strong understanding of refrigeration and basic cleanliness. People didn’t understand how pathogens could be transmitted and food could cause illness. Today, with much greater understanding, we still have people getting sick from raw milk, and while there are much smaller quantities of raw milk sold, the number of illnesses on a per-serving basis is not as miniscule as you would expect. I accept the fact that raw milk is more risky, but we’re talking about a whole different degree than the late 1800s and early 1900s when there were wide-scale outbreaks of typhoid, tuberculosis and similar diseases that might kill hundreds or even thousands of people, including children. If some of those were attributable to raw milk that was an unfortunate situation. What the public health people argue is that raw milk is inherently dangerous, that it hasn’t changed from the late 1800s and early 1900s, thus it must be prohibited. Of course the situation actually has changed. Today it’s possible that at worst a few dozen people will get sick from campylobacter, which is a relatively mild illness where you have upset stomach for four to seven days. You do have a few cases of the E. coli O157:H7, a very dangerous pathogen, especially for children. There have been a few cases, but those cases get a huge amount of attention from the public health people who use

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them to show the dangers of raw milk. Kids get sick as well from E. coli O157:H7 found in bad hamburgers, bad pizza, bad cantaloupe and bad spinach. Somehow raw milk gets singled out. ACRES U.S.A. Does some of the publicity flow from the way that raw milk is simply easier to demonize? GUMPERT. Earlier you mentioned how pasteurization developed a business strategy, for reasons of convenience, and so forth. If some enterprising business people saw an opportunity once individual cities like New York and Milwaukee and Chicago began requiring pasteurization in the early 1900s then all of a sudden there was a business opportunity there. A number of states began banning raw milk in the late ’40s and into the ’50s and ’60s, which helped create a whole industry around processing dairy. A huge amount of money was there to be made. ACRES U.S.A. And a huge amount of profit appeared from marketing ancillary products. GUMPERT. Certainly the growth occurred in those ancillary products. Greek yogurt is the hot product now. But what happened over the last five years is that the market for raw milk is climbing. Anecdotally we know it’s been climbing, and we have some data from the USDA, which did a survey in 2008 and found that 3 percent of the population is drinking raw milk. It’s the only area involving dairy where they can make money. Being a dairy farmer has been a notoriously terrible way to earn a living for about the last 30 or 40 years. ACRES U.S.A. Has anyone proposed legislation or state rulemaking changes to create a safer space for raw milk? Helping people market it safely on a small scale, with a safety program, training and whatnot? GUMPERT. There was just a long-term effort that came out of Michigan where proponents and agriculture regulators and public health people all got together and they agreed on making raw milk available via herd shares. What is interesting and remarkable is how they made a joint effort over a period of five or six years and came up with about a 40-page statement of agreement on principles in terms of the raw milk — how it should be produced, how it can be done right. That’s the only place I’ve seen where this has happened. I think it could be a model for other states. ACRES U.S.A. Does this stand in contrast to other state governments, especially legislatures? GUMPERT. In Texas during the recent legislative session the local foods bills went through the legislative process and got approved, but the raw milk bill, to extend availability to farmers’ markets rather than just from the farm, got stuck in a committee that sets calendars. Legislation to liberalize raw milk availability often seems to run into last-minute problems. In Nevada earlier this year legislation to legalize sale of raw milk made it through both houses of legislature, and the governor wound up vetoing it. In New Jersey last year, legislation to legalize raw milk made it through one house, I believe, and then died in committee in the other house. There are all kinds of ways of sabotaging legislation, and it happens quite often to raw milk liberalization efforts. ACRES U.S.A. What other forces are coming to bear on this situation as it evolves? GUMPERT. The FDA is pressuring these states like you wouldn’t believe to crack down on raw milk, to try to get rid of it. It’s primarily coming from the FDA, but also the FDA together with the CDC. The way they apply pressure in many cases is to offer incentives or opportunities for getting federal funding, and these states are desperately in need of funding. So their agriculture and public health departments really kowtow to the FDA. The FDA is behind a lot of these enforcement actions. I believe they’re behind even these actions involving Vernon Hershberger or the fellow in Minnesota, Alvin Schlangen, and the Rawsome case in California. They were visibly involved in the Rawsome case, and they were involved in a couple of Pennsylvania cases. A common denominator in all this is the FDA being obsessively against raw milk. Even in spite of studies that have come
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out of Europe that indicate that raw milk does have healing benefits, and helps reduce incidence of allergies and asthma in children. They say those studies really aren’t valid, that they have this weakness or that weakness. ACRES U.S.A. Would a wider understanding of the health benefits of raw milk as well as other direct-from-the-farm foods come in handy as a political wedge against the FDA’s draconian policy? GUMPERT. Oh, absolutely. I’m convinced that education is key to all this. People need to know more about what we do know and what we are learning. The bigger picture is emerging about the importance of something called a microbiome, the enzymes and the bacteria that help not only digest our food but also help strengthen our immune systems. There’s a huge amount of research going on worldwide about the microbiome and the idea that it’s more important than we’ve appreciated or realized. What it suggests is that people, by virtue of the fact that they can build up their immune systems, and that their immune systems are a function of their microbiome, can reduce their vulnerability to pathogens. That suggests that the relationship between the healthfulness of food and our immune systems and our ability to resist pathogens is a subversive idea to the FDA, because they focus all their attention on pathogens. That’s what food safety is to them. As not only scientists but consumers learn more about the benefits and dangers of foods, they’re learning that pathogens aren’t the only determinant of safety. ACRES U.S.A. It’s also a topic where political divisions can turn out not to apply. Have you come across instances of conservatives finding common cause with liberal foodies — the labels are unfortunately broad — around the idea of food civil rights? GUMPERT. I wish I could answer yes. That’s one of the big frustrations of this whole arena. Liberals tend to be trusting of government, and I think as a result they tend to be skeptical of people who raise the food civil rights issue. In my experience the liberals don’t express it openly. They more or less ignore the outrages,

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the abuses of farmers like Vernon Hershberger. I have to assume they take the attitude that if government regulators are going after them, there must be a reason. I’m in touch with other food bloggers, and many of them are of a liberal bent, and they have a huge amount of confidence in those agencies because those are the “scientists.” They’re the possessors of important knowledge. If they say that pathogens are the primary threat to food safety, then that must be the case, even though those people are themselves seeking food from outside the industrial system because they don’t want antibiotic residue, hormones and excessive processing. I hope that when people read my book, and see what I think are blatant examples of legal abuse, and see the resources that are devoted to going after small farmers who make food available on a private basis, they will become concerned. ACRES U.S.A. Do you believe that the semantics can help break through the barriers, linking the idea of food with the term “civil rights?” GUMPERT. I hope it will. I found when individual liberals see the hundreds of thousands if not millions of dollars devoted to prosecuting Vernon Hershberger, a God-fearing father of 10 children faced by four lawyers paid by the state, or see state, federal and county agencies going after a food club in California with guns drawn, they know there’s something wrong. ACRES U.S.A. In your discussions do you have any luck making the distinction that state food regulators who are heavily pressured by the food industry are not the same regulators who you may like, such as CDC personnel who swing into action to fight an epidemic? There’s good regulation and bad regulation. There’s appropriate state power and inappropriate state power. GUMPERT. I’ve had some success with a few individuals, but I think it is actually a larger psychological/emotional problem for people. Once you acknowledge the fact that a segment of regulators really don’t have your interests at heart but are serving either corporate interests or some power agenda of their own, that suggests corruption. And once you see places like the CDC or the FDA as at least partially corrupt, that’s a big change to the worldview of a lot of people. It’s a big change to their view of what their government is all about, what health care providers are about, and what public health people are about. I see it in my own family. There’s just a lot of resistance to acknowledging that this kind of stuff goes on. It’s disruptive to a whole image of the order of things. ACRES U.S.A. Do you think the welldocumented efforts of the Koch Brothers and others to fund and control conservative, anti-government politics have tainted the overall critique of government? GUMPERT. It has, there’s no question. ACRES U.S.A. Untangling the fear and confusion in these issues presents a daunting challenge. GUMPERT. There’s a lot of fear out there because of the aggressive enforcement efforts against farmers and food clubs. But there are some encouraging things happening as well. As one example, we have seen the launching of a Food Sovereignty effort whereby local towns pass ordinances allowing private sales of food by farmers and other food producers directly to individuals. This effort began in Maine, and has attracted 10 towns there to pass ordinances. Other towns scattered around the country have similarly passed such ordinances, all the way out to Santa Cruz, California. ACRES U.S.A. Forecasting is ill-advised at all times, but could you attempt a bit of it anyway? GUMPERT. Things are changing and things are going to change. I’m convinced of it. The whole movement for labeling of GMOs has really caught fire. Maybe the bigger issue is what happens when lots of people start to question the integrity of the food system. That’s a politically explosive issue. When you look back in history, the big issue until 50 years ago was making sure we had enough food. The biggest threat politically was the prospect of people not having enough food. You have too many people going around with an empty stomach — that’s trouble, riots and revolution. That was the French Revolution. The politicians have always been very sensitive to making sure people have enough to eat. We seem to have solved that problem in the United States, and now we’re worrying about it from a different point of view. Now we have enough to eat but people are fearful about the integrity of the food. When people start questioning that, it can throw things way out of whack. People look around and see that one out of eight children has autism, and one out of nine or one out of 10 has asthma, and one out of eight has allergies. They look around, they see all these conditions springing up, and they’re starting to put two and two together. It’s potentially an explosive situation if lots of people don’t trust the food system, and I think that could be the issue we face looking down the road. I’m surprised the regulators and policymakers aren’t more sensitive to that, rather than trying to force-feed us. In California all the corporations got together and organized to defeat Proposition 37 for labeling GMOs. Really what they were doing was organizing against the wishes of their own customers. I expect we’ll see growing resistance, as more and more people begin to understand the craziness, and the viciousness, of what’s going on here. The Wisconsin jurors were so irritated with the prosecution that a number of them said after the trial they wanted to join Hershberger’s food club. Historically, messing with people’s food hasn’t served governments well.
David Gumpert’s books are available through Acres U.S.A. For more information, see page 82.

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