A Partial Acquittal in a Raw-Milk Case

“We never shut down,” said Vernon Hershberger. His farm was raided, and he was put on trial for operating without a license. But his buyers’ club “continued to feed our community. That’s the way it continued all along.”

And now that he’s been acquitted of doing business without a license, he’s planning to continue doing what he’s been doing—and to appeal the one charge of which he was convicted, disobeying a “holding order.”

I wish more businessmen were as willing to fight .

Hershberger is in business producing raw milk for customers who want to drink it. The reason he didn’t get a license is that no licenses are available for producing raw milk and selling it to consumers. He could have gotten a license to produce milk and sell it to processors, and he could have gotten a license to buy processed milk and sell it to consumers. But neither of these is the business he wants to be in.

This illustrates one of the problems with licensing: It traps people in government-defined niches, making it difficult or impossible to create new kinds of businesses (or bring back old ones) legally. If you get a license, under some licensing laws, you must comply with the rules that define your niche—but if you don’t get a license, you can’t operate near that niche. And because many people see the licensing laws as benign methods of keeping people safe, such laws can make it harder to call attention to the possibilities the laws suppress.

That was emphasized when the judge in this case ruled that the words “raw milk” could not be uttered in the jury’s presence. Raw milk, and whether Hershberger could provide it, was the issue that created the case. But the court apparently wanted to prevent the jury from being distracted by such matters as whether Hershberger should have been free to sell the product he wanted to sell to the customers who wanted to buy it. The court wanted the jury to view this case as a simple matter of not getting a $265 license . The prosecution even tried to stop the jury from being shown the complete licensing forms . It’s not clear whether this effort succeeded.

But the prosecution did not succeed in convicting Hershberger, except on one charge.. Presumably, that’s because Hershberger runs a buyers’ club, not a store. What’s the difference? In Hershberger’s case, his members worked on the farm, and prices could be adjusted to meet members’ needs—even to the point of free food when a member was especially short on money.

That is probably not the most profitable way to provide raw milk. And perhaps, even if he could organize his operation more profitably, Vernon Hershberger would have chosen to do it the way he did. But that doesn’t excuse the state’s efforts to suppress the raw-milk industry.

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