Judge declares unconstitutional Kansas’ limits on raw milk ads

By Tim Carpenter via CJonline.com the Topeka Capital Journal

Goat farmers Coraleen and Mark Bunner’s lawsuit challenging a 50-year-old state law limiting advertising on sales of raw milk resulted Wednesday in a court order approved by the Kansas attorney general and the Kansas agriculture secretary conceding the statute to be unconstitutional.

Shawnee County District Court Judge Richard Anderson signed the consent judgment ending the litigation and imposing an immediate injunction blocking the Kansas Department of Agriculture from enforcing law and regulation sharply limiting ads for raw milk to a sign located on the dairy’s premises.

Kansas Agriculture Secretary Mike Beam said the agency would urge the 2020 Legislature to amend the statute declared in violation of the First and 14th amendments to the U.S. Constitution as well as the Bill of Rights of the Kansas Constitution.

He said the district court left in place state law restricting distribution of raw, unpasteurized milk in Kansas to a producer’s farm. That is necessary to protect public health due to risks associated with consuming unpasteurized dairy products, he said.

Attorney General Derek Schmidt agreed the 1967 law enacted prior to modern application of U.S. Supreme Court rulings on commercial speech was “plainly unconstitutional.”

“While we typically provide a rigorous defense for every statute enacted by the Legislature, in this case where there exists no plausible legal defense, the better and less-costly course of action is for the Department of Agriculture to work with the Legislature to modify the statute so it complies with the U.S. Constitution,” Schmidt said.

The case was filed by the Bunner family, which operates Shepherd’s Gate Dairy near Pfeifer in central Kansas. Their suit filed in October with assistance from the Kansas Justice Institute was designed to strike the misdemeanor crime of advertising sale of raw milk through online avenues, commercial ads, posting fliers or any other means separated from the dairy barn.

“It’s frustrating not to be able to talk about our product,” said Coraleen Bunner, who has milking goats. “We work hard, our animals work hard, and we want the freedom to talk about our product off our farm.”

Samuel MacRoberts, litigation director for the Kansas Justice Institute, said the state government’s ban on speech was “offensive.”

“The Bunners have the absolute right to advertise raw milk,” MacRoberts said. “I believe that if we do not stand up for our rights, we lose them.”

Samuel G. MacRoberts is general counsel and litigation director for the Kansas Justice Institute

Read more here: https://www.kansas.com/opinion/guest-commentary/article232327927.html#storylink=cpy