Kansas raw milk farmers can now advertise their products with more than just a sign on their farms, thanks to a lawsuit filed by the Kansas Justice Institute on behalf of Mark and Coraleen Bunner.
The Bunners sell raw milk from their farm near Pfeifer, but a Kansas statute, codified in 1967, prohibited the couple from advertising their raw milk “to the public in any manner other than by the erection of a sign upon the premises of the dairy farm.”
According to Sam MacRoberts, general counsel and litigation director for KJI, the case really isn’t about raw milk.
“It’s about the ability to talk about a legal product away from your property. When the government tells you you can’t even talk about it, it’s a free speech case. It’s not about milk,” he said.
MacRoberts said if the government told Coca-Cola they couldn’t advertise or told Kellog’s Cereal they couldn’t put the words, “This is delicious” on a box of cereal, people would be outraged.
“Or if the government said, you can’t advertise this book because we don’t like what’s in this book,” MacRoberts said. “That’s what was happening here. It’s classic censorship, and it’s wrong. There’s no place for it.”
In the Bunners’ situation, a 1967 state statute made it a misdemeanor for them to promote their raw milk products on social media, hang flyers around town or buy a radio ad advertising their milk.
MacRoberts called the speech ban “offensive.”
“Any time we see the government preventing people from using their voices, we should all care and step in,” he said.
The Kansas Justice Institute, a public-interest litigation firm, filed the suit on behalf of the Bunners against Mike Beam, the Secretary of the Kansas Department of Agriculture, on Oct. 28. Less than two weeks later, the Shawnee District Court approved a settlement resolving the case. Under the terms of the agreement, the parties agreed that Kansas’s advertising ban violated the First and Fourteenth Amendments of the U.S. Constitution.
“It’s frustrating not to be able to talk about our product,” Coraleen Bunner said. “We work hard, our animals work hard, and we want the freedom to talk about our product off our farm.”
Launched by the Kansas Policy Institute (which also owns The Sentinel) earlier this year, the Kansas Justice Institute victory marks the firm’s first suit and it’s first victory. The goal is to protect individual liberties and the constitutional rights of Kansans.
According to MacRoberts, striking down the ban on raw milk advertising does just that.
“There are other areas where the government interferes with businesses’ rights to advertise their lawful products,” he said. “This is a first step in keeping government in check.”
Attorney General Derek Schmidt’s office is typically called upon to provide a rigorous defense for state statutes enacted by the Legislature. However, he said there exists no plausible legal defense for the statute.
“The statute restricting advertising of raw milk does not comply with the U.S. Supreme Court’s modern application of the First Amendment to commercial speech and is plainly unconstitutional,” the Attorney General said in a press release.
Schmidt said the better and less costly course is for the Kansas Department of Agriculture and the Legislature to modify the statute to comply with the U.S. Constitution.
Beam, the Secretary of Ag, said he looks forward to the opportunity to clarify the law.
“The on-farm sale of raw, unpasteurized milk continues to be the only allowable method of distribution for raw milk, as a means of protecting public health and safety due to the high degree of risk associated with unpasteurized dairy products,” Beam said in a release.
MacRoberts said the public is smart enough to determine what products they’d like to buy and use. They don’t need the government’s help.
“The government doesn’t get to treat us like little kids. We’re adults. We can decide whether to buy raw milk,” MacRoberts said.