A Wisconsin farmer lost an appeals court ruling July 17 in a case over whether or not he could sell raw milk. Vernon Hershberger was convicted on May 25, 2013, of misdemeanor violation of a holding order filed by the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP).

Hershberger posted video online of himself breaking seals on his refrigerators placed by the DATCP, according to the Wisconsin Department of Justice.

Hershberger appealed the conviction on the grounds that he would not have been convicted if the DATCP had used an unedited copy of the holding order in the jury trial and that there was no appeals process for the order, according to court documents. The appeals court ruled that Hershberger could have challenged the holding order through three different DATCP processes, but did not, and therefore had no grounds to challenge the order in court.

He received a $1,000 fine, plus $513 in court costs. Violation of the holding order could have cost him as much as $10,000 and a year in jail, according to the Milwaukee, Wisconsin, Journal Sentinel.

Hershberger was acquitted of the other three charges he faced: operating an unlicensed retail store, operating a dairy farm without a license and operating a dairy processing facility without a license.

The holding order was issued because Hershberger was selling food without a retail food establishment license, according to the summons and criminal complaint (PDF, 936KB).

Hershberger claimed that any review process would be futile because the dairy and meat products covered by the order would spoil before the appeal concluded, but the appeals court ruling pointed out his options for staying the order and receiving compensation for food spoiled as a result of a holding order.

Because neither side contested that Hershberger violated the holding order, his conviction was upheld.

“This appeal is not a referendum on the desirability of on-the-farm sales of raw milk products,” Wisconsin Department of Justice spokeswoman Dana Brueck told the Associated Press. “Rather, it involves the ways in which a defendant may – and may not – challenge a (state) holding order.”

—Summarized by Progressive Dairyman staff from cited sources