(C) Daily Montanan This story was originally published by Daily Montanan and is unaltered. . . . . . . . . . . Lawsuit claims Montana 'food freedom' act endangers public, eliminates local control – Daily Montanan [1] ['Darrell Ehrlick', 'More From Author', '- December'] Date: 2023-12-05 A former senior sanitarian and food safety expert with the Montana Department of Public Health and Human Services has filed a civil lawsuit against the state saying that bills carried by Sen. Greg Hertz violated the Montana Constitution and the Republican senator from Polson was instrumental in pressuring him out of the department for sounding the alarm about the legislation. Helena resident Jeff Havens is taking the state to Lewis and Clark County District Court saying that laws championed by Hertz that claimed to be “food freedom” bills actually pose a serious public health risk to residents and also rob local and county officials from protecting the public from deadly food-borne diseases. Moreover, the lawsuit, complete with hundreds of pages of exhibits, demonstrate that Havens tried to voice concerns about the legislation only to have Hertz and other leaders within the DPHHS reprimand him or retaliate. The lawsuit, which was assigned to Judge Christopher Abbott, names six different defendants, including Hertz, DPHHS Director Charlie Brereton and Gov. Greg Gianforte. The Daily Montanan reached out to the Attorney General’s Office, which will likely defend the State of Montana, as well as Hertz, and DPHHS. None of them responded to the Daily Montanan’s request for comment on Tuesday. Havens is representing himself pro se, or on his own. “This newly updated act unconstitutionally dismisses any all prevailing and superseding rights and protections of consumers to reasonable expectations of being provided unadulterated commercial food while simultaneously hoodwinking ‘home-based producers’ into using the deceptive law into manufacturing food products that have likely already been subject to interstate and/or international commerce regulations through its allowance of interstate and international ingredients, and denial of local authorities from exercising their own consumer protections through abusive pre-emption by the state legislature,” the lawsuit said. For example, Havens asserts that the Montana Local Food Choice Act, which is the combination of two bills sponsored by Hertz, Senate Bill 199 in 2021 and Senate Bill 202 in 2023, prohibits local health boards from even taking precautions to safeguard consumers “from very preventable sources of a future botulinum toxin outbreak, which are often fatal to humans.” The lawsuit is part of an ongoing battle that Montana and other states face when it comes to regulating small boutique and farmers’ markets which feature home-made food and goods that were not produced in a commercial facility. For years, Montana dairy producers had also argued about “raw milk,” which Hertz’s legislation covered. Even that, Havens pointed out in the lawsuit, has been implicated in a case where Havens, when he was employed as a food-safety sanitarian with the state, confirmed raw milk illnesses that sickened five people in November 2021 as they became ill with raw milk that had the bacteria campylobacter jejuni. The lawsuit alleges that Montanans are being subjected unknowingly to different sets of laws that protect most food, but does not protect them from “homemade food” products. Moreover, the suit said that some of these foods should be subjected to federal laws because they contain ingredients and components from other states. Finally, it also said that the Montana Legislature has taken powers away from counties and local governments to regulate their own health and safety. Retaliation Havens, in the court filing, points out that his employment at the Montana Department of Public Health and Human Services was positive, except when it came to Hertz’s legislation, which he believed wasn’t just illegal because it violated federal law, but also because it put public safety at risk. Citing the Whistleblower Award and Protection Act, Havens alleged that Hertz, with the aid of DPHHS and director Brereton, retaliated against him for speaking up and speaking out about the concerns. In emails from Hertz to Havens, the longtime lawmaker said that Havens was misusing state resources and chided him for being a critic of Senate Bill 199, pointing to several opinion columns Havens wrote, published by Montana media outlets, including The Daily Montanan. Hertz copied both Brereton and Lt. Gov. Kristen Juras. “I would suggest that you do your job as an employee for the state of Montana and that is to implement laws passed by the Legislature and signed by the Governor. If you would like to change a law, you should run for the legislature or do this work on your personal time and not use state resources. Greg,” the email said. That same day, the court documents show that Havens’ supervisor, Staci Evangeline, began the discipline process against Havens: “Jeff, you cannot use your work email or time to oppose state legislation. Nor can you hold yourself out as a state employee while doing so. No matter what argument you come up with, you will need to follow these guidelines. You are a fantastic employee and an asset to our department. This is not the hill to die on.” Just a little more than a week later, Havens said he was called into a meeting that was attended by other leaders and a union representative to discuss his actions. Havens reported in the court filing that he asked management “six times” to cite the procedure or policies he violated. He claims in the documents they never did and within another week, they suspended him two days without pay. Food-borne illness Hertz has been a champion of loosening rules around guidelines for food producers, especially in the case of raw milk, calling it a “food freedom” issue. But Havens argues that many of the items sold at places like farmer’s markets and other boutique stores should be subject to federal law because they contain ingredients that are from other parts of the country or world, and thus subject to interstate commerce. The lawsuit also cites cases of illness since the law has passed, which, he said, makes the lawsuit rooted in experience not hypothetical examples. Havens is asking the Lewis and Clark District Court to declare the Montana Local Food Choice Act unconstitutional as well as a letter of apology from DPHHS to Havens. [END] --- [1] Url: https://dailymontanan.com/2023/12/05/lawsuit-claims-montana-food-freedom-act-endangers-public-eliminates-local-control/ Published and (C) by Daily Montanan Content appears here under this condition or license: Creative Commons CC BY-NC-ND 4.0. via Magical.Fish Gopher News Feeds: gopher://magical.fish/1/feeds/news/montanan/