Herb C. Saunders, a dairy farmer from Odin, Minnesota, was arrested in 1993 for three charges related to selling colostrum milk and herbs to customers, many of whom were sick and had sought out Herb’s products in hopes it would improve their health. After three years and two hung juries, prosecutors dismissed all charges against Herb, but a battle to decriminalize offering food and herbs as medicine was just beginning.
All states have a statute that makes it a crime to practice medicine without a license under certain circumstances. Generally, these statutes define practicing medicine rather broadly, including practices that are obviously in a doctor’s wheelhouse, like surgery, but also adding to the definition relatively more common acts like diagnosing, treating, and curing. Minnesota’s statute goes so far as prohibiting anyone but a licensed doctor from diagnosing or treating “in any manner or by any means.” Due to the broad language of these statutes, many other types of healing arts—traditional healers, herbalists, and those touting the health benefits of foods—are or were limited in what they can do and how they can describe their services.
In the early 90s on his farm, it is unclear whether Herb was generally “prescribing” his products or offering to “treat” ill customers. However, it was clear Herb was injecting the cow’s udder with blood from customers, a practice based on “immune milk” research by Dr. Herbert Struss at the University of Minnesota.
Prosecutors in Minnesota at the time were so concerned about Herb’s offerings that they sent a wired undercover officer to pose as a customer suffering from lung cancer. That officer purchased Herb’s claim to fame—the inoculated first milk from a cow after giving birth—colostrum. Herb told that undercover officer to discontinue chemotherapy but to continue to take antibiotics, as well as giving him the colostrum. This interaction led to Herb’s eventual arrest and years-long trial(s) for practicing medicine without a license.
Herb’s unusual practices were reportedly effective; people claimed to be ‘healed’ from seemingly intractable diseases. Minnesota Congressman Berkely Bedell was the most high-profile of Herb’s customers and attributes his recovery from Lyme disease to Herb’s colostrum. Congressman Bedell was so inspired by the impact of Herb’s food-medicine that he began advocating for the legitimization of alternative medicines. Eventually, Congressman Bedell was instrumental in starting the federal research agency on complementary and alternative medicine, now called the National Center for Complementary and Integrative Health.
One of Herb’s lawyers, Diane Miller, was similarly inspired and spent years drafting and lobbying with other advocates for a new law, Unlicensed Complementary and Alternative Health Care Practices, which passed in 2000. This statute specifically protects practitioners of colostrum therapy along with twenty-one other healthcare therapies. Unlicensed practitioners can practice without fear of prosecution with this law in place, as long as they follow certain rules. For example, it continues to be true that only licensed medical doctors can recommend discontinuance of medically prescribed treatments, diagnose, conduct x-rays, perform surgery, as well as a few other specific medical therapies.
Minnesota was one of the first states to offer protection for natural healers in this way. To date, a total of eleven states have passed a version of this law.
It is rare for a farmer, herbalist, or traditional healer, to be prosecuted in the way Herb was without an injury or death associated with the treatment. However, it is important for any farmer that is offering herbs or any products with health benefits to understand the limits of what one can and cannot say and do—and how to safely market your products to avoid legal liability.
This is why Farm Commons will launch a project this Fall specifically for botanical producers (those growing the raw materials for medicinal products and marketing those products themselves). This project will include a written guide including eight best legal practices on proper marketing, labeling, food safety requirements, and more. Three webinars and three podcasts will follow the written guide. We also have an exciting, paid, opportunity for botanical producers to participate in the development and honing of these resources. We are currently seeking more applications specifically from botanical producers in Herb’s own home state—Minnesota. See this page for more information about that opportunity.