The new law, Senate Bill 45, creates a new category of “raw milk for human consumption” which makes unpasteurized dairy products like milk and cream legal products regulated by the state, just like Grade A milk. These regulations will differ from those that are required of Grade A dairies and manufacturing plants because, as raw milk supporters have pointed out, raw milk produced for direct consumption and raw milk produced for pasteurization are two different products. The new law acknowledges this difference.

A unique aspect of the South Dakota raw milk legislation is that, while the state will monitor raw milk producers’ coliform levels, there are no set standards and producers won’t be fined for coliform counts. There are those who believe that coliform testing is not a good indicator of milk safety.

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This bill is a result of the efforts of a Raw Milk Work Group that was formed in February 2014 on recommendation by the South Dakota Senate Health and Human Services Committee.

Gena Parkhurst, one of the work group members and a raw milk consumer, says, “I am happy with the compromises and the way that it worked out. Everybody who was involved in the raw milk work group made some kind of a compromise so it felt like there was a fair balance of give and take.”

She says the next step is to outline the rules and regulations that will apply to raw milk and raw cream sales, hinting that there might be an education program involved, and that group members will gather their thoughts and move forward in the process.

Realmilk.com is a consumer education project of the Weston A. Price Foundation, a nutrition education nonprofit based in Washington, D.C. Visit their website, westonaprice.org.

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Senate Bill 45 is the result of the hard work of a Raw Milk Work Group that was formed in February 2014 following the recommendation of the South Dakota Senate Health and Human Services Committee. The work group included Department of Agriculture Secretary Lucas Lentsch and other department representatives, dairy industry representatives, and raw milk producers and consumers. (See South Dakota Raw Milk Wins–Dakota Rural)

The passing of Senate Bill 45 means that raw milk and raw cream will be legal for sale directly to consumers (though only for delivery at farmers’ markets), through a distinct set of rules for the sale of raw milk for human consumption. Raw milk producers will still need to obtain a license and permit, must maintain sales records for notification purposes, and their facilities will still be subject to annual inspection by the Department of Agriculture.

Realmilk.com is a consumer education project of the Weston A. Price Foundation, a nutrition education nonprofit based in Washington, D.C. Visit their website, westonaprice.org.

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After the new regulations were announced but before they went into effect, the owner of Black Hills Milk in Belle Fourche made her own announcement: the dairy would stop selling raw milk because the new regulations, including one that sets the maximum coliform level at 10 parts per milliliter, would make it too difficult to continue.

Dawn Habeck, co-owner of Black Hills Milk, explained: “The coliform level increases every minute after the milk comes from the cow’s udder. [It] only drops after it’s pasteurized. So the rule basically makes it impossible to sell raw milk.”

Gena Parkhurst, Secretary of the Black Hills chapter of Dakota Rural Action, argues that coliform is a naturally occurring bacteria in raw milk that can be beneficial for human health, and points out that maximum levels of coliform vary widely between states.

“The [new] rules are burdensome, confusing and basically anti-business,” Parkhurst says. “We’re supposed to be the most business-friendly state, so why is the department being so hard on raw milk producers?”

Katie Konda, a policy analyst for the South Dakota Department of Agriculture, says that the new coliform level is not unattainable and raw milk producers in nine other states meet the same requirements.

Read more about the dairies’ struggle to adjust to the new regulations here.

The Campaign for Real Milk is a project of the nutrition education non-profit, The Weston A. Price Foundation. Donate to help fund research into the benefits of nutrient dense foods.  http://www.westonaprice.org/lab

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The proposed changes proved controversial across the state and prompted three public hearings for producers and others to express their concerns. Many of the dairy farmers who spoke at the public hearings said that the proposed changes could make operating their business more difficult or even put them out of business.

Following the hearings, two amendments were made to the proposed regulations: simplify the warning labels required on each container of milk and increase the bacteria count from 20,000 to 30,000 per ml.

Courtney De La Rosa, Policy Director of the state’s agriculture department, explained the reasoning behind these amendments. She said that previous wording of the warning label was unnecessarily long. The new warning label will read, “Warning: Raw milk. This product has not been pasteurized and may contain harmful bacteria.” De La Rosa also explained that both Grade A and Grade B dairies across the state often report as high as 30,000 bacteria per milliliter, so it is fair to relax the requirement for raw milk to the same standard.

The two amendments are beneficial for raw milk producers in South Dakota. The revised rules were approved by Secretary of Agriculture Lucas Lentsch on October 21, 2013 and now await final approval from the interim legislative rules committee on November 12, 2013.

Read more here:

http://www.tristateneighbor.com/news/regional/rule-revisions-advance-for-raw-milk/article_a1f320e2-4556-11e3-81ee-0019bb2963f4.html

The Campaign for Real Milk is a project of the nutrition education non-profit, The Weston A. Price Foundation. Donate to help fund research into the benefits of nutrient dense foods.  http://www.westonaprice.org/lab

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Update, Winter 2015
Illinois

After nearly three years of working on raw milk regulation, the Illinois Department of Health (IDPH) still has more work to do. On August 11th the Joint Committee on Administrative Regulations (JCAR), a legislative body that has the final say on approving proposed rules, voted to prohibit the filing of IDPH’s proposed rules with the Secretary of State—pro- posed regulations do not become law unless they are filed with the Secretary. The rules IDPH submitted to JCAR were an amended version of proposed regulations the department issued in September 2014. Over seven hundred people had submitted comments on the original version; nearly all of them opposed.

For over thirty years, IDPH had a successful policy of allowing unlicensed on-farm sales; there was not a single case of foodborne illness legitimately attributed to a raw milk producer operating under the policy. (See Wise Traditions Summer and Fall 2013 issues for background.)

Through the proposed regulations, the department is trying to implement a two-tier licensing system where producers who meet requirements outlined in the proposed rules can obtain a license to sell raw milk on the farm while those who meet Grade A requirements, including expensive physical facility requirements, can deliver and sell raw milk to off-farm customers. The proposed rules would require herdshare operations to meet the Grade A mandates.

Both raw milk proponents and opponents opposed IDPH’s amended version of the rules. Even raw milk producers who were willing to submit to licensing and inspection thought the sanitary standards in the proposed regulations were too broad and subject to abuse by inspectors. The Northern Illinois Public Health Consortium—which had unsuccessfully pushed legislation to ban raw milk in 2014 (see Wise Traditions Summer 2014 issue)—and other public health organizations opposed IDPH’s amended version of the rules, mainly on the grounds that they would allow the retail sale of raw milk in population centers instead of just on the farm, which is what the original version called for. JCAR’s notice prohibiting filing of the rules stated, “This rulemaking has not achieved an adequate balance between the State’s role in protecting the public health and its mission to avoid unduly burdensome regulations on small business. JCAR finds that adoption of this rulemaking in its current form would not be in the public interest.”

Update, Winter 2014
Illinois

On September 5th, the Illinois Department of Public Health (IDPH) issued proposed regulations governing raw milk sales and production; regulations that a number of raw milk producers believe would put them out of business. (See Wise Traditions Winter 2013 issue for more background.) So many people submitted comments opposing the rules (over 700 submitted comments with the overwhelming majority in opposition) that IDPH extended the comment period on them from 45 to 90 days.

For over 30 years unlicensed on-farm sales of raw milk have been legal by government policy; the rules IDPH proposed to replace the policy would reduce consumer access to the raw milk produced in Illinois by creating an arbitrary and overreaching regulatory scheme that would make it more difficult for dairy farmers to make a living. The proposed rules would;

• Require a raw milk producer with even just one cow or goat to have a permit and would be subject to regular inspections and testing.
• Prohibit unlicensed producers from giving away milk to guests at their farm.
• Prohibit herdshares and the distribution of raw milk through community subscription agriculture (CSAs) unless the producer is in compliance with all requirements for Grade A dairies which produce raw milk for pasteurization – a financially impossible standard for just about all shareholder and CSA dairies. Even if a dairy could afford to meet the Grade A standards it could still only distribute to shareholders and CSA members on the farm. IDPH issued the herdshare regulation despite Illinois statute recognizing the legality of dairy livestock boarding agreements.
• Contain a number of sanitary standards that can be arbitrarily applied against producers to shut them down when there is no threat to public health; for example: “the flanks, udders, bellies and tails of all lactating animals should be free from visible dirt” and “all milking equipment should be stored in a dust-tight room.”
• Intrude on the farmer-consumer relationship by requiring farmers to maintain records of each transaction with the customer, name and address, to issue “Department approved consumer awareness information with each sale or transaction” and to provide “instructions for the consumer to notify the local health department for the area in which the consumer resides of a consumer complaint or suspected foodborne illness.” There isn’t any other food whose producers are required to do all this.

With the comment period now being over the next step in the rule-making process was for the proposed rules to go to the legislature for consideration by the Joint Committee on Administrative Regulations (JCAR). JCAR has the power to reject the rules. Illinois law provides for an official comment period where people can submit comments once the rules are before the committee but hundreds of those opposing the regulations had gotten an early jump on the process and had contacted members of JCAR telling them to kill the rules. JCAR will likely be taking up the rules sometime in the first half of 2015. The goal for raw milk supporters is to end the rule-making process in the committee and have the state government stick with the policy that has been successful in protecting access to locally produced raw milk since the early 1980s.

Update, Winter 2013
Illinois

The Illinois Department of Public Health (IDPH) had been leading a dairy workgroup to develop recommendations for raw milk regulations (see original post from Summer 2013 and Fall 2013 update below  for background). IDPH  officials have disbanded the workgroup and are moving on to the next step in the rulemaking process.

In a November 21 email sent to the members of the workgroup, Molly Lamb, chief of IDPH’s Division of Food, Drugs and Dairies stated that the workgroup would be releasing a “summary of comprehensive recommendations” that would be used by IDPH to write proposed raw milk regulations. In her email, Lamb included a draft of summary recommendations from IDPH that were far different from what raw milk producers and consumers in the workgroup had been proposing.

The raw milk advocates who comprised a majority of the workgroup had been supporting a two-tier system in which one tier would allow unlicensed, unregulated on-farm sales of raw milk and another tier would support licensed sales off the farm; the IDPH recommendations call for inspection, licensing and testing on both tiers. The department’s recommendations would also prohibit distribution of raw milk through a herdshare agreement, buyers club or CSA without licensing and inspection.

Donna O’Shaughnessy, a raw milk producer on the workgroup, said its disbanding was the same as firing the raw milk supporters. O’Shaughnessy pointed out that in the nine months the workgroup met it was never even discussed what the requirements would be for tier-two producers and that IDPH ignored the will of the majority of the group to have no licensing or registration mandate for on-farm sales; throughout the time the group was meeting, IDPH’s minutes from the meetings indicated there was consensus among group members for licensing on-farms sales when there never was. IDPH’s goal is to issue the proposed raw milk rules in March 2014. If adopted, the rules would go into effect sometime next summer or fall.

South Dakota

On November 12 the South Dakota Legislative Rules Review Committee (LRRC) approved raw milk regulations issued by the South Dakota Department of Agriculture (SDDA). The LRRC had rejected a prior attempt by the department to approve the proposed regulations (see original post from Summer 2013 and Fall 2013 update below  for background); but this time the committee signed off on the rule because SDDA had complied with the necessary procedural steps it was required to take for approval. LRRC Chairman Rep. Timothy Johns admitted that he had received a foot high stack of emails opposing the regulations but the committee’s position was that its responsibility is not to judge the worthiness of the rules but only whether the department had followed the proper procedures in issuing them.

SDDA was wasting no time in implementing the regulations; Agriculture Secretary Lucas Lensch announced that the rules would be going into effect on December 11, 2013. Lensch said he had received dozens of requests to postpone implementation of the rules; despite South Dakota law giving government agencies the discretion to delay implementation of a regulation, Lensch rejected the requests, claiming that “to delay the rules puts public health and safety at the back of the line, and that has never been our intent.” Opponents of the regulations have considered going to the legislature to get a bill passed that would effectively overturn the new rules. The fallout from the approved rules was already taking place. Black Hills Milk LLC, a long-time raw milk dairy, notified their customers that it would no longer be selling raw milk and would instead be changing over to a herdshare program in order to be outside SDDA’s jurisdiction.

Update, Fall 2013

Proposed regulations threatening access to raw milk in Illinois and South Dakota continue in the rule-making process (see Wise Traditions Summer 2013 issue for background).

In Illinois, raw milk advocates were making progress in developing more favorable regulations than those originally proposed by a dairy workgroup last winter. The balance of power in the workgroup had shifted to the point that raw milk producers and consumers now made up the majority of those actively working on the new regulations. The focus of the group moved from limiting on-farm sales of raw milk to establishing a two-tier system in which unlicensed on-farm sales of raw milk would continue while producers wanting to sell at farmers markets—and possibly at retail stores—would be licensed and inspected by the state. It seems unlikely that the Illinois Department of Public Health would be issuing the proposed regulations before the end of the year.

In South Dakota, regulations proposed in May went to the Legislative Rules Review Committee (LRRC) on August 20 for final approval. Some modifications had been made to the rules since they were first proposed—notably, language clarifying that the South Dakota Department of Agriculture (SDDA) did not regulate herdshares; but the rules still posed a threat to the future of the licensed raw milk dairies in the state.

After hearing testimony from a number of raw milk advocates, the LRRC voted against approving the proposed regulations, sending them back to SDDA on the grounds that the department didn’t provide sufficient information to comply with the requirement that SDDA provide a statement detailing the impact the proposed regulations would have on small business. The LRRC also rejected the rules because its members believed SDDA failed to thoroughly explain what was being changed in the rules.

It is now up to SDDA to determine what its next step will be. No one trusts the department to make the regulations it resubmits to the LRRC any less burdensome for producers. SDDA provided further evidence of its bias against raw milk with its distribution of a flyer claiming that there were 24 illnesses in South Dakota in 2012 associated with raw milk consumption—a blatant lie, given that there hasn’t been a single reported foodborne illness outbreak in South Dakota attributed to raw milk consumption since 1999, if not further back. A number of raw milk supporters believe that SDDA
dairy administrator Darwin Kurtenbach wants to eliminate all raw milk dairies in the state.

Original Post, Summer 2013

Proposed regulations threatening access to raw milk in South Dakota and Illinois were in the initial stages of the rulemaking process in the two states. In Illinois the unlicensed sale of raw milk on the farm has long been allowed. A dairy workgroup under the direction of the Illinois Department of Public Health that started meeting in the fall of 2012 was still in the process of drafting regulations that could severely restrict both the ability of raw dairy farmers to make a living and consumer access. The latest draft of the workgroup calls for all farms selling raw milk to have a permit as well as to be compliant with Grade A standards, which would significantly increase expenses for raw milk producers. While increasing their costs, the proposed regulations would limit the amount of milk producers could sell to just one hundred gallons per month. Moreover, herdshare agreements would be prohibited.

The dairy workgroup originally did not have as members any farmers who made their living solely from raw milk sales before adding Donna O’Shaughnessy in February. O’Shaughnessy was the one responsible for alerting consumers and other raw milk farmers to the threat the regulations posed. On May 1, over one hundred people showed up at a hearing in Bloomington to oppose the draft regulations; even with the overwhelming opposition, the workgroup did not take any of the onerous provisions out of the draft. The most positive development to come out of the meeting were indications from the workgroup that it would delay issuing the proposed regulations until the end of the year. O’Shaughnessy now has a number of other raw milk producers as well as consumers to help in the fight to stop rule-making on raw milk sales. It will not be easy; the workgroup still has an anti-raw milk majority and its funding is being provided by the most anti-raw milk agency of them all―FDA.

In South Dakota the raw milk regulations were further along; the South Dakota Department of Agriculture formally issued the proposed regulations in May. The regulations call for financially burdensome animal health testing requirements, extensive pathogen testing and for raw milk dairies to be in compliance with the physical facility requirements mandated for conventional Grade A and Grade B dairies. There are only a handful of licensed raw milk dairies in the state now (raw milk sales are only legal in South Dakota with a license) and their numbers don’t look to be increasing if the proposed regulations go into effect. The biggest threat to raw milk producers and consumers in the state is SDDA dairy administrator Darwin Kurtenbach who has been quoted as saying, “I would probably drink gasoline before I’d drink raw milk.”

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On business, the author argues that raw milk, which is a growing market, is a link in the agricultural commerce chain that should not be disrupted. “It is a significant part of business for some producers who are only supplying what their customers demand.” On food safety, the author points out, “if there is ever a milk-related illness originating from one of these dairies, it would be easy to trace it to the source… There is no mixing of milk that would create a puzzle to unravel in finding the source of a milk-transmitted illness. That is vastly different from the problems we now see tracing those all-too-common food-related illnesses in our industrialized food system.”

The author concludes, “there are thoughtful, intelligent people who choose raw milk, knowing full well the risks and the benefits… We should err on the side of personal liberty and personal responsibility on issues such as this.”

Read the author’s arguments in full here:

http://www.capjournal.com/opinions/editorial/on-raw-milk-state-should-recognize-personal-liberty-personal-responsibility/article_160d0630-0e04-11e3-9b3d-001a4bcf887a.html

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Sen. Jensen references three quantitative microbial risk assessments published by the Journal of Food Protection, which conclude that unpasteurized milk is a low-risk food and there is actually increasing evidence that fresh, raw farm’s milk provide unique health benefits to children. Jensen also compares the South Dakota Department of Agriculture’s proposed rules regarding coliform levels, warning labels and pathogen testing to other states’ more relaxed approaches, including Utah.

Read his Letter to the Editor in full here:

http://www.argusleader.com/article/20130715/VOICES09/307150005/Letter-Raw-milk-reveals-benefits-health?nclick_check=1

The Campaign for Real Milk is a project of the nutrition education non-profit, The Weston A. Price Foundation. Donate to help fund research into the benefits of nutrient dense foods.  http://www.westonaprice.org/lab

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On March 25, HB 1057 was enacted into law; producers selling raw milk are now required to get a Grade B permit and may no longer sell raw cream. Formerly, producers were allowed to sell raw milk and cream without any permit. Under the new law, any producer seeking to obtain the Grade B permit must have an enclosed facility with separate rooms for milking and bottling; handcapping is allowed. For those dairy farmers who cannot afford the cost of building a facility, an official with the South Dakota Department of Agriculture has stated that those dairies not able to meet the Grade B requirements would be able to distribute raw milk legally through a herdshare program which would not be regulated by the department. Raw milk can be sold on the farm, through delivery and at farmers’ markets by producers with a Grade B permit. [See Spring 2010 update below for background on the new law].

Update, Spring 2010

Last fall the South Dakota Department of Agriculture (SDDA) issued proposed regulations that would have made it much more difficult to sell raw milk in the state (see Winter 2009 update below). Due to public outcry, State Secretary of Agriculture Bill Even withdrew the proposed rules. Instead, the department introduced a bill (HB1057) through the House Committee on Agriculture and Natural Resources at the start of the legislative session in January. While the bill is not as bad for raw milk producers as the proposed regulations were, it would still be more onerous than the current law. Under HB1057 producers selling raw milk would need to get a Grade B permit (current statute requires no permit) and would no longer be allowed to sell raw cream. Under the bill any producer wanting to obtain a Grade B permit would need an enclosed facility with separate rooms for milking and bottling (handcapping is allowed). The permit would cost $100 per year, which would cover the cost of an annual inspection; and in addition, there would be a $15 monthly milk testing fee. The bill also decriminalizes violations of the milk statute; however, the civil penalties could be as high as $5,000 per violation.

The biggest concern with the bill is the cost of building a facility that would be in compliance with the Grade B requirements. Lila Streff, a goat milk producer in Custer, sent written testimony to the House committee stating that she spent $85,000 to put up a facility that met Grade B standards. An official with SDDA said that those dairies that would not be able to meet the Grade B requirements would be able to distribute milk legally through a herdshare program which would not be regulated by the department. HB 1057 has passed the full House and was awaiting a vote by the full Senate in March.

Update, Winter 2009

The South Dakota Department of Agriculture (SDDA) has issued proposed raw milk regulations. Even though the stated purpose for the proposed rules is to protect public health, the rules are an attempt by SDDA to ensure that no raw milk is sold legally in South Dakota. Under current law, the general prohibition on the sale of raw milk does “not apply to milk, cream, skim milk or goat milk occasionally secured or purchased for his personal use by any consumer at the place or farm where the milk is produced;” neither does it “apply to any active farm producer of milk, selling and delivering his own production direct to consumers only.” There is no requirement that a farm be a licensed Grade A dairy under these exceptions. The only requirement for those selling under the exceptions is that any unpasteurized milk sold be “clearly labeled by the producer as ‘raw milk.’”

The proposed rules, in effect, take away rights given by the legislature by imposing expensive requirements that those dairies wanting to sell raw milk would not be able to afford. The proposed rules are typical barriers-to-entry regulations that will create a de facto ban on the sale of raw milk. The proposed regulations would change the current statutory ex­ception by requiring that the producer must have both a milk plant permit (which requires a bottling machine) and a milk producer’s license.

Permits would not be issued unless standards in the proposed regulations are met. These standards include a me­chanical bottling machine (handcapping would be prohibited) and a separate facility for bottling; for Grade A licensed dairies, a building separate from the milk parlor would be required for bottling. One licensed Grade A dairy farmer cur­rently selling raw milk estimated that if the proposed rules became law, he would have to spend a minimum of $76,000 to be in compliance after figuring the cost of a separate building for bottling, a storage tank for the bottling facility, pumps to move the milk from the parlor to the bottling facility, a mechanical bottling machine and the installation costs. Aside from equipment and construction requirements, there are other onerous provisions in the proposed rules. Raw milk producers would have to test twice yearly for bovine tuberculosis (TB) and brucellosis; no other State requires testing more than once a year. Raw milk would be tested in the final container (i.e., bottle) for coliform with the maximum per­missible level being ten per millimeter (10/ml). This standard has proven difficult for California raw milk licensed dairies to meet. Those producers selling raw milk would be required to maintain customer lists to be provided to SDDA upon request. Moreover, “[t]he list must be continually updated and include the data for at least 60 days. This customer list shall include customer names, addresses, phone numbers and quantities of raw milk sold for human consumption.”

A hearing was held on the proposed rules on November 17; almost thirty people spoke in opposition to the proposed rules while the only ones speaking in favor of the rules were South Dakota government employees. After the hearing, the South Dakota Secretary of Agriculture Bill Even indicated that he would probably modify the proposed rules but that opponents of the rules should not expect to get everything they want. The next hearing on the rules took place on December 21 before state Representatives and Senators who serve on the six-member South Dakota Legislature’s Rules Review Committee. If the proposed rules are not adopted by January 12, 2010, they will expire and SDDA would have to initiate the rule-making process again with the earliest the agency would be able to do so being April 2010.

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