On March 9 House Bill 4911 (HB 4911) became law; the bill provides, in part, that “raw milk may be sold by a seller in West Virginia to a consumer in West Virginia.” The new law takes effect June 7th.

The bill legalizes the sales of raw milk in retail stores; there is a labeling requirement that includes the warning statement, “Consuming unpasteurized raw milk may increase your risk of foodborne illness, especially for children, elderly, immunocompromise individuals, and persons with certain medical conditions.”

Under HB 4911, the Commissioner of Agriculture may issue regulations “in compliance with raw milk dairy industry standards.” HB 4911 initially had a clause providing that producers weren’t liable for illness attributed to milk consumption unless they intentionally contaminated the milk, but a Senate amendment to the bill cut out that provision. Courts don’t favor liability waivers for foodborne illness.

A decade ago, West Virginia had the most strict raw milk laws in the country banning sales both for human consumption and for pet consumption as well as prohibiting herdshare agreements. In 2016 the state legislature passed a bill legalizing herdshares, but that new law never took hold with raw milk producers; the law had costly testing requirements and also required farmers to file copies of each herdshare contract they had with the Commissioner of Agriculture.

HP 4911 passed through the House and Senate by big margins and became law when Governor Jim Justice did not take action on the bill (state law requires the governor to veto the bill within 15 days from the time it reaches his desk).

Congratulations to the bill’s lead sponsor, Delegate Michael Hornby (R) and West Virginia raw milk producers and consumers. Soon the Real Milk Legal Map will reflect this change for West Virginia.

Last updated 7/30/24, removed “Retail” from graphic

The post West Virginia: Bill Legalizing Raw Milk Sales Now Law appeared first on Real Milk.

COLORADO – LEGAL RAW MILK SALES ON THE TABLE

2023 was a big year for the expansion and legalization of raw dairy sales in the state legislatures. The 2024 state legislative session could see more of the same; one state where an effort to legalize raw milk sales is underway is Colorado. Currently, only distribution of raw milk through herdshare agreements is legal in the state; Colorado is an outlier in the region—all other states in the Rocky Mountain time zone have legalized raw milk sales.

With Governor Jared Polis indicating he would sign a bill legalizing raw milk sales, the Water Resources and Agriculture Review Committee in the state General Assembly has drafted an interim committee bill to legalize raw milk sales. If the bill is going to get broad support from raw milk producers and consumers, its sponsor is going to have to amend several provisions in the current version.

The interim bill legalizes direct sales from the raw milk producers to consumers at the producer’s place of business, at the consumer’s residence, or at a farmers market or roadside market, if the producer registers with the state department of agriculture. That’s favorable enough, but other provisions in the bill are potentially so onerous that many producers could decide not to make the transition from operating a herdshares program to directly selling raw milk.

For starters, the bill gives the state department of agriculture power to issue rules relating to recordkeeping and the storage, handling, labeling and transportation of raw milk beyond requirements already in the bill. The agriculture department has the power to embargo a producer’s raw milk and to prohibit its sale during an investigation determining whether the producer has violated any requirements either of the bill or of the rules the department has issued. If the department finds the producer has committed violations, it can either (1) request that the attorney general or district attorney bring a criminal or civil action; or (2) “upon notice and an opportunity to be heard, impose a civil penalty in amount not to exceed $1000 per violation. Each container of raw milk sold in violation of this section constitutes a separate violation. If the department determines that a producer has committed two or more separate violations within a twelve-month period, the department may suspend for a period of twelve months, the raw milk producer’s registration….” [emphasis added].

In addition to the draconian penalties the bill prescribes, it also gives the department power to distribute “educational materials regarding the consumption of raw milk, which materials may include language, stating that there are no proven health benefits associated with the consumption of raw milk, but there are known harms associated with its consumption, such as severe infections.”

As it now stands, the punitive measures in the bill could easily be a deterrent to producers changing from a herdshare operation to selling raw milk; there are no penalties contained in the Colorado herdshare law (Colorado Revised Statutes, section 25–5.5–117). There could be little or no increase in access to raw milk for Colorado consumers if the bill’s content remains the same.

NEW MEXICO – RAW MILK SALES NOW LEGAL IN ALBUQUERQUE

On December 5, Mayor Tim Keller signed an ordinance legalizing raw milk sales in Albuquerque by state licensed producers, including at retail stores in the city. Albuquerque stores selling raw milk must hold a raw milk permit issued by the city’s Environmental Health Department.

Retail sales of raw milk have long been legal in the rest of the state, but there has been a total ban on any sales in Albuquerque which has over one quarter of the state’s population.

Activist Lissa Knudsen, with help from the Raw Milk Institute and local raw milk producer Desmet Dairy, was the driving force behind the new ordinance. The ordinance passed out of the Albuquerque city council’s Finance and Government Operations Committee in October 2023 and the City Council the following month en route to the mayor’s desk.

Now that the sale of raw milk in retail stores has expanded to a city with over half a million people, the number of licensed dairies in New Mexico should increase. There are few licensed raw milk dairies in the state at the present time.

This article was published in the Winter 2023 issue of Wise Traditions in Food, Farming, and the Healing Arts, the quarterly journal of the Weston A. Price Foundation.

The post Raw Milk Updates Winter 2023 appeared first on Real Milk.

Blog post first published July 19, 2023. Updated for journal publication and republished September 30, 2023.

Graphic: Real Milk Legal Map [1]

View the updated Raw Milk Legal Map, color index, and state-by-state status

Over the past decade or so, a growing number of states have passed laws to either legalize the sale of raw milk and raw milk products or increase access to raw dairy; no year has been as productive as 2023. Resistance from the dairy industry and public health agencies is not as great as it once was, and demand for raw dairy products is increasing rapidly. Through either statute, regulation or policy, 46 states now allow the sale of raw milk for human consumption, the sale of raw milk for pet consumption, or the distribution of raw milk through herdshare agreements.¹ The four outliers prohibiting any sale or distribution of raw milk are Hawaii, Louisiana, Nevada, and Rhode Island.

LEGISLATION

The states passing raw dairy legislation this year include:

• IDAHO – Senate Bill 1036 (SB 1036) removes the limit on dairy animals that herdshare operations can have; under prior law, herds were limited to seven cows, fifteen goats, or fifteen sheep.
• IOWA – Iowa became the 46th state to legalize raw milk sales or distribution when Senate File 315 (SF 315) passed into law. The bill allows the sale from producer direct to consumer on the farm or through delivery of any dairy product. There are testing, labeling and recordkeeping requirements.
• NORTH DAKOTA – House Bill 1515 (HB 1515) legalized the unregulated sale of raw milk and any other raw dairy products from producer direct to consumer. Under prior law only distribution of raw milk and raw milk products through herdshare agreements was legal. HB 1515 originally allowed only Grade A dairies (who produce milk for pasteurization) to sell raw milk to the consumer, but those supporting raw milk sales by all dairies hijacked the bill, turning it into the version that passed. The North Dakota Department of Agriculture (NDDA) has issued a press release² claiming that sales are limited to raw milk only (and not other raw dairy products) under HB 1515 even though the bill states that farms selling raw milk direct to consumers aren’t subject to any provision of the chapter in the North Dakota statutory code, titled “Dairy Product Regulation.”³
• UTAH – House Bill 320 (HB 320) legalizes retail sales of raw milk and any product produced from raw milk if a licensed producer has a majority ownership in the retail store. Licensees may also sell these products on-farm as well deliver and/or sell via refrigerated mobile unit. Prior law limited the raw dairy products licensees could sell to milk, butter, and cream. sell via refrigerated mobile unit. HB 320 marks the fourth raw milk bill since 2015 that the mother-daughter team of Symbria and Sara Patterson, founders of the nonprofit Red Acre Center, have been responsible for passing.
• WYOMING – Senate Bill 102 (SB 102) allows the sale of any raw dairy products produced by unregulated producers in retail stores. Prior law limited transactions to direct-to-consumer. When it comes to food freedom of choice, Wyoming remains way ahead of the curve; allowing any raw dairy products produced by an unregulated farmer to be sold in a retail store would be unfathomable in any other state. How much raw dairy is sold in Wyoming retail stores will likely be determined by what stores’ requirements for a producer to obtain product liability insurance are; it is difficult enough for regulated raw milk producers to get a product liability policy.

The biggest development in 2023 was in Iowa, a state that had once jailed someone for selling raw milk. Senator Jason Schultz (R) and farmer Tom German had been trying for 17 years to legalize raw milk sales in the state. A difference maker this time around was dairy farmer Esther Arkfeld, a mother with young children, who was the face of the effort to legalize raw milk sales in Iowa. Lobbyist Tyler Raygor of Americans for Prosperity (AFP) also helped; Raygor and another member of AFP were the only ones who registered with the state to lobby for the bill; 24 people—representing government agencies, the dairy industry, and Farm Bureau among other organizations—registered to lobby against SF 315.

The national opposition to further legalization of raw milk sales in any state made Iowa a litmus test. Mary McGonigle-Martin, a board member of the national food safety group Stop Foodborne Illness said, “Public health has lost the war on raw milk”⁴. McGonigle-Martin had testified four different times in opposition to Iowa raw milk bills. Passage of SF 315 into law struck a nerve with the mainstream media, which published more stories about raw milk after the Iowa law went into effect than it had in years. USA Today, the New York Times and Forbes, among other major media, ran stories warning about the “health risks” of drinking raw milk in an attempt to dissuade their readers from joining the millions of people who are already consuming the product.

A trend in recent years that accelerated in 2023 was the legalization of the sale of raw dairy products other than milk. In addition to Iowa, North Dakota, Utah, and Wyoming, laws have also gone into effect since 2021 in Alaska, Montana, New Hampshire, and Texas, allowing the sale of numerous products made from raw milk. Value-added is where the money is at; the trend bodes well for the ability of small-scale dairy farmers to make a living. It appears that the dairy processing lobby is no longer fighting the legalization of value-added raw dairy sales like they once did.

The food safety argument–the only argument the opposition has staked its stance on–is increasingly in favor of raw milk proponents. The latest foodborne illness outbreak figures from the Centers for Disease Control (CDC) are that in 2020 there were five foodborne illness outbreaks resulting in 28 illnesses that were attributed to raw milk consumption.⁵ The number of raw milk consumers continues to increase considerably; hundreds of thousands of consumers go to realmilk.com each year for the first time to find a source of raw milk in their state. The number of illnesses attributed to raw milk consumption is significantly less than it was a decade ago.

Increased demand, fewer illnesses, and deteriorating quality in the conventional food supply are a formula for raw milk legalization. The next state to lift the prohibition on any raw milk sales or distribution could be Hawaii. That state has had bills for legalizing raw milk sales by micro dairies passed out of the House the last two years only to die in Senate committee.  There is only one dairy producing raw milk for pasteurization in Hawaii. For reasons of food security alone, a raw milk bill there should pass into law.

Whichever of the four remaining states is next to get rid of the ban, the goal of Weston A. Price Foundation President Sally Fallon Morell to have legal raw milk distribution in every state is getting closer to realization.

REGULATION CHANGE

MISSISSIPPI: Until recently, Mississippi allowed the sale of only raw goat milk, and then only if the farm had nine goats or fewer. Thanks to state Agriculture Commissioner Andy Gipson, that has now changed per the policy of the Mississippi Department of Agriculture. Under the policy, distribution of raw milk (including cow’s milk) through herdshare agreements is legal; there has been some pushback from the state department of health, but the policy remains in place. Farm-to-Consumer Legal Defense Fund (FTCLDF) has written herdshare contracts for its Mississippi members. Gipson has been one of the more progressive agriculture commissioners in the country. In 2020 he adopted a policy on distribution of meat from custom slaughtered and processed animals—better enabling small farmers and ranchers to make a living—by removing the limit on the number of owners there could be for a custom animal. Prior to becoming commissioner, Gibson served in the Mississippi legislature where he supported several food freedom bills, including legislation to legalize the sale of raw cow’s milk.

COURT CASE: TEST CASE FOR MAINE FOOD SOVEREIGNTY ACT

An important case from Maine Food Sovereignty Act (FSA) and possibly the state’s Right to Food Constitutional Amendment (RTFA) is ongoing in Kennebec Superior Court. Nathan and Rhiannon Deschaine, owners of Kenduskeag Kitchen, their customer Frank Roma, and the Farm-to-Consumer Legal Defense Fund (FTCLDF) have sued Jeanne Landrew, Commissioner of the state Department of Health and Human Services (DHHS), for violations of the FSA and the RTFA. The Deschaines prepare and sell home-cooked meals in Kenduskeag, a town which per the FSA, has passed an ordinance allowing the unregulated sale of most foods direct from the producer to consumer. The FSA gives towns and cities in Maine, the power to adopt ordinances legalizing unregulated local producer-to-consumer commerce within their boundaries.

DHHS sent an enforcement letter to the Deschaines in October 2022, claiming that the couple needed a license to operate their business because, among other reasons, “Kenduskeag Kitchen does not meet [the] definition of direct producer to consumer transactions because it is preparing and selling meals that contain food products and/or ingredients that are purchased from other sites.” The FSA contains no restriction that producers engaging in unregulated commerce under a town ordinance are limited to preparing food with only ingredients that they grow.

Roma is suing DHHS for a violation of the RTFA, which gives individuals the right “… to consume the food of their own choosing …as long as an individual does not commit trespassing, theft, poaching, or other abuses of private property rights, public lands, or natural resources in the harvesting, production or acquisition of food.” Plaintiffs are seeking to have DHHS enjoined from regulating the operation of Kenduskeag Kitchen and requiring it to be licensed; the department has filed a motion to dismiss the lawsuit. A favorable resolution to the case for
the Deschaines, Roma and FTCLDF should lead to a more expansive interpretation of the FSA and RTFA statewide, improving food security and food quality in Maine.

This article was originally a blog post on realmilk.com, and then updated and published in the Fall  2023 issue of Wise Traditions in Food, Farming, and the Healing Arts, the quarterly journal of the Weston A. Price Foundation.

References

1. WAPF, Raw Milk Legal Map and State-by-State Notes, latest update July 11, 2023. https://www.realmilk.com/realmilk-legal-map/
2. NDDA, “Raw milk sales now legal, limited to fluid milk,” [Press release], August 4, 2023. https://www.ndda.nd.gov/news/raw-milk-sales-now-legal-limited-fluid-milk
3. North Dakota Century Code, Chapter 4.1-25, “Dairy Product Regulation,” p. 10 (point 3 of clause 4.1-25-40.1). https://ndlegis.gov/cencode/t04-1c25.pdf#nameddest=4p1-25-40p1
4. Tony Leys “Public Health Has Lost the War – States legalize raw milk, despite public health warnings,” USA Today, July 3, 2023. https://www.usatoday.com/story/news/nation/2023/07/03/raw-milk-legalized-states-unpasteruizeddisease-risks-public-health/70369454007/
5. Centers for Disease Control and Prevention (CDC). Access® database for outbreaks reported from 2005 to 2020 from all transmission sources (food, water, animal contact, environmental, and person-to-person) provided by Hannah Lawinger, CDC NORS Data Request Manager on May 26, 2021.

The post Big Year for Raw Milk in State Houses appeared first on Real Milk.

Several major farm organizations, including the Iowa State Dairy Association and Iowa Dairy Foods Association, registered to lobby against the bill. Proponents included Americans for Prosperity, a conservative-leaning national libertarian group that helped organize the Tea Party movement.

“The passage of SF 315 is a victory for families and agriculture across our great state and reaffirms that the government has no right to dictate what Iowans choose to drink,” Tyler J. Raygor, deputy state director of Americans For Prosperity-Iowa, said in a statement following the Senate’s vote. “With this legislation, Iowans will have the freedom to choose what to feed their family while enabling innovation in the fresh milk industry.”

The new law has requirements for storing and selling raw milk and preventing sales if the cows, goats or sheep recently received antibiotics. It also outlines testing for bacteria and requires the records be made available to consumers and state officials.

A big thank you to dairy farmer Esther Arkfield who has lobbied patiently for allowing raw milk sales in Iowa.

With the bill’s passage, there remain only four states where farmers cannot provide raw milk in any manner: Louisiana, Hawaii, Nevada and Rhode Island.

We are also working to liberalize regulations in a number of states, particularly New York, where regulations allow only raw milk sales from the farm. New York raw milk farmers are prevented from delivering to the huge market of New York City, or from selling at farmers markets.

This article was first published in the Summer 2023 issue of Wise Traditions in Food, Farming, and the Healing Arts, the quarterly journal of the Weston A. Price Foundation.

The post Raw Milk Updates, Summer 2023 appeared first on Real Milk.

GEORGIA – HOUSE BILL 1175 FOR RAW MILK SALES

If there ever was a sign of how much the political and regulatory landscape for raw milk has changed, it is House Bill 1175 (HB 1175), legislation that is currently before the Georgia Senate Agriculture and Consumer Affairs Committee after having passed out of the House by a 100-62 vote. HB 1175 would legalize the licensed sale of raw milk for human consumption direct to consumers—something many bills in state legislatures around the country have proposed in recent years. Georgia law has long allowed the sale of raw milk for pet consumption. What’s different about this bill is that the driving force behind it is Georgia Milk Producers (GMP), marking the first time in memory that a conventional dairy industry group is pushing for legal raw milk sales.

GMP is a producer organization located in Watkinsville, Georgia; its mission is to support, sustain and help the Georgia dairy industry grow. On March 10, 2021, GMP Executive Director Farrah Newberry testified before the Georgia House Committee on Agriculture and Consumer Affairs that GMP had changed its position on raw milk and now supported legalization of sales for human consumption. In her testimony, Newberry disclosed that Georgia had declined from five hundred twenty-five dairies producing raw milk for pasteurization in 2000 to one hundred fourteen in 2021. She noted that Kroger and Publix operate the only processing plants in the state; Georgia has no plants producing either ice cream or cheese. Newberry told the committee that Grade A pasteurized milk was selling for $2.99 to $3.99 per gallon in Georgia while raw pet milk was going for $8 to $12 per gallon. She concluded her testimony by stating that legal raw milk sales for human consumption would protect the dairy industry in Georgia by having adequate safeguards in law for the production of safe raw milk and would provide market opportunities for smaller Grade A producers.

HB 1175 contains provisions not usually found in raw milk bills, such as clauses governing adding water to the milk, the use of “processed animal waste derivatives used as feed ingredients for any portion of the total ration of the lactating dairy animal,” and the prohibition against “unprocessed poultry litter and unprocessed recycled animal body discharges being fed to lactating dairy animals.” The bill gives broad power to the Georgia commissioner of agriculture to adopt regulations implementing and enforcing the bill’s requirements; the regulations must be of uniform application. The bill is written for Grade A dairies also wanting to sell raw milk for direct consumption; it’s unlikely that micro dairies looking to sell raw milk direct to the final consumer will be able to afford the cost of compliance.

ALASKA – REGULATIONS TO LEGALIZE RAW MILK SALES

Another sign of how much the political and regulatory landscape has changed for raw milk is a proposed regulation the Alaska Department of Environmental Conservation (DEC) issued on January 17 that would legalize sales of raw milk, cheese, butter, cream, yogurt, kefir and ice cream direct to the consumer and at retail stores. Less than a year ago, Governor Mike Dunleavy signed House Bill 22 (HB 22) into law, legislation that legalized the distribution of all raw dairy products through herdshare agreements; DEC opposed the measure when Representative Geran Tarr introduced the bill in 2019. The impetus for the proposed regulation was a survey DEC conducted in August 2021 through the Office of the State Veterinarian to determine the level of interest in raw milk sales; one hundred seventy-nine people responded, with nineteen animal owners interested in selling their animals’ milk and one hundred four consumers interested in purchasing raw milk.

In support of its decision, DEC posted the following statement on its website: “The most critical concern Alaskans hold for the future of food is the security of its food supply,” read a 2014 study on food security commissioned by the Alaska Department of Health and Social Services, with collaboration from the Alaska Food Policy Council. The supply chain disruptions that Alaskans have observed during the Covid-19 pandemic have further highlighted Alaska’s need to enhance the security of its in-state food supply.

Under the proposed regulations, producers are not required to have a permit but must register with DEC and obtain a registration number. DEC would not conduct routine inspections; the department would inspect only in the event a consumer complaint is filed or if either a foodborne illness or an animal health outbreak is suspected. There are container labeling, recordkeeping and physical facility requirements as well as a requirement to keep milk samples taken from each batch for fourteen days after milking; there is no routine testing mandate. The proposed regulation also mandates a “veterinarian-client patient relationship to oversee the health of the herd.”

There are provisions in the proposed regulations that could be amended to help producers. The draft regulation prohibits the sale not only of raw milk but any other raw milk products, including butter, more than four days after the production date. The draft could have amended the state food code to allow retail stores to sell raw milk without having to obtain a variance to do so; under current law, retail stores can sell only Grade A pasteurized milk products (except for raw cheese aged sixty days). It is also unclear how many of the dairies interested in selling raw milk and raw milk products would be able to meet the physical facility requirements in the proposed regulation.

This article was first published in the Spring 2023 issue of Wise Traditions in Food, Farming, and the Healing Arts, the quarterly journal of the Weston A. Price Foundation.

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Canada: New Raw Milk Advocacy Organization

The Canadian Artisan Dairy Alliance (CADA) has begun operations. CADA is a collective of consumers working to lift Canada’s raw milk ban. The organization’s mission is using research, education, and advocacy to “lobby for access to safe, legal, raw milk and raw milk products produced under appropriate regulation and inspection.”

When it comes to raw milk laws and enforcement, Canada is arguably the most draconian nation in the world. In February 2021 an Ontario judge rejected a Charter (constitutional) challenge to end that province’s raw milk ban; subsequent to that decision government regulators have raided Ontario raw milk farmers, including Michael Schmidt, the individual most responsible for the increase in demand for raw milk among Canadian consumers. Canadians are among the one percent of the world’s population living in countries prohibiting the sale or distribution of raw milk. An organization like CADA is badly needed to turn around the hostile climate that currently exists.

Those interested in supporting CADA can join as members, donate and/or help with lobbying. Go to artisandairy.ca for more information.

New Zealand: First of “New Zealand Nine” Sentenced

On November 23, District Court Judge LC Rowe sentenced the defendants from the first of nine raw milk farms facing criminal charges when he fined both farmers of Alt Energy Farm—Cedric Backhouse and his wife Susan Galea (a WAPF chapter leader)—NZ$25,000 each for violations of New Zealand’s raw milk and animal products laws.

The New Zealand Ministry for Primary Industry (MPI) had brought criminal charges against Backhouse and Galea for 26 violations of the country’s Raw Milk for Sale to Consumers Regulations 2015 (the “2015 regulations”) and the Animal Products Act (APA); the potential penalties for each defendant were up to 19 years in jail and NZ$1.8 million (over 1.2 million in U.S. dollars) in fines (see Wise Traditions Spring, 2021 issue for more background).

Around the time MPI issued the 2015 regulations there were roughly 200 raw milk dairies in New Zealand; today fewer than 20 percent of those dairies are still in business. The reason for the decline is the cost of compliance with the new regulations. Backhouse and Galea attempted to avoid the burdensome requirements by distributing meat and milk products through a herdshare agreement which they operated for three years. The judge rejected the legality of the farm’s herdshare stating, “It was simply a way of selling raw milk to consumers.”

Judge Rowe imposed the fine for four of the 26 charges that MPI brought against Backhouse and Galea; three of the charges related to the sale of raw milk and the fourth to the sale of “homekill meat.” The judge acknowledged that neither defendant had been accused of making anyone sick with their products; he also noted in sentencing the defendants, “[N]either of you have previous convictions and you can be regarded as otherwise of good character”— all mitigating factors in determining the amount of the fine. Chillingly he stated, “I do not start at imprisonment (in deciding on the penalty) because I am not asked to. This is something MPI should reflect on. If I had been asked to consider penalties other than a fine, including imprisonment, I would have. . . . The outcome of this sentencing should not be taken as any sort of guide to or tariff in future cases”—leaving open the threat of the other charged raw milk farmers going to jail for violating laws designed to put them out of business.

This article first appeared in the Winter 2021 issue of Wise Traditions in Food, Farming, and the Healing Arts, the quarterly journal of the Weston A. Price Foundation.

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September 2021–On August 16, Alaska became the latest state to legalize the sale or distribution of raw dairy products other than milk or cheese aged sixty days when Governor Mike Dunleavy (R) signed House Bill 22 (HB 22) into law, legislation that legalizes the distribution of any raw dairy product through a shared animal (herdshare) agreement. Value-added is where the money is; states are increasingly expanding the kinds of products raw milk producers can legally sell or distribute. This past year, Montana and Texas also opened up similar opportunities for raw dairy farms.

What follows are listings of states that have legalized the sale or distribution of raw cream, butter, and yogurt through statute, regulation, written policy, or court decision. There is also a category for states that have legalized the sale or distribution of all raw dairy products including ice cream and unaged raw cheese. Federal law permits the sale of only raw cheese aged at least sixty days in interstate commerce, but there is no federal prohibition on the sale of any raw dairy product in intrastate commerce; it’s up to the states to decide that.

There are several states that appear to be allowing the sale or distribution of raw dairy products through unwritten policy; those states are not included in this list.

There are fewer reports of foodborne illness attributed to raw dairy products in recent years; with their good overall track record for safety, and the industrial food system’s decreasing reliability, it’s important to continue the expansion of raw dairy product legalization within the states to strengthen the local food supply.

States Allowing Legal Sale or Distribution of Raw Dairy Products

Each state is given a designation: “(d)” meaning only direct-to-consumer sales or distribution for human consumption is legal, or “(r)” meaning sales in retail stores are legal. In Maine’s case, “(d)” refers to the towns in the state that have legalized the unregulated sale of raw dairy products with the passage of a local food sovereignty ordinance; there is no equivalent state law in Maine. There are a few states that have legalized the unregulated sale or distribution direct to the consumer of certain raw dairy products through one law and the retail sale through another law. If products are legal in both types of transaction, the state will be designated as “(d, r).”

RAW CREAM

Alaska (d)
Arizona (r)
California (r)
Idaho (d, r)
Kansas (d)
Maine (d, r)
Michigan (d)
Minnesota (d)
Missouri (d)
Montana (d)
Nebraska (d)
New Hampshire (d, r)
New Mexico (r)
North Carolina (d)
North Dakota (d, r)
Oregon (goat & sheep only) (r)
South Dakota (d)
Tennessee (d)
Texas (d)
Utah (d, r)
Washington (r)
Wisconsin (d)
Wyoming (d)

RAW BUTTER

Alaska (d)
Arizona (r)
California (r)
Idaho (d, r)
Kansas (d)
Maine (d, r)
Michigan (d)
Montana (d)
New Hampshire (d)
North Carolina (d)
North Dakota (d)
Tennessee (d, r)
Utah (d, r)
Wyoming (d)

RAW YOGURT

Alaska (d)
Idaho (d, r)
Kansas (d)
Maine (d, r)
Montana (d)
New Hampshire (d)
North Carolina (d)
North Dakota (d)
Tennessee (d)
Texas (d)
Utah (d)
Wyoming (d)

ALL RAW DAIRY PRODUCTS(INCLUDING UNAGED RAW CHEESE)

Alaska (d)
Maine (d)
Montana (d)
North Carolina (d)
North Dakota (d)
Tennessee (d)
Utah (d)
Wyoming (d)

This article first appeared in the Winter 2021 issue of Wise Traditions in Food, Farming, and the Healing Arts, the quarterly journal of the Weston A. Price Foundation.

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On May 24, U.S. District Judge Rudolph Contreras (2021)¹ rubber-stamped the U.S. Food and Drug Administration‘s (FDA’s) denial of a citizen petition² filed by the Farm-to-Consumer Legal Defense Fund and dairy farmer Mark McAfee (petitioners) to lift the interstate ban on raw butter, disposing of petitioners’ appeal³ by granting FDA‘s motion for summary judgment. The upshot of the judge’s decision is that FDA can ban any food in interstate commerce it wants under its power to regulate communicable disease;⁴ FDA did not provide any evidence in the case specifically establishing that commercially produced raw butter has ever been blamed for causing a foodborne illness outbreak in the U.S.⁵

FDA had rejected the petition in February 2020⁶, and FTCLDF and McAfee appealed to the U.S. District Court for the District of Columbia. Two issues were before Judge Contreras: whether FDA had the statutory authority to require pasteurization for butter, and second, whether FDA acted arbitrarily when it banned a food in interstate commerce that had little or no record of making people sick.

Through a statute in the Federal Food, Drug and Cosmetic Act (FFDCA, 21 USC 341⁷), Congress has given FDA the power to issue standard of identity regulations for most foods; standard of identity regulations are requirements prescribing what a food product must contain to be marketed under a certain name in interstate commerce. For instance, the standard of identity for milk in final package form requires that it be pasteurized or ultra-pasteurized and that it contain not less than 8.25% non-fat milk solids and not less than 3.25% milkfat.⁸ FDA’s long-held position is that the pasteurization requirement can be part of the standard of identity. As Judge Contreras noted in his opinion (p. 6),⁹ standards of identity “promote honesty and fair dealing in the interest of consumers.”

There are several foods that Congress prohibits issuing standard of identity regulations for and one of those is butter. Congress has defined butter in the FFDCA which serves as a standard of identity for the food; that definition does not require that butter be pasteurized. When FDA violated the FFDCA by requiring that butter in interstate commerce be pasteurized, they claimed it had the power to do so under the authority given it to regulate communicable disease⁴. The Public Health Service Act (PHSA) authorizes FDA “to make and enforce such regulations as in its judgment are necessary to prevent the introduction, transmission or spread of a communicable disease from foreign countries into the states or possessions or from one state or possession into any other state or possession” (42 USC 264).¹⁰ There is little or no evidence that Congress intended to give FDA the power to ban a food completely in interstate commerce under the PHSA, but that is what the judge found in his opinion.

In discussing the conflict between the FDA’s pasteurization requirement under the PHSA and the FFDCA’s statutory definition of butter, the judge stated:

• [T]he two statues hardly touch on the same topic, much less conflict in such a way that one would have to supersede the other. While the PHSA is concerned with containing the spread of infectious diseases regardless of the means of transmission, standards of identity are meant to ensure that consumers know what foods they are buying. Rarely do two statutes with such different purposes conflict.⁹ (p. 7)

What the judge ignored in making this statement is that both standard of identity regulations and Congress’ definition of butter are concerned with public health; the 60-day aging requirement for raw cheese and the pasteurization requirement for milk and other dairy were implemented by FDA because of the agency’s health concerns. When Congress passed the law creating the definition for butter, it didn’t think a pasteurization requirement was necessary to protect the public health; it could have amended the definition at any time since to require pasteurization but has never done so.

The second issue before the court was petitioners’ claim that the pasteurization requirement for butter was scientifically “unsupported” and therefore “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law” (pp. 4, 17).³ On this issue, the judge’s holding against McAfee and FTCLDF was even more troubling. The most important consideration in determining whether there is scientific support for banning a food in interstate commerce is looking at the food’s history of making people ill. In the court record before Judge Contreras, there are only two foodborne illness outbreaks since 1908 where raw butter is definitively listed as the suspected cause of illness; in both outbreaks the butter was homemade.¹¹ In its letter to McAfee and FTCLDF rejecting the petition, FDA included a table listing 13 foodborne illness outbreaks attributed to butter from 1908 through 2003. There is a column in the chart indicating pasteurization status; only one of the outbreaks has “unpasteurized” in the column while the other 12 have either “not specified” or “not specified but commonly unpasteurized” in the table (pp. 18-22).¹¹

The judge upheld the ban on raw butter in interstate commerce even though FDA failed to specifically link a single outbreak to commercially produced raw butter. There are a dozen states that allow the sale or distribution of raw butter, including California where Organic Pastures Dairy Company, a business McAfee founded, has sold well over 2 million pounds of raw butter the past 20 years without incident (p.14).³

The judge justified his decision by indicating FDA’s findings that raw butter could contain pathogens that may cause illness were sufficient for him to uphold the ban, but shouldn’t the number of illnesses a food has caused be a more important consideration? Moreover, any food that is improperly produced or handled is capable of making people sick. FDA shouldn’t have the power to ban any food under its authority to regulate communicable disease; under the judge’s ruling, there isn’t a food the agency conceivably couldn’t ban.

In his ruling, Judge Contreras stated that the court had to be “highly deferential” on FDA‘s decision to ban raw butter, citing a legal doctrine called Chevron Deference, a doctrine which basically leaves the courts powerless to overturn agency decisions (p. 4).¹ As long as Chevron Deference is in effect, lawyers for the agencies before the court might as well write the opinions themselves. If the courts ever want to reestablish their independence in reviewing agency decisions, this doctrine needs to go.

The best path to overturning the sham that is the raw butter ban is to legalize its sale or distribution one state at a time. Tennessee legalized the retail sale of raw butter in 2019.¹² Utah did the same in 2020,¹³ and Montana has legalized the sale from producer direct to consumer in 2021.¹⁴ The petition has further established the excellent track record for food safety of raw butter; the move to legalize sales of the product in the state legislatures should continue.

Alexia Kulwiec, executive director of the Farm-to-Consumer Legal Defense Fund, offered this statement, “FTCLDF is very disappointed¹⁵ in the decision, and has until late July to decide whether it will appeal. FTCLDF is considering all available options at this time.”¹⁶

Photo Credit: “Bread and Butter” by Marina Shemesh on PublicDomainPictures.net

References

1. Contreras, R. (2021, May 24). Order: Denying plaintiffs’ motion for summary judgment and granting defendant’s motion for summary judgment. [19-3161 (RC)] U.S. District Court for District of Columbia. https://www.realmilk.com/wp-content/uploads/2021/07/2021-05-24-Order-Denying-Plaintiff_Granting-Def-SJ.pdf

2. McAfee, M., & Farm-to-Consumer Legal Defense Fund. (2016, June 22). Citizen petition seeking legalization of interstate transport of unpasteurized butter. p. 5.
https://www.realmilk.com/wp-content/uploads/2020/03/1-CitPetFDA-Butter-062216-1-1.pdf

3. McAfee, M., & Farm-to-Consumer. (2020, May 25). Second amended complaint [Civil Action No. 19-3161]. https://www.realmilk.com/wp-content/uploads/2021/07/Filed-Second-Amended-Complaint-5.26.20.pdf

4. Kennedy, P. (2017, April 14). Raw butter, a communicable disease? A Campaign for Real Milk. https://www.realmilk.com/raw-butter-communicable-disease/ (Originally published 2016, June 23 at
Farm-to-Consumer

5. Kennedy, P. (2016, March 17). OPDC citizens petition for raw butter. A Campaign for Real Milk. Citing “the CDC has no outbreaks, no cases of illness or death recorded in its databases related to commercially produced raw butter illness or pathogen defects.” https://www.realmilk.com/opdc-citizens-petition-for-raw-butter/

6. Kennedy, P. (2020, March 18). FDA Denies Petition to Lift Interstate Ban on Raw Butter. A Campaign for Real Milk. https://www.realmilk.com/fda-denies-petition-to-lift-interstate-ban-on-raw-butter/

7. United States Code. (1938/1993). 21 USC 341 – Definitions and standards for food: “No definition and standard of identity and no standard of quality shall be established for fresh or dried fruits, fresh or dried vegetables, or butter, except that definitions and standards of identity may be established for avocadoes, cantaloupes, citrus fruits, and melons.” Legal Information Institute, Cornell Law School. Retrieved July 4, 2021 from https://www.law.cornell.edu/uscode/text/21/341

8. Department of Health and Human Services. (1993/2020, November 10). 21 CFR 131.110(a) – Milk. Code of Federal Regulations. Retrieved July 4, 2021 from https://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfcfr/CFRSearch.cfm?fr=131.110

9. Contreras, R. (2021, May 24). Memorandum opinion: Denying plaintiffs’ motion for summary judgment and granting defendant’s motion for summary judgment. U.S. District Court for District of Columbia. [McAfee et al v. U.S. Food and Drug Administration, No. 1:2019cv03161 – Document 23 (D.D.C. 2021). https://law.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2019cv03161/212153/23/] Accessible at https://www.realmilk.com/wp-content/uploads/2021/07/2021-05-24-Memorandum-Opinion-on-SJ-Orders.pdf

10. United States Code. (1944/2002). 42 USC 264 – Regulations to control communicable diseases. Legal Information Institute, Cornell Law School. Retrieved July 4, 2021 from https://www.law.cornell.edu/uscode/text/42/264

11. FDA. (2020, February 27). Letter from FDA to Mark McAfee and Pete Kennedy, Re: Docket No. FDA-2016-P-1852 [Letter]. https://www.realmilk.com/wp-content/uploads/2021/07/FDA-RawButterPetition-Response-2-27-2020.pdf

12. Kennedy, P. (2019, May 7). Raw butter sales now legal in Tennessee. A Campaign for Real Milk. https://www.realmilk.com/tennessee-raw-butter-sales-now-legal/

13. Kennedy, P. (2020, April 19). Raw Butter and Raw Cream Sales Now Legal in Utah. A Campaign for Real Milk. https://www.realmilk.com/raw-butter-and-raw-cream-sales-now-legal-in-utah/

14. Kennedy, P. (2021, May 10). Montana Local Food Choice Act Now Law. A Campaign for Real Milk. https://www.realmilk.com/montana-local-food-choice-act-now-law/

15. Kennedy, P. (2020, March 21). FTCLDF Takes the FDA to Court Over Raw Butter Petition. A Campaign for Real Milk. https://www.realmilk.com/ftcldf-takes-the-fda-to-court-over-raw-butter-petition/

16. Kulwiec, A. (personal communication via email, 2021, June 16).

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On April 30, Governor Greg Gianforte signed Senate Bill 199 (SB 199), also known as the Montana Local Food Choice Act, into law. Senator Greg Hertz (R-Polson) sponsored the bill. The new law goes into effect immediately.

SB 199 allows the unregulated intrastate sale of most homemade foods from producers to informed end consumers including all raw dairy products if the producer keeps no more than “five lactating cows, 10 lactating goats or 10 lactating sheep” on the farm for the production of milk. There are limited testing requirements for raw milk producers. Producers can sell poultry under the Act if they slaughter and process no more than 1,000 birds during a calendar year and comply with federal recordkeeping requirements.

Livestock producers and homemade food producers may sell “meat and meat products processed at a state-licensed establishment or a federally approved meat establishment” but only if they have obtained a temporary food establishment permit.

Producers must inform the end consumer that the homemade food they are selling has not been licensed, permitted, certified, packaged, labeled nor inspected. Sales and delivery under SB 199 can take place at a farm, ranch, home office, “traditional community social event” (the term includes farmers markets) as defined by the bill, or another location agreed to between the producer and/or the producer’s agent and the informed end consumer.

The bill states that a state or local government agency cannot require “licensure, permitting, certification, packaging, labeling, or inspection that pertains to the preparation, serving, use, consumption, delivery, or storage of homemade food or a homemade food product….” SB 199 does not prevent a state or local health officer from inspecting a producer selling homemade food if the “officer is investigating a complaint based on an illness or an outbreak suspected to be directly related to that homemade food or homemade food product.”

Given his business background, Hertz is one of the last people you would expect to sponsor a bill like SB 199, having owned and operated grocery stores the past 30 years. He sponsored a similar bill as a state representative in 2017, but the legislation died in the Senate after passing in the House. A difference this time around was that Montanans have a legislature and governor that are more in line with the “live and let live” liberty-minded views of its people; a supporter of the bill spoke at the House committee hearing on SB 199 about rugged individualism and a culture of self-sufficiency being part of the Montana way of life. In the past, Montana has had a government that favored a regulatory scheme closer to California’s than neighboring Wyoming’s. Hertz commented that a cottage food bill which passed into law in 2015 was fifty pages long.

Hertz did a masterful job moving the bill through the legislature. There was strong opposition to the bill from organizations such as the Montana Milk Producers Association, the Montana Department of Livestock (DOL), the Montana Medical Association, the Montana Veterinary Medical Association, public health officials and several sustainable agriculture nonprofits. If someone had only seen the committee hearings and known nothing else about SB 199, it would have been easy for them to believe the bill wasn’t going to pass. Hertz was able to overcome the opposition by successfully lobbying committee members one on one until he had the votes he needed. He characterized SB 199 as a jobs bill, and that message helped carry the day. The support for the bill eventually overwhelmed opponents. The state legislative website tallies up for each Bill the proponents and opponents who contact it; over 1,500 people contacted the site In support of SB 199 making it the fourth most popular bill this session—only 53 opposed.

The most contentious part of the bill was the legalization of raw dairy sales. Something proponents had in their favor was that SB 199 marked the fifth consecutive session a raw milk bill was before the legislature and at least some legislators were getting tired of having to consider the issue over and over again. Hertz said during the House committee hearing on the bill, “We need to put the raw milk discussion behind us.” He pointed out that in states like Wyoming and Maine that have also adopted food freedom bills (in Maine at the local level with 80 towns passing food sovereignty ordinances), there hasn’t been a single foodborne illness outbreak even though there is no limit on the herd size in either state. One other factor in favor of legal raw milk sales was testimony at the committee hearings that only 45 Grade A dairies remain in Montana.

In addition to Hertz, much credit for the passage of SB 199 is due Chris Rosenau, an activist from the Bitterroot who has spent thousands of uncompensated hours working for legalization of raw milk sales in Montana. In 2017 Rosenau was instrumental in the state government’s adoption of a policy allowing the distribution of raw milk through Montana securities law. She has worked for legalization of raw milk sales since that time and was able to gather substantial support for SB 199 through her work for the advocacy group Raw Milk Montana.

DOL tried to kill the bill by posting a fiscal note claiming the meat and poultry provisions as originally written in SB 199 would cost Montana its state meat inspection program and over $1 million a year in funding from USDA. Hertz amended the meat and poultry language, successfully addressing that concern. DOL had some of the more onerous requirements in the country for producers processing poultry on the farm under the federal 1,000-bird exemption. The number of farmers processing under that exemption should increase significantly.

With the accelerating deterioration of quality in the conventional food supply, passage of bills like SB 199 is becoming more important. In his testimony on the bill before the House Human Affairs Committee, Hertz said, “We have traded our health, our food security, our local economy for highly processed foods, all in the name of food safety,”

When it comes to health, food safety, food security, and local economies, locally produced food is superior to industrial food in every respect. Congratulations to the people of Montana for the passage of SB 199.

Originally published on 10 May 2021 under title, “Montana Food Freedom Bill Now Law.”

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by Pete Kennedy, Esq.

On paper the sale of raw dairy products for pet consumption is legal in all 50 states; the trouble has been that in many states regulators have improperly prohibited the sale of raw pet dairy by producers and distributors. Recently in New Jersey, pet owners and other supporters of raw dairy were successful in defeating an attempt by the New Jersey Department of Health (NJDH) to stop the sale of any raw pet dairy products in the state.

On January 14, NJDH sent cease-and-desist letters to distributors and retail stores selling raw dairy products for pet consumption, threatening enforcement if they continued to sell raw pet dairy. Health officials followed up on the letter by raiding multiple pet food stores and confiscating raw dairy. There were no allegations that raw pet dairy was causing any illness.

NJDH exceeded its lawful powers in two respects. First, it is the New Jersey Department of Agriculture (NJDA) that has jurisdiction over the production and sale of all feed for animal consumption. Second, New Jersey regulations allow the sale of raw pet dairy in the state.

Manufacturers of raw pet food dairy sell their products in dozens of New Jersey pet stores. Reaction from pet owners and other supporters was strong against NJDH. Many contacted NJDH, NJDA and their legislators to complain about the state action. Representatives for raw pet dairy manufacturers and advocates made their case to the two agencies about how NJDH had exceeded its authority.

On April 20 Rhea Landig, the executive director of Species Alliance, held Pet Food Justice in Branchburg, an event featuring speakers on the health benefits for pets and humans of raw dairy as well as the regulatory climate and laws governing raw pet dairy production and sales. Speakers included Weston A. Price Foundation president Sally Fallon Morell, Rutgers professor Joe Heckman, Cathy Alinovi of the Next Generation Pet Food Manufacturers Association, Susan Thixton of the consumer advocate group Association for Truth in Pet Food and Billy Hockman of Answers Pet Food, one of the manufacturers hurt by the NJDH action.

The event showed the potential for collaboration between those advocating legal raw pet dairy sales and those supporting legal raw milk sales for human consumption. If raw milk sales for human consumption were legal in New Jersey, NJDH never would have taken any action against distributors and retail stores selling raw pet dairy. On May 10 NJDH issued a public statement: “Distributors and retailers selling raw milk pet food will not be subject to enforcement action by the Department of Health.” With state regulators acknowledging the legality of raw pet dairy sales, it would be good for New Jersey to get on with the business of legalizing raw milk sales for human consumption; the ban has lost New Jersey farmers millions of dollars in sales to Pennsylvania dairy producers. The time to act is now; currently, there are 40 Grade A dairies left in the state.

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