Guest Blog: Raw Milk Wars – An Attorney’s Viewpoint

by R. Drew Falkenstein

There are some benefits to being a lawyer. One is the benefit of reading lots of laws, statutes, and regulations, and knowing the rules that courts are bound by in interpreting those laws. One of those rules is that a court will not read, or interpret, a statute to leave any other clear enunciation—whether entire part, phrase, or word—without effect. In other words, courts will not interpret a law by simply ignoring a specific provision contained in another part of the law.

With the raw milk wars heating up recently, arguments have been made about whether the distribution of raw milk across state lines is “interstate commerce.” This is relevant because, of course, federal law prohibits the distribution of raw milk across state lines—i.e. in interstate commerce. 21 CFR 1240.61 states:

No person shall cause to be delivered into interstate commerce or shall sell, otherwise distribute, or hold for sale or other distribution after shipment in interstate commerce any milk or milk product in final package form for direct human consumption unless the product has been pasteurized.

I recently wrote at foodpoisonjournal.com that:

There is, in fact and law, no “fundamental right to eat whatever we want,” and no indication in the federal Constitution that the founders intended such a right to be implicit in the Bill of Rights. In fact, these legislative attempts are a little ironic, considering that their sponsors, Mrs. Wallis and Mr. Paul, are undoubtedly strict constructionists when it comes to constitutional interpretation. Indeed, the only inference as to the founders’ intent that can fairly be drawn from the Constitution is that Congress is well within its rights to outlaw the interstate sale and shipment of raw milk.

My blog-post received the following comment: “buyers may form a delivery club to pickup milk and bring to dropoff points. This is legal because once the sale is made legally at the farmgate, the milk is out of commerce. It is then legally possessed private property and can be delivered across states.”

Applying the rule of statutory construction described above, courts must give effect to all provisions of 21 CFR 1240.61, including the words “cause to be” that appear, and directly modify, the following word “delivered.” As a result, a violation of the regulation does not depend on a direct sale to a customer in another state. It is sufficient to do any act that “cause[s] to be delivered” raw milk, ultimately, across state lines.

Clearly the addition of the three words “cause to be” would include actions like transporting the product across state lines, selling directly to a consumer who is part of another state’s market, and even producing milk that ultimately will be sold or distributed to consumers in other states. But it is also broad enough—and intentionally so by the regulation’s authors—to include raw milk produced under the guise of a cow-share (or herd-share or lease) agreement where the product ultimately reaches consumers in other states.

Contrary to the commenter on my blog-post it will be no defense in a civil lawsuit, or even in a criminal prosecution, that the milk was produced under the thin guise of an agreement designed only to obscure the legal reality. There is simply no constitutional right to consume raw milk for 21 CFR 1240.61 to run afoul of.

R. Drew Falkenstein is a lawyer with Marler Clark LLP in Seattle, Washington, whose practice is devoted to representing people sickened in foodborne illness outbreaks. Drew has litigated against some of the largest food companies and restaurant chains in the country, and frequently represents people who have been sickened in outbreaks linked to raw milk. His blog, foodpoisonjournal.com, is a widely read publication that comments on food safety of national importance, and major outbreaks and recalls.

The Raw Milk Debate: Is There A Third Option?

Raw versus pasteurized versus . . . . .

We were reminded again last Friday of the risks that consumers face when they opt to drink raw milk.

The Michigan Department of Community Health issued a public health alert on March 19th, after eight confirmed cases of Campylobacter infections were reported among residents of three counties in the state. The victims of this outbreak had consumed raw milk obtained from the Family Farms Cooperative in Vandalia, Michigan. through a cow-share program.

Cow share programs are used in many US states and Canadian provinces as a means to sidestep prohibitions against the retail sale of raw milk for human consumption. Instead of purchasing raw milk directly, consumers “buy” part ownership in a cow’s – or a dairy herd’s – output.

Although some states – California, for example – have legalized and regulated the retail sale of raw milk, FDA does not permit interstate shipment for human consumption of unpasteurized milk for retail sale. As far as FDA is concerned, consuming raw milk is a risky business. These risks include Salmonella, E. coli O157:H7 and Campylobacter.

Why do some individuals insist on drinking raw milk – and serving it to their children – in spite of the microbiological risk? Mainly because of a concern that pasteurization, which requires heating the milk, destroys key nutrients present in raw milk and degrades the flavor of the fresh product.

What if there was a way to make raw milk microbiologically safe without heating it?

I’m not talking about irradiation. I’m not talking about adding chemicals. I’m not talking about adding “good” bacteria or bacteriophages to the milk.

I am referring to a process known as High Pressure Pasteurization (HPP). This technology is already in use in several sectors of the food industry. It has been applied to deli meats, fruit juices, deli salads, and produce. Recently, Nature’s Variety – a manufacturer of “raw” pet foods – announced that it had decided to incorporate HPP treatment into its manufacturing process in order to ensure the microbiological safety of its pet foods.

As far as I am aware, no dairies have adopted HPP as an alternative to conventional heat pasteurization for fluid milk. But a literature search turned up a smattering of tantalizing research studies. I would be surprised if the manufacturers of HPP equipment were not funding research into this application of their technology.

Perhaps, some day the raw milk versus pasteurized milk debate will become history – made obsolete by a new technology that doesn’t rely on either heat or irradiation.

Ron Paul Is Right!

FDA Should Lift Its Ban On Interstate Sale of Raw Milk For Human Consumption

I never thought that I would agree with Representative Ron Paul. But after long reflection, I think that FDA should change its raw milk policy.

Consumers who wish to purchase and drink raw milk must navigate a labyrinth of regulations that govern its sale. Some states ban the retail sale of raw milk outright. Some permit it on store shelves. Still others allow its consumption through the back door of a “cow-share” program. Cow-share programs allow consumers to purchase a part of a dairy cow, and circumvent state laws that only permit consumption of raw milk by the cow’s owner.

This hodgepodge of state policies results in little or no oversight of raw milk producers and bottlers. And, in consequence, everybody suffers.

Earlier this week, representatives of the US dairy industry urged the Senate Committee on Health, Education, Labor and Pensions (HELP) to subject raw milk producers to the same regulatory and reporting requirements that are faced by producers of pasteurized milk. But how can FDA regulate raw milk producers while simultaneously banning the retail sale of their products?

The consumption of raw milk, and of dairy products made from unpasteurized milk, has been behind numerous outbreaks of food-borne disease. Many of these outbreaks have been linked to raw milk obtained through cow-share programs or purchased directly from dairy farmers.

In lifting the outright ban on interstate shipment of raw milk for retail sale, FDA would be able to bring raw milk under its regulatory umbrella. National standards could be set in cooperation with all 50 states, in much the same way that uniform standards have been agreed to for pasteurized milk. FDA and state regulators could insist on stringent safety and sanitation standards that would apply equally to all raw or pasteurized milk producers.

I have never been a supporter of the raw milk lobby. I know too well that raw milk, as it is produced and marketed today, is microbiologically risky. But prohibition isn’t working – just as it didn’t work for alcoholic beverages in the 1930s.

I have come to the conclusion that the only way to protect the US consumer from the health risks associated with drinking raw milk is to legalize it – and to hold raw milk to the same demanding safety standards that pasteurized milk must meet.

It’s time to recognize – and to regulate – raw milk.