CHARLESTON, W. Va. (Feb. 5, 2019) – A bill introduced in the West Virginia House would legalize limited raw milk sales in the state and take a step toward nullifying a federal prohibition scheme in practice and effect.
Del. Isaac Sponaugle (I-Franklin) along with a coalition of four Republicans, introduced House Bill 2643 (HB2643) on Jan. 24. The legislation would legalize producer to consumer sales of raw milk and raw milk products. Under the proposed law, sales would be limited to home consumption by the informed end consumer. Resale would be prohibited. HB2643 includes provisions to license producers, along with health and safety regulations.
Passage of HB2643 would build on a law passed in 2016 that legalized raw milk consumption under so-called herd share agreements.
Passage of HB2643 would not only take another step toward opening up the raw milk market in the state, it would also move forward efforts to nullify a federal raw milk prohibition scheme.
Impact on Federal Prohibition
FDA officials insist that unpasteurized milk poses a health risk because of its susceptibility to contamination from cow manure, a source of E. coli.
“It is the FDA’s position that raw milk should never be consumed,” agency spokeswoman Tamara N. Ward said in November 2011.
The FDA’s position represents more than a matter of opinion. In 1987, the feds implemented 21 CFR 1240.61(a), providing that, “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.”
Not only do the feds ban the transportation of raw milk across state lines, they also claim the authority to ban unpasteurized milk within the borders of a state.
“It is within HHS’s authority…to institute an intrastate ban [on unpasteurized milk] as well,” FDA officials wrote in response to a Farm-to-Consumer Legal Defense Fund lawsuit against the agency over the interstate ban.
The FDA clearly wants complete prohibition of raw milk and some insiders say it’s only a matter of time before the feds try to institute an absolute ban. Armed raids by FDA agents on companies like Rawsome Foods back in 2011 and Amish farms over the last few years also indicate this scenario may not be too far off.
When states allow the sale of raw milk within their borders, it takes an important step toward nullifying this federal prohibition scheme.
As we’ve seen with marijuana and industrial hemp, an intrastate ban becomes ineffective when states ignore it and pass laws encouraging the prohibited activity anyway. The federal government lacks the enforcement power necessary to maintain its ban, and people will willingly take on the small risk of federal sanctions if they know the state will not interfere. This increases when the state actively encourages the market and nullifies federal prohibition in effect.
We’ve seen this demonstrated dramatically in states that have legalized industrial hemp. When they authorized production, farmers began growing industrial hemp, even in the face of a federal ban. Despite facing the possibility of federal prosecution, some growers were still willing to step into the void and begin cultivating the plant once the state removed its barriers.
In the same way, removing state barriers to raw milk consumption, sale and production would undoubtedly spur the creation of new markets for unpasteurized dairy products, no matter what the feds claim the power to do.
It could ultimately nullify the interstate ban as well. If all 50 states allow raw milk, markets within the states could easily grow to the point that local sales would render the federal ban on interstate commerce pointless. And history indicates the feds do not have the resources to stop people from transporting raw milk across state lines – especially if multiple states start legalizing it. Growing markets will quickly overwhelm any federal enforcement attempts.
WHAT’S NEXT
HB2643 was referred to the House Agriculture and Natural Resources Committee where it must pass by a majority vote before moving forward in the legislative process.
