CHARLESTON, W. Va. (May 20, 2016) – A law legalizing limited raw milk consumption in West Virginia is now in effect. This represents a first step towards nullifying a federal prohibition scheme in practice.

Sen. Robert Karnes (R – Upshur) introduced Senate Bill 387 (SB387) in January. The legislation allows West Virginians to enter into agreements to share milk-producing animals and drink raw milk. The ban on selling or distributing raw milk remains in place.

The Senate passed SB387 22-12 and the House approved the measure 88-11.

Under the new law, West Virginians can now enter into a written shared animal ownership agreement to consume raw milk in which he or she acquires a percentage ownership interest in a milk-producing animal subject to state regulations. This represents a first step toward legalizing unpasteurized milk in the state. With the door now cracked open, it provides an avenue to expand raw milk legalization in the future.

A more ambitious bill (HB2448) to legalize the sale of raw milk in the state was not given a committee hearing.

Activists gave tried to legalize raw milk in West Virginia for years, but legislation was always killed or vetoed at the last minute. This year, they successfully got this “smaller chunk” passed. While limited in nature, allowing raw milk sales through herd sharing creates a great opportunity to establish a market, and demonstrate and stimulate demand for raw milk. As more people engage in the marketplace, more people will learn about the benefits of raw milk. That stimulate demand. Simply cracking the door can begin a sort of economic feedback loop that will rapidly expand the market. When that happens, law makers will feel pressure to further loosen regulations.

The new West Virginia law also moves forward efforts to nullify the federal raw milk prohibition scheme.

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.

Nullifying the Federal Scheme

SB387 becoming law takes a step toward nullifying this federal prohibition scheme in effect.

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.

In practice and effect, 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.

Mike Maharrey

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