HELENA, Mont. (Feb. 2, 2017) – A bill introduced in the Montana House would legalize limited raw milk sales in the state, taking an important step toward nullifying a federal prohibition scheme in effect.

Rep. Nancy Ballance (R-Hamilton) introduced House Bill 325 (HB325) on Jan. 26. The legislation would authorize limited sales of raw milk from producer to consumer and through herd sharing agreements.

Current Montana law prohibits raw milk sales.

Under the proposed law, licensed farmers with 10 or fewer cows, 20 or fewer goats, or 20 or fewer sheep, would be able to obtain a small herd exemption permit authorizing them to sell raw milk and raw milk products directly to consumers from the farm. HB325 establishes strict testing requirements, at the same frequency and to the same standards as the FDA requires of Grade A dairies under the Pasteurized Milk Ordinance.

The legislation would also clear the way for consumers to obtain raw milk through herd sharing agreements, a practice prohibited by the Department of Livestock.

Activists have been trying to legalize raw milk in the state since 2012, but face stiff opposition from the state health department, the dairy industry, veterinarian organizations and even county commissioners. Opponents cite safety concerns.

The legislation includes a provision that protects the state from liability if somebody becomes sick from consuming raw milk. It also has requirements for signs/labels that inform consumers that the product is unpasteurized and the state has not inspected the farm or the milk.

Chris Rosenau has been on the forefront of the raw milk legalization efforts in the state.

“It’s Montana for Pete’s sake. We have people moving here from one of the 40 states with ‘legal’ raw milk and they are gobsmacked that it’s illegal here,” she said. “I’m not even a milk drinker. The reason I’m doing this is because it’s not the government’s right to decide what’s best for me and my family.”

The Farm-to-Consumer Legal Defense Fund is lobbying for passage of HB325. The organization has set up an online petition HERE. There is also information on the page to guide Montana residents in calling committee members in support of the legislation.

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.

Legislation like HB325 takes a 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.


HB325 was referred to the House Agriculture Committee. A hearing is schedule for Feb. 9. The bill must pass the committee by a majority vote before moving forward in the legislative process.


Mike Maharrey

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