RALEIGH, N.C. (July 5, 2018) – Last week, the North Carolina legislature overrode Gov. Roy Cooper’s veto of a farm bill that includes provisions legalizing limited raw milk for human consumption in the state. This takes a first step towards nullifying a federal prohibition scheme in practice.

A bipartisan coalition of three sponsors and three cosponsors introduced Senate Bill 711 (S711) in May. Titled the North Carolina Farm Act of 2018, the legislation includes provisions allowing North Carolinians to enter into herd-share agreements and obtain raw milk for human consumption. The ban on selling or distributing raw milk remains in place.

Under herd-share agreements, consumers pay a farmer a fee for a “share” in either an individual animal, or a herd of cows or goats, In return, the owner of the share can obtain, but does not purchase, raw milk.

Under current law, the sale or distribution of raw milk for human consumption is illegal in North Carolina. Raw milk can be sold as animal feed.

Passage of S711 takes the first step toward legalizing unpasteurized milk in the state. While limited in nature, allowing raw milk sales through herd sharing creates a great opportunity to establish a market, and will demonstrate and stimulate demand for raw milk. As more people engage in the marketplace, more people will learn about the benefits of unpasteurized milk. That stimulates demand. Simply cracking the door can begin a sort of economic feedback loop that will rapidly expand the market. When that happens, lawmakers will feel pressure to further loosen regulations.

Gov. Cooper vetoed S711 due to provisions in the bill unrelated to raw milk. The Senate voted to override the veto by a 37-9 vote. The House followed suit last Wednesday by a 74-45 margin. The new law went into effect on June 27.

The new North Carolina law not only opens up the raw milk market in the state, it also moves 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.

Laws like this one passed in North Carolina 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.

Mike Maharrey

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