HONOLULU, Hawaii (Dec. 26, 2019) – Two bills up for consideration in the Hawaii legislature would legalize limited raw milk sales in the state and take a step toward nullifying a federal prohibition scheme in practice and effect.
A coalition of four Democrats introduced Senate Bill 451 (SB451) last January and it will carry over into the 2020 legislative session. The bill would legalize the distribution of raw milk through herd-share agreements. Under herd-share agreements, consumers pay a farmer a fee for a “share” in either an individual animal, or a herd of cows, goats sheep or other milk-producing animals, In return, the owner of the share can obtain raw milk.
On Jan. 30, 2019, the Senate Committee on Agriculture and Environment approved SB451 by a 4-1 vote.
Rep. Mark Nakashima (D) filed House Bill 536 (HB536) last January and it will carry over to the 2020 legislative session. The bill would legalize the sale of raw milk and raw milk products directly from a farm to consumers. Under the proposed law, farms selling raw milk would be limited to two milk-bearing cows and would have to follow specific safety and labeling rules promulgated by the state.
During the 2019 session, the House Agriculture Committee held a hearing on HB536 and voted to defer the issue. The committee will take up the legislation again during the 2020 session.
Under current law, the sale of raw milk for human consumption is completely prohibited in Hawaii.
Passage of either bill would not only take the first 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 saw this demonstrated dramatically in states that legalized industrial hemp even as the federal government maintained virtual prohibition. When states 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. Eventually, the pressure on the feds led to the repeal of hemp prohibition.
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.
SB451 will be referred to the Senate Committee on Commerce, Consumer Protection, and Health where it must pass by a majority vote before moving forward in the legislative process. HB536 will be taken up again in House Committee on Agriculture.