SALT LAKE CITY, Utah (April 2, 2020) – On Tuesday, Utah Gov. Gary Herbert signed a bill that would further expand raw milk sales in the state. Enactment of this bill takes another important step toward rejecting a federal prohibition scheme in effect.
Rep. Kim Coleman (R-West Jordan) sponsored House Bill 134 (HB134). The new law expands raw milk sales to allow permit holders to sell raw milk cream and butter. The former law only allowed the sale of pure raw milk even by those holding a permit.
HB134 builds on an expansion of raw milk sales Gov. Gary Herbert signed into law in 2018. Under that new law, a milk producer can sell up to 120 gallons of raw milk per month to consumers without meeting stricter requirements under the current permitting program, providing certain conditions are met.
Passage of HB134 not only takes another step toward opening up the raw milk market in the state; it also advances 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.
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.
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