HELENA, Mont. (April 19, 2021) – Last week, the Montana Senate gave final approval to a “food freedom” bill that would legalize the unregulated sale of homemade foods from producers to informed end consumers, including raw milk and raw milk products. Passage into law would take an important step toward rejecting a federal prohibition scheme in practice and effect, and would undermine FDA control over food production.

Sen. Greg Hertz (R-Polson) introduced Senate Bill 199 (SB199) on Feb. 8. Titled The Montana Local Food Choice Act, the legislation would prohibit a state or local government agency from requiring licensure, permitting, certification, packaging, labeling, or inspection that pertains to the preparation, serving, use, consumption, delivery, or storage of homemade food or homemade food products.

The proposed law would effectively legalize the sale of raw milk and raw milk products directly from the producer to a consumer if the producer keeps no more than five lactating cows, 10 lactating goats, or 10 lactating sheep on the farm for the production of milk. Sales would be allowed at a farm, ranch, home, office, or “traditional community social event,” including farmer’s markets, neighborhood gatherings and sporting events. The proposed law requires producers to test milk twice a year for somatic, coliform, bacteria and brucellosis. Records must be kept for two years.

Current Montana law prohibits raw milk sales.

On April 9, the House passed SB199 by a 70-26 vote. Last Thursday, the Senate concurred with House amendments by a 32-18 vote. It now goes to Gov. Greg Gianforte’s desk for his consideration. Raw milk activists in the state say the governor has been somewhat negative toward raw milk in the past. Big dairy interests have also lobbied aggressively against legalizing raw milk in the state. The governor will need some urging to sign the bill.

SB199 would also allow the virtually unregulated sale of poultry if the producer slaughters and processes 1,000 birds or fewer during a calendar year, subject to state law. Producers could sell meat and meat products under the bill only if the slaughter and processing took place at a “state-licensed or federally approved meat establishment.”

Food freedom laws not only open markets, expand consumer choice, and create opportunities for farmers and entrepreneurs; they take a step toward restoring the United States’ original political structure. Instead of top-down, centralized regulatory schemes, these laws encourage local control, and they can effectively nullify federal regulatory schemes in effect by hindering enforcement of federal regulations.

While state law does not bind the FDA, the passage of food freedom laws creates an environment hostile to federal food regulation in those states. And because the state does not interfere with local food producers, that means it will not enforce FDA mandates either. Should the feds want to enforce food laws in states with food freedom laws, they have to do so by themselves.

As we’ve seen with marijuana and industrial hemp, a federal regulation 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.”

Less restrictive food laws almost certainly have a similar impact on FDA regulation. They make it that much more difficult for the feds to enforce their will within the state.

Impact on Federal Raw Milk 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’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.

WHAT’S NEXT

Gov. Gianforte will have 10 days from the date SB199 is transmitted to his office to sign or veto the bill. If he takes no action, it will become law without his signature. Montana residents should call the governor’s office at 406-444-3111. Politely but firmly ask him to sign SB199, Senator Hertz’s food freedom bill, into law.


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