BOISE, Idaho (March 20, 2023) – Last Thursday, the Idaho House gave final approval to a bill that would lift some restrictions on herd share agreements for the distribution of raw milk in the state. Passage into law would take a small step toward rejecting a federal prohibition scheme in practice and effect.
The Senate Agricultural Affairs Committee introduced Senate Bill 1036 (S1036) on Jan. 31. The proposed law would simplify current state law on herd share agreements for the acquisition of raw milk and remove limits on the number of animals allowed in a shared herd. It would also eliminate some of the current regulations on farms hosting shared herds. In effect, the changes in the law would facilitate herd shares and make it easier for people willing to pay another individual for the upkeep of milk-producing livestock to share raw milk and other things produced from the raw milk of those shared animals.
“The acquisition of raw milk or raw milk products from cows, sheep, or goats by an owner of a cow share, sheep share, or goat share for use or consumption by the owner or members of the owner’s household shall not constitute the sale or retail sale of raw milk or raw milk products and shall not be prohibited. The owner of a cow share, sheep share, or goat share shall receive raw milk or raw milk products directly from the farm or dairy where the cow, sheep, goat, or dairy herd is located. Such farm or dairy shall be registered.”
On March 16, the House passed S1036 by a 63-5 vote. The Senate previously passed the measure by a 34-0 vote. It now goes to Gov. Brad Little’s desk for his consideration.
The enactment of S1036 would take another small step toward opening the market for unpasteurized milk in the state. While limited in nature, allowing raw milk distribution through herd sharing creates a great opportunity to establish a market, and will demonstrate and stimulate demand for raw milk. Eliminating restrictions and regulations will allow more people to take advantage of herd shares in the state. 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.
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 a 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.
Gov. Little will have five days (excluding Sundays) from the date S1036 is transmitted to his office to sign or veto the bill. If he takes no action, the bill will become law without his signature. If the Senate waits until the session ends (targeted for March 24), the governor will have 10 days (excluding Sundays) to act.
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