BISMARK, N.D. – On Aug. 1, a law expanding raw milk sales in North Dakota and challenging a federal prohibition scheme in the process went into effect.
Rep. Dawson Holle sponsored House Bill 1131 (HB1131) with a bipartisan coalition of cosponsors. Under the old law, producers could legally sell raw milk directly to consumers from the farm. HB1131 expands the law to allow the sale of raw milk products from farm to consumer, including yogurt, ice cream, butter, cheese, and more.
The Senate passed HB1131 by a 45-0 vote. The House approved the final measure by an 87-5 vote. With Gov. Kelly Armstrong’s signature, the law went into effect Aug. 1.
THE FDA’S POSITION
FDA officials insist that unpasteurized milk poses a health risk because of its susceptibility to contamination from cow manure, a source of E. coli.
The FDA’s position is more than a matter of opinion. In 1987, the feds banned the interstate sale of raw milk for human consumption with the implementation of 21 CFR 1240.61(a).
The agency insists it “does not regulate the intrastate sale or distribution of raw milk. Whether to permit the sale and distribution of raw milk within a state is for the state to decide.”
However, the FDA has asserted its authority to regulate raw milk sales within the borders of a state. In response to a Farm-to-Consumer Legal Defense Fund lawsuit against the FDA over the interstate raw milk ban, officials wrote, “It is within HHS’s authority…to institute an intrastate ban [on unpasteurized milk] as well.”
This means the federal government could become more aggressive in regulating or banning raw milk within states at any time.
IMPACT ON FEDERAL PROHIBITION
When states allow the sale of raw milk within their borders, it takes an important step toward nullifying this federal prohibition scheme in practice and effect.
That’s because the federal government lacks the personnel and resources necessary to fully enforce federal food laws, as evidenced by state and local cooperation with federal raids on farms. The FDA has about 18,000 employees, but the Office of Criminal Investigations only has 200 agents to cover the entire U.S.
Imagine a scenario where every state allowed raw milk sales and refused to cooperate with federal enforcement efforts. It’s clear the feds wouldn’t be able to do much of anything about raw milk sales within the borders of a state or even across state lines.
The reality is that when more people engage in the activity the feds are trying to control, it becomes increasingly difficult for the federal government to enforce its will. It’s like a freeway where everybody chooses to drive 80 mph. Police become overwhelmed, and enforcement becomes nearly impossible.
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.
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 null and void in practice and effect.
Simply put, growing markets will quickly overwhelm any federal enforcement attempts.
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