More States Helping Local Dairy Farmers Overcome Feds’ Interstate Raw-Milk Ban
By Baylen Linnekin
This year a growing number of state legislatures around the country voted to expand consumers’ access to raw (unpasteurized) milk. These legislative victories, which have gained national attention, are a win for consumers and for dairy farmers who are prohibited by misguided federal regulations from selling raw milk across state lines.
As I wrote earlier this year, raw milk sales are a litmus test of sorts for food freedom—which I’ve long defined as a person’s right to grow, raise, produce, buy, sell, share, and eat the foods of their own choosing.
Raw milk is controversial in some circles because it can and sometimes does cause foodborne illness. Opponents of raw milk, including public-health bureaucrats and the nation’s largest sellers of pasteurized milk, argue raw milk should be banned because it may contain pathogens that could sicken or kill consumers. But driving raw milk sales underground won’t make raw milk safer, I note in my 2016 book Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable.
On the other hand, “raw milk has become popular in recent years as part of the local food movement,” NPR reported in a 2015 piece on the spread of raw milk. “[Consumers] say they buy raw milk because it doesn’t contain the growth hormone rGBH, they like the taste, and they enjoy having a direct connection to the food they eat.”
Supporters also note that many conventional dairy farmers who sell pasteurized milk are struggling. Small- and mid-sized dairy farmers have seen their numbers and revenue decline for years in the United States. A recent news report noted Wisconsin, often touted as America’s Dairyland, has “lost nearly 10,000 dairy farms” in the past two decades. Consolidation by big dairies is a leading cause of these losses. Raw milk sales may provide a lifeline in the form of higher margins for many farmers. Recognizing these facts, Wisconsin’s state farm bureau last year reversed its longstanding opposition to legal raw milk sales.
Most of our parents or grandparents grew up drinking raw milk. It wasn’t until 1987 that the FDA banned the interstate sale of raw milk across state lines. Notably, a federal judge had to force the agency to do so in the wake of a lawsuit against FDA filed by Public Citizen, a nonprofit founded by regulatory activist Ralph Nader.
“It is undisputed that all types of raw milk are unsafe for human consumption and pose a significant health risk,” a U.S. District Court in Washington, D.C. ruled in 1987. “The appropriate remedy in this case, therefore, is an order compelling the agency to promulgate a regulation prohibiting the interstate sale of... raw milk[.]”
“Without that lawsuit,” I’ve explained, “it’s at least debatable whether a federal ban would be in place today.”
While the court’s ruling makes raw foods, generally, and raw milk specifically, sound uniquely dangerous and scary— common sense, context, and facts show otherwise. Cases of foodborne illness tied to raw milk are shrinking (and comparable in number over many years to illnesses caused by pasteurized milk) even as the popularity of raw milk grows. Foodborne illnesses tied to raw milk also pale when compared to the number of cases caused by other foods—including many other raw and cooked foods the federal government does allow to be sold across state lines.
“[T]he USDA, which regulates beef, pork and poultry, permits their sale in raw and cooked forms,” across state lines, I’ve noted. “The FDA, which regulates seafood and eggs, likewise permits those to be sold raw or cooked.”
Raw foods such as sprouts, melons, and even flour are common sources of foodborne illness. Yet the federal government doesn’t ban their sale. If you’ve eaten raw sushi and don’t live in a coastal state—or, in many cases, even if you do live in a coastal state—then you’ve eaten raw fish that crossed state or international borders (or even both). Neither singling out raw milk nor, say, banning sushi makes any sense on legal, policy, economic, cultural, or culinary grounds.
Given all this, a small but growing number of lawmakers in Congress have been fighting to overturn the FDA’s ban for years. While they keep fighting, outside Washington, D.C. many states are using their own intrastate legislative authority to push back against the federal ban. Just this year, lawmakers in Iowa, Idaho, North Dakota, Washington, and Wyoming passed bills that reduced or eliminated many hurdles to raw-milk sales. Iowa lifted a ban on sales while Idaho, North Dakota, Utah, and Wyoming improved their existing laws.
That’s part of a trend. Last year, according to data provided by the nonprofit Farm-to-Consumer Legal Defense Fund, where I serve on the board, at least 10 states allowed some form of retail sales of raw milk, 18 states allow on-farm sales, and at 8 eight states allowed herd shares (which generally allow consumers to buy a portion of one or more cows and to obtain a share of its milk). A similar raw-milk map, produced in 2015 by the National Conference of State Legislatures and reproduced here, shows state laws governing raw-milk sales have improved noticeably across the country in less than a decade.
Thanks to a combination of growing demand for raw milk and Congress’s inaction on overturning the ban, the vast majority of states today—46 out of 50—now allow farmers to sell raw milk to consumers in one manner or another. Only Hawaii, Louisiana, Nevada, and Rhode Island prohibit all such sales.
“The interstate raw dairy ban has enabled states to become more independent of federal influence in passing laws governing raw milk production and distribution,” says Pete Kennedy, Esq., a consultant with the Weston A. Price Foundation, in an email to me this week. “Increased demand for raw milk and fewer foodborne illnesses have emboldened states to expand access to raw milk and other raw dairy products. The FDA’s hardline position on raw milk has less impact on state laws and policies than it once did.”
Congress can and should continue working to overturn the federal raw-milk ban. In the meantime, though, this year’s victories for raw milk in state legislatures are important for protecting and expanding farming abundance and consumer choice. Ultimately, adults should have the right to weigh risks and make choices about the foods we eat—from sushi to sprouts, and raw milk to melons to medium-rare hamburgers.
Baylen Linnekin is the author of Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable, an adjunct professor at George Mason University Law School and American University and an attorney.
Further Reading:
Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable by Baylen Linnekin
Food Regulations: Myths and Games by Richard Williams for Farming Abundance
Phony Demand and Underpopulation: Problems Plaguing American Farmers by Matthew Yglesias for Farming Abundance