BOSTON, Mass. (March 19, 2018) – Two bills pending in the Massachusetts legislature would expand raw milk sales in the state. Passage into law would take an important step toward rejecting a federal prohibition scheme in effect.
Sen. Anne Gobi (D-Spencer) introduced Senate Bill 442 (S442) in January 2017. Rep. Paul A. Schmid, III (D-Bristol) introduced a similar bill (H2938) at the same time. The bills carried over to the 2018 session.
The legislation would expand raw milk sales in the state by allowing farmers to deliver raw milk to the consumer.
Licensed raw milk farmers shall be allowed to deliver raw milk directly to the consumer, off-site from the farm, provided that the raw milk farmer has a direct, contractual relationship with the consumer. The raw milk farmer may contract with a third party for delivery provided that the raw milk farmer shall maintain the contractual relationship with the consumer. The raw milk farmer may deliver raw milk through a community supported agriculture (CSA) delivery system provided that the raw milk farmer shall maintain a contractual relationship with the consumer. Delivery may be made directly to the consumer’s residence or to a pre-established receiving site; said sites shall not be in a retail setting with the exception of CSA delivery. In such instances, raw milk shall be kept separated from retail items for sale and will not be accessible to the general public.
The proposed law would also authorize farmers to sell raw milk from their farm stands even if not contiguous to their raw milk dairy.
Under current law, raw milk can only be sold directly to the consumer on the site where the milk was produced.
S442 would also authorize herd share agreements for farmers with no more than twelve lactating cows and/or goats. Under these agreements, shareholders can receive raw milk from the farm.
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.
Legislation like S442 and H2938 takes a 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.
The Joint Committee on Environment, Natural Resources and Agriculture has combined the two bills. It still needs to pass the bill out of committee for consideration in the House and Senate.
Tenth Amendment Center
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