It’s Time To Put Our Federal Meat Inspection Law Out To Pasture

Outdated regulations are hampering the beef meat industry.

Written by Baylen Linniken. Originally published May 19, 2018, by Reason.com online magazine. Baylen Linnekin is a food lawyer, scholar, and adjunct law professor. He’s the author of Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable (Island Press 2016). Linnekin serves on the board of directors of the Farm-to-Consumer Legal Defense Fund.

Last week, Sens. Mike Rounds (R-N.D.), John Thune (R-S.D.), and Angus King (I-Maine) introduced a bill that would allow meat processed in many state-inspected slaughterhouses and other state-inspected facilities to be sold across state lines.

The sensible bill, dubbed the New Markets for State-Inspected Meat and Poultry Act, could be a real boon to livestock farmers who want to sell their meat and meat products in neighboring states, and to the consumers who want their products.

Before you get your hopes up, though, consider that this under-the-radar, bipartisan bill has been around in some form or other for more than fifteen years. Then-Sen. Tom Daschle (D-SD) introduced similar legislation in 2000. Then-U.S. Representative (now Senator) Roy Blunt (R-Mo.) sponsored a version of the bill in 2006. A year later, then-Rep. Earl Pomeroy (D-ND) introduced the bill.

Yet the ban on interstate sales persists. That’s despite the fact it’s got broad support.

“The New Markets for State-Inspected Meat and Poultry Act of 2018 will strengthen local economies by allowing meat and poultry products inspected under State meat inspection programs to be sold across state lines,” said Kenny Graner, president of the United States Cattlemen’s Association, earlier this month. “This opens access to new markets that were previously unavailable due to outdated federal regulations.”

The South Dakota Stockgrowers Association also supports the bill. State agriculture departments have long been on board. The U.S. Department of Agriculture is, too. A 2001 study by the University of Nebraska Public Policy Center, which attempted to identify differences between states that operate their own inspection regimes and those states that do not, noted the USDA “officially endorses legislation to permit interstate commerce for state-inspected meat.”

So just what is the holdup? The status quo appears to be largely the result of a powerful, lousy law colliding with lazy lawmakers in Washington.

Since the late 1960s, as I’ve lamented several times here and in my recent book, Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable, the USDA has required any animals and their meat that will be sold commercially to be slaughtered and processed in USDA-inspected facilities or in state facilities that are “at least equal to” the USDA facilities (a requirement known, artfully, as the “‘equal to’ requirement”).

That requirement is part of the Wholesome Meat Act of 1967, which applies both to interstate and intrastate sales. Practically, it means that if a local farmer wants to sell you (or a local restaurant) a pound of ground beef, he or she must have the beef processed in a facility that complies with the federal law.

The law, as it applies to wholly intrastate sales—as in the burger example—is unconstitutional. As I’ve noted before, by passing the Wholesome Meat Act, Congress delegated to the USDA a power Congress itself does not possess: to regulate wholly intrastate commerce.

On the other hand, as I noted in an op-ed in The Hill last week, Congress clearly has the power under the U.S. Constitution to regulate interstate commerce. But the fact a law is constitutional doesn’t make it smart policy. For example, under the Wholesome Meat Act, a steak from a cow that was inspected in a state facility (operated in more than half of U.S. states) that follows regulations at least as stringent as those required under federal law in, say, South Dakota, can be sold anywhere in the state but can’t be sold just across the border in Minnesota.

A program created under the 2008 Farm Bill, known as Cooperative Interstate Shipment (CIS) Program, was supposed to alleviate the problem. But CIS has been unpopular for a variety of reasons.

First, it took years to implement. And once it was implemented, problems were immediately apparent. “The Cooperative Inspection Program is cumbersome, requires the entire state to apply to participate before individual plants that meet certain conditions can apply, and contains other provisions that appear to have dissuaded both states and plants from signing up,” reads a 2013 article in the Vermont Law Review.

According to Sen. Rounds, the bill co-sponsor, only four states so far have embraced the CIS model.

“It really is past time to just say that people can sell anywhere in the country under state inspection,” says Judith McGeary, executive director of the Farm and Ranch Freedom Alliance, in an email to me this week. “[E]ither that, or stop requiring that state inspection be equal to federal. Either it is equal or it’s not!”

Raid in Minnesota – Food Police Protecting People from Themselves, Again

In the continuation of an eight-year government assault on freedom of food choice, officials from the Minnesota Department of Agriculture (MDA), the Minneapolis Department of Health (MDH) and city police have shut down the physical location for the private buyers club, Uptown Locavore, embargoing thousands of dollars of nutrient-dense food in the process. The Locavore connects farmers and club members, enabling consumers to obtain foods they would not be able to purchase at a retail store.

On May 3rd MDA and MDH officials along with a police officer executed an administrative search warrant to inspect the property that served as a distribution point for the buyers club; the official’s visit turned into more than just an inspection. The officials embargoed every food product they came across, including the personal food items of Will Winter, longtime leader in the Twin Cities local food community and owner/manager of the locavore. The embargo notices MDH left at the location stated that the buyers club could not conduct business until “conditions set forth are met ad the embargo is lifted.”

City officials also posted an “Unlicensed Business” notice on the property stating that the Uptown Locavore is unlicensed and that “further operation of this business is a criminal act and subject to criminal complaint and/or arrest.” The ‘catch-22’ for the Uptown Locavore was that, if it did get licensed, it would not be able to provide many of the nutritious foods it currently makes available to club members.

Winter responded to the enforcement action by going to the media to get out his side of the story. He pointed out that the search warrant was given by a judge to merely determine whether the buyers club was operating an unlicensed business; nothing was mentioned in the warrant application about confiscating food or shutting down the Locavore. Winter explained to the media that his private club should not have to obtain a business license because it does not sell or distribute any food to the general public; his location is not open to the public but only to club members.

Winter remarked that all transactions were between consenting adults and were done between a farmer/artisan producer and informed consumers. He emphasized that there had been zero complaints about the Locavore. He commented that the government “instead of using their resources to pursue real criminals and real crime….waste their day trying to destroy people they don’t understand and then seem to hate….this unjustified persecution of people doing the right things makes me very unhappy to be American.”


The May 3 raid wasn’t the first time the food police had shut down a private food distribution facility established by Winter. In 2010 state and city officials raided and permanently shut down the Traditional Foods Warehouse in Minneapolis, a devastating loss for the local food community. The Traditional Foods Warehouse had rapidly become an institution in the Twin Cities; at one time it boasted 1,800 members. There has never really been anything like it anywhere in the U.S. before or since its demise.

2010 also was the year MDA stepped up its enforcement campaign against famers distributing to informed consumers nutrient-dense foods that the department claimed were “illegal”, targeting dairy farmer Mike Hartmann and poultry farmer Alvin Schlangen. MDA raided both farmers in 2010 and subsequently had both criminally prosecuted.

MDA went after Hartmann because it suspected dairy products the farmer produced were responsible for eight cases of foodborne illness in the Twin Cities area. The state’s initial testing indicated there was a match between the pathogenic bacteria responsible for the illnesses and bacteria found on the Hartmann farm but the Minnesota Department of Health did many subsequent tests to strengthen its assertion that Hartmann farm dairy products were the cause of the illness; there was no match in any of these tests.

Hartmann pled guilty to two charges of violating the Minnesota food and dairy code but only to stop MDA from criminally prosecuting his wife as well as a 68-year-old woman on disability who was helping his farm. The lowest point in MDA’s enforcement tactics came when two MDA officials, three plainclothes policemen and two Bloomfield city officials executed a search warrant at the private residence of Rae Lynn Sandvig whose driveway served as a dropsite for Hartmann. The policemen met Sandvig at her bedroom door shortly after 8 a.m. telling her to go downstairs to her kitchen. Policemen went into the bedroom of Sandvig’s children ordering them to do the same. When Sandvig arrived in her kitchen she found the two MDA officials and the two city employees peering into the family’s refrigerator; the family kept no foods from Hartmann’s farm in their refrigerator or freezer other than those for personal consumption. MDA considered prosecuting Sandvig but subsequently dropped her case.

MDA had prosecuted Schlangen twice for criminal violations of the state food and dairy code; in the prosecution putting his livelihood at stake, a jury acquitted him of all charges. Hartmann and Schlangen remain in business continuing to provide nutritious food to informed consumers.

Hartmann is suing MDA over an illegal search and seizure the department conducted on his delivery truck during a 2013 stop on a Minneapolis highway; the department confiscated dairy products and equipment during the raid.

For the past five years MDA has been investigating Dave Berglund, a dairy farmer in northern Minnesota who sells raw milk and other dairy products to his loyal customers on his farm in Grand Marais. Berglund concluded a long court battle against MDA last year, with the courts ruling that the department had jurisdiction to inspect his farm. Berglund is contending he has a right under the state and federal constitutions to sell a product like raw butter direct to consumers while the department is claiming those sales are illegal. MDA’s investigation of Berglund appears to be continuing.

The Minnesota state constitution has a provision allowing farmers to “sell and peddle the products of the farm” without licensing. The constitutional provision should include the distribution of farm products through a private buyers club like the Uptown Locavore that facilitates farmer-to-consumer commerce. Regardless of how MDA interprets the law, what it and other government agencies cannot escape is the fact that eights years of heavy handed enforcement hasn’t deterred consumers from seeking healthy food that the state declares is illegal. People continue to demand food from farmers like Hartmann, Schlangen and Berglund; they continue to join buyers clubs like Winter’s Uptown Locavore to have access to quality food they cannot find in retail stores.

Increasingly greater numbers of consumers want to opt out of the industrial food-vaccine-pharmaceutical drug paradigm. If these enforcement actions against real food are all about protecting the public health, here’s a challenge to the state and local government agencies in Minnesota who are harassing Winter: do a survey of Uptown Locavore members and then do a survey of other random people to determine what each group demands in terms of medical services (e.g., doctor visits, prescription drug use, etc.). Government officials would find that the buyers club members demand much less in the way of medical services, saving the taxpayers and insurance companies money. The state of Minnesota could be sending the savings on expanding farm-to-school programs but instead spends millions persecuting those who are making people healthier.


The government should be honoring Winter instead of dumping food confiscated at the Uptown Locavore into a landfill. It should recognize farmers like Berglund, Hartmann and Schlangen as frontline healers instead of trying to shut them down. This is about control and preserving industrial Ag’s market share by denying freedom of choice. MDA can recognize this freedom by exercising its enforcement discretion not to take action against people like Winter who are actually helping to make others well. One day there will be a court ruling affirming that there is a legal distinction between the public and private distribution of food. Until that time MDA and the other agencies can best protect and promote the public health by allowing people to obtain the food of their choice from the source of their choice regardless of whether that source is regulated by the government.

A good way to begin the departure from the failed policies of the past would be for the Minneapolis Health Department to lift the embargo on the food at the Uptown Locavore and allow the buyers club to resume operations. Unfortunately, Daniel Huff, an official for the department has indicated the city will seek a condemnation order to destroy the dairy products embargoed at the Locavore. Short of a legitimate accusation against the club of the food being responsible for foodborne illness, Winter and its members should have the right to be left alone.

High Stakes for Raw Milk in Wisconsin

This article is a collaboration between the Weston A. Price Foundation (WAPF) and the Farm-to-Consumer Legal Defense Fund (FTCLDF).

Wisconsin organic dairy farmer Chaz Self is a face of the crisis confronting milk producers across the country. Self’s cooperative recently dropped him as a member, leaving him scrambling to find another buyer for the milk his farm, Grassway Organics, produces. Self could be making up for some of the lost sales by selling raw milk; Wisconsin law allows the sale of raw milk on an “incidental basis.” The Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) could be helping farmers like Self by using its enforcement discretion to let him sell raw milk. DATCP, however, recently served the farmer with a summary special order threatening the loss of his Grade A Milk Permit if he sold any raw milk for human consumption.

The farmer is currently dumping hundreds of gallons of high quality raw milk. Self’s case provides a great look at the unprecedented emergency dairy farmers are facing and how selling raw milk is a potential way to help keep thousands of them in business.

Self maintains a herd of around 100 cows on a 400-acre farm where he lives with his wife Megan and their three young children. His Jersey herd is 100% A2. The Selfs sell poultry, eggs, pork and beef to their customers on the farm and at farmers markets.


Last year Self appeared in the Netflix documentary, Rotten, a series of episodes uncovering fraud and corruption in the industrial food system. Self appeared in the episode “Milk Money” which discussed the production and sale of raw milk. Self never stated that he sold raw milk but the narrator of the episode implied that he did. Shortly after the episode aired, DATCP started investigating Self; the investigation wound up with the department issuing an order allowing him to keep his Grade A permit on the condition that he stop selling raw milk. This was an unjustified move, given that DATCP based its decision solely on what the narrator said he was doing; there was no other evidence mentioned in the order about Self selling raw milk.

To compound matters, on April 1 Self’s cooperative, Westby Creamery, terminated his membership; on April 18 DATCP sent Self a “notice of deadline to change assigned dairy plant”, stating the farmer has until April 30 to find a processor to pick up his milk. If he fails to do so, DATCP will revoke his Grade A permit; with the current state of the dairy industry, that is not an easy task.

The American dairy sector has been in a decades-long decline that is currently accelerating. In 1992 there were 131,535 licensed dairies in the U.S., at the end of 2017 there were 40,219.1 The number of dairies closing shop has increased substantially since the beginning of the year. In 1992 the average herd size for farms was 74 cows; by 2017 it had risen to 2342, showing the consolidation in the dairy industry and the exit of small farms from the commodity milk system.

Wisconsin went from about 29,000 dairy farms in 1995 to a little over 9,000 at the end of last year.1 Two particular recent developments have accelerated the decline of conventional and organic dairies in Wisconsin. First, more conventional milk is being shipped into Wisconsin from other states. In 2017 more than 100 trailer loads of milk per day3 was coming into Wisconsin from states such as Michigan, Indiana and Ohio; frequently this milk was being sold more cheaply than the price sellers of conventional fluid milk would normally get.

Secondly, this year certified organic CAFO dairies in Texas have increased shipments of milk to Wisconsin. According to a USA Today March 24 story by a Milwaukee Journal Sentinel writer, six certified organic dairy farms in Texas produced about 23% more milk than all of Wisconsin’s 453 organic dairy farms combined in 2016.4 The greater supply of organic milk has led to more quotas for producers and co-ops cutting back on members; in addition to Self, Westby Creamery recently terminated the contracts of seven other members.

The commodity milk system is becoming more untenable than ever for small farms. Recent prices around the country for conventional milk have been as low as $1.11 per gallon; while there are some organic producers that are still doing well, prices overall have declined substantially for organic milk. Farmers wanting to sell cows are finding little or no market. Oversupply and lower pay prices mean a race to the bottom for commodity milk.

One way for producers to escape or survive the commodity milk system is to sell raw milk for direct consumption; prices farmers can get for raw milk sales to the consumer are much higher than what they can receive for either conventional or organic milk intended for pasteurization. In Wisconsin the law is there for dairies to sell raw milk and improve their bottomline; the problem has been DATCP and its interpretation of what an “incidental sale” is.

The legislature passed the incidental sale law in 1957. The original intent of the law was that any sale of raw milk for human consumption was an incidental sale. At the time the law went into effect, there were over 100,000 dairies selling raw milk intended for pasteurization in the state 5; for all of them, sales of raw milk for direct human consumption were likely a very small percentage of total sales.

At one time DATCP interpreted the incidental sales law as meaning only one sale of raw milk per customer ever. In 2008 the department changed that, issuing a regulation that stated, “a sale is not incidental if it is made in the regular course of business, or is preceded by any advertising, or solicitation made to the general public through any communications media.” There is nothing in the statute legalizing incidental sales that prohibits advertising or solicitation.

DATCP’s interpretation of “not in the regular course of business” has been unfavorable to raw milk producers and consumers. It’s time for that to change; America’s Dairy Land is in an emergency situation. Dairies are going out of business every day in the state. DATCP can help Wisconsin dairy farms by either adopting a more liberal interpretation of what constitutes “not in the regular course of business” or by waiving enforcement against dairies selling raw milk direct to consumers in the regular course of business. For precedent on the latter step, DATCP only needs to look at the bordering state of Michigan.

Michigan law prohibits the sale or distribution of raw milk for human consumption; nevertheless in 2013 the Michigan Department of Agriculture and Rural Development (MDARD) adopted a written policy in which it would not take action against dairy farms distributing raw milk through herdshare agreements. MDARD set parameters that had to be in place, such as a written contract between the farmer and consumer for it to waive enforcement; DATCP could take a similar tact in Wisconsin.

DATCP is charged with promoting Wisconsin agriculture; one way it can do that with the current dairy crisis is to change its enforcement or interpretation of the law to one that benefits raw milk producers and consumers. Producers like Chaz Self have the quality raw milk and the potential demand to succeed. DATCP shouldn’t be preventing Self from selling raw milk. DATCP has an opportunity to help dairy farms stay in business. Ultimately, it would be great to pass a bill taking the word “incidental” out of the Wisconsin raw milk statute; but with the accelerated decline dairy is going through, there is no time to waste. The department should either adopt a new interpretation of the raw milk law or exercise its enforcement discretion now.

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[1] Dennis Halladay, “Here it comes: less than 40,000 dairies”, Hoard’s Dairyman, March 19, 2018. Last viewed 4/25/2018 at https://hoards.com/article-22818-here-it-comes-less-than-40000-dairies.html

[2] Corey Geiger, “Dairy farm numbers hover near 40,000”, Hoard’s Dairyman, February 26, 2018. Last viewed 4/25/18 at
https://hoards.com/article-22687-dairy-farm-numbers-hover-near-40000.html

[3] Pete Hardin, “March Dairy Meetings Somber in Wisconsin…”, Milkweed, Issue No. 465, April 2018; p. 5. [Wisconsin Farmers Union, “How Does It Work, and Would it Work Here?”, Dairy Supply Mgmt. in Canada, meeting 15 March 2018 at Dodger Bowl Banquet Center, Dodgerville, WI, recorded by www.wiseye.org; last viewed 4/25/2018 at http://www.wiseye.org/Video-Archive/Event-Detail/evhdid/12277]

[4] Rick Barrett, Wisconsin’s small organic dairies squeezed by Texas mega-farms”, USA Today, March 24, 2018. Last viewed 4/25/2018 at https://www.usatoday.com/story/money/business/2018/03/24/wisconsins-small-organic-dairies-squeezed-texas-mega-farms/455330002/

[5] U.S. Department of Commerce, “County Table 10 – Dairy products and poultry and poultry products sold from farms: Censuses of 1959 and 1954”, U.S. Census of Agriculture: 1959, Volume 1, Part 14: Wisconsin (Chapter B – Statistics for Counties), p. 163. Last viewed 4/25/2018 at http://usda.mannlib.cornell.edu/usda/AgCensusImages/1959/01/14/866/Table-10.pdf


Photo courtesy of Grassway Organics LLC facebook page

Local Food Challenges: Securing fresh food from fertile soil


Posted by permission of author, Joseph R. Heckman, originally published online 29 November 2017 by Cambridge University Press as “Securing fresh food from fertile soil, challenges to the organic and raw milk movements” in Renewable Agriculture and Food Systems. See Facebook synopsis by RAWMI

ABSTRACT
Securing fresh food from fertile soil, challenges to the organic and raw milk movements

In recent decades, a diverse community of dairy farmers, consumers and nutrition advocates has campaigned amidst considerable government opposition, to secure and expand the right of individuals to produce, sell and consume fresh unprocessed milk, commonly referred to as ‘raw milk’. This advocacy shares important parallels with battles fought in the organic food movement over the past century. Both the raw milk and organic food movements originated with farmers and consumers who sought to replace industrialized food production and processing practices with more traditional ones. Both movements equate the preservation of natural integrity in farming and food handling with more wholesome, nutritious food and environmental conservation. Both movements have had to work diligently to overcome a false perception that their practices are anachronistic, notably with regard to productive output of organic agriculture and the safety of fresh unprocessed milk. There is also the failure of opponents to acknowledge a growing body of scientific evidence for health benefits associated with drinking of fresh unprocessed milk. The raw milk movement has the potential to economically benefit family farmers, much as organic agriculture has done. Building soil fertility, a foundational principle of organic farming, would benefit from having numerous small pasture-based dairies spread across the land providing fresh unprocessed milk. Agricultural universities and the Cooperative Extension System could seize a real leadership opportunity by promoting and participating in this reinvention of dairy farming, and restoring the ecology of this traditional food and farming system.

Click links to jump to sections; references listed at end
1-Method | 2-Context | 3-Milk | 4-Quality | 5-Mainstream | 6-Health | 7-Policy | Summary

Introduction

In the early years of the organic agriculture movement, Albert Howard declared ‘fresh food from fertile soil’ the ‘birth right of humanity’ (Howard, 1946). In recent decades, diverse consumer movements interested in organic and other traditional food systems have been organizing for the right of dairy farmers to produce, and consumers to have access to fresh unprocessed milk. In spite of a rapidly growing market place for organic foods, many organic dairy farmers who want to produce and sell fresh unprocessed milk are challenged by policy or discouraged by educational programs dictating food choice.

The social, political and legal challenges to this movement have been the subject of several recent books and articles (Enticott, 2003; Salatin, 2007; Gumpert, 20092013; Schmid, 2009; Mincyte, 2014) and several reviews on the history of the organic agricultural movement have been published (Heckman, 2006; Youngberg and DeMuth, 2013; Saucier and Parsons, 2014). However, the broader story of the interconnections between the raw milk and organic food movements remains untold.

In the forward of The Untold Story of Milk (Schmid, 2009) Sally Fallon Morell briefly described the parallel between the organic and raw milk movements: ‘Twenty years ago organic agriculture was a fringe movement, barely on the mainstream radar scope, a subject commentators treated with derision and politicians with scorn. Today organics is the fastest growing sector of the agricultural economy, a paradigm that garners tremendous public support, one that has proven a boon to many farmers. Raw milk today is a fringe movement, a crusade of underdogs, a pesky mouse against the entrenched lions of medicine and industry. Who would be foolish enough to propose reinstating raw milk into the American diet? Or suggest that the agricultural model of the future will be the small farm with the dairy cow as its centerpiece?’.

The similarities between the raw milk and organic food movements are numerous. One reason people have chosen to buy organic milk is their concern for the method of food production. Being a staple in many diets, and especially for children, parents are naturally particular about their source of milk. For dairy, research has shown superior nutritive food composition in organic production over conventional (Benbrook et al., 2013), a difference that can be attributed, at least in part, to the requirement that organic dairy systems must obtain a minimum 30% of dry matter intake from pasture across a grazing season lasting a minimum of 120 days.

In addition to the method of food production, the most discriminating consumers are concerned with how the pathway from farm to table may influence nutrition, safety and quality of organic foods. The concept behind ‘Know Your Farmer, Know Your Food’ (USDA Program, 2012) would fit consumer interest in finding fresh unprocessed milk of the highest possible quality.

For example, the modern dairy industry requires that certified organic milk be handled separately from conventional milk, but collection and processing systems are essentially the same. It typically begins with tanker trucks collecting and commingling organic milks from individual farm bulk tanks. The organic milks obtained from many different farms are delivered to a processing plant where the milk undergoes pasteurization or often ultra-pasteurization and usually also homogenization. Typically the cream is separated from the milk and the remaining product is sold as reduced fat or skim milk. Before this milk is placed on a shelf in a grocery store, it has lost its farm identity and has been altered in many ways that would no longer qualify as a fresh whole food in the traditional sense of the word ‘organic’. Yet such milk does qualify as organic under the USDA National Organic Program standards (Code of Federal Regulations, 2015).

Organic standards prohibit treatment of organic food with irradiation, but there are no other provisions to prevent organic milk from being treated differently after it leaves the farm than the conventional food system. Although there has been hope that the organic milk market would offer an economically viable alternative to the conventional food system, recent market trends with processed organic milk as a commodity is beginning to resemble the conventional dairy sector (Guptill, 2009; Whoriskey, 2017).

Once a dairy farm transitions from a confinement model to a pasture-based feeding system, a smaller further step (Heckman, 2015) is to convert the farm to organic following the required 3-yr period for transition. Often after a dairy farm becomes certified organic, consumers begin showing up at the farm gate seeking to purchase raw milk before it gets shipped for processing. This has occurred so frequently that Organic Valley Cooperative, the largest organic dairy cooperative in the United States, now prohibits its members from selling milk off the farm to any other buyer (2010).

The actual growth in demand and consumption of raw milk is, however, difficult to measure for political reasons. The legal status of raw milk sales varies greatly within the United States (Farm-to-Consumer Legal Defense Fund, 2016) and around the world. The hostility of the public health community and government enforcement action has frequently pushed raw milk into an underground market (Gumpert, 2013).

A 2006–2007 survey of food consumption patterns conducted by the Centers for Disease Control (2006–2007) in several states suggested that about 3% of the US population consume raw milk. Another indication of demand is that more dairy farmers are exhibiting interest in producing raw milk for this market. For example, in Pennsylvania where raw milk sales are legal, the number of permits increased from about 25 dairies in 2003 to over 150 in 2014 (Kaylegian, 2014). A high percentage of these farms is either certified organic (about 23%) or practice organic farming on pastures without certification.

Raw milk is very often purchased directly from a farmer rather than from a grocery store. This direct contact between a farmer and the families eating the food fosters a living trusting ‘organic’ relationship. When people visit the farm, they often come to appreciate the nature of the operation (Hassanein, 2011). People who drink fresh milk tend to place great emphasis on organic feeding practices, especially pasture, and quality of the milk (Katafiasz and Bartlett, 2012). Organizations dedicated to teaching people about fresh milk strongly urge that the milk should be produced from pasture-raised animals and not from concentrated animal feeding operations (Gumpert, 2015). Large-scale industrial or confinement operations that emphasize high levels of production per animal unit are not a recommended source for fresh milk (Shetreat-Klein, 2016). These fresh milk guidelines are aligned with USDA-NOP standards that require pasture feeding of animals. Fresh milk consumers are often satisfied with farmers following organic practices without actually attaining certification (Baars et al., 2015).

The lack of attention to the raw milk debate by historians may seem surprising given that dairy was by far the most valuable commodity produced on the US organic farms in 2014 (USDA Agricultural Census, 2015). While demand for fluid conventional milk has been steadily declining for several decades (Berry and Gee, 2012), and virtually all of the organic milk is thermally processed prior to sale, the growth in demand for permits to sell raw milk in some states has been described as ‘explosive’ (Beecher, 2016). This despite the fact that drinking of raw milk remains highly controversial among conventional milk producers and policy makers (Gumpert, 2015). Considering that the organic farming and food movement has a history of challenging authority and conventional wisdom (Heckman, 2006; Obach, 2015), it should not be surprising that some members of this community accept drinking raw milk as natural and normal (Organic Valley Cooperative, 2010).

The main objective of this review is to provide an historical account of the raw milk movement and its long association with the organic farming movement. A second is to provide a survey of the literature pertaining to the question of health and nutrition benefits associated with drinking fresh unprocessed milk. A third objective is to examine how food policy governing access to fresh unprocessed milk may impact soil fertility in the context of agroecosystem sustainability. Taken together, this paper will show a need for involvement by agricultural universities, the Cooperative Extension System and public health institutions. They will need to reconsider their long-standing near-universal opposition to drinking fresh unprocessed milk to one of supportive research and education.

Methodology

Personal and professional work experience in an academic setting was garnered as a result of being involved in organizing and hosting various educational programs (Table 1), and in 2008, a seminar series specifically focused on raw milk and informed consumer choice (Rutgers New Jersey Agricultural Experiment Station, News Release, 2008). Besides the four invited seminars that took place in 2007, several other speakers with differing views were invited but declined to participate in the seminar series. To manage the surrounding storm of controversy and numerous questions, an extensive search for literature was conducted. All found literature concerning scientific, historical, political and legal aspects of the raw milk issue was collected and made available for colleagues and students at the Rutgers University through electronic file sharing. Professors were invited to add any related documents to this collection that they deemed to be important for inclusion. Funds for the literature search and seminar series were provided by the Rutgers New Jersey Agricultural Experiment Station.

Table 1. In 2008, Rutgers New Jersey Agricultural Experiment Station sponsored a seminar series to help people understand the issues and provide science-based information about raw milk. Other related educational programs included additional speakers and screenings of documentary films about raw milk. Event year, speaker and program titles are listed. [view original posting of Table 1]

The (2008) seminar series and accompanying lectures and events along with the electronic sharing of raw milk files stimulated a lively and sometimes heated scholarly discussion (Alexander, 2011). Most recently, this author was invited by a USDA scientist to participate as a member of a scientific debate panel concerning raw milk risks and benefits. This debate was sponsored by the International Association of Food Protection and was held in St. Louis, Missouri on August 3, 2016 (Fallon Morell, 2016).

This review draws upon observations, experiences and an extensive collection of literature concerning milk and places it in the context of the organic farming and food movement. Previous scholarly activity on exploring the history of the organic movement (Heckman, 2006) along with service to the Organic Management Systems Community within the American Society of Agronomy (Heckman et al., 2013) and as a board member of the Northeast Organic Farming Association of New Jersey provided further background.

The whole story: fresh milk in context

A common philosophy of the early organic farming and food movement was a central focus on the concept of ‘wholeness’. An organic farm functioned in its ‘wholeness’ as an integrated system of living organisms. Sir Walter Northbourne captured this philosophy of an organic farm saying it ‘must have a biological completeness: it must be a living entity’ where every ‘branch of the work is interlocked with all others’ (Northbourne, 1940).

Eve Balfour, founder of The Soil Association (Brander, 2003) became known as the ‘Voice of the Organic Movement’. In her bestselling book The Living Soil, she elaborated on the wholeness philosophy by extending the concept to food as in ‘whole diets’ (Balfour, 1976). She wrote: ‘The theory which I have endeavored to expound in this book is that the only true conception of health is one of wholeness, dependent upon both the continuity and the completeness of the cycle of life.’ She further argued that, ‘the health-giving property of food is dependent on the way it is grown, prepared and consumed.’ In her chapter on ‘whole diets’ she provides a review of how ancient peoples ‘preserved the wholeness of their health and that of their crops and livestock’ by summarizing the observations of medical pioneers in nutrition. She draws from the works Sir Robert McCarrison (McCarrison, 1953), Weston A. Price (Price, 1950) and many others as examples of where healthy communities existed with virtually no physical or mental defects until their food culture was displaced by modern industrialized foods. While building the case for fresh whole foods sourced from fertile soils, she advocates for a ‘complete and continuous transference of health from fertile soil, through plant and/or animal to man and back to the soil again’. As a leading voice in the organic farming movement, Balfour was also a vigorous opponent of compulsory pasteurization (Tinker, 2000).

In an article in Organic Gardening magazine Sir Albert Howard (Howard, 1946) wrote about ‘a famine of quality’ and the ‘murder of our daily bread’ as a result of growing food with artificial fertilizers and the use of modern processing to manufacture and denature foods. He refers to the work of Dr Weston Price as confirmation for his analysis of the problem and urges widespread distribution of Price’s book Nutrition and Physical Degeneration. Howard recommends that schools provide nourishment to children as: ‘The produce including bread and the milk should come from humus-filled soil and should be consumed fresh.’

When Walter Northbourne outlined seminal concepts of organic farming in his 1940 book Look to the Land, he also accurately and insightfully characterized the current situation as it pertains to milk: ‘So long as people go on being fooled by advertisement (blatant or concealed) of processed foods, so long will they and the farmers be at the mercy of vast distributing concerns, whose every interest seems to be opposed to the people’s real nutritional necessities. How can it be otherwise in a world of specialization and urbanization? Effective distribution seems to necessitate sterilization, which means killing, for failure to sterilize may mean infection in bulk. Hence the outcry for the pasteurizing of milk. But sterilization reduces the resistance to infection and the power of assimilation of the consumer of that which is sterilized. So yet more sterilizing seems to be necessary. A vicious circle again, of a type which should by now be familiar.’

In the United States where J.I. Rodale first popularized organic farming, he similarly drew connections between healthy soils, healthy food and healthy people. Following in the same vein as other organic pioneers, his publications frequently discussed how commercial and industrial food processing reduced its nutritional value. Similarly, Rodale’s thinking was influenced by observations on traditional farming and food systems as described by Sir Robert McCarrison and Weston Price (Rodale, 1948). Ten years later (Rodale, 1958) in an Organic Gardening and Farming magazine article entitled ‘What Does Organic Mean’, he explicitly staked out the organic position against pasteurization: ‘It is not organic to produce milk organically, and then to pasteurize it.’

A recent report (Michigan Fresh Unprocessed Whole Milk Workgroup, 2012) states: ‘Milk fresh from the cow is a complete, living, functional food…the full benefits…are only realized when all of these components function as a complex interdependent and balanced process.’ This contemporary view on wholeness of food systems from a panel of experts is consistent with the philosophy of the early pioneers of organic farming. The list of ‘consumer preferences on production and management practices of fresh whole milk’ outlined in the Workgroup report is also consistent with the cultural practices associated with organic farming.

Milk problems and solutions

Among the parallels that exist between the fresh milk and organic farming movements are responses of a concerned farming and food community to the destructive forces of a modernizing and increasingly industrialized agriculture.

One of the myths about organic farming (Heckman, 2010) is that before the widespread use of synthetic chemical fertilizers and synthetic pesticides, the farming that was being practiced was organic without the banner of the name. While this was partly true in some places in the world, such as that described by F. H. King (1911) in Farmers of Forty Centuries or Permanent Agriculture in China, Korea, and Japan, it was clearly not so in many places where soils were being destroyed on a massive scale by erosion. Along with the soil erosion, there was also concern over loss of native soil fertility and soil organic matter content (Heckman, 2013). These problems were described in detail in the opening chapters of The Living Soil (Balfour, 1976) and in Look to the Land (Northbourne, 1940). In these and other pioneering works, organic farming systems were proposed as a viable ecological solution to the crisis of soil destruction. In contrast, modern conventional agriculture chooses technological approaches to address soil erosion by promoting genetic engineering and chemical herbicide-no-till farming systems.

In the case of dairy farming, a serious health crisis was created in the late 1800s as a result of moving cows into crowded city feed lots and feeding them an unnatural diet (Schmid, 2009). In cities, the need for milk and the demand for whisky led to an unhealthy partnership for the mass production of both commodities. Urban centers have little pasture or forage available to feed cows. Swill, a by-product from the fermentation of grains to produce whisky, was a waste material commonly available from inner city distilleries. The feeding of swill to cows housed in deplorable and unsanitary conditions led to the production of unhealthy milk for infants and children, which in turn contributed to sickness and death.

The horrible conditions at a New York City dairy in 1842 were described by Robert Hartley (1842): ‘Here, in a stagnant and empoisoned atmosphere that is saturated with the hot steam of whiskey slop, and loaded with carbonic acid gas, and other impurities arising from the excrements of hundreds of sickly cattle, they are condemned to live, or rather die on rum-slush. For the space of nine months, they are usually tied to the same spot, from which, if they live so long, they are not permitted to stir, excepting, indeed, they become so diseased as to be utterly useless for the dairy.’

In some respects, the filthy inner city dairies of the 1800s were like an early version of the modern concentrated animal feeding operation or CAFO (Imhoff, 2010). Livestock raised in CAFOs are exposed to an abundance of manure, an absence of sunny pastures and in general conditions where pathogens may flourish. The abundance of manures produced by CAFO operations are often linked to cases of food-borne illness (Erickson and Doyle, 2012). Chemical treatments, irradiation or high-pressure processing are proposed as technical solutions (National Advisory Committee on Microbiological Criteria for Foods, 2004) to food safety problems that might be avoided by changing to ecological methods of farming.

Similarly, pasteurization of milk, often described as a major public health victory, became a technological solution to a man-made problem. A century of pasteurizing milk is a relatively short history compared with the thousands of years during which humans evolved in association with consuming animal milk without pasteurization (Curry, 2013). Although not all peoples of the world became consumers of dairy, the archeology of milk suggests Europeans that did were apparently advantaged both in terms of fertility rate and a more secure food supply. In 1935, Weston A. Price, while traveling through parts of Africa, observed that the herders of cattle and goats, living primarily on dairy products, were similarly advantaged relative to non-herders (Price, 1950).

Mark McAfee refers to the modern era of dairy and the introduction of pasteurization with the phrase: ‘Pasteurization was an 18th century solution to an 18th century problem’ (McAfee, 2013). Out in the countryside where cows were kept on pasture, fresh milk was generally a wholesome food when consumed fresh or fermented (Schmid, 2009). The movement toward milk pasteurization did not begin in the countryside but rather in the cities where cows were housed in deplorable conditions and fed an unnatural diet. Compounding the milk problem was a lack of refrigeration and a food distribution system based on limited scientific knowledge and without standards for sanitation and hygiene (DuPuis, 2002).

This set of circumstances, where milk could be easily contaminated with pathogenic bacteria, suggested the need for a kill step such as heating to a specific temperature and time period to make the milk safe. Pasteurization, a process originally invented for preserving wine, was initially promoted by a wealthy businessman, Nathan Strauss, and eventually became widely adopted by the dairy industry (Schmid, 2009).

A completely different approach to securing clean fresh milk for infants and children was pursued by Dr Henry Coit, MD, a pediatrician from Newark, New Jersey (Rogers, 1955). A commemorative poster (Heckman, 2011) in the hallway at Beth Israel Hospital (Originally known as Babies Hospital) describes the medical and pioneering accomplishments of Dr Coit: ‘A Pioneer in American Pediatrics, Henry L. Coit, MD, begins his lifelong crusade for better infant feeding and cleaner milk, following the death of his first son at age two from intestinal disease. In 1892, Dr Coit outlines a program for purification. Two years later, the world’s first bottle of certified milk, handled entirely under medical supervision, is delivered. Soon Babies Hospital delivers pure certified milk to families throughout Newark. At its peak, the program distributes 150,000 bottles per year.’

Rather than implement a kill step like pasteurization to make poorly produced milk safe, Dr Coit instituted a set of practices for better dairy stewardship. Dr Coit found that many dairy farmers of the time lacked knowledge of hygiene to produce clean milk. Being well aware of the challenges involved, Dr Coit ‘devised a plan for a professional body composed of physicians, which should first educate, then encourage and finally endorse, the work of dairymen who would bring to us milk designed for the most exacting needs of physicians’. His plans also specified production practices, inspections and certification under a legal contract with the dairy farmer (Rogers, 1955). Under the leadership of Dr Coit, the first Medical Milk Commission was established in Essex Country, New Jersey in 1893. By 1896, over 60 Medical Milk Commissions were operating around the world.

In 1909, the New Jersey State Department of Health adopted the definition of certified milk that originated (Rogers, 1955) from Dr Coit: ‘Certified milk is a product of dairies operated under the direction of a medical milk commission, which body is appointed for voluntary service by a medical society. The milk is designed to fulfill standards of quality, purity and safety to ensure its adaptability for clinical purposes and the feeding of infants.’

Certified milk continued to be available as a choice in New Jersey at least up until 1971 when the Walker–Gordon Farm in Plainsboro, New Jersey closed. Milk certified by the Medical Milk Commission bottled at Walker–Gordon Farm was shipped by rail to Philadelphia and New York. The dairy began its operation in Plainsboro in 1897 and provided fresh unpasteurized milk to the surrounding communities for many decades and even after 1964 when New Jersey legislation made raw milk distribution illegal.

The loss of this special fresh milk is described in an excerpt from a book entitled Walker-Gordon, One of a Kind (Tindall and Clark, 1998): ‘For those of us who grew up with the taste of fresh, really fresh, whole milk, unadulterated in any manner except to chill it ice cold, today’s milk is a sad replacement.’

In the early 1900s, many medical doctors recommended pure raw milk over pasteurized milk (Anonymous, 2010). ‘Certified milk’ was the way Dr Coit envisioned providing infants and children with fresh pure milk without pasteurization. For several decades, people were allowed a choice to buy either certified milk or pasteurized milk. Historically, food protection associations generally agreed and allowed for an exception to mandatory pasteurization in the case of certified milk (International Association of Food Protection, 2014).

Certified milk was at a disadvantage in a market place due to the added expense of producing clean fresh milk. In some instances, the production of pasteurized milk was subsidized. Eventually pasteurization became the dominant process as it allowed dairy farming and milk processing to industrialize on a massive scale (Schmid, 2009).

Like certified organic farming, certified milk production adhered to a set of standards to guide food production even if for different reasons. In the case of organic farming, certification directs ecological stewardship of soils, crops and livestock without the use of most conventional chemical inputs of questionable safety. With certified milk, the emphasis was on better dairy farming practices and careful milk handling to produce clean milk. Inspections are part of both certification systems. The good hygiene required to produce certified milk played a part in raising the standards for the entire dairy industry including that of raw milk intended for pasteurization (Rogers, 1955).

The sanitary handling procedures and standards for milk production intended for processing are codified in the US Food and Drug Administration (FDA) regulations as outlined in the Pasteurized Milk Ordinance (PMO). The PMO standards do not apply nor are they appropriate for dairy farms producing raw milk that will be consumed as fresh unprocessed milk. Individual states that permit raw milk sales or distribution vary widely in standards and regulation.

The absence of national standards for production of unpasteurized milk for direct human consumption inspired the founding of the Raw Milk Institute (RAWMI) by an organic dairy farmer (McAfee, 2011). Established in 2011, RAWMI mentors and trains producers of fresh unpasteurized milk. As described on its website, it ‘facilitates best practices in the raw milk industry through the evaluation of research findings’ and farm experience to create individualized food safety plans. Dairy farms that work with RAWMI adopt a set of standards; develop a risk assessment and management plan and safe operating procedures that are customized to the unique environment of the farm.

In some respects, the writing of this plan for an individual farm is analogous to writing an organic farm plan for organic certification. As with certified milk, the RAWMI emphasizes training and carefulness of the production. Producing a clean high-quality fresh unprocessed food within a system of farming and verifying the integrity of that system is not unlike goals for organic certification (Johnston, 2014).

The economic disadvantage of regulated and permitted raw milk arises from the special procedures for minimizing risk, which results in a food with higher production costs than pasteurized milk. Producing certified organic foods may be economically disadvantaged for similar reasons. However, premiums that consumers are willing to pay for organic food tend to improve the profitability of organic farming (Kantor, 2015).

Quality, hygiene and food safety

The legacy of Dr Coit serves to draw a distinction between the health impacts of carefully produced legitimate food-quality fresh milk intended for direct human consumption and processor-quality raw milk, which is produced knowing that pasteurization will follow. Dr Coit and the Medical Milk Commission were very concerned about both the benefits of the milk for their patients and the public health effects of dirty milk. This crucial distinction is often ignored in public discourse. Thus, when public health officials issue warnings about raw milk consumption or cite illness or outbreak statistics, they typically make no distinction or give little consideration to how milk is produced. It is simply labeled ‘raw’.

For example, it is useful to examine statements issued by the Centers for Disease Control (CDC) and other food safety officials:

‘Raw milk is milk from cows, goats, sheep, or other animals that has not been pasteurized.’

‘No matter what precautions farmers take, and even if their raw milk tests come back negative, they cannot guarantee that their milk, or the products made from their milk, are free of harmful germs.’

‘Dairying methods have improved over the years but are still no substitute for pasteurization in ensuring that milk is safe to drink. Raw milk supplied by “certified,” “organic,” or “local” dairies has no guarantee of being safe.’

While these statements from the CDC may be partly true, they seem to imply that not only is pasteurization the only safe option, but that it ‘guarantees’ safety. They also set up an impossible standard for any food to achieve.

The CDC is not alone. Some food scientists (Lally, 2011) accept the fact that ‘there is no way to guarantee the safety of any food’. However, other scientists (Claeys et al., 2013) write about how milk is ‘heat treated’ to ‘guarantee its microbial safety’.

A careful look in the historical record for pasteurization shows that it does not guarantee food safety. Any food, including raw or pasteurized milk, can be associated with food-borne illness (Real Raw Milk Facts, 2005–2017). Although dairy in general is among the safest of foods, a few notable examples of well-documented illness and deaths linked to pasteurized milk show that pasteurization does not guarantee safety. Very rarely do news stories that highlight the risks associated with raw milk drinking ever acknowledge the reality of illnesses or deaths linked to pasteurized milk. Thus, it is essential for a balanced discussion to at least present some of the food-borne illness data linked to pasteurized milk. In 1985, it was estimated that more than 168,000 people were sickened with Salmonella from pasteurized milk (Ryan et al., 1987). In 2007, Listeria from pasteurized milk was linked to three deaths. Furthermore, according to this report on these deaths linked to Listeria, ‘records indicate that pasteurization methods at the dairy were adequate’ (CDC, 2008). A more recent analysis (Stasiewicz et al., 2014) indicated that on average 18 deaths occur annually from consuming pasteurized milk and that increased risk is related to increasing temperatures used for pasteurization.

Consumption of fresh milk, as with any food, is associated with some level of risk. People unwisely sometimes drink commodity raw milk intended for pasteurization or they may drink raw milk from a black market source. Amateurs can get involved in raw milk production without adequate training and provide an unsafe product; but without drawing a distinction between legitimate food-quality fresh milk carefully produced from healthy cows and commodity raw milk produced under PMO standards (which do not require testing for pathogens, and allows commingling of milks from many farm bulk tanks intended for pasteurization), the level of actual risk of drinking carefully produced fresh milk remains impossible to accurately quantify.

The three main pathogens of public health concern with unpasteurized milk are Campylobacter jejuni, the shiga-producing strains of Escherichia coli and Salmonella. These pathogens are commonly found in bulk tank commodity raw milk intended for pasteurization; but in carefully produced fresh unprocessed milk, they are found only on rare occasion (Baars et al., 2015). The Real Raw Milk Facts website, which reports illnesses and deaths attributed to either raw milk or pasteurized milk, makes no distinction between commodity raw milk intended for pasteurization and carefully produced clean raw milk produced for fresh consumption.

Several recent studies conclude that raw milk is a high-risk food, which poses a risk for outbreaks 150 times greater than pasteurized milk (Langer et al., 2012). Critics have challenged these studies’ underlying assumptions, the confusion between outbreaks vs number of illnesses per outbreak, the estimated population size of raw milk consumers and the time frame for data inclusion or exclusion (Kresser, 2012; Weston A. Price Foundation, 2012).

When outbreaks attributed to raw milk occur, they are generally associated with a small number of illnesses per outbreak. The illnesses are generally traceable back to or linked to a single dairy farm that serves a small community of customers from a relatively small herd of dairy animals.

In contrast, pasteurized milk is usually obtained by pooling milk from numerous farm bulk tanks, and when outbreaks do occur, they can be very large. For example, the earlier cited outbreak from salmonellosis traced to pasteurized milk was described as ‘massive’ and made it the largest ever identified outbreak in the United States (Ryan et al., 1987).

Proponents argue that where raw milk sales are legal, regulated and widely available, the number of illnesses associated with raw milk drinking is self-limited and manageable, as much as it can be with other foods (Weston A. Price Foundation, 2012). Cooperation from public health agencies and training of fresh milk producers in best practices could conceivably further improve its safety.

The current situation also raises questions: Why is less than perfectly safe a manageable risk for every kind of food except in the case of fresh unpasteurized milk? Why are no other foods held to the impossible standard of a perfect safety record?

Proponents argue that when compared with many other foods, the number of illnesses associated with fresh milk consumption is comparatively small. For example, at the International Association of Food Protection, Raw Milk Debate in 2016, it was shown that leafy greens are at the top of the list for most risky food. Even when compared at the same level of consumption, leafy greens are several times more risky than raw milk. Some further argue that there are health implications from prohibiting access to raw milk because doing so removes the potential for people to receive the health benefits (discussed below) uniquely associated with drinking fresh milk.

For the last several decades public health officials and food safety scientists have almost exclusively focused on warning and educating people against consuming fresh milk by highlighting safety concerns. Documentary films FarmageddonOrganic Hero or Bioterrorist and Milk War have provided graphic illustration of clashes over raw milk between government agencies on one side and dairy farmers and consumers on the other.

A psychiatric physician attending one of the raw milk seminars at the Rutgers University (Schwartzman, 2010) and well-versed in the dynamics of mass psychology spoke up about how the battle over legal access to raw milk was about much more than just food safety. In his blog (Government vs Raw Milk) he defines and explains a social phenomenon called the emotional plague as originally outlined by Dr Wilhelm Reich. Schwartzman explained: ‘I contend no matter how much proof of safety is presented or what additional information is provided, the government authorities will never relent in their efforts to end sales of unpasteurized milk…The safety of unpasteurized milk and the best interest of the public are not the sole or even primary reason for the government’s attack… In their minds they must stop ‘dangerous’ activities and behaviors, never realizing their prohibitive actions are not really for good of others but rather to make themselves feel better by putting an end to the behavior that makes them intensely anxious. Controlling others makes plague-ridden individuals feel better, at least temporarily.’

Antagonistic campaigns against a farming system are another parallel between the raw milk and organic farming and food movements. When the USDA Secretary of Agriculture, Earl Butz declared ‘Before we go back to organic agriculture, somebody is going to have to decide what 50 million people are we going to let starve’, he dismissed organic as a viable system of farming. Similarly, John F. Sheehan (2005) of the FDA declares that, ‘Raw milk is inherently dangerous’ and that, ‘Drinking raw milk or eating raw milk products is like playing Russian roulette with your health.’ Such statements appear intended to frighten people away from consuming unpasteurized dairy regardless of the carefulness of production.

In spite of such pronouncements from public officials and the interests of agricultural industries and food manufactures, as with certified organic production, farmers and consumers are making personal choices toward a new food movement. Educational campaigns against access to raw milk may be seen as a failure given that demand for pasteurized fluid milk has been steadily declining (Berry and Gee, 2012), whereas the growth in demand for permits to sell raw milk has been described as ‘explosive’. Research and support from the Cooperative Extension System for careful production of raw milk needs to catch up with the educational resources available for the organic system of farming. Publication of the book on Producing Fresh Milk, The Cow Edition(Baars et al., 2015) and Producing Fresh Milk, The Goat Edition (Baars et al., 2017) are examples of educational efforts in this direction.

Policy toward raw milk availability varies widely among countries. In the United States, there are as many different policies and different levels of availability of raw milk to consumers as there are states (Farm-to-Consumer Legal Defense Fund, 2016). In spite of the FDA policy prohibiting transport of raw milk across state borders by farmers, consumers frequently cross borders to procure raw milk. In Canada, raw milk is completely prohibited with the exception of the unsettled gray area of the law where consumers buy into ownership of the dairy farm. In India, Bangladesh and Pakistan, fluid milk is widely available for consumption without processing. Australia strongly prohibits raw milk distribution, while New Zealand permits raw milk sales at the farm. In many European countries, raw milk is widely available as retail sales or directly from dairy farms with the help of raw milk vending machines (Brasch, 2014). What these different levels of restriction or access appear to illustrate is that consuming regulated raw milk does not lead to an overwhelming number of food-related illnesses.

Mainstream attention, policy changes and the role of leadership

Organizations dedicated to teaching people about fresh milk strongly urge that the milk should be produced from pasture-fed animals and not raised in continuous confinement (Gumpert, 2015; Shetreat-Klein, 2016). Large-scale industrial or confinement operations that emphasize high levels of production per animal unit are not perceived to be a good source for fresh milk due to concerns over animal welfare and sustainability. These guidelines are aligned with the USDA-NOP standards that require pasture feeding of animals (Code of Federal Regulations, 2015) and the traditional philosophy of organic dairy farmers to accept less intensive inputs described as a ‘refusing to push the cows’ (Saucier and Parsons, 2014). That fresh milk be produced by a certified organic operation is not necessarily the point, but rather that the dairy uses many organic production practices that serve to enhance milk quality and ensure animal welfare (Baars et al., 2015). Such production practices are assumed to reduce risk but their value and effectiveness need research for validation or further improvement.

Until recently, and after several decades of hostility, agricultural universities and the Cooperative Extension System gave little research support to the organic system of farming (Lipson, 1997). Currently virtually every agricultural university exhibits some level of support for organic farming. In some cases, there are now professors at major agricultural universities dedicated full time to research and educational programs on organic farming.

Yet in more than 100  yr of the Cooperative Extension System, there has been very little effort dedicated to research or training of dairy farmers in the careful production of fresh milk to be consumed without pasteurization. Despite the fact that fresh milk is a legal beverage in all states (at least from a family cow or goat) and can be legally sold from the farm or retail in many states, the Cooperative Extension System has not met its responsibility to be truly transformational in its educational programing by serving fresh milk dairy producers and consumers (Heckman, 2007). Contrary to helping fresh milk dairy farms produce a safer product, with few exceptions (Hoenig, 2014), the focus of the Cooperative Extension System has been warning people of the dangers of drinking unpasteurized milk and driving people away from their personal food choice (Schutz and Ferree, 2012).

Recently, Raw Milk Workshops (20142015) were held at the Penn State University and at the State University of New York–Cobleskill. These notable exceptions may be a sign of some specialists within the Cooperative Extension System accepting a role in the training of raw milk dairy farmers. The workshops objectives were designed to teach science-based food safety principles to help create a secure foundation for the growing raw milk movement. Speakers included veterinarians and experienced raw milk dairy farmers.

As with success in organic farming, innovations with fresh milk production and safety have been associated with working farms, which historically received little to no assistance from agricultural universities and the Cooperative Extension System. One might assume that people will never stop a 10,000-year-old tradition of producing and drinking fresh milk. If anything the number of people choosing fresh whole unprocessed milk appears to be rising in spite of public health agencies discouraging fresh milk drinking.

Other organizations have stepped in to serve farmers and consumers when the Cooperative Extension System fails to provide a necessary service. The historic guidance for the production of Certified Milk by Medical Milk Commissions, the more recent establishment of the RAWMI and educational efforts of the Farm-To-Consumer Foundation, were initiated by actors almost entirely outside of universities and the Cooperative Extension System. In the case of the RAWMI, it was established by Mark McAfee, the owner of the largest organic raw milk dairy in North America.

Agricultural universities and the Cooperative Extension System typically follow the lead of federal authorities. Federal agencies strongly opposed to allowing people to choose fresh milk could potentially reverse direction under new leadership. Such was the case when the Secretary of USDA Bob Bergland decided to take a look at organic agriculture in the 1970s. It was an ‘across the fence conversation’ with a neighboring organic farmer that sparked the talks and surveys between USDA and the organic community (Youngberg and DeMuth, 2013). In 1980, the USDA published its Report and Recommendations on Organic Farming (USDA, 1980).

In the forward of that USDA document, Bob Bergland writes about gaining an understanding of organic farming systems and the need for research, education and communication.

What would happen to the fresh/raw milk movement with a similar change in attitude of government officials?

Several years after passage of the Federal Organic Food Production Act of 1990, the Organic Farming Research Foundation surveyed the USDA’s Current Research Information System for pertinence to organic farming. The findings from that survey were summarized in ‘Searching for the O-Word’ (Lipson, 1997). By revealing a lack of USDA commitment to organic farming research, the report became a catalyst for increasing levels of financial and institutional investment in such work.

The uneven legal status of fresh milk sales within the states and FDA policy may be an even greater hurdle to getting USDA support for research and the Cooperative Extension System teaching on production and safety. Recent trends toward legalization or administrative policies among numerous states are allowing increased access to fresh/raw milk (Kennedy, 2016). Currently there also appears to be a relaxing of restrictions against dairy farmers providing fresh milk. Even more important than research support is the desire among raw milk dairy farmers and the people who want access to fresh milk to simply be left alone and to have their food choice respected (Gumpert, 2013).

Health outcomes, subjective experience and the ‘great subject’

The holistic view of health and nourishment concerning soils, plants, animals and people sets the traditional organic system of farming apart from conventional agriculture. This broad ecological perspective was expressed by Albert Howard (1943) when he wrote about ‘the whole problem of health in soil, plant, animal and man as one great subject’.

Eating food serves numerous health functions, not the least of which is pleasure and satisfaction. In the case of full fat unprocessed fresh milk many people claim to have a different drinking experience (Katafiasz and Bartlett, 2012). Commodity pasteurized and homogenized milk is usually comingled with many farms and processed for consistent flavor throughout the year. In contrast, people consuming fresh milk directly from specific farms can experience the flavors as they vary with the quality of pasture or feed, growing season, geography, animal breed and carefulness of the milking operation (Gumpert, 2015). People who drink and appreciate the flavors and mouth feel of quality fresh milks are every bit as much connoisseurs as those who consume fine wine. The satisfying value and pleasurable experience with artisanal foods such as fresh milk are too often undervalued or ignored by the proponents of industrialized agriculture (Mincyte, 2014). Health benefits are also similarly dismissed and ignored.

When a food is deconstructed and its chemical constituents measured in an analytical laboratory, the nutrient concentrations are itemized but not functionally understood. Studies comparing nutritional composition of organically grown food and conventional food usually stop short of investigating how the food objectively functions in a living organism (Carr et al., 2012), let alone how it subjectively functions. In the case of fresh vs pasteurized milk, nutrient content reports usually acknowledge that pasteurized milk results in some loss of a few nutritional components, such as vitamin C. They may go further and say that milk is not a significant source of such nutrients anyway.

Although nutrient content data can be useful, it does not tell the full story. For example, it does not tell us much of anything about the eating experience and the role that qualitative factors play in health and satisfaction. Surveys have shown that the number one motivation for drinking fresh unprocessed milk is taste (Katafiasz and Bartlett, 2012). This is very important because dietary health benefits can only come from foods people are willing to eat.

Often the personal experiences of health outcomes expressed by people switching from drinking pasteurized milk to fresh milk are not taken seriously. Rather than viewed as preliminary lines of evidence for formulation of hypothesis and follow-up research, the potential health benefits of drinking fresh milk are too quickly dismissed as anecdotal and not worthy of further investigation.

The values of the numerous biologically active factors in fresh milk that are diminished or inactivated by the heating process of pasteurization are reviewed in the report by Michigan Fresh Unprocessed Whole Milk Workgroup (2012). Besides nutrient bioavailability, this report recognizes the valuable role of bacteria in providing prebiotic and probiotic functions, and active enzyme systems that assist digestion. The report also cites studies indicating that drinking fresh milk protects against allergies and asthma. It further notes some people who are not able to drink pasteurized milk have tolerance for drinking fresh milk. Unlike most reviews, this report is unusual in that it acknowledges these special attributes of fresh milk.

Any evidence for health outcomes uniquely associated with consuming fresh unpasteurized milk is typically dismissed with blanket pronouncements. For example, the CDC (Raw Milk Question and Answers, 2017): ‘There are no health benefits from drinking raw milk that cannot be obtained from drinking pasteurized milk that is free of disease-causing bacteria.’

The US FDA similarly plays up the risks and dismisses the benefits. How some public health organizations, community of health professionals and food scientists can ignore the accumulated published evidence on health benefits appears biased or a willful failure of scholarship.

However, it appears that as the scientific literature (showing that raw milk offers unique protection from allergies, asthma and respiratory infections) is made easily available, it can no longer be so blatantly ignored. As an example, in response to political pressure from the state of Maryland, the legislature called upon public health professionals at the Johns Hopkins University for an opinion on raw milk. A published report entitled: A Literature Review of the Risks and Benefits of Consuming Raw and Pasteurized Cow’s Milk (Davis et al., 2014) concluded that ‘there is no scientific evidence supporting the claim that the benefits of raw milk outweigh any health risk.’ While this review did not entirely please the proponents for legalizing access to fresh milk in Maryland, it did review and acknowledge some evidence for health benefits from fresh milk consumption at least for its association with reduced allergies. As may be expected from mainstream sources, the report also strongly discouraged the drinking of fresh milk.

There are many other examples of this narrative that magnifies risks while ignoring, downplaying or dismissing the benefits. While it is extremely difficult to change an establishment position, one approach to shifting the debate is to study a subject in depth and to challenge the experts by exposing the contradictions of their words (Martin, 1996). A few well-informed and vocal critics can spur a movement and sometimes make an enormous difference.

People concerned with making food choices have several options: (1) place their trust in the pronouncements of the ‘experts’, (2) ask a trusted health care professional, (3) read and review published literature and arrive at their own interpretation and assessment, or (4) become knowledgeable about their food choices from real-world experience.

The fourth option is not unlike what farmers and gardeners experience when they decide to implement organic practices on their land. When a farmer transitions away from commercial chemicals to the organic system, they observe the unique qualitative changes in soil properties that result from switching to a biologically based soil fertility system. The special soil properties achieved and the benefits to plants of feeding the soil with complex organic nutrient sources are now well documented and cannot be dismissed as simply anecdotal (Rodale Farming System Trial, 2016). The increases in soil organic matter content, ease of tillage, water infiltration, biological activity, drought tolerance and disease suppression are expressions of soil health typically observed when organic farming is compared with conventional chemical farming (Carr et al., 2012).

The analogy of feeding soil or feeding people with naturally occurring whole biologically active substances is a concept very much in tune with the philosophy of the organic farming movement. The observations on soil health or human health that follow from it may be considered subjective and therefore subject to criticism from the scientific establishment; but for individuals with positive experiences with organic systems nothing matters more or is more convincing than these personal experiences (Padel, 2001). Nevertheless, the organic community also welcomes scientific studies that can provide objective validation for their subjective experiences.

When considering food choice, the third option is the most difficult and time consuming and therefore the least likely path taken. Nevertheless, in service to the stated goal of informed consumer choice, Table 2 outlines the newer as well as the older published literature on health properties and nutritive values associated with fresh unprocessed milk in contrast to pasteurized milk. This listing includes studies and literature references (drawn from the extensive collection described in the Methods section) that include both human milk as well as that of other lactating animals.

Table 2. Literature summary on health and nutritional responses associated with raw or heat treatment of animal milk and human milk. The listed studies generally refer to bovine milk unless indicated to be human milk. [reformatted for legibility, posted in three parts – see original Table 2]




 
The body of scientific literature comparing fresh milk vs heat-processed milk suggests that health outcomes are often different (Table 2). The evidence is based on animal as well as human feeding trials using cow milk or human breast milk. It generally shows that when milk is heated, some of the nutritive qualities are diminished; weight gains and growth are often less with heat-treated milk. The more recent studies indicate that consuming fresh milk helps protect children from allergies, asthma and respiratory infections (Waser et al., 2007; Braum-Fahrlander and von Mutius, 2010; Loss et al., 2011). The literature also notes that unpasteurized milk has immunologic factors and anti-microbial properties that decrease when heat treated (Loss et al., 2015; McCarthy et al., 2015).

There are also some studies reporting no meaningful differences when comparing raw vs pasteurized milk for lactose tolerance (Mummah et al., 2014), protein quality or mineral availability (Weeks and King, 1985, and Zurera-Cosano et al., 1994). On balance, however, many studies provide evidence of health benefits associated with milk consumed fresh.

In spite of the acknowledged evidence for improved health outcomes from consuming raw milk, authors of such studies apparently feel compelled to incorporate a personal opinion against drinking fresh milk due to the potential presence of pathogens (Waser et al., 2007; Loss et al., 2015). They also call for further research on finding, isolating or preserving the protective components of fresh milk (Perkin, 2007; Waser et al., 2007). This approach would seem to be at odds with the whole natural foods philosophy of traditional organic food systems. What is missing from their recommendations is a pursuit of research and education for dairy farmers on how to improve the quality of fresh milk and its production practices.

Until recently, the organic farming systems received only very limited research and educational support from agricultural universities. The increasing abundance of organic food in the market place shows that organic farming can function as a viable system of food production with or without the help of institutional support. In a similar fashion, researching ways to reduce risks and improving production practices may enable more people to consume wholesome fresh milk without pasteurization and receive accompanying health benefits.

Published scientific literature is always open to interpretation and continuous reinterpretation in the context of current science. From the summary (Table 2) and reference list, ‘citizen scientists’ willing to make the effort can more quickly find pertinent literature and read and interpret it for themselves for the purpose of making an informed food choice.

Policy impacts on soil fertility, sustainability and health

The pioneers of the organic farming movement placed great emphasis on health in connection with soil fertility. Howard (1943), for example, wrote of a ‘great linkage between the soil, the plant and the animal.’ and furthermore declared that ‘Soil fertility is the basis of the public health system of the future’ (Howard, 1972). The authors (Baars et al., 2015) of the book on Producing Fresh Milk, The Cow Edition would agree with the organic farming concept that mineral-rich fertile soils are one of a large number of factors promoting healthy dairy animals and enhanced quality fresh unprocessed whole milk.

Albert Howard (1972) was also very much cognizant of the function of livestock on soil fertility when he wrote that ‘Mother nature never farms without live stock….’ Cows as part of the farm ecosystem are effective transformers of relatively low nutrient density forages into nutrient-rich foods with fat-soluble vitamins, proteins and energy-dense fats (Heckman, 2015). On dairy farms, there is a flow of soil fertility through the cow (Bear, et al., 1946). Although cows do extract a fraction of the minerals from their feed to make milk, the larger fraction of the minerals contained in feeds and forages are recycled back to the land through manure application.

Pasture-based dairy farming systems are one of the most effective ways to build soil organic matter content and soil fertility in general (Heckman, 2015). This organic fraction of the soil is a valuable storehouse for carbon, nitrogen, phosphorus, sulfur and other plant nutrients. Pastures under organic management are ideally a mixed stand of legumes and grasses. This diverse mix enables a farm to be self-sufficient in nitrogen. This biologically captured nitrogen as part of a well-designed crop rotation is supportive of an entire organic farming operation. In this way, pasture and perennial forage crops are foundational attributes of an effective organic farm plan.

Whether organic milk from a dairy farm is provided directly to consumers as fresh milk or as pasteurized milk makes little difference in terms of how soil fertility functions on the farm. However, milk policy can have a huge influence on the number, size and distribution of dairy farms and thereby sustainable soil fertility.

Dairy farms in the business of providing fresh milk directly to consumers are typically smaller operations with a local community of patrons. These dairy operations employ many organic farming practices. This is in large part due to the preferences of fresh milk consumers for organic production systems, especially pasture feeding. A recent study (van Asselt et al., 2015) on dairy farming in the Netherlands concluded that ‘raw organic milk is more sustainable than pasteurized organic milk’ and furthermore that ‘it is also more sustainable than pasteurized conventional milk due to a higher revenue’. Where policy supports production and trade in fresh milk, more farmers are likely to enter the business of producing fresh milk. Thus, more pasture-based dairy farms would contribute to more land area under sustainable soil fertility management.

As a case study, the state of New Jersey illustrates the impact of food policy on soil fertility. By law New Jersey currently prohibits distribution of raw milk by dairy farmers. However, there is no law against sales of raw vegetables directly from farms. Consequently, New Jersey has numerous small vegetable farms; but for dairy farming, there is no practical legal avenue for direct marketing of fresh milk. Consequently, fresh milk drinkers source this special food choice from neighboring states where sales are permitted. An estimated $95 million in revenue leaves New Jersey annually, which goes to support out-of-state fresh milk dairy farms (Heckman, 2014) rather than local farms.

Where New Jersey once had thousands of small dairy farms spread across the Garden State, less than 70 remain. Among states in the Northeast USA, New Jersey obtains a relatively small (12%) percentage of its agricultural revenue from livestock. Thus, looking at New Jersey as an example, it may be argued that the legal status of milk policy nearly precludes the viability of small dairy operations and the sustainability of local well-distributed soil fertility ecosystems that would naturally follow the dairy cow.

SUMMARY

The raw milk movement has been associated with the organic farming movement since its inception. Walter Northbourne, the first person to write about organic as a system of farming, correctly characterized the emerging problems not only of agriculture, but of fresh food systems. He explained that just as industrialization of farming lead to erosion and destruction of soil on a massive scale, the ‘vast distributing concerns’, ‘specialization’ and the phenomenon of ‘infection in bulk’ created the need for milk pasteurization, and that this heat process degraded the quality of a fresh whole food.

The organic dairy farming community in ‘refusing to push the cows’ is pursuing natural alternatives to industrial confinement production by emphasizing the feeding of dairy animals outside, in sunshine and on pastures grown on fertile soils. In this system, organic farmers are willing to accept lower productivity for healthier cows, higher quality milk, economic sustainability and happy feedback from fresh milk consumers. Agricultural universities and the Cooperative Extension System reluctantly joined in with research and teaching of organic food and farming systems as they slowly became accepted and moved into the mainstream. These same institutions have an opportunity to become a positive force in reinventing dairy farming and restoring the ecology of this traditional food and farming system.

Acknowledgements

The research reported in this publication was supported by the Rutgers New Jersey Agricultural Experiment Station. The author thanks Mark Keating for valuable suggestions and Theresa Lam for organizing the literature search.

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SECTION 1 | 2 | 3 | 4 | 5 | 6 | 7 | SUMMARY

Utah Raw Milk and Homemade Food Bills Now Law


On March 21 Governor Gary Herbert signed the Home Consumption and Homemade Food Act (House Bill 181 – HB 181) into law, making Utah the fourth state after Wyoming, North Dakota and Maine to adopt food freedom legislation. Utah, with a population over 3 million, is the most populous state to pass a food freedom bill so far. The population of the capital, Salt Lake City, is a little under 200,000; the Salt Lake metro area population is over one million.

Two days prior, on March 19, Herbert signed Senate Bill 108 (SB 108), legislation increasing opportunities for the permitted sales of raw milk as well as expanding consumer access to the product. It’s been some week for supporters of local food in the state. The mother-daughter team of farmers Symbria and Sara Patterson were the driving force behind both bills. Both pieces of legislation go into effect immediately.

HB 181 allows the unregulated sale of all foods within Utah except raw dairy and meat products direct from the producer to an “informed final consumer.” There are two exceptions to the prohibition on the unregulated sale of meat products. Producers can sell poultry and poultry products under the bill as long as they slaughter less than 1,000 birds a year. Producers of domesticated rabbit meat are also able to sell direct to consumers without regulation “pending approval from the United States Department of Agriculture that the state’s role in meat inspection is preserved”–approval that shouldn’t be more than a formality.

Sales under the bill can be made at a farm, ranch, “direct-to-sale farmers market”, home, office or any location agreed upon between the producer and consumer. The only requirement for producers is that they inform consumers that the food sold has “not been certified, licensed, regulated or inspected by state or local authorities.” If producers are selling at a farmers market, they must display signage indicating this information; producers selling without regulation at the farmers market must be separated from other vendors at the market.

SB 108 allows producers with a permit to deliver and sell raw milk “from a mobile unit where the raw milk is maintained through mechanical refrigeration at 41 degrees Fahrenheit or a lower temperature.” Under prior law licensed dairies could only sell raw milk on the farm or at a retail store if the dairy had a majority ownership interest in the store–only two of the state’s ten permitted dairies meet this requirement.

SB 108 also allows unpermitted dairies to sell up to 120 gallons of raw milk per month direct to the consumer on the farm. Producers selling under this exemption must comply with labeling, recordkeeping, animal health and milk testing requirements; producers must also notify the Utah Department of Agriculture and Food (UDAF) “of their intent to sell raw milk.”

Symbria and Sara Patterson have taken time off from the farm each of the last four legislative sessions to lobby for legislation they have developed promoting unregulated producer-to-consumer direct trade. The Pattersons are respectful but persistent. In 2015 they were successful in getting micro-dairy herdshare legislation passed despite opposition from Utah Farm Bureau, the state dairy industry, and UDAF. In 2016 and 2017 they worked on food freedom legislation that did not make it out of committee–showing the tremendous progress they have made in a short period of time. As the session went on, opposition to HB 181 and SB 108 steadily decreased; HB 181 passed unanimously in the Senate and SB 108 did the same in the House.

The Pattersons have put together a formidable team to work on local food legislation consisting of Representative Marc Roberts, lobbyist Royce Van Tassell and farmer/analyst Paula Milby. Roberts has been the champion of food freedom in the Utah legislature the past four years, patiently staying the course when the opposition to the bills he introduced looked to be overwhelming. He, the Pattersons, Van Tassell and Milby showed a knack this past session for crafting legislation that would minimize opposition while not compromising what they were trying to accomplish. Connor Boyack, the president of the non-profit Libertas Institute, has helped significantly since 2015.

The Pattesons received earlier funding to help their legislative work from the Farm-to-Consumer Legal Defense Fund and State Policy Network but thanks to their formation of the non-profit Red Acre Center (RAC), they are now able to pay for lobbying and other expenses related to legislative efforts through donations to RAC–among expenses is paying for a farm manager when the Pattersons are away lobbying in the capital, Salt Lake City. Their Red Acre Farm in Cedar City operates a thriving vegetable CSA and sells meat and poultry products as well. The RAC is an education and advocacy nonprofit center that holds an annual conference in January; it has quickly become part of the conversation about who the influential organizations are in Utah food and agricultural policy. The Pattersons are building Red Acre Center for the long haul to be part of the political and educational landscape of food and agriculture in the state.

An interesting dynamic in SB 108 was that the bill likely would not have passed without the support of the Utah business empire, Redmond Inc. Redmond is primarily known for its manufacture of salt but it also has a raw milk operation, Redmond Heritage Dairy, that sells raw milk in several stores Redmond owns throughout Utah. Redmond wanted SB 108 to pass so it could deliver around the state. The company was the driver behind 2007 legislation that banned herdshares while allowing the sale of raw milk retail stores by a permitted producer that held a majority ownership interest in the store selling the raw milk. The Pattersons partially rectified the ban on herdshares with the 2015 legislation legalizing micro-dairy herdshare programs; they worked with officials from Redmond on the passage of SB 108.

RAC has joined Redmond, Utah Farm Bureau, the conventional dairy industry and UDAF as a player in Utah food and agriculture legislation. For Red Acre Center it shows the success that can result when you have a few dedicated individuals that don’t take “no” for an answer.

Victory in North Dakota: Food Freedom Act Intact


One of the more brazen power grabs involving local food in recent years came to end March 21 when the North Dakota Department of Health (NDDoH) withdrew proposed rules that would have substantially watered down the North Dakota Food Freedom Act (FFA), groundbreaking legislation that passed in 2017.

The FFA allows producers to sell any food (referred to as cottage foods in the legislation) without regulation except meat, dairy and foods with either meat or raw dairy as an ingredient. The FFA gave NDDoH no rulemaking power but that didn’t stop the department from trying to weaken the legislation. NDDoH convened a workgroup after the bill passed last year to draft regulations governing the FFA; the composition of the workgroup was stacked against its members that had supported the legislation.

Last month NDDoH published proposed rules that were an attempt to substitute its judgment for the legislature’s and reduce the number of cottage foods that could be sold without regulation from what the FFA allowed.

The proposed rules prohibited the sale of canned foods such as sauerkraut or pickles if their pH and/or water activity was above a certain level; nothing in the FFA contained this requirement. The rules required that producers sell only whole frozen poultry; nothing in the FFA has this limitation. Moreover, North Dakota has adopted the federal regulation governing the production and sale of poultry which allows the sale of fresh poultry, poultry parts and value-added products such as chicken pot pie and chicken broth.

The proposed regulations would also have prohibited the production and sale of certain dry goods, dehydrated and beverages such as kombucha that are all allowed under the FFA.

Opposition to NDDH was widespread. North Dakota Farm Bureau which had supported the FFA worked to get the department to withdraw the proposed rules. The national nonprofit Institute for Justice also made an impact, pointing out in a letter to NDDH Commissioner Mylynn Tufte by one of its attorneys that under the FFA a state agency could not regulate the preparation or sale of cottage food products.

Dairy farmer LeAnn Harner who heads the advocacy group North Dakota Food Freedom helped coordinate opposition to the rules, Harner, who was instrumental in the passage of the FFA, worked with legislators to move NDDoH to honor the legislative intent that there be no regulation of cottage foods.

The key legislators in getting NDDoH to withdraw the rules were Representative Luke Simons (the sponsor of the FFA) and Representative Aaron McWilliams. In a statement posted on the North Dakota Food Freedom Facebook page, Rep. McWilliams said that he and Rep. Simons had met with Commissioner Tufte along with a representative from the governor’s office and explained to them the legislative intent behind the FFA. McWilliams said, “We discussed what the role of the health department would be with cottage food producers, mainly education.”

On March 20 NDDoH issued a news release stating it was “closing the public comment period and cancelled three hearings inviting comment on proposed cottage food laws [scheduled for March 22nd and 23rd]”–meaning it was withdrawing the proposed rules.

The FFA is staying intact. The department’s bureaucratic power grab came up short.

Governor Burgum with supporters of the North Dakota Food Freedom Act

STATE RAW MILK BILLS – 2018 UPDATE


There have been raw milk bills before the legislature in ten different states so far this current session. A bill has made it to the governor’s desk in Utah and there is legislation in at least a couple of other states that has a realistic chance of passing, including Louisiana which is one of seven states left where any raw milk sales or distribution is illegal. Bills before the legislatures include:

IOWA House File 2055 (HF 2055) would allow the unregulated sale of raw milk and raw milk products on-farm and through delivery. There is a labeling requirement that there be a statement on the container notifying consumers that the product has not been inspected and is not subject to public health regulations. Bills have also been introduced in the Iowa legislature that would legalize raw pet milk sales (HF 2057) and the distribution of raw milk through herdshares (HF 2056) but HF 2055 is the only raw milk bill the legislature has considered so far. On January 30 a subcommittee of the House Committee on Local Government recommended passage by a 2-1 vote; the bill is now before the full committee. Iowa is one of the remaining states that prohibits any raw milk distribution.

LOUISIANA companion bills, Senate Bill 188 (SB 188) and House Bill 437 (HB 437), have been introduced that would allow the on-farm sale of either cow milk or goat milk of an average of 500 gallons per month. No permit is required but producers are subject to inspection and must comply with milk testing, herd health, and sanitary standards as well as a labeling requirement that there be a warning that the raw milk may contain harmful bacteria. The bills are a reintroduction of Senate Bill 29 (SB 29) that nearly passed in 2016. SB 29 passed out of the Senate and was defeated in the House committee by one vote.

MASSACHUSETTS Senate Bill 442 (S.442) and House Bill 2938 (H.2938) are companion agricultural omnibus bills that include provisions which would officially legalize herdshare agreements and would allow the off-farm delivery of raw milk by licensed dairies. Under the bill, farmers with no more than twelve lactating cows, goats or combination of cows and goats can enter into herdshare agreements with those wanting to obtain raw milk. There must be a written contract that includes a statement that the raw milk is not pasteurized nor subject to inspection by the state Department of Health nor the Massachusetts Department of Agricultural Resources (MDAR). MDAR has power to issue rules on testing but cannot require testing more frequently than once every two months. The bills allow from a licensed raw milk farmer to deliver raw milk to a consumer with whom the farmer has a contractual relationship, including through the farmer’s agent and through a community supported agriculture (CSA) delivery system. The bill gives MDAR power to issue regulations governing delivery; the regulations must allow for non-mechanical refrigeration. The bills have passed out of the Joint Committee on Environment, Natural Resources and Agriculture and will likely next be assigned to the Senate Ways and Means Committee.

NEW JERSEY Assembly Bill 502 (A502) is the same bill that has been introduced the prior three legislative sessions, A502 allows for the on-farm sale of raw milk and raw milk products by a licensed dairy. Producers must comply with labeling, signage, herd health, and milk testing requirements. The bill also legalizes herdshare agreements and states that no permit is required for the distribution of milk through a herdshare contract. New Jersey is one of the remaining seven states that prohibits any raw milk distribution. A502 has been referred to the Assembly Agriculture and Natural Resources Committee.

TENNESSEE House Bill 2229 (HB 2229) and Senate Bill 2104 (SB 2104) would have allowed the unregulated direct sale from producer to consumers of all foods except meat, on the farm, at farmers markets and other venues. There were labeling and signage requirements but no licensing or inspection under the bills. The bills were both defeated in committee; under current law, the distribution of raw milk and raw milk products is legal through herdshare agreements. Herdshare programs have been thriving in the state.

UTAH Senate Bill 108 (SB 108) has passed through both the Senate and House and are on the desk of Governor Gary Herbet. SB 108 allows the delivery and sale of raw milk through a mechanically refrigerated mobile unit by licensed dairies. Currently only the on-farm sale of raw milk by license holders is legal unless the producer has a majority ownership interest in a retail store (only one of the state’s ten licensed dairies meets this qualification). SB 108 also allows for the unlicensed on-farm sale of up to 120 gallons per month by unlicensed dairies if the producer is in compliance with labeling, recordkeeping, milk testing, and milk cooling requirements. Producers wanting to sell under this exemption must notify the Utah Department of Agriculture and Food (UDAF) that they are doing so. UDAF has power under the bill to order a producer to stop selling raw milk if the producer’s dairy is linked to a foodborne illness. The department has the power to levy administrative fines against producers who have been linked to a foodborne illness outbreak.

VIRGINIA Senate Bill 962 (SB 962) and House Bill 825 (HB 825) would have officially legalized and regulated herdshare operations. State policy in Virginia has long been to leave the many herdshare programs existing in the state alone. The original versions of both bills would have criminalized the refusal of either farmers or consumers to turn over copies of their contracts to government agencies. Both bills stated it was illegal for anyone besides the party to the contract to receive raw milk; in other words, giving raw milk to family or guests would have been a crime. Criminal penalties for violations of the bill’s requirements were up to one year in jail and a $2,500 fine; every day the violation continued would be a separate offense. The bills also required that the herdshare contracts contain a clause that shareholders assumed joint liability if the herd or any milk produced by the heard was responsible for any injury or illness. SB 962 was in Senate committee and shortly afterwards was stricken in the House committee.

For further updates on the progress of raw milk legislation, go to the bill tracking page at realmilk.com.

FDA Bootstrapping Its Power under FSMA


Recently the New York Department of Agriculture and Markets (NYDAM) sent what it called a “Milk Control Facility FSMA Survey” to a number of licensed dairy producers in the state, including raw cheesemakers. The survey was mainly concerned with whether the producers were complying with various requirements related to the FDA Food Safety Modernization Act (FSMA) but there was one requirement the survey asked about that was never brought up at all when Congress was deliberating over FSMA–current Good Manufacturing Practices (cGMPs), which FDA could try to use for regulating all commerce other than most meat and poultry that are under the jurisdiction of the United States Department of Agriculture (USDA). This could include all intrastate commerce; under FDA’s interpretation of the law, any local producer– whether a raw milk dairy with a couple of cows or a private homemaking cottage foods operation–would be subject to the cGMP requirement and FDA jurisdiction.

The agency is claiming that authority given it by the Public Health Service Act (PHSA) to regulate communicable diseases gives it the power to impose cGMP requirements. The PHSA provides that “[t]he Surgeon General, with the approval of the Secretary [of Health and Human Services], is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For the purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.”1

A common sense reading of this power would be that FDA could get involved if there was a foodborne illness outbreak confined to one state or if a producer solely in intrastate commerce was found to be manufacturing food under unsanitary conditions but, according to the agency, its power to regulate communicable disease gives it the authority to impose cGMP requirements on all food manufacturers (other than those in the meat and poultry business) for the following: “plants and grounds; sanitary facilities, controls, and operations; equipment and utensils; processes and controls; warehousing and distribution; and natural or avoidable defect levels.”2

The cGMPs are part of a one-size-fits-all regulatory scheme; unlike some of the more onerous FSMA provisions such as the national produce safety standards and the food safety standards (HAPRPC – Hazard Analysis Risk-Based Preventive Controls) in which many smaller producers are exempt from those mandates, there are no exemptions from the cGMP requirements.

FDA has long held that cGMPs apply to food manufacturers in intrastate commerce but the agency’s position fell on deaf ears until after the passage of FSMA. The cGMPs used to have their own section in the Code of Federal Regulations (21 CFR part 110) but, when FDA issued regulations governing the HARPC requirement (21 CFR part 117), it moved the cGMP regulations over to that section as well. FDA wants to make it seem like cGMPs are part of FSMA even though they were never brought up when Congress was considering the food safety legislation in 2009 and 2010.

At this time FDA doesn’t have nearly the resources to enforce the cGMP requirements across the board but that doesn’t have to happen for the agency to create a chilling effect among local food producers; an occasional inspection of or enforcement action against a raw milk producer or cottage food operation will do the trick. The cGMPs potentially threaten to roll back some of the progress made in recent years through legislative and policy changes in the areas of consumer access to raw dairy and cottage foods.

There are ways to protect against the cGMP threat to intrastate business. One way would be for state legislatures to more closely monitor FDA cooperative agreements between state departments of health and agriculture to make sure the state agencies don’t impose these requirements on food producers operating only in intrastate commerce; with FSMA, states will be counted on to carry out much of its enforcement. Another way would be to amend the Federal Food, Drug and Cosmetic Act to make it clear that the cGMP requirements only apply to firms operating in interstate commerce. As it is FSMA is possibly the most draconian piece of food legislation ever passed; FDA needs to be stopped from expanding its power beyond what Congress ever intended.

———
1 United States Code of Laws, 42 USC 264(a). Accessed 2/28/2018 at https://www.law.cornell.edu/uscode/text/42/264

2 Federal Register, 78 FR 3651. Section II.B.1 accessed 2/28/2018 at
https://www.federalregister.gov/documents/2013/01/16/2013-00125/current-good-manufacturing-practice-and-hazard-analysis-and-risk-based-preventive-controls-for-human

Farmers & Consumers Challenge Raw Milk Ban


In a last ditch attempt to save the raw dairy operation at Glencolton Farm, 21 Ontario farmers and consumers filed a constitutional challenge on February 8 in a Toronto Superior Court to the province’s ban on raw milk sales and distribution. One of the parties to the lawsuit is Elise Vander Hout, a WAPF chapter leader whose husband Michael Schmidt has been fighting for legalization of raw milk sales in Ontario for the last 24 years.

The petitioners (the term used in Canada is applicants) are asking for exemptions to the Ontario Milk Act, the Health Protection and Promotion Act, and the Food and Drug Regulations with the sum of the exemptions sought being “to allow the processing, sale and distribution of raw milk and/or raw milk products (raw milk) in containers having a detailed warning label advising of the risks of consuming raw milk directly to persons who wish to purchase and consume raw milk and/or raw milk products . . . .”

The 21 individuals filed the challenge in response to a January 5 decision by Judge P.W. Sutherland of the Superior Court of Justice in Newmarket who issued an order prohibiting all raw milk producers in Ontario from operating a raw milk plant without a license and from any distribution of raw milk by an unlicensed plant; under provincial law any raw milk produced by a licensed dairy plant must be pasteurized. See the “Quiet Dictatorship Strikes Again” for more background.

The main parties in the Newmarket case beside Schmidt and Vander Hout were the Agri-Cultural Renewal Cooperative Inc. (ACR) and Our Farm Our Food Cooperative Inc. (OFOF). In 2010 ARC purchased Glencolton Farm in its entirety, owning all the land, buildings, equipment and animals; former owner Schmidt still works on the farm but owns nothing of it. OFOF later purchased 100% ownership of the cows and hired ARC to care for the cows and manage the dairy operations at Glencolton Farm. The 143 members of OFOF invested $2,000 to join the co-op and have access to raw milk and raw milk products. Schmidt, Vander Hout, ARC, OFOF and the other defendants in the case have appealed Judge Sutherland’s ruling to the Court of Appeals for Ontario requesting that the judge’s orders and the appeal itself be stayed until the Toronto Superior Court of Justice has issued a decision on the constitutional challenge. Failure to obtain a stay would mean the end of Glencolton Farm’s dairy operation.

In an affidavit filed for the appeal Vander Hout describes the consequences of the Court of Appeal not staying Judge Sutherland’s orders:

    “To date (February 12) I have complied with the orders of Sutherland, J. However, we are struggling to maintain the closed herd of thirty-two cows which we will soon be unable to afford. We are faced with the horrifying prospect of taking the entire herd to the butcher. Already it has been necessary to butcher three cows named Alera, Vanessa and Lana, whom we said goodbye to on January 18, 2018. This is a big loss to our herd and we are devastated at having to take this measure. If the whole herd is butchered, it would be impossible to rebuild in our lifetime . . . . As a result of the Sutherland J.’s orders, we have also had to stop milking one-third of our cows.”

Vander Hout goes on to state that the end of the dairy operation would mean a loss of $175,000 annually for Glencolton Farm, income amounting to one-half of the farm’s total revenue. Also lost would be the genetics of the rare heritage breed “Canadienne” cows that Schmidt has bred for over the past 30 years.

Petitioners are basing the constitutional challenge mainly on two clauses of the Canadian Charter of Rights and Freedoms. One of the clauses states, in part, “Everyone has the following fundamental freedoms: freedom of conscience and religion, freedom of thought, belief, opinion and expression….”

The other clause provides, “Everyone has the right to life, liberty and security of the person and right not to be deprived thereof except in accordance with the principles of fundamental justice.”

In her affidavit Vander Hout states, “Many consumers, friends and members of my community have had extremely positive health improvements due to consumption of raw milk. I cannot, in good conscience, enjoy consuming health-giving raw milk on my farm with my family (under the Ontario Milk Act only dairy farmers and their families have legal access to raw milk), while others are left to suffer their ailments which led them to seek out access to raw milk in the first place.”

The petition describes the consumer parties to the challenge as “individuals who for many years have purchased raw milk, consumed it themselves and provided it to members of their families for the health benefits they believe it affords. Each holds, as a matter of conscience or religion, that she or he should have the right to obtain raw milk from farmers in Ontario for that reason . . . . Contrary to the principles of fundamental justice, the prohibitions against the sale of and distribution of raw milk have deprived the applicant consumers of its health benefits which are fundamental to their lives and security of person.”

Documents submitted as part of the appeal show the detailed health, sanitation and food safety protocols the farm meticulously employs and further illustrate how the Ontario laws have nothing to do with protecting the public health but rather only have the intent to prohibit competition to the Ontario dairy industry. The petition notes that there is no law prohibiting the consumption of raw milk which wouldn’t be the case if the product was truly regarded as a health hazard. The only threat to health is the senseless loss of a great source of nutrient-dense food if the Toronto Superior Court rejects the constitutional challenge.

The petition states, “The values that underlie Canada’s political and moral traditions demand that the Applicants should be free to hold and manifest whatever beliefs and opinions their conscience dictates so long as such displays do not injure their neighbors or their neighbors’ parallel rights to hold and manifest beliefs and opinions of their own.”

The Toronto court has the opportunity to uphold freedom of choice something that the corporate/bureaucratic dictatorship wants to crush. For 26 years Michael Schmidt has provided raw milk to Ontario families; whether he will provide any more will likely come down to the ruling in this case.

Those supporting freedom of choice in Canada are encouraged to make a donation at GoFundMe.com/foodrights.

Top graphic snipped from “Food Rights” video, published 19 Oct. 2015 on YouTube at https://www.youtube.com/watch?v=F8UWf_A3uFs

Updated 3/14/18 – title revised from “Farmers and Consumers File Constitutional Challenge to Ontario Raw Milk Ban”

Victory in Virginia – Bills Threatening Herd Shares Now Dead

Joel Salatin said, “If this is not reminiscent of David and Goliath, I don’t know what is”, referring to the defeat of two bills posing a major threat to the future of herdshare programs in Virginia. Virginia Farm Bureau, Virginia Agribusiness Council, and the Virginia State Dairymen’s Association all supported the legislation but grassroots mobilization against the bills lead by the Virginia Independent Consumers and Farmers Association (VICFA) won out with an assist from members of the Weston A. Price Foundation (WAPF) and the Farm-to-Consumer Legal Defense Fund (FTCLDF) and other food freedom advocates.

Herdshare agreements are private contractual arrangements in which someone purchases an ownership interest in a dairy animal (or herd of dairy animals) and pays a fee to a farmer for boarding, caring for and milking the animal(s). The owner has the property right to obtain raw milk from the animal(s). It’s legal to purchase ownership in a dairy animal and it’s legal to obtain milk from a dairy animal you co-own. Herdshare programs have been flourishing in Virginia for many years.

Last month legislators carrying out the agenda of industrial agriculture introduced House Bill 825 and Senate Bill 962 in the Virginia legislature. While the bills officially legalized herdshares [currently there is nothing in the Virginia Code on herdshares], they were an attempt to intimidate both consumers and farmers from either entering into or continuing on with herdshare agreements. Each bill provided that violating any of its requirements would be first degree misdemeanors with criminal penalties of up to one year in jail and $2,500 in fines; every day the violation continued would be a separate offense. Both farmers and consumers could have been found guilty of a crime for not turning over copies of their contracts to government agencies. Both bills stated it was illegal for anyone besides the party to the heredshare contract to receive raw milk; in other words, giving raw milk to family or guests would be a crime according to the wording in the bills.

To scare consumers away from signing contracts, there was a requirement in both bills that the herdshare agreements contain a clause stating that shareholders assumed joint liability if the herd or any milk produced by the herd was responsible for any injury or illness. HB 825 and SB 962 each required there be a label on all raw milk containers with a consumer advisory warning about the dangers of consuming raw animal foods. Why would shareholders need a label on their own property? Why should they be forced to trash their own property with an advisory?

Reaction to the bills’ filings was swift. Farmers and consumers bombarded legislators with phone calls, emails and in-person visits to the capitol. VICFA kept people apprised of the bills’ status and mobilized the local food community to attend the hearings on the bills. Herdshare farmers like Dwayne McIntyre of Goshen Homestead, Jacques and Kim Fuhrmann of Our Fathers Farm, the Wilkes family of Honey Brook Farm, Tim and Joy Alexander of Avery’s Branch Farm, and Scott Wilson of Full Quiver Farm all made a difference in building opposition to the legislation.

On February 1 the Senate Committee on Agriculture, Conservation and Natural Resources held a hearing on SB 962; around 100 opponents of the bill packed the hearing room. Senator Mark Obenshain, seeing the writing on the wall with the opposition to the bill, took out a number of SB 962’s more onerous provisions but opponents weren’t buying the revised version of the bill. Their message throughout the testimony opposing SB 962 was clear: no regulation, period!

VICFA member and herdshare pioneer, Christine Solem, began the opponents’ testimony by angrily warning the committee that she would “fight this all the way.” Twice, Solem took herdshare lawsuits to the Virginia Supreme Court in the 1980s with the court implicitly recognizing that herdshare agreements were legal.

Mark Wilkes of Honey Brook Farm commented in his testimony that the bill “was a solution in search of a problem.” VICFA president Anne Buteau backed up that statement in her testimony by pointing out to the committee that, in the 30 years of herdshares operating in Virginia, government officials investigating the one foodborne illness outbreak attributed to raw milk distributed through a herdshare did not go public with the information because, as they stated, “the nature of the herd-share programs are such that we were confident that we would effectively reach those who were truly at risk for illness.”

Herdshares are closed-loop arrangements with a high level of traceability. Virginia government officials have all the authority they need under existing law to conduct an effective investigation if there is a suspicion of foodborne illness.

Senator Richard Black agreed with Wilkes and Buteau, firing up the crowd when he remarked, “I don’t know what problem it’s addressing. People life a free life in rural areas and don’t want government peeking over their back and telling them what to do.”

Once the testimony was over, the committee voted 8 to 7 not to report the bill out of committee. Delegate Barry Knight, the sponsor of HB 825, knowing how difficult it was going to be to pass a more burdensome bill than SB 962 (HB 825, unlike the Senate bill, gave government broad rule-making power) moved to withdraw his bill; on February 5, a House Agriculture subcommittee struck the bill by an 8-0 vote.

VICFA’s mission “is to promote and preserve unregulated direct farmer-to-consumer trade that fosters availability of locally grown or home-produced food products.” VICFA co-founder Salatin, Solem and other VICFA members such as the late Katherine Russell, helped create a “don’t tread on me” culture that is present throughout Virginia when it comes to farmer-to-consumer unregulated commerce, particularly with herdshares. Those in the local food movement there don’t ask the government for permission to exercise their rights and they want the government to leave them alone.

VICFA operates on a shoe-string budget but members, like Buteau, Solem, past president Lois Smith, and Suzi Croes, will spend the time it takes to protect herdshares–the crown jewel of the local food system in Virginia. They continue to be effective in keeping herdshares away from any regulation; in 2017 VICFA helped kill an attempt by Farm Bureau to ban herdshares. When it comes to establishing and protecting unregulated direct farmer-to-consumer commerce, it is a model organization for those in other states to follow.

Click image below to watch the video from the 2/1/18 Senate committee hearing on SB 962 starting at time marker 0:45:40 (Note: Christine Solem stands to the right, behind Senator Obenshain)