By Pete Kennedy, Esq.
While federal law prohibits the sale of raw milk for human consumption in interstate commerce, and around half the states either ban or severely limit the sale of raw milk for human consumption in intrastate commerce, similar restrictions do not exist for the sale of raw milk for pet consumption. There is no federal ban on the interstate sale of raw pet milk. Intrastate, only three states (Michigan, New Mexico and Ohio) ban the sale of raw pet milk through either written law or departmental policy. Another five states (Alaska, Arizona, Colorado, Texas and Washington) require that there be a dye in the pet milk. Farmers selling raw pet milk run into less government interference at the present time than those selling raw milk for human consumption.
The FDA has jurisdiction over interstate sales of animal food under the Federal Food, Drug and Cosmetic Act (21 U.S.C 301 et seq). The FDA has never issued a regulation prohibiting the sale of raw pet milk across state lines. Interstate sales of raw pet milk are legal. Federal Standard of Identity regulations for milk (21CFR131.110) requiring pasteurization apply only to milk for human consumption. Organic Pastures Dairy in California currently ships raw pet milk and other raw pet dairy products into Oregon with the FDA’s knowledge.
Vendors shipping raw pet milk interstate comply with the labeling requirements the FDA’s Center for Veterinary Medicine has established (21CFR501.1 et seq) if they:
- Properly identify the product which means just putting the common name of the food (e.g., raw goat milk) on the label (21CFR501.3(b)(2)).
- List the common or usual name of each ingredient when the food is made from two or more ingredients. (21CFR501.4), (21U.S.C.343(i)).
- List the name and place of business of the manufacturer, packager or distributor. The place of business should include street address, city, state and zip code. If the manufacturer and distributor are different, each should list their name and place of business (21CFR501.5).
- Provide a net quantity statement in terms of weight, measure or numerical count. The pet milk package should list the number of fluid ounces (21CFR501.105).
Even though not required under federal law, products of raw pet dairy products should include the phrases, “Not for Human Consumption” and “For Pet Consumption Only” on the label so federal and state officials will have no doubt what the product is intended for.
There is no FDA pre-market approval process on raw dairy products labeled for pet consumption. In addition, those shipping across state lines must comply with any labeling, licensing or product registration laws of the destination state.
New Mexico, which has no prohibition on raw pet milk sales in its statutory and administrative code, broke off negotiations with Organic Pastures over labeling requirements on raw pet milk products the California dairy wanted to ship into that state. With New Mexico having existing labeling laws on its books (New Mexico statute 76-19-5.Labeling, New Mexico Regulation 184.108.40.206 NMAC Labeling), that state government’s policy decision not to permit the shipment of raw pet milk products into the state looks open to a court challenge as a commerce clause violation.
The Association of American Feed Control Officials (AAFCO) has developed Model Regulations for feed which generally also apply to pet food. Most states have adopted all or at least part of the Model Regulations, particularly the sections on Official Feed Terms and Feed Ingredients Definitions. In conjunction with the Model Regulations for feed, AAFCO has also written Model Regulations for Pet Food and Specialty Pet Food.
Even though neither the Model Regulation for feed nor the Model Regulations for Pet Food specifically mention raw pet milk, its sale is legal under the AAFCO regulations. Dr. Rod Noel, chairman of AAFCO’s Pet Food Committee has acknowledged the fact that selling raw pet milk does not conflict with any AAFCO regulation. The definition of milk in the AAFCO section on Official Feed Terms mentions nothing about pasteurization, unlike the federal Standard of Identity regulation on milk for human consumption (21CFR131.110).
There is one state that has actually used the AAFCO regulations as grounds for refusing to permit the sale of raw pet milk. The policy of the Ohio Department of Agriculture has been to prohibit the sale of raw milk because the AAFCO does not “recognize” raw milk as an “ingredient” in any pet food. While the section in the AAFCO regulations on Feed Ingredient Definitions does not list milk or raw milk as an ingredient, the reason for the omission is found at the beginning of this section where AAFCO states, “Some ingredients. . . are so common, there is no need to define them.”
The Ohio Department of Agriculture’s (ODA) policy is in effect enforcing a rule (prohibition of raw pet milk sales) that does not exist in the Ohio Administrative Code and should be subject to challenge as a denial of due process. The ODA is enforcing a rule that it adopted without granting the citizens of Ohio notice and the opportunity to be heard that state law requires (Ohio Administrative Code 901-3-01 Public Notice for Rule Filing).
Manufacturers and/or distributors generally need to obtain a commercial feed license to sell raw pet milk. In states where there is no license requirement, the law usually calls for product registration with the state. Some states require a license and product registration. Once underway, producers of raw pet milk typically find less regulatory oversight than exists for producers of raw milk for human consumption. It is not the legal responsibility of the producer and seller of raw pet milk to find out the consumer’s reason for purchase.
1. Official Publication 2005 Association of American Feed Control Officials, Inc.
2. Dr. David A. Ozanis, “Interpreting Pet Food Labels,” FDA/Center for Veterinary Medicine.
This article appeared in the Spring 2005 edition of Wise Traditions, the quarterly journal of the Weston A. Price Foundation.
Pete Kennedy is an attorney from Sarasota, Florida and president of the Farm-to-Consumer Legal Defense Fund (farmtoconsumer.org). He compiled the state milk laws posted at realmilk.com. He advises many farmers and members about legal issues surrounding raw milk.