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Raw Butter Sales Now Legal in Tennessee

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On April 30 Governor Bill Lee signed into law Senate Bill 358 (SB 358); the legislation legalizes the sale of raw butter by licensed producers in Tennessee. SB 358, sponsored by Senator Frank Niceley, a long-time champion of the small farmer and local food, goes into effect immediately.

SB 358, as amended in the House and passed, provides that

    “the department [of agriculture] shall not regulate the production of unpasteurized butter provided that it is produced:

      (A) In a facility separate from production of pasteurized products;
      (B) Solely for intrastate commerce; and
      (C) By a person licensed by the department as a dairy plant. 1

On any raw butter sold, the bill also requires a warning label stating, among other things, that the product has not been inspected and that butter “may contain disease-causing micro-organisms.”1

According to the Centers for Disease Control (CDC), between 1998 and 2016, there was not a single foodborne illness outbreak attributed to the consumption of commercially-produced raw butter2; during that time, California-based Organic Pastures Dairy Company (OPDC) sold over two million pounds of the product without incident3. The labeling requirement was a concession that had to be made if the bill was going to pass.

It’s not clear why the Tennessee Department of Agriculture (TDA) would not regulate the production of butter from a licensed dairy plant but the answer could possibly be because of some agreement the department has with the federal government.

SB 358 allows the retail sale of raw butter; Tennessee joins Arizona, California, Idaho, and Maine as states allowing the sale of the product in retail stores. There are around a dozen states that allow the sale or distribution of raw butter for human consumption.

Niceley introduced a bill in 2018 that would have legalized raw butter sales, but that legislation didn’t make it out of House committee after passing the Senate. With the accelerating decline of the state dairy industry over the past year, SB 358 did not have any significant opposition. One point Niceley made during consideration of the bill was about the increasing competition from lab-grown dairy products to the conventional industry, saying that laboratories could produce pasteurized dairy products at a much lower price than the dairy industry could and that the industry needed to separate itself from that competition with the production and sale of raw dairy products.

It is uncertain at this time how many of the state’s licensed dairy plants are interested in selling raw butter but the potential is there. None of Tennessee’s neighbors allow raw butter sales; there could be out-of-state customers buying butter in Tennessee. Cheesemakers from other states could be moving in with an additional high-demand product to sell. If demand does take off, some of the state’s remaining dairies could obtain higher prices for their milk by selling some of their production to dairy plants instead of cooperatives where most are losing money with each load they ship.

The Farm-to-Consumer Legal Defense Fund (FTCLDF) has a citizen petition4 before the U.S. Food and Drug Administration (FDA) to lift the interstate ban on sales and distribution of raw milk and other raw dairy products (except aged cheese). If the petition is successful, it is likely raw butter sales would be legal in all states within a few years. Until that time, there should still be a steady increase in states allowing raw butter sales or distribution.

Brentwood Chapter Leader Shawn Dady lobbied for the bill on behalf of the Weston A. Price Foundation (WAPF). Congratulations to her, Senator Niceley, and the other Tennesseans supporting SB 358 for legal raw butter sales5, in time for the spring flush.

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[1] House Amendment Number 1 to HB0532 (HA0116), Tenn. House § 1 (2019). Last accessed 5/7/2019 at http://www.capitol.tn.gov/Bills/111/Amend/HA0116.pdf
[2] Mark McAfee and Farm-to-Consumer Legal Defense Fund, “Citizen Petition Seeking Legalization of Interstate Transport of Unpasteurized Butter”, petition, June 22, 2016; p. 10
[3] Ibid. p. 11
[4] For more details about the citizen petition, read “FTCLDF Hires Jim Turner to Litigate Raw Butter Petition” at https://www.realmilk.com/turner-litigate-raw-butter-petition/
[5] Thanks to an opinion from the Attorney General, the state has allowed the distribution of raw butter and other dairy products since 2012 through herdshare agreements.

Raw Milk Enforcement Moves to Alberta, Canada

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Raw milk enforcement actions continue in Canada; this time it’s Alberta. The Crown has brought three charges against Innisfail farmer David Rand for alleged violations of Alberta’s dairy law: the unlicensed production or processing of dairy products, selling raw milk, and “obstructing, hindering or impeding an inspector in carrying out their duties” under the Alberta Dairy Industry Act. A trial will likely take place this fall; each of the charges carries a maximum $25,000 fine. [For those who would like to support Rand, a GoFundMe campaign has been set up at ca.gofundme.com/dairy-freedom.]

In addition to the charges, the Alberta Health Services (AHS) has issued a “Notice of Closure” to Rand ordering him to “cease and desist the distribution, transport, processing or sale of unpasteurized milk or unpasteurized milk products.” One of the grounds for the order was that “distributing, transporting, processing or selling unpasteurized milk products” was in violation of an Alberta health regulation stating, “no person shall create, commit or maintain a nuisance.” Alberta Agriculture and Forestry (AAF) issued a second order to Rand, a “Notice of Seizure or Detention” requiring that all milking equipment and any dairy products, including all future production, remain on Rand’s farm.

The charges and the orders against Rand stem from a November 7, 2018, raid on Rand’s farm and a supposed raw milk distribution site in Red Deer, Alberta, by officials from both AAF and AHS as well as the Royal Canadian Mounted Police (RCMP). The officials conducted the raid at both locations without any warrant.

The law in Alberta, as in all provinces of Canada, prohibits any sale of raw milk; there is a federal ban in the country as well. The ban has served as a protection racket for dairy industry but some of the farmers making up the industry might want to consider obtaining another outlet for their milk. The Canadian quota system has been held as a model for the struggling U.S. dairy industry but there has been a tremendous decline in the number of Canadian dairies, falling from nearly 140,000 in 1960 to fewer than 12,000 today according to The Globe and Mail.1

In Ontario, there is an ongoing court case where 21 Ontario farmers and consumers have filed in a Toronto Superior Court a constitutional challenge to the province’s ban on raw milk sales and distribution.2 In 2010 an Ontario court ruled in a case the Crown had brought against Michael Schmidt for illegally selling raw dairy that there was a legal distinction between the public and private distribution of food and that informed consumers can waive the protection of public health laws. That ruling was reversed on appeal; raw milk proponents could use a similar decision in the country that is the most oppressive in the world when it comes to enforcement against raw milk sales and distribution.

Supporters of raw milk access in Canada may go to the educational Facebook page for Farm-Fresh-Milk (be sure to include the hyphens). The intention is to show that raw milk needs to be on the policy platform of every party. There is also a website with a petition for Canadians to have the right to obtain fresh milk produced by local farms recognized by the legislation; to endorse “We Choose Fresh” petition, go to www.farmfreshmilk.ca/wechoosefresh.

Links:
GoFundMe – https://ca.gofundme.com/dairy-freedom
Facebook – https://www.facebook.com/Farm-Fresh-Milk-217362812483137
Petition – http://www.farmfreshmilk.ca/wechoosefresh

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[1] Barrie McKenna, “Canada’s dairy industry is a rich, closed club”, The Globe and Mail, 25 June 2015 (updated 15 May 2018), https://www.theglobeandmail.com/news/politics/canadas-dairy-industry-is-a-rich-closed-club/article25124114/
[2] Pete Kennedy, “Farmers & Consumers Challenge Raw Milk Ban”, RealMilk.com, 19 February 2018, https://www.realmilk.com/farmers-consumers-file-constitutional-challenge-ontario-raw-milk-ban/

Cutting Through the Propaganda on Raw Milk and Brucellosis

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Various media have been waging one of the bigger anti-raw milk propaganda campaigns in memory through their reporting on a recent individual case of brucellosis attributed to raw milk consumption. The media are using the case of the third individual incidence of brucellosis blamed on raw milk consumption in the past year and a half to warn the public that people are putting their health in jeopardy if they don’t consume milk that is pasteurized. The illnesses occurred in Texas in August 2017, New Jersey in October 2017 and New York in November 2018 with the latest illness blamed on Miller’s Biodiversity Farm of Quarryville, Pennsylvania; there is currently a quarantine in effect prohibiting the farm from distributing raw dairy products. A cow that tested positive for Brucella has been removed from the dairy herd.

The media have been taking their cues from press releases issued by public health departments that have been giving the advice to pasteurize all milk. However, the solution to avoid getting brucellosis is far different from what public health and the media are telling you. In the words of one healthcare professional, “For public health officials to issue public notices that the solution to this avoidable problem is to pasteurize all milk, is astonishing.”

First off, the three cases of brucellosis are the only known cases attributed to raw milk consumption over the past 20 years. Brucellosis is a systemic disease in cattle and humans that is caused by the bacteria Brucella abortus. At one time the disease in cows caused severe reductions in offspring and was a problem for the cattle industry. A national eradication campaign was launched in the 1950s and, according to USDA statistics, the number of cattle/bison herds affected by brucellosis in the U.S. has been less than 10 every year from 2003 onward.1

The eradication program’s success has led to a huge decline in the number of brucellosis cases in humans; estimates are that there are about 100 cases of human brucellosis per year in this country.2 In the U.S. this is mainly an occupational disease with most of the rare cases of brucellosis being in people who attended the birth of an infected cow and then became infected during handling of the birth tissues and fluids.3,4

In an infected dairy cow, the Brucella abortus pathogen can proliferate in the mammary glands and then enter the milk. The pathogen can pass to humans when drinking the infected milk but, as mentioned, the cases of brucellosis (also known as undulant fever) attributed to drinking raw milk in the U.S. are extremely rare.

The “milk ring test” is the traditional and commonly used method to screen dairy herds to detect any cows with brucellosis; the test is performed on the herd’s milk to check for the rare presence of Brucella antibodies.

Two vaccines against brucellosis have been developed for calves: the S19 vaccine and the RB51 vaccine. The S19 vaccine is effective but it has the disadvantage of causing testing for antibodies to become positive. The vaccine can make it difficult to distinguish between a vaccinated cow and an infected cow. The RB51 vaccine does not cause the antibody testing of cows to become positive but another problem arises with its use.

The RB51 vaccine must be administered to calves before they become fertile; a side effect is that, if a cow is given the RB51 vaccine when pregnant, it may actually cause an infection with the vaccine strain of Brucella in the vaccinated cow. It is, therefore, possible that if the RB51 vaccine isn’t given strictly according to the protocol, the vaccinated cow may become infected and may shed the pathogen (i.e., the RB51 strain of Brucella) into the milk.

Public health officials have found in all three cases of illness from brucellosis attributed to raw milk consumption, the strain of Brucella abortus discovered in the three individuals was the RB51 vaccine strain. In fact, in November 2017, the Pennsylvania Department of Agriculture sent a letter to licensed raw milk producers in the state advising them to stop immunizing cows from brucellosis with the RB51 vaccine.5

So the solution to preventing brucellosis in raw milk is not for producers to pasteurize the milk but rather to either stop giving their herd the RB51 vaccine or to make sure their vets give the calves the vaccine before the calves become fertile. Worth noting, too, is that hundreds of people drank raw milk produced by the herds responsible for the three cases of brucellosis and, as far as is known, no one else became sick.

In the meantime, the media fear-mongering continues on. The latest case of brucellosis attributed to raw milk consumption dates back to November 2018, but to read the stories in the media, you would have thought it was just discovered. CDC press releases on this latest case dated January 23, 2019, and February 11, 2019, are providing the impetus for the flood of media reports.

Has an agenda ever gotten so much mileage over three illnesses?

A fear-inciting statement from the February 11 CDC press release that the media have parroted is, “the CDC and state health officials are investigating potential exposures, to Brucella strain RB51 in 19 states, connected to consuming raw (unpasteurized) milk from Miller’s Biodiversity Farm in Quarryville, Pennsylvania.”6 (The farm allegedly distributed raw milk to people in the 19 states listed later in the release.) Being exposed to a pathogen is far different than being sickened by it; we are exposed to various pathogenic bacteria such as listeria and e. coli in the environment every day.

One headline screamed, “Deadly Disease Caused by Raw Milk Has Already Put 19 U.S. States on High Alert.”7 There have been no deaths from brucellosis attributed to raw milk consumption since the eradication program succeeded in substantially eliminating the incidence of the disease and possibly even long before then.

The public health agencies and their allies in the press have been misleading the public long enough on raw milk and brucellosis. It’s time for fear and hysteria to give way to science and common sense.

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1 “Brucellosis Affected Cattle/Bison Herds by State, FY 1997-2018” graph [PDF]. USDA-APHIS National Brucellosis Eradication Program (September 10, 2018), https://www.aphis.usda.gov/aphis/ourfocus/animalhealth/animal-disease-information/cattle-disease-information/national-brucellosis-eradication/brucellosis-eradication-program

2 “Facts About Brucellosis” [PDF]. USDA-APHIS National Brucellosis Eradication Program, Section “Resources” link (see question #21), https://www.aphis.usda.gov/animal_health/animal_diseases/brucellosis/downloads/bruc-facts.pdf

3 “How Brucellosis is Spread” section. USDA-APHIS National Brucellosis Eradication Program (September 10, 2018) [PDF], https://www.aphis.usda.gov/aphis/ourfocus/animalhealth/animal-disease-information/cattle-disease-information/national-brucellosis-eradication/brucellosis-eradication-program

4 “Fast Facts: Brucellosis, Undulant Fever” [PDF]. Iowa State University, The Center for Food Security & Public Health. April 2008, http://www.cfsph.iastate.edu/FastFacts/pdfs/brucellosis_F.pdf

5 Letter dated November 30, 2017 [PDF]. Pennsylvania Department of Agriculture, Bureau of Animal Health and Diagnostic Services, Dr. David Wolfgang (Director) and Dr. Lydia Johnson (Director, Bureau of Food Safety & Laboratory Services); accessed at https://www.yourfamilyfarmer.com/uploads/documents/RB51-Brucellosis-Letter-PDA-2017.pdf

6 Media Statement [PDF]. CDC (February 11, 2019),
https://www.cdc.gov/media/releases/2019/s0211-brucellosis-raw-milk.html

7 “Deadly Disease Caused by Raw Milk Has Already Put 19 U.S. States on High Alert” [PDF]. ScienceAlert.com, Carly Cassella (February 15, 2019), https://www.sciencealert.com/it-s-dangerous-to-drink-raw-milk-the-cdc-warns-for-the-umpteenth-time

North Carolina Herdshares Under Attack

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The North Carolina Department of Agriculture and Consumer Services (NCDA), the North Carolina Farm Bureau, and the state’s dairy industry are working to repeal a 4-month-old law legalizing herdshare agreements. It is not known whether they have been able to find a legislator willing to sponsor such a freedom-robbing bill.

A herdshare agreement is a private contractual arrangement in which someone purchases an ownership interest in a dairy animal (or herd of dairy animal) and pays a fee to a farmer for boarding, caring for and milking the animals. The 2018 North Carolina Farm Bill contained a provision stating, nothing . . . shall prohibit the dispensing of raw milk or raw milk products for personal use or consumption to, or the acquisition of raw milk or raw milk products for personal use or consumption by, an independent or partial owner of a cow, goat, or other lactating animal.”1

NCDA Commissioner Steve Troxler isn’t waiting for a change in the law to begin restricting herdshares. The department has issued a directive prohibiting dairies from selling shares in dairy animals at state-run farmers markets. There is nothing in the herdshare law, or any other law, that gives it this authority.

The dairy industry’s push to repeal the herdshare law is coming at a time when many of the state’s Grade A dairy farms are either going out of business or barely hanging on. The distribution of raw milk through herdshare agreements can help save some of these dairies; the state’s dairy farms need all the help they can get. Between April 2017 to April 2018 North Carolina lost a staggering 24% of its Grade A dairies, dropping from 192 to 146. For the past four years, conventional dairies have been receiving a price for their milk that is well below the cost of production–a trend that shows no signs of going away.

The strategy for those trying to repeal the herdshare law will be to play the fear card trying to convince legislators that raw milk is major health threat, especially to children. When the recent deadly foodborne illness outbreaks involving foods such as romaine lettuce, ice cream, and cantaloupe are taken into consideration, there is a double standard in banning raw milk sales for human consumption in North Carolina (raw milk sales are legal for pet consumption). In spite of the efforts of CDC and FDA to make it seem otherwise, there have been no deaths legitimately attributed to raw milk consumption since the current CDC foodborne illness database started up in 1998. According to a recent study, the number of illnesses attributed to raw milk consumption in the U.S. has actually gone down as demand and consumption have increased.2 Reports are that herdshare farmers asking the state-run labs to test raw milk to help assure safety have been turned down.

The dairy industry leaders might also play the fear card with the state’s Grade A dairies, warning them that one outbreak blamed on raw milk could damage the conventional industry. The evidence shows otherwise–that the price of pasteurized milk and the demand for it aren’t affected by a foodborne illness outbreak blamed on raw milk consumption. If Farm Bureau, the dairy industry, and NCDA are successful in repealing herdshares, at least some of the Grade A dairies will be without a potential lifeline that could keep their operations going in the face of the low prices they are receiving for their milk intended for pasteurization. Raw milk produced for pasteurization and raw milk produced for direct consumption are mostly not in competition; if North Carolina raw milk consumers can’t get raw milk in the state, most will not drink pasteurized milk but will look outside the state for raw milk sources.

The Grade A dairies and many other farms can benefit from the herdshare law; raw milk is often the draw that leads to sales of other farm products such as meat, poultry, eggs and produce. The herdshare law can help the small farm sector in the state, enabling the start-up of micro-dairies. Michele Presnell, the state representative for the 118 District, noted that 60 years ago there were around 50 Grade A dairies and 150 other dairies in her home county of Yancy and today she knows of none. Reviving the dairy sector through herdshares can keep more of the food dollar in the community.

The herdshare law can make raw milk the centerpiece of a small diversified farm. In neighboring Tennessee where herdshare agreements have been legal for about 10 years, shareholder dairies have thrived; it is estimated that there are around 300 herdshare programs operating in Tennessee.

If the effort to repeal the herdshare law is successful, the 2004 law expressly banning herdshares goes back on the books, and the state will continue to lose business to South Carolina where the sale of raw milk is legal. Over the years this ban has resulted in millions of dollars of lost revenue.

There never should have been a herdshare ban in the first place; to say that someone with an ownership interest in a dairy animal can’t get milk from the animal unless it is boarded on the owner’s premises is a basic denial of property rights. For those who believe in property rights, freedom of food choice, and the right of dairy farmers to make a living keeping the herdshare law intact is a fight worth taking on.

See the February 12th action alert posted at www.westonaprice.org

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[1] North Carolina General Assembly, Session Law 2018-113 (Senate Bill 711), Section 15.2, June 27, 2018. Retrieved October 9, 2018 from https://www.ncleg.net/Sessions/2017/Bills/Senate/HTML/S711v8.html

[2] Whitehead J, Lake B. Recent Trends in Unpasteurized Fluid Milk Outbreaks, Legalization, and Consumption in the United States. PLOS Currents Outbreaks. 2018 Sep 13. Edition 1. doi: 10.1371/currents.outbreaks.bae5a0fd685616839c9cf857792730d1

Joel Salatin: Illegal to Drink Milk from Your Own Cow in Tenn?

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Posted here by permission from Joel Salatin. Originally published at TheLunaticFarmer.com on January 10, 2019, under the title “Tennessee: Illegal to Drink Milk from Your Own Cow”. Be sure to read other posts by Joel. Click to see “What You Can Do“

Just when you think you’re making progress in the food freedom arena, along comes a kind, sincere-minded loving zealot to throw a monkey wrench in things.

Such is the case in Tennessee, where Senator Briggs, a medical doctor, has filed Senate Bill 15 [SB 15] to criminalize drinking the milk from your own cow. An ecoli outbreak in Knox County apparently triggered the Draconian response from this well-meaning doctor. Of course, as is common in these cases, the outbreak was never actually tied to raw milk, but government bureaucrats color any opportunity to question and science generally flies out the window.

The bill “prohibits a person who owns a partial interest in a hoofed mammal from using the milk of the animal for the person’s personal consumption or other personal use.” If you ever wanted to see a bill targeted specifically at food freedom, this one is the prime example. Aimed squarely at herdshare, which has been the work-around for raw-milk prohibitive states, it also denies a person who owns a cow or a goat (any hoofed animal) the freedom to consume the milk from their own animal.

“Partial interest” would include both partial and full interest; in other words, if I have a goat that I want to milk and it’s mine alone, I certainly have a partial interest; lots more than partial, but at least partial. You don’t have to be a lawyer or linguist to appreciate the broad reach of this terminology. Every homesteader and farmsteader who has a goat or cow for their own personal milk consumption would be a criminal under this statute.

The sad part is that this doctor is a kind, well-meaning fellow. He doesn’t want to see anyone else get hurt. Therein lies the crux of the problem. It isn’t the government’s responsibility to keep people from getting hurt. If we really want to keep people from getting hurt, we should fill in all the backyard swimming pools, where we know 50 children will drown this year, just like every year. We would outlaw skiing, race car driving, and certainly football. We would outlaw pets because they scratch, bite and sometimes kill.

Safety is highly subjective. I don’t think it’s safe to drink 3 cans of Coca-cola a day, but that’s legal. I don’t think it’s safe to eat veggie burgers, but people do. If we’re going to pick and choose everything that could be unsafe and outlaw it, we might as well all go live in a bubble room and put on respirators. We pick and choose risks. Some eat at McDonald’s; others don’t. Some take the flu vaccine; others don’t. The critical thing to understand is that if the government is responsible for my health, then it necessarily has a fiduciary responsibility to penetrate every health-impactful decision I make in order to protect itself from economic liability.

It comes down to who owns the person. As long as the state owns the person, which is where America is right now, nothing is beyond the regulatory purview of the police, the ultimate enforcer of the laws. As the state micromanages our lives, the need for more police to enforce those regulations increases. The more police, the less freedom. Any society needing more police per capita is a society heading toward tyranny.

So here’s to hoping the good folks of Tennessee raise their milk glasses to liberty and defeat the good senator’s bill, regardless of how well intended. It’s a diabolical attack on freedom and personal autonomy.

Can you think of any food that should be illegal? Yeah, I didn’t think so.

WHAT YOU CAN DO
SB15 has been referred to the Senate Commerce and Labor Committee. Email committee members asking them to refuse any hearing on SB15 and to vote NO on the bill.

1. Email these Honorable Senators (PLEASE DO NOT CALL); you may copy/paste the entire block to email the whole committee:

    sen.paul.bailey@capitol.tn.gov; sen.art.swann@capitol.tn.gov; sen.jon.lundberg@capitol.tn.gov; Sen.Raumesh.Akbari@capitol.tn.gov; sen.dolores.gresham@capitol.tn.gov; sen.jack.johnson@capitol.tn.gov; sen.frank.niceley@capitol.tn.gov; sen.steve.southerland@capitol.tn.gov; sen.bo.watson@capitol.tn.gov

2. Please call and email sponsors of the legislation, asking them to withdraw their respective bills.

    sen.richard.briggs@capitol.tn.gov
    Contact Senator Briggs (615-741-1766, his staffer is Sarah Adair) and ask him to withdraw SB15.

    rep.patsy.hazlewood@capitol.tn.gov
    Contact Representative Patsy Hazelwood (615-741-2746, staffer is Kyle Faulkner), the sponsor of the companion bill banning herdshares in the General Assembly (the bill doesn’t have a number as of yet) and tell her to withdraw the herdshare bill.

FTCLDF Hires Jim Turner to Litigate Raw Butter Petition

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The Farm-to-Consumer Legal Defense Fund (FTCLDF) has hired veteran Washington, D.C. attorney, Jim Turner, to litigate an FDA Citizen Petition seeking to lift the interstate ban on raw butter for human consumption. FTCLDF and Mark McAfee, president of Organic Pastures Dairy Company (OPDC), filed the petition with the Food and Drug Administration (FDA) on July 1, 2016; to date, FDA has yet to provide a substantive response.

The Weston A. Price Foundation (WAPF) and the Communities Alliance for Responsible Eco-agriculture (CARE) are providing funding for Turner’s legal expenses. WAPF is the leading advocacy group in the U.S. for raw milk and raw milk products, including butter. CARE is a Pennsylvania-based food buyers club that has long been a strong supporter of freedom of food choice, especially raw dairy products.

Turner is no stranger to FDA, having dealt with the agency on various matters since the 1960s. His law practice consists of representing businesses, individuals, and consumer groups on regulatory issues concerning food, drug, health product safety and environmental matters.

In 1970 he was largely responsible for getting Cyclamate, an artificial sweetener, pulled off the market. For nearly ten years he fought against FDA and the G.D. Searle Corporation in an effort to take the artificial sweetener, aspartame, off the market. There have been more complaints filed with FDA about aspartame than any other food product.

Federal law requires FDA to file a response to a citizen petition within six months after receiving a copy. In December 2016 FDA sent FTCLDF and McAfee a letter stating it needed more time to review the petition; in the two years since, the agency has sent nothing to the two petitioners. If Turner can’t convince FDA to issue a substantive response to the petition, he will likely file a writ of mandamus motion in a federal district court to have the court compel FDA to respond. If FDA rejects the petition, petitioners can appeal the agency’s decision to a federal appellate court.

There has been a federal ban on raw milk and raw milk products for human consumption (other than raw cheese aged sixty days) in interstate commerce since 1987 when FDA issued a regulation (21 CFR 1240.61) establishing the ban in response to a court order. Three arguments Turner can make to lift the ban are: that FDA exceeded its authority in banning raw butter since the case resulting in the court order, Public Citizen v. Heckler, only concerned fluid milk products (milk, cream, yogurt) not manufactured milk products (butter, cheese); that federal statute (21 CFR 341) prohibits FDA from issuing a federal ‘standard of identity’ regulation for butter [standards of identity are requirements prescribing what a food product must contain to be marketed–pasteurization is one such requirement]; and that there isn’t a single foodborne illness outbreak attributed to the consumption of commercially produced raw butter [OPDC has sold over 2 million pounds of raw butter since 2001 without incident]. FDA is basically claiming that its power to regulate communicable disease allows it to ban a food that makes few, if any, sick.

The butter petition is a great opportunity to weaken the interstate raw dairy ban — a significant step towards the day when the transport of all raw dairy products across state lines will be legal. Jim Turner has the experience and ability to make that happen.

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Image from video: Jim Turner Recalls Rumsfeld Meeting over Nutrasweet Toxicity, published on YouTube October 7, 2011

Return of the Milkman in Ohio

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Like the rest of the country, Ohio is the in the midst of a dairy crisis that shows little sign of getting better for most farms producing raw milk for pasteurization. Yorkshire farmer, Dan Kremer who also owns and operates the Eat Food For Life buyers club, believes that family dairy farms, particularly those producing organic milk, can stay in business by producing raw milk for direct consumption. Kremer who raises beef, poultry, and eggs also distributes raw milk through a herd share agreement; his brother-in-law manages a herd of Jersey cows on the same farm.

The distribution of raw milk through herd share agreements is legal by policy in Ohio1; Kremer thinks that distribution capability is key to success and that this hinges on restoring the tradition of the milkman–the raw milkman.

In 1995, there were 6,800 dairies in Ohio; today there are about 2,000. In recent months, the average price of milk conventional farmers receive is around 30 percent (30%) below the cost of production. Dairy cooperatives are sending suicide hotline numbers along with milk checks. Organic dairies can’t compete with the certified organic mega-dairies in Texas and Colorado that are flooding the market with “organic” milk while violating federal regulation on the amount of time their herds should be out on pasture.

Kremer says, ”Many in the industry consider the disappearance of the family dairy farm as inevitable. We do not. In fact, we are convinced that this crisis event is an opportunity to strengthen the economic base of this demographic and re-establish it under its own branding.”

“To continue in dairy, the farmers will need an alternate market. We are encouraging them to consider the real or raw milk market. It would mean having direct and independent access to the public, a sufficient margin for their family’s economic viability, and the opportunity to work collaboratively with those of us they would serve to ensure the integrity and safety of their product. Most importantly, it will mean restoring the direct relationship between us and them.”

The first milkman in the U.S. was a raw milk man; home deliveries of raw milk began in Vermont in 17852,3. In the 1950s over half of the milk sales were made through home delivery; even though these sales were mostly pasteurized milk there were still home deliveries of raw milk. By 1963 29.7% of milk sales were made through home delivery4; the growth of supermarkets and other factors contributed to the decline. By 2005 only 0.4% of milk sales were made through home deliveries.5

Since 2005 home deliveries from the milkman have started to make a comeback. Distributors are delivering not only pasteurized milk but other foods such as meat, eggs and produce.

Deliveries of raw milk and raw milk products have been on the rise for a while as well but these deliveries mainly take place at a central drop-site and not door-to-door. It is the hope of Kremer that he and others will have enough demand to start home deliveries of raw milk to individual shareholders who request it.

American consumers like their convenience; door-to-door raw milk delivery fills this need and tries to give raw milk drinkers no reason not to order the product. Home delivery is becoming an increasingly important part of the overall competition for the food dollar; chains like Whole Foods are using the delivery service Instacart to drop off food orders at customers’ homes. Instacart claims it can make deliveries in as little as an hour after the customer places the order. Raw milk sales can help dairies currently producing only pasteurized milk remain in business; the easier the dairies make it for the consumer to obtain their products the better their chances of success.

Many baby boomers who grew up in the 50s and 60s nostalgically recall the milkman as someone who was part of their community or as someone who was like an extended family member. There’s no reason that can’t happen for the raw milkman; a familiar face in the neighborhood can bring on additional demand.

Kremer is starting a campaign to grow consumer demand for raw milk through increased participation in herd share programs. He hopes increased demand will encourage more dairy farmers to make the transition to producing raw milk for distribution through herd shares; bringing back a piece from our cultural past and restoring the tradition of the milkman–is part of the path to success.

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[1] In Darke County herd shares are legal by judicial decision thanks to a 2006 court ruling in the case of Daley v. Schmitmeyer
[2] Drink Milk in Glass Bottles. “The Day the Milkman Went Away: A History of Home Milk Delivery” [Blog post]. Last retrieved 12/5/2018 from http://www.drinkmilkinglassbottles.com/a-quick-history-home-milk-delivery/
[3] Stanpacnet. “Brief History of Home Milk Delivery Service” [Blog post]. Last retrieved 12/5/2018 from
http://www.stanpacnet.com/a-brief-history-of-home-milk-delivery-service/
[4] Eve Tahmincioglu, “Remember the Milkman? In Some Places, He’s Back”, New York Times, December 16, 2007. Last retrieved 12/5/2018 from https://www.nytimes.com/2007/12/16/business/yourmoney/16milk.html
[5] Ibid.

Raw Milk – Rx for Dairy Crisis

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The New Jersey Department of Agriculture (NJDA) held a statewide Dairy Summit on October 11 to show the state’s dairies ways to survive the current crisis the industry is going through. The event was great testimony to how unfair the commodity pricing system, the Federal Milk Marketing Order (FMMO), is and how legalization of raw milk sales and/or distribution in the state can help dairy farms remain in business. In the mid-1970s there were over 500 dairy farms operating in New Jersey, today there are 48.

Earlier this year the state’s Grade A dairies were receiving around $14 per hundredweight (one hundred pounds of milk), that figure shrunk to $12 after deducting transportation costs (moving the milk from the farm to the processing plant of the farmer’s dairy cooperative). According to one of the speakers at the summit, the average cost of production for the dairies is $18.50, a path to bankruptcy.

Dairy farmers know the FMMO pricing system robs them of revenues they should be earning but the pricing is complicated enough so that it is difficult to figure out exactly how the FMMO denies them income that should rightly be theirs. Most dairy farmers are captive to the FMMO and the commodity pricing system; they belong to a cooperative which bottles and markets their milk. In that situation, individual farmers do not set their own price.

Four ways a dairy farmer can escape or survive the commodity system are:

  • Own bottling and pasteurization equipment; this is a major expense most dairy farmers cannot afford.
  • Find a creamery willing to bottle and pasteurize an individual farmer’s milk, something that’s not easy to do. Jared Weeks, a dairy farmer from Ringoes, who spoke at the summit, has been able to find a creamery in Pennsylvania to take some of his milk for bottling and pasteurization, but few, if any, other dairy farmers in the state have been able to make the same arrangement.
  • Make value-added dairy products, such as butter, cream, and yogurt; again, this is typically a substantial expense most dairy farmers cannot afford.
  • Sell or distribute raw milk for direct consumption – this is a less expensive way to escape or survive the commodity system whether the farmer is selling direct to the consumer, distributing direct to the consumer through a herd share agreement or selling to retail stores.

New Jersey is one of seven remaining states that do not allow any raw milk sales or distribution. Legislators began introducing raw milk bills in the New Jersey General Assembly back in 2006; since that time New Jersey has lost more than half of its remaining dairies.

The New Jersey Department of Agriculture is not opposed to legislation legalizing raw milk sales and/or distribution; it is the New Jersey Department of Health (NJDOH) that opposes raw milk legalization. The health department sees raw milk as a health threat but a recent Canadian study found, “The rate of unpasteurized milk-associated outbreaks [in the U.S.] has been declining since 2010. Controlling for growth in population and consumption, the outbreak rate has effectively decreased by 74% since 2005.” According to the Centers for Disease Control from 1998-2016, there were only seven (7) foodborne illness outbreaks attributed to the consumption of raw goat milk, an average of about one outbreak every three years.

Raw milk sales or distribution was not on the agenda for the Dairy Summit. The focus was on individual dairy farmers having access to or building a processing plant that would bottle and pasteurize milk as well as manufacture value-added dairy products. Jon McConaughy, the owner of Double Brook Farm in Hopewell, estimated that it would cost $450,000 to build a processing plant. Daniel Wunderlich, Dairy Program Coordinator for NJDA spoke about having a group processing plant that would bottle both conventional and organic milk. McConaughy said, at this time the New Jersey General Assembly had not allocated any money towards such a project. There were speakers for various agencies of USDA and other organizations who spoke about loans to farmers for marketing and dairy processing plants and equipment but how can farmers qualify for a loan when they are already deeply in debt and are losing money with every shipment of milk they make to their cooperative. Dairy farmers need a decent price for their milk more than they need a loan.

Even though the FMMO wasn’t a topic at the Dairy Summit, the information speakers presented was still an indictment of the commodity milk pricing system.

Tom Beaver, Director of Marketing and Development for NJDA said that New Jersey dairies produce one percent (1%) of the milk New Jersey residents consume. NJDA has established a Jersey Fresh logo that in-state producers of milk and other foods can put on their labels to promote their products. If it looks like the state is down to 48 Grade A dairies because New Jersey consumers don’t want to purchase milk produced in-state, that is not so.

Beaver said that NJDA recently conducted a Jersey Fresh Milk Consumer Survey throughout New Jersey and all five boroughs of New York City; 85% of those responding to the survey “indicated an interest in buying Jersey Fresh milk; 23% of those surveyed would be willing to pay a premium, with the average premium being $1.74 above what respondents are currently paying for a half gallon.” What is wrong with this picture?

Dairy farmer Pete Southway, owner of Springhouse Creamery in Sussex County, said that the fifty cows he milks only provide 7% of the milk residents of his county need. McConaughy estimated that producers free from the commodity system and the milk cooperatives could take in as much as $104 per hundredweight (about $9 per gallon). The demand for local milk is there, it’s not the lack of consumer demand as much as the commodity pricing system that are driving dairies out of business.

Retired dairy farmer John Pugh attended the summit. Pugh, who is 97 years young, recalled how once the FMMO went into effect that he switched his herd from Guernseys to Holsteins, placing greater emphasis on the quantity of milk production and less on quality. Legalizing raw milk sales and distribution in New Jersey is a way to put more quality milk on the market and to revive the dairy business in the state that the FMMO helped destroy.

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About the top photo:
“Let the Good Times Flow for National Dairy Month!”
Posted 6/4/2015 by Dana Coale, Deputy Administrator of the Agricultural Marketing Service’s Dairy Program
Source: https://www.usda.gov/media/blog/2015/06/04/let-good-times-flow-national-dairy-month

North Carolina Lifts Herdshare Ban

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Earlier this year the North Carolina legislature passed a bill containing a provision that ended a 14-year ban on herd share agreements in the state. Herd share 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 herd share law went into effect on October 1. With the new law, only two states remain that have expressly banned herd shares by either statute or regulation: Maryland and Nevada.

Session Law 2018-113, also known as the North Carolina Farm Act of 2018, contains a clause stating, “nothing…shall prohibit the dispensing of raw milk or raw milk products for personal use or consumption to, or the acquisition of raw milk or raw milk products for personal use or consumption by, an independent or partial owner of a cow, goat, or other lactating animal.”1

The new herd share law marks the continued move away from earlier attempts to ban raw milk distribution in the state. The sale of raw milk for human consumption has long been illegal in North Carolina. In 2004 an official from the state Department of Environment and Natural Resources was able to successfully engineer a stealth bill banning herd shares through to passage in the final hours of the legislative session. Sales of raw pet milk were still legal at the time but the state Department of Agriculture attempted, in 2008, through rulemaking to require all pet milk to be denatured before sale. Opponents led by then Weston A. Price Foundation (WAPF) chapter leader, Ruth Ann Foster, were not only successful in defeating the proposed rule but were able to pass a bill in 2009 that legalized the unlicensed sale of raw pet milk.

North Carolina is the second state to pass raw milk legislation this year; in March, Utah enacted a law allowing the delivery of raw milk by licensed producers and the on-farm sales by unlicensed producers on a limited basis. With the crisis the conventional dairy industry is going through, there will be more opportunity to increase raw milk access around the country; raw milk is a way to survive or escape the commodity system that is throwing so many dairy farmers out of business.

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[1] North Carolina General Assembly, Session Law 2018-113 (Senate Bill 711), Section 15.2, June 27, 2018. Retrieved October 9, 2018 from https://www.ncleg.net/Sessions/2017/Bills/Senate/HTML/S711v8.html

Massachusetts Governor Meddles With Raw Milk Bill

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The founding fathers saw the separation of powers among the legislative (making laws), executive (enforcing laws) and judicial(interpreting laws) branches as a bedrock of our constitutional republic, but what passes for the separation of powers under our current system of government has little resemblance to what our founding fathers intended, especially when a governor is directly introducing legislation.

On August 9 Governor Charles Baker amended a provision in an appropriations bill that would have expanded raw milk access for consumers and better enabled raw milk producers to make a living. Currently only the licensed on-farm sale of raw milk is legal in Massachusetts; House Bill 4835 (H.4835) would have allowed licensed raw milk farmers to:

  • deliver raw milk directly to a consumer, off-site from the farm if the raw milk farmer has a direct contractual relationship with the consumer;
  • contract with a third party for the delivery of raw milk off the farm to a consumer;
  • deliver raw milk through a CSA (community-supported agriculture) delivery system;
  • make deliveries to the consumer’s residence or to a pre-established receiving site so long as the site was not in a “retail setting”. Raw milk producers, however, could make deliveries in a retail setting through a CSA delivery system provided that the raw milk met the stipulation that it “shall be kept separate from retail items for sale and shall not be accessible to the public.”
  • sell raw milk from the farmer’s farm stand even if the stand is “not contiguous” to the farmer’s raw milk dairy. Current law requires the farm stand to be on the same property where the raw milk dairy is located.

H.4835 had a labeling requirement for raw milk being sold or delivered to consumers off-farm and the bill gave the state department of agricultural resources and the state department of public health joint responsibility to issue regulations governing the handling, packaging, storage and testing , and transportation of raw milk.1

The amendment Governor Baker sent back to the legislature for consideration as House Bill 4884 (H.4884) mentioned none of the benefits of H.4835 except for the sale of raw milk at a farm stand off-site from the dairy farm.

The summary to H.4884 reads:

    An act, a message from His Excellency the Governor returning with his disapproval of a certain section, and also with recommendations of amendments of certain sections contained in the engrossed Bill promoting climate change adaptation, environmental and natural resource protection, and investment in recreational assets and opportunity [see House, No. 4835]. August 9, 2018.

H.4884 states, in part, that “the commissioner of public health, shall, … adopt and promulgate rules and regulations to reduce the risk of milk-borne illness associated with the consumption of unpasteurized milk that is sold off-site of the farm at which such milk was produced. Such rules and regulations may include, but shall not be limited to, the sanitary and operational standards for the transportation, receiving, handling, storage, processing, packaging, labeling and sale of milk intended for human consumption prior to pasteurization. … Such regulations shall allow the sale of milk intended for human consumption prior to pasteurization at a farm stand owned or operated by the producer of said milk that is not on the site of the farm at which the milk was produced.”

Given the bias of the public health department against raw milk, it’s unlikely that any of the other benefits provided in H.4835 would be included in a regulation. H.4884 also requires raw milk producers selling at an off-site farm stand to obtain an additional license from the department of public health.2

Governor Baker based his authority to amend the raw milk section of H.4835 on a provision in the Massachusetts Constitution that states, in part, “the governor may disapprove or reduce items or parts of items in any bill appropriating money… As to each item disapproved or reduced, he shall transmit to the house in which the bill originated his reason for such disapproval or reduction, and the procedure shall then be the same as in the case of a bill disapproved as a whole.”3

There is nothing in the state constitution that says that the governor can amend the substantive language in a bill, but the way the executive branch of government has gotten out of control these days at both the federal and state levels in exceeding its powers with little resistance from either the legislative or judicial branch, there’s little reason to believe Governor Baker won’t get away with his violation of the Massachusetts Constitution.

Even if H.4884 is lawful, it’s a poor decision from a policy standpoint. The state’s licensed raw milk producers have an excellent track record of safety with few, if any, foodborne illness outbreaks attributed to the consumption of raw milk in Massachusetts. H.4835 was a way to help raw milk producers—at little or no risk to the public—which is especially important given the current crisis the dairy industry is in today. In 1997 there were 353 dairy farms in Massachusetts; at the end of 2017, there were 135.4

Instead of helping Massachusetts dairy farmers the way he had a chance to, Governor Baker bought into the fear-mongering on the “dangers” of raw milk fed him by his department of public health. The nanny administrative state marches on.

H.4884 has been referred to the House Ways and Means Committee.

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[1] Massachusetts House Bill H.4835, accessible at https://malegislature.gov/Bills/190/H4835
[2] Massachusetts House Bill H.4884, accessible at https://malegislature.gov/Bills/190/H4884
[3] Massachusetts Constitution, Article LXIII, Section 5
[4] Thomas Farragher, “The demise of a Massachusetts dairy farm”, The Boston Globe, 23 January 2018. Last viewed 9/10/18 at https://www.bostonglobe.com/metro/2018/01/23/the-demise-massachusetts-dairy-farm/G0tyAng0VJ9Ovy8nVvjrZK/story.html

Photo by Navraj Narula, Staff of Daily Free Press, published 9 January 2015