By Pete Kennedy, Esq.
The ban on interstate (from state to state) shipments of raw milk is the single greatest impediment to raw milk sales in the US. This ban is widely misunderstood to have stemmed from a presidential executive order; actually it was the result of a court order.
The petition to ban interstate sales of raw milk occurred in 1984, after almost 30 years of effort on the state level had failed to shut down Alta Dena dairy, which sold certified raw milk and raw milk products not only in California, but in many other states (See “The Vendetta Against Alta Dena Dairy).
Back in 1973, the FDA had issued a regulation requiring that “all products labeled milk moving in interstate commerce be pasteurized” (38 FR 27924). This was done under FDA’s authority under the Federal Food, Drug and Cosmetic Act to issue “Standard of Identity” regulations for products entering into interstate commerce (21 USR 341). In 1974, after objections to the regulation from people within the dairy industry, the FDA stayed the pasteurization requirement for interstate shipments of certified raw milk, permitting the shipments of certified raw milk and raw milk products across state lines to continue (39 FR 42351). Certified raw milk is raw milk produced according to guidelines and standards established by the American Association of Medical Milk Commissions, a private group.
In 1984, the Health Research Group of Public Citizen, Ralph Nader’s non-profit public advocacy group based in Washington, DC, petitioned FDA to ban all interstate and intrastate sales of raw milk and raw milk products. Spearheading this effort was Dr. Sidney Wolfe. Eventually, HHS Secretary Heckler directed the FDA to deny Public Citizen’s petition. Public Citizen sued Heckler to start new rule-making proceeding on interstate and intrastate ban on all raw milk sales.Public Citizen then sued Heckler in federal discrict court, seeking a court order compelling the FDA to begin a new rule-making proceeding banning both interstate and in-trastate sales of raw milk and raw milk products.
In 1986, the District Court of the District of Columbia issued its ruling in Public Citizen v. Heckler (DC 1986) 653 F. Supp. 1229, which specifically ordered that the “Food and Drug Administration promulgate, and the Secretary of the Department of Health and Human Services approve, a rule banning the interstate sale of all raw milk and all raw milk products, both certified and non-certified. . . ”
The FDA’s final rule was delineated in Section 1240.61 of Title 21 of the US Code of Federal Regulations (CFR). It is titled “Mandatory pasteurization for all milk and milk products in final package form intended for human consumption.” 21 CRF S 1240.61(a) reads in part that “no person shall cause to be delivered into interstate commerce or shall sell, otherwise distribute or hold for sale or other distribution after shipment in interstate commerce any milk or milk product in final package form for direct human consumption unless the product has been pasteurized or is made from dairy ingredients (milk or milk products) that have all been pasteurized. . .”
The FDA does not apply this regulation to “the interstate transportation of raw milk to dairy processing plants for pasteurization or to raw milk and raw milk products in intrastate commerce.” (52 Federal Register 29509) – Final Rule on “Requirements Affecting Raw Milk for Human Consumption in Interstate Commerce.” The ban also does not cover the interstate shipment of raw milk cheeses produced in accord with part 133 of Title 21 of the CFR. The FDA also has the power under the Federal Food, Drugs and Cosmetic Act to levy fines for each violation of the law.
In its ruling, the district court did not order the FDA to ban intrastate (within the state) sales of raw milk. The court stated, “While we must agree that a rule banning the interstate sale of raw milk is appropriate, at this time there is no indication that a rule banning the intrastate sale of raw milk is necessary to effectuate the interstate ban. . . Assuming the interstate ban is effective without an intrastate ban, it is up to the individual states to decide on such matters of purely local concern. Should it appear that the interstate sale of raw milk continues, it is within HHS’s authority at that time to institute an intrastate ban as well” (653F. Supp. 1241).
Even though the safest course would be to stop shipping raw milk and raw milk products in interstate commerce, it is at least arguable that farmers could ship raw dairy in interstate commerce without violating the mandatory pasteurization regulation. 21 CFR S1240.61 covers “mandatory pasteurization for all milk and milk products in final package form intended for direct human consumption.” If farmers ship the raw dairy products in bulk and customers collect what they want to purchase of these products in their own containers at the destination site, farmers can claim they did not sell or distribute these products in “final package form.” This approach could violate milk sanitation laws in some states.
Whether the FDA buys this argument is another question and this type of action could lead the FDA to exercise its court-granted authority to ban all intrastate raw milk sales. However, for the moment, Organic Pastures Dairy in California is shipping raw milk products all over the country, with the full knowledge of the FDA, arguing that because these products are frozen, they are not in final package form. Similarly, it could be argued that raw milk products that are not labeled are not in final package form.
This article appeared in the Falll 2004 edition of Wise Traditions, the quarterly journal of the Weston A. Price Foundation.
Considering the age of this article, and the many events concerning raw milk that have taken place since then, it would be great if this article could be updated. How does this clause affect Buying Clubs, mostly coming from PA into many nearby states, and even shipping many states away? How does the “private transaction” compare to interstate commerce?