Federal Legislation

By Pete Kennedy, Esq.

Update, Summer 2014–Raw Milk Freedom Bills

On March 26 Representative Thomas Massie (R-KY) introduced HR 4307 and HR 4308, bills that would respectively repeal and modify the federal ban on raw milk for human consumption in interstate commerce. HR 4307 would allow the shipment of raw milk and raw milk products from one state to another state regardless of whether the sale of raw milk is legal in either state. HR 4308 would allow the shipment of raw milk and raw milk products from one state which by law, regulation or policy allows them “to be distributed for direct human consumption by any means, including any form of retail sale, direct farm to consumer distribution or cowshare” to another state that allows the distribution of raw milk and raw milk products by law, regulation or policy “irrespective of whether the applicable laws of such state are identical to the laws of the state of origin.”

Ron Paul had introduced bills similar to HR 4307 and HR 4308 in prior sessions of Congress but none of the legislation he introduced had close to the number of co-sponsors that Massie’s did. HR 4307 had 12 co-sponsors while HR 4308 had 23; there were Democrat co-sponsors for each bill.

In a press release announcing the bills, Massie stated, “[The] bills would make it easier for families to buy wholesome milk directly from farmers by reversing the criminalization of dairy farmers who offer raw milk. The federal government should not punish farmers for providing customers the foods they want, and states should be free to set their own laws regulating food safety.”

Co-sponsor Chellie Pingree (D-ME) added, “Given how many food scares there have been involving large-scale producers, it just doesn’t make sense to spend money cracking down on small, local farmers who are producing natural raw milk and cheese. The enforcement of raw milk regulations has been overzealous and needs to be reined in.”

The mainstream media was alarmed by the amount of support the bills received. Shortly after the introduction of HR 4307 and HR 4308, Bloomberg News, Reuters and The Washington Post all ran hit pieces on raw milk; their fear-mongering ignored the fact that since 2007 five deaths have been attributed to the consumption of pasteurized cheese and three to the consumption of pasteurized milk while none during that time have been attributed to either raw milk or raw cheese.

HR 4307 and 4308 have been assigned to the House Committee on Energy and Commerce; it is not likely the bill will have a hearing this session of Congress but their introduction has generated momentum that should carry over to their reintroduction next year. There could be companion bills introduced in the U.S. Senate sometime this summer.

Update, Spring 2012—HR1830

With the increased FDA aggression against raw milk producers and consumers, HR1830, a bill that would effectively overturn the interstate ban on raw milk, continues to take on greater importance. There is significantly more support for the bill than there was the last session of Congress when it was initially introduced (2009/2010 as HR778). HR1830 now has five cosponsors; the bill’s sponsor Rep. Ron Paul (TX) did not have a single cosponsor during the prior session. Those who have not used the Farm-to-Consumer Legal Defense Fund’s HR1830 petition to ask their U.S. Representatives to cosponsor HR1830 are encouraged to do so. Please go to www.farmtoconsumer.org/hr1830. More Congressmen are becoming aware of FDA’s abuses of power and misplaced priorities in its raw milk enforcement actions. Continued and sustained support for HR1830 is needed to move them to focus more on this issue. There is still a chance for there to be a hearing covering FDA persecution of raw milk farmers this session of Congress.

Update, Aug. 12, 2010: Food Safety Modernization Act

Update, Summer 2009—HR 778

An online petition has been posted at the Farm-to-Consumer Legal Defense Fund website (www.farmtoconsumer.org) in support of HR778, a bill introduced by Representative Ron Paul that would effectively overturn the interstate ban on raw milk for human consumption (see Wise Traditions Spring 2009 issue). The petition enables signers to send a personalized email directly to their representative and both senators as well as providing the option of sending a copy to their local newspaper. Citizens living abroad are able to sign as well. For those without internet access, a hard-copy version of the petition for collecting handwritten signatures can be downloaded or requested at 703-208-3276. Supporters of the bill are also encouraged to call, fax and visit their legislators to ask them to become co-sponsors for the bill.

In promoting passage of HR778, it is good to emphasize any of the following points:

1. The bill upholds consumer freedom of choice. The consumption of raw dairy products is legal in all fifty states. The bill enables consumers to exercise their legal right in States where the sale of raw milk and/or raw milk products is illegal or where there are no in-State sources.

2. The bill honors States’ rights. Decisions about the safety of raw milk should be made at the state and local level, not by the federal government.

3. The bill supports family farms by expanding their markets for raw dairy products. The bill increases the chances of survival for those dairies that are no longer able to subsist solely on the income from the dairy cooperative system.

4. The bill promotes the local food movement by connecting consumers with producers who happen to live just across state lines.

5. The bill would free FDA to focus on the pressing problems in our food system, e.g., such as tainted imports and under-inspected large-scale food processors.

As Congressman Paul stated in introducing the bill, “Americans have the right to consume these products without having the federal government second-guess their judgment about what products best promote health. If there are legitimate concerns about the safety of unpasteurized milk, those concerns should be addressed at the state and local level.” Those with questions about the bill are encouraged to contact the Farm-to-Consumer Legal Defense Fund.

Update, Spring 2009: Proposed Federal Legislation–The Good and the Disastrous

HR778: Nothing would do more to increase the availability of raw milk than to reduce the FDA’s power to regulate it. Current proposed federal legislation would take away FDA’s biggest weapon, the interstate ban on raw milk for human consumption.

On January 28 Congressman Ron Paul (R-TX) introduced HR778, a bill “to authorize the interstate traffic of unpasteurized milk and milk products that are packaged for direct human consumption.” Under the bill, the federal government “may not take any action…that would prohibit, interfere with, regulate, or otherwise restrict the interstate traffic of milk, or a milk product, that is unpasteurized and packaged for direct human consumption solely on the basis that the milk or milk product is unpasteurized….” The bill defines “interstate traffic” as “the movement of any conveyance or the transportation of persons or property…from a point of origin in any State or possession to a point of destination in any other State or possession….”

Passage of the bill into law would repeal the federal regulation prohibiting raw milk and raw milk products for human consumption in interstate commerce. That regulation (21 CFR 1240.61) provides, 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….”

HR778 has been assigned to the House Energy and Commerce Committee. Co-sponsors are needed for the bill to have a chance to progress. Those supporting the bill should contact members of the Committee as well as their own Representative to encourage them to sign on as co-sponsors for the bill.

Passage of HR778 would help resolve the disconnect between the laws on the consumption of raw milk—which is legal in every state—and the laws on the sale of raw milk which is illegal in about half the states. The bill would enable those living in states where the sale of raw milk is illegal and those living in states where the sale is legal but difficult to obtain to be able to exercise their legal right to consume raw milk. As Congressman Paul stated in introducing the bill, “Americans have the right to consume these products without having the Federal Government second-guess their judgment about what products best promote health. If there are legitimate concerns about the safety of unpasteurized milk, those concerns should be addressed at the state and local level.” Unfortunately, FDA does not share this view and has convinced other members of Congress to support legislation that would take away most of what is left of the States’ power to independently regulate commerce, including the power to regulate the intrastate sale of raw milk.

HR875: On February 4 Representative Rosa DeLauro (D-CT) introduced HR875, a bill “to establish the Food Safety Administration within the Department of Health and Human Services to protect the public health by preventing food-borne illness, ensuring the safety of food, improving research on contaminants leading to food-borne illness, and improving security of food from intentional contamination, and for other purposes.” The bill would divide FDA into the Federal Drug and Device Administration and the Food Safety Administration (FSA). HR875 gives the FSA extensive power to regulate interstate and intrastate commerce.

The bill gives FSA the power to conduct regular unannounced inspections of farms even if the farm is engaged solely in intrastate commerce. HR875 requires FSA to conduct weekly unannounced inspections of farms producing raw milk. Under the bill, raw milk producers—like all farmers engaged in commerce—will have to make their customer lists available to FDA; and farmers will also be required to develop “a written food safety plan that describes the likely hazards and preventive controls implemented to address those hazards.”

Aside from the burdensome and intrusive regulations HR875 imposes on farmers, the greater threat the bill poses to raw milk producers is that it gives FSA the statutory authority to ban the intrastate sale of raw milk. HR875 orders FSA to issue regulations designed to “limit the presence of contaminants in food prepared in a food establishment [farms are “food establishments” under the bill] using the best reasonably available techniques and technologies….”

To FDA, the “best available technology” is pasteurization. The agency has long wanted a complete prohibition on the sale of raw milk. With the passage of the bill, the agency would now have its chance to impose a total ban. HR875 has been assigned to both the House Committee on Energy and Commerce and the House Committee on Agriculture. It needs to be stopped. We are working on an organized strategy to defeat this bill and will keep our members posted.

Update, Spring 2008

On November 5, 2007, Congressman Ron Paul introduced HR4077, a bill to “authorize the interstate traffic of unpasteurized milk and milk products in final package form for human consumption when the milk or milk product originates in a State that allows the sale of unpasteurized milk and milk products in final package form and is destined for another State that allows the sale of unpasteurized milk and milk products in final package form.” The purpose of the bill is to initiate the elimination of the federal regulation (21 CFR 1240.61) that prohibits raw milk and raw milk products for human consumption in interstate commerce. This regulation has hindered the ability of raw milk dairies to market their products; and it has made it more difficult for consumers to find sources of raw milk. As the FDA’s warnings increasingly fall on deaf ears, the regulation looks more vulnerable to a challenge. Getting rid of it would remove a major obstacle to prosperity for small dairy farms. HR4077 has been referred to the House Committee on Energy and Commerce.

Pete Kennedy

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.

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