North Carolina: Herdshares Under Attack

By Pete Kennedy, Esq.

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 four-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. (See Wise Traditions Winter 2019 issue, “North Carolina – Herd Share Ban Lifted” for background.)

A herdshare agreement is a private contractual arrangement 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 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 delivering raw milk to shareowners at state-run farmers markets. There is nothing in the herdshare law, or any other law, that gives NCDA 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 and April 2018, North Carolina lost a staggering 24 percent of its Grade A dairies, dropping from one hundred ninety-two to one hundred forty-six. 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 a 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 was established 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 that ask 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 the 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 118th District, noted that sixty years ago there were around fifty Grade A dairies and one hundred fifty other dairies in her home county of Yancey 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 ten years, shareholder dairies have thrived; it is estimated that there are around three hundred 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 for the state of North Carolina. 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.

1. North Carolina General Assembly, Session Law 2018-113 (Senate Bill 711), Section 15.2, June 27, 2018. Retrieved October 9, 2018 from
   https://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.
   http://currents.plos.org/outbreaks/index.html%3Fp=76143.html .

Those who have not joined the Farm-to-Consumer Legal Defense Fund are encouraged to do so. Membership applications are available online at farmtoconsumer.org or by calling (703) 208-FARM (3276); the mailing address is 8116 Arlington Blvd, Suite 263, Falls Church, VA 22042.

This article was first published in the Spring 2019 editions of Wise Traditions in Food, Farming, and the Healing Arts, the quarterly journal of the Weston A. Price Foundation.