Proposed Raw Milk Regulations in Illinois and South Dakota

By Pete Kennedy, Esq.

Update, Winter 2015
Illinois

After nearly three years of working on raw milk regulation, the Illinois Department of Health (IDPH) still has more work to do. On August 11th the Joint Committee on Administrative Regulations (JCAR), a legislative body that has the final say on approving proposed rules, voted to prohibit the filing of IDPH’s proposed rules with the Secretary of State—pro- posed regulations do not become law unless they are filed with the Secretary. The rules IDPH submitted to JCAR were an amended version of proposed regulations the department issued in September 2014. Over seven hundred people had submitted comments on the original version; nearly all of them opposed.

For over thirty years, IDPH had a successful policy of allowing unlicensed on-farm sales; there was not a single case of foodborne illness legitimately attributed to a raw milk producer operating under the policy. (See Wise Traditions Summer and Fall 2013 issues for background.)

Through the proposed regulations, the department is trying to implement a two-tier licensing system where producers who meet requirements outlined in the proposed rules can obtain a license to sell raw milk on the farm while those who meet Grade A requirements, including expensive physical facility requirements, can deliver and sell raw milk to off-farm customers. The proposed rules would require herdshare operations to meet the Grade A mandates.

Both raw milk proponents and opponents opposed IDPH’s amended version of the rules. Even raw milk producers who were willing to submit to licensing and inspection thought the sanitary standards in the proposed regulations were too broad and subject to abuse by inspectors. The Northern Illinois Public Health Consortium—which had unsuccessfully pushed legislation to ban raw milk in 2014 (see Wise Traditions Summer 2014 issue)—and other public health organizations opposed IDPH’s amended version of the rules, mainly on the grounds that they would allow the retail sale of raw milk in population centers instead of just on the farm, which is what the original version called for. JCAR’s notice prohibiting filing of the rules stated, “This rulemaking has not achieved an adequate balance between the State’s role in protecting the public health and its mission to avoid unduly burdensome regulations on small business. JCAR finds that adoption of this rulemaking in its current form would not be in the public interest.”

Update, Winter 2014
Illinois

On September 5th, the Illinois Department of Public Health (IDPH) issued proposed regulations governing raw milk sales and production; regulations that a number of raw milk producers believe would put them out of business. (See Wise Traditions Winter 2013 issue for more background.) So many people submitted comments opposing the rules (over 700 submitted comments with the overwhelming majority in opposition) that IDPH extended the comment period on them from 45 to 90 days.

For over 30 years unlicensed on-farm sales of raw milk have been legal by government policy; the rules IDPH proposed to replace the policy would reduce consumer access to the raw milk produced in Illinois by creating an arbitrary and overreaching regulatory scheme that would make it more difficult for dairy farmers to make a living. The proposed rules would;

• Require a raw milk producer with even just one cow or goat to have a permit and would be subject to regular inspections and testing.
• Prohibit unlicensed producers from giving away milk to guests at their farm.
• Prohibit herdshares and the distribution of raw milk through community subscription agriculture (CSAs) unless the producer is in compliance with all requirements for Grade A dairies which produce raw milk for pasteurization – a financially impossible standard for just about all shareholder and CSA dairies. Even if a dairy could afford to meet the Grade A standards it could still only distribute to shareholders and CSA members on the farm. IDPH issued the herdshare regulation despite Illinois statute recognizing the legality of dairy livestock boarding agreements.
• Contain a number of sanitary standards that can be arbitrarily applied against producers to shut them down when there is no threat to public health; for example: “the flanks, udders, bellies and tails of all lactating animals should be free from visible dirt” and “all milking equipment should be stored in a dust-tight room.”
• Intrude on the farmer-consumer relationship by requiring farmers to maintain records of each transaction with the customer, name and address, to issue “Department approved consumer awareness information with each sale or transaction” and to provide “instructions for the consumer to notify the local health department for the area in which the consumer resides of a consumer complaint or suspected foodborne illness.” There isn’t any other food whose producers are required to do all this.

With the comment period now being over the next step in the rule-making process was for the proposed rules to go to the legislature for consideration by the Joint Committee on Administrative Regulations (JCAR). JCAR has the power to reject the rules. Illinois law provides for an official comment period where people can submit comments once the rules are before the committee but hundreds of those opposing the regulations had gotten an early jump on the process and had contacted members of JCAR telling them to kill the rules. JCAR will likely be taking up the rules sometime in the first half of 2015. The goal for raw milk supporters is to end the rule-making process in the committee and have the state government stick with the policy that has been successful in protecting access to locally produced raw milk since the early 1980s.

Update, Winter 2013
Illinois

The Illinois Department of Public Health (IDPH) had been leading a dairy workgroup to develop recommendations for raw milk regulations (see original post from Summer 2013 and Fall 2013 update below  for background). IDPH  officials have disbanded the workgroup and are moving on to the next step in the rulemaking process.

In a November 21 email sent to the members of the workgroup, Molly Lamb, chief of IDPH’s Division of Food, Drugs and Dairies stated that the workgroup would be releasing a “summary of comprehensive recommendations” that would be used by IDPH to write proposed raw milk regulations. In her email, Lamb included a draft of summary recommendations from IDPH that were far different from what raw milk producers and consumers in the workgroup had been proposing.

The raw milk advocates who comprised a majority of the workgroup had been supporting a two-tier system in which one tier would allow unlicensed, unregulated on-farm sales of raw milk and another tier would support licensed sales off the farm; the IDPH recommendations call for inspection, licensing and testing on both tiers. The department’s recommendations would also prohibit distribution of raw milk through a herdshare agreement, buyers club or CSA without licensing and inspection.

Donna O’Shaughnessy, a raw milk producer on the workgroup, said its disbanding was the same as firing the raw milk supporters. O’Shaughnessy pointed out that in the nine months the workgroup met it was never even discussed what the requirements would be for tier-two producers and that IDPH ignored the will of the majority of the group to have no licensing or registration mandate for on-farm sales; throughout the time the group was meeting, IDPH’s minutes from the meetings indicated there was consensus among group members for licensing on-farms sales when there never was. IDPH’s goal is to issue the proposed raw milk rules in March 2014. If adopted, the rules would go into effect sometime next summer or fall.

South Dakota

On November 12 the South Dakota Legislative Rules Review Committee (LRRC) approved raw milk regulations issued by the South Dakota Department of Agriculture (SDDA). The LRRC had rejected a prior attempt by the department to approve the proposed regulations (see original post from Summer 2013 and Fall 2013 update below  for background); but this time the committee signed off on the rule because SDDA had complied with the necessary procedural steps it was required to take for approval. LRRC Chairman Rep. Timothy Johns admitted that he had received a foot high stack of emails opposing the regulations but the committee’s position was that its responsibility is not to judge the worthiness of the rules but only whether the department had followed the proper procedures in issuing them.

SDDA was wasting no time in implementing the regulations; Agriculture Secretary Lucas Lensch announced that the rules would be going into effect on December 11, 2013. Lensch said he had received dozens of requests to postpone implementation of the rules; despite South Dakota law giving government agencies the discretion to delay implementation of a regulation, Lensch rejected the requests, claiming that “to delay the rules puts public health and safety at the back of the line, and that has never been our intent.” Opponents of the regulations have considered going to the legislature to get a bill passed that would effectively overturn the new rules. The fallout from the approved rules was already taking place. Black Hills Milk LLC, a long-time raw milk dairy, notified their customers that it would no longer be selling raw milk and would instead be changing over to a herdshare program in order to be outside SDDA’s jurisdiction.

Update, Fall 2013

Proposed regulations threatening access to raw milk in Illinois and South Dakota continue in the rule-making process (see Wise Traditions Summer 2013 issue for background).

In Illinois, raw milk advocates were making progress in developing more favorable regulations than those originally proposed by a dairy workgroup last winter. The balance of power in the workgroup had shifted to the point that raw milk producers and consumers now made up the majority of those actively working on the new regulations. The focus of the group moved from limiting on-farm sales of raw milk to establishing a two-tier system in which unlicensed on-farm sales of raw milk would continue while producers wanting to sell at farmers markets—and possibly at retail stores—would be licensed and inspected by the state. It seems unlikely that the Illinois Department of Public Health would be issuing the proposed regulations before the end of the year.

In South Dakota, regulations proposed in May went to the Legislative Rules Review Committee (LRRC) on August 20 for final approval. Some modifications had been made to the rules since they were first proposed—notably, language clarifying that the South Dakota Department of Agriculture (SDDA) did not regulate herdshares; but the rules still posed a threat to the future of the licensed raw milk dairies in the state.

After hearing testimony from a number of raw milk advocates, the LRRC voted against approving the proposed regulations, sending them back to SDDA on the grounds that the department didn’t provide sufficient information to comply with the requirement that SDDA provide a statement detailing the impact the proposed regulations would have on small business. The LRRC also rejected the rules because its members believed SDDA failed to thoroughly explain what was being changed in the rules.

It is now up to SDDA to determine what its next step will be. No one trusts the department to make the regulations it resubmits to the LRRC any less burdensome for producers. SDDA provided further evidence of its bias against raw milk with its distribution of a flyer claiming that there were 24 illnesses in South Dakota in 2012 associated with raw milk consumption—a blatant lie, given that there hasn’t been a single reported foodborne illness outbreak in South Dakota attributed to raw milk consumption since 1999, if not further back. A number of raw milk supporters believe that SDDA
dairy administrator Darwin Kurtenbach wants to eliminate all raw milk dairies in the state.

Original Post, Summer 2013

Proposed regulations threatening access to raw milk in South Dakota and Illinois were in the initial stages of the rulemaking process in the two states. In Illinois the unlicensed sale of raw milk on the farm has long been allowed. A dairy workgroup under the direction of the Illinois Department of Public Health that started meeting in the fall of 2012 was still in the process of drafting regulations that could severely restrict both the ability of raw dairy farmers to make a living and consumer access. The latest draft of the workgroup calls for all farms selling raw milk to have a permit as well as to be compliant with Grade A standards, which would significantly increase expenses for raw milk producers. While increasing their costs, the proposed regulations would limit the amount of milk producers could sell to just one hundred gallons per month. Moreover, herdshare agreements would be prohibited.

The dairy workgroup originally did not have as members any farmers who made their living solely from raw milk sales before adding Donna O’Shaughnessy in February. O’Shaughnessy was the one responsible for alerting consumers and other raw milk farmers to the threat the regulations posed. On May 1, over one hundred people showed up at a hearing in Bloomington to oppose the draft regulations; even with the overwhelming opposition, the workgroup did not take any of the onerous provisions out of the draft. The most positive development to come out of the meeting were indications from the workgroup that it would delay issuing the proposed regulations until the end of the year. O’Shaughnessy now has a number of other raw milk producers as well as consumers to help in the fight to stop rule-making on raw milk sales. It will not be easy; the workgroup still has an anti-raw milk majority and its funding is being provided by the most anti-raw milk agency of them all―FDA.

In South Dakota the raw milk regulations were further along; the South Dakota Department of Agriculture formally issued the proposed regulations in May. The regulations call for financially burdensome animal health testing requirements, extensive pathogen testing and for raw milk dairies to be in compliance with the physical facility requirements mandated for conventional Grade A and Grade B dairies. There are only a handful of licensed raw milk dairies in the state now (raw milk sales are only legal in South Dakota with a license) and their numbers don’t look to be increasing if the proposed regulations go into effect. The biggest threat to raw milk producers and consumers in the state is SDDA dairy administrator Darwin Kurtenbach who has been quoted as saying, “I would probably drink gasoline before I’d drink raw milk.”