Raw Butter Sales Now Legal in Tennessee

by Pete Kennedy, Esq.

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 butter;² during that time, California-based Organic Pastures Dairy Company (OPDC) sold over two million pounds of the product without incident.³ The labeling requirement was a concession needed to pass the bill.

It’s not clear why the Tennessee Department of Agriculture (TDA) would not agree to regulate the production of butter under current regulations 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 sales,⁵ in time for the spring flush.

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.