Real Milk Updates, Fall 2025

by Pete Kennedy, Esq.

ARKANSAS – Liability Waiver for Raw Dairy Products

One of the biggest obstacles to meeting the explosive demand for raw milk is the lack of affordable product liability insurance. A Colorado dairy farmer who recently tried to obtain a policy said that the cheapest premium she found was six thousand dollars per year, an amount that is not cost-effective for the many micro-dairies with under ten cows that are seeking insurance. A California insurance broker who provides product liability policies remarked that the minimum payment for product liability from his company would be about nine thousand dollars, which would cover the premium and other costs. Many companies who write policies for raw milk producers write policies for only licensed and inspected producers; there currently are over twenty states where, by statute, an unregulated producer can legally sell or distribute raw milk.

Insurers, such as Farm Bureau, won’t write a policy for a farm that produces and distributes raw milk, not even issuing a policy that has an exclusion for that activity. Raw milk has a good track record for safety. In 2020, a year when demand for raw milk went up substantially, there were five foodborne illness outbreaks attributed to consumption of the product totaling twenty-eight illnesses, one hospitalization and no deaths. According to CDC data for 2005-2020, leafy greens accounted for nearly fifteen times the number of illnesses that raw milk consumption did, yet leafy green growers haven’t been reported to have had anywhere near the problems that raw milk producers have had in obtaining product liability insurance. The lack of affordable insurance, or lack of insurance—period—has deterred potential high-quality raw milk producers from getting into the business; it has also moved high-quality producers to leave the business.

Insurance industry practices are a major barrier to health for Americans; it’s way past time for Congress to revoke that industry’s antitrust exemption. The insurance problem raw milk producers have raises the question of whether state legislatures should immunize them from liability to provide the protection that insurance companies refuse to offer, as well as to facilitate bringing enough product into the market to meet the booming demand. State bar associations have usually been able to stop liability waivers for producers from passing into law, but there is one state that has adopted a liability waiver for raw milk products. Arkansas statute requires that a sign at the point of sale and a label on the milk container include the following statement, “The consumer assumes all liability for health issues that may result from the consumption of this product.”

Before 2025, the Arkansas law (Arkansas code 20-59-248) allowed the unregulated on-farm sale of an average of five hundred gallons a month of raw milk. This year the state legislature amended the law substantially, taking the cap off sales and expanding venues to include farmers markets, “natural food stores” and delivery from the farm where the milk was produced.

The new law also allows sales of any raw milk product. Producers selling a raw dairy product at farmers markets, natural food stores, or through delivery must include the following statement on the label, “Warning: This product, sold for personal use and not for resale, is a product that has not been pasteurized and may contain harmful bacteria that can cause serious illness. The consumer assumes all liability for health issues that may result from the consumption of this product.” In addition, a consumer obtaining raw dairy at any of the venues added by the new law must sign “an acknowledgment of risk that the consumer assumes all liability for health issues that may result from the consumption of the raw milk product.”

With the new law, Arkansas joins Wyoming as the only states to allow the sale of raw dairy products from unregulated producers in retail stores. The Arkansas legislature would not have undertaken this significant expansion of the law if it didn’t think the statutory liability waiver was working effectively. If raw milk producers can’t get a fair shake from the insurance companies, liability waivers could be the needed step to meet the unprecedented demand that currently exists for raw dairy products.

States could try to set up their own insurance pools for raw milk producers, but that’s a long shot. If the consumer as a clear warning that there is no legal recourse for illness, the liability waiver should be an option for state legislatures to consider.

FLORIDA – Keely Farms Dairy

Raw pet milk, as far as is known, has never been implicated in any foodborne illness outbreaks in Florida before, but that changed this past August when, in a series of press releases, the Florida Department of Health (FDH) accused Keely Farms in new Smyrna Beach of sickening twenty-one people with Campylobacter and Shiga toxin-producing E. coli (STEC). According to FDH, there have been twenty-one cases since January 24, 2025, including six children under the age of ten, and seven hospitalizations linked to consumption of raw milk from Keely Farms; severe complications have been reported in at least two cases.¹

While there were complaints from customers claiming that their milk had made them sick, the FDH press releases provided no evidence linking Keely Farms to the illnesses. If a government agency alleges that a dairy has made people sick, the usual procedure is for the agency to issue or obtain an order shutting down the farm until it shows it has rectified the conditions that led to the outbreak. FDH did not serve Keely Farms with an order or a notice of violation, never conducted a farm site visit, nor notified Keely directly that it was under investigation²; the dairy continued to produce raw milk. There was no indication that FDH had taken any milk samples for testing; the dairy sent milk samples to a lab to test for Campylobacter, STEC and mastitis, all of which came back negative.³

The Keely Farms milk was all labeled with a warning, stating “not for human consumption.” The farm website warned customers: “Since federal law prohibits the use of raw milk for human consumption, please DO NOT discuss this issue with us.” Despite the label and website warnings, on August 14, Rachel Maddox filed suit against Keely Farms and a store where she purchased the milk, seeking compensation for illness suffered by Maddox and her two-year-old son; the lawsuit alleges that Maddox lost her pregnancy due to consuming the milk.

If a jury were to find that Keely Farms milk was responsible for the illnesses, the “not for human consumption” warning on the label would not likely exempt the dairy from liability. Under tort law, a producer can be found liable not only if the illness was caused by an intended use of the product but also by a “reasonably foreseeable” use (such as the use of pet milk for human consumption).

References

1. Florida Department of Health. (2025, August 4). Florida Department of Health Provides Update on Raw Milk. https://www.floridahealth.gov/newsroom/2025/08/20250806-florida-department-health-provides-update-rawmilk.pr.html 
2. Farm-to-Consumer Legal Defense Fund. (2025, August 27). Floridaʼs Department of Health Is Destroying a Family Farm Without Due Process. https://www.farmtoconsumer.org/blog/2025/08/27/floridas-department-of-healthis-destroying-a-family-farm-without-due-process/ 
3. Farm-to-Consumer Legal Defense Fund. (2025, August 15). Why Is A Family-Owned Livestock Feed Provider Being Persecuted? https://www.farmtoconsumer.org/blog/2025/08/15/why-is-a-family-owned-livestock-feedprovider-being-persecuted/
4. Keely Oxum. (2025, August). Raw Milk Producer and Family Farm in Crisis. https://www.gofundme.com/f/rawmilk-and-farm-sanctuary-in-crisis